IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2009 CORAM : THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.280 of 1999 C.Ravichandran ... Petitioner vs. Tamil Nadu Newsprint and Papers Ltd., rep. by its Chairman and Managing Director, No.35, Anna Salai, Guindy, Chennai 600 032. ... Respondent Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records pertaining to the proceedings CMD/TNPL/PER/1755/98 dated 13.10.1998 on the file of the respondent, quash the same and direct the respondent to reinstate the petitioner in service with backwages and attendant benefits. For Petitioner : Mr.B.Ravi for M/s.R.Subramaniam For Respondent : Mr.M.R.Raghavan O R D E R
Challenging the proceedings in CMD/TNPL/PER/1755/98 dated 13.10.1998 passed by the respondent and for a direction to the respondent to reinstate him in service with backwages and attendant benefits, the petitioner has filed this writ petition.
2. Facts of the case as averred by the petitioner in the affidavit would run thus :
(i) The petitioner joined the respondent Company as Deputy Manager (Civil) on 27.07.1993. On 17.08.1994, his services were confirmed with effect from 27.07.1994 and he had been discharging his work without any blemish and with utmost sincerity. On 24.03.1997, the respondent issued a show cause notice alleging certain baseless charges for which, the petitioner sent a detailed reply on 03.04.1997 and by a letter dated 19.04.1997, the respondent informed the petitioner that they are not satisfied with his explanation and decided to conduct an enquiry.
(ii) One Thiru. Anaiyappan was appointed to conduct the enquiry and he submitted a report that the delinquent Officer without verifying the completion of work had certified the final bills. At the same time, he also found that the petitioner had not acted in a manner to show favouritism to the contractor as falsely alleged by the Management. According to the petitioner, there is no acceptable evidence or proof to show that he intended to cause loss or save the contractor from payment of the liquidated damages. The Enquiry Officer further found that the Management had not taken any action against the contractor and that the delinquent officer is only guilty of negligence in certifying the Bill. Regarding the above charges, the Enquiry Officer found that the delinquent Officer ought to have supervised the works then and there, but there is no proof of favouritism or misuse of the Office. Ultimately, it was found that the charge of favouritism had not been proved, but only the charge of negligence stands proved.
(iii) The petitioner has further stated that the respondent issued a show cause notice on 13.12.1997 stating that the misconduct committed by him is serious and grave warranting appropriate punishment. The petitioner sent a reply on 20.12.1997 giving elaborate explanation to the alleged findings. By order dated 14.03.1998, the Director (Operations) dismissed the petitioner from the services of the Company on the ground that the gravity of the act of misconduct deserves the punishment of dismissal. The petitioner filed an appeal before the Chairman and Managing Director and by an order dated 13.10.1998, the respondent confirmed the order of dismissal. Hence, this writ petition.
3. The respondent has filed counter affidavit, the contents of which would run thus :
(i) The petitioner joined the services of the respondent as Deputy Manager (Civil) on 27.07.1993 and he was confirmed in the said post on 27.07.1994 and at the relevant point of time, he was functioning as Deputy Manager (Civil). On 24.03.1997, a Show Cause Notice was issued to the petitioner that he had committed the following irregularities :
(a) It is reported that Chief Manager (Civil) vide letter No.CIV/105 dated 15.11.1996 issued to Thiru A.Chandrakumar, Contractor (who was awarded a work order No.T3/MC/WO/507/8401 dated 17.08.1995) had specified that in spite of repeated reminders, the contractor has not commenced the erection of steel structures at Lignite shed in Mohanur. However, the "work completion certificate" was issued by the petitioner knowingly and deliberately, specifying the date of completion as 17.11.1996. On the contrary, the work was not completed on that date and from the records, it is seen the structural steels arranged by the contractor has been received in the Mohanur offsite even as late as 22.11.1996 and 23.11.1996. The above acts of the petitioner is willful breach of Rules of the company in order to favour the contractor to get final settlement of dues from the company and to save the contractor from being attracted by liquidated damages clause (clause 7)
(b) As per terms of the said work order all necessary materials of approved quality and standard specifications required for the above work shall be arranged by the contractor and shall be brought inside the premises with proper document supported by appropriate gate pass.
Item No.15 of the schedule of rates of the work order relates to supply, fabrication and erection of structural steel works by the contractor.
However, on the contrary, 10.224 M.T. of steel was issued to the contractor from Main Site/Off site. It is reported that when the Structural steel are supplied by TNPL the fabrication cost would only be Rs.5,000/- per M.T., whereas by treating the supply of the structural steel as by the contractor, a pecuniary loss had been caused to TNPL to the tune of Rs.63,351.89.
(c) As per clause 10.2 of another work order no.TNPL/EXP/C & E/W.O.125 dated 30.10.1995, all the materials required for the civil works connected with chemical additive plant, such as but not limited to, machinery tools, and tackles, shall be brought inside the premises with proper document supported by appropriate gate pass.
In the schedule of rates, Item Nos.31, 32 and 34 relates to supply and fixing of standard steel windows, steel ventilators and providing and fixing of gear operated type rolling shutters.
However, that the standard steel windows steel ventilators and rolling shutters had been taken from the TNPL stock and these details were suppressed whereas on the contrary all these items have been treated as arranged by the contractor himself as per terms and conditions of work order, thereby causing a pecuniary loss of Rs.41,400/- approximately to TNPL.
(d) As per the V & Part Bill duly certified by the petitioner for Item No.80 of schedule of rates, (viz.) transportation of excavated earth and filling in low lying areas to a distance from km 1 to 3 km, a claim for 5049.149 cu.m. out of total excavated earth of 6362.89 cu.m. has been made (W.O.No.TS/PMD/WO/434/8250 dated 26.09.1995) However, approximately 2600 cu.m. Quantity of the excavated earth has been filled in low-lying areas well within 1 km, i.e. Within 400 mtrs towards East of the works port (light tower) 2112 cu.m.
