Madras High Court
M.Masilamani vs The Chief General Manager (P & A) on 31 January, 2025
W.P. No.28194 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 02.09.2024 Pronounced on : 31.01.2025
CORAM :
THE HONOURABLE MR. JUSTICE MUMMINENI SUDHEER KUMAR
W.P.No.28194 of 2011
M.Masilamani ... Petitioner
Vs.
1.The Chief General Manager (P & A)
Neyveli Lignite Corporation Ltd.,
Block-I, Neyveli.
2.The Deputy Chief Manager ( P & A)
Neyveli Lignite Corporation Ltd.,
Block-I, Nyeveli. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of Writ of Certiorarified Mandamus calling for records
relating to orders made in (i) Memo No.082/GM(CP&SM)/SM/D.A/2006
dated 12.1.2006 of the General Manager, (ii) the Appellate Authority's
proceedings No.D(P&P)/017/2006 dated 21.2.2006, (iii) Chariman-cum-
Manging Director's order in Procs.NLC/CMD/121/06 dated 31.7.2006 and
(iv) Chief General Manager's memo No.1980/CGM(P&A)/2010 dated
15.6.2010 and (v) The Deputy Chief General Manager's
Lr.No.CORP/P&A/DA/1647/2010 dated 08.10.2010, to quash the same and
consequently reinstate the petitioner with all benefits both service and
monetary.
Page No.1 of 20
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W.P. No.28194 of 2011
For Petitioner : Mr.P.V.S.Giridhar, Senior Counsel
for M/s.Giridhar and Sai
For Respondents : Mr.N.Nithianandam
ORDER
Heard Mr.P.V.S.Giridhar, learned Senior Counsel for M/s.Giridhar
and Sai, learned counsel for the petitioner and Mr.Nithianandam, learned
counsel for the respondent Corporation.
2. The brief facts that are relevant for disposal of this writ petition
are as under:
2.1. The petitioner herein was initially appointed as Graduate
Engineer Training on 06.04.1987 in the respondent Corporation and then, he
was promoted to the post of Assistant Executive Engineer, Executive
Engineer, Deputy Superintendent and Deputy Chief Engineer in the years
1990, 1995, 1997 and 2003 respectively.
2.2. While the petitioner was working as Deputy Chief Engineer, he
was subjected to disciplinary proceedings by placing him under suspension
on 11.06.2005 on the ground that the petitioner was involved in a criminal
case. It was thereafter, a charge memo dated 23.06.2005 was issued to the
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petitioner containing a solitary charge, which reads as under:
“CHARGE:
That the said Shri.M.Masilamani, CPF.No.32170,
while functioning as Dy. Chief Engineer/Mech, System
Monitoring Department, CTO Building, at around 17-45
hrs on 10.06.2005, near CISF Office situated in the
Jawaharlal Nehru Salai in Block-16, Neyveli Township,
assaulted Smt. P.Janaki, JPO/Contracts Branch,
Corporate Office, NLC Limited, Neyveli, molested here and
outraged her modesty. During the above said acts,
Shri.M.Masilamani caused bruises and bodily injuries on
Smt.P.Janaki.
The above said acts of Shri.M.Masilamani constitute
misconducts under Rule 26 (xiv) – Assaulting an employee
of the Company and Rule 26(xxxi) – indulging in sexual
harassment of a woman working in the Company, besides
being violative of Rule 3.1 [iii] & [iv] of the NLC
Employees' [Conduct] Rules.”
2.3. It was thereafter, an enquiry officer was appointed to enquire
into the charge against the petitioner and the enquiry officer, after having
conducted an enquiry into the matter, submitted his report on 03.11.2005.
The said report of the enquiry officer was communicated to the petitioner on
10.11.2005, and on receipt of the objections dated 21.11.2005 submitted by
the petitioner, a provisional show cause notice dated 15.12.2005 was issued
proposing to impose the punishment of removal from service. It was
thereafter, on considering the reply submitted by the petitioner on 31.12.2005
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and 02.01.2006, the disciplinary authority, through proceedings dated
12.01.2006, imposing the punishment of removal from service with effect
from 10.06.2005. Aggrieved by the same, the petitioner filed an appeal
before the appellate authority on 23.01.2006. The said appeal was rejected
by the appellate authority by passing an order dated 21.02.2006. Thereafter,
though a review was filed under Rule 32 of the NLC Employees (Control and
Appeal) Rules, the same was refused to be entertained with by passing an
order dated 31.07.2006.
