Issue involved in these matters are as one and the same, these matters are taken up together and disposed of this common order.
2. The Writ petitioner was originally appointed by the respondents/Tamil Nadu Electricity Board as Junior Assistant(Accounts) at Nilagiri District on 27.10.1995. He was promoted as Assistant(Accounts) in the year 1997. During the year 2001, he was transferred and posted at Thiruchendur on voluntary transfer. In the year 2006, the respondents have prepared a panel for the post of Accounts Supervisor. But, the petitioner was not promoted on account of pendency of disciplinary proceedings on the crucial date of panel on 20.03.2006. The Writ petitioner had filed a Writ petition in W.P. No.9472 of 2007 for a direction directing the respondents to give promotion to the Writ petitioner as per the seniority list prepared by the respondents/Tamil Nadu Electricity Board. In the meanwhile on 02.07.2007, a punishment order was also passed against the petitioner. Against which, an appeal was filed by the petitioner and it was also rejected by order dated 10.01.2008. The request for promotion, pursuant to the order passed in the Writ petition was also rejected on 23.01.2008. The order of punishment as well as the rejection of request for including the petitioner in the panel are under challenge in the present two Writ petitions.
3. W.P.(MD)No.2326 of 2008 The above Writ petition has been filed by the petitioner against the punishment imposed by the respondents/Tamil Nadu Electricity Board vide proceedings in Ku.Aa.No.0605/Ni.Pi.3(1)/2008, dated 10.01.2008. According to the Writ petitioner, a notice was issued to him on 22.07.2005 by the fifth respondent herein/Executive Engineer in his proceedings in F.M.vz;.br.bgh/tp/jph;/c.f.m./t.fp./fnkI m .vz; .526 /2005, dated 22.07.2005, wherein the petitioner was directed to submit his explanation within three days from the date of receipt of the said notice. The petitioner had submitted his explanation on 19.10.2005. Therefore, enquiry was proposed to be conducted on 07.04.2006 and other dates. In the meanwhile, the petitioner in his capacity as Office Bearer of the Union had lodged a complaint on 16.05.2006 against one M.A.Liyagath Ali, Accounts Supervisor, for his fraud and abuse of financial power, which caused loss to the respondents/Tamil Nadu Electricity Board. Since proper opportunities were not given to the Writ petitioner, he had sought for change of enquiry officer. But, the request was not acceded to and the petitioner was set ex-parte and the enquiry officer had submitted his finding. The enquiry officer in his report dated 03.04.2007 had held the charges proved and the copy of the enquiry report was received by the Writ petitioner on 20.04.2007. Since no explanation was submitted by the Writ petitioner in time, the second show cause notice was issued by the fifth respondent who was an Executive Engineer(incharge) on 19.05.2007. Thereafter, the fifth respondent in his proceedings in Ku.No.01984/NiPi/Vu.1/07-6, dated 02.07.2007, imposed a punishment of stoppage of increment for two years with cumulative effect exclusive of the period, if any, spent on leave. Against which, the Writ petitioner had given a representation that re-enquiry had to be conducted, as bias was alleged by him against the previous enquiry officer. But the same was rejected by the seventh respondent/Superintendent Engineer and the punishment imposed was confirmed in proceedings in Ku.Aa.No.0605/Ni.Pi.3(1)/2008, dated 10.01.2008. Against which, the Writ petition came to be filed.
4. The Writ petitioner would submit that according to Service Regulations-93 of Tamil Nadu Electricity Board Service Regulations, the disciplinary authority for each post has been prescribed in Annexure-II of Regulation. According to which, the post of Assistant falling under Division VII-C at serial No.36, the appointing authority is the Superintendent Engineer. Therefore, the punishment can be imposed only by the appointing authority and he should not be imposed any punishment by anyone below the rank of the appointing authority. Whereas the original punishment order dated 02.07.2007 was issued by the Executive Engineer(in-charge). The person who imposed the punishment was not even the Executive Engineer, but was holding the post as in-charge officer was totally incompetent to impose the punishment.
5. Secondly, the Writ petitioner had made a request for conducting re-enquiry. But that was treated as an appeal and the seventh respondent/Superintendent Engineer was the disciplinary authority had acted as an Appellate authority, at the time of confirming the punishment before the incompetent authority. Aggrieved by the action of the respondents, the Writ petitioner would contend that the impugned orders are liable to be quashed.
6. The respondents had filed a counter affidavit through the seventh respondent. According to the respondents, the Writ petitioner had not finished the work of Mail transfer and Bank Reconciliation within the stipulated time and he had failed to submit his explanation for the show cause notice dated 22.07.2005 issued by them. Therefore, another memo calling for explanation was issued. But, he had submitted an explanation of the issuance of memorandum dated 06.10.2005, for disobeyed the old memo and insubordination with the higher officials in submitting the explanation within three days. The Writ petitioner had sought for one month time by his letter dated 07.10.2005, but it was not granted. Subsequently, on 20.10.2005, the Writ petitioner had submitted his explanation. According to the respondents, the explanation was submitted after three months. As per the Tamil Nadu Electricity Board's procedure, a charge memo was framed on 05.01.2006 and an enquiry was conducted on 13.03.2007 and after obtaining the findings of the enquiry officer on 02.04.2007, a second show cause notice was issued on 19.05.2007. The Writ petitioner had submitted the said explanation on 02.06.2007 and thereafter, the competent authority had imposed the punishment on 02.07.2007. The appeal made by the petitioner was rejected by the seventh respondent on 10.01.2008 by confirming the punishment imposed on 02.07.2007.
