Madras High Court
S.V. Angappan vs The Tamil Nadu Electricity Board And ... on 11 December, 1989
Equivalent citations: (1990)IILLJ273MAD
ORDER
1. The writ petitioner prays for the issuance of a writ of certiorarified mandamus to call for the records relating to B.P.Ms. (FB) No. 19, Administrative Branch, dated 5th March, 1985 of 5 the first respondent and also B.P.Ms. (FB) No. 21, Administrative Branch, dated 11th February, 1985 and quash the order of the first respondent dated 5th March, 1985 and to reinstate the petitioner back into service with continuity of service and other attendant benefits.
2. The facts are briefly as follows :-
The petitioner was employed as Special Grade Accountant in the respondent Board. He did not attend office since September 1972 except for a small spell of sevens days in the year 1981. Leave was sanctioned to the petitioner only upon 31st March, 1983. The petitioner did not attended office after 1st April, 1983 and applied for extension of leave. Since the petitioner was not attending the office of the respondent Board and there were no special circumstances to grant the leave asked for by the petitioner, the leave was refused and the petitioner was directed to join duty before 31st July, 1983, by memo of the Chief Engineer (Personnel) of the respondent Board dated 20th July, 1983. The petitioner requested on 30th July, 1983 for sanction of leave without joining duty. The request of the petitioner was rejected once again and by memo dated 3rd August, 1983, he was directed to join duty before 5th August, 1983. Without complying with the said order, the petitioner once again submitted a representation on 4th August, 1983 for grant of leave. The said representation of the petitioner was rejected on 9th November, 1984. In the meantime the petitioner filed a writ petition, then C.M.P. No. 10104 of 1983 in W.A. 637 of 1983 praying for ad-interim injunction restraining the respondent Board from implementing the orders directing the petitioner to join duty. It was also dismissed. Even after this, the petitioner did not join duty. A charge memo was framed against the petitioner by the respondent Board on 17th November, 1984 and the charges are to the following effect :-
"Charge I. That he has flouted the various orders issued by the Board in the reference 1st, 3rd, 6th and 9th cited directing him to join duty in spite of repeated opportunities given to him and has thus wilfully disobeyed the orders of the superior and is thus guilty of misconduct under Standing Order 19(1) of TNEB Standing Orders for workmen engaged in Clerical work.
Charge II.
That by his above conduct he is also guilty of unauthorised absence from duty from 1st April, 1983 which is a misconduct under Standing Order 19 (xxiv) of the TNEB Standing Orders for workmen engaged in Clerical Work."
By letter dated 24th November, 1984 the petitioner asked for the records connected with (1) the initiation of the disciplinary proceedings on all the three occasions and (2) the decision to drop the disciplinary proceedings to establish the malafied intentions of the Management in repeatedly initiating disciplinary proceedings on the petitioner. On 27th November, 1984, the petitioner was given a reply stating that the records referred to by him were not relevant to the charges framed against him, and as such his request could not be complied with. The petitioner was directed to submit his explanation on or before 30th November 1984. The petitioner again wrote a letter on 28th November, 1984 requesting to permit him to peruse the relevant records referred to in his letter dated 24th November, 1984 informing about the pendency to the main writ appeal before this Court in W.A. No. 637 of 1983 and also requesting the Board to defer further action in the matter. By letter dated 29th November, 1984 the petitioner was informed that his request to defer action cannot be acceded to. Again, by letter dated 30th November, 1984 the petitioner asked the records for perusal stating the it is not possible for him to submit his reply to the charges without perusing the connected documents. By letter dated 1st December, 1984, the petitioner was advised to attend the enquiry as and when the summon is received. By letter dated 3rd December, 1984 the petitioner was informed that the oral enquiry would be conducted on 10th December, 1984, that one V. Narasimhan would be examined as witness on behalf of the respondent Board and that the petitioner was advised to bring any witness, if he wants to examine any witness on his side. The petitioner was also informed that should he fail to be present for the enquiry as advised, the enquiry will be held ex-parte. On 4th December, 1984 through a letter, the petitioner replied that his representation to the Minister for Electricity is yet to be disposed of and that he cannot be compelled to be a party to such deliberate violation. The petitioner further stated in that letter that the list of documents which are proposed to be produced in support of the charge and the statement of the witnesses were not given to him. By letter dated 7th December, 1984, the petitioner was informed that the list of documents in support of the charges were available with the petitioner himself and the witness one Narasimhan proposed to be examined on behalf of the Board is only for producing the above records before the Enquiry Officer. As such, the petitioner was requested to attend the enquiry. On the same day the petitioner replied stating that it is not possible for him to appear for the enquiry till he is permitted to peruse the records or he is supplied with the names of the witnesses or till he gets a specific reply from the Minister for Electricity on his representations. On 12th December, 1984, the petitioner did not attend the said enquiry by himself or through a representative. The said enquiry was held ex-parte. The Enquiry Officer held that the charges were proved. By Memo dated 17th December, 1984, a show cause notice was given to the petitioner, after arriving at a provisional conclusion to dismiss the petitioner herein from service. The petitioner submitted his reply on 22nd December, 1984 to which a letter was sent by Board on 26th December, 1984. The petitioner again wrote a letter on 27th December, 1984. By order dated 31st December, 1984, the petitioner was dismissed from service by Chief Engineer (Personnel). The petitioner preferred an appeal before the Board against the order of dismissal. By proceedings of the Secretary of the respondent Board dated 20th February 1985, the order of the Chief Engineer was set aside on the ground that the Chief Engineer is not the authority competent to dismiss the petitioner from service. After that the Secretary of the respondent Board issued a fresh show-case notice to the petitioner on 21st February 1985 directing him to submit explanation within ten days from the date of the said memo as to why he should not be dismissed from service on the findings of the Enquiry Officer.
The petitioner replied to the same on 28th February, 1985 asking time for fifteen days to submit his reply. In that letter the petitioner raised a point that how the period of his absence from 1st April, 1983 to 31st December, 1984 has been treated since the dismissal order is set aside by the Secretary of the respondent Board. By order dated 5th March, 1985, the impugned order has been passed by the respondent Board dismissing the petitioner on the ground that the petitioner has not submitted his explanation within the stipulated time, i.e. on or before 3rd March, 1985.
3. The petitioner alleged in the affidavit that he was the General Secretary of the respondent Board (employees' union), that the first respondent Board accorded "duty relief" to the petitioner solely to attend to the Union Work, and that the "duty relief" was accorded from 16th August, 1972 to 15th August, 1973 and thereafter from time to time it was further extended upto 31st March, 1976 and that during the National Emergency the "duty relief" so accorded was withdrawn by the first respondent Board. It is further alleged by the petitioner that the Union raised an industrial dispute questioning the legality and the justifiability of the withdrawal of the "duty relief", that the same was referred for adjudication to the Labour Court by the State Government, that the Labour Court took up the case on its file as I.D. No. 239 of 1977 and rejected the claim of the Union by order dated 16th August. 1979, that the Union preferred a writ petition against the order of the Labour Court before this Court in W.P. No. 5699 of 1979 in which Mohan J. (as he then was) passed an order on 18th August, 1983 against the respondent Union, that the Union preferred W.A. No. 637 of 1983 and sought interim injunction restraining respondents from withholding "duty relief" which was also dismissed on 21st August, 1984 and that the Writ Appeal is pending before this court. It is to be stated here that the said Writ Appeal was also dismissed by this Court on 7th September, 1989. It is further alleged in the affidavit that after the dismissal of the injunction petition in W.A. No. 637 of 1983, the respondent Board started prosecuting the petitioner for his legitimate trade Union. Activities, because he is the General Secretary of the Union. It seems the Union of which the petitioner is the General Secretary, criticised the speech of the Chairman of the Electricity Board which was not in consonance with the existing industrial law. It seems the Union requested the Government to take action in this regard, that when the Government did not do anything in this matter, the members of the Union condemned the inaction of the Government by wearing black shirt, that immediately the respondent Board issued an order asking the Union to vacate the office premises allotted to it, that when this was questioned the respondent Board initiated action under Tamil Nadu Public Premises Eviction Act, and as such the petitioner as the General Secretary was fully involved in fighting against the first respondent Board's arbitrary action and decisions. It is also alleged in the affidavit filed in support of the petition that twice disciplinary proceedings were dropped only on the ground that the petitioner's prolonged leave was not unreasonable, that the same is intended for fostering and maintaining industrial relations, that a vindictive action has been taken to dispense with his service under the garb of holding disciplinary action, that when the petitioner requested for perusal of records on the above mentioned occasions, the disciplinary proceedings were dropped, and that the opportunity to peruse the records was not given by the respondent Board on the flimsy ground that they are not relevant. The petitioner alleged in the affidavit that the relevance was sufficiently pointed out by the petitioner herein. It is further alleged that at this stage, the petitioner preferred a complaint to the then