C.Ravichandran v. Tamil Nadu Newsprint and Papers Ltd.

entire proceedings confirmed the order of dismissal through hisproceedings dated 13.10.1998.(iii)The respondent would further state that theallegations of the petitioner that he joined the services of thecompany on 16.06.1993 are erroneous and he joined the services of thecompany only on 27.07.1993. With regard to the issue that theEnquiry Officer has held that the delinquent employee for hisnegligence in certifying the completion of work without physicallychecking up the same, the respondent would state that the petitionerought to have visited the site and then only signed the final bill.Hence, the Enquiry Officer has held that the delinquent officer isguilty of negligence in indicating the date of completion of work as17.11.1996. Further, when the structural steel had been supplied byTNPL, the petitioner should have been more diligent and ought to haveadopted a different rate. He had failed to do so thereby causingpecuniary loss to TNPL. He would also state that the allegation thatthe Enquiry Officer found that the management had not taken anyaction against the contractor has no relevance to the disciplinaryproceedings initiated against the petitioner. (iv)The petitioner's contention that the principles of naturaljustice have been violated is contrary to the truth; on the otherhand, the petitioner has participated in the full-fledged enquiry andhe has cross-examined the management representative and the witnessas well. With regard to the petitioner's contention that the twoother officers had been reinstated, the respondent would state that adistinction has been drawn between the Junior Officer and thepetitioner, since as a Deputy Manager, the petitioner is expected toact in a manner to safeguard the interests of TNPL. Further, thepetitioner instead of exercising control over the work of JuniorOfficers, himself had shown the way for committing irregularities.So, the petitioner's role is much more reprehensible than those ofthe Junior Officers. Hence, the punishment of dismissal for the actsof misconduct committed by the petitioner is not excessive. Bydealing with the three appeals, the Competent Authority had dealtwith the charges in a systematic way and has pointed out thedistinction between the role of the Junior Officer and that of thepetitioner who is a Deputy Manager in the respondent Company. Therespondent would submit that Article 14 of the Constitution of Indiais not attracted since there is no allegation of inequal treatment inrespect of equals.(v)Further, the petitioner's contention that it is practicallyimpossible to keep track of every minute thing during civil worksclearly shows that the petitioner is not duty conscious. Thiscontention of the petitioner itself stands as a testimony for theconduct of the petitioner during his service in TNPL and it reflectsthe attitude of the petitioner in justifying the acts of misconductcommitted by him. Further, the petitioner has not represented to the https://hcservices.ecourts.gov.in/hcservices/ Management about the practical impossibility of keeping track ofthings, while discharging his functions during his service in TNPL.Hence, the contention of the petitioner is only an afterthought anddoes not merit any consideration.4.To the counter, the petitioner has filed a reply affidavitstating as follows :(i)The disciplinary proceedings are vitiated and there is nocharge sheet. The respondent has stated that on 24.03.1997, a showcause notice was issued, which is the basis for the disciplinaryproceedings. The Enquiry Officer has proceeded on the footing thatthe Charge Memo dated 24.03.1997 was issued to the petitioner,whereas, there is no charge memo at all. Regarding the allegationthat pecuniary loss of Rs.41,000/- was caused to the respondent, thepetitioner would submit that the Enquiry Officer has found that thereis no proof to show that the respondent had suffered any pecuniaryloss. As per the show cause notice, the charges are that thepetitioner had acted in a manner to favour contractor that there wasa pecuniary loss of Rs.63,351.89 due to supply of 10.224 M.T. ofsteels and Rs.41,000/- towards standard steel windows, steelVentilators and rolling shutters, Rs.1,32,600/- towards 2600 cu. M.quantifies of excavated earth which has been filled in low-lyingareas. The enquiry officer has found that there was no pecuniaryloss nor was there any favouritism. Hence, the charges mentioned inthe show cause notice have not been established. But, the enquiryofficer has held that the petitioner is guilty of negligence. Such afinding is perverse since there is no charge of negligence in theshow cause notice. The Enquiry Officer has no jurisdiction to framea charge and has given a finding without even affording anopportunity to the petitioner about the charge; hence, thedisciplinary proceedings are vitiated.(ii)The petitioner would state that the first show cause noticehas been issued by the Director (Finance); but, it is not knownwhether he is the disciplinary authority. Assuming that he is thedisciplinary authority, the second show cause notice dated 13.12.1997had been issued by the General Manager (H.R.D.). According to thepetitioner, only the disciplinary authority is competent to go intothe findings of the enquiry officer and he alone can either agreewith the findings or differ. The General Manager (HRD) is not thedisciplinary authority because the first show cause notice was issuedby the Director (Finance). Further, in the second show cause notice,it is stated that "We have gone through the enquiry proceedings andfind that you had been given opportunity to vindicate your innocence.We have also perused the findings of the enquiry officer and we agreethat the above referred charges had been proved apart from chargesspecified under Rule 68(nl)". The use of "We" clearly shows thatthere is no independent thinking or action. The disciplinaryauthority cannot introduce new charges in the second show cause https://hcservices.ecourts.gov.in/hcservices/ notice. Thus the second show cause notice is not only invalid butalso has caused serious prejudice to the petitioner. He would alsosubmit that the termination order has been issued by the Director(Operations) who is not the competent authority. (iii)The petitioner would also state that as per servicerules, the enquiry should be completed within 3 months. Further, itis seen that one Ramakrishna Iyer is the Management representative,who was presenting the case and the enquiry court is silent about hisexamination as Management witness. As per the enquiry report, theenquiry was completed on 08.07.1997 and two witnesses on the side ofthe management and the petitioner were examined and there is no otherevidence, but in the order passed by the Appellate