IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/02/2003
CORAM
THE HON'BLE MR.JUSTICE E.PADMANABHAN
Writ Petition No. 776 of 2000
M.Venkatachalam
Type IV (TNA) House NO.3,
Alangulam Cement Factory Colony
TANCEM P.O.626 127 ..Petitioner
-Vs-
1. Tamil nadu Cements Corporation
rep. by its Chairman and Managing Director
LLA Building, 735, Anna Salai
Chennai-2
2. Tamil Nadu Cements Corporation
rep. by its Board of Directors
LLA Building, 735, Anna Salai
Chennai-2 ..Respondents
Writ Petitions are preferred under Art.226 of The Constitution of
India seeking for a writ of certiorari, as stated therein.
For petitioners :: Mr.Balan Haridass
For respondents :: Mr.R.Viduthalai
:O R D E R
The writ petitioner has prayed for the issue of a writ of certiorari
calling for the records relating to the order of the first respondent dated
5.4.1999 bearing Proceedings No.1800/A3-98-1 as confirmed by the order of the
second respondent confirmed in their 177th Meeting held on 8.9.1999
communicated to the Petitioner on 6.10.1999 by the order dated 10.9.1999
bearing Proceedings No.2266/A3/99-1 imposing on the petitioner the punishment
of stoppage of two increments with cumulative effect and quash both the orders
as without jurisdiction, illegal, arbitrary and in violation of principles of
natural justice and in violative of Article 14 of The Constitution.
2. Heard Mr.Balan Haridass, learned counsel appearing for the writ
petitioner and Mr.R.Viduthalai, learned counsel appearing for the respondents.
3. Practically there is no controversy in the factual matrix.
However, the factual matrix could be summarised briefly:-
4. The writ petitioner was the Manager (Tech-Mech) in Tamil Nadu
Cements Factory, Alangulam Cement Works. On 9.10.1997 at about 10.00 pm.,
fire broke out in the said Cement Factory resulting heavy damage to the
internal parts of Electro Static Precipitator (ESP) resulting twist/bend to
the entire internal system which disturbed the original alignment leading to
distortion, as a result of which the Kiln was stopped for 118 days. The
recommissioning of the Kiln could be done after a lapse of four months
resulting in loss to the tune of Rs.16.4 5 lakhs towards purchase of the steel
materials, emitting electrodes and consumables besides loss of production of
20,000 Matric Tonnes of clinker. Relating to the said accident charges were
framed against the petitioner and other staff members in the said Alangulam
Cement Plant. In respect of the other two Executive Officials namely,
M.Anthonysamy, Assistant Manager and C.Paraman, they were placed under
suspension for 18 days and the suspension period was treated as substantial
punishment by order dated 21.1.1999 and 3.2.1999.
5. In respect of the petitioner charges were framed for negligence,
omission and neglect of duty under Rule 5.2(k) of the TANCEM Service Rules.
As the explanations offered by the delinquent officer was not satisfactory,
enquiry was ordered and conducted. The Enquiry Officer reported a finding
that charges levelled against the petitioner and two other delinquent
officials were not established. It is alleged that the petitioner and the
other two officials were not able to fix up the responsibility on the persons
concerned on account of negligence and neglect of duty for the fire mishap and
they tried to evade the responsibility, which has caused a heavy financial
loss to the tune of Rs.16.14 lakhs to the Corporation.
6. Domestic enquiry was conducted and a report was submitted to the
respondent on 23.5.1998. Without communicating the report, without affording
an opportunity and without issuing a show cause notice as to why the finding
should not be dissented by the respondents, the disciplinary authority by the
impugned proceedings dated 5.4.1999 imposed a punishment of stoppage of
increment for a period of two years with cumulative effect. The material
portion of the impugned order which is relevant in this writ petition reads
thus:
“It is found that the entire system of reporting the fire mishap has
not been properly one and what was attempted was only shielding of the persons
concerned at all levels and I do not agree with the observation of the Enquiry
Officer that Th.M.Venkitachalam alone cannot be blamed for the incident. It
is established that pumping of excess coal into the kiln without having
proper/timely check over the same has resulted in accumulation of unburnt coal
in the ESP chambers and the same was the main cause of the fire mishap.