Minister complaining about the unfair treatment meted out to the petitioner in the above said disciplinary action and the petitioner also requested the Chief Financial Controller of the respondent Board to defer further action pending decision of the Minister. It is also alleged by the petitioner that without giving the petitioner an opportunity for the perusal of the records, the Enquiry Officer fixed the date of enquiry. The petitioner further alleged that there is no material brought out in the enquiry to show as to how the further grant of leave beyond 1st April, 1983 to the petitioner was not in the interest of the Board, that when the issue whether the withdrawal of the "duty relief" is in law justified or not is yet to be decided by the Court, the Enquiry Officer cannot presume that this court has rendered a finding in this regard in favour of the respondent Board, that the Enquiry Officer has not applied his mind in a judicious manner and that the ex parte enquiry is vitiated by non-observance of principles of natural justice. It is further alleged in the affidavit that the findings of the Enquiry Officer are perverse since he has failed to advert to the representation of the petitioner dated 24th November, 1984 and the factual position as to what happened between the period from 1st April, 1983 to 9th November, 1984, that the framing of the charges and the initiation of disciplinary action during the pendency of the writ appeal before this Court are invalid and illegal. It is further stated that the petitioner wanted time to the show cause notice dated 21st February, 1985 by his letter dated 28th February, 1985 and that without giving him an opportunity to submit his explanation to the above said show-cause notice, by the impugned order dated 5th March, 1985 the Secretary to the Board dismissed the petitioner from service. It is further alleged that after serving the above said order, a separate order dated 11th March, 1985 was issued treating the representation of the petitioner as an unwarranted one in keeping with evasive tactics adopted by the petitioner and on that ground it was said that the decision already taken dismissing the petitioner from service needed no change. It is alleged in the affidavit that once the dismissal order has been set aside, fresh orders ought to have been issued to the petitioner by restoring the employer-employee relationship after regularising the period between 1st April, 1983 and 20th February, 1985. The petitioner further alleges that having failed to regularise the services and also in failing to give an opportunity to the petitioner to submit his explanation, the first respondent Board has acted arbitrarily and illegally, and as the impugned order is vitiated by violation of principles of natural justice in as much as the petitioner was not given opportunity to submit his explanation to the show-cause notice dated 21st February, 1985. An allegation is made that the impugned order is vitiated by malice in law and on facts in so far as the representation of the petitioner dated 28th February, 1985 was not considered. It is further alleged that the order of the respondent Board dated 1st March, 1985 shows that the same has been issued mala fide and as an after-thought. It is alleged in the affidavit that the framing of charges and initiation of disciplinary proceedings are illegal, when the writ appeal filed by the petitioner was pending on the file of this Court in which the question relating to the legality of withdrawal of "duty relief" remains to be decided. It is stated that the findings of the Enquiry Officer are perverse, that the ex parte enquiry conducted by the respondent Board is only an empty formality and that the petitioner has been victimised since he has been fighting legally against the proceedings of the first respondent Board.
4. A counter-affidavit has been filed by the respondents in which the facts are narrated which led to the passing of the impugned order of dismissal. It is stated in the counter affidavit that it was decided in the year 1976 that it was unnecessary to extend "duty relief" any further to the office-bearers of Union in view of the fact that no such practice was allowed in any other State Electricity Board in the country. It seems that the writ appeal filed by the petitioner, with regard to duty relief was dismissed by this Court on 7th September, 1989. The allegation with regard to the arbitrariness of the Board is denied in the counter affidavit. It is claimed in the counter affidavit that inspite of the refusal of the leave, the petitioner had not joined duty disobeying the lawful orders of the superiors and thereby the misconduct under Standing Order 19(i) of the Standing Orders for workmen engaged in clerical work of the Tamil Nadu Electricity Board stands established. It is further stated that the petitioner had unauthorisedly absented himself from duty without satisfactory cause for more than ten days from 1st April, 1983 and as such the charge under Standing Order 19(xxiv) also stands established, that earlier spells of leave for the period from 1st April, 1976 to 31st March, 1983 were sanctioned cannot be a valid reason for the petitioner to be absent beyond 31st March, 1983, and since grant of further leave was considered by the Board to be not in the interest either of the Board or of the petitioner, he was directed to rejoin duty at once. It is claimed in the counter affidavit that the respondent Board is a statutory Board