IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 29 4.2013 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.31618 of 2005 and W.P.M.P.No.34662 of 2005 S.M.Karthikeyan .. Petitioner Vs. 1.Neyveli Lignite Corporation Ltd., Rep.by its Chairman-cum-Managing Director Neyveli-1 2.The Additional Chief Manager/Disciplinary Authority Lignite Sales/Mine I-A Neyveli Lignite Corporation Ltd., Administrative Office, Block-26, Neyvel”
3. The Chief General Manager/MineI&IA/ Appellate Authority Neyveli Lignite Corporation Ltd., Administrative Office, Block-26, Neyvel”
4. The General Manager/TA Township Administrative Office Block-10, Neyvel”
5. The Deputy General Manager/Vigilance Office of the Vigilance Officer Block 8, Neyveli 1 .. Respondents Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari calling for the records relating to the order in Procs.No.1222/Mine-IA/P&A/DA/2004 dated 21.12.2004 passed by the 2nd respondent and confirmed by the 3rd respondent/appellate authoritys order in not Proc.No.1222/Mine-IA/Appellate Orders/2005 dated 26.03.2005 and quash the same as illegal, improper, unreasonable, arbitrary, against the rule of law and natural justice. For petitioner : Mr.C.Selvaraj Senior Counsel for Mr.M.V.Muralidaran For respondents : Mr.N.Nithianandam For R1 to R5 ...... O R D E R This writ petition is filed by S.M.Karthikeyan challenging the impugned proceedings passed by the second respondent-the disciplinary authority-The Additional Chief Manager, Lignite Sales/Mine-IA Neyveli Lignite Corporation Limited, in its Procs.No.1222/Mine-IA/P&A/DA/2004 dated 21.12.2004 as confirmed by the 3rd respondentthe Chief General Manager/Mine I&IA/Appellate Authority, Neyveli Lignite Corporation Limited in Proc.No.1222/Mine-IA/Appellate Orders/2005 dated 26.03.2005 to quash both proceedings as illegal, improper and against the rule of law and pass appropriate orders.
2. (i) Mr.C.Selvaraj, learned senior counsel appearing for the petitioner submitted that after the petitioner joined the services of Neyveli Lignite Corporation Ltd., on 05.12.1979, he was promoted as Assistant Manager/Sales and when he was working in the Marketing Department/CARD Complex, he was allotted Quarters not D.77, T.P.Road, Block-11, Neyveli-3. After the allotment of the said quarters the petitioner erected a temporary shed in front of his quarters with AC roofs for parking his vehicles. Since the sheds are ordinarily put up by almost all the employees, a Circular No.934 dated 30.05.2002 issued by the Chief General Manager/TA has permitted such construction. Subsequently, the petitioner out of social commitment joined with public spirited individuals formed a charitable trust in the name of Pioneer Trust in the month of August 1997 with the noble ideal of serving the rural masses by educating them properly and conducting training programme aimed to improve their social, economic and cultural life. When the trust is a non-profitable and voluntary social service organization, mistaking the formation of the trust as violation of the NLC Employees' Conduct Rules, the petitioner was issued with the charge-memo under rule 26 sub-clause (xix) and rule 15 sub-clause (1) and 2(b) of NLC Employees' Conduct Rules. When the charges levelled against the petitioner are serious in nature, the petitioner submitted a detailed explanation dated 25.8.2003 denying all the charges as false and baseless. (ii) The learned senior counsel for the petitioner further pleaded that the petitioner has not conducted any trade or business for making any profit. In spite of the fact that the petitioner has specifically mentioned that along with him there are 11 other similarly placed persons who have put up similar construction and running a similar trust, the respondent without taking any action against 11 other similarly placed persons, targeted only the petitioner by subjecting him to departmental proceedings. Therefore, the action of the respondent in not initiating any action against 11 others similarly placed persons who are also similarly placed like the petitioner living in the same compound by erecting the superstructure in front of their houses by running a similar trust, is not only discriminatory but also not legally supported with any reason and that apart since the case of the petitioner cannot be covered under rule 26 sub-clause (xix) of the NLC Employees'(Conduct) Rules. (iii) By relying heavily on rule 15 of the NLC Employees'(Conduct) Rules, the learned senior counsel further pleaded that, when proviso to Rule 15(1) clearly says that an employee may, without such sanction, undertake honorary work of a social or charitable nature or occasional work of a literary, artistic or scientific character, subject to the condition that his official duties do not thereby suffer; but he shall not undertake, or shall discontinue such work if so directed by the Management, the respondent ought not to have issued a charge memo against the petitioner and hence the action of the respondent