IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.01.2008
Coram :
THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN
and
THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN
Writ Appeal No.133 of 2006
1. Tamilnadu Small Industries Development
Corporation Limited, represented by its
Chairman and Managing Director,
Paulwel's Road, Kathipara Junction,
Chennai 600 016.
2. Board of Directors of Tamilnadu Small
Industries Development Corporation
Ltd., represented by Secretary and
Financial Controller, Paulwel's Road,
Kathipara Junction, Chennai 16.
3. Chairman & Managing Director,
Tamilnadu Small Industries Development
Corporation Ltd., Paulwel's Road,
Kathipara Junction, Chennai 16. Appellants
v.
R.Venkata Krishnan Respondent
Writ appeal filed under clause 15 of the Letters Patent against the order of the learned single Judge dated 25.08.2005 made in writ petition No.5040 of 1998.
For appellant : Mr.P.S.Raman,
Additional Advocate General, for
Mr.V.P.Raman
For Respondent : Mr.Kumar, Senior Counsel, for
M/s.A.V.Bharath
JUDGMENT
K.RAVIRAJA PANDIAN, J.
The appellants – the Tamil Nadu Small Industries Development Corporation Ltd., its Board of Directors, Chairman and the Managing Director filed this appeal under clause 15 of the Letters Patent, 1865 assailing the order of the learned single Judge dated 25.08.2005 made in writ petition No.5040 of 1998 in which the order dated 04.02.1998 of the second respondent confirming the order dated 04.012.1997 compulsorily retiring the respondent herein passed by the the third appellant was set aside giving liberty to the third respondent to restart the enquiry from the stage where the error crept in, i.e., from the stage of consideration of the explanation of the respondent to the report of the enquiry officer.
2. The facts of the case go as follows : The respondent was working as Manager (Law and Administration) in the service of the appellant Corporation. On 21.05.1996 he was suspended pending enquiry into certain charges and after six months of suspension the charge memo was issued on 19.11.1996. Five charges were framed against the respondent and he was called upon to submit his explanation. Not being satisfied with the explanation, an enquiry officer was appointed. The enquiry officer, after conducting the enquiry, submitted his report on 17.09.1997 holding that the charges 1, 2, 4 and 5 are proved. Charge No.3 was dropped as not proved. The respondent was called upon to submit his explanation on the enquiry report, which was submitted by him on 29.10.1997. The third appellant by his order dated 04.12.1997 imposed the punishment of compulsory retirement. The said order was confirmed by the second appellant, on appeal, by his order dated 04.02.1998. The respondent filed the writ petition challenging the correctness of the order of the second appellant dated 04.02.1998 seeking for issuance of writ of certiorari to call for the records on the file of the second appellant pertaining to his order dated 04.02.1998 and quash the same and consequently direct the appellants to reinstate him with all attendant benefits. The learned single Judge, by the order impugned in this appeal, as stated in the preamble, set aside the order impugned therein, with liberty to the third appellant to restart the enquiry from the stage where the error has crept in.
3. The learned Additional Advocate General appearing for the appellants has submitted that the respondent was 52 years of age in the year 1998, when the order of compulsory retirement was passed by the disciplinary authority. The order of the learned single Judge was delivered on 25.08.2005 after adjourning the case for verdiction. In the meantime, during the pendency of the writ petition, the respondent, attained the age of superannuation. Thereafter there is no employer-employee relationship between the parties. In the service rules governing the employees of the appellant Corporation, there is no specific provision not to allow a delinquent employee to retire during the pendency of the enquiry. As such it would not be proper to order fresh enquiry. He further contended that when the disciplinary authority concurs with the finding of the enquiry officer, there is no need for the disciplinary officer to give any separate reason in his order.
4. Mr.Kumar, learned counsel for the respondent agreed with the factual position that the respondent has crossed the normal age of superannuation at the time of delivering of the judgment under appeal. However, he contended that in view of the respondent crossing the age of superannuation and in the absence of any rule to continue the proceedings even after superannuation of an employee, that portion of the order giving liberty to the original authority to redo the enquiry from a particular stage cannot be given effect to but the rest of the order would remain. The order impugned is a well reasoned one exposing the enquiry as a prejudiced one.
5. Heard the learned counsel on either side and perused the materials available on record.
6. Before the learned single Judge, the respondent raised primarily four contentions to contend that the entire proceedings are vitiated, which are : (1) the respondent was not permitted to peruse the documents and was not furnished with the copies as required by him; (2) the enquiry alleged to have been conducted is not an enquiry in the eye of law, in the sense that no exhibit has been marked and he was also not examined in the enquiry and he was not allowed to cross-examine any of the witnesses; (3) none of the explanations submitted by the respondent as against the report of the enquiry officer had been dealt with by the disciplinary authority; and (4) the show cause notice discloses the closed and predetermined mind on the part of the disciplinary authority to punish the respondent.
