IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2009 CORAM : THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.280 of 1999 C.Ravichandran ... Petitioner vs. Tamil Nadu Newsprint and Papers Ltd., rep. by its Chairman and Managing Director, No.35, Anna Salai, Guindy, Chennai 600 032. ... Respondent Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records pertaining to the proceedings CMD/TNPL/PER/1755/98 dated 13.10.1998 on the file of the respondent, quash the same and direct the respondent to reinstate the petitioner in service with backwages and attendant benefits. For Petitioner : Mr.B.Ravi for M/s.R.Subramaniam For Respondent : Mr.M.R.Raghavan O R D E R Challenging the proceedings in CMD/TNPL/PER/1755/98 dated 13.10.1998 passed by the respondent and for a direction to the respondent to reinstate him in service with backwages and attendant benefits, the petitioner has filed this writ petition. 2. Facts of the case as averred by the petitioner in the affidavit would run thus : (i) The petitioner joined the respondent Company as Deputy Manager (Civil) on 27.07.1993. On 17.08.1994, his services were confirmed with effect from 27.07.1994 and he had been discharging his work without any blemish and with utmost sincerity. On 24.03.1997, the respondent issued a show cause notice alleging certain baseless charges for which, the petitioner sent a detailed reply on 03.04.1997 https://hcservices.ecourts.gov.in/hcservices/ and by a letter dated 19.04.1997, the respondent informed the petitioner that they are not satisfied with his explanation and decided to conduct an enquiry. (ii) One Thiru. Anaiyappan was appointed to conduct the enquiry and he submitted a report that the delinquent Officer without verifying the completion of work had certified the final bills. At the same time, he also found that the petitioner had not acted in a manner to show favouritism to the contractor as falsely alleged by the Management. According to the petitioner, there is no acceptable evidence or proof to show that he intended to cause loss or save the contractor from payment of the liquidated damages. The Enquiry Officer further found that the Management had not taken any action against the contractor and that the delinquent officer is only guilty of negligence in certifying the Bill. Regarding the above charges, the Enquiry Officer found that the delinquent Officer ought to have supervised the works then and there, but there is no proof of favouritism or misuse of the Office. Ultimately, it was found that the charge of favouritism had not been proved, but only the charge of negligence stands proved. (iii) The petitioner has further stated that the respondent issued a show cause notice on 13.12.1997 stating that the misconduct committed by him is serious and grave warranting appropriate punishment. The petitioner sent a reply on 20.12.1997 giving elaborate explanation to the alleged findings. By order dated 14.03.1998, the Director (Operations) dismissed the petitioner from the services of the Company on the ground that the gravity of the act of misconduct deserves the punishment of dismissal. The petitioner filed an appeal before the Chairman and Managing Director and by an order dated 13.10.1998, the respondent confirmed the order of dismissal. Hence, this writ petition. 3. The respondent has filed counter affidavit, the contents of which would run thus : (i) The petitioner joined the services of the respondent as Deputy Manager (Civil) on 27.07.1993 and he was confirmed in the said post on 27.07.1994 and at the relevant point of time, he was functioning as Deputy Manager (Civil). On 24.03.1997, a Show Cause Notice was issued to the petitioner that he had committed the following irregularities : (a) It is reported that Chief Manager (Civil) vide letter No.CIV/105 dated 15.11.1996 issued to Thiru A.Chandrakumar, Contractor (who was awarded a work order No.T3/MC/WO/507/8401 dated 17.08.1995) had specified https://hcservices.ecourts.gov.in/hcservices/ that in spite of repeated reminders, the contractor has not commenced the erection of steel structures at Lignite shed in Mohanur. However, the "work completion certificate" was issued by the petitioner knowingly and deliberately, specifying the date of completion as 17.11.1996. On the contrary, the work was not completed on that date and from the records, it is seen the structural steels arranged by the contractor has been received in the Mohanur offsite even as late as 22.11.1996 and 23.11.1996. The above acts of the petitioner is willful breach of Rules of the company in order to favour the contractor to get final settlement of dues from the company and to save the contractor from being attracted by liquidated damages clause (clause 7) (b) As per terms of the said work order all necessary materials of approved quality and standard specifications required for the above work shall be arranged by the contractor and shall be brought inside the premises with proper document supported by appropriate gate pass. Item No.15 of the schedule of rates of the work order relates to supply, fabrication and erection of structural steel works by the contractor. However, on the contrary, 10.224 M.T. of steel was issued to the contractor