Madras High Court
R. Sankaralingam vs The Chairman, Tamil Nadu Electricity ... on 24 December, 1998
Equivalent citations: (1999)2MLJ87
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the proceedings of the second respondent dated 30,9.1988 and of the first respondent dated 16.2,1990, the petitioner has filed the above writ petition for quashing the same and for direction directing the respondents to reinstate him into service with back wages and other attendant benefits.
2. The case of the petitioner is briefly stated hereunder: He joined as cashier in the Tamil Nadu Electricity Board in the year 1971. After joining, service, he has finished his B.Com., graduation in 1974. On 24.12.1984 he was promoted as Inspector of Assessment. While so, he received an order or suspension from the office of the Assistant Divisional Engineer, Pulianthope, Madras, dated 18.1.1988 stating that the petitioner has misappropriated the Board's money to tune of Rs. 41,217,50 and an enquiry into grave charges for misconduct was contemplated and he was placed under suspension with effect from 18.1.1988. Five charges have been framed against him and he was asked to submit his explanation within 7 days. Accordingly, the petitioner submitted his explanation in respect of all charges on 19.3.1988 wherein he denied all the charges. Without giving proper opportunity to the petitioner, the enquiry officer submitted his report. On the basis of the enquiry report, the third respondent by his notice dated 18.8.1988 issued a show cause notice dated 18.8.1988 called upon the petitioner to show cause as to why he should not be reverted as Assessor for three years without cumulative effect and also directed to remit Rs. 11,448.30. For the said notice, the petitioner submitted his explanation on 26.8.1988 and also remitted Rs. 11,448.30. The third respondent passed a final order dated 6.8.1988 reverting the petitioner as assessor for three years without cumulative effect. The third respondent by his memo dated 6.9.1988 revoked the suspension from the date of joining duty and was posted to Santhonte Sub Division, Mylapore Division. Accordingly, he joined in the said vacancy on 7.9.1988.
3. The Chief Engineer/2nd respondent herein in his order dated 17.9.1988 again suspended the petitioner with immediate effect on 17.9.1988. On the same day the second respondent also issued a charge sheet to the petitioner consisting of the same set of charges to which he has faced an enquiry and he was directed to show cause within ten days from the date of receipt of the memo. The petitioner submitted his explanation on 29.9.1988. In order to victimise the petitioner, the 2nd respondent issued an order of dismissal on 13.9.1988 without conducting an enquiry as provided under the Standing Rules. As against the order of the Chief Engineer dismissing from service, he preferred an appeal to the first respondent and the same was also dismissed on 16.2.1990. Having no other remedy, the petitioner has filed the above writ petitioner.
4. On behalf of the respondent, second respondent has filed a counter-affidavit disputing various averments made by the petitioner. It is stated that the petitioner was placed under suspension with effect from 18.1.1988 for misappropriation of Board's money to the tune of Rs. 41,250. The petitioner misappropriated the Board's money by adopting the method of fixing the correct date of collection in the original receipt given to the consumer at the time of payment, but affixing a different date in duplicate and triplicate receipts with a clear intention to cheat the Board. Hence, charges were framed against the petitioner. As the explanations given by the petitioner to the charges was not convincing an order enquiry was ordered. After affording adequate opportunity, the enquiry officer found that all the charges were proved; On the oasis of the enquiry report, after giving* further opportunity, the third respondent passed an order reverting him to the lower post of assessor for a period of 3 years without cumulative effect in a memo dated 6.9.1988. Since the Chief Engineer Personnel, the second respondent herein was the appointing authority for the post of Inspector of Assessments and the Superintending Engineer was not empowered to impose major punishments on any one working in the category of the Inspector of Assessment , and the Chief Engineer (Personnel) alone was the competent authority to impose major punishment, the order issued by the Superintending Engineer Was cancelled. Then considering the gravity of the proven charges, show cause notice was issued by the Chief Engineer Personnel proposing the provisional punishment of dis-missal from the service of the Board. A copy of the findings of the enquiry officer was enclosed and he was allowed ten days time to submit his explanation to the show cause notice. It is further stated that after knowing the earlier defect and in order to avoid technical objection, the competent authority, namely, Chief Engineer, after affording adequate opportunity had passed the impugned order. Since the misappropriation of Board's money is a serious misconduct, the maximum punishment of dismissal was awarded. The enquiry was conducted in a fair manner and the petitioner himself expressed his satisfaction about the enquiry. The Chairman who is the appellate authority has gone through the appeal and after considering his claim, rejected the same. With these averments, they prayed for dismissal of the writ petition.
