TAMIL NADU ELECTRICITY BOARD Vs. SUPERINTENDING ENGINEER ANNA ELECTRICITY DISTRIBUTION CIRCLE TAMIL NADU ELECTRICITY BOARD DINDIGUL

JUDGEMENT

(1.) THE writ petition is for the issue of a writ of certiorarified mandamus to quash the orders of compulsory retirement passed against the petitioner and for reinstatement with backwages and other attendant benefits.

(2.) THE brief facts arising in this case are follows: THE petitioner has joined the respondent Corporation as junior Engineer in the year 1971. In the year 1979, he was promoted as assistant Divisional Engineer. In the year 1982, he had been transferred to the sub-station of Sempatty within the Distribution Jurisdiction of Divisional engineer, Dindigul (South ). It is averred in the writ petition that due to ill-health of the petitioner and on account of multiplicity of complications and mental agony, he has applied for leave from 27. 10. 1983 to 10. 11. 1983 for a period of fifteen days. THE petitioner has applied for extension of leave for 15 days from il 1. 11. 1983 for which the Divisional Engineer by his proceedings dated 14. 11. 1983 referred the matter for second medical opinion to the District medical Officer at Dindigul. THE District Medical Officer has admitted the petitioner in the hospital as inpatient for investigation upto 2. 12. 1983 and also recommended the leave upto 16. 12. 1983. Since there was no improvement in the petitioner' ; s health, he approac hed the specialist at madurai who after further investigation has recommended leave upto 14. 2. 1984. THE petitioner was constrained to extend the leave from 15. 2. 1984 as unearned leave on private affairs by submitting the leave application in time. THE petitioner has also annexed the statement showing the dates on which he applied for leave. It is the case of the petitioner that the Divisional Engineer did not recommend his leave after 14. 2. 1984 to the competent authority namely the superintending Engineer Madurai (North ). By proceedings dated 26. 7. 1984, the divisional Engineer issued a charge memo to the petitioner for taking leave. By memo dated 12. 1. 1985, the Superintending Engineer has dropped the proceedings. From 13. 8. 1984, the petitioner submitted his further leave application to the superintending Engineer. THEre was no rejection or refusal of leave application of the petitioner by the Superintending Engineer. By letter dated 21. 2. 1986, the Divisional Engineer asked the petitioner about an acknowledgment for a memo dated 7. 1. 1986 of the Superintending Engineer, which was said to have been sent by the Divisional Engineer in his covering letter dated 31. 1. 1986, enclosing two leave applications for the period from 8. 8. 1985. On receipt of the said communication, by his letter dated 26. 2. 1986, the petitioner informed the divisional Engineer that he did not receive any such memo with enclosures. In turn, the Divisional Engineer by memo dated 17. 3. 1986 furnished a copy of the letter of the Superintending Engineer dated 7. 1. 1986 to the petitioner. In the said memo the Divisional Engineer has stated that the earlier memo of the superintending Engineer with two leave applications were sent by registered post acknowledgment due. On 25. 3. 1986, the petitioner has intimated the divisional Engineer that he has not received the communication dated 7. 1. 1986 along with two leave applications. THE petitioner requested to send a copy of the prescribed form for leave application for submitting the leave applications from 8. 8. 1985. He has further intimated that the leave applied for by the petitioner expires on 4. 5. 1986 and he shall join duty on 5. 5. 1986 after producing medical certificates. THE Divisional Engineer through his memo dated 31. 3. 1986 has forwarded the above application dated 25. 3. 1986 to the superintending Engineer for further action. It is averred by the petitioner that there was no reply from the respondents to his leave letters. THErefore he submitted his joining report with a medical fitness certificate to the Chief engineer, (personnel) Madras, through the Superintending Engineer, with a request for early posting orders. THE aforesaid letter was acknowledged by the superintending Engineer on 7. 5. 1986. On 30. 5. 1986 the Superintending Engineer has issued a charge memo that he has not expressed his willingness to join duty in the Board before 18. 1. 1986. To the said charge memo, the petitioner has submitted his explanation on 12. 6. 1986. It is alleged by the Petitioner that the Superintending Engineer is not the competent authority to issue a charge memo against him, the disciplinary authority being the Chief Engineer. THE superintending Engineer has appointed an enquiry officer for proceeding further, in his memo dated 30. 5. 1986. THE petitioner has attended the enquiry before the enquiry officer- Divisional Engineer and gave his written statement to the said enquiry officer for the above charge. It is averred by the petitioner that the enquiry officer has given a report with a finding that the said charge was not proved against him. On 21. 8. 1986, the Chief Engineer (Personnel) has issued an order of suspension purported to be one under Regulation 9 of the tamil Nadu Electricity Board Discipline and Appeal Regulations, suspending the petitioner with immediate effect. THE same has been communicated to the petitioner on 23. 8. 1986. In the said order, the Headquarters of the petitioner was fixed at Sembatti eventhough he was residing at Sri Krishna Mills, Y. M. R. Patti, Dindigul. On 26. 8. 1986 on receipt of the suspension order, the petitioner requested the Superintending Engineer to allow him to reside at dindigul. . THE Superintending Engineer has negatived his request by his letter which was received by the petitioner on 8. 10. 1986. THE petitioner seems to have made a representation to the Chief Engineer for seeking permission to allow him to remain at Dindigul. On 16. 10. 1986 the petitioner made specific request that the allowances which will be applicable at Sempatty may be paid for his stay at dindigul. THEre was no reply from the Chief Engineer. However on 23. 6. 1987 the first respondent issued a charge memo for the very same charge which has been dropped at the first instance and held not proved in the second instance. In the abovesaid charge memo it was alleged that the leave of absence was treated as misconduct. On 8. 7. 1987 the petitioner has submitted his explanation. On 16. 12. 1987, he has attended the enquiry before the enquiry officer and submitted his written explanat ion in the said enquiry. Eventhough the enquiry was over by 16. 12. 1987, the first respondent did not pass any orders till january 1989. Nearly after 13 months from the date of enquiry, the impugned order of compulsory retirement was directed to be passed by the Board in the board' ; s proceedings No. 3 dated 19. 1. 1989, which is impugned in this writ petition. THE petitioner was relieved from the services of the Board on 31. 1. 1989. It is also stated that the petitioner has filed a review petition on 20. 2. 1 989 to the first respondent. THE said review petition was rejected by order dated 13. 7. 1989. It is further alleged that the Superintending Engineer has passed orders on 22. 6. 1989 regularising the period of suspension from 26. 8. 1986 till 31. 1. 1989 granting 109 days as earned leave from 26. 8. 1986 to 12. 12. 1986, extraordinary leave without pay and allowance from 13. 12. 1986 to 31. 1. 1989. THEre seems to be no order for payment of subsistence allowance by the first respondent.

(3.) IT is also argued on behalf of the respondents that the petitioner was continuously on unauthorised absence and leave was sanctioned upto 16. 12. 1983 and he disobeyed the orders of the superiors as he did not appear before the District Medical Officer for the second opinion. Hence the charges were framed and they are sustainable. IT is clearly stated in the counter that the subsistence allowance was negatived by the Superintending engineer as he did not stay at the Headquarters.