IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/08/2005
CORAM
THE HON'BLE MR.JUSTICE MARKANDEY KATJU, CHIEF JUSTICE
and
THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
W.A.No.443 of 2004
and
W.A.M.P.No.785 of 2004
1.The Chairman,
Tamil Nadu Electricity Board,
NPKRR Maaligai,
Chennai - 600 002.
2. Chief Engineer/Personnel,
Tamil Nadu Electricity Board,
NPKRR Maaligai,
Chennai - 600 002.
3. Chief Engineer (Distribution),
Erode Region,
Tamil Nadu Electricity Board,
948, EVN Road,
Erode - 638 009.
4. Superintending Engineer,
Erode Electricity Distribution Circle,
948, EVN Road,
Erode - 638 009. ..Appellants.
-Vs-
Er.R.Manoharan,
AEE (Elecl.) Shift,
230, KVSS Ingur,
Ingur, Perundurai Taluk,
Erode District. ..Respondent.
PRAYER: Writ Appeal filed against the order of the learned single
Judge dated 30.10.2002, passed in W.P.No.21374 of 2001.
!For Appellants :: Mr.V.Radhakrishnan
^For Respondent :: Mr.M.Sureshkumar
:J U D G M E N T
THE HON’BLE THE CHIEF JUSTICE
This writ appeal has been filed against the order of the learned
single Judge dated 30.10.2002 passed in W.P.No.21374 of 2001, by which the
learned single Judge allowed the writ petition.
2. The writ petition was filed for quashing the order dated 24.04.20
00 passed by the Chief Engineer (Distribution), Tamil Nadu Electricity Board,
Erode Division (3rd respondent in the writ petition) directing that the next
annual increment of the petitioner shall be withheld for two years without
cumulative effect. The petitioner further prayed for a direction to promote
him as per the original seniority list w.e.f. 01.10.2000 the date on when his
juniors were promoted, with all consequential benefits.
3. The petitioner appealed against the order dated 24.04.2000, but
the same was rejected, and hence he filed the writ petition.
4. It appears that the performance of the writ petitioner was
reviewed by the Chief Engineer (Distribution), Erode Region in the second
fortnight of February 2000, and his performance was found to be far from
satisfactory. As his performance was found to be poor he was advised to
improve his work vide Memorandum No.CE/D/ED/Steno/DOCMAN/ D.59/2000 dated
03.03.2000. It is alleged that after serving the above Memorandum dated
03.03.2000 his performance was continuously monitored, but it was found that
he did not take any steps to improve his performance. The writ petitioner was
called upon to furnish his contribution on his vital subject of “Accidents”
vide Memorandum No.CE/D/ED/ Steno/DOCMAN/D.59-1/2000 dated 06.03.2000 and he
was directed to furnish his reply before 09.03.2000. It is alleged that the
writ petitioner neither sent his reply before 09.03.2000 nor requested for any
extension of time. It is alleged that he was reminded on 15.03.2000 to send
his reply, and he sent his reply on 16.03.2000 along with a detailed statement
involving 18 fatal accidents and 19 non-fatal accidents. Regarding 18 fatal
accidents it was found that he did not submit any report on the manner in
which the accidents happened, measures to be taken for preventing such
accidents in future, and other related reports. It is alleged that his
contribution to the Tamil Nadu Electricity Board as Assistant Executive
Engineer/Safety on his vital subject of “Accidents” – Fatal and Non-Fatal” was
found to be zero. Hence, a show cause notice dated 21.03.2000 was sent to him
by the Chief Engineer alleging the following lapses:
1)Dereliction of duty
2)Acted in a total irresponsible manner
3)Was found to be lacking in devotion to duty
5. It is alleged that the writ petitioner received the show cause notice on
23.03.2000, and submitted his reply on 17.04.2000 after getting an extension
of time for 10 days. In his reply the writ petitioner stated that he will
keep the advice of the Chief Engineer and discharge his duties sincerely in
future without any lapses. It is alleged that after examining the reply
furnished by the petitioner, considering the gravity of lapses committed by
him and considering his nonimprovement in his performance on the vital subject
of “Accidents” and his past record, the Chief Engineer (Distribution), Erode
decided to award him the punishment of stoppage of next annual increment for a
period of two years without cumulative effect vide his order dated 24.04
.2000.
6. Against that order the petitioner filed the writ petition, which has been
allowed by the impugned judgment on the ground that the petitioner was not in
charge for the period from 01.07.1999 till 16.08.199 9 when the accidents in
question took place.
7. In our opinion, this writ appeal has to be allowed. It may be noted that
the learned single Judge has only based his judgment on the allegation that
the writ petitioner was not in charge for the period from 01.07.1999 to
16.08.1999 and he was also on Medical Leave from 10.12.1999 to 31.12.1999.
The learned single Judge has apparently overlooked the fact that the review
period was from 01.07.1999 to 06.03.200 0, and hence even after excluding the
above said period of 01.07.1999 to 16.08.1999 and 10.12.1999 to 31.12.1999,
there were fatal and non-fatal accidents during the remaining period, and
admittedly the writ petitioner did not take any steps to submit his report for
this period. Hence, in our opinion, the reasoning of the learned single Judge
was not correct.