and the general allegations of mala fides are false and not sustainable. It is further stated in the counter affidavit that the petitioner was asked to rejoin duty not later than 31st July, 1983, that he was further requested to join duty on 5th August, 1983, within one week from 30th October, 1984, and that the petitioner had failed to join duty even though enough opportunities were given to him in this respect. The statement made that vindictive action had been taken against the petitioner for the reason of his waging legal battles against the Board is denied in the counter. It is stated that the charges framed against the petitioner are simple in nature, that the facts are within his personal knowledge, that all the copies of communications exchanged between the petitioner and the respondent Board in the earlier two disciplinary proceedings including the final orders are available with the petitioner, that the petitioner himself filed copies of the same in his typed set, and that there was no need to ask for such records from the Board for the present disciplinary proceedings and that they are not relevant to the charges framed. It is further claimed that the leave cannot be claimed as a matter of right and that the decision communicated by the Chairman in his memo dated 9th November 1984 is final, and as such the Board is not bound to furnish the records which were not relevant and which were not relied on by the management to prove the charges. It is further stated that the memo dated 21st February, 1985 was served on the petitioner on the very same day itself, that the time given for filing his explanation expired on 3rd March, 1985 and as such the impugned order has been passed on 5th March, 1985. It is further stated that the findings of the Enquiry Officer were not perverse, and that the disciplinary proceedings initiated against the petitioner earlier were dropped is no ground that he should not be proceeded against subsequently for similar misconduct. It is further stated in the counter affidavit that the petitioner is not attending office ever since 1979 except for a spell of eight days in the year 1981, and that he was dismissed from service only due to his prolonged unauthorised absence.
5. A reply affidavit has been filed by the petitioner in which it was stated that only after the interim injunction in W.A. No. 637 of 1983 was dismissed by the Court, the Chairman of the Board vindictively proceeded to issue charge sheet against him on 17th November, 1984. It is stated that against the judgment of this court in W.A. No. 637 of 1983 dated 7th September, 1989, the Union is taking steps to file an appeal before the Supreme Court. It is stated in the reply affidavit that on various occasions, the disciplinary proceedings against the petitioner were dropped and as such the petitioner wanted to peruse the records to see why the leave was refused. It is further stated in the reply affidavit that one Narasimhan was cited as a witness by the respondent Board to produce the documents but he was examined as a witness in the said enquiry. It is further stated that without referring to the letter of the petitioner dated 28th February, 1985 seeking further time to file his explanation, the respondent Board passed the impugned order stating that the time had expired on 3rd March, 1985 and no explanation had been received from the petitioner in this regard which is incorrect and untrue. It is further stated that the orders of dismissal of the respondent Board dated 5th March, 1985 and 11th March, 1985 disclose mala fides on the part of the respondents. Certain proceedings before the Civil and Criminal Courts are cited in the reply affidavit. It is further stated that even after having received the letter of the petitioner seeking time for filing his explanations, the time for explanation having expired only on 3rd March, 1985, the respondent Board, very hastily and in an undue and unwarranted hurry, convened the Board meeting on 5th March, 1985 to dismiss the petitioner from service even without adverting to his letter dated 28th February, 1985 and passed the impugned order.
6. Mr. B. R. Dolia, the learned counsel for the petitioner, contends that the petitioner was not given an opportunity to peruse the records as asked for. The learned counsel contends that when leave was sanctioned for ten years earlier, it is not known what is the special circumstances prevailed now to reject the leave applied by the petitioner. The learned counsel argues that one Narasimhan was examined on the side of the Management, though it was told that the said Narasimhan was to produce the records only. The learned counsel further argues that the orders of the Chairman of the respondent Board are mala fide and motivated and hence they are vitiated by malice in law and also on facts. The learned counsel argues that when the order of the Chief Engineer date 31st December, 1984 has been set aside in the appeal, the petitioner wanted to know the position whether he was reinstated in service, that he was not given an opportunity to peruse the records. He further argues that there is a violation of principles of natural justice in as much as the petitioner's request for further time to submit his explanation was not granted before the impugned order has been passed. The learned counsel refers to the decision in Smt. S. R. Venkataraman v. Union of India and another (1979-I-LLJ. 25) for the proposition to the effect that what is malice in law.
