Madras High Court
R.Rukmangathan vs Tamilnadu Generation And ... on 25 April, 2022
W.P.No.12465 of 2021
and W.M.P.No.13249 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.04.2022
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.12465 of 2021
and W.M.P.No.13249 of 2021
R.Rukmangathan ... Petitioner
Vs.
1.Tamilnadu Generation and Distribution
Corporation Limited [TANGEDCO] Board,
represented by its Chairman – Cum – Managing Director, Anna Salai,
Chennai – 600 002.
2.The Chairman – cum – Managing Director,
TANGEDCO,144, Anna Salai, Chennai – 600 002.
3.The Chief Engineer,
Distribution South, TANGEDCO, Chennai – 2.
4.The Superintending Engineer,
CEDC/SOUTH-II, K.K.Nagar, Chennai – 600 078. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus to call for the
records of the first respondent-TANGEDCO Board and quashing the
impugned order of the first respondent Vide (PER) FB TANGEDCO
PROCEEDINGS No.15 dated 26.05.2021 confirming the order of the second
1/15
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and W.M.P.No.13249 of 2021
respondent dated 16.10.2020 Vide (PER) CMD TANGEDCO
PROCEEDINGS No.170 and consequently direct the respondent-3 to post
the petitioner in the rank of Asst.Executive Engineer at Taramani or in any
other place within the Circle within time frame.
For Petitioner : Mr.K.Raviananthapadmanaban
For Respondents : Mr.P.Subramanian,
Standing Counsel
ORDER
The writ petitioner is challenging the order passed by the Original
Authority dated 16.10.2020 and also the order passed by the Appellate
Authority dated 26.05.2021.
2.Brief facts of the case:
(a).On 28.10.2020, the respondents have framed the following charges
as against the petitioner:
“Charge – I: It is brought to notice that in Pallikaranai
Section/Medavakkam Sub-division of Tambaram Division 219
applications (Tariff I-A.3 phase-218 Nos and Tariff V.3 phase –
1.No.) were processed for effecting service connections to
M/s.Casa Grande Apartment/Pallikaranai. The demand load
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for the 219 applications were 3830 KW (214x17KW + 3x40KW
+ 1x24 KW + 1x48KW). But the estimates were sanctioned for
1781 KW (217x8KW + 1x25KW + 1x20KW) by reducing the
demanded load. The C.C.D and D.C. amount were collected for
1781 KW instead of demanded load of 3830 KW, thereby caused
loss to the Board to the tune of Rs.12,33,400/- as detailed in
Annexure-II.
Charge – II: Further, the entire building was constructed
without the temporary supply and carried out using the single
phase commercial service.”
(b).The petitioner has submitted his explanation to the second
respondent on 12.06.2011 and also participated in the enquiry proceedings.
The enquiry officer submitted a report on 22.08.2012 to the first
respondent/disciplinary authority. Pursuant to the enquiry officer's report the
first respondent has served notice to the petitioner, to submit his explanation
on 17.06.2013, the petitioner has submitted his explanation to the first
respondent, however, on 16.10.2020, the second respondent has passed final
order by imposing the punishment of reducing the petitioner's rank from AEE
to AE for a period of three years and the said punishment order was
implemented by the order of the third respondent dated 17.11.2020.
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W.P.No.12465 of 2021
and W.M.P.No.13249 of 2021
Challenging the aforesaid punishment order, the petitioner has preferred a
writ petition in W.P.No.18043 of 2020 before this Court and by order dated
16.12.2020, this Court has directed the petitioner to exhaust the alternative
remedy by way of appeal and on appeal to Hon'ble Division Bench of this
Court, the order of the learned Judge was confirmed in W.A.No.334 of 2021
vide order dated 28.12.2020 except the period to prefer an appeal, the learned
single Judge's order was not modified. Hence, the petitioner had preferred an
appeal before the TANGEDCO BOARD and by an order dated 26.05.2021,
the first respondent has confirmed the order of the second respondent dated
16.10.2020 and it was served on the petitioner on 04.06.2021. Challenging
the above said punishment order, the present writ petition has been filed.
3.The learned counsel appearing for the petitioner would submit that
the same charges have been framed against the similarly placed delinquents
viz., one G.Perumalsami, who is Superintending Engineer and one
E.Shankar, who is Commercial Inspector and one Rajenhiran, who is
Assistant Executive Engineer and thereafter, the charges framed against them
were dropped by the respondents, but without considering the said fact, the
second respondent has passed impugned order of punishment as against the
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W.P.No.12465 of 2021
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petitioner and further submitted that for the aforesaid charges the rank of the
petitioner was reduced from Assistant Executive Engineer to Assistant
Engineer for a period of three years. Further, the petitioner has disputed the
above said charges levelled against him by his explanations before the
authority, but his explanation has not been considered in a proper
prospective. Further, both the original authority and the appellate authority
have accepted the enquiry officer's report and without any reason or any
findings, the authorities had come to the conclusion by rejecting the
explanations of the petitioner and had issued impugned punishment order.
Imposing the order of punishment violates the principles of natural justice
and. Therefore, the aforesaid order passed by the second respondent is liable
to be set aside on the ground that the said order is non speaking and cryptic
order. Hence, the said order is liable to be set aside.
4.The learned Standing Counsel appearing for the respondents
submitted the counter filed by the respondents and stated that based on the
relevant materials and documents, the said impugned punishment order has
been passed by the second respondent and the same has been confirmed by
the first respondent and the relevant portion is extracted as follows:
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“4.Accordingly, Thiru R.Rukmangathan, then Assistant
Executive Engineer/O&M/Medavakkam (now Assistant
Executive Engineer/Shift/ Taramani 230 KVSS) is awarded the
punishment of “Reduction to a lower rank as Assistant Engineer
with minimum pay in the level 1 of officers Pay matrix” for the
period of three years (excluding the period if any spent on
leave) as a measure of penalty. Thiru R.Rukmangathan, then
Assistant Executive Engineer/O&M/Medavakkam (now
Assistant Executive Engineer/ Shift/ Taramani 230 KVSS) is
informed that appeal if any, against the above punishment lies
with the Board and the same may be preferred within one month
from the date of receipt of this proceedings.”
5.Further, it is stated that the explanation for the aforementioned
charges on the petitioner has been considered but he has not adduced the
ground for consideration and the same was devoid of merits. Therefore, the
charges framed against the petitioner were proved and accordingly, the
second respondent has passed punishment order as against the petitioner.
The appellate authority/first respondent has also confirmed the said order
without giving any reason or finding that they independently come to the
conclusion for awarding the punishment to the petitioner and therefore, the
impugned order is perfectly valid and does not warrant any interference.
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6.I have anxiously considered the submissions made by both sides and
perused the materials available on record.
7.The point for consideration is whether the impugned order passed by
the second respondent/disciplinary authority and confirmed by the first
respondent/appellate authority, without considering the grounds raised by the
petitioner is perfectly valid in law?
8.The grievance of the petitioner is that though he has raised several
grounds, the second respondent/appellate authority without considering the
said grounds in proper perspective, has passed a cryptic, non-speaking order
and there is also a violation of principles of natural justice, on account of
non-furnishing the documents to effectively, adjudicate the matter before the
second respondent and the said impugned punishment order has also been
confirmed by the first respondent also.
9.This Court in the case of C.Devendhiran Vs. The Deputy Inspector
General of Police, Villupuram Range (W.P.No. 150 of 2013) reported in
2020 (2) WLR 332, had an occasion to deal with the same issue in detail and
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and W.M.P.No.13249 of 2021
held that the order passed by the appellate authority is a cryptic/non-speaking
order. The relevant portion of the order is extracted hereunder;
“13. The Learned Senior Counsel for the Writ
Petitioner has relied upon the decision reported in 1989 writ
law reporter 274 considered rule 6(1) of TNPSS (D&A) Rules
and it has been held as follows at para 3 and 4 of the said
judgment.
"The rule enjoins the concerned authority to consider the
three aspects set out therein specifically. Unless the appellate
authority considers them it cannot be said that it has carried
out its duties properly. The Supreme Court had occasion to
discuss a similar question under R.27(2) of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965.
Dealing with the word 'consider' used in the said rule, the
Supreme Court observed that the word 'consider' implies due
application of mind-vide R.P.Bhatt v. Union of India. The
following paragraph in the above judgment of the Supreme
court can be usefully referred to with advantage-
"The word 'consider' in R.27(2) implies 'due application of
mind'. It is clear upon the terms of R.27(2) that the appellate
authority is required to consider (1) whether the procedure
laid down in the Rules has been complied with; and if not,
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whether such non-compliance has resulted in violation of any
provisions of the Constitution or in failure of justice; (2)
Whether the findings of the disciplinary authority are
warranted by the evidence on record; and (3) Whether the
penalty imposed is adequate and thereafter pass orders
confirming, enhancing etc, the penalty, or may remit back the
case to the authority which imposed the same. R27(2) casts a
duty on the appellate authority to consider the relevant factors
set forth in clauses (a), (b) and (c) thereof.
There is no indication in the impugned order that the Director
General was satisfied as to whether the procedure laid down
in the Rules had been complied with and if not, whether such
non-compliance had resulted in violation of any of the
provisions of the Constitution or in failure of justice. We regret
to find that the Director General has also not given any
finding on the crucial question as to whether the findings of
the disciplinary authority were unwarranted by the evidence
on record. It seems that he only applied his mind to the
requirement of clause (2) of R.27(2) viz., whether the penalty
imposed was adequate or justified in the facts and
circumstances of the present case. There being non-
compliance with the requirements of R.27(2) of the Rules the
impugned order passed by the Director General is liable to be
set aside."