7. The first of the two contentions raised by the respondent were rejected by the learned single Judge by giving reasons. However, in respect of the third contention the learned Judge found considerable force in the objection of the respondent. The learned Judge was of the view that all the four charges sustained by the enquiry officer were related to certain technical violation and the very nature of the charges disclosed that the respondent had failed to inform or enlighten the higher authorities regarding the rule position and that he had not properly guided the Chair person and the Managing Director. For each and every charge the respondent had submitted a detailed explanation but the explanation has not been taken for consideration and simply brushed aside.
8. The crux of the charges against the appellant was that he failed to bring to the notice of the higher authorities about the G.O. Ms. No.883 dated 19.11.1992 which resulted in wrong fixation of pay in respect of a Personal Assistant, that he has not guided the higher authority properly in the matter of sanction of house building loan to one of the employees, in the sense that the original title deed has not been obtained from the loanee, that he failed to obtain acknowledgment regarding the issue of certain valuables to staff and others and failed to furnish the names of persons to whom it was issued, that he has not properly brought to the notice of the higher authorities about the rule position in the appointment of Tmt.Dhanalakshmi when she was actually appointed on 06.09.1994, but she was allowed salary from 22.07.1994.
9. From the above it is clear that none of the charges with reference to the loss caused to the Corporation was directly attributable to the delinquent officer, but the only accusation against him was that he failed to guide the person who committed the irregularities, in a proper way. For the proved charges, the delinquent officer has given detailed explanation for each and every one of the charges. The appellant Corporation was headed by a Chairperson during the relevant period of time and all the instances which are directly attributable to the Chairperson and the Managing Director are converted as charges against the respondent on the premise that he has not guided him and failed to point out the rule position to him.
10. It is the settled principle of service jurisprudence that when the disciplinary authority is a different person than the enquiry officer, the basic principles of natural justice requires that the disciplinary authority should apply his mind to the explanation offered by the delinquent and deal with the same in a proper manner in his final order. The power of the disciplinary authority to delegate the function to conduct an enquiry through the enquiry officer did not mean that the discretion of the disciplinary authority should be surrendered to the enquiry officer. The role of the enquiry officer was only to assist the disciplinary authority in conducting an enquiry, otherwise for all practical purposes, it was the disciplinary authority who should consider and be satisfied with the materials and also to consider the explanation of the delinquent. That was the reason for requiring the delinquent to furnish his reply or explanation on the enquiry report. One of the essential requirement of the principles of natural justice would be that the order of the disciplinary authority should disclose the application of his mind to the explanation submitted in the context of each of the charges.
11. In the peculiar facts and circumstances of the case, we are in complete agreement with the reasoning of the learned single Judge that the disciplinary authority dealt with the matter in a very casual manner. The reasoning of the third appellant as reproduced in the impugned order read as follows :
“I find that he was holding the sensitive position of Manager (Legal) and Manager (Administration) and was in a position to give correct advice to the Chairman and Managing Directors. His advice would have been very crucial, especially when the Chairperson and Managing Director for most of this period was a political appointee, without much of familiarity with the rules and regulations in SIDCO and similar organisations. So he had a very important role to play in guiding the Chairperson and Managing Director on correct lines. But here, one finds him joining hands with various vested interests and leading the Chairperson and Managing Director to pass wrong orders and now conveniently arguing that he only carried out the Chairperson and Managing Director’s instructions. In fact, the valuable and costly presentation items like gold coins, silver and other gift articles were handled without any proper records. He should have persuaded the Chairperson and Managing Director to avoid giving such costly presents at the expense of the Organisation and failing which he should atleast have kept proper records and acknowledgments for handling and distributing them. From all this, one has to conclude that his integrity is not good and he cannot be entrusted with serious administrative duties. Taking into account the seriousness of the proved charges, deterrent punishment is called for. It is felt that major punishments like dismissal and removal from service are not called for, here. However, compulsory retirement is considered as appropriate punishment. The officer has also crossed 52 years of age. Considering all these aspect, Thiru R.Venkatakrishnan, Manager (Law & Admn) is hereby informed that the management proposed to compulsorily retire him from service with effect from the date of issue of final order.”
