IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 9..6..2008 CORAM THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. Nos. 9867 of 1998, 6584 and 6974 of 2000 W.P. No. 9867 of 1998: K. Subramanian .. Petitioner Vs. 1. The Tamil Nadu Electricity Board Rep. by its Chairman,Board Office, Secretariat Branch N.P.K.R.R. Maligai,800 Anna Salai Chennai-600 002. 2. The Superintending Engineer Periyar Electricity Distribution Circle Tamil Nadu Electricity Board, Erode 3. The Chief Engineer (Distribution) Tamil Nadu Electricity Board Salem Region, Erode-9. 4. Er.P. Rajalingam, Chief Engineer / Hydro N.P.K.R.R. Maligai Tamil Nadu Electricity Board 800 Anna Salai,Chennai .. Respondents Petition 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. (Ch) No. 155 dated 11.6.1998 and quash the same and direct the 1st respondents and notionally reinstate the petitioner with effect from 25.7.1996 and pay all pay and allowances, terminal benefits and other attendant benefits. W.P. No. 6584 of 2000: M. Ranganathan .. Petitioner Vs. 1. The Tamil Nadu Electricity Board Rep. by its Chairman N.P.K.R.R. Maligai 800 Anna Salai,Chennai-600 002. https://hcservices.ecourts.gov.in/hcservices/ 2. The Secretary Tamil Nadu Electricity Board N.P.K.R.R. Maligai 800 Anna Salai, Chennai .. Respondents Petition filed for issuance of writ of Certiorarified Mandamus calling for the proceedings of the first respondent made in (Per) B.P. (Ch) No. 230 dated 07.9.1998 as confirmed by the second respondent in Proceedings (Permanent) B.P. (FB) No. 3 (Secretariat Branch) dated 18.01.2000 and quash the same and direct the respondents to reinstate the petitioner into service with all attendant benefits. W.P. No. 6974 of 2000: A. Cyril .. Petitioner Vs. 1. The Tamil Nadu Electricity Board Rep. by its Chairman N.P.K.R.R. Maligai 800 Anna Salai, Chennai 2. The Secretary Tamil Nadu Electricity Board N.P.K.R.R. Maligai 800 Anna Salai,Chennai .. Respondents Petition filed for issuance of writ of Certiorarified Mandamus calling for the proceedings of the first respondent made in (Per) B.P. (Ch) No. 231 (SB)dated 07.9.1998 as confirmed by the second respondent in Proceedings (Permanent) B.P. (FB) No. 4 (Secretariat Branch) dated 18.01.2000 and quash the same and direct the respondents to reinstate the petitioner into service with all attendant benefits. For Petitioner in : Mr. S. Balasubramanian W.P. No. 9867/98 For Petitioners in : Mr. A. Jinasenan W.P. Nos. 6584 & 6974/2000 For TNEB : Mr. M. Vaidyanathan COMMON ORDER Heard the arguments of Mr. S. Balasubramanian and Mr.A.Jinasenan, learned counsel for the petitioners and Mr.M.Vaidyanathan, learned Standing Counsel for the Tamil Nadu Electricity Board [for short, 'TNEB'] and perused the records. https://hcservices.ecourts.gov.in/hcservices/ 2. W.P. No. 9867 of 1998 is filed by one K. Subramanian against the order in B.P. (Ch) No. 155 dated 11.6.1998 by which he was removed from the services of the Tamil Nadu Electricity Board. He joined the service as a Junior Engineer on 22.7.1963 and was promoted as Assistant Executive Engineer on 18.6.1971. He was finally promoted as an Executive Engineer w.e.f. 20.6.1986. In the normal course, he would have reached the age of superannuation on 30.11.1996. However, he was placed under suspension four months prior to his retirement viz., on 25.7.1996. In fact, even after the suspension, his name was included in the panel for promotion to the post of Superintending Engineer by proceedings dated 07.8.1996. A charge-memo dated 25.10.1996 was given to him alleging that while working as Executive Engineer (O&M), Perundurai, he was receiving bribe of Rs.50/- per meter from one M. Ranganathan, who was Stores Custodian, for the release of single phase Meters from the Sub-Store, Ingur. Four witnesses were cited in the charge-memo. His services were retained beyond the age of superannuation so as to continue the enquiry. An enquiry was conducted on 23.12.1996 and finally, on the basis of the enquiry proceedings, he was asked to show cause on the findings and not satisfied with his explanation and on the basis of the findings recorded in the enquiry, he was removed from the service of the Board by order dated 11.6.1998. It is against this order, the W.P. No. 9867 of 1998 has been filed. 3. In the enquiry held against the petitioner Subramanian, M/s A. Cyril (Stores Supervisor, Ingur) and Mr. M. Ranganathan (Stores Custodian, Ingur) were cited as witnesses. 4. M. Ranganathan, petitioner in W.P. No. 6584 of 2000, was working as a Stores Custodian and he was suspended from service on 25.7.1996 by the Chief Engineer (Distribution), Salem Region. Subsequently, he was given a charge-memo dated 25.10.1996 by the Chairman of the TNEB. The charge against the said Ranganathan was that he received Rs. 85/-per meter from prospective consumers through the field staff for the release of single phase meters and out of the sum received, he gave Rs.50/- per meter to K. Subramanian, petitioner in W.P. No. 9867 of 1998. He denied the charges by his explanation dated 11.11.1996. The Superintending Engineer (Generation) Erode was appointed as an Enquiry Officer. The Enquiry Officer, by his report dated 08.8.1997, found him guilty of the charges and after receiving the petitioner's explanation, he was removed from service by an order dated 07.9.1998 in B.P. (Ch) No. 230. He filed an appeal to the Tamil Nadu Electricity Board on 24.6.1999 and the said appeal was rejected in the Board Meeting held on 03.01.2000, which was communicated to the said petitioner on 18.01.2000 and as against the same, W.P. No. 6584 of 2000 has been filed. 