K. Subramanian v. Erode3.The Chief Engineer (Distribution)Tamil Nadu Electricity BoardSalem Region

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9..6..2008CORAMTHE HONOURABLE MR. JUSTICE K. CHANDRUW.P. Nos. 9867 of 1998, 6584 and 6974 of 2000W.P. No. 9867 of 1998:K. Subramanian .. Petitioner Vs.1.The Tamil Nadu Electricity BoardRep. by its Chairman,Board Office, Secretariat BranchN.P.K.R.R. Maligai,800 Anna SalaiChennai-600 002.2.The Superintending EngineerPeriyar Electricity Distribution CircleTamil Nadu Electricity Board,Erode3.The Chief Engineer (Distribution)Tamil Nadu Electricity BoardSalem Region, Erode-9.4.Er.P. Rajalingam,Chief Engineer / Hydro N.P.K.R.R. MaligaiTamil Nadu Electricity Board800 Anna Salai,Chennai .. RespondentsPetition filed for issuance of writ of Certiorarified Mandamuscalling for the records relating to the order of the first respondentBoard passed in Proceedings permanent B.P. (Ch) No. 155 dated 11.6.1998and quash the same and direct the 1st respondents and notionallyreinstate the petitioner with effect from 25.7.1996 and pay all pay andallowances, terminal benefits and other attendant benefits.W.P. No. 6584 of 2000:M. Ranganathan.. Petitioner Vs.1.The Tamil Nadu Electricity BoardRep. by its ChairmanN.P.K.R.R. Maligai800 Anna Salai,Chennai-600 002. https://hcservices.ecourts.gov.in/hcservices/

2.The SecretaryTamil Nadu Electricity BoardN.P.K.R.R. Maligai800 Anna Salai, Chennai.. RespondentsPetition filed for issuance of writ of Certiorarified Mandamuscalling for the proceedings of the first respondent made in (Per) B.P.(Ch) No. 230 dated 07.9.1998 as confirmed by the second respondent inProceedings (Permanent) B.P. (FB) No. 3 (Secretariat Branch) dated18.01.2000 and quash the same and direct the respondents to reinstatethe petitioner into service with all attendant benefits.W.P. No. 6974 of 2000:A. Cyril.. Petitioner Vs.1.The Tamil Nadu Electricity BoardRep. by its ChairmanN.P.K.R.R. Maligai800 Anna Salai,Chennai2.The SecretaryTamil Nadu Electricity BoardN.P.K.R.R. Maligai800 Anna Salai,Chennai.. RespondentsPetition filed for issuance of writ of Certiorarified Mandamuscalling for the proceedings of the first respondent made in (Per) B.P.(Ch) No. 231 (SB)dated 07.9.1998 as confirmed by the second respondentin Proceedings (Permanent) B.P. (FB) No. 4 (Secretariat Branch) dated18.01.2000 and quash the same and direct the respondents to reinstatethe petitioner into service with all attendant benefits.For Petitioner in: Mr. S. Balasubramanian W.P. No. 9867/98For Petitioners in: Mr. A. Jinasenan W.P. Nos. 6584 & 6974/2000For TNEB: Mr. M. VaidyanathanCOMMON ORDERHeard the arguments of Mr. S. Balasubramanian and Mr.A.Jinasenan,learned counsel for the petitioners and Mr.M.Vaidyanathan, learnedStanding Counsel for the Tamil Nadu Electricity Board [for short,'TNEB'] and perused the records. https://hcservices.ecourts.gov.in/hcservices/

2.W.P. No. 9867 of 1998 is filed by one K. Subramanian againstthe order in B.P. (Ch) No. 155 dated 11.6.1998 by which he was removedfrom the services of the Tamil Nadu Electricity Board. He joined theservice as a Junior Engineer on 22.7.1963 and was promoted as AssistantExecutive Engineer on 18.6.1971. He was finally promoted as anExecutive Engineer w.e.f. 20.6.1986. In the normal course, he wouldhave reached the age of superannuation on 30.11.1996. However, he wasplaced under suspension four months prior to his retirement viz., on25.7.1996. In fact, even after the suspension, his name wasincluded in the panel for promotion to the post of SuperintendingEngineer by proceedings dated 07.8.1996. A charge-memo dated25.10.1996 was given to him alleging that while working as ExecutiveEngineer (O&M), Perundurai, he was receiving bribe of Rs.50/- per meterfrom one M. Ranganathan, who was Stores Custodian, for the release ofsingle phase Meters from the Sub-Store, Ingur. Four witnesses werecited in the charge-memo. His services were retained beyond the age ofsuperannuation so as to continue the enquiry. An enquiry wasconducted on 23.12.1996 and finally, on the basis of the enquiryproceedings, he was asked to show cause on the findings and notsatisfied with his explanation and on the basis of the findings recordedin the enquiry, he was removed from the service of the Board by orderdated 11.6.1998. It is against this order, the W.P. No. 9867 of 1998has been filed.3.In the enquiry held against the petitioner Subramanian, M/s A.Cyril (Stores Supervisor, Ingur) and Mr. M. Ranganathan (StoresCustodian, Ingur) were cited as witnesses. 