7. It is the submission of the seventh respondent that the second respondent/Chief Engineer had given full additional charge to the fifth respondent/Executive Engineer as per Service Regulation 49 of Tamil Nadu Electricity Board service regulations. The vigilance complaint given by the Writ petitioner against Liyagath Ali and Neelakandan on 16.05.2006 was nothing to do with the disciplinary proceedings. Because of the conduct of the Writ petitioner, the enquiry could not be completed in time and the petitioner had wantonly dragged on the proceedings. The allegations that the charges had no jurisdiction was vague and therefore, the Writ petition has liable to be dismissed.
8. I have considered the rival contentions of both the parties.
9. The contention of the Writ petitioner that as to whether the fifth respondent was a competent authority to impose the punishment has to be seen at the first instance. As per the Tamil Nadu Electricity Board regulations, for the post of Assistant, the appointing authority was the Superintendent Engineer. Therefore, any disciplinary action shall be taken by way of appointing authority and not by any of the Subordinate officers. In view of the Judgment reported in 2004 WLR 636 in the case of Janarthanan Vs. The Chief Engineer Distribution and others, the order passed by the authority who below the rank of disciplinary authority was not sustainable in law and the order passed by the Executive Engineer holding in-charge was totally without jurisdiction and he was not a competent authority to pass an order. On this ground alone, the order passed by the fifth respondent is liable to be set aside.
10. Moreover, the second issue that whether the representation made by the Writ petitioner for re-enquiry would be treated as an appeal and whether the original authority could pass an order usurping the jurisdiction of the appointing authority has to be considered. As stated supra, the seventh respondent was the original authority, who ought to have passed the order of punishment. But, on the other hand he acted as an Appellate Authority. The order dated 10.01.2008, passed by the seventh respondent treating the representation as appeal is without jurisdiction and the same is not sustainable in the eye of Law.
11. Apart from the maintainability of the orders, the Writ petitioner had submitted that in the enquiry, the respondents had not proved any of the charges made against him. The enquiry officer had held that the charges were proved without any evidence or without any material substantiating the charges. At the first instance, non-submission of the explanation cannot be construed as a willful disobedience.
12. Secondly, talking to the superior officers in abusive language, the said action cannot be considered by the respondents. The allegations of using unparliamentary language in submissive attitude was not proved by any cogent evidence. There were no witnesses to prove the charges. Non-examination of the witnesses and the cross examination of the witnesses produced during the enquiry would go to show that not even the iota of charge was proved, the entire action was based as mala fide, as the Writ petitioner in the capacity of office bearer of the union had made a complaint against then Assistant Accounts Supervisor for his fraudulent activities in the alleged misappropriation of the Tamil Nadu Electricity Board's money. Therefore, the finding of the in-competent officer is liable to be set aside on the grounds of mala fide. This argument of the learned counsel for the petitioner has some force. On perusal of the documents, it is seen that the charges have not been proved and the enquiry was not conducted properly.
13. It is the further contention of the Writ petitioner that the practice of the office by documents would go to show that there was no enormous delay in sending the Mail transfers and Reconciliation. In so far as the Writ petitioner is concerned, for a similar action no disciplinary action was initiated against his predecessor. Even though an employee could not claim legality in illegality, the action of the respondents are to be held bad on the grounds of discrimination. It is seen that the action of the respondents are not fair and is vitiated by mala fides. Therefore, for the foregoing discussions, this Court is of the considered opinion that the impugned order punishment is liable to be set aside.
14. In the result, W.P.(MD) No.2326 of 2008 is allowed and the impugned order passed by the fifth respondent in proceedings Ku.No.01984/NiPi/Vu.1/07-6, dated 02.07.2007, and the proceedings in Ku.Aa.No.0605/Ni.Pi.3(1)/2008, 10.01.2008 of the seventh respondent are set aside and consequential relief to promote the petitioner as Accounts Supervisor with all monetary benefits is also allowed.
15. In W.P.(MD)No.3582 of 2016 The above Writ petition has been filed against the orders of the second respondent in his proceedings No.093910/795/G.30/ G.301/2015-2, dated 06.02.2016 and for consequential direction to include the Writ petitioner in the seniority list panel in the suitable place and promote to the post of Assistant Accounts Officer with all consequential monetary service and other benefits.
