H. Rajkumar and Others vs Tamil Nadu Electricity Board

S.J. Mukhopadhaya, J.—In all these cases, as common judgment is under challenge, they are heard together and disposed of by this

common judgment.

The appellants, who were the writ petitioners (hereinafter referred to as ""the petitioners""), are working as Helpers in the respondent-Electricity

Board. They were suspended and proceeded departmentally by the charge memo dated 1st July, 2005. The learned single Judge having dismissed

the writ petitions preferred by the petitioners against the initiation of departmental proceedings by the charge memo dated 1st July, 2005, the

present appeals have been preferred. The learned single Judge dismissed the writ petitions on two counts, (i) that this Court normally should not go

into the merits of the contentions raised by the employees against disciplinary authority at the stage of the charge memo and (ii) in view of the

liberty given by the Division Bench against the charged employees, it was open to the disciplinary authority to initiate departmental proceedings.

The petitioners have challenged the charge memo mainly on the following grounds:

(i) The allegations made in the charge memo do not constitute a misconduct under the Certified Standing Orders.

(ii) The first charge relates to the enrollment in a cooperative society, which cannot be decided by the disciplinary authority of the Electricity Board.

For deciding the issue, it is necessary to notice the relevant fact as stated hereunder:

An industrial cooperative society, by name, The Tuticorin Thermal Power Station Industrial Cooperative Service Society Limited (for short,

INDCOSERVE"") was functioning in the Tuticorin Thermal Power Station under the second respondent-Chief Engineer, Tuticorin Thermal Power

Station, Tuticorin. The said society was organised with a view to streamline the engagement of contract labour and the entire infrastructure

including the management of the society ws entrusted to the officers of the second respondent. Wages were directly paid by the Electricity Board.

Subsequently, on the abolition of contract labour system in Thermal Power Station due to the policy decision taken by the Government, there was

no requirement for the society and it was proposed to take 450 persons, who were enrolled by the society, as workers of the Electricity Board.

Since the employment was indirectly guaranteed if they were employed by INDCOSERVE society, it was alleged that certain bogus enrollment

was done with the connivance of the officials of the Board. This came to the notice of the Board through a vigilance enquiry and it was found that

eight persons were enrolled as members only with a view to secure employment in the Board, though originally they were never enrolled. One P.K.

Arumugam, who was the then Chief Engineer of the Thermal Power Station, was found responsible for the same and the vigilance enquiry noted

that eight persons including the present five petitioners have been made as members at the instance of the then Chief Engineer, who wanted to

accommodate the children of the existing employees of the Electricity Board and enrolled them as members without authority. Therefore, a

direction was given to take action. It appears that the Special Officer of INDCOSERVE society, by the General Body Meeting dated 12th May,

1996, decided to remove the eight members, who were fraudulently enrolled and a resolution to that effect was passed. This was informed to the

vigilance department. In the light of the same, the petitioners were disengaged from service after a show cause notice. It was at that stage the

petitioners preferred writ petitions in W.P. Nos. 18075 to 18080 of 2000 before this Court and this Court, by a common order dated 22nd

February, 2001, dismissed the writ petitions by stating that the petitioners, being workmen within the meaning of the Industrial Disputes Act, 1947

are bound to raise an industrial dispute since disputed questions of fact have been pleaded and only an industrial adjudication is an effective

remedy. As against the said order, the petitioners preferred writ appeals being W.A. Nos. 2928 to 2933 of 2001. The Division Bench of this

Court, by its common judgment dated 4th March, 2004, held that the disengagement of the petitioners was not out of the disciplinary proceedings

and, therefore, they need not be relegated to the Labour Court. Having found that the petitioners were disengaged without giving three months

notice and in violation of Section 25-F, their termination orders were set aside. They were directed to be reinstated with certain observations with

certain liberty to the disciplinary authority of the Electricity Board. The relevant portion of the judgment will be referred to at the appropriate stage.

After the aforesaid judgment in the writ appeals, the respondents decided to initiate departmental proceedings. The respondents suspended the

petitioners and thereafter issued the impugned charge memos, all dated 1st July, 2005.

