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SUPERINTENDING ENGINEER versus THE PRESIDING OFFICER,2. S. CHANDRASEKARAN

High Court of Madras

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Superintending Engineer v. The Presiding Officer,2. S. Chandrasekaran - W.P.NO. 10097 OF 1995 [2002] RD-TN 118 (1 March 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:01-03-2002

CORAM

THE HONOURABLE MR. JUSTICE P.K. MISRA

W.P.NO. 10097 OF 1995

Superintending Engineer,

Madurai Electricity Distribution

Circle, T.N.E.B., Madurai. .. Petitioner Vs.

1. The Presiding Officer, Labour Court, Madurai.

2. S. Chandrasekaran .. Respondents Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari as stated within. For Petitioner : M/s.T.S. Gopalan & Co.

For Respondent-1: Ms.N.G. Kalaiselvi

Special Govt.Pleader : J U D G M E N T



Present writ petition has been filed by the Superintending Engineer, Madurai Electricity Distribution Circle, Tamil Nadu Electricity Board, challenging the award passed by the Presiding Officer, Labour Court, Madurai in I.D.No.109 of 1992 directing reinstatement of the second respondent without backwages.

2. The second respondent was employed under the petitioner initially as a helper and subsequently as Junior Assistant. While he was working in such capacity in Samayanallur, Revenue Branch he was transferred as Assessor to Nattam Section and he was relieved on 21.8.86. However, he did not join in the transferred post, but gave a belated leave application on medical ground by attaching a Medical Certificate. Such belated leave application was rejected and charge sheet dated 21.3.1987 was issued alleging that the second respondent has remained unauthorisedly absent by disobeying the orders of the superiors. Such chargesheet was issued by the Executive Engineer of the Board. Even though the second respondent did not file his explanation, he participated in the enquiry held by an Assistant Executive Engineer. On the basis of the findings submitted by the Enquiry Officer, The Superintending Engineer came to a prima facie conclusion that the second respondent should be dismissed from service and accordingly a second show cause notice was issued. The explanation furnished by the second respondent having been not found convincting, by an order dated 15.5.198 9, the second respondent was dismissed from service. The appeal filed preferred by the second respondent was rejected. Subsequently the second respondent raised I.D.No.109 of 1992.

3.It was held by the Labour Court that the Superintending Engineer being the appointing authority, the Executive Engineer has no authority to issue charge memo and as such the entire departmental proceedings was vitiated.

For the aforesaid conclusion, the Labour Court relied upon a Division Bench decision reported in 1992 W.L.R. Madras 472 (T.N.E.B., rep. By its Chairman, and 2 others Vs. A. Paranthaman). On this finding, the Labour Court directed the Management for reinstatement of the second respondent without backwages. Against that order, the present writ petition is filed.

At the time of admission of the writ petition, interim stay was granted subject to compliance of Section 17-B of The Industrial Disputes Act, 1947.

4. At the time of argument, the learned counsel for the petitioner has submitted that charge memo was issued by the Executive Engineer at the instance of the Superintending Engineer which is evident by M. OS.4 & 5 and he has further submitted that law does not require that charge memo must be issued only by the appointing authority and the controlling authority has got no power to issue charge memo. He has also invited my attention to the Standing Orders of the Electricity Board which authorise initiation of departmental proceedings by the Executive Engineer.

5. Standing Orders of the Board has been produced. Paragraph 32 of the Standing Orders contain the procedure to be followed in disciplinary cases. 32(1)prescribes

" The Board shall specify from time to time the authorities that are competent to impose

the various punishments under the Standing

Orders provided that only the appointing authority can impose punishments listed out in Standing

Order 31(i), (iv), (viii), (ix) and (x)."

Standing Order 31(vi), (viii), (ix) and (x) relate to demotion to lower post or lower grade, compulsory retirement, removal from service and dismissal from service respectively, whereas 31(i) relates to Censure. On the other hand 31(v) relates to reduction in time scale of pay for a specific period.

6. It has to be noticed that Standing Orders no where specifically contemplate that the disciplinary proceedings including framing of charge can be done only by the appointing authority. On the other hand Standing Order 32(i) clearly empowers the Board to specify from time to time, the authorities authorised to impose the various punishments. Moreover such standing order has made it clear that some of the punishments indicated in 32(1) can be imposed by any other authority and not necessarily the appointing authority. In fact the Board has specified that other minor punishments can be imposed by other authorities.

7. It goes without staying that if any other authority is authorised to impose minor punishments, before imposing such punishment he is obviously authorisd to initiate disciplinary proceedings. At the stage of initiation of disciplinary proceedings the punishment which would be ultimately imposed cannot be contemplated. Even if the proceedings is initiated by an authority subordinate to the appointing authority and it is found that higher punishment is to be imposed, it is obvious that such matter has to be dealt with by the authority competent to impose the major punishment, such as dismissal, removal from service, etc. But that does not mean that in all cases, the authority competent to dismiss a person can initiate proceedings. Article 311 of the Constitution does not contemplate that proceedings cannot be initiated by any authority other than the appointing authority, but it is contemplated that punishments such as reduction in pay scale, dismissal, removal from service, etc. can be done only by the appointing authority. If Standing Orders provide that disciplinary proceedings can be initiated only by the appointing authority, obviously such regulation has to be followed. But, in the absence of specific regulation to the aforesaid effect, it cannot belaid as a matter of rule that in every case disciplinary proceedings has to be initiated by the appointing authority and not by any other authority. With respect I may observe that the Division Bench decision did not keep in view this aforesaid distinction. In normal course a single Judge is bound by the decision of the Division Bench and I would have referred the matter to the Division Bench for reconsideration. However, I find that there are several decisions of the Supreme Court which have taken a view contrary to the one laid down in the Division Bench and with respect I venture to observe that the decision of the Division Bench has been impliedly over-ruled in the subsequent decisions of the Supreme Court.