7. Mr. R. Muthukumaraswamy, the learned counsel for the respondents, narrates the events which led to the dismissal of the petitioner herein and states that the documents relied on by the petitioner were irrelevant to the charges framed, when the charges were framed for not obeying letters of the respondent Board dated 20th July, 1983, 30th August, 1983, 30th October, 1983 and 12th October, 1984 and as such the said documents were irrelevant for the said charges. The learned counsel further argues that there is no denial of principles of natural justice in this case. The learned counsel submits that the said Narasimhan has not given any oral testimony of the side of the respondent Board but he has only produced documents. The learned counsel further contends that no particulars were given in the affidavit filed by the petitioner regarding mala fides, and that the decision is taken by the Board is not taken by the Chairman alone but it is a collective decision of the Board, and as such no question of malice in law or fact arises in this case.
8. I have considered the arguments of the learned counsel for the petitioner and of the learned counsel for the respondent Board.
9. I do not think it is necessary to decide the question of malice in law or on facts, at this stage. I am told the petitioner herein had retired from service. Why the petitioner wanted the documents during the enquiry or for what purpose he wanted the records is not for the respondent Board to decide. It is a fact that on two previous occasions the disciplinary proceedings were started and dropped against the petitioner herein by the respondent Board. What all the petitioner wanted to know seems to be, the reasons to drop the earlier proceedings and what was the special circumstance calling for not to grant leave to the petitioner now in this case. It is true that the petitioner had with him, the letters written by the respondent Board. But they are not the documents which the petitioner wanted to peruse. The petitioner wanted to have a look at an peruse the records in which the decision has been taken by the Board to drop the earlier proceedings. This is not supplied to the petitioner. In my view, the respondent Board ought to have supplied those documents to the petitioner herein. May be it is an evasive tactics by the petitioner, but that does not mean that the respondent Board also can take a view not to allow the petitioner to peruse those documents. It has been held by the Supreme Court in Chandrama Tewari v. Union of India that if a document has no bearing on the charges or if it is not relied on by the Enquiry Officer to support the charges, or if such document or material was not necessary for the cross-examination of witnesses during the enquiry, the officer cannot insist upon the supply of copies of such documents, as the absence of copy of such document will not prejudice the delinquent officer. It is difficult to comprehend exhaustively the facts and circumstances which may lead to violation of principles of natural justice or denial of reasonable opportunity of defence. This question must be determined on the facts and circumstances of each case. In my view, the refusal to supply those documents asked for by the petitioner has to be taken as a denial of principles of natural justice, on the facts and circumstances of the case. The petitioner wanted those documents to find out on what special circumstances the said leave was denied to him, which culminated in the charge memo.
10. That apart, I find from the file that the petitioner herein, by letter dated 28th February, 1985 asked time for 15 days to submit his explanations to the show cause notice issued on him on 21st February, 1985. Even though the said letter has been received by the Secretary of the respondent Board on 2nd March, 1985, without nothing his request, the impugned order has been passed by the respondent Board on 5th March, 1985. Though the Board has issued another order on 11th March, 1985 administratively explaining the position, I am not inclined to accept the stand taken by the Board. When the petitioner herein had asked for time to submit his explanation and it has been denied by the respondent Board, in my view, this is case where the principles of natural justice are violated. After issuing the show cause notices and after having received the petitioner's reply on 2nd March, 1985 requesting two weeks' time, the respondent Board, without taking note of the above said fact, ought not to have passed the impugned order on 5th March, 1985. I find from the file that even the receipt of the letter is doubted. A note from the file runs as follows :-
".. While placing the matter before the Board for orders on 5th March, 1985, I had enquired whether any communication had been received from Thiru. Angappan and had been informed that no communication had been received. I have my own doubts about how this communication has now been shown as received. However, this is placed before the Board ..."
As such, the impugned order cannot stand. The Supreme Court had an occasion to consider the denial of principles of natural justice in S. L. Kapoor v. Jagmohan in which the Supreme Court observed as follows (p. 147) :
".. In our view the principles of natural justice know of a exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary.
It ill-comes from a person who has denied justice that the person who has been denied justice is not prejudiced."
11. In my view, the pronouncement of the Supreme Court mentioned above, squarely applies to the facts and circumstances of the case. It does not matter what would have happened if time had been granted. The fact is that the time has not been granted and the Board was not aware of the fact that the petitioner wanted time when it passed an order on 5th March, 1985. As such, I am satisfied that the order passed is in violation of principles of natural justice. The impugned order passed on 5th March, 1985 is set aside. It is open to the respondent Board to pursue the matter if they so desire. The writ petitioner will stand allowed However, there will be no order as to costs.