J.Bernard Jacob Ross v. The Chairman

For petitioner:: Mr.S.J.Jagadev For respondents: Mr.V.Radhakrishnan Petitions filed under Article 226 of The Constitution of India praying for the issue of a writ of certiorari/mandamus as stated therein. :O R D E R In W.P.No:17415 of 1997, the petitioner has prayed for the issue of a writ of certiorari calling for the records relating to the order passed by the 1st respondent in B.P.(ch)No.379 dated 24.1.1996 confirming the order passed by the second respondent in Memo No.649(1)/ CE/E&GT/PA/A2/91-96, dated 8.2.1996 and quash the same.

2. In W.P.No.17416 of 1997, the very same petitioner has prayed for the issue of a writ of mandamus directing the respondents to promote the petitioner to the cadre of Executive Engineer, (Electricity) retaining his original seniority between Mr.K.C.Loganathan and T. Sathya Murthy.

3. The writ petitions are pending at the stage of notice of motion and the same were taken up with the consent of either side. Heard Mr. S.J.Jagadev, learned counsel appearing for the writ petitioner and Mr.V.Radhakrishnan, learned counsel appearing for the respondents.

4. While the writ petitioner was working as Assistant Executive Engineer, applied on 5.10.1991 for extraordinary leave without pay and allowances for a period of three years from 16.7.1991 to 15.11.1994 to take up employment in a foreign country. The application was forwarded to the Chief Engineer.

5. In respect of the misconduct charges were framed and proceeded. As against the petitioner a punishment was imposed by the Chief Engineer on 21.11.1991 imposing punishment of stoppage of increment for a period of one year without cumulative effect for unauthorised absence between 6.12.1988 and 4.4.1989.

6. Once again the petitioner left India on 21.12.1991 without obtaining No Objection Certificate and approval and sanction of leave. On 17.4.1995, the petitioner was called upon to submit his explanation which he submitted on 10.5.1995. As the explanation was not satisfactory the Chief Engineer famed three charges against the petitioner and called upon him to submit his explanation. As the Explanation was not satisfactory an Enquiry Officer was appointed who submitted his report finding the petitioner guilty of the three charges framed against him.

7. The Disciplinary proceedings were initiated for a major penalty as seen from the charge memo as well as the appointment of the enquiry Officer who submitted his report. However, without communicating the enquiry officer's report the disciplinary authority while accepting the report of the enquiry officer imposed the punishment of stoppage of increment for a period of three years but without cumulative effect. Thereafter the petitioner preferred an appeal which was rejected by the appellate authority namely the Chairman, Electricity Board. The petitioner's memorial also came to be rejected. Hence the writ petition.

8. Though Mr.Jagadev, learned counsel appearing for the petitioner persuaded this court to examine the merits of the charges and also attempted to argue that the proceedings before the enquiry officer is irregular, illegal, baseless and groundless, this court is not persuaded to examine the same as the same are not liable to be interfered in exercise of powers of judicial review.

9. Though the counsel for the petitioner has not raised a substantial question of law which arises on the admitted facts, however, arguments were advanced. The contention being failure to communicate the findings of the enquiry officer and calling upon the petitioner to state his objections with respect to findings reported against him. The petitioner contended that there is violation of principles of natural justice as the disciplinary authority has relied upon the enquiry officer's report and found the petitioner guilty of all the three charges and imposed punishment of stoppage of increment. Mr. Jagadev, learned counsel contended that there is violation of the dictum laid down by the Supreme Court in Ramzan Kahn's case as well as B.Karunakar's case. There is force in this contention.

10. Per contra, Mr.V.Radhakrishnan, learned counsel appearing for the respondents contended that the petitioner has not raised such a contention either before the appellate authority or in this writ petition and therefore he shall not be permitted to advance a new contention at this stage. Mr.V.Radhakrishnan, also contended that no prejudice has been pleaded and therefore the petitioner cannot advance such a contention for the first time at this stage. This court is unable to persuade itself to sustain the objection raised by Mr.V. Radhakrishnan , learned counsel appearing for the respondents in this respect.

11. A perusal of the impugned order as well as the appellate authority would show that much reliance has been placed upon enquiry officer's report tohold the petitioner guilty of charges. If the enquiry officer's report is eschewed there is no other material to implicate the petitioner. The petitioner has been deprived of the enquiry officer's report and he should have been called upon to submit his objection to the enquiry officer's report and thereafter the disciplinary authority should have imposed further to the penalty. The learned counsel for the petitioner as well as the respondents took the court through the copy of the proceedings as well as the rules.

