Allowed

M. Ochappan, S/O.Mayandi, v. the Superintending Engineer

Madras HC17 Nov 2017WP(MD)/2202/2013

Case brief

AI extract

What is this about?

Disciplinary punishment withholding increments with cumulative effect was challenged after criminal acquittal. The court quashed the impugned orders, permitted proceedings confined to the independent fourth charge within three months, and made service benefits dependent on the department's decision and any resulting conclusion.

What did the court decide?

Impugned orders quashed; proceedings permitted only on the fourth charge within three months of receipt of the order, with service benefits dependent on the departmental decision and outcome.

M. Ochappan, S/O.Mayandi, Vs the Superintending Engineer — Service and Employment | Madras HC (2017)

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ORDER RESERVED ON : 12.01.2017 ORDER DELIVERED ON : 17.11.2017

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 17.11.2017

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CORAM :

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THE HONOURABLE MR. JUSTICE R.SURESH KUMAR

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W.P.(MD).No.2202 of 2013

M.Ochappan

... Petitioner

Vs.

1.The Superintending Engineer, Tamil Nadu Electricity Board, Dindigul distribution circle, Dindigul – 624 002.

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2.The Executive Engineer (East), Tamil Nadu Electricity Board, Town, Battalagundu – 624 702, Dindigul District. ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of certiorarified Mandamus calling for the records pertaining to the impugned orders of the 2^nd respondent in Ku.Aa.No. se po /va. ku / Ne.Pe / Ne.Uo 3 / Ko. Thani / A.No. 679 / dated 26.2.2008 and 1^st respondent in Ku.Aa.No.699/615 / Ne. Pe. 3 /Ne Uo 2/ Ko. Thani /2009 / dated 21.12.2009 and Ku.Aa.No.20/247 / Ne.Pe.3/Ne. Uo 2/ 2012-1 / dated 24.9.2012 and quash the same and consequently directing the 2^nd respondent to disburse all the monetary benefits, attendant benefits to the petitioner.

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For Petitioner : Mr.R.Suresh Kumar For Respondents : Mr.S.Dayalan

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O R D E R

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https://hcservices.ecourts.gov.in/hcservices/ The prayer in this writ petition is for a writ of certiorarified mandamus calling for the records pertaining to the

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impugned orders of the 2^nd respondent in Ku.Aa.No. se po /va. ku / Ne.Pe / Ne.Uo 3 / Ko. Thani / A.No. 679 / dated 26.2.2008 and the proceedings of the 1^st respondent in Ku.Aa.No.699/615 / Ne. Pe. 3 / Ne Uo 2/ Ko. Thani /2009 / dated 21.12.2009 and Ku.Aa.No.20/247 / Ne.Pe.3/Ne. Uo 2/ 2012-1 / dated 24.9.2012 and quash the same and consequently direct the 2^nd respondent to disburse all the monetary benefits, attendant benefits to the petitioner.

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The necessary facts which are required to be considered for disposal of this writ petition are as follows:

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(i) The case of the petitioner is that he was appointed as helper at the respondents department on 01.05.1999. Subsequently, he was promoted as Commercial Assistant and Commercial Inspector on 05.02.2003 and 14.04.2007 respectively. Thereafter, the petitioner was further promoted as Foreman Grade-I on 24.03.2012 and in that position, the petitioner had been working till he filed this writ petition.

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(ii) While so, the petitioner was suspended by the second respondent on 19.6.2007 on the basis of the complaint given by the then Junior Engineer under whom, the petitioner was working, namely Thangasolaiammal. In view of the said complaint given by the Junior Engineer, a criminal case had also been filed against the petitioner in C.C.No.298 of 2007 on the file of the Judicial Magistrate, Nilakkottai.

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(iii) Thereafter, during the suspension, the petitioner had been issued a show cause notice dated 30.06.2007, seeking explanation. In response to the same, the petitioner had given explanation on 27.7.2007. However, the second respondent, thereafter, framed four charges against the petitioner by his charge memo, dated 03.08.2007 and the same was served on the petitioner. On receipt of the charge memo, the petitioner had given explanation on 21.8.2007 denying the four charges framed against the petitioner. However, not satisfying with the explanation given by the petitioner, enquiry was ordered thereby, an Enquiry Officer was appointed before whom enquiry was conducted.

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(iv) It is the further case of the petitioner that, during the enquiry, the petitioner had sought for certain documents from the Enquiry Officer. Since those documents were not supplied to the petitioner, he was not able to defend his case properly before the Enquiry Officer. However, the Enquiry Officer conducted and concluded the enquiry, ex parte and seems to have filed a report to the Disciplinary Authority i.e, the second respondent holding that the four charges framed against the petitioner, had been https://hcservices.ecourts.gov.in/hcservices/ proved.

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(v) Thereafter, on the basis of the Enquiry Officer's report,

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a further show cause notice was issued to the petitioner on 24.1.2008. Thereafter, on the basis of the Enquiry Officer's report, the second respondent has imposed the punishment by order dated 26.2.2008 imposing the punishment of stoppage of increment for three years with cumulative effect on the petitioner.

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(vi) On receipt of the said punishment order, the petitioner had once again given his explanation and defence to state that the punishment imposed against the petitioner was not proper and thereby he made an appeal before the Appellate Authority i.e., the first respondent. However, the first respondent, without considering the merits of the issue as well as the defence raised by the petitioner had passed his order on 21.12.2009 by which, he has confirmed the order of punishment inflicted on the petitioner.

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(vii) It is the further case of the petitioner that, in the meanwhile, the criminal case filed in C.C.No.298 of 2007 on the file of the Judicial Magistrate, Nilakkottai was taken up for trial and after completion of trial, the Judgment in the said criminal case was delivered by the trial Court on 28.9.2010. The trial Court by the said Judgment has acquitted the petitioner, as the prosecution was not able to prove the charges framed against the petitioner.

