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Judgment
K. Chandru, J.—Heard both sides. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered
as W.P. No. 35071 of 2006.
The petitioner filed the original application No. 9433 of 1997 seeking to challenge the order of the second respondent, dated 06.11.1995 as
well as the appellate order of the first respondent, dated 17.12.1996, wherein by which the petitioner was dismissed from service. The Tribunal
inspite of the fact that the petitioner was not in service, granted an interim stay by an order, dated 26.11.1997. The ground on which the Tribunal
granted interim stay was that the enquiry report was not given to him before the competent authority imposed the penalty. The said interim order
came to be continued until further orders. Though the respondents filed a vacate stay application in M.A. No. 2467 of 1998, for reasons not
known the Tribunal did not take up that application. Thereafter, the respondents have filed a detailed reply affidavit, dated 23.07.1998, justifying
the penalty imposed on the petitioner.
The petitioner was dismissed from service by an order, dated 6.11.1995. Thereafter, his appeal, dated 05.1.1996 was rejected by the
Government on 17.12.1996. The Tribunal granted an interim stay on 26.11.1997 that too nearly after a period of 2 years from the date of the
original order of dismissal. It is unthinkable as to how the Tribunal can grant an interim stay of dismissal when the petitioner was out of service for
nearly a period of 2 years. The Supreme Court vide judgment reported in 2008 (12) SCC Page 30 has held that for the non furnishing of the
enquiry report, no reinstatement can be ordered and the proceedings should be allowed to proceed from the stage where the defect had crept in.
In the present case, the petitioner in his appeal memo dated 5.1.1996 did not even make a grievance about the non furnishing of the enquiry
report before passing final orders. The petitioner even at the time of filing of the O.A. was 54 years old and would have reached the age of
superannuation during the year 2001.
The petitioner was working as a Training Officer in the Government Industrial Training Institute, Cuddalore. The petitioner was placed under
suspension with effect from 14.12.1994. A charge memo under Rule 17(b) of the TNCS (D&A) Rules was given to him vide memo dated
20.01.1995. The charge against the petitioner was that he had a forced homosexual relationship with one student by name Sureshkumar and he
had also instead of being a model training officer, brought disrepute to the institution. On 13.12.1994, he did not attend the institute and applied for
one hour permission. On that day, in the residential quarters of the petitioner, the incident had taken place. The victim student gave a complaint to
the Principal, who in turn informed the Directorate. The incident had led to unrest among the students. The anger of the students led to violent
demonstration, including the student entering the petitioner''s living quarters and damaging his personal assets such as Television and two-in-one
set.
An enquiry was conducted in which the statement of the victim student as well as another student by name Jaishankar and the Principal of the
ITI was recorded. The victim student was cross examined. The petitioner did not cross examine the trainee student Jaishankar, with whose help
the victim student was made to go to the quarters. It was on the basis of these records, the petitioner was dismissed from service by the second
respondent. Along with the dismissal order, the petitioner was given a copy of the enquiry report.
As noted above, the petitioner did not make any grievance about the non furnishing of the report before its acceptance. In his appeal
memorandum, he had merely stated that the incident was stage managed and he was victimized being an Office bearer of a rival service
association.
On receipt of the appeal, the first respondent consulted the TNPSC. The TNPSC by its report dated 26.6.1996 gave advice to the
Government and stated that the charges were proved and the dismissal was a proper punishment. The Government after accepting the report also
independently decided that the punishment of dismissal was justified.
Mr. K. Rajkumar, the learned Counsel for the petitioner, made two submissions. The first was the non furnishing of the enquiry report before its
acceptance and the second was the order of the appellate authority was mechanical and there was no independent application of mind. In this
context, the learned Counsel also placed reliance upon an unreported judgment of this Court in R. Ramiah v. the Principal Secretary to
Government, Home Police (VI) Department, Chennai and Ors. in W.P. No. 20459 of 2007, dated 16.3.2009.
However, it must be stated that the Supreme Court vide its judgment in Chairman, Disciplinary Authority, Rani Laxmi Bai Sheitriya Gramin
Bank v. Jagadish Saran Varshare and Ors. reported in JT 2009 4 SC 519, has held that the appellate authority''s order need not contain elaborate
reasons.
It must also be stated that the non furnishing of the enquiry report was never made a ground by the petitioner before the appellate authority.
Therefore, in the absence of any prejudice, he cannot raise that ground as first ground before this Court for the first time.
Further, in the present case, an enquiry was conducted in which witnesses were examined in the presence of the petitioner. The conduct of the
petitioner was completely a deprived one, which is covered by Rule 19(2) of the Tamil Nadu Government Servant Conduct Rules. Once the
authority conducts a proper enquiry, in which legal evidence was let in, the Court cannot go into the question of proportionality of the punishment.
In this context, it is necessary to refer to the judgment of the Supreme Court in the case relating to Chairman and MD V.S.P. and Others Vs.
Goparaju Sri Prabhakara Hari Babu, . The following passage found in paragraph 20 to 22 in the said judgment may be usefully extracted below:
The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known
factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. (See Maruti Udyog Ltd. v. Ram Lal; State of Bihar v.
Amrendra Kumar Mishra; SBI v. Mahatma Mishra; State of Karnataka v. Ameerbi; State of M.P. v. Sanjay Kumar Pathak and Uttar Haryana
Bijli Vitran Nigam Ltd. v. Surji Devi.)
Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of
punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the
decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands
proved. (See Sangfroid Remedies Ltd. v. Union of India.)
The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment,
overturn a legal order.
The petitioner''s contention that he was victimized because of his being an office bearer of a rival service association and the incident was a
stage managed one was not established by him in the enquiry. On the contrary, it is relevant to refer to the following averment found in para 8 from
the reply affidavit:
...it is submitted that the applicant Training Officer did not attend the institute, he applied for an hour permission. On 13.12.94 the applicant
forcibly had a sexual relationship with a male student Thiru M.Sureshkumar. The above incident took place in the residential quarters of the
applicant. The affected student had lodged a complaint against the applicant in a written statement. The applicant, being a teaching staff set an
example as Philosopher and Guide to the students of the institution whereas he misbehaved with a student.
In the light of the above legal precedents and the factual matrix of the case, there are no grounds to interfere with the penalty imposed on the
petitioner. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs.