N.P.C. Jesudian vs The Chairman, The Member (Accounts) and The Secretary

P.R. Shivakumar, J.—The petitioner is a retired Chief Engineer of Tamil Nadu Electricity Board. Before his retirement he was placed on

special duty as a Member of the Tamil Nadu Electricity Board and he retired on superannuation on 31.05.1996. He was also allowed to draw all

his retiral benefits. 3 years after such retirement, the Chairman of the Tamil Nadu Electricity Board chose to issue a charge memo in his

proceedings No. 62087/A5/A52/98-44 dated 28.10.2006 accusing him of scoring out clause 1.4.4 of draft purchase order which was to the

effect that 1 USD would be equal to Rupees 31.61 as the basis of acceptable price and that, by such alteration he caused a loss of Rs.

1,37,98,711/- to the Tamil Nadu Electricity Board as excess payments to be made in view of the change in the exchange rate. The petitioner

submitted an explanation on 05.04.1999 itself denying the charge. Holding the explanation to be not satisfactory, the Chairman, Tamil Nadu

Electricity Board appointed one Mr. Nagalsamy, Accounts Member as Enquiry Officer in proceedings No. 62087/A6 /A61/98-12 dated

28.12.1999. The said Nagalsamy was in the substantive post of Accounts Officer (Budget) and he was on special duty as Member (accounts) of

the Tamil Nadu Electricity Board. According to the petitioner, the said Nagalsamy was not a person holding a superior posts than the post which

the petitioner held and that hence the order of appointment of Nagalsamy as Enquiry Officer was vitiated. As per the contention of the

respondents, the said Nagalsamy did not complete the enquiry and submit his report which necessitated appointing another Enquiry Officer.

However, the petitioner has taken a stand that he was given to understand that the said Nagalsamy submitted a report and in such report he had

made an observation that the defence statement of the petitioner appeared to be correct. The further case of the petitioner is that either suppressing

the report or totally rejecting the said report, Thiru. Kathiresan, Accounts Officer (Budget), who was made a Board Member on Special Duty,

was appointed as Enquiry Officer. As the said Kathiresan was only an Accounts Officer (Budget), who was a subordinate to the petitioner when

he was in service, the petitioner raised an objection for the appointment of Mr. Kathiresan as Enquiry Officer to conduct the enquiry on the

charges made against the petitioner.

The communication regarding the appointment of Kathiresan as the second Enquiry Officer was made in Memo No. 62087/A5/A52/98-44

dated 28.04.2006 and the reason for his appointment as the Enquiry Officer was stated that the previous Enquiry Officer Mr. Nagalsamy Demitted

office on 17.11.2004. On his appointment, Mr. Kathiresan issued notice in his proceedings Memo No. M(A)/EA/DP/Enq/031/2006 dated

16.12.2006 fixing the date and time of enquiry as 27.12.2006 and 03.00 pm. Even before the said Enquiry Officer, the petitioner raised a

contention that his letter dated 23.12.2006 protesting against the appointment of Mr. Kathiresan as Enquiry Officer was not replied. In addition, he

also expressed his inability to mobilize his defence witnesses within a short time after notice. As the Enquiry Officer Mr. Kathiresan was not

inclined to grant time, the petitioner approached this Court with the present writ petition challenging the appointment of Mr. Kathiresan as Enquiry

Officer to conduct denovo enquiry as such a proceeding shall be illegal.

The respondents have contended that grave irregularities were committed by the petitioner while he was functioning as the Chief Engineer,

Thermal Design in procuring Generation Machinery for Parson Valley Hydro Electric Project; that the said fact came to the notice of the Board

after his retirement and therefore, charge memo was issued correctly invoking Section 9 of Tamil Nadu Pension Rules 1976; that the petitioner

who had committed grave irregularities causing financial loss to the Board to a tune of approximately Rs. 1.38 crores, in stead of cooperating with

the Enquiry Officer, simply dragged on the case and at last has come forward with a fresh plea that the appointment of Enquiry Officer itself was

illegal; that such a plea was not taken by him when Nagalsamy was appointed as Enquiry Officer and that only after Mr. Kathiresan was appointed

as Enquiry Officer, such a plea has been taken by the petitioner. It is the further contention of the respondents that a Member of the Board shall

not be an Officer either equal to a Chief Engineer or Subordinate to a Chief Engineer and that hence the appointment of Mr. Kathiresan was in

order. The respondents also contend that the Board being the Apex body was competent to initiate proceedings against the retired Chief Engineer

and on behalf of the Board, the Chairman issued the charge memo in which no illegality or irregularity can be found. Based on the above said

pleadings arguments were advanced on both sides.

