Madras High Court
V.P.Chellappa vs The Superintending Engineer on 9 November, 2009
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.11.2009
CORAM:
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
W.P.No.15608 of 2001
W.M.P.No.23141 of 2001
V.P.Chellappa ... Petitioner
vs.
1. The Superintending Engineer
Tamil Nadu Electricity Board,
Dharmapuri Electricity Distribution Circle,
Dharmapuri-5.
2. The Executive Engineer,
Tamil nadu Electricity Board (O & M),
(Dharmapuri Electricity Distribution Circle)
Palacode.
3. The Superintending Engineer,
Tamil Nadu Electricity Board,
Karur Electricity Distribution Circle,
Karur 639 002. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records on the file of the first respondent, bearing Memo No.1676/ADM5/A1/File.Appeal 74/2001, dated 30.07.2001 and the order bearing No.EE/PLD/ADMS/FDP 293/2000, dated 12.12.2000 of the second respondent and the consequential order of the third respondent bearing No.11197/205/ADM3/A1f.Bill Register/2001, dated 31.07.2001.
For Petitioner : Mr.S.Aravindan
for M/s.Aiyar and Dolia
For Respondents : Mr.B.Sekar
O R D E R
Based on the disciplinary proceedings initiated against the petitioner, by way of charge memo, dated 23.12.1999, the petitioner was imposed with a penalty of stoppage of increment for a period of two years with cumulative effect with an intention to affect his pension. Besides, recovery of the cost of the materials to the tune of Rs.1,62,209/- has also been made by the Executive Engineer, Tamil nadu Electricity Board (O & M), (Dharmapuri Electricity Distribution Circle), Palacode, second respondent. Aggrieved by the same, the petitioner filed an appeal on 25.01.2001 and the same was rejected on 30.07.2001 by the Superintending Engineer, Tamil Nadu Electricity Board, Dharmapuri Electricity Distribution Circle, Dharmapuri, first respondent herein. Both the orders are challenged in this Writ Petition.
2. It is the case of the petitioner that for the disciplinary action taken against him, he had offered his valid explanation. Not satisfied with the same, an enquiry officer was appointed. As he was biased, the petitioner, by his letter, dated 29.05.2000, had requested the second respondent for change of enquiry officer and that his request was denied. However, the enquiry officer submitted his report, holding that the petitioner was guilty of all the three charges. Though the petitioner had submitted a valid further explanation, without considering the same, the Disciplinary Authority, accepting the findings recorded by the enquiry officer, has imposed a punishment of postponement of increment for a period of two years with cumulative effect, inclusive of the period spent on leave and also ordered for recovery of cost of the materials.
3. Though the impugned orders are attacked on many grounds, such as failure to provide reasonable opportunity to put forth his defence effectively, bias on the part of the enquiry officer in not permitting him to cross-examine the witnesses and such other grounds, this Court, on perusal of the orders under challenge, deems it fit, that it is not required to delve into all the grounds raised in this Writ Petition, for the reason that there is an apparent error on the part o the authorities in not considering the defence in proper perspective.
4. Mr.S.Aravindan, learned counsel for the petitioner submitted that both the disciplinary as well as the appellate authorities have failed to consider the purport of the word "consider", while imposing the penalty on the petitioner. Learned counsel appearing for the Electricity Board attempted to justify the impugned orders on the basis of the findings and the averments made in the counter affidavit, but I am not inclined to accept the same, as the impugned order has to fall or succeed on the reasons stated therein. Useful reference can be made to the following decisions.
5. In Mohinder Singh Gill v. Chief Election Commr., reported in 1978 (1) SCC 405, and at Paragraph 8, the Apex Court held as follows:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, it validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commr., of Police, Bombay v. Gordhandas Bhanji, reported in AIR 1952 SC 16:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by pubklic authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.""
6. The above position of law has been restated in Hindustan Petroleum Corpn. Ltd., v. Darius Shapur Chenai reported in 2005 (7) SCC 627, and at Paragraph 24 of the judgment, the Supreme Court held as follows:
"When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records."
7. Perusal of both the disciplinary as well as the appellate orders makes it clear that there has been a total non-application of mind with reference to certain important parameters to be considered while recording guilty. The factors to be considered by the disciplinary as well as the appellate authorities are, (1) The facts established offer sufficient ground for taking disciplinary action, (2) Whether the facts on the basis of which, the order was passed, have been established, and (3) Whether the penalty is adequate or inadequate.
