Since all these matters are inextricably interconnected with each other, they are heard in common and are being disposed of by this common judgment.
2. For the sake of convenience and easy reference, the writ petitioners and the respondents in the writ appeals are referred to as the writ petitioners/delinquent employees and the appellants in the writ appeals and the respondents in the writ petitions are referred to as the respondents/department.
3. On a perusal of the entire materials placed on record, it is seen that for some alleged misconducts, charges were framed against the writ petitioners by the Department and after conducting an enquiry, all the writ petitioners were found guilty of the respective charges framed against them and by the impugned orders, they all are dismissed from service. Challenging such dismissal orders, the employees have filed writ petitions before this Court.
4. In the two writ petitions filed by T.Sivanandan and M.Jagadeesan, the respondents in the writ appeals, orders have been passed by two learned single Judges of this Court, ordering their reinstatement with all incidental benefits. Aggrieved by the said orders passed by the learned single Judges, the Department has come forward to prefer the writ appeals. When the writ appeals were taken up for consideration, since it has been brought to the notice of the Division Bench that three other writ petitions, pertaining to the same facts are also pending on the file of this Court, W.P.Nos.2265, 4409 and 12550 of 1994 are ordered to be tagged along with the Writ Appeals No.1462 of 1998 and 277 of 1999 so as to dispose them of together. Accordingly, all these matters are clubbed together for common disposal.
5. The main attack to the impugned orders of dismissal by the delinquent officials is that on completion of the enquiry and before inflicting the major punishment, they were not issued with any show-cause notice (second show-cause notice) by the officials so as to represent their grievance regarding the proposed punishment. The learned single Judges have affirmed the contention raised on the part of two of the employees, who are the respondents in the above Writ Appeal Nos.1462 of 1998 and 277 of 1999 and held that non-issuance of the second show-cause notice has vitiated the enquiry proceedings. In arriving at such a conclusion, the learned single Judges have placed reliance on Rule 6.17 of the SIDCO service Rules, which reads as follows:
"Before imposing any of the penalties, the competent authority shall give a reasonable opportunity to the employee concerned to show cause against such imposition."
6. It is to be mentioned here that the above provision i.e. Rule 6.17 of the SIDCO Service Rules, seems to have its origin/genesis from
Article 311(2) as it stood earlier, contemplating issuance of second show-cause notice. But, the 42nd Amendment of the Constitution, which came into effect on and from 3.1.1977, has deleted the second stage of the inquiry, which would commence with the service of a notice proposing one of the punishments mentioned in
Art.311(1) of the Constitution. It seems, consequent upon the 42nd Amendment of the Constitution, the above quoted Rule 6.17 of the SIDCO Rules has also been amended by the Resolution No.131 of the 64th Board Meeting dated 11.3.1980 and the new Rule 6.17 has been brought into operation which reads as follows:
"After the enquiry or personal hearing are completed and after the authority competent to impose the penalty has arrived at a provisional conclusion in regard to the penalty to be imposed on the basis of the evidence adduced during the enquiry, it shall make an order imposing such penalty and it shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed."
7. Therefore, on the part of the respondents/Department, it has been strenuously argued that when the Rules themselves do not provide any such second show-cause notice to be issued to the delinquent officials, it is rather strange on the part of the delinquent officers to putforth such an argument.
8. However, to substantiate their arguments, on the part of the writ petitioners/employees a three Judge Bench judgment of the Honourable Apex Court in UNION OF INDIA AND OTHERS vs. MOHD.RAMZAN KHAN [AIR 1991 SC 471] has been pressed into service. In the said judgment, the Honourable Apex Court has held as follows:
"Deletion of the second opportunity from the scheme of
Art.311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in
Art.311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While bylaw application of natural justice could be totally ruled out or truncated, nothing has been done by the 42nd amendment which could be taken as keeping natural justice out of the proceedings and the applicability of the rules of natural justice to such an inquiry is not affected by the 42nd amendment. Therefore supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position."