5. In the light of the above pleadings, I have heard the learned Counsel for the petitioner as well as respondents.
6. Ms. Anna Mathew, learned Counsel for the petitioner after taking me through the charges levelled against the petitioner, the enquiry proceedings, ultimate order of the original authority as well as appellate authority, has raised the following contentions:
(i) The entire enquiry proceedings is vitiated since the petitioner was not given adequate opportunity, nor provided with required documents and no acceptable legal evidence let in before the enquiry officer;
(ii) Inasmuch as subsistence allowance was not paid properly, the ultimate order of dismissal passed by the respondents is liable to be set aside;
(iii) As per the Regulations, Chief Engineer is the competent person to take action against the petitioner, however, the initiation was done by the Assistant Engineer who is not competent under the Regulations; accordingly the entire proceedings including the punishment of dismissal is liable to be set aside.
7. On the other hand, Mr. A.N. Sivaprakasam, learned Counsel for the respondents after taking me through the entire enquiry proceedings, and the ultimate order passed by the disciplinary authority as well as appellate authority, contended that during the enquiry, the petitioner was given proper and adequate opportunity to put-forth his defence. He also stated that all the document relied on by the management were only with the petitioner, accordingly there is no violation of principles of natural justice in conducting enquiry. He also submitted that the petitioner had deposited the entire amount without any objection, since he had committed the offence of misappropriation. He also contended that the charge memo issued by the Assistant Engineer is in order since he is the appellate/controlling officer; accordingly he is competent to issue charge memo. He further submitted that subsistence allowance as per the provisions of the Regulations has been duly paid; accordingly the contrary contentions cannot be sustained.
8. I have carefully considered the rival submissions.
9. Among the three contentions raised by the learned Counsel for the petitioner, first I will consider whether the person who had issued the charge memo is competent to do so or not and whether the initiation by the said Officer is in accordance with the Tamil Nadu Electricity Board Employees' Discipline and Appeal Regulations (hereinafter referred to as "the Regulations") or not? The relevant regulation with regard to the above aspect is Regulation 8. In exercise of the powers conferred by Section 79(c) of the Electricity (Supply) Act, 1948, the Tamil Nadu Electricity Board has framed Tamil Nadu Electricity Board Employee's. Discipline and Appeal Regulations with effect from 10.6.1967. Regulation 8 speaks about the procedure for imposing penalties. Among other clauses, we are concerned with Regulation 8(f) (i) and (ii) which are as follows:
8(f) (i) where the competent authority considers that the allegations against an employee, if proved, will necessitate any of the penalties specified in items (i), (ii), (iv) or (viii) of Regulation 5, he may authorise any Officer in Class I or Class II Service superior in rank to the employee to initiate disciplinary proceedings and remit the case to the competent authority for passing orders. (ii) Where the competent authority considers that the allegations against an employee, if proved, will necessitate any of the penalties specified in items (iii), (v), (vi) or (vii) of Regulation 5, he shall himself initiate disciplinary proceedings by framing charges and obtaining the explanation. Thereafter, he may authorise any officer in Class I or Class II service superior in rank to the employee to hold the enquiry against the employee. On the findings of that officer, the competent authority may award punishment or otherwise give a decision.
