S V ANGAPPAN Vs. TAMIL NADU ELECTRICITY BOARD

JUDGEMENT

(1.) THE writ petitioner prays for the issuance of a writ of certiorarified mandamus to call for the records relating to B. P. Ms. (FB) No. 19, Administrative Branch, dated 5th March, 1985 of 5 the first respondent and also B. P. Ms. (FB) No. 21, Administrative Branch, dated 11th February, 1985 and quash the order of the first respondent dated 5th March, 1985 and to reinstate the petitioner back into service with continuity of service and other attendant benefits.

(2.) THE facts are briefly as follows :- The petitioner was employed as Special Grade Accountant in the respondent Board. He did not attend office since September 1972 except for a small spell of sevens days in the year 1981. Leave was sanctioned to the petitioner only upon 31st March, 1983. The petitioner did not attended office after 1st April, 1983 and applied for extension of leave. Since the petitioner was not attending the office of the respondent Board and there were no special circumstances to grant the leave asked for by the petitioner, the leave was refused and the petitioner was directed to join duty before 31st July, 1983, by memo of the Chief Engineer (Personnel) of the respondent Board dated 20th July, 1983. The petitioner requested on 30th July, 1983 for sanction of leave without joining duty. The request of the petitioner was rejected once again and by memo dated 3rd August, 1983, he was directed to join duty before 5th August, 1983. Without complying with the said order, the petitioner once again submitted a representation on 4th August, 1983 for grant of leave. The said representation of the petitioner was rejected on 9th November, 1984. In the meantime the petitioner filed a writ petition, then C. M. P. No. 10104 of 1983 in W. A. 637 of 1983 praying for ad-interim injunction restraining the respondent Board from implementing the orders directing the petitioner to join duty. It was also dismissed. Even after this, the petitioner did not join duty. A charge memo was framed against the petitioner by the respondent Board on 17th November, 1984 and the charges are to the following effect :-

(3.) THE petitioner alleged in the affidavit that he was the General Secretary of the respondent Board (employees' union), that the first respondent Board accorded "duty relief" to the petitioner solely to attend to the Union Work, and that the "duty relief" was accorded from 16th August, 1972 to 15th August, 1973 and thereafter from time to time it was further extended upto 31st March, 1976 and that during the National Emergency the "duty relief" so accorded was withdrawn by the first respondent Board. It is further alleged by the petitioner that the Union raised an industrial dispute questioning the legality and the justifiability of the withdrawal of the "duty relief", that the same was referred for adjudication to the Labour Court by the State Government, that the Labour Court took up the case on its file as I. D. No. 239 of 1977 and rejected the claim of the Union by order dated 16th August. 1979, that the Union preferred a writ petition against the order of the Labour Court before this Court in W. P. No. 5699 of 1979 in which Mohan J. (as he then was) passed an order on 18th August, 1983 against the respondent Union, that the Union preferred W. A. No. 637 of 1983 and sought interim injunction restraining respondents from withholding "duty relief" which was also dismissed on 21st August, 1984 and that the Writ Appeal is pending before this court. It is to be stated here that the said Writ Appeal was also dismissed by this Court on 7th September, 1989. It is further alleged in the affidavit that after the dismissal of the injunction petition in W. A. No. 637 of 1983, the respondent Board started prosecuting the petitioner for his legitimate trade Union. Activities, because he is the General Secretary of the Union. It seems the Union of which the petitioner is the General Secretary, criticised the speech of the Chairman of the Electricity Board which was not in consonance with the existing industrial law. It seems the Union requested the Government to take action in this regard, that when the Government did not do anything in this matter, the members of the Union condemned the inaction of the Government by wearing black shirt, that immediately the respondent Board issued an order asking the Union to vacate the office premises allotted to it, that when this was questioned the respondent Board initiated action under Tamil Nadu Public Premises Eviction Act, and as such the petitioner as the General Secretary was fully involved in fighting against the first respondent Board's arbitrary action and decisions. It is also alleged in the affidavit filed in support of the petition that twice disciplinary proceedings were dropped only on the ground that the petitioner's prolonged leave was not unreasonable, that the same is intended for fostering and maintaining industrial relations, that a vindictive action has been taken to dispense with his service under the garb of holding disciplinary action, that when the petitioner requested for perusal of records on the above mentioned occasions, the disciplinary proceedings were dropped, and that the opportunity to peruse the records was not given by the respondent Board on the flimsy ground that they are not relevant. The petitioner alleged in the affidavit that the relevance was sufficiently pointed out by the petitioner herein. It is further alleged that at this stage, the petitioner preferred a complaint to the then Minister complaining about the unfair treatment meted out to the petitioner in the above said disciplinary action and the petitioner also requested the Chief Financial Controller of the respondent Board to defer further action pending decision of the Minister. It is also alleged by the petitioner that without giving the petitioner an opportunity for the perusal of the records, the Enquiry Officer fixed the date of enquiry. The petitioner further alleged that there is no material brought out in the enquiry to show as to how the further grant of leave beyond 1st April, 1983 to the petitioner was not in the interest of the Board, that when the issue whether the withdrawal of the "duty relief" is in law justified or not is yet to be decided by the Court, the Enquiry Officer cannot presume that this court has rendered a finding in this regard in favour of the respondent Board, that the Enquiry Officer has not applied his mind in a judicious manner and that the ex parte enquiry is vitiated by non-observance of principles of natural justice. It is further alleged in the affidavit that the findings of the Enquiry Officer are perverse since he has failed to advert to the representation of the petitioner dated 24th November, 1984 and the factual position as to what happened between the period from 1st April, 1983 to 9th November, 1984, that the framing of the charges and the initiation of disciplinary action during the pendency of the writ appeal before this Court are invalid and illegal. It is further stated that the petitioner wanted time to the show cause notice dated 21st February, 1985 by his letter dated 28th February, 1985 and that without giving him an opportunity to submit his explanation to the above said show-cause notice, by the impugned order dated 5th March, 1985 the Secretary to the Board dismissed the petitioner from service. It is further alleged that after serving the above said order, a separate order dated 11th March, 1985 was issued treating the representation of the petitioner as an unwarranted one in keeping with evasive tactics adopted by the petitioner and on that ground it was said that the decision already taken dismissing the petitioner from service needed no change. It is alleged in the affidavit that once the dismissal order has been set aside, fresh orders ought to have been issued to the petitioner by restoring the employer-employee relationship after regularising the period between 1st April, 1983 and 20th February, 1985. The petitioner further alleges that having failed to regularise the services and also in failing to give an opportunity to the petitioner to submit his explanation, the first respondent Board has acted arbitrarily and illegally, and as the impugned order is vitiated by violation of principles of natural justice in as much as the petitioner was not given opportunity to submit his explanation to the show-cause notice dated 21st February, 1985. An allegation is made that the impugned order is vitiated by malice in law and on facts in so far as the representation of the petitioner dated 28th February, 1985 was not considered. It is further alleged that the order of the respondent Board dated 1st March, 1985 shows that the same has been issued mala fide and as an after-thought. It is alleged in the affidavit that the framing of charges and initiation of disciplinary proceedings are illegal, when the writ appeal filed by the petitioner was pending on the file of this Court in which the question relating to the legality of withdrawal of "duty relief" remains to be decided. It is stated that the findings of the Enquiry Officer are perverse, that the ex parte enquiry conducted by the respondent Board is only an empty formality and that the petitioner has been victimised since he has been fighting legally against the proceedings of the first respondent Board.