Madras High Court
P.A.Murugappan vs 2 Managing Director on 3 December, 2021
W.P.No.26715 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 3.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.26715 of 2009
1 P.A.MURUGAPPAN
S/O.LATE ANGAPPA CHETTIAR,
DOOR NO.82 GANGA ILLAM,
LAKSHMI NAGAR, THINDAL (POST),
ERODE- 12. ... PETITIONER
Vs.
1 TAMIL NADU WATER SUPPLY AND DRAINAGE BOARD
REPRESENTED BY ITS MANAGING DIRECTOR,
31 KAMARAJAR SALAI, CHEPAUK, CHENNAI-5.
2 MANAGING DIRECTOR,
TAMIL NADU WATER SUPPLY AND DRAINAGE BOARD
31 KAMARAJAR SALAI CHEPAUK CHENNAI-5. ... RESPONDENTS
Prayer : Writ petition filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorari, to call for the records in
B.P.Ms.No.119 TWAD.Estt. (DP) Wing dated 18-08-2009 passed by The Tamil
Nadu Water Supply and Drainage Board rep. by its Managing Director 31
Kamarajar Salai Chepauk Chennai-5 the first respondent herein by confirming
the order passed by the Managing Director, Tamil Nadu Water Supply and
Drainage Board, 31 Kamarajar Salai, Chepauk, Chennai-5 the 1st respondent
1/8
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W.P.No.26715 of 2009
herein in Proc.No.2711/Estt(DP)/A4/2007 dated 26.09.2008 and quash the
above mentioned orders passed by the respondents and direct the respondents
to pay the Earned Leave and Unearned Leave Salary at the credit of the
petitioner Leave Accounts at the time of retirement as per Pension rules along
with interest.
For Petitioner : Mr.D.Kanagasundaram
For Respondents : Ms.S.Shankila Bhanu for
TWAD Board
*****
ORDER
The petitioner while working as Accounts officer, charges have
been framed by the respondent under Regulation 10(a) (i) of TWAD Board
Employees (Discipline and Appeal) Regulation 1972 for the irregularities
committed in Kattur CWSS and Kovilkaradu CWSS of Maintenance Division,
Erode. According to the respondent, the petitioner misappropriated Board's
fund and therefore, following charges have been framed against the
petitioner.
Charge No.1: that he has failed to verify the bills received without the
required certificate such as PDI Certificate, Guarantee
Certificate, Post Installation Certificate, Performance
Certificate, and other certificates as specified in the
Agreement and initiated the pass order entries made by the
Junior Assistant thereby committed misconduct as per
Regulation 6(x) of TWAD Board Employees' (Discipline and
Appeal) Regulations, 1972.
Charge No.2 : that he has failed to point out the lapses in the bills to the
higher officers by office note and thereby committed
misconduct as per Regulation 6(x) of TWAD Board Employees'
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W.P.No.26715 of 2009
(Discipline and Appeal) Regulations, 1972.
Charge No.3: that he has failed to put up office note to the E.E. Pointing out
that the amount kept idle for the period from 17.4.2006 to
22.12.2006 has to be remitted to the Board which is a
misconduct as per Regulation 6(x) of TWAD board Employees'
(Discipline and Appeal) Regulations, 1972.
Charge No.4: that he has failed to maintain high standard of integerity and
devotion to duty as expected from an officer of his rank and
thereby violated Regulation 3 of TWAD Board officers' and
Servants Regulations, 1972.
Enquiry officer was appointed and the petitioner has submitted explanation to
the enquiry officer. According to the petitioner, enquiry officer has submitted
a report by holding that charges 1, 2 and 4 were not proved and charge No.4
stands proved. Based on the said findings of the enquiry officer, the second
respondent passed the impugned order by imposing punishment of penalty of
Rs.2500/- and the suspension period be treated as leave period. Challenging
the said order, the petitioner has preferred an appeal before the Appellate
Authority viz., the first respondent herein. The first respondent rejected the
appeal and passed the impugned order by confirming the order passed by the
original authority.