from Main Site/Off site. It is reported that when the Structural steel are supplied by TNPL the fabrication cost would only be Rs.5,000/- per M.T., whereas by treating the supply of the structural steel as by the contractor, a pecuniary loss had been caused to TNPL to the tune of Rs.63,351.89. (c) As per clause 10.2 of another work order no.TNPL/EXP/C & E/W.O.125 dated 30.10.1995, all the materials required for the civil works connected with chemical additive plant, such as but not limited to, machinery tools, and tackles, shall be brought inside the premises with proper document supported by appropriate gate pass. In the schedule of rates, Item Nos.31, 32 and 34 relates to supply and fixing of standard steel windows, steel ventilators and providing and fixing of gear operated type rolling shutters. However, that the standard steel windows steel ventilators and rolling shutters had been taken from the https://hcservices.ecourts.gov.in/hcservices/ TNPL stock and these details were suppressed whereas on the contrary all these items have been treated as arranged by the contractor himself as per terms and conditions of work order, thereby causing a pecuniary loss of Rs.41,400/- approximately to TNPL. (d) As per the V & Part Bill duly certified by the petitioner for Item No.80 of schedule of rates, (viz.) transportation of excavated earth and filling in low lying areas to a distance from km 1 to 3 km, a claim for 5049.149 cu.m. out of total excavated earth of 6362.89 cu.m. has been made (W.O.No.TS/PMD/WO/434/8250 dated 26.09.1995) However, approximately 2600 cu.m. Quantity of the excavated earth has been filled in low-lying areas well within 1 km, i.e. Within 400 mtrs towards East of the works port (light tower) 2112 cu.m. Within 800 mtrs. Railway siding 500 cu.m. thereby causing pecuniary loss ofRs.1,32,600/- approximately to TNPL The above facts of the petitioner are of serious nature and breach of discipline under various clauses of service rules of the company applicable to the petitioner and conduct prejudicial and detrimental to the interests of the company. (ii) According to the respondent, the petitioner did not offer satisfactory explanation to the charges levelled against him and hence, domestic enquiry was ordered to be conducted to probe into the charges levelled against the petitioner. The petitioner was given all possible opportunity. The enquiry was conducted totally in accordance with the principles of natural justice. The enquiry officer after taking into consideration the various materials placed before it, submitted report during September 1997 holding the petitioner guilty of the charges levelled against him. On the basis of the findings of the Enquiry Officer, the respondent through letter dated 13.12.1997 called upon the petitioner to submit the explanation as to why appropriate punishment should not be imposed for the proved misconduct. The petitioner sent his reply on 20.12.1997. The Director (Operations) after perusing the various materials placed before him, ultimately terminated the services of the petitioner from the company on 14.03.1998. The petitioner then filed an appeal dated 07.04.1998 to the Appellate Authority viz., Chairman and Managing Director. The Chairman and Managing Director after going through the https://hcservices.ecourts.gov.in/hcservices/ entire proceedings confirmed the order of dismissal through his proceedings dated 13.10.1998. (iii) The respondent would further state that the allegations of the petitioner that he joined the services of the company on 16.06.1993 are erroneous and he joined the services of the company only on 27.07.1993. With regard to the issue that the Enquiry Officer has held that the delinquent employee for his negligence in certifying the completion of work without physically checking up the same, the respondent would state that the petitioner ought to have visited the site and then only signed the final bill. Hence, the Enquiry Officer has held that the delinquent officer is guilty of negligence in indicating the date of completion of work as 17.11.1996. Further, when the structural steel had been supplied by TNPL, the petitioner should have been more diligent and ought to have adopted a different rate. He had failed to do so thereby causing pecuniary loss to TNPL. He would also state that the allegation that the Enquiry Officer found that the management had not taken any action against the contractor has no relevance to the disciplinary proceedings initiated against the petitioner. (iv) The petitioner's contention that the principles of natural justice have been violated is contrary to the truth; on the other hand, the petitioner has participated in the full-fledged enquiry and he has cross-examined the management representative and the witness as well. With regard to the petitioner's contention that the two other officers had been reinstated, the respondent would state that a distinction has been drawn between the Junior Officer and the petitioner, since as a Deputy Manager, the petitioner is expected to act in a manner to safeguard the interests of TNPL. Further, the petitioner instead of exercising control over the work of Junior Officers, himself had shown the way for committing irregularities. So, the petitioner's role is much more reprehensible than those of the Junior Officers. Hence, the punishment of dismissal for the acts of misconduct committed by the petitioner is not excessive. By dealing with the three appeals, the Competent Authority had dealt with the charges in a systematic way and has pointed out the distinction between the role of the Junior Officer and that of the petitioner who is a Deputy Manager in the respondent Company. The respondent would submit that Article 14 of the Constitution of India is not attracted since there is no allegation of inequal treatment in respect of equals. (v) Further, the petitioner's contention that it is practically impossible to keep track of every minute thing during civil works clearly shows that the petitioner is not duty conscious. This contention of the petitioner itself stands as a testimony for the conduct of the petitioner during his service in TNPL and it reflects the attitude of the petitioner in justifying the acts of misconduct committed by him. Further, the petitioner has not represented to the https://hcservices.ecourts.gov.in/hcservices/ Management about the practical impossibility of keeping track of things, while discharging his functions during his service in TNPL. Hence, the contention of the petitioner is only an afterthought and does not merit any consideration. 4. To the counter, the petitioner has filed a reply affidavit stating as follows : (i) The disciplinary proceedings are vitiated and there is no charge sheet. The respondent has stated that on 24.03.1997, a show cause notice was issued, which is the basis for the disciplinary proceedings. The Enquiry Officer has proceeded on the footing that the Charge Memo dated 24.03.1997 was issued to the petitioner, whereas, there is no charge memo at all. Regarding the allegation that pecuniary loss of Rs.41,000/- was caused to the respondent, the petitioner would submit that the Enquiry Officer has found that there is no proof to show that the respondent had suffered any pecuniary loss. As per the show cause notice, the charges are that the petitioner had acted in a manner to favour contractor that there was a pecuniary loss of Rs.63,351.89 due to supply of 10.224 M.T. of steels and Rs.41,000/- towards standard steel windows, steel Ventilators and rolling shutters, Rs.1,32,600/- towards 2600 cu. M. quantifies of excavated earth which has been filled in low-lying areas. The enquiry officer has found that there was no pecuniary loss nor was there any favouritism. Hence, the charges mentioned in the show cause notice have not been established. But, the enquiry officer has held that the petitioner is guilty of negligence. Such a finding is perverse since there is no charge of negligence in the show cause notice. The Enquiry Officer has no jurisdiction to frame a charge and has given a finding without even affording an opportunity to the petitioner about the charge; hence, the disciplinary proceedings are vitiated. (ii) The petitioner would state that the first show cause notice has been issued by the Director (Finance); but, it is not known whether he is the disciplinary authority. Assuming that he is the disciplinary authority, the second show cause notice dated 13.12.1997 had been issued by the General Manager (H.R.D.). According to the petitioner, only the disciplinary authority is competent to go into the findings of the enquiry officer and he alone can either agree with the findings or differ. The General Manager (HRD) is not the disciplinary authority because the first show cause notice was issued by the Director (Finance). Further, in the second show cause notice, it is stated that "We have gone through the enquiry proceedings and find that you had been given opportunity to vindicate your innocence. We have also perused the findings of the enquiry officer and we agree that the above referred charges had been proved apart from charges specified under Rule 68(nl)". The use of "We" clearly shows that there is no independent thinking or action. The disciplinary authority cannot introduce new charges in the second show cause https://hcservices.ecourts.gov.in/hcservices/ notice. Thus the second show cause notice is not only invalid but also has caused serious prejudice to the petitioner. He would also submit that the termination order has been issued by the Director (Operations) who is not the competent authority. (iii) The petitioner would also state that as per service rules, the enquiry should be completed within 3 months. Further, it is seen that one Ramakrishna Iyer is the Management representative, who was presenting the case and the enquiry court is silent about his examination as Management witness. As per the enquiry report, the enquiry was completed on 08.07.1997 and two witnesses on the side of the management and the petitioner were examined and there is no other evidence, but in the order passed by the Appellate Authority, there is a reference to the deposition of one R.Sundararajan; assuming that there is any deposition, it is totally erroneous. The petitioner has also stated that there is no misconduct on his part and the respondent has discriminated him by imposing a capital punishment. 