Mr. S. Ilamvaludhi, learned counsel for the petitioner argued that when Rule 9 of the Tamil Nadu Pension Rules, 1976 was sought to be

invoked for initiating disciplinary proceedings against a retired employee, the competent authority to do so shall be the Government and not the

Board or the Chairman of the Board and that since the Disciplinary Proceeding was initiated against the petitioner three years after his demitting

office on superannuation not by the Government but by the Chairman, Tamil Nadu Electricity Board, the very initiation of the disciplinary

proceeding itself will stand vitiated. Learned counsel for the petitioner contended further that the first Enquiry Officer, namely Nagalsamy appointed

for conducting enquiry regarding the charges made against the petitioner was also a person not holding a superior post and that at the time of

initiation of the proceedings, the said Nagalsamy was holding only a post equivalent to the one held by the petitioner and that his appointment was

also in violation of Chapter IV of Tamil Nadu Electricity Board Employees Discipline and Appeal Regulations, 1983 which says that no Officer

subordinate to the delinquent or equal in rank to him shall be appointed as the Enquiry Officer.

In this regard, Ms. R. Varalakshmi, learned standing counsel for the Tamil Nadu Electricity Board, would submit that so far as the appointment

of Nagalsamy was concerned, a waiver on the petitioner can be inferred, because no objection was taken by the petitioner when Nagalsamy was

appointed as Enquiry Officer and he conducted the enquiry. It is the further submission of the learned standing counsel for the Tamil Nadu

Electricity Board that since no objection was raised for the appointment of Nagalsamy, the petitioner shall be debarred from raising such an

objection for the appointment of Mr. Kathiresan as Enquiry Officer.

As a reply to the said contention, learned counsel for the petitioner submitted that simply because no objection was raised when Nagalsamy

conducted enquiry, the right of the petitioner raising a protest regarding the propriety of the appointment of a successor Enquiry Officer cannot be

denied. It is his further contention that it is not necessary for the delinquent to raise such an objection at the inception of the enquiry and that on his

submitting a report when such report goes against him, he shall have the chance of assailing the report as one made by an Officer below his rank or

equal in rank and hence the enquiry itself was vitiated. It is also the submission of the learned counsel for the petitioner that the petitioner had

reliable information that the first Enquiry Officer''s report was in his favour and after his retirement on superannuation, suppressing the same, the

second Enquiry Officer was appointed with the very same defect in appointment. There is nothing on record to show that Nagalsamy submitted

any report even though he had three years time before he demitted office. However, it is to be noticed that after Nagalsamy demitted office and

ceased to be the Enquiry Officer, it took about a few days short of 2 years for appointing the second Enquiry Officer. Nagalsamy demitted office

on superannuation on 17.11.2004. But the present Enquiry Officer Kathiresan was appointed on 28.10.2006. It is also pertinent to note that if at

all Nagalsamy as well as Kathiresan could be assumed to have held a higher post, as they were made Members of the Board at the time of their

respective appointments as Enquiry Officers, the last position held by the petitioner was also a Member of the Board. Hence, it shall be obvious

that even as a Member of the Board, none of them would not have been a superior officer to the petitioner and hence, as rightly contended by the

learned counsel for the petitioner, the very appointment of Enquiry Officers, both in the case of Nagalsamy and in the case of Kathiresan, was

against Chapter IV of Tamil Nadu Electricity Board Employees Discipline and Appeal Regulations, 1983. In this regard, this Court has to accept

the contention raised on behalf of the petitioner that the appointment of Enquiry Officers will vitiate the proceedings conducted by those Enquiry

Officers.

The further contention raised on behalf of the petitioner is that when a disciplinary proceeding is sought to be initiated under Rule 9 of Tamil

Nadu Pension Rules, 1976, the competent authority to do so shall be the Government and not even the Board, nor the Chairman of the Board,

shall have such a power to initiate proceedings against the retired employees of the Board. Rule 9 of the Pension Rules is extracted for better

appreciation:-

Right of Government to withhold or withdraw pension.-

[(1)(a) The Government reserve to themselves the right of withholding or withdrawing a pension or part thereof, whether permanently or for a

specified period if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of

his service, including service rendered upon reemployment after retirement, and such withholding or withdrawing the pension may be effected

irrespective of the fact whether or not any pecuniary loss on account of such grave misconduct or negligence was caused to the Government, to

any local body or to any co-operative society comprising of government servants and registered under the Tamil Nadu Co-Operative Societies

Act, 1961;

[Provided that before passing an order under the sub-rule withholding or withdrawing the pension of a pensioner, the Tamil Nadu Public Service

Commission shall be consulted if the pensioner does not agree to such withholding or withdrawal of the pension. The Tamil Nadu Public Service

Commission need not be consulted in cases where the pensioner agrees to withholding or withdrawal of the pension but a copy of the order

passed by the Government in such cases shall be sent to the commission:]

Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in

sub-rule (5) of Rule 43.

(b) In case there is any pecuniary loss caused to the Government, to any local body or to any co-operative society comprising of Government

servants and registered under the Tamil Nadu Co-operative Societies Act, 1961, and if, in any departmental or Judicial proceedings, the pensioner

is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement,

the Government shall also have the right of ordering recovery from the pension [or Death-cum-Retirement Gratuity] of the whole or part of the

pecuniary loss caused by such grave misconduct or negligence:

Provided that the Tamil Nadu Public Service Commission shall be consulted before any final orders under this clause are passed.