Provided that where the competent authority to impose the penalty is the Board, the Chairman shall initiate disciplinary proceedings by framing charges and obtaining the explanation/The enquiry may be conducted either by the Chairman or by any officer authorised by him who is superior in rank to the employee concerned. In the light of the findings in the disciplinary proceedings, if the Chairman is of the opinion that any penalty has to be imposed, the papers shall be placed before the Board for such orders as it may deem necessary.
In our case, the order of suspension suspending the petitioner was passed by the Assistant Divisional Engineer, Central, Pulianthope dated 10.3.1988 containing 5 charges and he was asked to submit his explanation in respect of the charges mentioned therein within seven days. Before considering the competency of the person, the charges framed against the petitioner are as follows:
Charge No. 1: Thiru R. Sankaralingam, I.A. had collected an amount of Rs. 41,217.50 (Rs. Forty-one thousand two hundred and seventeen and fifty paise) as detailed enclosed. The above amount as detection by inspecting officers he has remitted straight in to the Bank to the Board's credit and then try misappropriation the above from which constitutes misconduct as per standing order. Thus he has committed misconduct as per Clause 19 para (iii) of the T.N.E.B. Standing Order for workmen engaged in clerical works.
Charge No. 2: Thiru R. Sankaralingam, I.A. has misused the Board's collection receipts at his own direction without using it serial wise as per card billing instruction.
Book No. Operated receipts Unoperated Receipts I Series 2177 870401 to 870778 870779 to 870784 870785 870793 to 870798 870799 to 870800 II Series 378 150825 to 150828 150801 to 150824 150873 to 150876 150877 to 150880 150881 to 150928 150929 to 151072 151073 to 151077 151078 to 151080 151081 to 151112 151113 to 151080 which constitutes misconduct under Clause 19(IX) of T.N.E.B.'1 Standing Order for workmen engaged in clerical works.
Charge No. 3: Thiru R. Sankaralingam, I.A. Otteri Section had defaced an amount of Rs. 11,448.30 (Rupees eleven thousand four hundred and forty-eight and paise thirty) in the following receipts as charged above and he has not brought the collection amount into records;
Sl.No. Receipt No. & Date.
A/c No Amount
1.
46518724.6.1987 22:417:93 Rs. 4,800.00
2. 46518824.6.1987
-do-
Rs. 20.00
3. 46518924.6.1987
-do-
Rs. 147.00
4. 46519024.6.1987 22:709:12 Rs. 325.00
5. 38279723.7.1987 22:501:54 Rs. 6,156.00 Total Rs. 11,448.30 He has not made good the above amount till date.
Thus he has committed misconduct under Clause 19, para, (iii) of T.N.E.B. Standing Order for workmen engaged in clerical works.
Charge No. 4: Thiru R. Sankaralingam, I.A. had made delayed remittance in cases as per detailed furnished below.
Short remittance on 14.12.1987 " 17.12.1987 " 31.12.1987 Thus he had committed misconduct under Clause 19, (ii) of T.N.E.B. Standing Order for workmen engaged in clerical work.
Charge No. 5: Thiru R. Sankaralingam, I.A. had remitted the amount of Rs. 41,217.50 on 19.1.1988 i.e., after suspension 18.1.1988 F.N. in the official capacity. Thus misuse his official capacity which constitutes misconduct as per standing Order 19(iii).