Authority, thereis a reference to the deposition of one R.Sundararajan; assuming thatthere is any deposition, it is totally erroneous.The petitioner hasalso stated that there is no misconduct on his part and therespondent has discriminated him by imposing a capital punishment.5.Heard Mr.B.Ravi, learned counsel for the petitioner andMr.M.R.Raghavan, learned counsel appearing for the respondent.6.Learned counsel for the petitioner would submit that theshow cause notice has been issued by one Director (Finance), whereasthe show cause notice on the findings has been issued by the GeneralManager (HRD) and the final office order has been passed by Director(Operation). He would contend that three different authorities haveexercised the jurisdiction of the Disciplinary Authority without evenmentioning as to who the actual Disciplinary Authority is, with whomsuch powers are vested and hence without jurisdiction. He wouldfurther contend that it is not the petitioner alone who can be heldresponsible for a commission of the act in which all the persons bothlower and higher in rank are involved and all the persons both lowerand higher in rank than the petitioner have been let off in this caseholding only the petitioner; such act is condemnable by the ApexCourt in its decision reported in (2007) 7 SCC 206.6a.To substantiate his stand, learned counsel for thepetitioner has relied on the following decisions : (i)(1995) 6 SCC 749 [B.C.Chaturvedi vs. Union of India andothers]"12.Judicial review is not an appeal from a decisionbut a review of the manner in which the decision is made.Power of judicial review is meant to ensure that theindividual receives fair treatment and not to ensure thatthe conclusion which the authority reaches is necessarilycorrect in the eye of the court. When an enquiry isconducted on charges of misconduct by a public servant, theCourt/Tribunal is concerned to determine whether the https://hcservices.ecourts.gov.in/hcservices/ inquiry was held by a competent officer or whether rules ofnatural justice are complied with. Whether the findings orconclusions are based on some evidence, the authorityentrusted with the power to hold inquiry has jurisdiction,power and authority to reach a finding of fact orconclusion. But that finding must be based on someevidence. Neither the technical rules of Evidence Act norof proof of fact or evidence as defined therein, apply todisciplinary proceeding. When the authority accepts thatevidence and conclusion receives support therefrom, thedisciplinary authority is entitled to hold that thedelinquent officer is guilty of the charge. TheCourt/Tribunal in its power of judicial review does not actas appellate authority to reappreciate the evidence and toarrive at its own independent findings on the evidence.The Court/Tribunal may interfere where the authority heldthe proceedings against the delinquent officer in a mannerinconsistent with the rules of natural justice or inviolation of statutory rules prescribing the mode ofinquiry or where the conclusion or finding reached by thedisciplinary authority is based on no evidence. If theconclusion or finding be such as no reasonable person wouldhave ever reached, the Court/Tribunal may interfere withthe conclusion or the finding, and mould the relief so asto make it appropriate to the facts of each case.13.The disciplinary authority is the sole judge offacts. Where appeal is presented, the appellate authorityhas coextensive power to reappreciate the evidence or thenature of punishment. In a disciplinary inquiry, thestrict proof of legal evidence and findings on thatevidence are not relevant. Adequacy of evidence orreliability of evidence cannot be permitted to be canvassedbefore the Court/Tribunal. In Union of India vs. H.C.Goel, this Court held at p.728 that if the conclusion, uponconsideration of the evidence reached by the disciplinaryauthority, is perverse or suffers from patent error on theface of the record or based on no evidence at all, a writof certiorari could be issued."(ii)AIR 2000 SC 1151 [U.P. State Road Transport Corporation andothers vs. Mahesh Kumar Mishra and others]"8.This will show that not only this Court but alsothe High court can interfere with the punishment inflictedupon the delinquent employee if, that penalty, shocks theconscience of the Court. The law, therefore, is not, ascontended by the learned counsel for the appellants, that https://hcservices.ecourts.gov.in/hcservices/ the High Court can, in no circumstance, interfere with thequantum of punishment imposed upon a delinquent employeeafter disciplinary proceedings."(iii)2001 WLR 86 [M.Ramachandran vs. The Board ofDirectors, Cheran Transport Corporation Ltd.]"3.The petitioner would further submit that hesubmitted his explanation to the said show cause notice on13.05.1989. But, however without being satisfied, enquirywas ordered on the charges appointing one S.B. HanumanthaRao, retired Subordinate Judge as an enquiry officer whoconducted the enquiry and submitted his report on12.03.1990; that the enquiry officer though decided overthe allegations made against the petitioner to be incorrectand unjustified and that the petitioner had no opportunitynor occasion to know about the fraud committed by the saidGothandapani and further has arrived at the conclusion thatthere was no basis nor evidence for the said charge. Buthowever exceeding his jurisdiction, he had held that thepetitioner was irresponsible, careless and negligent in hisduties and responsibilities. The petitioner alleging thatthere was no allegation of such nature nor any enquiry heldin this regard would further submit that such conclusionhad been arrived at by the enquiry officer based onsuppositions and surmises and not on material facts andstrong circumstances and hence the conclusions arrived atby the enquiry officer ultimately holding the petitionerresponsible for gross negligence of duty is with anulterior motive and acting in collusion with the saidGothandapani and the same have not been proved onevidence."