K.Muthukrishnan v. The Tamil Nadu Electricity Board

PRAYER IN W.P.No.8578 of 2006 : Petition filed under Article 226of the Constitution of India for the issuance of a writ ofCertiorarified Mandamus, calling for the records of the secondrespondent pertainent to the MemoNo.008/AAdo/ADM.I/A.1/F/Suspension/2006 dated 30.01.2006 andquash the same and also directing the respondents to permit thepetitioner to retire with all retirement benefits. For Petitioner in all W.Ps. : Mr. V.RagupathyFor Respondents in all W.Ps. : Mr. M.Vaithiyanathan T.N.E.B.COMMON ORDERIn all these writ petitions, the petitioner is one of thesame and therefore a common order is passed. 2. The writ petitioner in all these writ petitions joinedas a Workman under the second respondent Tamil Nadu ElectricityBoard on 10.07.1967 at Pudukottai. He was subsequently promotedas a Construction Foreman in 1970 and transferred to Senthurai.He was promoted in 1984 as Foreman Grade II and posted toAriyalur. The third respondent has transferred the petitioner inJune 1995 from Ariyalur to T.Palur which was subsequentlywithdrew on 19.06.1995. 3. According to the petitioner, the third respondent hasdeveloped inimical attitude towards the petitioner and in factwhen he was transferred, he filed a writ petitioner in W.P.16824of 1995 before this court by impleading the petitioner as thirdrespondent eventhough the petitioner has nothing to do with histransfer. It was at the instances of the third respondent, thecharge memo dated 30.09.1995 passed by the fourth respondent wasserved on the petitioner on 03.11.1995. It was based on thecharge memo the third respondent being the Executive Engineer hasissued a memo dated 08.04.1996 calling upon the petitioner toappear for the enquiry before the Enquiry Officer. It is thesaid charge memo as also the subsequent enquiry notice which areimpugned in these writ petitions. In W.P.No.7693 of 1996 thecharges framed against the petitioner which are challenged are asfollows: https://hcservices.ecourts.gov.in/hcservices/ 1) In respect of the articles supplied by the Tamil NaduElectricity Board for its work, he has received variousamounts on 01.02.1993, 06.03.1995, 07.03.1995 and 15.03.1995by stating that he has purchased the same from various shopswhich is a misconduct under standing order No.30-IV and 30-V. 2) He has demanded an amount of Rs.25,000/- fromThir.A.Kannan a contract employee of the Tamil Nadu HousingBoard, Valaja Town stating that the same has to be paid tothe officers of the Department thereby bringing disrepute tothe employees of the Tamil Nadu Electricity Board which is adelinquency punishable as per standing order No.30-XX andIII. 4. The impugned charge memo is challenged merely on theground that it was at the instance of the third respondent theorder has been passed which is evident from the fact that thethird respondent has issued a consequential enquiry notice andeven though the impugned charge memo was dated 30.09.1995, thesame was served on the petitioner only on 03.11.1995. Therefore,according to the petitioner, it is with mala fide intention theimpugned charge memo has been framed. 5. Even though the respondents have not filed the counteraffidavit in this writ petition Mr.M.Vaithiyanathan learnedcounsel for the Tamil Nadu Electricity Board has made hissubmission. 6. Mr.V.Ragupathy learned counsel appearing for thepetitioner would mainly contended that the impugned charge memodated 30.09.1995 relates to an alleged purchase which taken placeon 01.02.1993, 06.03.1995, 07.03.1995 and 15.03.1995, thereforeaccording to him in respect of an incident took place in 1993 acharge is framed in 1995 and therefore it should be taken as abelated one and at this point of time the petitioner cannot beexpected to give a proper reply and defend himself from thecharges. 7. That apart, in respect of the second charge the learnedcounsel would submit that the charge is framed inasmuch as it hasnot substantiated with any material and therefore according tothe petitioner the charge has to be set aside. https://hcservices.ecourts.gov.in/hcservices/

8. On the other hand the learned counsel for the respondentwould submit that there is absolutely no delay in respect of thecharge memo is framed in this case, since the charge framed in1995 also relates to the instance which took place in 1995. Asfar as the contention of the learned counsel for the petitionerthat in respect of the second charge the same is vague, thelearned counsel for the respondent would submit that thepetitioner without even giving explanation to the charges cannotraise the same issue. That apart according to him the necessarymaterials will be submitted at the time of enquiry. Whileadmitting this writ petition there was an order of stay grantedby this court which continue. 9. In respect of W.P.No.9266 of 1998 the petitionerchallenges the order of the suspension passed against thepetitioner by the Superintending Engineer the first respondentdated 12.05.1998 against the petitioner while he was working as aForeman Grade I in Trichirapalli and the subsequent charge memodated 4/10 6/1998 framed by the first respondent. The impugnedcharge memo which contains the charges against the petitioner asfollows: "That the said K.Muthukrishnan, Foreman IGrade/O&M/Thelur has obtained a loan of Rs.50,000/- forconstruction of house situated at Plot in S.F.No.279/5B,Rajaji Nagar, Sendurai Road, Ariyalur Town Panchayat,Ariyalur from the Board with Plinth area of 72.29sq.m.only that too for ground floor alone. But he hasconstructed the house with ground and first floortotalling 119.47 sq.m. at a total cost of Rs.1,15,000/-.The difference amount of Rs.65,000/- is illegally earnedby him. Thus he has violated the provisions of Section13(1)(e) of the prevention of corruption Act, 1988, andalso a mis-conduct under Standing order 30(IV) applicablefor non-clerical workmen."10. The petitioner has submitted his explanation even in1992 before the charge framed. According to the petitioner, hegot sanction from the concerned Planning Authorities for puttingup the construction first and second floor and in fact anapplication for additional accommodation has been accepted by theboard, the petitioner also challenges the impugned suspensionorder on the ground that as per the clause 31(2)(a) of thestanding order, within one week of the date of suspension, astatement has been served on the petitioner giving reason forsuch suspension and such statement has to be served on him onlyafter one month from the date of suspension. The petitionerchallenges the impugned orders of the charge memo as well as https://hcservices.ecourts.gov.in/hcservices/ suspension also on the ground that without even consideration asto whether the petitioner caused any loss or damages to theboard’s property, the petitioner has been imposed with themisconduct. According to the petitioner, inasmuch as the actualmisconduct has not been property explained, the allegedunexplained source of income does not cover under the provisionsof the Prevention of Corruption Act. 11. It is also the further case of the petitioner that whenthe loan itself was sanctioned to the petitioner in the year 1990and an inspection was effected admittedly as seen in the impugnedcharge memo itself on 11.09.1997, in respect of the loan obtainedin the year 1990, the charges was framed in 1998 belatedly after8 years. Therefore, on the basis of the vagueness of charge asalso based on the ground of delay in framing charge, apart fromstating that there is absolutely no materials to show that thepetitioner has committed mis-conduct as per the standing orderand it can never be treated as one under the Prevention ofCorruption Act, the impugned order is challenged by thepetitioner. 12. The respondents have filed a counter affidavit. Whiledenying the allegations that the suspension order as also theimpugned charge memo were framed based on the mala-fideintention, the respondent would state that it was based on thematerials available in respect of obtaining of loan whileadmittedly the petitioner availing a loan of Rs.50,000/- he hasput up construction to the value much more than that andtherefore it was the duty of the petitioner being the employee ofthe respondent corporation to explain the source of such incomewhich he has failed. According to the respondents the impugnedcharge memo is given in accordance with the standing order and itis in the disciplinary proceeding the correctness of the chargewill be proved. 13. In respect of this case Mr.V.Raghupathi learned counselfor the petitioner would submit that when a loan was obtained inthe year 1990 and the amount was sanctioned after inspectionadmittedly in 1997, the charge memo has no basis whatsoever.Therefore, according to him the charge memo as well as thesuspension order has to be set aside on the ground of latches andalso one of prolonged suspension. Learned counsel also wouldsubmit that the charge itself is issued based on surmises. 14. On the other hand Mr.Vaithiyanathan learned counselappearing for the respondents would submit that there isabsolutely no delay, In fact the lapses on the part of thepetitioner were found out only in the inspection conducted in the https://hcservices.ecourts.gov.in/hcservices/ year 1997 wherein the valuation was arrived at and it wasimmediately thereafter in June 1998 the impugned charge memo hasbeen issued and it is for the petitioner to submit hisexplanation and prove his innocents during the time ofdepartmental enquiry and therefore according to the learnedcounsel for the respondent it is not correct to state that thecharges are hit by the principle of latches. 15. In respect of W.P.No.23293 of 2001 the petitionerchallenges the proceedings of the second respondent dated October2001 / 03.11.2001 calling the petitioner to appear for an oralenquiry on 17.11.2001. A reference to the said impugned ordershows that it is in respect of the charges framed against thepetitioner dated 02.07.1996 the enquiry is sought to be proceededwith. The charges are -(1)When the petitioner was allotted a house belonging to theTheloor Electricity Sub-station he has not stayed in thesaid quarters and therefore it is against the StandingOrder 30(1). (2)While working as Foreman on 02.02.1996 at Ariyaloor, hehas used office telephone for his personal use for thevalue of Rs.126/- which amount has been subsequentlyremitted on 26.06.1996 and that is against the StandingOrder 30(IV).(3)He has received a sum of Rs.5,000/- as a bribe from oneMurugaiyan, S/o Kaliyaperumalon 21.09.1995 at 8.30 a.m.for providing Electricity Service Connection forAgricultural purpose under the preferential category. (4)Between 1995 - 1996 he has not properly maintained thetransformer. According to the petitioner he has attendedthe enquiry on 17.11.2001 and informed that he was notall served with the charges and was not aware of thecharges and therefore he cannot defend himself andtherefore the matter was posted to 28.11.2001, and thepetitioner was permitted to read the charges which he hascopied down even though the charges were not served onhim. 16. The respondents have filed the counter affidavit.Accordingly, the first respondent would state that when thecharge memo was attempted to be served on the petitioner, he hasbeen evading the same and therefore it is not correct to statethat the charges were not informed to him. As far as the delayin completing the charge memo is concerned, according to thefirst respondent since the writ petition was pending in thisCourt and there has been an order of stay of suspension passed https://hcservices.ecourts.gov.in/hcservices/ against the petitioner, the disciplinary proceedings could not beconcluded. 17. Mr.Raghupathy, learned counsel appearing for thepetitioner, as far as this case is concerned would submit thateven though the charge is stated to be dated 02.07.1996, thepetitioner came to know about the charge only after the impugnednotice dated 03.11.2001 was issued to him and therefore it is acase of extraordinary delay on the part of the respondents invitiating the disciplinary proceedings and not even servingcharge memo even as on today, and hence the impugned notice isliable to be set aside. According to the learned counsel, whatis extracted as a charge in the typed set of papers is not servedon the petitioner but it was only read by the respondents andcopied by the petitioners. 