After taking into consideration , the facts and perusal of the
connected documents, Enquiry Report/findings, including the explanation
offered by Th.M.Venkitachalam, Manager (Tech-Mech) and on the basis of the
circumstantial evidences both Th.M.Venkitachalam, Manager ( Tech-Mech) and
Th.M.Antonysam, Dy.Manager (Process Control-Kiln) (i/c) who are the Head of
Department and Section Head are vicariously liable for the fire accident
caused due to their negligence and neglect of work. Hence, as per Rule 5.3(c)
of the Service Rules of Tancem, I give an order that the annual increment of
Th.M.Venkitachalam, Manager ( Tech-Mech) is stopped for a period of two years
with cumulative effect. He is also severely warned to guard himself against
such lapses in future and this will be recorded in his personal file.”
7. After the imposition of punishment by the order dated 12.4.1999 ,
the petitioner requested the first respondent to furnish the enquiry report
dated 7.10.1998. In the report submitted the enquiry officer, has reported
thus:-
“As otherwise Thiru M.Venkatachalam has taken prompt action against
erred persons, has not shown negligence and neglect of duty, a lenient,
lethargic and careless attitude which are detrimental to the interest of the
organisation.
Under the above circumstances, I came to the conclusion that the
charges No.1 and 4 were not proved and proper evidences are not provided to
prove the charges, with respect to charges 2 and 3 against Thiru
M.Venkatachalam, Manager (Tech-Mech) the respondent as per the charges
mentioned in the charge memo ref.R.C.no.1800/A3, dated 2.4.1998 .”
8. The petitioner preferred an appeal before the second respondent
and the appeal was placed before the Board, which the Board discussed. But
the Board confirmed the order of punishment awarded by the first respondent on
5.4.1999. The second respondent appellate authority has not discussed the
merits of various contentions advanced in the appeal before it.
9. In the light of the above facts, the learned counsel appearing for
the petitioner contended that the failure to communicate a copy of the enquiry
report, the failure to issue a show cause notice as to why the findings
reported should not be dissented and the failure of the appellate authority to
consider the material points, vitiate the impugned proceedings. Mr.Balan
Haridas, learned counsel contended that the enquiry report which was not
communicated to the petitioner has exonerated the petitioner. So also the
report of the expert committee. Therefore before finding the petitioner
guilty of one or more of the charges, the disciplinary authority should have
issued a show cause notice as to why he is dissenting from the report and
should have called upon the petitioner to state his objections or make a
representation. Admittedly such a notice has not been issued. But
straightway the punishment of stoppage of increment for two years with
cumulative effect has been imposed.
10. Per contra, Mr.R.Viduthalai, learned counsel for the respondent
contends that the punishment imposed against the petitioner being minor, it is
not necessary either to communicate a copy of the enquiry officer’s report nor
it is necessary to issue a show cause notice before dissenting with the
findings reported by the enquiry officer or expert committee and therefore
there is no violation of principles of natural justice. Mr.R.Viduthalai,
learned counsel further contended that for the imposition of minor punishment
there is no necessity at all to issue a notice even after holding an enquiry.
The learned counsel further contended that the writ petitioner has reached the
age of superanuation and has received all the benefits including gratuity and
other terminal benefits and therefore no purpose will be served in affording
an opportunity at this juncture and persuaded this court to adopt the
principle of useless theory as has been laid down by the Supreme Court and
relied upon the pronouncement of the Apex Court in this respect.
