Allowed

D.Gurusamy, v. the Executive Engineer

Madras HC21 Nov 2024WP(MD)/21791/2017

Case brief

AI extract

What is this about?

The court examined whether a Turn Cock employee, classified as a workman under TWAD regulations, was subject to the wrong disciplinary framework. Finding the charge memo issued under the Establishment Regulations incorrect instead of the Standing Orders for Workmen, the court quashed the memo and directed fresh proceedings under the correct framework.

What did the court decide?

Impugned charge memo dated 01.02.2017 quashed; fresh charge memo to be issued under TWAD Board Standing Orders for Workmen, 1998; enquiry to be concluded within six months.

D.Gurusamy, Vs the Executive Engineer — Service and Employment | Madras HC (2024)

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W.P.(MD)No.21791 of 2017

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 21.11.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE B.PUGALENDHI

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W.P.(MD)No.21791 of 2017 and

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W.M.P.(MD)No.18085 of 2017

D.Gurusamy

... Petitioner

versus

The Executive Engineer, Tamil Nadu Water Supply and Drainage Board, Maintenance Division, TWAD Complex, Mattuthavani Road, K.Pudur, Madurai – 625 007.

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The Managing Director, Tamil Nadu Water Supply and Drainage Board, 31, Kamarajar Salai, Chepauk, Chennai – 600 005.

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... Respondents

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Writ Petition filed under Article 226 of the Constitution of India, seeking for the issuance of Writ of Certiorari, to call for the records connected with the impugned order dated 01.02.2017 issued by the first respondent vide his Charge Memo No.Ko.863/Ka kaa/2016-1 and quash the same.

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W.P.(MD)No.21791 of 2017

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For Petitioner : Mr.N.Sekar For Respondents : Mr.R.Satheesh

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ORDER

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The petitioner was appointed as Turn Cock (Valve Operator) in the Tamil Nadu Water Supply and Drainage Board on 01.04.1993. His service was regularized with effect from 25.07.1994. Thereafter, he was designated as Maintenance Assistant, vide Board proceedings dated 13.06.2013 and Managing Director's Proceedings dated 19.06.2013. While he was working at Elumalai Vilakku Pumping Station, he was unauthorisedly absent from 22.12.2016. The first respondent found that the petitioner was arrested in connection with a case in Crime No.697 of 2016 on the file of the Chinnamanur Police Station and kept in prison for more than 15 days. Therefore, he was suspended from service, by proceedings dated 29.12.2016. Thereafter, he was issued with a charge memo dated 01.02.2017 under Regulation 9(a) of the Tamil Nadu Water Supply and Drainage Board Employees (Discipline and Appeal) Regulations, 1972. The charge memo dated 01.02.2017 is challenged in this writ petition on the ground that the petitioner is a workman, which comes under the TWAD 2/16

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W.P.(MD)No.21791 of 2017

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Board Standing Orders for Workmen, 1998, and not under the Tamil Nadu

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Water Supply and Drainage Board Employees (Discipline and Appeal) Regulations, 1972. On this ground, this writ petition has been filed and it is kept pending for the past seven years.

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The learned counsel appearing for the petitioner, by referring the TWAD Board Service Regulations, 1972, submits that the category 'Turn Cock' in the General Subordinate Service comes under the category No.VIII as defined in the TWAD Board Service Regulations 1972. If there is any act or omission or any misconduct committed, the workman has to be treated only under the TWAD Board Standing Orders for Workmen 1998 and not under the Tamil Nadu Water Supply and Drainage Board Employees (Discipline and Appeal) Regulations, 1972.

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The learned counsel appearing for the petitioner has also produced the TWAD Board Standing Orders for Workmen, 1998 and submits that the “Workman” is defined as that of the “Workman” as defined under Section 2(i) of the Industrial Employment (Standing Orders) Act 1946. The Workman is also classified in clause 3 of the TWAD Board Standing Orders

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W.P.(MD)No.21791 of 2017

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for Workmen 1998 that even a permanent workman is also a workman and a separate procedure has been contemplated under clause 32 of the TWAD Board Standing Orders for Workmen 1998 for conducting any disciplinary proceedings, if any omission or any misconduct committed by a workman.

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The learned counsel appearing for the petitioner has also relied on a Judgment of the Hon'ble Apex Court in S.L.P.(C) No.7571 of 1992 ( M.D.Vijayakumar vs. The Tamil Nadu Water Supply and Drainage Board and others) , wherein, a similar set of disciplinary proceedings was initiated against a workman invoking the provisions of TWAD Board Employees (Discipline and Appeal) Regulation, 1972, instead of the provisions of Model Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, was quashed. The learned counsel further submits that there is no connection in between the affairs of the TWAD Board and duties and responsibilities of the petitioner and the petitioner was working in a remote village as a Turn Cock and the first respondent has issued the impugned charge memo in a mechanical manner, under the Regulation 9(a) of TWAD Board Employees (Discipline and Appeal) Regulations 1972. Therefore, the impugned charge memo is liable to be set 4/16

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W.P.(MD)No.21791 of 2017

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aside.