3. As already noted above, the petitioner was involved in a criminal
case on 10.06.2005, and the said criminal proceedings proceeded
simultaneously along with the departmental proceedings against the
petitioner. After the rejection of the review, by order dated 31.07.2006, the
petitioner has not taken any further steps against the order of punishment of
removal from service for about three years. In the meanwhile, the petitioner
was acquitted in the criminal proceedings vide S.C.No.94 of 2006 on the file
of the Assistant Sessions Court, Neyveli by a judgment dated 14.04.2009.
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4. It was thereafter, the petitioner submitted representations dated
30.10.2009 and 03.04.2010 before the Chairman-cum-Managing Director of
the respondent Corporation requesting for reinstatement into service by
placing reliance on the acquittal in the criminal proceedings. The said
representations submitted by the petitioner were considered by the Chairman-
cum-Managing Director and rejected by the 1st respondent by passing an
order dated 15.06.2010. Thereafter, the petitioner submitted yet another
representation dated 06.09.2010, and the said representation was also rejected
by passing another order dated 08.10.2010. It was thereafter, in the month of
December 2011, the petitioner approached this Court by filing the present
writ petition challenging the original order of punishment passed by the
disciplinary authority as well as the order passed by the appellate authority
and the orders passed by the respondents dated 15.06.2010 and 08.10.2010.
5. Mr.P.V.S.Giridhar, learned Senior Counsel for M/s.Giridhar and
Sai, learned counsel appearing for the petitioner contended that the enquiry
that was conducted against the petitioner was in violation of the principles of
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natural justice, as the petitioner was not afforded any opportunity to cross
examine the witnesses, whose statements were relied upon by the enquiry
officer as well as the disciplinary authority for holding the charge proved
against the petitioner. He also further contended that the enquiry officer has
allowed various documents to be brought on record without examining the
authors or the persons connected with those documents, and no opportunity
was afforded to cross-examine the said witnesses. He also further contended
that the enquiry officer having accepted the evidence of the Management
witnesses while rejecting the evidence of the witnesses examined on behalf
of the petitioner in an arbitrary manner and without assigning any sufficient
reasons. He also further contended that the charges that are levelled against
the petitioner in the disciplinary proceedings as well as the criminal
proceedings are almost identical and the evidence that was adduced is also
identical in nature and therefore, consequent upon the acquittal of the
petitioner in the criminal proceedings, the findings recorded in the
departmental proceedings cannot be allowed to be sustained. In support of
his contention, he also placed reliance on various decisions of the Hon'ble
Apex Court i.e, 1968 SCC Online SC 56 equivalent to AIR 1969 SC 983 in
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the case of Central Bank of India Limited Vs. Prakash Chand Jain, AIR 1978
SC 1277 in the case of Nand Kishore Prasad Vs. The State of Bihar,
MANU/SC/1628/2006 in the case of A.Sudhakar Vs. Post Master General,
Hyderabad, AIR 1972 SC 330 in the case of M/s.Bareilly Electricity Supply
Co.Ltd., Vs. The Workmen, (1999) 7 SC 739 in the case of Yoginath D.Bagde
Vs. State of Maharashtra, (2008) 8 SCC 236 in the case of State of
Uttaranchal & Others Vs. Kaharak Singh.
6. On the other hand, Mr.Nithianandam, learned counsel appearing
for the respondent Corporation contended that the entire enquiry that has
been conducted against the petitioner is strictly in accordance with the Rules
and after complying with the principles of natural justice, and the entire
evidence that was brought on record was properly appreciated by the enquiry
officer as well as the disciplinary authority. He also further contended that
this Court cannot act as an appellate authority to re-appreciate the evidence
brought on record and the scope of interference by this Court is very limited.