(iv)2006 SCC (L&S) 1035 [SBI and others vs. Arvind K. Shukla]"2.... we have been taken through the findings ofthe enquiring officer and Charges 1(a) and 1(d) as wellas the reasonings and ultimate conclusion of thedisciplinary authority on those two charges. Onexamining the same, we are not persuaded to accept thesubmission of the learned counsel and in our view, thedisciplinary authority has disagreed with the conclusionand findings arrived at by the enquiring officer. Thenext question therefore is, as has been formulatedearlier, whether the disciplinary authority was requiredto record its tentative reasons for disagreement and giveto the delinquent officer an opportunity to representbefore it recorded its ultimate findings. This question https://hcservices.ecourts.gov.in/hcservices/ is concluded by a three-Judge Bench decision of thiscourt in the case of Punjab National Bank vs. Kunj BehariMisra. The Bench in the aforesaid case relied upon theearlier decision in Institute of Chartered Accountantcase as well as Ram Saxena cases do not lay down thecorrect law. Mr.Sundaravadanam, however, brought to ournotice yet another three-Judge Bench decision in the caseof Union Bank of India vs. Vishwa Mohan and contendedthat a different view has been taken in the aforesaidcases. But on examining the aforesaid decision in UnionBank of India case, we find that the question which arosefor consideration in Punjab National Bank case was notreally there before the Court and the Court was examiningthe question as to what would be the effect, if copy ofthe enquiry report is not furnished to the delinquentemployee. The Court obviously relied upon theConstitution Bench decision of this Court in ManagingDirector, ECIL vs. B.Karunakar. In the absence of anycontrary decision of a three-Judge Bench decision on thequestion in issue, we are bound by the earlier judgmentof this court in Punjab National Bank case necessarily,therefore we do not find any merit in this appeal, whichstands dismissed."(v)(2006) 4 SCC 713 [Narinder Mohan Arya vs. United IndiaInsurance Co. Ltd. and others]"26. In our opinion the learned Single Judge andconsequently the Division Bench of the High Court did notpose unto themselves the correct question. The matter canbe viewed from two angles. Despite limited jurisdiction acivil court, it was entitled to interfere in a case wherethe report of the enquiry officer is based on no evidence.In a suit filed by a delinquent employee in a civil court asalso a writ court, in the event the findings arrived at inthe departmental proceedings are questioned before it, itshould keep in mind the following: (1) the enquiry officeris not permitted to collect any material from outsidesources during the conduct of the enquiry. (See State ofAssam v. Mahendra Kumar Das) (2) In a domestic enquiryfairness in the procedure is a part of the principles ofnatural justice. (See Khem Chand v. Union of India and Stateof U.P. v. Om Prakash Gupta) (3) Exercise of discretionarypower involves to elements – (i) objective, and (ii)subjective and existence of the exercise of an objectiveelement is a condition precedent for exercise of thesubjective element (See K.L.Tripathi v. State Bank of India)(4) It is not possible to lay down any rigid rules of theprinciples of natural justice which depend on the facts and https://hcservices.ecourts.gov.in/hcservices/ circumstances of each case but the concept of fair play inaction is the basis. (See Sawai Singh v. State ofRajasthan.) (5) The enquiry officer is not permitted totravel beyond the charges and any punishment imposed on thebasis of a finding which was not the subject-matter of thecharges is wholly illegal. [See Director (Inspection &Quality Control) Export Inspection Council of India v.Kalyan Kumar Mitra.] (6) Suspicion or presumption cannottake the place of proof even in a domestic enquiry. Thewrit court is entitled to interfere with the findings of thefact of any tribunal or authority in certain circumstances.(See Central Bank of India Ltd. v. Prakash Chand Jain,Kuldeep Singh v. Commr. of Police.)"(vi)2006 SCC (L&S) 919 [M.V.BIJLANI V. UNION OF INDIA ANDOTHERS]"25. It is true that the jurisdiction of the court injudicial review is limited. Disci plinary proceedings,however, being quasi-criminal in nature, there should besome evidence to prove the charge. Although the chargesin a departmental proceedings are not required to beproved like a criminal trial i.e. beyond all reasonabledoubt, we cannot lose sight of the fact that the enquiryofficer performs a quasi-judicial function, who uponanalysing the documents must arrive at a conclusion thatthere had been a preponderance of probability to prove thecharges on the basis of materials on record. While doingso, he cannot take into consideration any irrelevant fact.He cannot refuse to consider the relevant facts. Hecannot shift the burden of proof. He cannot reject therelevant testimony of the witnesses only on the basis ofsurmises and conjectures. He cannot enquire into theallegations with which the delinquent officer had not beencharged with." (vii)(2007) 7 SCC 206 [Bongaigon Refinery & PetrochemicalsLtd. and others vs. Girish Chandra Sarma]"Well established proposition of law reiterated thatcourts cannot sit as appellate authority over the domesticenquiry. However, the findings of the domestic enquiry inthis case found unsustainable inasmuch as one person alonemade scapegoat for collective decisions in which othersalso collectively participated – Held, Division Bench ofHigh Court rightly set aside the penalty." https://hcservices.ecourts.gov.in/hcservices/ (viii)(2007) 2 SCC (L & S) 550 [UCO Bank and another vs.Rajinder Lal Capoor]"21.The aforementioned Regulation, however, could beinvoked only when the disciplinary proceedings had clearlybeen initiated prior to the respondent's ceasing to be inservice. The terminologies used therein are of seminalimportance. Only when a disciplinary proceeding has beeninitiated against an officer of the bank despite hisattaining the age of superannuation, can the disciplinaryproceeding be allowed on the basis of the legal fictioncreated thereunder i.e. continue "as if he was inservice". Thus, only when a valid departmental proceedingis initiated by reason of the legal fiction raised interms of the said provision, the delinquent officer wouldbe deemed to be in service although he has reached his ageof superannuation. The departmental proceeding, it istrite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a charge-sheet isissued (see Union of India vs. K.V.Janakiraman). Thisaspect of the matter has also been considered by thisCourt recently in Coal India Ltd. vs. Saroj Kumar Mishra,wherein it was held that date of application of mind onthe allegations levelled against an officer by thecompetent authority as a result whereof a charge-sheet isissued would be the date on which the disciplinaryproceedings are said to have been initiated and not priorthereto. Pendency of a preliminary enquiry, therefore byitself cannot be a ground for invoking Clause 20 of theRegulations. ..."7.On the other hand, learned counsel for the respondent wouldcontend that the petitioner as a Deputy Manager is expected to act ina manner to safeguard the interests of TNPL. Further, instead ofexercising control over the work of Junior Officer, he himself hadshown the way for committing irregularities. Hence, the punishment ofdismissal for the acts of misconduct committed by the petitioner isnot excessive. He would further submit that by dealing with thethree appeals, the Competent Authority has dealt with the charges ina systematic way and has pointed out the distinction between the roleof the Junior Officer and that of the petitioner. 