Explanation ""Judicial Proceeding"" shall include proceedings before any Tribunal constituted by an Act of Parliament or the State Legislature or by a

Rule.]

(2)(a) The departmental proceeding referred to in sub-rule (1), if instituted while the Government servant was in service, whether before his

retirement or during his re-employment, shall, after the final retirement of the Government servant be deemed to be proceedings under this rule and

shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued

in service:

Provided that where the departmental proceedings are instituted by an authority subordinate to the Government, that authority shall submit a report

recording its findings to the Government.

(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-

employment,-

(i) shall not be instituted save with the sanction of the Government;

(ii) shall not be in respect of any event which took place more than four years before such institution; and

(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to

departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.

(3) [Omitted by G.O. Ms. No. 344, Finance (Pension), dated 22nd April 1994, vide SRO B-83/94]

(4) In the case of a Government servant who was retired on attaining the age of superannuation or otherwise and against whom any departmental

proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 60 or Rule 69, as the case may be, shall be sanctioned.

(5) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not

ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.

(6) For the purpose of this rule,-

[(a) departmental proceedings shall be deemed to include the enquiry pending before the Tribunal for Disciplinary Proceedings;

(b) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant

or pensioner or if the Government servant has been placed under suspension from an earlier date, on such date; and

(c) judicial proceedings shall be deemed to be instituted,-

(i) in the case of criminal proceedings, on the date of the complaint or report of a police office, of which the Magistrate take cognizance, is made;

and

(ii) in the case of civil proceedings, on the date on which plaint is presented in the Court.

There is no dispute regarding the applicability of Tamil Nadu Pension Rules to the petitioner. On the other hand, the action itself was sought to be

taken under Rule 9 of the Tamil Nadu Pension Rules, which is obvious from the charge memo dated 26.03.1999 issued by the Chairman of the

Tamil Nadu Electricity Board.

Therefore, the above said contention raised on behalf of the petitioner also deserves countenance.

Learned counsel for the petitioner also has brought to the notice of the Court that even after the issuance of the charge memo and initiation of the

Disciplinary Proceeding, the petitioner was once again accommodated as a Member of the Tamil Nadu Electricity Board on 24.03.2009 by

permanent BP No. 96 and he functioned as a Member for a period of one year and contended that the same would show that the Government

itself was convinced that there was no substance in the disciplinary proceeding initiated against him and that the same was reason why he was

accommodated as a Member of the Board. Though the same may not be a decisive factor, it can also be taken as one of the points favourable to

the petitioner. It cannot be disputed that when an action is taken against a retired employee of the Board under Rule 9 of the Tamil Nadu Pension

Rules, the initiation should be made by the Government and neither the Chairman nor the Board do have the power to initiate such proceedings. As

such the very initiation of the Disciplinary Proceeding is vitiated. Apart from the initial vitiating factor, the appointment of Enquiry Officers was also

done in violation of the rules. Hence, this Court comes to the conclusion that the disciplinary proceeding against the petitioner and the enquiry

conducted by the Enquiry Officers are against the rules and are vitiated.

Learned standing counsel for the Tamil Nadu Electricity Board made an earnest appeal to the Court that in case the Court comes to the

conclusion that the disciplinary proceedings initiated against the petitioner stand vitiated for the above said reasons, leave should be granted to the

respondents to move the Government for the initiation of disciplinary proceedings against the petitioner for the alleged misconduct, since a person

who is alleged to have committed financial loss to the Board to the tune of Rs. 1.38 crores should not be left without even an enquiry. For the

above said submission, learned counsel for the petitioner would contend that the petitioner demitted office on superannuation on 31.05.1996 and

the charge memo was issued nearly 3 years thereafter and we are in 2013; that a period of 17 years has lapsed ever since the retirement of the

petitioner and that permitting initiation of a fresh disciplinary proceeding and a denovo enquiry, at this distance of time will not only result in injustice

but also will be a harassment to the petitioner, who is aged about 79 years resulting in miscarriage of justice and that therefore, this Court, taking

into consideration the fact that the petitioner was accommodated in the Board as a Member in 2009, should desist from granting any such

permission so as to allow the petitioner to live in peace in his retired life. The above said submissions made by the learned counsel for the petitioner

are appealing and they are to be accepted. For all the reasons stated above, this Court comes to the conclusion that it is just and necessary to

quash proceedings in No. 62087/A5/A52/98-44 dated 28.10.2006 passed by the 3rd respondent and Memo No. M(A)/EA/DP/Enq./031/2006

dated 16.12.2006 passed by the 2nd respondent. Before parting with the case, this Court wants to make it clear that this Court has not entered

upon any discussion on merit regarding the alleged misconduct. Only as an indulgence to a person who had retired in 1996, this Court wants to

desist from granting a permission to the respondents to initiate fresh Disciplinary Proceedings.

No costs.