{"id":20117,"date":"2003-02-28T00:00:00","date_gmt":"2003-02-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-venkatachalam-vs-tamil-nadu-cements-corporation-on-28-february-2003"},"modified":"2017-12-26T16:21:45","modified_gmt":"2017-12-26T10:51:45","slug":"m-venkatachalam-vs-tamil-nadu-cements-corporation-on-28-february-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-venkatachalam-vs-tamil-nadu-cements-corporation-on-28-february-2003","title":{"rendered":"M.Venkatachalam vs Tamil Nadu Cements Corporation on 28 February, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Venkatachalam vs Tamil Nadu Cements Corporation on 28 February, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 28\/02\/2003\n\nCORAM\n\nTHE HON'BLE MR.JUSTICE E.PADMANABHAN\n\nWrit Petition No. 776 of 2000\n\nM.Venkatachalam\nType IV (TNA) House NO.3,\nAlangulam Cement Factory Colony\nTANCEM P.O.626 127                              ..Petitioner\n\n-Vs-\n\n1. Tamil nadu Cements Corporation\n   rep. by its Chairman and Managing Director\n   LLA Building, 735, Anna Salai\n   Chennai-2\n\n2. Tamil Nadu Cements Corporation\n   rep. by its Board of Directors\n   LLA Building, 735, Anna Salai\n   Chennai-2                                            ..Respondents\n\n\n        Writ Petitions are preferred under  Art.226  of  The  Constitution  of\nIndia seeking for a writ of certiorari, as stated therein.\n\nFor petitioners ::  Mr.Balan Haridass\n\nFor respondents ::  Mr.R.Viduthalai\n\n:O R D E R\n<\/pre>\n
        The  writ  petitioner has prayed for the issue of a writ of certiorari
\ncalling for the records relating to the order of the  first  respondent  dated
\n5.4.1999  bearing Proceedings No.1800\/A3-98-1 as confirmed by the order of the
\nsecond  respondent  confirmed  in  their  177th  Meeting  held   on   8.9.1999
\ncommunicated  to  the  Petitioner  on  6.10.1999  by the order dated 10.9.1999
\nbearing Proceedings No.2266\/A3\/99-1 imposing on the petitioner the  punishment
\nof stoppage of two increments with cumulative effect and quash both the orders
\nas  without jurisdiction, illegal, arbitrary and in violation of principles of
\nnatural justice and in violative of Article 14 of The Constitution.\n<\/p>\n
        2.  Heard Mr.Balan Haridass, learned counsel appearing  for  the  writ
\npetitioner and Mr.R.Viduthalai, learned counsel appearing for the respondents.\n<\/p>\n
        3.   Practically  there  is  no  controversy  in  the  factual matrix.
\nHowever, the factual matrix could be summarised briefly:-\n<\/p>\n
        4.  The writ petitioner was the  Manager  (Tech-Mech)  in  Tamil  Nadu
\nCements Factory,  Alangulam  Cement  Works.   On 9.10.1997 at about 10.00 pm.,
\nfire broke out in the said  Cement  Factory  resulting  heavy  damage  to  the
\ninternal  parts  of  Electro Static Precipitator (ESP) resulting twist\/bend to
\nthe entire internal system which disturbed the original alignment  leading  to
\ndistortion, as  a  result  of  which  the  Kiln was stopped for 118 days.  The
\nrecommissioning of the Kiln could  be  done  after  a  lapse  of  four  months
\nresulting in loss to the tune of Rs.16.4 5 lakhs towards purchase of the steel
\nmaterials,  emitting  electrodes and consumables besides loss of production of
\n20,000 Matric Tonnes of clinker.  Relating to the said accident  charges  were
\nframed  against  the  petitioner and other staff members in the said Alangulam
\nCement Plant.  In  respect  of  the  other  two  Executive  Officials  namely,<\/p>\n
M.Anthonysamy,  Assistant  Manager  and  C.Paraman,  they  were  placed  under
\nsuspension for 18 days and the suspension period was  treated  as  substantial
\npunishment by order dated 21.1.1999 and 3.2.1999.\n<\/p>\n
        5.   In  respect of the petitioner charges were framed for negligence,
\nomission and neglect of duty under Rule 5.2(k) of the  TANCEM  Service  Rules.
