ORDER
Shivaraj Patil, J.
1. In this writ petition, the petitioner has sought for a writ of certiorarified mandamus, under Article 226 of the Constitution of India, calling for the records of the State Industries Promotion Corporation of Tamil Nadu Limited (for short, ‘SIPCOT), the first respondent herein in proceedings No. E-1/Misc/8/87, dated 20,12.1990, quash the same and direct the respondent to reinstate the petitioner in service as Assistant Manager in SIPCOT, or any other equivalent post with all the attendant benefits.
2. The case of the petitioner has pleaded in the affidavit filed in support of the writ petition is that he is seeking to challenge the legality of the impugned order of compulsory retirement passed by the Board of Directors of the SIPCOT, on the ground that the said order is illegal, arbitrary and contrary to the Article s of Association and law.
3. The petitioner was appointed originally as Tracer in the construction branch of Industries and Commerce Department in the Directorate of Industries and Commerce. He went on foreign service terms to the SIPCOT as a Draftsman Grade I. Later he exercised his option to remain in SIPCOT permanently accepting the revised terminal benefits as per G.O.Ms. No. 284, Finance, dated 31.3.1980. As per the said G.O., a proposal to absorb persons in the Corporation or Board had to be placed before the concerned Board of Management. The proposal to absorb the petitioner was placed before the Board for absorption. The Board decided to absorb him. Thus the petitioner was appointed to the services of the SIPCOT by its Board of Management. In short, the appointing authority of the petitioner to the services of the SIPCOT was the Board of Directors.
4. In the Letter No. R.C. 1740/E1/Q/87, dated 12.5.1981 the Director of Industriesand Commerce informed the Managing Director of the SIPCOT that he had accorded his concurrence for permanent absorption of the petitioner as Draftsman Grade I in SIPCOT with effect from 24.5.1976. This letter also made clear that it is the Board Of Directors of SIPCOT which absorbed him permanently in SIPCOT. The Post of Draftsman Grade I was subsequently redesignated as Deputy Officer. The petitioner who was a Deputy Officer was upgraded as Developmental Officer, Consequent upon the decision of the Board dated 28.9.1983 to abolish the post of Deputy Officers. Further the post of Development Officer was redesignated as Assistant Manager (Development). The Assistant Managers were posted as Project Officers when posted in Projects; They were called Assistant Managers while working in the office.
5. When the petitioner was under the orders of transfer from the Project Office, Manamadurai, as Assistant Manager, Hosur, he was served with the order of suspension on 11.3.1987 on the ground that an enquiry into grave charges was contemplated. The said order was signed by the Chairman and Managing Director (for short, C.M.D), SIPCOT. On 8.5.1987 a charge memo was served on the petitioner which was signed by the Managing Director in charge.
6. Subsequently an enquiry was held by Mr.M. Pandy, Deputy General Manager, appointed by the Managing Director. He submitted an undated report of enquiry. In the proceedings of the Chief Engineer, SIPCOT dated 11.5.1990 it is stated that the enquiry officer submitted his report on 27.1.1988. On 29.10.1987 the petitioner submitted an explanation. On 8.12.1988 the petitioner addressed a letter to the C.M.D., SIPCOT to furnish a copy of the report of the Enquiry Officer, but it was not furnished before final orders were passed by the Chief Engineer-the third respondent on 11.5.1990.
7. The Chief Engineer, differed from the finding of the Enquiry Officer in respect of charges 2 and 3. The Enquiry Officer had found that charges 2 and 3 were not proved. As far as charge No. l was concerned, the Chief Engineer agreed with the finding of the Enquiry Officer that it was proved. On 11.5.1990 the Chief Engineer passed orders that the petitioner be removed from service with effect from that date. In that order it was also indicated that an appeal against that order would lie to the Chairman and Managing Director of SIPCOT within 30 days from the date of that order. A copy of the Enquiry Officer’s report also was enclosed with the said order served on the petitioner.
8. The petitioner preferred an appeal to the C.M.D., SIPCOT on 20.5.1990. One of the main contentions raised by the petitioner in the appeal was that the Chief Engineer – third respondent herein was not legally competent to pass’the order of removal of the petitioner from service and therefore it was invalid. Further the view of the Chief Engineer differing from the view of the Enquiry Officer in respect of the charges 2 and 3 was unsustainable and wrong.
