IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.1.2009 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.2539 OF 2003 D.Sivapragasam .. Petitioner vs. 1. Tamil Nadu Electricity Board rep. by its Chairman 765, Anna Salai, Chennai-600 002 2. The Chief Engineer (Distribution) Office of the Chief Engineer Tamil Nadu Electricity Board Vellore Circle, Vellore-6 3. The Superintending Engineer Office of the Superintending Engineer Tirupattur Electricity Distribution Circle Tirupattur – 635 601 .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the order of the third respondent, dated 26.4.2001, bearing ref.No.K.No.755/NP:3/NA.2/K.O.N.99-11 imposing the punishment of one increment cut with cumulative effect as confirmed by the order of the second respondent dated 29.9.2001 bearing ref.No.K.A.N.17474/NR/A.3/2001 and the first respondent order, dated 25.9.2002 and quash the same and consequently direct the respondents to 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 R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 2. It has been stated that the petitioner had joined in the service of the Tamil Nadu Electricity Board, on 26.7.1979, as a Switch 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 a Junior Engineer I Grade in Tirupattur Distribution Circle. While so, a charge sheet, dated 3.11.1999, had been issued, with three charges levelled against him. The first charge is that the petitioner had demanded a sum of Rs.5,000/-, as bribe, for effecting electricity service connection to one Chinnakulandai. The second charge is that even though one P.Subramani was eligible to get the service connection, the said connection had not been given, as the petitioner had not been paid the amount demanded as bribe. The third charge is that he had got personally involved in giving service connection to one Perumal, asking him to produce false documents, by violating the rules. 3. The petitioner had submitted his explanation, by a letter, dated 3.1.2000, denying the charges. Not being satisfied with the explanation submitted by the petitioner, an enquiry had been held, between 7.4.2000 and 19.1.2001, with regard to the charges levelled against the petitioner. During the domestic enquiry, the petitioner had not been informed that he could engage a co-employee to assist him. With regard to the first charge, the three persons, namely, Chinnakulandai, Govindasamy and Anandan, had been examined on behalf of 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 the demand of bribe by the petitioner, since the third witness, namely, Anandan, had told them that only if such a complaint was given, the service connection would be effected at the earliest. Even Anandan had admitted that there was no proof with regard to the demand of bribe by the petitioner. With regard to the second charge, Jayavelu and Subramani had been examined. They had admitted that the hut for which the service connection was sought for was not fit to be given the service connection, as it did not fulfill the requirements. They had also admitted that the petitioner had not demanded the bribe, as alleged. As far as the third charge was concerned, it was found that the service connection to Survey No.454/2c, as sought for, cannot be given and since it was possible to give service connection in Survey No.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 charges levelled against the petitioner had not been proved, the Enquiry Officer had come to the conclusion that the charge Nos.1 and 3 had been proved and that the second charge had not been proved. From the evidence of the witnesses of the respondent Board, it was clear that the charge against the petitioner, that he had demanded the bribe, had not been proved. Further, with regard to the third charge, it was clearly brought out during the enquiry that Perumal had applied for a service connection in Survey No.454/2c. Thereafter, since sufficient water was not available in the said well, he had applied for effecting the service connection to the well in Survey No.535/2a. After the necessary inspection had been done, and based on the recommendation of the Assistant Executive Engineer, the Survey Number had been admitted. Thereafter, the formalities, as prescribed by the Rule, had been completed. Even though the said charge had not been proved, the enquiry officer had erroneously come to the conclusion that it was proved, on the ground that there were some discrepancies in the statement of the petitioner, with regard to the service connection. Therefore, the findings of the enquiry officer have been rendered without any evidence. 5. It has been further stated that the third respondent, by his proceedings, dated 21.3.2001, had straight-away concurred with the findings of the enquiry officer, without giving an opportunity to the petitioner on his findings, causing considerable prejudice to the petitioner. The third respondent had merely held that the charges had been proved, concurring with the findings of the Enquiry Officer, without independently analysing the evidence on record. Further, the non-furnishing of the enquiry officer's report to the petitioner, before coming to the conclusion of guilt, had caused serious prejudice to the petitioner. 6. The petitioner has further stated that for the second show cause notice, dated 21.3.2001, the petitioner had given an explanation, on 18.4.2001, stating that the first and third charges had not been proved. However, the third respondent, without considering the objections properly, had, mechanically, accepted the findings of the Enquiry Officer and had imposed the punishment of stoppage of increment for one year, with cumulative effect. The petitioner had submitted an appeal to the second respondent, on 17.6.2001. However, the second respondent had also committed the same error in rejecting the appeal, by an order, dated 29.9.2001. The memorial submitted by the petitioner, dated 18.11.2001, had also been rejected, on 25.9.2002. In such circumstances, the petitioner had preferred the present writ petition before this Court, under Article 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. It has been stated that the petitioner, while he was working as a Junior Engineer I Grade (Electrical) at Vellakuttai operation and Maintenance Section, had committed certain lapses by demanding a bribe of Rs.5,000/- for effecting an agricultural service connection. He had rejected the application for service connection expecting a bribe from the person, who had requested for the said service connection. Further, he had tried to divert a service connection, sought for a well, illegally, for a wrongful gain, causing loss to the Tamil Nadu Electricity Board. Therefore, the charges had been framed against the petitioner, by the third respondent, by a memo, dated 3.11.1999/12.11.1999, as per the the Tamil Nadu Electricity Board Employees discipline and Appeal Regulations. The petitioner had submitted the explanation, dated 3.1.2000. 