R. Venkatakrishnan Vs Tamil Nadu Small Industries Development Corporation

@JUDGMENTTAG-ORDER

K. Chandru, J.@mdashThe Petitioner has filed the present writ petition seeking to challenge an order dated 17.12.2008 passed by the second Respondent, viz., Tamil Nadu Small Industries Development Corporation Limited (for short "TANSIDCO"), and after setting aside the same seeks a direction for the grant of full back-wages for the period from 21.5.1996 till the date of his superannuation, viz., on 31.1.2003.

2. The writ petition was admitted on 28.10.2009. Pending the writ petition, this Court only ordered notice in the direction petition and subsequently, that petition was closed on 25.6.2010. On notice from this Court, on behalf of the first Respondent a counter affidavit dated 2.11.2010 was filed. The original file relating to the Petitioner''s disciplinary proceedings was also circulated.

3. Heard the arguments of Mr. K.Kumar, learned Senior Counsel appearing for Mr. K.Gangadaran, learned Counsel for the Petitioner, and Mr. B.Manohar, learned Counsel for the Respondent/TANSIDCO. This Court also perused the original records produced by the Respondents.

4.1. The Petitioner was working as a Manager (L&A) at the Central Office. On receipt of several complaints, the Petitioner was placed under suspension. Subsequently, a charge memo was framed under Rule 6.15(b) of the Service Rules of the TANSIDCompany There were as many as five charges against the Petitioner.

4.2. The first charge relates to the Petitioner''s failure in bringing to the notice of the higher authorities about the instructions issued by the Government in G.O.Ms. No. 883, Finance (BPE) Department, dated 19.11.1992 for converting the post of Steno Typists into Grade I, II and III, which has resulted in wrong fixation of pay and brought wrongful loss to TANSIDCO.

4.3. The second charge was that while he was working as a Manager, he had not guided the higher authorities properly over the rule position in the matter of sanction of house building advance to Mrs. N.Vanaja, Superintendent at the Central Office. The house building advance was sanctioned to her without obtaining the original title deed and the legal opinion required, and thereby the Petitioner had violated Rule 6.1(c) of the Service Rules of TANSIDCO.

4.4. The third charge was that he had failed to conduct the enquiry against the then Branch Manager, Chingleput and staff of the Chingleput Branch Office on the petition received from the Chief Minister''s Special Cell and further ordered by the Chairman-cum-Managing Director on 26.3.1996 and therefore, he has disobeyed the lawful orders of the superior and violated Rule 6.1(d) of the Service Rules of TANSIDCO.

4.5. The fourth charge was the issuance of the valuable items to the staff and Ors. purchased out of the TANSIDCO funds, thereby violating Rule 6.1.(b) of the Service Rules of TANSIDCompany The fourth charge itself had a sub-charge, namely that he had failed to furnish the names of the persons to whom five numbers of four grams gold coins have been issued, which has also caused loss of revenue to TANSIDCO.

4.6. The fifth charge comprises of three sub-charges, including that the Petitioner had not brought to the notice of the authorities the rule position with reference to the appointment of Mrs. Dhanalakshmi as Steno-Typist; that the said Dhanalakshmi was allowed to sign the attendance register from 22.7.1994, whereas her appointment order was issued only on 17.8.1994; and that he had issued a duty certificate to the said Dhanalakshmi for the period from 22.7.1994 to 6.9.1994 without any authority.

4.7. The Petitioner gave a detailed explanation. Thereafter, an enquiry was ordered to be conducted by the General Manager and the Petitioner sought a change of enquiry officer and also copies of certain documents. However, the enquiry was completed by the then General Manager and he submitted his findings on 17.9.1997. The enquiry officer held Charges 1, 2, 4 and 5 proved and in respect of Charge 3, he recommended dropping of the charge. The Petitioner was asked to furnish his remarks to the enquiry report and the Petitioner gave his reply on 14.11.1997. Thereafter, the third Respondent, by an order dated 4.12.1997, compulsorily retired the Petitioner from service with effect from the date of the order. Thereafter, the Petitioner filed an appeal to the Board of Directors and the Board of Directors, by an order dated 4.2.1998, dismissed the appeal and held that there was No. case for interfering with the order of the Chairman-cum-Managing Director.

