IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 9..6..2008 CORAM THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. Nos. 7756 and 7757 of 1997 and 16930 of 1998 P.J. Vincent .. Petitioner in all WPs. Vs. 1. The Tamil Nadu Electricity Board Rep. by its Secretary 800 Anna Salai, Chennai ..R1 in WP 7756, 7757/97 and WP.No.16930/98. 2. The Chairman Tamil Nadu Electricity Board 800 Anna Salai Chennai .. RR2 in W.P. Nos. 7756 & 7757/1997 3. The Chief Engineer Materials Management Tamil Nadu Electricity Board 800 Anna Salai Chennai .. R2 in W.P. No. 16930 /1998 W.P. No. 7756 of 1997 filed for issuance of writ of Certiorarified Mandamus calling for the records relating to the order of the first respondent Board passed in Proceedings permanent B.P. (FB) No. 7 dated 12.3.1997 and quash the same in so far as denying backwages and reserving right to proceed with the enquiry by an officer superior in rank to the petitioner and direct the respondents to pass orders to grant all attendant benefits like backwages, seniority for the period from 28.12.1982 till date with interest. W.P. No. 7757 of 1997 filed for issuance of writ of Certiorari calling for the records relating to the proceedings in Memo No. 081631/DP.2/A1/95-2 dated 12.3.1997 and quash the same. W.P. No. 16930 of 1998 filed for issuance of writ of Certiorarified Mandamus calling for the records relating to the proceedings of the first respondent dated 15.9.98 made in Proceedings permanent B.P. (FB) No. 24 Administrative Branch, quash the same and direct the respondents to reinstate the petitioner with all attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners in all WPs. : Mr. S. Elamurugan For TNEB : Mr. M. Vaidyanathan COMMON ORDER Heard the arguments of Mr. S. Elamurugan, learned counsel for the petitioner and Mr.M.Vaidyanathan, learned Standing Counsel for the Tamil Nadu Electricity Board [for short, 'TNEB'] and perused the records. 2. The petitioner joined the service of the respondent Tamil Nadu Electricity Board in the year 1964. When he was working as an Assistant Divisional Engineer during 1982, he was given a charge-memo dated 30.6.1982 stating that he had gone abroad (Algeria) and taken up employment and also that he had disobeyed the order of his superior by not appearing before the Medical Board and also not reported for duty. He was dismissed from service by an order dated 20.01.1984. The said order was challenged in a writ petition before this Court being W.P. No. 8152 of 1984. The said writ petition was allowed vide order dated 08.3.1993 and the order of dismissal was set aside on the ground that copy of the enquiry report was not supplied to him. The respondents preferred a writ appeal being W.A. No. 707 of 1993 and the same was partly allowed by the Division Bench vide judgment dated 26.8.1993 and the operative portion of the said judgment reads as follows:- Para 3: ".... The order of the learned single Judge is modified, and liberty is reserved to the Electricity Board to hold a de novo enquiry against the writ petitioner in accordance with law. The consequential directions issued by the learned single Judge shall be governed by the service Rules relating thereto with which the service of the petitioner is governed and not as per the directions issued by the learned single Judge." 3. Thereafter, he was placed under suspension and a fresh memo dated 05.02.1994 was given to him. An enquiry was conducted by appointing the Superintending Engineer as Enquiry Officer. While the Enquiry Officer, by his report dated 31.12.1994, found the first charge relating to getting an employment abroad not proved, found the second charge that he went to abroad without getting permission, proved. With reference to charge No. 3 that he had not appeared before the Medical Board and not paying the fee for the Medical Board and getting the leave sanctioned was also proved. The petitioner submitted an explanation on 03.3.1995. The said disciplinary proceedings was considered by the Chairman of the Board and it was decided to accept the report of the Enquiry Officer and he was also removed from service by B.P. No. 190 dated 03.6.1995. Thereafter, the petitioner filed an appeal before the Board. The Board, by proceedings dated 12.3.1997 in B.P. No. 7 held that since it was the competent authority to pass final orders, the order passed by the Chairman was held to be bad in law and the matter https://hcservices.ecourts.gov.in/hcservices/ was placed before the Full Board. Therefore, the disciplinary proceedings were set aside by the Board without prejudice to conducting an enquiry by an officer superior to the rank of the petitioner. Accordingly, a further order dated 12.3.1997 was passed reinstating the petitioner without benefits of backwages and without prejudice to the disciplinary action pending against him. By B.P. No. 13 dated 30.4.1997, the Chief Engineer, Materials Management, was directed to conduct an enquiry and he had framed charges dated 28.5.1997 against the petitioner. 