P.J. Vincent v. The Tamil Nadu Electricity Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9..6..2008CORAMTHE HONOURABLE MR. JUSTICE K. CHANDRUW.P. Nos. 7756 and 7757 of 1997 and 16930 of 1998P.J. Vincent.. Petitioner in all WPs.Vs.1.The Tamil Nadu Electricity BoardRep. by its Secretary800 Anna Salai, Chennai..R1 in WP 7756, 7757/97 and WP.No.16930/98.2.The Chairman Tamil Nadu Electricity Board800 Anna SalaiChennai .. RR2 in W.P. Nos. 7756 & 7757/19973.The Chief Engineer Materials ManagementTamil Nadu Electricity Board800 Anna SalaiChennai.. R2 in W.P. No. 16930 /1998W.P. No. 7756 of 1997 filed for issuance of writ of CertiorarifiedMandamus calling for the records relating to the order of the firstrespondent Board passed in Proceedings permanent B.P. (FB) No. 7 dated12.3.1997 and quash the same in so far as denying backwages andreserving right to proceed with the enquiry by an officer superior inrank to the petitioner and direct the respondents to pass orders togrant all attendant benefits like backwages, seniority for the periodfrom 28.12.1982 till date with interest.W.P. No. 7757 of 1997 filed for issuance of writ of Certioraricalling for the records relating to the proceedings in Memo No.081631/DP.2/A1/95-2 dated 12.3.1997 and quash the same.W.P. No. 16930 of 1998 filed for issuance of writ of CertiorarifiedMandamus calling for the records relating to the proceedings of thefirst respondent dated 15.9.98 made in Proceedings permanent B.P. (FB)No. 24 Administrative Branch, quash the same and direct the respondentsto reinstate the petitioner with all attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners in all WPs.: Mr. S. ElamuruganFor TNEB : Mr. M. VaidyanathanCOMMON ORDERHeard the arguments of Mr. S. Elamurugan, learned counsel for thepetitioner and Mr.M.Vaidyanathan, learned Standing Counsel for the TamilNadu Electricity Board [for short, 'TNEB'] and perused the records.2.The petitioner joined the service of the respondent Tamil NaduElectricity Board in the year 1964. When he was working as an AssistantDivisional Engineer during 1982, he was given a charge-memo dated30.6.1982 stating that he had gone abroad (Algeria) and taken upemployment and also that he had disobeyed the order of his superior bynot appearing before the Medical Board and also not reported for duty.He was dismissed from service by an order dated 20.01.1984. The saidorder was challenged in a writ petition before this Court being W.P. No.8152 of 1984. The said writ petition was allowed vide order dated08.3.1993 and the order of dismissal was set aside on the ground thatcopy of the enquiry report was not supplied to him. The respondentspreferred a writ appeal being W.A. No. 707 of 1993 and the same waspartly allowed by the Division Bench vide judgment dated 26.8.1993 andthe operative portion of the said judgment reads as follows:-Para 3:".... The order of the learned single Judge is modified,and liberty is reserved to the Electricity Board to hold ade novo enquiry against the writ petitioner in accordancewith law. The consequential directions issued by thelearned single Judge shall be governed by the serviceRules relating thereto with which the service of thepetitioner is governed and not as per the directionsissued by the learned single Judge."3.Thereafter, he was placed under suspension and a fresh memodated 05.02.1994 was given to him. An enquiry was conducted byappointing the Superintending Engineer as Enquiry Officer. While theEnquiry Officer, by his report dated 31.12.1994, found the first chargerelating to getting an employment abroad not proved, found the secondcharge that he went to abroad without getting permission, proved. Withreference to charge No. 3 that he had not appeared before the MedicalBoard and not paying the fee for the Medical Board and getting the leavesanctioned was also proved. The petitioner submitted an explanation on03.3.1995. The said disciplinary proceedings was considered by theChairman of the Board and it was decided to accept the report of theEnquiry Officer and he was also removed from service by B.P. No. 190dated 03.6.1995. Thereafter, the petitioner filed an appeal before theBoard. The Board, by proceedings dated 12.3.1997 in B.P. No. 7 heldthat since it was the competent authority to pass final orders, theorder passed by the Chairman was held to be bad in law and the matter https://hcservices.ecourts.gov.in/hcservices/ was placed before the Full Board. Therefore, the disciplinaryproceedings were set aside by the Board without prejudice to conductingan enquiry by an officer superior to the rank of the petitioner.Accordingly, a further order dated 12.3.1997 was passed reinstating thepetitioner without benefits of backwages and without prejudice to thedisciplinary action pending against him. By B.P. No. 13 dated30.4.1997, the Chief Engineer, Materials Management, was directed toconduct an enquiry and he had framed charges dated 28.5.1997 against thepetitioner. 