(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, to call for the records relating to the impugned orders passed by the first respondent in (PER) FB TANGEDCO Proceedings No.17 dated 12.01.2017 as confirmed by the orders passed by the respondent Board vide Proceedings of first respondent in (PER) FB TANGEDCO Proceedings No.14 dated 27.05.2017 as well as orders passed in the Mercy Petition issued through the second respondent vide Proceedings in Memorandum No.50470/A5/A51/2017-1, dated 30.10.2017 and to quash the same.)
1. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents and perused the records.
2. The petitioner by the present writ petition has assailed the action of the first respondent in issuing proceedings No.17 dated 12.01.2017, by which he has been awarded the punishment of “stoppage of increment for three years with cumulative effect, inclusive of the period, if any, spent on leave”, for the proved Charge-1 as per the charge memo dated 29.06.2016.
3. Petitioner contended that while working as Executive Engineer from November 2015, he has been issued with the charge memo dated 29.06.2016 on two counts (1) that while he was working as Assistant Executive Engineer, he had performed the journeys twice to China by incurring expenditure without obtaining a No Objection Certificate (In short “NOC”) from the competent authority, thereby violating Regulation 27 (A) of the Tamil Nadu Electricity Board Employees Conduct Regulations; (ii) that he had travelled to China with one Gaitan Picco, a representative of M/s. Herodex Powers System Private Limited, who had attended the negotiation meeting and project progress review meeting along with its Director; and that petitioner shared TANGEDCO documents with the Herodex Powers Systems Private Limited in violation of Regulation 16 of the Tamil Nadu Electricity Board Employees Conduct Regulations; that based on the charge memo, he was placed under suspension as per the order dated 25.05.2016; that he had submitted a detailed explanation to the respondents on 20.07.2016; that he had requested to revoke the order of suspension inasmuch as he cannot be placed under suspension for making a trip to China on medical grounds, only on account of not availing the NOC; and that insofar as the other charge is concerned, the same is totally unsustainable.
4. Petitioner contended that on he submitting explanation on 20.07.2016, the second respondent revoked his suspension and reinstated him into service vide order dated 10.01.2017; that the respondents notwithstanding the explanation submitted by him, appointed an enquiry officer vide order dated 09.09.2016 to conduct an enquiry into the charges framed against him; that he participated in the enquiry and submitted an explanation seeking for furnishing of documents as well as the preliminary report forming the basis for framing the charges against him; that he had also requested the copy of the letter dated 02.03.2016 received from the Foreign Regional Registration Officer (FRRO) to the investigating authority during the course of enquiry and other documents as shown in the Annexure-III to the charge memo, which formed the basis for framing charges against him; and that the respondents did not furnish the documents sought for by him in order to defend the charges framed against him effectively.
5. It is the further contention of the petitioner that though the respondents did not furnish him with the documents as sought for by him, he submitted a representation to the enquiry officer on 12.09.2016 requesting the CE/Transmission to be deputed as the Board side witness during the enquiry, in order to establish the fact that he is no way connected to the tender processing at the Transmission Office and the charges are totally unfounded; that in spite of the request, the Board side witness was neither summoned nor examined by the enquiry officer, which resulted in the enquiry proceedings being conducted in gross violation of the established procedure in the matter of conduct of enquiry; and that he was denied the opportunity to defend the charge by not furnishing the documents as requested and also not examining the witnesses as requested.
6. Petitioner contended that the enquiry officer completed the enquiry and submitted his report to the first respondent on 13.10.2016; that the second respondent issued a memo dated 16.11.2016 calling for further representation on the findings of the enquiry officer; that as per the enquiry report, the Charge – 1 was stated to be proved, while charge – 2 was stated to be not proved; that he had submitted a detailed representation to the second respondent on 19.11.2016 against the Charge -1, which was stated to be proved by making it clear that he took treatment called needle treatment in China for the unbearable constant severe pain suffered by him in both legs; that with a fear of becoming bedridden for any delay in taking treatment and in order to keep the appointment given by the Hospital in China on account of medical urgency, he did not obtain NOC from the department.
7. The petitioner contended that the first respondent proceeded to pass the impugned order by considering the finding of the enquiry officer on Charge No.1, without taking into consideration, that the enquiry officer had found that the second charge levelled against him having not been proved and the said charge being the main reason for the respondents to initiate disciplinary proceedings, mere non-obtaining of NOC for undertaking trip to foreign country for medical reason, disciplinary proceedings cannot be initiated and he cannot be visited with punishment.
