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2008 DIGILAW 1048 (MAD)

R. Santhakumari v. General Manager, Chennai Metropolitan Water Supply and Sewerage Board, (Personnel and Administration (VC) Dept. , Chennai

2008-03-24

S.MANIKUMAR

body2008
ORDER The petitioner has challenged the order of the first respondent, dated 23.6.2005, confirming the orders passed by the second and third respondents, in proceedings, dated 1.3.2005 and 27.9.2004 respectively and for further orders. 2. Facts leading to the writ petition are as follows: The petitioner was appointed as Junior Assistant in the respondent Board in the year 1982 and promoted as Junior Accounts Officer in 2003. On 28.9.2003, the petitioner was temporarily diverted from Finance Department and posted at Area VI Office as AIFO under the Control of SAO VI, Smt. N. Leela and she joined duty on 30.9.2003. Subsequently, she was relieved from Area VI Office on 29.4.2004 and posted at I.A. Wing. During the tenure at Area VI Office, she was directed to collect pending arrears since 1988 in Divisions 90 to 92, in addition to her normal duties. While she was serving in the said Office, the third respondent issued a show cause notice, dated 12.1.2004 to the petitioner, calling upon her to explain to the following charges, otherwise action would be taken against her for violation of Rules 6(1) and 6(4) of the Chennai Metropolitan Water Supply & Sewerage Board Employees (Discipline and Appeal) Rules, 1978, (hereinafter referred to the "D & A Rules"): "(a) For not taking actions against the complaints received through telephone on 12.11.2003 from IFO, S. Gunasekaran, in Area VI Office and for refusing to receive the Memo issued by the Area Engineer VI, namely, Mr. S. Muthukumaran; and (b) For leaving the Review Meeting conducted on 16.12.2003 on the collection of taxes, even before the closure of the meeting, without any permission and also for refusing to receive the Memo issued by the above Area Engineer VI." 3. The petitioner has further submitted her reply on 28.1.2004. In the reply, she stated that the complaints, which were received through telephone, were in the nature of E-mail complaints and the said complaints were attended, followed-up, actions were taken and reports were also submitted to the Area Engineer VI. Originally, the E-mail complaints were to be handled by the P.C., Smt. Nagalakshmi to the Area Engineer VI, which were left pending and unattended right from the month of August' 200Further, when she joined duty, she was not given any password for operating the E-mail complaints and her predecessor did not hand over the charge immediately. Originally, the E-mail complaints were to be handled by the P.C., Smt. Nagalakshmi to the Area Engineer VI, which were left pending and unattended right from the month of August' 200Further, when she joined duty, she was not given any password for operating the E-mail complaints and her predecessor did not hand over the charge immediately. In respect of the second charge, she stated that while attending the Review Meeting held on 16.12.2003 regarding collection of water and sewerage taxes pending since 1988, she suffered chest pain coupled with giddiness and vomiting sensation, due to which, she could not sit continuously in the meeting. When she returned later, she found that the meeting had already ended. She took treatment for the chest pain and giddiness at the Chellam's Clinic at Thiruvanmiyur, Chennai on the very same day. 4. The petitioner has further submitted that the third respondent, by his proceedings, dated 22.4.2004, summoned her for an Oral Enquiry to be held on 26.4.200After a lapse of more than five months, the third respondent, without considering her explanation in proper perspective and without affording her reasonable opportunity, by his proceedings, dated 27.9.2004, passed the final order of 'Censure'. Aggrieved by the penalty, the petitioner preferred a statutory appeal, dated 28.10.2004 before the second respondent and the said appeal was rejected and communicated by the third respondent, in his proceedings, dated 1.3.2005. Against which, the petitioner preferred a Memorial before the first respondent on 5.4.2005, under Rule 25 of the D & A Regulations, 1978. The first respondent, by order dated 23.6.2005, has rejected the Memorial, confirming the orders passed by the second and third respondent. Aggrieved by the orders of the respondents, the petitioner has preferred the present writ petition. 5. Though several grounds were raised in the writ petition, learned counsel for the petitioner submitted that the impugned order is liable to be set aside on the sole ground of violation of principles of natural justice and failure to adhere to the procedure contemplated under the Madras Metropolitan Water Supply & Sewerage Board Employees (Discipline and Appeal) Regulations, 1978. Referring to the Schedule to the Regulations, he submitted that the Vigilance Officer, having decided to conduct an enquiry, ought to have given an opportunity to the petitioner to cross-examine the witness and record her objections. Referring to the Schedule to the Regulations, he submitted that the Vigilance Officer, having decided to conduct an enquiry, ought to have given an opportunity to the petitioner to cross-examine the witness and record her objections. Failure to do so, has resulted in miscarriage of justice and therefore, the impugned order is liable to be set aside. 6. Heard the learned counsel for the respondents and perused the materials available on record. 7. In the Madras Metropolitan Water Supply and Sewerage Board Employees (Discipline and Appeal) Regulations, 1978, there are seven types of punishments, that can be imposed on the employee of the Board, for good and sufficient reasons or for any misconduct specified in the Regulations or for violation of other regulations of the Board. Out of the seven types of punishments, "Censure" is one among them. In case of employees, who are in receipt of pay of Rs. 1,500/- and above, the Board is the competent authority to impose punishment. In case of employees who are in receipt of pay of Rs. 1,000/- and above but below Rs. 1,500/-, the Managing Director of the Board is empowered to impose the penalty. 