4.M. Ranganathan, petitioner in W.P. No. 6584 of 2000, wasworking as a Stores Custodian and he was suspended from service on25.7.1996 by the Chief Engineer (Distribution), Salem Region.Subsequently, he was given a charge-memo dated 25.10.1996 by theChairman of the TNEB. The charge against the said Ranganathan was thathe received Rs. 85/-per meter from prospective consumers through thefield staff for the release of single phase meters and out of the sumreceived, he gave Rs.50/- per meter to K. Subramanian, petitioner inW.P. No. 9867 of 1998. He denied the charges by his explanation dated11.11.1996. The Superintending Engineer (Generation) Erode was appointedas an Enquiry Officer. The Enquiry Officer, by his report dated08.8.1997, found him guilty of the charges and after receiving thepetitioner's explanation, he was removed from service by an order dated07.9.1998 in B.P. (Ch) No. 230. He filed an appeal to the Tamil NaduElectricity Board on 24.6.1999 and the said appeal was rejected in theBoard Meeting held on 03.01.2000, which was communicated to the saidpetitioner on 18.01.2000 and as against the same, W.P. No. 6584 of 2000has been filed.5.In the enquiry against him, five witnesses were examined andthree witnesses, viz., a Commercial Assistant, Commercial Inspector anda Stores Supervisor, did not support the charges levelled against him. https://hcservices.ecourts.gov.in/hcservices/ It was only the Vigilance Officer, Coimbatore and Inspector of Police,Vigilance, who initially enquired the matter, who were not eye-witnesses, gave evidence against the petitioner. In fact, the threeBoard employees deposed in the enquiry that due to the threat held outby the Vigilance, they were forced to give such a statement. 6.Likewise, Mr. A. Cyril, petitioner in W.P. No. 6974 of 2000,was working as Stores Supervisor. He was also placed under suspensionby the Chief Engineer (Distribution), Salem Region by an order dated25.7.1996. The charge against the said Cyril was that he was demandingand collecting bribe amount of Rs.85/- per meter from prospectiveconsumers for the release of single phase Meters from the sub-store atIngur and shared the bribe amount with his superiors and other staff.In his case also, similar enquiry was conducted by the SuperintendingEngineer (Generation) Salem and his case was similar to that ofM.Ranganathan. He was finally removed from service by B.P. No. 231dated 07.01.1998 and his appeal was also rejected by the Board vide B.P.No. 4 dated 18.01.2000. It is against the rejection of the appeal,W.P. No. 6974 of 2000 has been filed.7.In the case of K.Subramanian, petitioner in W.P. No. 9867 of1998, he had served 33 years before the disciplinary action was startedagainst him. In the case of M. Ranganathan, petitioner in W.P. No.6584 of 2000, he had put in 27 years of service before his date ofremoval and at present, he is 56 years old and he has two more years torender service. In the case of Mr. A. Cyril, petitioner in W.P. No.6974 of 2000, he had already reached the age of superannuation duringthe year 2004 and before his removal from service, he had put in 32years of service. 8.Mr. S. Balasubramanian, learned counsel for the petitioner inW.P. No. 9867 of 1998 submitted that the statement of M/s A.Cyril and M.Ranganathan obtained by the Vigilance Police cannot form part of thesubstantial evidence against him as they themselves were charge-sheetedand removed from service for identical charges. In fact, beingcharge-sheeted for similar charge, they cannot be examined as witnessesagainst the petitioner. In fact, Ranganathan had stated that he wasinduced to give such a statement by the Department with the promise ofrevocation of their suspension. 