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2009 Supreme(Mad) 3438
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO & THE HONOURABLE MR. JUSTICE R. SUBBIAH
The Chairman and Managing Director, Tamil Nadu Small Industries Development Corporation Ltd. & Others
Versus
T. Sivanandan & Others
Writ Appeals No.1462 of 1998 & 277 of 1999, Writ Petitions No.2265, 4409 & 12550 of 1994 & C.M.P.No.15917 of 1998 in A.No.1462 of 1998 & C.M.P.No.2954 of 1999 in W.A.No.277 of 1999
Decided on: 31-08-2009
For the Appellants:R1 to R3, S. Ramasamy, AAG, R. Ramesh,M.S. Govindarajan, Advocates.
For the Respondents:S. Elamurugan, V. Sankaranarayanan, P. Rajagopal, Advocates.
The main legal point established in the judgment is the applicability of the amended Rule 6.17 of the SIDCO Service Rules and the prospective effect of the judgment in Union Of India And Others Vs. Mohd.Ramzan Khan on the dismissal orders.
Headnote:
Dismissal Orders - Enquiry Proceedings - Second Show-Cause Notice - Rule 6.17 of SIDCO Service Rules - Art.311(2) of the Constitution - Judgment of Honourable Apex Court in Union Of India And Others Vs. Mohd.Ramzan Khan - Prospective Effect of Judgment - Applicability of Rule 6.25 of Service Rules - Judicial Review of Dismissal Orders
Fact of the Case:
The delinquent employees were dismissed from service after charges were framed against them and an enquiry found them guilty. The employees challenged the dismissal orders, arguing that they were not issued a second show-cause notice before the imposition of major punishment.
Finding of the Court:
The Court found that the amended Rule 6.17 of the SIDCO Service Rules, which did not provide for a second show-cause notice, was in effect at the time of dismissal. The Court also noted that the judgment in Union Of India And Others Vs. Mohd.Ramzan Khan had a prospective effect from 20.11.1990 onwards, and therefore, did not apply to the cases at hand.
Issues: The main issue was whether the non-issuance of a second show-cause notice had vitiated the enquiry proceedings and whether the dismissal orders were justified.
Ratio Decidendi: The Court held that the amended Rule 6.17 of the SIDCO Service Rules was in operation at the time of dismissal and did not provide for a second show-cause notice. The Court also emphasized the prospective effect of the judgment in Union Of India And Others Vs. Mohd.Ramzan Khan, which did not apply to the cases at hand.
Final Decision: The Court directed the respondents/Department to reinstate the delinquent employees, except those who had attained the age of superannuation, and impose minor penalties on them as provided under Rule 6.15(a) within a specified timeframe.
Common Judgment:
Elipe Dharma Rao, J.
Since all these matters are inextricably interconnected with each other, they are heard in common and are being disposed of by this common judgment.
2. For the sake of convenience and easy reference, the writ petitioners and the respondents in the writ appeals are referred to as the writ petitioners/delinquent employees and the appellants in the writ appeals and the respondents in the writ petitions are referred to as the respondents/department.
3. On a perusal of the entire materials placed on record, it is seen that for some alleged misconducts, charges were framed against the writ petitioners by the Department and after conducting an enquiry, all the writ petitioners were found guilty of the respective charges framed against them and by the impugned orders, they all are dismissed from service. Challenging such dismissal orders, the employees have filed writ petitions before this Court.
4. In the two writ petitions filed by T. Sivanandan and M. Jagadeesan, the respondents in the writ appeals, orders have been passed by two learned single Judges of this Court, ordering their reinstatement with all incidental benefits. Aggrieved by the said orders passed by the learned single Judges, the Department has come forward to prefer the writ appeals. When the writ appeals were taken up for consideration, since it has been brought to the notice of the Division Bench that three other writ petitions, pertaining to the same facts are also pending on the file of this Court, W.P.Nos.2265, 4409 and 12550 of 1994 are ordered to be tagged along with the Writ Appeals No.1462 of 1998 and 277 of 1999 so as to dispose them of together. Accordingly, all these matters are clubbed together for common disposal.
5. The main attack to the impugned orders of dismissal by the delinquent officials is that on completion of the enquiry and before inflicting the major punishment, they were not issued with any show-cause notice (second show-cause notice) by the officials so as to represent their grievance regarding the proposed punishment. The learned single Judges have affirmed the contention raised on the part of two of the employees, who are the respondents in the above Writ Appeal Nos.1462 of 1998 and 277 of 1999 and held that non-issuance of the second show-cause notice has vitiated the enquiry proceedings. In arriving at such a conclusion, the learned single Judges have placed reliance on Rule 6.17 of the SIDCO service Rules, which reads as follows:
"Before imposing any of the penalties, the competent authority shall give a reasonable opportunity to the employee concerned to show cause against such imposition."
6. It is to be mentioned here that the above provision i.e. Rule 6.17 of the SIDCO Service Rules, seems to have its origin/genesis from Article 311(2) as it stood earlier, contemplating issuance of second show-cause notice. But, the 42nd Amendment of the Constitution, which came into effect on and from 1. 1977, has deleted the second stage of the inquiry, which would commence with the service of a notice proposing one of the punishments mentioned in Art.311(1) of the Constitution. It seems, consequent upon the 42nd Amendment of the Constitution, the above quoted Rule 6.17 of the SIDCO Rules has also been amended by the Resolution No.131 of the 64th Board Meeting dated 13. 1980 and the new Rule 6.17 has been brought into operation which reads as follows:
"After the enquiry or personal hearing are completed and after the authority competent to impose the penalty has arrived at a provisional conclusion in regard to the penalty to be imposed on the basis of the evidence adduced during the enquiry, it shall make an order imposing such penalty and it shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed."
7. Therefore, on the part of the respondents/Department, it has been strenuously argued that when the Rules themselves do not pr
