Remanded

M.Sankar v. Chennai Metropolitan Water

Madras HC2 Nov 2018WP/24192/2008

Case brief

AI extract

What is this about?

The High Court of Madras held that disciplinary orders dismissing a petitioner without reasoning or furnishing enquiry reports and complaints violated natural justice principles, leading to a remand for a fresh hearing.

What did the court decide?

Petitioner directed to receive enquiry report and consumer complaint to file proper representation; respondents to pass a speaking order within eight weeks.

M.Sankar Vs Chennai Metropolitan Water — Service and Employment | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 18.09.2018 PRONOUNCED ON : 02.11.2018

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CORAM

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THE HONOURABLE MR.JUSTICE C.SARAVANAN W.P.No.24192 of 2008

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M.Sankar .. Petitioner

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1.Chennai Metropolitan Water Supply and Sewerage Board, Rep. by its Executive Director, No.1, Pumping Station Road, Chintaripet, Chennai 600 002.

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2.General Manager/Vigilance Officer, Chennai Metropolitan Water Supply and Sewerage Board,

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No.1, Pumping Station Road, Chintaripet, Chennai 600 002. .. Respondents

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Prayer : Writ Petition is filed under Article 226 of the Constitution of India, for issuance of a Writ of Ceritiorarified Mandamus calling for the the concerned records from the 1^st respondent and 2^nd respondent and to quash the order of the 2^nd respondent bearing Se.Mu.Order No.SeKuVa/PaMaNe/Vku1/7956/2008 dated 13.05.2008 and the order of the 1^st respondent bearing No.SeKuVa/PaMaNe/Vku(May.Mu)/21861/2008 dated 17.09.2008 and consequently direct the respondents to release the increment to the petitioner along with due arrears.

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For petitioner : Mr.Balan Haridas

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For respondents : Mr.T.Gowthaman

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O R D E R

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The above writ petition has been filed for issuance of a Writ of Ceritiorarified Mandamus calling for the the concerned records from the 1^st respondent and 2^nd respondent and to quash the order of the 2^nd respondent bearing Se.Mu. Order No.SeKuVa/PaMaNe/Vku1/ 7956/2008 dated 13.05.2008 and the order of the 1^st respondent bearing No.SeKuVa/PaMaNe/Vku(May.Mu)/ 21861/2008 dated 17.09.2008 and consequently direct the respondents to release the increment to the petitioner along with due arrears.

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

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The petitioner was working as a Depot Manager in area XA of the respondent. During regular routine check up, the petitioner claims to have come across the house where commercial activity was being carried out.

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On noticing the same, the petitioner made enquires to obtain information as to from what date, commercial activity was being carried. The consumer apparently did not co-operate with the petitioner and gave evasive answer to the petitioner.

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Under these circumstances, the petitioner claims to have been invoked best judgment method to bring the premises under partial commercial category from I half of Assessment year 199798 onwards and therefore demanded a sum of Rs.18,000/- plus surcharge.

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The petitioner claims to have issued intimation slip. However, the consumers had failed to give intimation slip to get the tax suitably amended. The petitioner claims that the copy of the intimation slip was not given to the superior due to over sight and work pressure and thus the consumer continued to pay taxes at the old rate.

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The petitioner claims that he once again took efforts to set things right and again visited the consumer and sought to find exact nature of evasion. The petitioner thereafter proposed to demand a sum of Rs.14,400/- and second intimation slip was issued to the consumer.

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It is the case of the petitioner that the intimation slip dated 01.12.2006 was returned and the second intimation slip dated 03.07.2007 was issued to demand a tax of Rs.14,400/- and was issued only on account of failure of the consumer to give correct information.

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According to the petitioner, the consumer gave a false complaint to the respondents that the petitioner demanded amount from the consumer.

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Under these circumstances, charge memo dated 17.03.2008 was issued under regulation 10(1) of the Chennai Metropolitan Water and Sewerage Board (Discipline and Appeal) Regulations against the petitioner, wherein three charges were framed.