9. On 1.11.1990 the petitioner received a letter from the C.M.D. stating that the charge memo dated 8.5.1987 was issued by the Managing Director and as per the service rules the appeal against the order of the Chief Engineer lies to the Managing Director. Since the charge memo had been issued by the Managing Director it was felt that the Managing Director should not pass order on the petition and that the matter had to be placed before the Board of Directors. The petitioner was also asked to put forth any other point apart from the point covered in the appeal dated 20.5.1990.
10. The petitioner submitted additional grounds on 16.11.1990 contending that he had preferred appeal to the C.M.D. as per the directions of the Chief Engineer, SIPCOT and submitted that the order passed by the Chief Engineer was not legally valid and therefore it was to be set aside and that he had to be reinstated in service with all consequently benefits. On 20.12.1990 the petitioner received the impugned order.
11. Under the circumstances, the petitioner has filed this writ petition challenging the said order dated 20.12.1990 compulsorily retiring him from service on the grounds that,
(i) The order of removal passed by the Chief Engineer was invalid having regard to the absorption of the petitioner permanently in the service of the SIPCOT by the Board of Directors;
(ii) It is well settled in law that the power to remove an officer should be exercised by an authority not lower in rank than that of the appointing authority under Article 311(2) of the Constitution of India. Although the petitioner was an employee of the State Owned Corporation, yet the general principle underlying the said Article will be applicable to him;
(iii) The impugned order dated 20.12.1990 is a non-speaking order besides being arbitrary, and vio~ lative of Arts.14 and 16 of the Constitution,
(iv) The impugned order is also ultra vires of the powers of the Chief Engineer in terms of the service rules of the SIPCOT having regard to the relevant rules relating to the appointment of Assistant Manager on the date of appointment of the petitioner;
(v). Even as per the amended rules, the Chief Engineer was not the appointing or punishing authority and further the amendments were not given retrospective effect. Even in terms of Rule 6.16 the authority competent to remove the petitioner from service is only the Managing Director and not the Chief Engineer;
(vi) Due to non-furnishing of the report of the Enquiry Officer, before the final orders were passed, serious prejudice is caused to the petitioner in making representation and thus there has been violation of the principles of natural justice; and
(vii) The finding recorded by the Enquiry Officer on charge No. l was not correct, and the Chief Engineer while disagreeing with the findings on charge Nos.2 and 3 of the Enquiry Officer did not give fair and proper opportunity to the petitioner. Further the findings of the Chief Engineer were based on factual misconception and also contrary to the practice adopted in the Department. The authorities have failed to see that there was no loss caused to the Corporation. Thus on these facts and grounds pleaded by the petitioner, he has sought for the relief as stated above.
12. The respondents have filed counter-affidavit opposing the claim of the petitioner and have sought for dismissal of the writ petition.
13. According to the respondents, the petitioner was a Government servant. On the basis of the option given by him he was absorbed in the services of the SIPCOT. It is incorrect to state that the petitioner was appointed in the service of SIPCOT by the Board of management of SIPCOT. The petitioner has wrongly assumed that his appointing authority was the Board of Directors of SIPCOT. After the Directorate of Industries and Commerce accorded its concurrence for the permanent absorption of the petitioner in SIPCOT, orders were issued on 19.8.1981 for his permanent absorption with effect from 24.5,1976.
14. The petitioner was placed under suspension with effect from 11.3.1987. Charges were framed on 8.5.1987 and the petitioner gave reply to the charges on 27.5.1987. As the reply was not convincing departmental enquiry was ordered on 10.6.1987. Since the petitioner opted for oral enquiry Shri Pandy, Deputy General Manager-cum -Secretary of SIPCOT was appointed as the Enquiry Officer. The petitioner was given ample opportunities to produce witnesses and to cross examine the witnesses. The Enquiry Officer gave his report on 27.1.1988 after holding a detailed and due enquiry.
15. The Enquiry Officer found the petitioner guilty relating to the charge of incurring loss to the Corporation. He found him not guilty of charges 2 and 3. The Chief Engineer was the Officer duly empowered to punish the officers up to the level of Assistant Executive Engineers. The Chief Engineer found the petitioner guilty of all the charges and passed the order dated 11.5.1990 removing the petitioner from services with effect from the said date. The appeal filed by the petitioner was considered by the Board and the Board after detailed discussion found that the charges had been proved and that the punishment imposed on the petitioner was commensurate with the seriousness of charges. However the Board took a lenient view of the matter and modified the punishment of removal from service to one of compulsory retirement.