9. Placing reliance on the above judgment of the Honourable Apex Court, it has been argued on the part of the writ petitioners/employees that even though the second stage of the inquiry in
Art.311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer and therefore, the Department ought to have given an opportunity for the delinquent to represent against the conclusion of the Inquiry Officer and since the said procedure has not been followed, the impugned orders passed by the respondents/Department must be set aside.
10. We are not convinced at the above argument advanced on the part of the writ petitioners/employees. In all these cases, the impugned orders of dismissal were slapped on the delinquent officials on 8.11.1989. As has already been adverted to supra, Rule 6.17 of the Service Rules was amended by the Resolution No.131 of 64th Board Meeting, dated 11.3.1980, keeping pace with the 42nd Amendment of the Constitution, which came into effect on and from 3.1.1977, thus taking away the second stage of enquiry. The amended Rule 6.17 has been in operation from 11.3.1980, which does not provide any such provision to issue second show-cause notice to the delinquent officer. But, heavy reliance has been placed on the part of the delinquent officials on judgment of the Honourable Apex Court in Mohd.Ramzan Khan case (referred supra), which was rendered by the Honourable Apex Court 20.11.1990.
11. In a subsequent judgment in P.D.AGRAWAL vs. STATE BANK OF INDIA AND OTHERS [(2006) 8 SCC 776], the Honourable Apex Court has clarified the position in the following manner:
"The decision in Mohd.Ramzan Khan case, (1991) 1 SCC 588 was rendered on 20.11.1990 wherein while holding that a delinquent officer could not be called upon to make a representation on the quantum of punishment without furnishing a copy of the enquiry report,the decision was expressly given a prospective effect. It was,therefore, not at all necessary for the disciplinary authority, in view the law as it then stood, to furnish a copy of the enquiry report to the appellant."
12. This judgment of the Honourable Apex Court squarely applies to the cases on hand. As has already been mentioned supra, in all these matters, the walking papers were served on the writ petitioners/employees on 8.11.1989 and the judgment of the Honourable Apex Court in Mohd.Ramzan Khan case has been rendered in 20.11.1990, as has been clarified by the Honourable Apex Court in P.D.Agrawal case, the delinquent officers in the cases on hand cannot cling on the findings of the Honourable Apex Court in Mohd.Ramzan case, which is only prospective in nature i.e. from 20.11.1990 onwards. Therefore, this argument advanced on the part of the writ petitioners/employees fails.
13. It has been consistently maintained on the part of the Department that in the domestic enquiry all the employees have accepted their guilt and since being the case of misappropriation of public money, the Department was left with no choice but to pass the orders of dismissal on the delinquent employees.
14. A perusal of the enquiry reports would justify the contention of the Department that the delinquent officers in all these matters have accepted their guilt for one reason or other. From the materials placed on record, we are able to see that the alleged misappropriated amounts have been repaid by the delinquent officers and submitted themselves for the enquiry, thus bringing down the misappropriation to one of temporary misappropriation. It has been strongly submitted on the part of the delinquent employees that since they were given false hopes at the higher end that if they remit back the alleged misappropriated amount and admit their guilt, they would be let off from the further ordeal, all of them, in one voice, have accepted their alleged guilt. It has further been submitted on the part of the writ petitioners/employees that though at the first instance the Enquiry Officer, by his order dated 2.2.1989, has furnished the report that they are not responsible for the alleged lapses, subsequently, at the direction of the new Chairman and Managing Director F.Z.Vaz, who replaced the earlier Chairman and Managing Director Mr.J.R.Ramanathan, who are in loggerheads with each other, the very same Enquiry Officer has furnished another report dated 6.2.1989 holding all the charges proved against the delinquent officials.
15. Though this contention of the delinquent officials is expectedly denied by the Department as imaginary, a scrutiny of the entire materials placed on record would speak otherwise, fortifying the contention raised on the part of the delinquent officials.
