Madras High Court
A. Kala … vs The Principal Secretary To The ... on 20 December, 2023
Author: J. Sathya Narayana Prasad
Bench: J. Sathya Narayana Prasad
W.P.No.24968 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 27.09.2023
Pronounced on 20.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD
W.P. No. 24968 of 2021
and WMP.Nos.26285 to 26857 of 2021
A. Kala …
Petitioner
Vs
1. The Principal Secretary to the Government,
Energy Department,
Secretariat, Fort St. George,
Chennai – 600 009.
2. The Board of Directors,
Tamil Nadu Power Finance and
Infrastructure Development Corporation Ltd.
No. 490, 3/4, Anna Salai,
Nandanam, Chennai – 600 035.
3. Tamil Nadu Power Finance and
Infrastructure Development Corporation Ltd.
Rep. by the Chairman and managing Director,
No. 490, 3/4, Anna Salai,
Nandanam, Chennai – 600 035.
4. The Inquiry Authority,
Additional Secretary to Government,
Indvvustries Department,
https://www.mhc.tn.gov.in/judis
Page 1 of 100
W.P.No.24968 of 2021
Secretarait, Fort St. George,
Chennai – 600 009. …
Respondents
PRAYER : Writ Petition filed under Article 226 of Constitution of India,
seeking Writ of Certiorarified Mandamus calling for the records relating to the
Inquiry Report dated 16/10/2020 issued by the 4 th Respondent together with the
Order of Compulsory Retirement and reduction of retirement benefits issued by
the 3rd Respondent in Ref No. TNPF/P&A/Disciplinary case/Order/2021 dated
13/10/2021 on behalf of the 2nd respondent and to quash the same and
consequently direct the 2nd Respondent to reinstate the Petitioner with all
backwages and continuity of service.
For Petitioner : Mr.P. Wilson
Senior Counsel for
for M/s.P.Wilson Associates
For Respondents : Mr.S. Silambannan
Additional Advocate General
Asst.by Mr.V.Nanmaran
Additional Government Pleader
for R2 & R3
Mr.M.Shajahan
Spl. Government Pleader for R1 & R4
ORDER
This writ petition has been filed to call for the records relating to the https://www.mhc.tn.gov.in/judis Page 2 of 100 W.P.No.24968 of 2021 Inquiry Report dated 16/10/2020 issued by the 4th Respondent together with the Order of Compulsory Retirement and reduction of retirement benefits issued by the 3rd Respondent in Ref No. TNPF/P&A/Disciplinary case/Order/2021 dated 13/10/2021 on behalf of the 2nd respondent and to quash the same and consequently direct the 2nd Respondent to reinstate the Petitioner with all backwages and continuity of service.
2. BRIEF FACTS OF THE CASE:-
2.1 The petitioner was initially appointed as Assistant Administrative officer in the LIC of India on 05.07.1996 and was in service till 03.10.1998.
Subsequently, she was appointed as Assistant Manager in States Industries Promotion Corporation on 05.10.1998 and then on 14.02.2014 as General Manager of the Tamil Nadu Power Finance and Infrastructure Development Corporation Ltd (“TNPFC”). Then on 19.06.2020 TNPFC issued a charge memo with 9 charges, subsequently suspending her from the service on 24.06.2020. The petitioner was again issued with a supplementary charge memo containing 6 supplementary charges dated 27.06.2020. The charges issued against the petitioner were for the purchase of excess stock, disclosure of confidential information to unauthorized person, breach of security process, https://www.mhc.tn.gov.in/judis Page 3 of 100 W.P.No.24968 of 2021 delay in processing death claim requests, failure to expedite, pending certificate work through system analyst, delay in communicating fund transfer rejection status, non-management of funds lying in the saving and current accounts causing loss of interest and non-declaration of petitioner’s relationship with a candidate selected by the committee of which petitioner was a part. Six supplementary charges were framed by TNPFC against the petitioner, for contributing to an article in a newspaper and acting prejudicial to the reputation and financial interest of the corporation. The charge memo was issued under TN Power Finance Service rules and Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and the charges against the petitioner were framed with the malicious intention to tarnish her good reputation gained over the years with integrity and devotion. Report of the Enquiry officer have decided to impose a punishment of "Compulsory Retirement" as per Rule No.8.15(b)(viii) read with Rule 3.04 of T.N. Power Finance Service Rules and issue orders accordingly. The Board had further decided to grant a punishment of reduction in retirement benefits i.e., Gratuity by 1/3rd amounting to Rs.2,24,753/- on the total eligible Gratuity of Rs.6,74,258/-.
SUBMISSIONS MADE BY THE LEARNED SENIOR COUNSEL https://www.mhc.tn.gov.in/judis Page 4 of 100 W.P.No.24968 of 2021 FOR THE PETITIONER:
The learned Senior Counsel appearing for the petitioner would submit that the following Charges are framed against the petitioner and for ready reference the charge memo and the reply to charge memo are usefully extracted hereunder:-
The Main Charge I levelled against petitioner is with regard to purchase of large amount of stationary found in the 4th floor during the cleaning of the record room and verification of inventory of stationaries which estimated the stock value of Rs.3,76,184/- of which most of the stocks are waste. Those stocks were ordered by the Petitioner while functioning as GENERAL MANAGER in charge of general administration and purchases of stationery. It is stated that the stocks were ordered from 2018 – 2020 without any application of mind and in violation of the conduct rule 8.01(b), 8.02, 8.14(ii) &
(iii) of TN Power Finance Service Rules.
In reply to the Main Charge I, it is submitted that most of the stocks that are said to be purchased by the Petitioner was purchased even before her appointment as General Manager. The said stock register of the year 2018 - 2019 neither been produced to the Petitioner nor has been marked as a document in disciplinary proceedings. However, this https://www.mhc.tn.gov.in/judis Page 5 of 100 W.P.No.24968 of 2021 being so, the Respondents have alleged that the petitioner has ordered stock without verifying the stock register. Thus, when the stock register for the year 2018-19 has neither been marked nor produced to the petitioner it begs the question on what basis the said charge has been framed. Further it is submitted that the Stock Committee is formed only on 10.06.2020 shortly before the issue of charge. Before framing of charge, the only possible exercise undertaken by the committee is verification of stock register. Therefore, the allegation made against the Petitioner is merely based on assumptions and surmises. Thus it is evident that without any basis and for reasons best known only to the Respondents and had passed the impugned order which is devoid in any merit.
In the Main Charge II levelled against the petitioner, it is alleged that the Petitioner was engaged in every stage of automation process for all the operations and activities including digitally generating certificates and receipts where the Petitioner without any authorization has ordered certificate PVC covers which costs Rs.1,88,800/- in February 2020 causing loss to organization, failed in her duty amounting to lack of devotion and misconduct of neglect of duty, violating conduct rule 8.01(b), 8.02, 8.14(ii) & (iii) of TN Power Finance Service Rules.
In reply to the Main Charge II, it is submitted that the https://www.mhc.tn.gov.in/judis Page 6 of 100 W.P.No.24968 of 2021 Petitioner has considered the corporation’s intention for automation and nowhere it is mentioned that the deposit certificates are not going to be printed in future. It is to be noted that till May, 2020 pre-printed certificates were issued. Only from April 2020 the Fixed Deposit certificates in digital format was tested. Therefore, the petitioner has caused no harm or loss to the corporation. The enquiry authority has taken up the role of the prosecutor and marked the documents which are not within the knowledge and a bare reading of the charge would reveal that the purchase was made in February, 2020. It is further submitted that the Government has imposed lockdown due to widespread of corona virus which resulted in online mode of deposits in order to maintain social distancing making the PVC covers unusable temporarily. It is an unforeseen situation for the entire world for which petitioner is blamed for issuance of digital certificates during pandemic.
The Main Charge III, it is alleged that the Petitioner has disclosed the confidential information to unauthorised persons Mr. Somasundaram and Mr.Balachandran, Chartered Accountants appointed as Internal Auditors by TNPFC for the FY 2019-20 with approval from Board of Directors on 30.08.2019. It is accused that the petitioner had shared the TNPFC’s Financials to the earlier internal auditor for the FY 2014-17 amounting to disclosure of confidential information of the organization to the unauthorized third https://www.mhc.tn.gov.in/judis Page 7 of 100 W.P.No.24968 of 2021 person without any approval violating TNPFC Service rule 8.14(xiv), disclosing to any unauthorised person any confidential information relating to corporation.
With regard to Main Charge III, it is submitted that as per Section 205 of the Companies Act 2013, the Company Secretary is responsible for sending the agenda of the meeting. The Audit committee agenda was only shared with the present internal auditors and to no one else for which they have sent a mail stating the inability to attend the meeting on 18.03.2020. The inquiry officer observed the statement of one Ms. Varshini, the company secretary that the present auditors have confirmed the receipt of agenda. Therefore, there cannot be an iota of truth in the allegation made against the Petitioner. The Inquiry officer has made observation regarding the personal consignments (Medicines) sent by the Petitioner to the then auditor Mr. Palanivel whereas the Main Charge III is all about the disclosure of confidential information to unauthorized persons. There is no single document or any statement of witness to substantiate this observation of the inquiry authority. Hence, this charge has been framed out of thin air without any rhyme or reasons.
In the Main Charge IV levelled against the petitioner, it is alleged that the petitioner has violated the security process by https://www.mhc.tn.gov.in/judis Page 8 of 100 W.P.No.24968 of 2021 entrusting the support staffs who are employees in contract namely Selvi. Suguna and Thiru. Mohan by providing them Laptops to work from home and allowing them to access the FMS application remotely which is said as breach of security process.
In reply to the Main Charge IV, it is submitted that the charge levied is on the basis of note file on FMS application access – information security issue dated 28.05.2020 initiated by one SumathiMalarvizhi, Manager, Deposits and a copy of the same was not issued to the Petitioner. It is submitted that the access can be only granted by the system integrators who develops the web and mobile application for TNPFC and not by the Petitioner who is not a technical expert but a Chartered Accountant. It is submitted that the Petitioner neither knows to provide access to FMS nor has the required technical expertise to provide the same and it is clear that there is no evidence that the Petitioner has granted permission to supporting staffs to access FMS application remotely. It is also pertinent to note that the Petitioner was on medical leave from 23.05.2020 to 06.06.2020 while the access alleged was given by the petitioner on 23.05.2020.
In the Main Charge V levelled against the petitioner, it is stated that the petitioner was in charge of administrative functions where 28 death cases were pending. It was alleged https://www.mhc.tn.gov.in/judis Page 9 of 100 W.P.No.24968 of 2021 that the Petitioner was directly allotting works and did not reallot the pending death claim processing thereby failing in her duty to expedite the work causing delay to the Corporation amounting to lack of devotion to duty and conduct of unbecoming of the officer.
In reply to the Main Charge V, it is submitted that Ms. Priya and Ms.Sumathy Malarvizhi are the officials in charge for processing the death claims as per the work allocation order dated 17.05.2018 and both of them have not made any report on pending death claims. The Respondent Corporation has not even marked a single document as evidence with regard to this charge. It is submitted that the respondent has framed this charge based on the note file on death cases and dispatch work allocation dated 01.06.2020 initiated by the Manager, Deposits who is responsible for processing the death claim. The Inquiry authority has gone beyond her power and suggested that delay was caused only because the Petitioner and has not made any alternative arrangement for work from home to the disabled employee. It is evident that the inquiry authority has failed to verify the document whether Ms. Priya has given any request for work from home and blindly reached the conclusion that Ms. Priya has requested for work from home and arrangement was not made.
In the Main Charge VI, it is alleged that the petitioner https://www.mhc.tn.gov.in/judis Page 10 of 100 W.P.No.24968 of 2021 had failed in ensuring that the system analyst expedites the pending certificate works as over 250 deposit confirmation receipt was pending for over 2 months resulting in delay in issuing deposit certificates to the depositors.
In reply to the Main Charge VI, it is submitted that the deposit section has initiated the transaction on 18 th to 20th March, 2020 and the next work is only to print the certificates which is the responsibility of Manager, Deposits who miserably failed to complete the work. The said Manager, Deposits who caused delay in printing in deposit certificates, initiated a note file blaming the system analyst and the Petitioner for delay in issuance of the deposit certificates. The Petitioner has also submitted that counterfoils of the abovementioned deposit transactions showing the transaction date evidencing the date of request and immediate action taken by the petitioner to show that there are no long pending deposits for printing. The enquiry authority casually observed that the Manager, Deposits was on deputation suggesting that she cannot be blamed for the delay. This observation is wrong since the Manager, Deposits did not go on deputation during those days though the CMD has issued orders for her transfer and she continued in the Respondent Corporation only. Thereby the inquiry authority has reached the erroneous conclusion without proper appreciation of facts and evidence submitted by the petitioner and held the charge as proved against the petitioner.
https://www.mhc.tn.gov.in/judis Page 11 of 100 W.P.No.24968 of 2021 In the Main Charge VII levelled against the petitioner, allegation is made on the petitioner for causing delay in sharing the bank statement for reconciliation of monthly interest payment status for 13,692 depositors and caused further delay in communicating fund transfer rejection status to 377 depositors causing panic among depositors.
In relation with the Main Charge VII, it is submitted that the said main charge VII was dropped as NOT PROVED by the Inquiry authority.
