A. Pitchamuthu Vs. Superintending Engineer, Dharmapuri E.D. Circle, Tamil Nadu Electricity Board, Dharmapuri - Court Judgment

Excerpt:
service - disciplinary proceedings - article 226 of constitution of india - writ petition challenging order to recover value of missing goods from petitioner's terminal benefits - shortage of goods detected during tenure of petitioner as custodian of stores - earlier civil suit filed against recovery dismissed - petitioner given opportunity to present objection before passing impugned order - respondent got authority to recover value of missing goods from petitioner's terminal benefits - petition devoid of merit and liable to be dismissed. - orderv. kanagaraj, j. 1. petitioner has filed this writ petition praying to issue a writ of certiorarified mandamus calling for the records relating to the order dated 8.8.1996 in memo. no.1-1/ps/a-1/142/96 on the file of the respondent and quash the same and further direct the respondent to release all the terminal benefits payable to the petitioner arising out of the retirement of the petitioner from the services of the respondent on 30.6.1995.2. in the affidavit filed in support of the writ petition, the petitioner would submit that he was employed as stores custodian in the respondent board; that during december 1988, the stores were checked by the special team, madras and found 56 items were in shortage; that therefore, the respondent issued a notice on 22.5.1989 against the petitioner to show cause as to why the cost of the materials found short should not be recovered from him; that the petitioner sent a reply on 5.6.1989; that the respondent issued yet another notice on 26.7.1989 calling upon him as to why the cost of materials allegedly worked out at rs.1,50,689.37 plus centage and handling charge should not be recovered from him; that the petitioner also sent a reply on 3.8.1989 and thereafter, the respondent did not pass any order till 6.9.1995.3. the petitioner would further submit that in the meantime, the respondent initiated disciplinary proceedings and kept him under suspension for some time and proposed to inflict punishment by directing demotion to the lower post for a period of three years, by a notice dated 6.6.1991; that therefore, the petitioner filed o.s.390 of 1991 and obtained an order of temporary injunction in i.a.886 of 1991 and the same was made absolute on 27.8.1991 and an order was passed on 12.1.1995 in c.m.a.no.30 of 1993 confirming the order dated 27.8.1991; that pending the suit, he was transferred to kancheepuram and thereafter to vellore and got retired from service on 30.6.1995 on attaining the age of superannuation; that the suit was dismissed on 27.7.1995 holding that the petitioner would not be entitled to the reliefs sought for by him.4. the further averments of the writ petition are that the respondent issued a memo. dated 6.9.1995 informing about the recovery of a sum of rs.1,74,046.00 from his terminal benefits; that he filed w.p.14266 of 1995 challenging the said memo. and this court passed an order setting aside the memo. issued by the respondent further directing the respondent to issue fresh notice and pass appropriate orders, affording an opportunity to the petitioner; that subsequently, the respondent issued a charge memo. dated 27.1.1996 to show cause as to why the value of the materials in shortage should not be recovered from him and for that the petitioner also replied on 27.2.1996; that the petitioner also submitted his objections, but however, the respondent without considering any of his objections, passed the impugned order dated 8.8.1996 to recover a sum of rs.91,579/= out of his terminal benefits.5. in the counter filed on behalf of the respondent, besides denying the allegations of the writ petition, it would be submitted that when a complaint lodged with the police for the loss of materials was under investigation, the petitioner was reinstated into board service by revoking his suspension orders without prejudice to the outcome of the police investigation and departmental action to be taken against him and was posted to another section viz., meter and relay test at dharmapuri that while the petitioner was working as stores custodian of mrt, dharmapuri, he was arrested by the police on 14.2.1990 and was remanded to judicial custody for an offence punishable under section 409 i.p.c.; that consequent to his arrest, he was again placed under suspension with effects from 14.2.1990; that pursuant to the disciplinary proceedings, he was ordered to be reverted to grade ii stores custodian.6. the respondent would further submit that in finalisation of the departmental proceedings, a show cause notice indicating the provisional punishment of 'reversion to the post of stores custodian ii grade for a period of three years' was issued by memo. dated 6/17.6.1991 for the charges proved which are grave in nature; that as per the order of this court dated 29.11.1995, the respondent issued a fresh show cause notice to the petitioner on 27.01.1996; that an enquiry was proposed to be conducted on 10.4.1996 and subsequently posted to 15.4.1996; that the petitioner has also participated in the enquiry and he denied certain points and admitted certain lapses committed by him; that after considering certain points raised by the petitioner, the quantum of recovery of the amount had been reduced, with reference to the valid records; that after taking into consideration the replies furnished by the petitioner and the written objections, the quantum of amount of recovery has been reduced to rs.91,579/- considering the like nature initial shortage and surplus in his section and the impugned order was passed; that there is no reason between the order of recovery of the loss of materials and the departmental proceedings instituted against him; that in the departmental proceedings, he was charged for negligence in his duties and the recovery order is for the shortage of materials in his custody; that the responsibility lies only with the stores custodian in respect of his section and hence for any shortage of materials, he would be the person answerable; that the petitioner has been paid the special provident fund cum gratuity and sanction has also been accorded for provisional pension. on such averments, the respondent would pray to dismiss the writ petition.7. during arguments, the learned counsel appearing on behalf of the petitioner would lay emphasis on the legal point that after retirement, the respondent board has no right to proceed against the servant and would cite a judgment reported in bhagirathi jena vs. board of directors, o.s.f.c. wherein in a case of such facts, the appellant therein was relieved on 1.7.1975 by the corporation without