R.Jayabalan v. The Chairman, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.03.2009CORAM:THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR.JUSTICE K.K.SASIDHARANWrit Appeal No.1496/2007R.Jayabalan ..Appellant/PetitionerVs.1.The Chairman, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-2.2.The Chief Engineer (Personnel) Tamil Nadu Electricity Board, Administration Branch, 8th Floor, 800, Anna Salai, Chennai-2.3.The Chief Engineer (Distribution) Vellore-6. ..Respondents/RespondentsAppeal filed against the order passed by this Court dated31.08.2004 passed in W.P.No.20809/2000 this W.P. filed under Article226 of the Constitution of India, praying to issue 'writ ofcertiorarified mandamus' calling for the proceedings of the 3rdrespondent made in letter No.13448/Adm/B2/2000 dated 11.07.2000 andquash the said proceedings of the 3rd respondent dated 11.07.2000 andconsequently direct the respondents to regularise the services of thepetitioner from 15.03.1985 till 28.03.1998 with all attendantbenefits such as seniority increment, continuance of service,promotion, etc.For Appellant : Mr.A.Jena SenanFor Respondents : Mr.B.Sekar, for T.N.E.B.J U D G M E N TK.K.SASIDHARAN, J.This writ appeal is directed against the order passed by thelearned Single Judge dated 31.08.2004 in W.P.No.20809/2000 wherebyand where under the challenge to the order of the third respondent https://hcservices.ecourts.gov.in/hcservices/ regularizing the period between the date of suspension and the dateof dismissal of the appellant from service was negatived.Background facts :-2.The petitioner was appointed as Assistant Engineer in theTamil Nadu Electricity Board and later he was promoted as AssistantDivisional Engineer. While so, he was issued with a charge memoduring March, 1985 and he was also placed under suspension on15.03.1985. The charges related to irregularity in granting on lineservice connection as well as unauthorised absence. Subsequently, onthe basis of the enquiry report, the appellant was dismissed fromservice as per order dated 29.01.1987. The said order was challengedin W.P.No.3594/1987 and this Court as per order dated 17.6.1991quashed the order of dismissal on the ground that the proceeding wasin violation of the principles of natural justice, as the report ofEnquiry was not given to the appellant. Subsequently, the appellantwas informed by the respondents that he is deemed to have been undercontinuous suspension w.e.f. 29.01.1987 on which date, he wasdismissed from service. The request made by the appellant toreinstate him in service in view of the order passed inW.P.No.3594/1987 was not considered by the respondents. Finally, theappellant was reinstated in service as per proceedings dated04.02.1993 and he was posted as Assistant Executive Engineer atKadambari.3.In the meantime, fresh set of charges were issued andultimately, on the basis of the Enquiry Report, appellant wascompulsorily retired as per order dated 10.03.1998. Since the Reviewpetition filed by the appellant was rejected, he filedW.P.No.14524/1999 challenging the order in the Review petition aswell as the order of compulsory retirement. Subsequently, as perorder dated 11.07.2000, period between the date of suspension anddismissal, viz., 15.03.1985 to 09.02.1993 was regularised by thethird Respondent as Earned Leave from 15.03.1985 to 17.06.1985 andthe remaining period was treated as leave on loss of pay [18.06.1985to 09.02.1993]. The said order was challenged by the appellant inW.P.No.20809/2000.4.The respondents filed their counter affidavit justifying theorder dated 11.07.2000 and by contending that the appellant was notfully exonerated from the charges and as such, the Board was entitledto pass suitable orders for regularizing the period of absence.Disposal of the Writ Petition :-5.The Writ Petition filed by the appellant challenging theorder of compulsory retirement in W.P.No.14524/1999 as well asW.P.No.20809/2000 challenging the impugned Order dated 11.07.2000regularizing the period between the date of suspension were taken up https://hcservices.ecourts.gov.in/hcservices/ together and the learned Single Judge was of the opinion that thefirst respondent Board had completely accepted the report of theenquiry officer without application of mind and as such, the order ofcompulsory retirement dated 10.03.1998 was vitiated. According to thelearned Single Judge, the subsequent order in the review petition wasequally vitiated as the said proceeding dated 16.07.1999 does notindicate any reason even though the review petition was on the basisof a specific regulation. In the said circumstances, the learnedJudge was of the opinion that on account of non consideration ofrelevant materials, the order imposing punishment of compulsoryretirement cannot be sustained. Accordingly, the learned Single Judgequashed the order of punishment of compulsory retirement and grantedthe following relief :-"19.Having regard to all these aspects, Ifeel interest of justice would be served byquashing the order of punishment of compulsoryretirement and directing that the petitionershall be deemed to have been reinstated inservice. It is further directed that a punishmentof with-holding of promotion for a period of oneyear in 1998 is to be imposed. However, since thepetitioner had not actually worked and thedepartmental proceedings cannot be said to befully without justification, it is not proper toreward the petitioner with backwages. Thepetitioner shall be deemed to have continued inservice until his normal date of retirement. Theincrements for the extended period would