4.8. The Petitioner challenging his compulsory retirement filed W.P. No. 5040 of 1998 and that writ petition was allowed by a final order dated 25.8.2005. This Court held the order dated 4.12.1997 passed by the Chairman-cum-Managing Director was nothing but a verbatim reproduction of the earlier show cause notice and the explanation offered by the Petitioner has been dealt with in a summary manner, and therefore, the said order was set aside. A finding was recorded that the order did not disclose the application of mind in the light of the explanation submitted by the Petitioner. Therefore, the Respondents were directed to proceed afresh and to pass fresh orders by giving proper consideration to the explanation.

4.9. Aggrieved by the said order, the Respondents filed a writ appeal, being W.A. No. 133 of 2006. That writ appeal was disposed of by a Division Bench vide judgment dated 24.1.2008. The Division Bench held that the Petitioner in the original writ petition sought for setting aside only the appellate order and the said order was set aside by this Court directing the TANSIDCO to consider the explanation of the Petitioner. It was held that the original order of the TANSIDCO automatically merged with the appellate order and the appellate authority alone can be directed to consider the Petitioner''s case and therefore, in paragraph [15] of the said judgment, it was directed as follows:

15. Following the decision of the Supreme Court, in the case of National Fertilizers Ltd. and Another Vs. P.K. Khanna, , and in view of the reasoning stated in the foregoing paragraphs, the order of the learned single Judge is modified to the effect that the order of the appellate authority is set aside by retaining the original authority''s order and the matter is remitted back to the appellate authority with the direction for reconsideration of the objections raised by the Respondent to the enquiry officer''s report and pass further order. Having regard to the plight the Respondent has undergone for more than a decade, the appellate authority is directed to finally dispose of the appeal at an early date, in all fairness within four months from the date of receipt of a copy of this order. The appeal stands disposed of in the above terms.

4.10. The Petitioner sent a representation to the Board of Directors and he stated that he had put in 32 years of service and during his tenure he has not suffered any punishment and, therefore, the order must be set aside. The appellate authority, namely the Board of Directors, held that the Petitioner had failed in his duty to guide the Chairman-cum-Managing Director in accordance with the rules and there are No. merits in the appeal filed by the Petitioner and there was No. sufficient ground to interfere with the order passed by the original disciplinary authority.

4.11. Even after the dismissal of the appeal, the Petitioner sought certain information from TANSIDCO - the first was to get the Board Resolution No. 200, in which his appeal was considered, and the second was the Board Resolution No. 105, wherein the action of the Managing Director in having incurred an expenditure of `59,02,368/-towards the Silver Jubilee Function of the Corporation was ratified.

4.12. The Petitioner is once again before this Court challenging the order compulsorily retiring him from service. The main contention raised by the Petitioner was that the non application of mind by the Board of Directors is once again reflected in the board resolution. They have not considered the issue independently. The witnesses mentioned in the charge memo were never produced. The enquiry officer went beyond the purview of the charges and the Respondents did not take into account the observation made by this Court in W.P. No. 5040 of 1998. The appellate authority did not give the materials sought at the appellate stage. The enquiry conducted against the Petitioner was not an enquiry in the eye of law and the enquiry officer himself had acted as presiding officer. The appellate authority did not take into account the submission made by the Petitioner and the Petitioner had been singled out and made a scapegoat. There was No. cause for sending the Petitioner on compulsory retirement.

5.1. In the counter affidavit filed, it was stated that all opportunities to the Petitioner were given at the time of the enquiry. He was also permitted to take extracts of all the records. Since the Petitioner had the opportunity of perusing the records and had also taken extracts from the relevant materials, it is unnecessary to provide copies of those documents. The allegation made against the then General Manager and the request for change of enquiry officer was rejected. The then General Manager was a deputationist to the Corporation. The Petitioner was placed under suspension on the basis of the compilation of the charges by the previous General Manager and therefore, it is not a case of the enquiry officer acting as presiding officer.

