N.Ulaganathan v. The Chief Executive Engineer,Tamilnadu Khadi & Village Industries Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.04.2010CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.6538 of 2009 andM.P.No.1 of 2009N.Ulaganathan ... Petitioner VsThe Chief Executive Engineer,Tamilnadu Khadi & Village Industries Board,Kuralagam, Chennai – 108.... RespondentsPRAYER:-Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of certiorarifiedmandamus, to call for the records connected with MemoR.C.No.17526/E4(1)/2005 dated 13.1.2009 of the respondent andquash the same in respect of denial of reinstatement of thepetitioner to be conducted re-enquiry on the said chargespursuance to the chargememo dated 27.5.96 and direct therespondent to reinstate the petitioner into service as per the 31(d) of Tamilnadu Khadi and Village Industries Board RegulationRule and grant arrears of subsistance allowances from the date ofremoval from service to till this day.For Petitioner : Mr.P.Jayaraman,Senior Advocate For Mr.G.ElanchezhiyanFor Respondent : Mr.S.Packiaraj O R D E RThe writ petition is filed by the petitioner seeking tochallenge the order dated 13.01.2009 and after setting aside thesame also to quash the charge memo dated 27.05.1996 with afurther direction to reinstate the petitioner in terms ofregulation 31(d) of the Tamil Nadu Khadi and Village IndustriesBoard Regulations and also to grant arrears of subsistanceallowance from the date of removal till the date of the petition.2. When the matter came up on 16.04.2009, this Court issuednotice to the Standing Counsel for the respondents. Pending thewrit petition, though an interim direction was sought for, thesame was not granted. On notice from this Court, a counteraffidavit dated 22.12.2009 was filed by the respondent. https://hcservices.ecourts.gov.in/hcservices/

3. The petitioner had earlier filed a writ petition beingW.P.No.16277 of 2005 challenging the order of removal dated23.05.2003 passed by the Chief Executive Officer, Tamil NaduKhadi and Village Industries Board and confirmed by an orderdated 10.03.2005 passed by the Chairman of the Khadi and VillageIndustries Board. This Court by a final order dated 13.11.2008,in paragraph 12 directed as follows:12. In the result, the impugned order inNa.Ka.No.38505/E4(1)/96 dated 23.05.2003 is setaside and the writ petition is disposed of withthe following directions:- a)Third Respondent shall appoint eitherAsst.Director (other than Karur District) or anyother officer as Enquiry Officer;b)Third respondent shall also appoint thePresenting Officer to represent ThuraiyurCarpentry and Blacksmith Workers Industrial Co-operative Society. Preferably, Special Officer ofthe Society shall be the Presenting Officer.c)If Thuraiyur Carpentry and Blacksmith WorkersIndustrial Co-operative Society is notfunctioning, 3rd Respondent shall appoint any othercompetent person as Presenting Officer torepresent Thuraiyur Carpentry and BlacksmithWorkers Industrial Co-operative Society and toadduce evidence on behalf of the Society.d)Third Respondent shall appoint Enquiry Officerand Presenting Officer within a period of fourweeks from the date of receipt of copy of thisOrder.e)Enquiry Officer shall complete the enquirypreferably within a period of four months afterhis appointment, but not later than six months.f)Both parties are directed to co-operate in thedepartmental proceedings.4. After the judgment was delivered by this Court, thepetitioner sent a representation dated 01.12.2008. The respondentby the impugned order dated 13.01.2009 directed re-enquiry. Hewas also informed that he need not be restored to service pendingthe re-enquiry.5. It was contended by the learned Senior Counsel for thepetitioner that before holding an enquiry, reinstatement shouldhave been ordered. In the absence of such reinstatement, anyorder passed for holding a fresh enquiry will be illegal. 6. Mr.P.Jayaraman, the learned Senior Counsel placedreliance upon the judgment of the Supreme Court in Union of Indiav. Y.S.Sandhu, reported in 2008(5)CTC 285. In that case, the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court referred to the earlier two decisions of theSupreme Court in Hiran Mayee Bhattacharyya v. Secretary,S.M.School for Girls, 2002 (10) SCC 293 and U.P.State SpinningCo. Ltd. v. R.S.Pandey,2005(8)SCC 264. After referring to thosetwo judgments, the Supreme Court directed restoration of serviceof the person concerned without backwages in those cases. TheSupreme Court in paragraph 8 directed the same principles to befollowed in the Sandhu's case also.7. The learned Senior Counsel also relied upon the judgmentof the Supreme Court in Managing Director ECIL, Hyderabad v.B.Karunakar reported in 1993 (4) SCC 737, wherein it was heldthat if the punishment was set aside, the proper relief to begranted is to direct reinstatement of the employee with libertyto the Management to proceed with the enquiry by placing theemployee under suspension and continue the enquiry from thatstage. Therefore, he claimed that he should be allowed thebenefit of reinstatement pending the enquiry.8. The learned Senior Counsel also relied upon Regulation 31(d) of Tamil Nadu Khadi and Village Industries Board. It isnecessary to extract the said provision, which is as follows;"31d) Where a penalty of dismissal removal orcompulsory retirement A service imposed upon aBoard Employee is set aside or declared or renderedvoid in consequence of or by a decision of a Courtof law and the disciplinary authority, on aconsideration of the circumstances of the case,decides to hold a further inquiry against him onthe allegations on which the penalty of dismissal,removal or compulsory retirement was originallyimposed, the Board employee shall be deemed to havebeen placed under suspension by the appointingauthority from the date of the original order ofdismissal, removal or compulsory retirement andshall continue to remain under suspension untilfurther orders."