Within 800 mtrs. Railway siding 500 cu.m.
thereby causing pecuniary loss of Rs.1,32,600/- approximately to TNPL The above facts of the petitioner are of serious nature and breach of discipline under various clauses of service rules of the company applicable to the petitioner and conduct prejudicial and detrimental to the interests of the company.
(ii) According to the respondent, the petitioner did not offer satisfactory explanation to the charges levelled against him and hence, domestic enquiry was ordered to be conducted to probe into the charges levelled against the petitioner. The petitioner was given all possible opportunity. The enquiry was conducted totally in accordance with the principles of natural justice. The enquiry officer after taking into consideration the various materials placed before it, submitted report during September 1997 holding the petitioner guilty of the charges levelled against him. On the basis of the findings of the Enquiry Officer, the respondent through letter dated 13.12.1997 called upon the petitioner to submit the explanation as to why appropriate punishment should not be imposed for the proved misconduct. The petitioner sent his reply on 20.12.1997. The Director (Operations) after perusing the various materials placed before him, ultimately terminated the services of the petitioner from the company on 14.03.1998. The petitioner then filed an appeal dated 07.04.1998 to the Appellate Authority viz., Chairman and Managing Director. The Chairman and Managing Director after going through the entire proceedings confirmed the order of dismissal through his proceedings dated 13.10.1998.
(iii) The respondent would further state that the allegations of the petitioner that he joined the services of the company on 16.06.1993 are erroneous and he joined the services of the company only on 27.07.1993. With regard to the issue that the Enquiry Officer has held that the delinquent employee for his negligence in certifying the completion of work without physically checking up the same, the respondent would state that the petitioner ought to have visited the site and then only signed the final bill. Hence, the Enquiry Officer has held that the delinquent officer is guilty of negligence in indicating the date of completion of work as 17.11.1996. Further, when the structural steel had been supplied by TNPL, the petitioner should have been more diligent and ought to have adopted a different rate. He had failed to do so thereby causing pecuniary loss to TNPL. He would also state that the allegation that the Enquiry Officer found that the management had not taken any action against the contractor has no relevance to the disciplinary proceedings initiated against the petitioner.
(iv) The petitioner's contention that the principles of natural justice have been violated is contrary to the truth; on the other hand, the petitioner has participated in the full-fledged enquiry and he has cross-examined the management representative and the witness as well. With regard to the petitioner's contention that the two other officers had been reinstated, the respondent would state that a distinction has been drawn between the Junior Officer and the petitioner, since as a Deputy Manager, the petitioner is expected to act in a manner to safeguard the interests of TNPL. Further, the petitioner instead of exercising control over the work of Junior Officers, himself had shown the way for committing irregularities. So, the petitioner's role is much more reprehensible than those of the Junior Officers. Hence, the punishment of dismissal for the acts of misconduct committed by the petitioner is not excessive. By dealing with the three appeals, the Competent Authority had dealt with the charges in a systematic way and has pointed out the distinction between the role of the Junior Officer and that of the petitioner who is a Deputy Manager in the respondent Company. The respondent would submit that Article 14 of the Constitution of India is not attracted since there is no allegation of inequal treatment in respect of equals.
(v) Further, the petitioner's contention that it is practically impossible to keep track of every minute thing during civil works clearly shows that the petitioner is not duty conscious. This contention of the petitioner itself stands as a testimony for the conduct of the petitioner during his service in TNPL and it reflects the attitude of the petitioner in justifying the acts of misconduct committed by him. Further, the petitioner has not represented to the Management about the practical impossibility of keeping track of things, while discharging his functions during his service in TNPL. Hence, the contention of the petitioner is only an afterthought and does not merit any consideration.
4. To the counter, the petitioner has filed a reply affidavit stating as follows :
(i) The disciplinary proceedings are vitiated and there is no charge sheet. The respondent has stated that on 24.03.1997, a show cause notice was issued, which is the basis for the disciplinary proceedings. The Enquiry Officer has proceeded on the footing that the Charge Memo dated 24.03.1997 was issued to the petitioner, whereas, there is no charge memo at all. Regarding the allegation that pecuniary loss of Rs.41,000/- was caused to the respondent, the petitioner would submit that the Enquiry Officer has found that there is no proof to show that the respondent had suffered any pecuniary loss. As per the show cause notice, the charges are that the petitioner had acted in a manner to favour contractor that there was a pecuniary loss of Rs.63,351.89 due to supply of 10.224 M.T. of steels and Rs.41,000/- towards standard steel windows, steel Ventilators and rolling shutters, Rs.1,32,600/- towards 2600 cu. M. quantifies of excavated earth which has been filled in low-lying areas. The enquiry officer has found that there was no pecuniary loss nor was there any favouritism. Hence, the charges mentioned in the show cause notice have not been established. But, the enquiry officer has held that the petitioner is guilty of negligence. Such a finding is perverse since there is no charge of negligence in the show cause notice. The Enquiry Officer has no jurisdiction to frame a charge and has given a finding without even affording an opportunity to the petitioner about the charge; hence, the disciplinary proceedings are vitiated.
