Madras High Court
G. Anandam vs Tamil Nadu Electricity Board And Anr. on 23 July, 1996
Equivalent citations: (1996)IILLJ1198MAD, (1998)IIIMLJ664
ORDER S.M. Abdul Wahab, J.
1. The prayer in the writ petition is for a writ of certiorari to call for the orders of the second respondent dated September 12, 1984 as confirmed by the first respondent in his proceedings dated May 9, 1986.
2. The petitioner an employee of the Tamil Nadu Electricity Board has challenged the order of punishment viz., stoppage of increment for a period of one year with cumulative effect. The petitioner was working as Accounts Officer/ Revenue/ MES North at Mount Road and that at the time of punishment he was employed in Salem Electricity System. OnDecember2, 1981 a memo was served, on him with reference to M/s. Romala Enterprises, 389 Tiruvottiyur High Road, Madras-19, whom he permitted to remit the arrears of Rs.35,987.50 in instalments towards current consumption charges. In the memo it was alleged that he prevented the Assistant Divisional Engineer, Tiruvottiyur (N. Krishnan) from disconnecting the lighting service connection of the said Romala Enterprises for non-payment of arrears upto July, 1977 amounting to Rs.5, 123.35 by instructing the Assistant Divisional Engineer over phone not to disconnect since there was an interim injunction from the High Court. On February 19, 1982 an explanation was submitted by the petitioner denying the charges. The Enquiry Officer has questioned the petitioner without first examining the prosecution witnesses, and found the petitioner guilty of only the second charge. After calling for the explanation again, the second respondent by his order dated September 12, 1984 imposed punishment on May 9, 1986. The petitioner states that the enquiry was not property conducted and the enquiry proceedings were not furnished. The Enquiry Officer was personally interested. The Enquiry Officer looked into the materials which are ' not the basis of the charges. Hence, the petitioner filed the writ petition for the above relief.
3. Copy of the counter-affidavit was produced in court during the hearing on July 3, 1987.
4. In the counter-affidavit it is stated that adequate opportunity to defend the case was given. The punishment was properly imposed. The appeal was also rejected on merits In 1981, the Superintending Engineer/Distribution, Madras Electricity System/North called the petitioner to explain in permitting M/s. Romala Enterprises, Tiruvottiyur, Madras-19 to remit the arrears of Rs.35,987 50 in instalments. The counter-affidavit sets out various contentions raised in the affidavit filed in support of the writ petition and denies the allegations contained therein. One important denial is that interim orders have been endorsed by Thiru Nagarathinam, the then Assistant Engineer, Tiruvottiyur and not by Thiru N. Krishnan, Assistant Divisional Engineer,Tiruvottiyur. The statements were recorded from N. Krishnan, Assistant Divisional Engineer and Nagarathinam, Assistant Engineer and they were examined by the Enquiry Officer. The petitioner cross- examined them. The petitioner was satisfied about the enquiry conducted. During the enquiry, the petitioner stated that the statement dated December 3, 1983 from N. Krishnan, Assistant Divisional Engineer and N. Nagarathinam, Assistant Engineer only show the arrangement between them to escape from the allegations against them. He himself did not make any request to bring his representative. After examining the connected records and the evidence, a report was prepared and furnished to the petitioner. The appeal preferred before the Appellate Authority was also considered and disposed of on merits. There are evidences in the records that the petitioner telephoned to the Field Assistant Engineer not to disconnect the light load to M/s. Romala Enterprises. Therefore, there was nothing wrong in the findings or in awarding the punishment to the petitioner.
5. Learned counsel for the petitioner contended that there was a delay in initiating the proceedings. The incident is said to have taken place during 1981. The charge memo has been issued in 1983. Another contention raised by the learned counsel for the petitioner is, the examination of the delinquent first and later examining the prosecution witnesses. Further, learned counsel contended that the punishing authority's order is not a speaking one. Mala fide is also attributed to the Enquiry Officer. The enquiry proceedings were not furnished. Therefore, the entire disciplinary action is vitiated.
6. As regards the delay, counsel for the respondents submitted that this was not raised in the grounds of appeal before the Appellate Authority. Further he has also not stated as to how the delay has prejudiced him. Normally, disciplinary proceedings must commence at an early date, and should be completed without much delay. However, mere delay alone is not sufficient to vitiate the disciplinary proceedings. If the petitioner is able to show some prejudice caused on account of the delay, normally courts will take serious note of it. However, the petitioner has not explained as to how he was prejudiced in defending his interest. Hence, the first contention is not acceptable.