(Emphasis added)9. In the counter affidavit filed by the respondent, it wasstated that the petitioner cannot re-agitate the matter which isalready covered by an order passed by this Court dated 13.11.2008in W.P.No.16277 of 2005. It was also stated that when this Courthas directed fresh enquiry, they are duty bound to conduct afresh enquiry. Even the judgment relied on by the petitionernamely Y.S.Sandhu case (cited supra), the Court held thatentitlement of an employee would be adjudicated only after theresult of the disciplinary proceedings and therefore he has towait for the same. https://hcservices.ecourts.gov.in/hcservices/

10. The Supreme Court had an occasion to consider a similarrule to Rule 31(d) of Tamil Nadu Khadi and Village IndustriesBoard Regulations which is Rule 12(4) of Central Civil Services(Classification, Control & Appeal) Rules, 1957 vide its decisionin Khem Chand v. Union of India reported in 1963 Suppl (1) SCR229 = AIR 1963 SC 687 held in paragraphs 16,18 and 19 as follows:"16. Equally untenable is the appellant’snext contention that the impugned Rule contravenesthe provisions of Article 19(l)(f) of theConstitution. The argument is that as a result ofthis Court’s decree the appellant had a right tohis arrears of pay and allowances. This rightconstituted his property; and as the effect of theimpugned Rule is that he would not, for some timeat least, get those arrears it restricts hisright. It may be conceded that the right toarrears of pay and allowances constituted propertywithin the meaning of Article 19(l)(f) of theConstitution and further, that the effect of Rule12(4) is a substantial restriction of his right inrespect of that property under Art 19(l)(f). Thequestion remains whether this restriction is areasonable restriction in the interests of thegeneral public. No body can seriously doubt theimportance and necessity of proper disciplinaryaction being taken against government servants forinefficiency, dishonesty or other suitablereasons. Such action is certainly against theimmediate interests of the government servantconcerned; but is absolutely necessary in theinterests of the general public for serving whoseinterests the government machinery exists andfunctions. Suspension of a government servantpending an enquiry is a necessary part of theprocedure for taking disciplinary action againsthim. It follows, therefore, that when the penaltyof dismissal has been set aside but thedisciplinary authority decides to hold a furtherenquiry on the same facts against him a freshorder of suspension till the enquiry can becompleted, in accordance with law, is a reasonablestep of the procedure. We have no hesitation inholding, therefore, that insofar as Rule 12(4)restricts the appellant’s right under Article 19(1)(f) of the Constitution, it is a reasonablerestriction in the interests of the generalpublic. Rule 12(4) is therefore within the savingprovisions of Article 19(6), so that there is nocontravention of the constitutional provisions. ...... https://hcservices.ecourts.gov.in/hcservices/

18. This brings us to the attack on the Rule onthe basis of Article 14. According to Mr Sharmathe result of the impugnet Rule is that where apenalty of dismissal, removal or compulsoryretirement from service imposed on a governmentservant is set aside or declared or rendered voidin consequence of or by a decision of a court oflaw and the disciplinary authority decides to holda further enquiry against him on the allegationson which the penalty was originally imposed, theconsequence will follow that the governmentservant shall be deemed to have been placed undersuspension from the date of the originalimposition of penalty, whereas no such consequencewill follow where a similar penalty is set asidenot by a court of law but by, the departmentaldisciplinary authority. According to Mr Sharma,therefore, there is a discrimination between agovernment servant the penalty of dismissal,removal or compulsory retirement on whom is setaside by a decision of a court of law and anothergovernment servant a similar penalty on whom isset aside on appeal by the departmentaldisciplinary authority. The argument howeverignores the result of Rule 30(2) and Rule 12(3) ofthese Rules. Rule 30(2) provides inter alia thatin the case of an appeal against an order imposingany of the penalties specified in Rule 13 i.e. thepenalty of dismissal, removal or compulsoryretirement and certain other penalties, theAppellate Authority shall pass orders: “(i)setting aside, reducing, confirming or enhancingthe penalty; or (ii) remitting the case to theauthority which imposed the penalty or to anyother authority with such direction as it may deemfit in the circumstances of the case.” Rule 12(3)provides that “where a penalty of dismissal,removal or compulsory retirement from serviceimposed upon a government servant under suspensionis set aside in appeal or on review under theserules and the case is remitted for further enquiryor action or with any other directions, the orderof his suspension shall be deemed to havecontinued in force on and from the date of theoriginal order of dismissal, removal or compulsoryretirement and shall remain in force until furtherorders”. Where a penalty of dismissal, removal orcompulsory retirement