In the Main Charge VIII, it is alleged that the petitioner during her tenure in her office was responsible and in charge of fund management. It is alleged that the Petitioner failed to manage the funds where the average amount in current and savings account is Rs.314.59 crores which resulted in loss of interest by lending it to TANGEDCO and by putting the funds in short term income securities.
In reply to the Main Charge VIII, it is submitted that the said charge was framed on the basis of note file on monitoring of Deposit collections and reconciliation in FMS follow up dated 25.05.2020 as per Annexure II which is prepared by Ms. Varshini – Company Secretary and the https://www.mhc.tn.gov.in/judis Page 12 of 100 W.P.No.24968 of 2021 Inquiry authority herself marked the said note file behind the Petitioners back without furnishing the copy. The Petitioner has submitted the Maturity list of deposits as evidence showing that the funds are managed properly as per the TNPFC requirement to meet its interest commitment. The observation given by the inquiry authority that no evidence has been furnished to show that the daily balance available are reported to CMD as a routine matter as a part of day-to-day responsibilities of the petitioner herein, through the office file maintained for long term loan to TANGEDCO and investment in Government securities. No separate documentary evidence is required to prove the same. The charge framed by the respondent corporation and the findings of the inquiry authority are only on the basis of the note file and without any documentary evidence.
In the Main Charge IX levied against the petitioner, it is stated that the petitioner was in charge of Personnel Administration in TNPFC and was a part in selection committee for recruitment of system analyst during 15.11.2016 and the petitioner failed to disclose or bring into the knowledge of the committee that Thiru. Kumaran was her nephew. Thereby not maintaining absolute integrity and violating the conduct rule 8.01(a) of TNPF to be read with https://www.mhc.tn.gov.in/judis Page 13 of 100 W.P.No.24968 of 2021 Rule 6, “employment of near relative of the employee in any company” of the consolidated conduct, Discipline and Appeal (CDA) rules, 2017 clause (1) that, “No employee shall use her position or influence directly or indirectly to secure employment for any person related, whether by blood or marriage to the employee or to the employee’s wife or husband whether such person is dependent on the employee or not” In reply to the main Main Charge IX, it is submitted that the petitioner was not a part of the selection committee was present only during the time of the interview where her role was very limited and the petitioner did not hold or possess any power to select or recruit any candidate. It is pertinent to submit that Mr. Sateesh Kumar who hold the rank 1 in the interview failed to join the duty as instructed. Thiru. Kumaran who was placed rank 2 had been asked to join the duty. Moreover, the said Kumaran is a distant relative and the petitioner is not in talking terms with him and his family for years together. Therefore, on this score alone this charge levelled by the Respondent fails and the inquiry authority has baselessly held that the petitioner has brought him into corporation using indirect methods which is unacceptable and cannot be countenanced in law or facts.
https://www.mhc.tn.gov.in/judis Page 14 of 100 W.P.No.24968 of 2021 2.2 Subsequent thereto, the petitioner was also issued with a supplementary charge memo containing the following charges:
In the Supplementary Charge I, it is alleged that the appointment of internal auditor made for 3 years for FY 2014-17 where the appointment was more than 1 year which is against the practice of TNPFC, misleading the Board of Directors by giving petitioner’s husband address for pecuniary benefits, thereby amounting to grave misconduct, lack of integrity and violating conduct rule 8.01 (a) (b) (c), 8.02, 8.14 (viii) of TN Power Finance service rules.
With regard to the suppl. charge I, it is submitted that as per Fin (BPE) Guidelines issued in letter dated 13.05.1992 produced by the petitioner to the inquiry authority, the internal auditors can be appointed for more than 1 year. Therefore, the appointment of internal auditor Mr. Palanivel is in compliance with the guidelines. The findings of the inquiry authority that petitioner has appointed internal auditor by misleading the board for pecuniary benefit is baseless and liable to be quashed.
In the Supplementary Charge II, it is alleged that the petitioner has facilitated the appointment of Thiru. Palanivel by giving a wrong address, address of petitioner’s https://www.mhc.tn.gov.in/judis Page 15 of 100 W.P.No.24968 of 2021 husband violating the conduct rule of TNPFC service rule 8.01 (a) (b) (c) & 8.13 read with rule 4 of CDA rules 2017 that “(XV) not to misuse one’s position as public servant and take decisions in order to derive financial or material benefits for oneself, one’s family or one’s friends;” In reply to the above-mentioned suppl. charge II,it is submitted that the charge is vague and nothing but an extended version of Suppl. Charge I and does not merit a separate explanation.
The Supplementary Charge III levied on the Petitioner is with regard to the facilitation of auction of the old car that belongs to TNPFC (Honda City TN-04-AC-
3011) to Petitioner’s son Thiru. B. Ashwin without even disclosing the conflict of interest thereby violating the conduct of rule of TN Power Finance Service rule 8.01
(a)(b)(c) & 8.13 read with rule 4 of CDA rules 2017 that “(VI) maintain high ethical standards and honesty;” In regard to the suppl. charge III, it is submitted that the tender for selling the car belonging to the TNPFC was an open tender, and there is no requirement for disclosing the details of the applications of the relatives when the tender is an open one. The respondent had not even relied on any rule on disclosure about relative’s application in https://www.mhc.tn.gov.in/judis Page 16 of 100 W.P.No.24968 of 2021 open tender as there is no rule or guidelines in this regard. It is further submitted that the car purchased by Thiru. Ashwin was the highest bidder and also approved by the CMD who is the competent authority and approved the sale also.
In the Supplementary Charge IV, it is alleged that the review of petitions was sent to the Independent Director Thiru. V. Nagappan and based on the trial of information available, it is believed that the petitioner has engineered the petitions to show the depositors resentment towards TNPFC operations, bringing about disrepute to the organization thereby violating TN Power Finance Service rule 8.14(XIII) “deliberately spreading false information with a view to bring about disrepute to the corporation’s normal work”.
In relation to the above-mentioned suppl. charge IV, it is submitted that there is no basis or grounds to link the petitioner with this charge as except for the note file intentionally raised with the ill-intention by Manager, Deposits who is a co-worker. It is submitted that it will be not possible for the Petitioner to access the FMS as the access will be denied while withdrawing powers of the petitioner vide office order/P&A/2020 dated 08.05.2020 and therefore the Petitioner will not have information on https://www.mhc.tn.gov.in/judis Page 17 of 100 W.P.No.24968 of 2021 double credit, triple credits to engineer the petition to independent Director. The inquiry authority goes to formulate theories on her own to hold the charges proved against the Petitioner.
In the Supplementary Charge V, it is alleged that the Petitioner has contributed to the article in the Newspaper dated 21.06.2020 thereby violating the following TN Power Finance Service rules 8.08 “(II) no employee shall, except with the previous sanction of the competent authority or except in the bona-fide discharge of her duties (a) publish a book herself or through a publisher or contribute an article or a book or a compilation of articles or (b) participate in a radio or television broadcast or contribute an article or write a letter to the newspaper or anonymously or pseudonymously or in the name of any other person.” TNPFC Service Rule 8.14(xiii), “deliberately spreading false information with a view to bring about disrepute to corporations’ normal work.” TNPFC Service rule 8.14(xx) “committing or aiding or abetting others to commit any act prejudicial to the reputation of the corporation”.
In regard to the suppl. charge V, it is submitted that the article released in DhinaThanthi Newspaper is no way related to petitioner and the petitioner has contributed https://www.mhc.tn.gov.in/judis Page 18 of 100 W.P.No.24968 of 2021 nothing to it. There is no evidence produced by the Corporation showing that the petitioner has contributed something to the article published. The basis of framing this charge is only the newspaper and the note file initiated by the Manager, deposits and one Mr. Sundaravadanam who previously served as General Manager used to involve in such kind of activities as evidenced by the supporting documents submitted by the petitioner to the 4th Respondent.
In the Supplementary Charge VI, it is alleged that the petitioner during her tenure of service in the corporation was in charge of fund management. It was noticed that the TANGEDCO for the FY 2018-19 repaid the long-term loan on principal and interest approximately Rs. 1,000/- Crore per month to TNPFC in M/s Vijaya Bank Account, M/s Canara Bank for FY 2019-20 and later to M/s ICICI Bank account without any approval from the competent authority and the change of bank accounts frequently amounts to arbitrariness and is against the interest of the Corporation.
In reply to the suppl. charge VI, it is submitted that the petitioner has not given any instruction to TANGEDCO at any point of time to make repayment of loan to any particular bank accounts of TNPFC and based on the https://www.mhc.tn.gov.in/judis Page 19 of 100 W.P.No.24968 of 2021 availability of funds with TANGEDCO it is making payment to the Corporation. It is further submitted that all repayments have been done by TANGEDCO to the bank accounts of TNPFC at the convenience of TANGEDCO only. No documentary evidence was filed in order to substantiate the allegation made against the Petitioner. 2.3 Subsequently not satisfied with the petitioner's explanation, an enquiry was conducted by the enquiry officer, wherein except Charge No.VII rest of the charges have been held to be proved.
2.4 Pursuant thereto, the petitioner was inflicted with punishment of compulsory retirement vide order dated which impugned in this writ petition. For the sake of ready reference the operative portion of the impugned order dated 13.10.2021 is extracted as below:-
“For all the above charges, the Board of TNPFC have decided to impose a punishment of “Compulsory retirement” as per Rule No.8.15 (b) (viii) read with rule 3.04 of TN Power Finance Service Rules and issue orders accordingly.
7. The Board of TNPFC has examined and have decided to grant a punishment of reduction in retirement benefits i.e., gratuity https://www.mhc.tn.gov.in/judis Page 20 of 100 W.P.No.24968 of 2021 by 1/3 rd (one third) amounting to Rs.2,24,753/- on the total eligible gratuity of Rs.6,74,258/-”.
3. The learned Senior Counsel would submit that the petitioner was not given a fair hearing during the oral enquiry by the 4 th Respondent and she was not provided with certain documentary evidence cited along with the Charge memo and supplementary memo. The enquiry officer herself took up the role of prosecutor and marked the documents behind the back of the petitioner without examining any witnesses and came to the findings. These documents marked behind her back, were not provided to the petitioner nor put to her knowledge. The punishment imposed by the 2nd Respondent vide the impugned order is disproportionate to the charges framed against the petitioner.
4. The learned Senior Counsel further submitted that the 2 nd Respondent has passed a cryptic order without providing any reasons for the punishment imposed and such an order cannot be sustained because it fails to indicate reasons because of which such action was being taken against the petitioner. The punishment order is required to be a speaking order expressing concurrence or non-concurrence with the Inquiry Report. Here it is a nonspeaking one and therefore, illegal. The order being cryptic and non-speaking cannot be upheld. https://www.mhc.tn.gov.in/judis Page 21 of 100 W.P.No.24968 of 2021 The enquiry report of the 4th respondent was passed as a result of total non- application of mind and is arbitrary, irrational, unreasonable and contrary to law and perverse. The impugned order passed by the 2 nd Respondent and communicated by the 3rd Respondent, based on the enquiry report of the 4th Respondent is nonspeaking and failed to properly appraise the grievances of the petitioner, her evidence and the defence put forth. The order is cryptic and sketchy and have been passed without the application of any mind.
5. It is further submitted that the inquiry conducted by the 4 th Respondent was not conducted in accordance with settled principles of law. petitioner was neither provided with documents nor given a fair chance of hearing which handicapped the Petitioner in defending herself and refuting the charges against her efficiently, thus resulting in a miscarriage of justice. The 4th Respondent Enquiry officer is not competent to mark Institutional Exhibits 1 to 24. The Consolidated Conduct, Discipline and Appeal (CDA) Rules 2017 is not applicable in case of this petitioner vide its circular dated 11.12.2017, the Ministry of Industries and Heavy Industries and Public Enterprises Department adopted for CPSEs and not for State Public Sector Undertaking. The TNPFC Ltd is a State Public sector undertaking to which the said rule is not applicable. https://www.mhc.tn.gov.in/judis Page 22 of 100 W.P.No.24968 of 2021 Therefore, the charges cannot be framed in a retrospective manner which is against the basic principles of law. The Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules upon which the Charge memo served to the Petitioner is not applicable to the employees of the Tamil Nadu Power Finance and Infrastructure Development Corporation Ltd since the employees of TNPFC are governed only by the Service rules of Tamil Nadu Power Finance and Infrastructure Development Corporation Ltd. In view of the above, Charge memo and supplementary charge memo are not maintainable. Aggrieved by the above order passed by the 3rd respondent dated 13.10.2021 the petitioner has come forward with the present writ petition.
6. Thus the learned Senior Counsel appearing for the petitioner contentions are as follows:-
A. The Enquiry officer cannot act as a prosecutor as well as a Judge B. Non furnishing of copies of documents to the petitioner is tantamount to denial of providing reasonable opportunity C. It is incumbent upon the authorities to provide all opportunities to the delinquent officer regardless of the fact whether he sought for it or not D. Non-application of mind by the enquiry officer or the disciplinary authority, violates the principles of natural justice calling for interference https://www.mhc.tn.gov.in/judis Page 23 of 100 W.P.No.24968 of 2021 by the writ court.
