Tamil Nadu Civil Supplies Corporation Ltd. and Another vs C. Nataraja Pillai

R. Jayasimha Babu, J.—The appellant- corporation contends mat it was open to the Regional Manager to have appointed the enquiry

officer in respect of a person belonging to Class II in the service of the appellant-Corporation even though the penalty that was ultimately imposed

on the basis of the report of that enquiry was one of removal from service.

The appellant-Corporation has framed regulations titled Tamil Nadu Civil Supplies Corporation Ltd. Employees'' Service Regulations, 1989.

Chapter V of that Regulation deals with disciplinary proceedings, penalties and appeal regulations. Regulation 2 in that chapter sets out the

authorities to impose penalties and also appellate authorities.

In respect of persons in Class II, minor punishments may be imposed by the immediate superior officer of that class to whom the delinquent

employee is subordinate. If major penalties are to be imposed other than compulsory retirement, removal and dismissal, the authority competent to

impose such a punishment is the Managing Director. The explanation in Regulation 2 reads as under:

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.

While the immediate superior officer of an employee in Class II may initiate disciplinary action, he may proceed with such an action only if the

penalty ultimately imposed is a minor penalty. If the nature of the charge is such as to warrant imposition of major penalty, in case the charge is

found to be proved in an enquiry, the immediate superior officer may only issue a charge-memo, receive the explanation from the delinquent, state

his own remarks thereon and then submit all those papers to the authority competent to impose the major penalty for further action and orders.

That is clear from the words used in the explanation as also the con- tent of Regulation 3. Regulation 3 clearly spells out that the quantum of

punishment that may be imposed by that officer is only a minor punishment and nothing more.

It is Regulation 4 that deals with procedures governing the award of major penalties. It requires the competent authority, who has the power to

impose a major penalty, to appoint an enquiry officer. The power to appoint an enquiry officer in cases where major penalty is likely to be the net

result in the event the charge being proved is, therefore, a power not given to the immediate superior officer but, is a power available only to the

competent authority, who in cases of Class II officer is the Managing Director. The explanation under Regulation 2 is also in the nature of

explanation to the first paragraph of the Regulation 4(a) which provides that the competent authority may, either suo motu or on receipt of a report,

issue a memo recording the basis of charge, quoting the relevant rules or instructions ""omitted to the followed, etc. That power of issuing a charge-

memo is also given to the immediate superior officer even in cases where the ultimate penalty imposed is a major one. But his role is confined to

issuing of charge-memo and receiving the explanation from the delinquent.

An enquiry, held by an enquiry officer appointed by the immediate superior officer, on the basis of which a major penalty is imposed, is not one

which is sanctioned by the regulations.

The regulations are no doubt made by the Board. But, those regulations bind the Board and they are not a set of rules to be either given effect to

or for being ignored at the whim of the employer. That is a regulation which binds the employer as also the employee.

The regulation having been breached in this case, as found by the learned single Judge, the penalty that was ultimately imposed cannot be

sustained as that has not been imposed in accordance with the regulations.

Learned counsel for the appellant submits that the employee has not demonstrated any prejudice. The regulation itself being unambiguous the

employer cannot be permitted to contend that though the regulation has been breached flagrantly, the employee should nevertheless suffer the

consequences of an action taken by the employer contrary to the regulation.

In this case, the misconduct that was alleged against the employee was long absence of over 700 days. The learned single Judge has directed

reinstatement with back wages. We do not consider that to be a proper order in so far as it relates to back wages. A person who has admittedly

not worked and has chosen to abstain himself from duty, cannot be rewarded for his recalcitrant conduct and his failure to perform the work the

purpose for which he had been employed. While upholding the order quashing the order of termination, we reserve the liberty to the employer to

hold a fresh enquiry if it so chooses into the alleged misconduct. Consequent to the order of termination being set aside, the employee would be

entitled to report for duty. He will not be entitled to any back-wages. The appeal is accordingly ordered. Connected miscellaneous petition is

closed.