\nAs  the  explanations  offered by the delinquent officer was not satisfactory,
\nenquiry was ordered and conducted.  The Enquiry  Officer  reported  a  finding
\nthat  charges  levelled  against  the  petitioner  and  two  other  delinquent
\nofficials were not established.  It is alleged that  the  petitioner  and  the
\nother  two officials were not able to fix up the responsibility on the persons
\nconcerned on account of negligence and neglect of duty for the fire mishap and
\nthey tried to evade the responsibility, which has  caused  a  heavy  financial
\nloss to the tune of Rs.16.14 lakhs to the Corporation.\n<\/p>\n
        6.   Domestic  enquiry was conducted and a report was submitted to the
\nrespondent on 23.5.1998.  Without communicating the report, without  affording
\nan  opportunity  and without issuing a show cause notice as to why the finding
\nshould not be dissented by the respondents, the disciplinary authority by  the
\nimpugned  proceedings  dated  5.4.1999  imposed  a  punishment  of stoppage of
\nincrement for a period of two years with  cumulative  effect.    The  material
\nportion  of  the  impugned order which is relevant in this writ petition reads
\nthus:\n<\/p>\n
        “It is found that the entire system of reporting the fire  mishap  has
\nnot been properly one and what was attempted was only shielding of the persons
\nconcerned at all levels and I do not agree with the observation of the Enquiry
\nOfficer that  Th.M.Venkitachalam  alone cannot be blamed for the incident.  It
\nis established that pumping of  excess  coal  into  the  kiln  without  having
\nproper\/timely check over the same has resulted in accumulation of unburnt coal
\nin the ESP chambers and the same was the main cause of the fire mishap.\n<\/p>\n
        After  taking  into  consideration  ,  the  facts  and  perusal of the
\nconnected  documents,  Enquiry  Report\/findings,  including  the   explanation
\noffered  by  Th.M.Venkitachalam,  Manager  (Tech-Mech) and on the basis of the
\ncircumstantial evidences both Th.M.Venkitachalam,  Manager  (  Tech-Mech)  and
\nTh.M.Antonysam,  Dy.Manager  (Process  Control-Kiln) (i\/c) who are the Head of
\nDepartment and Section Head are  vicariously  liable  for  the  fire  accident
\ncaused due to their negligence and neglect of work.  Hence, as per Rule 5.3(c)
\nof  the  Service Rules of Tancem, I give an order that the annual increment of
\nTh.M.Venkitachalam, Manager ( Tech-Mech) is stopped for a period of two  years
\nwith cumulative  effect.   He is also severely warned to guard himself against
\nsuch lapses in future and this will be recorded in his personal file.”\n<\/p>\n
        7.  After the imposition of punishment by the order dated 12.4.1999  ,
\nthe  petitioner  requested  the first respondent to furnish the enquiry report
\ndated 7.10.1998.  In the report submitted the enquiry  officer,  has  reported
\nthus:-\n<\/p>\n
        “As  otherwise  Thiru  M.Venkatachalam has taken prompt action against
\nerred persons, has not shown  negligence  and  neglect  of  duty,  a  lenient,
\nlethargic  and  careless attitude which are detrimental to the interest of the
\norganisation.\n<\/p>\n
        Under the above circumstances, I  came  to  the  conclusion  that  the
\ncharges  No.1  and  4 were not proved and proper evidences are not provided to
\nprove  the  charges,  with  respect  to  charges  2  and   3   against   Thiru
\nM.Venkatachalam,  Manager  (Tech-Mech)  the  respondent  as  per  the  charges
\nmentioned in the charge memo ref.R.C.no.1800\/A3, dated 2.4.1998 .”\n<\/p>\n
        8.  The petitioner preferred an appeal before  the  second  respondent
\nand the  appeal  was  placed before the Board, which the Board discussed.  But
\nthe Board confirmed the order of punishment awarded by the first respondent on
\n5.4.1999.  The second respondent appellate authority  has  not  discussed  the
\nmerits of various contentions advanced in the appeal before it.\n<\/p>\n
        9.  In the light of the above facts, the learned counsel appearing for
\nthe petitioner contended that the failure to communicate a copy of the enquiry
\nreport,  the  failure  to  issue  a  show  cause notice as to why the findings
\nreported should not be dissented and the failure of the appellate authority to
\nconsider the material points, vitiate  the  impugned  proceedings.    Mr.Balan
\nHaridas,  learned  counsel  contended  that  the  enquiry report which was not
\ncommunicated to the petitioner has exonerated the petitioner.    So  also  the
\nreport of  the  expert  committee.    Therefore  before finding the petitioner
\nguilty of one or more of the charges, the disciplinary authority  should  have
\nissued  a  show  cause  notice  as to why he is dissenting from the report and
\nshould have called upon the petitioner to  state  his  objections  or  make  a
\nrepresentation.  Admittedly   such   a  notice  has  not  been  issued.    But
\nstraightway the punishment  of  stoppage  of  increment  for  two  years  with
\ncumulative effect has been imposed.\n<\/p>\n
        10.   Per  contra, Mr.R.Viduthalai, learned counsel for the respondent
\ncontends that the punishment imposed against the petitioner being minor, it is
\nnot necessary either to communicate a copy of the enquiry officer’s report nor
\nit is necessary to issue a  show  cause  notice  before  dissenting  with  the
\nfindings  reported  by  the  enquiry officer or expert committee and therefore
\nthere is no violation of principles  of  natural  justice.    Mr.R.Viduthalai,
\nlearned  counsel further contended that for the imposition of minor punishment
\nthere is no necessity at all to issue a notice even after holding an  enquiry.