Regulation 5 deals with various penalties that may be imposed upon the employees of the Board. As per Regulation 8(f)(i), if the competent authority considers that the allegations against an employee if proved, will necessitate any of the penalties specified in items (i), (ii), (iv) or (vii) of Regulation 5, he may authorise any Officer in Class I or Class II Service superior in rank to the employee concerned to initiate disciplinary proceedings and thereafter remit the matter to the competent authority for passing orders. However, as per Sub-clause (ii) where the competent authority considers that the allegations against an employee, if proved, will necessitate any of the penalties specified in Items (iii), (v), (vi) or (vii) of Regulation 5, he has to initiate disciplinary proceedings by himself by framing charges and obtaining the explanation. In our case, even though initially final order was passed by the Superintending Engineer, Madras Electricity Distribution Circle, reverting the petitioner to the lower post of Assessor for 3 years without cumulative effect, subsequently at the instance of the appointing authority, namely, Chief Engineer Personnel imposed punishment of dismissal from service. In the present case, even though initially a lesser punishment was imposed, the said order was cancelled and subsequently an order of dismissal from service was imposed by the Chief Engineer. There is no dispute that the punishment of dismissal from service is a major penalty and it comes within Regulation 8(f)(ii), In such circumstances, as per the said Regulation, the competent authority himself has to initiate disciplinary proceedings by framing charges and obtaining explanation. Here again admittedly the competent authority is the Chief Engineer Personnel. In pursuance of the said provision, the Chief Engineer alone is the competent authority to initiate disciplinary proceedings by framing charges and, obtain explanation. In this regard, learned Counsel for the petitioner has relied on a decision of the Division Bench of this Court rendered in Tamil Nadu Electricity Board and Ors. v. A. Paranthaman, Writ Appeal No. 1376 of 1991, dated 4.2.1992, their Lordships in the Division Bench while considering the Very same provisions of the Tamil Nadu Electricity Board, have made the following conclusion:
3...On a careful examination of columns 2 and 3 shows, we are inclined to hold that all these powers referred to in column 2 of annexure-I, namely power of suspension, power of frame charges and the power of imposing punishments are available to the authority mentioned in column 2 only with reference to the punishments mentioned in Group-A and not with reference to the punishments mentioned in Group-B. The authority competent to impose the punishment in Group-B is the appointing authority or any higher authority. The appointing authority so far as the petitioner is concerned is the Superintending Engineer who is the third respondent in this writ petition. If the Superintending Engineer has initiated the disciplinary proceedings against the petitioner he can appoint any Officer to enquire into the matter relating to the disciplinary proceedings which he had initiated and direct that officer to submit his report so as to enable him to proceed with in the matter. However, the initiation of the proceedings should be only by the appointing authority namely the Superintending Engineer. Standing Order 32(1) also specifically states that the Board shall specify from time to time the authorities that are competent to impose the various punishments under the Standing Orders provided that only the appointing authority can impose punishments listed out in Standing Order 31(1) (vi) (viii) (ix) and (x). Admittedly, in the present case, the disciplinary proceedings were not initiated by the Superintending Engineer, the appointing authority but by the Divisional Engineer who is subordinate to the Superintending Engineer and who is not competent to impose the punishments mentioned in Group B, namely, the major punishment. In this case, the Divisional Engineer, Polur, North Arcot initiated the disciplinary proceedings and framed charges against the petitioner. The Divisional Engineer, Chengam, who was appointed as an enquiry officer, after enquiry found that the charges Nos.3 and 4, framed against the petitioner stand proved and forwarded his enquiry report to the Chief Engineer, who is the second respondent in this writ petition. Thereupon, the second respondent issued the impugned proceedings dated 2.7.1988 to the petitioner calling upon him to show pause as to why the punishment of dismissal from service of the Board should not be impbsed on him. In view of the above factual and legal position, we are not able to accept the contention of the learned Counsel for the respondent that the disciplinary proceedings were initiated legally against the petitioner by the Divisional Engineer, while interpreting column 2 of the statement in Annexure-I, referred to above. V. Ramaswamy, J. as he then was, in A. Manickam v. The Chairman, T.N.E.B., W.P.No. 5664 of 1983, order dated 22.12.1986 expressed the same view which was confirmed in Tamil Nadu Electricity Board v. A. Manickam, W.A.No. 29 of 1967, order dated 13.9.1991, by a Division Bench of this Court, to which one of us (Nainar Sundaram, J., as he then was), was a party.
