A KRISHNASWAMY Vs. TAMIL NADU ELECTRICITY BOARD

JUDGEMENT

(1.) THE petitioner herein was appointed as a junior electrical engineer under the Tamil Nadu Electricity Board, the respondent herein on 6th July, 1955. Later he was promoted as Assistant Engineer [electrical]. While he was working as Assistant Engineer [electrical] at Thammampatti, Salem District, Between 16th April, 1969 and 26th July, 1970 some complaints had been received against him by the respondent. On the basis of the said complaints a charge memo dated 5th June, 1972 , containing a list of five charges was served on him on 15th June, 1972 by the respondent while the petitioner was working as Assistant Engineer (Electrical) at Vellore . After the petitioner submitted his explanation to the charges alleged against him in the charge memo, an oral enquiry was conducted. After the conclusion or the oral enquiry, the enquiry officer, one K. U. Krishnan who was the divisional Engineer (Electrical) Salem, submitted his report holding that charges 1 to 3 had been proved while the other two charges had not been proved. On receipt of the report, a show cause notice has been issued by the respondent dated 21st September, 1974 and on 7th November, 1974 the petitioner received the same. In the show cause notice was called upon to show cause, why he should not be removed from service. THE petitioner submitted his representation on 4th december, 1974 and prayed for another personal hearing by the Board. On receipt of the representation, the respondent decided to give the petitioner a personal hearing again and he was asked to appear before the Board on 10th August, 1976 for personal hearing. But the personal hearing was given by the technical member of the board and not by the entire Board. After the said personal hearing the respondent passed a final order dated 30th December, 1976 , removing the petitioner from service.

(2.) THE said order removing the petitioner from service has been challenged in this writ petition on the following grounds : (1) THE electricity Board was not legally competent to nominate the enquiry officer, namely, the Divisional Engineer for holding an enquiry as there is no power vested in the Board to delegate its functions to any subordinate authority such as the enquiry officer and, therefore, the nomination of the enquiry officer was without jurisdiction. (2) THE enquiry conducted by the enquiry officer was not in accordance with the statutory rules framed for conducting enquiries against the employee of the respondent. (3) THE enquiry conducted against the petitioner by the enquiry officer was opposed to the principle of natural justice in that the prosecution witnesses were not recalled for further cross-examination as desired by the petitioner (4) THE finding rendered by the enquiry officer on the three charges which he held proved cannot be sustained on the materials produced at the enquiry. (5) THE impugned order terminating the petitioner's services is vitiated for the reasons that the personal hearing offered to the petitioner after the issue of the show cause notice proposing penalty was by the technical member and not by the full Board which alone can hear the petitioner as a punishing authority. (6) THE respondent-Board was merely guided by the enquiry officer's report which according to the petitioner is one-sided and biased, in terminating the petitioner's services without independently applying its mind to the materials on record with reference to the charges.

(3.) AS regards the fifth ground of attack, it is not disputed by the respondent that the personal hearing given to the petitioner was only by the technical member and not by the full Board. The question is whether such a procedure can be taken to be valid. According to the petitioner the show cause notice was given by the Board, and he sought an oral hearing only by the full Board and not by one member of the Board and the show cause notice having been given by the Board he has to satisfy the Board as regards his innocence, and as such hearing by one member of the Board cannot be taken to be a hearing by the entire Board. It is said that in view of the fact that one member of the Board gave a personal hearing, the Board had been only guided by the impression gathered by that member at the personal hearing and that the petitioner has, therefore, lost a valuable right of making a personal representation to the entire Board and convincing it about his innocence. The counter-affidavit, does not deal with this ground of attack at all. However, we are not inclined to agree with the petitioner that the personal hearing should be given only by the full Board and not by a member of the Board even if he had been specifically authorised to do so by the Board. Though the counter-affidavit is silent on this point, one can presume that the Board has authorised the technical member to give a personal having to the petitioner, especially when the Board has called upon the petitioner to appear before the board for a personal hearing and the hearing has actually given by the technical member. We have to proceed, therefore, on the basis that the technical member has been duly authorised by the Board to give a personal hearing to the petitioner and report the matter to the Board. It has to be pointed out that the petitioner also did not object to the procedure at the time of oral hearing on the ground that the full Board alone should hear him. It is well-established that a statutory body composed of numerous individuals can delegated its authority to an officer or authority subordinate to it to act on its behalf in the matter of conducting a disciplinary enquiry. It is not possible for such a body composing of numerous individuals to hear personally every employee against whom disciplinary proceedings had been taken. Lord denning M. R. in Reg v. Race Relation Ex parte P. Selvarajan, dealing with the function of the Race Relations Board constituted under the Race Relations Act, 1968 expressed : "in recent years we have had to consider the procedure of many bodies who are required to make an investigation and from an opinion, notably the Gaming Board, who have to enquire whether an applicant is fit to run a gaming club see Reg. v. Gaming Board for Grate Britain, Exparte. Benam and Khaida, [1970] 2 Q. B. 417 : inspectors under the companies Act, 1948 who have to investigate the affairs of a company and make a report; see In re pergamon Press Ltd. , and Commissioner of Inland Revenue who have to determine whether there is a prima facie case; see Wiseman v. Borneman. In all these cases it has been held that the investigating body is under a duty to act fairly; but that which farness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties or be exposed, to prosecution or proceedings, or deprived or remedies or redress, or in some such way adversely afflicted by the investigation and report, then he should be told the case made against him and he afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad ground are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But in the end, the investigationg body itself must come to its own decision and make its own report. " * The same Law Lord dealing with the power of delegation by the Board of certain functions to some of its members expressed the view thus : "if this had been a judicial body, I do not think this would be right. Every member of a judicial body must have access to all the evidence and papers in the case, he must have heard all the arguments, and he must come to his own conclusion. The maxim delegates non protest delegate apples strictly to judicial functions. But it is different with a body which is exercising administrative functions or which is exercising administrative functions or which making an investigation or conducting preliminary inquiries, especially when it is a numerous body. The Race Relations Board has 12 members. The employment committee has seven members. It is impossible to suppose that all of them need sit to determine a matter, or that all of those who sit should have read all the papers or heard all the evidence. But I do not think that two or three, at any rate must have done so. If there is a quorum of, say, three, I should think a quorum must have done so. That is the ordinary accepted method of carrying on business. It should be applied here, also. Lawton, L. J. expressed his view in the same case thus :" * For my part, I can see no reason at all why the board should not delegate to its staff the function of collecting information. It would be impractical for the members of the board themselves to make investigations. How the board does what parliament has entrusted it to do is not matter for the Courts to decide as long as it acts fairly and in good faith. It is for the board, not the Courts to decide how much information each of its members should have when considering a particular case. AS long as the board or one of its constituent committees has enough information to enable it to make a fair assessment of the case, the Courts will not interfere. How it gets the information is for the chairman and his advisers to decide. He may decide in a particular case that each member of the board, or the committee, should have a copy of the whole file. In another case he may consider that the case can be adequately and fairly dealt with if one member has the file and reports to the others what is in it. In this case, three members of the employment committee had a copy of the complete file. This was enough to enable the committee to deal with the applicant's case fairly. "scarman, L. J. was of the view that : " The board is, of course, subject to the supervisory powers of the High Court. If it fails to perform a statutory function, mandamus will lie. If it fails to act fairly, the High Court can intervene by certiorari prohibition or mandamus to ensure that it does. Subject to such supervision (the limits of which in the case of an administrative agency charged with making decisions that directly affect private persons are by now well-known), the Race Relation Board - not the Courts-decides in its field how to go about the task of securing compliance with the law and resolving difference. "in Ved Prakash Malhotra v. State Bank of India, 1974 (1) ILR (Delhi) 660, it has been pointed out that in respect of institutional decision it cannot be expected that the institution has to act as full body always, and that the institution can devise its won procedure in carrying out its duties. Having regard to the principle laid down in the above case we are of the view that in this case the mere fact that personal hearing was given by the technical member record of which he had submitted to the Board is not improper. Admittedly the decision has been taken by the full Board in this case and, therefore, the enquiry proceedings cannot be said to be vitiated.