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The learned Standing Counsel submits that the order impugned in

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this writ petition is only a charge memo and this Court is not expected to interfere at the stage of charge memo. The charge memo cannot be a subject matter of challenge, as it does not adversely affect the rights of the delinquent, unless it is established that the same has been issued by an authority not competent to initiate disciplinary proceedings. According to the learned Standing Counsel, the first respondent is the competent authority to issue the charge memo and the petitioner has not raised any ground that the first respondent is not the competent authority. Further, the petitioner has also not attributed any mala fide for issuing the charge memo.

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The learned Standing Counsel further submits that the petitioner was involved in a criminal case, for which, he was arrested and he was unauthorisedly absent for more than 15 days without any leave application and also without intimating the same to the TWAD Board and therefore, he is liable to be prosecuted for his misconduct and there is no reason to interfere with the charge memo at this stage. The learned Standing Counsel

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W.P.(MD)No.21791 of 2017

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further submits that the petitioner is designated as Maintenance Assistant on

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time scale of pay and he is a regular employee and therefore, the first respondent is entitled to initiate disciplinary proceedings against the petitioner under the TWAD Board Employees (Discipline and Appeal) Regulations 1972.

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This Court considered the rival submissions made and perused the materials placed on record.

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The issue raised in this writ petition is that whether the petitioner is a Workman? and whether he can be prosecuted under the TWAD Board Employees (Discipline and Appeal) Regulations 1972 or under the TWAD Board Standing Orders for Workmen 1998?

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The TWAD Board, in its service regulations 1972, has classified each service as under:

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I. Tamil Nadu Water Supply and Drainage Board General Service:-

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Category - 1. Secretary to the Board 1A. Deputy Secretary

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Chief Accounts Officer

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Assistant Secretary to the Board

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Non-Technical Personal Assistant to Chief Engineer.

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II. Tamil Nadu Water Supply and Drainage Board Engineering Service.

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Category - 1. Chief Engineer

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Superintending Engineers.

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Executive Engineers (including Deputy Chief Engineer)

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Assistant Executive Engineers (B.P.Ms.No.124 dt. 6.4.88)

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Chief Head Draughtsman

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Assistant Engineer (B.P.Ms.No.124 dt. 6.4.88) 7. Assistant Water Analyst (B.P.Ms.No.124 dt. 6.4.88)

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Assistant Geologist

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(B.P.Ms.No.124 dt. 6.4.88) and 9. Geological Assistant (B.P.Ms.No.124 dt. 6.4.88).

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III. Tamil Nadu Water Supply and Drainage Board Engineering Subordinate Service:-

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Category - 1. Junior Engineers (B.P.Ms.No.124 dt. 6.4.88) 2. Head draughtsman 3. Draughtsman, Grades I, II and III 4. Assistant Draughtsmen 5. Blue Print Operators 6. Water Works Superintendent including Electrical Superintendent (B.P.Ms.No.141 dt. 4.3.86) 7. Work Assistant including Technical Assistant (B.P.Ms.No.141 dt. 4.3.86)

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NOTE: A Junior Engineer or Assistant Engineer or Assistant Executive Engineer or Executive Engineer when posted to a Municipality shall be designated as Municipal Engineer, Grade III, Grade II and Grade I respectively (B.P.Ms.No.124, dated 06.04.88)

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IV. Tamil Nadu Water Supply and Drainage Board

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Ministerial Service.Category - 1. Superintendents 2. Managers 3. Office Assistants 4. Assistants

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Confidential Stenographer

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Upper Division Stenographer (Camp Clerk to Chief Engineer)

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Junior Assistants

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Typists including Steno-typists

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Store – Keepers

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Rceptionist-cum-Telephone Operator

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Works Clerk (B.P.Ms.No.141,

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dated 4.3.86) and

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Record Assistant (B.P.Ms.No. 141, dated 4.3.86)

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V. Tamil Nadu Water Supply and Drainage Board Basic Service:-(B.P.Ms.No.585, dated 10.12.81)

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Category - 1. Daffedar

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Basic Servants and

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Basic workers including Watchman, Lascars, Gardeners and Sweepers

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VI. Tamil Nadu Water Supply and Drainage Board Accounts Service:- (B.P.Ms.No.321, dated 2.7.84) Category - 1. Accounts Officer (Entitlement)

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Other Accounts Officers.