4. In the meanwhile, the petitioner filed two writ petitions being W.P. Nos. 7756 and 7757 of 1997 seeking to quash the order of the Board in ordering fresh enquiry. This Court, while admitting the writ petitions, granted an interim stay on 03.6.1997. Subsequently, the respondent Board filed applications to vacate the stay order and this Court, by order dated 13.10.1997, vacated the stay. 5. In the light of the above, the respondents conducted an enquiry against the petitioner and the Enquiry Officer found him guilty of all the five charges proved. The petitioner sent his explanation and the respondent Board, by an order dated 15.9.1998 in B.P. No. 24, agreed with the findings and dismissed the petitioner from service. It is against this order, W.P. No. 16930 of 1998 has been filed. 6. In view of the inter-connectivity between these three writ petitions, they were heard together and a common order is being passed. 7. So far as W.P. Nos. 7756 and 7757 of 1997 are concerned, they have become infructuous in the light of the subsequent developments. The petitioner cannot challenge the charge-memo issued by the delegate of the TNEB pursuant to the order passed by the Division Bench in W.A. No. 707 of 1993. Even the payment of wages for the interregnum period depends upon the outcome of the disciplinary action taken against the petitioner. Therefore, these two writ petitions will stand dismissed. 8. Mr. S. Elamurugan, learned counsel for the petitioner, submitted that the finding of the Enquiry Officer (second respondent) was not based upon any material. With reference to charge Nos. 1 and 2, he submitted that there is no material before the Enquiry Officer to hold the petitioner guilty. The Enquiry Officer came to the conclusion that these two charges were held to be proved only on the ground of non- production of Passport by the petitioner. The petitioner had genuinely pleaded that he had lost the Passport and it is for the respondent TNEB to produce materials to prove the charges. Mere non-production of the Passport by the petitioner will not ipso facto prove that he had gone to Algeria and was gainfully employed from 01.01.1982 to 31.12.1982. The third charge with reference to not appearing before the Medical Board was because there was a confusion as to who should pay the charges for the Medical Board and, therefore, it would not amount to disobedience of https://hcservices.ecourts.gov.in/hcservices/ a lawful order. Charge Nos. 4 and 5 relate to absence from duty and initially, the petitioner had applied Un-Earned Leave on Private Affairs starting from 27.01.1983 to 15.5.1983. It was unjustified on the part of the respondents to have refused the leave. He also submitted that the enquiry proceedings continued beyond 15 years and for the entire period, the petitioner was put to great sufferings. 9. Per contra, Mr. M. Vaidyanathan, learned counsel for the respondent Board submitted that it was the fact that the petitioner had gone to Algeria and had remained absent for a long time thereby justifying the suspicion that he might have taken up an employment abroad. He also submitted that the petitioner had deliberately not produced the passport and pleaded falsely that the Passport was lost. In any event, remaining absent for a long period and also not appearing before the Medical Board have been clearly proved and, therefore, the petitioner does not deserve any sympathy. 10. The first two charges were not clearly proved by any legal evidence let in by the respondent Electricity Board. When the Board had framed clear charge that the petitioner had gone abroad and took up gainful employment, it is for the Board to prove the said charge by letting in legal evidence. With reference to the third charge that he had not appeared before the Medical Board, it is admitted by both sides that there was a confusion regarding the fee to be paid to the Medical Board and hence, there was a delay. Therefore, it cannot be held to be a serious charge. With reference to non-grant of Un-Earned Leave on Private Affairs, it can be said that the petitioner cannot have any legal right to avail leave and seek for a post facto sanction. Therefore, charge Nos. 4 and 5 are clearly proved. 