IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 22-09-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.2031 of 2001 V.K.Sathyanarayanan .. Petitioner. Versus 1.The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai-600 002. 2.The Chief Engineer (Personnel) Tamil Nadu Electricity Baord, Anna Salai, Chennai-600 002. 3.The Chief Engineer (Distribution) Tamil Nadu Electricity Board, Vellore-632 006. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, calling for the records of the first respondent relating to the Proeedings in PERMANENT/BP/(CH)214, dated 2.11.2000, confirming the order of the third respondent in his memo No.014727/ADM/A2/99-4, dated 28.4.2000 and quash both the orders and consequently direct the respondents to refund the amount of Rs.37,547/-, recovered from the petitioner together with interest and cost to the petitioner herein. For Petitioner : Mr.V.Krishna Ananth For Respondents : Mr.B.Sekar (R1 to R3) 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 the respondent Board during the year 1962, and he had retired as an Assistant Executive Engineer, on 29.2.2000. The petitioner had been served with a charge memo, calling upon him to give his explanation https://hcservices.ecourts.gov.in/hcservices/ with regard to the alleged failure of a capacitor Unit and the consequent fire accident that had taken place, on 18.12.97. The petitioner had submitted his explanation stating that he had acted in accordance with the regulations of the Board and that he was not responsible in any manner for the failure of the capacitor Unit. The third respondent, not having been satisfied with the explanation submitted by the petitioner, had issued the proceedings, dated 15.6.99, proposing to hold an enquiry against the petitioner, under Regulation 18(b) of the Tamilnadu Electricity Board Employees (Discipline and Appeal) Regulations. The only charge against the petitioner was that he had not properly supervised the works carried out by the junior engineer of the Sub station at Vinnamangalam and that he had not arranged for proper testing and commissioning of the capacitor Unit M.R.T and that the accident had occurred due to his negligence and thus, he had committed an act amounting to misconduct. 3. It has been further stated that an enquiry had been conducted on 17.11.99, by the Executive Engineer, Thiruppathur and the enquiry officer had held that the charge against the petitioner was proved and that the petitioner was guilty of the alleged misconduct. Admittedly, no witness was examined, either on the side of the management, or on behalf of the petitioner. No material evidence was presented during the course of the enquiry. The enquiry officer had relied on extraneous materials to come to the conclusion that the petitioner was guilty of the misconduct alleged against him. The enquiry officer had failed to note that the capacitor unit was within the guarantee period and at any rate the petitioner could not be held responsible for its sudden failure. During the enquiry, the enquiry officer himself had conducted the cross examination, even though the management representative was present during the enquiry. It has been further stated that the petitioner had submitted an explanation to the enquiry officer's findings, on 25.8.99, stating that the conclusions arrived at by the enquiry officer was without any basis and that there was no material evidence to prove the charge framed against the petitioner. There was no negligence on the part of the petitioner as he had performed his duties as per the procedures established under the regulations and as per the service rules and that the accident which had taken place, on 18.12.1997, cannot be attributed to the petitioner. The petitioner had further stated that the accident that had occurred due to the failure of the capacitor unit did not come under the ambit of the responsibility of the petitioner. 4. It has also been stated that the petitioner has sent a detailed representation to the third respondent, on 8.3.2000. However, the third respondent, without considering the representation submitted by the petitioner and without going into the facts and circumstances of the case, had passed the impugned order, dated https://hcservices.ecourts.gov.in/hcservices/ 28.4.2000, holding the petitioner responsible for the lapses and fixing the liability on the petitioner for the losses of the Board's property at Rs.1,25,156/- and the petitioner was liable for 30% of the said amount, which is Rs.37,547/-. The said amount was directed to be recovered from the petitioner in one lumpsum from the death cum retirement gratuity payable to him, since he had retired from service on 29.2.2000. The petitioner had preferred an appeal before the first respondent on 16.6.2000, stating that he was not liable for the failure of the capacitor unit and that he was not responsible for the fire accident that had taken place, on 18.12.97. However, the first respondent had rejected the appeal filed by the petitioner by an order, dated 2.11.2000. The appellate authority had passed the order without considering the points raised by the petitioner and without considering the facts and circumstances of the case. In such circumstances, the petitioner has preferred the present writ petition, under Article 226 of the Constitution of India. 5. In the counter affidavit filed on behalf of the respondents it has been stated that the petitioner who was working as an Assistant Executive Engineer/Electrical at Vinnamangalam had retired from the Board's service, on 29.2.2000. The petitioner was working as an Assistant Executive Engineer at Vinnamangalam Operation and Maintenance, Sub Division in the year 1997, on 18.12.1997, during a total shut down. A failed capacitor Unit was replaced with a new one by Jayaseelan, Junior Engineer of the sub station and it was supervised by the petitioner. The new capacitor unit was not tested by M.R.T., before its commissioning. After the new capacitor had been installed, the supply was normal by charging LV Breaker at 19.15 hours. The newly non-tested capacitor unit which had been erected had exploded and oil from the reactor had spurted causing a major fire accident, resulting in heavy losses to the Board's property. The entire capacitor and the reactor had got burnt out in the fire accident. Thus, it was clear that the petitioner had failed to exercise proper supervision over the works carried