IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.03.2002
CORAM
THE HONOURABLE MR. JUSTICE V.KANAGARAJ
W.P.No.2226 of 1997
A.Pitchamuthu .. Petitioner
Vs.
Superintending Engineer,
Dharmapuri E.D. Circle,
Tamil Nadu Electricity Board,
Dharmapuri - 5 .. Respondent
Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus as stated therein.
For petitioner :Mr.S.Subbiah
For respondent :Mr.V.Radhakrishnan (TNEB).
:O R D E R
Petitioner has filed this Writ Petition praying to issue a Writ
of Certiorarified Mandamus calling for the records relating to the order
dated 8.8.1996 in Memo. No.1-1/PS/A-1/142/96 on the file of the
respondent and quash the same and further direct the respondent to
release all the terminal benefits payable to the petitioner arising out
of the retirement of the petitioner from the services of the respondent
on 30.6.1995.
2. In the affidavit filed in support of the writ petition, the
petitioner would submit that he was employed as Stores Custodian in the
respondent Board; that during December 1988, the Stores were checked by
the Special Team, Madras and found 56 items were in shortage; that
therefore, the respondent issued a notice on 22.5.1989 against the
petitioner to show cause as to why the cost of the materials found short
should not be recovered from him; that the petitioner sent a reply on
5.6.1989; that the respondent issued yet another notice on 26.7.1 989
calling upon him as to why the cost of materials allegedly worked out at
Rs.1,50,689.37 plus centage and handling charge should not be recovered
from him; that the petitioner also sent a reply on 3.8.198 9 and
thereafter, the respondent did not pass any order till 6.9.1995 .
3. The petitioner would further submit that in the meantime, the
respondent initiated disciplinary proceedings and kept him under
suspension for some time and proposed to inflict punishment by directing
demotion to the lower post for a period of three years, by a notice dated
6.6.1991; that therefore, the petitioner filed O.S.390 of 1991 and
obtained an order of temporary injunction in I.A.886 of 1991 and the same
was made absolute on 27.8.1991 and an order was passed on 12.1.1995 in
C.M.A.No.30 of 1993 confirming the order dated 27.8.1991; that pending
the suit, he was transferred to Kancheepuram and thereafter to Vellore
and got retired from service on 30.6.1995 on attaining the age of
superannuation; that the suit was dismissed on 27.7.1995 holding that the
petitioner would not be entitled to the reliefs sought for by him.
4. The further averments of the writ petition are that the
respondent issued a memo. dated 6.9.1995 informing about the recovery of
a sum of Rs.1,74,046.00 from his terminal benefits; that he filed W.P.142
66 of 1995 challenging the said memo. and this Court passed an order
setting aside the memo. issued by the respondent further directing the
respondent to issue fresh notice and pass appropriate orders, affording
an opportunity to the petitioner; that subsequently, the respondent
issued a charge memo. dated 27.1.1996 to show cause as to why the value
of the materials in shortage should not be recovered from him and for
that the petitioner also replied on 27.2.1996; that the petitioner also
submitted his objections, but however, the respondent without considering
any of his objections, passed the impugned order dated 8.8.1996 to
recover a sum of Rs.91,579/= out of his terminal benefits.
5. In the counter filed on behalf of the respondent, besides
denying the allegations of the writ petition, it would be submitted that
when a complaint lodged with the police for the loss of materials was
under investigation, the petitioner was reinstated into Board service by
revoking his suspension orders without prejudice to the outcome of the
police investigation and departmental action to be taken against him and
was posted to another section viz., Meter and Relay Test at Dharmapuri;
that while the petitioner was working as Stores Custodian of MRT,
Dharmapuri, he was arrested by the police on 14.2.1990 and was remanded
to judicial custody for an offence punishable under Section 409 I.P.C.;
that consequent to his arrest, he was again placed under suspension with
effects from 14.2.1990; that pursuant to the disciplinary proceedings, he
was ordered to be reverted to Grade II Stores Custodian.
