IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.06.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.35071 of 2006 G.Shanmuganandam .. Petitioner Vs. 1.The Secretary to Government, Labour Department, Fort ST. George, Chennai-600 009. 2.The Director of Employment & Training, Chepauk, Chennai-600 005. 3.The Joint Director of Employment & Training (Craftsmen Training), Department of Employment and Training, Chepauk, Chennai-600 005. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the proceedings of the Director of Employment and Training in Se.Mu.A.No.AP.2/132260/94, dated 6.11.1995 and G.O.(D) No.1132- Employment and Training Dept., dated 17.12.96, and to quash the same and to direct the respondents herein to reinstate the applicant in service with consequential service benefits such as refixation of pay, arrears of salary, placement in seniority, consequential promotion and all other service benefits which have been withheld due to imposition of penalty of dismissal from service and pay all the arrears accrued under the above headings within a short date. For Petitioner : Mr.K.Rajkumar For Respondents : Mr.P.Gurunathan, GA ORDER Heard both sides. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.35071 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner filed the original application No.9433 of 1997 seeking to challenge the order of the second respondent, dated 06.11.1995 as well as the appellate order of the first respondent, dated 17.12.1996, wherein by which the petitioner was dismissed from service. The Tribunal inspite of the fact that the petitioner was not in service, granted an interim stay by an order, dated 26.11.1997. The ground on which the Tribunal granted interim stay was that the enquiry report was not given to him before the competent authority imposed the penalty. The said interim order came to be continued until further orders. Though the respondents filed a vacate stay application in M.A.No.2467 of 1998, for reasons not known the Tribunal did not take up that application. Thereafter, the respondents have filed a detailed reply affidavit, dated 23.07.1998, justifying the penalty imposed on the petitioner. 3.The petitioner was dismissed from service by an order, dated 6.11.1995. Thereafter, his appeal, dated 05.1.1996 was rejected by the Government on 17.12.1996. The Tribunal granted an interim stay on 26.11.1997 that too nearly after a period of 2 years from the date of the original order of dismissal. It is unthinkable as to how the Tribunal can grant an interim stay of dismissal when the petitioner was out of service for nearly a period of 2 years. The Supreme Court vide judgment reported in 2008 (12) SCC Page 30 has held that for the non furnishing of the enquiry report, no reinstatement can be ordered and the proceedings should be allowed to proceed from the stage where the defect had crept in. 4.In the present case, the petitioner in his appeal memo dated 5.1.1996 did not even make a grievance about the non furnishing of the enquiry report before passing final orders. The petitioner even at the time of filing of the O.A. was 54 years old and would have reached the age of superannuation during the year 2001. 5.The petitioner was working as a Training Officer in the Government Industrial Training Institute, Cuddalore. The petitioner was placed under suspension with effect from 14.12.1994. A charge memo under Rule 17(b) of the TNCS (D&A) Rules was given to him vide memo dated 20.01.1995. The charge against the petitioner was that he had a forced homosexual relationship with one student by name Sureshkumar and he had also instead of being a model training officer, brought disrepute to the institution. On 13.12.1994, he did not attend the institute and applied for one hour permission. On that day, in the residential quarters of the petitioner, the incident had taken place. The victim student gave a complaint to the Principal, who in turn informed the Directorate. The incident had led to unrest among the students. The anger of the students led to violent demonstration, including the student entering the petitioner's living quarters and damaging his personal assets such as Television and two-in-one set. https://hcservices.ecourts.gov.in/hcservices/ 6.An enquiry was conducted in which the statement of the victim student as well as another student by name Jaishankar and the Principal of the ITI was recorded. The victim student was cross examined. The petitioner did not cross examine the trainee student Jaishankar, with whose help the victim student was made to go to the quarters. It was on the basis of these records, the petitioner was dismissed from service by the second respondent. Along with the dismissal order, the petitioner was given a copy of the enquiry report. 7.As noted above, the petitioner did not make any grievance about the non furnishing of the report before its acceptance. In his appeal memorandum, he had merely stated that the incident was stage managed and he was victimized being an Office bearer of a rival service association. 8.On receipt of the appeal, the first respondent consulted the TNPSC. The TNPSC by its report dated 26.6.1996 gave advice to the Government and stated that the charges were proved and the dismissal was a proper punishment. The Government after accepting the report also independently decided that the punishment of dismissal was justified. 9.Mr.K.Rajkumar, the learned counsel for the petitioner, made two submissions. The first was the non furnishing of the enquiry report before its acceptance and the second was the order of the appellate authority was mechanical and there was no independent application of mind. In this context, the learned counsel also placed reliance upon an unreported judgment of this court in R.Ramiah Vs. the Principal Secretary to Government, Home Police (VI) Department, Chennai and others in W.P.No.20459 of 2007, dated 16.3.2009. 10.However, it must be stated that the Supreme Court vide its judgment in Chairman, Disciplinary Authority, Rani Laxmi Bai Sheitriya Gramin Bank Vs. Jagadish Saran Varshare and others reported in JT 2009 4 SC 519, has held that the appellate authority's order need not contain elaborate reasons. 11.It must also be stated that the non furnishing of the enquiry report was never made a ground by the petitioner before the appellate authority. Therefore, in the absence of any prejudice, he cannot raise that ground as first ground before this court for the first time. 12.Further, in the present case, an enquiry was conducted in which witnesses were examined in the presence of the petitioner. The conduct of the petitioner was completely a deprived one, which is covered by Rule 19(2) of the Tamil Nadu Government Servant Conduct Rules. Once the authority conducts a proper enquiry, in which legal evidence was let in, the Court cannot go into the question of proportionality of the punishment. https://hcservices.ecourts.gov.in/hcservices/ 13.In this context, it is necessary to refer to the judgment of the Supreme Court in the case relating to CHAIRMAN & MANAGING DIRECTOR, V.S.P. AND OTHERS Vs. GOPARAJU SRI PRABHAKARA HARI BABU reported in 2008 (5) SCC 569. The following passage found in paragraph 20 to 22 in the said judgment may be usefully extracted below: "20. The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. (See Maruti Udyog Ltd. v. Ram Lal; State of Bihar v. Amrendra Kumar Mishra; SBI v. Mahatma Mishra; State of Karnataka v. Ameerbi; State of M.P. v. Sanjay Kumar Pathak and Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi.) 21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v. Union of India.) 22. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order." 14.The petitioner's contention that he was victimized because of his being an office bearer of a rival service association and the incident was a stage managed one was not established by him in the enquiry. On the contrary, it is relevant to refer to the following averment found in para 8 from the reply affidavit: "8. ... it is submitted that the applicant Training Officer did not attend the institute, he applied for an hour permission. On 13.12.94 the applicant forcibly had a sexual relationship with a male student Thiru M.Sureshkumar. The above incident took place in the residential quarters of the applicant. The affected student had lodged a complaint against the applicant in a written statement. The applicant, being a teaching staff set an example as Philosopher and Guide to the students of the institution whereas he misbehaved with a student." https://hcservices.ecourts.gov.in/hcservices/ 15.In the light of the above legal precedents and the factual matrix of the case, there are no grounds to interfere with the penalty imposed on the petitioner. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Secretary to Government, Labour Department, Fort ST. George, Chennai-600 009. 2.The Director of Employment & Training, Chepauk, Chennai-600 005. 3.The Joint Director of Employment & Training (Craftsmen Training), Department of Employment and Training, Chepauk, Chennai-600 005. W.P.NO.35071 of 2006 VSV(CO) RVL 10.06.2009 https://hcservices.ecourts.gov.in/hcservices/