IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19 .01.2009
C O R A M :
THE HONOURABLE MR. JUSTICE K. CHANDRU
W.P.Nos.3273 and 32090 of 2004
G.K.Anbu .. Petitioner in W.P.
No.3273 of 2004
A.Mohan .. Petitioner in W.P.
No.32090 of 2004
-vs-
1. The Tamil Nadu Industrial
Investment Corporation Limited,
rep.by its Managing Director,
692, Anna Salai, Nandanam,
Chennai-600 035.
2. The Board of Directors/Appellate
Authority, rep.by its Managing
Director, Tamil Nadu Industrial
Investment Corporation Limited,
692, Anna Salai, Nandanam,
Chennai-600 035. .. Respondents in both
the writ petitions
PRAYER in WP.3273 of 2004 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records relating to the proceedings dated 27.3.2001 in proceedings No.ADMN/DW/2000-2001 of the first respondent and the proceedings No.TIIC/Admn. /DW/2003-04, dated 12.1.2004 of the second respondent and quash the orders passed therein and consequently direct the respondents to reinstate the petitioner into the service of the respondents with all backwages, attendant and other service benefits arising therefrom.
PRAYER in WP.32090 of 2004 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records on the file of the respondents relating to the impugned order passed by the first respondent, dated 27.3.2001 and the order dated 12.1.2004 passed by the second respondent enhancing the order of removal to dismissal of the petitioner from service and quash the same.
For petitioner in
W.P.No.3273 of 2004 : Mr.Srinath Sridevan
For petitioner in
W.P.No.32090 of 2004 : Mr.V.P.Raju
For respondents in
W.P.No.3273 of 2004 : Mrs.Rita Chandrasekaran
For respondents in
W.P.No.32090 of 2004 : Mr.M.R.Raghavan
****
O R D E R
W.P.No.3273 of 2004 filed by the petitioner, who was working as an Officer in the Hosur Branch Office, challenges the order dated 27.03.2001 in demoting the petitioner to the cadre of Junior Officer and as well as the order of the 2nd respondent appellate authority dated 12.01.2004 in enhancing the punishment to one of dismissal from service from the date of the order viz., 12.01.2004.
2. The writ petition was admitted on 18.02.2004 and the prayer for interim relief was rejected by this Court on that date. Subsequently, another application being W.P.M.P.NO.6232 of 2004 came to be filed seeking for a direction to reinstate the petitioner and this Court by an order dated 19.05.2004 granted an interim order. Meanwhile, the stay application was dismissed on 22.09.2004 for want of representation and subsequently it was restored. The respondent Corporation filed a vacate stay application in W.V.M.P.No.1281 of 2004. The said petition was allowed and the petition for interim stay was dismissed by a common order dated 18.03.2005.
3. Similarly in W.P.No.32090 of 2004, the petitioner therein was an Assistant Manager, who was earlier working as Branch Manager at the Hosur Branch Office. By an order dated 27.03.2001, the 1st respondent removed the petitioner from service. In his subsequent appeal, the Board by an order dated 12.01.2004, modified the punishment into one of dismissal. That writ petition was admitted on 05.11.2004.
4. On behalf of the respondents a counter affidavit dated Nil (June 2004), was filed in the first writ petition and another counter affidavit dated 17.07.2008 was filed in the second writ petition.
5. The contention of the learned counsel for the petitioners were two fold. When the petitioner filed an appeal, the Managing Director 1st respondent who had passed the initial order had participated in the meeting of the Board of Directors held on 16.12.2003. Therefore, the order of the Board of Directors being the appellate authority is vitiated. Reliance was also placed upon the Judgement of the Supreme Court in Institute of Chartered Accountants of India vs. L.K.Ratna and others reported in (1986) 4 SCC 537 .
6. In the present case, a copy of the minutes of the Board of Directors was produced by the respondents, which would show that at the time of passing the order the Managing Director was one P.Prabhakaran, I.AS., whereas in the Board Meeting, the subsequent Managing Director Tmt.D.Savitha, I.A.S., had participated. Since it is not the same person, who participated in the Board proceedings, the doctrine of personal bias does not arise. Therefore, the reliance placed upon L.K.Ratna’s case cited supra has no relevance.