prejudice to the claims of the corporation and thereafter, the question arose with regard to the continuance of the disciplinary enquiry for the purpose of reduction of retiral benefits payable to the appellant. the appellant contended that he retired on 30.6.1995 and the disciplinary proceedings could not be continued even for the purpose of making reduction of the retiral benefits in as much as there were no statutory regulations made by the corporation for such reduction of retiral benefits. the high court of orissa dismissed the writ petition and on appeal, the apex court held that having permitted the appellant to retire from service on 30.6.1995, there was no authority vested in the corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant and in the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.8. it is not the situation that is prevalent in the case in hand. in the case dealt with by the apex court, since there had been no provision to the effect that in case of misconduct being established, a deduction could be made after retirement from service as per the corporation rules, and therefore, without such authority vested in the corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant, the same cannot be done as concluded by the apex court. here, the petitioner has not at all established that the respondent/board is bereft of such authority, and therefore, the fact situation that prevailed for arriving at such conclusion in the above case does not prevail in the case in hand and hence, the ratio applied by the apex court therein does not become applicable to the case in hand.9. yet another judgment reported in d.k. yadav v. j.m.a. industries ltd. would be cited on the part of the learned counsel for the petitioner, wherein a full bench of the apex court has held that 'it is well settled that the right to life enshrined in article 21 of the constitution would include the right to livelihood. the order of termination visits with civil consequence of jeopardising not only the worker's livelihood but also the career and livelihood of the dependents. therefore, before taking any action of putting an end to the tenure of an employee, fairplay requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice.'10. no doubt, the above proposition held by the honourable apex court has to be fully adhered to in any proceeding, especially in case of termination from service. but the petitioner's case is not that of termination, nor has he prayed for reinstatement in service nor for back-wages nor on such claims for the retirement benefits. in the case in hand, the petitioner's claim itself is to the effect of quashing the order impugned, which is for the recovery of a sum of rs.91,579/= with further direction to release the terminal benefits payable to him. therefore, it is not a case that could be treated on the proposition held by the apex court in the above judgment since there, it is the case of termination visiting civil consequence of jeopardising the livelihood and the careers of the dependents. but the fact situation that prevails in this case is not the same or similar in the judgment cited, and hence the proposition held therein does not become applicable to the case in hand.11. in reply, the learned counsel appearing for the respondent would submit that the petitioner, in spite of having been served with all necessary notices, has not submitted any explanation at the initial stage itself. but, he only proceeded against the authority before the civil forum filing the suit in o.s.no.390 of 1991 which even ultimately got dismissed on 27.7.1995 and thereafter, he does not seem to have pursued on appeal since there are no averments to that effect. the petitioner has also approached this court, but without any consequence, but never the petitioner had cooperated with the board in the conduct of the enquiry; that the petitioner appearing before the enquiry officer, should have explained how the shortage occurred and how he was not responsible for the same so as to get him out of the enquiry proceeding, and therefore, the impugned order dated 8.8.1996 passed by the board thereby ordering to recover the shortage amount of rs.91,579/= from out of the final settlement to be made in favour of the petitioner, cannot be concluded either arbitrary in nature or unreasonable or illegal.12. from the above pleadings of the facts and circumstances by parties and the discussion held on the successive events, it comes to be known that the board was empowered with such powers to order recovery of the shortage to the tune of rs.91,579/= from the retirement benefits of the petitioner since the board proceedings provided for making use of such powers entrusted by the board and such an order as one impugned herein has been passed, as against which, the petitioner had instituted the suit in the civil forum of law in o.s.no.390 of 1991 on the file of the court of district munsif, dharmapuri and the said suit also admittedly having come to be dismissed, nothing is left with for the petitioner before this forum since on an elaborate enquiry held, the civil forum has arrived at the conclusion to dismiss the suit thereby rejecting the case of the petitioner, against which, this court, sitting in the judicial review, cannot pass any order unless it is proved on the part of the petitioner that either the recovery proceeding initiated or the order impugned herein is bereft of authority or is done in an arbitrary and highhanded manner much less in violation of the high principles of natural justice and since no such plea made nor proof shown, the only conclusion that could be arrived at by this court in the above writ petition is to decline to interfere with the same. 13. no legal infirmity or inconsistency nor error apparent on the face of the order seems to have occurred in the manner in which the order impugned has come to be passed warranting the interference of this court. nor any lack of opportunity also comes to be seen in violation of the principles of natural justice, since no such points have been highlighted even on the part of the petitioner excepting to make a passing remark and what comes to be seen is that only the petitioner has not cooperated with the authorities in explaining the situation on his part, and therefore, it cannot, in any circumstance, be held as lack of opportunity contemplated by law, and therefore, there exists no valid legal ground in the whole of the case of the petitioner calling for the interference of this court as prayed for in the petition.14. in the above circumstances, the writ petition becomes liable only to be dismissed, in all respects.in result, there is no merit in the writ petition and the same is dismissed as such. no costs.

