D.Sivapragasam v. Tamil Nadu Electricity Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.1.2009CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.2539 OF 2003D.Sivapragasam .. Petitioner vs. 1. Tamil Nadu Electricity Board rep. by its Chairman 765, Anna Salai, Chennai-600 0022. The Chief Engineer (Distribution) Office of the Chief Engineer Tamil Nadu Electricity Board Vellore Circle, Vellore-63. The Superintending Engineer Office of the Superintending Engineer Tirupattur Electricity Distribution Circle Tirupattur – 635 601 .. RespondentsThis writ petition is filed under Article 226 of theConstitution of India praying for the issuance of a Writ ofCertiorarified Mandamus to call for the records relating to theorder of the third respondent, dated 26.4.2001, bearingref.No.K.No.755/NP:3/NA.2/K.O.N.99-11 imposing the punishment of oneincrement cut with cumulative effect as confirmed by the order ofthe second respondent dated 29.9.2001 bearingref.No.K.A.N.17474/NR/A.3/2001 and the first respondent order, dated25.9.2002 and quash the same and consequently direct the respondentsto release the increment withheld with all consequential benefits. For petitioner : Mr.Balan Haridas For Respondents : Mr.B.Sekar https://hcservices.ecourts.gov.in/hcservices/ O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the respondents.2. It has been stated that the petitioner had joined in theservice of the Tamil Nadu Electricity Board, on 26.7.1979, as aSwitch Board Operator. Later, he was promoted as a Tester Ist Grade,on 24.11.1982 and redesignated as Commercial Inspector. Thereafter,he was promoted as a Junior Engineer II Grade, on 11.3.1987 and as aJunior Engineer I Grade in Tirupattur Distribution Circle. While so,a charge sheet, dated 3.11.1999, had been issued, with three chargeslevelled against him. The first charge is that the petitionerhad demanded a sum of Rs.5,000/-, as bribe, for effectingelectricity service connection to one Chinnakulandai. The secondcharge is that even though one P.Subramani was eligible to get theservice connection, the said connection had not been given, as thepetitioner had not been paid the amount demanded as bribe. The thirdcharge is that he had got personally involved in giving serviceconnection to one Perumal, asking him to produce false documents, byviolating the rules. 3. The petitioner had submitted his explanation, by a letter,dated 3.1.2000, denying the charges. Not being satisfied with theexplanation submitted by the petitioner, an enquiry had been held,between 7.4.2000 and 19.1.2001, with regard to the charges levelledagainst the petitioner. During the domestic enquiry, the petitionerhad not been informed that he could engage a co-employee to assisthim. With regard to the first charge, the three persons, namely,Chinnakulandai, Govindasamy and Anandan, had been examined on behalfof the respondent Board. Two of the witnesses, namely,Chinnakulandai and Govindasamy had admitted, during the cross-examination, that they have given a complaint with regard to thedemand of bribe by the petitioner, since the third witness, namely,Anandan, had told them that only if such a complaint was given, theservice connection would be effected at the earliest. Even Anandanhad admitted that there was no proof with regard to the demand ofbribe by the petitioner. With regard to the second charge, Jayaveluand Subramani had been examined. They had admitted that the hut forwhich the service connection was sought for was not fit to be giventhe service connection, as it did not fulfill the requirements. Theyhad also admitted that the petitioner had not demanded the bribe, asalleged. As far as the third charge was concerned, it was found thatthe service connection to Survey No.454/2c, as sought for, cannot begiven and since it was possible to give service connection in SurveyNo.535/2a, the necessary records were obtained from the concerned https://hcservices.ecourts.gov.in/hcservices/ authority. The petitioner had not violated any rule or regulation,as alleged. 4. It was further submitted that even though the chargeslevelled against the petitioner had not been proved, the EnquiryOfficer had come to the conclusion that the charge Nos.1 and 3 hadbeen proved and that the second charge had not been proved. From theevidence of the witnesses of the respondent Board, it was clear thatthe charge against the petitioner, that he had demanded the bribe,had not been proved. Further, with regard to the third charge, itwas clearly brought out during the enquiry that Perumal had appliedfor a service connection in Survey No.454/2c. Thereafter, sincesufficient water was not available in the said well, he had appliedfor effecting the service connection to the well in SurveyNo.535/2a. After the necessary inspection had been done, and basedon the recommendation of the Assistant Executive Engineer, theSurvey Number had been admitted. Thereafter, the formalities, asprescribed by the Rule, had been completed. Even though the saidcharge had not been proved, the enquiry officer had erroneously cometo the conclusion that it was proved, on the ground that there weresome discrepancies in the statement of the petitioner, with regardto the service connection. Therefore, the findings of the enquiryofficer have been rendered without any evidence. 