9.Since the witnesses, viz., Ranganathan – P.W.1 and A. Cyril –P.W.2 were themselves accused of the same charge, their evidence cannotbe allowed to go on record. With reference to G. Bimsena Rao,Commercial Inspector P.W.3, he had denied receipt of any money and thathis statement was obtained after the suspension of the petitioner.Likewise, A. Thangaraj, Commercial Assistant – P.W.4, deposed that hehad given the statement as told by the Inspector of Police and that hedenied the receipt of any amount. This leaves out the examination ofS. Navaneethakrishnan, Inspector of Police, Vigilance and D. Kumaravel,Vigilance Officer. It must be stated that they were not cited as https://hcservices.ecourts.gov.in/hcservices/ witnesses in the charge-memo given to the petitioner. This wasobjected to by the petitioner as they have been introduced for the firsttime in the enquiry. In fact, their statements were never furnished tothe petitioner either along with the charge-memo or any time beforetheir examination. No complaint from any of the prospective consumerswas recorded by the Vigilance. 10.The only ground on which the Enquiry Officer found thepetitioner guilty was that the statements given by the Board officialsbefore the Vigilance is acceptable than their oral evidence recorded inthe enquiry in which they had made allegations of threat and coercionand that there was no prior enmity between the witnesses and theVigilance Officer. In fact, non-receipt of any specific complaintgiven by any consumer will clearly show that there was no legal evidencefor holding the petitioner guilty. In that context, the chargeitself is very vague inasmuch as it accuses the petitioner of receivingbribes.11.In this context, the learned counsel placed reliance upon thejudgment of the Supreme Court in Sher Bahadur v. Union of India[2002 (7) SCC 142]. He placed reliance upon the following passagesfound in paragraphs 6 and 7 of the said judgment which reads as follows:-Para 6:"A perusal of the judgment and order under challenge showsthat the High Court having referred to the enquiry reportfound that there was oral and documentary evidence (Ext.P-1) to hold him guilty and that sufficiency of theevidence would not be a ground to challenge the order ofthe disciplinary authority by invoking the writjurisdiction.Para 7:It may be observed that the expression “sufficiency ofevidence” postulates existence of some evidence whichlinks the charged officer with the misconduct allegedagainst him. Evidence, however voluminous it may be, whichis neither relevant in a broad sense nor establishes anynexus between the alleged misconduct and the chargedofficer, is no evidence in law. The mere fact that theenquiry officer has noted in his report, “in view of oral,documentary and circumstantial evidence as adduced in theenquiry”, would not in principle satisfy the rule ofsufficiency of evidence. Though, the disciplinaryauthority cited one witness Shri R.A. Vashist, Ex.CVI/Northern Railway, New Delhi, in support of thecharges, he was not examined. Regarding documentaryevidence, Ext. P-1, referred to in the enquiry report andadverted to by the High Court, is the order of appointmentof the appellant which is a neutral fact. The enquiryofficer examined the charged officer but nothing iselicited to connect him with the charge. The statement ofthe appellant recorded by the enquiry officer shows no https://hcservices.ecourts.gov.in/hcservices/ more than his working earlier to his re-engagement duringthe period between May 1978 and November 1979 in differentphases. Indeed, his statement was not relied upon by theenquiry officer. The finding of the enquiry officer thatin view of the oral, documentary and circumstantialevidence, the charge against the appellant for securingthe fraudulent appointment letter duly signed by the saidAPO (Const.) was proved, is, in the light of the abovediscussion, erroneous. In our view, this is clearly a caseof finding the appellant guilty of charge without havingany evidence to link the appellant with the allegedmisconduct. The High Court did not consider this aspect inits proper perspective as such the judgment and order ofthe High Court and the order of the disciplinaryauthority, under challenge, cannot be sustained, they areaccordingly set aside."12.The learned counsel also placed reliance upon the judgment ofthe Supreme Court in State of U.P. v. Shatrughan Lal and another[(1998) 6 SCC 651] for the proposition that since the