16. The respondents state that the order passed by the Chief Engineer removing the petitioner from service was quite in order as the powers were delegated to him with regard to the appointment and punishment up to the level, of Assistant Executive Engineer. The petitioner was given fair and reasonable opportunity and after holding proper enquiry the decision was taken.
17. Shri S.Vadivelu, learned Counsel for the petitioner contended that,
(i) Although the petitioner was originally appointed as a Tracer in the construction branch of the Industries and-Commerce Department of the Government, later he exercised his option to remain in SIPCOT permanently in the light of G.O.Ms. No. 284, Finance, dated 31.3.1980. As per the said Government Order the proposal to absorb persons in the Corporation or Board had to be placed before the concerned Board of Management. Accordingly the proposal to absorb the petitioner in the SIPCOT was placed before the Board. The Board of the SIPCOT decided to absorb the petitioner. This fact is supported by letter No. R.C. 1740/El/Q/87, dated 12.5.1981 ofthe Director of Industries and Commerce informing the Managing Director of the SIPCOT that he had accorded his concurrence for permanent absorption ofthe petitioner in SIPCOT thah effect from 24.5.1976. In the said letter it is stated that the petitioner had exercised his option to remain in the SIPCOT permanently in terms of G.O.Ms.No. 284 aforementioned which was accepted by the Board, of Management of the SIPCOT. Thus the SIPCOT had decided to absorb the petitioner permanently. Hence, the appointing authority of the petitioner was the Board of Management of the SIPCOT. Consequently the impugned order dated 11.5.1990 passed by the Chief Engineer was one clearly passed without jurisdiction and authority in law. For the same reason the impugned order dated 20.12.1990 passed by the appellate authority is also unsustainable,
(ii) Inspite ofthe request of the petitioner by his letter dated 8.12.1988 addressed to the C.M.D., SIPCOT to furnish a copy of the report of the Enquiry Officer, copy of the same was not furnished before the final order was passed by the Chief Engineer the third respondent herein on 11.5.1990. Nonfurnishing of copy of the report of enquiry officer seriously prejudiced the case of the petitioner and as such the impugned orders dated 11.5.1990 and 20.12.1990 cannot be supported and justified in law.
(iii) When the third respondent (Chief Engineer, SIPCOT) differed from the findings ofthe enquiry officer in respect of charges 2 and 3 and took a contrary view that charges 2 and 3 were also proved, it was necessary to give an opportunity to the petitioner in that regard to put forth his defence but the third respondent passed the impugned order dated 11.5.1990 removing the petitioner from service and enclosed a copy of the report of the enquiry officer to the said order of removal. This approach of third respondent adversely affected the interest of the petitioner, and it was clear case of violation of the principles of natural justice.
(iv) The impugned order passed by the appellate authority is a non-speaking order and it does not show application of mind ofthe appellate authority to the contentions raised by the petitioner. Hence, the impugned order is bad in law.
(v) Even on the materials placed on record, the findings that the charges were proved against the petitioner cannot be sustained; no loss was caused to the Corporation. Even otherwise the impugned order of compulsory retirement passed against the petitioner is a punishment disproportionate to the charges said to have been proved.
18. Shri A.L. Somayaji, learned senior counsel on behalf of the respondents urged that,
(i) Assuming that the appointing authority ofthe petitioner was the Board of Management of SIPCOT, in view of the absorption of the petitioner permanently, the Chief Engineer was competent to pass the order of removal of the petitioner from services having regard to the delegation of powers as to the appointment and punishment up to the level of Assistant Executive Engineer;
(ii) The impugned order of removal of the petitioner from service was passed by the third respondent on 11.5.1990. Non-furnishing of the report of the Enquiry Officer relating to cases where orders imposing punishments were passed before 20.11.1990, were not vitiated in view of the decision of the Supreme Court in Union of India v. Mohd. Ramzan Khan (1991) 1 S.L.R. 159.
(iii) The petitioner was given a second show cause notice by the third respondent. He has given detailed reply. After consideration of the material on record and the reply given by the petitioner, the impugned order of removal for service was passed on 11.5.1990. Hence the case of the petitioner was not prejudiced and holding further enquiry was not required by the Disciplinary authority, i.e., the respondent No. 3 when he disagreed with some of the findings of the Enquiry Officer, in view of the decision in the case of State Bank of India Bhopal v. S.S. Koshal (1994) 2 S.C.C. (Supp.)468.