11. According to the learned counsel for the respondents, at this
point of time if the order impugned is to be interfered the same will serve no
purpose as the petitioner is no longer in service, he was permitted to retire,
he has received all the benefits and the matter should not be reopened nor
could be proceeded by the respondent any longer. Mr.Viduthalai, leaned
counsel also contended that no prejudice has been caused to the petitioner by
non furnishing the enquiry officer’s report or by not issue of show cause
notice as he has received all the benefits, excepting the monetary value of
two increments and while he has received the maximum gratuity and other
benefits for the service so far rendered by him. However, Mr.Balan Haridas,
learned counsel for the petitioner contended that the imposition of punishment
to the petitioner who was a member of the Executive Cadre has caused a stigma
and reflected in his career and as a result of which he had lost valuable
opportunities or further avenues and denial in this case has resulted
substantial loss to the petitioner as it reflects on the efficiency or
supervisory capacity or managerial capacity of the petitioner who was in
charge of the factory. However, it is pointed out that when the Expert
Committee as well as the enquiry officer have already reported that the cause
for the fire could not be found and the petitioner has been exonerated of the
charges, it is rather extraordinary on the part of the first respondent to
have imposed the punishment of stoppage of increment by two years with
cumulative effect without affording an opportunity before dissenting with the
enquiry officer’s report which report, is clearly in favour of the petitioner.
12. It is also alleged that there is violation of principles of
natural justice and it has resulted in serious prejudice and hardship, besides
loss to the petitioner. It is also contended that principles of natural
justice has not been excluded to the present case. While Mr.R.Viduthalai,
learned counsel for the respondents contended that the principles of natural
justice is excluded by the service rules.
13. On the above facts, the following points arise for
consideration:-
(a) Whether the failure to issue a show cause notice before
dissenting with the enquiry officer’s report and finding the petitioner guilty
of one or more charges is illegal, arbitrary and violative of Art.14?
(b) Whether the failure to issue a show cause notice by the first
respondent and follow the principles of natural justice has resulted in
hardship or prejudice or substantial loss to the writ petitioner?
(c.) Whether the principles of natural justice is excluded by the
service rules framed by the respondent corporation?
(d) Whether the principle namely, useless theory of natural
justice is required to be adopted at all in the present case?
(e) To what relief, the petitioner is entitled to even after
superannuation?
14. The facts extracted above are not in controversy. The expert
committee went in to the matter. So also enquiry officer appointed in the
disciplinary proceedings. As seen from the said reports the petitioner has
been practically exonerated from the four charges. Yet, the first respondent
has not issued a show cause notice while dissenting with the findings and
finding that the petitioner is guilty of some of the imputations and imposed
the punishment of stoppage of increment with cumulative increments for two
years. Mr.R.Viduthalai, learned counsel contended that being a minor
punishment, it is not necessary to call upon the petitioner to state his
objections or explanation as the case may be. It is true that a disciplinary
proceedings could be initiated either for imposing a minor punishment or for a
major penalty, but when once the respondent proceeded to impose a major
penalty an enquiry officer has been appointed, a full-fledged enquiry has been
conducted, the enquiry report has been submitted and on the basis of the
report either the disciplinary authority could either accept the findings or
dissent from the findings, for reasons to be recorded by him. When once the
disciplinary authority accepts the findings, then there is no requirement at
all to issue a show cause as the proceedings may stand concluded in favour of
the charged officer. Per contra, if the disciplinary authority dissents with
some of the findings reported, yet, before imposing punishment, the;
disciplinary authority should afford an opportunity. The point at which the
disciplinary authority makes up his mind to impose the punishment matters and
equally it is open tot he disciplinary authority to impose either a major
punishment or minor punishment even in a case where proceedings were initiated
for a major punishment. It is being contended by Mr.Balan Haridas that the
proceedings are illegal, violative of principles of natural justice while
Mr.R.Viduthalai, contends that being a minor punishment and there is no
violation of principles of natural justice, nor the service rules contemplates
issue of notice.
15. The contentions advanced by Mr.R.Viduthalai in this respect
cannot be sustained. If principles of natural justice or the law as laid down
by the Supreme Court in ECIL Vs. B.Karunakar (1993(4) SCC 721) and other
earlier pronouncements are not followed, it follows automatically that there
is violation of Art.14 as well as service regulations. It is also rightly
pointed that service regulations do not exclude the operation of principles of
natural justice, nor it specifically provides that it is not necessary to
issue a show cause notice or communicate the findings of the delinquent before
ever imposing the penalty and that too in a case where proceedings were
initiated for imposing a major penalty.