statements of theVigilance Officers were neither supplied to them nor their names werementioned in the charge-memo, it would vitiate the enquiry. Reliancewas placed upon the following passage found in paragraph 10 of the saidjudgment. Para 10:"It has also been found that during the course of thepreliminary enquiry, a number of witnesses were examinedagainst the respondent in his absence, and rightly so, asthe delinquents are not associated in the preliminaryenquiry, and thereafter the charge-sheet was drawn up. The copies of those statements, though asked for bythe respondent, were not supplied to him. Since there wasa failure on the part of the appellant in this regard too,the Tribunal was justified in coming to the conclusionthat the principles of natural justice were violated andthe respondent was not afforded an effective opportunityof hearing, particularly as the appellant failed toestablish that non-supply of the copies of statementsrecorded during the preliminary enquiry had not caused anyprejudice to the respondent in defending himself."13.Alternatively, he contended that having regard to the threedecades of unblemished service rendered by the petitioner, thepunishment of removal from service is shockingly disproportionate.Further, the enquiry itself started just four months before hisretirement and that his name was in the promotional panel for the postof Superintending Engineer. Therefore, the very exercise was to denyhim promotion for his long service. 14.The learned counsel, with reference to the power to interferewith the penalty, placed reliance upon the following passages found in https://hcservices.ecourts.gov.in/hcservices/ paragraphs 25 to 27 of the judgment of the Supreme Court in RanjitThakur v. Union of India [(1987) 4 SCC 611]. Para 25: "Judicial review generally speaking, is not directedagainst a decision, but is directed against the“decision-making process”. The question of the choice andquantum of punishment is within the jurisdiction anddiscretion of the court-martial. But the sentence has tosuit the offence and the offender. It should not bevindictive or unduly harsh. It should not be sodisproportionate to the offence as to shock theconscience and amount in itself to conclusive evidence ofbias. The doctrine of proportionality, as part of theconcept of judicial review, would ensure that even on anaspect which is, otherwise, within the exclusive provinceof the court-martial, if the decision of the court evenas to sentence is an outrageous defiance of logic, thenthe sentence would not be immune from correction.Irrationality and perversity are recognised grounds ofjudicial review. In Council of Civil Service Unions v.Minister for the Civil Service Lord Diplock said:“Judicial review has I think developed to a stagetoday when, without reiterating any analysis of thesteps by which the development has come about, onecan conveniently classify under three heads thegrounds on which administrative action is subject tocontrol by judicial review. The first ground I wouldcall ‘illegality’, the second ‘irrationality’ and thethird ‘procedural impropriety’. That is not to saythat further development on a case by case basis maynot in course of time add further grounds. I have inmind particularly the possible adoption in the futureof the principle of ‘proportionality’ which isrecognised in the administrative law of several ofour fellow members of the European EconomicCommunity;. . .”Para 26:In Bhagat Ram v. State of Himachal Pradesh this Courtheld: [SCC p. 453, SCC (L&S) p. 353, para 15]“It is equally true that the penalty imposed must becommensurate with the gravity of the misconduct, andthat any penalty disproportionate to the gravity ofthe misconduct would be violative of Article 14 ofthe Constitution.”The point to note, and emphasise is that all powers havelegal limits. https://hcservices.ecourts.gov.in/hcservices/ Para 27:In the present case the punishment is so strikinglydisproportionate as to call for and justify interference.It cannot be allowed to remain uncorrected in judicialreview."15.With reference to the charge of corruption alleged against thepetitioner, for the standard of proof required in a domestic enquiry,the learned counsel placed reliance upon the