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14. In another judgment of this Court in the case of
K.Kandasamy Vs. Deputy I.G. of police, reported in 2006 (4)
MLJ 1382 in para 7, this Court has held as follows :-
“It is seen from the aforesaid portion of the impugned
order that the Appellate Authority did not deal with any of the
grounds of appeal raised by the petitioner. A departmental
appeal is a continuation of the original proceedings. It is
needless to point out that the last opportunity available for a
delinquent, to canvass his case on merits, is at the appellate
stage. After the appeal, a delinquent loses his right to
challenge any disciplinary proceedings on merits, since the
scope of interference on a revision or on a writ petition is very
limited. Therefore, the rules themselves contemplate Appellate
Authorities to go into the factual details and consider all the
grounds of appeal before deciding an appeal. Unfortunately,
the first respondent has chosen to dismiss the appeal by a non-
speaking order and hence, the Appellate Authority's order is
liable to be set aside.”
15. It is also pertinent to refer the Judgment of the
Hon'ble Supreme Court in Narinder Mohan Arya Vs.United
India Insurance Company Ltd, reported in 2006(4) SCC
713,wherein the Hon'ble Supreme Court has held that even
when an Appellate Authority agrees with the findings of the
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Disciplinary Authority in a departmental enquiry, it should
give reasons so as to enable the Writ Court to ascertain there
was an application of the mind as required by the relevant
rules. The relevant portion is extracted hereunder;
“33. An appellate order if it is in agreement with that of
the disciplinary authority may not be a speaking order but the
authority passing the same must show that there had been
proper application of mind on his part as regard the
compliance of the requirements of law while exercising his
jurisdiction under Rule 37 of the Rules.”
16. In view of the decisions cited supra and Rule 6(1) of
Tamil Nadu Police Subordinate Service (Discipline & Appeal )
Rules, it is clear that the appellate authority is the final fact
finding authority and he is expected to assess the evidences
available on record by due application of mind and also
record the reasons even though not elaborately, but indicating
as to how the appellate authority has satisfied himself with the
reasons given by the disciplinary authority. When Rule 6 (1) of
Tamil Nadu Police Subordinate Service (Discipline & Appeal )
Rules mandates that the appellate authority should consider
all those materials, in the instant case, no such finding has
been given by the appellate authority except simply saying
that he has perused some documents and came to the
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conclusion that the punishment awarded by the 1st respondent
is not an excessive and rejected the same.
17. Considering the facts and circumstances of the case
and also the decisions rendered by the Hon'ble Supreme Court
and this Court cited supra, this Court with no hesitation, has
come to the conclusion that the second respondent/ appellate
authority has passed a cryptic order/non-speaking order
without considering the issues that were raised by the
petitioner in his Appeal. As rightly pointed out by the learned
senior counsel for the petitioner, the order of the appellate
authority/ 2nd respondent is not in conformity with the rule
6(1) of TNPSS (D&A) Rules.
18. In fine, the impugned order in RC.
No.047950/AP1(2)/2000, dated 03.07.2010 passed by the
second respondent in respect of P.R. No. 67/ 2009 is quashed
and the matter is remitted to second respondent to consider
afresh and to pass orders thereon, on merits and in
accordance with law, within a period of twelve (12) weeks
from the date of receipt of the copy of this order.
19. With the above observations and directions, this writ
petition is disposed of. No costs.”
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10.In view of the above this Court finds that there is no such reasoned
order passed by the disciplinary authority and the appellate authority and
hence, the same is liable to be set aside.
11.Considering the facts and circumstances of the case and also
considering the fact that the said punishment order is a cryptic and non
speaking order, this Court come to the conclusion that the said punishment
order passed by the disciplinary authority viz., second respondent dated
16.10.2020 Vide (PER) CMD TANGEDCO PROCEEDINGS No.170 as well
as confirmed by the first respondent Vide (PER) FB TANGEDCO
PROCEEDINGS No.15 dated 26.05.2021, is unsustainable and therefore, the
impugned punishment order is quashed and the same is remitted back to the
second respondent to consider afresh and pass appropriate reasoned orders,
after following the procedures as contemplated under the regulations and the
rules and the said exercise shall be completed as early as possible preferably
within a period of four months from the date of receipt of a copy of this
order. It is also open to the petitioner to furnish additional particulars, if any,
the same shall be submitted, within a period of two weeks from the date of
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receipt of a copy of this order. Further, the parties are directed to maintain the
status-quo as on today.
12.With the above directions, this writ petition stands allowed. No
costs. Consequently, connected Miscellaneous Petition is closed.
25.04.2022
Index : Yes / No
Internet : Yes / No
dua
To
1.Tamilnadu Generation and Distribution
Corporation Limited [TANGEDCO] Board,
represented by its Chairman – Cum – Managing Director, Anna Salai,
Chennai – 600 002.
2.The Chairman – cum – Managing Director,
TANGEDCO,144, Anna Salai, Chennai – 600 002.
3.The Chief Engineer,
Distribution South, TANGEDCO, Chennai – 2.
4.The Superintending Engineer,
CEDC/SOUTH-II, K.K.Nagar, Chennai – 600 078.
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W.P.No.12465 of 2021
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D.KRISHNAKUMAR. J
dua
W.P.No.12465 of 2021
and W.M.P.No.13249 of 2021
25.04.2022
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