4. The reliance place by the learned Counsel for the respondents on the decision of the Apex Court in D.S. Garowal v. The State of Punjab and another A.I.R. 1969 B.C. 512, in our view, is a misplaced one on the facts of the present case. There, immediately on the appointment of an enquiry officer, the servant filed the writ petition/The last contention raised was that the State Government had no authority to institute the proceedings under the service rules. The concerned service rule there provided for penalties, which are seven in number. The other concerned rule provided for the authorities, who can impose the penalties and divided the penalties into two categories. The authority to impose the penalties of dismissal, removal or compulsory retirement was conferred on the Central Government and the authority to impose the other penalties was given to the State Government. It was sought to be postulated that the charge levelled against the servant was serious and hence he was likely to be dismissed or removed or compulsorily retired and therefore, the Central Government should have instituted the enquiry. This point was repelled by the Supreme Court by pointing out that in the first place it could not be postulated at the very outset of the enquiry, whether there would be punishment at all and even if there is going to be punishment, what particular punishment, out of the seven mentioned could be imposed and therefore, even on the assumption that the Government which could impose the punishment must also institute the enquiry, it could not be said at this stage that the State Government, which could impose atleast four, out of the seven penalties, is not the proper Government to institute the enquiry. Other reasons were also given for repelling this contention. The discussion of this contention by the Supreme Court clearly brings out that the Supreme Court was not called upon to express any categories opinion as to the propriety of an authority, who could not at all impose the punishment proposed, initiating the disciplinary action.
5. When a disciplinary authority to impose a particular punishment is set forth in the service rule, it is only that authority, in the absence of rules empowering delegation; is competent to initiate and frame the charges. This principle has been countenanced in Steel Authority of India v. Labour Court, Dhanbad . The said principle has been taken note of by a Bench of this Court in P. Andrew. The Tamil Nadu Medical Council represented by its President, W.A.No. 772 of 1991, judgment dated 24.7.1991 to which one of us (Nainar Sundaram, J., as he then was) had been a party. In the present case, the stage had been reached just before the actual imposition of the punishment of dismissal from service and the infirmity with regard to the initiation of the disciplinary action to that end staring in the face of the court, it cannot shut its eyes to it and leave the matter at that. That is why, the learned single Judge gave an opportunity to the respondents to rectify the mistake by giving liberty to the competent authority to initiate fresh action for the alleged irregularities.3
6. In these circumstances, the learned single Judge rightly held that the Divisional Engineer, Polur, North Arcot, is not competent to frame charges and institute disciplinary proceeding against the petitioner and the initiation of the disciplinary proceedings by the incompetent authority vitiated the entire proceedings and therefore, the impugned proceedings are liable to be quashed. He cannot take exception to the view taken by the learned single Judge. There is no merit in this writ appeal and the same is liable to be dismissed. Accordingly, the writ appeal is dismissed.
The conclusion of the Division Bench supports the contention of the learned Counsel for the petitioner. Further, by referring the very same Regulations, this Court (P. Sathasivam, J.,) has taken the same view in W. P. 1759 of 1989 dated 17.7.1998.
10. Learned Counsel appearing for the respondents, in spite of the specific provision in the Regulation, by relying on a decision of the Supreme Court reported in Steel Authority of India v. Dr. R.K. Diwakar and Ors. (1998)1 L.L.J. 344 (S.C.), contended that the charge memo issued by the Assistant Executive Engineer is perfectly in order. The following conclusion of their Lordships has been pressed into service by the learned Counsel for the respondents:
4. Before us, the learned Counsel appearing for the appellants, apart from bringing to our notice the relevant proceedings duly delegating the power to the Director, Medical and Health Services; invited our attention to a recent decision of this Court in Director General, E.S.I. v. T. Abdul Razack (1996)2 L.L.J. 765. In that case^ in answering an identical question, this Court held as follows at p.77:
With regard to initiation of disciplinary proceedings by the Regional Director, we find that the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be controlling authority who may be an officer subordinate to the appointing authority (See: State of M.P. v, Shardul Singh , P.V. Srinivasa Sastry v. Controller and Auditor General (1993)1 L.LJ. 824 and Inspector General of Police v. Thavasiappan (1997)1 L.LJ. 191. The Regional Director being the officer incharge of the region, was the controlling authority in respect of the respondents. He could institute the disciplinary proceedings against the respondents even in the absence of specific conferment of a power in that regard.