(ii) The petitioner would state that the first show cause notice has been issued by the Director (Finance); but, it is not known whether he is the disciplinary authority. Assuming that he is the disciplinary authority, the second show cause notice dated 13.12.1997 had been issued by the General Manager (H.R.D.). According to the petitioner, only the disciplinary authority is competent to go into the findings of the enquiry officer and he alone can either agree with the findings or differ. The General Manager (HRD) is not the disciplinary authority because the first show cause notice was issued by the Director (Finance). Further, in the second show cause notice, it is stated that "We have gone through the enquiry proceedings and find that you had been given opportunity to vindicate your innocence. We have also perused the findings of the enquiry officer and we agree that the above referred charges had been proved apart from charges specified under Rule 68(nl)". The use of "We" clearly shows that there is no independent thinking or action. The disciplinary authority cannot introduce new charges in the second show cause notice. Thus the second show cause notice is not only invalid but also has caused serious prejudice to the petitioner. He would also submit that the termination order has been issued by the Director (Operations) who is not the competent authority.
(iii) The petitioner would also state that as per service rules, the enquiry should be completed within 3 months. Further, it is seen that one Ramakrishna Iyer is the Management representative, who was presenting the case and the enquiry court is silent about his examination as Management witness. As per the enquiry report, the enquiry was completed on 08.07.1997 and two witnesses on the side of the management and the petitioner were examined and there is no other evidence, but in the order passed by the Appellate Authority, there is a reference to the deposition of one R.Sundararajan; assuming that there is any deposition, it is totally erroneous. The petitioner has also stated that there is no misconduct on his part and the respondent has discriminated him by imposing a capital punishment.
5. Heard Mr.B.Ravi, learned counsel for the petitioner and Mr.M.R.Raghavan, learned counsel appearing for the respondent.
6. Learned counsel for the petitioner would submit that the show cause notice has been issued by one Director (Finance), whereas the show cause notice on the findings has been issued by the General Manager (HRD) and the final office order has been passed by Director (Operation). He would contend that three different authorities have exercised the jurisdiction of the Disciplinary Authority without even mentioning as to who the actual Disciplinary Authority is, with whom such powers are vested and hence without jurisdiction. He would further contend that it is not the petitioner alone who can be held responsible for a commission of the act in which all the persons both lower and higher in rank are involved and all the persons both lower and higher in rank than the petitioner have been let off in this case holding only the petitioner; such act is condemnable by the Apex Court in its decision reported in (2007) 7 SCC 206.
6a. To substantiate his stand, learned counsel for the petitioner has relied on the following decisions :
(i) (1995) 6 SCC 749 [B.C.Chaturvedi vs. Union of India and others] "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India vs. H.C. Goel, this Court held at p.728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
(ii) AIR 2000 SC 1151 [U.P. State Road Transport Corporation and others vs. Mahesh Kumar Mishra and others] "8. This will show that not only this Court but also the High court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned counsel for the appellants, that the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings."
(iii) 2001 WLR 86 [M.Ramachandran vs. The Board of Directors, Cheran Transport Corporation Ltd.] "3. The petitioner would further submit that he submitted his explanation to the said show cause notice on 13.05.1989. But, however without being satisfied, enquiry was ordered on the charges appointing one S.B. Hanumantha Rao, retired Subordinate Judge as an enquiry officer who conducted the enquiry and submitted his report on 12.03.1990; that the enquiry officer though decided over the allegations made against the petitioner to be incorrect and unjustified and that the petitioner had no opportunity nor occasion to know about the fraud committed by the said Gothandapani and further has arrived at the conclusion that there was no basis nor evidence for the said charge. But however exceeding his jurisdiction, he had held that the petitioner was irresponsible, careless and negligent in his duties and responsibilities. The petitioner alleging that there was no allegation of such nature nor any enquiry held in this regard would further submit that such conclusion had been arrived at by the enquiry officer based on suppositions and surmises and not on material facts and strong circumstances and hence the conclusions arrived at by the enquiry officer ultimately holding the petitioner responsible for gross negligence of duty is with an ulterior motive and acting in collusion with the said Gothandapani and the same have not been proved on evidence."
(iv) 2006 SCC (L&S) 1035 [SBI and others vs. Arvind K. Shukla] "2. ... we have been taken through the findings of the enquiring officer and Charges 1(a) and 1(d) as well as the reasonings and ultimate conclusion of the disciplinary authority on those two charges. On examining the same, we are not persuaded to accept the submission of the learned counsel and in our view, the disciplinary authority has disagreed with the conclusion and findings arrived at by the enquiring officer. The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer an opportunity to represent before it recorded its ultimate findings. This question is concluded by a three-Judge Bench decision of this court in the case of Punjab National Bank vs. Kunj Behari Misra. The Bench in the aforesaid case relied upon the earlier decision in Institute of Chartered Accountant case as well as Ram Saxena cases do not lay down the correct law. Mr.Sundaravadanam, however, brought to our notice yet another three-Judge Bench decision in the case of Union Bank of India vs. Vishwa Mohan and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in Punjab National Bank case was not really there before the Court and the Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL vs. B.Karunakar. In the absence of any contrary decision of a three-Judge Bench decision on the question in issue, we are bound by the earlier judgment of this court in Punjab National Bank case necessarily, therefore we do not find any merit in this appeal, which stands dismissed."
(v) (2006) 4 SCC 713 [Narinder Mohan Arya vs. United India Insurance Co. Ltd. and others] "26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the enquiry officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. (See State of Assam v. Mahendra Kumar Das) (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice. (See Khem Chand v. Union of India and State of U.P. v. Om Prakash Gupta) (3) Exercise of discretionary power involves to elements (i) objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element (See K.L.Tripathi v. State Bank of India) (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. (See Sawai Singh v. State of Rajasthan.) (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. [See Director (Inspection & Quality Control) Export Inspection Council of India v. Kalyan Kumar Mitra.] (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v. Prakash Chand Jain, Kuldeep Singh v. Commr. of Police.)"