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(viii) Since the criminal court has acquitted the petitioner on the similar set of charges, as against which, the departmental enquiry proceeded and the punishment was inflicted against the petitioner, the petitioner had given a request to the respondents on 23.6.2011, 05.07.2011 and 12.07.2011 to conduct a de nova enquiry by the Enquiry Officer mainly on the basis of the acquittal given by the criminal court against the petitioner. In this regard, the petitioner had given a detailed request to the first respondent on 18.9.2011 through the Enquiry Officer to conduct a de nova enquiry by supplying all those documents to the petitioner. However, the said request of the petitioner was rejected by the first respondent vide his order dated 24.9.2012. Challenging the order of punishment imposed by the second respondent vide his order dated 26.2.2008 as confirmed by the first respondent in his order, dated 21.12.2009 as well as the rejection order made by the first respondent vide his order dated 24.9.2012, the petitioner has approached this Court by filing this writ petition with the aforesaid prayer.

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On behalf of the respondents, counter affidavit has been filed, where the service particulars of the petitioner has been given, according to which, the petitioner was appointed as helper on the respondents department on 01.05.1999. Thereafter, he was promoted to the cadre of Commercial Assistant and Commercial https://hcservices.ecourts.gov.in/hcservices/ Inspector and thereafter, as Foreman Grade-I on 05.02.2003. The counter affidavit would further state that, it was a complaint given by woman officer / Junior Engineer under whom the petitioner

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was working in the year 2007. According to the said complaint, on 15.6.2007 at about 1.30 p.m., the petitioner deliberately failed to carry out the instructions of the said Junior Engineer, who was the superior officer of the petitioner. Besides, the petitioner behaved disorderly, riotously and was passing disparaging remarks against the woman superior officer and indulging in the act of sexual harassment by uttering sexually coloured remarks in the work place. The said matter was published in the local newspaper. Thereafter, a complaint was lodged at the Viruveedu Police Station against the petitioner, which was registered as FIR.No. 6A/07 on 19.06.2007 and the said woman officer had also made complaint against the petitioner to the higher officials.

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The counter would further state that, based on the said complaint given by the woman officer, a discreet enquiry was conducted based on which, four charges had been framed against the petitioner vide charge memo dated 03.08.2007. Since explanation given by the petitioner to the said charges was not satisfactory to the respondents, an enquiry was ordered by appointing an Enquiry Officer.

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The counter would further state that the Enquiry Officer has conducted enquiry on 05.10.2017, 14.10.2007 and 24.10.2007.

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The counter further states that the petitioner participated in the enquiry on the above dates, however requested to postpone the enquiry on the ground that the union representative did not attended the enquiry. Thereafter, the petitioner attended the enquiry on 29.11.2007 and had raised some flimsy objections such as cross-examine the Assistant Executive Engineer, Batlagundu as Management witness. However, subsequently the petitioner did not chose to participate in the next enquiry, fixed on 06.12.2007 as he had proceeded on medical leave from 01.12.2007 to 31.12.2007. The petitioner did not also attended the enquiry which was subsequently fixed to be held on 04.01.2008. Thereafter, to give a last chance, the date of enquiry was fixed on 11.01.2008 and on the said date also, since the petitioner did not attend the enquiry, the Enquiry Officer proceeded with the enquiry and concluded the same as ex parte .

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The counter affidavit would have further averments that on the basis of the enquiry, the Enquiry Officer had given his report by holding that all the four charges framed against the petitioner, were proved. Thereafter, explanation was called for, by supplying the copy of the enquiry report to the petitioner and thereafter, since the four charges framed against the petitioner were proved as per the Enquiry Officer's report, the second respondent being the disciplinary authority has imposed a https://hcservices.ecourts.gov.in/hcservices/ punishment of stoppage of increment for three years with cumulative effect by his order, dated 26.2.2008.

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The counter further states that thereafter, as against the said order of punishment inflicted against the petitioner, he had preferred an appeal to the first respondent on 03.03.2008 and the said appeal was also considered and rejected by the first respondent by order dated 21.12.2009.

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The counter also states that thereafter, since the criminal case against the petitioner ended in acquittal by Judgment of the trial Court, dated 28.9.2010 on the ground that the charges framed against the petitioner by the prosecution was not proved beyond doubt, on the ground of benefit of doubt, the petitioner was acquitted. Therefore, on the basis of such acquittal, the petitioner had once again approached the respondents for ordering de nova enquiry of the departmental proceedings. Since the departmental proceedings was conducted and concluded and based on the Enquiry Officer's report, the punishment was awarded against the petitioner and the same was confirmed by the Appellate Authority and also for the reason that the criminal court has given acquittal to the petitioner only with regard to the charge against the petitioner pertaining to the act of misbehaving with the higher woman officer and insofar as, the other charges are concerned, it did not have any connection whatsoever with the criminal case which was ended in acquittal, on that basis, the request of the petitioner to conduct a de nova enquiry was rejected by the first respondent.

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I have heard Mr.R.Suresh Kumar, the learned counsel appearing for the petitioner as well as Mr. S.Dayalan, the learned counsel appearing of the respondents.