E. Board of Directors, as Disciplinary Authority, cannot sit as appellate authority in appeal filed against the order.
7. In support of his contentions, the learned Senior Counsel relied upon the following judgments:-
1. State of Uttar Pradesh & others Vs Saroj Kumar Sinha reported in (2010) 2 SCC 772
2. State of Uttaranchal and others Vs Kharak Singh, reported in (2008) 8 SCC 236
3. Union of India and others Vs Ram Lakhan Sharma reported in (2018) 7 SCC 670
4. KashinathDikshita Vs Union of India and others reported in (1986) 3 SCC 229
5. Nicks (India) Tools Vs Ram Surat, reported in (2004) 8 SCC 222
6. Berline Jenova Mary Vs The Principle Secretary to Government of Tamil Nadu in W.P.No.32332 of 2019
7. K. Govindaswamy Vs Tamil Nadu Civil supplies Corporation Ltd., reported in 1998 (3) LLN 326
8. Allahabad Bank and others Vs Krishna Narayan Tewari reported in (2017) 2 SCC 308
9. Amar Nath Chowdhury Vs Braithwaite & Co Ltd., and others reported in (2002) 2 SCC 290
8. The Counter affidavit dated 18.03.2022 was filed by the 2 nd & 3rd respondents.
9. SUBMISSIONS MADE BY THE LEARNED ADDITIONAL https://www.mhc.tn.gov.in/judis Page 24 of 100 W.P.No.24968 of 2021 ADVOCATE GENERAL APPEARING FOR THE 2nd & 3rd RESPONDENTS.
9.1 The 3rd Respondent is a State Public Sector Company formed under the Companies Act as a Non-Banking Financial Company (NBFC) as per norms of RBI. The primary objective of the Company is to mobilize public deposits to fund the infrastructure projects undertaken by the Tamil Nadu Generation and Distribution Corporation Ltd.(TANGEDCO). It consists of 19 personnel including the Chief Managing Director. An amount of Rs. 2.15 lakh crore up to 31.03.23 has been lent as loan to the TANGEDCO. The respondents handles an average of Rs.3.5 crore (rounded) per day as deposit collection (both on-line and off-line) from the Public. The cumulative deposits held by the respondent up to 2021-22 is Rs.38,749 crores from 2,42,690 depositors. The respondents handled Rs.1.14 lakh financial transaction during 2022-23 and played a very critical role in handling the public money for the Governance of Power Sector in Tamil Nadu State. The Respondents submits that even a small lapse in handling the funds or inappropriate decisions made in the administration by the General Manager would provide scope for fraud, cause serious financial loss to the respondent and will impact financial burden to the Government of Tamil Nadu.
https://www.mhc.tn.gov.in/judis Page 25 of 100 W.P.No.24968 of 2021 9.2 The 3rd Respondent issued a memorandum No. TNPFC/P&A/2020/GM/CS/, Dated 19.06.2020, consisting of 9 charges framed under Tamil Nadu Power Finance and Infrastructure Development Corporation Limited Services Rules, read with 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal ) Rules against the petitioner, who worked as General Manager more than 6 years. The said Charges along with supplementary charges have been framed for certain serious irregularities committed by the petitioner while functioning as General Manager of the 3 rd Respondent. The same was denied by the petitioner through written representation. Subsequently, not satisfied with the same, the respondent appointed a senior IAS officer in the cadre of Additional Chief Secretary as an Enquiry Officer. The Enquiry officer completed the enquiry and a report was filed to the 3rd respondent with regard to 15 charges, out of which 14 charges were held to be proved. The same was placed before the Committee of 2nd Respondent/Board for approval. The 2nd respondent sent a report to the petitioner for further representation. The petitioner submitted her representation for the same to the 2nd respondent. Not satisfied with the petitioner’s representation, the 2nd Respondent/Board passed an impugned order of compulsory retirement. https://www.mhc.tn.gov.in/judis Page 26 of 100 W.P.No.24968 of 2021 9.3. The charges leveled against the petitioner and findings and conclusions of the inquiry authority are extracted hereunder:-
CHARGE NO.I In so far as the 1st charge relating to purchase of excess stationery resulting in wastage of stock value of Rs.3,76,184/- there was no proper explanation and the delinquent has only shifted the blame on her subordinates. The enquiry officer has held that if the petitioner had periodically verified the stock Register and assessed the stock position then and there, the excess purchase would have been avoided and held the charge to be proved. The said finding cannot be faulted as the delinquent officer does not deny the fact that she is the supervisory authority and does not deny that she has to verify periodically the stock.
CHARGE NO.II The 2nd Charge is that the 3rd Respondent has gone for automation of its activities and almost all the operations including certificate and receipt will be generated digitally. And without any authorization she has ordered certificate PVC Covers purchase of stationeries amount to the Rs1,88,,800/- the https://www.mhc.tn.gov.in/judis Page 27 of 100 W.P.No.24968 of 2021 organization. The enquiry officer held that According to the allocation order (I.E
6) the General Manager, the petitioner is overall in-charge of deposit section including government scheme etc., The Petitioner being part of TNPFC is well aware about the automation, hence, the contention of the delinquent officer that she was not intimated about the automation is not correct. The records reveal that the petitioner has ordered 50,000 Number of PVC covers on 6.01.2020.
Before purchase of the above said item, the petitioner should verify the stock and to assess the requirements. The Petitioner should have also ordered minimum requirements PVC with approval of CMD. However, the petitioner has failed to do these aspects. As on 10.06.2020, 43,000 Numbers of PVC covers are unnecessarily available in the store room (I.E7)as there is no demand in the near future. Hence, the petitioner without any authorization ordered for purchase of PVC covers and settle the bill amount Rs R.188,800/- in February 2020 causing loss to the organization is correct. In view of the above charge is proved.
CHARGE NO.III The 3 rd Respondent has appointed M/s. Somasundaram & Balachandran Chartered Accountants 216, TH Road, 1st Floor, Tondiarpet, Chennai has been https://www.mhc.tn.gov.in/judis Page 28 of 100 W.P.No.24968 of 2021 appointed as internal auditor for the 2019-2020, with approval of Boards of Directors on 30.08.2009. It was noticed that on 16.03.2020, the petitioner has shared the organization 38th audit committee meeting agenda, which contains organization financials to Mr. C.Palanivel, who was earlier internal auditor of Tamil Nadu Power Finance for the following years 2014-15,2015-16 &2016-
17. Thiru C.Palanivel’s Address at Door No. 13/221, Annadagiri, Kodaikonal- 624101, has been evidence in M/s. Professional Courier delivery Report, thereby it amounts to disclosure of confidential information relating to the organization to unauthorized person. The petitioner has stated that it is the responsibility of company secretary, who shall facilitate the convening of meetings and attend Board according to Section 205 of the companies Act 2013. However it is seen that the petitioner has signed letter forwarding of agenda for the 38th meeting of the Audit Committee to be held on 18.03.2020 and it shows the petitioner has taken some interest on the issue. She has signed the letter on 12.03.2020; but, sent the couriers on 16.03.2020. the petitioner has also failed to inform the present internal auditor regarding the ensuing audit committee meeting despite signing the letters addressed to the internal auditor which leads the internal auditor to intimate their inability to attend the meeting. Further, as early as 2015 itself, the petitioner has know the internal auditor https://www.mhc.tn.gov.in/judis Page 29 of 100 W.P.No.24968 of 2021 Kodaikanal address (IE8) while the internal auditor was officially holding the post of internal auditor of TNPFC address.
Though Mr.Palanivel tenure was completed on March 2017, many consignments were sent to him from TNPFC during 20.11.2019 to 2020 (IE 9), to his Kodaikanal Address. On 16.03.2020 two consignments were (0.300g & 1.700kg) sent to his Kodaikanal address and on perusal of the office note dated on 05.06.2020, it is mentioned that as per the instruction of the petitioner, the agenda 38th meeting of audit committee was dispatched to Mr.Palanivel, Kodaikanal. This was co-related with Couriers records had ensured that above said agenda was sent to then auditor Mr.Palanivel and on Perusal of letter dated 31.06.2020 of the petitioner, professional couriers (IE10). It is found that after framing this charge, the petitioner has contacted the branch manager, professional couriers on 8th and 9th June 2020 to modify the couriers charges of letters addressed to the then auditor Mr.Palanivel as medicines booked by the petitioner were inadvertently included in the bills of TNPFC. This action is a proof of creating a tampering evidence and misuse of official power. The official secret was shared with authorized person is highly irregular. The charge was held proved.
https://www.mhc.tn.gov.in/judis Page 30 of 100 W.P.No.24968 of 2021 This charge is a serious charge touching the integrity and devotion to duty of the delinquent which was proved. The officer note was undisputable record to prove that the petitioner sent confidential information to ex auditor. CHARGE NO.IV The Charge No.IV relates to the issue where the writ petitioner being aware that TNPFC has gone for automation and due to nature of financial transaction it was important to maintain absolute security of FMS. However the petitioner involved in every stage of the automation had violated the security process by entrusting the support staff who are contract employee and allow them to remotely access FMS Application in clear breach of security process violating the conduct Rules.
The Enquiry Officer also relied on the allocation order (IE6) and on perusal of the records found that one Mr.C.Mohandas, Supporting Staff had processed the fresh deport application from his home on 23.2.2020 and in his explanation (IE11) he had stated that he was allowed to work from home using his office laptop by the petitioner. The Enquiry Officer held that during oral https://www.mhc.tn.gov.in/judis Page 31 of 100 W.P.No.24968 of 2021 enquiry submitted the letter dated 28.7.2020 of Mr.C.Mohandas (DE4) that he was threatened by the Manager to give such a letter. But on perusal of the records it was found by the Enquiry Officer that the signatures of Mr.C.Mohandas varied in Exhibit IE11 – Letter dated 26.5.2020 and DE4 – Letter dated 28.7.2020. The said letter given in July, 2020 was not accepted by the Enquiry Officer as the same was after the charges were framed against him. The Letter dated 28.7.2020 was considered to be an after thought and to mislead the enquiry. The Enquiry Officer found that the charge was proved. CHARGE NO. V The charge related to the issue where the petitioner who was directly allotting the works did not reallocate the pending death claim processing though 20 death cases were pending for a month and was cause of delay in processing the death claim request and violated the TNPFS Rules. Though the petitioner had denied the charge, the Enquiry Officer had found that the General Manager was in charge of allocating the duty and she has not allocated the duty relating to death cases to someone else when the in-charge staff one Ms.Priya was unable to attend office during lockdown period and requested the same may be allocated to someone. The said Ms.Priya, who was disabled was exempted from https://www.mhc.tn.gov.in/judis Page 32 of 100 W.P.No.24968 of 2021 coming to office during Covid and knowing all this the petitioner did not reallocate the work and the prior approval of CMD should have been obtained the same has not been done in this case showing that there was no devotion to duty. The Enquiry Officer held the charge to be proved. CHARGE NO. VI This related to printing of over 250 deposit confirmation receipts (certificates) which are pending before 2 months. The System Analyst who was in charge was directly reporting to the petitioner who was the administrative in charge. The petitioner had not taken any care to expedite the pending certificate works and the same caused delay in issuing the deposit certificates to the depositors amounting to lack of devotion to duty and thereby violating the service rules. The Enquiry Officer found that there has been a delay and in as much as the Manager Deposit was on deputation from 26.3.2020 to 4.5.2020 it was for the General Manager i.e. the petitioner to have acted as a superior officer to have set right the situation and to ensure that the certificate were issued immediately without delay. The Enquiry Officer held that she should not blame on the subordinate officers and should have taken proper action thereby the charge was held to be proved and the service rules have been violated. https://www.mhc.tn.gov.in/judis Page 33 of 100 W.P.No.24968 of 2021 CHARGE NO.VII Charge No.VII was not proved and hence not discussed herein. CHARGE NO.VIII The petitioner as a General Manager was in charge of Fund Management. During financial year 2019-2020 an average amount of Rs.314.59 Crores was in savings and current account she had failed to manage the funds causing loss of interest by either putting the idle funds in short term income securities or by lending to TANGEDCO thus causing loss to the organisation and she failed in her duty and violated the service rules.
The Tamil Nadu Power Finance Corporation runs on the strength of the depositors and protecting the interest of the depositors is the prime motive of the TNPFC. The above said amount was found to be in the banks with very low rate of interest or no interest. The Enquiry Officer found that at least 10% of the required amount may have been maintained in SB and CA Accounts as buffer fund. The huge amounts could have been invested in short term income schemes. According to the Enquiry Officer though the delinquent officer in the https://www.mhc.tn.gov.in/judis Page 34 of 100 W.P.No.24968 of 2021 oral enquiry stated that the daily balance available in the report given to CMD he found that no such evidence has been furnished. Further it was stated from the note (IE14) many accounts have been kept in idle funds leading to loss of interest. The lack of devotion to duty showed that she did not take care to invest the idle money to make interest for the organisation thereby causing loss. The charge was held to be proved.
CHARGE NO.IX This charge is a very serious charge which has to be viewed in a very serious manner. The charge was that while functioning as a General Manager being in charge of personal administration the petitioner was part of selection committee for recruiting System Analyst. She was also part of the selection committee which recommended one Mr.T.Kumaran who is a nephew and blood relative, she did not disclose or declare that Mr.T.Kumaran was a nephew at any time during the selection process or recruitment process. Thereby it was charged that she had not maintained absolute integrity violating the Conduct Rules 8.01 (a) read with Rule 6 and Clause (i) of Consolidated Conduct Discipline and Appeal (CDA) Rules. She had directly or indirectly secured employment for her close relative.
https://www.mhc.tn.gov.in/judis Page 35 of 100 W.P.No.24968 of 2021 It was stated that conduct rules provided that ‘No employment shall use her/his position or influence directly or indirectly to secure employment for any person related, whether by blood or marriage to the employee or to the employee’s wife or husband whether such person is dependent on the employee or not’.