12. From the above it is clear that the Chair Person and the Managing Director of the appellant Corporation, who was in the helm of affairs had passed certain wrong orders and has dealt with certain issues in an improper manner. The learned Judge has also expressed his anguish that the Corporation instead of taking action against the then Chairperson and the Managing Director, who had wronged and improperly dealt with certain issues threw the entire blame on the respondent, who was a subordinate officer. Even while remanding the matter to the original authority, the learned single Judge, having regard to the totality of the circumstances under which the respondent was nailed down, made a cautionary note to the present incumbent to act fairly by shedding down the prejudice, if any and with due regard to the real need to continue the proceedings against the respondent.
13. It is not the case of the appellants that the respondent was guilty of any ulterior motive or positive misconduct or deliberate misleading the chair person by making wrong and incorrect suggestion or instructions or note. To be just and to act in a just manner is writ large in all administrative action, particularly when the appellants dealt with the fate of its own employee, his future and reputation. Hence, we are not able to find any reason to interfere with the order of the learned single Judge setting aside the order impugned in the writ petition. However the question remains to be decided is whether that portion of the order relegating the matter to the disciplinary authority giving liberty to him to restart the enquiry to the enquiry officer’s report in the changed circumstances, in the sense, that the respondent has reached the age of superannuation even prior to the passing of the order of the learned single Judge, is correct. The learned counsel for the appellants as well as the respondent fairly submitted before this Court that the matter was adjourned for verdiction and when the judgment was delivered by the learned single Judge the factum that the respondent crossed the age of superannuation has not been brought to the notice of the Court. Yet another factor in this case is that the respondent has accepted the order of the learned single Judge and has not filed any appeal. It is only the Corporation who has filed this appeal. The prayer in the writ petition was to quash the appellate order passed by the second appellant on appeal. The original order of the third appellant has automatically merged with the appellate order of the second appellant. That was the reason for the respondent to couch the prayer in the writ petition to quash the appellate order only. The order impugned in the writ petition was set aside on the ground that the third respondent has not adverted to properly the explanation of the respondent. If that be so, that could be done by the appellate authority itself.
14. In somewhat comparable set of facts the question regarding the authority to whom the matter has to be remanded back, has been considered by the Supreme Court in the case of National Fertilizer Ltd., v. P.K.Khanna, 2005 (7) SCC 597. In that case, the disciplinary authority passed an order of removal of the delinquent officer from the service of the company. The employee’s appeal to the chairman was rejected. The employee filed a writ petition before the Punjab and Haryana High Court. The Division Bench set aside the order of the disciplinary authority and the appellate authority with the liberty to the disciplinary authority to pass fresh orders keeping the observations of the High Court. The matter was agitated before the Supreme Court. In the above said case the Supreme Court held as follows:
“14. This Court had issued limited notice as to whether the matter should be remanded back to the Appellate Authority rather than the disciplinary authority as directed by the High Court. For the reasons stated we are of the view that the appropriate order in the circumstances of this case will be to remand the matter back to the Appellate Authority to reconsider the respondents plea that the disciplinary authority had not appreciated the respondents objection correctly.
15. Accordingly we dispose of the appeal by modifying the order of the High Court setting aside the decision of the Appellate Authority so that the matter may be remanded back to the Appellate Authority for reconsideration of the objections raised by the respondent to the enquiry report.”
Reliance was placed by the learned counsel on the decisions of Supreme Court in the case of Bhagirathi Jena v. Board of Directors, OSFC, AIR 1999 SC 1841, and those of the Madras High Court in the cases of State of Tamil Nadu v. R.Karuppiah, 2005 (3) CTC 4, P.Muthusamy v. Tamil Nadu Cements Corporation Ltd., (2006) 4 MLJ 504, and G.Manoharan v. The Registrar of Co-operative Societies, 2007 (2) CTC 501. But the ratio laid down in these decisions is that during the pendency of the departmental enquiry, the delinquent officer reached the age of retirement, then the proceedings automatically abates when there is no statutory support for continuing the enquiry proceedings. But in this case, as early as in the year 1998, the departmental proceedings came to an end by passing the order of compulsory retirement. Hence the case laws are not applicable to the present case.
15. Following the decision of the Supreme Court, in the case of National Fertilizer Ltd., v. P.K.Khanna, 2005 (7) SCC 597, and in view of the reasoning stated in the foregoing paragraphs, the order of the learned single Judge is modified to the effect that the order of the appellate authority is set aside by retaining the original authority’s order and the matter is remitted back to the appellate authority with the direction for reconsideration of the objections raised by the respondent to the enquiry officer’s report and pass further orders. Having regard to the plight the respondent has undergone for more than a decade, the appellate authority is directed to finally dispose of the appeal at an early date, in all fairness within four months from the date of receipt of a copy of this order. The appeal stands disposed of in the above terms. No costs. The connected miscellaneous petition is closed.
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