IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.09.2008 CORAM THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN AND THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA W.A.No.4210 of 2004 K.Kalamegam ... Appellant / Petitioner Vs. 1.The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai. 2.The Chief Engineer(Distribution) Villupuram Region, Villupuram. .... Respondents/Respondents. For Appellant : Mr.R.Viduthalai, S.C., for Mr.U.M.Ravichandran For Respondents : Mr.M.Vaidyanathan Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 12.12.2003 passed by the learned single Judge in W.P.No.19002 of 1999. Petition presented to this Court under Article 226 of the constitution of India to issue a Writ of Certiorarified mandamus to call for the records relating to the order of the first respondent dated 10.11.99 to quash the same and to direct the respondent to reinstate the petitioner's service with backwages and continuity of service. JUDGMENT (Judgment of the Court was made by K.RAVIRAJA PANDIAN,J.) The correctness of the order dated 12.12.2003 made in W.P.No.19002 of 1999 is assailed in the present appeal. 2. The appellant herein has filed a writ petition seeking for the relief of issuance of writ of Certiorarified mandamus to call for the records relating to the order of the first respondent dated 10.11.1999 to quash the same and direct the respondent to reinstate the appellant in service with back wages and continuity of service. https://hcservices.ecourts.gov.in/hcservices/ 3. The facts culled out from the pleadings are as follows: The appellant has joined Tamil Nadu Electricity Board as a Junior Engineer on 08.11.1971 and promoted as Assistant Executive engineer on 30.12.1981. While he was working as Assistant Executive Engineer, he was served with a charge memo dated 27.05.1998 alleging that he demanded and accepted bribe from the consumers for effecting industrial power connection. After receipt of the explanation of the appellant dated 12.06.1998 an enquiry was conducted. Ultimately the Enquiry Officer, by his proceedings dated 31.08.1999, submitted his report holding that the charges levelled against the appellant were proved. A second show cause notice was issued to the appellant along with copy of the Enquiry Officer's Report and after considering the cause shown by the appellant, on 10.11.1999 an order of dismissal has been passed by the first respondent. The appellant has challenged the correctness of the same by filing W.P.No.19002 of 1999, which by reason of the order impugned has been dismissed. 4. Mr.Viduthalai, learned Senior Counsel appearing for the appellant has very strenuously contended that the enquiry is vitiated as the Enquiry Officer acted as presenting cum prosecuting Officer and biased in his attitude, that no second show cause notice for the proposed penalty of dismissal from service was given; that the quantum of punishment is excessive, unconscionable and disproportionate and that the unblemished past record of service of nearly three decades barring isolated incidents, which culminated in the charge memo, has not been taken into consideration by the Disciplinary Authority. In view of the defective nature of the enquiry, the appellant is entitled to be totally exonerated from the charges levelled against him or a minor punishment or at the most, the punishment of compulsory retirement from service would have been inflicted instead of sending out the appellant unceremoniously by an order of dismissal. 5. However, the learned counsel appearing for the Department has contended that an enquiry has been conducted as per the regulations. In the absence of any irregularity in the conduct of the enquiry as per the regulations, it is futile for the appellant to contend that the enquiry is vitiated. The statute provides as to how the enquiry has to be conducted, the guidelines issued in the statute give various directions as to how the enquiry officer has to conduct himself. The guideline so framed under the manual of conduct of regulation and disciplinary proceedings has been strictly followed in this case. The learned counsel further contended that the charge levelled against the appellant is charge of demanding and accepting bribe for providing commercial connections. Having regard to the gravity of the charges of corruption proved by materials, the past conduct need not be taken into consideration. https://hcservices.ecourts.gov.in/hcservices/ 6. We heard the learned counsel on either side and perused the materials on record. 7. The respondents framed three charges against the appellant. The first charge is that one K.Ramalingam, S/o M.Krishnamoorthy, Thiruchitrambalam has applied for Industrial Service Connection for 20 H.P during May, 1997 for R&R Shoes Private Limited, Irundai. On the date of application, he met K.Kalamegam, the Assistant Executive Engineer/Electrical, the appellant herein for the connection. The appellant demanded Rs.20,000/- as bribe at the rate of Rs.10,000/- per H.P in three instalments, the first instalment of 50% amount before preparation of estimate, the second instalment amount of 25% at the time of payment of EMD and the balance amount of 25% at the time of effecting supply. As such, he has received a sum of Rs.10,000/- on 3.6.1997 and Rs.5,000/- on 7.7.1997 as bribe at his residence from the said Ramalingam for effecting industrial service connection. The service was effected on 24.09.1997. This is a serious misconduct under Discipline and Appeal Regulation of Tamil Nadu Electricity Board. 