Allowed

K.Rajendiran v. the Executive Engineer(O&M)

Madras HC27 Apr 2019WP/11495/2009

Case brief

AI extract

What is this about?

Court quashed a disciplinary order stopping increment for one year issued to a government employee. The High Court found that the enquiry violated Standing Order 32(vii)(c) by denying the petitioner copies of the complaint and enquiry report, and failing to afford an opportunity to cross-examine witnesses.

What did the court decide?

The impugned order of the 1st respondent dated 30.05.2009 imposing stoppage of increment for one year is set aside.

K.Rajendiran Vs the Executive Engineer(O&M) — Service and Employment | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 27.04.2019

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CORAM

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THE HONOURABLE Mr. JUSTICE T.RAJA

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W.P.No.11495 of 2009

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K.Rajendiran .. Petitioner Vs. 1.The Executive Officer (O & M), Tamilnadu Electricity Board, Egmore, Chennai – 600 007. 2.The Assistant Executive Engineer (O & M), Tamilnadu Electricity Board, Vapery, Chennai – 600 007. 3.The Assistant Engineer (O & M), Tamilnadu Electricity Board, Basin Bridge Road, Pulianthope, Chennai – 600 012. .. Respondents

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PRAYER : Writ Petitions filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records pertaining to the orders in Memo No.257/581/EE/EGM/ADM/A1/F.D.P./2008-3 dated 30.05.2009 (received by the petitioner on 12.06.2009) on the files of the first respondent and to quash the same.

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For Petitioner : Mr.R.Selvakumar

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Mr.K.Rajendran, the petitioner, while serving as a Commercial Inspector in the Office of the Assistant Executive Engineer (O&M), Esplanade, CEDC, Central, Chennai-600 104, was issued with an impugned order dated 30.05.2009, imposing the punishment of stoppage of increment for a period of one year with cumulative effect for the proven charges containing two allegations. Aggrieved against the said impugned order, the present writ petition has been https://hcservices.ecourts.gov.in/hcservices/ filed.

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Learned Counsel appearing for the petitioner attacking the impugned order pleaded that when the petitioner was serving as a Commercial Assistant under the third respondent, a Memo dated 29.02.2008 was issued and the same was served upon him only on 04.03.2008 containing the following two charges:

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''Fw;wr;rhl;L 1:

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jpU.K.,uhn$e;jpud;. tzpf Ma;thsh;. g[spae;njhg;g[ (,d;W) mz;zh rhiyf; nfhl;lk; mth;fs; kpd; Efh;nthh; jpUkjp/B.kyh;kjp. ghyRg;gpukzpapd; (kpd; ,izg;g[ vz;/ 147-10-154. mth;fspd; 2-2005 Kjy; 12-2006 tiu cs;s kpd; fl;lzj; bjhif (C.C. charges) Fiwj;J kjpg;gPL bra;tjhf ifa{l;lhf U:gha;/40.000-= bgw;Wf; bfhz;L mjid jpUg;gp bfhLj;Js;shh;/ ,j;jifa bray; kpd; thhpa fsg;gzpahsh;fSf;fhd epiy Miz vz;/30V d; go Fw;wkhFk;/

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Fw;wr;rhl;L 2: jpU.K.,uhn$e;jpud;. tzpf Ma;thsh;. g[spae;njhg;g[ (,d;W) mz;zh rhiyf; nfhl;lk; mth;fs; jd;dpr;irahf j';fSf;F rk;ke;jkpy;yhj ml;ilg;gl;oay; gzpapy; <Lgl;L kpd;Efh;nthiu Jd;g[Wj;jp Kiwnflhf gzk; bgWtnj nehf;fkhf bfhz;Ls;shh;/ ,j;jifa bray;fshy; kpd; thhpak; mtg;bgah; Vw;gLj;jpanjhL kl;Lky;yhky; gzpapy; jd;dpr;irahf bray;gLtij rhl;LfpwJ/ ,J kpd; thhpa fsg;gzpahsh;fSf;fhd epiy Miz vz;/30-I d; go Fw;wkhFk;/''

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On receipt of the said charge memo, the petitioner was called upon to give his explanation. Noticing that the allegation made against him was relating to a receipt of a sum of Rs.40,000/- for reduction of the Electricity charges and then returning the same amount to the complainant, the petitioner has given a representation asking for a copy of the complaint. The petitioner has given his explanation on 10.03.2008 and thereafter, with the same allegation, the petitioner was issued with a charge sheet dated 29.09.2008. Therefore, the petitioner has made another representation on 17.10.2008 seeking for a copy of the complaint. Without furnishing the copy of the complaint, based on which he was issued with the charge memo, the Disciplinary Authority has appointed an Enquiry Officer on 17.11.2008. Again, the petitioner renewed his request for furnishing a copy of the complaint and allowing the petitioner to know what was the complaint made against him by the complainant. But, the Enquiry Officer proceeded with the enquiry and completed the same contrary to the procedure contemplated under Standing Order 32 (vii)(c).

