J.Kuppuswamy v. Tamil Nadu Electricity Board, represented by its Chairman, 800, Anna Salai, Chennai-600 002

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 19-10-2009CORAMTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT PETITION No.10964 OF 2000J.Kuppuswamy...Petitioner-vs-1.Tamil Nadu Electricity Board, represented by its Chairman, 800, Anna Salai, Chennai-600 002.

The Chairman, Tamil Nadu Electricity Board, M.P.K.R.R.Maligai, 800, Anna Salai, Chennai-600 002....RespondentsPetition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorarified mandamus, to callfor the records relating to the orders passed by the respondents in(Permanent) B.P.(CH) No.212, dated 23.08.1999 and the consequentialorder passed in Memorandum No.79295/A5/A51/99-1, dated 10.12.1999,quash the same and to further direct the first respondent to refundthe pension amount already recovered to the petitioner with interestat the rate of 18% per annum till realisation. For petitioner : Mr.G.SundaramFor respondents : Mr.M.VaithyanathanO R D E RThe orders of the respondents in (Permanent) B.P.(CH)No.212, dated 23.08.1999 and the consequential order passed in Memorandum No.79295/A5/A51/99-1, dated 10.12.1999, are underchallenge in this Writ Petition.2.

To the above charges, the petitioner submitted hisexplanation on 21.02.1998, denying the charges and further explainingthat he was not responsible for the reduction of quantity ofprocurement. He had explained in his explanation dated 21.02.1998and subsequent clarifications that a team of officers was responsiblefor decision making and the ultimate approving authority was the C.E.(MM). In spite of the said reply, the Chief Engineer (Protection &Communication) was appointed as the Enquiry Officer by Board's MemoNo.16/DDI/98-6, dated 28.02.1998, and the Enquiry Officer conductedenquiry on 25.04.1998, 27.04.1998, 04.05.1998 and 10.06.1998. Duringthe enquiry, the petitioner had raised two objections viz., copy ofpreliminary enquiry report was not furnished and that the C.E.(MM)was not examined as a witness.

The Enquiry Officer submitted his findings on 27.07.1998and a copy of the same was served on the petitioner on 29.01.1999.The Enquiry Officer has held that Charge No.1 was proved and Charges2 and 3 were not proved. But, the second respondent, in his Memodated 29.01.1999, has proposed to hold that all the charges are heldto be proved and called for explanation of the petitioner. Thereafter, the petitioner submitted several representations, requesting for relieving him from the charges. In spite of the same, the second respondent, by his memorandum N.16/D1-98-20, dated17.07.1999, proposed to reduce a sum of Rs.200/- per month from thepension of the petitioner for a period of one year, which wasconfirmed by the first respondent in its final order, dated23.08.1999. The petitioner sent another representation dated21.10.1999 requesting the first respondent to consider hisrepresentation and exonerate him from the proposed penalty. In reply https://hcservices.ecourts.gov.in/hcservices/ to the said representation, the first respondent issued thememorandum No.79295,A5/A51/99-1, dated 10.12.1999, to the petitioner, informing him that his appeal dated 21.10.1999 was withheld as perRegulation 18 (iii) of the Tamil Nadu Electricity Board Employees'(Discipline and Appeal) Regulations (in short, "the Regulations").Hence, this Writ Petition.

A counter has been filed by the respondents, stating asfollows :5.1. The petitioner, while he was working as SuperintendingEngineer, Material Management-I, committed certain irregularities andhence a charge memo was issued on 12.02.1998. Pending disciplinaryproceedings, he was allowed to retire from service on 28.02.1998 onattaining the age of superannuation. However, disciplinaryproceedings were continued under Rule 9 (1) of the Tamil Nadu PensionRules, which was made applicable to the employees of the Board. Thepetitioner submitted his written statement of defence on 21.02.1998,denying all the charges framed against him and opted for both oralenquiry and hearing in person. The petitioner was sanctionedprovisional pension and 50% of Death-cum-Retirement Gratuity. 5.2. The first respondent, in his Memo.dated 28.02.1998,appointed the Chief Engineer, Protection and Communication, Chennaias the Enquiry Officer to enquire into the charges framed against thepetitioner.

23.08.1999, the petitioner preferred an appeal to the Board on21.10.1999. Since the petitioner had not filed the appeal within theprescribed time of one month and as the appeal was belated, hisappeal was withheld by the first respondent under Rule 18 (iii) ofthe Regulations. Therefore, this Writ Petition is liable to bedismissed.

