Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 3334 (MAD)

K. Arthanari v. The Chairman, Tamil Nadu Electricity Board & Others

2009-08-25

P.JYOTHIMANI

body2009
Judgment :- Heard the learned counsel for the petitioner and the learned counsel for the respondents. By consent of the parties, the writ petition is taken up for final disposal. 2. This writ petition is directed against the order of the third respondent dated 9. 2003, as confirmed by the second respondent being the Appellate Authority by order dated 6. 2004 and ultimately, confirmed in the revision by the first respondent by order dated 4. 2005, stated to have been served on the petitioner on 26. 2008. 3. The petitioner, who was working as a Wireman under the respondent/Electricity Board, was issued a charge memo framing the following charges: "The Charge No.1 is that the petitioner had demanded Rs.2 each in total Rs.50/-from M/s.Senthil Kumar and Nagaraj for rectifying the Street lights in Nathakkadaiyur Village and he had received Rs.260/-from one Thangavel towards ACCT payment for S.C.No.373 and the above said amount was not paid to the account of the Board. That apart he received each Rs.200/-from K.Selvaraj, N.Moorthy and N.Semalaiappan for the replacing the damaged electricity post. The Charge No.2 is that the Assistant Engineer issued a memo to the petitioner on 30.10.2001 as to why the street lights were not rectified and on 310. 2001, the petitioner was assigned to execute the repair work, but he did not execute the work till 310. 2001, thus there was delay of 15 days in executing the work and that when L.Periyasamy made a complaint on 12. 2002, that the street lights got repaired and even though the Assistant Engineer directed the petitioner to complete the work and only after the work was assigned to him duty register, next day he completed the work. Thus, he had disobeyed the orders of the superior. The Charge No.3 is that when the Assistant Engineer the petitioner why he has not completed the work the petitioner told one S.Periyasamy that the petitioner is not afraid even if he makes a complaint to the Chief Minister and that when Senthil Kumar and Nagaraj on 210. 2001 requested the petitioner to rectify the street light the petitioner have demanded Rs.2/- each to be paid by the panchayat. The Charge No.4 is that on 110. 2001 when Senthil Kumar and Nagaraj requested the petitioner to rectify the street lights, but he had not executed the work. 2001 requested the petitioner to rectify the street light the petitioner have demanded Rs.2/- each to be paid by the panchayat. The Charge No.4 is that on 110. 2001 when Senthil Kumar and Nagaraj requested the petitioner to rectify the street lights, but he had not executed the work. That apart he had received Rs.200/- each from Selvaraj, Moorthy and Semalaiappan for replacing the damaged Electric Posts. Even after 3 months he had not executed the work." 4. An enquiry was conducted after receiving explanation from the petitioner and the Enquiry Officer in his report dated 5. 2003 has given a finding that except Charge No.3 and the first part of Charge No.1, all other charges are proved. 5. A show cause notice was issued for the proposed punishment of compulsory retirement, for which the petitioner has given a reply. Thereafter, the third respondent has passed the final order dated 9. 2003 imposing a punishment of compulsory retirement. As against the said order of the third respondent, the petitioner has filed an appeal before the second respondent, who, by order dated 6. 2004, has rejected the appeal by confirming the order of the third respondent. A revision filed against the said order of the Appellate Authority by the petitioner was also rejected by the first respondent by order dated 4. 2005. It is the case of the petitioner that even the impugned order of the first respondent was served only after a writ petition was filed in W.P.No.9275 of 2008 and thereafter, the present writ petition has been filed challenging the said impugned order. 6. Mr.L.Chandrakumar, learned counsel for the petitioner would submit that the enquiry was not conducted in accordance with the Rules and Regulations. That apart, the report of the Enquiry Officer has been simply accepted by the Appellate Authority without any further application of mind and the Appellate Authority has passed a single line order, which is against the Regulations governing the respondent/Electricity Board. 1. The learned counsel for the respondent, on instructions, has made his submission. That apart, the report of the Enquiry Officer has been simply accepted by the Appellate Authority without any further application of mind and the Appellate Authority has passed a single line order, which is against the Regulations governing the respondent/Electricity Board. 