18. On the other hand, Mr.Vaithiyanathan, learned counselappearing for the respondents Electricity Board would submit thatit was due to the pendancy of writ proceedings filed by thepetitioner against the order dated 13.06.1996 under which thepetitioner was placed under suspension and there was an order ofstay by this Court, the further proceedings could not beproceeded with and therefore the delay is not on the part of theElectricity Board. Therefore, he would contend that thepetitioner has to face the enquiry by submitting his explanation.19. In respect of W.P.No.8578 of 2006 the petitionerchallenges the order of suspension passed against the petitionerby the second respondent dated 30.01.2006, on the basis thatenquiry into the grave charges against the petitioner thenForeman Grade I Theloor now Thotiyam is pending. According tothe petitioner the said suspension is passed in respect of thecharges dated 30.09.1995 against which the W.P.No.7693 of 1996 asstated above was filed and this Court has granted stay. Theanother reference in the impugned order is the charge memo dated01.08.1997, about which the petitioner would submit that no suchproceedings has been initiated so far and in any event it isafter 9 years no charge itself has been framed and thereforeaccording to the petitioner, the pendancy of those two referredcharges in the impugned suspension order cannot be the ground forsuspending the petitioner at the verge of his retirement. 20. In this case the respondent has not filed any counteraffidavit. 21. Mr.V.Raghupathy learned counsel appearing for thepetitioner would submit that the suspension order is intendedonly to prevent the petitioner from retiring peacefully. Thesuspension order is based on two referred charges under thesuspension and in respect of one charge dated 30.09.1995 this https://hcservices.ecourts.gov.in/hcservices/ court in W.P.No.7693 of 1996 has already stayed furtherproceedings and as far as the another charge stated to be on01.08.1997 no charge has been so far framed and in any event dueto the passage of time the respondent cannot be permitted toframe any charge especially in the circumstance that thepetitioner is in the verge on retirement.22. On the other hand, Mr.Vaithiyanathan, learned counselappearing for the respondent would submit that it is only thecase of the pendency of the writ petition and order of stay, thefurther proceedings could not be proceeded and therefore thedelay cannot be attributed to the department. Considering thecircumstance that the charges are grave in nature, it is alwaysopen to the petitioner to submit his explanation and defendhimself. 23. I have heard the learned counsel for the petitioner asalso the learned Government Advocate and considered the facts andcircumstances of all the cases. 24. In all the above said cases Mr.V.Raghupathy learnedcounsel appearing for the petitioner would mainly rely upon thepoint of delay in proceedings with the disciplinary proceedings.To substantiate his contention that the delay will vitiate thedepartmental proceeds, he would rely upon various judgments ofthe Honble Apex Court and also this Court including the judgmentof Apex Court rendered in P.V.Mahadevan Vs. M.D. Tamil NaduHousing Board reported in 2005(6) SCC 636. That was the casewherein there was enormous delay of 10 years in initiatingdepartmental enquiry without giving sufficient explanation forthe delay and it was in those circumstances holding that theappellant has already suffered enough, on account of the pendancyof the disciplinary proceedings, the Honble Apex Court hasquashed the charge memo. 25. In yet another judgment relied upon by the learnedcounsel for the petitioner rendered in Union of India rep. by itsCommissioner of Income Tax, Tamil Nadu-I, Chennai and another Vs.The Central Administrative Tribunal, Chennai Branch, representedby its Registrar, High Court Building, Chennai and anotherreported in 2005(1) MLJ 634. A Division Bench of this Court hasheld that in respect of the delay in disciplinary proceedings thecourt has taking into consideration all the relevant factors andfind out as to whether the delay is explained. The operativeportion of the Judgment which runs as follows: https://hcservices.ecourts.gov.in/hcservices/ "The Court has to take into consideration all the,relevant factors and balance and weigh them todetermine if it is in the interest of clean and honestadministration that the disciplinary proceedings shouldbe allowed to terminate after delay, particularly whenthe delay is abnormal and there is no explanation forthe delay."26. In yet another Judgment a Division Bench of this Courtin Parameswaran Vs. State of Tamil Nadu, rep. by its Secretary toGovernment, Rural Development Department, Fort St.George, Chennai9 and others reported in 2006(1) CTC 476While dealing with thecircumstances wherein series of charge memo were issued andexplanation submitted and in spite of that no further proceedingswere