The reply of the said delinquent i.e. the petitioner was not in fact a clear case of admission of the charge. The petitioner/delinquent contended that she had not been in close contact with the family for over a decade and she was not aware that Mr.T.Kumaran was her nephew. Such a stand is very strange and since she was part of the Committee the personal details of the said Mr.T.Kumaran would have been before her and on a perusal of his family background also would have made it clear that he was her relative even assuming though not accepting that she had not remembered him since there was no family contact for a decade. Merely because for 10 years a very close relative was not in contact with the family it cannot be said that the entire relationship would have been forgotten such a strange contention would only prove that she had admitted that he was her relative but that she was not aware of the same and such an explanation that she was not aware as could not be accepted for the above said reasons. She tried to buttress the argument saying https://www.mhc.tn.gov.in/judis Page 36 of 100 W.P.No.24968 of 2021 that the Consolidated Model Conduct Discipline and Appeal (CDA) Rules vide circular dated 11.12.2017 does not apply. The TNPFC is a public sector undertaking for which the above rule do not apply and the said circular dated 11.12.2017 came much later i.e. much later after Mr.T.Kumaran was appointed as System Analyst which was done on 15.11.2016 and hence it was not applicable to her. Even otherwise she said as per the Rule 6 she did not come within the said definition of the term “near relative” and Mr.T.Kumaran had applied for advertisement and got appointed and was only part of the Committee as General Manager without adding any value to the Selection Committee in the process and she was not the only sole deciding factor and stated that he only ranked second in the list. On perusal of the records it was seen that the candidate one Mr.J.Sathish Kumar who ranked 1st in the interview was said to have been communicated with the appointment letter but he did not report and therefore after waiting for 15 days the next person i.e. Mr.T.Kumaran was given appointment. The Enquiry Officer also found that the interview call letters had been sent to 15 candidates through registered post and at the first stance one Mr.J.Sathish Kumar was selected and his appointment orders was stated to be sent through ordinary post on 23.11.2016 (IE15). The Enquiry Officer also found that the office copy only showed the word https://www.mhc.tn.gov.in/judis Page 37 of 100 W.P.No.24968 of 2021 dispatched but whether it was actually sent was a question because it was not sent by registered post as in other cases. The petitioner/delinquent officer had also not taken any steps to inform the selected candidate one Mr.J.Sathish Kumar. The petitioner had ensured that Mr.J.Sathish Kumar was not intimated properly so that the next in the wait list i.e. Mr.T.Kumaran her nephew would get the opportunity and no step to contact whatsoever was tried to be made by the petitioner to contact the selected candidate Mr.J.Sathish Kumar. Thereafter without issuing cancellation the of appointment of Mr.J.Sathish Kumar, hurriedly an appointment order was sent to Mr.T.Kumaran through speed post on 20.12.2016 (IE16). It is seen that for intimating the selection of Mr.J.Sathish Kumar no letter by RPAD was sent, however when the appointment order was sent to her nephew Mr.T.Kumaran it was sent through speed post. Thereby the Enquiry Officer found that the delinquent has taken undue interest to appoint her nephew Mr.T.Kumaran in the place of Mr.J.Sathish Kumar to whom this appointment order was originally sent. The selected candidate Mr.J.Sathish Kumar did not have his appointment order cancelled and the ulterior motive in such selection was more than obvious.
The Enquiry Officer found that by using indirect method she inducted https://www.mhc.tn.gov.in/judis Page 38 of 100 W.P.No.24968 of 2021 Mr.T.Kumaran her nephew into the Corporation and the reason given that she is not in talking terms with the family is not acceptable and the fact remains that she did not declare her relationship with Mr.T.Kumaran till a charge memo was issued to her after many years of his appointment it is very strange to believe that she was not even aware of her nephew even though she says for few years was not in talking with the family. Such blatant falsehood was not rightly believed by the Enquiry Officer. The charge was rightly held to be proved.
Hence it is seen that the charge has been proved. The Enquiry Officer has clearly held it was proved. The delinquent officer did not even care to explain how the said Mr.T.Kumaran her nephew was recruited as System Analyst was related to her other than saying that he was a relative and was not aware of his identity inspite of being part of the Selection Committee. She has deliberately suppressed the fact that he was relative and thereby committed gross violation of the service rules of TNPFC. It also brought to the notice of this Hon’ble Court that the opinion of the members of the Selection Committee was not necessary as the records are all available to speak for themselves.
9.4. This charge against her was held to be proved and the above clearly https://www.mhc.tn.gov.in/judis Page 39 of 100 W.P.No.24968 of 2021 showed that the petitioner had acted with malafide intentions and ulterior motive and the charges stood proved.
10. SUPPLEMENT CHARGE NO.I This supplement charge No.1 is also very serious and important charge which will show that the writ petitioner was guilty of such malafide act in order to favour one person i.e. Internal Auditor one Mr.K.Palanivel. The supplementary charge No.1 was that it was noticed that appointment of internal auditor Mr.K.Palanivel was made for 3 years (FY 2014-15, 2015-16 and 2016-
17) and local address at No.47A, Perumal Koil, 2nd Street, ThiruVi.Ka.Nagar, Thandalam, Chennai-77 was shown as his address. The charge also stated that this address is the address of the husband of the petitioner. It is charged that the petitioner knowing fully well that Mr.K.Palanivel was operating from the address at No.13/221, 4th Street, Anandagiri, Kodaikanal-624101 and the writ petitioner had appointed him for more than 1 year which is against TNPFC’s practice by misleading the Board of Directors by giving him her husband’s address at Madras so as to make the Directors believe that the Auditor is from Chennai and thereby had committed serious offence against the Rules. The Enquiry Officer after thorough enquiry held that Mr.K.Palanivel residing at https://www.mhc.tn.gov.in/judis Page 40 of 100 W.P.No.24968 of 2021 Chennai had held that on a verification of the charge on 17.12.2014 . However in another note it was mentioned that Board of TNPFC held on 20.02.2015 had appointed Mr.K,Palanivel as Internal Auditor for 3 Financial Years 2014-15 to 2016-17. The Enquiry Officer had stated that in Government Letter dated 13.05.1992, it is mentioned that the Auditors should be changed once in 3 years is desirable. Further the address proof of the land owner of Mr.K.Palanivel was given by the delinquent officer during oral enquiry as if in the said property one G.Arulanand who is adjacent land owner projecting as if the real owner identity is not clear. This is a clear fraud played on the Corporation.
The charge was serious in nature as it touches upon the integrity of the petitioner who is holding a high post of General Manager in a Department which deals with crores of rupees. The Enquiry Officer has clearly found that the land owner of address proof for Mr.K.Palanivel given by the delinquent officer during the oral enquiry was G.Arulanand who is adjacent west side land owner to the land held by the delinquent officer’s husband at Survey No.47 with a measurement of 1570 Sq.ft. as per the document No.2618 dated 24.05.1996 (Exhibit E-IE17) and as per the Document No.2618 a vacant house site to an extent of 1570 Sq.ft. in the above said address was said to have been purchased https://www.mhc.tn.gov.in/judis Page 41 of 100 W.P.No.24968 of 2021 by Mr.P.Babu who is the husband of the delinquent officer. Moreover, the delinquent officer had submitted false documents with ulterior motive. It has been clearly found that the address of Mr.K.Palanivel given at Chennai address though he is at Kodaikanal, the Chennai property address is none other than that of the delinquent officer’s husband.
It cannot be said that the delinquent officer was not even aware of her own husband’s address in a property which has been said to have been the address of Mr.K.Palanivel. Though the other auditors were appointed for 1 year the said Mr.Palanivel was appointed for 3 years at a stretch which was against the procedure. Be as it may the vital fact remain proved was that the delinquent officer had misled the Board for appointing Mr.K.Palanivel as Auditor for 3 years by giving her husband property as address though she was aware that Mr.Palanivel, Auditor was living at Kodaikanal in the address stated above. This has not been properly explained by the delinquent officer and the vague defence that was taken by the delinquent officer was that internal auditor was appointed as per the BPE guidelines and that the property of her husband is no way related to the address of the Internal Auditor. She had not been able to justify that the address of the Internal Auditor was not that of her husband’s https://www.mhc.tn.gov.in/judis Page 42 of 100 W.P.No.24968 of 2021 address but only said that her husband constructed the house at a different date. The charge has been proved beyond doubt. The delinquent officer has acted in a manner clearly prejudicial to the interest of the Corporation and the fact that she has knowingly misled the Board would clearly establish that her integrity is in question. The charge was rightly held to be proved.
SUPPLEMENT CHARGE NO.II In so far as the Supplementary Charge No.II is concerned this also has relevance to the earlier Supplementary Charge No.I. The Supplementary Charge No.II stated that it was learnt that from perusal of various documents that the applicant had sent the various documents to Mr.Palanivel, Auditor at 13/221, 4th Street, Anandagiri, Kodaikanal-624101 but had facilitated his appointment by fraudulently giving her husband’s address as No.47A, Perumal Koil, 2nd Street, ThiruVi.Ka.Nagar, Thandalam, Chennai-77 for pecuniary benefits amounting to lack of integrity and violating conduct rules and even in this the delinquent had merely stated that her husband constructed the house at a later point of time only in 2017 and that she was no way related to the address of the Internal Auditor. The fact whether the house was constructed or not is not in question, the issue was that the address given by the Auditor Mr.Palanivel was that of the https://www.mhc.tn.gov.in/judis Page 43 of 100 W.P.No.24968 of 2021 property belonging to the petitioner’s husband. The correspondence have also been sent to the Auditor’s address at Kodaikanal. The delinquent petitioner had not stated that she is not aware of her husband’s house address but only stated that it was built later. When admittedly the auditor’s address was given as the address of her husband she did not inform the Board and it is at her instance such malpractice has taken place in order to ensure that Mr.Palanivel is appointed as Internal Auditor completely keeping the Board at dark and completely violating the Conduct Rules and had she been a fair officer she would have immediately brought to the notice of the Board that Mr.Palanivel is known to her and the address is that of her husband and he is actually residing in Kodaikanal. As stated above she has not had any justifiable defence other than to state that her husband constructed the house at a later date. The Enquiry Officer has found from the records that the auditor Mr.Palanivel and the delinquent officer’s son one Mr.Ashwin while applying for tender application for Honda City had mentioned the same address i.e. No.47A, Perumal Koil, 2 nd Street, ThiruVi.Ka.Nagar, Thandalam, Chennai-77 belonging to the husband of the petitioner. However, the AGM Agenda packages and other items were sent to the Auditor Mr.Palanivel at his Kodaikanal address and the address mentioned in the application for appointment of Auditor Mr.Palanivel was that https://www.mhc.tn.gov.in/judis Page 44 of 100 W.P.No.24968 of 2021 of the petitioner’s husband. Further he was appointed for 3 years against the normal procedure. It is not in dispute that the address given by the auditor was that of the petitioner’s husband and she has said that he constructed the house at a later date however the EB bills reveal that the EB bills were paid from the year 2009 onwards (Exhibit IE19). Further the delinquent officer while functioning as General Manager had sent cheques to Mr.Palanivel at his Kodaikanal address. Even after appointment many consignment from TNPFC were sent to Mr.Palanivel at his Kodaikanal address. It has been found beyond doubt that Mr.Palanivel was permitted to use the address of the delinquent officer’s husband in Chennai suppressing his Kodaikanal address though he has been functioning from Kodaikanal and not in Chennai. The delinquent officer is fully involved in the same and had completely kept the Board at dark for pecuniary benefits thereby it was clearly proved by the Enquiry Officer that she lacked integrity and violated the conduct rules.
SUPPLEMENT CHARGE.III The Supplement Charge No.III is also very serious charge wherein it was seen that the address given by Mr.B.Ashwin who participated in the tender for application for purchase of Honda City Old Office Car (Honda City TN-04-AC- https://www.mhc.tn.gov.in/judis Page 45 of 100 W.P.No.24968 of 2021 3011) was none other than the address of the petitioner’s husband and the said Mr.Ashwin was none other than her own son. This was in clear violation of the Conduct Rules and the TNPFS Service Rules and the conflict of interest was not disclosed by the petitioner and thereby violated the provisions of the Consolidated Conduct Discipline and Appeal Rules, 2017. She failed to maintain high ethical standards, honesty and integrity.
The only defence of the delinquent officer seems to be that he had quoted amount more than the book value and hence there was no loss. The charge was not whether there was loss to the Corporation or not, her conduct in suppressing the fact that the tenderer Mr.Ashwin who succeeded in the tender was none other than her own son. Further it would be clear from the records as pointed out by the Enquiry Officer that there has been tampering in the application of Mr.Ashwin in the rate quotation column since the filled words in the quotation of rate column varies (Exhibit IE22 and IE21 could be compared which is filed before the Court). The tampering is very clear and the main charge that there has been conflict of interest and she did not disclose it to the Board stands proved beyond all reasonable doubt. Further the delinquent officer failed to open the tender through tender committee and she herself has opened the tender https://www.mhc.tn.gov.in/judis Page 46 of 100 W.P.No.24968 of 2021 and ensured that the benefit goes to her son by altering the rate and making her son the successful bidder.