16. Chapter 5 of the Service Rules provides for conduct of discipline
and appeal. The scope of the Rules are set out in Rule 5(1). Misconduct is
defined in Rule 5(2). Rule 5(3) provides for penalties. Rules
5(3)(a)(b)(c)(d) provides for imposition of warning, censure, stoppage of
increment with or without cumulative effect and imposition of fine
respectively.
17. The above are classified as minor penalties, while recovery from
pay, reduction to a lower rank, suspension, removal from service or dismissal
from service are classified as major penalties. Rule 5.3 .2 provides for the
imposition of major punishments which provides for framing of charges, being
served together with a statement of allegations, appointment of enquiry
officer, calling upon the delinquent to state his objection or explanation,
appointment of enquiry officer, recording the evidence oral and documentary,
examination and cross examination of witnesses, the conduct of proceedings by
the enquiry officer and the records to be maintained thereon, which includes
the findings as to the charges and grounds thereron. On the basis of such
report or proceedings the concerned disciplinary authority has to pass orders.
Rule 5.5 and 5.7 provide for the right of appeal. Rule 5.12 provides for
consideration of appeal.
18. In view of the provisions contained in Chapter 5, it is well open
to the disciplinary authority either to agree with the findings reported by
the enquiry officer or disagree with those findings if the disciplinary
authority disagree with the findings reported by the enquiry officer, however
it has to record reasons for dissent. Where the enquiry officer finds the
delinquent guilty and the disciplinary authority agrees with the said finding,
no difficulty would arise. However, if the disciplinary authority disagrees
with the report of “not guilty” and records a dissenting finding that the
charges are not established, then again it would not give rise to any
difficulty. But, when the enquiry officer recorded a positive finding
reporting that charges are not established, but the disciplinary authority
disagree with those findings and record his own findings holding that the
charges are established and the delinquent is liable to be punished, this
warrants affording an opportunity of hearing to the delinquent at that stage.
However, where the rules are silent and the disciplinary authority also does
not given an opportunity of hearing to the delinquent and records a finding
different from that of the enquiry officer that the charges were established,
definitely an opportunity of hearing or raising objection is required, less it
would be violative of the principles of natural justice. If a delinquent is
found not guilty by the enquiry officer, and when the disciplinary authority
dissents and find the delinquent guilty without affording an opportunity of
hearing on the basis of same material on which the enquiry officer has
reported not guilty, then the requirement is an opportunity should be
afforded. This is the requirement of the principles of natural justice.
19. A Three Judges Bench of the Supreme Court on a reference made to
resolve apparent difference in view, had occasion to consider the identical
point and held in Punjab National Bank Vs. Kunj Behari Misra, reported in
1998 (7) SCC 84 and held thus:-
“16…….The Court explained that the disciplinary proceedings break into two
stages. The first stage ends when the disciplinary authority arrives at its
conclusions on the basis of the evidence, the enquiry officer’s report and the
delinquent employee’s reply to it. The second stage begins when the
disciplinary authority decides to impose penalty on the basis of its
conclusions. It is the second right which was taken away by the 42nd
Amendment but the right of the charged officer to receive the report of the
enquiry officer was an essential part of the first stage itself. This was
expressed by the Court in the following words: (SCC p. 754, para 26)
“26. The reason why the right to receive the report of the enquiry officer is
considered an essential part of the reasonable opportunity at the first stage
and also a principle of natural justice is that the findings recorded by the
enquiry officer form an important material before the disciplinary authority
which along with the evidence is taken into consideration by it to come to its
conclusions. It is difficult to say in advance, to what extent the said
findings including the punishment, if any, recommended in the report would
influence the disciplinary authority while drawing its conclusions. The
findings further might have been recorded without considering the relevant
evidence on record, or by misconstruing it or unsupported by it. If such a
finding is to be one of the documents to be considered by the disciplinary
authority, the principles of natural justice require that the employee should
have a fair opportunity to meet, explain and controvert it before he is
condemned. It is negation of the tenets of justice and a denial of fair
opportunity to the employee to consider the findings recorded by a third party
like the enquiry officer without giving the employee an opportunity to reply
to it. Although it is true that the disciplinary authority is supposed to
arrive at its own findings on the basis of the evidence recorded in the
enquiry, it is also equally true that the disciplinary authority takes into