8. The next charge levelled against the appellant was that one Malathi, W/o A.Natarajan, Thiruchitrambalam has applied for service connection of 12 H.P during 1996 for Lathe Workshop. The appellant demanded and received a sum of Rs.3,000/- as bribe for effecting service connection to the said Lathe Workshop of Malathi from her husband. The other charge is that one Balachander, S/o Subramaniyam, Balaji Wood Works, Thiruchitrambalam, has applied for industrial service connection for 7.5 H.P during June 1997. After a week, he met the appellant and requested for effecting service connection early and the appellant demanded and received a sum of Rs.2,000/- as bribe for effecting service connection. 9. Due enquiry has been conducted by the respondent after giving adequate opportunity to the appellant. The appellant is not able to substantiate before us by any material that the enquiry has not been conducted in a manner it was required to be conducted or as per the statutory provisions. The repeated argument was that the Enquiry Officer has acted as presenting Officer as well as the Enquiry Officer. We are not able to approve this contention because under Chapter 4 of the Manual on Conduct Regulation and Disciplinary Proceedings pertaining to the Department, guidelines have been issued to the Enquiry Officer as to how an enquiry should be conducted. The guidelines reads as follows: “Guidelines to Enquiry Officer: 1. Enquiry Officer’s function is like a judge in Civil Court and he shall remain unbiased and neutral. 2. The Enquiry Officer should be have a clear and open mind and determination to conduct and complete the enquiry. 3. The Enquiry Officer should not be an eye witness to https://hcservices.ecourts.gov.in/hcservices/ the incident or should not be a person who detected the case. 4. The Enquiry Officer should be one having no personal ill will towards the accused. 5. The Enquiry Officer should not be one subordinate in rank to that of the accused. 6. The Enquiry Officer should be very calm and give patient hearing and at the same time firm enough to over rule wherever necessary any objection not related to the charge and enquiry is raised. 7. The Enquiry Officer should not be perturbed if any objection is raised by the delinquent. 8. The function of the Enquiry Officer is to enquire the charges only (i.e.) to elicit fact on the charges and he is not to propose what should be appropriate penalty assuming the guilt is proved. 9. The Enquiry Officer should limit his questioning to matters well connected with the charges only. 10. All reasonable opportunity to cross examine the prosecution witnesses by the delinquent and also to produce the defence witness should be given. 11. Enquiry Officer may not put leading questions. 12. Delinquent should not be examined first. He should be examined only last. 13. Though law does not require that the enquiry should be in the local language, it would be better, if the proceedings are conducted in the local language particularly when the delinquent insists on that. 14. The Enquiry Officer should deal with the matter before him objectively, fairly and impartially.” 10. The procedure as contemplated for imposition of the penalty under Clause 4(a) has been complied with. The Enquiry Officer has conducted the enquiry as required by the statute. It is not the case of the appellant that the Enquiry Officer is biased as against the appellant. Hence, this argument is rejected. 11. In respect of disproportionate punishment of dismissal from the service of the respondent, here again, we are not able to find any infirmity in the order of the Disciplinary Authority or that of the Writ Court. It is the case in which the charges levelled against the appellant are very serious in nature and destroying the confidence of the employer against the employee. He is the public servant and rendering services for the cause of the public and receiving salary from and out of the tax paid by the public, but, he demanded, and accepted bribe, which has been proved. Of course, the amount taken as bribe would have been later returned back to the person from whom it was accepted for obvious reason in one case. That would not mitigate the issue. Thus the guilt has been proved beyond doubt or atleast that of preponderance of probabilities which https://hcservices.ecourts.gov.in/hcservices/ is the standard requirement of proof in respect of departmental enquiry. 12. When the employee- appellant has been found to be proved for the guilt of demanding and accepting bribe and ultimately sent out of service, this Court while exercising power under Article 226 of the Constitution of India on a judicial review, cannot sit as Appellate Authority to find out whether the imposition of penalty is proportionate, unless the imposition of penalty shakes the judicial conscious of the Court. The Statute provides a major penalty for major offences. Here the major offence is proved. For the offence of demanding and accepting bribe, the penalty of dismissal cannot be said to be disproportionate. The learned counsel sought to rely on two decisions of the Supreme Court to contend that the appellant would have been relieved of with the order of compulsory retirement, which would entitle him to receive his retirement benefits having served the respondents for more than two decades. We also directed the learned counsel appearing for the Department to find out whether the Department is in a position to modify the penalty as that of compulsory retirement from a penalty of dismissal from service. After due deliberation, the learned counsel for the respondent Board