7a.In support of his contentions, learned counsel for therespondent has relied on a decision of the Apex Court reported in1997 (II) LLJ 879 in the case of Balbir Chand vs. Food Corporation ofIndia Ltd. and others], relevant portion of which is extractedhereunder : https://hcservices.ecourts.gov.in/hcservices/ "5. ... When more than one delinquent officer areinvolved then with a view to avoid multiplicity of theproceedings, needless delay resulting from conducting thesame and overlapping adducing of evidence or omissionthereof and conflict of decision in that behalf, it isalways necessary and salutary that common enquiry should beconducted against all the delinquent officers. Thecompetent authority would objectively consider their casesaccording to Rules and decide the matter expeditiously afterconsidering the evidence to record findings on proof ofmisconduct and proper penalty on proved charge and imposeappropriate punishment on the delinquents. If one chargedofficer cites another charge officer as a witness 'in proofof his defence' the enquiry need not per se be split up evenwhen the charged officers would like to claim an independentenquiry in that behalf. If that procedure is adopted,normally all the delinquents would be prone to seek split upof proceedings in their bid to delay the proceedings, and tosee that there is conflict of decisions taken at differentlevels. Obviously, disciplinary authority should not beequated as a prosecution for an offence in a Criminal Courtwhere the delinquent are arrayed as co-accused. Indisciplinary proceedings, the concept of co-accused does notarise. Therefore, each of the delinquents would be entitledto summon on the other person and examine on his behalf as adefence witness in the enquiry or summon to cross-examineany other delinquent officer if he finds him to be hostileand have his version placed on record for consideration bythe disciplinary authority. Under these circumstances, theneed to split up the cases is obviously redundant, timeconsuming and dilatory. It should not be encouraged. ..."8.I have heard the submissions made by the learned counsel oneither side and perused the decisions relied on by them and therelevant materials on record.9.A plain analysis of the case would reveal that thepetitioner joined the services of the respondent Company as DeputyManager (Civil) on 27.07.1993 and his services were confirmed on17.08.1994 with effect from 27.07.1994. While so, on 24.03.1997, ashow cause notice was issued to the petitioner alleging that he hadcommitted certain grave charges by using his authority leading tovarious irregularities and that he had shown favouritism to severalcontractors, which are of pecuniary in nature. To the said showcause notice, the petitioner submitted his explanation on 03.04.1997.However, the respondent, in its letter dated 19.04.1997 informed thepetitioner that they are not satisfied with his explanation anddecided to conduct an enquiry. Thereafter, an Enquiry Officer wasappointed and after holding the enquiry, a report was submitted https://hcservices.ecourts.gov.in/hcservices/ during September 1997. Further explanation was called for from thepetitioner on 13.12.1997 and for the same, he submitted his reply on20.12.1997. Based on the findings of the Enquiry Officer, theDirector (Operations) passed an order of dismissal, dismissing thepetitioner from the services of the Company on 14.03.1998. Aggrievedby the said order, the petitioner preferred an appeal on 07.04.1998to the Chairman cum Managing Director of TNPL, the respondent herein.The said appeal was dismissed confirming the order passed by theoriginal authority, thereby, the petitioner was dismissed fromservice by an order dated 13.10.1998.10.In this case, the disciplinary authority, namely, theDirector (Operations) has not been made as a party. Moreover, theorder of dismissal dated 14.03.1998 passed by the disciplinaryauthority in Proceedings No.PER/1755/98 has not been challenged inthis writ petition. The petitioner has challenged only the order ofthe appellate authority, i.e., the order of the respondent herein inProceedings No.CMD/TNPL/PGR/1755/98 dated 13.10.1998. As the orderof the disciplinary authority is not under challenge and as thedisciplinary authority is not a party to the proceedings, it may notbe proper for this court to look into the vires of that order. Now,this court has to examine as to whether the order impugned in thiswrit petition namely, the order of the appellate authority suffersfrom infirmity or not.11.The appellate authority is the authority having overallcontrol over the entire administrative functions, as he is the headof the respondent Company and if any order is under challenge beforehim, it is his bounden duty to look into each and every aspect of thematter in his jurisdiction and power as to whether the order passedby the authority below is in accordance with law or not. In the caseon hand, the petitioner has raised several questions. The firstquestion is, when the petitioner was not issued a charge memo inrespect of imputation of misconduct, whether the show cause noticeissued to him containing allegations against him could be construedas a charge memo.12.At this juncture, it is necessary to look into the contentsof the Show Cause Notice dated 24.03.1997, which would read thus :"It is alleged that certain grave charges had beencommitted by you using your authority leading to variousirregularities and favouritism had been shown to CivilContractors, which are of pecuniary in nature such as :(1)Work Order Ref.No.TS:MC:WO:507:8401 dated 17thAugust 1996 issued to Thiru A.Chandrakumar,Velayuthampalayam relating to Civil and structural works forextension of Leco/Lignite Shed and Store Shed at Mohanuroffsite. https://hcservices.ecourts.gov.in/hcservices/ (a)It is reported that the Chief Manager (Civil) videletter No.CIV/105 dated 15.11.1996 issued to ThiruA.Chandrakumar, Contractor had specified that inspite of ourrepeated reminders, the contractor has not commenced theerection of steel structures at Lignite shed in Mohanur.However, it is reported that 'Work Completion Certificate'was issued by you knowingly and deliberately, specifying thedate of completion as 17.11.1996. On the contrary, the workwas not completed on that date and from the records, it isseen that the structural steels arranged by the contractorhas been received in the Mohanur Offsite only on 24.09.1996,22.11.1996 and 23.11.1996. The above act of yours is wilfulbreach of Rules of the Company in order to favour thecontractor to get final settlement of dues from the companyand to save the contractor from being attracted byLiquidated Damages Clause (Clause-7).