16. It is seen that the Board in its 106th meeting held on 26.12.1988 accepted the reimbursement effected on the part of the delinquent officials and revoked their suspension, further directing to dispose of the charge memos. issued to them. The Department, which is burdened to prove the charges levelled against the delinquent officials, has not adduced any oral or documentary evidence in the enquiry conducted by the Enquiry Officer, whereby a legal presumption would arise that only to help the delinquent officials, who have already paid back the alleged amounts, the Department, taking a lenient view, has not pursued the enquiry proceedings. Had the Department is serious in pursuing the enquiry proceedings, it should have marked the documents before the Enquiry Officer to bring home the guilt of the delinquent officials. But, it has not been done. Even in his report, the Enquiry Officer has placed much reliance only on the admissions made by the delinquent officials and nothing else, since there is no other material made available on record by the Department against the charge-sheeted employees. Therefore, we got every reason to believe the contention raised on the part of the delinquent officials that the change of the Chairman and Managing Director has changed their fate, throwing them out of their service.
17. It is to be pointed out that the submission of the delinquent officials that but for the alleged charges, they have rendered unblemished services has not at all been refuted by the respondents/Department.
18. The other legal aspect we want to discuss is that as against the harsh punishment of plucking away the livelihood of the delinquent officers by the Department, they have preferred appeals to the appellate authority/the Board as provided under Rule 6.25 of the Service Rules, which is extracted hereunder for better understanding:
"6.25:
(A) In the case of an appeal against an order imposing any of the penalties specified in rule 6.15 the appellate authority, shall consider whether the penalty imposed is adequate, inadequate or severe and pass orders (i) confirming, enhancing, reducing or setting aside the penalty or (ii) remitting the case to the authority which imposed the penalty with such direction as it may deem fit in the circumstances of the case.
(B) It shall be open to the Appellate Authority to call for the records in respect of any disciplinary proceeding and review any order made under these rules and pass such orders as it may deem fit in the circumstances of the case."
19. Thus, this Rule confers wide powers on the appellate authority to cure the error or defect committed by the penalty imposing authority, by assessing whether the penalty imposed is adequate, inadequate or severe and pass orders accordingly. Under Rule 6.25(B), the appellate authority has been vested with the power to call for the records in respect of any disciplinary proceeding and review any order made under the rules and pass such orders as it may deem fit in the circumstances of the case. The powers thus conferred on the appellate authority seem to be similar to that of the powers conferred on the Labour Courts, Tribunal and National Tribunals under
Section 11A of the Industrial Disputes Act and therefore, the Appellate Authority must act in a judicious way and see that adequate punishment is imposed on a delinquent officer, if he is of the opinion that the finding of the Enquiry Officer holding the delinquent guilty of the charges and the subsequent punishment imposed by the punishing authority is adequate or reasonable or in other case that he is of the opinion that the Enquiry Officer and the punishment imposing authority have erred in their conclusions, he can very well call for the records and review any order made under the Rules. When this Rule 6.25 has been inducted with such an pious object, in the case on hand, the appellate Authority, without offering any reason for his concurring with the decision arrived at by the Managing Director/the punishment imposing authority, has simply confirmed the order of dismissal passed against all the delinquent officers. No reasons, much less appreciable ones have been offered on the part of the appellate authority.
20. At this juncture, we feel it apt to quote a judgment of the Honourable Apex Court in MATHURA PRASAD vs. UNION OF INDIA [(2007) 1 SCC 437], wherein considering the entire case law on the subject of judicial review, the Apex Court has categorically and in no uncertain terms has ruled:
"When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under the sub-rules are required to be strictly followed...."
21. Further in UNION OF INDIA vs. JAI PRAKASH SINGH [(2007) 10 SCC 712], wherein the Honourable Apex Court has held:
"Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectively by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance."
22. In the cases on hand, as has been adverted to supra, the appellate authority, who is expected to act in a judicious manner, has not offered any reason for his concurring with the harsh and disproportionate punishment imposed on the delinquents by the Managing Director. On the part of the learned counsel appearing for the delinquent officials a judgment delivered by one of us (Elipe Dharma Rao, J), as a single Judge, under the similar circumstances wherein the appellate authority has not considered as to whether the penalty imposed is adequate, inadequate or severe, as required under Rule 6.25A of the Tamil Nadu Small Industries Development Corporation Limited Service Rules, in N.VANAJA vs. THE BOARD OF DIRECTORS OF TAMIL NADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD, CHENNAI [2006 (4) CTC 52] has also been pressed into service, which was followed by another learned single Judge of this Court in ERONIMUS vs. THE S.P., RAMANATHAPURAM [2008 (2) TLNJ 677 (CIVIL)].