\nThe learned counsel further contended that the writ petitioner has reached the
\nage  of superanuation and has received all the benefits including gratuity and
\nother terminal benefits and therefore no purpose will be served  in  affording
\nan  opportunity  at  this  juncture  and  persuaded  this  court  to adopt the
\nprinciple of useless theory as has been laid down by  the  Supreme  Court  and
\nrelied upon the pronouncement of the Apex Court in this respect.\n<\/p>\n
        11.   According  to  the  learned counsel for the respondents, at this
\npoint of time if the order impugned is to be interfered the same will serve no
\npurpose as the petitioner is no longer in service, he was permitted to retire,
\nhe has received all the benefits and the matter should  not  be  reopened  nor
\ncould be  proceeded  by  the  respondent  any  longer.   Mr.Viduthalai, leaned
\ncounsel also contended that no prejudice has been caused to the petitioner  by
\nnon  furnishing  the  enquiry  officer’s  report or by not issue of show cause
\nnotice as he has received all the benefits, excepting the  monetary  value  of
\ntwo  increments  and  while  he  has  received  the maximum gratuity and other
\nbenefits for the service so far rendered by him.  However,  Mr.Balan  Haridas,
\nlearned counsel for the petitioner contended that the imposition of punishment
\nto  the petitioner who was a member of the Executive Cadre has caused a stigma
\nand reflected in his career and as a result of  which  he  had  lost  valuable
\nopportunities  or  further  avenues  and  denial  in  this  case  has resulted
\nsubstantial loss to the  petitioner  as  it  reflects  on  the  efficiency  or
\nsupervisory  capacity  or  managerial  capacity  of  the petitioner who was in
\ncharge of the factory.  However, it  is  pointed  out  that  when  the  Expert
\nCommittee  as well as the enquiry officer have already reported that the cause
\nfor the fire could not be found and the petitioner has been exonerated of  the
\ncharges,  it  is  rather  extraordinary on the part of the first respondent to
\nhave imposed the punishment  of  stoppage  of  increment  by  two  years  with
\ncumulative  effect without affording an opportunity before dissenting with the
\nenquiry officer’s report which report, is clearly in favour of the petitioner.\n<\/p>\n
        12.  It is also alleged that  there  is  violation  of  principles  of
\nnatural justice and it has resulted in serious prejudice and hardship, besides
\nloss to  the  petitioner.    It  is  also contended that principles of natural
\njustice has not been excluded to the present  case.    While  Mr.R.Viduthalai,
\nlearned  counsel  for the respondents contended that the principles of natural
\njustice is excluded by the service rules.\n<\/p>\n
        13.   On  the  above   facts,   the   following   points   arise   for
\nconsideration:-\n<\/p>\n
        (a)     Whether  the  failure  to  issue  a  show  cause notice before
\ndissenting with the enquiry officer’s report and finding the petitioner guilty
\nof one or more charges is illegal, arbitrary and violative of Art.14?\n<\/p>\n
        (b)     Whether the failure to issue a show cause notice by the  first
\nrespondent  and  follow  the  principles  of  natural  justice has resulted in
\nhardship or prejudice or substantial loss to the writ petitioner?\n<\/p>\n
        (c.)    Whether the principles of natural justice is excluded  by  the
\nservice rules framed by the respondent corporation?\n<\/p>\n
        (d)     Whether  the  principle  namely,  useless  theory  of  natural
\njustice is required to be adopted at all in the present case?\n<\/p>\n
        (e)     To what relief, the  petitioner  is  entitled  to  even  after
\nsuperannuation?\n<\/p>\n
        14.  The  facts  extracted  above  are not in controversy.  The expert
\ncommittee went in to the matter.  So also enquiry  officer  appointed  in  the
\ndisciplinary proceedings.    As  seen from the said reports the petitioner has
\nbeen practically exonerated from the four charges.  Yet, the first  respondent
\nhas  not  issued  a  show  cause notice while dissenting with the findings and
\nfinding that the petitioner is guilty of some of the imputations  and  imposed
\nthe  punishment  of  stoppage  of increment with cumulative increments for two
\nyears.   Mr.R.Viduthalai,  learned  counsel  contended  that  being  a   minor
\npunishment,  it  is  not  necessary  to  call upon the petitioner to state his
\nobjections or explanation as the case may be.  It is true that a  disciplinary
\nproceedings could be initiated either for imposing a minor punishment or for a
\nmajor  penalty,  but  when  once  the  respondent  proceeded to impose a major
\npenalty an enquiry officer has been appointed, a full-fledged enquiry has been
\nconducted, the enquiry report has been submitted  and  on  the  basis  of  the
\nreport  either  the disciplinary authority could either accept the findings or
\ndissent from the findings, for reasons to be recorded by him.  When  once  the
\ndisciplinary  authority  accepts the findings, then there is no requirement at
\nall to issue a show cause as the proceedings may stand concluded in favour  of
\nthe charged  officer.  Per contra, if the disciplinary authority dissents with
\nsome  of  the  findings  reported,  yet,  before  imposing  punishment,   the;
\ndisciplinary authority  should  afford an opportunity.  The point at which the
\ndisciplinary authority makes up his mind to impose the punishment matters  and
\nequally  it  is  open  tot  he disciplinary authority to impose either a major
\npunishment or minor punishment even in a case where proceedings were initiated
\nfor a major punishment.  It is being contended by Mr.Balan  Haridas  that  the
\nproceedings  are  illegal,  violative  of  principles of natural justice while
\nMr.R.Viduthalai, contends that being  a  minor  punishment  and  there  is  no
\nviolation of principles of natural justice, nor the service rules contemplates
\nissue of notice.\n<\/p>\n
        15.   The  contentions  advanced  by  Mr.R.Viduthalai  in this respect