It is admitted fact where the delinquent officer has not denied the fact that Mr.Ashwin was her own son and she did not disclose it to anyone in the Board or any other higher authority. It is also not disputed that she had opened the covers and it is also not disputed that the address of Mr.Ashwin is the same address as his father i.e. the husband of the petitioner. The petitioner cannot justify her illegal action by saying that he had quoted the highest and has also not explained as to the tampering of the document where overwriting has been done and most of the columns have been left blank and it is because of her son who is the tenderer she had ignored all the same and violated all norms and held that her son is the highest bidder and handed over the car to him. The delinquent officer had facilitated the auction of TNPFC Old Car to her son without disclosing the conflict of interest and had she disclosed the auction could have been recalled once again and the car could have fetched more price. As stated above the charge was not whether the price was fair enough for the car but the conduct of the writ petitioner whose integrity is not above question and definitely she has favoured her son against the conduct rules. The charge https://www.mhc.tn.gov.in/judis Page 47 of 100 W.P.No.24968 of 2021 was said to be proved and the delinquent officer did not have any proper defence in this charge.
SUPPLEMEMNT CHARGE NO.IV In so far as Supplement Charge No.IV is concerned the issue is that from the review of petitions sent to independent Director one Mr.V.Nagappan it led to believe that the petitioner had engineered the petitions to show depositor resentment towards TNPFC operations bringing about disrepute to the organisation thereby violating TNPFS Service Rules and deliberately spreading false information with a view to bring disrepute to the Corporation’s normal net worth.
The delinquent officer during the enquiry stated that she was on medical leave from 23.05.2020 to 06.06.2020 and was not aware of the facts stated in the letters addressed to Mr.V.Nagappan, Independent Director and she had attended the revised portfolios as ordered by CMD. The Enquiry Officer found that the delinquent officer had engineered the spoiling of the name of TNPFC the powers of the delinquent officer i.e. petitioner were withdrawn by CMD on 8.6.2020 (Exhibit DE17). The Enquiry Officer held that all other officers https://www.mhc.tn.gov.in/judis Page 48 of 100 W.P.No.24968 of 2021 including company secretary, manager deposit, system analyst etc., were all under the control of General Manager and nothing could be moved without the permission or concurrence of the General Manager. However the petitioner General Manger had no control over others including fund management. In spite of knowing the developments happening around her she had gone on leave from 23.5.2020 and knowing fully well new software is being introduced. Though she is a second level officer next to CMD the General Manager/petitioner had given room for such erroneous credits for which she was fully responsible. The Enquiry Officer had mentioned 7 points to show that with the help of system analyst she has masterminded the engineering petition with ulterior motive to spoil the name of the corporation. On the ground of preponderance of probability, the delinquent officer had clearly engineered the petitions addressed to the independent director so as to disrepute the TNPFC. The said charge was held proved by the Enquiry Officer.
SUPPLEMENT CHARGE NO.V The next Supplementary Charge No.V was that petitioner had on review on records in connection with Thanthi Newspaper on 21.6.2020 and had contributed to the article violating the provisions of Tamil Nadu Power Finance https://www.mhc.tn.gov.in/judis Page 49 of 100 W.P.No.24968 of 2021 Service Rules. The petitioner had denied the same that she was no way responsible for the same and was purposefully done by the Manager to spoil her integrity. The Enquiry Officer found that the General Manager has access to the information regarding the deposits, realisation of cheques etc., the CMD had withdrawn the power held by the delinquent officer as General Manager, there is preponderance of probabilities that the delinquent officer has aggrieved over the Organisation and contributed to the details with her to the newspaper to spoil the reputation of TNPFC. The Enquiry Officer held the charge to be proved.
SUPPLEMENT CHARGE NO.VI The charge was that while she was functioning as a General Manager she was in charge of Fund Management. During her period it was noticed that upto FY 2018-19 TANGEDCO was repaying long term loan on principal and interest approximately Rs.1000 Crores per month to TNPFC in Vijaya Bank Account and from FY 2019-20 TANGEDCO was instructed orally to repay the term loan principal and interest amount in Canara Bank Account and later from November, 2019 TANGEDCO was instructed to pay only in ICICI Bank without any approval from the competent authority. It was a charge that the https://www.mhc.tn.gov.in/judis Page 50 of 100 W.P.No.24968 of 2021 frequent changes of account for repayment from TANGEDCO was arbitrary and against the interest of the Corporation for better accounts and fund management amounting to misconduct and lack of integrity and violation of conduct rules. The delinquent officer had stated that she has not given any written instructions to TANGEDCO and has stated that all repayments have been done by TANGEDCO to the bank accounts of TNPFC at convenience of the TANGEDCO. The Enquiry Officer held that without the TNPFC’s instructions the TANGEDCO would not keep changing the banks and she has not given any oral instructions, she only stated that she has not given any written instructions. The Enquiry Officer found that without concurrence of some responsible officer of TNPFC the TANGEDCO will not change bank. Even assuming such thing has been done by the TANGEDCO the petitioner as a General Manager ought to have intimated the TANGEDCO not to act without their consent. The Enquiry Officer found that it was clear that the deposits to Canara Bank/ICICI Bank have been done by the TANGEDCO with the concurrence of the General Manager which was arbitrary and exceeding her limit of power. Being an officer of high stature as a General Manager in such a small organisation where there are hardly 20 persons working and she is the 2 nd ranking officer, she has to have devotion to duty and sense of integrity which https://www.mhc.tn.gov.in/judis Page 51 of 100 W.P.No.24968 of 2021 was obviously lacking in this case. The charge was held to be proved.
Thus the petitioner was said to have violated the following rules i.e. Tamil Nadu Power Finance Service Rules in Charge No.I – Rule 8.01 (b), 8.02, 8.14 (ii) and (viii) Charge No.II – Rule 8.01 (b), 8.02, 8.14 (ii) Charge No.III – Rule 8.14 (xiv), Charge No.VI – Rule 8.01 (b), 8.01 (c), 8.14 (xv), 8.14 (xxi) Charge No.V – Rule 8.01 (b), 8.01 (c), 8.14 (iii) Charge No.VI - Rule 8.01 (b), 8.01 (c), 8.14 (iii) Charge No.VII – Rule 8.01 (b), 8.02, 8.14 (iii) Charge No.VIII – Rule 8.02, 8.14 (viii) Charge No.IX – Rule 8.01 (a), Consolidated Conduct, Discipline and Appeal (CDA) Rules, 2017 (i) Supplement Charge No.I – Rule 8.01 (a), 8.01 (b), 8.01 (c), 8.02, 8.14 (viii) Supplement Charge No.II – Consolidated Conduct, Discipline and Appeal (CDA) Rules, 2017 (xv), Rule 8.01 (a), 8.01 (b), 8.01 (c) and 8.13 Supplement Charge No.III - Consolidated Conduct, Discipline and Appeal (CDA) Rules, 2017 (vi), Rule 8.01 (a), 8.01 (b), 8.01 (c) and 8.13 https://www.mhc.tn.gov.in/judis Page 52 of 100 W.P.No.24968 of 2021 Supplement Charge No.IV- Rule 8.14 (viii) Supplement Charge No.V – Rule 8.14 (xiii), Rule 8.14 (xiv), 8.14 (xx) Supplement Charge No.VI - Consolidated Conduct, Discipline and Appeal (CDA) Rules, 2017 (vi) and (ix), 8.01 (a), (b), (c) and 8.14 (xx)
11. From the above, it is very clear that the charges except No.VII levelled against the delinquent officer has been found proved. Even assuming as contended by the writ petitioner certain charges were not held proved the major charges i.e. where the charges are very severe in nature has been clearly established and proved beyond all reasonable doubt. In particular the charges in Charge No.9 and supplement charge No.I, II, III – very serious charges. Supplement charge No.I, II, III stand very clearly proved.
12. The service rule applicable to the present case does not contemplate the appointment of Presenting Officer as a condition.
13. The respondents submits that as submitted in the arguments of the petitioner that violation of principles of natural justice and marking of documents behind the delinquent officer, hence it is vitiated is factually https://www.mhc.tn.gov.in/judis Page 53 of 100 W.P.No.24968 of 2021 incorrect. The Respondents states that considering the graveness of the charges as well as the position held by the Writ Petitioner/Delinquent Officer, Tmt.Sundravalli I.A.S., a Senior Most Officer of the Government, in the cadre of Additional Secretary was appointed as the Enquiry Officer and after due notice to the delinquent, the enquiry was held on 09.09.2020. The delinquent officer deposed in detail about against each of charges alleged, the Enquiry Officer recorded her statement and specifically asked the writ petitioner/delinquent officer, whether she wants to peruse any of the official records. The writ petitioner/Delinquent Officer had replied that she does not want to peruse any records. Therefore, the present averment that documents were marked behind her back is factually incorrect. In-spite of the opportunity, declined the offer of the Enquiry Officer to peruse the original files. On 16.09.2020, the Enquiry Officer again asked the Delinquent Officer, whether she wants to peruse the official records. On which, the delinquent officer once again answered “NO”. In the arguments of the petitioner it was submitted that the enquiry officer had acted as presenting officer is also factually incorrect. The Enquiry Officer is a senior most I.A.S.,officer, the Enquiry was conducted by her in a fair and transparent manner. The Enquiry was held on 09.09.2020 and on 16.09.2020. On 09.09.2020, the Enquiry Officer recorded the statement https://www.mhc.tn.gov.in/judis Page 54 of 100 W.P.No.24968 of 2021 of the Delinquent Officer and asked the desire of the delinquent officer to peruse the office files, which was declined by the Writ Petitioner/Delinquent Officer. In compliance of the request of the delinquent officer to call Tmt.R.Varshini, the Company Secretary as witness and on 16.09.2020, in the presence of the delinquent officer, the deposition of Tmt.R.Varshini, was recorded by the Enquiry Officer. The enquiry officer has not put any direct or in direct question to the witness and Tmt.R.Varshini had deposed only to queries specifically raised by the Delinquent Officer, after recording the statement of Tmt. Varshini, the delinquent officer submitted her further written explanation along with supporting documents. Once again the Enquiry Officer put a question to delinquent officer whether she wants to peruse the official records to which, the Delinquent Officer answered “NO”. The respondents further wish to submit that thereafter the Enquiry Officer put a specific question “Whether any additional witness to be enquired.?” in reply, the Delinquent Officer stated that Mr.V.K.Jayakodi I.A.S., and Dr.R.Baskaran, Associated Professor, Anna University may be called as Additional Witness in respect of Charge No.IX. The Enquiry Officer considered her request and however decided that the examination of those two officers is not necessary. https://www.mhc.tn.gov.in/judis Page 55 of 100 W.P.No.24968 of 2021
14. The Gist of Charge No.IX is as follows:-
The Delinquent Officer being a member of the selection committee to recruit System Analyst (technically, a sensitive post since the person to be recruited will have direct access to the entire files of the organization) failed to disclose her relationship with one Mr.D.Kumaran, who was ultimately selected to the post of System Analyst. The Enquiry Officer considered the nature of said charge and also the available records on the said issue had decided that examination of those two officers is not necessary and informed the same to the Delinquent Officer. Thereafter the Enquiry Officer put a further question:-
Q “whether you satisfied with this oral enquiry and you want any further oral enquiry?” Answer;“I am satisfied with the oral enquiry and no need to conduct oral enquiry” Thereafter the Enquiry Officer proceed further and filed a report, Dated 16.10.2020. In the above circumstances the present averment that the Enquiry Officer acted as a presenting officer is factually incorrect. The respondents submits that as submitted in the arguments of the petitioner that Enquiry is vitiated since the 3rd respondent has not produced any vital witnesses and the non-examination of witness by the respondent itself will not vitiate the enquiry.
https://www.mhc.tn.gov.in/judis Page 56 of 100 W.P.No.24968 of 2021 The Hon'ble Supreme Court as well as this Court had repeatedly held that strict standard of proof not applicable to departmental proceedings, therefore merely the non-examination of witness by the respondent by itself will not vitiate the enquiry in view of the fact that the available documents are sufficient to establish the alleged charges. The respondents submits that as submitted in the arguments of the petitioner that Enquiry is vitiated since the 3rd respondent has not produced any vital witnesses. The non-examination of witness by the respondent itself will not vitiate the enquiry. The Hon’ble Supreme Court of India as well as this Hon’ble High Court had repeatedly held that strict standard of proof not applicable to departmental proceedings. Therefore merely the non- examination of witness by the respondent by itself will not vitiate the enquiry in view of the fact that the available documents are sufficient to establish the alleged charges.
