IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.03.2009 CORAM: THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Writ Appeal No.1496/2007 R.Jayabalan ..Appellant/Petitioner Vs. 1.The Chairman, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-2. 2.The Chief Engineer (Personnel) Tamil Nadu Electricity Board, Administration Branch, 8th Floor, 800, Anna Salai, Chennai-2. 3.The Chief Engineer (Distribution) Vellore-6. ..Respondents/Respondents Appeal filed against the order passed by this Court dated 31.08.2004 passed in W.P.No.20809/2000 this W.P. filed under Article 226 of the Constitution of India, praying to issue 'writ of certiorarified mandamus' calling for the proceedings of the 3rd respondent made in letter No.13448/Adm/B2/2000 dated 11.07.2000 and quash the said proceedings of the 3rd respondent dated 11.07.2000 and consequently direct the respondents to regularise the services of the petitioner from 15.03.1985 till 28.03.1998 with all attendant benefits such as seniority increment, continuance of service, promotion, etc. For Appellant : Mr.A.Jena Senan For Respondents : Mr.B.Sekar, for T.N.E.B. J U D G M E N T K.K.SASIDHARAN, J. This writ appeal is directed against the order passed by the learned Single Judge dated 31.08.2004 in W.P.No.20809/2000 whereby and where under the challenge to the order of the third respondent https://hcservices.ecourts.gov.in/hcservices/ regularizing the period between the date of suspension and the date of dismissal of the appellant from service was negatived. Background facts :- 2.The petitioner was appointed as Assistant Engineer in the Tamil Nadu Electricity Board and later he was promoted as Assistant Divisional Engineer. While so, he was issued with a charge memo during March, 1985 and he was also placed under suspension on 15.03.1985. The charges related to irregularity in granting on line service connection as well as unauthorised absence. Subsequently, on the basis of the enquiry report, the appellant was dismissed from service as per order dated 29.01.1987. The said order was challenged in W.P.No.3594/1987 and this Court as per order dated 17.6.1991 quashed the order of dismissal on the ground that the proceeding was in violation of the principles of natural justice, as the report of Enquiry was not given to the appellant. Subsequently, the appellant was informed by the respondents that he is deemed to have been under continuous suspension w.e.f. 29.01.1987 on which date, he was dismissed from service. The request made by the appellant to reinstate him in service in view of the order passed in W.P.No.3594/1987 was not considered by the respondents. Finally, the appellant was reinstated in service as per proceedings dated 04.02.1993 and he was posted as Assistant Executive Engineer at Kadambari. 3.In the meantime, fresh set of charges were issued and ultimately, on the basis of the Enquiry Report, appellant was compulsorily retired as per order dated 10.03.1998. Since the Review petition filed by the appellant was rejected, he filed W.P.No.14524/1999 challenging the order in the Review petition as well as the order of compulsory retirement. Subsequently, as per order dated 11.07.2000, period between the date of suspension and dismissal, viz., 15.03.1985 to 09.02.1993 was regularised by the third Respondent as Earned Leave from 15.03.1985 to 17.06.1985 and the remaining period was treated as leave on loss of pay [18.06.1985 to 09.02.1993]. The said order was challenged by the appellant in W.P.No.20809/2000. 4.The respondents filed their counter affidavit justifying the order dated 11.07.2000 and by contending that the appellant was not fully exonerated from the charges and as such, the Board was entitled to pass suitable orders for regularizing the period of absence. Disposal of the Writ Petition :- 5.The Writ Petition filed by the appellant challenging the order of compulsory retirement in W.P.No.14524/1999 as well as W.P.No.20809/2000 challenging the impugned Order dated 11.07.2000 regularizing the period between the date of suspension were taken up https://hcservices.ecourts.gov.in/hcservices/ together and the learned Single Judge was of the opinion that the first respondent Board had completely accepted the report of the enquiry officer without application of mind and as such, the order of compulsory retirement dated 10.03.1998 was vitiated. According to the learned Single Judge, the subsequent order in the review petition was equally vitiated as the said proceeding dated 16.07.1999 does not indicate any reason even though the review petition was on the basis of a specific regulation. In the said circumstances, the learned Judge was of the opinion that on account of non consideration of relevant materials, the order imposing punishment of compulsory retirement cannot be sustained. Accordingly, the learned Single Judge quashed the order of punishment of compulsory retirement and granted the following relief :- "19.Having regard to all these aspects, I feel interest of justice would be served by quashing the order of punishment of compulsory retirement and directing that the petitioner shall be deemed to have been reinstated in service. It is further directed that a punishment of with-holding of promotion