4.In the meanwhile, the petitioner filed two writ petitionsbeing W.P. Nos. 7756 and 7757 of 1997 seeking to quash the order of theBoard in ordering fresh enquiry. This Court, while admitting the writpetitions, granted an interim stay on 03.6.1997. Subsequently, therespondent Board filed applications to vacate the stay order and thisCourt, by order dated 13.10.1997, vacated the stay. 5.In the light of the above, the respondents conducted anenquiry against the petitioner and the Enquiry Officer found him guiltyof all the five charges proved. The petitioner sent his explanationand the respondent Board, by an order dated 15.9.1998 in B.P. No. 24,agreed with the findings and dismissed the petitioner from service.It is against this order, W.P. No. 16930 of 1998 has been filed. 6.In view of the inter-connectivity between these three writpetitions, they were heard together and a common order is being passed.7.So far as W.P. Nos. 7756 and 7757 of 1997 are concerned, theyhave become infructuous in the light of the subsequent developments.The petitioner cannot challenge the charge-memo issued by the delegateof the TNEB pursuant to the order passed by the Division Bench in W.A.No. 707 of 1993. Even the payment of wages for the interregnum perioddepends upon the outcome of the disciplinary action taken against thepetitioner. Therefore, these two writ petitions will stand dismissed.8.Mr. S. Elamurugan, learned counsel for the petitioner,submitted that the finding of the Enquiry Officer (second respondent)was not based upon any material. With reference to charge Nos. 1 and2, he submitted that there is no material before the Enquiry Officer tohold the petitioner guilty. The Enquiry Officer came to the conclusionthat these two charges were held to be proved only on the ground of non-production of Passport by the petitioner. The petitioner had genuinelypleaded that he had lost the Passport and it is for the respondent TNEBto produce materials to prove the charges. Mere non-production of thePassport by the petitioner will not ipso facto prove that he had gone toAlgeria and was gainfully employed from 01.01.1982 to 31.12.1982. Thethird charge with reference to not appearing before the Medical Boardwas because there was a confusion as to who should pay the charges forthe Medical Board and, therefore, it would not amount to disobedience of https://hcservices.ecourts.gov.in/hcservices/ a lawful order. Charge Nos. 4 and 5 relate to absence from duty andinitially, the petitioner had applied Un-Earned Leave on Private Affairsstarting from 27.01.1983 to 15.5.1983. It was unjustified on the partof the respondents to have refused the leave. He also submitted thatthe enquiry proceedings continued beyond 15 years and for the entireperiod, the petitioner was put to great sufferings.9.Per contra, Mr. M. Vaidyanathan, learned counsel for therespondent Board submitted that it was the fact that the petitioner hadgone to Algeria and had remained absent for a long time therebyjustifying the suspicion that he might have taken up an employmentabroad. He also submitted that the petitioner had deliberately notproduced the passport and pleaded falsely that the Passport was lost.In any event, remaining absent for a long period and also not appearingbefore the Medical Board have been clearly proved and, therefore, thepetitioner does not deserve any sympathy.10.The first two charges were not clearly proved by any legalevidence let in by the respondent Electricity Board. When the Boardhad framed clear charge that the petitioner had gone abroad and took upgainful employment, it is for the Board to prove the said charge byletting in legal evidence. With reference to the third charge that hehad not appeared before the Medical Board, it is admitted by both sidesthat there was a confusion regarding the fee to be paid to the MedicalBoard and hence, there was a delay. Therefore, it cannot be held tobe a serious charge. With reference to non-grant of Un-Earned Leaveon Private Affairs, it can be said that the petitioner cannot have anylegal right to avail leave and seek for a post facto sanction.Therefore, charge Nos. 4 and 5 are clearly proved.11.Hence, the only question remains is whether the petitioner canbe visited with the punishment of dismissal for a charge of this nature.It is seen from the records that the petitioner had joined service inthe year 1964 and all his troubles started in the year 1982 when he wentabroad claiming to make some family settlement. Thereafter, tworounds of litigations had taken place and this Court had set aside theearlier dismissal though on a technical ground. When the chargeswere finally framed by a power of delegation granted by the Board in theyear 1994 by the Chairman, already 12 years had lapsed since the date ofthe alleged