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The four charges framed against the petitioner as per charge memo, dated 03.08.2007 are extracted hereunder :

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Fw;wr;rhl;L 1 15/06/2007 md;W kpd; ,izg;g[ vz;/250 Social Organisation ypUe;j te;j Efh;nthh; JUg;gpoj;j kpd; fk;gj;ij khw;wpj;ju nfhhp kD mspj;jjhft[k; clnd mijg;bgw;W , skpd; bghwpahsh; ifbahg;gk; ,l;L kjpg;gPL jahh; bra;a Twpa [s;shh;/ mjw;F jh';fs; kjpg;gPL jahh; bra;a eP';fs; vd;d cjtp bra;fpwPh;fs; vd nfl;Ls;sPh;fs;/ ,t;thW ngrpaJ jh';fs; nkyjpfhhpapd; epahakhd Mizf;F ntz;Lk; vd;nw fPH;goahky; ,Ue;Js;sPh;fs; vd;gJ g[ydhfpwJ/ , Jthhpa vGj;Jj;Jiw my;yhj gzpahsh;fSf;fhd epiy Miz vz;/30 (i) d;go Fw;wkhFk;/

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https://hcser vices.ecourts.gov.in/hcservices/

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Fw;wr;rhl;L	;;; 2 Fw;wr;rhl;L 1y; bjhptpf;fg;gl;Ls;s epfH;t[fSf;F gpd;g [ mYtyf neuj;jpy; ahUk; ,y;yhj rkaj;ij gad;gLj;jp jh';fs; m`wpid thh;j;ijfshy; j';fs; bgz; nkyjpfhhpia 'eP'brhy;fpw ntiyia bra;a ntz;Lbkd;why;'ehd'brhy;fpw thh;j;ijfSf;F fl;Lg;gl ntz;Lk;/ 'eP'vdf;F vd;d bra;fpwha; ?vd; tpUg;gj;jpw;F ,z';fkWf;fpwha;/ Mjyhy;'eP' ntiy VJk; bra;a KoahJ vd;W mrp';fkhd kw;Wk; mUtUg;ghd thh;j;ijfshy; ngrpa[s;sPh;fs;/ nkYk; j';fs; U:k;kpy; kl;Lbkd;d bra;bghwpahsh; tj;jyFz;L mYtyfj;jpd; Kd;g[ midth; Kd;dpiyapYk; nftyg;gLj;Jntd;/ eP vg;go jiyepkph;e;J elg;gha; vd ghh;fpnwd; vd;Wk; vd; tpUg;gj;jpw;F ,z';fhj cd;id mrp';fg;gLj;JtJ jhd; vd; ntiy. ,ijbay;yhk; cd;dhy; btspna brhy;yKoahky; ePna vd;iwf;fhtJ vd; tpUg;gj;jpw;F ,z';fp tUtha; vd;W nftykhf thh;j;ijfis;g ngrp mog;gjw;Fk; kw;Wk; mrp';fkhd Kiwapy; elg;gjw;Fk; Kaw;r;rpj;J cs;sPh;fs;/ ,r;brayhdJ mYtyfg; gzp neuj;jpy; xGf;fkw;w Kiwapy; ele;Js;sPh;fs; vd;gJ g[ydhfpwJ/ ,J thhpa vGj;Jj;Jiway;yhj gzpahsh;fSf;fhd epiy Miz vz;/30(ix) d;go Fw;wkhFk;/
Fw;wr;rhl;L	;;; 3 jpUkjp/nrh/j';fr;nrhiyak;khs;. ,skpd; bghwpahsh; Kjy;epiy tpUtPL mth;fs; nkw;Twg;gl;l rk;gt';fs; Fwpj;J fhty; epiyak; tpUtPl;oy; g[fhh; mspj;J Kjy; jfty; mwpf;if vz;/69-2007 ehs;/19/6/2007d;go gjpt[ bra;ag;gl;Ls;sJ/ , t;thW thhpag; gzpahsh; fhty; epiyaj;jpy; fLikahd Fw;wtpay; Fw;wj;jpw;fhd g[fhUf;F cs;shfp ,Ug;gJ thhpa ew;bgaUf;F ,Hpt[ cz;lhf;Fk; brayhFk;/ ,r;brayhdJ thhpa vGj;Jj;Jiway;yhj gzpahsh;fSf;fhd epiy Miz vz;/30 (XXiii) d;go Fw;wkhFk;/

Fw;wr;rhl;L

;;; 2
Fw;wr;rhl;L 1y; bjhptpf;fg;gl;Ls;s epfH;t[fSf;F gpd;g
[ mYtyf neuj;jpy; ahUk; ,y;yhj rkaj;ij gad;gLj;jp
jh';fs; m`wpid thh;j;ijfshy; j';fs; bgz; nkyjpfhhpia
'eP'brhy;fpw ntiyia bra;a ntz;Lbkd;why;'ehd'brhy;fpw
thh;j;ijfSf;F fl;Lg;gl ntz;Lk;/
'eP'vdf;F vd;d
bra;fpwha; ?vd; tpUg;gj;jpw;F ,z';fkWf;fpwha;/ Mjyhy;'eP'
ntiy VJk; bra;a KoahJ vd;W mrp';fkhd kw;Wk;
mUtUg;ghd thh;j;ijfshy; ngrpa[s;sPh;fs;/ nkYk; j';fs;
U:k;kpy;
kl;Lbkd;d
bra;bghwpahsh;
tj;jyFz;L
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midth;
Kd;dpiyapYk;
nftyg;gLj;Jntd;/ eP vg;go jiyepkph;e;J elg;gha; vd
ghh;fpnwd; vd;Wk; vd; tpUg;gj;jpw;F ,z';fhj cd;id
mrp';fg;gLj;JtJ jhd; vd; ntiy. ,ijbay;yhk; cd;dhy;
btspna brhy;yKoahky; ePna vd;iwf;fhtJ vd; tpUg;gj;jpw;F
,z';fp tUtha; vd;W nftykhf thh;j;ijfis;g ngrp
mog;gjw;Fk; kw;Wk; mrp';fkhd Kiwapy; elg;gjw;Fk;
Kaw;r;rpj;J cs;sPh;fs;/ ,r;brayhdJ mYtyfg; gzp neuj;jpy;
xGf;fkw;w Kiwapy; ele;Js;sPh;fs; vd;gJ g[ydhfpwJ/ ,J
thhpa vGj;Jj;Jiway;yhj gzpahsh;fSf;fhd epiy Miz
vz;/30(ix) d;go Fw;wkhFk;/