(b)As per Clause 9.3 of the above said Work Order allnecessary materials of approved quality and standardspecifications required for the above work shall be arrangedby the contractor and shall be brought inside the premiseswith proper document supported by appropriate gate pass.In the Schedule of Rates, Item No.15 relates to Supply,fabrication and erection of structural steel works by thecontractor.However, on the contrary, it is reported that themaximum quantity of steel i.e.10.224 M.T. was issued to thecontractor from Main site/Offsite. It is reported that whenthe structural steel are supplied by TNPL, the fabricationcost would only be Rs.5,000/- per M.T., whereas by supplyingthe structural steel, pecuniary loss had been caused to TNPLto the tune of Rs.63,351.89, which is furnished below :for Item No.15, the ratecertified for payment tothe contractor: Rs.28,500 x 10.224 = Rs.2,93,428.80Recovery for structural steel supplied by TNPL: Rs.1,78,956.90 ---------------Balance amount certifiedfor fabrication for Rs.1,14,471.9010.224 M.T. --------------- https://hcservices.ecourts.gov.in/hcservices/ Amount certified for 1 M.T. of fabrication work: 1,14,471.90/10.224 = Rs.11,196.39Normal Rate prevailing in TNPL per M.T. of structuralsteel supplied by TNPL: Rs.5000/-Excess amount certified tocontractor: Rs.11,196/39 – 5000.00 = Rs.6,196.39 per M.T.Pecuniary loss to TNPL per M.T.: Rs.6,196.39 per M.T.Pecuniary Loss to TNPLfor 10.224 M.T.: Rs.6,196.39 x 10.224 = Rs.63,351.892.Work Order Ref.No.TNPL/EXP/C&E/WO/125 dated 30thOctober, 1995 issued to Thiru K.Palanisamy, Ponniyanurrelating to Civil, structural and AC sheet roofing worksconnected with Extension of CAP godown.As per clause 10.2 of the above said Work Order, all thematerial required for the above work such as, but not limitedto, machinery, tools and tackles shall be brought inside thepremises with proper document supported by appropriate gatepass.In the Schedule of Rates, Item Nos.31, 32 and 34 relateto Supply and fixing of standard steel windows, steelventilators and providing and fixing of gear operated typerolling shutters.However, it is reported that the Standard Steel Windows,Steel Ventilators and Rolling Shutters had been taken from theTNPL stock and these details were suppressed whereas on thecontrary, all these items ought to have been arranged by thecontractor himself as per terms and conditions of the WorkOrder, thereby causing a pecuniary loss of Rs.41,400/- approx.to TNPL. https://hcservices.ecourts.gov.in/hcservices/

3.Work Order Ref.No.TS/PWD/WO/434/8250 dated 26thSeptember, 1995 issued to M/s.Bricksteel Enterprises, Salemrelating to Civil and Structural Works for installation ofWagon Tippler.As per the V & Part Bill duly certified by you, for the ItemNo.80 of the Schedule of Rates, the transport excavated earthand filling in low lying areas to a distance from 1 km to 3 kmis 5059.149 cu.m. Out of total excavated earth of 6362.89cu.m.However, it is reported that approx. 2600 cu.m. Quantity ofthe excavated earth has been filled in low lying areas wellwithin 1 km i.e.Within 400 mtrs. Towards east of the workspot(light tower)2112 cu.m.Within 800 mtrs. - Railway siding 500 cu.m.thereby causing pecuniary loss of Rs.1,32,600/- approx. toTNPL.The above acts of yours are of serious nature and breach ofdiscipline under various clauses of Service Rules of theCompany applicable by you and conduct prejudicial anddetrimental to the interest of the Company.Hence, you are hereby required to show cause in writing within48 hours from the receipt of this Show cause notice as to whyappropriate disciplinary action should not be taken againstyou. If you do not submit your explanation as directed withinthe stipulated time, we will be constrained to take a decisionwith reference to the materials available on records."13.A close reading of the above Show Cause Notice would revealthat there is an allegation against the petitioner that he had usedhis authority leading to various irregularities and he had shownfavouritism to several contractors, which are of pecuniary in nature.The petitioner, in his reply dated 03.04.1997 to the said Show CauseNotice, has given a detailed explanation with regard to each andevery allegation raised by the respondent and also with regard toWork Orders dated 17.08.1996, 30.10.1995 and 26.09.1995. Thereafter,an Enquiry Officer was appointed and after holding enquiry onexamination of the witnesses, the Enquiry Officer submitted hisfindings on 30.09.1997. The relevant findings of the Enquiry Officerare extracted hereunder : https://hcservices.ecourts.gov.in/hcservices/ "The first charge relates to the work order dated17.08.1996 issued to Sri.M.Chandrakumar ofVelayudhampalayam relating to civil and structural worksfor extension of Lego/Lignite shed and store shed atMohanur Offsite. The delinquent officer certified thecompletion of work specifying the date of completion as17.11.1996. Whereas the structurals and steels werereceived at Mohanur offsite only on 24.09.1996, 22.11.1996and 23.11.1996. It is clear from the above that theMohanur Offsite work could not have been completed on17.11.1996 as stated in the work completion certificate aswell as in the final bill. In the explanation offered tothe show cause notice under Ex.M-8, the delinquent officerhas not denied that the work was not completed on17.11.1996. On the other hand, he would contend that theMohanur Offsite Manager in his report mentioned the workcompletion date as 17.11.1996 and he has certified thefinal bill after the same was certified by the concernedEngineer. The final bill was signed by the Site Engineer,the delinquent officer Thiru Ravichandran and the ChiefManager. In that bill there is a column "date ofcompletion". It was stated as 17.11.1996. There is aspecific clause under clause No.12 as "Any penaltyrecommended (a) amount (b) reason" in correspondence withthis clause while filling this application they put "-"whereas a separate entry was made as "Please note that10.347 stainless steel has been issued to the contractoron chargeable basis". This was prepared on 04.03.1997.In the summary column, there was a lot of corrections inthe figure. In the numerical figure the net value wasstated as Rs.4,04,303.23 whereas the figure was written inthe words as "Rupees Four crores five thousand threehundred and four and paise fifty eight only". This wasnot corrected by the signatories of the final bill viz.,the delinquent officer, Chief Manager as well as the SiteEngineer Mr.Shanmugam. As stated above, this final billwas prepared and signed by the delinquent officer andothers on 04.03.1997. While preparing the final bill, itis the prime duty of the signatories to physically verifywhether the work was completed or not. Even