IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.03.2010 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.4691 of 2009 A.Rajendran ... Petitioner vs. 1. The Chairman, Tamil Nadu Electricity Board, Chennai 600 002. 2. The Chief Internal Audit Officer, Board Office Audit Branch, Tamil Nadu Electricity Board, NPKRR Maaligai (I Floor), 144, Anna Salai, Chennai 2. ... Respondents 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 and to quash the order dated 19.02.2009 in Memo No.05532/172/F.1/F.12/2009-18 passed by the 2nd respondent, seeking to implement the Memo No.20233/A3/A32/2006-13, dated 27.08.2008 and Memo No.20233/A3/A32/2009-13, dated 10.02.2009 passed by the 1st respondent, withholding the increment of the petitioner on the ground that the passing of B.Com. by way of double degree programme conducted by the Annamalai University is not equivalent to the Board examination and to direct the 2nd respondent to refund the withheld increment. For Petitioner : Mr.B.Vijayakumar For Respondents : Mr.A.Selvendran O R D E R
This writ petition is filed challenging the order dated 19.02.2009 in Memo No.05532/172/F.1/F.12/2009-18 passed by the 2nd respondent, seeking to implement the Memo No.20233/A3/A32/2006-13, dated 27.08.2008 and Memo No.20233/A3/A32/2009-13, dated 10.02.2009 passed by the 1st respondent, withholding the increment of the petitioner on the ground that the passing of B.Com. by way of double degree programme conducted by the Annamalai University is not equivalent to the Board examination and to direct the 2nd respondent to refund the withheld increment.
2. The brief facts leading to the filing of the writ petition are, as under:
(i) The petitioner joined as an assessor on 23.11.1985 in the respondent Board. By an order dated 19.07.1999, the respondent Board promoted the petitioner from the cadre of assessor to Junior Auditor, Board Office Audit Branch along with 16 others, on condition that they should relinquish the right of seniority in the category of assessor and that their seniority will be fixed in the Board Office Audit Branch with reference to the date on which they joined as Auditor in the Board Office Audit Branch and they take the last rank in the category of Junior Auditor.
(ii) The petitioner states that he passed B.Com. Degree in Annamalai University under the Double Degree programme in the year December 2005 and that vide letter dated 05.04.006, two incentive increments were given to him by the respondent Board with effect from 30.12.2005 on the basis of the condition that he has passed B.Com. Degree under the Double Degree Programme.
(iii) The petitioner would further state that the 1st respondent passed an order by Memo No.20233/A3/A32/2006-13, dated 27.08.2008 and further the 1st respondent passed another order confirming the aforesaid order, on 10.02.2009 in Memo No.20233/A3/A32/2009-13, withholding the increments generally to all those who had passed the Double Degree programme of the Annamalai University on the ground that the same is not equivalent to the B.Com. Degree Programme as conducted by the Madras University and it is not equivalent to the Higher examination.
(iv) The petitioner issued his representation dated 24.10.2008 through the Secretary of the Board. On 19.02.2009, the 2nd respondent issued an individual order implementing the order withholding the increment by Memo No.20233/A3/A32/2006-13, dated 27.08.2008 and Memo No.20233/A3/A32/2006-13 dated 10.02.2009 passed by the 1st respondent, which order the petitioner seeks to quash in the present writ petition.
3. Heard Mr.B.Vijayakumar, learned counsel for the petitioner, Mr.A.Selvendran, learned counsel appearing for the respondent Electricity Board.
4. The foremost and only question raised by the learned counsel for the petitioner is that the order passed by the 2nd respondent is without notice and without affording an opportunity of hearing to the petitioner and therefore, the order impugned in this writ petition is liable to be set aside.
5. Mr.A.Selvendran, learned counsel appearing for the respondent Electricity Board would contend that the impugned order has been passed pursuant to the Board’s Memorandum dated 27.08.2008 and 10.02.2009, wherein, instructions have been issued to withhold the sanctioned advance incentive increments to the employees for having passed one year B.Com. degree course under Distance Education Mode. Accordingly, the impugned order has been passed withholding the sanctioned advance incentive increments to the petitioner on the ground that the passing of B.Com. by way of double degree programme conducted by the Annamalai University is not equivalent to the Board examination.
6. Heard the submissions made by the learned counsel on either side and perused the materials available on record.
7. It is not in dispute that the petitioner joined as an Assessor on 23.11.1985 in the respondent Board and that he was promoted from the said cadre to the post of Junior Auditor in the Board Office Audit Branch, by an order of the respondent Board dated 19.07.1999. However, the 2nd respondent has taken a decision to withhold the sanctioned advance incentive increments to the petitioner on the ground that the passing of B.Com. by way of double degree programme conducted by the Annamalai University is not equivalent to the Board examination.
8. It is seen that the impugned order based on the Board’s Memorandum dated 27.08.2008 and 10.02.2009 was neither communicated nor served on the petitioner and it appears that the petitioner was not even given an opportunity of hearing. In that view of the matter, as the impugned order passed by the 2nd respondent is without notice to the petitioner and no opportunity of hearing was given to him, the same cannot be sustained. The cardinal principle is that when an order is passed without notice to the petitioner and without an opportunity of hearing to him, then it is against the principles of natural justice and there is legal infirmity in it.
9. Accordingly, the impugned order dated 19.02.2009 in Memo No.05532/172/F.1/F.12/2009-18 passed by the 2nd respondent is set aside and the matter is remitted to the 2nd respondent to proceed further by issuing a fresh notice to the petitioner after giving an opportunity of hearing to him, and pass appropriate orders on merits and in accordance with law within a period of eight (8) weeks from the date of receipt of a copy of this order.
The writ petition is allowed with the above direction. No costs. Consequently, connected M.P.No.1 of 2009 is closed.
Index : Yes/No Internet : Yes/No 12.03.2010 abe To : 1. The Chairman, Tamil Nadu Electricity Board, Chennai 600 002. 2. The Chief Internal Audit Officer, Board Office Audit Branch, Tamil Nadu Electricity Board, NPKRR Maaligai (I Floor), 144, Anna Salai, Chennai 2. V.DHANAPALAN,J. Abe Order made in W.P.No.4691 of 2009 Dated: 12.03.2010