is running against their own Rule 15 NLC Employees' (Conduct) Rules, therefore it was contended that the impugned order is liable to fail. (iv) The learned senior counsel further pleaded that even as per Rule 16 of the NLC Employees' (Conduct) Rules, no misconduct can be made against the petitioner in the light of Rule 26 sub-clause (xix), inasmuch as Rule 26 sub-clause (xix) makes it abundantly clear that any breach of these rules shall be deemed to constitute a misconduct punishable under the Neyveli Lignite Corporation Employees'(Control and Appeal) Rules. In the light of proviso to rule 15(1), the construction raised by the petitioner in front of his house for the purpose of giving shelter to his vehicle and also to run "Pioneer Trust" which is not for making any financial profit cannot be construed as a "misconduct" under rule 26 sub-clause (xix) for the simple reason that the construction put up by the petitioner cannot be considered as unauthorized occupation of the Government quarters. (v) Finally, the learned senior counsel forcibly contended that when the petitioner submitted his explanation, the enquiry officer also while submitting a report on completion of the enquiry holding the first part of the first charge as proved, he was not able to hold the petitioner guilty of the second part of the first charge. Similarly, in respect of the second charge, the enquiry officer submitted his report holding the first part of the second charge was not established. However, when the disciplinary authority received the copy of the report, the second show cause notice was issued against the petitioner indicating clearly the proposed punishment. Since the disciplinary authority while issuing the second show cause dated 04.09.2004 indicated the punishment going to be imposed, it goes to show that they have pre-judged the issue. When they have pre-determined the issue somehow or other to punish the petitioner, the entire exercise of holding domestic enquiry calling for explanation is meaningless. Therefore, the imposed punishment by the disciplinary authority as confirmed by the appellate authority is unlawful and unsustainable in law. Therefore, the impugned punishment of "stoppage of one increment with cumulative effect" is liable to be interfered with.
3. (i)In reply, Mr.N.Nithianandam, learned counsel appearing for the respondents submitted that the petitioner clearly admitted in his affidavit the commission of the misconduct by stating that he has formed a charitable trust and run the same in the name of Pioneer Trust in August 1997 with the noble ideal of serving the rural masses by educating them properly and conducting training programmes aiming at their amelioration and to improve their social, economic and cultural life, therefore as it was a violation and misconduct. When the petitioner was issued with the charge memo, he has submitted his detailed representation dated 25.8.2003 denying the charges as false and baseless. But, however, the enquiry officer found him guilty of the charges nonetheless, he was imposed with a simple punishment, therefore he cannot have a big grievance, to file a writ petition. Moreover the charge against the petitioner that he has formed the Charitable Trust and registered the same in the name of "Pioneer Trust" in August 1997 was proved with the finding given by the enquiry officer against the petitioner and accepted by the disciplinary authority, subsequently the same having been confirmed by the appellate authority, the same cannot be found fault with. (ii) The learned counsel for the respondents further submitted that Rule 26 sub-clause (xix) clearly shows that any unauthorised use or occupation of the Company's quarters, land or other property will be construed as a breach of rules and that will constitute a misconduct punishable under the NLC Employees' (Control and Appeal)Rules. When the petitioner in the affidavit filed in support of the writ petition in para 5 thereof has clearly admitted that he has formed a charitable trust and registered the same in the name of "Pioneer Trust" in August 1997, it goes without saying that the petitioner has accepted the charges. Further, the disciplinary authority finding the report submitted by the enquiry officer as acceptable, came forward to impose only the minor punishment of stoppage one increment with cumulative effect. (iii) Secondly, when the petitioner also in his latest representation dated 25.8.2003 has not disputed the non-construction of the super-structure for the purpose of forming a charitable trust, it is not open to the petitioner to challenge the minor punishment. (iv) The learned counsel for the respondents also pleaded that the petitioner cannot allege any discriminatory approach for issuing a charge-memo against him for construction of the shed in front of his house on the ground that 11 similar other employees working in NLC have been left out, when they have also put up similar constructions like that of the petitioner.