initiated held that the prolonged disciplinary action willonly cause mental agony to the employee. Following the dictumlaid down by the Honble Apex Court rendered in P.V.MahadevanVs.Managing Director Tamil Nadu Housing Board, I had an occasionto deal with a similar circumstance in M.Elangovan Vs. TrichyCentral Cooperative Bank Ltd., Trichirapalli and another reportedin 2006(3) MLJ 621 by quashing the disciplinary proceedingsholding that when the delay is unexplained, the mental agony andsufferings of the employee due to protracted disciplinaryproceedings would be much more than the punishment itself.Therefore, there is absolutely no dispute regarding the legalposition that in cases were there are inordinate and unexplaineddelay in completion of departmental proceedings against anemployee that will certainly prejudice his interest and the courtwill interfere and quash the said proceedings. While applyingthe said legal position on the facts and circumstances of thecase the charge memo dated 30.09.1995 which is impugned inW.P.No.7693 of 1996 relating to the alleged conduct of thepetitioner in February 1995 and March 1995 cannot be said to bean undue delay. The further delay from 1995 till date isexplainable due to the reason that admittedly this Court hasgranted stay for further proceedings and therefore the delay from1996 till date cannot be attributable to the respondent /Electricity Board. 27. Moreover, the charges impugned in the said writpetition relates to the wrong claim made by the petitioner fromthe board and also demand of an amount by the petitioner andtherefore certainly are serious and grave in nature and there isabsolutely no ground for this Court to interfere with the chargememo to quash the same. It is always open to the petitioner tosubmit his explanation and prove his innocents. https://hcservices.ecourts.gov.in/hcservices/

28. Considering the facts that the petitioner has attainedthe age of superannuation, while dismissing the writ petition inW.P.No.7693 of 1996, the petitioner is permitted to submit hisexplanation to the respondent in respect of the charges within aperiod of two weeks from the date of receipt of a copy the orderand thereafter the fourth respondent who has issued the chargememo shall complete the enquiry after giving opportunity to thepetitioner and pass appropriate orders within a period of eightweeks. With the direction the W.P.No.7693 of 1996 is dismissed. 29. As far as the impugned charge memo challenged inW.P.No.9266 of 1998 dated 4/10.06.1998 a reference to the chargeshows that in respect of the construction of the house he hasobtained a loan Rs.50,000/- which was admittedly in the year 1987and on inspection it was found that the construction value wasRs.1,15,000/-. Therefore there is a difference of Rs.65,000/-.It is seen by the letter of the petitioner dated 05.03.1992 inwhich the petitioner has stated that he has raised Rs.45,000/- byvirtue of cutting and sale of many of the trees standing in theland worth nearly Rs.45,000/- that was the letter given by thepetitioner much before the impugned charge memo which was in theyear 1998 and even after giving such letter in the year 1992, sixyears afterwards the charge memo is issued. It is not even thecase of the respondents that any steps taken to enquire thesource. Further, while admitting the said writ petition thiscourt has granted stay which is continuing as on date andtherefore in respect of an event which has taken place in theyear 1987 for which the petitioner himself has written as earlyas in the year 1992 explaining about the other source of income.30. I am of the considered view, that apart from the factthat no useful purpose will be served to proceed with theimpugned charge memo against the petitioner at the fag end of hiscarrier, the charge has to be certainly hit by a substantiallydelay. In view of the same I have no hesitation to come to theconclusion that the impugned charge memo which is challenging inW.P.No.9266 of 1998 deserves to be set aside and accordingly thesame stands quashed and W.P.No.9266 of 1998 stands allowed. 