(iv) The impugned order passed by the appellate authority indicates that the Board did consider the appeal petitions dated 20.5.1990 and ! 6.11.1990 filed by the petitioner, challenging the order dated 11.5.1990 of the third respondent having regard to all records and connected documents; after discussion the Board took the view that the charges have been held proved rightly on the merits of the case, and that the punishment awarded was commensurate with the seriousness of charges held proved against the petitioner; the Board also observed that the findings of the Chief Engineer were not biased; however, taking into account the length of service of the petitioner, it took a lenient view and modified the punishment of “removal from service” to “compulsory retirement.” The order of the appellate authority was a confirmatory order. As such it cannot be said that the appellate impugned order was a non-speaking order.
(v) Lastly it was contended that looking to the gravity of charges found establish against the petitioner, the punishment imposed by the third respondent was not excessive. Even otherwise the appellate authority has taken a lenient view and modified the punishment to compulsory retirement. Thus, it cannot be said that the punishment awarded to the petitioner was either excessive or disproportionate to the seriousness of the charges proved against him.
19. I have considered the submissions of the learned Counsel for the parties.
20. In the light of the G.O.Ms. No. 284, Finance, dated 11.3.1980 the services of the petitioner were permanently absorbed by the Board of management of SIPCOT. The decision to absorb him permanently in the service of the Corporation was taken by the Board. This fact is also supported by the letter dated 12.5.1981 ofthe Director oflndustries and Commerce aforementioned. In this view I accept the contention of the learned Counsel for the petitioner that the appointing authority ofthe petitioner on the date of we his absorption was the Board of the SIPCOT. In a similar situation a Division Bench of this Court, in the case of M. Swaminathan v. The Chairman and Managing Director Sidco (1988) 25 Writ L.R. 41, has expressed in paragraph 30 of the said Judgment that when the option exercised by the appellant in that case was accepted by the Board of Directors on behalf of the SIDCO and the absorption was also by the SIDCO as such, the Chairman signing the actual order of absorption did not make him the appointing authority, and the Board was the appointing authority.
21. According to the learned Counsel for the petitioner, the order of removal dated 11.5.1990 passed by the Chief Engineer, not being the appointing authority in relation to the petitioner, anj3 that he was subordinate to the Board which was the appointing authority of the petitioner, it is bad in law. He also contended that though the provisions of Article 311 of the Constitution are not in terms applicable to an employee of the State Owned Corporation, yet, the general principle underlying the said Article will be applicable to an employee of the State Owned Corporation. According to him in respect of Government servants whether or not an authority is subordinate in rank has to be determined with reference to the State of affairs existing on the date of appointment. In the case of the petitioner the relevant date is the date of absorption made by the Board. Touching this aspect of the matter both the learned Counsel have placed reliance on few decisions in support of their respective point of view.
22. The petitioner was absorbed into service of the Board on 12.5.1981. Till 7.2.1990 the appointing authority in respect of category II Officers was the Managing Director. Disciplinary proceedings were pending against the petitioner on 7.2.1990. The rule was amended on 7.2.1990 making the Chief Engineer as appointing authority in respect of officers up to the level of Assistant Executive Engineer. In Krishna Kumar v. The Divisional Assistant Electricity Engineer Central Railway, and Ors. . (In Civil Appeal No. 755 of 1978) the facts were : the appellant was appointed as a Lighting Inspector by the Chief Electrical Engineer and was removed from service by the Divisional Assistant Electrical Engineer, Central Railway. It was held, that the appellant had been removed from service by an order passed by the authority subordinate in rank to the Chief Electrical Engineer on the dale of his appointment, and as such the order of removal of the appellant was patently in violation of Article 311(1) of the Constitution. It was also observed that whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. This case does not help the petitioner inasmuch as the appellant in the aforementioned case was protected by Article 311(1) of the Constitution. Admittedly the petitioner cannot claim to come under Article 311(1) of the Constitution. The regulations governing him are different.