It is true that it is clear from the said decision, the Assistant Executive Engineer, who is a eon-trolling authority and superior Officer can initiate disciplinary proceedings. If the principles laid down by the Supreme Court in the above decision is followed, undoubtedly, the initiation by the Assistant Execution Engineer in our case cannot be faulted with. However, on a perusal of the decision in; Steel Authority of India v. Labour Court, Dhanbad (1998)1 L.LJ. 344, it is clear that there was a power to delegate, the initiation of disciplinary proceedings and such delegation was done in that case. Their Lordships have also referred to a decision in E.S.I, v. Abdut Razak (1996)2 L.LJ. 765, in which the Supreme Court has held that in the absence of any specific rule as to who should initiate disciplinary proceedings, any superior officer to the delinquent can initiate disciplinary proceedings. In the said decision namely (1998)1 L.LJ. 344, their Lordships have also referred to a decision in the case of Thavasiappan (1997)1 L.LJ. 191. In the said Thavasiappan's case, the Supreme Court has held that when the Rules are silent as to who shall initiate and conduct a disciplinary proceeding, any superior officer of the delinquent can do so. AS rightly contended by Ms. Anna Mathew, learned Counsel for the petitioner, though none of the judgment have held that there is a rule as to who shall initiate disciplinary proceeding, any officer higher than the employee can initiate the disciplinary proceeding is contrary to the Rules. In this regard, it is useful to refer the decision of Abdul Wahab, J., rendered in R. Krishnan v. Tamil Nadu Electricity Board and Anr. Writ Petition No. 8264 of 1987, dated 2.8.1996. The case also relates to Tamil Nadu Electricity Board. In that decision, the learned Judge has considered and distinguished Thavasiappan's case holding that Rule 2A of the Tamil Nadu Police Subordinate Service Discipline and Appeal Rules, 1995 provides that the Governor or any other authority empowered by him may initiate disciplinary proceedings. In that decision, the learned Judge has found that the Supreme Court while interpreting Rule 2-A has taken the view that the rights of the other authorities to initiate disciplinary proceedings were not taken away, since Rule 2-A is only an enabling provision. However, as regards the Tamil Nadu Electricity Board, there is a specific provision, namely, Regulation 8(f) which specify the person/authority to initiate disciplinary proceedings. As the learned Judge (Abdul Wahab, J.,) has considered the very same aspect, it is useful to refer the conclusion arrived at in that decision which is as follows:
9. Even though the Regulations have not been properly followed, learned Counsel for the respondents relied upon a decision in Inspector General of Police v. Thavasiappan and contended that it is not necessary that the appointing authority should alone issue the charge memo. In interpreting Rule 2-A of the Tamil Nadu Police Subordinate Service Discipline and Appeal Rules, 1995 the Supreme Court has stated that from the way it is worded it is not possible to assume that the rule making authority intended to take away the power of otherwise competent authority like the appointing authority, disciplinary authority or controlling authorities and confine it to the authority mentioned in Rule 2-A only. Rule 2-A of the Tamil Nadu Police Subordinate Service Discipline and Appeal Rules, 1995 is as follows:
The Governor or any other authority empowered by him by general or special order may institute disciplinary proceedings against any member of the services.
