IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 25.11.2009 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.16932 of 2001 K.Sundararajan .. Petitioner Versus 1.The Chairman. Tamil Nadu Electricity Board, KRR Maligai, 157, Anna Salai, Chennai – 600 002. 2.The Chief Engineer, (Distribution), TNEB P.P.No.2940, Coimbatore. 3.The Superintending Engineer, TNEB, Coimbatore South, Coimbatore .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Certiorarified Mandamus, calling for the records relating to the order of the 1st respondent per B.P.(ch) No.74, Administrative Branch dated 26.04.2001, in confirming the order of the second respondent CE/D Coimbatore/ Memo No.015227/ADMII/DP-II/A4 99-2 dated 10.03.2000, in confirming the order of the 3rd respondent SE/Coimbatore/South Memo No.SE/CEDC/ADM-III/DP/CFL/A-1 final order KS/91 dated 16.02.1991 and quash and set aside the same and consequently direct the respondents to treat the period of services of the petitioner on and from 16.02.1991 as period of services spent on duty till the date of superannuation and settle all the service benefits till the date of superannuation. For Petitioner : Mr.P.S.Seetharaman For Respondents : Mr.B. Sekar for TNEB. O R D E R Being aggrieved by the order of penalty of dismissal from service and the consequential order of rejecting of his appeal memorandum with a slight modification in giving effect to the order of dismissal, the petitioner has filed the present writ petition. 2. It is the case of the petitioner that he joined Electricity Board as NMR on 16.02.1960 and by hard work, he reached the stage of a Selection Grade Store Keeper (Grade-I). After 30 years of unblemished record of service in the board, by a memo dated 20.06.1990, he was directed to offer his explanation for the shortage of copper scrap stock weighing 1505.55kgs during the year 1989-90. In response to the same, the petitioner submitted his explanation dated 21.06.1990 stating that after a long leave availed by him for an open heart surgery, he could not concentrate fully in the work and was therefore constrained to accept the stock as handed over by his predecessor. He therefore submitted that the shortage could have occurred during the tenure of his predecessor and that there was no intention to deceive the Board or make any wrongful gain of the property as detailed in the memorandum. 3. The enquiry held against the petitioner was proved and accepting the report, the Superintending Engineer, Tamil Nadu Electricity Board Coimbatore (South), Coimbatore, the 3rd respondent dismissed the petitioner from service. The said order was challenged in W.P.No.4080 of 1991 on the grounds inter-alia of violations of natural justice, procedural irregularities and non- application of mind. The writ petition came to be dismissed after eight years in the year 1999, directing the petitioner to prefer a statutory appeal. 4. Thereafter, the petitioner preferred an appeal dated 26.07.1999 to the Chief Engineer, Distribution, Tamil Nadu Electricity Board, Coimbatore. The said appeal was rejected on 10.03.2000. Aggrieved by the same, the petitioner preferred a memorial to the Chairman, Tamil Nadu Electricity Board, Chennai, the 1st respondent. But the same was also rejected on 26.04.2001. In these circumstances, the petitioner has preferred the present writ petition to quash the above said orders and consequently prayed for a direction to treat the period of service of the petitioner from 16.02.1991 as period spent on duty till the date of the superannuation and settle all his service benefits. 5. Assailing the impugned orders, Mr.P.S.Seetharaman, learned counsel for the writ petitioner submitted that though the writ petitioner, was given 30 days time for taking over the stores and sign the Daily Report Sheets, due to stress and physical condition on account of the open heart surgery, which he underwent in the month of June 1989, he could not fully concentrate in checking up the stock handed over by his predecessor. Therefore the shortage was on account of negligence, for which a severe penalty of dismissal from service is disproportionate. 6. Taking this Court through the language employed in charge No.2, with reference to Standing Order 19 (9) of Standing Orders for Workmen Engaged in Clerical Departments of the Tamil Nadu Electricity Board, learned counsel for the writ petitioner submitted that the respondent while formulating the charge has predetermined that the petitioner had dishonestly dealt with the Board's property without any basis. He further submitted that there is absolutely no reason to come to a prima facie conclusion of dishonest intention of the petitioner in connection with the Board's property. He further stated that no oral or documentary evidence was let in to sustain the charge touching upon the integrity of the petitioner. In these circumstances, he submitted that the very formulation of the charge in the absence of any supporting material and the findings recorded, are perverse and therefore it requires interference. 7. Learned counsel for the petitioner further submitted that when the above aspect was brought to the notice of the appellate authority, in the petitioner's appeal dated 26.07.1999, the said authority has failed to advert to the same and simply confirmed the order made by the disciplinary authority. He further submitted that the appellate authority has not considered the true meaning of the word 'consider' employed in service rules, while disposing of the statutory appeal, particularly when the petitioner was inflicted with a major penalty of dismissal from service. 