benotionally calculated. The case of thepetitioner shall also be considered for notionalpromotion for the year 1999 and thereafter shallalso be considered. The pension and otherretiral benefits are to be recalculated on thebasis of such notional increments and notionalpromotion, if any, and paid to the petitioner.Such direction should be implemented within aperiod of four months from the date of receipt ofthe order."6.The learned Single Judge was also of the opinion that theorder passed by the third Respondent dated 11.07.2000 regularizingthe period of suspension prior to the order of dismissal wasperfectly correct in the circumstances of the case and as such, nointerference was called for in the said order. It is the said orderwhich is impugned in the present appeal. https://hcservices.ecourts.gov.in/hcservices/ Submissions :-7.The learned Counsel for the appellant submitted that the orderdated 31.08.2004 in W.P.No.14524/1999 has become final and as such,the issue regarding the order of compulsory retirement no moresurvives for consideration. According to the learned Counsel, theappellant was ready and willing to do work at all point of time, andit was only on account of non-issuance of posting orders that he wasnot in a position to work for the period from 15.03.1985 to09.02.1993 and as such, the respondents should have regularised thesaid period by granting monetary benefits and also by calculating thesaid period of service for the purpose of granting pensionarybenefits. The learned Counsel further contended that immediatelyafter the reinstatement of the appellant in service he made series ofrepresentations to regularise his period of suspension, but, however,no orders were passed by the respondents till 10.03.1998 and as such,the appellant is entitled to get the benefits for the period inquestion.8.The learned Counsel for the respondents while supporting theorder passed by the learned Single Judge contended that the appellantwas not fully exonerated and as such, he was not entitled to therelief of regularization of the period of absence from duty.Analysis :-9.It is found from the material documents available on recordthat disciplinary proceedings against the appellant commenced in theyear 1985 and there were series of proceedings which resulted inquashing the charge sheet issued by the respondents and the same wasfollowed by fresh charge-sheet as well as enquiry. It was thegrievance of the appellant that though he was willing to work always,he was prevented by the respondents from joining duty and as such,the relevant period has to be treated as spent on duty and as such,he is entitled to all the terminal benefits attached therewith. 10.It is evident from the facts of the case that during themajor part of the service, the appellant was engaged in litigation.Even though the ultimate order of compulsory retirement imposed onthe appellant was quashed by the learned Judge as per order dated31.08.2004 in W.P.No.14524/1999, he was not exonerated fully. Thelearned Judge in the peculiar circumstances of the case was of theopinion that interest of justice would be sub-served by quashing theorder of punishment of compulsory retirement and imposing thepunishment of with-holding of promotion for a period of one year in1998. The learned Single Judge opined that some of the findings bythe Enquiry Officer can be said to be on the basis of the explanationof the petitioner himself and therefore, it was not a case as if thepetitioner would be fully exonerated even if the matter was remanded. https://hcservices.ecourts.gov.in/hcservices/ Relevant service regulation :-10.Electricity Board regulations regarding pay and allowances tobe paid to the employee for the period of his absence from dutyincluding the period of suspension proceeding his dismissal readsthus :-"57(1) When an employee, who has beendismissed, removed or compulsorily retired, isreinstated as a result of appeal or review orwould have been so re-instated (but for hisretirement on superannuation while undersuspension or not), the authority competent toorder the reinstatement shall consider and made aspecific order.(a)regarding the pay and allowances to bepaid to the employee for the period of hisabsence from duty (including the period ofsuspension preceding his dismissal removal orcompulsory retirement, as the case may be) and(b)whether or not the said period shall betreated as a period spent on duty.(2)Where the authority competent to Orderreinstatement is of the opinion that the employeewho had been dismissed, removed or compulsorilyretired has been fully exonerated, the employeeshall, subject to the provisions, of sub-regulation (6), be paid the full pay andallowance to which he would have been entitled,had he not been dismissed, removed orcompulsorily retired or suspended prior to suchdismissal, removal or compulsory retirement asthe case may be.Provided that where such authority is of theopinion that the termination of the proceedingsinstituted against the employee had been delayeddue to reasons directly attributable to theemployee, it may, after giving him an opportunityto make his representation within sixty days fromthe date on which the communication in thisregard is served on him, and after consideringthe representation, if any, submitted to hi,direct, for reasons to be recorded in writingthat the employee shall, subject to theprovisions of sub-regulation (7), be paid for theperiod of such delay, only such amount (not being https://hcservices.ecourts.gov.in/hcservices/ the whole), of such pay and allowances as it maydetermine.