IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:01.12.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.41087 of 2002 M.Palanisamy .. Petitioner vs. 1.The Board of Directors rep. By its Chairman Tamil Nadu Agro Industries Development Corporation Ltd., Guindy, Chennai 32. 2.The Managing Director Tamil Nadu Agro Industries Development Corporation Ltd., Guindy, Chennai 32. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus to call for the records in pursuant to the impugned order passed by the 2nd respondent in Proc.RC.No.4788/P & A3/99 dated 5.2.2002 and the Appellate order of the 1st Respondent in Proc.RC.No.4788/P&A3/99 dated 16.5.2002 and quash these orders and consequently direct the Respondents to reinstate the petitioner in service with full back wages and other consequential service benefits. For petitioner : Mr.S.M.Subramaniam For respondents : Mr.C.Venkatesalu ORDER The writ petitioner was working as an Assistant /Store Keeper in Sunola Sales Depot of the Tamil Nadu Agro Industries Development Corporation Ltd. While working as Store Keeper, he was placed under suspension on certain charges and two charges were framed against him on 25.10.1999, which are as follows: " 1. that on 14.9.1999, the Marketing Section issued a Despatch Advice No.4483 dated 14.9.99 to despatch 50 cases Sunola Stock to the City Stockist Tvl.Sree Sakthi Vinayaga Sales Corporation. The Junior Engineer, C&F was not available on that day. As per the instructions issued in Office Order No.8/P&A/99, dated 8.4.99 the Store https://hcservices.ecourts.gov.in/hcservices/ Keeper/Assistant who is handling the Stores at C&F should sign in the Delivery Notes and ICINs whenever Junior Engineer, C&F is not available or on leave. The Stores Keeper/Assistant Thiru M.Palanisamy instead of despatching the Sunola Stock to the stockist as per the despatch advise mentioned above, refused on the ground that he will not do it in the absence of Junior Engineer. When he was personally instructed by the Chief Officer (Fertiliser) and the Administrative Officer, Thiru M.Palanisamy refused to despatch the Sunola stock. He also refused to unload the Sunola stock received on that day from the Sunflower Oil Complex, Pochampalli. Thus Thiru M.Palanisamy has violated the Office Order and also disobeyed the lawful instructions of Chief Officer (Fertilizer) and Administrative Officer, hampering the trade activities of Corporation. 2. that as per Service Rule 50 of Tamilnadu Agro Industries Development Corporation, every employee shall confirm to and abide by these rules shall observe, comply with and obey all orders and directions which may from time to time be given to him by any person under whose jurisdiction, superintendence and control he may be placed, but Thiru M.Palanisamy has violated the rules." 2. There was no explanation submitted by the petitioner for the above said charges, however, an Enquiry Officer was appointed, who submitted his report and after considering the report of the Enquiry Officer, the second respondent, the Managing Director of the Corporation passed the impugned order dated 05.02.2002, dismissing the petitioner from service. It was, against the said order, an appeal was filed before the first respondent, who under the impugned order dated 16.03.2002, rejected the appeal with the following reasons: "2. Thiru M.Palanisamy, is informed that the Board of Directors of Tamil Nadu Agro Industries Development Corporation Limited, in their 23rd meeting held on 1.3.2002, after a detailed discussions and examining the records such as charge memo, explanation submitted by him, Enquiry Officers' report, Managing Director's order, grounds of appeal have held that there was no merit in the appeal and accordingly rejected the appeal." 3. The contention of the learned counsel for the petitioner is that by looking into the nature of the charges framed against the petitioner, there is no monitory loss caused to the respondent Corporation by the conduct of the petitioner and even assuming that there is an insubordination, the charge should have been framed under Rule 17(a) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, whereas framing of charges under Rule 17(b) is against law. https://hcservices.ecourts.gov.in/hcservices/ He would also rely upon some of the judgments of this Court, especially one reported in S.Kannan vs. State of Tamil Nadu rep. By its Secretary to the Government, Home Transport II Department, Chennai and others (2009 (8) MLJ 217). He would further submit that as per Rule 59-B of the Service Rules of the respondent Corporation, the appellate authority should have considered the appeal by giving a finding as to whether the penalty imposed is adequate or inadequate or severe and inasmuch as the appellate authority has not given such reason, there is non-application of mind and the order is opposed to the Service Rules governing the service conditions of the employees of the respondent Corporation. 