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On receipt of the memo, the petitioner filed a detailed explanation dated 26.03.2008 and brought to the notice of the 2^nd respondent, the background surrounding the issue of the two slips. However, the 2^nd respondent by an order dated 13.05.2008, without any reason held that the charges were proved and imposed stoppage of increment for a period of one year

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

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without cumulative effect.

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On further appeal before the 1^st respondent, the 1^st respondent also confirmed the punishment vide order dated 17.09.2008 without any reasoning.

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It is submitted by the learned counsel for the petitioner that the order passed by the first respondent was without any reasoning and the dismissal of the appeal in a summary manner without considering the grounds raised in the appeal by the petitioner.

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The learned counsel for the petitioner submitted that the impugned order of the 2^nd respondent mentions that even though the petitioner had actually found evasion of taxes by the consumer, the petitioner failed to inform the same to the higher authorities and therefore imposed punishment was contrary to the charges framed.

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It is further submitted by the learned counsel for the petitioner that the 2^nd respondent imposed punishment without considering the explanation offered by the petitioner. Learned counsel submitted that the charge memo being one under regulation 10(1) of the CMWSSB(D & A) Regulation, there was a duty cast upon the 2^nd respondent to take into consideration of the explanation given to the charge memo before imposing penalty.

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It is further submitted that the punishment was imposed by the 2^nd respondent on account of the enquiry report, which was not furnished to the petitioner and therefore reliance placed on the same for the punishment imposed is in violation of principle of natural justice.

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It was further submitted that thirdly the 2^nd respondent did not consider his explanation as was required to be considered under regulation 10(1) of the CMWSSB Regulation. Thus, the order of the 2^nd respondent imposing punishment was per se illegal.

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17.The learned counsel for the petitioner further stated that the petitioner was also not called to defend himself before the 2^nd respondent. It is further sated that under Regulation 22 of the Chennai Metropolitan Water and Sewerage Board (Discipline and Appeal) Regulations, the 1^st respondent was obliged to consider whether on the facts on which the order passed was sustainable.

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It was submitted that the rejection of the appeal of the petitioner by the 1^st respondent in a summary manner was contrary to Regulation 22 of the Chennai Metropolitan Water and

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

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Sewerage Board (Discipline and Appeal) Regulations. The order of the 1^st respondent reiterates the explanation in the order of the 2^nd respondent and there is no discussion as to how the order passed by the 2^nd respondent was sustainable.

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Per contra, the learned counsel for the respondents filed a detailed counter and has submitted that a complaint was lodged on 26.02.2008 with the 2^nd respondent which stated that the premises of the consumer was partly used for commercial purpose and that the petitioner issued intimation slip dated 01.12.2006 for the Assessment year 1997-98 by making manual correction and demanded an amount of Rs.18,000/- for the Assessment year 1997-98 instead of a sum Rs.3474/- printed in the intimation slip.

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20.The consumer has further alleged that the petitioner had collected a sum of Rs.3,000/- as bribe and once again issued intimation slip on 03.07.2007 by making manual corrections had demanded as sum of Rs.19,900/- for the Assessment year 1998-99.

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It is based on the above, the proceedings came to be initiated, wherein the following charges were made as stated above.

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It was further submitted that the petitioner failed to inform the authorities after coming to know that the consumer was using the premises partly commercial. Despite lapse of one year and after having issued two intimation slips, the petitioner failed to inform higher authorities and merely issued notice to threaten the consumer.

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Thus, it was submitted that the two intimation slips were issued with an ulterior motive and therefore, all these acts were intended to bring disrepute to the names of the respondents' office and amounted to misconduct within the meaning of Rule 6(4), 6(23) and 6(37) of Chennai Metropolitan Water and Sewerage Board (Discipline and Appeal) Regulations.