8. In 1993(1) S.C.C. 419 (P.V. SRINIVASA SASTRY AND OTHERS Vs. COMPTROLLER AND AUDITOR GENERAL AND OTHERS) legality of an order made by an authority lower than the appointing authority to initiate a departmental proceedings was in question. While considering the abovesaid aspect, it was observed by the Supreme Court as follows:- "Article 311(2) says that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds civil post under the Union or a State " shall be dismissed or removed by an authority subordinate to that by which he was appointed". Whether this guarantee includes within itself the guarantee that even the disciplinary proceeding should be initiated only by the appointing authority ? It is well known that departmental proceeding consists of several stages: the initiation of the proceeding, the inquiry in respect of the charges levelled against that delinquent officer and the final order which is passed after the conclusion of the inquiry. Article 311(1) guarantees that no person who is a member of a civil service of the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. But Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holder of a civil post. But in the absence of any such rule, this right or guarantee does not flow from Article 311 of the Constitution. It need not be pointed out that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences, and the framers of the Constitution did not consider it necessary to guarantee even that to holders of civil posts under the Union of India or under the State Government. At the same time this will not give right to authorities having the same rank as that of the officer against whom proceeding is to be initiated. In absence of a rule, any superior authority who can be held to be the controlling authority, can initiate such proceeding."(emphasis added)".

9. As already indicated, there is no regulation of the Board prescribing that a disciplinary proceeding can be initiated only by the appointing authority though the regulation prescribes some of the major punishment such as dismissal, removal can be imposed only by the appointing authority.

10. Aforesaid decision was followed in 1996(2) S.C.C. 145( INSPECTOR GENERAL OF POLICE AND ANOTHER Vs. THAVASIAPPAN) wherein the principle was reiterated that in the absence of any specific rule, the initiation of proceedings by an authority higher in rank to the delinquent (controlling authority) is not vitiated and it is not necessary always that the departmental proceedings has to be initiated only by the appointing authority.

11.Similar views are again expressed in A.I.R. 1998 SC 2210 (Steel Authority of India and another Vs. Dr.R.K. Diawakar and others) wherein the Supreme Court relied upon the decision of 1996 (4) SCC 708 ( Director General, ESI Vs. T. Abdul Razak) and quoted with approval the following observations :-

" With regard to initiation of disciplinary proceedings by the Regional Director, we find that the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be controlling authority who may be an officer subordinate to the appointing authority. The Regional Director, being the officer-in-charge of the region, was the controlling authority in respect of the respondents. He could institute the disciplinary proceedings against the respondents even in the absence of specific conferment of a power in that regard."

12. It has to be noticed that all the Supreme Court decisions have placed reliance upon an earlier decision of the Supreme Court reported in 1970(1) SCC 108 (State of Madhya Pradesh Vs. Shardul Singh) Unfortunately the various decisions of the Supreme Court holding the field have not been noticed by the Division Bench. Moreover, since subsequent Supreme Court decisions have categorically taken a contrary view, it must be held that the opinion expressed in the Division Bench of this Court cannot be followed in preference to the views expressed by the Supreme Court subsequently.

13. If this is the position of law and there cannot be any escape from such conclusion because of the Supreme Court decisions, the conclusion of the Labour Court that the Departmental Proceedings has been initiated as it was initiated by the Executive Engineer, who was not the appointing authority, cannot be sustained. It is obvious that such a proceedings could have been initiated by the Controlling Authority even though he is not the appointing authority.

14. Once the above conclusion is reached, the submission of the counsel for the petitioner that the award of directing reinstatement being erroneous should be quashed. Since the Labour Court has proceeded on the footing that the charge framed is by the Executive Engineer and the Departmental Proceedings was vitiated, he had no occasion to deal with the question of punishment which was imposed. In normal course, I would have remanded the matter to the Labour Court on this point for fresh consideration. However, I feel that adopting such a course at this belated stage would not be in the interest of justice. Allegations relate to the period of more than a decade old and direction for reinstatement without backwages had been stayed by this Court subject to compliance of Section 17-B of the Industrial Dispute Act. Dispute was decided by the Labour Court in 1994 and as such no salary was payable to the second respondent till that date and subsequently by virtue of the stay order only, the last pay drawn was paid to the petitioner. The second respondent possibly has few more years to go before attaining the age of superannunation. Having regard to all these aspects and to put an end to the litigation, I think interest of justice would be served by directing that the order of reinstatement would be effective with effect from one month from the date of the present decision and for the period prior to that the second respondent would not be entitled to any other wages or payment, except the payment already made. The petitioner may be permitted to rejoin after a period of one month. Writ Petition is disposed of accordingly. There shall be no order as to costs. Index : Yes / No

Internet : Yes / No

dpk

To

The Presiding Officer,

Labour Court, Madurai.

Judgment in WP.No.10097/1995

01-03-2002




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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