5. In the enquiry against him, five witnesses were examined and three witnesses, viz., a Commercial Assistant, Commercial Inspector and a Stores Supervisor, did not support the charges levelled against him. https://hcservices.ecourts.gov.in/hcservices/ It was only the Vigilance Officer, Coimbatore and Inspector of Police, Vigilance, who initially enquired the matter, who were not eye- witnesses, gave evidence against the petitioner. In fact, the three Board employees deposed in the enquiry that due to the threat held out by the Vigilance, they were forced to give such a statement. 6. Likewise, Mr. A. Cyril, petitioner in W.P. No. 6974 of 2000, was working as Stores Supervisor. He was also placed under suspension by the Chief Engineer (Distribution), Salem Region by an order dated 25.7.1996. The charge against the said Cyril was that he was demanding and collecting bribe amount of Rs.85/- per meter from prospective consumers for the release of single phase Meters from the sub-store at Ingur and shared the bribe amount with his superiors and other staff. In his case also, similar enquiry was conducted by the Superintending Engineer (Generation) Salem and his case was similar to that of M.Ranganathan. He was finally removed from service by B.P. No. 231 dated 07.01.1998 and his appeal was also rejected by the Board vide B.P. No. 4 dated 18.01.2000. It is against the rejection of the appeal, W.P. No. 6974 of 2000 has been filed. 7. In the case of K.Subramanian, petitioner in W.P. No. 9867 of 1998, he had served 33 years before the disciplinary action was started against him. In the case of M. Ranganathan, petitioner in W.P. No. 6584 of 2000, he had put in 27 years of service before his date of removal and at present, he is 56 years old and he has two more years to render service. In the case of Mr. A. Cyril, petitioner in W.P. No. 6974 of 2000, he had already reached the age of superannuation during the year 2004 and before his removal from service, he had put in 32 years of service. 8. Mr. S. Balasubramanian, learned counsel for the petitioner in W.P. No. 9867 of 1998 submitted that the statement of M/s A.Cyril and M. Ranganathan obtained by the Vigilance Police cannot form part of the substantial evidence against him as they themselves were charge-sheeted and removed from service for identical charges. In fact, being charge-sheeted for similar charge, they cannot be examined as witnesses against the petitioner. In fact, Ranganathan had stated that he was induced to give such a statement by the Department with the promise of revocation of their suspension. 9. Since the witnesses, viz., Ranganathan – P.W.1 and A. Cyril – P.W.2 were themselves accused of the same charge, their evidence cannot be allowed to go on record. With reference to G. Bimsena Rao, Commercial Inspector P.W.3, he had denied receipt of any money and that his statement was obtained after the suspension of the petitioner. Likewise, A. Thangaraj, Commercial Assistant – P.W.4, deposed that he had given the statement as told by the Inspector of Police and that he denied the receipt of any amount. This leaves out the examination of S. Navaneethakrishnan, Inspector of Police, Vigilance and D. Kumaravel, Vigilance Officer. It must be stated that they were not cited as https://hcservices.ecourts.gov.in/hcservices/ witnesses in the charge-memo given to the petitioner. This was objected to by the petitioner as they have been introduced for the first time in the enquiry. In fact, their statements were never furnished to the petitioner either along with the charge-memo or any time before their examination. No complaint from any of the prospective consumers was recorded by the Vigilance. 10. The only ground on which the Enquiry Officer found the petitioner guilty was that the statements given by the Board officials before the Vigilance is acceptable than their oral evidence recorded in the enquiry in which they had made allegations of threat and coercion and that there was no prior enmity between the witnesses and the Vigilance Officer. In fact, non-receipt of any specific complaint given by any consumer will clearly show that there was no legal evidence for holding the petitioner guilty. In that context, the charge itself is very vague inasmuch as it accuses the petitioner of receiving bribes. 