thedelinquent officer Mr.Ravichandran has issued a letter tothe contractor on 12.02.1996. In that letter, it wasspecifically stated that the work progress in Mohanuroffsite is not satisfactory and he has also furtherrecommended that the contractor is not considered for anyother civil and structural work of TNPL. The delinquentofficer stated that the final bill was certified by himafter the concerned Site Engineer certified the same. Thedelinquent officer further stated that in a week's timethe Mohanur offsite Manager sent a letter stating that by https://hcservices.ecourts.gov.in/hcservices/ oversight the date of completion was given as 17.11.1996,whereas it was 17.12.1996. Based on that, the Engineerwas advised by the employee to inform the AccountsDepartment about the above mistake. It is the evidence ofthe management representative and the witness that thedelinquent officer certified the work completion date as17.11.1996, whereas, it would not have been completed ascould be seen from the dates of receipt of the structuralsteels at the Mohanur offsite and also the communicationto the contractor. The communication as well as the otherfacts shows that the delinquent officer even withoutverifying whether the work was completed or not, certifiedthe final bills mentioning the date of completion as17.11.1996. It is not expected the Deputy Manager (Civil)to certify the date of completion of the work based on thecompletion certificate issued by the Site Engineer withoutphysically verifying the facts, that too he has issuedvarious reminders and stated that the Contractor is notdoing the contract work in proper way. The delinquentofficer ought to have visited the site and signed thefinal bill. The delinquent officer in his letter dated12.02.1996, has stated about the contractor as "Moreoverhis delegation to quality workmenship and progress isbelow the marks-standards of TNPL. We recommend thereforenot to consider the contractors for any other civil andstructural works of TNPL in future". It shows that thedelinquent officer has not acted in a manner to befavouritism of the contractor as alleged by themanagement. Further, there is no acceptable evidence orproof to show that the delinquent officer intended tocause loss or to save the contractor from payment of theliquidated damages. It is significant to point out that the managementhas not taken any care to take any action against thecontractor by mentioning the terms and conditionsenumerated in the works order issued to him. If at allthe management's allegation is true, the management oughtto have taken steps against the contractor to collectliquidated damages or to point out the irregularitiescommitted by him. The contractor was not examined as awitness in the enquiry to prove that the Officers of theTNPL have favoured him to violate the terms and conditionsof the works order. The fact that intimation regardingthe wrong date of completion was given by the offsiteEngineer which in turn was informed to the AccountsDepartment soon after would indicate the negligence on thepart of the delinquent officer in certifying thecompletion of work without physically checking up and lack https://hcservices.ecourts.gov.in/hcservices/ of intention. Hence, I find that the delinquent officeris guilty of negligence in certifying the bill indicatingthe date of completion of work as 17.11.1996. However, Ifind that no intention is proved on the part of theemployee to save the contractor from paying the liquidateddamages as stated supra.The other part of the charges relates to thepecuniary loss caused to TNPL to the tune of Rs.63,351.89due to the fact that the contractor was paid a higheramount without considering the cost of structural steelsupplied by TNPL to the contractor while as per item-15 ofschedule of rates the contractor has to arrange for thesame. Further, the contractor has to bring the materialsinside the factory with the valid pass which is not foundhere. In the explanation, the delinquent officer pleadsignorance as to whether the contractor has used thewindows, ventilators and rolling shutters but wouldcontend that the responsibility shall be fixed on theEngineers only and not on himself. Even though the SiteEngineers are responsible and knowing first handinformation about the supply of materials from the TNPL,it is the bounden duty of the Deputy Manager (Civil) toverify and supervise the works of the subordinate officer.There is no proof to show that the contractor has broughtthe windows, ventilators and rolling shutters for doingthe work by proper gate pass. However, the StockRegisters showing the stock of the above materials are notproduced before me. Thiru.Sundararajan has also admittedthat the ventilators, rolling shutters and windows werebrought from the TNPL Stock. For that, a correction wasmade as per the instruction and direction of thedelinquent officer Ravichandran as well as the ChiefManager Mr.Chidambaranathan. The Deputy Manager post is aresponsible post in that department. If he is notdiligent in his work it is not possible to control andsupervise the subordinate officers. The explanationoffered by the delinquent officer cannot be accepted forthe simple reason that his post as Deputy Manager is arespectable post and having the duties andresponsibilities to supervise the subordinates and bringto the management. During the course of cross-examinationthe delinquent officer admittednfs;tp -irl; ,d;$pdpah; gzpfis nkw;ghh;it bra;tJc';fs; bghWg;g[ jhnd> gjpy;-Mkhk; https://hcservices.ecourts.gov.in/hcservices/ This shows that he is the person responsible to supervisethe work of the Site Engineer, whereas the delinquentofficer Mr.Ravichandran contended that 100% responsibilitylies with the Site Engineer. Since he was working as aDeputy Manager, Departmental Head, as admitted by him, itis his prime duty to supervise the work of the SiteEngineers. He ought to have verified the works then andthere to avoid any irregularity to be committed by thesupervisors as well as the contractors. But,Thiru.Ravichandran fails to do so. The work of Deputy Manager Thiru Ravichandranincludes supervision of the Site Engineer's work as wellto check the materials brought by the contractors. Thepurpose of certifying the bills submitted by thecontractors shows that he is recommending to themanagement to make payment and the particulars given inthe bills are true and correct. The very fact that evenfor the Mohanur offsite final bill there are variouscorrections made and the numerical figure written in wordswere lot of discrepancies. All the bills were submittedafter making number of corrections by the authorities andsigned in the same. While he certified the bill of thecontractor he cannot shift the liability towards the SiteEngineer on the simple reason that the Site