Madras High Court
K.T.Kumaravel vs The Chairman Cum Managing Director on 4 December, 2014
Author: M.M.Sundresh
Bench: M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.12.2014 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.P.No.13805 of 2014 and M.P.No.1 of 2014 K.T.Kumaravel ... Petitioner Vs. 1.The Chairman cum Managing Director Tamilnadu Generation and Distribution Corporation Ltd., 144 Anna Salai, Chennai 02. 2.The Chief Engineer / Hydro Tamilnadu Generation and Distribution Corporation Ltd., 144, Anna Salai, Chennai 02. 3.The Superintending Engineer, Generation Circle / Kundah Tamilnadu Generation and Distribution Corporation Ltd., Kundah Bridge Post, The Nilgiris. 643 219. 4.The Executive Engineer/Electrical Tamilnadu Generation and Distribution Corporation Ltd., Power House 2, Kundah, Nilgiri District. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of writ of certiorari calling for the entire records connected with the impugned Memo in Memo No.259/Adm.I/A.3/F.Doc/14, dated 02.04.2014, on the file of the 3rd respondent and quash the same. For Petitioner ... M/s.S.N.Ravichandran For Respondents ... Mr.P.R.Dilip Kumar Standing Counsel for TNEB for R1 to R4. O R D E R
The writ petition is filed to issue a writ of certiorari calling for the entire records connected with the impugned Memo in Memo No.259/Adm.I/A.3/F.Doc/14, dated 02.04.2014, on the file of the 3rd respondent and quash the same.
2. The petitioner herein was directly recruited under the services of the respondent on 08.12.1988 as Assistant Engineer/ Mechanical. Subsequently, he was promoted as Assistant Executive Engineer / Mechanical. In pursuant to the disciplinary enquiry initiated against the petitioner for having interfered in the pay distributing affairs and delayed the pay disbursement to other officials/staff and having misused the corporation vehicle to transport his family members, he was issued with a punishment of increment cut for one year with cumulative effect. The order passed in the year 2002 by the Superintending Engineer was modified as increment cut for one year without cumulative effect by the Chief Engineer.
3. The petitioner was also suspended with effect from 02.11.2002 for claiming false medical reimbursements and tampering of official records. After enquiry, he was imposed with punishment of one year increment cut without cumulative effect. By the proceedings dated 17.02.2003 and 13.05.2004, two disciplinary actions were taken and order of censure was passed.
4. The petitioner was once again suspended on 05.05.2006 for having used foul language and threatening staff and for not adhering to the instructions of the superiors. The suspension order was revoked thereafter and he was transferred. Once again, disciplinary proceeding was initiated for unauthorised absence and threatening the lower level officials and a punishment of two years increment cut without cumulative effect was imposed on 31.07.2009. For having assaulted the Executive Engineer, a criminal case was registered against the petitioner in Crime No.13/2010 under Sections 294(b), 332, 333, 506(ii) IPC. The said case has been charge sheeted and pending before the Judicial Magistrate, Gudalur. In the meanwhile, number of proceedings have been initiated on the petitioner and once again charges have been framed on 27.09.2011 for having tried to assault the Executive Engineer. The enquiry against the pending charges is still in consideration.
5. Thereafter charges have been once again framed against the petitioner vide charge memo dated 02.04.2014 wherein it has been stated that the petitioner has caused generation loss to the tune of 22196 units by taking the vital tool to his residence and he tried to assault the Assistant Engineer with a hammer and LT breaker spring charging handle. Prior to the charges framed, the petitioner was issued with the order of suspension dated 02.04.2014. The said order was passed in public interest pending enequiry in the grave charges. Now, challenging the said suspension order, the present writ petition has been filed.
6. The learned counsel appearing for the petitioner submitted that the order impugned passed by the 3rd respondent is one without jurisdiction. The petitioner having been appointed as Assistant Executive Engineer, the competent authority to take action is the 2nd respondent. The second submission of the learned counsel for the petitioner is that the order impugned has been passed on malafide intention. The petitioner has given complaints against the 3rd respondent. Therefore, as an offshoot, the suspension order has been passed on him. The third submission of the learned counsel is that the impugned order has been passed on non-application of mind and the same is liable to be set aside since as per Chapter II, the order of suspension has not been reviewed periodically in a case where it has been in force beyond four years. In support of his contention, the learned counsel made reliance upon the following decisions -
1.M.Kalaivanan v. Government of India [2000 LAB I.C. 490]
2.A.K.K.Nambiar V. Union of India & Anr. [CDJ 1969 SC 420]
3.Order of this Court dated 09.06.2014 in WP No.32563 & 32564 of 2012
7. Per contra, the learned counsel appearing for the respondent submitted that the order impugned is not a punishment and it has been passed in exercise of the powers conferred under Regulation 9, Sub Regulation 9 of the Tamil Nadu Electricity Board Employee's Discipline and Appeal Regulations. Under Chapter 2, Sub-clause 3, the power of suspension can be exercised by an officer over members of Class I and II Services who is competent to award censure. The petitioner comes under Class II and as per Regulations 6(a)(C), the authority to impose censure is the Superintending Engineer for the post of Assistant Executive Engineer. Therefore, the petitioner being an Assistant Executive Engineer and the 3rd respondent being Superintending Engineer is competent to pass the order of suspension as is otherwise competent to award censure for Class II service employees. The learned counsel further submitted that there is no malafide, as alleged by the petitioner since the allegations made are all with respect to some other charges. The petitioner has been facing number of charges and merely because he has made some statement and in the absence of any challenge to the charge memo and the proceedings have been issued pursuant to an alleged incident which is said to have happened in the presence of other officials, there is no basis for the said submission. In so far as the third submission is concerned, the learned counsel submitted that the respondent have felt that the suspension order is required to be continued. Even otherwise, the order of suspension would not lapse. There are valid reasons for continuation of suspension. The learned counsel further submitted that coming to the non-application of mind, the alleged occurrence has happened on 30.03.2014. Therefore, the fact that the petitioner did not come to the office on 01.04.2014 has got no relevancy and hence it is submitted that the writ petition will have to be dismissed.
