Paneerselvam.S Vs Tamilnadu Generation and Distribution Corporation Ltd.

PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order passed by the fourth respondent in Ku.Aa.No. 366/Vu.Ni.Aa/Ni.Me/Ni.Vu1/Kho/Thani/2020-1, dated 30.12.2020, imposing the punishment of postponement of petitioner's next annual increment for six months without cumulative effect excluding the leave period, order of third respondent Ku.Aa.No.2981/0432/Ni.Pi.5/Ni.Me/Ni.Vu. 1/Kho.O.Na.Me.Murai/2021, dated 16.09.2021 in rejecting the appeal preferred by the petitioner and consequential order of the second respondent in Memo No. 025543/G1/G11/2020-30, dated 07.03.2022, cancelling the selection of the petitioner from the panel for promotion to the post of Assistant Executive Engineer / Electrical approved on 25.01.2021, quash the same and consequently direct the respondent to promote the petitioner herein to the post of Executive Engineer / Electrical on par with his immediate juniors in the appropriate place on regular basis which has been dealt with held on account of he impugned punishment of stoppage of increment for six months without cumulative effect with all consequential service and monetary benefits within a short date as may be fixed by this Court.

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For Petitioner : Mr.T.Arul. For Mr.A.Rahul For Respondents : Mr.B.Ramanathan, Standing Counsel

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O R D E R

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This writ petition has been filed challenging the impugned orders dated 16.09.2021, 30.12.2020 and 07.03.2022, imposing on the petitioner the punishment of increment cut for six months without cumulative effect, excluding the leave period on the petitioner and a consequential direction has also been sought for by the petitioner to promote the petitioner to the post of Assistant Executive Engineer / Electrical on par with his immediate juniors in the appropriate place on a regular basis which has been withheld on account of the impugned punishment.

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The petitioner has challenged the impugned orders on the ground of violation of principles of natural justice and also on the ground that the impugned orders are non-speaking orders. According to the petitioner, he is an innocent person and the charges framed against him, viz., charge Nos.1 and 2 are false charges. According to him, despite giving a detailed explanation to the respondent that he is innocent of the charges framed against him, the respondents under the impugned orders without holding an enquiry and without considering the petitioner's explanation have imposed the punishment on the petitioner as stated supra which has caused stigma. The petitioner also claims

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that if the punishment orders were not imposed, he would have been promoted to the post of Assistant Electrical Engineer / Electrical, which has now been deprived to him due to the impugned punishment orders.

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The learned counsel appearing for the petitioner drew the attention of this Court to the explanation dated 29.12.2020 submitted by the petitioner to the respondents and would submit that despite giving a detailed explanation with regard to charge nos.1 and 2 that the petitioner is not guilty of the said charges, the respondents under the impugned orders have not considered the said explanation on merits and in accordance with law as there is absolutely no discussion in the impugned orders with regard to the explanation submitted by the petitioner on 29.12.2020.

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On the other hand, the learned Standing Counsel appearing for the respondents would submit that the impugned orders speak for themselves and the respondents have rightly rejected the petitioner's explanation. He would also submit that the petitioner did not submit any explanation with regard to charge No.1 and has submitted his explanation only with regard to charge No.2. The learned Standing Counsel also relied upon the judgment of the Hon'ble Supreme Court in the case of Government of West Bengal and Others Vs. 4/13

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Dr.Amal Satpathi and others reported in 2024 INSC 906 and would submit that since the petitioner has retired from service after filing of this writ petition, as per the aforesaid decision, a person, who has retired from service cannot seek for notional promotion, since the promotion requires actual assumption of duties and responsibilities of promotional post.

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On the other hand, the learned counsel appearing for the petitioner would submit that the aforesaid decision has no applicability to the case of the petitioner. According to him, since the petitioner was earlier promoted and allotment orders were also issued, which was subsequently cancelled, the aforesaid decision of the Hon'ble Supreme Court relied upon by the learned Standing Counsel appearing for the respondents has no applicability to the facts of the present case.

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The charges framed against the petitioner in the disciplinary proceedings are as follows:

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a. Charge No.1- the first charge was that the transformer situated on the banks of Valkkai Sathiyamangalam Kongan Canal was kept shutdown for thirty days. When the same was questioned, the petitioner replied that he was not aware of the same.

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b. Charge No.2 - the second charge was that Umayalpuram transformer failure was not attended promptly and special transformer was arranged for replacement and the same was brought to Kabistahalam on 24.11.2020 itself and the same was installed only on 27.11.2020. Thus, there was a delay in installing the said transformer.

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The petitioner has submitted his explanation dated 29.12.2020 denying the aforesaid charges. He has contended that the said transformer referred in the first charge was kept down as a precautionary measure for two days only in order to protect lives during the time of Nivar cyclone due to heavy rain and wind. According to the petitioner, as seen from the said explanation, several feeders were cut during the cyclone due to heavy wind and falling of tree branches. Therefore, according to the petitioner, it took two days time for the petitioner to rectify disruption of electricity supply in that area. According to the petitioner, since there was copious rain, the farming activity did not require water as all agricultural fields were surrounded by water. With regard to the second charge, the petitioner, in his explanation, has contended that Umayalpuram III 100 KVA Transformer was surrounded by thick wood trees and the said area could not be accessed due to wet and soggy soil. According to 6/13

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the petitioner, though the said transformer was brought from Theni to Kabistahalam on 25.11.2020 and the same was installed only on 27.11.2020 due to inaccessibility of the area. The petitioner in his explanation has also submitted that the Operation and Management (O&M) Team has alerted all the employees to take all the safety calls which were required in the situation. According to the petitioner, he has carried out all such action in good faith and as such, according to him, there is no negligence on his part.