Engineer is100% responsible to supervise the work. As rightlyadmitted by him, he ought to have verified the work doneby the contractor and also verified the work orders issuedto the particular contractors. If this was done by ThiruRavichandran the irregularities mentioned in the chargememo would not be happened. Even though the managementfails to prove that they have issued notice to thecontractors and, Thiru Ravichandran has shown favouritismto the contractor for getting some monetary benefit orother benefit, in the absence of any proof that thedelinquent officer was benefited by the contractor in anymanner, the allegation of favouritism and misuse theposition does not arise at all. The allegation offavouritism and the alleged intentional act of the DeputyManager was not proved by adducing any evidence much lesssome evidence as required under the principles of naturaljustice by the management. Regarding the work pertaining to BricksteelEnterprises, the explanation offered by the delinquentofficer is that the same was done in a proper mannerwithout any malafide intention to save the TNPL. Howeverthe same was disputed by the management. He has alsoaccepted that it is his bounden duty to make random https://hcservices.ecourts.gov.in/hcservices/ checking and also by the Chief Manager and GeneralManager. The explanation to facilitate for backbillingcannot be accepted in view of the fact that there is aviolation committed by the contractor against the termsand conditions stipulated in the work order as seen fromEx.M-4 file. The delinquent officer acted in a mannernegligently without any malafide intention or dishonestintention. The evidence adduced on both sides shows thatthe Deputy Manager has not acted in a manner wilfully orknowingly to cause any loss to the management or to do anyfavouritism to the contractor.From the evidence of both sides as well as thedocuments marked before me, it is clear that they areindisputable. Everyone of the officers in the Civilsection is responsible for any civil work done by thecontractors. The bills as well as the P.R. were signed bythe Chief Manager as well as the General Manager of theparticular department. As stated earlier, the charge offavouritism and thereby caused pecuniary loss to themanagement is not established. In the nature of evidencelet in by the management before me, it is not safe to cometo a definite conclusion that it was the delinquentofficer who alone was responsible for the pecuniary loss.The management should make out a case by letting someevidence at least enough in the case of domestic enquiry.But, in this case, in respect of charge of favouritism andknowingly acted to cause loss to the management, there isno evidence adduced by the management. As stated above, the charge of favouritism towardsthe contractor by the delinquent officer knowingly andintentionally is not proved by the management. However,the charge of negligence of his duties and negligentlycaused loss to the management as per the Service Rules ofthe Company at page 33 is proved. I give my findingsaccordingly." 14.From the findings arrived at by the Enquiry Officer, it isclear that indisputably everyone of the Officers in the Civil Sectionare responsible for the civil work done by the contractors. Thebills as well as the P.R. were signed by the Chief Manager as well asby the General Manager of the particular department. Therefore, thecharge of favouritism, which thereby caused pecuniary loss to theManagement is not established. It is also concluded that in thenature of evidence let in by the Management before the EnquiryOfficer, it is not safe to come to a definite conclusion that thedelinquent officer alone was responsible for the pecuniary loss tothe Management. The management should make out a case by letting insome evidence at least enough in the case of domestic enquiry. But, https://hcservices.ecourts.gov.in/hcservices/ in this case, in respect of charge of favouritism and knowingly actedto cause loss to the management, there is no evidence adduced by themanagement. However, the Enquiry Officer, after finding all theallegations contained in the show cause notice not established, wenton to hold that the charge of negligence of duty as proved; but,such allegation against the petitioner is not contained in the showcause notice. Therefore, it is clear that the Enquiry Officer hastraversed beyond the scope of the show cause notice; the allegationscontained therein and the findings of the Enquiry Officer to theeffect of holding that the petitioner was negligent in performing hisduty cannot be sustained. A careful analysis of the show causenotice would show that there is no allegation of negligence of dutyagainst the petitioner and in the absence of any such allegation inthe show cause notice, it is not proper for the Enquiry Officer to gobeyond the scope of the enquiry proceedings and to that extent, thefindings of the Enquiry Officer are not proper. As such, the ShowCause Notice issued by the Disciplinary Authority cannot be construedas a charge memo. 15.The next question raised by the petitioner is that theGeneral Manager (HRD) is neither the Disciplinary Authority nor thecompetent authority. The petitioner was working as a Deputy Manager(Civil) and he was appointed by the respondent Company signed by theDirector (Purchase and Plant) Operations. However, the show causenotice has been issued by the Director (Operations). The enquiryfindings furnished to the petitioner on 13.12.1997 was signed by theGeneral Manager, HRD. In the said letter, it is stated that "we havegone through the enquiry proceedings and find that you had been givendue opportunity to vindicate your innocence. We have also perusedthe findings of the Enquiry Officer and we agree that the abovereferred charges had been proved apart from the charges specifiedunder Rule 68 n(1) of the Service Rules of the Company. We considerthat the misconduct committed by you is of serious and grave innature and hence we are prima facie of the view that you should bevisited with appropriate punishment. Hence, you are hereby requiredto submit your explanation, if any, in writing within 7 days as towhy appropriate punishment should not be imposed. ..."15a.From the perusal of the records, it is revealed that thesaid General Manager (HRD) is not the appointing authority nor thedisciplinary authority, since the show cause notice has been issuedby the Director (Operations). Therefore, there is infirmity in theproceedings initiated; however, in the absence of the disciplinaryauthority being a party to the proceedings, this court is notinclined to dwell into that aspect of the matter.16.Thirdly, it is the strong contention of the petitioner thatthe allotment of civil work to contractors is a collective decision;therefore, he alone