The learned Counsel appearing on behalf of the petitioners, while reiterating the same plea as was taken before the learned single Judge and

noticed above, referred to the judgment of the Supreme Court in A.L. Kalra Vs. Project and Equipment Corporation of India Ltd., wherein the

Court observed that if what is alleged as misconduct does not constitute misconduct not by analysis or appraisal of evidence, but under the rules,

the authority has no power or jurisdiction to impose any penalty for the alleged misconduct. If the alleged misconduct does not constitute a

misconduct within the rules, no punishment can be imposed. Reliance was also placed on the Supreme Court decision in Glaxo Laboratories (I)

Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, . In the said case, the Supreme Court observed that it cannot be left to the vagaries

of the management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order

is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose

of imposing a penalty. The contention of the counsel for the petitioners that some other act of misconduct which would per se be an act of

misconduct, though not enumerated in the standing order, was rejected. The learned Counsel referred to the Standing Orders Manual of the

Electricity Board and the Standing Order 30 regarding ""Acts and Omissions constituting Misconduct"" has been enumerated. Referring to the same,

it was submitted that the so called allegations made in the charge memo do not constitute any act and omission constituting misconduct.

Learned Counsel appearing on behalf of the respondent-Electricity Board, while referring to Clause (xxvii) of the Standing Order 30 to suggest

that the petitioners had given false information in connection with the employment at the time of employment, per contra, according to the counsel

for the petitioners, no such allegation has been made in the charge memo. It was contended on behalf of the petitioners that the Division Bench

having already held that whether the petitioners have secured their enrollment in the INDCOSERVE society in dubious method or not, is a matter

for adjudication by the society under the provisions of the Tamil Nadu Cooperative Societies Act, which provision shall govern the enrollment,

admission and removal of the membership, it is not open to the competent authority of the Electricity Board to hold enquiry with regard to the

charge No. 1. Further, charge No. 2 being based on charge No. 1, no such enquiry can be held by the competent authority of the Electricity

Board.

We have heard the learned Counsel for the parties and perused the record.

Normally the Court is not supposed to interfere with the departmental proceedings either at the stage of issuance of charge memo or show

cause notice. In the case of State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, the Supreme Court, while dealing with the power of the

Court in dealing with a charge memo, observed as follows:

The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a

statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by

showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably

without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once

cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and

only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our

opinion ought not have interfered with the show cause notice.

In The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, the Court noticed that in large number of cases the Supreme Court

has deprecated the practice of the High Court entertaining writ petitions questioning the legality of the show cause notices stalling enquiries as

proposed and retarding investigative process to find actual facts with the participation and in the presence of parties. This was deprecated by the

Supreme Court.

In Union of India and Anr. v. Kunisetty Satyanarayana (2006) 12 SCC 28 the Supreme Court observed as follows:

It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive

Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh and others, ; The Special Director and Another Vs. Mohd. Ghulam Ghouse and

Another, ; State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, .

The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is; that at that stage the

writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does

not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It

is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the

proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A

mere show-cause notice or charge sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise

adversely affecting a party is passed, that the said party can be said to have any grievance.

Writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a

show-cause notice or charge-sheet.

No doubt, in some very rate and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly

without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.

However, we have noticed that where it is found that what is found as misconduct does not constitute a misconduct, the Supreme Court

interfered with such proceedings and charge memo so as to ensure that the employee is not unnecessarily harassed. So far as the present case is

concerned, the following facts emerge:

(a) The INDCOSERVE society was functioning under the second respondent-Chief Engineer with a view to streamline the engagement of contract

labour and the entire infrastructure including the management of the society was entrusted to the officers of the second respondent. Wages were

directly paid by the Board. Those who have enrolled as members of the society, the work used to be taken from them.

(b) The Board took a policy decision to absorb 450 persons, who were enrolled by the society, as workers of the Electricity Board. It is on that

basis the petitioners were given employment in the Board.

