C. Nataraja Pillai vs The Tamil Nadu Civil Supplies Corporation Limited

D. Murugesan, J.—The question as to the competency of an authority, who is subordinate to the competent authority, to initiate disciplinary

action against an employee has come up for consideration before this Court on more than one occasion. This is one more occasion such question is

raised before this Court in this writ petition.

Following are the few facts, which are not in fact disputed by either side that led to the filing of the writ petition. The petitioner was appointed as

Assistant in the respondent Tamil Nadu Civil Supplies Corporation Limited (hereinafter referred to as the ""Corporation"") in the year 1975. While

he was working as Superintendent in Kanyakumari region, he was transferred from the said region to Pudukkottai region on administrative grounds

by the order of the Chairman cum Managing Director dated 16.11.90. Admittedly, the petitioner did not report duty at Pudukkottai region, but

went on to apply various leaves which culiminated into a show cause notice dated 11.2.91 directing the petitioner to join duty within the specified

period. Since the petitioner did not join as directed in the said notice, a further notice dated 6.3.91 was also issued giving a further seven days time

to the petitioner to join duty in the transferred place. Even then the petitioner did not join. Hence, the Senior Regional Manager, Kanyakumari

region issued a charge memo dated 20.4.91 containing as many as eight charges. Almost all the charges were in regard to the failure of the

petitioner to report duty without sanctioned leave. Admittedly, the petitioner did not respond to the said charges and submitted any explanation. In

the absence of any explanation, the Senior Regional Manager, Kanyakumari appointed an enquiry officer by his proceedings dated 8.4.92. The

enquiry officer submitted his report on 18.8.92. A copy of the said report was forwarded to the petitioner by the Senior Regional Manager in his

communication dated 28.8.92 calling for his further explanation. Once again the petitioner did not respond to the said notice. Thereafter the Senior

Regional Manager forwarded the findings of the enquiry officer to the Chairman cum Managing Director namely, the first respondent. On

consideration of the findings, by order dated 3.6.93, the first respondent, after accepting the findings, imposed a major penalty of removal from

service. The petitioner was also informed that he has got a right of appeal to the Board of Directors to be filed within sixty days from the date of

receipt of the said order. The petitioner filed such an appeal before the Board of Directors namely, the second respondent. The said appeal was

rejected by the Board consisting of six IAS Officers by their proceedings dated 2.8.94. Both the orders of the respondents are challenged in this

writ petition.

Mr. S. Venkataraman, learned counsel for the petitioner submitted that he would like to question the impugned orders not on merits in regard to

the facts, but only on question of law namely, the competency of the Senior Regional Manager to initiate disciplinary proceedings against the

petitioner, as he is not competent to do so as per the regulations. According to the learned counsel, in terms of Regulation 4 of Chapter V of the

Tamil Nadu Civil Supplies Corporation Limited Employees Service Regulations, 1989 (hereinafter referred to as the ""Regulations""), the competent

authority to impose major penalty viz., the Chairman cum Managing Director ought to follow the procedures by framing charges, calling for

explanation, in the event the explanation is not satisfactory, appointing an enquiry officer, forwarding the report of the enquiry officer to the

delinquent for further explanation and thereafter to arrive at the conclusion for imposition of penalty. While a specific procedure is contemplated

under the Regulations, the Senior Regional Manager is not competent to initiate proceedings against the petitioner by framing charges and

appointing enquiry officer. The learned counsel submitted that on the date when the order of punishment was imposed, the competent authority

was the Chairman cum Managing Director. Hence, the learned counsel submitted that merely because the competent authority has imposed the

punishment, the same does not cure the infirmity in regard to the initiation of disciplinary proceedings.

Mr. V. Perumal, learned counsel appearing for the respondent Corporation, on the other hand, would submit that it is true in the case of the

petitioner the competent authority is the Chairman cum Managing Director. However, in view of the explanation to Regulation 2 of the

Regulations"", even the immediate supervisory employee as well as the higher authority are competent to initiate disciplinary action of calling for

explanation notwithstanding the fact that such employee is not competent to impose any of the penalties. In view of the explanations, no fault can

be found in initiation of disciplinary proceedings by the Senior Regional Manager as he has not imposed the punishment, but only forwarded the

findings of the enquiry officer to the competent authority and the competent authority alone has passed the order of punishment.

