A.K. Thiruvikraman vs The Superintending Engineer, Office of the Superintending Engineer Office, The Chief Engineer/Transmission, Tamilnadu Electricity Board and The Chairman, Tamilnadu Electricity Board

K.N. Basha, J.—The challenge in this writ petition is to the proceedings of the first respondent herein in Memo No. Adm/JA2/F:DP/PR.

No. 86/98 resulting in the order dated 1.6.1998 and also that of the 2nd respondent herein in his proceedings in Memo No.

117095/CE/TR/PA/S/A1, dated 06.11.1998 and his proceedings in LR. No. CE/TR/PA/A5/99-1, dated 26.11.1999 and of the third respondent

herein in his proceedings in Permanent B.P.(Ch.) No. 122, dated 24.3.1999 by which the 1st respondent�s order was confirmed.

The case of the petitioner is that he was working as a Senior Draftsman, Ennore Thermal Power Station and now he reached superannuation.

The petitioner stated that while he was working at Salem General Construction Circle under the first respondent, he obtained loan for construction

of a building. The petitioner submitted that the said loan was also sanctioned by mortgaging the property with the Tamil Nadu Electricity Board. It

is submitted by the petitioner that during the course of registration of the mortgage before the Sub-Registrar at Sub-Registrar''s Office, Villupuram,

on instructions of the Sub-Registrar, certain corrections were made by the petitioner in the presence of the Sub-Registrar. Thereafter, the said

conduct of the petitioner making corrections in the said document brought to the notice of the first respondent which resulted in initiating

disciplinary proceedings and ultimately after enquiry, the enquiry officer recommending for the punishment of demotion of the petitioner for a period

of two years from the post. The petitioner submitted his explanation and in view of the same, the proposed punishment was modified to the effect

that of the increment of the petitioner to be stopped for a period of two years with cumulative effect. The petitioner challenged the said order by

filing an appeal before the second respondent herein. But the second respondent has not passed any order on such appeal, for a long time and as a

result, the petitioner has been constrained to issue a legal notice to the second respondent on 15.11.1999 and thereafter, received a reply from the

second respondent dated 26.11.1999 informing that the appeal preferred by the petitioner was already rejected by the second respondent. Being

aggrieved against such order, the present writ petition is filed.

3.1. The learned Counsel for the petitioner contended that the charges levelled against the petitioner are baseless. It is contended that the petitioner

has not committed any serious offence and he has only carried out certain corrections as per the instructions of the Sub-Registrar. It is submitted

that even the said corrections made by the petitioner were also brought to the notice of the first respondent. The learned Counsel for the petitioner

would further contend that even the first respondent sent a rectification deed, but the Sub-Registrar stated that the same is not required. The

learned Counsel for the petitioner would further contend that the second respondent, who is the appellate authority, without giving any personal

hearing or any opportunity to put forth the contentions of the petitioner herein mechanically and arbitrarily passed the impugned order dated

06.11.1998 rejecting the appeal of the petitioner merely stating that the appeal is barred by limitation. It is submitted by the learned Counsel for the

petitioner that the order of the first respondent dated 01.06.1998 was received by the petitioner only on 11.06.1998 and thereafter, the appeal

was preferred on 23.07.1998. It is submitted that the period of 30 days was fixed by the first respondent for preferring the appeal in the impugned

order dated 01.06.1998. It is contended that even assuming if there is any delay, it is only few days and for such lapse on the part of the petitioner,

his appeal itself ought not to have been rejected and on the other hand, the appellate authority could have given opportunity to the petitioner to file

a petition to condone such delay.

3.2. It is further submitted by the learned Counsel for the petitioner on instructions from the petitioner that the first respondent himself sent the

rejection of appeal filed by the petitioner herein acting as a second respondent as he has been promoted subsequently, and as such it is in clear

violation of principles of natural justice. Therefore, it is submitted that the impugned order passed by the respondents herein are liable to be set

aside.

Per contra, learned Counsel for the respondents contended that there is no illegality in passing the impugned order by the respondents herein. It

is submitted that the first respondent after following the procedure and giving effective opportunity to the petitioner herein passed the impugned

order dated 01.06.1998 and as such there is no violation of principles of natural justice. The learned Counsel for the respondents would further

contend that as far as the appellate authority is concerned, the appeal preferred by the petitioner was rejected on the ground of limitation as the

petitioner not preferred the appeal within the period of 30 days. It is contended that as per the rules and regulations of the Tamil Nadu Electricity

Board, the statutory appeal should be preferred within a period of 30 days and as such the time barred appeal was rightly rejected by the second

respondent herein. The learned Counsel for the respondents would further contend that in view of the impugned order passed by the second

respondent after giving effective opportunity to the petitioner and even the punishment also subsequently modified, the petitioner has no ground to

challenge the said order of awarding the punishment and subsequently, modifying the punishment. It is contended that the petitioner has not made

any legal ground warranting the interference of this Court for disturbing the order passed by the respondents herein.