cannot be pointed out with regard to theallegation of irregularities and favouritism to contractors. In this https://hcservices.ecourts.gov.in/hcservices/ regard, it is seen from the findings of the Enquiry Officer thateveryone of the officers in the Civil section is responsible for anycivil work done by the contractors; the Bills as well as the P.R.were signed by the Chief Manager as well as the General Manager ofthe particular department. Therefore, the charge of favouritism andthe pecuniary loss caused to the Management is not established. Thealleged irregularities and favouritism is attributed by thepetitioner that he is in no way connected to any of the Bills or theNotes and it could be a collective decision of the Chief Manager andthe General Manager of the Civil Section.16a.If such be the position, when the finding of the EnquiryOfficer is so, that everyone of the Officers in the Civil Section isresponsible for any civil work done by the contractors, it is wellestablished proposition of law that this court cannot sit as anappellate authority over the domestic enquiry; however, the EnquiryOfficer has given a cogent reasoning that a collective decision istaken by the officers in the Civil Section with regard to any civilwork done by the contractors. Therefore, the petitioner cannot bemade as a scapegoat for the collective decision and this aspect ofthe matter was lost sight by the appellate authority while confirmingthe order of the disciplinary authority. Therefore, the order of theappellate authority suffers from legal infirmity. The above legalposition is supported by the decision of the Supreme Court in thecase of Bongaigon Refinery.17.The next contention of the petitioner is that the order ofthe appellate authority appears to be that the petitioner, instead ofexercising control over the work of junior officers has shown the wayfor committing irregularities. A serious view will have to be takenon the negligence pointed out by the enquiry officer in this case andthat the enquiry officer has established the guilt in respect ofcharges 3 and 4 and the TNPL would have to take note of this as agross violation by a person who was in a position to exercise propermoral authority over junior officers. Therefore, the appellateauthority cannot pass an order on the submission made by one person,who has never deposed in the enquiry as a witness. The appellateauthority, in case, if he differs from the findings, shall explainthe reason for the same and after giving an opportunity of hearing tothe delinquent officer, shall pass the order. In this case, theorder of the appellate authority lacks application of mind.17a.The appellate authority, in his order has observed that, inTNPL, all machinery and tools shall be brought inside the premiseswith proper documents supported by appropriate gate pass. To thisextent, the evidence of Thiru. R.Sundararajan leads considerabledoubt about the activities of Thiru C.Ravichandran. The evidence canonly be circumstantial in this case at this distance of time as towhether TNPL materials were indeed used. The appellate authority hasalso observed that under the direction of Thiru. C.Ravichandran this https://hcservices.ecourts.gov.in/hcservices/ billing was undertaken and that without his involvementcountermanding Thiru Sundararajan the excess billing could not havehappened. Therefore, when the deposition of Thiru Sundarajan hasbeen relied on by the appellate authority, the petitioner hereinought to have been given an opportunity of hearing before taking intoconsideration the deposition of Thiru Sundararajan for arriving at aconclusion. In this regard, the order of the appellate authority isalso vitiated by improper consideration.18.The last question raised by the petitioner is that when theallegation levelled against the petitioner in the show cause noticeis not proved and as the Enquiry Officer has traversed beyond thescope of show cause notice, in the absence of any specific chargememo and imputation of misconduct of the charges, the punishmentimposed by the original authority, which has been confirmed by theappellate authority is found to be disproportionate to the chargeslevelled against him. This aspect of the matter as regards theoriginal authority, who is not a party before this court cannot belooked into. Though the appellate authority, who is competent andempowered to look into each and every aspect of the order of thedisciplinary authority and assign every reason for the conclusion ofthe order of dismissal, it appears that the punishment of dismissalfrom service imposed on the petitioner for the allegations ofirregularities and favouritism is not established and the findings ofthe Enquiry Officer regarding the charge of negligence has not beenlooked into by the appellate authority, when the order of theoriginal authority was taken on appeal. 19.In this case, the disciplinary authority has the exclusivedomain on the jurisdiction of the facts. Where an appeal ispresented, it is the duty of the appellate authority having co-extensive power to re-appreciate the evidence or the nature ofpunishment. In a disciplinary inquiry, the strict proof of legalevidence and findings on that evidence are not relevant. Adequacy ofevidence or reliability of evidence cannot be permitted to becanvassed before the court. However, if the conclusion, uponconsideration of the evidence reached by the disciplinary authorityor the appellate authority is perverse or suffers from patent erroron the face of the record or based on no evidence at all, this courtcan look into the matter. 20.Upon perusing the entire materials and the order impugnedin this writ petition, I am of the considered opinion that the orderof the appellate authority suffers from legal infirmity. Thepetitioner has miserably failed to challenge the order of dismissalpassed by the disciplinary authority. In such peculiarcircumstances, this court is only constrained to direct the appellateauthority to re-look into the matter and pass appropriate orderstaking into account all the procedures and rules. Accordingly, theorder of the appellate authority impugned in this writ petition is https://hcservices.ecourts.gov.in/hcservices/ set aside remanding the matter to the appellate authority, viz, therespondent herein to re-look into the entire issue and passappropriate orders within a period of twelve (12) weeks from the dateof receipt of a copy of this order. This writ petition is allowed with the above direction. Nocosts. abe Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo :The Chairman and Managing Director,Tamil Nadu Newsprint and Papers Ltd.,No.35, Anna Salai,Guindy, Chennai 600 032.+ 1 cc to Mr. R. Subramanian, Advocate SR.64280+ 1 cc to M.R. Raghavan, Advocate SR.64273W.P.No.280 of 1999 LA(CO)Eu 10.12.2009.