IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.08.2008 CORAM THE HONOURABLE MR. JUSTICE P.K MISRA AND THE HONOURABLE MR. JUSTICE K. KANNAN WRIT PETITION NO.14613 OF 1998 V.G. Manoharan S/o.V.G. Gopal .. Petitioner Vs. The Managing Director, Tamil Nadu Civil Supplies Corporation Limited, 42, Thambuswamy Road, Kilpauk, Chennai 600 010. .. Respondent Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records of the respondent comprised in the impugned show cause notice in RcNo.G4/88575/98-I dated 28.8.1998 issued to the petitioner purporting to review the final order of the disciplinary authority and quash the same. For Petitioner : Mr.V. Sanjeevi For Respondent : Mr.V. Selvanayagam - - - O R D E R
(Order of the Court was made by P.K. MISRA, J)
Heard the learned counsels appearing for the parties.
2. This writ petition has been referred to the Division Bench by a learned single Judge of this Court as per order dated 29.4.2008.
3. Even though the order of reference highlights one particular aspect of the dispute, from the tenor of the order passed by the learned single Judge, it is apparent that the entire matter has been placed before the Division Bench for consideration. As a matter of fact, the learned counsels appearing for both the parties have submitted that the entire matter may be disposed of on merit.
4. In order to appreciate the questions involved, it is necessary to notice in brief the relevant facts.
The petitioner is working under the Tamil Nadu Civil Supplies Corporation (in short TNSC). When he was working as Assistant Quality Inspector in the TNSC godown at Ponneri, the Vigilance Cell inspected the godown and noticed certain shortages in stocks and lapses in maintenance of the registers. Thereafter, the Regional Manager framed charges against the petitioner as per the proceedings dated 12.5.1995. In the departmental proceeding, which followed, the enquiry officer found the present petitioner guilty of one of the charges, partially guilty of some of the charges and not guilty of some other charges. The disciplinary authority, namely, the Regional Manager, by accepting the report of the enquiry officer, as per order dated 29.9.1997, observed as follows :-
“… In this case, out of 16 charges,one charge held proved, 6 charges not held proved, 5 charges partly held proved, 4 charges need not pressed.
1) Recovery may be ordered wherever shortages noticed by the Vigilance Cell.
2) I also feel that the charges partly held proved are not serious in nature and not involving huge monitory loss to the Corporation. Considering the future service of the individual.
I am taking lenient view and I Order “CENSURE” in this case. An appeal lies before the Managing Director against the above order within 60 days from the date of receipt of this order.”
5. It is not in dispute that thereafter a sum of Rs.2,000/- and odd, reflecting the value of the shortage, had been recovered. Subsequently, a notice, dated 28.8.1998, emnated from the office of the Managing Director, TNCSC., to show cause as to why the punishment should not be enhanced. Such notice dated 28.8.1998 has been challenged in the present writ petition.
6. The writ petitioner has raised the following contentions:-
(1) Since no time limit has been prescribed under the Regulations, the relevant provisions in the Tamil Nadu Civil Services (CCA) Rules would be applicable, wherein time limit of six months was prescribed for initiating the review proceedings and, in the present case, the final order was passed on 29.9.1997, whereas the show cause notice was issued on 28.8.1998, after 11 months, and, therefore, the proceeding was barred by time.
(2) There was no reason to reopen the proceedings and there has been non-application of mind on the part of the respondents.
(3) As per Chapter V of the Tamil Nadu Civil Supplies Corporation Employees Regulations, 1989 (hereinafter referred to as “the Regulations”), only the Board of the Corporation has power to review the orders passed by the officers of the Corporation and, at any rate, as per the amendment made to Regulation No.13, the Chairman-cum-Managing Director alone has the power of review and not the Managing Director and, therefore, the impugned notice is ex-facie illegal for want of jurisdiction.
7. In the counter affidavit, it has been stated that misconduct committed by the petitioner being a serious one, severe punishment was required to be given. It is further stated therein that at the relevant time since there was no full time Chairman, the Managing Director was the full time Officer / Head of the Organisation and, therefore, the Managing Director could exercise the power which was vested with the Chairman-cum-Managing Director. It is further indicated that since no time limit has been prescribed to review the order, the question of time limit does not arise.
8. Since the learned single Judge had primarily referred the matter to the Division Bench on the question relating to limitation, it would be appropriate to deal with such aspect before considering other aspects.
9. So far as the question of limitation is concerned, the Regulations as such do not contemplate any period of limitation for initiating the review proceedings. Merely because the Regulations are silent on this aspect, it cannot be assumed that the provisions contained in the Tamil Nadu Civil Service (Discipline and Appeal) Rules ipso facto applicable in the absence of any specific provision to that effect either in that Rules or in the absence of any provision in the Regulations. Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, does not apply to the employees of the TNCSC in respect of the departmental proceedings, by its own stream. There is nothing in the Regulations to show that in the absence of any specific provision, the Tamil Nadu Civil Services (Discipline and Appeal) Rules would be applicable.