12. Mr.Jagadev, learned counsel contended that when the petitioner has applied for leave and has been pressing the respondent to grant leave, they should have either granted the leave or should he rejected the same. Instead they kept pending and it is pending even till date. It is also contended by Mr.Jagadev that the respondents have failed to discharge their obligation as leave Sanctioning Authority. either by rejecting the leave application or by sanctioning the leave applied for and it is not open to them to initiate proceedings.

13. The learned counsel also relied upon the Boar's proceedings which enables the petitioner to go abroad as per the policy decision taken by the Electricity Board. This court is not inclined to go into those matters as concedingly without prior permission and approval of the competent authority and without sanction of the leave, the petitioner for the second time went abroad on foreign assignment of his choice. On the earlier occasion also for the same misconduct the petitioner was imposed with the penalty of stoppage of increment of one year and the petitioner had proceeded for the second time as well without complying with the requirements and without prior permission or sanction.

14. The charges are not vague as sufficient particulars have been set out in the charge memorandum. That apart, the petitioner did not have any grievance and he did not also raise any objection in this respect. The petitioner has not complained that the disciplinary authority has failed to furnish the details or particulars nor he has requested the disciplinary authority to furnish or produce details or evidence. On the very Explanation submitted by the petitioner it cannot be contended that he is not guilty of imputations which is the basis of all the three charges.

15. Admittedly, the charges were framed under Regulation 8(b) of the Tamil Nadu Electricity Board Employees (Discipline and Appeal) Regulations. The petitioner submitted his objections and requested for oral enquiry and personal hearing. The disciplinary authority appointed an enquiry officer, who conducted the enquiry and submitted his findings reporting that the petitioner is guilty of the three charges. Admittedly the enquiry report has not been communicated to the petitioner, nor an opportunity was afforded to the petitioner in this respect. But it was communicated along with the penalty proceedings. No opportunity at all has been afforded to the petitioner to state his objections with respect to the findings re ported by the enquiry officer and it was communicated along with the penalty proceedings.

16. It is pointed out that the disciplinary authority concurred with the enquiry officer's findings and imposed the penalty of stoppage of increment for three years. Such a penalty has not only resulted in stoppage of increment but also prejudiced the petitioner from getting promotion to the higher cadre, while juniors have been promoted. Admittedly though charges were framed the petitioner was required to state his explanation, enquiry was conducted, enquiry report was submitted, but without affording an opportunity to state objections with respect to findings reported by the Enquiry Officer and without affording a personal hearing, which is the substantial part of the sub clause/regulation (b) of Regulation 8, the penalty of stoppage of increment has been imposed in the present case.

17. Regulation 8(b)(iii) prescribes that before making an order imposing such penalty, the disciplinary authority has to furnish the delinquent official, a copy of the report of the enquiry or personal hearing or both as the case may be and call upon the delinquent to submit his further representation if any and thereafter consider the representation as well as evidence adduced during enquiry to impose punishment. In the present case admittedly the enquiry report has not been communicated to the writ petitioner before imposition of penalty, nor the petitioner has been afforded an opportunity to state his objection, nor the petitioner has been heard. Thus Regulation 8( b)(iii) has been violated in the imposition of impugned penalty.

18. The learned counsel for the petitioner contended that there is violation of principles of natural justice. In this case, as well as violation of the very Regulation 8(a) and (b) which provides for communication of the copy of the enquiry report and for affording an opportunity to state objection as to the findings as well as a hearing. Apart from that it is the settled law that enquiry report should be communicated, objection should be called for with respect to findings reported and thereafter impose such penalty as the disciplinary authority may decide to impose.

19. Mr.Jagadev, learned counsel contended that the procedure adopted in this case is violative of principles of natural justice as well as the Rule 8(b) (iii) and on this short ground also the impugned proceedings are liable to be quashed. Per contra, Mr.V.Radhakrishnan, learned counsel appearing for the respondents contended that the punishment imposed being minor, no opportunity need be given. This contention advanced by Mr.V.Radhakrishnan cannot be sustained in the light of the proviso to Regulation 8(a) as well as 8(b)(iii). The above provisions which are mandatory have been violated by the respondents and this is fatal to the impugned proceedings.