judgment of the KarnatakaHigh Court in Venkatachala Shetty v. State of Karnataka [1986 (2)LLJ 464] and more particularly, relied upon the following passage foundin paragraph 6 of the judgment.Para 6:"Offence complained of is a Criminal misconduct indischarge of official duty. To constitute an offence ofacceptance of illegal gratification either under S.161I.P.C. or under S.5-A of the Prevention of CorruptionAct, essential ingredients required to be established aredelinquent (i) must be a public servant; (ii) shouldaccept gratification for himself; and (iii) gratificationshould be as a motive or reward for showing or forbearingto show favour or disfavour to any person. Connotationof acceptance of illegal gratification as defined inthese Acts may safely be adopted, as it cannot bedifferent in departmental enquiry to prove misconduct.Assuming for the sake of argument that first and last areestablished, still there is no proof to satisfy secondingredient. Acceptance of bribe by Ganga, who hasnothing to do with delinquent official can by no stretchof imagination be considered as acceptance of illegalgratification by petitioner and conclusion thatacceptance by Ganga must be treated as acceptance ofillegal gratification by petitioner is perverse.Finding that Ganga is an agent is purely based oninferences and conjectures. Ganga, by accepting moneyfrom Muniraju might have cheated or deceived him, butpetitioner cannot be vicariously held responsible. Inthe absence of evidence either of Ganga or petitioneradmitting his relationship punishment imposed formisconduct – re: acceptance of illegal gratification mustbeheld to be illegal and perverse. If public servantsare punished on such finding, there will be no safety forGovernment Servants."16.He also submitted that the Vigilance Officer had a grouseagainst the petitioner with reference to dealing of the serviceconnection in respect of M/s Sakthi Exports at Perundurai Division,where his son was working as an Engineer and the Enquiry Officer underwhom the petitioner was working, had many difference of opinion withreference to the discharge of duties and was waiting for opportunity tofinish the career of the petitioner. Therefore, he prayed for settingaside the order removing him from service. https://hcservices.ecourts.gov.in/hcservices/

17.Mr. A. Jinasenan, learned counsel appearing for the other twopetitioners adopted the arguments of Mr.S.Balasubramanian. He furthersubmitted that his clients are only subordinates to Subramanian,petitioner in W.P. No. 9867 of 1998, and, they, at best, were actingunder orders of their superiors. He also submitted that no complaintwas received from any prospective consumers and in the absence of anycredible evidence against them, they should not be proceeded with. Healso submitted that considering the long service put in by both thepetitioners, the punishment of removal from service was disproportionateand requires interference by this Court.18.Mr. M. Vaidynathan, learned Standing Counsel for the TNEB,submitted that it is a case of corruption indulged by the threepetitioners and that no consideration should be shown. The VigilanceOfficer has no personal bias against the petitioners and immediatelyafter the statements were submitted by M/s M.Ranganathan and A. Cyril,they have not complained to any other authority about the threat andcoercion in giving those statements. The only time retraction wassought to be made was only during the enquiry. Even with reference tothe statements of the two Vigilance personnel, the petitioners wereallowed to cross-examine them which right, they did not utilise. Thenon-examination of any prospective consumer is not suicidal because theBoard employees themselves admitted the collection of money and theshare of each petitioner in that collection. He also submitted thatthe Enquiry Officer was correct in placing reliance upon the writtenstatement given by the witnesses and they disbelieved the retractionmade by them. He also submitted that in the present case, strict rulesof evidence will not apply and it is enough if there is a preponderanceof probabilities of case.19.After careful consideration of the rival submissions, it mustbe stated that the attempt by the petitioners to