(vi) 2006 SCC (L&S) 919 [M.V.BIJLANI V. UNION OF INDIA AND OTHERS] "25. It is true that the jurisdiction of the court in judicial review is limited. Disci plinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
(vii) (2007) 7 SCC 206 [Bongaigon Refinery & Petrochemicals Ltd. and others vs. Girish Chandra Sarma] "Well established proposition of law reiterated that courts cannot sit as appellate authority over the domestic enquiry. However, the findings of the domestic enquiry in this case found unsustainable inasmuch as one person alone made scapegoat for collective decisions in which others also collectively participated Held, Division Bench of High Court rightly set aside the penalty."
(viii) (2007) 2 SCC (L & S) 550 [UCO Bank and another vs. Rajinder Lal Capoor] "21. The aforementioned Regulation, however, could be invoked only when the disciplinary proceedings had clearly been initiated prior to the respondent's ceasing to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder i.e. continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a charge-sheet is issued (see Union of India vs. K.V.Janakiraman). This aspect of the matter has also been considered by this Court recently in Coal India Ltd. vs. Saroj Kumar Mishra, wherein it was held that date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings are said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore by itself cannot be a ground for invoking Clause 20 of the Regulations. ..."
7. On the other hand, learned counsel for the respondent would contend that the petitioner as a Deputy Manager is expected to act in a manner to safeguard the interests of TNPL. Further, instead of exercising control over the work of Junior Officer, he himself had shown the way for committing irregularities. Hence, the punishment of dismissal for the acts of misconduct committed by the petitioner is not excessive. He would further submit that by dealing with the three appeals, the Competent Authority has dealt with the charges in a systematic way and has pointed out the distinction between the role of the Junior Officer and that of the petitioner.
7a. In support of his contentions, learned counsel for the respondent has relied on a decision of the Apex Court reported in 1997 (II) LLJ 879 in the case of Balbir Chand vs. Food Corporation of India Ltd. and others], relevant portion of which is extracted hereunder :
"5. ... When more than one delinquent officer are involved then with a view to avoid multiplicity of the proceedings, needless delay resulting from conducting the same and overlapping adducing of evidence or omission thereof and conflict of decision in that behalf, it is always necessary and salutary that common enquiry should be conducted against all the delinquent officers. The competent authority would objectively consider their cases according to Rules and decide the matter expeditiously after considering the evidence to record findings on proof of misconduct and proper penalty on proved charge and impose appropriate punishment on the delinquents. If one charged officer cites another charge officer as a witness 'in proof of his defence' the enquiry need not per se be split up even when the charged officers would like to claim an independent enquiry in that behalf. If that procedure is adopted, normally all the delinquents would be prone to seek split up of proceedings in their bid to delay the proceedings, and to see that there is conflict of decisions taken at different levels. Obviously, disciplinary authority should not be equated as a prosecution for an offence in a Criminal Court where the delinquent are arrayed as co-accused. In disciplinary proceedings, the concept of co-accused does not arise. Therefore, each of the delinquents would be entitled to summon on the other person and examine on his behalf as a defence witness in the enquiry or summon to cross-examine any other delinquent officer if he finds him to be hostile and have his version placed on record for consideration by the disciplinary authority. Under these circumstances, the need to split up the cases is obviously redundant, time consuming and dilatory. It should not be encouraged. ..."
8. I have heard the submissions made by the learned counsel on either side and perused the decisions relied on by them and the relevant materials on record.
9. A plain analysis of the case would reveal that the petitioner joined the services of the respondent Company as Deputy Manager (Civil) on 27.07.1993 and his services were confirmed on 17.08.1994 with effect from 27.07.1994. While so, on 24.03.1997, a show cause notice was issued to the petitioner alleging that he had committed certain grave charges by using his authority leading to various irregularities and that he had shown favouritism to several contractors, which are of pecuniary in nature. To the said show cause notice, the petitioner submitted his explanation on 03.04.1997. However, the respondent, in its letter dated 19.04.1997 informed the petitioner that they are not satisfied with his explanation and decided to conduct an enquiry. Thereafter, an Enquiry Officer was appointed and after holding the enquiry, a report was submitted during September 1997. Further explanation was called for from the petitioner on 13.12.1997 and for the same, he submitted his reply on 20.12.1997. Based on the findings of the Enquiry Officer, the Director (Operations) passed an order of dismissal, dismissing the petitioner from the services of the Company on 14.03.1998. Aggrieved by the said order, the petitioner preferred an appeal on 07.04.1998 to the Chairman cum Managing Director of TNPL, the respondent herein. The said appeal was dismissed confirming the order passed by the original authority, thereby, the petitioner was dismissed from service by an order dated 13.10.1998.
10. In this case, the disciplinary authority, namely, the Director (Operations) has not been made as a party. Moreover, the order of dismissal dated 14.03.1998 passed by the disciplinary authority in Proceedings No.PER/1755/98 has not been challenged in this writ petition. The petitioner has challenged only the order of the appellate authority, i.e., the order of the respondent herein in Proceedings No.CMD/TNPL/PGR/1755/98 dated 13.10.1998. As the order of the disciplinary authority is not under challenge and as the disciplinary authority is not a party to the proceedings, it may not be proper for this court to look into the vires of that order. Now, this court has to examine as to whether the order impugned in this writ petition namely, the order of the appellate authority suffers from infirmity or not.
11. The appellate authority is the authority having overall control over the entire administrative functions, as he is the head of the respondent Company and if any order is under challenge before him, it is his bounden duty to look into each and every aspect of the matter in his jurisdiction and power as to whether the order passed by the authority below is in accordance with law or not. In the case on hand, the petitioner has raised several questions. The first question is, when the petitioner was not issued a charge memo in respect of imputation of misconduct, whether the show cause notice issued to him containing allegations against him could be construed as a charge memo.