31. Similarly in W.P.No.23293 of 2001 in which the impugnedcharge memo is of the year 2001 in respect of an alleged conductof the petitioner in 1996. A reference to the charges show thatthey relate to the petitioner not staying in the electricityquarters allotted to him, in using telephone for his personal useto the expense of Rs.126/-, charge of receiving Rs.5000/- as https://hcservices.ecourts.gov.in/hcservices/ bribe for electricity connection for agricultural purpose and notmaintaining the transformer. It is also relevant to point outthat as far as this case is concerned what is challenged is theenquiry notice directing the petitioner to appear for an enquiryon 22.11.2001 on which date the petitioner is stated to haveappeared and complaint to the respondent that the charge memo hasnot been served on him and in fact he has noted out the chargeson the said date which are as stated above. 32. In view of the fact that admittedly the charge memo hasnot been served on the petitioner and the petitioner had to takenotes on 22.11.2001, when he appeared before the respondentsbased on the impugned notice of enquiry and due to the reasonthat it relates to the period 1996, the delay of six years hasnot been properly explained by the respondents and therefore theimpugned notice dated 03.11.2001 calling for enquiry is setaside. Accordingly, W.P.No.23293 of 2001 stands allowed. 33. As far as the W.P.No.8578 of 2006 is concerned it isonly an order of suspension dated 30.01.2006. However, in theimpugned order of suspension there are two references on thebasis of which suspension came to be passed namely charge memodated 30.09.1995 which is the subject matter of W.P.No.7693 of1996 which I have dismissed herein and another charge memo dated01.08.1997 which according to the petitioner has not been servedand no further proceedings is initiated. 34. In view of the fact, that I have directed thepetitioner to submit his explanation regarding the charge dated30.09.1995 which is impugned in W.P.No.7693 of 1996 directing therespondents to pass appropriate orders and for the reason that inrespect of the second referred charge in the impugned suspensionorder no proceedings were initiated, it is open to the petitionerto make an application to the second respondent to review theorder of suspension in which case the second respondent shallconsider the same and pass appropriate orders within a period offour weeks from the date of receipt of the such application.Accordingly, W.P.No.8578 of 2006 stands dismissed with the abovedirection. For all the above said reasons and in the result:1.W.P.No.7693 of 1996 stands dismissed with a direction tothe petitioner to submit his explanation to the impugnedcharge memo dated 30.09.1995 to the fourth respondentwithin a period of two weeks from the date of receipt ofa copy of the order and a further direction to thefourth respondent that on the petitioner submitting suchexplanation the fourth respondent shall complete theenquiry after giving sufficient opportunity to thepetitioner and pass appropriate final orders within aperiod of four weeks there after. https://hcservices.ecourts.gov.in/hcservices/

2.W.P.No.9266 of 1998 stands allowed and the impugnedcharge memo dated 4/10.06.1998 stands quashed. 3.W.P.No.23293 of 2001 stands allowed and the impugnedenquiry notice dated 10th 2001/3.11.2001 stands quashed. 4.W.P.No.8578 of 2006 dismissed with a direction to thepetitioner to file an application before the secondrespondent for review of the impugned order ofsuspension and on the petitioner filing such review thesecond respondent shall consider the same and passappropriate orders within a period of four weeksthereafter. No Costs. Consequently, connected W.P.M.Ps. are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary Tamil Nadu Electricity Board,2.The Superintending Engineer,Tamil Nadu Electricity Board,Mannarpuram, Trichy 20. 3.The Asst. Executive Engineer,Tamil Nadu Electricity Board,Ariyalur Division (O&M),Trichy. 4.The Additional Chief Engineer,T.E.D.C./NorthTamil Nadu Electricity Board,Trichirapalli 20.5. The Executive Engineer,O & M Tamil Nadu Electricity Board,Lalgudi, Trichi District.6. The Assistant Executive Engineer,Operation and Maintenance, Tamil naduThottiyam - 621 205. https://hcservices.ecourts.gov.in/hcservices/ + 3 ccs to Mr. V. Raghupathy, Advoate sr no. 44853 to 44855+ one cc to Mrs. G. Devi, Advocate sr no. 44852+ one cc to Mr. M. Vaidyanathan, Advocate sr no. 45340NA(CO)NM(31.10.2006)Pre-delivery order inW.P.No.7693/1996,W.P.No.9266/1998,W.P.No.23293/2001& W.P.No.8578/2006