8. Learned counsel for the petitioner further submitted that the shortage of 1505.55 kgs of Copper scrap would not have occurred, unless some other persons were also actively involved. If there was any dishonest intention in dealing with the Board's property, the respondents ought to have conducted a thorough enquiry, before mulcting the petitioner with the sole liability for the shortage. Lastly, he submitted that for an unblemished record of service of 30 years, the disciplinary as well as the appellate authorities ought to have considered that for an act of negligence of not maintaining the stock properly and for the alleged loss of Rs.90,000/-, punishment of dismissal from service is disproportionate to the gravity. 9. Though the respondent Board has not filed any counter affidavit, taking this Court through the impugned orders passed by the statutory authorities, Mr.B.Sekar, learned counsel for the respondents submitted that the aspect of negligence has been admitted by the writ petitioner himself and therefore, there is no need to traverse into the findings recorded by the enquiry officer. However, pointing out the admission of the petitioner in his explanation dated 21.06.1990, that he had taken charge of the entire materials on 09.01.1990 from his predecessor and signed the Daily Report Sheets dated 09.01.1990, learned counsel for the respondents submitted that the contention that the shortage of stock could have occurred during the tenure of his predecessor is nothing but an after thought and therefore the said argument requires no consideration at all. He also submitted that if the petitioner, had any doubt about the stock, which he had received from his predecessor, he could have very well verified the same and brought it to the notice of the higher authorities. As the petitioner had failed to conduct any verification and report the shortage to the higher authorities, he cannot blame his predecessor. He therefore submitted that negligence aspect has rightly been held as proved and there is no perversity. 10. As regards, Charge No.2, learned counsel for the Board submitted that the shortage had occurred after the petitioner had signed the verification report on 09.01.1990. Unless there was some dishonest intention in dealing with the Board's property, such huge loss of property weighing 1505.55 Kgs i.e about 1 ½ tonnes of Copper scrap worth Rs.90,000/- would not have occurred and that, the Board, would not have suffered such huge monetary loss. Therefore, according to him dishonest intention is explicit in the conduct of the writ petitioner, warranting a severe penalty. 11. Learned counsel for the respondents further submitted that in the absence of any complaint for violation of the principles of natural justice, in the conduct of the enquiry and affording opportunity to the petitioner, the findings recorded by the enquiry officer and accepted by disciplinary authority need not be disturbed and prayed to sustain the impugned orders. It is also his contention that the quantum of penalty for the gravity of the charges is commensurate. For the above said reasons, he prayed for dismissal of the writ petition. 12. Heard the learned counsel for the parties and perused the materials available on record. 13. It could be seen from the material on record that the annual stock verification for the year 1989-90 in 'F' section, Central Stores, Coimbatore Electricity Distribution Circle (South)/Coimbatore conducted by the Stores Supervisor / Stock Verification Divison / Madras from 28.04.1990 to 19.06.1990, revealed shortage of about 1505.55 Kgs of copper stock as against total quantity of 6474.65 Kgs. The actual quantity available for verification by the Stores Supervisor was 4969.10 Kgs against the quantity of 6474.65 Kgs. After considering the explanation from the Stores Custodian Grade-I, the petitioner, who was incharge of 'F' section, the following charges were framed. "Charge No.1: Thiru.K.Sundararajan, Stores Custodian I Grade is holding the post of Stores Custodian I Grade in 'F' Section (Scraps) from 04.12.1989 onwards. During the stock verification, from 28.04.1990 to 19.06.1990, a shortage of 1505.55 Kgs of copper scrap is found. He is expected to keep the stock items without any variation. Such an abnormal shortage is noticed only during the stock verification. Hence the shortage is due to his negligence of work. This is a misconduct as per the standing orders for the workman engaged in clerical Department in Tamil Nadu Electricity Board (para 19-IX) Charge No.:2 A shortage of copper scrap 1505.55 kgs is found during the stock verification on 19.06.1990, this has resulted in a Loss of property worth approximately Rs.90,000/- (Rupees Ninety Thousand only) to the Board. Being the Custodian of 'F' Section, Central Stores, Coimbatore Electricity Distrn.Circle /South /Coimbatore Thiru.K.Sundararajan, is responsible for the above Loss of Board's property. This shows his dishonesty with Board's property. This is misconduct as per the standing orders for the workman engaged in clerical Departments of the TNEB (19-III)." 