12. At this juncture, it is necessary to look into the contents of the Show Cause Notice dated 24.03.1997, which would read thus :
"It is alleged that certain grave charges had been committed by you using your authority leading to various irregularities and favouritism had been shown to Civil Contractors, which are of pecuniary in nature such as :
(1) Work Order Ref.No.TS:MC:WO:507:8401 dated 17th August 1996 issued to Thiru A.Chandrakumar, Velayuthampalayam relating to Civil and structural works for extension of Leco/Lignite Shed and Store Shed at Mohanur offsite.
(a) It is reported that the Chief Manager (Civil) vide letter No.CIV/105 dated 15.11.1996 issued to Thiru A.Chandrakumar, Contractor had specified that inspite of our repeated reminders, the contractor has not commenced the erection of steel structures at Lignite shed in Mohanur. However, it is reported that 'Work Completion Certificate' was issued by you knowingly and deliberately, specifying the date of completion as 17.11.1996. On the contrary, the work was not completed on that date and from the records, it is seen that the structural steels arranged by the contractor has been received in the Mohanur Offsite only on 24.09.1996, 22.11.1996 and 23.11.1996. The above act of yours is wilful breach of Rules of the Company in order to favour the contractor to get final settlement of dues from the company and to save the contractor from being attracted by Liquidated Damages Clause (Clause-7).
(b) As per Clause 9.3 of the above said Work Order all necessary materials of approved quality and standard specifications required for the above work shall be arranged by the contractor and shall be brought inside the premises with proper document supported by appropriate gate pass.
In the Schedule of Rates, Item No.15 relates to Supply, fabrication and erection of structural steel works by the contractor.
However, on the contrary, it is reported that the maximum quantity of steel i.e.10.224 M.T. was issued to the contractor from Main site/Offsite. It is reported that when the structural steel are supplied by TNPL, the fabrication cost would only be Rs.5,000/- per M.T., whereas by supplying the structural steel, pecuniary loss had been caused to TNPL to the tune of Rs.63,351.89, which is furnished below :
for Item No.15, the rate certified for payment to the contractor : Rs.28,500 x 10.224 = Rs.2,93,428.80 Recovery for structural steel supplied by TNPL : Rs.1,78,956.90
Balance amount certified for fabrication for Rs.1,14,471.90 10.224 M.T. --------------- Amount certified for 1 M.T. of fabrication work : 1,14,471.90/10.224 = Rs.11,196.39 Normal Rate prevailing in TNPL per M.T. of structural steel supplied by TNPL : Rs.5000/- Excess amount certified to contractor : Rs.11,196/39 5000.00 = Rs.6,196.39 per M.T. Pecuniary loss to TNPL per M.T. : Rs.6,196.39 per M.T. Pecuniary Loss to TNPL for 10.224 M.T. : Rs.6,196.39 x 10.224 = Rs.63,351.89 2. Work Order Ref.No.TNPL/EXP/C&E/WO/125 dated 30th October, 1995 issued to Thiru K.Palanisamy, Ponniyanur relating to Civil, structural and AC sheet roofing works connected with Extension of CAP godown. As per clause 10.2 of the above said Work Order, all the material required for the above work such as, but not limited to, machinery, tools and tackles shall be brought inside the premises with proper document supported by appropriate gate pass. In the Schedule of Rates, Item Nos.31, 32 and 34 relate to Supply and fixing of standard steel windows, steel ventilators and providing and fixing of gear operated type rolling shutters.
However, it is reported that the Standard Steel Windows, Steel Ventilators and Rolling Shutters had been taken from the TNPL stock and these details were suppressed whereas on the contrary, all these items ought to have been arranged by the contractor himself as per terms and conditions of the Work Order, thereby causing a pecuniary loss of Rs.41,400/- approx. to TNPL.
3. Work Order Ref.No.TS/PWD/WO/434/8250 dated 26th September, 1995 issued to M/s.Bricksteel Enterprises, Salem relating to Civil and Structural Works for installation of Wagon Tippler.
As per the V & Part Bill duly certified by you, for the Item No.80 of the Schedule of Rates, the transport excavated earth and filling in low lying areas to a distance from 1 km to 3 km is 5059.149 cu.m. Out of total excavated earth of 6362.89 cu.m.
However, it is reported that approx. 2600 cu.m. Quantity of the excavated earth has been filled in low lying areas well within 1 km i.e. Within 400 mtrs. Towards east of the workspot (light tower) 2112 cu.m. Within 800 mtrs. - Railway siding 500 cu.m. thereby causing pecuniary loss of Rs.1,32,600/- approx. to TNPL. The above acts of yours are of serious nature and breach of discipline under various clauses of Service Rules of the Company applicable by you and conduct prejudicial and detrimental to the interest of the Company.
Hence, you are hereby required to show cause in writing within 48 hours from the receipt of this Show cause notice as to why appropriate disciplinary action should not be taken against you. If you do not submit your explanation as directed within the stipulated time, we will be constrained to take a decision with reference to the materials available on records."