5. It has been further stated that the third respondent, by hisproceedings, dated 21.3.2001, had straight-away concurred with thefindings of the enquiry officer, without giving an opportunity tothe petitioner on his findings, causing considerable prejudice tothe petitioner. The third respondent had merely held that thecharges had been proved, concurring with the findings of the EnquiryOfficer, without independently analysing the evidence on record.Further, the non-furnishing of the enquiry officer's report to thepetitioner, before coming to the conclusion of guilt, had causedserious prejudice to the petitioner. 6. The petitioner has further stated that for the second showcause notice, dated 21.3.2001, the petitioner had given anexplanation, on 18.4.2001, stating that the first and third chargeshad not been proved. However, the third respondent, withoutconsidering the objections properly, had, mechanically, accepted thefindings of the Enquiry Officer and had imposed the punishment ofstoppage of increment for one year, with cumulative effect. Thepetitioner had submitted an appeal to the second respondent, on17.6.2001. However, the second respondent had also committed thesame error in rejecting the appeal, by an order, dated 29.9.2001.The memorial submitted by the petitioner, dated 18.11.2001, had alsobeen rejected, on 25.9.2002. In such circumstances, the petitionerhad preferred the present writ petition before this Court, underArticle 226 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/

7. In the counter affidavit filed on behalf of the respondents,the averments and allegations of the petitioner had been denied. Ithas been stated that the petitioner, while he was working as aJunior Engineer I Grade (Electrical) at Vellakuttai operation andMaintenance Section, had committed certain lapses by demanding abribe of Rs.5,000/- for effecting an agricultural serviceconnection. He had rejected the application for service connectionexpecting a bribe from the person, who had requested for the saidservice connection. Further, he had tried to divert a serviceconnection, sought for a well, illegally, for a wrongful gain,causing loss to the Tamil Nadu Electricity Board. Therefore, thecharges had been framed against the petitioner, by the thirdrespondent, by a memo, dated 3.11.1999/12.11.1999, as per the theTamil Nadu Electricity Board Employees discipline and AppealRegulations. The petitioner had submitted the explanation, dated3.1.2000. However, the explanation was not found to be satisfactory.Hence, an enquiry had been ordered to be conducted on the charges,by an order, dated 16.2.2000. The enquiry officer had conducted anoral enquiry, on various dates, giving all necessary opportunitiesto the petitioner to defend himself against the charges. Thepetitioner had expressed his satisfaction over the enquiry conductedby the Enquiry Officer. 8. It has been further stated that the Enquiry Officer hadfurnished the enquiry report, together with the findings, holdingthat the first and third charges were proved and that the secondcharge had not been proved. Thereafter, a final order had beenpassed, observing all the necessary procedures, imposing thepunishment of stoppage of increment for one year, with cumulativeeffect, including the period spent on leave, by an order, dated26.4.2001, issued by the third respondent. The appeal preferred bythe petitioner, against the said punishment, to the secondrespondent and the memorial petition submitted to the firstrespondent, were rejected, as devoid of merits, by their respectiveorders, dated 29.9.2001 and 25.9.2002. 9. The main contention raised by the learned counsel appearingfor the petitioner is that serious prejudice had been caused to thepetitioner due to the fact that the petitioner had not been given anopportunity to put forth his case before the disciplinary authorityhad confirmed the findings of the Enquiry Officer, with regard tothe charges levelled against the petitioner. 10. The learned counsel appearing for the petitioner had furthersubmitted that certain irregularities had been committed by therespondents during the enquiry. Even though the respondent Board hadbeen represented by the Assistant Executive Engineer at the time ofthe enquiry, it was not made known that the petitioner could engage https://hcservices.ecourts.gov.in/hcservices/ a co-employee for assisting him during the enquiry. 11. It has been further stated that the petitioner was alsoprejudiced by the fact that no pre-decisional hearing had been givento him by the disciplinary authority and that the report of theEnquiry Officer had been given to him only along with the show causenotice. Further, it is a case of no legal evidence, as there was nosufficient evidence on record to prove the charges levelled againstthe petitioner. Mere hearsay evidence cannot be taken into accountto come to the conclusion that the charges were proved against thepetitioner. In fact, some of the evidence let in on behalf of therespondent Electricity Board were in support of the petitioner.However, both the Enquiry Officer, as well as the disciplinaryauthority, had not considered the evidence in favour of thepetitioner. The disciplinary authority, as well as the appellateauthority had misconstrued the evidence in confirming the findingsof the enquiry officer, without applying their minds, independently.Hence, the punishment imposed on the petitioner is without evidenceand disproportionate in nature and therefore, it is illegal andvoid. 