Judgment:
ORDER

V. Kanagaraj, J.

1. Petitioner has filed this Writ Petition praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the order dated 8.8.1996 in Memo. No.1-1/PS/A-1/142/96 on the file of the respondent and quash the same and further direct the respondent to release all the terminal benefits payable to the petitioner arising out of the retirement of the petitioner from the services of the respondent on 30.6.1995.

2. In the affidavit filed in support of the writ petition, the petitioner would submit that he was employed as Stores Custodian in the respondent Board; that during December 1988, the Stores were checked by the Special Team, Madras and found 56 items were in shortage; that therefore, the respondent issued a notice on 22.5.1989 against the petitioner to show cause as to why the cost of the materials found short should not be recovered from him; that the petitioner sent a reply on 5.6.1989; that the respondent issued yet another notice on 26.7.1989 calling upon him as to why the cost of materials allegedly worked out at Rs.1,50,689.37 plus centage and handling charge should not be recovered from him; that the petitioner also sent a reply on 3.8.1989 and thereafter, the respondent did not pass any order till 6.9.1995.

3. The petitioner would further submit that in the meantime, the respondent initiated disciplinary proceedings and kept him under suspension for some time and proposed to inflict punishment by directing demotion to the lower post for a period of three years, by a notice dated 6.6.1991; that therefore, the petitioner filed O.S.390 of 1991 and obtained an order of temporary injunction in I.A.886 of 1991 and the same was made absolute on 27.8.1991 and an order was passed on 12.1.1995 in C.M.A.No.30 of 1993 confirming the order dated 27.8.1991; that pending the suit, he was transferred to Kancheepuram and thereafter to Vellore and got retired from service on 30.6.1995 on attaining the age of superannuation; that the suit was dismissed on 27.7.1995 holding that the petitioner would not be entitled to the reliefs sought for by him.