He also further contended that the charge in the departmental proceedings is
with regard to misconduct under the Conduct Rules and whereas, the criminal
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proceedings are totally on different footing and therefore, the mere acquittal
in the criminal proceedings will not have effect of annulling the findings
recorded in the departmental proceedings. In support of his contention, he
also relied upon the decision of the Hon'ble Apex Court reported in 2024
SCC Online SC 1908 in the case of State of Rajasthan and others Vs.
Bhupendra Singh, (2024) 1 SCC 175 in the case of Ram Lal Vs. State of
Rajasthan, 2022 Live Law (SC) 304 in the case of The State of Karnataka &
Anr. Vs. Umesh and 2023 Live Law (SC) 478 in the case of The Indian Oil
Corporation & Ors. Vs. Ajit Kumar Singh & Anr..
7. This Court has carefully considered the submissions made on
either side and also perused the entire material on record.
8. As already noted above, the punishment that was imposed on the
petitioner through proceedings dated 12.01.2006 is confirmed by the
appellate authority and reviewing authority on 21.02.2006 and 31.07.2006
respectively, and the petitioner has not taken any steps to challenge the said
punishment till December 2011. However, after the petitioner was acquitted
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in the criminal proceedings, the petitioner submitted representations seeking
reinstatement in the year 2009 and 2010 while allowing the order of
punishment to operate. It is only on rejection of the said representations for
reinstatement, the petitioner has chosen to file the present writ petition
challenging the original order of punishment dated 12.01.2006, as confirmed
through appellate and reviewing authorities, in the month of December 2011
i.e., almost after a lapse of more than five years.
9. Be that as it may, in the facts and circumstances of the present
case, this Court is inclined to examine the matter on merits in the interest of
justice. Though elaborate arguments were advanced on the defects and
pointing out the defects in the manner in which the enquiry was conducted
against the petitioner by the enquiry officer, this Court does not deem it
necessary to consider all the aspects in elaborate and would suffice if one
such aspect is considered. The enquiry officer has relied upon the Ex.P1 to
Ex.P5 that is the report of preliminary enquiry conducted against the
petitioner and the statements of four persons namely Mrs.Visalakshi,
Shri.Chellappan, Shri Chinnathambi and Shri.Gunasekaran for holding the
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charge as proved against the petitioner, without affording any opportunity to
the petitioner to cross-examine the persons who made such statements/report.
10. From a perusal of the enquriy officer's report, it is evident that
said Ex.P1 to Ex.P5 were relied upon by the enquiry officer to conclude that
the charge against the petitioner was proved. The relevant paragraph from
the report of the enquiry officer reads as under:
“14. The motive for the CSO Shri.M.Masilamani for
harassing, hurting and humiliating Smt.P.Janaki with
sexual motive has been proved from the evidence of
Smt.P.Janaki and also from the Exhibits P1 to P5.”
11. It is not in dispute that the above said four persons whose
statements in Ex.P2 to Ex.P5 were made basis for concluding that the charge
has proved against the petitioner, were not examined during the course of
enquiry by the enquiry officer nor the petitioner was afforded any opportunity
to cross-examine those witnesses. It is no doubt that the strict rules of
evidence are not applicable to the departmental proceedings, but it is settled
law that the same does not mean that the enquiry can be conducted in gross
violation of basic principles of natural justice. In this connection, it would be
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relevant to refer to the decisions of the Hon'ble Apex Court in the case of
Central Bank of India Limited Vs. Prakash Chand Jain reported in 1968
SCC Online SC 56. Wherein, the Hon'ble Apex Court at paragraph No.9
held as under:
“It is in this connection that importance, attaches to
the views expressed by this Court in the cases cited above
where it was pointed out that a finding of a domestic
tribunal may be perverse if it is not supported by any legal
evidence. It is true that, in numerous cases, it has been held
that domestic tribunals, like an Enquiry Officer, are not
bound by the technical rules about evidence contained in
the Indian Evidence Act; but it has nowhere been laid
down that even substantive rules, which would form part of
principles of natural justice, also can be ignored by the
domestic tribunals. The principle that a fact sought to be
proved must be supported by statements made in the
presence of the petitioner against whom the enquiry is held
and that statements made behind the back of the petitioner
charged are not to be treated as substantive evidence, is
one of the basic principles which cannot be ignored on the
mere ground that domestic tribunals are not bound by the
technical rules of procedure contained in the Evidence Act.