15. On the facts of this case, the Writ Petitioner/Delinquent Officer was given an opportunity to examine the company secretary as a witness. Further the Delinquent Officer herself had admitted that she does not want to enquire any further witness. Therefore, the mere fact that not witness was examined on behalf of the management by itself will not vitiate the enquiry. The respondents https://www.mhc.tn.gov.in/judis Page 57 of 100 W.P.No.24968 of 2021 submits that as submitted in the arguments of the petitioner that enquiry officer did not give details of the oral enquiry to the delinquent is factually incorrect and legally unsustainable. On both days of Enquiry on 09.09.2020 and 16.09.2020 the entire proceedings were recorded by the Enquiry Officer. At the end the copy of the enquiry proceedings was produced to delinquent for her perusal the Writ Petitioner/Delinquent Officer after reading the entire contents signed at the bottom of each page. It was counter signed by the Enquiry Officer also. Hence the averment that the enquiry details were not furnished to the delinquent is factually incorrect. As repeatedly held by the Hon’ble Supreme Court and this Hon’ble Court that strict rule of evidence is not applicable to the domestic enquiry the respondents submits that as submitted in the arguments of the petitioner that the enquiry was vitiated on the ground that documents said to be against the delinquent were not marked in the presence of the delinquent and the questions on the same were asked to delinquent is factually incorrect and legally unsustainable. As already stated on both days of enquiry, the Enquiry Officer did not put any lead questions either to the delinquent or to the witness Mrs.R.Varishini to elicit any evidence. Per contra, on 09.09.2020, the petitioner/delinquent deposed the case which was recorded by the Enquiry Officer. In the enquiry hall, the entire set of original files (19 volumes) were https://www.mhc.tn.gov.in/judis Page 58 of 100 W.P.No.24968 of 2021 readily made available for the perusal of the delinquent officer, which she failed to make use of. Further, on the end of each day of enquiry, she was specifically asked whether she wants to peruse the official records. To which, the Delinquent Officer answered “NO”.
16. Considering the above facts, the present averments that the documents were not marked in her presence is unsustainable. Equally on both days of the enquiry, the Enquiry Officer did not put any leading questions or cross examined either the delinquent or the witness to elicit any fresh evidence. Therefore the averment that questions were asked regrading the enquire documents is also factually incorrect.
17. The Respondents submit that the Writ Petitioner cannot now turn around and contend that the Enquiry proceedings are in violation of principles of natural justice. It is pertinent to mention that in the Enquiry Report the Enquiry officer had categorically mentioned that Two Oral enquiries were conducted and depositions were obtained. During the Oral enquiry, the Writ Petitioner has stated that she did not want to peruse any further official records pertaining to this issue. Further, the Writ Petitioner has satisfied with the Oral https://www.mhc.tn.gov.in/judis Page 59 of 100 W.P.No.24968 of 2021 enquiries. Therefore, this amply establishes the fact that the Enquiry proceedings are not vitiated by any principles of natural justice and has been conducted only in accordance with the procedure established under law.
18. The Respondents submits that a clear-cut charge Memos were given to the Writ Petitioner along with the necessary documentary proof for each of the charges alleged against her. In fact, the Enquiry officer had held that all the charges against the Writ Petitioner stands proved except the VII Charge in the Memorandum of Charges. This itself categorically establishes the fact the Enquiry proceedings were conducted in a transparent manner and in accordance with the procedure established under law. The Writ petitioner has failed to establish before the Enquiry officer that the charges against her were framed with malicious intentions in order to tarnish her good reputation gained over years of services rendered with integrity and devotion. In fact, the Board of Directors only on a careful consideration of the Report of the Enquiry officer have decided to impose a punishment of "Compulsory Retirement" as per Rule No.8.15(b)(viii) read with Rule 3.04 of T.N. Power Finance Service Rules and issue orders accordingly. The Board had further decided to grant a punishment of reduction in retirement benefits i.e., Gratuity by 1/3rd ?amounting https://www.mhc.tn.gov.in/judis Page 60 of 100 W.P.No.24968 of 2021 to Rs.2,24,753/- on the total eligible Gratuity of Rs.6,74,258/-. In fact, the Writ Petitioner had also been informed that if she has any grievance against the Order of the Board the appeal if any, against the above punishment may lie with the Government and the same may be preferred well within one month from the date of this Order. However, the Writ Petitioner instead of preferring an Appeal and availing the alternative remedy had rushed before this Hon’ble Court contending false and vexatious allegations against the Enquiry proceedings.
19. The learned Additional Advocate General drew the attention of this Court to the Memorandum dated 19.6.2020 issued to the Writ Petitioner reads as follows:-
“The undersigned proposes to hold an enquiry against Tmt. A.Kala, General Manager under Tamil Nadu Power Finance and Infrastructure Development Corporation Limited Service Rules read with Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.” Therefore, the allegation of the Writ Petitioner that the charges were framed under inapplicable provisions of law is only an afterthought and has been alleged malafidely. In fact, either during the Enquiry proceedings or after the Enquiry Report such an allegation has been made by the Writ Petitioner and therefore the allegation of the Writ Petitioner herein is self-serving, https://www.mhc.tn.gov.in/judis Page 61 of 100 W.P.No.24968 of 2021
20. The respondents submits that the petitioner has not sent any communication either to the Board or to the Enquiry officer seeking for any documents and in the absence of the same the Writ Petitioner herein estopped from contending that no documents were furnished to her. This respondent further submit that all the documents relied on by the Department has been furnished to the Writ Petitioner and therefore now the Writ Petitioner cannot turn around and say that she is not been effectively defend and disprove the Charges. It is pertinent to mention that the Enquiry Report itself categorically reveals that except Charge VII, all other charges against the Writ Petitioner including the Supplementary Charges have been proved and therefore the averments made by the Writ Petitioner herein are self-serving.
21. The respondents submits that the Petitioner had made a bald allegation against the Enquiry officer and in fact the Writ Petitioner having participated in the enquiry proceedings without any demanour cannot now turn around and contend that the Enquiry officer had come to the findings without providing any documents to her. The mere bald allegation that the Enquiry proceedings were conducted in violation of Rule 8.18 of the Service Rules of the https://www.mhc.tn.gov.in/judis Page 62 of 100 W.P.No.24968 of 2021 Tamil Nadu Power Finance and Infrastructure Development Corporation Ltd., would itself will not vitiate the entire enquiry proceedings and the Enquiry Report of the Enquiry officer. Further wish to submit that the entire enquiry proceedings were conducted in a manner known to law, after affording sufficient opportunities to the Writ Petitioner and following the principles of natural justice and therefore there is no illegality in the conduct of the entire Enquiry proceedings.
22. The Board had considered all the aspects of the Enquiry Report as well as the Representation of the Writ Petitioner dated 13.11.2020 before imposing punishment on the Writ Petitioner The allegation that the Order passed by the 3rd Respondent herein is non-speaking order is without any basis and the order itself would categorically reveal that the same is a Speaking order imposing punishment to the Writ Petitioner. The allegation that the punishment imposed by the Board is disproportionate to the Charges are self serving. The respondents submit that the Writ Petitioner who is holding a Civil Post is not only governed by the Service Rules of Tamil Nadu Power Finance and Infrastructure Development Corporation Limited but also Governed by the Tamil Nadu Civil Services (Discipline and Appeal) Rules and as per the https://www.mhc.tn.gov.in/judis Page 63 of 100 W.P.No.24968 of 2021 provisions of the Tamil Nadu Civil Services (Discipline and Appeal) Rules the Appeal from the Board will lie only to the Government and therefore, as stated supra, the above Writ Petition itself is not maintainable in view of the fact that the Writ Petitioner has failed to avail the alternative remedy available to her and therefore the above Writ Petition has to be dismissed in limine. In view of the fact that the order of the 3rd Respondent herein in Ref:No. TNPF/P&A/Disciplinary Case/Order/2021 dated 13.10.2021 has been passed based on the Enquiry Report submitted by the Enquiry Officer which is in accordance with the procedure established under law and therefore the Writ Petitioner is not entitled to any reinstatement with all backwages and continuity of service.
23. The Enquiry Report passed by the 4th Respondent herein is not vitiated by any arbitrariness. The same has been passed only in accordance with the procedure established under law and after following principles of natural justice. The Enquiry has been conducted in detail and the witnesses were examined and the Writ Petitioner herself was satisfied with the enquiry proceedings and it is only after the completion of the enquiry proceedings and after the Enquiry officer had found the Writ Petitioner to be guilt, the Writ https://www.mhc.tn.gov.in/judis Page 64 of 100 W.P.No.24968 of 2021 Petitioner is now turning around and contending otherwise and therefore the entire Disciplinary proceedings are not vitiated by any law. Further wish to submit that the principles laid down in 1995(sup)3 SCC 212 has no application to instant case on hand in view of the fact that ample opportunities have been afforded to the Writ Petitioner and the Enquiry proceedings were conducted only in accordance with the principles of natural justice and therefore there is no illegality in the order of the 3 Respondent herein. As there is no violation of principles of natural justice or the principles of Audi Alteram partem the enquiry in the Disciplinary proceedings are not void ab initio as contended by the Writ Petitioner herein.
24. The findings and conclusions by the Enquiry officer has been elaborately given by the Enquiry officer. In fact, for each and every charge and for the findings arrived by him for that Charge, the Enquiry officer had elaborately enumerated the documents that are relied on by him for arriving at the conclusions. Therefore, the Writ petitioner is now estopped from contending that the findings of the Enquiry officer is arbitrary and perverse. The said allegations have been made baldly and in fact the Writ Petitioner has not come out in detail in which of the 9 Charges and 4 supplementary Charges the https://www.mhc.tn.gov.in/judis Page 65 of 100 W.P.No.24968 of 2021 Enquiry officer was arbitrary and perverse and the grounds on which she relies on for such an allegation against the Enquiry officer. In the absence of the same the Writ Petitioner herein cannot make bald allegations against the Enquiry Report and the Enquiry proceedings.
25. He further submitted that the allegation that the Writ Petitioner is not governed by the Consolidated Conduct, Discipline and Appeal (CDA) Rules 2017 is contrary to law. No doubt the Tamil Nadu Power Finance Infrastructure and Development Ltd is a State Public Sector Undertaking and the Writ Petitioner cannot contend that the Charges cannot be framed in a retrospective manner. The respondents submits that the charges were framed only in accordance with the rules and regulations of the Tamil Nadu Power Finance Infrastructure and Development Ltd, with strict adherence to the principles of law and therefore the Writ Petitioner cannot now contend the Charges were framed in violation o the principles of law. The Respondent submits that the Writ Petitioner cannot now pretend that the mistake on account of negligence is only a technical lapse and therefore the same cannot be deemed to be wilful or wanton as there is no verifiable financial loss to the organization. The Writ Petitioner had admitted her negligence and therefore the charges against her are https://www.mhc.tn.gov.in/judis Page 66 of 100 W.P.No.24968 of 2021 deemed to be proved and the findings of the Enquiry officer are in order.
26. In fact the charge IX and Supplement charges I, II and III are very serious in nature touching upon her integrity which have been proved and the writ petitioner has infact accepted the charge but has attempted to give same vague reason to cover up her fraudulent action. The TNPFC is a small corporation but dealing with huge amount of finance. Integrity and honesty are para mound. It has been clearly explained and established that the petitioner has no honesty or integrity and does not deserve to be maintained in service and has been rightly issued punishment of compulsory retirement. In fact, the punishment imposed by the 3rd Respondent is also is consonance with the charges that were proved against the Writ Petitioner herein, therefore the impugned Order cannot be liable to be set aside.
27. The appeal has to be preferred to the Government and the Writ Petitioner without preferring any appeal had rushed to this Court with false and vexatious grounds and therefore the impugned order is not violative of the decision of the Apex Court in AIR 2002 SC 678.
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28. He further submitted that the impugned order is not violative of any principles of natural justice and is not violative any law in force and therefore the Writ Petitioner is not entitled to any Writ of Certiorarified Mandamus as there is no infirmity in the Order of the Respondents as the same has been passed only in consonance with the Enquiry Report of the Enquiry Officer and therefore the Writ Petitioner is not entitled to any reinstatement with all back wages and continuity of services as claimed by her and prays for dismissal of the writ petition.
29. In support of his contentions, the learned Additional Advocate General relied upon the following judgments:-
1. Union of India and others Vs Ram Lakhan Sharma reported in (2018) 7 SCC 670
2. Pravin Kumar Vs Union of India & others reported in (2020) 9 SCC 471
3. Naresh Govind Vaze Vs Government of Maharashtra & others reported in (2008) 1 SCC 514
4. Regional Manager, UCO Bank & aother Vs Krishna Kumar Bhardwaj reported in (2022) 5 SCC 695
5. State of Karnataka & another Vs Umesh reported in (2022) 6 SCC 563 https://www.mhc.tn.gov.in/judis Page 68 of 100 W.P.No.24968 of 2021
6. Tara Chand Vyas Vs Chairman & Disciplinary Authority & others (1997) 4 SCC 565
30. DISCUSSION, REASONING AND FINDINGS OF THIS COURT ARE AS FOLLOWS:-
There are 9 main charges levelled against the petitioner/Delinquent Officer and the findings of this Court to the each charge is as follows:-
31. In regard to the Charge Nos.1 & 2 it pertains to stock, stationeries, purchase of PVC covers, purchase of stationeries. The concerned Officer incharge is the Manager Deposits namely Mrs.Sumathi Malarvizhi, but since the General Manager (Administration) is the overall incharge the responsibility has been fixed on her and it was held that these two charges are held to be proved against the petitioner/Delinquent Officer.
32. It is also seen from the records that the stock committee report is not done / submitted for every year and it is formed only in the year 2020 and whether the Manager (Deposits) submits the report to the General Manager regarding the stocks periodically there is no answer from the respondents in this regard.