by the junior engineer sub station, Vinnamangalam. The petitioner had not arranged for the proper testing and commissioning of the capacitor unit by M.R.T. Due to the failure on the part of the petitioner there was a huge loss to the Board's property to the value of Rs.2,38,639/-. Therefore, the charges were framed against the petitioner by the third respondent, under Regulation 8(b) of the Tamilnadu Electricity Board, (Discipline and Appeal) Regulations, by a memo, dated 15.6.99. Charges had also been framed against E.Jayaseelan, Junior Engineer Grade-I, sub station, Vinnamangalam and S.Munirathinam, Junior Engineer Grade-II, for their negligence. The enquiry officer had conducted the enquiry on the charges framed against him in a fair and proper manner, giving all reasonable opportunity to him to put forth his case. The enquiry officer after conducting the enquiry had come to the conclusion that the charges had been proved. Further, the https://hcservices.ecourts.gov.in/hcservices/ statement of the petitioner that the capacitor unit was within the guarantee period and at any rate its sudden failure cannot be attributed to the petitioner, cannot be accepted since the fire accident that had occurred had caused a loss of an estimated value of Rs.2,38,639/- since the explanations submitted by the petitioner were not satisfactory, the petitioner was imposed with the punishment of recovery of the amount of Rs.37,547/- by the order issued by the third respondent. The first respondent appellate authority had dismissed the appeal filed by the petitioner, confirming the order passed by the third respondent. 6. The main contention raised by the learned counsel appearing on behalf of the petitioner is that the enquiry officer, had conducted the enquiry, contrary to the principles of natural justice. He had posed leading questions to the petitioner during the enquiry which he was not expected to do. Further, the decision to impose the punishment of recovery of Rs.37547/-, on the petitioner, was taken after subsequent discussions with the Superintending Engineer, Thirupathur, Electricity Distribution circle and the Executive Engineer, M.R.T. Thiruppathur. However, no opportunity was given to the petitioner at that stage for submitting his explanation. In fact the petitioner had not known the nature of the discussions held and therefore, the decision of the third respondent to impose the punishment on the petitioner is arbitrary, biased and contrary to the principles of natural justice. 7. It has been further contended that the petitioner is not responsible for the failure of the capacitor unit and its subsequent explosion causing a fire accident, leading to the loss of property of the respondent Board. The failure of the capacitor unit is not due to the failure of the petitioner to supervise his subordinate officer, but it is only due to certain technical defects which had occurred in the capacitor unit. The capacitor Unit was tested by the M.R.T wing and therefore, the Unit had already been certified and there was no need for testing the same at the site as per the Code of technical instructions. Therefore, it cannot be said that the petitioner had failed to carry out the necessary tests before permitting the installation of the equipment. Further, during the enquiry it has also been admitted by the management representative that there were no rules specifying that the equipment was to be installed only after a test being carried out at the site. Once it has been stated that the fire accident had occurred due to the failure in the equipment, the petitioner cannot be held responsible for the loss that is alleged to have occurred due to such a failure of the equipment. There is no rule or regulation showing that the petitioner was incharge of the equipment and that he was responsible for its failure or the loss that had occurred due to the consequent fire accident. https://hcservices.ecourts.gov.in/hcservices/ 8. Though the learned counsel appearing on behalf of the respondent Electricity Board had stated that the enquiry conducted against the petitioner was fair and proper and that the punishment imposed upon the petitioner is based on the report submitted by the enquiry officer, he has not been in a position to show that there are specific rules applicable to the service of the petitioner permitting the respondent Board to impose a punishment after the retirement of an employee or an officer from its service. In spite of several opportunities having been given to the learned counsel appearing on behalf of the respondent Electricity Board, he has not been in a position to show that the punishment imposed for the loss alleged to have been caused due to the failure of the petitioner to supervise the installation of the capacitor unit is in accordance with the rules and the regulations applicable to the case. Even though it may be permissible for the respondent Board to recover the monetary loss caused to the respondent Board by an employee or an officer, there is nothing on record to show that it could be imposed on them by way of punishment. 9. In such circumstances, the impugned orders of the third respondent, dated 28.4.2000, in his memo No.014727/ADM/A.2/99-4, and the proceedings of the first respondent, dated 02.11.2000 in Permanent B.P.(Ch.) No.214, are set aside. Since, the petitioner has not been in a position to show that the respondents had acted in a malafide manner in recovering the said amount, this Court does not find it appropriate to order refund of the said amount with the interest accrued thereon, as prayed for by the petitioner. Hence, the respondents are directed to refund the amount of Rs.37,547/-, recovered from the petitioner without interest. The said amount is to be refunded to the petitioner, within a period of 12 weeks from the date of receipt of a copy of this order. The writ petition is allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Csh https://hcservices.ecourts.gov.in/hcservices/ To 1.The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai-600 002. 2.The Chief Engineer (Personnel) Tamil Nadu Electricity Baord, Anna Salai, Chennai-600 002. 3.The Chief Engineer (Distribution) Tamil Nadu Electricity Board, Vellore-632 006. + 1 CC To Mr.B.Sekar, Advocate SR NO.54266 + 1 CC To Mr.J.Saravana Vel, Advocate SR NO.53936 Writ Petition No.2031 of 2001 NSM {CO} TP/17.10.08 https://hcservices.ecourts.gov.in/hcservices/