7. The second contention raised by the petitioner in W.P.No.3273 of 2004 is that had he not filed any appeal against the original order of punishment, he would not have been visited with enhanced punishment of dismissal and he cannot be worse of than a person who had not filed any appeal. He also submitted that another person by name A.Muruganandam, Branch Manager, who was also similarly charge sheeted was imposed with a punishment of reduction to a lower post, by an order dated 27.03.2001 by the 1st respondent. He had not filed any appeal. He is continuing in service. But in the case of the first petitioner, he was suffered with an initial punishment of reduction to a lower rank. But on appeal, the same was enhanced to one of dismissal. However, the said defence may not be available to the second writ petitioner, because in that case, original punishment was removal from service and in the appeal it has only been confirmed.
8. It is also seen from the records that in relation to the 2nd petitioner (A.Mohan, Assistant Manager) an elaborate enquiry was conducted against the petitioners, and after affording all opportunities, the misconduct by them were proved. The irregularities committed by them in accepting unapproved supplier to supply substandard machinery to the borrower disbursing a sum of Rs.11.44 lakhs to the borrower in spite of adverse report by the concerned Loan Administrative Officer, fabricating valuation report of the Panel Valuer, furnishing false inspection report along with the other two employees, reporting that the machinery were available in good condition and the power was available, disbursing loan amount to the borrower taking the value of the machinery that 19.48 lakhs while the actual value was only 4.10 lakhs.
9. A detailed reasoning was given by the 1st respondent competent authority. The appellate authority has given an opportunity of personal hearing to the petitioner and had passed a reasoned order. Therefore, there is very little scope for interfering with the penalty granted to A.Mohan, petitioner in W.P.N.32090 of 2004. In his case, the original punishment was one of removal from service. On appeal, the Board had given the punishment into one of dismissal. There is hardly any difference between a removal and a dismissal as both are major penalties under the Service Rules.
10. However, the argument of the counsel for the petitioner in W.P.No.32090 of 2004 merits acceptance. While the said petitioner and A.Muruganandam were both charged for the very same misconduct, and after enquiry, were imposed with the penalty of reduction in lower rank by the disciplinary authority (1st respondent) only in the case of the petitioner since he had filed an appeal to the Board of Directors, his punishment was enhanced. The Board has power to revise and enhance the punishment under 6.25 of the Service Rules either while hearing the appeal or on suo motu. The case of the petitioner who had filed an appeal the punishment was enhanced from reduction in rank to that of dismissal from service. But in case of A.Muruganandam, the Board did not think fit to enhance the punishment. This issue was raised in the affidavit filed by the petitioner, in paragraph No.16.G, the relevant portion is extracted below:-
“The petitioner submits that in a case like this involving three accused officers and same set up charges relying upon an incidence common for all, the respondents ought to have conducted a joint trial. On the other hand, all the three accused officers have been tried separately resulting in mis-carriage of justice. This is evident from the fact that merely because the petitioner had filed an appeal his punishment was enhanced to that of dismissal from service while the other accused officer Thiru Muruganandham was allowed to continue in the demoted post though there wee powers to the respondents to resort to suo moto revision, which they have failed to follow. Though the petitioner wanted to withdraw the appeal the respondents ignored the request and proceeded to enhance the punishment, which would be unfair and arbitrary apart from being discriminatory warranting interference by this Hon’ble Court”.
11. In response to this averment, in the counter affidavit dated Nil June 2004, in paragraphs 18 and 19.(vii) the following averments have been made by the 1st respondent.
“18. …. Regarding the case of another officer, Thiru.A.Muruganandam, the respondents will be taking further action as warranted after going through the records.
………
19(vii) ….. The reference to another official of the Corporation has no relevance to the case of the petitioner and if necessary, the appropriate authority will initiate suitable action against him. The averment of the petitioner that he wanted to withdraw the appeal but the respondents ignored his request and proceeded to enhance the punishment, is specifically denied. Even if the petitioner wanted to withdraw the appeal and it was actually withdrawn, the Appellate Authority had the power under Rule 6.25 (3) of the Service Rules of the Corporation to enhance the punishment irrespective of whether an appeal was preferred or not”.