Rule 2-A provides that the Governor or any other authority empowered by him may institute disciplinary proceedings against any member of the service; In interpreting Rule 2-A, the Supreme Court has taken the view that the rights of the other authorities are not taken away, since according to the Supreme Court Rule 2-A is only an enabling provision. Further Rule 2"A does not mention the person who should perform the set. But there is a special Regulation as far as the Tamil Nadu Electricity Board is concerned, which is Regulation 8(f). It is as follows: "The competent authority may authorise any officer in Clause I or Clause II service superior in rank to the employee to initiate departmental proceedings and to hold enquiry against employee" and since the person to hold enquiry is not mentioned in Rule 2-A of the Tamil Nadu Police Subordinate Service Discipline and Appeal Rules 1955, the Supreme Court held that the initiation proceedings by authority, other than the competent authority was proper. As far as Regulation 8(f) is concerned, it has two aspects. The first one is the authority to initiate departmental proceedings. The second one is the authority to hold an enquiry. There two powers are conferred on a person to be authorised by the competent authority. Here, the person who should perform enquiry is also mentioned, i.e., the person who is authorised by the competent authority. In Rule 2-A of the Tamil Nadu Police Subordinate Service Disciplinary and Appeal Rules; 1955 the person to hold enquiry is not mentioned, which weighed the Supreme Court to take the view as mentioned above. As we have seen above in this case, there is no authority given to the Enquiry Officer by Competent Authority. Further we have seen that even the authority to initiate disciplinary proceedings has not produced in this Case. From the discussion above, I feel that the aforesaid decision is not helpful to the counsel for the respondents. On this grounds, I have to hold that the disciplinary proceedings initiated and conducted against the petitioner is not in accordance with the Tamil Nadu Electricity Board Employees Discipline and Appeal Regulations, 1983.
In Our case, as per the Tamil Nadu Electricity Board Employees' Discipline and Appeal Regulations, there is a specific Regulation stating that the competent authority alone should initiate disciplinary proceedings. This aspect has already been considered by the Division Bench of this Court (Nainar Sundaram, Acting Chief Justice and Somas Undaram, J.,) in Tamil Nadu Electricity Board and Ors. v. A. Paranthaman W.A.No. 1376 of 1991, dated 4.2.1992 which was follows by this Court (P. Sathasinvam, J.,) in A. Rajasekaran v. Tamil Nadu Electricity Board W.P.No. 1759 of 1989 dated 17.7.1998. Therefore, the decision in Steel Authority -of India v. Labour Court; Dhanbad (i 998)1 L.LJ. 344 relied on by the learned Counsel for the respondents will not apply to the facts of this case since in this case there is a specific regulation that the competent authority, namely, Chief Engineer alone should initiate the disciplinary proceedings. Since the competent authority, namely, Chief Engineer had not initiated the disciplinary proceeding in this case, the entire proceedings are vitiated; accordingly I sustain the contention raised by the learned Counsel for the petitioner in this regard.
11. For the sake of completeness, I shall consider the other contentions also namely the enquiry was not conducted in accordance with the Regulations, I have already extracted the charges framed against the petitioner. Totally five charge were framed by the Assistant Executive Engineer, Pulianthope against the petitioner. It is seen from the enquiry report that the very same officer was asked to state on what basis the charges were framed on the delinquent. In this regard, it is the grievance of the petitioner that the said witness was not examined in this presence. His statement was referred to by the enquiry officer. By obtaining a statement from the said person, without an opportunity to cross-examine him by the delinquent officer, the enquiry officer has violated the principles of natural justice. It is also the complaint of the petitioner that xerox copies of certain documents said to have; been signed by the delinquent have been referred to and considered by the enquiry officer. Here again, the complaint is that the petitioner was not supplied with those copies. Even in the counter affidavit the second respondent has admitted that those copies have not been furnished since the petitioner did not ask for copy of the enquiry proceedings. Failure to furnish copies of documents relied on by the management during the enquiry and examination of witnesses behind the back of the delinquent cannot be accepted. Likewise, even though the enquiry officer has very much relied on a written complaint of a consumer by name Dakshinamoorthy of 173, Demellous Road, Pulianthop, according to the petitioner, he was not furnished with the copy of the said complaint. In such circumstance, the following conclusion of the enquiry officer, namely, From the above it is seen that the delinquent was in the habit of collecting money from the consumers and accounting them properly. The sum of Rs. 6,155 Under Receipt No. 382797 dated 23.7.1987 pertains to the consumer who has given the petition in question. The above one incident is sufficient to prove that the delinquent had misappropriated the Board's money.