23. At this juncture, a pathetic situation has to be pointed out. In all these cases, the harsh and disproportionate punishment of dismissal from service has been imposed by the Managing Director, which has been confirmed by the Board of Directors, headed by the same Managing Director as its Chairman. Therefore, it is but natural that the person who has inflicted the punishment as a punishment imposing authority, cannot bare the brunt by reversing the same while acting as the appellate authority.
24. The materials on record would speak volumes that the then incoming Chairman and Managing Director, for his own reasons, has destined to punish these writ petitioners/delinquents, even though his predecessor-in-office seems to have promised otherwise to the delinquent officers. But for such promise and assurance by the erstwhile Chairman and Managing Director, the delinquent officers may not have remitted the alleged amounts and pleaded guilty for the charges framed by the Department, wherein, unusually, no oral or documentary evidence has been let in on the part of the Department. When, except the alleged charges, no other allegations were ever made and proved against the delinquent officials, had the appellate authority acted in the manner required of him under Rule 6.25, by acting in a judicious manner, he would not have approved such a shocking and disproportionate punishment imposed on the delinquent officials. We make it clear that we are not holding that repayment of the alleged misappropriated amounts by the delinquent officers would itself absolve them of the charges. But, what we want to insist is that in the peculiar facts and circumstances of the case, the punishment imposing authority must have imposed minor penalties on the delinquent employees, so as to deter them from indulging in such activities in future and the appellate authority must have acted in a judicious manner to cure the defect or error committed by the enquiry officer and the punishment imposing authority.
25. For all the above reasons and discussions, we have no hesitation to hold that the punishment of dismissal imposed on all the delinquent officials is shocking the conscious of this Court since being much disproportionate to the charges alleged against them.
26. In UNION OF INDIA & ANOTHER vs. S.S.AHLUWALIA [2007 (6) SUPREME 521], the Honourable Apex Court has held as follows:
"The Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved, in which case the matter is to be remitted to the disciplinary authority for reconsideration of the punishment. In an appropriate case, however, in order to avoid delay the court can itself impose lesser penalty ...."
27. Even though such wide powers are conferred on this Court to interfere with the punishment, we do not want to enter into the shoes of the punishment imposing authority and we feel it suffice to direct the punishment imposing authority to impose minor penalties on the delinquent officials as provided under Rule 6.15(a), reassessing the liability of each of the employee and proportionate to the same. The respondents/Department is directed to reinstate all the delinquent employees, except any of the employee who has attained the age of superannuation, within eight weeks from the date of receipt of a copy of this order and confer on them all the monetary and service benefits as if they are in continuous service, subject of course to the minor penalty to be imposed on them under Rule 6.15(a). After such reinstatement, the respondents should impose the minor penalties on the delinquent officers as provided under Rule 6.15(a). In case of delinquent employees who have by now attained the age of superannuation, the Department is directed to treat them also as continued in service and retired in the ordinary course after attaining the age of superannuation and settle their terminal benefits, subject of course to the minor penalty to be imposed on them under Rule 6.15(a). The entire exercise, including imposing of punishment and settlement of benefits, shall be completed within twelve weeks from the date of receipt of a copy of this order by the respondents/Department.
With such direction, all these matters stand disposed of. No costs. Consequently, C.M.P.Nos.15917 of 1998 and 2954 of 1999 are closed.
Rao To
1.The Manager Legal, Tamil Nadu Small Industries Development Corporation Ltd., 60 Greams Road, Chennai-600006.
2.The Chairman and Managing Director Tamilnadu Small Industries Development Corporation Ltd., 60, Greams Road, Chennai-600006.
3.The Board of Directors, Tamilnadu Small Industries Development Corporation Ltd., 60, Greams Road, Chennai 600 006