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The learned Counsel appearing for the petitioner further submitted that the procedure to be followed in disciplinary cases are clearly contemplated under Standing Order 32 (vii)(c) stating that the witnesses to prove the https://hcservices.ecourts.gov.in/hcservices/

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misconduct(s) shall be examined in the presence of the workman and the workman shall be given an opportunity to cross-examine the witnesses. But, firstly, no opportunity whatsoever was given to the petitioner. Moreover, a copy of the complaint based on which the charge memo issued was denied instead of repeated requests has not been furnished to the petitioner. Secondly, the Enquiry Officer, without following the procedure laid down in the Standing Order 32 (vii)(c) has completed the enquiry. Thirdly, after the submission of the report by the Enquiry Officer, the Disciplinary Authority without even furnishing the copy of the report and calling upon the petitioner to submit his written explanation to the report of the Enquiry Officer, straight away passed the impugned order of punishment, stopping of increment for one year with cumulative effect.

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Interestingly, the learned Counsel appearing for the petitioner submitted that the Enquiry Officer, on completion of the enquiry submitted a report on 16.02.2009. A copy thereof was also placed before this Court. It is not known how the Enquiry Officer can again proceed with the enquiry on 12.03.2009. Moreover, the petitioner also made his request on 20.03.2009 for furnishing certain documents and also sought permission for cross examination of the witnesses together with acknowledgment card. Without looking into the lapses and the irregularities indicated herein supra, on 28.04.2009, a Second Show Cause Notice was issued calling upon the petitioner to furnish his written representation without giving a copy of the report of the Enquiry Officer.

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The learned counsel appearing for the petitioner drawing the attention of this Court to Reference No.4 in the impugned order dated 30.5.2009 indicating the letter No.AEE /O&M /Vepery/ F.DP/D.No.113/09 dated 24.03.2009 stated that even if the Enquiry Officer has submitted a report dated 24.03.2009, a copy of which ought to have been furnished to the petitioner along with the second show cause notice, that also has not been followed. With the result, the impugned order has been passed without following any procedure as mentioned under the Standing Order 32 (vii)(c). Therefore, the impugned order is liable to go. Concluding the arguments, it is stated that when the respondents violated the procedure contemplated under Standing Order 32 (vii)(c), he would have been in a position to establish his innocence. Since the Enquiry Officer has violated all the Standing Orders and the petitioner was not afforded with reasonable opportunity and the principles of natural justice has also been violated, great prejudice was caused to the petitioner. Therefore, the impugned order is liable to be set aside.

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A detailed counter affidavit has been filed by https://hcservices.ecourts.gov.in/hcservices/ the respondents.

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Reiterating the averments made in the Counter Affidavit, the learned Standing Counsel for the respondents requests this Court to dismiss the Writ Petition.

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A perusal of the counter affidavit does not refute or deny the allegation made by the petitioner that the respondents have not furnished a copy of the report of the Enquiry Officer. Secondly, it is emphathetically argued by the learned Counsel for the petitioner that when the Enquiry Officer submitted his report on 16.02.2009, even after the completion of the enquiry and submission of the report, on what basis, the Enquiry Officer has proceeded with the enquiry even thereafter on 12.03.2009. Thirdly, whether the respondents have complied with the procedure mentioned under Standing Order 32 (vii)(c) or not, to be seen. Fourthly, when the petitioner was issued with the Second Show Cause Notice, whether the respondents have furnished a copy of the report of the Enquiry Officer, also is missing. Therefore, in this background, let me look at the case of the petitioner.