2. The main contention raised by the learned counsel appearing for
the petitioner is that the order passed by the Appellate Authority is liable to
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W.P.No.26715 of 2009
be set aside on the short ground that the very same Officer viz., Mr.Swaran
Singh, I.A.S. who passed the order of punishment as original authority also
passed the impugned order acting as Appellate Authority. In support of his
contention, the petitioner also relied on the unreported judgment of this court
rendered in J.SAMUEL THANGARAJ VS. THE MANAGING DIRECTOR, T.N.W.S.
& DRAINAGE BOARD, CHENNAI-5 [W.P.No.12278 of 2001 dated 10.09.2009]
3. The learned Standing counsel appearing for the respondent
strongly objected by stating that even authority who passed the impugned
order acting as Appellate Authority cannot be ground to interfere with the
order passed by the respondent. According to the learned Sanding counsel
appearing for the respondents, considering the nature of charges, the
punishment awarded by the respondent is only a minor punishment.
Therefore, no warrant required to interfere with the order passed by the
respondent.
4. Heard the rival submission of the parties and perused the
materials available on record.
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W.P.No.26715 of 2009
5. The writ petition was admitted in the year 2009, however, the
respondents have not filed counter affidavit for more than 12 years after the
case has been adjourned several occasions, today posted for final disposal.
6. The only ground raised by the counsel appearing for the
petitioner is that the very same Officer viz., Mr.Swaran Singh, I.A.S. who
passed the order of punishment as original authority also acted as Appellate
Authority and passed the impugned order and therefore, the impugned order
is liable to be set aside on the sole ground.
7. This Court while considering the identical issue in a judgment
in J.SAMUEL THANGARAJ case cited supra, has held as under;
“6.......... Since the petitioner suffered punishment
of stoppage of increment for 2 years with cumulative effect
at the hands of the Disciplinary Authority, the same was
challenged by way of appeal before the 2nd respondent.
When the Appellate Authority head the appeal, as rightly
contended by the learned counsel appearing for the
petitioner, the Managing Director, who was the person who
imposed the punishment of stoppage of increment for two
years with cumulative effect, should not have participated
as one of the members of the Board in the appeal
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W.P.No.26715 of 2009
proceedings. But, unfortunately, the Board while hearing
the appeal of the petitioner, has allowed the original
authority, namely, Managing Director, who has passed the
impugned order to participate as a member of the Board.
The entire appeal proceedings were issued by the Managing
Director, who was the Original Authority and, therefore,
the order passed by the Appellate Authority, is not only bad
in law, but also is vitiated by the participation of the
Original Authority. Therefore, this point has also not been
answered by the respondents either in their counter or in
their argument, which also further strengthens the stand of
the petitioner. Further, the argument of the petitioner that
the Managing Director also has signed in the order passed
by the Appellate Authority, also clearly proves the fact that
the impugned order passed by the Appellate Authority, is
bad in law and is without jurisdiction.”
8. Coming to the instant case, on a perusal of the order passed by
the second respondent, viz., Mr.Swaran Singh, I.A.S. While acted as Managing
Director of TWAD Board, and passed impugned punishment order, also acted
as Appellate Authority viz., Chairman and Managing Director and confirmed his
own order of punishment imposed by him for the proven charges while he was
a Managing Director of TWAD board, by rejecting the appeal preferred by the
petitioner. Therefore, the entire appeal proceedings are vitiated by
participation of Original Authority in the Appeal proceedings.
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W.P.No.26715 of 2009
9. In the light of decision cited supra and considering the facts of
the case, this Court safely come to the conclusion that the impugned order
passed by the Appellate Authority is liable to be set aside and remitted to the
first respondent to consider afresh and pass orders on its own merit as
expeditiously as possible preferably within a period of 12 weeks from the date
of receipt of copy of the order.
10. In the result, the writ petition stands allowed with the above
directions. No costs.
3.12.2021
Speaking / Non Speaking order
Index : Yes/No
Internet : Yes/No
vaan
To
1 THE MANAGING DIRECTOR,
TAMIL NADU WATER SUPPLY AND DRAINAGE BOARD
31 KAMARAJAR SALAI, CHEPAUK, CHENNAI-5.
https://www.mhc.tn.gov.in/judis
W.P.No.26715 of 2009
D.KRISHNAKUMAR, J.
vaan
W.P.No.26715 of 2009
Dated: 3.12.2021
https://www.mhc.tn.gov.in/judis