13. A close reading of the above Show Cause Notice would reveal that there is an allegation against the petitioner that he had used his authority leading to various irregularities and he had shown favouritism to several contractors, which are of pecuniary in nature. The petitioner, in his reply dated 03.04.1997 to the said Show Cause Notice, has given a detailed explanation with regard to each and every allegation raised by the respondent and also with regard to Work Orders dated 17.08.1996, 30.10.1995 and 26.09.1995. Thereafter, an Enquiry Officer was appointed and after holding enquiry on examination of the witnesses, the Enquiry Officer submitted his findings on 30.09.1997. The relevant findings of the Enquiry Officer are extracted hereunder :
"The first charge relates to the work order dated 17.08.1996 issued to Sri.M.Chandrakumar of Velayudhampalayam relating to civil and structural works for extension of Lego/Lignite shed and store shed at Mohanur Offsite. The delinquent officer certified the completion of work specifying the date of completion as 17.11.1996. Whereas the structurals and steels were received at Mohanur offsite only on 24.09.1996, 22.11.1996 and 23.11.1996. It is clear from the above that the Mohanur Offsite work could not have been completed on 17.11.1996 as stated in the work completion certificate as well as in the final bill. In the explanation offered to the show cause notice under Ex.M-8, the delinquent officer has not denied that the work was not completed on 17.11.1996. On the other hand, he would contend that the Mohanur Offsite Manager in his report mentioned the work completion date as 17.11.1996 and he has certified the final bill after the same was certified by the concerned Engineer. The final bill was signed by the Site Engineer, the delinquent officer Thiru Ravichandran and the Chief Manager. In that bill there is a column "date of completion". It was stated as 17.11.1996. There is a specific clause under clause No.12 as "Any penalty recommended (a) amount (b) reason" in correspondence with this clause while filling this application they put "-" whereas a separate entry was made as "Please note that 10.347 stainless steel has been issued to the contractor on chargeable basis". This was prepared on 04.03.1997. In the summary column, there was a lot of corrections in the figure. In the numerical figure the net value was stated as Rs.4,04,303.23 whereas the figure was written in the words as "Rupees Four crores five thousand three hundred and four and paise fifty eight only". This was not corrected by the signatories of the final bill viz., the delinquent officer, Chief Manager as well as the Site Engineer Mr.Shanmugam. As stated above, this final bill was prepared and signed by the delinquent officer and others on 04.03.1997. While preparing the final bill, it is the prime duty of the signatories to physically verify whether the work was completed or not. Even the delinquent officer Mr.Ravichandran has issued a letter to the contractor on 12.02.1996. In that letter, it was specifically stated that the work progress in Mohanur offsite is not satisfactory and he has also further recommended that the contractor is not considered for any other civil and structural work of TNPL. The delinquent officer stated that the final bill was certified by him after the concerned Site Engineer certified the same. The delinquent officer further stated that in a week's time the Mohanur offsite Manager sent a letter stating that by oversight the date of completion was given as 17.11.1996, whereas it was 17.12.1996. Based on that, the Engineer was advised by the employee to inform the Accounts Department about the above mistake. It is the evidence of the management representative and the witness that the delinquent officer certified the work completion date as 17.11.1996, whereas, it would not have been completed as could be seen from the dates of receipt of the structural steels at the Mohanur offsite and also the communication to the contractor. The communication as well as the other facts shows that the delinquent officer even without verifying whether the work was completed or not, certified the final bills mentioning the date of completion as 17.11.1996. It is not expected the Deputy Manager (Civil) to certify the date of completion of the work based on the completion certificate issued by the Site Engineer without physically verifying the facts, that too he has issued various reminders and stated that the Contractor is not doing the contract work in proper way. The delinquent officer ought to have visited the site and signed the final bill. The delinquent officer in his letter dated 12.02.1996, has stated about the contractor as "Moreover his delegation to quality workmenship and progress is below the marks-standards of TNPL. We recommend therefore not to consider the contractors for any other civil and structural works of TNPL in future". It shows that the delinquent officer has not acted in a manner to be favouritism of the contractor as alleged by the management. Further, there is no acceptable evidence or proof to show that the delinquent officer intended to cause loss or to save the contractor from payment of the liquidated damages.
It is significant to point out that the management has not taken any care to take any action against the contractor by mentioning the terms and conditions enumerated in the works order issued to him. If at all the management's allegation is true, the management ought to have taken steps against the contractor to collect liquidated damages or to point out the irregularities committed by him. The contractor was not examined as a witness in the enquiry to prove that the Officers of the TNPL have favoured him to violate the terms and conditions of the works order. The fact that intimation regarding the wrong date of completion was given by the offsite Engineer which in turn was informed to the Accounts Department soon after would indicate the negligence on the part of the delinquent officer in certifying the completion of work without physically checking up and lack of intention. Hence, I find that the delinquent officer is guilty of negligence in certifying the bill indicating the date of completion of work as 17.11.1996. However, I find that no intention is proved on the part of the employee to save the contractor from paying the liquidated damages as stated supra.
The other part of the charges relates to the pecuniary loss caused to TNPL to the tune of Rs.63,351.89 due to the fact that the contractor was paid a higher amount without considering the cost of structural steel supplied by TNPL to the contractor while as per item-15 of schedule of rates the contractor has to arrange for the same. Further, the contractor has to bring the materials inside the factory with the valid pass which is not found here. In the explanation, the delinquent officer pleads ignorance as to whether the contractor has used the windows, ventilators and rolling shutters but would contend that the responsibility shall be fixed on the Engineers only and not on himself. Even though the Site Engineers are responsible and knowing first hand information about the supply of materials from the TNPL, it is the bounden duty of the Deputy Manager (Civil) to verify and supervise the works of the subordinate officer. There is no proof to show that the contractor has brought the windows, ventilators and rolling shutters for doing the work by proper gate pass. However, the Stock Registers showing the stock of the above materials are not produced before me. Thiru.Sundararajan has also admitted that the ventilators, rolling shutters and windows were brought from the TNPL Stock. For that, a correction was made as per the instruction and direction of the delinquent officer Ravichandran as well as the Chief Manager Mr.Chidambaranathan. The Deputy Manager post is a responsible post in that department. If he is not diligent in his work it is not possible to control and supervise the subordinate officers. The explanation offered by the delinquent officer cannot be accepted for the simple reason that his post as Deputy Manager is a respectable post and having the duties and responsibilities to supervise the subordinates and bring to the management. During the course of cross-examination the delinquent officer admitted nfs;tp - irl; ,d;$pdpah; gzpfis nkw;ghh;it bra;tJ c';fs; bghWg;g[ jhnd> gjpy; - Mkhk;
This shows that he is the person responsible to supervise the work of the Site Engineer, whereas the delinquent officer Mr.Ravichandran contended that 100% responsibility lies with the Site Engineer. Since he was working as a Deputy Manager, Departmental Head, as admitted by him, it is his prime duty to supervise the work of the Site Engineers. He ought to have verified the works then and there to avoid any irregularity to be committed by the supervisors as well as the contractors. But, Thiru.Ravichandran fails to do so.
