Madras High Court
G. Kaliasamy, Quality Inspector, ... vs The Chairman-Cum-Managing Director, ... on 21 January, 2002
ORDER P.K. Mishra, J.
1. Heard the learned counsel appearing for the parties.
2.In this writ petition, the validity of the charge memo dated 29.11.1994 and the order dated 15.2.1994 have been challenged. The petitioner is an employee under the respondent No.1. A departmental proceeding was initiated against him on certain allegations relating to shortage of gunny bags and loss of value of gunny bags due to damage in May 1995. Subsequently, the petitioner filed an explanation. The enquiry officer submitted his report holding that the first charge relating to shortage of gunny bags had not been established. But the second charge i.e. loss of value of gunny bags due to damage had been proved. However, the disciplinary authority differing from the enquiry officer held that both the charges had been proved and directed recovery of the amount from the petitioner within one week by order dated 26.9.86. Against the aforesaid order, the present petitioner preferred an appeal before the first respondent. The appellate authority by order dated 3.5.90 set aside the order of the appellate authority and remanded the matter for fresh disposal. Subsequently, the petitioner again furnished his explanation and the enquiry officer by report dated 3.6.91 observed that the charges had not been proved. On the basis of the said report, the disciplinary authority passed final order holding that the charges have not been proved and thereby dropped the disciplinary proceedings against the petitioner. Thereafter, the first respondent purported to review the earlier order by passing an order dated 15.2.94 and directed that the case would be reopened and the petitioner should face an enquiry. On the basis of the said order, the charge memo has been issued on 29.11.94. After receipt of such charge memo the present writ petition had been filed questioning the legality of the order dated 15.2.94 and subsequent order dated 29.11.94.
3.It has been submitted by the petitioner that the order dated 15.2.94 wherein the first respondent purported to review earlier order had been passed without giving any opportunity of hearing to the petitioner and the petitioner only came to know about such order after receiving fresh charge memo. In the above background, the learned counsel for the petitioner contended that there is power to review and at any rate even assuming that there is no power of review, such an order passed without giving opportunity of hearing cannot be sustained.
4.The learned counsel appearing for the respondent states that even at the relevant time when the disciplinary authority has passed the order there was no provision containing certain regulations applicable to Tamilnadu Civil supplies Corporation. Subsequently, by amendment such review power in the shape of as contained in Chapter V regulation 12 had been incorporated which became effective from 13.3.93 and in exercise of such power the review has been allowed. It has been, however submitted even though, while deciding the review no opportunity had been given the petitioner can avail of this opportunity as the charge memo has been issued and he can submit his explanation.
5.In the present case, the provision relating to review came into force with effect from 13.3.93 and as such by no stretch of imagination it can be held that review power which was conferred subsequently i.e. in March 1993 could be invoked for reopening the matters which had been concluded in April 1992. Moreover, even assuming that regulation 12 of Chapter V was applicable, such power could be exercised in respect of any pending disciplinary proceeding. This is evident from the words used in regulation 12 which is extracted hereunder.
"12.Notwithstanding anything contained in these regulations, the Board or the Managing Director shall either suo moto or otherwise at any stage of the disciplinary proceedings may call for the file and give any direction as deemed just and equitable provided such direction shall not abridge the procedure for imposing the penalty."
The expression 'at any stage of the disciplinary proceedings" makes it clear that such power is to be exercised during the pendency of the disciplinary proceeding and not where the disciplinary proceeding is already concluded. Therefore, in either view of the matter it cannot be said that the first respondent had jurisdiction to reopen the matter by exercise of so called power of review as held in regulation 12.
6.Apart from the above, the order passed by the first respondent cannot be sustained on an other ground. It is not disputed that before passing the order dated 15.2.94, no notice had been issued to the petitioner nor any opportunity of being heard in the matter had been afforded to the petitioner. When the disciplinary authority had already decided to drop the proceedings and such order had already been communicated to the petitioner, if such order was to be set aside, principles of natural justice was required to be followed before setting aside the order. In the present case no notice had been issued before the review power was exercised. In such view of the matter, the order passed by the authority setting aside the previous order wherein the charges had been dropped, was without jurisdiction. Consequently, the subsequent charge memo dated 29.11.94 framing issues must also be taken as without jurisdiction.
7.The writ petition is allowed and the order dated 15.2.94 and the consequential charge memo are quashed. There is no order as to costs.