\ncannot be sustained.  If principles of natural justice or the law as laid down
\nby the Supreme Court in ECIL Vs.  B.Karunakar  (1993(4)  SCC  721)  and  other
\nearlier  pronouncements  are not followed, it follows automatically that there
\nis violation of Art.14 as well as service regulations.   It  is  also  rightly
\npointed that service regulations do not exclude the operation of principles of
\nnatural  justice,  nor  it  specifically  provides that it is not necessary to
\nissue a show cause notice or communicate the findings of the delinquent before
\never imposing the penalty and that  too  in  a  case  where  proceedings  were
\ninitiated for imposing a major penalty.\n<\/p>\n
        16.  Chapter 5 of the Service Rules provides for conduct of discipline
\nand appeal.   The  scope of the Rules are set out in Rule 5(1).  Misconduct is
\ndefined in Rule  5(2).    Rule   5(3)   provides   for   penalties.      Rules
\n5(3)(a)(b)(c)(d)  provides  for  imposition  of  warning, censure, stoppage of
\nincrement  with  or  without  cumulative  effect  and   imposition   of   fine
\nrespectively.\n<\/p>\n
        17.   The above are classified as minor penalties, while recovery from
\npay, reduction to a lower rank, suspension, removal from service or  dismissal
\nfrom service  are classified as major penalties.  Rule 5.3 .2 provides for the
\nimposition of major punishments which provides for framing of  charges,  being
\nserved  together  with  a  statement  of  allegations,  appointment of enquiry
\nofficer, calling upon the delinquent to state his  objection  or  explanation,
\nappointment  of  enquiry officer, recording the evidence oral and documentary,
\nexamination and cross examination of witnesses, the conduct of proceedings  by
\nthe  enquiry  officer and the records to be maintained thereon, which includes
\nthe findings as to the charges and grounds thereron.  On  the  basis  of  such
\nreport or proceedings the concerned disciplinary authority has to pass orders.
\nRule 5.5  and  5.7  provide  for  the right of appeal.  Rule 5.12 provides for
\nconsideration of appeal.\n<\/p>\n
        18.  In view of the provisions contained in Chapter 5, it is well open
\nto the disciplinary authority either to agree with the  findings  reported  by
\nthe  enquiry  officer  or  disagree  with  those  findings if the disciplinary
\nauthority disagree with the findings reported by the enquiry officer,  however
\nit has  to  record  reasons  for dissent.  Where the enquiry officer finds the
\ndelinquent guilty and the disciplinary authority agrees with the said finding,
\nno difficulty would arise.  However, if the disciplinary  authority  disagrees
\nwith  the  report  of  “not  guilty” and records a dissenting finding that the
\ncharges are not established,  then  again  it  would  not  give  rise  to  any
\ndifficulty.   But,  when  the  enquiry  officer  recorded  a  positive finding
\nreporting that charges are not established,  but  the  disciplinary  authority
\ndisagree  with  those  findings  and  record his own findings holding that the
\ncharges are established and the delinquent is  liable  to  be  punished,  this
\nwarrants  affording an opportunity of hearing to the delinquent at that stage.
\nHowever, where the rules are silent and the disciplinary authority  also  does
\nnot  given  an  opportunity of hearing to the delinquent and records a finding
\ndifferent from that of the enquiry officer that the charges were  established,
\ndefinitely an opportunity of hearing or raising objection is required, less it
\nwould be  violative  of the principles of natural justice.  If a delinquent is
\nfound not guilty by the enquiry officer, and when the  disciplinary  authority
\ndissents  and  find  the delinquent guilty without affording an opportunity of
\nhearing on the basis of  same  material  on  which  the  enquiry  officer  has
\nreported  not  guilty,  then  the  requirement  is  an  opportunity  should be
\nafforded.  This is the requirement of the principles of natural justice.\n<\/p>\n
        19.  A Three Judges Bench of the Supreme Court on a reference made  to
\nresolve  apparent  difference  in view, had occasion to consider the identical
\npoint and held in Punjab National Bank Vs.  Kunj  Behari  Misra,  reported  in
\n1998 (7) SCC 84 and held thus:-\n<\/p>\n
“16…….The Court explained that the disciplinary proceedings break into two
\nstages.   The  first stage ends when the disciplinary authority arrives at its
\nconclusions on the basis of the evidence, the enquiry officer’s report and the
\ndelinquent employee’s  reply  to  it.    The  second  stage  begins  when  the
\ndisciplinary  authority  decides  to  impose  penalty  on  the  basis  of  its
\nconclusions.  It is the  second  right  which  was  taken  away  by  the  42nd
\nAmendment  but  the  right of the charged officer to receive the report of the
\nenquiry officer was an essential part of the first stage  itself.    This  was
\nexpressed by the Court in the following words:  (SCC p. 754, para 26)
\n“26.  The reason why the right to receive the report of the enquiry officer is
\nconsidered  an essential part of the reasonable opportunity at the first stage
\nand also a principle of natural justice is that the findings recorded  by  the
\nenquiry  officer  form an important material before the disciplinary authority
\nwhich along with the evidence is taken into consideration by it to come to its
\nconclusions.  It is difficult to say in  advance,  to  what  extent  the  said
\nfindings  including  the  punishment,  if any, recommended in the report would
\ninfluence the disciplinary authority  while  drawing  its  conclusions.    The
\nfindings  further  might  have  been recorded without considering the relevant
\nevidence on record, or by misconstruing it or unsupported by it.   If  such  a
\nfinding  is  to  be  one of the documents to be considered by the disciplinary
\nauthority, the principles of natural justice require that the employee  should
\nhave  a  fair  opportunity  to  meet,  explain  and controvert it before he is
\ncondemned.  It is negation of the tenets of  justice  and  a  denial  of  fair