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After drawing the attention of this Court to the impugned punishment orders, the learned counsel would submit that the explanation submitted by the petitioner as stated supra has not been considered in the impugned orders. He would further submit that the impugned orders are non-speaking and that they have been passed in violation of principles of natural justice.

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The learned counsel appearing for the petitioner would also submit that the petitioner is entitled for notional promotion. According to him, the impugned orders have been passed without any basis. He would also submit that the impugned orders being non-speaking orders and passed in violation of principles of natural justice, the impugned orders have to be quashed. He would also submit that prior to the passing of the impugned orders, the petitioner was 7/13

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promoted to the higher post, but, in view of the charges framed against him in the disciplinary proceedings, the order of promotion came to be cancelled by the respondents, which according to the petitioner is arbitrary and illegal.

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On the other hand, the learned Standing Counsel appearing for the respondents drew the attention of this Court to the decision of Government of

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West Bengal and Others Vs. Dr.Amal Satpathi and others reported in 2024 INSC 906 and would reiterate that the petitioner is not entitled for any notional promotion, since he had already retired from service as promotion requires actual assumption of duties and responsibilities of the promotional post. However, this Court is not going into that aspect for the present, for the following reasons.

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a. The impugned orders passed by the respondents imposing the punishment in the disciplinary proceedings i.e., imposing punishment of stoppage of increment for a period of six months without cumulative effect has been passed without giving due consideration to the explanation submitted by the petitioner as stated supra. A detailed explanation was given by the petitioner on 29.12.2020. Though the respondents under the impugned orders have made a reference to the said explanation, but, the respondents have not 8/13

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chosen to pass a speaking order with regard to the said explanation and has not given reasons as to why the explanation submitted by the petitioner does not deserve any merit.

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The learned counsel appearing for the petitioner also drew the attention of this Court to an order dated 29.09.2021 passed by another learned Single Judge of this Court in the case of R.Sivakumar and another vs. the

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Sercetary to Government, Commissioner of Revenue Administration,

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Chepauk, Chennai-5 and others in W.P.Nos.30561 and 30079 of 2008 batch, dated 29.09.2021 and in particular, he referred to paragraph no.28 of the said decision. As seen from the said decision, the respondents being quasi-judicial authorities are expected to have followed proper procedure, set out under Rule 23, i.e., to marshal the facts and advert to the basis of the charges instead of simply extracting them. The learned Single Judge has stated that in the absence of any adherence to the above, the impugned orders will have to be set aside by the Court.

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As seen from the impugned orders, a detailed explanation submitted by the petitioner as referred to supra in the earlier paragraphs of this order have not been considered and the reasons have not been given as to why the said 9/13

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explanation is unsatisfactory, and therefore, this Court is of the considered view that the impugned orders are non-speaking orders with regard to the petitioner's contention as contended in his explanation.

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Though by reading the explanation submitted by the petitioner dated 29.12.2020, the learned Standing Counsel would submit that the petitioner has given an undertaking in the said explanation that in future he shall not commit the very same fault, this Court is of the considered view that in the explanation, the petitioner has pleaded innocence of the charges and being an employee of the respondent Corporation, it is normal for any employee to say that in future, he will not commit any mistake. Therefore, this Court is of the considered view that the submission made by the petitioner in the concluding paragraph of his explanation cannot be utilized by the respondents for the purpose of claiming that the petitioner has himself acknowledged the fact that he is guilty of the charges levelled against him which is not correct. Insofar as the notional promotion sought for by the petitioner through this writ petition is concerned, this Court is not deciding the said issue on merits, as it is open for the respondents to consider the same when the respondents rehear the matter. Though the learned Standing Counsel appearing for the respondents relies upon the judgment of the Government of West Bengal and Others Vs. Dr.Amal 10/13

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Satpathi and others reported in 2024 INSC 906 referred to supra, the respondents can apply the said ratio, if they feel that the same is applicable to the case of the petitioner as the petitioner before this Court categorically contends that the said decision is not applicable to the case of the petitioner.

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Since the impugned orders are non-speaking orders with regard to the petitioner's explanation i.e., he is innocent of the charges, necessarily, the impugned orders have to be quashed and the matter is remanded back to the disciplinary authority for fresh consideration on merits and in accordance with law within a time frame to be fixed by this Court.

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For the foregoing reasons, the impugned orders dated 16.09.2021, 30.12.2020 and 07.03.2022 are hereby quashed and the matter is remanded back to the fourth respondent for fresh consideration on merits. This Court makes it clear that all issues are left open for the fourth respondent to decide including the request of the petitioner for notional promotion. The fourth respondent is directed to pass final orders on merits and in accordance with law after giving due consideration to the explanation dated 29.12.2020 and by giving proper reasons, pass a speaking order with regard to the said explanation within a period of three months from the date of receipt of a copy of this order. 11/13

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