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jpUkjp/nrh/j';fr;nrhiyak;khs;. ,skpd; bghwpahsh; Kjy;epiy
tpUtPL mth;fs; nkw;Twg;gl;l rk;gt';fs; Fwpj;J fhty;
epiyak; tpUtPl;oy; g[fhh; mspj;J Kjy; jfty; mwpf;if
vz;/69-2007 ehs;/19/6/2007d;go gjpt[ bra;ag;gl;Ls;sJ/ ,
t;thW thhpag; gzpahsh; fhty; epiyaj;jpy; fLikahd
Fw;wtpay; Fw;wj;jpw;fhd g[fhUf;F cs;shfp ,Ug;gJ thhpa
ew;bgaUf;F ,Hpt[ cz;lhf;Fk; brayhFk;/ ,r;brayhdJ thhpa
vGj;Jj;Jiway;yhj gzpahsh;fSf;fhd epiy Miz vz;/30
(XXiii) d;go Fw;wkhFk;/

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https://hcservices.ecourts.gov.in/hcservices/

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Fw;wr;rhl;L 4 j';fsJ gzp ePf;fk; Mizia rhh;g[ bra;tjw;F ,skpd; bghwpahsh; Kjy;epiy (bghWg;g[) tpUtPL mth;fs; tpUtPL mYtyfj;jpw;F te;;j nghJ jh';fs; mYtyfj;jpy; ,y;iy/ clnd jh';fs; tpUtPl;oy; btspapy; v';Fk; cs;sPh;fsh vd njog;ghh;j;jnghJk; v';F cs;sPh;fs; vd fz;Lgpof;f ,aytpy;iy/ gpd;g[ jh';fs; tj;jyFz;L fhe;jpefh; f/vz;/18/13/15 cs;s tPl;oy; FoapUg;gjhf bjhpa te;jJ/ ,e;j tPl;ow;F ,skpd; bghwpahsh; Kjy; epiy (bghWg;g[) tpUtPL brd;W te;jnghJ m';Fk; jh';fSk; ntW ahUk; ,y;yhj epiyapy; tPL g{l;lg;gl;L ,Ug;gJ fz;lwpag;gl;lJ/ ,e;epiyapy; j';fsJ jw;fhypf gzp ePf;fk; Miz ,e;j tPl;od; fjtpy; rhl;rpfs; Kd;dpiyapy; xl;lg;gl;lJ/ nkYk; ,e;j Kfthpf;F xg;g[if ml;ila[ld; gjpt[ jghypy; m"; ry;Jiw K:yk; mDg;gg;gl;l jw;fhypf gzp ePf;f Miz nkw;go Kfthpapy; ahUk; ,y;iy vd Fwpg;gpl;L jpUk;gp tug;gl;Ls;sJ/ nkw;Fwpg;gplg;gl;L cs;sitfspypUe;J jh';fs; j';fsJ jiyikaplkhd tpUtPl;oy; ,y;yhky; ,Ue;Js;sJ/ bjhpa tUfpwJ/ nkYk; nkyjpfhhpapd; Kd; mDkjp bgwhky; jiyikaplj;jpy; ,Ue;J btspapy; brd;Ws;sPh;fs; vd;gJ g[ydhfpwJ/ ,r;brayhdJ thhpa vGj;Jj;Jiway;yhj gzpahsh;fSf;fhd epiyahiz vz;/30 (xxviii)d;go Fw ;wkhFk;/

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As against these charges, the Enquiry Officer was appointed and he proceeded to conduct the enquiry.

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It was claimed by the petitioner that, since he asked for certain documents to be furnished and the same since were not furnished, he was not able to attend the enquiry. Assuming that, if the petitioner was not furnishing certain documents, which he asked for from the Enquiry Officer, the petitioner could have approached the higher forums to seek redressal of his grievance, instead, the petitioner after attending the enquiry for some dates had been continuously absent for the subsequent dates of enquiry. Even though, he agreed to appear for enquiry on 04.01.2008, he did not appear and thereafter, to give the petitioner a chance, it was adjourned to 11.1.2008 and on the said date also, the petitioner, admittedly, did not appear before the Enquiry Officer. Therefore, the Enquiry Officer had proceeded with the enquiry ex parte and concluded the same. Therefore, the act of the Enquiry Officer in proceeding with the enquiry ex parte cannot be found fault with, as according to the records, the petitioner had been given adequate chance to appear before the Enquiry Officer.

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However, as per the Enquiry Officer's report, consisting https://hcservices.ecourts.gov.in/hcservices/ of two pages (as has been filed by the petitioner in the typed set of papers in support of his writ petition), the Enquiry Officer

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after having stated about the dates of enquiry, has recorded his findings in the following fashion, which are reproduced hereunder to appreciate the issue in better prospective:

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“bjhlu;e;J tprhuiz bra;tjw;bfd cjtpbraw;bghwpahsu;/ epyf;nfhl;il mtu;fshy; rk;kd; mDg;gg;gl;lJ. tprhuiz ehs; 4/1/2008y; tprhuiz bra;jpl cjtpbghwpahsu; tpUtPL bry;yg;gl;lJ. tprhuiz md;W jpU/kh/xr;rg;gd; tzpf Ma;thsu; tprhuizapy; M$uhftpy;iy. kPz;Lk; ,Wjptha;ghf tprhuiz mYtyuhy; 11/1/2008 tprhuiz ehs; Fwpf;fg;gl;L/ tprhuiz mYtyUk;/ thupagpujpepjpa[k; tj;jyFz;oy; mtUila Kftupapy; neupy; rk;kd; rhu;g[ bra;a brd;w nghJ rk;kid th';f kWj;Jtpl;lhu;/