\nopportunity to the employee to consider the findings recorded by a third party
\nlike  the  enquiry officer without giving the employee an opportunity to reply
\nto it.  Although it is true that the disciplinary  authority  is  supposed  to
\narrive  at  its  own  findings  on  the  basis of the evidence recorded in the
\nenquiry, it is also equally true that the disciplinary  authority  takes  into
\nconsideration  the  findings  recorded  by  the enquiry officer along with the
\nevidence on record.  In the circumstances, the findings of the enquiry officer
\ndo constitute an important material before the disciplinary authority which is
\nlikely to influence its conclusions.  If the  enquiry  officer  were  only  to
\nrecord  the  evidence and forward the same to the disciplinary authority, that
\nwould not constitute an additional material before the disciplinary  authority
\nof which  the delinquent employee has no knowledge.  However, when the enquiry
\nofficer goes further and records his findings, as stated above, which  may  or
\nmay  not  be based on the evidence on record or are contrary to the same or in
\nignorance of it, such findings are  an  additional  material  unknown  to  the
\nemployee  but are taken into consideration by the disciplinary authority while
\narriving at its conclusions.  Both the dictates of the reasonable  opportunity
\nas  well  as the principles of natural justice, therefore, require that before
\nthe disciplinary authority  comes  to  its  own  conclusions,  the  delinquent
\nemployee  should  have  an  opportunity  to  reply  to  the  enquiry officer’s
\nfindings.  The  disciplinary  authority  is  then  required  to  consider  the
\nevidence,  the  report  of  the  enquiry officer and the representation of the
\nemployee against it.”\n<\/p>\n
17.These observations are clearly in tune with the observations in Bimal Kumar
\nPandit case quoted earlier and would be applicable at the first stage  itself.
\nThe  aforesaid passages clearly bring out the necessity of the authority which
\nis to finally record an adverse finding to give a hearing  to  the  delinquent
\nofficer.   If  the  enquiry  officer  had  given  an  adverse  finding, as per
\nKarunakar case the first stage required an opportunity  to  be  given  to  the
\nemployee  to  represent  to  the  disciplinary authority, even when an earlier
\nopportunity had been granted to them by the enquiry  officer.    It  will  not
\nstand  to reason that when the finding in favour of the delinquent officers is
\nproposed to be overturned by the disciplinary authority  then  no  opportunity
\nshould be  granted.   The first stage of the enquiry is not completed till the
\ndisciplinary authority has recorded its findings.  The principles  of  natural
\njustice  would  demand that the authority which proposes to decide against the
\ndelinquent officer must give him a hearing.  When the enquiring officer  holds
\nthe  charges  to be proved, then that report has to be given to the delinquent
\nofficer who can make a representation before the disciplinary authority  takes
\nfurther action which may be prejudicial to the delinquent officer.  When, like
\nin the present case, the enquiry report is in favour of the delinquent officer
\nbut  the disciplinary authority proposes to differ with such conclusions, then
\nthat authority which is deciding against the delinquent officer must give  him
\nan opportunity of being heard for otherwise he would be condemned unheard.  In
\ndepartmental proceedings, what is of ultimate importance is the finding of the
\ndisciplinary authority.\n<\/p>\n
18.  :: ::      ::      ::      ::      ::      ::\n<\/p>\n
19…..The  report of the enquiry officer containing its findings will have to
\nbe conveyed and the delinquent officer will have an  opportunity  to  persuade
\nthe  disciplinary authority to accept the favourable conclusion of the enquiry
\nofficer.  The principles of natural justice,  as  we  have  already  observed,
\nrequire  the  authority  which  has  to take a final decision and can impose a
\npenalty, to give an opportunity to the officer charged of misconduct to file a
\nre presentation before the disciplinary authority records its findings on  the
\ncharges framed against the officer.” (Emphasis supplied)
\nThis  pronouncement squarely applies to the facts of this case and there is no
\nescape for the respondents.\n<\/p>\n
        20.  In Yoginath D.Bagde Vs.  State of Maharashtra, reported  in  1999
\n(7) SCC 739, the Apex Court held thus:-\n<\/p>\n
        “30.   Recently,  a three-Judge Bench of this Court in Punjab National
\nBank v.  Kunj Behari Misra relying upon the earlier decisions of this Court in
\nState of Assam v.  Bimal Kumar Pandit, Institute of Chartered  Accountants  of
\nIndia<\/a> v.   L.K.    Ratna  as  also the Constitution Bench decision in Managing
\nDirector, ECIL v.  B.  Karunakar and the<\/a> decision in Ram Kishan v.   Union  of
\nIndia<\/a> has held that:  (SCC p.  96, para 17)
\n“It will not stand to reason that when the finding in favour of the delinquent
\nofficers  is  proposed  to be overturned by the disciplinary authority then no
\nopportunity should be granted.    The  first  stage  of  the  enquiry  is  not
\ncompleted till  the  disciplinary  authority  has  recorded its findings.  The
\nprinciples of natural justice would demand that the authority  which  proposes
\nto decide  against  the  delinquent officer must give him a hearing.  When the
\nenquiring officer holds the charges to be proved, then that report has  to  be
\ngiven  to  the  delinquent  officer  who  can make a representation before the
\ndisciplinary authority takes further action which may be  prejudicial  to  the
\ndelinquent officer.   When, like in the present case, the enquiry report is in
\nfavour of the delinquent officer but the disciplinary  authority  proposes  to
\ndiffer  with  such  conclusions, then that authority which is deciding against
\nthe delinquent officer must  give  him  an  opportunity  of  being  heard  for
\notherwise he would be condemned unheard.  In departmental proceedings, what is
\nof ultimate importance is the finding of the disciplinary authority.”