In fact, learned counsel for the appellant Bank was unable
to point out any case at all where it may have been held by
this Court or by nay other Court that a domestic tribunal
will be justified in recording its findings on the basis of
hearsay evidence without having any direct or
circumstantial evidence in support of those findings.”
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12. As already noted above, in the instant case, no opportunity was
afforded to the petitioner to cross-examine the persons who made the
statements marked as Ex.P2 to Ex.P5. Therefore, under no circumstances, it
can be said that the enquiry officer has followed the basic principles of
natural justice, while conducting the enquiry against the petitioner. On this
ground alone, the impugned punishment of removal from service against the
petitioner is liable to be set aside., as the same was imposed solely basing
upon the report of the enquiry officer.
13. The next question that would fall for consideration is whether
the impugned punishment is liable to be set aside on the ground that the
petitioner was acquitted in the criminal proceedings. No doubt, the basis for
initiating the disciplinary proceedings against the petitioner by placing him
under suspension on 11.06.2005 was his involvement in a criminal case. The
charge against the petitioner in the criminal proceedings is on the ground of
assault and outraging the modesty of women. The departmental proceedings
initiated against the petitioner, though basing upon the very same facts as that
of the criminal proceedings, there is slight difference. The departmental
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proceedings are mainly on the ground of assaulting the co-employee of the
petitioner and outraging her modesty amounting to misconduct under Rule 26
(xiv) and Rule 26 (xxxi) causing sexual harassment of women working in the
company of NLC. Therefore, it cannot be said that the charges that are
levelled against the petitioner in the criminal proceedings are identical to the
charges that are levelled against the petitioner in the departmental
proceedings. In the light of the above conclusion arrived at by this Court, it
is necessary to refer to various decisions relied upon by the learned counsel
on either side, on this aspect.
14. Then, the next question that would fall for consideration is as to
what relief the petitioner is entitled to. In this connection, it is necessary to
notice that, the petitioner after having been removed from service in the year
2006, he has been out of service and during the pendency of the present writ
petition, the petitioner also has attained the age of superannuation. In the
normal course, this Court, after having found fault with the enquiry
proceedings, would remand the matter back to the disciplinary authority for
rectifying the defects in the enquiry and to re-do the entire exercise. But
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considering the fact that the petitioner has already attained the age of
superannuation and the matter happens to be of two decade old coupled with
certain other facts of the case which are noted herein below, this Court is not
inclined to remand the matter back to the disciplinary authority and instead,
is of the considered view that the matter should be put at rest at this stage
itself.
15. On perusal of the material on record, it is noticed that though the
petitioner claims to be an innocent and not guilty of the charge levelled
against him in disciplinary proceedings, this Court is not in a position to
appreciate and accept the same. It is not as if the petitioner is falsely
implicated in the issue. But, on the admission of the petitioner himself, there
is enough material on record to show that all is not well with the petitioner,
and this Court is also not in a position to find fault with the ultimate
conclusion arrived at by the disciplinary authority to sent the petitioner out of
the organization. In this connection, it would be relevant to extract certain
portions from the explanation dated 20.07.2005 submitted by the petitioner,
in response to the charge memo dated 23.06.2005 and the relevant portion of
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the said explanation reads as under:
“Previously, I was posted to work as Section-in-
charge of Purchase Section 17 and 19 at MM Complex.
The complainant Smt.Jankai JPO was posted in purchase
Section 17 and worked under my supervision and control.
Smt.Janaki freely mingle with male employees and
comment sexy jokes. Smt.Janaki started to assume towards
me a familiarity going beyond our respective official
position. One day Smt.Janaki highly embarassed me by
sitting in front of me in compromising posture, commented
sexy coloured remarks about me and made indecent
advances. She begun to nudge me and pestered me.
I politely and unmistakably rebuffed her in her
transgression of limits and admonished her misdemeanor.