10. The amendment to Regulation 13, by which the power to review was incorporated, was brought into effect from 13.3.1993 and the show cause notice was issued thereafter on 28.8.1998. Since no period has been prescribed, one may conclude that such power is to be exercised within a reasonable period. That, however, does not mean that the period prescribed under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, is ipso facto applicable. What would be the reasonable period would depend upon the facts and circumstances of a particular case and it would not be advisable to lay down a specific period for the above aspect. Accordingly, the contention relating to the limitation is not acceptable.
11. The next contention raised by the counsel for the petitioner is to the effect that the decision to review the question of punishment and to issue show cause notice has been taken without application of mind. In this connection, it is further submitted that in fact the notice to show cause itself indicates regarding the non-application of mind.
12. In the show cause notice, dated 28.8.1998, after extracting 16 charges it has been indicated :-
“The final orders issued by the Regional Manager, Thiruvallur in his proceedings fifth cited, were reviewed with reference to regulation 13, Chapter V of TNSC Employees service Regulation 1989. The punishment awarded on Thiru V.G. Manoharan, Assistant Quality Inspector is not commensurate with the gravity of serious lapses. Thiru V.G. Manoharan, Assistant Quality Inspector (worked in Ponneri Godown) and now working in Thiruvallur Region is hereby directed to show cause as to why enhanced punishment should not be inflicted on him for the lapses noticed on his part within 15 days from the date of receipt of this show cause notice.
The individual is informed that if no explanation is received from him within the stipulated time, it will be construed that he has no explanations to offer and that final orders will be passed on the materials available.”
13. As already noticed, out of 16 charges, Charge No.12 was held to be proved, six charges were held to be not proved, five charges were stated to be partially proved and four other charges were not pressed. However, the notice to show cause did not even whisper as to which of the charges had been disproved or not pressed or which of the charges are partially proved or proved. A reading of the notice to show cause gives the impression that as if all the charges had been proved and yet a punishment of Censure had only been imposed.
14. A perusal of the show cause notice, therefore, clearly indicates non-application of mind. However, in order to ascertain whether there had been application of mind in the File, we had called upon the counsel for the TNCSC to produce the relevant file. Such file has been produced before us.
15. The extract of the Managing Director’s order contained in the File is available at Page No.59. Paragraph 2 of such extract relates to the petitioner, which is as follows :-
“2) For the AQI MR.V.G. Manoharan (who faces a serious charges in Sembulivaram godown for diversion of nearly 10 loads of Rice) then AQI of Ponneri godown was charged for 16 charges which are rather serious (listed out at pre pages) and nearly 11 stood proved in the enquiry and the punishing authority Tr. Prakasam DC/RM Tiruvallur took a very lenient view and awarded Censure.
As both the final orders above referred are not commensurate with the gravity of the charges. It may be ordered to take up suo-motto.
May be agreed to.
Yes Sd/- 18/8/98 MD "
16. A reading of the aforesaid portion of the order indicates as if out of 16 charges, 11 charges stood proved in the enquiry; whereas, as already noticed, 10 charges were either not proved or not pressed, one charge was proved and five charges were partly proved. Moreover, in the order it was also highlighted that the person concerned was facing a serious charge in Sembulivaram godown for diversion of nearly 10 loads of Rice. In other words, it is quite evident that it was projected before the Managing Director as if out of 16 charges, 11 were proved, whereas, as a matter of fact, 10 charges had not been proved / not pressed. Similarly the fact that there was allegation relating to diversion of 10 loads of rice was entirely irrelevant inasmuch as it was open to the Department to subject the petitioner to a separate disciplinary proceedings for such delinquency and the alleged involvement in some other incident could not have been a ground to reopen the punishment. It is thus evident that the Managing Director took the decision to reopen the question of punishment being swayed by irrelevant consideration and without application of mind.
17. It is no doubt true that only a notice to show cause has been issued. However, whether the question of punishment should be reopened by issuing a show cause notice is not a trivial matter and the appropriate authority obviously has to consider the matter in its proper perspective even before deciding to reopen the question of punishment by issuing a show cause notice. Since, in the present case, the authority concerned took such a decision to reopen the question of punishment on consideration of irrelevant materials and without application of mind, we are constrained to quash such notice to show cause.
18. The other contention raised by the learned counsel for the petitioners is to the effect that as per the Regulations only the Chairman-cum-Managing Director could take a decision and, in the present case, the decision to reopen the question of punishing had been taken by the Managing Director. The Corporation is seeking to justify its action on the footing that at the relevant time there was no Chairman-cum-Managing Director and, therefore, the Managing Director was authorised.
However, since we have quashed the show cause notice on the contention relating to non-application of mind, it is not necessary for us to go into the above aspect.
19. For the aforesaid reasons, the writ petition is allowed and the notice to show cause is quashed. It is made clear that this order will not stand in the way of the appropriate authority in considering afresh the question as to whether the punishment should be reviewed or not by considering all the relevant facts and circumstances. The writ petition is allowed to the extent indicated above, subject to the observation made. No costs.
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