\nThe Court further observed as under:  (SCC p.   96, para 18)
\n“When the enquiry is conducted by the enquiry officer, his report is not final
\nor conclusive  and  the  disciplinary proceedings do not stand concluded.  The
\ndisciplinary proceedings stand concluded with the decision of the disciplinary
\nauthority.  It is the disciplinary authority which can impose the penalty  and
\nnot the  enquiry  officer.    Where the disciplinary authority itself holds an
\nenquiry, an opportunity of hearing has  to  be  granted  by  him.    When  the
\ndisciplinary  authority  differs  with  the  view  of  the enquiry officer and
\nproposes to come to a different conclusion, there is no reason as  to  why  an
\nopportunity of  hearing  should  not  be  granted.  It will be most unfair and
\niniquitous that where the charged officers succeed before the enquiry officer,
\nthey are deprived of representing to the disciplinary  authority  before  that
\nauthority  differs  with  the  enquiry officer’s report and, while recording a
\nfinding of guilt, imposes punishment on the officer.  In our opinion,  in  any
\nsuch  situation,  the  charged  officer  must have an opportunity to represent
\nbefore the disciplinary authority before final findings  on  the  charges  are
\nrecorded and punishment imposed.”\n<\/p>\n
The Court further held that the contrary view expressed by this Court in State
\nBank of India v.  S.S.  Koshal and State of Rajasthan<\/a> v.  M.C.  Saxena was not
\ncorrect.\n<\/p>\n
31.   In view of the above, a delinquent employee has the right of hearing not
\nonly during the enquiry proceedings conducted by the enquiry officer into  the
\ncharges levelled against him but also at the stage at which those findings are
\nconsidered   by  the  disciplinary  authority  and  the  latter,  namely,  the
\ndisciplinary authority forms a tentative opinion that it does not  agree  with
\nthe findings recorded by the enquiry officer.  If the findings recorded by the
\nenquiry  officer are in favour of the delinquent and it has been held that the
\ncharges are not proved, it is all the more necessary to give an opportunity of
\nhearing to the delinquent employee  before  reversing  those  findings.    The
\nformation of  opinion  should be tentative and not final.  It is at this stage
\nthat the delinquent employee should be given an opportunity of  hearing  after
\nhe is informed of the reasons on the basis of which the disciplinary authority
\nhas proposed to disagree with the findings of the enquiry officer…..”\n<\/p>\n
        21.   While respectfully following the above pronouncements this court
\nholds that when the disciplinary authority has reported that the petitioner is
\nnot guilty of the imputations and it had taken a decision without affording an
\nopportunity of hearing or state objections to the petitioner, at the stage  at
\nwhich  it  propose  to  differ  with  the findings of the enquiry officer, the
\nproceedings stand vitiated.\n<\/p>\n
        22.  In the present case  the  petitioner  is  being  accused  of  his
\nfailure to  discharge  the  responsibility or negligence\/neglect of duty.  But
\nthe enquiry officer has in  effect  exonerated  the  petitioner.    Thereafter
\nwithout  affording  an  opportunity, the disciplinary authority dissented from
\nthe  findings  reported  and  found  the  petitioner  guilty  as  against  the
\npetitioner and concluded thus:-\n<\/p>\n
        “After  taking  into  consideration,  the  facts  and  perusal  of the
\nconnected documents, Enqiry Report\/findings, including the explanation offered
\nby  Th.M.Venkitachalam,  Manager  (Tech-Mech)  and  on  the   basis   of   the
\ncircumstantial  evidences  both  Th.M.Venkitachalam,  Manager  (Tech-Mech) and
\nTh.M.Antonysam, Dy.Manager (Process Control-Kiln) (i\/c) who are  the  Head  of
\nDepartment  and  Section  Head  are  vicariously  liable for the fire accident
\ncaused due to their negligence and neglect of work.  Hence, as per Rule 5.3(c)
\nof the Service Rules of Tancem, I give an order that the annual  increment  of
\nTh.M.Venkitachalam,  Manager ( Tech-Mech) is stopped for a period of two years
\nwith cumulative effect.  He is also severely warned to guard  himself  against
\nsuch lapses in future and this will be recorded in his personal file.”\n<\/p>\n
        23.   It  is  seen from the above passage, the the petitioner had been
\nheld vicariously liable for the fire accident caused due to alleged negligence
