The orders of the respondents in (Permanent) B.P.(CH) No.212, dated 23.08.1999 and the consequential order passed in Memorandum No.79295/A5/A51/99-1, dated 10.12.1999, are under challenge in this Writ Petition.
2. Petitioner, a B.E.Graduate of 1963 Batch of Madras University, joined T.N.E.B.as Assistant Engineer on 21.06.1964. He was promoted at regular intervals i.e., to say as Assistant Executive Engineer in the year 1970; as Executive Engineer in the year 1986 and as Superintending Engineer in the year 1997. His retirement was due on 28.02.1998. When he was about to retire after putting in 33 = years of service, to his shock and surprise, a charge memo was issued in No.16 (DD) 1/98-3, dated 12.02.1998, by the respondents, The charges are as follows :
"Charge 1 :
That Thiru J.Kuppuswamy, while he was Superintending Engineer/Materials Management-I submitted note to the Chief Engineer/Materials Management for procurement of SWG G.I Stranded wire of the sizes of 7/11 and 7/12 against specification Nos.11 and 12 during September 1997. The tender committee had approved the procurement of 810 MT for Specification No.11 and 900 MT for Specification No.12.
That Thiru J.Kuppuswamy, as Superintending Engineer/Materials Management-I sought orders for procuring reduced quantity of the materials at 360 MT only for each of the specifications, even though as per the direction of the Board Level Tender Committee, orders should be placed only after obtaining approval of Account Member, with a malafide intention to bring the procurement orders within the Chief Engineer's powers.
Thus he has failed to maintain absolute integrity and devotion to duty and thereby contravened Regulation 3 (a) of the Tamil Nadu Electricity Board Employees' Conduct Regulations.
Charge-2 :
That Thiru J.Kuppuswamy, while he was Superintending Engineer/Materials Management-I scrutinised the relevant office notes and put up the notes during September 1997 to the Chief Engineer/Materials Management for approval to place orders with M/s.Bharat Wire Rope Manufacturing Company, Mumbai for supply of SWG G.I.Stranded Wires of two sizes viz., 7/11 and 7/12 against specification Nos.M-11 and M-12 despite the fact that the said company was a new entrant to the Board in regard to the supply of the said materials.
Thus he has failed to maintain absolute integrity and devotion to duty and thereby contravened Regulation 3 (a) of the Tamil Nadu Electricity Board Employees' Conduct Regulations.
Charge-3 :
That Thiru J.Kuppuswamy, while he was Superintending Engineer/Materials Management-I put up a note on 9.10.1997 to the Chief Engineer/Materials Management suggesting to waive the pre-despatch inspection of the materials viz., SWG G.I.Stranded Wires covered by Specification Nos.M-11 and M-12, at M/s.Bharat Wire Rope Manufacturing Company, Mumbai, on plea of urgency. The said note was approved by the Chief Engineer/Materials Management on 9.10.97. But, the delivery details reveal that the very purpose of waiver of pre-inspection had been defeated as the company has failed to supply the materials within the specified time as per delivery clause.
Thus he has failed to maintain absolute integrity and devotion to duty and thereby contravened Regulation 3 (a) of the Tamil Nadu Electricity Board Employees' Conduct Regulations."
3. To the above charges, the petitioner submitted his explanation on 21.02.1998, denying the charges and further explaining that he was not responsible for the reduction of quantity of procurement. He had explained in his explanation dated 21.02.1998 and subsequent clarifications that a team of officers was responsible for decision making and the ultimate approving authority was the C.E. (MM). In spite of the said reply, the Chief Engineer (Protection & Communication) was appointed as the Enquiry Officer by Board's Memo No.16/DDI/98-6, dated 28.02.1998, and the Enquiry Officer conducted enquiry on 25.04.1998, 27.04.1998, 04.05.1998 and 10.06.1998. During the enquiry, the petitioner had raised two objections viz., copy of preliminary enquiry report was not furnished and that the C.E.(MM) was not examined as a witness.
