G.Shanmuganandam v. The Secretary to Government, Labour Department, Fort ST. George, Chennai-600 009 & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.35071 of 2006G.Shanmuganandam.. Petitioner Vs.1.The Secretary to Government, Labour Department, Fort ST. George, Chennai-600 009.2.The Director of Employment & Training, Chepauk, Chennai-600 005.3.The Joint Director of Employment & Training (Craftsmen Training), Department of Employment and Training, Chepauk, Chennai-600 005... RespondentsThis writ petition has been preferred under Article 226 ofthe Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to theproceedings of the Director of Employment and Training inSe.Mu.A.No.AP.2/132260/94, dated 6.11.1995 and G.O.(D) No.1132-Employment and Training Dept., dated 17.12.96, and to quash thesame and to direct the respondents herein to reinstate theapplicant in service with consequential service benefits such asrefixation of pay, arrears of salary, placement in seniority,consequential promotion and all other service benefits which havebeen withheld due to imposition of penalty of dismissal fromservice and pay all the arrears accrued under the above headingswithin a short date. For Petitioner: Mr.K.RajkumarFor Respondents: Mr.P.Gurunathan, GAORDERHeard both sides. In view of the abolition of the Tribunal,the matter stood transferred to this court and was renumbered asW.P.No.35071 of 2006. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner filed the original application No.9433 of1997 seeking to challenge the order of the second respondent, dated06.11.1995 as well as the appellate order of the first respondent,dated 17.12.1996, wherein by which the petitioner was dismissedfrom service. The Tribunal inspite of the fact that the petitionerwas not in service, granted an interim stay by an order, dated26.11.1997. The ground on which the Tribunal granted interim staywas that the enquiry report was not given to him before thecompetent authority imposed the penalty. The said interim ordercame to be continued until further orders. Though the respondentsfiled a vacate stay application in M.A.No.2467 of 1998, for reasonsnot known the Tribunal did not take up that application.Thereafter, the respondents have filed a detailed reply affidavit,dated 23.07.1998, justifying the penalty imposed on the petitioner.3.The petitioner was dismissed from service by an order,dated 6.11.1995. Thereafter, his appeal, dated 05.1.1996 wasrejected by the Government on 17.12.1996. The Tribunal granted aninterim stay on 26.11.1997 that too nearly after a period of 2years from the date of the original order of dismissal. It isunthinkable as to how the Tribunal can grant an interim stay ofdismissal when the petitioner was out of service for nearly aperiod of 2 years. The Supreme Court vide judgment reported in 2008(12) SCC Page 30 has held that for the non furnishing of theenquiry report, no reinstatement can be ordered and the proceedingsshould be allowed to proceed from the stage where the defect hadcrept in.4.In the present case, the petitioner in his appeal memodated 5.1.1996 did not even make a grievance about the nonfurnishing of the enquiry report before passing final orders. Thepetitioner even at the time of filing of the O.A. was 54 years oldand would have reached the age of superannuation during the year2001. 5.The petitioner was working as a Training Officer in theGovernment Industrial Training Institute, Cuddalore. The petitionerwas placed under suspension with effect from 14.12.1994. A chargememo under Rule 17(b) of the TNCS (D&A) Rules was given to himvide memo dated 20.01.1995. The charge against the petitioner wasthat he had a forced homosexual relationship with one student byname Sureshkumar and he had also instead of being a model trainingofficer, brought disrepute to the institution. On 13.12.1994, hedid not attend the institute and applied for one hour permission.On that day, in the residential quarters of the petitioner, theincident had taken place. The victim student gave a complaint tothe Principal, who in turn informed the Directorate. The incidenthad led to unrest among the students. The anger of the studentsled to violent demonstration, including the student entering thepetitioner's living quarters and damaging his personal assets suchas Television and two-in-one set. https://hcservices.ecourts.gov.in/hcservices/