11. In this context, the learned counsel placed reliance upon the judgment of the Supreme Court in Sher Bahadur v. Union of India [2002 (7) SCC 142]. He placed reliance upon the following passages found in paragraphs 6 and 7 of the said judgment which reads as follows:- Para 6: "A perusal of the judgment and order under challenge shows that the High Court having referred to the enquiry report found that there was oral and documentary evidence (Ext. P-1) to hold him guilty and that sufficiency of the evidence would not be a ground to challenge the order of the disciplinary authority by invoking the writ jurisdiction. Para 7: It may be observed that the expression “sufficiency of evidence” postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, “in view of oral, documentary and circumstantial evidence as adduced in the enquiry”, would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Shri R.A. Vashist, Ex. CVI/Northern Railway, New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ext. P-1, referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the appellant which is a neutral fact. The enquiry officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the enquiry officer shows no https://hcservices.ecourts.gov.in/hcservices/ more than his working earlier to his re-engagement during the period between May 1978 and November 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is, in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective as such the judgment and order of the High Court and the order of the disciplinary authority, under challenge, cannot be sustained, they are accordingly set aside." 12. The learned counsel also placed reliance upon the judgment of the Supreme Court in State of U.P. v. Shatrughan Lal and another [(1998) 6 SCC 651] for the proposition that since the statements of the Vigilance Officers were neither supplied to them nor their names were mentioned in the charge-memo, it would vitiate the enquiry. Reliance was placed upon the following passage found in paragraph 10 of the said judgment. Para 10: "It has also been found that during the course of the preliminary enquiry, a number of witnesses were examined against the respondent in his absence, and rightly so, as the delinquents are not associated in the preliminary enquiry, and thereafter the charge-sheet was drawn up. The copies of those statements, though asked for by the respondent, were not supplied to him. Since there was a failure on the part of the appellant in this regard too, the Tribunal was justified in coming to the conclusion that the principles of natural justice were violated and the respondent was not afforded an effective opportunity of hearing, particularly as the appellant failed to establish that non-supply of the copies of statements recorded during the preliminary enquiry had not caused any prejudice to the respondent in defending himself." 13. Alternatively, he contended that having regard to the three decades of unblemished service rendered by the petitioner, the punishment of removal from service is shockingly disproportionate. Further, the enquiry itself started just four months before his retirement and that his name was in the promotional panel for the post of Superintending Engineer. Therefore, the very exercise was to deny him promotion for his long service. 14. The learned counsel, with reference to the power to interfere with the penalty, placed reliance upon the following passages found in https://hcservices.ecourts.gov.in/hcservices/ paragraphs 25 to 27 of the judgment of the Supreme Court in Ranjit Thakur v. Union of India [(1987) 4 SCC 611]. Para 25: "Judicial review generally speaking, is not directed against a decision, but is directed against the “decision-making process”. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service Lord Diplock said: “Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community;. . .” Para 26: In Bhagat Ram v. State of Himachal Pradesh this Court held: [SCC p. 453, SCC (L&S) p. 353, para 15] “It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.” The point to note, and emphasise is that all powers have legal limits. https://hcservices.ecourts.gov.in/hcservices/ Para 27: In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." 15. With reference to the charge of corruption alleged against the petitioner, for the standard of proof required in a domestic enquiry, the learned counsel placed reliance upon the judgment of the Karnataka High Court in Venkatachala Shetty v. State of Karnataka [1986 (2) LLJ 464] and more particularly, relied upon the following passage found in paragraph 6 of the judgment. Para 6: "Offence complained of is a Criminal misconduct in discharge of official duty. To constitute an offence of acceptance of illegal gratification either under S.161 I.P.C. or under S.5-A of the Prevention of Corruption Act, essential ingredients required to be established are delinquent (i) must be a public servant; (ii) should accept gratification for himself; and (iii) gratification should be as a motive or reward for showing or forbearing to show favour or disfavour to any person. Connotation of acceptance of illegal gratification as defined in these Acts may safely be adopted, as it cannot be different in departmental enquiry to prove misconduct. Assuming for the sake of argument that first and last are established, still there is no proof to satisfy second ingredient. Acceptance of bribe by Ganga, who has nothing to do with delinquent official can by no stretch of imagination be considered as acceptance of illegal gratification by petitioner and conclusion that acceptance by Ganga must be treated as acceptance of illegal gratification by petitioner is perverse. Finding that Ganga is an agent is purely based on inferences and conjectures. Ganga, by accepting money from Muniraju might have cheated or deceived him, but petitioner cannot be vicariously held responsible. In the absence of evidence either of Ganga or petitioner admitting his relationship punishment imposed for misconduct – re: acceptance of illegal gratification must beheld to be illegal and perverse. If public servants are punished on such finding, there will be no safety for Government Servants." 