5. Heard Mr.B.Ravi, learned counsel for the petitioner and Mr.M.R.Raghavan, learned counsel appearing for the respondent. 6. Learned counsel for the petitioner would submit that the show cause notice has been issued by one Director (Finance), whereas the show cause notice on the findings has been issued by the General Manager (HRD) and the final office order has been passed by Director (Operation). He would contend that three different authorities have exercised the jurisdiction of the Disciplinary Authority without even mentioning as to who the actual Disciplinary Authority is, with whom such powers are vested and hence without jurisdiction. He would further contend that it is not the petitioner alone who can be held responsible for a commission of the act in which all the persons both lower and higher in rank are involved and all the persons both lower and higher in rank than the petitioner have been let off in this case holding only the petitioner; such act is condemnable by the Apex Court in its decision reported in (2007) 7 SCC 206. 6a. To substantiate his stand, learned counsel for the petitioner has relied on the following decisions : (i) (1995) 6 SCC 749 [B.C.Chaturvedi vs. Union of India and others] "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the https://hcservices.ecourts.gov.in/hcservices/ inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India vs. H.C. Goel, this Court held at p.728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued." (ii) AIR 2000 SC 1151 [U.P. State Road Transport Corporation and others vs. Mahesh Kumar Mishra and others] "8. This will show that not only this Court but also the High court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned counsel for the appellants, that https://hcservices.ecourts.gov.in/hcservices/ the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings." (iii) 2001 WLR 86 [M.Ramachandran vs. The Board of Directors, Cheran Transport Corporation Ltd.] "3. The petitioner would further submit that he submitted his explanation to the said show cause notice on 13.05.1989. But, however without being satisfied, enquiry was ordered on the charges appointing one S.B. Hanumantha Rao, retired Subordinate Judge as an enquiry officer who conducted the enquiry and submitted his report on 12.03.1990; that the enquiry officer though decided over the allegations made against the petitioner to be incorrect and unjustified and that the petitioner had no opportunity nor occasion to know about the fraud committed by the said Gothandapani and further has arrived at the conclusion that there was no basis nor evidence for the said charge. But however exceeding his jurisdiction, he had held that the petitioner was irresponsible, careless and negligent in his duties and responsibilities. The petitioner alleging that there was no allegation of such nature nor any enquiry held in this regard would further submit that such conclusion had been arrived at by the enquiry officer based on suppositions and surmises and not on material facts and strong circumstances and hence the conclusions arrived at by the enquiry officer ultimately holding the petitioner responsible for gross negligence of duty is with an ulterior motive and acting in collusion with the said Gothandapani and the same have not been proved on evidence." (iv) 2006 SCC (L&S) 1035 [SBI and others vs. Arvind K. Shukla] "2. ... we have been taken through the findings of the enquiring officer and Charges 1(a) and 1(d) as well as the reasonings and ultimate conclusion of the disciplinary authority on those two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer an opportunity to represent before it recorded its ultimate findings. This question https://hcservices.ecourts.gov.in/hcservices/ is concluded by a three-Judge Bench decision of this court in the case of Punjab National Bank vs. Kunj Behari Misra. The Bench in the aforesaid case relied upon the earlier decision in Institute of Chartered Accountant case as well as Ram Saxena cases do not lay down the correct law. Mr.Sundaravadanam, however, brought to our notice yet another three-Judge Bench decision in the case of Union Bank of India vs. Vishwa Mohan and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in Punjab National Bank case was not really there before the Court and the Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL vs. B.Karunakar. In the absence of any contrary decision of a three-Judge Bench decision on the question in issue, we are bound by the earlier judgment of this court in Punjab National Bank case necessarily, therefore we do not find any merit in this appeal, which stands dismissed." (v) (2006) 4 SCC 713 [Narinder Mohan Arya vs. United India Insurance Co. Ltd. and others] "26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the enquiry officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. (See State of Assam v. Mahendra Kumar Das) (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice. (See Khem Chand v. Union of India and State of U.P. v. Om Prakash Gupta) (3) Exercise of discretionary power involves to elements – (i) objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element (See K.L.Tripathi v. State Bank of India) (4) It is not possible to lay down any rigid rules of