6.An enquiry was conducted in which the statement of thevictim student as well as another student by name Jaishankar andthe Principal of the ITI was recorded. The victim student wascross examined. The petitioner did not cross examine the traineestudent Jaishankar, with whose help the victim student was made togo to the quarters. It was on the basis of these records, thepetitioner was dismissed from service by the second respondent.Along with the dismissal order, the petitioner was given a copy ofthe enquiry report.7.As noted above, the petitioner did not make any grievanceabout the non furnishing of the report before its acceptance. Inhis appeal memorandum, he had merely stated that the incident wasstage managed and he was victimized being an Office bearer of arival service association. 8.On receipt of the appeal, the first respondent consultedthe TNPSC. The TNPSC by its report dated 26.6.1996 gave advice tothe Government and stated that the charges were proved and thedismissal was a proper punishment. The Government after acceptingthe report also independently decided that the punishment ofdismissal was justified. 9.Mr.K.Rajkumar, the learned counsel for the petitioner,made two submissions. The first was the non furnishing of theenquiry report before its acceptance and the second was the orderof the appellate authority was mechanical and there was noindependent application of mind. In this context, the learnedcounsel also placed reliance upon an unreported judgment of thiscourt in R.Ramiah Vs. the Principal Secretary to Government, HomePolice (VI) Department, Chennai and others in W.P.No.20459 of 2007,dated 16.3.2009. 10.However, it must be stated that the Supreme Court videits judgment in Chairman, Disciplinary Authority, Rani Laxmi BaiSheitriya Gramin Bank Vs. Jagadish Saran Varshare and othersreported in JT 2009 4 SC 519, has held that the appellateauthority's order need not contain elaborate reasons. 11.It must also be stated that the non furnishing of theenquiry report was never made a ground by the petitioner before theappellate authority. Therefore, in the absence of any prejudice, hecannot raise that ground as first ground before this court for thefirst time. 12.Further, in the present case, an enquiry was conductedin which witnesses were examined in the presence of the petitioner.The conduct of the petitioner was completely a deprived one, whichis covered by Rule 19(2) of the Tamil Nadu Government ServantConduct Rules. Once the authority conducts a proper enquiry, inwhich legal evidence was let in, the Court cannot go into thequestion of proportionality of the punishment. https://hcservices.ecourts.gov.in/hcservices/

13.In this context, it is necessary to refer to thejudgment of the Supreme Court in the case relating to CHAIRMAN &MANAGING DIRECTOR, V.S.P. AND OTHERS Vs. GOPARAJU SRI PRABHAKARAHARI BABU reported in 2008 (5) SCC 569. The following passage foundin paragraph 20 to 22 in the said judgment may be usefullyextracted below:"20. The jurisdiction of the High Court in thisregard is rather limited. Its power to interfere withdisciplinary matters is circumscribed by well-knownfactors. It cannot set aside a well-reasoned order onlyon sympathy or sentiments. (See Maruti Udyog Ltd. v.Ram Lal; State of Bihar v. Amrendra Kumar Mishra; SBIv. Mahatma Mishra; State of Karnataka v. Ameerbi; Stateof M.P. v. Sanjay Kumar Pathak and Uttar Haryana BijliVitran Nigam Ltd. v. Surji Devi.)21. Once it is found that all the proceduralrequirements have been complied with, the courts wouldnot ordinarily interfere with the quantum of punishmentimposed upon a delinquent employee. The superior courtsonly in some cases may invoke the doctrine ofproportionality. If the decision of an employer isfound to be within the legal parameters, thejurisdiction would ordinarily not be invoked when themisconduct stands proved. (See Sangfroid Remedies Ltd.v. Union of India.)22. The High Court in exercise of its jurisdictionunder Article 226 of the Constitution of India alsocannot, on the basis of sympathy or sentiment, overturna legal order."14.The petitioner's contention that he was victimizedbecause of his being an office bearer of a rival serviceassociation and the incident was a stage managed one was notestablished by him in the enquiry. On the contrary, it is relevantto refer to the following averment found in para 8 from the replyaffidavit:"8. ... it is submitted that the applicantTraining Officer did not attend the institute, heapplied for an hour permission. On 13.12.94 theapplicant forcibly had a sexual relationship with amale student Thiru M.Sureshkumar. The above incidenttook place in the residential quarters of theapplicant. The affected student had lodged a complaintagainst the applicant in a written statement. Theapplicant, being a teaching staff set an example asPhilosopher and Guide to the students of theinstitution whereas he misbehaved with a student." https://hcservices.ecourts.gov.in/hcservices/

15.In the light of the above legal precedents and thefactual matrix of the case, there are no grounds to interfere withthe penalty imposed on the petitioner. Accordingly, the writpetition stands dismissed. However, there shall be no order as tocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Secretary to Government, Labour Department, Fort ST. George, Chennai-600 009.2.The Director of Employment & Training, Chepauk, Chennai-600 005.3.The Joint Director of Employment & Training (Craftsmen Training), Department of Employment and Training, Chepauk, Chennai-600 005.W.P.NO.35071 of 2006 VSV(CO)RVL 10.06.2009