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Judgment
P. Jyothimani, J.—This writ petition is filed challenging the order of dismissal from service passed against the petitioner by the 4th
respondent under the impugned order dated 29.04.2003, as confirmed by the third respondent on appeal dated 09.09.2003 and also confirmed
by the first respondent on the review dated 11.05.2004.
The petitioner has joined the services of the Tamil Nadu Electricity Board as Tester II Grade on 04.06.1984. While he was working as Junior
Engineer, Rural Kodaikanal, he was threatened by his subordinate staff for having issued various memos in respect of their functions, which has
resulted in the complaint filed by the petitioner to the Inspector of Police under PCR Act, Dindigul and on intervention of the Executive Engineer,
the petitioner has withdrawn the said complaint on 21.08.2000. This incident has developed a ill-feeling against the petitioner in the minds of his
superiors. It was on 29.08.2000, the petitioner was issued with the charge memo with four charges, viz.,
(i) During February, 2000 he has received a sum of Rs. 3,000/- as bribe from one R.A. Antony Kurus, President, Vilpatti Panchayat for effecting
fresh connection;
(ii)While giving service connection to the house of one Mathiyalagan, he has received caution deposit and indemnity bond in spite of the fact that
the construction was put up in a poramboke land;
(iii) During April, 2000, he received a sum of Rs. 3,000/- as bribe from the consumer of service connection standing in the name of Gnanaraj and
Justin Prakash; and
(iv) During July,. 2000 he demanded and accepted a sum of Rs. 2,000/- from one Mrs. K. Chellammal, wife of Kamu to effect service
connection.
2(a). The petitioner has represented to the 4th respondent on 19.09.2000 to furnish the copies of complaints and other documents to prepare his
defence and the same was not given to him. The 4th respondent by order dated 08.11.2000, has appointed the Executive Engineer/South/Dindigul
as Enquiry Officer. The petitioner made a. representation to the Superintending Engineer on 11.06.2001, to change the Enquiry Officer on the
basis that in some other enquiry proceedings, he has conducted an ex parte enquiry, and therefore, he is biased. In spite of it, various dates were
fixed for enquiry at Kodiaikanal, when the petitioner was on leave at Madurai. The Enquiry Officer has also not produced the required documents
and no opportunity of personal appearance was given and proceeded ex parte.
2(b). On 24.11.2001, the petitioner received the Enquiry Officer''s report and also a show-cause notice. The Enquiry Officer has found that
charges 1, 3 and 4 are proved and charge No. 2 stood not proved. The petitioner has submitted his explanation on 01.02.2002 to the 4th
respondent. Without considering the same, the 4th respondent has issued a second show-cause notice on 28.06.2002. It is the case of the
petitioner that in the meantime the complainants have submitted affidavits to the 4th respondent to the effect that the petitioner has not demanded
any bribe but the statement was obtained at the instigation of some of the officers. At that stage, the petitioner has approached this Court by filing
W.P. No. 32368 of 2002, challenging the second charge memo and the said writ petition was dismissed in the admission stage. Thereafter, the
petitioner has made explanation to exonerate him from the charges. However, the 4th respondent has passed final order on 29.04.2003, dismissing
the petitioner from service.
2(c). According to the petitioner, the order of dismissal is illegal, arbitrary and violative of principles of natural justice. He has submitted an appeal
to the third respondent on 31.05.2003 and on 09.09.2003, the third respondent without giving an opportunity to the petitioner and not
appreciating the valid grounds raised by the petitioner, has dismissed the appeal. Finally, the petitioner has also filed review before the first
respondent, Chairman on 22.10.2003 and that was also dismissed on 11.05.2004. The said impugned orders are challenged by the petitioner on
various grounds stating that they are arbitrary, unreasonable and violative of principles of natural justice. That apart, the charges are vague and no
specific time or date of the alleged incident has been given. The complaints themselves have been obtained with an ill motive on 20.07.2000 and
08.08.2000, however, the charge sheet was issued on 29.08.2000, which was served on the petitioner on 19.09.2000 and the charges are
concocted and the same are in consequence to the withdrawal of the petitioner''s complaint, which he has made under PCR Act on 21.08.2000. It
is the further case of the petitioner that the complainants have not been summoned for enquiry by the Enquiry Officer and no deposition was
recorded. Neither the disciplinary authority nor the appellate authority have applied their mind before passing the impugned orders. The enquiry
itself has been conducted ex parte without giving any reasonable opportunity to the petitioner.
The respondents have filed a counter affidavit. According to the respondents, the petitioner while working as Junior Engineer Grade I in
Kodaikkanal Rural Section, has committed certain acts of misconduct, including that he demanded Rs. 3,000/- from one R.A. Antony Cruze,
Village President, Villpatti Panchayat for effecting new service connection; the petitioner did not obtain indemnity bond and additional security; he
has effected service connection in S.C.No.239 belonging to one K. Mathiyalagan, which is situated in poramboke land without following the said
procedure; he has delayed in effecting service connection in S.C. No. 316, which belongs to one Gnanaraj and the beneficiary M. Justin Prakash,
even though the application for service connection made in April,2000 since he has not paid the bribe of Rs. 3,000/- and that the petitioner has
demanded and obtained Rs. 2,500/- from one Chellammal for effecting a new service connection.