4. The Enquiry Officer submitted his findings on 27.07.1998 and a copy of the same was served on the petitioner on 29.01.1999. The Enquiry Officer has held that Charge No.1 was proved and Charges 2 and 3 were not proved. But, the second respondent, in his Memo dated 29.01.1999, has proposed to hold that all the charges are held to be proved and called for explanation of the petitioner. Thereafter, the petitioner submitted several representations, requesting for relieving him from the charges. In spite of the same, the second respondent, by his memorandum N.16/D1-98-20, dated 17.07.1999, proposed to reduce a sum of Rs.200/- per month from the pension of the petitioner for a period of one year, which was confirmed by the first respondent in its final order, dated 23.08.1999. The petitioner sent another representation dated 21.10.1999 requesting the first respondent to consider his representation and exonerate him from the proposed penalty. In reply to the said representation, the first respondent issued the memorandum No.79295,A5/A51/99-1, dated 10.12.1999, to the petitioner, informing him that his appeal dated 21.10.1999 was withheld as per Regulation 18 (iii) of the Tamil Nadu Electricity Board Employees' (Discipline and Appeal) Regulations (in short, "the Regulations"). Hence, this Writ Petition.
5. A counter has been filed by the respondents, stating as follows :
5.1. The petitioner, while he was working as Superintending Engineer, Material Management-I, committed certain irregularities and hence a charge memo was issued on 12.02.1998. Pending disciplinary proceedings, he was allowed to retire from service on 28.02.1998 on attaining the age of superannuation. However, disciplinary proceedings were continued under Rule 9 (1) of the Tamil Nadu Pension Rules, which was made applicable to the employees of the Board. The petitioner submitted his written statement of defence on 21.02.1998, denying all the charges framed against him and opted for both oral enquiry and hearing in person. The petitioner was sanctioned provisional pension and 50% of Death-cum-Retirement Gratuity.
5.2. The first respondent, in his Memo.dated 28.02.1998, appointed the Chief Engineer, Protection and Communication, Chennai as the Enquiry Officer to enquire into the charges framed against the petitioner. The Enquiry Officer, after holding a detailed enquiry by providing all the reasonable opportunities to the petitioner, submitted his report together with findings holding that the Charge No.1 was proved and Charge Nos.2 and 3 were not proved.
5.3. On receipt of the findings of the Enquiry Officer, the second respondent gave a notice in Memo.dated 29.01.1999 informing that it was proposed to hold that the Charge Nos.2 and 3 had also been proved, after disagreeing with the findings of the Enquiry Officer and the petitioner was given an opportunity to submit his representation. Accordingly, the petitioner submitted his further representation on 12.03.1999. The second respondent, after considering the charges framed against the petitioner, his explanation, the findings of the Enquiry Officer and the further representation submitted by the petitioner to the notice dated 29.01.1999, issued a show cause notice on 17.07.1999, proposing to reduce his pension by Rs.200/- per month for a period of one year. The petitioner submitted his reply to the show cause notice on 28.07.1999. After carefully considering the entire matter, the second respondent in (Per) B.P.(Ch) No.212 (SB), dated 23.08.1999, passed an order reducing the pension of the petitioner to the tune of Rs.200/- per month for a period of one year, as a measure of penalty for the charges held proved.
5.4. Against the order of the second respondent, dated 23.08.1999, the petitioner preferred an appeal to the Board on 21.10.1999. Since the petitioner had not filed the appeal within the prescribed time of one month and as the appeal was belated, his appeal was withheld by the first respondent under Rule 18 (iii) of the Regulations. Therefore, this Writ Petition is liable to be dismissed.
6. Learned counsel for the petitioner has strenuously contended that the petitioner had an unblemished record for the last 33 years of his service and not even a memo was received by him nor was any disciplinary action taken; that being so, just before 16 days of his retirement in February,1998, a charge memo was issued on 12.02.1998, for no fault of him; his appeal was not considered; there was no indication in the order of the disciplinary authority passed by the Chairman that an appeal would lie within 30 days and it gave an impression that the order was passed by the Board, though signed by the Chairman, and, accordingly, the petitioner preferred a review petition on 21.10.1999 as against the order passed on 23.08.1999 within a period of 60 days, but the same was withheld by the respondents and, therefore, non-consideration of the review petition would vitiate the entire proceedings.
7. The learned counsel would further contend that only at the instance and oral instructions of the Chief Engineer, the petitioner reduced the quantity of stay wires and put up the note to him for orders, as he had informed him that only for increasing the quantity, Board's approval was required as per the regulations and not for the reduced quantity and the said oral instruction had been supported by the defence witness Mr.V.Rathnam, Assistant Executive Engineer, who deposed consistently about the various oral instructions given by the Chief Engineer and the procedure adopted by the Material Management Wing while finalising the tenders but the same were not taken into account by the Enquiry Officer as well as the disciplinary authority.