6. The respondent would further submit that in finalisation of
the departmental proceedings, a show cause notice indicating the
provisional punishment of ‘Reversion to the post of Stores Custodian II
Grade for a period of three years’ was issued by memo. dated 6/17.6.1991
for the charges proved which are grave in nature; that as per the order
of this Court dated 29.11.1995, the respondent issued a fresh show cause
notice to the petitioner on 27.01.1996; that an enquiry was proposed to
be conducted on 10.4.1996 and subsequently posted to 15.4.19 96; that the
petitioner has also participated in the enquiry and he denied certain
points and admitted certain lapses committed by him; that after
considering certain points raised by the petitioner, the quantum of
recovery of the amount had been reduced, with reference to the valid
records; that after taking into consideration the replies furnished by
the petitioner and the written objections, the quantum of amount of
recovery has been reduced to Rs.91,579/- considering the like nature
initial shortage and surplus in his section and the impugned order was
passed; that there is no reason between the order of recovery of the loss
of materials and the departmental proceedings instituted against him;
that in the departmental proceedings, he was charged for negligence in
his duties and the recovery order is for the shortage of materials in his
custody; that the responsibility lies only with the Stores Custodian in
respect of his section and hence for any shortage of materials, he would
be the person answerable; that the petitioner has been paid the special
provident fund cum gratuity and sanction has also been accorded for
provisional pension. On such averments, the respondent would pray to
dismiss the writ petition.
7. During arguments, the learned counsel appearing on behalf of
the petitioner would lay emphasis on the legal point that after
retirement, the respondent Board has no right to proceed against the
servant and would cite a judgment reported in Bhagirathi Jena VS. Board
of Directors, O.S.F.C. {(1999) 3 SCC 666} wherein in a case of such
facts, the appellant therein was relieved on 1.7.1975 by the Corporation
without prejudice to the claims of the Corporation and thereafter, the
question arose with regard to the continuance of the disciplinary enquiry
for the purpose of reduction of retiral benefits payable to the
appellant. The appellant contended that he retired on 30.6.1995 and the
disciplinary proceedings could not be continued even for the purpose of
making reduction of the retiral benefits in as much as there were no
statutory regulations made by the Corporation for such reduction of
retiral benefits. The High Court of Orissa dismissed the writ petition
and on appeal, the Apex Court held that having permitted the appellant to
retire from service on 30.6.1995, there was no authority vested in the
Corporation for continuing the departmental enquiry even for the purpose
of imposing any reduction in the retiral benefits payable to the
appellant and in the absence of such an authority, it must be held that
the enquiry had lapsed and the appellant was entitled to full retiral
benefits on retirement.
8. It is not the situation that is prevalent in the case in
hand. In the case dealt with by the Apex Court, since there had been no
provision to the effect that in case of misconduct being established, a
deduction could be made after retirement from service as per the
Corporation Rules, and therefore, without such authority vested in the
Corporation for continuing the departmental enquiry even for the purpose
of imposing any reduction in the retiral benefits payable to the
appellant, the same cannot be done as concluded by the Apex Court. Here,
the petitioner has not at all established that the respondent/ Board is
bereft of such authority, and therefore, the fact situation that
prevailed for arriving at such conclusion in the above case does not
prevail in the case in hand and hence, the ratio applied by the Apex
Court therein does not become applicable to the case in hand.
9. yet another judgment reported in D.K.Yadav Vs. J.M.A.
Industries Ltd. (1993 II LLJ 696) would be cited on the part of the
learned counsel for the petitioner, wherein a Full Bench of the Apex
Court has held that “it is well settled that the right to life enshrined
in Article 21 of the Constitution would include the right to livelihood.
The order of termination visits with civil consequence of jeopardising
not only the worker’s livelihood but also the career and livelihood of
the dependents. Therefore, before taking any action of putting an end to
the tenure of an employee, fairplay requires that a reasonable
opportunity to put forth his case is given and domestic enquiry conducted
complying with the principles of natural justice.”