1. The learned counsel for the respondent, on instructions, has made his submission. It is his submission that the third respondent has, in fact, conducted an enquiry, an opportunity was given to the petitioner who participated in the enquiry and the Enquiry Officer also submitted his report and the same has been forwarded to the petitioner and a second show cause notice was issued as to why the petitioner should not be compulsorily retired from service and it is only after considering the further explanation submitted by the petitioner, the order of compulsory retirement came to be passed and it cannot be said to be an order opposed to the principles of natural justice. 2. As far as the second respondent/Appellate Authoritys order is concerned, it is the contention of the learned counsel that even though the Appellate Authority order is a crisp order, it shows that the Appellate Authority has considered in detail about the case and thereafter, passed an order and therefore, it cannot be said to be against the principles of natural justice. He would add that the Appellate Authority need not give reasons while confirming the order of the Original Authority. 3. Insofar as the order of the Revisional Authority is concerned, it is his submission that since the order of the Appellate Authority has been confirmed there is no need to give reason. He also produced necessary Rules which are applicable to the employees of the Electricity Board. 8. The Standing OrdersManual issued for the workmen of Tamil Nadu Electricity Board in Clause 32 provides for procedure to be followed in disciplinary cases. Clause 32 reads as under: "32. Procedure to be followed in Disciplinary Cases The following procedure shall be followed before awarding punishment to any workman: (i) The Board shall specify from time to time, the authorities that are competent to impose the various punishments under the Standing Orders provided that only the appointing authority can impose punishments listed out in Standing Order 31(i), (vi), (viii), (ix) and (x). (ii) Any higher authority than the one specified by the Board may impose any of the punishments that the higher authority is competent to inflict. (iii) If in case a higher authority has imposed any punishment or has declined to impose any punishment, it shall act as bar on the lower authority initiating a fresh disciplinary proceedings for the same misconduct. (iv) No punishment shall be imposed unless the workman is informed in writing of the alleged misconduct. (v) The workman shall be given a reasonable time to file a written statement to the charge/charges (which charge notice shall contain the allegations based on which the charge/charges have been framed). (vi) When the charge has not been admitted, an enquiry shall be conducted. (vii) While conducting an enquiry, the following procedure shall be followed: (a) The workman shall be given a reasonable notice of the date and venue of the enquiry. (b) The oral statement of the workman, if any, at the time of enquiry shall be reduced to writing. (c) The witnesses to prove the misconduct(s) shall be examined in the presence of the workman, and the workman shall be given an opportunity to cross-examine the witnesses. (d) The workman shall be given a reasonable opportunity to peruse the relevant records and copy down the minutes of the enquiry. (e) The workman shall be given a reasonable opportunity to defend himself and to examine witnesses, if any, on his behalf. In defending himself, the workman if he so desires, shall be assisted by a representative of a trade union to which he belongs, who shall normally be a workman of the Tamil Nadu Electricity Board. In special cases, a representative of the said Trade Union, who is not a workman of the Tamil Nadu Electricity Board, will assist the workman with the permission of the enquiry officer. (f) The report of the enquiry officer, when the enquiry officer is different from the punishing authority, shall be furnished to the workman. (g) In awarding punishment, the punishing authority shall taken into account the gravity of the misconduct, the previous record of the workman and of any other extenuating or aggravating circumstances that may exist. (h) A copy of the final orders in a disciplinary case shall be supplied to the workman. (g) In awarding punishment, the punishing authority shall taken into account the gravity of the misconduct, the previous record of the workman and of any other extenuating or aggravating circumstances that may exist. (h) A copy of the final orders in a disciplinary case shall be supplied to the workman. If the order passed is appealable, it should be indicated in the order as to the authority to whom the appeal shall lie, and the time within which such an appeal shall be filed. The appellate authority may condone delays, if any, in preferring the appeal after satisfying himself that the reasons for the delay are genuine." 