8. Regulation 10 of the Madras Metropolitan Water Supply and Sewerage Board Employees (Discipline and Appeal) Regulations, 1978, deals with the procedure for imposing penalties and it reads as follows: "1) In every case where it is proposed to impose on any employee of the penalties in items (1), (2), (3) and (4) in Regulation 5, he shall be given a reasonable opportunity to explain and to make representation as he may desire and the explanation and the representation, if any, made by him shall be taken into consideration before the order imposing the penalty is passed. Provided that the requirements of this Regulation shall not apply where it is proposed to impose on an employee any of the penalties aforesaid, where the officer concerned has absconded or where it is for other reasons impracticable to communicate with him. Provided that the requirements of this Regulation shall not apply where it is proposed to impose on an employee any of the penalties aforesaid, where the officer concerned has absconded or where it is for other reasons impracticable to communicate with him. 2) In every case where it is proposed to impose on an employee any of the penalties in items (5) and (6) in Regulation 5, he shall be given a charge sheet setting out the grounds on which it is proposed to take action and any other circumstances which it is proposed to take into consideration in passing orders on the case; he shall be required to answer the charge or charges in a written statement within a reasonable time not exceeding one month and also to state whether he desires an oral enquiry or only to be heard in person; such oral enquiry shall be held if the employee desires such enquiry or if so directed by the authority concerned. Even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority concerned in respect of charges which are not admitted by the person charged and which can be proved only through the evidence of witnesses, and as per the regulations specified in the schedule to these regulations. (Amended as per Board Res. No. 54/83, dated 12.5.1983) 3. After the enquiry referred to in sub­ paragraph (2) has been completed and after the authority competent to impose the penalty mentioned in that paragraph has arrived at a provisional (sic) conclusion in regard to the penalty to be imposed, the person charged shall be supplied with a copy of the report of the enquiry officer and he shall be called upon to show cause, within reasonable time not exceeding one month, against the particular penalty proposed to be inflicted; any representation in this behalf submitted by the person charged shall be taken into consideration before final orders are passed: provided that such representation shall be based only on the evidence adduced during the enquiry. Explanation: An opportunity to show cause against the imposition of any of the penalties referred to in this sub-regulation shall be given after the authority competent to impose the penalty arrives at a provisional conclusion in regard to the penalty to be imposed either by such authority himself or under his direction, by a subordinate authority who is superior in rank the employee on whom the penalty is proposed to be imposed. 4. The requirements of Clause (2) shall not apply: (a) where it is proposed to impose on employee any such penalty as is referred to therein on the basis of fact which have led (sic) to this conviction in a criminal Court (whether or not he has been sentenced at once by such Court to any punishment), but he shall be given reasonable opportunity of making any representation he may desire to make and such representation, if any shall be taken into consideration before the order imposing the penalty is passed. (b) where it is proposed to impose on an employee any such penalty as is referred to wherein on the basic fact that have led to his conviction by a Court martial where the employee concerned has absconded or where it is for other reasons impracticable to communicate with him. (c) if the Board is satisfied that in the interest of security is not expedient to follow the procedure prescribed that clause. 5. The requirements of clause (1) and or (2) shall not apply: (a) when the person is a daily wage-earner or casual worker or when the post held by a temporary employee is retrenched on administrative grounds. (b) when the person charged admits the charge or charges. (c) where the employee is caught red-handed having committed or while committing an act of misconduct." 9. The grievance of the petitioner is that the Vigilance Officer having decided to conduct an enquiry, ought to have followed the procedure as set out in the Schedule and should have given the petitioner a reasonable opportunity to cross-examine the witnesses on whose evidence the charge rests. 10. Perusal of the order of the first respondent, dated 23.6.2005, reveals that disciplinary action was initiated against the petitioner under Regulation 10(1) for her misbehaviour during her tenure in Area-VI Office and final orders were passed awarding a punishment of Censure by the third respondent. 10. Perusal of the order of the first respondent, dated 23.6.2005, reveals that disciplinary action was initiated against the petitioner under Regulation 10(1) for her misbehaviour during her tenure in Area-VI Office and final orders were passed awarding a punishment of Censure by the third respondent. Before inflicting the punishment of 'Censure', a show cause notice, dated 12.1.2004 was issued to the petitioner for violation of Rules 6(1) and 6(4) of the Chennai Metropolitan Water Supply & Sewerage Board Employees (Discipline and Appeal) Rules, 1978, for which the petitioner has submitted her explanation in respect of the charges. 11. As stated supra, as per Regulation 10(1), it is suffice that the petitioner is given a reasonable opportunity to make representation, where it is proposed to impose the penalties in items, (1), (2), (3) and (4) in Regulation 5 of the Madras Metropolitan Water Supply and Sewerage Board Employees (Discipline and Appeal) Regulations, 1978. The above regulation does not contemplate any detailed enquiry or cross-examination of any witnesses, on whose evidence, the charges rest. As detailed enquiry is not mandatory as per the Regulations, it is suffice to see whether there is substantial compliance of the principles of natural justice in the disciplinary action initiated against the petitioner. Going through the impugned order, I find that there is substantial compliance of the Principles of Natural Justice, as contemplated under Regulation 10(1). There is no infringement of the principles of Natural Justice. 12. In the result, the writ petition is dismissed. No costs. Writ petition dismissed.