14. In the explanation, the writ petitioner has stated that due to his physical condition, he could not verify the entire stock. Perusal of the explanation and the orders passed by the statutory authorities, shows that the petitioner was given 30 days time for taking charge of the stores. The petitioner had affixed his signature for having received stock of nearly 37820.4 Kgs on 09.01.1990 from his predecessor. Having accepted the stock from his predecessor, as rightly contended by the learned counsel for the respondent Board, it is not open to the writ petitioner to turn around and contend that the entire materials were not actually handed over by his predecessor. 15. It is further evident form the order of the Chief Engineer / Personnel dated 26.04.2001, that after taking over the stores, the petitioner had transacted with receipts of 19.5 Metric Tonnes of copper scraps and also released about 51 Metric Tones of Copper scraps to the successful bidders of action. In these circumstances, this Court is unable to subscribe to the contention of the learned counsel for the petitioner that there was no negligence on the part of the petitioner in maintaining proper stock. Therefore the findings recorded by the enquiry officer regarding charge No.1 cannot be said to be perverse. 16. The 2nd charge relates to loss of property worth approximately Rs.90,000/- to the Board. The Board has fastened him with the liability for the loss, as he was the sole Custodian of 'F' Section/Central Stores, Coimbatore Electricity Division. The Board has found that his negligence had resulted in loss of property worth approximately Rs.90,000/- as he was the Custodian of 'F' Section, Central Stores at that relevant point of time. The 2nd charge has been framed under Standing Order 19(iii) which speaks of theft, fraud or dishonesty in connection with the Board's property or business. 17. Perusal of the charge memo does not indicate any specific imputation of misconduct of the petitioner in showing dishonesty in connection with the Board's property. When the department alleges motive or dishonest intention it should be supported with clear statements of allegations and material documents and if there was any oral or documentary evidence to be let in during the enquiry, the delinquent should be put on notice, well in advance, so as to effectively defend the charge touching upon the integrity. Copies of documents to be marked to sustain the charge, should be given to the delinquent. Dealing with Board's property with dishonest intention casts aspersion on the conduct of any employee and it is a stigma. It is well settled that no man can be condemned unheard that too for a charge touching upon one's integrity. No doubt, shortage of the stock of copper scrap has resulted in loss. But every loss of property cannot be attributed to dishonest intention. Stigmatizing an employee without proof is arbitrary. 18. The orders passed by the authorities, do not indicate or even explain as to how the petitioner had dishonestly dealt with the Board's property. 'Dishonesty' is defined in Black's Law Dictionary as, "Disposition to lie, deceive, or defraud, untrustworthiness, lack of integrity, lack of honesty, probity or integrity in principle, lack of fairness and straightforwardness, disposition of fraud, deceive or betray." A person can be said to have dishonest intention if in taking the property, it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means of property to which the person so losing is entitled. Negligence in law signifies, want of attention to what ought to be done or looks after: Lack of proper care in doing something: Omission to do something which a reasonable man, guided upon the considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence in common law, is a breach of duty and if there is a duty and there has been a breach of it which causes loss, it matters not whether it is a venial breach or a serious breach. Penta Cost Vs. London District Auditor (1951) AII E.R. 330. The term negligence is synonymous with "carelessness" and it is readily distinguishable from and must not be confounded with such terms "dishonest intention" or fraud. A wilful design or an act done by the person where the mind concurs with the act designedly and knowingly should be foundation for formulating a charge of dishonesty in dealing with the Board's property. 19. If negligence is proved, then the Board cannot impute dishonesty. The petitioner cannot be said to be dishonestly negligent in dealing with the Board's property or vice versa. In the case on hand, there is no evidence or nexus to link the aspect of negligence with dishonesty. Such an illogical conclusion cannot be the basis for formulating a charge. 20. As rightly contended by the learned counsel for the petitioner to establish fraud or dishonesty, there should be some material evidence and therefore the formulation of the charge imputing dishonesty loses its ground. In such circumstances, this Court is of the considered view that the loss of Rs.90,000/- sustained by the Board on account of negligence, cannot be attributed to dishonest or bad motive on the part of the delinquent. Therefore the finding recorded by the enquiry officer as regards the aspect of dishonesty in dealing with the Board's property is perverse. 