3(a). According to the respondents, the Enquiry Officer has sent summons to the petitioner to appear for the enquiry to be held on 22.03.2001,
19.04.2001, 18.05.2001, 30.05.2001 and 16.06.2001 and the petitioner did not attend the enquiry, therefore, there '' was no other option than
proceeding with the enquiry ex parte. On conclusion, the Enquiry Officer -has submitted a report on 13.07.2001, holding that except Charge No.
2, other charges stood proved. A copy of the Enquiry Officer''s report was communicated to the petitioner on 24.11.2001 and called upon the
petitioner to submit his further representation. The petitioner received the memo on 30,01,2002 and in his letter dated 31.01.2202, he has
requested 30 days time to submit his reply. On 08.02.2002, the 4th respondent has granted 20 days time and permitted the petitioner to peruse
the ''records during office hours. On 18.02.2002, the copy of the enquiry proceedings dated 16.06.2001 and copy of the depositions were
furnished to the petitioner.
3(b). Thereafter, the petitioner has submitted his further representation dated 01.03.2002. After careful consideration, the 4th respondent has
agreed with the findings of the Enquiry Officer and by memo dated 28.06.2002, called upon the petitioner to show cause as to why the provisional
punishment of dismissal from service should not be imposed on him. The petitioner submitted his explanation on 30.07.2002. In order to give
further opportunity to the petitioner, personal hearing was given to him on 10.04.2003. In the meanwhile, the writ petitioner has approached this
Court by filing writ petition No. 32368 of 2002. It was thereafter, by order dated 29.04.2003, the petitioner was dismissed from service. The
petitioner has even evaded to receive the said order, hence final order was affixed at the residence of the petitioner in the presence of two
witnesses.
3(c). It was subsequently, the petitioner has received the final order dated 25.06.2003. In the meanwhile, he has also filed an appeal to the third
respondent on 31.05.2003 and that was also rejected on 09.09.2003, after consideration of entire facts and the review filed before the first
respondent was also rejected on 11.05.2004, According to the respondents,, the petitioner was furnished with all documents and was given
sufficient opportunity to peruse the records and in spite of several opportunity given by the Enquiry Officer, the petitioner has not chosen to attend
the enquiry. The request of the petitioner to change the Enquiry Officer was rejected since the same was not genuine and there was no sufficient
reason to change the Enquiry Officer. In fact, the Enquiry Officer has given many dates to enable the petitioner to appear. The 4th respondent has
passed the order only after applying mind, considering ''the entire facts. It is also the case of the respondents that witnesses were examined to
prove the charges.
Mr. K. Venkatramani, learned senior Counsel appearing for the petitioner would vehemently submit that the enquiry itself is a farce. There was
no complaint from the concerned persons and the so-called complainants were not examined and even, assuming that the 4th respondent was
entitled to proceed with the ex parte enquiry, the enquiry must be fair. Inasmuch as the complainants have not been examined, the entire enquiry is
vitiated. According to him, the officer concerned was examined and through him the statements of the complainants were marked. In fact, the
complainants themselves have withdrawn the complaint and that has not been considered. He has also taken me to the letter of Chellammal, one of
the complainants dated 13.07.2002, in which she has stated that she was forced and the complaint was obtained against the petitioner from her
earlier threatening that otherwise electricity service connection will be disconnected. He has also submitted that even an employee I. Muthusamy,
has given a statement in the form of an affidavit dated 15.07.2002, stating that the statement against the petitioner was obtained by force. That
apart he has also referred to the statement of Justine Prakash dated 15.07.2092, wherein he has retracted the earlier complaint.
According to the learned senior Counsel, the Enquiry Officer''s report is based on the past conduct of the petitioner and that is not permissible.
He would submit that the charges are vague, for which he relied upon the judgement of the Supreme Court in State of Uttar, Pradesh v. Mohd.
Shariff (dead) through L.Rs. 1982 (2) SCC 259 . He would further submit that the documents have not been furnished to the petitioner and
therefore, the enquiry is vitiated, for which he relied upon the judgement of the Apex Court in the case of Committee of Management, Kisan
Degree College Vs. Shambhu Saran Pandey and Others, apart from the case of Kashinath Dikshita Vs. Union of India (UOI)and Others, , to
substantiate his contention that no reasonable opportunity was given to the petitioner. He would also rely upon the judgement of the Supreme
Court in the case of State of Mysore Vs. K. Manche Gowda, to substantiate that the past conduct of the delinquent can be considered only for the
purpose of imposing quantum of punishment and not for the purpose of deciding as to whether the person is guilty or not.
On the other hand, Ms. Yamuna Devi, learned Counsel appearing for the Tamil Nadu Electricity Board would submit that even a reference to
the Enquiry Officer''s report shows that the petitioner has been given all documents required and sufficient opportunity to appear and if the
petitioner failed to utilise the opportunity and appear before the Enquiry Officer, the fault is not on the part of the Board she has also submitted that
as the charges are grave in nature, serious action was taken.