The decision in State Bank of India v. S. Vijaya Kumar (1990)4 S.L.R. 753 was cited by the learned Counsel for the petitioner to contend that the amendment dated 7.2.1990 making the Chief Engineer as the appointing authority in respect of officers up to the level of Assistant Executive Engineer has no retrospective effect; ant it did not apply to pending disciplinary proceedings. Charges were framed by the Managing Director against the petitioner; he appointed the enquiry officer, and the enquiry officer sent his report to the Managing Director. All that was prior to 7.2.1990. The Supreme Court in the above case dealing with Regulation 55(2)(a) of the State Bank of India General Regulations, 1955 held that the right guaranteed in the case of Officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointing authority.
In the above case the Apex Court saw the difference between the right guaranteed to the class of servants falling under Article 311(1) of the Constitution of India and the right guaranteed to the employees of the State Bank of India under Regulation 55(2)(a), and has drawn the distinction based on the language used in the two provisions. Under Article 311 (1) he words used are “by which he was appointed.” In Regulation 55(2)(a) these words are not found. Instead it is stated that the employee shall not be dismissed by any authority “lower than the appointing authority.’ A perusal of the rules and regulations indicated that the Chief General Manager had become the appointing authority of the employees in question in that case under Regulation 55(2)(a) with effect from 1.7.1974. Admittedly the orders of dismissal were passed long after this amendment. Therefore the employees of the State Bank couid claim protection under Regulation 55(2)(a) and not under Article 311(1) of the Constitution. It was held, that the order of dismissal passed by the Chief General Manager who had subsequently become the appointing authority, was valid. Paragraph 22 of the said Judgment of the Supreme Court reads:
Now so far as the right which has been conferred on the employees of the State Bank contained in Regulation 55(2)(a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. Thus a comparison of the provisions contained in Article 311(1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 55(2)(a) shows that there is a material difference between the language used in the two provisions. Under Article 311(1)the words used are “by which he was appointed.” In Regulation 55(2)(a) there are no such words “by which heAwas appointed” and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority. Thus the right guaranteed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointing authority. A perusal of the relevant Regulations and Rules mentioned above clearly go to show that the Chief General Manager had become the appointing authority of the employees in question under Regulation 55(2)(a) with effect from 1.7.1974. Admittedly the orders of dismissal have been passed long after these amendments when the Chief General Manager had already become their appointing authority under the Regulations and the Rules. The right that an officer or employee of the State Bank of India cannot be dismissed from service by an authority lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State who holds a Civil Post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protection under Article 311(1) of the Constitution. The employees of the State Bank can only claim such rights which have been conferred under Regulation 55(2)(a) of the General Regulations. The only right concerned under the said provision is that the officers or employees of the State Bank cannot be dismissed by an authority lower than the appointing authority. Which the risk of repetition it may be. staled that on the date when the order of dismissal has been passed, Chief General Manager hail already become the appointing authority and as such the order of dismissal has not been passed by an authority lower than the appointing authority.
Having held so, as extracted in paragraph 22, the Supreme Court, in paragraph 23 added, apart from the view taken as mentioned in paragraph 22, that i’.emulation 55 had been amended for the purpose of Clause (b) of Regulation 55(2), the term appointing minority shall mean and include the authority who has been designated as such in respect of such class or grade of officers or employees to which the officer or employee concerned as the case may be belongs in the time when such order is passed or any proceding leading to such order is passed or any proceeding leading to such order or termination is initialed. The observation made in paragraph 23 is by any of an addition after clearly expressing the view is the point in paragraph 22. Under the circumstances it is not possible to accept the contention of; ic learned Counsel for the petitioner that subsequent amendment made to the rules could not be applied and the Chief Engineer was not competent i pass the order of removal of the petitioner from, service on 11.5.1990.
The learned senior counsel for the respondent further drew my attention to the decision in Satinder Singh Arora v. State Bank of Patiala and Ors. (1992) 2 S.C.C. (Supp.) 224. In that case the Officer as appointed by the Board of Directors; at the time of passing of the removal order the Managing Directior being the appointing authority passed the order in removal; that order was held valid in view of the difference between the expressions “appointing authority’ as the authority competent to remove under he bank regulations” and “authority not subordinate to that by which he was appointed”. In the said iocision it is laid down that while in the case of employees governed by Article 311(1) only the authorities Inch had actually appointed the officer can terminate his service, whereas under the Regulations of the Bank any officer even lower than the one who initially appointed him could be designated as the appointing authority. It was further held that once so designated, he could visit the employee with an order of major punishment. The contention of the learned Counsel for the petitioner that on the date when the impugned order of removal was passed on 1 1.5.1990 in relation to the category of employees to which the petitioner belonged, the Chief Engineer was not the appointing authority, cannot be accepted in view of the amended Rules 3.3 and 6.16.