In view of the above rival contentions and in order to find out as to whether the Senior Regional Manager, as in this case, was competent to

initiate disciplinary proceedings, the relevant regulations are necessarily to be quoted and the same read as under:-

Chapter V:

Class of Nature of Competent Appellate

Employee Penalty authority Authority

to impose

penalty

Class II Minor Immediate General

Punishment Superior Manager

(Admn.)

Officer of

Class I to

whom the Senior

delinquent Regional

employee is Manager

subordinate

Major General

penalties Manager

other than (Admn.)

compulsory

retirement M.D.

removal Senior

and Regional

dismissal Manager

Compulsory Managing Board

retirement Director

removal or

dismissal

Explanation:

The immediate supervisory employee as well as higher authorities are competent to initiate disciplinary action of calling for explanation

notwithstanding the fact that such employee is not competent to impose any of the penalties. The charge memo, together with the explanation of the

delinquent and the remarks thereon shall be submitted to the authority competent to impose the penalty for further action and orders.

Procedure to impose minor penalties:

The competent authority to impose the penalties as per regulation 2 may, either suo motu or on receipt of report as per explanation under that

regulation either cause further enquiry or impose the penalty fair and just to meet the ends of justice, satisfying himself that the delinquent was given

a reasonable opportunity to defend himself against the charges. If the authority is of view that the gravity of the charges is serious enough to warrant

a major penalty, then he should initiate action as per Regulation 4 infra.

Every Charge Memo indicated under the Explanation in Regulation 2 or otherwise shall contain in detail the basis of the charge quoting the relevant

Rules or instructions failed to be followed or the specific default committed. Besides, the default should be in the form of specific charge or charges

and the delinquent should be given reasonable time and opportunity to offer his explanation against the charges. The explanation, if received in time,

and presuming that there is no explanation if no such explanation is forthcoming within the time stipulated, should be carefully analysed to meet all

the points raised therein to come to an objective decision whether the charges could be held as proved. There shall be separate analysis against

each and every charge.

After taking a decision on the charges as held proved or not proved, the punishing authority should consider the gravity of the charges that were

held proved and then decide the quantum of punishment not more than minor punishment deemed fit to meet the ends of justice. The order shall

conclude indicating the time for appeal to the appellate authority as specified in Regulation 8 below.

Procedure to award major penalties:

(a) The competent authority as per Regulation 2, may either suo motu or on receipt of report as per explanation under that regulation or as

indicated in Regulation 3 shall issue a memo recording the basis of charge, quoting the relevant rules or instructions omitted to be followed, the

consequent result of such omission with specific charges suitably framed and the delinquent should be informed of the list of documents relied upon

as the basis of charge, the list of witnesses whose versions also form the basis of charge. The delinquents should then be required to furnish the list

of witnesses if any on his defence within a reasonable time failing which the presumption would be that he has no witnesses on his defence.

The competent authority to impose the major penalty thereon shall appoint an enquiry officer, immediately subordinate to him (punishing authority)

to conduct an objective enquiry into the charges in the presence of the delinquent who should have been given due notice therefore. At the enquiry

the documents relied upon in the charge memo should be made available to the delinquent for perusal. The delinquents may also be permitted to

peruse any other record of the Corporation that are relevant to the charges, if he/she so desires. If for any reason such records, desired to be

perused, are considered to be not relevant to the charges, the enquiry officer shall record so in his findings. So also the witnesses whose versions

form the basis of the charges should be examined providing opportunity to the delinquent to cross examine. Thereon the witnesses produced by the

delinquent should be examined with due relevance to the charges. The delinquent may also be permitted to file his written statement.

The enquiry officer shall summarise the proceedings analyse the evidence put forth before him examine the written statement of the delinquent

carefully and give his findings on the charges framed (charge by charge). It is not for the enquiry officer to recommend the quantum of punishment.

On receipt of the findings report of the enquiry officer, the competent authority to impose the penalty shall forward a copy of the findings report to

the delinquent requiring him to file his further explanation within a reasonable time (to be specified). The further explanation, if received in time, shall

be examined in detail with reference to every point raised therein and after perusing the entire records including the record of enquiry, the analysis

of evidence and the findings of the enquiry officer, the authority competent to impose the penalty shall decide whether each and every charge could

be held proved or otherwise.