(3)In a case falling under sub-regulation(2) the period of absence from duty including theperiod of suspension preceding dismissal, removalor compulsory retirement, as the case may be,shall be treated as a period spent on duty forall purposes.(4)In cases other than those covered by sub-regulation (2) (including cases where the orderof dismissal, removal or compulsory retirementfrom service is set aside by the appellate orreviewing authority solely on the ground of non-compliance with the requirements of theprovisions of regulation 8(b) of the Tamil NaduElectricity Board Employees' Discipline andAppeal Regulations, and no further enquiry isproposed to be held) the employee shall, subjectto the provisions of sub-regulation (6) and (7),be paid such amount (not being the whole) of thepay and allowance to which he would have beenentitled, had he not been dismissed, removed orcompulsorily retired or suspended prior to suchdismissal, removal or compulsory retirement, asthe case may be, as the competent authority maydetermine after giving notice to the employee ofthe quantum proposed and after considering therepresentation, if any, submitted by him in thatconnection within such period which in no caseshall exceed sixty days from the date on whichthe notice has been served or as may be specifiedin the notice.Provided that any payment under this sub-regulation to an employee shall be restricted toa period of three years immediately preceding thedate on which orders for reinstatement of suchemployee are passed by the Appellate Authority orreviewing authority or immediately preceding thedate of retirement on superannuation of suchemployee, as the case may be.(5)In a case falling under sub-regulation(4) the period of absence from duty including theperiod of suspension preceding his dismissal,removal or compulsory retirement, as the case maybe, shall not be treated as a period spent onduty, unless the competent authority specifically https://hcservices.ecourts.gov.in/hcservices/ directs that it shall be so treated for anyspecified purpose.Provided that if the employee so desires,such authority may direct that the period ofabsence from duty including the period ofsuspension preceding his dismissal, removal orcompulsory retirement, as the case may be, shallbe converted into leave of any kind due andadmissible to the employee.ExplanationThe order of the competent authority underthe preceding proviso shall be absolute.(6)The payment of allowances under Sub-Regulation (2) or under sub-regulation (4) shallbe subject to all other conditions under whichsuch allowances are admissible.(7)The amount determined under the provisoto Sub-Regulation (2) or under sub-regulation (4)shall not be less than the subsistence allowanceand other allowances admissible under Regulation56.(8)Any payment made under this regulation toan employee on his re-instatement shall besubject to adjustment of the amount, if any,earned by him through an employment during theperiod between the date of removal, dismissal, orcompulsory retirement, as the case may be, andthe date of reinstatement. Where the emolumentsadmissible under this Regulation are equal to orless than the amounts earned during theemployment elsewhere, nothing shall be paid tothe employee.57-A. (1)Where the dismissal, removal orcompulsory retirement of an employee is set asideby a Court of Law and such employee is reinstatedwithout holding any further inquiry, the periodof absence from duty shall be regularized and theemployee shall be paid pay and allowances inaccordance with the provisions of sub-regulation(2) or (3) subject to the direction, if any, ofthe Court.(2)(i)Where the dismissal, removal or compulsoryretirement of an employee is set aside by the https://hcservices.ecourts.gov.in/hcservices/ Court solely on the ground of non-compliance withthe requirements of the provisions in Regulation8(b) of Tamil Nadu Electricity Board Employee'sDiscipline and Appeal Regulations, and where heis not exonerated on merits, the employee shall,subject to the provisions of sub-regulation (7)of Regulation 57, be paid such amount (not beingthe whole) of the pay and allowance to which hewould have been entitled had he not beendismissed, removed or compulsorily retired orsuspended prior to such dismissal, removal orcompulsory retirement, as the case may be, as thecompetent authority may determine, after givingnotice to the employee of the quantum proposedand after considering the representation, if any,submitted by him, in that connection within suchperiod which in no case shall exceed sixty daysfrom the date on which the notice has been servedor as may be specified in the notice."11.The appellant appears to claim monetary benefits for theperiod from 15.03.1985 to 09.02.1993 on the ground that punishment ofcompulsory retirement was set aside by the learned Single Judge. Itis true that clause 57A of the regulations would come into operationin the event of quashing the punishment of dismissal, removal orcompulsory retirement without holding any further enquiry. However inthe present case, the appellant was not fully exonerated and thelearned Single Judge quashed the punishment of compulsory retirementon account of delay in finalizing the disciplinary proceedings,mental agony caused to the appellant and the denial of promotion dueto the pendency of the disciplinary proceedings. The learned Judgewas also of the opinion that the proceedings should be given afinality without remitting the matter to the authorities.12.The observation of the learned Single Judge clearly showsthat the appellant was not absolved of all the charges and therelevant portion reads thus :-"17.Keeping in view the aforesaid principlesof law and the various peculiar facts andcircumstances of the present case and with aview to bring an end to further litigations andwranglings, I intend to decide the matter finallyby adopting a path of “balancing of the scales ofjustice”. 