The work of Deputy Manager Thiru Ravichandran includes supervision of the Site Engineer's work as well to check the materials brought by the contractors. The purpose of certifying the bills submitted by the contractors shows that he is recommending to the management to make payment and the particulars given in the bills are true and correct. The very fact that even for the Mohanur offsite final bill there are various corrections made and the numerical figure written in words were lot of discrepancies. All the bills were submitted after making number of corrections by the authorities and signed in the same. While he certified the bill of the contractor he cannot shift the liability towards the Site Engineer on the simple reason that the Site Engineer is 100% responsible to supervise the work. As rightly admitted by him, he ought to have verified the work done by the contractor and also verified the work orders issued to the particular contractors. If this was done by Thiru Ravichandran the irregularities mentioned in the charge memo would not be happened. Even though the management fails to prove that they have issued notice to the contractors and, Thiru Ravichandran has shown favouritism to the contractor for getting some monetary benefit or other benefit, in the absence of any proof that the delinquent officer was benefited by the contractor in any manner, the allegation of favouritism and misuse the position does not arise at all. The allegation of favouritism and the alleged intentional act of the Deputy Manager was not proved by adducing any evidence much less some evidence as required under the principles of natural justice by the management.
Regarding the work pertaining to Bricksteel Enterprises, the explanation offered by the delinquent officer is that the same was done in a proper manner without any malafide intention to save the TNPL. However the same was disputed by the management. He has also accepted that it is his bounden duty to make random checking and also by the Chief Manager and General Manager. The explanation to facilitate for backbilling cannot be accepted in view of the fact that there is a violation committed by the contractor against the terms and conditions stipulated in the work order as seen from Ex.M-4 file. The delinquent officer acted in a manner negligently without any malafide intention or dishonest intention. The evidence adduced on both sides shows that the Deputy Manager has not acted in a manner wilfully or knowingly to cause any loss to the management or to do any favouritism to the contractor.
From the evidence of both sides as well as the documents marked before me, it is clear that they are indisputable. Everyone of the officers in the Civil section is responsible for any civil work done by the contractors. The bills as well as the P.R. were signed by the Chief Manager as well as the General Manager of the particular department. As stated earlier, the charge of favouritism and thereby caused pecuniary loss to the management is not established. In the nature of evidence let in by the management before me, it is not safe to come to a definite conclusion that it was the delinquent officer who alone was responsible for the pecuniary loss. The management should make out a case by letting some evidence at least enough in the case of domestic enquiry. But, in this case, in respect of charge of favouritism and knowingly acted to cause loss to the management, there is no evidence adduced by the management.
As stated above, the charge of favouritism towards the contractor by the delinquent officer knowingly and intentionally is not proved by the management. However, the charge of negligence of his duties and negligently caused loss to the management as per the Service Rules of the Company at page 33 is proved. I give my findings accordingly."
14. From the findings arrived at by the Enquiry Officer, it is clear that indisputably everyone of the Officers in the Civil Section are responsible for the civil work done by the contractors. The bills as well as the P.R. were signed by the Chief Manager as well as by the General Manager of the particular department. Therefore, the charge of favouritism, which thereby caused pecuniary loss to the Management is not established. It is also concluded that in the nature of evidence let in by the Management before the Enquiry Officer, it is not safe to come to a definite conclusion that the delinquent officer alone was responsible for the pecuniary loss to the Management. The management should make out a case by letting in some evidence at least enough in the case of domestic enquiry. But, in this case, in respect of charge of favouritism and knowingly acted to cause loss to the management, there is no evidence adduced by the management. However, the Enquiry Officer, after finding all the allegations contained in the show cause notice not established, went on to hold that the charge of negligence of duty as proved; but, such allegation against the petitioner is not contained in the show cause notice. Therefore, it is clear that the Enquiry Officer has traversed beyond the scope of the show cause notice; the allegations contained therein and the findings of the Enquiry Officer to the effect of holding that the petitioner was negligent in performing his duty cannot be sustained. A careful analysis of the show cause notice would show that there is no allegation of negligence of duty against the petitioner and in the absence of any such allegation in the show cause notice, it is not proper for the Enquiry Officer to go beyond the scope of the enquiry proceedings and to that extent, the findings of the Enquiry Officer are not proper. As such, the Show Cause Notice issued by the Disciplinary Authority cannot be construed as a charge memo.
15. The next question raised by the petitioner is that the General Manager (HRD) is neither the Disciplinary Authority nor the competent authority. The petitioner was working as a Deputy Manager (Civil) and he was appointed by the respondent Company signed by the Director (Purchase and Plant) Operations. However, the show cause notice has been issued by the Director (Operations). The enquiry findings furnished to the petitioner on 13.12.1997 was signed by the General Manager, HRD. In the said letter, it is stated that "we have gone through the enquiry proceedings and find that you had been given due opportunity to vindicate your innocence. We have also perused the findings of the Enquiry Officer and we agree that the above referred charges had been proved apart from the charges specified under Rule 68 n(1) of the Service Rules of the Company. We consider that the misconduct committed by you is of serious and grave in nature and hence we are prima facie of the view that you should be visited with appropriate punishment. Hence, you are hereby required to submit your explanation, if any, in writing within 7 days as to why appropriate punishment should not be imposed. ..."
