S RAVICHANDRAN Vs. TAMIL NADU ELECTRICITY BOARD

JUDGEMENT

(1.) WRIT Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari after calling for the concerned records from the respondents, quash the order of the 1st respondent bearing Proceedings No./NP3/U1/K.Appeal/04 dated 04.11.2004, the order of the 2nd respondent dated 21.06.2004, bearing K.A.No,4237-2/SAPA/O&M/K/T.Malai/N.M./O.N.18/2004 and the charge memo issued by the 3rd respondent bearing Proceedings No.U.S.P/V/Ko.O.N./V.No.019/2003 dated 08.08.2003. Challenging the order of the 1st respondent dated 04.11.2004, the order of the 2nd respondent dated 21.06.2004, and the charge memo issued by the 3rd respondent dated 08.08.2003, the petitioner has filed this writ petition.

(2.) THE petitioner has stated that he joined the services of the respondent Board as a Helper on 25.01.1988. Initially, he was working in the Nagapattinam Electricity Distribution Circle and thereafter, he was transferred to the Tiruvannamalai Electricity Distribution Circle and was promoted as Commercial Assistant and posted at Vettavalam, O & M Section. While so, he was suspended and issued a Charge Memo dated 08.08.2003 by the 3rd respondent. THE petitioner submitted his explanation to the said Charge Memo on 21.08.2003 denying the charges. According to the petitioner, in the enquiry conducted by the Assistant Executive Engineer (O & M), Mangalam, he was not given opportunity to defend himself. THEreafter, the 2nd respondent issued a second show cause notice dated 02.04.2004, stating that the Enquiry Officer had submitted his report holding that the charges levelled against the petitioner is proved and proposed a penalty of stoppage of next increment for a period of one year with cumulative effect. To the said show cause notice, the petitioner submitted his explanation dated 14.05.2003 and the 2nd respondent, by his order dated 21.06.2004 imposed the punishment of stoppage of one increment with cumulative effect. Against the said order, the petitioner went on appeal before the 1st respondent on 02.08.2004, but, the appeal was rejected by the 1st respondent, by an order dated 04.11.2004. 2a. According to the petitioner, the sum and substance of the allegation in the Charge Memo dated 10.07.2003 was that on 10.07.2003 at 8.30pm, he went along with Arumugam, Accountant to a hotel belonging to one Deenadayalan, Vettavalam Tirukoilur Road and assaulted Kathirvel (Accounts Inspector), who was taking food, and attempted to murder him and abused him with unparliamentary words, which according to the Board would amount to misconduct under clause 30 (xxiii) of the Standing Orders applicable to clerical staff. While misconduct under clause 30 (xxiii) of the said Standing Orders relate to spreading of rumours, spreading false information with an intention to disrepute the Board or employees of the Board or to create unrest, it is the case of the petitioner that the allegation made against him in the charge memo dated 10.07.2003 would not amount to misconduct under the said clause and that neither the alleged assault and abuse had taken place in the premises of the respondent Board nor does it relate to his employment with the respondent Board hence, the Charge Memo dated 10.07.2003 is wholly without jurisdiction and illegal. 2b. THE petitioner further submitted that his appointing authority is the Superintending Engineer, viz, the 1st respondent herein and as per clause 8 of the Discipline and Appeal Regulation, only the competent authority, i.e. the 1st respondent herein can initiate disciplinary proceedings against him and as per clause 8(f) of the Discipline and Appeal Regulation, only on authorisation of the competent authority any other officer superior to him can initiate disciplinary proceedings against him by issuing charge memo. According to the petitioner, the 3rd respondent has not been authorised to initiate proceedings further, the 2nd respondent cannot impose punishment on him therefore, the charge memo issued by the 3rd respondent, the order of punishment issued by the 2nd respondent and the order of confirmation of punishment passed by the 1st respondent are wholly without jurisdiction and contrary to the rules and regulations of the respondent Board. 2c. In the explanation dated 21.08.2003, the petitioner has clearly stated that on 10.07.2003, while he was going to hospital, he witnessed Kathirvel and Arumugam standing on the road and talking in a high pitched voice and when he requested them not to shout, Kathirvel did not take it in the right spirit and asked him to mind his business thereafter, the petitioner returned back home. It is the further case of the petitioner that his request to the Enquiry Officer during the enquiry held on 05.11.2003 to permit him have the assistance of R.Sivakumar, General Secretary of the Union to which he belongs was rejected and that the Enquiry Officer was not acting independently, and he was acting as per the direction of a person who had brought him in the Enquiry as his assistant. 2d. It is the further case of the petitioner that the Enquiry Officer conducted exparte enquiry and examined witnesses in his absence and the proceedings of the enquiry was also not forwarded to him. THEreafter, the 2nd respondent issued a second show cause notice dated 02.04.2004 stating that the Enquiry Officer had rendered a finding that the charge levelled against the petitioner is proved and proposed a penalty of stoppage of one increment with cumulative effect. According to the petitioner, the Enquiry Report was not forwarded neither before issuance of the second show cause notice nor along with the same. He submitted his explanation to the second show cause notice on 14.05.2004, in which he has pointed out that the allegation would not amount to misconduct under the Standing Orders and that for the allegation of attempt murder, there cannot be any disciplinary proceedings by the respondent and also pointed out that the alleged incident has nothing to do with the employment under the respondent Board and therefore, the disciplinary proceedings is without jurisdiction. Aggrieved by the orders passed by the respondent Board, the petitioner is before this court.