Learned counsel for the petitioner has strenuouslycontended that the petitioner had an unblemished record for the last33 years of his service and not even a memo was received by him norwas any disciplinary action taken; that being so, just before 16 daysof his retirement in February,1998, a charge memo was issued on12.02.1998, for no fault of him; his appeal was not considered; therewas no indication in the order of the disciplinary authority passedby the Chairman that an appeal would lie within 30 days and it gavean impression that the order was passed by the Board, though signedby the Chairman, and, accordingly, the petitioner preferred a reviewpetition on 21.10.1999 as against the order passed on 23.08.1999within a period of 60 days, but the same was withheld by therespondents and, therefore, non-consideration of the review petitionwould vitiate the entire proceedings.

The learned counsel would further contend that only atthe instance and oral instructions of the Chief Engineer, thepetitioner reduced the quantity of stay wires and put up the note tohim for orders, as he had informed him that only for increasing thequantity, Board's approval was required as per the regulations andnot for the reduced quantity and the said oral instruction had beensupported by the defence witness Mr.V.Rathnam, Assistant ExecutiveEngineer, who deposed consistently about the various oralinstructions given by the Chief Engineer and the procedure adopted bythe Material Management Wing while finalising the tenders but thesame were not taken into account by the Enquiry Officer as well asthe disciplinary authority.

Lastly, the learned counsel would contend that theofficers below will prepare the tender note and, thereafter, thepetitioner will finalise the note and submit the same to the ChiefEngineer, who is the higher authority, for approval and, as such, itis the collective decision, for which the petitioner alone has beensingled out and he became the scapegoat for the entire transactionsand hence there is a discrimination. In support of his contention, the learned counsel relied upon a decision of the Supreme Court in Bongaigaon Refinery & Petrochemicals Ltd. v. Girish Chandra Sarma,(2007) 7 SCC 206, wherein it has been held as follows : "21. So far as the legal proposition ascontended by the learned Additional SolicitorGeneral with regard to appreciation of evidence https://hcservices.ecourts.gov.in/hcservices/ is concerned, there is no quarrel that the courtscannot sit as appellate authority over thedomestic enquiries but in the present case whatappears to us is that the respondent has become ascapegoat in order to make someone responsiblefor no fault of his.

The above contentions have been controverted to by thelearned counsel for the respondents, contending that the petitionerwas given an opportunity to give his explanation to the charges and, on 21.02.1998, he submitted his explanation, asserting that he hadmaintained absolute integrity; the Enquiry Officer, after a detailedanalysis of the documents and the records, found that the petitionerwas guilty of the first charge and exonerated the petitioner from thecharges 2 and 3 and that the manner of enquiry cannot be questionedon the grounds of non-furnishing with the documents requested by thepetitioner and non-examination of the Chief Engineer, who accordingto the petitioner, was responsible. The learned counsel alsocontended that the petitioner filed an appeal on 21.10.1999 and, asthe said filing was not in time, the appeal was withheld. According https://hcservices.ecourts.gov.in/hcservices/ to the learned counsel, Regulation 14 is inapplicable to the case ofthe petitioner, as it would deal with the review of the orders passedby the Board, and hence, the appeal was belated.

I have heard the learned counsel for the parties andalso gone through the material documents and the reliance made by thelearned counsel for the petitioner.

It is to be seen that the petitioner had joined as Assistant Engineer on 21.06.1964; he was promoted as AssistantExecutive Engineer in the year 1970; then as Executive Engineer inthe year 1986 and later as Superintending Engineer in the year 1997and he was in the said post with an unblemished record of servicetill the date of his retirement. He retired on 28.02.1998, after 33years of service. However, a charge memo was issued to him on12.02.1998, alleging that he, while he was Superintending Engineer, submitted a note to the Chief Engineer for procurement of 810 MT ofSWG G.I.Stranded wire for Specification No.11 and 900 MT for Specification No.12, during September 1997, and the tender committeeapproved the same and that the petitioner sought orders for procuringreduced quantity of the materials at 360 MT only for each of thespecifications, even though as per the direction of the Board LevelTender Committee, orders should be placed only after obtainingapproval of the Account Member, within the Chief Engineer's powers. The second charge was that the petitioner scrutinised the relevantoffice note and put up the same before the Chief Engineer forapproval to place orders with M/s. Bharat Wire Rope ManufacturingCompany for supply of wire against Specification Nos.11 and 12,despite the fact that the said company was a new entrant to the Boardwith regard to the supply of the said material. The third charge wasthat the petitioner put up a note on 09.10.1997 to the ChiefEngineer/MM, suggesting to waive the pre-despatch inspection of thematerials and the said note was approved by the Chief Engineer on09.10.1997, but the details revealed that the waiver of pre-inspection was defeated, as the company had failed to supply thematerials within the specified time as per delivery clause and, thus, he failed to maintain absolute integrity and devotion to duty andthereby contravened Regulation 3 (a) of the Regulations.