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33. In regard to Charge No.3 it pertains to disclosure of confidential information relating to the organisation to 9 unauthorised persons. According to Section 205 of the Companies Act, 2013, the company Secretary shall facilitate the convening of meetings and attend Board and maintain the minutes of these, hence the company secretary is the responsible person and since the petitioner/delinquent officer has signed the covering letter she has been held responsible and the charges are held to be proved and the crucial / vital documents No.(I.E.10) in this regard was not furnished to the delinquent officer.
34. In regard to Charge No. IV that supporting staff was given Laptop both to Ms.Selvi Suguna (alias) Sudha and Thiru.T.Mohandas to work from home and by this the petitioner/delinquent officer has violated the security process. The date of permission to use Laptop was given on 23.05.2020 and on that day the petitioner/delinquent officer was on Medical leave from 23.05.2020 to 06.06.2020. It is Mrs.Sumathi Malarvizhi, Manager (Deposits) is the responsible Officer. The document (DE4) letter dated 28.07.2020 of Mr.C.Mohandas where it was stated that he was threatened https://www.mhc.tn.gov.in/judis Page 70 of 100 W.P.No.24968 of 2021 by the Manager (Deposits) to give a letter that the petitioner/delinquent officer has granted permission to him to use the laptop. The General Manager (Delinquent Officer) is the General Manager overall incharge of Deposit section including Government schemes, finance and accounts department, computer section, she was held responsible and it was held that this charge is proved against the petitioner.
35. The hierarchy chart of the officers of the company is also extracted hereunder for better understanding.
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36. In regard to Charge No.V it relates to 28 death cases and the same https://www.mhc.tn.gov.in/judis Page 72 of 100 W.P.No.24968 of 2021 was pending for one month. According to the work allocation order dated 17.05.2018 (I.E.6) it is Ms.Priya, Assistant who is looking after the (Despatch and Death cases) etc., and she directly reports to Mrs.Sumathi Malarvizhi (Manager Deposits) who is incharge of overall supervision of the Deposit section. No pending case report was submitted to the delinquent officer either by the Manager Deposits nor by the dealing Assistant. It is also stated in the finding of the enquiry officer that Ms.Priya attended the office during Covid pandemic time but at the same time she says request was made by Ms.Priya to provide for Technical Assistant but no document to that effect was produced during the enquiry.
Since the reallocation of work order was not issued by the General Manager (petitioner/delinquent officer), she was made responsible and the above charge was held proved by the enquiry officer.
37. In regard to Charge No.6 it relates to printing of 250 deposits confirmation receipts (certificate pending for 2 months). According to the work allocation order 31.05.2018 Ms.Sumathi Malarvizhi, Manager Deposits is over all incharge of deposit section, authorising fresh /closure vouchers of deposits, second signature in the fresh / renewal deposit certificate, since https://www.mhc.tn.gov.in/judis Page 73 of 100 W.P.No.24968 of 2021 the Manager (deposits) was sent on deputation to TANGEDCO by the CMD vide order dated 04.05.2020, till such time she is responsible as per the work allocation order dated 17.05.2018.
38. Since the General Manager (Administration) is the overall incharge of the Deposit section it is highly irregular on the part of the delinquent officer and was made responsible for the delay. This charge was also held to be proved against the petitioner/delinquent officer by the enquiry officer.
39. In regard to Charge No.7 it was held charge not proved by the Enquiry Officer.
40. In regard to Charge No.8 it relates to the Charge that the petitioner/delinquent officer failed to manage the funds in short term income securities or by lending to TNAGEDCO. The lending to TANGEDCO was decided by the Additional Chief Secretary, Finance deposits at the meeting held on 02.05.2018. The power of invest in short term or lending to TANGEDCO is vested with the CMD only and as ordered by him https://www.mhc.tn.gov.in/judis Page 74 of 100 W.P.No.24968 of 2021 investments were made in Government Securities and Treasury Bills. The delegation of power to the General Manager is at Document DE9 and according to this power to invest is the CMD and not the General Manager.
41. It is pertinent to note that since the Manager Deposit incharge for the above work and it is her duty to calculate the requirements and it is not the overall head i.e., the General Manager. The General Manager (petitioner/delinquent officer) is the overall incharge of Deposit Section and the finding of the enquiry officer is that the General Manager has to calculate the required amount for every month and put the excess amount in the high interested schemes after getting approval from the CMD but the charge is held to be proved by the Enquiry Officer.
42. In regard to Charge No. IX it relates to the recruitment of system analyst and the charge against the petitioner/delinquent officer is that she did not disclose that Thiru.T.Kumaran who was appointed is her relative. Rule 6, of the consolidated conduct, Discipline and Appeal (CDA) rules, 2017 clause (1) dated 11.12.2017 is extracted hereunder:-
https://www.mhc.tn.gov.in/judis Page 75 of 100 W.P.No.24968 of 2021 “No employee shall use her position or influence directly or indirectly to secure employment for any person related, whether by blood or marriage to the employee or to the employee’s wife or husband whether such person is dependent on the employee or not” and the said Mr.T.Kumaran is not coming under the relation as stated above and since there is no blood relation between the petitioner/deliquent officer. He was appointed by recruitment and selected by a committee and the petitioner/delinquent officer is only the part of the committee as General Manager without adding any value to the selection committee in the process. The charge is that the petitioner did not serve the appointment order by registered post to Thiru.J.Sathish Kumar who ranked first in the interview and the findings of the enquiry officer is that the petitioner has not taken any steps to inform him (by e-mail or 2 nd letter or message in phone). Even though T.Kumaran was not her blood relative he is a relative, she must intimate this to the selection committee and reveals her personal interest in this matter.
43. It is pertinent to note that in view of the above findings of the enquiry officer and the reply by the petiitoner/delinquent officer she came to know that he is her relative only after this charge was framed against her. Despite the https://www.mhc.tn.gov.in/judis Page 76 of 100 W.P.No.24968 of 2021 above facts and findings of the enquiry officer the charge against the petitioner/delinquent officer is held to be proved.
44. It is pertinent to note that the charges No.I,II,III, IV,V,VI relates to the Deposit section and the officer incharge is Mrs.Sumathi Malarvizhi, Manager (Deposits) and no action was initiated against her for the lapses, dereliction of duty. On the other hand the charges were framed against the petitioner/delinquent officer and the same was held proved by the enquiry officer. It is not fair and proper on the part of the respondents to frame charges only against the petitioner/delinquent officer being the General Manager and overall incharge of the Administration is to be held liable and responsible for all the lapses committed by the Manager (Deposits) who is head of the Deposit section and the above charges are related to her section/department and leaving her scot free.
45. The main 9 charges (except charge No.VII) other charges are held to be proved by the enquiry officer does not warrant major punishment of compulsory retirement and reduction in retirement benefits i.e., gratuity by 1/3rd (one third) amounting to Rs.2,24,753/- on the total https://www.mhc.tn.gov.in/judis Page 77 of 100 W.P.No.24968 of 2021 eligible gratuity of Rs.6,74,258/-.
46. Hence in view of the above finding, discussion and reasoning this Court is of the considered view that the punishment of compulsory retirement and reduction in retirement benefits i.e., gratuity by 1/3rd (one third) amounting to Rs.2,24,753/- on the total eligible gratuity of Rs.6,74,258/- imposed on the petitioner/delinquent officer is shockingly disproprotionate to the delinquencies committed as the overall head of the General Administration department of the Corporation.
47. There are 6 Supplementary charges leveled against the petitioner/delinquent officer and the findings/reasoning of this Court in regard to the each charge is as follows:-
47.1 In regard to the supplementary charge No.I and II it relates to appointment of internal auditor namely Thiru.K.Palanivel for 3 years and for pecuniary benefits he has given the petitioner/delinquent officer proper address belonging to her/husband.
As per the Finance (BPE) guidelines issued in letter No.62/D/BPE 92 dated 13.05.1992 an internal auditor can be appointed for not more than 3 https://www.mhc.tn.gov.in/judis Page 78 of 100 W.P.No.24968 of 2021 years. In the finding of the enquiry officer it is mentioned as per the above guidelines internal auditor can be apponted for 3 years and change to be made once in three years. The auditor has produced the proof of address of the adjacent building not of the petitioner/husband property and the same was not accepted by the enquiry officer. The petitioner/delinquent officer has mislead the board by appointing Thiru.K.Palanivel and Supplementary charge No.1 is held proved.
48. In regard to the Supplementary Charge No.III Auction of the Honda city car owned by the company to the petitioner’s son namely Thiru.B.Ashwin and he quoted the address of the petitioner's husband property and influenced the auction. Tender advertisement was given in the newspaper dated 19.07.2018 Thiru.Ashwin has applied with the quote of Rs.79,000/- which is more than book value and the maximum expected price of Rs.60,000/- and it is only profit to the organisation.
49. It is pertinent to note that the auction was approved by the CMD only and if according to (I.E.20) the TNPFC has to get the approval from the Government, then how the CMD approved the same is known only to https://www.mhc.tn.gov.in/judis Page 79 of 100 W.P.No.24968 of 2021 respondent.
The finding of the enquiry officer that as a moral code of conduct the petitioner/delinquent officer should have informed the CMD that she exceeded her limit and act abruptly violating the norms. Hence it is held that this charge is proved against the delinquent officer/petitioner.
50. In regard to the Supplementary Charge No.IV it relates to deliberately spreading false information to the deposits about the resentment towards TNPFC operations. It is pertinent to note that the complaints were sent to Thiru.V.Nagappan and it is noticed that the transactions are done on 23.05.2020 to 06.06.2020 when the petitioner/delinquent officer was on medical leave and joined duty only on 08.06.2020 (D.E.17). It is Mrs.Sumathi Malarvizhi who is incharge of the Deposit Section and must be aware of all transaction.
51. The enquiry officer finding is that there is preponderance of probability that the petitioner/delinquent officer has engineered the petition hence this charge is held to be proved against the petitioner/delinquent officer.
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52. In regard to Supplementary Charge V it relates to “Thanthi” newspaper dated 21.06.2020 and she has contributed to the article in the newspaper and she brought disrespect to the TNPFC Company. It seems that on earlier occasion Smt.Sumathi Malarvizhi (Manager Deposits) and Mr. Sundaravadanam, Ex.General Manager TNPFC used to publish information in the newspaper and it is pertinent to note that three CMDs of TNPFC have sent letters to the Government complaining against the above two mentioned officers on various ocassions and the details are as follows:-
“3. Thiru. V.K.Jeyakodi, I.A.S., vide D.O. Letter dated 01.03.2017 to then CMD, TANGEDCO complaining the unethical practices, uncessary interference in the activities of the TNPFC and falsely representing himself as CFO of TNPFC, when Elangovan, Ex-System Analyst of TNPFC was under police custody for the unethical work entrusted by Mr.Sundaravadanam, Ex-GM, TNPFC. Now also, all the allegations have been raised in the respective note file by Ms.Sumathi Malarvizhi with the intention to spoil her integrity and sincerity”.
53. The finding of the enquiry officer is that there is preponderance of probability that the delinquent officer has contributed the details to the https://www.mhc.tn.gov.in/judis Page 81 of 100 W.P.No.24968 of 2021 newspaper to spoil the reputation of TNPFC and this charge was held to be proved by the enquiry officer.
54. In regard to the Supplementary charge No.VI that the petitioner/delinquent officer without any approval of the competent authority has orally instructed the frequent changes of accounts for repayment from TANGEDCO is arbitrary and against the interest of the corporation. It can be seen that the TNPFC is maintaining its bank accounts as per the Government policy and the TANGEDCO is transferring funds towards the repayment if long term loans to any of the bank accounts of the TNPFC as per their fund availability.
55. The finding of the enquiry officer is that the petitioner/delinquent officer did not bring to the notice of CMD instantly and the deposits done in Canara bank and ICICI Bank is with the concurrence of the petitioner/delinquent officer.
56. The petitioner/delinquent officer as the General Manager is the overall incharge of Deposit section, finance and accounts department and there https://www.mhc.tn.gov.in/judis Page 82 of 100 W.P.No.24968 of 2021 is a possibility of pecuniary gain to the delinquent officer of this accounts change and the approval was done without approval of the CMD and the delinquent officer is responsible for the irregularity.
57. It is pertinent to note that out of the 6 Supplementary charges the first charge and the second charge relates to appointment of internal auditor for 3 years as per rules and not in violation of any rules of the Company.
58. The third charge relates to auction of Honda City Car owned by the Corporation, it was auctioned for the price of Rs.79,000/- which is above the book value of Rs.60,000/- and her son has purchased only after the approval of the CMD. The only charge is that the petitioner did not disclose that the purchaser is her son.
59. The fourth charge is based on the preponderance of probability.
60. The fifth charge regarding the news in Thanthi newspaper for which the petitioner is not responsible which can be seen in the discussion above. https://www.mhc.tn.gov.in/judis Page 83 of 100 W.P.No.24968 of 2021
61. In regard to the sixth charge deposit of funds by the TANGEDCO for which the petitioner is held liable when she is not the competent authority to direct the TANGEDCO. However these 6 supplementary charges are held to be proved by the enquiry officer.
62. The consolidated conduct, discipline and appeal (CDA) Rules, 2017 is not applicable to the petitioner vide circular dated 11.12.2017 of the Ministry of Industries and Heavy Industries and Public Enterprises Department adopted for Central Government undertaking Public Enterprises (CPSE) and not for the State Public Sector undertaking and TNPFC is a State Public Sector undertaking. Moreover, the Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal Rules) upon which the charge memo was served to the petitioner is not applicable to the employees of the TNPFC.
63. It is pertinent to note that the Enquiry Officer has marked all the documents herself without any witness and the vital documents based on which the Enquiry Officer has come to the findings were not provided to the petitioner. The impugned order dated 13.10.2021 passed by the 3rd respondent has asked https://www.mhc.tn.gov.in/judis Page 84 of 100 W.P.No.24968 of 2021 the petitioner to prefer an appeal against the impugned order before the Government. However, under the rules of the Tamil Nadu Power Finance and Infrastructure Development Corporation Rule 8, 17 an appeal lies before the Board of Directors and the Governmnet is not an Appellate Authority . There is no Presenting Officer to present the case during the enquiry in the case of the petitioner. There is no witness or list of witness mentioned in the enquiry report. However, based on the institutional exhibits the charges were held to be proved against the petitioner by the 4th respondent. There is not even a single statement made on behalf of the corporation. It can be seen from the records that the petitioner was merely asked to state her comments for each charge and the same was recorded by the Enquiry Officer.
64. It is pertinent to note herein and understand that the appointment of a presenting Officer to present the case on behalf of employer, before an Inquiry Officer in the departmental proceeding was basic requirement otherwise. There was no person to pursue the case before the Inquiry Officer on behalf of the Department/employer and Inquiry Officer herself assumed the role of prosecutor/investigator.
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65. The enquiry officer is not supposed to be a representative of the department/disciplinary authority/Government and her function is to examine the evidence produced by the department, since no oral evidence has been examined, the documents have not been proved and could not have been taken into consideration to include the charges that have been issued against the petitioner.
66. According to Article 311 (2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice.
67. In the case of State of UP & Others Vs. Saroj Kumar Sinha (2010) 2 SCC 772 (Para 27 and 28), the Hon’ble Supreme Court held that in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. That an inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be representative of the department/disciplinary authority/ Government. His function is to examine the https://www.mhc.tn.gov.in/judis Page 86 of 100 W.P.No.24968 of 2021 evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved.
68. In the case of State of Uttaranchal and Ors vs. Kharak Singh, (2008) 8 SCC 236 (para 15)the Hon’ble Supreme Court stated that:
i. The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
ii. If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the inquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
iii. In an enquiry, the employer/department should take steps first to lead evidence against workmen/delinquent charged and give an opportunity to him to cross examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. https://www.mhc.tn.gov.in/judis Page 87 of 100 W.P.No.24968 of 2021 iv. On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary /punishing authority to supply a copy of the enquiry officer to enable him to offer his views any.
69. In the case of Union of India and Ors vs. Ram Lakhan Sharma. (2018) 7 SCC 670 in para 37, the Hon’ble Supreme Court has held that the High Court having come to the that the Enquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost while adversely affecting his independent role of adjudicator. In these circumstances, the principle of bias shall come into play and the High Court was right in setting aside the dismissal orders by giving liberty to the appellants to proceed with inquiry afresh.
70. In the case of Kashinath Dikshita vs. Union of India and Ors. (1986) 3 SCC 229 (para 10), the Hon’ble Supreme Court held that when a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the https://www.mhc.tn.gov.in/judis Page 88 of 100 W.P.No.24968 of 2021 employee concerned prepare his defence, cross-examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible?
71. The impugned final order dated 13.10.2021, the Ref. No. 7, (Board Resolution) resolution copy was not furnished. Further, Ref. No. 9 (formation of sub-committee) minutes of the Board meeting, Ref. No. 10 (sub-committee agreeing with inquiry report) minutes of the Sub – committee meeting and Ref. No. 11 (Board decision to impose punishment) minutes of the meeting were not furnished to the petitioner.
72. In the case of Nicks (India) Tools v. Ram Surat, (2004) 8 SCC 222 (Para 16) the Hon’ble Supreme Court held that a document not confronted to the delinquent cannot be relied upon for establishing the fact that the delinquent is guilty of a misconduct.
73. In the case of BerlineJenova Mary Vs. The Principle Secretary to Govt. of Tamil Nadu, VPNJ Order in W.P.32332/2019 Madras HC (para-18 &
19), this Court held that it is incumbent upon the authorities to provide all opportunities to the petitioner regardless of the fact whether the petitioner https://www.mhc.tn.gov.in/judis Page 89 of 100 W.P.No.24968 of 2021 sought for it or not.
74. In the case of K. Govindaswamy Vs. Tamil Nadu Civil Supplies Corporation Ltd, 1998 (3) LLN 326, (para-13), this Court held that merely because the petitioner did not seek opportunity that would not mean that charges were established. Further, the employer should take steps first to lead evidence against the workmen charged, give him an opportunity to cross- examine the said evidence and then should ask the concerned work man whether he wants to give any explanation about the evidence led against him.
75. The inquiry officer must have marked the Institutional Exhibits 1to 24 only upon the consent of the petitioner and furnished a copy of all Institutional Exhibits to her. Further, on the failure of furnishing of the I.E. 1 to 24 by the Inquiry authority, the Disciplinary Authority must have furnished the institutional exhibits though there was no specific request made by the petitioner. It is pertinent to note that the Petitioner vide letter dated 02.07.2020 addressed to CMD requesting for documents whereby Respondent No. 3 denied the request and furnished only selective documents. https://www.mhc.tn.gov.in/judis Page 90 of 100 W.P.No.24968 of 2021
76. In the impugned final order, it is mentioned that the Board has decided to impose the punishment of compulsory retirement and Rule 8.17 of TNPFC rules states that the Appellate authority will be the Board of Directors, the Disciplinary Authority cannot be the appellate authority. Therefore, appeal is not an efficacious remedy to the petitioner. Thus, the petitioner has come forward with the present writ petition, challenging the impugned order.
77. It can be seen that the Disciplinary authority did not give any reasons for accepting the findings of the Inquiry Authority. It is also pertinent to note that the Petitioner was not called by the sub-committee to enquire whether the inquiry is conducted in a fair manner and if enough opportunity was given to the Petitioner by the inquiry authority. The chance of verifying the existence of such documents and opportunities to discredit the documents and to object the marking of such document in support of the charge is unjustifiably denied to the Petitioner herein who is suffering the order of compulsory retirement. Not even a single witness was called and examined on behalf of the institution for furnishing statements and marking of documents. The documents referred to in the inquiry report have not been proved and could not have been taken into consideration to conclude that the charges are proved. Hence, the punishment https://www.mhc.tn.gov.in/judis Page 91 of 100 W.P.No.24968 of 2021 imposed by the 2nd respondent by the impugned order is shockingly disproportionate to the charges levied against the petitioner.
78. It is also pertinent to note that even according to the respondents, only the main charge No.9 and supplementary charge Nos.I, II, III are very serious charges and in regard to main charge No.9 and Supplementary Charges I, II, III it has been dealt along with the reasoning by this Court in detail as stated supra and the punishment of compulsory retirement and reduction in retirement benefits i.e., gratuity by 1/3rd (one third) amounting to Rs.2,24,753/- on the total eligible gratuity of Rs.6,74,258/- imposed on the petitioner is disproportionate to the deliquencies committed by the petitioner.
79. It is also pertinent to mention that in none of the above charges, the General Manager who is in charge of general administration of the Company, is directly involved and the charges are held to be proved only by fixing the responsibility and lack of supervision as the General Manager of general administration and on the preponderance of probability which is crystal clear and evident from the findings of the Enquiry Officer in regard https://www.mhc.tn.gov.in/judis Page 92 of 100 W.P.No.24968 of 2021 to each charge framed against the petitoner/deliquent officer.
80. The petitioner/deliquent officer has served the company for 6 ½ years as the General Manager and there is no serious allegation like corruption, misappropriation or insubordination which warrants major punishment of compulsory retirement and reduction of retirement benefits on the petitioner.
81. It is also seen from the records that the stock committee report is not done / submitted for every year and it is formed only in the year 2020 and whether the Manager (Deposits) submits the report to the General Manager regarding the stocks periodically there is no answer from the respondents in this regard.
82. THE IMPUGNED ORDER IS LIABLE TO BE QUASHED ON THE FOLLOWING REASONS:-
1. The enquiry was not conducted in a fair and prpoper manner.
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2. The principles of natural justice was not followed by the Enquiry Officer.
3. The documents were marked as Institutional Exhibits (IE) without any evidence adduced by the witness.
4. No witnesses were examined.
5. No Presenting Officer appointed in the enquiry proceedings.
6. The Enquiry Officer miserably failed to follow the basic rules in conducting the enquiry as per the law laid down by the Hon'ble Supreme Court of India.
7. The consolidated, conduct, discipline and appeal (CDA) rules, 2017 is not applicable to the instant case since, Tamil Nadu Power Finance Corporation is a State Government undertaking.
8. In regard to the each charge during the enquiry the charges were https://www.mhc.tn.gov.in/judis Page 94 of 100 W.P.No.24968 of 2021 mentioned, reply of the delinquent officer and the findings of the enquiry officer and no proper opportunity of hearing was given to the petitioner.
9. In all the 9 main charges and 6 supplementary except the VII main charge was held to be proved by fixing the responsibility on the petitioner since she is the overall head of the genral administration department of the Corporation as the General Manager and the doctrine of preponderance of probability.
10. The two witness whom the petitioner wanted to examine on her side was also rejected by the enquiry officer.
11. No names of the witnesses or the list of witnesses were mentioned in the main charge memo or the supplemntary charge memo.
12. The vital documents based on which the enquiry officer has come to the findings were not provided to the petitioner.
13. The main charges I, II, IV, V, VI, VIII all are related to the https://www.mhc.tn.gov.in/judis Page 95 of 100 W.P.No.24968 of 2021 deposit section for which there is a manager (Deposits) namely Mrs.Sumathy Malarvizhi is the head of that section but no disciplinary action is initiated against on her but on the other hand for all the above charges except VII the responsibility is fixed on the petitioner since she is the General Manager of the company incharge of the general administration department is unsustainable.
14. The main charge No IX which is a serious charge according to the respondent relates to the appointment of the system analyst and the petitioner was only a part of the selection committee and she is not the deciding authority in the appointment and the members of the committee including the CMD took the decision to appoint the system analayst.
15. The 9 main charges and the 6 supplementary charges were framed against the petitioner on flimsy, vexatious grounds, with ulterior and malafide intentions.
16. The disciplinary authority ought to have furnished the institutional exhibits though there is no specific request from the petitioner. https://www.mhc.tn.gov.in/judis Page 96 of 100 W.P.No.24968 of 2021
17. The supplementary charges I, II, III which according to the respondents are serious charges and first and second is regarding the appointment of internal auditor, which was done by the petitioner only in accordance with rules of the corporation. The third charge regarding the auction of the old Honda City car whicch was also given to the highest bidder and the CMD has approved the same.
18. The petitioner was not called for giving oral evidence and producing any documentary evidence.
19. No reason is given by the disciplinary authority for accepting the findings of the inquiry authority.
20. The enquiry officer marked all the documents without examing any witnesses.
21. The 2nd respondent passed a cryptic order without providing any reasons for the punishment imposed on the petitioner. https://www.mhc.tn.gov.in/judis Page 97 of 100 W.P.No.24968 of 2021 CONCLUSION:-
83. This Court based on the above discussion, findings and reasons in regard to each charge framed against the petitioner/deliquent officer, is of the considered view that the major punishment of compulsory retirement and reduction in the retirement benefits of the petitioner is shockingly disproportionate to the deliquencies said to have been committed by her as the General Manager incharge of the general administration of the Corporation.
84. Hence, the Inquiry Report dated 16/10/2020 issued by the 4th Respondent together with the Order of Compulsory Retirement and reduction of retirement benefits issued by the 3rd Respondent in Ref No. TNPF/P&A/Disciplinary case/Order/2021 dated 13/10/2021 on behalf of the 2nd respondent is liable to be quashed and the same is hereby quashed.
85. In the result, this writ petition is allowed and the second respondent is directed to reinstate the petitioner with all backwages and https://www.mhc.tn.gov.in/judis Page 98 of 100 W.P.No.24968 of 2021 continuity of service within a period of 6 weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are also closed.
20.12.2023 Index : No Internet : Yes dpq J. SATHYA NARAYANA PRASAD, J.
dpq To https://www.mhc.tn.gov.in/judis Page 99 of 100 W.P.No.24968 of 2021
1. The Principal Secretary to the Government, Energy Department, Secretariat, Fort St. George, Chennai – 600 009.
2. The Board of Directors, Tamil Nadu Power Finance and Infrastructure Development Corporation Ltd.
No. 490, 3/4, Anna Salai, Nandanam, Chennai – 600 035.
3. Tamil Nadu Power Finance and Infrastructure Development Corporation Ltd.
Rep. by the Chairman and managing Director, No. 490, 3/4, Anna Salai, Nandanam, Chennai – 600 035.
4. The Inquiry Authority, Additional Secretary to Government, Indvvustries Department, Secretarait, Fort St. George, Chennai – 600 009.
W.P.No.24968 of 2021
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