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11/1/2008 md;W cjtpg;bghwpahsu;/ tpUtPL mYtyfj;jpy; tprhuiz eilbgw;wJ. tprhuizapy; thupagpujpFjp cjtpbghwpahsu;/ nkw;F/ tj;jyFz;L jpUkjp. j';fnrhiyak;khs; ,skpd;bghwpahsu;/ tpUtPL Kd;dh; thhpa jug;g[ rhl;rp 1 kw;Wk; thhpjug;g[ rhl;rp 2 jpU/ Muk;g[yp fk;gpahsu;. tpUtPL mtu;fSk; fye;Jbfhz;ldu;/ Fw;wk;rhl;lg;gl;l jpU/kh/xr;rg;gd;/ tzpf Ma;thsu; tprhuizapy; fye;Jbfhs;shjjhy; Fw;wk; rhl;lg;gl;l jpU/xr;rg;gd;/ tzpf Ma;thsu; mtu;fSf;F nghJkhd fhy mtfhrk; bfhLj;Jk; mij mtu; gad;gLj;jpf; bfhs;stpy;iy/ vdnt thupa jug;g

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[ rhl;rpfsplk; neuo tprhuiz xUjiygl;rkhf (Exparte) elj;jp Kof;fg;gl;lJ.

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rhl;lg;gl;l Fw;wr;rhl;od; jd;ikiaa[k;/ Fw;wr;rhl;L 1y; btspahd Fw;wk; rhl;lg;gl;l jpU/kh/xr;rg;gd;/ tzpf Ma;thsu; mtu;fspd; epiyg;ghl;oid Ma;e;J Fw;wr;rhl;L 2.3 kw;Wk; 4 Mfpaitfs; bjhlu;ghd tprhuizapy; thupa jug;g [ rhl;rpfspd; thf;FK:y';fisa[k;/ ,izf;fg;gl;Ls;s rhd;wpjH;fs; fUj;jpy; bfhz;L rhl;lg;gl;l ehd;F Fw;wr;rhl;LfSk; vt;tpj re;njfkpd;wp epUgdkhfpd;wJ/”

¶58

The above paragraphs are the findings of the Enquiry Officer and if we peruse the same, only in the last paragraph, the Enquiry Officer has stated that after completing the enquiry by ex parte , he has stated that, all the four charges had been proved on the basis of witnesses on the department side and the documents / certificates annexed with the Enquiry Report.

¶59

Only the Enquiry Officer's report alone had been filed before this Court and no other documents, including the evidences https://hcservices.ecourts.gov.in/hcservices/ said to have been recorded by the Enquiry Officer, even though in the ex parte enquiry, has been produced either by the petitioner or by the respondent. Assuming that the Enquiry Officer has come

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to a conclusion based on such evidences and documents, that the charges framed against the petitioner were proved, the Enquiry Officer must have stated, atleast in brief, about each of the charges and on the basis of what part of the evidences the Enquiry Officer has reached his conclusion, that, each of such charges were proved.

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On a perusal of the enquiry report, one can easily find that, absolutely, no reason has been given, no materials have been extracted or discussed and no part of evidence has been taken into consideration by the Enquiry Officer to come to his conclusion that the charges were proved against the petitioner. Assuming that evidences were recorded and documents were filed by the department side and those evidences and documents were supporting the case of the department, the Enquiry Officer must have stated about those evidences and documents in his report and he must give his own reasoning, atleast in brief, as to how he came to a conclusion, atleast on the basis of preponderance of probabilities, to state that the charges framed against the petitioner were proved. However, nothing has been stated in the Enquiry Officer's report about these aspects and therefore, the mere statement of the Enquiry Officer that based on the evidences and documents, all the four charges framed against the petitioner have been proved, cannot be the answer of the Enquiry Officer and therefore, this Court prima facie, feels that the said Enquiry Officer's report cannot be accepted to be an enquiry report of a departmental enquiry.

¶63

That apart, after the punishment was inflicted against the petitioner by the second respondent, an appeal was filed before the first respondent, who inturn confirmed the said punishment and rejected the appeal of the petitioner. However, subsequently, the criminal case, which was pending against the petitioner, on the very same set of charges, ended in acquittal. When we peruse the Judgment of the criminal court, certain interesting factors can be culled out from the Judgment. The petitioner was charged by the prosecution for the alleged offences punishable under Sections 294 (b), 354 r/w 511 and 506(i) of IPC. On behalf of the prosecution, eight witnesses were examined and on behalf of the defence, four witnesses were examined, four exhibits were marked on behalf of the prosecution and two exhibits were marked by the defence side.

¶64

According to the trial Court, prosecution witnesses P.W.3, 6 and 7 deposed against the prosecution. Therefore, they were treated as hostile witnesses. P.W.4 and P.W.5 as well as the investigating officer / P.W.8 depositions were also taken into account.

¶65

https://hcservices.ecourts.gov.in/hcservices/ 20. However, when the defence witnesses i.e., D.Ws.1 to 4 were examined, they deposed before the trial Court and if the deposition of those witnesses are examined, it would give

¶66

¶67

altogether, a new theory against what has been projected by the prosecution before the criminal court.

¶68

The deposition of D.W.1 & D.W.2 has been recorded which reads as follows:

¶69

“v/rh/1 K:h;j;jp jdJ rhl;rpaj;jpy;. jhd; xg;ge;j bjhHpyhspahf ,Ue;jnghJ m/rh/1 jhd; j';fSf;F Cjpak; tH';Fnthh; vd;Wk;. khjj;jpy; 10 ehl;fs; tj;jy;f;Fz;oypUe;J tUk;nghJ. Vjphpa[ld; m/rh/1 tz;oapy; tUthh; vdt[k;. mYtyfj;jpy; jdpg;gl;l Kiwapy; ,UtUk; mkh;e;J rhg;gpLthh;fs; vd;Wk; Twpa[s;shh;/ v/rh/2. Rpd;drhkp vd;gth; jdJ rhl;rpaj;jpy;. jhd; tpUtPL kpd; thhpaj;jpy; Rkhh; 10. 15 tUl';fshf ntiy ghh;j;J tUfpnwd;/ vdt[k;. uh$jhdpnfhl;il v!;/ v!;/ 4 ouhd;!;ghh;kh; gGjile;J fhiyapy; fHw;wp jpz;Lf;fy; bfhz;L ngha; jpUk;gp tUk; nghJ ,ut[ 8/00 kzpahfptpl;lJ vdt[k;. tj;jyf;Fz;oy; itj;J ,d;iwf;F vg;goahtJ ouhd;!;ghkiu itj;Jjhd; Mf ntz;Lk; vd;W m/rh/1/ brhd;dhh; vdt[k;. jhd; ,/gp/ yhhpapy; me;j ,lj;jpw;Fr; brd;wjhft[k;. gpd;dhy; igf;fpy; m/rh/1 k; vjphpa[k; te;jdh; vdt[k;. mjpfkiH bga;jjhy; md;W ouhd;!;gh;kh; bghUj;j Koahky; jh';fs; ,Uf;Fk; nghnj vjphpa[k;. m/rh/ 1 k; igf;fpy; brd;W tpl;ldh; vdt[k; Twpa[s;shh;/”

¶70

The petitioner deposed before the trial Court as D.W.4, who would say before the trial Court in the following terms: “v/rh/4 vjpup xr;rg;gd; vd;gtu; jdJ rhl;rpaj;jpy;. Kd;g[ tzpf cjtpahsuhf tj;jyf;Fz;L gpuptpy; gzpahw;wpanghJ m/rh/ 1 I ed;whf bjupa[k;; vdt[k;. mtu; b$/,?ahf brfz;l; fpnulhf gzpahw;wp te;jhu; vdt[k;. jhd; khWjyhfp tpUtPL brd;W tpl;ljhft[k;. xU tUlk; m';F ntiy ghu;j;j nghJ. m';F m/rh/1 w;F n$/,/fpnuL xd;whf te;jJ vdt[k;. mtu; tpUtPL gpuptpw;F khWjy; th';fp tUfpnwd; cjtp bra;a[khW brhd;dhu; vdt[k;. khWjy; th';fp tUfpnwd; cjtp bra;a[khW brhd;dhh; vdt[k;. khWjyhfp thU';fs; ntz;oa cjtpfis jhd; bra;tjhfr; brhd;ndd; vd;Wk;. 18/01/2007?y; gzpkhWjyhfp m';F gzpapy; nru;e;jhu; vdt[k;. mtu; fs Ma;tpw;F fd;!;a{ku;. K:yk; Ml;nlhit tutiHj;J bry;thu; vdt[k;. mtuhf tpUg;gg;gl;L jd;Dld; tz;oapy; tUtjhf brhd;dhu; vdt[k;. mtiu tz;oapy; ntiyf;F miHj;Jr; bry;ntd; vdt[k;. mtuhf jd;Dld; https://hcservices.ecourts.gov.in/hcservices/ beU';fpg; gHfpdhu; vdt[k;. mtuJ fztu; jd;id tPl;ow;F tuf;TlhJ vd;W brhd;djhy;. mtuJ tPl;ow;F jhd;

¶71

¶72

bry;ytpy;iybadt[k; mtuJ kfid ehkf;fy;ypy; nru;f;f ntz;Lk; vd;W brhd;djhft[k;. mtUf;F mWgjhapuj;jpypUe;J U:gha; bjhz;z{uhapuk; tiu brythFk; vd;Wk;. ahuplkhtJ U:gha; xU yl;rk; th';fpj; jur; brhd;djhft[k;. jdf;F ahiua[k; bjupahJ vd;W Twptpl;ljhft[k;. gpd;g[ jd;Dila gh!; g[f;if m/rh/1 vLj;Jg; ghu;j;jhu; vdt[k;. mjpy; U:/70.000-? tiu ngyd;!; ,Ug;gijj; bjupe;J bfhz;L nfl;ljhft[k;. gpd;du; jhd; vLj;Jf; bfhLj;jjhft[k;. 12/06/2007?;y jd;Dila fzf;fpypUe;J U:/70.000-?k; vLj;jjw;fhd gh!;g[j;jf xspg;gil efy; v/rh/M/2 vdt[k;. jd;Dila gzj;ijf; fz;og;ghf bfhLj;Jtpl ntz;Lk; vd;W nfl;ljhft[k;. mjw;F m/rh/1 gzk; bfhLj;jjw;F vd;d mj;jhl;rp vd;Wk;. mjida[k; kPwp VjhtJ gpur;rpid bra;jhy; jd;dplk; jtwhf ele;J bfhz;ljhff; Twp nkyjpfhupfsplk; g [fhu; bra;ntd; vd;W brhd;djhft[k;. 15?k; njjp Rkhu; 3/30 kzpastpy; m/rh/1 jd;id mtuJ miwf;F miHj;jhu; vd;Wk;. fd;!;a{ku; bfhLj;j bgl;ord; xd;iw jd;dplk; bfhLj;jhu; vd;Wk;. fk;gk; gGjile;J tpl;ljhft[k;. kjpg;gPL jahu; bra;ar; brhd;dhu; vd;Wk;. jhd; jahu; bra;J tpLfpnwd; vd;W brhd;djhft[k;. m/rh/2. mrh/2I miHj;J rp/I/jhd; vJ brhd;dhYk; bra;akhl;nld; vd;W brhy;fpwhu; vdt[k;. mjw;F m/rh/2. V/. brhd;dij clnd bra;a[';fs; vd;W jd;dplk; brhd;dhu; vdt[k;. gpd;du;. xU ehs; ouhd;!;ghu;kiu itg;gjw;fhf jhDk;. m/rh/1?d; jd; tz;oapy; brd;wjhft[k;. mjpf kiH te;jjhy; itf;f KoahJ vd yhupia tpUtPl;low;F mDg;gp tpl;L. jhDk;. m/rh/1?k; jd; tz;oapy; tj;jyf;Fz;ow;F te;njhk; vdt[k;. m/rh/1?I tPl;oy; tpl;L tpl;L. jhd; brd;W tpl;nld; vdt[k;. 16?k; njjp m/rh/1 gzpf;F tutpy;iy vdt[k; 18?k; njjp gzpf;F tutpy;iy vdt [k;. gzj;ij jhd; jpUg;gpf; nfl;ljhYk;. j';fSf;Fs; ,Ue;j cwit btspna brhy;yp tpLntd; vd;W jhd; brhd;djhYk;. , t;thW bgha; g[fhu; bfhLj;Js;shu; vdt[k;. tpUtPl;oy; tUkhdk; fpilf;Fk; vd;W ek;gp te;J tpl;lhu; vdt[k;. Mdhy; fpuhkk; vd;gjhy;. mtu; epidj;j khjpup gzk; fpilf;fhjjhy; gzp khWjy; ntzo xU tUlkhfhky; gzpkhWjy; fpilf;fhbjd;gjhy;. kJiu Mu;/rp//m/rh/1?f;F ntz;oatu; vd;gjhy; ,t;thW g[fhu; bfhLj;J. epu;thfk; K:yk; gzpkhWjy; bgw;W ntz;oa ,lj;jpw;Fr; brd;W tplyhk; vd;W ,t;thW bgha; g[fhu; bfhLj;Js;shu; vdt[k;. https://hcservices.ecourts.gov.in/hcservices/ g[fhupy; cs;sthW ve;j gpur;rpida[k; ,y;iybad;Wk; Twpa [s;shu;/”