for a period of one year in 1998 is to be imposed. However, since the petitioner had not actually worked and the departmental proceedings cannot be said to be fully without justification, it is not proper to reward the petitioner with backwages. The petitioner shall be deemed to have continued in service until his normal date of retirement. The increments for the extended period would be notionally calculated. The case of the petitioner shall also be considered for notional promotion for the year 1999 and thereafter shall also be considered. The pension and other retiral benefits are to be recalculated on the basis of such notional increments and notional promotion, if any, and paid to the petitioner. Such direction should be implemented within a period of four months from the date of receipt of the order." 6.The learned Single Judge was also of the opinion that the order passed by the third Respondent dated 11.07.2000 regularizing the period of suspension prior to the order of dismissal was perfectly correct in the circumstances of the case and as such, no interference was called for in the said order. It is the said order which is impugned in the present appeal. https://hcservices.ecourts.gov.in/hcservices/ Submissions :- 7.The learned Counsel for the appellant submitted that the order dated 31.08.2004 in W.P.No.14524/1999 has become final and as such, the issue regarding the order of compulsory retirement no more survives for consideration. According to the learned Counsel, the appellant was ready and willing to do work at all point of time, and it was only on account of non-issuance of posting orders that he was not in a position to work for the period from 15.03.1985 to 09.02.1993 and as such, the respondents should have regularised the said period by granting monetary benefits and also by calculating the said period of service for the purpose of granting pensionary benefits. The learned Counsel further contended that immediately after the reinstatement of the appellant in service he made series of representations to regularise his period of suspension, but, however, no orders were passed by the respondents till 10.03.1998 and as such, the appellant is entitled to get the benefits for the period in question. 8.The learned Counsel for the respondents while supporting the order passed by the learned Single Judge contended that the appellant was not fully exonerated and as such, he was not entitled to the relief of regularization of the period of absence from duty. Analysis :- 9.It is found from the material documents available on record that disciplinary proceedings against the appellant commenced in the year 1985 and there were series of proceedings which resulted in quashing the charge sheet issued by the respondents and the same was followed by fresh charge-sheet as well as enquiry. It was the grievance of the appellant that though he was willing to work always, he was prevented by the respondents from joining duty and as such, the relevant period has to be treated as spent on duty and as such, he is entitled to all the terminal benefits attached therewith. 10.It is evident from the facts of the case that during the major part of the service, the appellant was engaged in litigation. Even though the ultimate order of compulsory retirement imposed on the appellant was quashed by the learned Judge as per order dated 31.08.2004 in W.P.No.14524/1999, he was not exonerated fully. The learned Judge in the peculiar circumstances of the case was of the opinion that interest of justice would be sub-served by quashing the order of punishment of compulsory retirement and imposing the punishment of with-holding of promotion for a period of one year in 1998. The learned Single Judge opined that some of the findings by the Enquiry Officer can be said to be on the basis of the explanation of the petitioner himself and therefore, it was not a case as if the petitioner would be fully exonerated even if the matter was remanded. https://hcservices.ecourts.gov.in/hcservices/ Relevant service regulation :- 10.Electricity Board regulations regarding pay and allowances to be paid to the employee for the period of his absence from duty including the period of suspension proceeding his dismissal reads thus :- "57(1) When an employee, who has been dismissed, removed or compulsorily retired, is reinstated as a result of appeal or review or would have been so re-instated (but for his retirement on superannuation while under suspension or not), the authority competent to order the reinstatement shall consider and made a specific order. (a)regarding the pay and allowances to be paid to the employee for the period of his absence from duty (including the period of suspension preceding his dismissal removal or compulsory retirement, as the case may be) and (b)whether or not the said period shall be treated as a period spent on duty. (2)Where the authority competent to Order reinstatement is of the opinion that the employee who had been dismissed, removed or compulsorily retired has been fully exonerated, the employee shall, subject to the provisions, of sub- regulation (6), be paid the full pay and allowance to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement as the case may be. Provided