The petitioner submitted his explanation to the abovecharges on 21.02.1998, stating that he was not responsible for thereduction of the quantity of procurement, placing orders withM/s.Bharath Wires and waiver of pre-inspection and that it was a teamof officers that was responsible for decision making and the ultimateapproving authority was the the Chief Engineer/MM. He furtherspecifically submitted that CE/MM alone was responsible for thealleged irregularities or lapses and he had never prepared or put upthe notes except forwarding notes prepared by the Assistant ExecutiveEngineer and the Executive Engineer. https://hcservices.ecourts.gov.in/hcservices/

In spite of the above explanation, an enquiry wasconducted and thereafter a report submitted. However, in theenquiry, except marking certain documents, the Board did not examineany witnesses to substantiate the charges levelled against thepetitioner. The petitioner raised a preliminary issue that theenquiry report was not furnished to him and the crucial witness, namely, Chief Engineer/MM was not examined as a witness. He alsomade a consistent plea for the appearance of CE/MM, as it was veryessential to decide the issue as he was the higher deciding authorityin respect of procurement and waiver of pre-inspection and thepetitioner only carried out his oral instructions. Despite theseobjections, the Board did not choose to examine the CE, as a witness. However, the enquiry was proceeded and the Enquiry Officer submittedhis report on 27.07.1998. In the findings of the Enquiry Officer, itwas held that Charge No.1 was proved against the petitioner and Charges 2 and 3 were not proved. The second respondent, who is thedisciplinary authority, through his memo, dated 29.01.1999, proposedto hold that all the charges are held to be proved and called forexplanation from the petitioner. Thereafter, the petitioner submittedhis explanation on 12.03.1999, explaining the entire situation andrequesting to drop the proceedings. However, the second respondentcontinued with the proceedings and passed the order dated 23.08.1999,imposing the punishment of reducing a sum of Rs.200/- per month fromthe pension of the petitioner for a period of one year. The saidorder, passed by the Chairman, was without any indication to theeffect that appeal remedy was available to the petitioner within atime frame as per the regulations. Therefore, the petitioner made areview petition on 21.10.1999 and the same was withheld by the orderimpugned of the respondent, dated 10.12.1999. Hence, both the ordersare under attack by the petitioner in this Writ Petition.

A circumspection of the facts would reveal that duringthe service of the petitioner as Superintending Engineer, the TenderCommittee had approved the procurement of 810 MT. SWG.G.I strandedwire for specification No.11 and 900 MT.for specification No.12.However, on the oral instruction of the Chief Engineer/MM, the saidquantity was reduced to 360 MT for each of the specifications and itwas placed for obtaining approval of the Chief Engineer. The chargeswere denied by the petitioner and there was insistence on examinationof the Chief Engineer. Before the Enquiry Officer and in theexplanation to the show cause notice, it is the consistent statementof the petitioner that Chief Engineer/MM orally instructed forreduction of the quantity of the wire and that the proposal could bestraightaway put up to the Chief Engineer for approval and that onlyfor increasing the quantity, Board's approval was required as per theregulations. It is also the stand of the petitioner that in everytender note, requesting approval for reduction of quantity, everyprocess till finalisation of the tender was only as per the oral https://hcservices.ecourts.gov.in/hcservices/ instructions of the Chief Engineer and that if his instructions werenot obeyed, action would have been taken against him by the CE.

