L. Sankar vs Tamil Nadu Electricity Board

D. Murugesan, J.—Since the issue involved in all these writ petitions is common, by consent, they are taken up for joint disposal.

The common question involved in these writ petitions is as to whether the Petitioners are entitled to proper show cause notice before the

impugned orders were passed by the Respondents. In view of the limited submissions of the learned Counsel for the Petitioners in challenging the

impugned orders as to the absence of proper notice as directed by this Court in the order in W.P. No. 7216 of 1997 dated 20.5.1997, it is

unnecessary to elaborately detail the averments made in the affidavits filed in support of the writ petitions. However, for the purpose of disposal of

these writ petitions, the following few facts may be relevant.

The Respondent/Board established North Madras Thermal Power Project at Ennore and the said project required water for cooling purposes.

The Respondent Board was using water from the Buckingham Canal in the Ennore Creek for the Ennore Thermal Power Station/Since continuous

supply of water is required, the Board had undertaken dredging and deepening operations in the Ennore Creek. In the said operation, number of

persons like the Petitioners, who were engaged in fishing and transportation through boats in the said river, were affected. The persons who were

so affected belonged to the villages of Kattukuppam, Sivanpadai Kuppam and Thalankuppan, Nettukuppam besides the members of Uppupadagu

Thozhilalargal Sangam, Ennore.

In view of the same, the Petitioners made representations to the Government and to the Respondent/Board putting forth their grievances and

loss of means for their livelihood. The said representations were considered and the Deputy Director of Fisheries, in his proceedings dated

23.3.1994, recommended for providing job opportunities to such of those affected individuals by virtue of the dredging and deepening operations

undertaken by the Respondent Board in Ennore Creek. Based upon the said proposal, the Respondent Board, in its proceedings (Permanent)

B.P. (FE) No. 12 (Administrative Branch) dated 23.3.1995, on the basis of the further report of the then District Collector, Chingleput M.G.R.

District, identified 270 fishermen from Kattukuppam, Sivanpadai Kuppam, Thalankuppam and Uppupadagu Thozhilalar Sangam, Ennore Village

and approved the proposal. Ultimately, the Respondent/Board decided to provide job assistance to those fishermen subject to satisfying the

conditions in educational qualification, age, etc.

Thereafter, by the subsequent Board''s proceedings dated 22.7.1995, the total affected persons were identified as 510 and ultimately, 460

persons were appointed on consolidated pay during July 1995 and they were also regularised in the posts of helper during 1996. However, under

the Board''s proceedings dated 9.4.1997, it was resolved that except 108 persons of Nettukuppam Village, 358 persons had secured employment

by fraudulent means and therefore, the Board resolved not to allow those 358 persons to continue in service any longer. The said proceeding was

challenged in W.P. No. 7216 of 1997 and this Court, by an order dated 20.5.1997, set aside the Board''s proceedings dated 9.4.1997 on the

ground that the same was passed without giving any opportunity to the affected persons and accordingly, directed the Respondent Board to issue

show cause notice, receive objections, hold an enquiry, if required and thereafter pass orders on merits of each individual.

Thereafter, the Respondent/Board, by its proceedings dated 7.10.1997, issued show cause notices to 358 persons other than 108 persons of

Nettukuppam village, calling upon them to explain as to why they should not be dismissed from the services of the Board. The relevant portion of

the said proceedings of the Respondent Board is extracted hereunder:

Accordingly, the Board hereby directs that show cause notices shall be issued to 358 persons mentioned in para-4 above (i.e.) other than 108

persons of Nettukuppam village referred to in Sl. No. 2 thereon whose livelihood, fishing operations, salt collection work are not affected by

dredging operations by the T.N.E.B. at Ennore Creek, but gained employment unlawfully; calling them to explain as to Why they should not be

dismissed from the services of the Board. The explanations received from them shall be considered and if need be an enquiry be held and orders

are passed on merits of each individual case taking into consideration all the relevant factors including reply to the show cause notice.

Pursuant to the said proceedings of the Board, the Petitioners have also submitted their explanation. However, not satisfied with the said

explanation, the Respondent Board has passed the impugned order dated 27.4.2000 dismissing all the 358 persons from service on the ground

that they have secured employment by fraudulent means. It is against the impugned orders, all these writ petitions have been filed.