7. Secondly, the examination of the delinquent in the first instance is only a procedural irregularity. The petitioner could have objected to the same, but the Enquiry Officer's proceedings are not proceedings in a regular court of law or Tribunal constituted under the Industrial Disputes Act, 1947. The domestic enquiry must be fair. After going through the entire circumstances, if the enquiry appears to be fair on the whole minor defects need not be viewed seriously.
8. Learned counsel for the petitioner cited the following decisions: 1) Associated Cement Companies Ltd v. Their Workmen and Anr. (1963-II-LLJ-396)(SC); 2) Kesoram Cotton Mills Ltd. v. Gangadhar and Ors. (1963-II-LLJ-371)(SC); 3) Central Bank of India v. Prakash Chand Jain (1969-II-LLJ-377)(SC) and Indian Airlines v. W.B. Correya (1978-II-LLJ-437)(Mad).
9. Associated Cement Companies Ltd. v. Their Workmen and Anr. (supra:) is a case where, without prior intimation about the holding of the enquiry, the concerned workman was called upon to participate in the domestic enquiry. The Enquiry Officer having personal knowledge of the incident imparted his personal knowledge in coming to the conclusion against the concerned workman. Only in those circumstances, the Supreme Court has held that the cross-examination at the beginning of the domestic enquiry of the concerned workman was not proper.
10. Kesoram Cotton Mills Ltd. v. Gangadhar and Ors. (supra) is also not helpful to the case of the petitioner. In the said judgment the Supreme Court has stated, "that the minimum that we shall expect where witnesses are not examined from the very beginning at the inquiry in the presence of the person charged, is that the person charged should be given a copy of the statements made by witnesses which are to be used at the inquiry well in advance before the inquiry begins".
11. In Central Bank of India v. Prakash Chand Jain (supra), the Supreme Court has reit erated the procedure contained in the Evidence Act, i.e., the basic fact is that facts sought to be proved must be supported by statement made in the presence of the persons against whom the enquiries are held and that statements made behind the back of the person charged are not to be treated as substantive evidence. I do not find any assistance for the counsel for the petitioner from the above two cases.
12. Indian Airlines and Ors. v. W.B. Cor-reya (supra) is also a case, wherein examination of witnesses in the presence of delinquent is emphasised. In that case, the statements recorded behind the back of the delinquent were accepted by the Enquiry Officer who asked the delinquent to begin cross-examination. The witnesses were neither asked to confirm nor deny the statement. Therefore, the Supreme Court found that the principles of natural justice have been violated. This case is also not helpful to the petitioner.
13. The contention that the entire enquiry proceedings must be furnished to the petitioner is without any substance. The enquiry report was furnished to the petitioner and after considering his explanation, the punishment has been awarded. Therefore, the petitioner cannot make a complaint about the non-furnishing of the entire proceedings. When he was a party to the proceedings, he could have made a note of the same. Further, it is also not stated as to how he was prejudiced by not furnishing copy of the proceedings.
14. Another contention vehemently argued was that there was a mala fide on the part of the Enquiry Officer. According to the counsel for the petitioner, the phone message said to have been endorsed in the sundry order was not there originally. He relies upon the statements said to have been made by one Krishnan, when he en-quired him, he has informed him, there was no such endorsement. But the fact is that as the punishing authority has stated the sundry order to disconnect the service was received from the Assistant Accounts Officer from Assistant Engineer's office. When the foreman had been to the service for disconnecting the same, the party objected for disconnection and stated that he would arrange Accounts Officer/ Revenue to make telephone to Assistant Engineer's Officer. Telephonic instructions had accordingly been received from the Accounts Officer over phone and the same was recorded on the sundry order. Thiru, R. Nagarathinam, then Assistant Engineer/ Tiruvottiyur and Thiru N. Krishnan, then Assistant Divisional Engineer/ Tiruvottiyur supported the telephonic conversation. This is a finding of fact. Therefore, this contention also falls to the ground.
15. It is also contended that there was mala fide on the part of the Enquiry Officer stating that he was interested in protecting witnesses Nagarathinam and Krishnan. From the evidence it is seen that the petitioner Accounts Officer has issued instructions to Assistant Divisional Engineer over phone; only on the basis of the instructions, the endorsement has been made in the sundry order register. This is a vague allegation. Therefore, the contention of malafide on the part of Assistant Engineer and Assistant Divisional Engineer goes.
16. The jurisdiction of this Court is very limited. Especially when on sufficient evidence, conclusions have been reached, this Court cannot embark upon the scrutiny of evidence and circumstances and reassess the same. Therefore, the order of the respondents 1 and 2 do not suffer from any infirmity. Hence, the writ petition fails and itis dismissed, without cost.