consideration the findings recorded by the enquiry officer along with the
evidence on record. In the circumstances, the findings of the enquiry officer
do constitute an important material before the disciplinary authority which is
likely to influence its conclusions. If the enquiry officer were only to
record the evidence and forward the same to the disciplinary authority, that
would not constitute an additional material before the disciplinary authority
of which the delinquent employee has no knowledge. However, when the enquiry
officer goes further and records his findings, as stated above, which may or
may not be based on the evidence on record or are contrary to the same or in
ignorance of it, such findings are an additional material unknown to the
employee but are taken into consideration by the disciplinary authority while
arriving at its conclusions. Both the dictates of the reasonable opportunity
as well as the principles of natural justice, therefore, require that before
the disciplinary authority comes to its own conclusions, the delinquent
employee should have an opportunity to reply to the enquiry officer’s
findings. The disciplinary authority is then required to consider the
evidence, the report of the enquiry officer and the representation of the
employee against it.”
17.These observations are clearly in tune with the observations in Bimal Kumar
Pandit case quoted earlier and would be applicable at the first stage itself.
The aforesaid passages clearly bring out the necessity of the authority which
is to finally record an adverse finding to give a hearing to the delinquent
officer. If the enquiry officer had given an adverse finding, as per
Karunakar case the first stage required an opportunity to be given to the
employee to represent to the disciplinary authority, even when an earlier
opportunity had been granted to them by the enquiry officer. It will not
stand to reason that when the finding in favour of the delinquent officers is
proposed to be overturned by the disciplinary authority then no opportunity
should be granted. The first stage of the enquiry is not completed till the
disciplinary authority has recorded its findings. The principles of natural
justice would demand that the authority which proposes to decide against the
delinquent officer must give him a hearing. When the enquiring officer holds
the charges to be proved, then that report has to be given to the delinquent
officer who can make a representation before the disciplinary authority takes
further action which may be prejudicial to the delinquent officer. When, like
in the present case, the enquiry report is in favour of the delinquent officer
but the disciplinary authority proposes to differ with such conclusions, then
that authority which is deciding against the delinquent officer must give him
an opportunity of being heard for otherwise he would be condemned unheard. In
departmental proceedings, what is of ultimate importance is the finding of the
disciplinary authority.
18. :: :: :: :: :: :: ::
19…..The report of the enquiry officer containing its findings will have to
be conveyed and the delinquent officer will have an opportunity to persuade
the disciplinary authority to accept the favourable conclusion of the enquiry
officer. The principles of natural justice, as we have already observed,
require the authority which has to take a final decision and can impose a
penalty, to give an opportunity to the officer charged of misconduct to file a
re presentation before the disciplinary authority records its findings on the
charges framed against the officer.” (Emphasis supplied)
This pronouncement squarely applies to the facts of this case and there is no
escape for the respondents.
20. In Yoginath D.Bagde Vs. State of Maharashtra, reported in 1999
(7) SCC 739, the Apex Court held thus:-
“30. Recently, a three-Judge Bench of this Court in Punjab National
Bank v. Kunj Behari Misra relying upon the earlier decisions of this Court in
State of Assam v. Bimal Kumar Pandit, Institute of Chartered Accountants of
India v. L.K. Ratna as also the Constitution Bench decision in Managing
Director, ECIL v. B. Karunakar and the decision in Ram Kishan v. Union of
India has held that: (SCC p. 96, para 17)
“It will not stand to reason that when the finding in favour of the delinquent
officers is proposed to be overturned by the disciplinary authority then no
opportunity should be granted. The first stage of the enquiry is not
completed till the disciplinary authority has recorded its findings. The
principles of natural justice would demand that the authority which proposes
to decide against the delinquent officer must give him a hearing. When the
enquiring officer holds the charges to be proved, then that report has to be
given to the delinquent officer who can make a representation before the
disciplinary authority takes further action which may be prejudicial to the
delinquent officer. When, like in the present case, the enquiry report is in
favour of the delinquent officer but the disciplinary authority proposes to
differ with such conclusions, then that authority which is deciding against
the delinquent officer must give him an opportunity of being heard for
otherwise he would be condemned unheard. In departmental proceedings, what is
of ultimate importance is the finding of the disciplinary authority.”