Prior to the amendment, under Rule 3.3 of the Service Rules of the SIPCOT Limited, the Managing Director was the appointing authority for Categories I and 2 posts, and the Deputy General Manager (P) was the appointing authority for categories 3 and 4 posts. Rule 6.16 specified the Managing Director as the authority competent to impose the punishments in respect of categories 1 and 2 posts, and the Head of the Department or Chief Officer (Personnel) was the authority competent to impose the punishment in relation to officers of categories 3 and 4. On 7.2.1990 amendment to the rules was effected any substitution in Rule 3.3 and 6.16 in relation to appointing authority and the authority empowered to impose the punishment. According to the amended rules, the Chief Engineer was the authority empowered to impose any of the punishment in respect of Officers of categories 2, 3 and 4 up to the level of Assistant Executive Engineer. Thus in relation to the petitioner, the Chief Engineer was the authority empowered to impose the punishment.
In view of the difference in the language of Article 311(1) of the Constitution and the relevant Service Rules of the SIPCOT Limited on the analogy of Regulation 55(2)(a) of the State Bank of India General Regulations, 1955, it is clear that the petitioner is not entitled to claim the same protection as is available under Article 311 (1) to the clause of servant covered by the said Article. In Article 311 (1) of the Constitution the expression in “authority not subordinate to that by which he was appointed: and that cannot be equated to “appointing authority” referred to in the Service Rules. The appointing authority may change from time to time by necessary amendment or delegation of powers. The services of the employees governed by Article 311(1) of the Constitution can be terminated by the authorities which had actually appointed them in terms of the express language of the Article. The petitioner cannot claim the name protection as he was not admittedly an employee coming within the purview of Article 311(1) of the Constitution. Thus a clear distinction is to be drawn seeing the difference in the language of Article 311(1) of the Constitution and the relevant service regulations or rules. In view of this legal position, it cannot be said that the Chief Engineer was not competent to pass the impugned order of removal of the petitioner from service on 11.5.1990. Hence the contention of the learned Counsel for the petitioner in this regard is rejected.
23. The second contention advanced on behalf of the petitioner, that the impugned order passed by the third respondent removing the petitioner from service is vitiated on account of non-furnishing of the report of the enquiry officer before passing the order of removal, cannot be accepted as it was one passed before 20.11.1990, having regard to the facts and circumstances of the case and in view of the law laid down by the Apex Court.
In Union of India and Ors. v. Mohd. Ramzan Khan (1991) 1 S.L.R. 159, the Apex Court concluded that supply of a copy of the Enquiry Report along with the recommendations if any in the matter of proposed punishment would come within the rules of natural justice and therefore the delinquent is entitled to supply of a copy of the report, and the 42nd amendment to the Constitution did not change the position in that regard. In paragraph 17 of the said judgment it is stated that the same shall have prospective application and no punishment imposed earlier shall be open to challenge on that ground. The said judgment was delivered on 20.11.1990. In the instant case the order of removal was passed against the petitioner by the third respondent prior to it i.e., on 11.5.1990.
The Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar (1993) 5 S.L.R. 532, referring to Mohd. Ramzan Khan’s case (1991) 1 S.L.R. 159, aforementioned, has held that the law laid down in that case was prospective in operation. It is further stated, in the said judgment that both the administrative reality and public interest do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan’s case (1991) 1 S.L.R. 159 without furnishing the report of the enquiry officer should be disturbed and the disciplinary proceedings should be reopened on that account.
Yet, in another decision in Commandant, Central Industrial Security Force and Ors. v. Bhopal Singh (1994) 1 S.L.R. 1, the Supreme Court, referring to the Judgment of the Constitution Bench in the case of Managing Director, Ecil, Hyderabad, aforementioned, which in turn had considered the Mohd. Ramzan Khan’s case, has clearly indicated that the law laid down in Mohd.Ramzan Khan’s case was prospective in operation i.e., it is applicable to the orders of punishment passed after 20th November, 1990. (Italics is mine).