8. The nature of duties attached to the Assistant Executive Engineer/Safety
was to monitor the accidents which occurred in Erode Region and submit his
report and to suggest preventive measures to be taken to prevent such
accidents. The disciplinary authority viz., Chief Engineer (Distribution),
Erode Region has found that during the review period the writ petitioner had
not submitted any report on the manner in which the 18 fatal and 19 non-fatal
accidents had taken place, measures to be taken for preventing such accidents
in future, and other related reports. His contribution to the Tamil Nadu
Electricity Board as Assistant Executive Engineer/Safety on the vital subject
of accidents (fatal and non-fatal) was found to be zero. Before imposing the
punishment the Chief Engineer (Distribution), Erode gave a show cause notice
dated 21.03.2000 to the writ petitioner and the writ petitioner in his reply
dated 17.04.2000 did not deny the charges. Hence, the order of punishment was
on the basis of the material furnished in the show cause notice which was not
denied by the writ petitioner. On the other hand, the writ petitioner had
requested that the charges be dropped assuring that he would discharge his
duties properly in future. In our opinion, there was compliance of the
principles of natural justice, and on the basis of the materials furnished to
the delinquent the punishment order was passed. The writ petitioner’s appeal
to the Chairman and further memorial to the Full Board were, in our opinion,
rightly rejected. In our opinion, having reg ard to the gravity of the charge
the punishment imposed was very lenient. The learned single Judge was not
justified in interfering with the same.
9. Further, in our opinion the punishment imposed on the petitioner by the
Chief Engineer (Distribution) was in accordance with the provisions of the
Tamil Nadu Electricity Board Employees’ Discipline and Appeal Regulations.
The writ petitioner’s appeal and memorial were also rightly rejected. Under
Regulation 8(a) of the Tamil Nadu Electricity Board Employees’ Discipline and
Appeal Regulations where it is proposed to impose on an employee the
punishment of stoppage of increment without cumulative effect for a period
upto 3 years the employee shall be given an opportunity of making a
representation and such representation shall be considered before imposing the
penalty. The writ petitioner was given such an opportunity of making a
representation before the punishment was imposed, and his representation was
considered. Hence, the procedure was valid. The writ petitioner was punished
for his gross-negligence in his duties, and we cannot interfere with this
punishment in writ jurisdiction.
10. The power of the High Court in writ jurisdiction is limited. It cannot
sit in appeal over the findings of the fact finding authority or Tribunal. It
can only interfere if there is error of law apparent on the face of the
record. There is no such error of law in this case, and hence the learned
single Judge should not have interfered.
11. As regards the petitioner’s prayer for promotion, it may be mentioned
that the Tamil Nadu Electricity Board by its order dated 27.12.1 995 has
issued the following guidelines for promotion/appointment of Board employees
against whom charges/enquiry are pending or specific charges have been
framed:-
(i)In case of pending enquiries including Vigilance Enquiries and in the case
of where specific charges have not been framed, promotion/ appointment of such
persons shall be considered on the basis of their performance as on date of
consideration for promotion/appointment as revealed through personal file and
seriousness of the punishments if any previously imposed.
(ii)In case where specific charges have been framed or charge sheets have been
filed in criminal case promotion/appointment of such persons shall be deferred
till the proceedings are concluded.
In the present case, specific charges had been framed against the writ
petitioner and final orders imposing punishment had been passed. As the writ
petitioner had been punished his name was not included in the panel for
promotion. In our opinion, the writ petitioner cannot claim promotion as of
right, particularly, when he had been punished for gross-negligence in his
duties and poor performance.
12. Promotion to the post of Executive Engineer/Electrical is
governed by Regulation 98 of the Tamil Nadu Electricity Board Service
Regulations. Regulation 98(1)(b)(i) clearly states that promotion in all
cases shall be made on merit and ability. Seniority can be considered where
merit and ability are approximately equal. Since, promotion to the post of
Executive Engineer is based mainly on merit and ability, in our opinion, the
learned single Judge erred in giving a direction to promote the petitioner
from the post of Assistant Executive Engineer to Executive Engineer without
considering merit and ability, and particularly, when the writ petitioner was
undergoing the punishment of stoppage of increment for two years without
cumulative effect. In our opinion it was not open to the learned single Judge
to sit as a Court of Appeal over the decision of the Departmental Promotion
Committee.
13. Moreover, we fail to understand how the learned single Judge
could have himself directed the promotion of the petitioner. The learned
single Judge could at most have directed the D.P.C. or the concerned
selection authority to have considered (or re-considered) the question of
promotion of the petitioner, but he could not himself take over the function
of the D.P.C. or the selection authority, vide U.P.S.R.T.C. Vs. Mohd.
Ismail (1991) 3 SCC 239 (vide para-12), State of U.P. Vs. Raja Ram Jaiswal,
(1985) 3 SCC 131 (vide para-16), etc.
14. For the reasons given above, this writ appeal is allowed, and the
impugned order of the learned single Judge is set aside. No costs.
Consequently, connected W.A.M.P. is closed.
Index: Yes
Internet: Yes
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