dislodge the writtenstatement given by them to the Vigilance Officer cannot be accepted.Further, non-examination of the prospective consumers cannot have muchbearing on the present issue inasmuch as M/s M. Ranganathan and A. Cyrilhave given in writing that they had collected amounts from the consumersand the total number of consumers from whom amounts were collected arealso found in the statement of Cyril. Further, they have not cross-examined the two Vigilance officials and they have also not denied withreference to giving statements to Vigilance officials. They havefailed to prove the nature of threat handed over to them by theVigilance. Though Mr.Subramanian attributed motive to the EnquiryOfficer as well as Vigilance Officer, he never gave any oral evidence insupport of such motives. Though there is no quarrel with thepropositions based upon legal precedents advanced by Mr.Balasubramanian, yet those propositions have no direct application tothe facts of the present case. Therefore, the argument ofMr.M.Vaidynathan, learned counsel that the charges levelled against thepetitioners have been proved in the manner known to law, has to benecessarily accepted. https://hcservices.ecourts.gov.in/hcservices/

20.This leaves out the last issue regarding the nature of penaltyto be imposed on the petitioners. During the course of argument, thisCourt requested the Board counsel to find out as to whether anymodification of punishment is possible by the Board. Mr.Vaidyanathan, learned counsel, after taking time, informed this Courtthat the modification of punishment is not possible and it is left tothis Court to pass appropriate orders in accordance with law.21.Under the TNEB Service Regulations, major penalties have beenprescribed which includes removal from service, compulsory retirementand dismissal from service. In the present case, both the competentauthority and the appellate authority have not indicated as to why theyhad preferred removal from service and not any other major penalty foundin the TNEB Service Regulations.22.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 whilethe finding that the appellant was guilty in terms of thecharges found should the appellant have been dismissedfrom service. Ordinarily, justification of the quantum ofpunishment imposed in a disciplinary action is not for thecourt to decide and there have been occasions when thisCourt has taken interference by the High Courts on quantumof punishment as an act in excess of jurisdiction. Whilewe are cognizant of that fact, keeping the residue of thecharges in view, we are inclined to hold that dismissal ofthe appellant from service was out of proportion andcompulsory retirement would meet the ends of justice. Weaccordingly direct that in place of dismissal, theappellant shall be taken to have been compulsorily retiredfrom service from the date when dismissal becameoperative."23.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 Board https://hcservices.ecourts.gov.in/hcservices/ of 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."24.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]. 25.Therefore, in the light of the above precedents, this Court isof the view that the petitioners have already put in more than threedecades of service and that there being no earlier blemish in theirservice records 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 all thepetitioners. 26.The writ petitions are allowed to the extent indicated aboveand the respondent TNEB is directed to impose the punishment ofcompulsory retirement on the petitioners in modification of thepunishment in the impugned orders. 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 Chairman Tamil Nadu Electricity BoardBoard Office,Secretariat BranchN.P.K.R.R. Maligai,800 Anna SalaiChennai-600 002. https://hcservices.ecourts.gov.in/hcservices/

2.The Superintending EngineerPeriyar Electricity Distribution CircleTamil Nadu Electricity BoardErode3.The Chief Engineer (Distribution)Tamil Nadu Electricity BoardSalem RegionErode-9.1 CC To Mr.M.Vaidyanathan, Advocate, SR NO.277042 CC To Mr.A.Jenasenan, Advocate, SR NO.27621 & 276201 CC To Mr.A.K.Kumarasamy, Advocate, SR NO.27605 Common Order in W.P. No. 9867 of 1998, etc. batchGB(CO)rvr 13/06/08