8. It is well settled that the disciplinary as well as appellate authorities are the fact finding authorities and therefore, when the right of appeal is a substantive right, the appellate authority ought to have passed a reasoned order dealing with the contentions raised in the appeal. Atleast the appellate authority, in the interest of justice, should have been indicated his mind while disposing of the statutory appeal. Consideration of the factors by the disciplinary as well as appellate authorities are conspicuously absent in the impugned orders. After recording the sequence of events from the date of formulation of the charges, the Disciplinary Authority, in his three line order, has simply concluded that the petitioner had committed the act of misconduct. In his order, the Disciplinary Authority has recorded as follows:
"On perusal of the representation and all connected records, it is found that Thiru.V.P.Chellappa has not put forth any fresh points requiring consideration. Hence, the urdersigned has come to the conclusion that Thiru.V.P.Chellappa, Junior Engineer, should be awarded with punishment for the proven charges."
9. There is absolutely no discussion on any one of the points raised by the writ petitioner regarding the correctness of the findings recorded by the enquiry officer nor there is any discussion regarding impropriety in the procedure adopted by the enquiry officer in the domestic enquiry. Perusal of the appellate order also does not indicate as to whether he had applied his mind to the appeal memorandum, dated 25.01.2001, excepting to state that no fresh points have been raised.
10. As regards the manner in which the appellate authority has to consider the statutory appeal, this Court, after considering a catena of decisions, in N.Sivakumaran v. State of T.N., reported in 2009 (1) MLJ 701, has held as follows:
"In the case of an appeal against the order of imposing any penalty under Rules 8 and 9 of Rule 23 gives a mandate to the appellate authority to consider (a) whether the factors on which the order was passed have been established (b) whether the facts established afford sufficient ground for taking action and (c) whether the penalty is excessive, adequate or inadequate and pass orders confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty, with such direction as it may be deemed fit in the circumstances of the case. Clause II of Rule 23 (1) any error or defect in the procedural violation in imposing penalty may be disregarded by the appellate authority if such authority considers for the reason to be recorded in writing that the error or defect was not material and had neither caused injustice to the person concerned or affect the decision of the case. The order of the Appellate Authority must therefore ex facie show that the matters referred to Rule 23 have been considered by the Appellate Authority. Penalty suffered by a government servant affects his service promotion and monetary benefits and casts a stigma in his career. (Para 32) The Appellate Authority must not only give a hearing to the government servant concerned but also pass a reasoned order dealing with the contention raised in the appeal. (Para 12) In the interest of justice, the delinquent officer is entitled to know atleast the mind of the appellate or revisional authority in disposing of the appeal or revision. (Para 20) If the Appellate Authority merely confirmed the order of the Disciplinary Authority stating no new points had been urged without considering the contentions raised by the appellant by application of independent mind, such order cannot be sustained. (Para 15) The right of appeal is a substantive right and the appellate authority is the final fact finding authority and essentially an appeal is at continuation of the original proceedings. A judicial review under Article 226 of the Constitution is restricted to the decision making process and the High Court cannot substitute the findings of the disciplinary or appellate authority. (Para 26) If there is a statutory provision dealing with the exercise of powers by the original or appellate authority, the same has to be examined in the manner provided in the statute and not otherwise. (Para 27)"
11. A Division Bench of this Court has also expressed similar views in K.Elayaperumal v. The Deputy Inspector General of Police, Madurai and another reported in 2009 Writ LR 112, where the Bench has held that the order passed by appellate authority should indicate application of mind and reasons, however brief they may be, should be incorporated in the order. In the said case, it was further held that the Appellate Authority by a very laconic order has merely recounted the allegations and observed that no new point has been brought to the notice. Such an order cannot be construed as reasoned order.
12. As both the orders of the Disciplinary as well as Appellate authorities do not reflect the consideration of the parameters stated supra and following the dictum laid down by the Division Bench of this Court in the above referred case, this Court is of the considered view that the impugned orders are liable to be set aside and accordingly, set aside. It is stated by the learned counsel appearing for the parties that during the pendency of the Writ Petition, a sum of Rs.1,62,209/- directed to be recovered by the disciplinary authority, had already been recovered at the rate of Rs.2,000/- per month, pursuant to the interim orders passed by this Court.
13. Hence, the matter is remitted back to the disciplinary authority to consider the disciplinary proceedings afresh and consider all the relevant parameters, stated supra, as well as the further representation of the petitioner in accordance with law and pass appropriate orders, within a period of two months from the date of receipt of a copy of this order. If the respondents come to any conclusion that the petitioner has not committed the act of misconduct, as alleged, the amount recovered shall be refunded.
14. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is also closed.
11.11.2009 skm To
1. The Superintending Engineer Tamil Nadu Electricity Board, Dharmapuri Electricity Distribution Circle, Dharmapuri-5.
2. The Executive Engineer, Tamil nadu Electricity Board (O & M), (Dharmapuri Electricity Distribution Circle) Palacode.
3. The Superintending Engineer, Tamil Nadu Electricity Board, Karur Electricity Distribution Circle, Karur 639 002.
S. MANIKUMAR, J.
skm W.P.No.15608 of 2001 11.11.2009