8. Lastly, the learned counsel would contend that the officers below will prepare the tender note and, thereafter, the petitioner will finalise the note and submit the same to the Chief Engineer, who is the higher authority, for approval and, as such, it is the collective decision, for which the petitioner alone has been singled out and he became the scapegoat for the entire transactions and hence there is a discrimination. In support of his contention, the learned counsel relied upon a decision of the Supreme Court in Bongaigaon Refinery & Petrochemicals Ltd. v. Girish Chandra Sarma,(2007) 7 SCC 206, wherein it has been held as follows :
"21. So far as the legal proposition as contended by the learned Additional Solicitor General with regard to appreciation of evidence is concerned, there is no quarrel that the courts cannot sit as appellate authority over the domestic enquiries but in the present case what appears to us is that the respondent has become a scapegoat in order to make someone responsible for no fault of his. He alone was targeted for the simple reason that he submitted preliminary report where the price of the land proposed by the landowner was Rs.30 lakhs. But this was tentative price given by the landowner and the authorities negotiated with the landowner and she quoted the price at Rs.61 lakhs and thereafter they again negotiated with her. The background was fully known to Shri S.C. Goswami, General Manager (Marketing) who was the Chairman of the Price Negotiation Committee and even otherwise also just because that one of the officers has submitted a preliminary report intimating the price given by the landowner as Rs.30 lakhs for 7 acres of land, that does not bind the landowner to sell the land for similar price, later on if she wriggles out, for which the officer of the appellant Company who had inquired from the landowner cannot be found guilty. The respondent cannot be held responsible for the same and more so, in the present case the price has been negotiated by the Price Negotiation Committee. Therefore, simply because a preliminary report was submitted by the respondent and all the three Committees in which he was a member along with others cannot disown their liability. If the respondent is targeted then all the members of the Committees are equally responsible. Therefore, such finding given by the enquiring authority cannot be countenanced...."
9. The above contentions have been controverted to by the learned counsel for the respondents, contending that the petitioner was given an opportunity to give his explanation to the charges and, on 21.02.1998, he submitted his explanation, asserting that he had maintained absolute integrity; the Enquiry Officer, after a detailed analysis of the documents and the records, found that the petitioner was guilty of the first charge and exonerated the petitioner from the charges 2 and 3 and that the manner of enquiry cannot be questioned on the grounds of non-furnishing with the documents requested by the petitioner and non-examination of the Chief Engineer, who according to the petitioner, was responsible. The learned counsel also contended that the petitioner filed an appeal on 21.10.1999 and, as the said filing was not in time, the appeal was withheld. According to the learned counsel, Regulation 14 is inapplicable to the case of the petitioner, as it would deal with the review of the orders passed by the Board, and hence, the appeal was belated.
10. I have heard the learned counsel for the parties and also gone through the material documents and the reliance made by the learned counsel for the petitioner.
11. It is to be seen that the petitioner had joined as Assistant Engineer on 21.06.1964; he was promoted as Assistant Executive Engineer in the year 1970; then as Executive Engineer in the year 1986 and later as Superintending Engineer in the year 1997 and he was in the said post with an unblemished record of service till the date of his retirement. He retired on 28.02.1998, after 33 years of service. However, a charge memo was issued to him on 12.02.1998, alleging that he, while he was Superintending Engineer, submitted a note to the Chief Engineer for procurement of 810 MT of SWG G.I.Stranded wire for Specification No.11 and 900 MT for Specification No.12, during September 1997, and the tender committee approved the same and that the petitioner sought orders for procuring reduced quantity of the materials at 360 MT only for each of the specifications, even though as per the direction of the Board Level Tender Committee, orders should be placed only after obtaining approval of the Account Member, within the Chief Engineer's powers. The second charge was that the petitioner scrutinised the relevant office note and put up the same before the Chief Engineer for approval to place orders with M/s. Bharat Wire Rope Manufacturing Company for supply of wire against Specification Nos.11 and 12, despite the fact that the said company was a new entrant to the Board with regard to the supply of the said material. The third charge was that the petitioner put up a note on 09.10.1997 to the Chief Engineer/MM, suggesting to waive the pre-despatch inspection of the materials and the said note was approved by the Chief Engineer on 09.10.1997, but the details revealed that the waiver of pre-inspection was defeated, as the company had failed to supply the materials within the specified time as per delivery clause and, thus, he failed to maintain absolute integrity and devotion to duty and thereby contravened Regulation 3 (a) of the Regulations.