has expressed his inability to accept the request of the appellant. The first judgment relied on by the learned counsel for the appellant is in the case of B.S.SHIROL VS. SRI VEERBHADRESHWAR EDUCATION SOCIETY AND OTHERS reported in (2004) 13 Supreme Court Cases 619. That was the case in which the Constitution of Enquiry Committee and the procedure followed therein was found by the Supreme Court as improper and illegal. Having found so, taking into consideration of the further fact that the employee since retired on attaining from the age of superannuation by exercising power under Articles 141 and 142 of Constitution, converted the order of dismissal as one of compulsory retirement. Even for doing so, the Supreme Court has given reason that though in the ordinary course, the Supreme Court would have set aside the dismissal order and reserve liberty to Management to hold fresh enquiry, but having regard to facts and circumstances and long lapse of time, order of dismissal converted into one of compulsory retirement as desired by the appellant but without back wages from the date of suspension till the date of superannuation. A reading of the paragraphs 5 and 6 of the judgment clearly shows that in that case, the respondent-Management has accepted the suggestion made by the appellant for conversion of the penalty into one of compulsory retirement by foregoing the back wages. But in this case, the management has stood stead in opposing the suggestion. In the other judgment of the Supreme Court in the case of STATE OF U.P. VS. JAIKARAN SINGH reported in (2003) 9 Supreme Court Cases 228, the general principle has been reaffirmed by stating that if the charges are established and there is no lacuna in the procedure of departmental enquiry, normally the Court in exercise of its jurisdiction under Article 226 does not interfere with the quantum https://hcservices.ecourts.gov.in/hcservices/ of punishment. However, if the Court feels that the punishment inflicted to be grossly unjust and shocking the conscious, it may interfere therewith in appropriate cases. We are of the view that the facts of the present case are not at all touching our conscious to conclude that the imposition of penalty of dismissal is shocking the conscious. Even in the very same case, the Supreme Court has ruled categorically that once charges are established in a disciplinary proceedings and there is no lacuna in the procedure, the ordinary rule is that there is no interference by the Court and only exception is curved out when the punishment is imposed is so shocking conscious of the Court. 13. The learned counsel appearing for the Department has brought to our notice a Division Bench judgment of this Court, wherein, the Department has been deprecated for not awarding the appropriate punishment after holding that the charges have been proved. It is observed by the Division Bench in the said judgment to the effect that, "we must point out the Disciplinary Authority viz., the Regional Chief Engineer, Distribution, Madurai Region, Madurai failed to exercise his judgment in the matter of imposition of penalty judiciously. When an official is charged with corruption and the charge of corruption is proved, as in the instance case, not one but four charges of corruption are held to have been proved the penalty that should have been imposed, was dismissal from service. Instead of that, the Disciplinary Authority has imposed the penalty of reduction in rank to lower post of Commercial Assistant for a period of two years on duty with cumulative effect. It may be pointed out that the Electricity Board, apart from the fact that it is a State under-taking, it is a public utility concern. It has to take care to ensure that there is no scope for corruption and corrupt elements are weeded out. It is possible only when such cases are dealt with severely and penalty of dismissal is imposed. There should not be and no one should show any mercy in such cases. When such Officers are booked and charges are proved, the only way to maintain discipline, integrity and honesty in the service of the Board is to dismiss such officials. Therefore, we are constrained to place on record that the Regional Chief Engineer, Distribution, Madurai Region, Madurai has done a great disservice to the Electricity Board and to its Administration by taking a lenient view and imposing the punishment of reduction to a lower rank for two years only, when the appellant should have been dismissed. We are also of the view that this is a case which requires to be enquired into in order to find out as to what prevailed upon https://hcservices.ecourts.gov.in/hcservices/ Regional Chief Engineer to impose such an inconsequential punishment in a case of corruption. ....." 14. When we are concluded that the instant case is a case of proved misconduct - corruption, which is manifest on the record, we are not able to find any reason to interfere with the order impugned. Accordingly, the writ appeal is dismissed. The request to reserve liberty to the appellant to move the respondents for clemency cannot be accepted for the above reasons and also for the reason that the same is negatived by the respondents. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. raa/usk Copy to: 1.The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai. 2.The Chief Engineer(Distribution) Villupuram Region, Villupuram. + 1 CC To Mr.M.Vaidyanathan, Advocate SR NO.49703 + 1 CC To Mr.V.M.Ravichandran, Advocate SR NO.49688 W.A. No.4210 of 2004 CK(CO) SRA(18/09/2008) https://hcservices.ecourts.gov.in/hcservices/