The Court further observed as under: (SCC p. 96, para 18)
“When the enquiry is conducted by the enquiry officer, his report is not final
or conclusive and the disciplinary proceedings do not stand concluded. The
disciplinary proceedings stand concluded with the decision of the disciplinary
authority. It is the disciplinary authority which can impose the penalty and
not the enquiry officer. Where the disciplinary authority itself holds an
enquiry, an opportunity of hearing has to be granted by him. When the
disciplinary authority differs with the view of the enquiry officer and
proposes to come to a different conclusion, there is no reason as to why an
opportunity of hearing should not be granted. It will be most unfair and
iniquitous that where the charged officers succeed before the enquiry officer,
they are deprived of representing to the disciplinary authority before that
authority differs with the enquiry officer’s report and, while recording a
finding of guilt, imposes punishment on the officer. In our opinion, in any
such situation, the charged officer must have an opportunity to represent
before the disciplinary authority before final findings on the charges are
recorded and punishment imposed.”
The Court further held that the contrary view expressed by this Court in State
Bank of India v. S.S. Koshal and State of Rajasthan v. M.C. Saxena was not
correct.
31. In view of the above, a delinquent employee has the right of hearing not
only during the enquiry proceedings conducted by the enquiry officer into the
charges levelled against him but also at the stage at which those findings are
considered by the disciplinary authority and the latter, namely, the
disciplinary authority forms a tentative opinion that it does not agree with
the findings recorded by the enquiry officer. If the findings recorded by the
enquiry officer are in favour of the delinquent and it has been held that the
charges are not proved, it is all the more necessary to give an opportunity of
hearing to the delinquent employee before reversing those findings. The
formation of opinion should be tentative and not final. It is at this stage
that the delinquent employee should be given an opportunity of hearing after
he is informed of the reasons on the basis of which the disciplinary authority
has proposed to disagree with the findings of the enquiry officer…..”
21. While respectfully following the above pronouncements this court
holds that when the disciplinary authority has reported that the petitioner is
not guilty of the imputations and it had taken a decision without affording an
opportunity of hearing or state objections to the petitioner, at the stage at
which it propose to differ with the findings of the enquiry officer, the
proceedings stand vitiated.
22. In the present case the petitioner is being accused of his
failure to discharge the responsibility or negligence/neglect of duty. But
the enquiry officer has in effect exonerated the petitioner. Thereafter
without affording an opportunity, the disciplinary authority dissented from
the findings reported and found the petitioner guilty as against the
petitioner and concluded thus:-
“After taking into consideration, the facts and perusal of the
connected documents, Enqiry Report/findings, including the explanation offered
by Th.M.Venkitachalam, Manager (Tech-Mech) and on the basis of the
circumstantial evidences both Th.M.Venkitachalam, Manager (Tech-Mech) and
Th.M.Antonysam, Dy.Manager (Process Control-Kiln) (i/c) who are the Head of
Department and Section Head are vicariously liable for the fire accident
caused due to their negligence and neglect of work. Hence, as per Rule 5.3(c)
of the Service Rules of Tancem, I give an order that the annual increment of
Th.M.Venkitachalam, Manager ( Tech-Mech) is stopped for a period of two years
with cumulative effect. He is also severely warned to guard himself against
such lapses in future and this will be recorded in his personal file.”