cannot be accepted. It is also relevant that the enquiry officer has referred to the following statement made by the petitioner before him:
After extracting the above statement, the enquiry officer has concluded that the above three lines are sufficient to prove that the delinquent was engaged in dishonest activities in so far as Board's business is concerned. After going through the oral statement of the petitioner mentioned above, I am not in a position to accept the conclusion of the enquiry officer i.e.," those statements are sufficient to hold that the delinquent was engaged in dishonest activities of Board's money". It is clear that the enquiry officer has not followed not only the principles of natural justice, but absolutely there is no legal evidence before him to arrive at such a conclusion. Here it is relevant to point out the error committed by the disciplinary authority "in the impugned order dated 30.9.1988. Before passing the order of dismissal, the Chief Engineer has concluded thus:
The charge of misappropriation made against the delinquent was only based on the recorded evidence and there is no necessity to indicate the proposed witnesses to be examined on the Board side in the questionnaire form....
There is no need to the enquiry officer to furnish the delinquent the copy of the statements and depositions taken down by the officers voluntarily. Had he requested for it, he would have been permitted to copy down. Even now he has not requested to copy down the enquiry proceedings. He has given his explanation to the show cause notice issued....
It is also admitted in the counter-affidavit by the second respondent that since the petitioner did not ask for a copy of the disciplinary proceedings, he was not given the enquiry proceedings. In para 4 it is stated thus:
...He did not ask for a copy of the enquiry proceedings. If he was for getting a copy of the proceedings of the enquiry, he should have requested for it. Then he would have been permitted to peruse the entire proceedings of the enquiry and copy down it...
The said statement also supports the claim of the petitioner. It is clear that the disciplinary authority has also committed an error in not fulfilling the principles of natural justice. Accordingly, I hold that no legal evidence was let in before the enquiry officer; hence the ultimate conclusion arrived at by the competent authority is not based on any acceptable evidence and it is also justified in holding that it is a "perverse finding."
12. Learned Counsel for the petitioner has also contended that the petitioner was not paid the subsistence allowance from the date of suspension for a period of four months and allowance as specified in Service Rules. She also relied on a decision of the Supreme Court reported in Fakirbhai Fulabhai Solanki v. The Presiding Officer and Anr. (1986)2 L.L.J. 124. The fact that subsistence allowance was not paid properly vitiated the proceedings; accordingly she prayed for setting aside the order of dismissal. No doubt, their Lordships of the Supreme Court in that decision have held that the payment of subsistence allowance should be in accordance with standing order or contract of employment and such denial leads to violation of principles of natural justice; consequently vitiates the entire proceedings. Here, in our case though it is stated that petitioner was not paid subsistence allowance, no details have been furnished by the petitioner except the mere bald statement in para 14 that to the same has been made in order to secure an early date for disposal of the writ petition. It is also worthwhile to refer the statement made by the second respondent in para. 16 of the counter-affidavit wherein it is stated that the petitioner has been paid subsistence allowance till August, 1988. In the absence of any details and in view of specific denial by the respondent and also of the fact that he had been paid subsistence allowance till August, 1988, the said contention of the learned Counsel for the petitioner cannot be accepted.
13. In the light of my conclusion the petitioner is entitled to succeed; accordingly the writ petition is allowed as prayed for. No costs. The respondents are directed to reinstate the petitioner in service with back-wages and other attendant benefits within a period of four weeks from the date of receipt of a copy of this order.