After taking such a decision, the competent authority shall examine the gravity of the charges held as proved and decide on the quantum of

punishment commensurate with the gravity of charges to meet the ends of justice. The order shall conclude indicating the time allowed for appeal to

the appellate authority as specified in Regulation 8 below:

It is not necessary that following the procedure to impose a major punishment should end in inflicting a major punishment. Ends of justice may be

met even with by minor punishment in deserving cases depending upon the gravity of the proved charges (But to inflict a major punishment after

following the procedure in Regulation 3 will not be sustainable).

Regulation 1 of the ""Regulations"" relates to the penalties either major or minor. Regulation 1(b)(vi) relates to removal of the employee from the

service of the Corporation which is a major penalty. Insofar as the competent authority to impose the major penalty, clause 3 of Regulation 2

relates to Class II employees. There is no dispute that the petitioner belongs to Class II employee on the date when the charges were framed,

enquiry officer was appointed, enquiry conducted and finally the penalty was imposed. Under the said clause, the competent authority to impose

the penalty of compulsory retirement, removal or dismissal of Class II employees is the Chairman cum Managing Director and the appellate

authority is the Board. Placing reliance on the above regulation, Mr. S. Venkataraman, learned counsel contended that the regulation is specific in

its terms as to the competency of the authority who could impose major penalty on Class II employee like the petitioner. According to him, the

said regulation should be read along with regulation 4, which empowers the competent authority alone to frame charges, call for explanation,

appoint an enquiry officer and proceed further till imposing the penalty. In the absence of such power, the lower authority namely, the Senior

Regional Manager as in this case, is not competent to either frame charges or to appoint enquiry officer. The said submission is sought to be

opposed by Mr. V. Perumal, learned counsel for the respondent Corporation placing reliance on the explanation to Regulation 2. According to

him, explanation to regulation 2 empowers even the lower authority to initiate disciplinary proceedings. Law is well settled that the Courts should

interpret the provisions of an enactment, statute more particularly, the regulations as in this case, only on a combined reading of all the provisions

and not in isolation. A combined reading of the regulations 2, 3 and 4 would undoubtedly disclose the following facts.

(1)Removal is a major penalty as contemplated under Regulation 1(b)(vi) of the Regulations.

(2)The petitioner is a Class II employee of the Corporation.

(3)The competent authority to impose penalty in respect of Class II employee is the Chairman cum Managing Director.

There is no controversy upto this stage. Controversy arises as to the initiation of disciplinary proceedings by the Senior Regional Manager which

ultimately culminated into a penalty imposed only by the competent authority namely, the Chairman cum Managing Director. Explanation of course,

empowers even an immediate supervisory employee to the delinquent employee to initiate disciplinary action of calling for explanation and the

removal therein. The said explanation has to be read along with Regulation 3 of the Regulations. Paragraph 1 of Regulation 3 is categorical in terms

inasmuch as it states that on receipt of the report as per the explanation in case the competent authority decides to inflict minor penalty, it can do

so. However, in case the competent authority is of the view that the charges are grave in nature warranting major penalty, then he should initiate

action as per Regulation 4. According to Regulation 4, the competent authority is alone empowered to issue memorandum of charges, call for

explanation, appoint an enquiry officer, if the explanation is not satisfactory and the report received by the competent authority is adverse to the

employee, the same shall be forwarded to the employee for further explanation and thereafter to consider the imposition of penalty. When

regulation 4 is categorical in terms, the question is as to whether the substantive right conferred on the delinquent employee for issue of charges and

further action to be initiated only by the competent authority could be taken away. In my view, even going by the explanation such a right has not

been taken away as a reading of the explanation would go to show that the immediate supervisory employee to the delinquent employee is

empowered only to initiate disciplinary action by calling explanation from the employee and after the receipt of explanation, forward a report on the

basis of explanation to the competent authority. The explanation does not confer any power on the immediate supervisory employee of the

delinquent employee to issue charge memo. This view is further strengthened from the reading of regulation 3 where it is specifically stated that ""the

competent authority to impose the penalties as per regulation 2 may, either suo motu or on receipt of report as per explanation"" either cause further

enquiry or impose the penalty fair and just to meet the ends of justice. This decision could be taken by the competent authority only when he is

satisfied that the charges warrant only a minor penalty. In case, on receipt of such report on the basis of the explanation, the competent authority is

of the view that the gravity of the charges is serious enough to warrant a major penalty, the only course open to the competent authority to initiate

action as per regulation 4. Hence, the explanation to regulation 2 empowers the Senior Regional Manager, as in this case who is not competent to

impose penalty, only to call for explanation and forward the same to the competent authority with his remarks and not beyond that. Appointing an

enquiry officer is not a power enumerated under the explanation empowering the Senior Regional Manager who is not the competent authority to

enquire into the charges as it is the obligation of the Chairman cum Managing Director under Regulation 4.