23. It is seen from the above passage, the the petitioner had been
held vicariously liable for the fire accident caused due to alleged negligence
and neglect of work by unknown or undetedcted. But the charges of negligence
and neglect of duty (charge No.2), the petitioner had been exonerated as seen
from the enquiry report. The question of vicarious liability is not the
charge for which the petitioner was proceeded. Nor such a charge has been
framed. It is also clear from the conclusion of the disciplinary authority
that the petitioner has been held vicariously liable which is not the charge
at all as it is different from negligence or neglect of duty or failure to
supervise. Vicarious liability was not the subject matter of charge or
imputation. Nor it could be the subject matter. That apart, the petitioner
has been found guilty of misconduct falling under Rule 5.3(c) of the Service
Rules. The definition what is “misconduct”, “negligence or neglect of work”
fall under the category of misconduct as defined in Rule 5.2(k). The entirety
of Rule 5.3 do not take in vicarious liability as misconduct and it is not one
of the misconduct which is enumerated. What has been charged is negligence or
neglect of work which has resulted in the accident of fire. But as seen from
the above passage as against the petitioner who was the Manager, there is no
finding of negligence or neglect of work. Therefore the very conclusion is
based on surmises and not on any materials. Even on ground of vicarious
liability also there cannot be any action under the Service Rules. The
petitioner has been found guilty of alleged lapse or vicarious liability for
which no charge has been framed. That being so, the very conclusion that the
petitioner is guilty of charges and therefore he is imposed with the penalty
of stoppage of increment also cannot be sustained as it demonstrates non
application of mind besides arbitrary exercise of power.
24. The petitioner being found guilty of even a portion of the
charges or imputations, as held by the Apex Court, the petitioner should have
been afforded an opportunity. That apart, when the Domestic Enquiry Officer
exonerated the petitioner, before dissenting, an opportunity should have been
afforded to the petitioner. Thus there is a failure to follow the principles
of natural justice. The said failure has resulted in serious prejudice,
hardship and substantial loss to the petitioner.
25. The principles of natural justice as has been held by the catena
of decisions of the Apex Court are not excluded by the service rules governing
the service. Though the stoppage of increment with or without cumulative
effect is a minor punishment, in the present case, the proceedings were
initiated for imposing major penalty in terms of Rule 5.3.2. It may be that
ultimately, the disciplinary authority has imposed a minor punishment, but
till the stage of imposition or till the disciplinary authority makes up his
mind to impose any one of the penalty either minor or major under Rule 5.3,
the proceedings has to be in terms of Rule 5.3.2 namely for major penalty for
all purposes. For any reason if the disciplinary authority decides to convert
the proceedings from 5.3.2 to 5.3.1, at least, a notice should have been given
to the delinquent indicating that the disciplinary authority has converted the
proceedings. In fact, even in respect of minor penalty, in terms of Rule 5.3,
what is contemplated is “found guilty of any misconduct on the basis of the
records available or enquiry”. Even in respect minor penalty also
applicability of principles of natural justice has not been excluded. An
elaborate procedure is prescribed in Rule 5.3 for imposition of major
penalties. But in respect of minor penalties no procedure has been
prescribed. That does not mean rules exclude principles of natural justice or
when delinquent demands an enquiry, the same could be denied as Rule 5.3
contemplates an enquiry even in respect of proceedings initiated for
imposition of minor penalty. Therefore Rule 5.3 has been violated
26. According to Mr.R.Viduthalai, learned counsel for the respondent,
no prejudice has been caused to the petitioner as ultimately penalty of
stoppage of increment which is a minor penalty for one year has been imposed.
According to Mr.R.Viduthalai, for imposition of minor penalty, a show cause
notice calling upon the delinquent to state his objections alone is sufficient
and nothing prevents the delinquent officer even if he is proceeded for
imposition of minor penalty to seek for an enquiry, in case if he denies the
imputation or the gravity of the misconduct warrants an enquiry. Normally,
every service rules provides for setting out the imputations, opportunity of
being heard to state objections and thereafter to pass orders when the
proposal is to impose minor penalty. In this case the proposal was not for
imposition of minor penalty, but, it is for major penalty. That apart, the
final conclusion is not in respect of what has been the subject matter of
enquiry, namely the charge or imputations forming the part of the charges, but
the petitioner has been found guilty of being vicariously liable. Therefore
assuming for purpose of argument that the ultimate order is for imposition of
minor punishment and therefore no violation of principle natural justice could
be complained of, in the considered view of this court the same cannot be
sustained as the petitioner has been found guilty of vicarious liability for
which no notice has been issued, nor he was put on notice. Here again, the
principles of natural justice has been violated. So also Rule 5.3.