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VII. Tamil Nadu Water Supply and Drainage Board Accounts Subordinate Service (B.P.Ms.No.321, dated 2.7.84)

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Category - 1. Junior Accounts Officer

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Divisional Accountants

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VIII. Tamil Nadu Water Supply and Drainage Board

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General Subordinate Service:-

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(i) Maintenance and Operation Branch :-

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Category - 1. Electrician Grade I and II

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Fitters, Grade I and II (including Crane Operator and Mixer Machine Operator)

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Plumber

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Filter Operator & Mechanic including Filter Bed Operator

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Turn Cock

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Pump Operator including Assistant Mechanic

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Work Inspector Grades I and II

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Helper

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Cleaner Grades 1 and II and

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Boring Mechanic

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(ii) Research branch:-

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Category - 1. Junior Water Analyst including

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Laboratory Assistant and Chemist,

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and

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Laboratory Attender

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(iii) General Branch:-

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Category - 1. Driver including Jeep, Van, Lorry, Rigs and Tractor Driver, and

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Record Clerk

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IX. Tamil Nadu Water Supply and Drainage Board Mechanical Subordinate Service:- (B.P.Ms.No.141, dated 4.3.1986)

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Category1. Junior Mechanical Engineer

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Foreman (Mechanical/Electrical)

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Assistant Foreman

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Mechanic Grades I and II

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Rewinder

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Assistant Rewinder

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Turner

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Welder Grades I and II

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Smith

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Machinist

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Tinker

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Auto Electrician

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Painter

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Tool Room Attender

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Tool Keeper

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Drilling Supervisor

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Driller

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Assistant Driller, and 19. Air Compressor Operator including Air Compressor Mechanic.

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Admittedly, the petitioner was appointed as a Turn Cock and his

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nature of service even on the date of issuance of charge memo is only to operate the valve in a pumping station. Therefore, his nature of work is only as Turn Cock. The TWAD Board has framed separate Standing Orders for dealing with the misconduct if any committed by a workman. 'Workman' is classified in clause 3 of the TWAD Board Standing Orders for Workmen 1998 and a permanent workman comes under the TWAD Board Standing Orders for Workmen 1998. A separate procedure has been contemplated in TWAD Board Standing Orders for Workmen 1998 to deal with the departmental proceedings as against the workman. Further, the “Workman” is defined as that of the “Workman” as defined under Section 2(i) of the Industrial Employment (Standing Orders) Act 1946. Section 2(i) of the Industrial Employment (Standing Orders) Act 1946 is extracted as

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W.P.(MD)No.21791 of 2017

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under:

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“2(i). “wages” and “workman” have the meanings respectively assigned to them in clauses (rr) and (s) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947).”

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The learned counsel appearing for the petitioner has also relied on a Judgment of the Hon'ble Apex Court in S.L.P.(C) No.7571 of 1992 ( M.D.Vijayakumar vs. The Tamil Nadu Water Supply and Drainage

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Board and others) , wherein, a similar set of disciplinary proceedings was initiated against a workman invoking the provisions of TWAD Board Employees (Discipline and Appeal) Regulation, 1972, instead of the provisions of Model Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, was quashed.

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No doubt, the Courts are not supposed to entertain the writ petitions on a charge memo. However, if the charge memo has been issued by an incompetent authority or issued with mala fide or against the provisions of law, the Courts can interfere with the charge memo. In this case, though a separate provision is available for conducting the

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departmental proceedings as against the workman under TWAD Board Standing Orders for workman 1998, the first respondent has issued the charge memo in a mechanical manner as against the workman under the Tamil Nadu Water Supply and Drainage Board Employees (Discipline and Appeal) Regulations, 1972. On this ground, this Court is inclined to allow the writ petition by setting aside the impugned charge memo.

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Accordingly, this writ petition is allowed and the impugned charge memo dated 01.02.2017 issued by the first respondent is hereby quashed.

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Though this Court has not granted any interim order preventing the Enquiry Officer from proceeding with the enquiry, it appears that the Enquiry Officer has not conducted the enquiry from the year 2017. Therefore, this Court directs the first respondent to appoint a new Enquiry Officer as contemplated under the TWAD Board Standing Orders for Workmen 1998 and issue a fresh charge memo under the TWAD Board Standing Orders for Workmen 1998 and conclude the enquiry within a period of six months from the date of receipt of a copy of this order. The 14/16

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W.P.(MD)No.21791 of 2017

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petitioner is also expected to co-operate for the enquiry without taking unnecessary adjournments. No costs. Consequently, connected miscellaneous petition is closed.

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21.11.2024

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ogy NCC : Yes / No. Index : Yes / No. Internet : Yes / No. To

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The Executive Engineer, Tamil Nadu Water Supply and Drainage Board, Maintenance Division, TWAD Complex, Mattuthavani Road, K.Pudur, Madurai – 625 007.

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The Managing Director, Tamil Nadu Water Supply and Drainage Board, 31, Kamarajar Salai, Chepauk, Chennai – 600 005.

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W.P.(MD)No.21791 of 2017

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B.PUGALENDHI, J.

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ogy

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W.P.(MD)No.21791 of 2017

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21.11.2024

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D.Gurusamy, v. the Executive Engineer

Case brief

What is this about?

What did the court decide?

D.Gurusamy, v. the Executive Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

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