misconduct. Further, this Court had found that the twocrucial charges, viz., going abroad and gainfully employed, have notbeen proved in the enquiry in the manner known to law and for the non-appearance before the Medical Board, there was a serious confusion aboutthe payment of fee. 12.Under the TNEB Service Regulations, major penalties have beenprescribed which includes removal from service, compulsory retirementand dismissal from service. In the present case, the competentauthority had not indicated as to why he had preferred removal from https://hcservices.ecourts.gov.in/hcservices/ service and not any other major penalty found in the TNEB ServiceRegulations.13.The Supreme Court, in more than one judgment, has held that ifthe punishment of dismissal is disproportionate, then this Court, inexceptional circumstances, can interfere with the quantum of punishmentwhile exercising power under Article 226 of the Constitution. TheSupreme Court in V.R. Katarki v. State of Karnataka [1991 Supp (1) SCC267] dealt with the case of a judicial officer and in paragraph 6observed as follows:Para 6:"The question for consideration now, therefore, is while thefinding that the appellant was guilty in terms of the charges foundshould the appellant have been dismissed from service. Ordinarily,justification of the quantum of punishment imposed in a disciplinaryaction is not for the court to decide and there have been occasions whenthis Court has taken interference by the High Courts on quantum ofpunishment as an act in excess of jurisdiction. While we are cognizantof that fact, keeping the residue of the charges in view, we areinclined to hold that dismissal of the appellant from service was out ofproportion and compulsory retirement would meet the ends of justice. Weaccordingly direct that in place of dismissal, the appellant shall betaken to have been compulsorily retired from service from the date whendismissal became operative."14.The Supreme Court in Chandra Vilash Rai v. State of Bihar,[(2003) 11 SCC 741] in paragraph 3 observed as follows:Para 3:"Having examined the nature of charges alleged and provedagainst the two delinquents, we cannot but observe thatthe charges are serious, more particularly, since theyrelate to affairs of a cooperative bank. But at the sametime, it cannot be disputed that these delinquents haverendered services in the Society for more than 20 years.It also transpires that the so-called delinquency had notbeen committed on their own but at the behest of the Boardof Directors, though in law such action would notexonerate the delinquents from the liabilities which theywould incur for such illegalities and irregularities. Inthe aforesaid premises, we think it appropriate that endsof justice will be met if we alter the punishment ofdismissal to one of premature retirement, as provided inthe Staff Regulations of the Bank, which appear to havebeen framed by the Board in its resolution dated 12-3-1985, which punishment also is a major punishment and weaccordingly so direct. If the delinquents are entitled toany retirement benefits on the basis of such prematureretirement, those may be given to them." https://hcservices.ecourts.gov.in/hcservices/

15.A Division Bench of this Court, while dealing with a case of aJudicial Officer, who was dismissed only a few days before hisretirement, followed the above two judgments of the Supreme Court andconverted the dismissal in to one compulsory retirement vide itsjudgment relating to V.C. Rajamanickam v. State of Tamil Nadu andanother [2007 (5) M.L.J. 1185]. 16.Therefore, in the light of the above precedents, this Court isof the view that the petitioner had already put in more than two decadesof service and that there being no earlier blemish in his servicerecords produced before this Court and that even among the majorpenalties, compulsory retirement is also shown as one of the majorpenalties, this is a fit case where the punishment of removal fromservice is to be converted into one of compulsory retirement of thepetitioner. 17.W.P. No. 16930 of 1998 is allowed to the extent indicated aboveand the respondent TNEB is directed to impose the punishment ofcompulsory retirement on the petitioner in modification of thepunishment in the impugned order. This exercise shall be carried outwithin a period of eight weeks from the date of receipt of a copy ofthis order. However, there will be no order as to costs. Sd/Asst. Registrar/true copy/Sub Asst.RegistrargriTo1.The Secretary, Tamil Nadu Electricity Board800 Anna SalaiChennai2.The Chairman Tamil Nadu Electricity Board800 Anna SalaiChennai https://hcservices.ecourts.gov.in/hcservices/

3.The Chief Engineer Materials ManagementTamil Nadu Electricity Board800 Anna SalaiChennai+1 cc to Mr.S.Elamurugan, Advocate, SR.No.27756.+1 cc to Mr.M.Vaidyanathan, Advocate, SR.No.27703.Gb (co)krd / 13.6.08W.P. No. 7756 of 1997