27. The learned counsel for the petitioner contended that principles
of natural justice has no application as already the petitioner had been
permitted to retire, he has received all the terminal benefits which are
maximum and therefore even assuming natural justice has been violated is of
little consequence. This again cannot be countenanced. The petitioner was
the General Manager of the Unit at Aalangulam. To hold that he is vicariously
liable also is not an ordinary accusation, but it amounts to finding the
petitioner guilty, being negligent for the alleged accident and therefore it
follows that a serious prejudice is caused to the petitioner by not following
the principles of natural justice. The contention of Mr.R.Viduthalai that the
non furnishing of enquiry report would not be fatal as there is no prejudice
and that every infraction of statutory provision or rules or regulation does
not render such decision fatal. The learned counsel relied upon the
pronouncement of STATE OF U.P. V. HARENDRA ARORA reported in 2001(3) CTC 176
(S.C). The fact of this case is clearly distinguishable to the said
pronouncement. In the said pronouncement the Supreme Court after referring to
the seven questions enunciated earlier in 1988 (3) SCC 600 held thus:-
“If after hearing the parties, the Court/Tribunal comes to the
conclusion that the non-supply of the report would have made no difference to
the ultimate findings and the punishment given, the Court/ Tribunal should not
interfere with the order of punishment. The Court/ Tribunal should not
mechanically set aside the order of punishment on the ground that the report
was not furnished as is regrettably being done present. The Courts should
avoid resorting to short cuts. Since it is the Courts/Tribunals which will
apply their judicial mind to the question and give their reasons for setting
aside or not setting aside or not setting aside the order of punishment (and
not any internal appellate or revisional authority), there would be neither
breach of the principles of natural justice nor a denial of the reasonable
opportunity. It is only if the Court/Tribunal finds that the furnishing of
the report would have made a difference to the result in the case that it
should set aside the order of punishment.”
28. On the facts of this case, this court holds that non supply of
report has prejudiced the petitioner and the petitioner being found guilty of
imputation, which is different from those charges for which proceedings were
initiated. It is not as if mere punishment alone that would save the
respondent from furnishing copy of the report or issuing a notice before
dissenting from the findings reported or imposing a punishment in respect of
imputations for which the delinquent was not proceeded at all. Therefore the
contention of Mr.R. Viduthalai that the principles of natural justice need
not been followed cannot be countenanced.
29. The appellate authority also merely confirmed the order of
punishment and it has failed to advert to or consider the contentions urged by
the petitioner in the appeal petition. Though at the hearing one of the
contentions advanced being that the very same Chairman cum Managing Director
has taken part in the Board Proceedings while deciding the appeal as part of
the Board of Directors, as such a contention has not been raised in the
affidavit, this court will not be justified in examining this matter. Further
in the light of the above discussions disposal of the appeal by the appellate
authority is also not in accordance with Rule 5.12 as the appellate authority
has not considered neither Rule 5.12 (a) or (b). This vitiates both the
proceedings.
30. In the foregoing circumstances and in the light of the above
discussions, all the points (a) to (e) are answered in favour of the
petitioner. In the result, the writ petition is allowed. The impugned
proceedings of the respondents 1 and 2 are quashed. The parties shall bear
their respective costs.
Index:yes
Internet:Yes
gkv
To
1. Tamil Nadu Cements Corporation
rep. by its Chairman and Managing Director
LLA Building, 735, Anna Salai
Chennai-2
2. Tamil Nadu Cements Corporation
rep. by its Board of Directors
LLA Building, 735, Anna Salai
Chennai-2