¶73

¶74

The learned Judge after having considered the witnesses of both prosecution as well as the defence side, has given his exhaustive discussion, where he has pointed out the contradictions of the prosecution witnesses.

¶75

Ultimately, the trial Court has come to the conclusion in the following terms:

¶76

“Mdhy;. Fw;wr;rhl;lhdJ ,/j/r/ 354 c-, 511 vd;W Kud;gl;L fhzg;gLfpwJ/ m/rh/1 jdJ rhl;rpaj;jjpy; rk;gtk; Koe;J btspna Xo te;jjhf TwpapUf;fpwhh;/ Mdhy;. m/rh/ 2/ jdJ FWf;F tprhuizapy;. M/rh/1 mYtyf brahpy; cl;fhh;e;jpUe;jhh; vd;W rhl;rpak; mspj;jpUg;gjpy; ,Ue;J , t;tHf;fpy; TwpathW rk;gtk; eilbgwtpy;iy vd;gJ bjhpatUfpwJ/”

¶77

//////////////////////////////////////////////////////////////////////////////////////////////////////// “m/rh/1. 18/6/2007 k; njjp fhiyapy; vjpup kpul;oajhff; TwpapUf;fpwhh;/ Mdhy;. vjphp jug;g[ rhl;rp 3 Mf tprhuiz bra;ag;gl;l cjtp braw;bghwpahsh; 18/6/2007 Kw;gfy; tiu mth; tpLg;gpy; ,Ue;jjhf rhl;rpak; mspj;jpUf;fpwhh;/ vdnt. md;W ele;jjhff; Twk; rk;gtKk; cz;ikay;y vd;gJ bjhpatUfpwJ/”

¶78

Ultimately, the learned Judge has concluded with this following lines:

¶79

“vjphp gzj;ij jpUg;gpf; nfl;ljhy;. m/rh/1. bgha;ahd g [fhh; mspj;jpUf;fpwhh; vd;w thjj;ij Kd; itj;jpUf;fpwhh;/ mjw;F Mjuthf/ vjphpapd; fzf;fpypUe;J U:/70.000-? vLj;jjw;fhd gh!; g[j;jfj;ij ePjpkd;wj;jpy; mjd; xypg;gl efiy jhf;fy; brapjpUf;fpwhh;/ Mdhy;. ,e;j thjj;ij Vw;Wf; bfhs;s ,ayhJ/ Vbddpy;. U:/70.000-?j;ij vjphpahdth; mth; fzf;fpy; ,Ue;J vLj;jjhf gh!; g[j;jfj;jpypUe;J mwpag;gl;lhY}k;. mij m/rh/1 lk;jhd; bfhLj;jhh; vd;gjw;J vjphpapd; rhl;rpaj;ij jtpu ntW rhl;rpak; ,y;iy/ Mdhy;. Vjphp jug;gpy; tprhuiz bra;ag;gl;l vjphp jug;g[ rhl;rp 1/ 2 k; j';fsJ rhl;rpa';fspy; m/rh/1 vjphpa[ld; tz;oapy; tUthh; vd;W TwpapUg;gijf; fhdqk;bghGJ. m/rh/1. vjpupapd; kPJ Twg;gl;l Fw;wr;rhl;L Vnjh cs; nehf;fj;jpw;fhf Twg;gl;oUf;fpwJ vd;gJ bjhpatUfpwJ/ muR jug;g [ tHf;fpw;fk;. m/rh/1 d; rhl;rpaj;jpw;Fk; m/rh/1 mspj;j g [fhUf;Fk; ,ilna Kuz;ghLfs; epiwe;J fhzg;gLfpwJ/ ,ija https://hcservices.ecourts.gov.in/hcservices/ [k;. muR jug;gpw;F ghjfkhfnt mike;jpUf;fpwJ/ nkny Twpa fhuz';fspdhy; vjphpapd; kPjhd Fw;wk; muR jug;gpy;

¶80

¶81

re;njfj;jpw;f ,lkpd;wp epU:gdk; bra;ag;gltpy;iy vd;W ,e;ePjpkd;wk; Kot[ fhz;fpd;wJ/”

¶82

After the acquittal in the criminal case, the petitioner approached the respondents seeking for a de nova enquiry. The first respondent vide his order dated 24.9.2012, has rejected the said request stating that based on the enquiry already conducted by the department and on proven charges, punishment was inflicted and the same was confirmed by the Appellate authority. Therefore, now merely because the petitioner has been acquitted in the criminal case, the said findings and conclusion reached through the departmental enquiry and the punishment imposed against the petitioner cannot be reviewed and therefore, the request of the petitioner, was rejected.