4. The further averments of the writ petition are that the respondent issued a memo. dated 6.9.1995 informing about the recovery of a sum of Rs.1,74,046.00 from his terminal benefits; that he filed W.P.14266 of 1995 challenging the said memo. and this Court passed an order setting aside the memo. issued by the respondent further directing the respondent to issue fresh notice and pass appropriate orders, affording an opportunity to the petitioner; that subsequently, the respondent issued a charge memo. dated 27.1.1996 to show cause as to why the value of the materials in shortage should not be recovered from him and for that the petitioner also replied on 27.2.1996; that the petitioner also submitted his objections, but however, the respondent without considering any of his objections, passed the impugned order dated 8.8.1996 to recover a sum of Rs.91,579/= out of his terminal benefits.

5. In the counter filed on behalf of the respondent, besides denying the allegations of the writ petition, it would be submitted that when a complaint lodged with the police for the loss of materials was under investigation, the petitioner was reinstated into Board service by revoking his suspension orders without prejudice to the outcome of the police investigation and departmental action to be taken against him and was posted to another section viz., Meter and Relay Test at Dharmapuri that while the petitioner was working as Stores Custodian of MRT, Dharmapuri, he was arrested by the police on 14.2.1990 and was remanded to judicial custody for an offence punishable under Section 409 I.P.C.; that consequent to his arrest, he was again placed under suspension with effects from 14.2.1990; that pursuant to the disciplinary proceedings, he was ordered to be reverted to Grade II Stores Custodian.

6. The respondent would further submit that in finalisation of the departmental proceedings, a show cause notice indicating the provisional punishment of 'Reversion to the post of Stores Custodian II Grade for a period of three years' was issued by memo. dated 6/17.6.1991 for the charges proved which are grave in nature; that as per the order of this Court dated 29.11.1995, the respondent issued a fresh show cause notice to the petitioner on 27.01.1996; that an enquiry was proposed to be conducted on 10.4.1996 and subsequently posted to 15.4.1996; that the petitioner has also participated in the enquiry and he denied certain points and admitted certain lapses committed by him; that after considering certain points raised by the petitioner, the quantum of recovery of the amount had been reduced, with reference to the valid records; that after taking into consideration the replies furnished by the petitioner and the written objections, the quantum of amount of recovery has been reduced to Rs.91,579/- considering the like nature initial shortage and surplus in his section and the impugned order was passed; that there is no reason between the order of recovery of the loss of materials and the departmental proceedings instituted against him; that in the departmental proceedings, he was charged for negligence in his duties and the recovery order is for the shortage of materials in his custody; that the responsibility lies only with the Stores Custodian in respect of his section and hence for any shortage of materials, he would be the person answerable; that the petitioner has been paid the special provident fund cum gratuity and sanction has also been accorded for provisional pension. On such averments, the respondent would pray to dismiss the writ petition.

7. During arguments, the learned counsel appearing on behalf of the petitioner would lay emphasis on the legal point that after retirement, the respondent Board has no right to proceed against the servant and would cite a judgment reported in Bhagirathi Jena VS. Board of Directors, O.S.F.C. wherein in a case of such facts, the appellant therein was relieved on 1.7.1975 by the Corporation without prejudice to the claims of the Corporation and thereafter, the question arose with regard to the continuance of the disciplinary enquiry for the purpose of reduction of retiral benefits payable to the appellant. The appellant contended that he retired on 30.6.1995 and the disciplinary proceedings could not be continued even for the purpose of making reduction of the retiral benefits in as much as there were no statutory regulations made by the Corporation for such reduction of retiral benefits. The High Court of Orissa dismissed the writ petition and on appeal, the Apex Court held that having permitted the appellant to retire from service on 30.6.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant and in the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.

8. It is not the situation that is prevalent in the case in hand. In the case dealt with by the Apex Court, since there had been no provision to the effect that in case of misconduct being established, a deduction could be made after retirement from service as per the Corporation Rules, and therefore, without such authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant, the same cannot be done as concluded by the Apex Court. Here, the petitioner has not at all established that the respondent/Board is bereft of such authority, and therefore, the fact situation that prevailed for arriving at such conclusion in the above case does not prevail in the case in hand and hence, the ratio applied by the Apex Court therein does not become applicable to the case in hand.