11. Hence, the only question remains is whether the petitioner can be visited with the punishment of dismissal for a charge of this nature. It is seen from the records that the petitioner had joined service in the year 1964 and all his troubles started in the year 1982 when he went abroad claiming to make some family settlement. Thereafter, two rounds of litigations had taken place and this Court had set aside the earlier dismissal though on a technical ground. When the charges were finally framed by a power of delegation granted by the Board in the year 1994 by the Chairman, already 12 years had lapsed since the date of the alleged misconduct. Further, this Court had found that the two crucial charges, viz., going abroad and gainfully employed, have not been proved in the enquiry in the manner known to law and for the non- appearance before the Medical Board, there was a serious confusion about the payment of fee. 12. Under the TNEB Service Regulations, major penalties have been prescribed which includes removal from service, compulsory retirement and dismissal from service. In the present case, the competent authority had not indicated as to why he had preferred removal from https://hcservices.ecourts.gov.in/hcservices/ service and not any other major penalty found in the TNEB Service Regulations. 13. The Supreme Court, in more than one judgment, has held that if the punishment of dismissal is disproportionate, then this Court, in exceptional circumstances, can interfere with the quantum of punishment while exercising power under Article 226 of the Constitution. The Supreme Court in V.R. Katarki v. State of Karnataka [1991 Supp (1) SCC 267] dealt with the case of a judicial officer and in paragraph 6 observed as follows: Para 6: "The question for consideration now, therefore, is while the finding that the appellant was guilty in terms of the charges found should the appellant have been dismissed from service. Ordinarily, justification of the quantum of punishment imposed in a disciplinary action is not for the court to decide and there have been occasions when this Court has taken interference by the High Courts on quantum of punishment as an act in excess of jurisdiction. While we are cognizant of that fact, keeping the residue of the charges in view, we are inclined to hold that dismissal of the appellant from service was out of proportion and compulsory retirement would meet the ends of justice. We accordingly direct that in place of dismissal, the appellant shall be taken to have been compulsorily retired from service from the date when dismissal became operative." 14. The Supreme Court in Chandra Vilash Rai v. State of Bihar, [(2003) 11 SCC 741] in paragraph 3 observed as follows: Para 3: "Having examined the nature of charges alleged and proved against the two delinquents, we cannot but observe that the charges are serious, more particularly, since they relate to affairs of a cooperative bank. But at the same time, it cannot be disputed that these delinquents have rendered services in the Society for more than 20 years. It also transpires that the so-called delinquency had not been committed on their own but at the behest of the Board of Directors, though in law such action would not exonerate the delinquents from the liabilities which they would incur for such illegalities and irregularities. In the aforesaid premises, we think it appropriate that ends of justice will be met if we alter the punishment of dismissal to one of premature retirement, as provided in the Staff Regulations of the Bank, which appear to have been framed by the Board in its resolution dated 12-3- 1985, which punishment also is a major punishment and we accordingly so direct. If the delinquents are entitled to any retirement benefits on the basis of such premature retirement, those may be given to them." https://hcservices.ecourts.gov.in/hcservices/ 15. A Division Bench of this Court, while dealing with a case of a Judicial Officer, who was dismissed only a few days before his retirement, followed the above two judgments of the Supreme Court and converted the dismissal in to one compulsory retirement vide its judgment relating to V.C. Rajamanickam v. State of Tamil Nadu and another [2007 (5) M.L.J. 1185]. 16. Therefore, in the light of the above precedents, this Court is of the view that the petitioner had already put in more than two decades of service and that there being no earlier blemish in his service records produced before this Court and that even among the major penalties, compulsory retirement is also shown as one of the major penalties, this is a fit case where the punishment of removal from service is to be converted into one of compulsory retirement of the petitioner. 17. W.P. No. 16930 of 1998 is allowed to the extent indicated above and the respondent TNEB is directed to impose the punishment of compulsory retirement on the petitioner in modification of the punishment in the impugned order. This exercise shall be carried out within a period of eight weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar gri To 1. The Secretary, Tamil Nadu Electricity Board 800 Anna Salai Chennai 2. The Chairman Tamil Nadu Electricity Board 800 Anna Salai Chennai https://hcservices.ecourts.gov.in/hcservices/ 3. The Chief Engineer Materials Management Tamil Nadu Electricity Board 800 Anna Salai Chennai +1 cc to Mr.S.Elamurugan, Advocate, SR.No.27756. +1 cc to Mr.M.Vaidyanathan, Advocate, SR.No.27703. Gb (co) krd / 13.6.08 W.P. No. 7756 of 1997 https://hcservices.ecourts.gov.in/hcservices/