12. The petitioner submitted his explanation to the above charges on 21.02.1998, stating that he was not responsible for the reduction of the quantity of procurement, placing orders with M/s.Bharath Wires and waiver of pre-inspection and that it was a team of officers that was responsible for decision making and the ultimate approving authority was the the Chief Engineer/MM. He further specifically submitted that CE/MM alone was responsible for the alleged irregularities or lapses and he had never prepared or put up the notes except forwarding notes prepared by the Assistant Executive Engineer and the Executive Engineer.
13. In spite of the above explanation, an enquiry was conducted and thereafter a report submitted. However, in the enquiry, except marking certain documents, the Board did not examine any witnesses to substantiate the charges levelled against the petitioner. The petitioner raised a preliminary issue that the enquiry report was not furnished to him and the crucial witness, namely, Chief Engineer/MM was not examined as a witness. He also made a consistent plea for the appearance of CE/MM, as it was very essential to decide the issue as he was the higher deciding authority in respect of procurement and waiver of pre-inspection and the petitioner only carried out his oral instructions. Despite these objections, the Board did not choose to examine the CE, as a witness. However, the enquiry was proceeded and the Enquiry Officer submitted his report on 27.07.1998. In the findings of the Enquiry Officer, it was held that Charge No.1 was proved against the petitioner and Charges 2 and 3 were not proved. The second respondent, who is the disciplinary authority, through his memo, dated 29.01.1999, proposed to hold that all the charges are held to be proved and called for explanation from the petitioner. Thereafter, the petitioner submitted his explanation on 12.03.1999, explaining the entire situation and requesting to drop the proceedings. However, the second respondent continued with the proceedings and passed the order dated 23.08.1999, imposing the punishment of reducing a sum of Rs.200/- per month from the pension of the petitioner for a period of one year. The said order, passed by the Chairman, was without any indication to the effect that appeal remedy was available to the petitioner within a time frame as per the regulations. Therefore, the petitioner made a review petition on 21.10.1999 and the same was withheld by the order impugned of the respondent, dated 10.12.1999. Hence, both the orders are under attack by the petitioner in this Writ Petition.
14. A circumspection of the facts would reveal that during the service of the petitioner as Superintending Engineer, the Tender Committee had approved the procurement of 810 MT. SWG.G.I stranded wire for specification No.11 and 900 MT.for specification No.12. However, on the oral instruction of the Chief Engineer/MM, the said quantity was reduced to 360 MT for each of the specifications and it was placed for obtaining approval of the Chief Engineer. The charges were denied by the petitioner and there was insistence on examination of the Chief Engineer. Before the Enquiry Officer and in the explanation to the show cause notice, it is the consistent statement of the petitioner that Chief Engineer/MM orally instructed for reduction of the quantity of the wire and that the proposal could be straightaway put up to the Chief Engineer for approval and that only for increasing the quantity, Board's approval was required as per the regulations. It is also the stand of the petitioner that in every tender note, requesting approval for reduction of quantity, every process till finalisation of the tender was only as per the oral instructions of the Chief Engineer and that if his instructions were not obeyed, action would have been taken against him by the CE.
15. All the above points have been analysed by the Enquiry Officer and he concluded that the oral instructions given by the higher authorities have to be got confirmed in writing subsequently by the lower authority to whom the instructions are issued; in the present case, any oral instructions given by the higher authority has to be brought in the concerned note and current files also as the case may be irrespective of whether the oral instructions given are in order with reference to the tender regulations and subsequent written instructions issued. However, the statement of the delinquent officer could be corroborated by the statement of defence witness, namely, Thiru V.Rathnam, A.E.E./M.L.D.C.(then A.E.E.Conductors/ M.M.I./Chennai), who deposed about the various oral instructions given by the Chief Engineer/M.M.and the practice adopted by M.M.Wing, while finalising the tenders, and it was confirmed by him that there were oral instructions. The said witness had not been taken into consideration by either the enquiry officer or the disciplinary authority. Therefore, when a specific stand was taken by the delinquent officer that there were oral instructions by the Chief Engineer and, only at his instance, he had acted, otherwise, if the Chief Engineer's instructions were not obeyed, action would have been taken against the petitioner, there were all the probabilities that the oral instructions were obeyed and carried out by the petitioner. But, that crucial witness, namely, Chief Engineer was not examined in the enquiry proceedings, even though it was insisted by the petitioner in the enquiry proceedings and specifically averred that he was responsible for all the transactions. In view of the non-examination of the crucial witness, the entire proceedings initiated against the petitioner are vitiated and, on this particular ground, the impugned proceedings have to be set aside.