4. (i)By bringing to the notice of this Court a proceeding dated 27.4.2013 issued to the General Manager/Legal Corporate office, NLC Limited by the Assistant Township Administrator/TA stating that when a report was called for about 11 others who have put up construction like that of the petitioner, the Assistant Township Administrator/TA after holding enquiry and personal inspection has submitted that none of the 11 persons shown in the proceedings dated 27.4.2013 has misused the quarters given to them officially. Therefore, it is not proper for the petitioner to say that the respondent has singled out the petitioner by issuing the chargememo only against him. The proceeding dated 27.4.2013 as rightly placed before this Court by the learned counsel for the respondents clearly shows that the respondent has not singled out the petitioner, as alleged by the petitioner, from 11 others. (ii) While moving to the other contentions raised by the learned counsel for the petitioner it is to be seen whether the petitioner has committed any misconduct in the light of Rule 26 sub-clause (xix) of the NLC Employees' (Conduct) Rules. A mere perusal of the Rule 26 sub-clause (xix) which is extracted hereunder "unauthorised use or occupation of the Company's quarters, land or other property." shows that unauthorised use or occupation of the Company's quarters, land or other property will be breach of the rules and therefore, the same should be deemed to have constituted a misconduct punishable under the Neyveli Lignite Corporation Employees' (Control and Appeal) Rules, if it is proved. In the present case, if the court looks at paragraph 5 of the affidavit filed in support of the writ petition and rule 26 sub-clause 19 of NLC Employees' Conduct Rules, cannot disagree with the punishment imposed against the petitioner by the respondent. In this context the admission of the petitioner made in paragraph 5 of the affidavit is extracted hereunder: "I further state that I along with some public spirited individuals formed a charitable Trust and registered in the name of "Pioneer Trust" in August 1997, with the noble ideal of serving the rural masses by educating them properly and conducting training programmes aiming at their amelioration and to improve their social, economic and cultural life." Rule 26 sub-clause (xix) of the NLC Employees' Conduct Rules is also extracted for convenient perusal. "unauthorised use or occupation of the Company's quarters, land or other property." A conjoint reading of paragraph 5 of the affidavit and rule 26 sub-clause (xix) clearly brings down the controversy to an end because the petitioner has clearly admitted the charges levelled against him by stating that he along with other public spirited individuals formed a charitable trust and registered in the name of "Pioneer Trust". Therefore, when the petitioner himself has clearly admitted the commission of misconduct in his own affidavit, this Court is not inclined to show any indulgence to the petitioner by accepting the argument that the disciplinary authority while issuing the second show cause notice having indicated the proposed punishment, has pre-determined to punish the petitioner for the reason that this issue is no longer res-integrem. The Apex Court in PUNJAB NATIONAL BANK AND OTHERS V., K.K.VERMA ( AIR 201.SC
120) has answered the arguments against the petitioner by holding that the second right to represent against proposed penalty has already been taken away by the 42nd amendment amending sub-Article 311(2) by making it clear that the charged officer has no right to represent against the proposed punishment. In this context it is relevant to extract paragraphs 19 and 20 of the judgment. "19.The 42nd Amendment effected in 1976 once again amended sub-article(2) as follows:- "311.(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed." Besides the Constitution Bench of the Apex Court has held in UNION OF INDIA AND ANOTHER V. TULSIRAM PATEL (1985 (3)SCC
398) that after the 42nd Amendment, the employees are not entitled in law to be heard in the matter of penalty. This ratio has been followed by another Constitution Bench in Karunakar's case (AIR 199.SC 1074.and the same is extracted hereunder: "While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment." In the light of the above ratio, the approach adopted by the disciplinary authority by issuing the second show cause notice indicating the proposed punishment cannot be found fault with. Further, the proposed punishment which was ultimately imposed against him also shows that he was imposed with the lighter punishment of stoppage of one increment with cumulative effect. Therefore, this Court is not able to see any merit in the writ petition, accordingly, finding no merits and substance in the writ petition, disinclined to answer the prayer in his favour.
5. Consequently, W.P.No.31618 of 2005 is dismissed. No costs. Consequently, connected pending WPMPs are dismissed. sal 1. The Chairman-cum-Managing Director Neyveli Lignite Corporation Ltd., Neyveli-1 2. The Additional Chief Manager/Disciplinary Authority Lignite Sales/Mine I-A Neyveli Lignite Corporation Ltd., Administrative Office, Block-26, Neyvel”
3. The Chief General Manager/MineI&IA/Appellate Authority Neyveli Lignite Corporation Ltd., Administrative Office, Block-26, Neyvel”
4. The General Manager/TA Township Administrative Office Block-10, Neyvel”
5. The Deputy General Manager/Vigilance Office of the Vigilance Officer, Block 8, Neyveli 1