I have heard the learned senior Counsel for the petitioner as also the learned Counsel for the Tamil Nadu Electricity Board, who has also
submitted the entire file relating to the enquiry and I have perused the same.
The first contention of the learned senior Counsel for the petitioner that the charges are vague is not sustainable. A reference to the charge
clearly shows that it mentions about the year of occurrence and also the names of the persons from whom the petitioner is stated to have
demanded and accepted the bribe. Charge No. 1, which relates to the allegation against the petitioner that he has demanded and obtained an
amount of Rs. 3,000/- as bribe from one Antony Cruze in February, 2000, who is the President of Villpatti Panchayat. As per the Charge No. 3
also, it is seen that the petitioner has demanded an amount of Rs. 3,000/- from one Gnanaraj for effecting service connection, and the consumer
happens to be one Justin Prakash and that was in the first week of April,2000 and therefore, it cannot be said that the charges are vague.
Likewise, in respect of 4th charge also, it clearly shows that the petitioner has received a sum of Rs. 2,500/- as bribe from one Chellammal, who
has not even produced patta or any receipt for purchased of the property, but only based on the ration card he has issued the service connection.
The annexure to the charges also state that the copies of the statement of the concerned persons have been enclosed and therefore, it cannot L9
said that the charges are vague.
The next contention raised by the learned senior Counsel for the petitioner that the documents have not been furnished is not sustainable. In the
explanation dated 01.03.2002, the petitioner has clearly submitted his points for consideration. A reference to the records shows that the Enquiry
Officer has given notices to the petitioner on various dates, directing him to appear for enquiry on 22.03.2001, 19.04.2001, 18.05.2001,
30.05.2001 and 16.06.2001 and it was only on 16.06.2001, the Enquiry Officer has started the enquiry by examining the witnesses and copies of
the documents have also been furnished. The charge memo itself contains various enclosures containing the statement given by various
complainants. It is not the case of the petitioner that even though the charge memo contains the enclosures, such copies have not been furnished to
him. In fact, in the communication dated 04.12.2000, the Enquiry Officer has clearly stated that the number witnesses who have given complaint
will be examined on the enquiry which will be held on 16.12.2000. By letter dated 19.03.2001, the petitioner himself requested the Enquiry Officer
to post the enquiry on 21.03.2001 and 22.03.2001 and the records show that on 22.03.2001, the Enquiry Officer has stated that till 12.30pm on
22.03.2001, the petitioner has not appeared and the petitioner has received a memo dated 02.04.2001 and 15.04.2001, for posting the enquiry
on 19.04.2001 and the enquiry stood adjourned on various dates. Further, by letter dated 15.04.2001, the petitioner has requested the enquiry to
be postponed by one month time and in spite of that on 16.06.2001, he failed to appear for the enquiry. In such circumstances, there is absolutely
no reason to conclude that no opportunity was given to the petitioner.
A reference to the proceedings of the enquiry as found in the file submitted by the learned Counsel for the Electricity Board shows that in the
enquiry conducted on 16.06.2001, the complainants have in fact given evidence in person and which have been signed by all the complainants,
whose name are found in the charges. Therefore, it cannot be said that the enquiry was not property conducted. When the enquiry was conducted
on 16.06.2001, in which the complainants, viz., Justin Prakash, Muthusamy and Chellammal have given evidence before �he Enquiry Officer
and signed in the depositions as found in the files and thereafter, the Enquiry Officer has submitted his report on 06.07.2001. It is not known as to
how the subsequent statements of Chellammal, Muthusamy and Justin Prakash dated 13.07.2002, 15.07.2002 and 15.07.2002 giving a different
version should be relied upon by the Enquiry Officer once again. As I have stated earlier, in their statements before the Enquiry Officer, the above
said witnesses have clearly deposed against the petitioner in respect of his demanding and receiving of bribe and therefore, I do not see any
substance in the contention of the learned senior Counsel for the petitioner that the subsequent retraction by the said witnesses should be taken into
consideration.
In fact, after the Enquiry Officer''s report was received and the copies were served to the petitioner, there was a personal hearing given by the
4th respondent on 10.04.2003 before passing the impugned. The file shows that on 10.04.2S03, the petitioner has in fact appeared in person and
given a statement in respect of each and every one of the charges and it was only thereafter, the 4th respondent has passed the impugned order of
dismissal in detail considering each and very one of the charges, accepting the Enquiry Officer''s report in respect of Charges 1, 3 and 4. A
reference to the appellate authority''s order, viz., the order of the third respondent also shows that the third respondent has considered the entire
facts in detail, including the subsequent statements stated to have been given by the complainants retracting their earlier statements, and passed
orders rejecting the appeal on 09.09.2003 and in such circumstances, the judgements relied upon by the learned senior Counsel for the petitioner
are not applicable to the facts and circumstances of the case.
Therefore, I do not see any substance in the contention raised by the learned senior Counsel for the petitioner. Hence, the writ petition fails and the
same is dismissed. No costs.