16. The next contention raised by the learned counsel for the petitioner is that there is no indication, informing the petitioner to prefer an appeal within a time frame as per the regulation in the order passed by the Chairman.
17. In paragraph 6 of the order, it is specifically stated "Receipt of this Board's proceedings should be acknowledged". Therefore, the petitioner was under the impression that the said orders were passed by the Board, though signed by the Chairman, assuming that they were the Board's orders and, therefore, a review would lie as per Regulation 14 of the Regulations. Accordingly, the petitioner made a review petition to the first respondent/Tamil Nadu Electricity Board on 21.10.1999. However, the said review petition was not considered by the first respondent, holding that as per Regulation 18 (iii), the appeal had to be preferred within 30 days and, therefore, the appeal was belated. As such, the appeal preferred by the petitioner as against the order passed on 23.08.1999 was withheld.
18. In the service law jurisprudence, as the comprehensive procedural aspect of every Act, statute, regulation, rule, it is always contemplated that the disciplinary authority, while passing the order, has to indicate in the order that an appeal would lie to so and so authority within a certain period. But, in this case, it was not so done by the disciplinary authority. Therefore, the petitioner was in dilemma whether he should prefer appeal or review. He, however, preferred a review petition within the time, as prescribed under Regulation 14. Whether it is appeal or review, it is the duty of every authority to give good reasons while rejecting the same. In the present case, the review petition had been withheld, stating that it was not filed within the time, construing that it was an appeal. The order of the first respondent is also vitiated, for the reason that in the absence of any direction or indication in the order of the disciplinary authority, it is the duty of the first respondent to look into the review petition filed by the petitioner.
19. In the absence of any indication in the order of the disciplinary authority, the impression of the petitioner that it was a Board's order and, as against the same, a revision would lie within 60 days as per regulation 14, in my considered opinion, is germane.
20. In the hierarchy of of administration and also in the tender making process, the note put up by the subordinates is to be carried out by the higher authority and the ultimate power is vested with the highest authority. In this case, it is seen that as per the collective decision, preparation of the note was a team work done by the Assistant Executive Engineer, Executive Engineer and the Superintending Engineer and, thereafter, the ultimate authority was the Chief Engineer.
21. When the team work and the finalisation of tender, including the reduction of quantity, were done by the team as per the oral instructions of the Chief Engineer, who had not been examined in this case, the petitioner alone was singled out for the allegation and, therefore, there was a clear discrimination, in violation of
Article 14 of the Constitution of India. The authorities had not chosen to proceed against the persons collectively responsible for the incident, but, instead, they targeted the petitioner alone and made him a scapegoat, in order to make someone responsible for the cause. That being so, proceeding only against the petitioner with the charges after 33 years of his clean service and that too at the fag end and just a few days before his retirement could only be termed to be for some ulterior motives. This view has been supported by the decision of the Supreme Court in Bongaigaon Refinery & Petrochemicals Ltd.'s case, relied upon by the learned counsel for the petitioner.
22. In the light of the above discussion and on analysing the entire facts and materials and the decision relied upon, the orders impugned of the respondents 1 and 2, dated 10.12.1999 and 23.08.1999 respectively are unsustainable, as they are legally infirmed, and, accordingly, they are set aside.
23. With regard to the prayer of the petitioner for a direction to the first respondent to refund the pension amount already recovered with interest at the rate of 18% per annum till realisation, it is made clear that the rate of interest shall be as per rules.
24. Writ Petition is allowed as above. No costs.
dixit To The Chairman, Tamil Nadu Electricity Board, M.P.K.R.R.Maligai, 800, Anna Salai, Chennai 600 002