(3.) LEARNED counsel for the petitioner would contend that the allegation made in the Charge Memo dated 10.07.2003 would amount to misconduct under clause 30 (xxiii) of the Standing Orders applicable to clerical staff, which relates to spreading rumours, spreading false information with an intention to cause disrepute to the Board or employees of the Board or to create unrest whereas, the alleged incident is not connected with the employment of the petitioner and the alleged assault and abuse had not taken place in the premises of the respondent Board therefore, the orders of the respondents suffer from legal infirmity and they cannot be sustained. He would also contend that non-furnishing of the Enquiry Officer's Report to the petitioner and non-reliance of the same by the 2nd respondent have caused grave prejudice to the petitioner. 5a. LEARNED counsel would also contend that as per clause 8(f) of the Discipline and Appeal Regulation, only on authorisation of the competent authority any other officer superior to the rank of the petitioner can initiate disciplinary proceedings by issuing charge memo. But, the 3rd respondent has not been authorised by the 1st respondent to initiate proceedings further the 2nd respondent cannot impose punishment on the petitioner therefore, the charge memo issued by the 3rd respondent, the order of punishment issued by the 2nd respondent and the order of confirmation of punishment passed by the 1st respondent are wholly without jurisdiction and contrary to the rules and regulation of the respondent Board. According to the learned counsel, enquiry was conducted in violation of the principles of natural justice. In support of his case, learned counsel has relied on a decision of the Supreme Court reported in 1984 (1) LLJ 16 (Glaxo Laboratories (I) Limited vs. Labour Court, Meerut and others), wherein, relevant paragraphs would read as under: 11. ... the expression 'committed within the premises of the establishment or in the vicinity thereof can qualify only the expression 'any act subversive of discipline and efficiency and any act involving moral turpitude' but not the earlier portion of the clause. Numerous acts of misconduct have been collocated in cl.10 such as drunkenness, fighting, indecent or disorderly behaviour, use of abusive language, wrongfully interfering with the work of other employees etc. ... these acts of misconduct are per se misconduct that each one of them cannot have any correlation to the time or place where it is committed and each one of it is an act of misconduct irrespective of the time and place where it is committed. Expanding of the submission, it was urged that drunkenness is such a socially reprehensible action that if it is committed within the premises of the establishment or in the vicinity thereof or anywhere else at any point of time it would none the less be an act of misconduct comprehended in cl.10 and punishable under standing order 23. If this construction were even to be accepted the employer will have more power than the almighty State because State chooses to punish drunkenness in public place. But on the construction canvassed for if a man consumes liquor in his own house with the doors closed and gets drunk, the employer can still fire him. If a man uses abusive language towards his close relation in his own house with closed door, the employer would be entitled to fire him, and this approach overlooks the purpose of prescribing conditions of service by a statute. To enable an employer to peacefully carry on his industrial activity, the Act confers powers on him to prescribe conditions of service including enumerating acts of misconduct when committed within the premises of the establishment. The employer has hardly any extra territorial jurisdiction. He is not the custodian of general law and order situation nor the Guru or mentor of his workmen for their well regulated cultural advancement. If the power to regulate the behaviour of the workmen outside the duty hours and at any place wherever they may be was conferred upon the employer, contract of service may be reduced to contract of slavery. ... The employer has both power and jurisdiction to regulate the behaviour of workmen within the premises of the establishment, or for peacefully carrying the industrial activity in the vicinity of the establishment. When the broad purpose for conferring power on the employer to prescribe acts of misconduct that may be committed by his workmen is kept in view, it is not difficult to ascertain whether the expression 'committed within the premises of the establishment or in the vicinity thereof' would qualify each and every act of misconduct collocated in cl.10 or the last two only, namely, 'any act subversive of discipline and efficiency and any act involving moral turpitude'. To buttress this conclusion, one illustration would suffice. Drunkenness even from the point of view of prohibitionist can at best be said to be an act involving moral turpitude. If the misconduct alleging drunkenness as an act involving moral turpitude is charged, it would have to be shown that it was committed within the premises of the establishment can be disregarded. This makes no sense. And it may be remembered that the power to prescribe conditions of service is not unilateral but the workmen have right to object and to be heard and a statutory authority namely, Certifying Officer have to certify the same. Therefore, the larger objective sought to be achieved by prescribing conditions of employment in certified standing orders, the only construction, one can put of cl.10 is that the various acts of misconduct therein set out would be misconduct for the purpose of S.O.22 punishable under S.O.23, if committed within the premises of the establishment or in the vicinity thereof. What constitutes establishment or its vicinity would depend upon the facts and circumstances of each case. 12.... "In our opinion, on a plain reading of the clause, the words "within the premises or precincts of the establishment" refer not to the place where the act which is subversive of discipline or good behaviour is committed but where the consequence of such an act manifests itself. In other words, an act wherever committed, if it has the one effect of subverting discipline or good behaviour within the premises of precincts of the establishment, will amount to misconduct under Standing Order 24(1). We are unable to agree that Standing Order 24(1) leaves out of its scope an act committed outside though it may result in subversion of discipline or good behaviour within the premises or precincts of the establishment in question. Such a construction in our view would be quite unreasonable. ... A statute is regarded as penal for the purpose of construction if it imposes fine, penalty or forfeiture other than penalty in the nature of liquidation of damages or other penalties which are in the nature of civil remedies. It is a general rule that penal enactments are to be construed strictly and not extended beyond their clear meaning. ... If the expression 'committed within the premises of the establishment or in the vicinity thereof' is given a wide construction so as to make the clause itself meaningless and redundant, the penal statute would become so vague and would be far beyond the requirement of the situation as to make it a weapon of torture. ... If any misconduct committed anywhere irrespective of the time-place content where and when it is committed is to be comprehended in cl.10 merely because it has some remote impact on the peaceful atmosphere in the establishment, there was no justification for using the words of limitation such as 'committed within premises of the establishment or in the vicinity thereof'. These are words of limitation and they must cut down the operation of the clause. ..."