Madras High Court
K.S.Nandakumar vs The Chairman on 19 April, 2022
W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.04.2022
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
K.S.Nandakumar ... Petitioner
Vs.
The Chairman,
Chennai Port Trust,
Rajaji Salai, Chennai – 600 001. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorari to call for the records of the
respondent in order dated 04.11.2020 vide order No.V4/264/2017/Vig and
quash the same.
For Petitioner : Mr.Srinath Sridevan
For Respondent : Mr.P.M.Subramanian
Standing Counsel
ORDER
This Writ Petition has been filed to call for the records of the
respondent in order dated 04.11.2020 vide order No.V4/264/2017/Vig and to
quash the same.
https://www.mhc.tn.gov.in/judis
W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
2.Brief facts of the case:
(a).While the petitioner was working as Assistant Material Manager, in
the respondent Port Trust, on 03.11.2016, the Chairman of the respondent
Port Trust has sanctioned for disposal and removal of top layer of ore fines at
BD-II through an E-Auction to be conducted by the auctioneer, M/s.MSTC
Limited, Chennai, who is a Government of India Enterprise appointed by the
Chennai Port Trust. The Chief Mechanical Engineer engaged the Valuer and
the Valuer has submitted the valuation report in a confidential sealed cover.
(b).Thereafter, as per the instructions, the writ petitioner has prepared
the draft proposal and sent it to the Chief Mechanical Engineer for approval
and the same has been approved on 07.12.2016 and forwarded to FA & CAO.
Thereafter, FA & CAO concurred with the proposal on 19.12.2016 duly
endorsing that as per the conditions, if the lot fetches 100% of the reserve
price, it will be declared as confirmed lot and the same was forwarded to
Deputy Chairman. The Deputy Chairman of the respondent Port Trust also
approved on 22.12.2016 and the same was forwarded to the first respondent.
On perusal of the aforesaid proposal, the respondent as the nodal
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W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
officer/competent authority has approved the proposal and forwarded to the
auction committee on 23.12.2016 and the auction was fixed on 27.12.2016
and auction deferred to 30.12.2016. On that day, the auction was conducted
and the auction conducting committee has opened the sealed cover submitted
by the respondent and M/s.SYR Infrastructure, was the highest bidder and
the same was forwarded to the Chairman of the Port Trust for approval and
the chairman has approved the said tender in favour of M/s.SYR
infrastructure.
(c).Thereafter, the respondent has initiated disciplinary proceedings by
framing the charge memo as against the petitioner alleging that the valuation
of the auction was done at very low value and thereby, loss was caused to the
Port Trust to the tune of Rs.7.1 Crores and the said charge memo was served
to the petitioner on 25.07.2019. The respondent has appointed an enquiry
officer on 23.10.2019 to enquire into the charges framed against the petitioner
and the petitioner had made a request to the Enquiry Officer to summon
Mr.P.Raveendran, the Chairman of the Chennai Port Trust as a witness in the
aforesaid enquiry proceedings. The Enquiry Officer informed that charged
official can make arrangement for presenting the above officers as defence
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W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
witnesses and thereby, the petitioner by his letter dated 19.02.2020 requested
the respondent to summon himself and the other officers as witnesses but the
respondent did not respond and he did not appear before the Enquiry Officer.
Further, on 19.03.2020, the Enquiry Officer without summoning the
witnesses reserved the matter and also directed to file written submissions.
Accordingly, the petitioner has made his return submissions on 29.05.2020 to
the enquiry officer and has also made a similar request for examining the
Mr.P.Raveendran Chairman of the Chennai Port Trust but without giving such
opportunity, the Enquiry Officer has submitted his report on 10.07.2020 and
thereafter, the respondent has passed the impugned punishment order against
the writ petitioner under Regulation 8(b)(vii) of Chenai Port Trust Employees
(CCA) Regulations, 1988 and imposed penalty of withdrawal of his pension
by 33% for a period of 84 months and reduction of Gratuity payable by 33%
with immediate effect, under Regulation 10, Chennai Port Trust /(Pension)
Regulations, 1987. Hence, the writ petition.
3(a).The learned counsel for the petitioner would submit that one
P.Raveendran, Chairman of the Chennai Port Trust has approved the proposal
for conducting the E-Auction and the same Chairman has now passed the
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W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
impugned order by imposing the punishment on the petitioner and therefore,
no person can judge on his own opinion.
3(b).Next contention of the learned counsel for petitioner is that the
petitioner has made a request to the Enquiry Officer to summon
Mr.P.Raveendran, Chairman of the Chennai Port Trust for the examination
with regard to the charges levelled against the petitioner, but without giving
sufficient opportunity to the petitioner, the Enquiry Officer has submitted the
report and based on the said report, the respondent has passed the impugned
order of punishment and thereafter, initiating the disciplinary proceedings
against the petitioner by same officer would not get any justice for the
petitioner. It will be a bias on the part of the respondent. Therefore, he seeks
for the quashing of the said proceedings.
3(c).The learned counsel for the petitioner would also rely upon the
decision of the Hon'ble Supreme Court as follows:
(i) 1968 (3) WLR 694 – Metropolitan Properties Co.(F.G.C) Ltd.