4. On the other hand, it is the contention of the learned counsel for the respondent Corporation that as per Service Rule 50, insubordination has to be viewed seriously and once an employee has acted against the rules, framing of charge under Rule 17(b) of the Tamil Nadu Civil Servants (Discipline and Appeal) Rules, cannot be said to be unlawful. He would also submit that the previous conduct of the petitioner shows that he has been disobedient on several times, and therefore, the impugned orders need not be interfered with. It is his further submission that the original authority, viz., the second respondent has given adequate opportunity to the petitioner and in fact in the enquiry conducted by the Enquiry Officer, the petitioner has fully participated and therefore, he cannot challenge the same on the ground of violation of the principles of natural justice. 5. On a reference to the appellate authority's order as elicited above, it is clear that there is no application of mind and the reasons have not been adduced. Law is well settled that when the appellate authority confirms the original authority's order of punishment, it is not necessary that the appellate authority should traverse into the facts of the case and make an application of mind. In cases where the appellate authority is bound by the procedure that is contemplated under the Service Rules, the appellate authority has to act as per the procedure. Therefore, while confirming the order of the original authority, when the Rules compelling the appellate authority to give elaborate reason and the Rules are particular about a method to be followed by the authority, the non-following of the same has to be necessary interfered by this Court. In this regard, it is relevant to extract the part of the Rules relating to the appellate authority's power. Rule 59-B, deals with the appeal against the order of the original authority in sub-clause (iv), which is as follows: "Rule 59-B. (i) to (iii) xxxx (iv) In the case of an appeal against an order imposing any of the penalties specified in Rule 57(i), the https://hcservices.ecourts.gov.in/hcservices/ appellate authority shall consider whether the penalty imposed is adequate, inadequate or severe and pass order (i) confirming enhancing, reducing or setting aside the penalty or (ii) remitting the case to the authority which imposed the penalty with such direction as it may been fit, in the circumstances of the case. " 6. The order of punishment of dismissal passed in this case is covered under Rule 57(i). Therefore, when an order of dismissal is appealed against, the appellate authority has to necessarily apply its mind to find out about the adequacy or inadequacy of the punishment and after considering the same, it is for the appellate authority to decide either to confirm or to enhance or reduce the punishment. On a bare reading of the operative portion of the order of the first respondent appellate authority, it is clear that the appellate authority has not considered the said aspect. 7. In this circumstance, it is relevant to state that the petitioner has taken a stand as it is seen in the grounds of appeal that for the charges framed against the petitioner, the punishment of dismissal is grossly disproportionate. In cases where the punishment sought to be imposed is grossly disproportionate to the nature of charges framed, which shocks the conscience of either the court or the appellate authority, the authority is to consider the same by application of mind. Therefore, in this matter, I do not propose to go into the question or validity or otherwise of the original authority's order, viz., the second respondent's order and on the ground that the order of first respondent appellate authority is not in conformity with the Rules, I am inclined to set aside only the impugned order of the first respondent dated 16.03.2002. Accordingly, the impugned order of the first respondent dated 16.03.2002, alone stands set aside and the matter is remanded back to the first respondent for fresh consideration by the appellate authority in accordance with the Rules stated above. It is made clear that the first respondent appellate authority shall consider the appeal afresh on the basis of the Rules including the plea of the petitioner regarding the nature of punishment and pass appropriate orders on merit and in accordance with law and such order shall be passed within a period of eight weeks from the date of receipt of copy of this order. The writ petition stands partly allowed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Kh To 1.The Chairman Tamil Nadu Agro Industries Development Corporation Ltd., Guindy, Chennai 32. 2.The Managing Director Tamil Nadu Agro Industries Development Corporation Ltd., Guindy, Chennai 32. 2 cc to Mr.C.Venkatesalu, Advocate, Sr.No.85850, 85704 1 cc to Mr.S.M.Subramaniam, Advocate, Sr.No.86791 W.P.No.41087 of 2002 PUR {CO} TP/16.12.2010. https://hcservices.ecourts.gov.in/hcservices/