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It was the duties and responsibilities of the Senior Account Officer to effect changes in the classification after due verification. It was further submitted that it is only the Senior Account Officer, who is empowered to make changes in the classification and the Depot Manager has no authority to make such changes without getting approval from the competent authority.

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In this connection, it is further submitted that the duties and responsibilities of the Depot Manager is clearly enumerated in job descriptions of CMWSS Board in which Sl. No.15 reads as under:

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“Effect change of classification of consumers

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

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like domestic or commercial or commercial to domestic etc. based on consumer's representation and on approval of competent authority”

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In the counter certain other allegations also have been made to sustain the punishment on the ground that the petitioner was habitually demanding bribe from the consumers and was suspended.

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The petitioner had filed W.P.No.42018 of 2016 to quash the order of suspension issued vide proceedings No.P&A/VC2/13415/2016, dated 04.05.2016, which was dismissed as withdrawn on 09.04.2018. However, I will confine to the facts of the present case alone.

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I have gone through the affidavit and counter affidavit.

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The question to be addressed is whether in the facts and circumstances of the case there is preponderance of the probability and whether the respondent had made out a prima facie case for imposing punishment under Regulations 6 (4), 6 (23) and 6 (33) of CMWSS Board Employees (Discipline and Appeal) Regulation, 1978?

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Heard Mr.Balan Haridas, learned counsel for the petitioner and Mr.T.Gowthaman, learned counsel for the respondents.

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The 2^nd respondent/Disciplinary authority after reproducing the charge memo and the reply of the petitioner has come to the following conclusions, which read as under:

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“tpjp 10(1)d; fPHhd xH';F eltof;fif ;fF ,Wjp Miz tH';Fk ; jFjp bgw;w bghJ nkyhsh; mth;fs ; Kd;g [ jpU.vk;.r';fh ;/ g.nk. kPjhd Fw;wrhl;L kw;Wk ; mtuJ tpsf;fk; Mfpait itf;fg ;gl ;lJ. Fw;wrhl;L/ Fw;wk; rhl;lg ;gl ;ltuJ tpsf;fk ; mYtyuJ mwpf;if Mfpaitfis Ma;t [ bra;j bghJ nkyhsh;. “1.12.2006 kw;Wk; 3.7.2007 njjpapl;l jfty; Fwpg;gpy; Vw;gl ;l tpj;jpahrj;ij chpa fhuzk; Twp tpsf;fg ;gltpy;iy/ vdnt kDjhuh; Twpa Fw;wr;rhl;oy ; cz;ik cs;sJ vd Kot[ bra;J Xuhz;L jpuz;l gadpd;wp Cjpa cah;tpid epWj;jp” Miz gpwg;gpj;Js ;shh ;.”

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Three charges were levelled against the petitioner in the charge memo dated 17.03.2008. The charge memo under Regulation 10(1) Chennai Metropolitan Water and Sewerage Board (Discipline and Appeal) Regulations was issued to the petitioner alleging that the petitioner was guilty of the misconduct under Regulation 6(4), 6(23) and 7(37) of the CMWSSB (D & A) Regulation.

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

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33.Details of the charges framed and provisions which were invoked under Section 10(1) Regulation detailed as follows:

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Sl.No	Regulation	Charges
. 1. 2.	6(4) : - Habitual negligence or neglect of work	1.Though the property in question had been identified as partly commercial no steps were taken to correct assessment in the Register maintained in the Board, even after a lapse of one year. 2.The petitioner had issued an intimation slip on charge demanding an amount of Rs.18,000/- plus surcharge which is against Rule with a view to threaten the consumer; and
3.		3. Even without raising any demand, the petitioner had chosen to send an intimation slip on 01.12.2006 to the consumer to pay a sum of Rs.18,000/- plus surcharge and on 03.07.2007 intimating to the consumer to pay a sum of Rs.14,400/- for 1/98-99 to 1/07-08 for partly commercial. The petitioner had acted in the above manner only with some ulterior motive to satisfy his personal benefits. His illegal activity would damage the reputation of the Board."