(c) It was brought to the notice of the Board that the Special Officer of the INDCOSERVE society, by the General Body Meeting dated 12th

May, 1996, decided to remove the eight members who were fraudulently enrolled and a resolution to that effect was also passed. In the light of the

same, the authorities of the Electricity Board earlier disengaged the petitioners from their service after issuance of show cause notice.

(d) The Division Bench by the judgment dated 4th March, 2004 in W.A. Nos. 2928 to 2933 of 2001, having noticed that the resolution of the

INDCOSERVE society dated 12th May, 1996 was not on record and that the services were terminated without any departmental proceedings,

made the following observations:

In terms of Section 2(oo) of the Act, the order of termination not issued by way of punishment shall mean only the orders of retrenchment.

Once we come to the conclusion that the impugned orders are by way of retrenchment, not by way of punishment, the appellants are entitled to

reinstatement of service as the respondent Board did not either issue 3 months notice in writing indicating the reasons for retrenchment and the

period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of notice. We also find no prior permission

of the appropriate Government or such authority as the case specified by the Government was also obtained. Hence the writ petitions are allowed

and the order of termination are set aside.

However, we make it clear that whether the appellants have secured their enrolment in the INDCOSERVE society in a dubious manner or not,

is a matter for adjudication by the society under the provisions of the Tamil Nadu Co-operative Societies Act which provisions shall govern the

enrolment admission and removal of membership. Our attention is not drawn by the respondent Board is to whether the names of the appellants

were removed from the membership of the society so as to sustain the power of the Board to take action. Though it is pleaded that the society did

not agree to remove the name of the appellants from the membership of the society, the report of the Vigilance Cell cannot by itself be the basis for

ordering termination straightaway.

In view of the above, the respondent Board is still at liberty to initiate disciplinary proceedings against the appellants by following the

procedures as contemplated under the Regulations for the alleged misconduct by securing employment by enrolling their name in INDCOSERVE

society in dubious manner.

From the aforesaid fact, it will be evident that though the Division Bench noticed that whether the petitioners have secured their enrollment in

the INDCOSERVE society in dubious manner or not is a matter for adjudication by the society under the provisions of the Tamil Nadu

Cooperative Societies Act, but the Board was still given liberty to initiate disciplinary proceedings against the petitioners by following the

procedures as contemplated under the regulations for the alleged misconduct by securing employment by enrolling their names in INDCOSERVE

society in dubious manner.

Learned Counsel for the appellants submitted that the High Court''s judgment aforesaid should be read in harmony and cannot go against the

standing order. If the standing order does not permit initiation of proceedings for the facts as alleged, going by the aforesaid Division Bench

judgment, the respondents cannot initiate the proceedings. However, such argument cannot be accepted in view of the fact that the finding of the

Division Bench aforesaid was affirmed by the Supreme Court by order dated 28th March, 2005 in SLP (Civil) Nos. 17339 to 17344 of 2004 and

thereby the finding given by the Division Bench is binding on the parties.

So far as Clause (xxvii) of Standing Order 30 is concerned, it talks of the following acts and omissions which shall be treated as misconduct.

(xxvii) Giving false information regarding name, father''s name, qualification, age or previous service, or any other information in connection with the

employment at the time of employment or any other time during service.

From the aforesaid clause, it will be evident that if false information is given or any other information in connection with the employment at the time

of employment is found to be incorrect, then that constitutes a misconduct and for that, departmental proceedings can be initiated.

We have noticed that in the present case, the authorities have specifically alleged that on the basis of irregular registration the petitioners were

engaged in the service and that by getting enrolled as members of the society contrary to the bye-laws and by fraudulent means the employment

was secured in the Board. Thus, as the allegation relates to giving certain information in the matter of getting employment in the Board, we hold that

for the charges levelled against, the proceedings are maintainable, as it is supported by Clause (xxvii) of the Standing Order 30, which deals with

acts and omissions constituting misconduct.

In view of the aforesaid finding given by us, we hold that the respondents were well within the jurisdiction while issuing the charge memo in

question and the order passed by the learned single Judge needs no interference. Having been no merit the appeals are dismissed, but there shall

be no order as to costs. Consequently, M.P. Nos. 1 & 2 of 2009 are also dismissed.