8. Regulation 6 speaks about Competent and Appellate Disciplinary authorities. Under Regulation 6 (a) (2) (C), to the post of Assistant Executive Engineers, the competent authority to impose censure is the Superintending Engineer. Chapter II deals with suspension. Under Regulation 3 of Chapter II, an order of suspension may be made on members of Class I and II Services by the authority competent to award censure on the particular category of employees. Admittedly, the petitioner comes under the Class II category and the 3rd respondent is the competent authority to impose censure on the categories of employees who come under the said clause. Therefore, incidentally, under Regulation 3 of Chapter II, the power of suspension can be exercised by the 3rd respondent. Hence, the submission of the learned counsel for the petitioner in so far as the lack of jurisdiction is concerned is accordingly rejected.
9. Coming to the malafides, it is settled law that malice is of two parts, one is factual and another is legal. Whereas factual malice is alleged, the respondent has to be named in his own name which is not required for a legal malice. A perusal of the documents relied upon by the learned counsel for the petitioner would show that the allegations made are with respect to the prior charges. Now, the petitioner has not challenged the charge memo meaning thereby the 2nd respondent was prima facie satisfied and accordingly framed the charge based on relevant material. It is not as if the 3rd respondent was responsible for the proceedings initiated. The suspension order has been passed after taking note of alleged incident said to have happened on 30.03.2014. If the allegation of the petitioner regarding malafides are true, then the 2nd respondent would not have framed the charges. It is settled law that the respondents persons who alleges malafides has to prove to the satisfaction of the court. There is no sufficient material to come to the conclusion that the suspension order has been passed on malafide consideration. As the allegation has been made by the petitioner especially on the 3rd respondent, this is a case of malice in fact. The petitioner has not chosen to make the 3rd respondent as the respondent in his personal capacity. The alleged occurrence is said to have happened in the presence of other officials. This can be seen on a perusal of the charge memo. Considering the above, this court is of the view that the submission made on malafides has to be rejected and accordingly the same is rejected.
10. Now, coming to the other submissions namely the non-application of mind and the failure of reviewing the order of suspension, this court is of the considered view that even those two submissions are liable to be rejected. The allegation against the petitioner is that he took away a vital operating tool. The allegation is not that he done it while in work. Therefore, the submission made that on 01.04.2014, the petitioner was not available has no relevancy since the charge is that in view of the unlawful activity of the petitioner in removing the vital operating tool and taking it away without permission, generation loss of 22196 units was caused on 01.04.2014. The other allegation is that on 30.03.2014, the petitioner tried to assault the Assistant Executive Engineer with hammer and LT Breaker Spring Charging handle in front of one P.Suresh kumar, time keeper, Grade I. Therefore, there is no non-application of mind leading to an apparent error warranting interference. In any case, the order of suspension is not a punishment and the charges will have to be proved by the respondent against the petitioner. The non-reviewing of the suspension order by itself cannot be a ground to hold that the order passed is vitiated. In other words, by the non-observance, the order will not come to a grinding halt. The review is only for the purpose of enabling the officials to have a re-look at the entire case and satisfy as to whether the continuance of suspension is required or not. The decisions relied upon by the learned counsel for the petitioner are not applicable to the case in this regard. A time limit has been fixed therein for the suspension period. In other words, there is no limitation with respect of suspension in so far as the present case is concerned. The question as to whether it should be curtailed, extended or revoked is the discretion of the authorities concerned, to be done based on a factual consideration. Similarly, the other judgments referred by the learned counsel for the petitioner regarding jurisdiction over an order of suspension are also not applicable to the present case. It is not as if the 3rd respondent did not have the jurisdiction even to pass the suspension order. In those cases, the issue was as to whether an order without jurisdiction can be allowed to continue when such jurisdiction is available to an authority thereafter. That is not the situation here.
11. Considering the above circumstances, this court is not inclined to allow the writ petition and accordingly stands dismissed. However, considering the facts and circumstances of the case, the respondents 2 and 3 are directed to pass appropriate orders, within a period of four weeks from the date of receipt of a copy of this order, indicating their decision as to whether the suspension order pertaining to the petitioner is required to be extended or revoked. It is open to the 1st and 2nd respondents to consider the factum of transferring the petitioner to some other place.
04.12.2014
Internet : Yes/No
Index : Yes/No
rgr
1.The Chairman cum Managing Director
Tamilnadu Generation and Distribution
Corporation Ltd., 144 Anna Salai,
Chennai 02.
2.The Chief Engineer / Hydro
Tamilnadu Generation and Distribution
Corporation Ltd., 144, Anna Salai,
Chennai 02.
3.The Superintending Engineer,
Generation Circle / Kundah
Tamilnadu Generation and Distribution
Corporation Ltd.,
Kundah Bridge Post,
The Nilgiris. 643 219.
4.The Executive Engineer/Electrical
Tamilnadu Generation and Distribution
Corporation Ltd., Power House 2,
Kundah, Nilgiri District.
M.M.SUNDRESH,J.
Rgr
W.P.No.13805 of 2014
04.12.2014