I have carefully considered the rival contentions put forward by either side and also perused the materials available on record including the

impugned orders passed by the respondents herein.

The fact remains from the perusal of the impugned order passed by the first respondent dated 01.06.1998 that the enquiry was conducted as an

ex-parte enquiry by the first respondent. It is pertinent to note from the perusal of the said order that the petitioner sought for an adjournment

before the Enquiry Officer on 08.01.1998 on the ground that the Union representative was not well. But the Enquiry Officer having received such

request at 10.45 a.m., proceeded with the enquiry without the presence of the petitioner herein by examining the witnesses produced on the side of

the management. It is seen that the enquiry officer on the basis of the witnesses examined on the side of the management and on perusal of the

records held that the charges are proved against the petitioner herein. It is also seen that the first respondent on perusal of such report of the

enquiry officer issued a show cause notice by proposing the punishment to the effect of demotion to the lower post for a period of two years and

the petitioner has not acknowledged such receipt of show cause notice. However, it is alleged by the first respondent that the petitioner sent a reply

to the said show cause notice and on consideration of the same, he passed the final order modifying the punishment to the effect that the annual

increment of the petitioner will be stopped for a period of two years with cumulative effect. This Court is of the considered view that the first

respondent passed the impugned order dated 01.06.1998 in flagrant violation of the principles of natural justice. It is pertinent to note that the first

respondent mainly placed reliance on the statements or evidence given by the management witnesses behind the back of the petitioner herein. It is

seen from the impugned order itself that the petitioner sought for an adjournment on 08.01.1998 and after having rejected the said request the

enquiry officer proceeded with the enquiry in the absence of the petitioner by recording the evidence of the prosecution witnesses behind the back

of the petitioner.

Now coming to the impugned order passed by the second respondent dated 06.11.1998, it is seen that the second respondent passed a cryptic

order to the effect that the appeal was barred by limitation. A perusal of the materials discloses that the impugned order passed by the first

respondent was received by the petitioner herein on 11.06.1998 and thereafter, the petitioner sought for extension of time to prefer an appeal on

13.07.1998 and ultimately, filed the appeal on 23.07.1998. But the second respondent even without giving any opportunity by returning the appeal

to file with condonation of delay petition straight away thought it fit to dismiss the appeal itself. It is pertinent to note that the first respondent after

passing the impugned order dated 01.06.1998 signing the said order on 02.06.1998 subsequently, promoted as the Chief Engineer (Transmission),

and as a Chief Engineer and the appellate authority, the very same officer, the second respondent herein, passed the impugned order on

06.11.1998. Therefore, it is crystal clear that the same officer as the original as well as the appellate authority considered the matter and passed the

impugned orders. It is well settled that a officer, who has passed the original order cannot consider that matter by himself subsequently acting as

appellate authority which would result in grave miscarriage of justice. Therefore, this Court is of the considered view that both the impugned orders

are untenable and liable to be set aside.

Yet another important factor to be borne in mind by this Court is to the effect that even the charge framed against the petitioner is not only flimsy

but also baseless. At the risk of repetition, it is to be reiterated that the charge is only in respect of making certain corrections in the mortgage deed

and even the said corrections were made at the instance of the Sub-Registrar at the Sub-Registration office. The respondents also not denied the

specific averment made by the petitioner to the effect that even the respondents board presented a rectification deed before the Sub-Registrar, but

the same was returned as the same is unnecessary. Added to all these admitted facts, the board has also not suffered any loss on account of the

alleged corrections made by the petitioner herein in the mortgage deeds as it is not disputed that the petitioner settled the entire dues. Such being

the position, this Court is of the considered view that there is absolutely no basis or any prima facie materials to establish that the petitioner has

committed any misconduct and as such the entire proceedings is vitiated.

In view of the foregoing reasons, the writ petition is allowed and the impugned orders dated 01.06.1998 passed by the first respondent herein in

Memo No. Adm/JA2/F:DP/PR. No. 86/98 and the order of the second respondent herein in his proceedings in Memo No.

117095/CE/TR/PA/S/A1, dated 06.11.1998 are hereby quashed. No costs.

As it is represented by the learned Counsel for the respondents that the order dated 24.03.1999 passed by the third respondent herein is

relating to a separate charge, it is made clear that the said order cannot be quashed in this writ petition and it is open to the petitioner to challenge

the same in accordance with law.