There is no dispute as to the procedure to be followed by the competent authority in initiating disciplinary proceedings, as the proceedings can

be initiated either suo motu or on receipt of report as per explanation. Regulation 4(a) refers the action to be taken by the competent authority in

case if he receives a report as per explanation or as indicated in regulation 3 to issue a memo regarding the basis of charge, quoting the relevant

rules or instructions omitted to be followed etc. He should also inform the delinquent of the list of documents relied upon for the basis of charge as

well as the list of witnesses proposed to be examined in the enquiry. The competent authority alone is empowered to appoint an enquiry officer that

too, immediately subordinate to him and after receipt of the report from the enquiry officer, he should also furnish a copy of the findings of the

report to the delinquent employee requiring him to file his further explanation within a reasonable time to be specified by him. On receipt of the

explanation, he is empowered to once again examine the matter in detail with reference to every point raised therein and shall take a decision as to

the imposition of penalty. In fact last paragraph of regulation 4(a) of the regulations also empowers the competent authority to impose even a minor

penalty after all these procedures are adopted and it is not necessary for him to compulsorily impose major penalty merely because he has initiated

proceedings under regulation 4. Going by the above discussion, it would be seen that in case a major penalty is sought to be imposed, the very

initiation of disciplinary proceedings from the stage of issuance of charge memo shall be only by the competent authority.

Mr. V. Perumal, learned counsel for the respondent in order to support his contention that the charge memo need not necessarily be issued by

the appointing authority himself and the same can be issued by any other authority subordinate to the competent authority, relied upon a judgment

of the Apex Court in Commissioner of Police vs. Jayasurian and Anr., (1997) 6 SCC 75 "". In that case the Apex Court was considering the

question of an order passed by the Tribunal in setting aside the order of removal on the ground that the charge memo was given by the Assistant

Commissioner of Police who was not the appointing authority. The very same issue was considered by the Apex Court on an earlier occasion in

the judgment in Inspector General of Police and another Vs. Thavasiappan, . The Apex Court specifically observed that on consideration of the

rule 2-A applicable to the case, the rules are silent as to who shall initiate disciplinary proceedings. In view of the same, the Apex Court held that

any superior authority who can be held to be the controlling authority can initiate the departmental proceedings and issue charge memo and that

initiation of the departmental proceedings and conducting of enquiry can be an authority other than the authority competent to impose the proposed

penalty. In this case, I have held that the explanation to regulation 2 does not empower the subordinate officer to the competent authority to issue

charge memo, appoint enquiry officer and forward the report of the enquiry officer to the competent authority for further action as they would be

outside the scope of explanation to Regulation 2 and the regulations were specific as to the competency of the competent authority only to frame

charges, appoint enquiry officer etc. Regulation 4 specifically empowers only the competent authority to issue charge memo, appoint enquiry

officer etc. In the absence of specific empowerment on the immediate supervisory employee to issue memorandum of charges, appointing enquiry

officer, the judgments relied upon by the learned counsel for respondent are not applicable to the facts of the present case.

The learned counsel for respondent also relied upon a judgment of the Apex Court in Government of Tamil Nadu and others Vs. S. Vel Raj, "".

This judgment also relates to the interpretation of the rules under the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955

where the rules are silent as to who shall initiate and conduct disciplinary proceedings. In view of my reason that in the case on hand the regulation

did not provide for such power to the immediate supervisory employee to the delinquent employee to issue charge memo and appoint enquiry

officer and Regulation 4 specifically empowers only the competent authority to issue charge memo etc., I do not find that the judgment is applicable

to the facts of this case.