Vs.Lannon and others,
(ii) 1974 (3) SCC 459 – S.Parthasarathi Vs.State of Andhra Pradesh
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W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
& (iii).2016(12) SCC 204 – Chamoli District Co-operative Bank Ltd.
through its Secretary/Mahaprandhak & Anr. Vs. Raghunath Singh Rana
& ors.
and in the light of the above said Judgments of the Hon'ble Supreme Court,
the impugned punishment order passed by the respondent is liable to be set
aside.
4.The learned Standing Counsel appearing for the respondent would
submit that the respondent has framed the charges and the petitioner has
appeared before the enquiry officer and the enquiry officer has submitted his
report to the respondent and based on the report, the punishment order has
been passed against the writ petitioner.
5.Heard the learned counsel on either side and perused the materials
placed on record.
6.On a perusal of the records, the contention of the learned counsel for
the petitioner is that the petitioner has submitted the draft proposal to the
P.Raveendran, Chairman of the Chennai Port Trust and the said draft
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and W.M.P.No.21724 of 2020
proposal has been approved by the Chairman and forwarded to the Auction
Conducting Committee and subsequent to approval E-auction was fixed on
27.12.2016 and it was deferred and conducted by the auction committee on
30.12.2016 and the auction conducting committee opened the sealed cover
approved by the valuer one day before the auction and thereafter, the final
award has been passed in favour of the SYR infrastructure by the auction
commitee. Therefore, the allegations of the petitioner is baseless and without
any materials.
7.Further, before uploading the reserve price of Rs.400/- per MT fixed
by the independent valuer, M/s.M.C.Jain & Associates had failed to compare
the reserve price of Rs.400/- per MT with the earlier reserve price of Rs.950/-
per MT fixed by them for the E-Auction held on 10.08.2016 and that he had
failed to realise the drastic slash in the reserve price to the tune of 137.5%
furnished by the said independent valuer within a period of four months and
therefore, based on the above lapses, charge memo has been framed against
the writ petitioner and the respondent has imposed punishment order against
the petitioner.
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W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
8.Further, according to the petitioner the draft proposal has been
approved by the respondent/Chairman of the Port Trust and based on that, the
auction has been conducted and therefore, the Chairman of the Port Trust has
to be examined necessarily for the present charges leveled against the
petitioner. Since, the Chairman being the approving authority for the said
auction, the said request made by the petitioner was not considered by the
Enquiry Officer. Therefore, he attributing bias as against the aforesaid
P.Raveendran, Chairman of the Chennai Port Trust.
9.The learned counsel appearing for the respondent has stated that the
said Chairman, has denied the said allegation of the petitioner and the
chairman has nothing to do with the aforesaid reserved price fixed for the
aforesaid auction. Therefore, the said Chairman has passed the final order by
imposing the punishment as against the petitioner based on the enquiry
report. Therefore, according to the learned counsel for the respondent the
allegation of the petitioners are untenable and the same is liable to be rejected.
10.The learned counsel for the petitioner has also relied upon the
decision of the Hon'ble Supreme Court reported in 2016(12) SCC 204 –
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W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
Chamoli District Co-operative Bank Ltd. through its
Secretary/Mahaprandhak & Anr. Vs. Raghunath Singh Rana & ors.
wherein, in Clause (ii) of paragraph No.15, the Hon'ble Supreme Court has
held as follows:
15.(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 Enquiry 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 enqiry is
assigned to some other officer.
Therefore, the present case on hand the then Chairman of the Port Trust is an
approval authority of the draft proposal and the same authority has passed the
impugned punishment order.
11.In the light of the facts as well as considering the decision, in the
present case on hand, the then Chairman of the respondent Port Trust was
approved the draft proposal submitted by the petitioner. Therefore, the
allegation of the petitioner that the said disciplinary proceedings initiated
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W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
against the petitioner and imposing punishment order attributes bias as
against the then Chairman of the Port Trust.
10.At this juncture, the learned Standing Counsel appearing for the
Chennai Port Trust would fairly stated before this Court that at present the
new incumbent Chairman has taken charge of the respondent Port Trust.
11.Considering the submissions of the petitioner that the disciplinary
authority has approved the draft proposals submitted by the petitioner,
considering the submissions made by the learned Standing Counsel for the
respondent, in the interest of justice and in view of the decision of the Hon'ble
Supreme Court as stated supra, this Court is inclined to pass the followed
order:
(i).The impugned order passed by the respondent is hereby quashed
and remitted back to the respondent.
(ii).If any additional particulars or request, the petitioner shall make
such request before the respondent within a period of two weeks from the
date of receipt of a copy of this order.
(iii).The respondent is directed to consider the same and pass
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W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
appropriate orders afresh on merits and in accordance with law, after
providing opportunity to the petitioner, within a period of four months
thereafter.
(iv).If the petitioner seeks terminal benefits, it is for him to approach
authority concerned by making independent application.
(v).Any observation made in this matter will not influence the authority
concerned to take final decision.
12.Accordingly, this Writ Petition stands allowed. No costs.
Consequently, connected miscellaneous petition is closed.
19.04.2022
Index : Yes / No
Internet : Yes / No
dua
Note: Issue order copy on 29.07.2022
To
The Chairman,
Chennai Port Trust,
Rajaji Salai, Chennai – 600 001.
D.KRISHNAKUMAR. J
https://www.mhc.tn.gov.in/judis
W.P.Nos.17533 of 2020
and W.M.P.No.21724 of 2020
dua
W.P.No.17533 of 2020
and W.M.P.No. 21724 of 2020
19.04.2022
https://www.mhc.tn.gov.in/judis