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The order of the 2^nd respondent has not been discussed how three charges framed against the petitioner have been proved. It merely states that the petitioner's representation was placed before the General Manager along with the Enquiry Officer's report and that the charges framed against the petitioner stood proved.

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Under these circumstances, the petitioner has been awarded punishment of stoppage of increment for a period of one

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

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year with liberty to file an appeal.

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Regulation 10(1) of the Chennai Metropolitan Water and Sewerage Board (Discipline and Appeal) Regulations contemplates that in case where it is proposed to impose penalty under Regulation 5 (1), (2), (3) and (4), the delinquent employee shall be given a reasonable opportunity to explain and make representation as he may desire and the representation if any made by him shall be taken into consideration before making an order of imposing penalty. There is however no discussion. The order is not reasoned.

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The order passed by the 2^nd respondent in very cryptic manner without any discussion as to how the charges under Regulation 6(4), 6(23) and 6(33) have been proved based on the charges levelled against the petitioner in the memo.

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Thus, there is a violation of principle of natural justice. Similarly, copy of the complaint of the consumer also has not been served on the petitioner to give a effective reply.

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In this case, though charge memo was issued to the petitioner based on which enquiry was conducted, the enquiry report which allegedly confirmed all the charges has not been furnished to the petitioner. Failure to furnish the enquiry report to the petitioner also amounts to violation of principles of natural justice.

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In fact, the complaint of the consumer which appears to be basis for the charge memo also has not been furnished to the petitioner. Therefore, the petitioner cannot be expected to defend himself based on the charge memo.

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In fact, non-supply of enquiry report and the complaint filed by the consumer is fatal in the light of following decisions:

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(i)Union of India and others Vs. S.K.Kapoor, 2011 (4) SCC 589 (ii)S.N.Narula Vs. Union of India and others, 2011 (4) SCC 591 (iii)Union of India and others Vs. R.P.Singh 2014 (7) SCC 340

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The further appeal filed by the petitioner before the 1^st respondent was dismissed without any discussion. It is a cryptic order and does not bear any semblance of discussion to sustain the order of the 2^nd respondent.

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I am of the view that the decision of the Madurai Bench of this Court in W.P.No.19301 of 2013 dated 30.11.2017 cited by the counsel for the petitioner is squarely applicable to the facts of the case, wherein, it has been held that the order passed by the Appellate authority without reasoning in a cryptic manners as to why the order of the lower authority was sustained was liable to be quashed.

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

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In view of the discussion, the writ petition is disposed by way of remand. The 2^nd respondent is directed to furnish the copies of the enquiry report and the complaint of the consumer to enable the petitioner to give a proper reply. The 2^nd respondent shall thereafter allow the petitioner to file proper representation and pass a speaking order after following principle of nature justice. The 2^nd respondent is directed to complete the process within a period of eight weeks from the date of receipt of a copy of this order. No costs.

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Sd/-

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Assistant Registrar(CS IX)
//True Copy//
Sub Assistant Registrar
ia
To
1.The Executive Director,
Chennai Metropolitan Water Supply
and Sewerage Board,
No.1, Pumping Station Road,
Chintaripet, Chennai 600 002.
2.General Manager/Vigilance Officer,
Chennai Metropolitan Water Supply
and Sewerage Board,
No.1, Pumping Station Road,
Chintaripet, Chennai 600 002.
+1cc to Mr.Balan Haridas, Advocate, S.R.No.75833
W.P.No.24192 of 2008
VD(CO)
rrs 28/11/2018

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

M.Sankar v. Chennai Metropolitan Water

Case brief

What is this about?

What did the court decide?

M.Sankar v. Chennai Metropolitan Water

Case brief

What is this about?

What did the court decide?

What the court decided

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