Mr. R. Muthukumarasamy, learned Counsel appearing for some of the Petitioners, submitted that the Petitioners were actually affected by the

dredging and deepening operations carried on by the Board in the Buckingham canal and therefore, by virtue of the Board''s proceedings dated

23.3.1995, the Petitioners are entitled to be appointed in the Respondent Board. Accordingly, after considering the educational qualification and

age, the Petitioners were appointed. However, on the basis of the discreet enquiry made by the Vigilance Cell of the Respondent/Board, behind

the back of the Petitioners, by a resolution in BP. No. 11 dated 9.4.1997, Respondent/Board came to the conclusion that except 108 persons

belonged to Nettukuppam Village, all the remaining 358 persons have secured employment by fraudulent means.

In the said show cause notice itself, the Respondent/Board, only on the basis of discreet enquiry, decided that only such of those persons

belonged to Nettukuppam Village are entitled to job opportunity and the persons belonged to other villages are not entitled to any job

opportunities. The said impugned order was challenged before this Court in the earlier writ petition and this Court, while setting aside the said

order, directed the Respondents to issue show cause notice, call for explanations or objections, and if necessary, conduct an enquiry and also pass

final orders. Such being the specific directions of this Court by the impugned proceedings, the Respondent Board, once again, issued the show

cause notice, after deciding that except 108 persons belonged to Nettukuppam Village, the remaining 358 persons belonged to other villages are

not entitled for job opportunities. The impugned proceedings does not reflect any compliance of the directions as contained by the order of this

Court in W.P. No. 7216 of 1997 dated 20.5.1997. In as much as the reasons given in the impugned proceedings do not amount to compliance of

the earlier directions, the same are liable to be set aside.

l0. Even though the learned Counsel advanced the argument on merits also with regard to the entitlement of the Petitioners for job opportunity with

the Respondent Board, would restrict his submissions only to the above aspect with regard to the non compliance of the directions issued by this

Court in W.P. No. 7216 of 1997 dated 20.5.1997 in respect of the show cause notice issued to the Petitioners to call for the objections, to

conduct enquiry, if required, and to pass final orders. Therefore, the learned Counsel for the Petitioners submitted that the impugned orders are

liable to be set aside for want of proper notice to the Petitioners.

Mr. Senthilnathan, learned Counsel appearing for some of the Petitioners in these writ petitions adopts the arguments of Mr. K

Muthukumarasamy, learned Counsel,

Mr. V. Radhakrishnsn, learned Counsel for the Respondent/Board would, on the other hand, contend that as directed by this Court in W.P.

No. 7216 of 1997 dated 20.5.1997. proper notices have been given to the Petitioners and after receiving their explanations only, the present

impugned orders have been passed and therefore, it cannot be contended that either the impugned Board''s proceedings or the impugned orders of

dismissal of the Petitioners from service are, in any way, held to be bad for want of proper notice. Therefore, the learned Counsel for the

Respondents submitted that the contention of the learned Counsel for the Petitioners are liable to be rejected.

I have given my due consideration to the rival contentions of the learned Counsel on either side.

It is seen that the Board, while resolving in its earlier proceedings dated 23.3.1995 and in the subsequent proceedings, had taken note of the

recommendations of the Deputy Director of Fisheries as well as the then District Collector of Chingleput to give job opportunities to 456 persons

on the ground that they were affected by the dredging and deepening operations in the Buckingham canal, where the Petitioners had their livelihood

of fishing and transporting the same. The said decision to offer job opportunity was taken on the basis that the livelihood of the persons in that area

was affected. However, strangely, on a discreet enquiry made by the Vigilance Cell of the Respondent Board, the Board unilaterally decided that

only 108 persons belonged to Nettukuppam village are entitled to job opportunities and the remaining 358 persons belonging to other villages are

not entitled to job opportunities.

After coming to the said conclusion, a show cause notice for termination of service was issued in the Board''s earlier proceedings dated

9.4.1997, which was under challenge before this Court in W.P. No. 7216 of 1997 and this Court, by an order dated 20.5.1997, while setting

aside the same, issued the following directions:

In the circumstances, the impugned proceedings is quashed and the Respondent is at liberty to proceed afresh according to law. This writ petition

is allowed. It is needless to point out that the Respondent or the competent authority has to issue show cause notice, receive objections, and hold

an enquiry if required on facts and thereafter pass orders on merits of each individual.