10. No doubt, the above proposition held by the Honourable Apex
Court has to be fully adhered to in any proceeding, especially in case of
termination from service. But the petitioner’s case is not that of
termination, nor has he prayed for reinstatement in service nor for
back-wages nor on such claims for the retirement benefits. In the case
in hand, the petitioner’s claim itself is to the effect of quashing the
order impugned, which is for the recovery of a sum of Rs.91,579 /= with
further direction to release the terminal benefits payable to him.
Therefore, it is not a case that could be treated on the proposition held
by the Apex Court in the above judgment since there, it is the case of
termination visiting civil consequence of jeopardising the livelihood and
the careers of the dependents. But the fact situation that prevails in
this case is not the same or similar in the judgment cited, and hence the
proposition held therein does not become applicable to the case in hand.
11. In reply, the learned counsel appearing for the respondent
would submit that the petitioner, in spite of having been served with all
necessary notices, has not submitted any explanation at the initial stage
itself. But, he only proceeded against the authority before the civil
forum filing the suit in O.S.No.390 of 1991 which even ultimately got
dismissed on 27.7.1995 and thereafter, he does not seem to have pursued
on appeal since there are no averments to that effect. The petitioner
has also approached this Court, but without any consequence, but never
the petitioner had cooperated with the Board in the conduct of the
enquiry; that the petitioner appearing before the enquiry officer, should
have explained how the shortage occurred and how he was not responsible
for the same so as to get him out of the enquiry proceeding, and
therefore, the impugned order dated 8.8.1996 passed by the Board thereby
ordering to recover the shortage amount of Rs.91,579/= from out of the
final settlement to be made in favour of the petitioner, cannot be
concluded either arbitrary in nature or unreasonable or illegal.
12. From the above pleadings of the facts and circumstances by
parties and the discussion held on the successive events, it comes to be
known that the Board was empowered with such powers to order recovery of
the shortage to the tune of Rs.91,579/= from the retirement benefits of
the petitioner since the Board proceedings provided for making use of
such powers entrusted by the Board and such an order as one impugned
herein has been passed, as against which, the petitioner had instituted
the suit in the civil forum of law in O.S.No.390 of 1991 on the file of
the Court of District Munsif, Dharmapuri and the said suit also
admittedly having come to be dismissed, nothing is left with for the
petitioner before this forum since on an elaborate enquiry held, the
civil forum has arrived at the conclusion to dismiss the suit thereby
rejecting the case of the petitioner, against which, this Court, sitting
in the judicial review, cannot pass any order unless it is proved on the
part of the petitioner that either the recovery proceeding initiated or
the order impugned herein is bereft of authority or is done in an
arbitrary and highhanded manner much less in violation of the high
principles of natural justice and since no such plea made nor proof
shown, the only conclusion that could be arrived at by this Court in the
above writ petition is to decline to interfere with the same.
13. No legal infirmity or inconsistency nor error apparent on
the face of the order seems to have occurred in the manner in which the
order impugned has come to be passed warranting the interference of this
Court. Nor any lack of opportunity also comes to be seen in violation of
the principles of natural justice, since no such points have been
highlighted even on the part of the petitioner excepting to make a
passing remark and what comes to be seen is that only the petitioner has
not cooperated with the authorities in explaining the situation on his
part, and therefore, it cannot, in any circumstance, be held as lack of
opportunity contemplated by law, and therefore, there exists no valid
legal ground in the whole of the case of the petitioner calling for the
interference of this court as prayed for in the petition.
14. In the above circumstances, the writ petition becomes liable
only to be dismissed, in all respects.
In result, there is no merit in the writ petition and the same is
dismissed as such. No costs.
gs.
15.03.2002
Sd/-
ASSISTANT REGISTRAR
// TRUE COPY //
SUB ASSISTANT REGISTRAR
To
The Superintending Engineer,
Dharmapuri E.D. Circle,
Tamil Nadu Electricity Board,
Dharmapuri – 5
gs.
V.KANAGARAJ,J.
Order
in W.P.No.2226 of 1997
15.03.2002