\nand neglect of work by unknown or undetedcted.  But the charges of  negligence
\nand  neglect of duty (charge No.2), the petitioner had been exonerated as seen
\nfrom the enquiry report.  The question  of  vicarious  liability  is  not  the
\ncharge for  which  the  petitioner  was proceeded.  Nor such a charge has been
\nframed.  It is also clear from the conclusion of  the  disciplinary  authority
\nthat  the  petitioner has been held vicariously liable which is not the charge
\nat all as it is different from negligence or neglect of  duty  or  failure  to
\nsupervise.   Vicarious  liability  was  not  the  subject  matter of charge or
\nimputation.  Nor it could be the subject matter.  That apart,  the  petitioner
\nhas  been  found guilty of misconduct falling under Rule 5.3(c) of the Service
\nRules.  The definition what is “misconduct”, “negligence or neglect  of  work”
\nfall under the category of misconduct as defined in Rule 5.2(k).  The entirety
\nof Rule 5.3 do not take in vicarious liability as misconduct and it is not one
\nof the misconduct which is enumerated.  What has been charged is negligence or
\nneglect of  work which has resulted in the accident of fire.  But as seen from
\nthe above passage as against the petitioner who was the Manager, there  is  no
\nfinding of  negligence  or  neglect of work.  Therefore the very conclusion is
\nbased on surmises and not on any materials.    Even  on  ground  of  vicarious
\nliability also  there  cannot  be  any  action  under  the Service Rules.  The
\npetitioner has been found guilty of alleged lapse or vicarious  liability  for
\nwhich no  charge has been framed.  That being so, the very conclusion that the
\npetitioner is guilty of charges and therefore he is imposed with  the  penalty
\nof  stoppage  of  increment  also  cannot  be sustained as it demonstrates non
\napplication of mind besides arbitrary exercise of power.\n<\/p>\n
        24.  The petitioner being found  guilty  of  even  a  portion  of  the
\ncharges  or imputations, as held by the Apex Court, the petitioner should have
\nbeen afforded an opportunity.  That apart, when the Domestic  Enquiry  Officer
\nexonerated  the petitioner, before dissenting, an opportunity should have been
\nafforded to the petitioner.  Thus there is a failure to follow the  principles
\nof natural  justice.    The  said  failure  has resulted in serious prejudice,
\nhardship and substantial loss to the petitioner.\n<\/p>\n
        25.  The principles of natural justice as has been held by the  catena
\nof decisions of the Apex Court are not excluded by the service rules governing
\nthe service.    Though  the  stoppage  of increment with or without cumulative
\neffect is a minor punishment,  in  the  present  case,  the  proceedings  were
\ninitiated for  imposing  major penalty in terms of Rule 5.3.2.  It may be that
\nultimately, the disciplinary authority has imposed  a  minor  punishment,  but
\ntill  the  stage of imposition or till the disciplinary authority makes up his
\nmind to impose any one of the penalty either minor or major  under  Rule  5.3,
\nthe  proceedings has to be in terms of Rule 5.3.2 namely for major penalty for
\nall purposes.  For any reason if the disciplinary authority decides to convert
\nthe proceedings from 5.3.2 to 5.3.1, at least, a notice should have been given
\nto the delinquent indicating that the disciplinary authority has converted the
\nproceedings.  In fact, even in respect of minor penalty, in terms of Rule 5.3,
\nwhat is contemplated is “found guilty of any misconduct on the  basis  of  the
\nrecords available   or   enquiry”.     Even  in  respect  minor  penalty  also
\napplicability of principles of natural justice has  not  been  excluded.    An
\nelaborate  procedure  is  prescribed  in  Rule  5.3  for  imposition  of major
\npenalties.   But  in  respect  of  minor  penalties  no  procedure  has   been
\nprescribed.  That does not mean rules exclude principles of natural justice or
\nwhen  delinquent  demands  an  enquiry,  the  same could be denied as Rule 5.3
\ncontemplates  an  enquiry  even  in  respect  of  proceedings  initiated   for
\nimposition of minor penalty.  Therefore Rule 5.3 has been violated<\/p>\n
        26.  According to Mr.R.Viduthalai, learned counsel for the respondent,
\nno  prejudice  has  been  caused  to  the  petitioner as ultimately penalty of
\nstoppage of increment which is a minor penalty for one year has been  imposed.