24. The third contention urged by the learned Counsel for the petitioner was that the Disciplinary authority, if, it were to disagree with the finding of the enquiry officer on charges 2 and 3, further opportunity ought to have been given to the petitioner to explain his case and defend himself, and failure to do so has resulted in injustice to the petitioner. In support of this submission he placed reliance on Narayan Misra v. State of Orissa 1969 S.L.R. 657. In that case the appellant Narayan Misra was a Forester; eleven charges had been framed against him; the enquiry into those charges were held by the Divisional Forest Officer who held him guilty of some charges and acquitted him of the remaining charges; the Divisional Forest Officer directed his removal from service; the appellant filed appeal to the Conservator of Forests; the Conservator of Forests set aside the order of the Divisional Forest Officer and reinstated him, suspended him again from service and ordered that the enquiry against him be held again; he also directed to frame fresh charges; when the enquiry was retained fresh charges were not drawn up and the old three charges on which he had been found guilty were again enquired into; the enquiry officer found the appellant not guilty of the first two charges and found him guilty of the third charges; he recommended for reinstatement of the appellant and to treat the period of suspension as period of punishment; when the matter came up before the Conservator of Forests, he directed the appellant to show cause why he should not be dismissed from service; the appellant gave explanation; the Conservator of Forests did not accept upon the third charge but also upon the other two charges which he held were proved against the appellant’ thus he differed from the findings of the enquiry officer. On the facts and circumstances of that case it was held that it was necessary to draw the attention of the appellant that the Conservator of Forests intended to take note of the charges on which he was acquitted by the enquiry officer.
In Satyanarayana v. State Bank of Hyderabad and Anr. (1988) 3 L.L.N. 1000, a learned single Judge of the High Court of Andhra Pradesh has held that whenever the disciplinary authority elects to differ from the findings of the enquiry authority he should first put to delinquent employee on notice communicating his reasons on which he indents to differ, providing an opportunity to the delinquent employee. The Supreme Court, in the case of State Bank of India, Bhopal v. S.S. Koshal, (1994) 2 S.C.C. (Supp.) 468, has taken the view that while the disciplinary authority disagreeing With the findings of the enquiry officer which were favourable to the delinquent, need not afford a fresh opportunity as it was not contemplated by the relevant regulations or principles of justice. This statement is made for the reason that in any case the disciplinary authority has to take a final decision on the basis of the materials produced. The proceedings before the disciplinary authority were not in the nature of an appeal from the enquiry officer to the disciplinary authority. Paragraph 6 of the said judgment reads:
So far as the second ground is concerned, we are unable to see any substance in it. No such fresh opportunity is contemplated by the regulations nor can such a requirement be deduced from the principles of natural justice. It may be remembered that the Enquiry Officer’s report is not binding upon the disciplinary authority and that it is open to the disciplinary authority to come to its own conclusion on the charges. It is not in the nature of an appeal from the enquiry Officer to the disciplinary authority. It is one and the same proceeding. It is open to a disciplinary authority to hold the inquiry himself. It is equally open to him to appoint an Enquiry Officer to conduct the inquiry and place the entire record before him with or without his findings. But in either case, the final decision is to be taken by him on the basis of the material adduced. This also appears to be the view taken by one of us (B.P. Jeevan Reddy, J.) as a Judge of the Andhra Pradesh High Court in Mahendra Kumar v. Union of India. The second contention accordingly stands rejected.
In the light of this judgment of the Supreme Court, the third contention raised by the learned Counsel for the petitioner also fails. In view of what is stated above, I uphold the submission of the learned Counsel for the respondents in this regard and hold that the disciplinary authority disagreeing with the findings of the enquiry officer was not required to give a fresh opportunity to the petitioner, In the light of the facts and circumstances of the case, and for the reason that the disciplinary authority was not an appellate authority, it was to take a final decision, only on the basis of the material produced during the course of enquiry.
25. As to the attack made on the impugned order on the ground that it is not a speaking order and that the appellate authority has not applied its mind before passing the impugned order, it is appropriate to extract the impugned order itself in order to appreciate the contention in this regard. It reads:
Thiru. T. Rajagopalan, Formerly Assistant Manager, SIPCOT, Central Office is informed that his appeal petitions dated 20.5.1990 and 16.11.1990 against the orders of the Chief Engineer, SIPCOT dated 11.5.1990 were placed before the Board of Directors of SIPCOT on 5.12.1990 and its decisions are as follows:
1. The Board considered the appeal petitions dated 20.5.1990 and 16.11.1990 of Thiru T. Rajagopalan, Assistant Manager against the orders dated 11.5.90 passed by the Chief Engineer, SIPCOT with all records and connected documents.