16. He also submitted that the Vigilance Officer had a grouse against the petitioner with reference to dealing of the service connection in respect of M/s Sakthi Exports at Perundurai Division, where his son was working as an Engineer and the Enquiry Officer under whom the petitioner was working, had many difference of opinion with reference to the discharge of duties and was waiting for opportunity to finish the career of the petitioner. Therefore, he prayed for setting aside the order removing him from service. https://hcservices.ecourts.gov.in/hcservices/ 17. Mr. A. Jinasenan, learned counsel appearing for the other two petitioners adopted the arguments of Mr.S.Balasubramanian. He further submitted that his clients are only subordinates to Subramanian, petitioner in W.P. No. 9867 of 1998, and, they, at best, were acting under orders of their superiors. He also submitted that no complaint was received from any prospective consumers and in the absence of any credible evidence against them, they should not be proceeded with. He also submitted that considering the long service put in by both the petitioners, the punishment of removal from service was disproportionate and requires interference by this Court. 18. Mr. M. Vaidynathan, learned Standing Counsel for the TNEB, submitted that it is a case of corruption indulged by the three petitioners and that no consideration should be shown. The Vigilance Officer has no personal bias against the petitioners and immediately after the statements were submitted by M/s M.Ranganathan and A. Cyril, they have not complained to any other authority about the threat and coercion in giving those statements. The only time retraction was sought to be made was only during the enquiry. Even with reference to the statements of the two Vigilance personnel, the petitioners were allowed to cross-examine them which right, they did not utilise. The non-examination of any prospective consumer is not suicidal because the Board employees themselves admitted the collection of money and the share of each petitioner in that collection. He also submitted that the Enquiry Officer was correct in placing reliance upon the written statement given by the witnesses and they disbelieved the retraction made by them. He also submitted that in the present case, strict rules of evidence will not apply and it is enough if there is a preponderance of probabilities of case. 19. After careful consideration of the rival submissions, it must be stated that the attempt by the petitioners to dislodge the written statement given by them to the Vigilance Officer cannot be accepted. Further, non-examination of the prospective consumers cannot have much bearing on the present issue inasmuch as M/s M. Ranganathan and A. Cyril have given in writing that they had collected amounts from the consumers and the total number of consumers from whom amounts were collected are also found in the statement of Cyril. Further, they have not cross- examined the two Vigilance officials and they have also not denied with reference to giving statements to Vigilance officials. They have failed to prove the nature of threat handed over to them by the Vigilance. Though Mr.Subramanian attributed motive to the Enquiry Officer as well as Vigilance Officer, he never gave any oral evidence in support of such motives. Though there is no quarrel with the propositions based upon legal precedents advanced by Mr. Balasubramanian, yet those propositions have no direct application to the facts of the present case. Therefore, the argument of Mr.M.Vaidynathan, learned counsel that the charges levelled against the petitioners have been proved in the manner known to law, has to be necessarily accepted. https://hcservices.ecourts.gov.in/hcservices/ 20. This leaves out the last issue regarding the nature of penalty to be imposed on the petitioners. During the course of argument, this Court requested the Board counsel to find out as to whether any modification of punishment is possible by the Board. Mr. Vaidyanathan, learned counsel, after taking time, informed this Court that the modification of punishment is not possible and it is left to this Court to pass appropriate orders in accordance with law. 21. 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, both the competent authority and the appellate authority have not indicated as to why they had preferred removal from service and not any other major penalty found in the TNEB Service Regulations. 22. 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." 23. The Supreme Court in Chandra Vilash Rai v. State of