12. When asked as to what action was taken against A.Muruganandam, as averred in paragraph 18 referred to above, Mrs.Rita Chandrasekaran, learned counsel for the respondents fairly conceded that no further action was taken against A.Muruganandam and he is very much in service. Therefore, the case of Mr.Anbu is a clear case of discrimination adopted by the 2nd respondent and which is hit by Articles 14 and 16 of the Constitution.
13. In Sengara Singh v. State of Punjab, reported in (1983) 4 SCC 225, it was held that in the matter of punishment there should not be any discrimination among the persons who are similarly placed. In paragraph 9, the Supreme Court held as follows:-
”Para 9. .. .. … Respondents failed to explain to the Court the distinguishing features and therefore, we are satisfied in putting all of them in same bracket. On that conclusion the treatment meted to the present appellants suffers from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution. The Court must accordingly interpose and quash the discriminatory action”.
14. The same view was reiterated in Harminder Singh -vs- State of Punjab reported in 1984 (Supp) SCC 351 and it was observed in paragraph 2 which is as follows:-
”Para 2. At the hearing of these petitions, Mr P.R. Mridul, learned counsel who appeared for the respondents urged that the State of Punjab has filed a review petition against the decision of this Court in Sengara Singh case1 rendered on August 2, 1983. It was further submitted that therefore, this Court should examine afresh the contentions which the State of Punjab would like to advance in the present petitions. An enquiry revealed that the review petition has already been rejected. It was not possible for Mr Mridul to distinguish the case of the present petitioners from those whose cases were dealt with in the aforementioned judgment by this Court. As a necessary corollary, the same result must follow”.
15. The Supreme Court in Bongaigaon Refinery & Petrochemicals Ltd.and others -vs- Girish Chandra Sarma reported in (2007) 7 SCC 206 also dealt with the case of discrimination in the matter of punishment. The passages found in paragraphs 17 and 18 may be usefully reproduced below:-
”Para 17. ……..All these three Committees have processed the deal and it is only the respondent who has been made a scapegoat.
Para 18. After going through the report and the finding recorded by the Division Bench of the High Court, we are of opinion that in fact the Division Bench correctly assessed the situation that the respondent alone was made a scapegoat whereas the decision by all three Committees was unanimous decision by all these members participating in the negotiations and the price was finalised accordingly. It is not the respondent alone who can be held responsible when the decision was taken by the Committees. If the decision of the committee stinks, it cannot be said that the respondent alone stinks; it will be arbitrary. If all fish stink, to pick one and say only it stinks is unfair in the matter of unanimous decision of the Committee”.
16. The Supreme Court in a latest decision in Man Singh -vs- State of Haryana reported in 2008 AIR SCW 3424 in paragraph 19 observed as follows:-
”Para 19. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of ‘fair play’ and reasonableness. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings… … ..”
17. In the light of the above binding precedents and the factual matrix involved in W.P.No.3273 of 2004, the order of the 2nd respondent dated 12.01.2004 will stand set aside and the order of the 1st respondent dated 27.03.2001 in imposing the punishment of placing the petitioner in a lower post will stand restored. The petitioner (G.K.Anbu) is entitled for reinstatement in the lower post as ordered by the 1st respondent. Since he had not rendered any physical service, he may be eligible for 50% of the backwages. Otherwise the interregnum period will be treated as service for all practical purposes including for promotion and terminal benefits. The writ petition is allowed to the extent indicated above.
18. However, in W.P.No.32090 of 2004 the question of discrimination is not available. The 1st respondent has indicated the reasons to impose the punishment of removal from service, which was subsequently modified into one of dismissal by the Board. Therefore, the said writ petition does not call for any interference and hence W.P.No.32090 of 2004 will stand dismissed. However, there will be no order as to costs.
js/rg 19.01.2009
To
1. The Managing Director,
Tamil Nadu Industrial
Investment Corporation Limited,
692, Anna Salai, Nandanam,
Chennai-600 035.
2. The Managing Director,
Board of Directors/Appellate
Authority, Tamil Nadu Industrial
Investment Corporation Limited,
692, Anna Salai, Nandanam,
Chennai-600 035.
K. CHANDRU, J.
js/rg
W.P.Nos. 3273 and 32090
of 2004
19.01.2009