18.Admittedly, the petitioner has reachedthe age of superannuation sometime during theyear 2003, while the matter was pending in theHigh Court, and therefore, even if the https://hcservices.ecourts.gov.in/hcservices/ disciplinary proceedings is fully quashed, hecannot be reinstated in service at present. Asper the order passed by the Board, the petitionerwas compulsorily retired in March, 1998 entitlinghim to receive the retirement benefits. Thedisciplinary proceedings related to incidentsprior to 1985, and at present, third round oflitigation is in the High Court. As alreadyindicated, even though there was no illegality instarting a fresh proceedings in 1992, thedisciplinary proceedings had unnecessarilyremained pending without any valid justificationfor a period of about 6 years from 1992 to 1998,obviously causing much mental agony to thepetitioner. The Board has already directed thatthe period between 15.3.1985 and 9.2.1993 shallbe treated as leave on loss of pay except for aperiod of about 95 days, which was treated asearned leave. It is obvious that because of thependency of the disciplinary proceedings, thepetitioner has stagnated as Assistant ExecutiveEngineer, even though his contemporary colleaguesmust have received at least two promotionsthereafter. In the charges made against thepetitioner, there is no allegation of anyimproper motive or any corruption, but theallegations relate to irregularities and lack ofsupervision, etc., not touching upon theintegrity of the petitioner in any manner. Someof the findings by the enquiry officer can besaid to be on the basis of the explanation of thepetitioner himself, and therefore, it is not acase as if the petitioner would be fullyexonerated even if the matter is remanded." 13.Since the learned Judge has observed that even if the matterwas remitted to the Department for fresh consideration, there wouldbe no chance of exonerating the appellant of all charges, as some ofthe findings were recorded only on the basis of the explanationsubmitted by the appellant himself, we are of the view that theappellant is not eligible for back wages. The appellant has notworked during the period made mentioned in the order dated 11.07.2000and he was not absolved of all the charges. The factum of closure ofthe disciplinary proceeding by setting aside the punishment withoutremitting the matter for fresh enquiry will not give a right to theappellant to claim backwages.14.The Hon'ble Supreme Court in Lajpat Rai Mehta v. Secretary toGovernment of Punjab, Department of Irrigation & Power, Chandigarh,2009 (1) Scale 76 opined that while adjusting equities, Court is https://hcservices.ecourts.gov.in/hcservices/ entitled to see the conduct of the parties and further observedthus :-"The Court while exercising itsdiscretionary jurisdiction is entitled to see theconduct of the parties so as to enable it toadjust equities. It is also the duty of the Courtto see that the public exchequer should notunnecessarily be depleted despite the fact thatthe State has failed and/or neglected to initiatedisciplinary proceeding against the appellant".15.The learned Single Judge while balancing the scales ofjustice was of the opinion that the appellant was not entitled toback wages and passed an equitable order to grant notional promotionand notional increment and to calculate the pension and otherretirement benefits on the basis of such notionalpromotion/increments. We are informed that the appellant is receivingpension computed on such basis.16.As rightly observed by the learned Single Judge, theappellant was denied promotion on account of the pendency of thedisciplinary proceedings indefinitely. The respondents have no casethat the appellant was involved in any act of corruption or anythingtouching upon his integrity. In such circumstances, we are of theopinion that the respondents were not justified in not regularizingthe period from 18.06.1985 to 09.02.1993 by treating the said periodas leave on loss of pay. On a careful consideration of the entirematter, we feel that interest of justice would be sub served byregularizing the period from 15.03.1985 to 09.02.1993 givingincrements notionally solely for the purpose of calculating pension.17.Accordingly, the order dated 11.07.2000 on the file of thethird Respondent is set aside. The respondents are directed tocalculate the increment for the period from 15.03.1985 to 09.02.1993notionally and re-fix the pension of the appellant by taking intoaccount such increments. It is made clear that the grant of notionalincrement is only for the purpose of pensionary benefits and that tooprospectively with effect from 01.04.2009 and as such, the appellantis not entitled for arrears of pension consequent to such re-fixation. Similarly, the appellant is not entitled to the back wagesfor the said period.18.The writ appeal is allowed to the extent indicated above. Nocosts.sd/-Asst.Registrar/true copy/tarSub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Chairman, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-2.2.The Chief Engineer (Personnel), Tamil Nadu Electricity Board, Administration Branch, 8th Floor, 800, Anna Salai, Chennai-2.3.The Chief Engineer (Distribution) Vellore-6. Judgment inWrit Appeal No.1496/2007CK (CO)GSK 05.03.2009.