16. The Writ petitioner was entitled to be considered for promotion to the post to Assistant Accounts Officer. According to him, as per the Board proceedings in B.P.Ms.No.428, Secretariat Branch, dated 12.08.1982, the guidelines were issued in respect of promotion of employees involved in disciplinary proceedings. According to which under Clause-2, the employees against whom charge memo have been framed for any misconduct other than those specified under clause-1, may be included in the panel and may also be promoted in their turn, if the charges are proved later and the penalty imposed, they shall undergo the punishment in the higher post. The guidelines are extracted as under:-
?1. I. Employees involved in Disciplinary Proceedings etc. - Such employee shall not be considered for inclusion in a panel for promotion in the following circumstances:-
i. When definite charges have been framed for lapses connected with:-
(a) Corruption.
(b) Mis-appropriation of money or stores.
(c) Misconduct involving moral turpitude. ii. When criminal proceedings are pending in the Court. iii. While under suspension.
2. Employees against whom charge have been framed for any misconduct other than those specified above may be included in the panel and may also be promoted in their turn. If charges are proved later and penalty imposed, they shall undergo the punishment in the higher post.?
17. Therefore, according to the petitioner he was fully eligible to be considered, he filed the Writ petition in W.P.No.9472 of 2007 for a direction directing the respondents to give promotion to the Writ petitioner wherein it is submitted that the pendency of the disciplinary proceedings, he was not given promotion. This Court by its order dated 28.11.2007, had directed the respondents to consider the representation of the petitioner for promotion pending before the first respondent, dated 11.01.2007 and to pass order within a period of four weeks. But the respondents without promoting the petitioner, rejected his request on 23.01.2008. In view of the pendency of the disciplinary proceedings as stated supra, the pendency of the disciplinary proceedings is not barred for promoting the Writ petitioner. However, the panel was drawn by the second respondent on 06.02.2006 wherein the petitioner's name was not included.
18. The common counter affidavit filed by the seventh respondent in W.P.No.2326 of 2008 would state that in view of the pendency of disciplinary proceedings on crucial date and the matter of a stoppage of increment for two years with cumulative effect was in culmination of the said disciplinary proceedings, the Writ petitioner could not be promoted to the higher post. Therefore, the respondents would pray for dismissal of the Writ petition.
19. As already decided in the Writ petition No.2326 of 2008 that the impugned punishment was passed without jurisdiction by an incompetent authority and the findings of the enquiry officer was also based on no legal evidence, the pendency of that disciplinary proceedings and the punishment are unsustainable in law and therefore, the respondents are bound to consider the petitioner for promotion. But, the learned counsel for the Writ petitioner would rely on the Judgment of this Court reported in 2004 WLR 636, in W.P.No.38390 of 2002, dated 30.09.2003, in the case of Janarthanan Vs. The Chief Engineer Distribution and others, had held that the punishment of stoppage of two increments with cumulative effect in a case which does not involve any misappropriation or corruption was considered to be grossly disproportionate. The learned Judge relying on the Judgment of the Hon'ble Supreme Court reported in 1999 (1) SCC 759, Apparel Export Promotion Council Vs. A.K.Chopra, had invoked the jurisdiction under
Article 226 of the Constitution of India and set aside the punishment and directed the authorities concerned to give promotion to the Writ petitioner therein. In the instant case also, the Writ petitioner had not indulged in any misappropriation or corruption and the allegation that there is a delay in sending Mail transfers and Reconciliation is considered to be disproportionate. In view of the findings of the above W.P.(MD) No.2326 of 2008, the present Writ petition in W.P.(MD) No.3582 of 2016 is also allowed. The respondents are directed to include the petitioner's name in the seniority list panel, fit for the post of Assistant Accounts Officer and consequently consider him for promotion for the said post and also for consequential promotions. No costs. Consequently, connected Miscellaneous petition is closed.
20. In Cont.P.(MD)No.592 of 2015 In view of the findings given above, the Contempt petition filed by the Writ petitioner is closed. No costs.
To
1. The Chairman, N.P.K.R.R. Maligai, Tamil Nadu Electricity Board, Anna Salai, Chennai ? 2.
2. The Chief Engineer/Personal, N.P.K.R.R. Maligai, Tamil Nadu Electricity Board, Anna Salai, Chennai ? 2.
3. The Promotion Committee, Office of the Chairman, N.P.K.R.R. Maligai, Tamil Nadu Electricity Board, Anna Salai, Chennai ? 2.
4. The Assistant Accounts Officer (In charge), Revenue Division, Thiruchendur, Tuticorin District.
5. The Executive Engineer (In charge), Distribution, Tamil Nadu Electricity Board, Thiruchendur.
6. The Assistant Executive Engineer (In Charge), (Enquiry Officer), Distribution, Tamil Nadu Electricity Board, Udangudi.
7. The Superintendent Engineer, Tuticorin Electricity Circle, Tamil Nadu Electricity Board, Ettayapuram Road, Tuticorin District.
8. The Chairman, Tamil Nadu Generation and Distribution Corporation Ltd., 10th Floor, NPKRR Maligai, No.144, Anna Salai, Chennai ? 2.
9. The Chief Engineer(Personal), Tamil Nadu Generation and Distribution Corporation Ltd., 8th Floor, NPKRR Maligai, No.144, Anna Salai, Chennai -2.
10.The Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Tuticorin Electricity Circle, Tuticorin..