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 an oral enquiry, on various dates, giving all necessary opportunities to the petitioner to defend himself against the charges. The petitioner had expressed his satisfaction over the enquiry conducted by the Enquiry Officer. 8. It has been further stated that the Enquiry Officer had furnished the enquiry report, together with the findings, holding that the first and third charges were proved and that the second charge had not been proved. Thereafter, a final order had been passed, observing all the necessary procedures, imposing the punishment of stoppage of increment for one year, with cumulative effect, including the period spent on leave, by an order, dated 26.4.2001, issued by the third respondent. The appeal preferred by the petitioner, against the said punishment, to the second respondent and the memorial petition submitted to the first respondent, were rejected, as devoid of merits, by their respective orders, dated 29.9.2001 and 25.9.2002. 9. The main contention raised by the learned counsel appearing for the petitioner is that serious prejudice had been caused to the petitioner due to the fact that the petitioner had not been given an opportunity to put forth his case before the disciplinary authority had confirmed the findings of the Enquiry Officer, with regard to the charges levelled against the petitioner. 10. The learned counsel appearing for the petitioner had further submitted that certain irregularities had been committed by the respondents during the enquiry. Even though the respondent Board had been represented by the Assistant Executive Engineer at the time of the 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 also prejudiced by the fact that no pre-decisional hearing had been given to him by the disciplinary authority and that the report of the Enquiry Officer had been given to him only along with the show cause notice. Further, it is a case of no legal evidence, as there was no sufficient evidence on record to prove the charges levelled against the petitioner. Mere hearsay evidence cannot be taken into account to come to the conclusion that the charges were proved against the petitioner. In fact, some of the evidence let in on behalf of the respondent Electricity Board were in support of the petitioner. However, both the Enquiry Officer, as well as the disciplinary authority, had not considered the evidence in favour of the petitioner. The disciplinary authority, as well as the appellate authority had misconstrued the evidence in confirming the findings of the enquiry officer, without applying their minds, independently. Hence, the punishment imposed on the petitioner is without evidence and disproportionate in nature and therefore, it is illegal and void. 12. The learned counsel appearing for the respondents had submitted that the first and third charges levelled against the petitioner had been clearly proved based on the evidence available on record. The disciplinary authority had confirmed the findings of the Enquiry Officer only after considering all the relevant records and therefore, there is nothing wrong in the order passed by the disciplinary authority, confirming the findings of the Enquiry Officer. 13. Further, the punishment imposed on the petitioner is commensurate with the gravity of the proven charges. The past records of the petitioner had also been taken into consideration before coming to the conclusion to impose the punishment of stoppage of increment for a period of one year, with cumulative effect. The findings of the Enquiry Officer had been furnished to the petitioner, along with the second show cause notice, so as to enable him to submit his objections. No prejudice had been caused to the petitioner by the said procedure. The petitioner is coming under the category of Class II service, covered under the Discipline and Appeal Regulations. There is no provision in the Discipline and Appeal Regulations to permit the representative of the Union, to which he belongs, to assist him during the enquiry. Further, the petitioner, at the time of the conclusion of the oral enquiry, on the 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 in the orders passed by the respondents, imposing the punishment of stoppage 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 the petitioner is liable to be dismissed. 14. The learned counsel appearing for the petitioner had relied on the following decisions in support of his contentions: 14.1. In UNION OF INDIA Vs. H.O.GOEL (AIR 1964 SC 364), the Supreme Court had held that it is not necessary that, in order to attack the order on the ground that it is based on no evidence, mala fide exercise of power by the Government should be alleged. The two infirmities are seperate and distinct though, conceivably, in some cases both may be present. If it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will 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 enquiry officer should be served on the delinquent before proposing the punishment to be imposed on him. When the said report had been served on the delinquent only along with the main show cause notice, it is a denial of reasonable opportunity and a breach of the principles of natural justice. 15. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available, it is clear that the petitioner has not shown sufficient cause or reason for this Court to interfere with the impugned order passed by the respondents. It is also clear that the petitioner has been given sufficient opportunity to defend himself during the enquiry conducted by the respondent, against the charges levelled against the petitioner. The petitioner has not been in a position to show that real and substantial prejudice has been caused to him due to the fact that he was not provided with a co-employee to assist him during the enquiry. In fact, it is the case of the respondents that there is no provision to provide him such assistance in the relevant service rules applicable to the petitioner. 16. Further, the petitioner has not been in a position to show that he was prejudiced by the fact that he was not furnished with the enquiry report, along with the show cause notice issued by the authority, the third respondent herein. The contentions raised on behalf of the petitioner that the enquiry officer, the disciplinary authority and the appellate authority had not applied their minds, while holding that the first and the third charges levelled against the petitioner had been proved, as they had not considered the evidence on record, properly, cannot be countenanced. It is found that sufficient reasons had been given by the disciplinary authority, 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 is devoid 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.Registrar lan To: 1. The Chairman Tamil Nadu Electricity Board 765, Anna Salai, Chennai-600 002 2. The Chief Engineer (Distribution) Office of the Chief Engineer Tamil Nadu Electricity Board Vellore Circle, Vellore-6 3. 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 3141 BS (CO) km/9.2. W.P.No.2539 OF 2003 https://hcservices.ecourts.gov.in/hcservices/