9. A reference to this procedure when compared to the facts of the present case shows that the third respondent, being the Original Authority, having passed the original punishment has substantially complied with the requirements as per the Standing Orders. 10. The Rules relating to the procedure to be followed by the Appellate Authority is explained in Tamil Nadu Electricity Board Employees Discipline and Appeal Regulations. Regulation No.15 contemplates that in cases of appeal arising from the penalty specified in Regulation 5, the Appellate Authority shall consider as to whether the facts have established the case against the delinquent, as to whether such facts established afford sufficient ground for taking action and as to whether the penalty is excessive or adequate or inadequate. A reading of the said Regulation makes it clear that even in cases where the Appellate Authority confirms the order of the Original Authority, there should be an application of mind and he must satisfy on these three factors which are to be elicited in the order. Regulation 15 is as under: "15. Consideration of appeals: (i) In the case of an appeal against an order imposing any penalty specified in Regulation 5, the appellate authority shall consider: (a) Whether the facts on which the order was based have been established. (b) Whether the facts established afford sufficient ground for taking action. (c) Whether the penalty is excessive, adequate or inadequate and pass order. (b) Whether the facts established afford sufficient ground for taking action. (c) Whether the penalty is excessive, adequate or inadequate and pass order. (i) confirming, enhancing, reducing or setting aside the penalty : or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; provided that:- (i) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in items (iii), (iv) (c), (v)(vi) and (vii) of Regulation 5 and an enquiry under sub-Regulation (b) of Regulation 8 has not already been held in the case, the appellate authority shall subject to the provisions of the sub-Regulation (c) of regulation 8 , itself hold such enquiry or direct that enquiry be held in accordance with the provisions of sub-Regulation (b) of Regulation 8 and thereafter, on a consideration of the proceedings of such enquiry and after giving the appellant a reasonable opportunity of making representation against the penalty proposed on the basis of the evidence adduced during such enquiry make such orders as it may deem fit. (ii) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties in items (iii), (iv)(c), (v), (vi) and (vii) of Regulation 5 and an enquiry under sub-Regulation (b) of Regulation 8 has already been held in the case, the appellate authority after giving the appellant reasonable opportunity of making representation against the penalty proposed on the basis of the evidence adduced during enquiry, make such orders as it may deem fit; and (iii) No order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of sub-regulation (b) of Regulation 8 of making representation against such enhanced penalty. (2) Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers, for reasons to be recorded in writing, that the error or defect was not material and has neither caused injustice to the person concerned nor affected the decision of the case." 11. A reference to the order of the Appellate Authority, viz., the second respondent dated 6. A reference to the order of the Appellate Authority, viz., the second respondent dated 6. 2004 makes it clear that after narrating the order of the Original Authority, the Appellate Authority has chosen to state as follows: "mjd;go. JpU/nf/mh;j;jehhp. fl;lha Xa;t[ bgw;w fk;gpahsh;/ 12. It is, therefore, clear that the Appellate Authority has not applied his mind in accordance with the Regulations. Law is well settled that when the Regulation prescribes a particular method for the Appellate Authority to dispose of the appeal, such method has to be necessarily followed. It cannot be contended that the Appellate Authority has gone through the records and then by making up his mind has passed the order. The contention of the learned counsel for the respondent that the Appellate Authority can pass a single line order and need not give reasons while confirming the order of the Original Authority cannot be countenanced in view of the express provisions provided for the disposal of the appeal as stated above. It is also relevant to point out that the first respondent has also passed final order in the revision in a single line. 13. In such view of the matter, the orders of respondents 1 and 2 are set aside and the matter is remitted back to the second respondent with a direction to the second respondent to take up the appeal and decide as per the Regulations governing the disposal of the appeal, as stated above. The second respondent shall decide the appeal expeditiously, in any event within a period of twelve weeks from the date of receipt of a copy of this order. This writ petition is disposed of with the above direction. No costs.