\nAccording  to  Mr.R.Viduthalai,  for imposition of minor penalty, a show cause
\nnotice calling upon the delinquent to state his objections alone is sufficient
\nand nothing prevents the delinquent  officer  even  if  he  is  proceeded  for
\nimposition  of  minor penalty to seek for an enquiry, in case if he denies the
\nimputation or the gravity of the misconduct warrants an  enquiry.    Normally,
\nevery  service  rules provides for setting out the imputations, opportunity of
\nbeing heard to state  objections  and  thereafter  to  pass  orders  when  the
\nproposal is  to  impose  minor penalty.  In this case the proposal was not for
\nimposition of minor penalty, but, it is for major penalty.   That  apart,  the
\nfinal  conclusion  is  not  in  respect of what has been the subject matter of
\nenquiry, namely the charge or imputations forming the part of the charges, but
\nthe petitioner has been found guilty of being vicariously liable.    Therefore
\nassuming  for purpose of argument that the ultimate order is for imposition of
\nminor punishment and therefore no violation of principle natural justice could
\nbe complained of, in the considered view of this  court  the  same  cannot  be
\nsustained  as  the petitioner has been found guilty of vicarious liability for
\nwhich no notice has been issued, nor he was put on notice.   Here  again,  the
\nprinciples of natural justice has been violated.  So also Rule 5.3.\n<\/p>\n
        27.   The learned counsel for the petitioner contended that principles
\nof natural justice has no application  as  already  the  petitioner  had  been
\npermitted  to  retire,  he  has  received  all the terminal benefits which are
\nmaximum and therefore even assuming natural justice has been  violated  is  of
\nlittle consequence.   This  again  cannot be countenanced.  The petitioner was
\nthe General Manager of the Unit at Aalangulam.  To hold that he is vicariously
\nliable also is not an ordinary accusation,  but  it  amounts  to  finding  the
\npetitioner  guilty,  being negligent for the alleged accident and therefore it
\nfollows that a serious prejudice is caused to the petitioner by not  following
\nthe principles of natural justice.  The contention of Mr.R.Viduthalai that the
\nnon  furnishing  of enquiry report would not be fatal as there is no prejudice
\nand that every infraction of statutory provision or rules or  regulation  does
\nnot render  such  decision  fatal.    The  learned  counsel  relied  upon  the
\npronouncement of STATE OF U.P.  V.  HARENDRA ARORA<\/a> reported in 2001(3) CTC 176
\n(S.C).  The  fact  of  this  case  is  clearly  distinguishable  to  the  said
\npronouncement.  In the said pronouncement the Supreme Court after referring to
\nthe seven questions enunciated earlier in 1988 (3) SCC 600 held thus:-\n<\/p>\n
        “If  after  hearing  the  parties,  the  Court\/Tribunal  comes  to the
\nconclusion that the non-supply of the report would have made no difference  to
\nthe ultimate findings and the punishment given, the Court\/ Tribunal should not
\ninterfere with  the  order  of  punishment.    The  Court\/ Tribunal should not
\nmechanically set aside the order of punishment on the ground that  the  report
\nwas not  furnished  as  is  regrettably being done present.  The Courts should
\navoid resorting to short cuts.  Since it is the  Courts\/Tribunals  which  will
\napply  their  judicial mind to the question and give their reasons for setting
\naside or not setting aside or not setting aside the order of  punishment  (and
\nnot  any  internal  appellate or revisional authority), there would be neither
\nbreach of the principles of natural justice nor a  denial  of  the  reasonable
\nopportunity.   It  is  only if the Court\/Tribunal finds that the furnishing of
\nthe report would have made a difference to the result  in  the  case  that  it
\nshould set aside the order of punishment.”\n<\/p>\n
        28.   On  the  facts of this case, this court holds that non supply of
\nreport has prejudiced the petitioner and the petitioner being found guilty  of
\nimputation,  which  is different from those charges for which proceedings were
\ninitiated.  It is not  as  if  mere  punishment  alone  that  would  save  the
\nrespondent  from  furnishing  copy  of  the  report or issuing a notice before
\ndissenting from the findings reported or imposing a punishment in  respect  of
\nimputations for  which the delinquent was not proceeded at all.  Therefore the
\ncontention of Mr.R.  Viduthalai that the principles of  natural  justice  need
\nnot been followed cannot be countenanced.\n<\/p>\n
        29.   The  appellate  authority  also  merely  confirmed  the order of
\npunishment and it has failed to advert to or consider the contentions urged by
\nthe petitioner in the appeal petition.  Though  at  the  hearing  one  of  the
\ncontentions  advanced  being that the very same Chairman cum Managing Director
\nhas taken part in the Board Proceedings while deciding the appeal as  part  of
\nthe  Board  of  Directors,  as  such  a  contention has not been raised in the
\naffidavit, this court will not be justified in examining this matter.  Further
\nin the light of the above discussions disposal of the appeal by the  appellate
\nauthority  is also not in accordance with Rule 5.12 as the appellate authority
\nhas not considered neither Rule 5.12 (a) or  (b).    This  vitiates  both  the
\nproceedings.\n<\/p>\n
        30.   In  the  foregoing  circumstances  and in the light of the above
\ndiscussions, all the  points  (a)  to  (e)  are  answered  in  favour  of  the
\npetitioner.  In  the  result,  the  writ  petition  is  allowed.  The impugned
\nproceedings of the respondents 1 and 2 are quashed.  The  parties  shall  bear
\ntheir respective costs.\n<\/p>\n
Index:yes
\nInternet:Yes
\ngkv<\/p>\n
To<\/p>\n
1.  Tamil Nadu Cements Corporation
\nrep.  by its Chairman and Managing Director
\nLLA Building, 735, Anna Salai
\nChennai-2<\/p>\n
2.  Tamil Nadu Cements Corporation
\nrep.  by its Board of Directors
\nLLA Building, 735, Anna Salai
\nChennai-2<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Venkatachalam vs Tamil Nadu Cements Corporation on 28 February, 2003 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-20117","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Venkatachalam vs Tamil Nadu Cements Corporation on 28 February, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-venkatachalam-vs-tamil-nadu-cements-corporation-on-28-february-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Venkatachalam vs Tamil Nadu Cements Corporation on 28 February, 2003 - 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