2. After discussions, the Board was of the view that the charges have been held proved rightly on the merits of the case and the punishment awarded was commensurated with seriousness of charges held proved against the Officer.
3. The Board further observed that the findings of the Chief Engineer were not biased and the punishment awarded to the individual is not excessive warranting reduction.
4. The Board however after taking into account the length of service of the Officer in this Corporation took a lenient view and decided to modify the punishment of ‘Removal from Service’ to ‘Compulsory retirement’.
Plan reading of the order shows that the Board did consider the appeal in the light of the appeal petitions dated 20.5.1990 and 16.11.1990 made by the petitioner; the Board discussed and came to the conclusion that the charges have been rightly held proved on the merits of the case; the findings recorded by the third respondent were not biased; and that the punishment imposed was commensurate with the seriousness of the charges held proved against the petitioner; however taking a lenient view it was modified to compulsory retirement from the punishment of removal from service. Added to this the impugned order is an order of confirmation. From the impugned order it is clear that the Board as an appellate authority did look into the contentions raised in the appeal, the materials placed on record and findings recorded by the Chief Engineer, and also whether the punishment imposed was excessive in relation to the charges established. In the aforementioned Judgment in the case of State Bank of India, Bhopal (1994)2 S.C.C. (Supp.) 468, similar question came up for consideration. The appellate order in that case which was upheld, was to the following effect:
The Board considered at length the facts of the case including the fact that the disciplinary authority has differed from the findings of the inquiring authority in respect of two charges. After having considered the appeal and other relevant papers and having applied their minds, the Board concluded that there are no grounds to sustain the appeal and accordingly RESOLVED that the order of the disciplinary authority be upheld and that the appeal made by Shri S.S. Koshal be dismissed.
In the case on hand the impugned order is more elaborate and is a speaking one when compared to the appellate order extracted above. Thus I find no substance in the fourth contention advanced on behalf of the petitioner.
26. I also do not find force in the submission of the learned Counsel for the petitioner as regards the last contention that the punishment imposed on the petitioner was grossly disproportionate to the gravity of the charges established, even assuming them to have been established. The following were the charges framed against the petitioner:
Charge No. 1 : that while he was working as Project Officer, Pudukkottai, he issued cement to the Contractor Thiru S.N. Gubendran for the work relating to the construction of Project Officer’s Head Quarters in excess of the actual requirement. The excess quantity issued has been assessed as 231 bags. He has thereby failed to protect the properties so the Corporation and has been responsible for not recovering the material or the value of the same as required by the rules and thus caused loss to the Corporation to the tune of Rs. 20,097.
Charge No. 2 : that he has submitted L.S.III and part bill for the work relating to laying of sewer lines and construction of appurtenant works in SIPCOT Industrial Complex, Manamadurai, recommending payment to the Contractor M/s.Home Makers duly certifying unfinished works worth Rs. 50,000 approximately as having been completed, recorded wrong measurements in the M.Book relating to construction of circular manholes A-11 to A-15, A-17, A-19 to A-22 and thereby attempted to cheat the Corporation. He also certified the incomplete works of manhole as having been completed.
Charge No. 3 : that Thiru Rajagopalan is found to have colluded with the Consultant and the Contractor and has misused the Corporation’s properties and thereby committed an offence of breach of trust.
The above three charges were found proved and established on the basis of the materials placed on record and appreciating the evidence by the third respondent. The Boardappellate authority having reconsidered and reappreciated the materials on record concurred with the findings recorded by the third respondentChief Engineer. The learned Counsel for the petitioner, although made a passing reference that the findings recorded on the basis of the material cannot be supported, did not lay much emphasis in this regard, and rightly so in my opinion, as this Court cannot reapprecigte the evidence on record, that too in a disciplinary proceeding, as an appellate court. The appellate authority itself has modified the punishment from “Removal from service” to “Compulsory retirement”. I do not find that the punishment of compulsory retirement imposed is grossly or shockingly dis-proportionate to the charges proved against the petitioner. Hence I have no hesitation to reject the last contention of the learned Counsel for the petitioner.
27. In the result, for the reasons stated, I do not find any merit in the writ petition. It is liable to be dismissed, and accordingly it is dismissed.