5.2. It is also stated that the disciplinary authority gave a personal hearing on 29.10.1997 before passing final order and he had kept in mind all the relevant facts while passing the order. On a direction from this Court, the Petitioner''s appeal was reheard and the Board also gave a personal hearing on 16.7.2008 and the Petitioner gave a further representation, which was also considered.

6.1. Mr. K.Kumar, learned Senior Counsel submitted that the employer must supply a preliminary enquiry report and non furnishing of list of witnesses and statements was violative of the principles of natural justice and for this purpose, he relied upon the judgment of the Punjab and Haryana High Court in Punjab State Electricity Board v. Narinder Singh, 1998 Lab. I.C. 1384.

6.2. He further referred to the judgment of the Supreme Court in Khem Chand Vs. The Union of India (UOI )and Others, for contending that the documents relied on by the enquiry officer at the enquiry must be produced to the delinquent, affording him an opportunity to deal with them.

6.3. He submitted that the order passed by the statutory authority must be judged by the reasons recorded in the order and cannot be construed in the light of the subsequent explanation given by the authority and for this purpose, he relied upon the judgment of the Supreme Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, .

6.4. He submitted that any penalty imposed in breach of the relevant statute is liable to be set aside and for this purpose, he relied upon the judgment of the Supreme Court in Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi and Others, .

6.5. He also submitted that an enquiry officer himself acting as a presiding officer also is opposed to the principles of natural justice, as held by this Court in B.Uma v. The Superintending Engineer, MES(D) Central and Anr. 1990 WLR 495.

6.6. He further referred to the judgment of the Supreme Court in Bongaigon Refinery and Petrochemicals Limited and Ors. v. Girish Chandra Sarma [2007] 7 SCC 206, for the purpose of contending that a person cannot be made a scapegoat for a collective decision.

7. In the present case, it is not clear as to how these judgments can be of any use to the Petitioner.

8. As can be seen, in the earlier round of litigation, this Court did not disturb the order passed by the disciplinary authority but only set aside the order of the appellate authority and the appellate authority was directed to consider the explanation of the Petitioner. Even after the remand of the matter, the appellate authority gave the Petitioner a personal hearing. The mere fact that the expenditure was ratified by the Board will not, by itself, exonerate the Petitioner from the charges levelled against him. The charges also include his failure to guide the head of the Organization and not only an extravagant expenditure.

9. As rightly explained, the suspension was made on the basis of the compilation of the charges made by the previous General Manager and the present General Manager came on deputation and, therefore, it cannot be said that the same officer who framed the charges had conducted enquiry.

10. The Petitioner obtaining a copy of the board resolution through the Right to Information Act and contending that there was No. application of mind cannot be accepted. The board resolution is only the gist of the understanding of the Board. In the absence of the Petitioner stating that the Board never discussed his appeal and that he was never given any hearing, the other allegations levelled against the Board cannot be countenanced by this Court.

11. The appellate authority, namely the Board, has understood the points of remand and has correctly reviewed and rejected the case of the Petitioner. The requirement of furnishing of copy of the preliminary enquiry report will arise only if the preliminary enquiry report forms part of the final order, and in the absence of rules, there is No. obligation to provide the preliminary enquiry report, as held by the Supreme Court in Pandit D. Aher Vs. State of Maharashtra, .

12. When the procedure for holding of enquiry had been complied with by the authorities, the Courts ordinarily are not to disturb the penalty. The judicial review over the proportionality of the punishment is very limited and a well reasoned order of the departmental authority cannot be interfered with by this Court, as held by the Supreme Court in Chairman and MD V.S.P. and Others Vs. Goparaju Sri Prabhakara Hari Babu, .

13. The Supreme Court in National Fertilizers Ltd. and Another Vs. P.K. Khanna, , has held that the disciplinary authority is required to give reasons separately only when he disagrees with the findings of the Enquiry Officer and not when he agrees with the findings.

14. In view of the above, there is No. case made out to interfere with the impugned order. Hence, this writ petition stands dismissed. However, there will be no order as to cost.