M. Palanisamy vs The Board of Directors and The Managing Director Tamil Nadu Agro Industries Development Corporation Ltd.

P. Jyothimani, J.—The writ Petitioner was working as an Assistant /Store Keeper inSunola Sales Depot of the Tamil Nadu Agro Industries

DevelopmentCorporation Ltd. While working as Store Keeper, he was placed undersuspension on certain charges and two charges were framed

against himon 25.10.1999, which are as follows:

that on 14.9.1999, the Marketing Section issued a Despatch Advice No. 4483 dated 14.9.99 to despatch 50 casesSunola Stock to the City

Stockist Tvl. Sree Sakthi VinayagaSales Corporation. The Junior Engineer, C&F was notavailable on that day. As per the instructions issued

inOffice Order No. 8/P&A/99, dated 8.4.99 the StoreKeeper/Assistant who is handling the Stores at C&F shouldsign in the Delivery Notes and

ICI Ns whenever JuniorEngineer, C&F is not available or on leave. The StoresKeeper/Assistant Thiru M. Palanisamy instead of despatchingthe

Sunola Stock to the stockist as per the despatch advisementioned above, refused on the ground that he will not doit in the absence of Junior

Engineer. When he waspersonally instructed by the Chief Officer (Fertiliser) andthe Administrative Officer, Thiru M. Palanisamy refused

todespatch the Sunola stock. He also refused to unload theSunola stock received on that day from the Sunflower OilComplex, Pochampalli. Thus

Thiru M. Palanisamy has violatedthe Office Order and also disobeyed the lawful instructionsof Chief Officer (Fertilizer) and Administrative

Officer,hampering the trade activities of Corporation.

that as per Service Rule 50 of Tamilnadu AgroIndustries Development Corporation, every employee shallconfirm to and abide by these rules

shall observe, complywith and obey all orders and directions which may from timeto time be given to him by any person under whosejurisdiction,

superintendence and control he may be placed,but Thiru M. Palanisamy has violated the rules.

There was no explanation submitted by the Petitioner for theabove said charges, however, an Enquiry Officer was appointed, whosubmitted his

report and after considering the report of the EnquiryOfficer, the second Respondent, the Managing Director of theCorporation passed the

impugned order dated 05.02.2002, dismissing thePetitioner from service. It was, against the said order, an appeal wasfiled before the first

Respondent, who under the impugned order dated16.03.2002, rejected the appeal with the following reasons:

Thiru M. Palanisamy, is informed that the Board ofDirectors of Tamil Nadu Agro Industries DevelopmentCorporation Limited, in their 23rd

meeting held on 1.3.2002,after a detailed discussions and examining the records suchas charge memo, explanation submitted by him,

EnquiryOfficers'' report, Managing Director''s order, grounds ofappeal have held that there was no merit in the appeal andaccordingly rejected the

appeal.

The contention of the learned Counsel for the Petitioner isthat by looking into the nature of the charges framed against thePetitioner, there is no

monitory loss caused to the RespondentCorporation by the conduct of the Petitioner and even assuming thatthere is an insubordination, the charge

should have been framed underRule 17(a) of the Tamil Nadu Civil Services (Discipline & Appeal)Rules, whereas framing of charges under Rule

17(b) is against law. Hewould also rely upon some of the judgments of this Court, especially one reported in S. Kannan Vs. The State of Tamil

Nadu, . He would further submit that as per Rule 59-B ofthe Service Rules of the Respondent Corporation, the appellateauthority should have

considered the appeal by giving a finding as towhether the penalty imposed is adequate or inadequate or severe andinasmuch as the appellate

authority has not given such reason, there isnon-application of mind and the order is opposed to the Service Rulesgoverning the service conditions

of the employees of the RespondentCorporation.

On the other hand, it is the contention of the learned Counselfor the Respondent Corporation that as per Service Rule 50,insubordination has to

be viewed seriously and once an employee has acted against the rules, framing of charge under Rule 17(b) of theTamil Nadu Civil Servants

(Discipline and Appeal) Rules, cannot be saidto be unlawful. He would also submit that the previous conduct of thePetitioner shows that he has

been disobedient on several times, andtherefore, the impugned orders need not be interfered with. It is hisfurther submission that the original

authority, viz., the secondRespondent has given adequate opportunity to the Petitioner and in factin the enquiry conducted by the Enquiry Officer,

the Petitioner hasfully participated and therefore, he cannot challenge the same on theground of violation of the principles of natural justice.

On a reference to the appellate authority''s order as elicitedabove, it is clear that there is no application of mind and the reasonshave not been

adduced. Law is well settled that when the appellateauthority confirms the original authority''s order of punishment, it isnot necessary that the

appellate authority should traverse into thefacts of the case and make an application of mind. In cases where theappellate authority is bound by the

procedure that is contemplatedunder the Service Rules, the appellate authority has to act as per theprocedure. Therefore, while confirming the

order of the originalauthority, when the Rules compelling the appellate authority to giveelaborate reason and the Rules are particular about a

method to befollowed by the authority, the non-following of the same has to benecessary interfered by this Court. In this regard, it is relevant

toextract the part of the Rules relating to the appellate authority''spower. Rule 59-B, deals with the appeal against the order of theoriginal authority

in Sub-clause (iv), which is as follows:

Rule 59-B.

(i) to (iii) xxxx

(iv) In the case of an appeal against an order imposing any of the penalties specified in Rule 57(i), theappellate authority shall consider whether the

penaltyimposed is adequate, inadequate or severe and pass order (i) confirming enhancing, reducing or setting aside thepenalty or (ii) remitting the

case to the authority whichimposed the penalty with such direction as it may been fit,in the circumstances of the case.

The order of punishment of dismissal passed in this case iscovered under Rule 57(i). Therefore, when an order of dismissal isappealed against,

the appellate authority has to necessarily apply itsmind to find out about the adequacy or inadequacy of the punishment andafter considering the

same, it is for the appellate authority to decideeither to confirm or to enhance or reduce the punishment. On a barereading of the operative portion

of the order of the first Respondentappellate authority, it is clear that the appellate authority has notconsidered the said aspect.

In this circumstance, it is relevant to state that thePetitioner has taken a stand as it is seen in the grounds of appealthat for the charges framed

against the Petitioner, the punishment ofdismissal is grossly disproportionate. In cases where the punishmentsought to be imposed is grossly

disproportionate to the nature ofcharges framed, which shocks the conscience of either the court or theappellate authority, the authority is to

consider the same byapplication of mind. Therefore, in this matter, I do not propose to gointo the question or validity or otherwise of the original

authority''sorder, viz., the second Respondent''s order and on the ground that theorder of first Respondent appellate authority is not in conformity

withthe Rules, I am inclined to set aside only the impugned order of thefirst Respondent dated 16.03.2002. Accordingly, the impugned order of the

first Respondent dated 16.03.2002, alone stands set aside and thematter is remanded back to the first Respondent for fresh considerationby the

appellate authority in accordance with the Rules stated above. It is made clear that the first Respondent appellate authority shallconsider the appeal

afresh on the basis of the Rules including the pleaof the Petitioner regarding the nature of punishment and passappropriate orders on merit and in

accordance with law and such ordershall be passed within a period of eight weeks from the date of receiptof copy of this order.

The writ petition stands partly allowed. No costs.