12. The learned counsel appearing for the respondents hadsubmitted that the first and third charges levelled against thepetitioner had been clearly proved based on the evidence availableon record. The disciplinary authority had confirmed the findings ofthe Enquiry Officer only after considering all the relevant recordsand therefore, there is nothing wrong in the order passed by thedisciplinary authority, confirming the findings of the EnquiryOfficer. 13. Further, the punishment imposed on the petitioner iscommensurate with the gravity of the proven charges. The pastrecords of the petitioner had also been taken into considerationbefore coming to the conclusion to impose the punishment of stoppageof increment for a period of one year, with cumulative effect. Thefindings of the Enquiry Officer had been furnished to thepetitioner, along with the second show cause notice, so as to enablehim to submit his objections. No prejudice had been caused to thepetitioner by the said procedure. The petitioner is coming under thecategory of Class II service, covered under the Discipline andAppeal Regulations. There is no provision in the Discipline andAppeal Regulations to permit the representative of the Union, towhich he belongs, to assist him during the enquiry. Further, thepetitioner, at the time of the conclusion of the oral enquiry, onthe charges levelled against him, had expressed his satisfaction,with regard to the manner in which the enquiry had been conducted.Therefore, it is clear that there is no illegality or infirmity inthe orders passed by the respondents, imposing the punishment ofstoppage of increment for a period of one year, with cumulative https://hcservices.ecourts.gov.in/hcservices/ effect, on the petitioner. Hence, the writ petition filed by thepetitioner is liable to be dismissed. 14. The learned counsel appearing for the petitioner had reliedon the following decisions in support of his contentions:14.1. In UNION OF INDIA Vs. H.O.GOEL (AIR 1964 SC 364), theSupreme Court had held that it is not necessary that, in order toattack the order on the ground that it is based on no evidence, malafide exercise of power by the Government should be alleged. The twoinfirmities are seperate and distinct though, conceivably, in somecases both may be present. If it is proved that there is no evidenceto support the conclusion of the Government, a writ of certiorariwill issue without further proof of mala fides. 14.2. In L.MANICKAVASAGAM Vs. T.N.ELECTRICITY BOARD (1998 (2)L.L.N.923), this Court had held that the report of the enquiryofficer should be served on the delinquent before proposing thepunishment to be imposed on him. When the said report had beenserved on the delinquent only along with the main show cause notice,it is a denial of reasonable opportunity and a breach of theprinciples of natural justice. 15. In view of the submissions made by the learned counselsappearing for the parties concerned and on a perusal of the recordsavailable, it is clear that the petitioner has not shown sufficientcause or reason for this Court to interfere with the impugned orderpassed by the respondents. It is also clear that the petitioner hasbeen given sufficient opportunity to defend himself during theenquiry conducted by the respondent, against the charges levelledagainst the petitioner. The petitioner has not been in a position toshow that real and substantial prejudice has been caused to him dueto the fact that he was not provided with a co-employee to assisthim during the enquiry. In fact, it is the case of the respondentsthat there is no provision to provide him such assistance in therelevant service rules applicable to the petitioner. 16. Further, the petitioner has not been in a position to showthat he was prejudiced by the fact that he was not furnished withthe enquiry report, along with the show cause notice issued by theauthority, the third respondent herein. The contentions raised onbehalf of the petitioner that the enquiry officer, the disciplinaryauthority and the appellate authority had not applied their minds,while holding that the first and the third charges levelled againstthe petitioner had been proved, as they had not considered theevidence on record, properly, cannot be countenanced. It is foundthat sufficient reasons had been given by the disciplinaryauthority, as well as the second respondent appellate authority,before they had confirmed the findings of the Enquiry Officer. In https://hcservices.ecourts.gov.in/hcservices/ such circumstances, the writ petition filed by the petitioner isdevoid of merits and therefore, it is liable to be dismissed. Hence,the writ petition stands dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarlanTo:1. The Chairman Tamil Nadu Electricity Board 765, Anna Salai, Chennai-600 0022. The Chief Engineer (Distribution) Office of the Chief Engineer Tamil Nadu Electricity Board Vellore Circle, Vellore-63. The Superintending Engineer Office of the Superintending Engineer Tirupattur Electricity Distribution Circle Tirupattur – 635 601+1cc to Mr.B.Sekar,Advocate Sr 3725+1cc to Mr.Balan Haridass, Advocate Sr 3141BS (CO)km/9.2.W.P.No.2539 OF 2003