A reading of the said direction would clearly indicate that opportunity was given to the Petitioners only to find out as to whether they are

affected by the dredging and deepening operations of the Buckingham canal and not to find out as to whether they belonged to either

Nettukuppam village or any other village. this Court was aware of the fact that such an opportunity must be only with reference to the

recommendations made by the Deputy Director of Fisheries and the then District Collector, Chingleput in respect of the persons, who were

affected by the operations carried on by the Respondent Board. Those recommendations were considered and the Board resolved to give

opportunity to 456 persons. On the earlier occasion, the same was unilaterally reconsidered and the Respondent/Board resolved that 108 persons

belonged to Neetukuppam village alone were entitled to job opportunity. This finding of the Respondent/Board was based upon the discrete

enquiry conducted behind the back of the Petitioners.

Therefore, the directions issued by . this Court in the earlier writ petition would necessarily mean that the Respondent/Board should issue show

cause notice to the persons affected, and receive explanations as to whether they were affected by the dredging and deepening of the canal and not

as to which village they belonged. This direction has been misconstrued or misread by the Respondent/Board and by the impugned proceedings,

the Board has come to the conclusion that except 108 persons belonged to Nettukuppam Village, persons belonging to the other villages are not

entitled to job opportunity. After having come to such a conclusion, the Board has resolved to issue individual notices to all the 358 persons. Such

a notice, in my view, cannot be, in any way, said to be in compliance of the directions issued by this Court in W.P. No. 7216 of 1997 dated

20.5.1997.

The principles of natural justice cannot be considered to be farce and empty formality. It is often said that justice should not only be done, but

also seen to be done. Therefore, the Board''s proceedings resolving to issue individual notices only to find out as to whether the Petitioners

belonged to Nettukuppam village or any other village cannot be considered, in my view, as proper compliance of the earlier directions of this

Court. In that view of the matter, I do riot find that the Respondent Board has given sufficient opportunity to the Petitioners by giving proper notice

calling for explanations and conducting the enquiry with reference to their eligibility to give job assistance for their livelihood. In the absence of such

notice issued to the Petitioners, in my view, the impugned orders of dismissal from service on the basis of the second show cause notice dated

22.11.1999 cannot be sustained.

Accordingly, both the impugned orders are set aside and the writ petitions are allowed. Consequently, no orders are necessary in the

connected pending W.M. Ps No costs.

It is made clear mat the impugned orders viz., the show cause notices and the orders terminating the services of the Petitioners are set aside

only on the ground that proper opportunity has not been given to the Petitioners. It is further made clear that the Board is at liberty to issue fresh

notices to the Petitioners in terms of the directions given by this Court in W.P. No. 7216 of 1997 to find out as to their entitlement for their job

opportunity and as to whether their livelihood were affected by dredging and deepening operations, call for explanations and after holding an

enquiry, if necessary, may pass final orders.

In all these writ petitions, the Petitioners have also prayed for the consequential direction of reinstatement with backwages and all other

attendant benefits. In view of my above, findings, and directions setting aside the impugned orders, the next question to be considered is as to

whether the Petitioners are entitled to reinstatement, backwages and other benefits. The impugned orders have been set aside only on the technical

ground, namely, no proper notice has been given to the Petitioners as directed this Court in W.P. No. 7216 of 1997. It is needless to mention that

once the impugned orders of termination are set aside, the Petitioners are entitled to be reinstated. However, so far as the question of backwages

is concerned, it cannot be ordered only on the sole ground that the impugned orders of termination are set aside. The Supreme Court in the case of

Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., has held that this Court has to find out as to what prejudice is caused to the

Petitioners by the dredging and deepening operations and the non-compliance of principles of natural justice. Since now, I have directed the

Respondents to issue fresh notices, to call for explanation, to hold an enquiry, if necessary and to pass final orders, the issue of backwages and

ether attendant -benefits to the Petitioners is left open to be decided after any final order is passed by the Respondent Board.