Meanwhile my friends used to caution me that Smt.Janaki
is a woman of easy virtue and don't be a prey to her lust.
One day when Janaki insisted to pay a visit to her
house, Smt.Vasantha Meenakshi who passed by overheard
the conversation, severely warned me in the presence of
Sankaran, ACM not to have any contact with her and
advised me to avoid her. Not only Vasantha Menakshi,
even other female staff members speak ill of her. I felt sad
as this lady earned bad name even among the female
employees who used to advice me not to have any relations
with her.
In order to counsel her to amend her altitude
towards me, I had paid a visit to her house and expressed
my displeasure of her attitude to the husband
Shri.Krishnamoorthy and advised him to take care of her
physical and psychological needs.
It appears that Sri.Krishnamoorty, husband of
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Smt.Janaki misunderstood my good intension and nurture
ill will against me on the wild imagination that as if I
interfere in their family affairs and spread canard against
them thereby had a grudge against me.”
16. From the above, it is evident that the petitioner has visited the
house of his subordinate co-employee, Tmt.Janaki, inspite of various cautions
given by the other colleagues of the petitioner. Absolutely, this Court is not
in a position to comprehend the behaviour of the petitioner in visiting the
house of his female co-employee purportedly for the purpose of counseling
her etc. It is not as if for the first time the petitioner has acted in such a
manner. When there was some disturbance between the petitioner and the
said co-employee on an earlier occassion, both of them were transferred from
their respective posts and posted at different places. Inspite of the same,
petitioner has visited the house of Tmt.Janaki and has given a scope for such
an instance of assaulting each other in a public place. If that is the attitude of
an officer holding the post of Deputy Chief Engineer, it is no surprise the
disciplinary authority will be left with no other option except to sent such an
officer out of the organization.
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17. Added to this, the petitioner, having suffered the punishment of
removal from service as early as on 12.01.2006, and the same attained
finality on 31.07.2006, kept quite for more than five years without making
any challenge to the said order of punishment of removal from service, and
approached this Court only in the month of December 2011. In a way such
conduct of the petitioner would show that the petitioner has accepted the
punishment, and it is only after his acquittal in the criminal proceedings, he
again re-initiated the proceedings at a belated stage.
18. As already noted above, the petitioner was initially appointed in
the respondent Corporation in the year 1987 and rendered service of about 20
years, by the date of passing of the impugned order of punishment, dated
12.01.2006. The alleged misconduct of the petitioner is also not with
reference to discharge of any of his official duties, but it is with reference to
his behaviour with his co-employee amounting to misconduct under Conduct
Rules of the respondent Corporation. Undoubtedly, the continuance of the
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petitioner in the respondent Corporation would disturb the atmosphere in the
Corporation and rightly the disciplinary authority has decided to sent the
petitioner out of the organization.
19. As already noted above, the impugned order of punishment is
liable to be set aside for want of compliance with the principles of natural
justice, and this Court is not inclined to remand the matter back to the
disciplinary authority, this Court is of the considered view that it would be
appropriate to modify the punishment of removal from service to that of
compulsory retirement with effect from 10.06.2005 in the interest of justice.
20. In the light of the above, the impugned punishment of removal
from service is quashed and the same shall stand substituted with the
punishment of compulsory retirement from service with effect from
10.06.2005. Consequently, the respondents are directed to settle all the
terminal benefits payable to the petitioner consequent upon the modified
punishment as expeditiously as possible at any rate within a period of eight
weeks (8) from the date of receipt of a copy of this order.
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21. Accordingly, the writ petition is disposed of. The connected
miscellaneous petitions, if any, shall stand closed. No costs.
31.01.2025
Index : Yes/No
Speaking Order : Yes/No
dpa
To:
1.The Chief General Manager (P & A)
Neyveli Lignite Corporation Ltd.,
Block-I, Neyveli.
2.The Deputy Chief Manager ( P & A)
Neyveli Lignite Corporation Ltd.,
Block-I, Nyeveli.
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MUMMINENI SUDHEER KUMAR,J.
dpa
Pre-Delivery Order made in
31.01.2025
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