21. As rightly contended, when the above said aspect was pointed out to the disciplinary as well as the appellate authorities, they should have considered the same, with reference to basic facts and the evidence let in by the department. The appellate authority has failed to advert the same. 22. In this context, is useful to refer a decision of this Court in N.Sivakumaran Vs. State of Tamilnadu, rep. by its Secretary to the Government, Chennai and others reported in (2009) 1 MLJ 701, wherein this Court after, considering a catena of decisions held as follows: "In the case of an appeal against the order of imposing any penalty under Rules 8 and 9 of Rule 23 gives a mandate to the appellate authority to consider (a) Whether the factors on which the order was passed have been established (b) Whether the facts established afford sufficient ground for taking action and (c) Whether the penalty is excessive, adequate or inadequate/ and pass orders confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty, with such direction as it may be deemed fit in the circumstances of the case. Clause II of the Rule 234(1) any error or defect in the procedural violation in imposing penalty may be disregarded by the appellate authority if such authority considers for the reason to be recorded in writing that the error or defect was not material and had neither caused injustice to the person concerned or affect the decision of the case. The order of the Appellate Authority must therefore ex facie show that the matters referred to Rule 23 have been considered by the Appellate Authority Penalty suffered by a government servant affects his service promotion and monetary benefits and casts a stigma in his career. [para 32] The Appellate Authority must not only give a hearing to the government servant concerned but also pass a reasoned order dealing with the contention raised in the appeal. [para 12] If the Appellate Authority merely confirmed the order of the Disciplinary Authority stating no new points had been urged without considering the contentions raised by the appellant by application of independent mind, such order cannot be sustained. [para 15] The right of appeal is a substantive right and the appellate authority is the final fact finding authority and essentially an appeal is a continuation of the original proceedings. [para 26] If there is a statutory provision dealing with the exercise of powers by the original or appellate authority, the same has to be examined in the manner provided in the statute and not otherwise. [para 27] 23. In the above reported judgment this Court has held that the word 'consider', employed in service rules implies due application of mind and postulates consideration of all relevant aspects of the matter. In the case on hand, perusal of the appellate order as well as the order passed in the memorial shows non consideration of the aspects, discussed in the foregoing paragraphs. 24. As the formulation and finding of the second count of 2nd charge imputing dishonest motive is held as perverse, this Court deems it fit that there is no need to go into the contention of non-consideration of active involvement of any other person in the transaction of goods. In the above background, now all that has to be considered is whether the punishment of dismissal from service for the dereliction of duty in not maintaining the stock properly, resulting in shortage of copper scrap and loss caused to the Board to the tune of Rs.90,000/- should entail in dismissal from service, to a person, who had put in 30 years of unblemished record of service who had gradually reached the position of Stores Custodian from NMR. 25. The contention of the petitioner that he was not visited with any adverse memorandum during his tenure of service, has not been disputed by the respondents. Therefore, having regard to the finding of negligence and the resultant loss caused to the Board to the tune of Rs.90,000/-, this Court is of the considered view that the penalty of dismissal from service is harsh and disproportionate to the gravity of the charges. An employee who had rendered unblemished service fairly admits laxity on his part owing to his physical condition i.e. post operative open surgery, does not deserve dismissal from service. The said penalty touches the conscience of this Court and therefore, it requires interference. 26. The impugned orders are set aside for the reasons stated above. 27. At the time of filing of the writ petition, the petitioner was 52 years old. By this time he would have attained the age of superannuation and therefore the petitioner cannot be ordered to be reinstated. Therefore, the respondents are directed to treat the period of out of employment from 16.02.1991, the date on which he was dismissed from service, till the date of superannuation, as leave period without back wages. The above said period should be counted for pension and other retiral benefits. The respondents are further directed to work out the pension and retirement benefits, due and payable to the writ petitioner, after deducting Rs.90,000/- with appropriate interest. 28. The petitioner has been litigating, from 1991 and spent nearly 18 years in Courts. Having this in mind, the respondent shall take necessary steps to settle the arrears of pension and other retiral benefit, as expeditiously as possible, by not later than four months from the date of receipt of a copy of this order. 29. The writ petition is allowed as indicated. No Costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ars To 1.The Chairman. Tamil Nadu Electricity Board, KRR Maligai, 157, Anna Salai, Chennai – 600 002. 2. The Chief Engineer, (Distribution), TNEB P.P.No.2940, Coimbatore. 3. The Superintending Engineer, TNEB, Coimbatore South,Coimbatore 1 cc To Mr.P.S.Seetharaman, Advocate, SR.63686 W.P.No.16932 of 2001 RSY (CO) SS (17.12.2009)