imposed upon a governmentservant is set aside by the departmental authorityon appeal, it may or may not order furtherenquiry; just as where a similar penalty is setaside by a decision of a court of law the https://hcservices.ecourts.gov.in/hcservices/ disciplinary authority may or may not direct afurther enquiry. Where the Appellate Authorityafter setting aside a penalty of dismissal,removal or compulsory retirement makes an orderunder Rule 30(2)(ii) remitting the case to theauthority which imposed the penalty, for furtherenquiry, Rule 12(3) will come into operation andso the order of suspension which in almost allcases is likely to be made where a disciplinaryproceeding is contemplated or is pending shall bedeemed to have continued in force on and from thedate of the original order of dismissal and shallremain in force until further orders.There istherefore no difference “worth the name betweenthe effect of Rule 12(4) on a government servantthe penalty of dismissal, removal or compulsoryretirement on whom is set aside by a decision of acourt of law and a further enquiry is decided uponand the effect of Rule l2(4) on another governmentservant a similar penalty on whom is set aside inappeal or on review by the departmental authorityand a further enquiry is decided upon. In bothcases the government servant will be deemed to beunder suspension from the date of the originalorder of dismissal, except that where in adepartmental enquiry a government servant was notplaced under suspension prior to the date when thepenalty was imposed, this result will not follow,as Rule l2(3) would not then have any operation.It is entirely unlikely however, that ordinarily,a government servant will not be placed undersuspension prior to the date of his dismissal.Rule 12(1) provides that the appointing authorityor any authority to which it is subordinate or anyother authority empowered by the President in thatbehalf may place a government servant undersuspension: (a) where a disciplinary proceedingagainst him is contemplated or is pending, or (b)where a case against him in respect of anycriminal offence is under investigation or trial.Mr Sharma does not say that ordinarily any casesoccur where a government servant is visited with apenalty of dismissal, removal or compulsoryretirement, in a departmental proceeding, withoutthere being a previous order of suspension underthe provisions of Rulel 2(l) and we do not thinkany such case ordinarily occurs. Consequently, theeffect of Rule 12(3) will be the same on agovernment servant a penalty of dismissal, removalor compulsory retirement on whom is set aside inappeal by the departmental authority as the effectof Rule l2(4) on a government servant a similar https://hcservices.ecourts.gov.in/hcservices/ penalty on whom is set aside by a decision of acourt of law. The contention that Rule 12(4)contravenes Article 14 of the Constitution musttherefore be rejected.19. As we find that all the above attacks on thevalidity of Rule l2(4) fail, the further attack onthe Rule on the basis of Article 31(1) of theConstitution also necessarily fails. For, whateverdeprivation of property may result from Rule l2(4)would be by authority of law-the law being Rule l2(4)."11. The said Rule 12(4) was subsequently made as Rule 10(4)of CCS(CCA) Rules. When that rule came to be challenged, theSupreme Court upheld the constitutional validity of the said rulein Mahender Singh v. Union of India reported in 1991 Supp (2) SCC127. The following passage found in paragraph 6 may be usefullyextracted below:"6. There are three requirements for the applicationof Rule 10(4); (i) the government servant isdismissed, removed or compulsorily retired as ameasure of penalty; (ii) the penalty of dismissal,removal or compulsory retirement is set aside ordeclared or rendered void by a decision of a courtof law; (iii) the disciplinary authority, decides tohold a further inquiry against the governmentservant on the allegations on which the originalorder of penalty was imposed. If these threerequirements are satisfied then the governmentservant shall be deemed to have been placed undersuspension by the appointing authority from the dateof original order of penalty of dismissal, removalor compulsory retirement and he shall continue toremain under suspension until further orders."12. Thereafter, the very same rule was once again consideredby the Supreme Court in Nelson Motis v. Union of India reportedin (1992) 4 SCC 711. In paragraph 10, the Supreme Court observedas follows:"10. .....The cases which attract sub-rule (4), arethus those where the penalty imposed on thegovernment servant is set aside on technicalgrounds not touching the merits of the case. Sinceat one stage the disciplinary authority records afinding on the charges against the governmentservant, which is not upset on merits, thesituation is entirely different from that in the https://hcservices.ecourts.gov.in/hcservices/ cases covered by sub-rule (3). The classificationis thus founded on an intelligible differentia,having a rational relation to the object of therules and Rule 10 (4) has to be held asconstitutionally valid."13. In the light of the above, there is no substance in thewrit petition filed by the petitioner. Hence, the writ petitionstands dismissed. No costs. Consequently, connected miscellaneouspetition is closed. Sd/Asst.Registrar/true copy/ Sub Asst.RegistrarsvkiToThe Chief Executive Engineer,Tamilnadu Khadi & Village Industries Board,Kuralagam, Chennai – 108.+1cc to Mr.G.Elanchezhiyan, Advocate Sr 27795+1cc to Mr.S.Packiaraj, Advocate Sr 28331MBS(CO)km/4.5. W.P.No.6538 of 2009