15a. From the perusal of the records, it is revealed that the said General Manager (HRD) is not the appointing authority nor the disciplinary authority, since the show cause notice has been issued by the Director (Operations). Therefore, there is infirmity in the proceedings initiated; however, in the absence of the disciplinary authority being a party to the proceedings, this court is not inclined to dwell into that aspect of the matter.
16. Thirdly, it is the strong contention of the petitioner that the allotment of civil work to contractors is a collective decision; therefore, he alone cannot be pointed out with regard to the allegation of irregularities and favouritism to contractors. In this regard, it is seen from the findings of the Enquiry Officer that everyone of the officers in the Civil section is responsible for any civil work done by the contractors; the Bills as well as the P.R. were signed by the Chief Manager as well as the General Manager of the particular department. Therefore, the charge of favouritism and the pecuniary loss caused to the Management is not established. The alleged irregularities and favouritism is attributed by the petitioner that he is in no way connected to any of the Bills or the Notes and it could be a collective decision of the Chief Manager and the General Manager of the Civil Section.
16a. If such be the position, when the finding of the Enquiry Officer is so, that everyone of the Officers in the Civil Section is responsible for any civil work done by the contractors, it is well established proposition of law that this court cannot sit as an appellate authority over the domestic enquiry; however, the Enquiry Officer has given a cogent reasoning that a collective decision is taken by the officers in the Civil Section with regard to any civil work done by the contractors. Therefore, the petitioner cannot be made as a scapegoat for the collective decision and this aspect of the matter was lost sight by the appellate authority while confirming the order of the disciplinary authority. Therefore, the order of the appellate authority suffers from legal infirmity. The above legal position is supported by the decision of the Supreme Court in the case of Bongaigon Refinery.
17. The next contention of the petitioner is that the order of the appellate authority appears to be that the petitioner, instead of exercising control over the work of junior officers has shown the way for committing irregularities. A serious view will have to be taken on the negligence pointed out by the enquiry officer in this case and that the enquiry officer has established the guilt in respect of charges 3 and 4 and the TNPL would have to take note of this as a gross violation by a person who was in a position to exercise proper moral authority over junior officers. Therefore, the appellate authority cannot pass an order on the submission made by one person, who has never deposed in the enquiry as a witness. The appellate authority, in case, if he differs from the findings, shall explain the reason for the same and after giving an opportunity of hearing to the delinquent officer, shall pass the order. In this case, the order of the appellate authority lacks application of mind.
17a. The appellate authority, in his order has observed that, in TNPL, all machinery and tools shall be brought inside the premises with proper documents supported by appropriate gate pass. To this extent, the evidence of Thiru. R.Sundararajan leads considerable doubt about the activities of Thiru C.Ravichandran. The evidence can only be circumstantial in this case at this distance of time as to whether TNPL materials were indeed used. The appellate authority has also observed that under the direction of Thiru. C.Ravichandran this billing was undertaken and that without his involvement countermanding Thiru Sundararajan the excess billing could not have happened. Therefore, when the deposition of Thiru Sundarajan has been relied on by the appellate authority, the petitioner herein ought to have been given an opportunity of hearing before taking into consideration the deposition of Thiru Sundararajan for arriving at a conclusion. In this regard, the order of the appellate authority is also vitiated by improper consideration.
18. The last question raised by the petitioner is that when the allegation levelled against the petitioner in the show cause notice is not proved and as the Enquiry Officer has traversed beyond the scope of show cause notice, in the absence of any specific charge memo and imputation of misconduct of the charges, the punishment imposed by the original authority, which has been confirmed by the appellate authority is found to be disproportionate to the charges levelled against him. This aspect of the matter as regards the original authority, who is not a party before this court cannot be looked into. Though the appellate authority, who is competent and empowered to look into each and every aspect of the order of the disciplinary authority and assign every reason for the conclusion of the order of dismissal, it appears that the punishment of dismissal from service imposed on the petitioner for the allegations of irregularities and favouritism is not established and the findings of the Enquiry Officer regarding the charge of negligence has not been looked into by the appellate authority, when the order of the original authority was taken on appeal.
19. In this case, the disciplinary authority has the exclusive domain on the jurisdiction of the facts. Where an appeal is presented, it is the duty of the appellate authority having co-extensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the court. However, if the conclusion, upon consideration of the evidence reached by the disciplinary authority or the appellate authority is perverse or suffers from patent error on the face of the record or based on no evidence at all, this court can look into the matter.
20. Upon perusing the entire materials and the order impugned in this writ petition, I am of the considered opinion that the order of the appellate authority suffers from legal infirmity. The petitioner has miserably failed to challenge the order of dismissal passed by the disciplinary authority. In such peculiar circumstances, this court is only constrained to direct the appellate authority to re-look into the matter and pass appropriate orders taking into account all the procedures and rules. Accordingly, the order of the appellate authority impugned in this writ petition is set aside remanding the matter to the appellate authority, viz, the respondent herein to re-look into the entire issue and pass appropriate orders within a period of twelve (12) weeks from the date of receipt of a copy of this order.
This writ petition is allowed with the above direction. No costs.
Index : Yes/No Internet: Yes/No 26.11.2009 abe To : The Chairman and Managing Director, Tamil Nadu Newsprint and Papers Ltd., No.35, Anna Salai, Guindy, Chennai 600 032. V.DHANAPALAN,J. Abe Pre-delivery judgment in W.P.No.280 of 1999 26.11.2009