9. yet another judgment reported in D.K. Yadav v. J.M.A. Industries Ltd. would be cited on the part of the learned counsel for the petitioner, wherein a Full Bench of the Apex Court has held that 'it is well settled that the right to life enshrined in Article 21 of the Constitution would include the right to livelihood. The order of termination visits with civil consequence of jeopardising not only the worker's livelihood but also the career and livelihood of the dependents. Therefore, before taking any action of putting an end to the tenure of an employee, fairplay requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice.'

10. No doubt, the above proposition held by the Honourable Apex Court has to be fully adhered to in any proceeding, especially in case of termination from service. But the petitioner's case is not that of termination, nor has he prayed for reinstatement in service nor for back-wages nor on such claims for the retirement benefits. In the case in hand, the petitioner's claim itself is to the effect of quashing the order impugned, which is for the recovery of a sum of Rs.91,579/= with further direction to release the terminal benefits payable to him. Therefore, it is not a case that could be treated on the proposition held by the Apex Court in the above judgment since there, it is the case of termination visiting civil consequence of jeopardising the livelihood and the careers of the dependents. But the fact situation that prevails in this case is not the same or similar in the judgment cited, and hence the proposition held therein does not become applicable to the case in hand.

11. In reply, the learned counsel appearing for the respondent would submit that the petitioner, in spite of having been served with all necessary notices, has not submitted any explanation at the initial stage itself. But, he only proceeded against the authority before the civil forum filing the suit in O.S.No.390 of 1991 which even ultimately got dismissed on 27.7.1995 and thereafter, he does not seem to have pursued on appeal since there are no averments to that effect. The petitioner has also approached this Court, but without any consequence, but never the petitioner had cooperated with the Board in the conduct of the enquiry; that the petitioner appearing before the enquiry officer, should have explained how the shortage occurred and how he was not responsible for the same so as to get him out of the enquiry proceeding, and therefore, the impugned order dated 8.8.1996 passed by the Board thereby ordering to recover the shortage amount of Rs.91,579/= from out of the final settlement to be made in favour of the petitioner, cannot be concluded either arbitrary in nature or unreasonable or illegal.

12. From the above pleadings of the facts and circumstances by parties and the discussion held on the successive events, it comes to be known that the Board was empowered with such powers to order recovery of the shortage to the tune of Rs.91,579/= from the retirement benefits of the petitioner since the Board proceedings provided for making use of such powers entrusted by the Board and such an order as one impugned herein has been passed, as against which, the petitioner had instituted the suit in the civil forum of law in O.S.No.390 of 1991 on the file of the Court of District Munsif, Dharmapuri and the said suit also admittedly having come to be dismissed, nothing is left with for the petitioner before this forum since on an elaborate enquiry held, the civil forum has arrived at the conclusion to dismiss the suit thereby rejecting the case of the petitioner, against which, this Court, sitting in the judicial review, cannot pass any order unless it is proved on the part of the petitioner that either the recovery proceeding initiated or the order impugned herein is bereft of authority or is done in an arbitrary and highhanded manner much less in violation of the high principles of natural justice and since no such plea made nor proof shown, the only conclusion that could be arrived at by this Court in the above writ petition is to decline to interfere with the same.

13. No legal infirmity or inconsistency nor error apparent on the face of the order seems to have occurred in the manner in which the order impugned has come to be passed warranting the interference of this Court. Nor any lack of opportunity also comes to be seen in violation of the principles of natural justice, since no such points have been highlighted even on the part of the petitioner excepting to make a passing remark and what comes to be seen is that only the petitioner has not cooperated with the authorities in explaining the situation on his part, and therefore, it cannot, in any circumstance, be held as lack of opportunity contemplated by law, and therefore, there exists no valid legal ground in the whole of the case of the petitioner calling for the interference of this court as prayed for in the petition.

14. In the above circumstances, the writ petition becomes liable only to be dismissed, in all respects.

In result, there is no merit in the writ petition and the same is dismissed as such. No costs.