that where such authority is of the opinion that the termination of the proceedings instituted against the employee had been delayed due to reasons directly attributable to the employee, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him, and after considering the representation, if any, submitted to hi, direct, for reasons to be recorded in writing that the employee shall, subject to the provisions of sub-regulation (7), be paid for the period of such delay, only such amount (not being https://hcservices.ecourts.gov.in/hcservices/ the whole), of such pay and allowances as it may determine. (3)In a case falling under sub-regulation (2) the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes. (4)In cases other than those covered by sub- regulation (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non- compliance with the requirements of the provisions of regulation 8(b) of the Tamil Nadu Electricity Board Employees' Discipline and Appeal Regulations, and no further enquiry is proposed to be held) the employee shall, subject to the provisions of sub-regulation (6) and (7), be paid such amount (not being the whole) of the pay and allowance to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine after giving notice to the employee of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served or as may be specified in the notice. Provided that any payment under this sub- regulation to an employee shall be restricted to a period of three years immediately preceding the date on which orders for reinstatement of such employee are passed by the Appellate Authority or reviewing authority or immediately preceding the date of retirement on superannuation of such employee, as the case may be. (5)In a case falling under sub-regulation (4) the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically https://hcservices.ecourts.gov.in/hcservices/ directs that it shall be so treated for any specified purpose. Provided that if the employee so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the employee. Explanation The order of the competent authority under the preceding proviso shall be absolute. (6)The payment of allowances under Sub- Regulation (2) or under sub-regulation (4) shall be subject to all other conditions under which such allowances are admissible. (7)The amount determined under the proviso to Sub-Regulation (2) or under sub-regulation (4) shall not be less than the subsistence allowance and other allowances admissible under Regulation 56. (8)Any payment made under this regulation to an employee on his re-instatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal, or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this Regulation are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the employee. 57-A. (1)Where the dismissal, removal or compulsory retirement of an employee is set aside by a Court of Law and such employee is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the employee shall be paid pay and allowances in accordance with the provisions of sub-regulation (2) or (3) subject to the direction, if any, of the Court. (2)(i) Where the dismissal, removal or compulsory retirement of an employee is set aside by the https://hcservices.ecourts.gov.in/hcservices/ Court solely on the ground of non-compliance with the requirements of the provisions in Regulation 8(b) of Tamil Nadu Electricity Board Employee's Discipline and Appeal Regulations, and where he is not exonerated on merits, the employee shall, subject to the provisions of sub-regulation (7) of Regulation 57, be paid such amount (not being the whole) of the pay and allowance to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the employee of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served or as may be specified in the notice." 11.The appellant appears to claim monetary benefits for the period from 15.03.1985 to 09.02.1993 on the ground that punishment of compulsory retirement was set aside by the learned Single Judge. It is true that clause 57A of the regulations would come into operation in the event of quashing the punishment of dismissal, removal or compulsory retirement without holding any further enquiry. However in the present case, the appellant was not fully exonerated and the learned Single Judge quashed the punishment of compulsory retirement on account of delay in finalizing the disciplinary proceedings, mental agony caused to the appellant and the denial of promotion due to the pendency of the disciplinary proceedings. The learned Judge was also of the opinion that the proceedings should be given a finality without remitting the matter to the authorities. 12.The observation of the learned Single Judge clearly shows that the appellant was not absolved of all the charges and the relevant portion reads thus :- "17.Keeping in view the aforesaid principles of law and the various peculiar facts and circumstances of the present case and with a view to bring an end to further litigations and wranglings, I intend to decide the matter finally by adopting a path of “balancing of the scales of justice”. 