Though the disciplinary proceedings cannot be held to be invalid merely because the initiation of disciplinary proceedings was not by the

competent authority when the rules/regulations are silent as to who shall initiate and conduct a disciplinary enquiry, it is not so when the

rules/regulations specifically provide procedures to be adopted in initiating disciplinary proceedings empowering only the competent authority to

issue charge memo, appoint enquiry officer and ultimately pass final orders. Such action would be alien to regulations and without authority of law.

The Apex Court in fact has approved such initiation of disciplinary proceedings by subordinate officers strictly in accordance with the rules, which

either enable such initiation of disciplinary proceedings or they are silent as to who shall initiate disciplinary proceedings. Answer would be different

when the rules/regulations do not provide such power on the subordinate officer to initiate disciplinary proceedings. The power of the subordinate

officer is restricted in the explanation only to call for explanation and forward the explanation along with the remarks to the competent authority for

further consideration. Question as to who should initiate disciplinary proceedings when the rules/regulations were specific came up for

consideration before this Court in ""R. SANKARALINGAM v. CHAIRMAN, T.N.E.B 1999 (2) LLN 786"". This Court in fact held as follows:-

In our case, as per Tamil Nadu Electricity Board Employees'' (Discipline and Appeal) Regulations, there is a specific regulation stating that the

competent authority alone should initiate disciplinary proceedings. This aspect has already been considered by the Division Bench of this Court

(Nainar Sundaram, Acting Chief Justice and Somasundaram, J.) in Tamil Nadu Electricity Board and others v. A. Paranthaman 1992 (1) LLN

863, which was followed by this Court (P. Sathasivam, J.) in A. Rajasekaran v. Tamil Nadu Electricity Board (W.P. No. 1759 of 1989 dated 17

July 1998). Therefore, the decision in 1997 (3) LLN 782 (cited supra) relied on by the learned counsel for the respondents will not apply to the

facts of this case since in this case there is a specific regulation that the competent authority namely, Chief Engineer alone should initiate the

disciplinary proceedings. Since the competent authority namely, Chief Engineer had not initiated the disciplinary proceedings in this case, the entire

proceedings are vitiated. Accordingly, I sustain the contention raised by the learned counsel for the petitioner in this regard.

In view of the above discussions, it must be held that when the Regulations provide a particular mode/procedure empowering a specified authority,

such specified authority alone is competent to take action as contemplated under the Regulations. This must be more so, when the power of lower

authority is also restricted only to call for explanation and submit the same to competent authority along with his remarks and no power to either

frame charges or appoint enquiry officer is conferred under the Regulations.

In this context, a judgment of this Court in ""K. BALASUBRAMANIAN v. TAMIL NADU CIVIL SUPPLIES CORPORATION LTD.

REP. BY ITS CHAIRMAN CUM MANAGING DIRECTOR AND ANOTHER 2000 (1) LLN 839"" can be usefully referred to. In that case

also disciplinary proceedings were initiated by the subordinate officer to the competent authority. This Court after a detailed analysis of the

regulations and also considering the explanation to regulation 2, which has been much relied upon by the learned counsel for respondent, has

ultimately held that it is only the competent authority who could issue the charge memo, call for explanation, appoint the enquiry officer and furnish

the copy of the report of the enquiry officer to the delinquent employee and pass final orders. P. Sathasivam, J., while considering Regulation 4 of

the Regulations has also taken the same view in W.P. Nos. 5050 and 9393 of 1992 in order dated 24.3.2000. A. Kulasekaran, J., in the judgment

in W.P. No. 21204 of 1994 after considering almost all cases relied upon by Mr. V. Perumal, learned counsel has also held that in the absence of

power under the regulations, the subordinate officers are not empowered to initiate disciplinary proceedings in case the enquiry resulted in a major

penalty. I am in entire agreement with the above view taken in those judgments.

For all these reasons, I find every force in the contention of the learned counsel for petitioner. Accordingly, I hold that on the face of the

regulations 2, 3 and 4 and more particularly, explanation to regulation 2, the issuance of charge memo and appointment of enquiry officer by the

Senior Regional Manager, Kanyakumari is without any authority of law and the order passed by the Chairman cum Managing Director on the basis

of such enquiry is also unsustainable. In view of the above discussion, both the impugned orders are unsustainable and are liable to be set aside.

Accordingly, the same are set aside and the writ petition is allowed. The petitioner is entitled to reinstatement with backwages, continuity of service

and all other attendant benefits. No costs.