¶83

In support of the said stand taken by the respondent, especially the first respondent, it was justified in the counter, by stating that, the departmental enquiry was conducted for four charges, out of which, it is only one charge pertaining to the alleged attempt of the petitioner to misbehave with the woman superior officer and if at all, the petitioner is acquitted on the said charge by the criminal court, the other charges framed against the petitioner since have been proved, the petitioner on the ground of his acquittal in the criminal court, cannot seek for a de nova enquiry.

¶84

No doubt, the charge memo was served on the petitioner framing four charges against him. Those charges have already been extracted herein above. According to the charge memo, charge No.1, charge No.2 and charge No.3 are pertaining to the alleged misbehaviour charge framed against the petitioner. Therefore, once a criminal court after full fledged trial, came to a conclusion, that there is no scope for such an incident to happen and it was declared by the trial Court that there was no such incident happened, this Court feels that the department cannot say that such an incident had happened and the charges to that effect framed against the petitioner had been proved. It is no doubt that the degree of proof between the criminal case and the departmental enquiry, need not be in the same level as the criminal case has to be proved beyond reasonable doubt whereas in the departmental enquiry, the charges can be proved by mere conclusion of preponderance of probabilities. However, in this case in hand, since there was no scope of such an incident itself, as alleged by the department, as mainly on the basis of said incident, first three charges have been framed against the petitioner, the request of the petitioner to conduct a de nova enquiry, cannot be brushed aside.

¶85

https://hcservices.ecourts.gov.in/hcservices/ 29. Moreover, from the relevant portion of the Enquiry Officer's report which has been extracted above, it is seen that

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the Enquiry Officer has recorded nothing by way of his finding based on any evidences and documents for coming to a conclusion that all the charges framed against the petitioner, were proved. Assuming that the petitioner did not co-operate with the Enquiry Officer to complete the enquiry, the Enquiry Officer definitely has got a right to proceed with the enquiry, ex parte . However, even under the ex parte proceedings, he cannot simply give his conclusion in one line, that based on the evidences and documents filed by the department, the charges framed against the delinquent was proved. Against each of the charges, the Enquiry Officer should have given his reason in brief, by taking support from the evidences and documents to show that on what basis, he comes to a conclusion that the said charges framed against the petitioner, were proved. In the absence of any such material in the Enquiry Officer's report, atleast, the disciplinary authority should have remanded the matter back to the Enquiry Officer to give his reasoning and finding, in detail for his conclusion.

¶88

No attempt has been taken either by the disciplinary authority i..e, the second respondent or by the Appellate Authority i.e., the first respondent to remit the matter back to the enquiry officer to record his reasonings for such conclusion.

¶89

Therefore, on these two grounds, one is that the Enquiry Officer's report does not disclose any reasoning for his conclusion that the charges framed against the petitioner were proved and secondly that three out of four charges pertaining to the alleged incident, since have been declared a non-existent as per the verdict of the criminal court, which in unequivocal terms declared, that no such incident happened, this Court feels that the conclusion arrived at by the Enquiry Officer, though prior to the criminal Court findings, cannot stand and therefore, based on such Enquiry Officer's report, if the punishment is awarded, certainly, the same is liable to be interfered with by this Court.

¶90

However, in respect of charge No.4 is concerned, it is an independent charge unconnected with the main alleged incident, as the petitioner was allegedly not available to receive the summons from the respondents, therefore, that fourth charge alone stands independently, unconnected with other three charges.

¶91

For all these reasons and the discussions made above, this Court is of the considered view that the orders impugned are liable to be interfered with.

¶92

In the result, the following orders are passed in this writ petition:

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(i) The impugned orders are hereby, quashed;

¶94

https://hcservices.ecourts.gov.in/hcservices/ (ii) However, it is open to the respondents / department to proceed against the petitioner, insofar as the fourth charge is concerned, if they are advised to do so.

¶95

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(iii) In such case, if any enquiry is contemplated with regard to the fourth charge, the petitioner shall co-operate with the department for the smooth conducting of the enquiry;

¶97

(iv) In case the department, decides to proceed against the petitioner with regard to the fourth charge, such exercise shall be completed within a period of three months from the date of receipt of a copy of this order;

¶98

(v) Depending upon the decision to be taken by the department to proceed against the petitioner, only in respect of the fourth charge, and the conclusion to be arrived at, if any, the petitioner's other service benefits shall be considered and extended to him.

¶99

With these directions, this writ petition is allowed with the terms indicated above. No costs.

¶100

Sd/-

¶101

Assistant Registrar (Records)

¶102

/True Copy/

¶103

Sub Assistant Registrar

¶104

¶105

1.The Superintending Engineer, Tamil Nadu Electricity Board, Dindigul distribution circle, Dindigul – 624 002.

¶106

2.The Executive Engineer (East), Tamil Nadu Electricity Board, Town, Battalagundu – 624 702, Dindigul District.

¶107

- 1 CC TO Mr.R.SURESH KUMAR, ADVOCATE IN SR No. 88240

¶108

KUA

¶109

TE/MR-KKR/SAR-2 : 06/12/2017 : 15P/4C

¶110

W.P.(MD).No.2202 of 2013 17.11.2017

¶111

https://hcservices.ecourts.gov.in/hcservices/

M. Ochappan, S/O.Mayandi, v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

M. Ochappan, S/O.Mayandi, v. the Superintending Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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