All the above points have been analysed by the EnquiryOfficer and he concluded that the oral instructions given by thehigher authorities have to be got confirmed in writing subsequentlyby the lower authority to whom the instructions are issued; in thepresent case, any oral instructions given by the higher authority hasto be brought in the concerned note and current files also as thecase may be irrespective of whether the oral instructions given arein order with reference to the tender regulations and subsequentwritten instructions issued. However, the statement of the delinquentofficer could be corroborated by the statement of defence witness, namely, Thiru V.Rathnam, A.E.E./M.L.D.C.(then A.E.E.Conductors/M.M.I./Chennai), who deposed about the various oral instructionsgiven by the Chief Engineer/M.M.and the practice adopted by M.M.Wing, while finalising the tenders, and it was confirmed by him that therewere oral instructions. The said witness had not been taken intoconsideration by either the enquiry officer or the disciplinaryauthority. Therefore, when a specific stand was taken by thedelinquent officer that there were oral instructions by the ChiefEngineer and, only at his instance, he had acted, otherwise, if the Chief Engineer's instructions were not obeyed, action would have beentaken against the petitioner, there were all the probabilities thatthe oral instructions were obeyed and carried out by the petitioner. But, that crucial witness, namely, Chief Engineer was not examined inthe enquiry proceedings, even though it was insisted by thepetitioner in the enquiry proceedings and specifically averred thathe was responsible for all the transactions. In view of the non-examination of the crucial witness, the entire proceedings initiatedagainst the petitioner are vitiated and, on this particular ground, the impugned proceedings have to be set aside.

The next contention raised by the learned counsel forthe petitioner is that there is no indication, informing thepetitioner to prefer an appeal within a time frame as per theregulation in the order passed by the Chairman.

In paragraph 6 of the order, it is specifically stated"Receipt of this Board's proceedings should be acknowledged".Therefore, the petitioner was under the impression that the saidorders were passed by the Board, though signed by the Chairman, assuming that they were the Board's orders and, therefore, a reviewwould lie as per Regulation 14 of the Regulations. Accordingly, thepetitioner made a review petition to the first respondent/Tamil NaduElectricity Board on 21.10.1999. However, the said review petitionwas not considered by the first respondent, holding that as perRegulation 18 (iii), the appeal had to be preferred within 30 daysand, therefore, the appeal was belated. As such, the appeal preferred https://hcservices.ecourts.gov.in/hcservices/ by the petitioner as against the order passed on 23.08.1999 waswithheld.

In the service law jurisprudence, as the comprehensiveprocedural aspect of every Act, statute, regulation, rule, it isalways contemplated that the disciplinary authority, while passingthe order, has to indicate in the order that an appeal would lie toso and so authority within a certain period. But, in this case, itwas not so done by the disciplinary authority. Therefore, thepetitioner was in dilemma whether he should prefer appeal or review. He, however, preferred a review petition within the time, asprescribed under Regulation 14. Whether it is appeal or review, itis the duty of every authority to give good reasons while rejectingthe same. In the present case, the review petition had beenwithheld, stating that it was not filed within the time, construingthat it was an appeal. The order of the first respondent is alsovitiated, for the reason that in the absence of any direction orindication in the order of the disciplinary authority, it is the dutyof the first respondent to look into the review petition filed by thepetitioner.

In the absence of any indication in the order of thedisciplinary authority, the impression of the petitioner that it wasa Board's order and, as against the same, a revision would lie within60 days as per regulation 14, in my considered opinion, is germane.

In the hierarchy of of administration and also in thetender making process, the note put up by the subordinates is to becarried out by the higher authority and the ultimate power is vestedwith the highest authority. In this case, it is seen that as per thecollective decision, preparation of the note was a team work done bythe Assistant Executive Engineer, Executive Engineer and the Superintending Engineer and, thereafter, the ultimate authority wasthe Chief Engineer.

When the team work and the finalisation of tender, including the reduction of quantity, were done by the team as per theoral instructions of the Chief Engineer, who had not been examined inthis case, the petitioner alone was singled out for the allegationand, therefore, there was a clear discrimination, in violation of Article 14 of the Constitution of India. The authorities had notchosen to proceed against the persons collectively responsible forthe incident, but, instead, they targeted the petitioner alone andmade him a scapegoat, in order to make someone responsible for thecause. That being so, proceeding only against the petitioner with thecharges after 33 years of his clean service and that too at the fagend and just a few days before his retirement could only be termed tobe for some ulterior motives. This view has been supported by thedecision of the Supreme Court in Bongaigaon Refinery & Petrochemicals https://hcservices.ecourts.gov.in/hcservices/ Ltd.'s case, relied upon by the learned counsel for the petitioner.

In the light of the above discussion and on analysingthe entire facts and materials and the decision relied upon, theorders impugned of the respondents 1 and 2, dated 10.12.1999 and23.08.1999 respectively are unsustainable, as they are legallyinfirmed, and, accordingly, they are set aside.