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Admittedly, the petitioner was issued with a Charge Memo on 29.09.2008 containing two charges. The first charge alleges that the petitioner allegedly received Rs.40,000/- for reducing the electricity charges in favour of the complainant, subsequently, he returned the same. Therefore, when the petitioner was issued with a charge memo, rightly, he made a request letter on 17.10.2008 seeking for a copy of the complaint to be given to him so that he will be in a position to submit a detailed explanation. The Enquiry Officer in his report dated 16.02.2009 also mentioned that the petitioner repeatedly asked for a copy of the report of the complaint, but, it was not furnished to him. Therefore, when the petitioner was charge sheeted departmentaly vide charge memo dated 29.09.2008 alleging that the petitioner had received Rs.40,000/- for reduction of the C.C. charges in favour of the complainant and subsequently, returned the said amount to the complainant, the petitioner is entitled to receive a copy of the complaint, since, the charge memo issued is based on the complaint. Admittedly, in the present case, even the report of the Enquiry Officer dated 16.02.2009 was not furnished to the petitioner, that shows that neither the Enquiry Officer nor the Disciplinary Authority has followed the principles of natural justice.

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Coming to the second contention made by the learned Counsel for the Petitioner that when the Enquiry https://hcservices.ecourts.gov.in/hcservices/ Officer submitted his report on 16.02.2009, even after the

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completion of the enquiry and submission of the report, there is no need to proceed with the enquiry on 12.03.2009. Moreover, the petitioner has called for documents on 20.03.2009 and also sought for permission for cross examination of the witnesses. In the context, it is relevant to refer Standing Order 32(vii)(c), which is given as under:

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''32 (vii) : While conducting an enquiry, the following procedure shall be followed:

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(s) shall be examined in the presence of the workman and the workman shall be given an opportunity to cross-examine the witnesses.''

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A close reading of the aforementioned Standing Order shows that the Enquiry Officer is bound to follow the above mentioned procedure. Since the witnesses to prove the misconduct shall be examined in the presence of the workman and the workman shall be given an opportunity to crossexamine the witnesses, the report dated 16.02.2009 failed to mention whether any opportunity to cross-examine the witnesses was given to the petitioner. Thirdly, when the second show cause notice was issued on 28.04.2009, the letter No.AEE/O&M/Vepery/F.DP/D.No.113/09 dated 24.03.2009 mentioned in Reference No.4 of the impugned order shows that the report of the Enquiry Officer has not been given to the petitioner. One another report dated 24.03.2009 was submitted by the Enquiry Officer finding the petitioner was guilty of both the charges, but the copy of the report dated 24.03.2009 also was not furnished to him because the counter affidavit filed by the respondents does not give any reply to that. Therefore, when the copies of the report of the Enquiry Officer dated 16.02.2009 and 24.03.2009 were not furnished to the petitioner, again, when the copy of the complaint based on which charge memo was issued was not furnished to the petitioner, and when the Enquiry Officer has not followed the procedure as contemplated under Standing Order 32(vii)(c) allowing the petitioner to cross examine the witnesses that would go to clearly show that the enquiry conducted against the petitioner is contrary to the procedure contemplated under Standing Order 32(vii)(c) which are in violation of the principles of natural justice. Therefore, the impugned order is liable to be set aside.

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At this stage, the learned Counsel appearing for the petitioner stated that as the petitioner is going to reach the age of superannuation on 31.07.2019, taking note of the fact that the pendency of the writ petition for the last 10 years has caused serious loss of promotional avenues to the petitioner, that would itself is sufficient punishment to the petitioner.

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

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In the result, the impugned order of the 1^st respondent dated 30.05.2009 is set aside and writ petition stands allowed. However, there is no order as to costs.

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Sd/-

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Assistant Registrar(CS IX)

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//True Copy//

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Sub Assistant Registrar

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tsi
To
1.The Executive Officer (O & M),
Tamilnadu Electricity Board,
Egmore, Chennai – 600 007.
2.The Assistant Executive Engineer (O & M),
Tamilnadu Electricity Board,
Vapery, Chennai – 600 007.
3.The Assistant Engineer (O & M),
Tamilnadu Electricity Board,
Basin Bridge Road, Pulianthope,
Chennai – 600 012.
+1cc to Mr. P.R.Dhilip Kumar, Advocate SR.No. 41600
+1cc to Mr. R.Selvakumar, Advocate SR.No. 41378
W.P.No.11495 of 2009
A.SK(15/07/2019)

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

K.Rajendiran v. the Executive Engineer(O&M)

Case brief

What is this about?

What did the court decide?

K.Rajendiran v. the Executive Engineer(O&M)

Case brief

What is this about?

What did the court decide?

What the court decided

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