18.Admittedly, the petitioner has reached the age of superannuation sometime during the year 2003, while the matter was pending in the High Court, and therefore, even if the https://hcservices.ecourts.gov.in/hcservices/ disciplinary proceedings is fully quashed, he cannot be reinstated in service at present. As per the order passed by the Board, the petitioner was compulsorily retired in March, 1998 entitling him to receive the retirement benefits. The disciplinary proceedings related to incidents prior to 1985, and at present, third round of litigation is in the High Court. As already indicated, even though there was no illegality in starting a fresh proceedings in 1992, the disciplinary proceedings had unnecessarily remained pending without any valid justification for a period of about 6 years from 1992 to 1998, obviously causing much mental agony to the petitioner. The Board has already directed that the period between 15.3.1985 and 9.2.1993 shall be treated as leave on loss of pay except for a period of about 95 days, which was treated as earned leave. It is obvious that because of the pendency of the disciplinary proceedings, the petitioner has stagnated as Assistant Executive Engineer, even though his contemporary colleagues must have received at least two promotions thereafter. In the charges made against the petitioner, there is no allegation of any improper motive or any corruption, but the allegations relate to irregularities and lack of supervision, etc., not touching upon the integrity of the petitioner in any manner. Some of the findings by the enquiry officer can be said to be on the basis of the explanation of the petitioner himself, and therefore, it is not a case as if the petitioner would be fully exonerated even if the matter is remanded." 13.Since the learned Judge has observed that even if the matter was remitted to the Department for fresh consideration, there would be no chance of exonerating the appellant of all charges, as some of the findings were recorded only on the basis of the explanation submitted by the appellant himself, we are of the view that the appellant is not eligible for back wages. The appellant has not worked during the period made mentioned in the order dated 11.07.2000 and he was not absolved of all the charges. The factum of closure of the disciplinary proceeding by setting aside the punishment without remitting the matter for fresh enquiry will not give a right to the appellant to claim backwages. 14.The Hon'ble Supreme Court in Lajpat Rai Mehta v. Secretary to Government of Punjab, Department of Irrigation & Power, Chandigarh, 2009 (1) Scale 76 opined that while adjusting equities, Court is https://hcservices.ecourts.gov.in/hcservices/ entitled to see the conduct of the parties and further observed thus :- "The Court while exercising its discretionary jurisdiction is entitled to see the conduct of the parties so as to enable it to adjust equities. It is also the duty of the Court to see that the public exchequer should not unnecessarily be depleted despite the fact that the State has failed and/or neglected to initiate disciplinary proceeding against the appellant". 15.The learned Single Judge while balancing the scales of justice was of the opinion that the appellant was not entitled to back wages and passed an equitable order to grant notional promotion and notional increment and to calculate the pension and other retirement benefits on the basis of such notional promotion/increments. We are informed that the appellant is receiving pension computed on such basis. 16.As rightly observed by the learned Single Judge, the appellant was denied promotion on account of the pendency of the disciplinary proceedings indefinitely. The respondents have no case that the appellant was involved in any act of corruption or anything touching upon his integrity. In such circumstances, we are of the opinion that the respondents were not justified in not regularizing the period from 18.06.1985 to 09.02.1993 by treating the said period as leave on loss of pay. On a careful consideration of the entire matter, we feel that interest of justice would be sub served by regularizing the period from 15.03.1985 to 09.02.1993 giving increments notionally solely for the purpose of calculating pension. 17.Accordingly, the order dated 11.07.2000 on the file of the third Respondent is set aside. The respondents are directed to calculate the increment for the period from 15.03.1985 to 09.02.1993 notionally and re-fix the pension of the appellant by taking into account such increments. It is made clear that the grant of notional increment is only for the purpose of pensionary benefits and that too prospectively with effect from 01.04.2009 and as such, the appellant is not entitled for arrears of pension consequent to such re- fixation. Similarly, the appellant is not entitled to the back wages for the said period. 18.The writ appeal is allowed to the extent indicated above. No costs. sd/- Asst.Registrar /true copy/ tar Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Chairman, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-2. 2.The Chief Engineer (Personnel), Tamil Nadu Electricity Board, Administration Branch, 8th Floor, 800, Anna Salai, Chennai-2. 3.The Chief Engineer (Distribution) Vellore-6. Judgment in Writ Appeal No.1496/2007 CK (CO) GSK 05.03.2009. https://hcservices.ecourts.gov.in/hcservices/