8. The petitioner also contended that though aggrieved by the order of the first respondent, he had availed the remedy of appeal as provided under the respondents' regulation, the appellate authority also mechanically approved the order of disciplinary authority without taking note of the attendant circumstances under which he was required to travel to China.
9. Contending as above, the petitioner seeks for setting aside the impugned orders.
10. Counter affidavit on behalf of the respondents is filed.
11. The respondents by the counter affidavit while denying the writ averments contended that the petitioner aggrieved by the order of the first respondent dated 12.01.2017 had availed the remedy of appeal and further remedy of mercy petition; and that both the appeal as well as mercy petition were rejected on 27.05.2017 and 30.10.2017 respectively; and that there is no irregularity in passing the aforesaid orders; that the respondents had followed the laid down procedures, statutory Regulations relating to the conduct of the enquiry and also granted sufficient opportunity to the petitioner.
12. The respondents by the counter affidavit further contended that as per the respondents' Regulations viz., Regulation 27 (A), every employee of the Board is required to obtain NOC for undertaking a trip to a foreign country by providing details as to the purpose of the visit and duration of stay; that the petitioner had performed a trip to China without getting/obtaining NOC from the competent authority; that for the said reason, he was placed under suspension at the first instance by memo dated 25.05.2016; that the respondents thereafter had issued a charge memo dated 29.06.2016, as the aforesaid act of the petitioner was in violation of the respondent Board's Regulation.
13. The respondents by the counter affidavit contended that the petitioner on being issued with a charge memo, submitted his explanation; that the disciplinary authority not finding his explanation satisfactory, appointed the enquiry officer; that the petitioner took part in the enquiry proceedings; that the enquiry officer conducted the enquiry after providing all reasonable opportunities to the petitioner; that the petitioner at the end of the enquiry had also expressed his satisfaction as to the conduct of the enquiry; that the enquiry officer, on due consideration of the proceedings of the enquiry, submitted his findings, holding Charge -1 as proved and Charge-2 as not proved; that the respondents, as required under the Regulations, to provide another opportunity by duly communicating the findings of the enquiry officer, directed the petitioner to submit his explanation thereon; that the petitioner submitted his explanation on 19.11.2016; and that the respondents thereafter only revoked the suspension vide proceedings dated 10.01.2017.
14. The respondents by the counter affidavit further contended that the disciplinary authority, on considering the charges framed against the petitioner and the explanation submitted by him, and having regard to the findings of the enquiry officer, imposed the punishment of stoppage of increment for a period of three years with cumulative effect, inclusive of the period, if any, spent on leave, by the proceedings of the first respondent dated 12.01.2017.
15. The respondents by the counter affidavit also contended that the petitioner being a Class -I Service Officer, instead of setting an example for other employees, had violated the Regulations and proceeded on a trip to the foreign country without getting/obtaining an NOC from the competent authority; and that the aforesaid action of the petitioner is in violation of the respondents' Regulation; and that the punishment awarded is not disproportionate to the violation of the Regulations; that the respondent/disciplinary authority by considering the gravity of charge, explanation submitted by the petitioner, had awarded punishment, which is commensurate with the violation on the part of the petitioner.
16. On behalf of the respondents, it is contended that if the petitioner intended to proceed to China for taking medical treatment, nothing prevented him from getting NOC before proceeding; and that the explanation offered by the petitioner is only an afterthought and thus, there is no illegality or infirmity in passing the impugned proceedings imposing the punishment on the petitioner for the proved wilful violation on his part.
17. Contending as above, the respondents seek for dismissal of the writ petition.
18. I have taken note of the respective contentions as urged.
19. Though the petitioner had claimed that on account of he suffering a knee pain in both legs, he was required to undertake trips to foreign country ie., China on two occasions, during the periods from 21.06.2016 to 30.06.2016 and again 12.08.2015 to 09.08.2015, if at all, the said claim of the petitioner is to be accepted as correct, only the first trip ie., 21.06.2015 to 30.06.2015 can be considered as on medical emergency and not the second trip, as there was a gap of 45 days between the first trip and second trip and the petitioner being on duty during the interregnum. No explanation is forthcoming from the petitioner for not obtaining NOC for the second trip, which, according to the petitioner is after undertaking first treatment in the month of June from 21.06.2015 to 30.06.2015.
20. Insofar as the travel of the petitioner during the period from 21.06.2015 to 30.06.2015, which the petitioner, in the explanation submitted to the charge memo, claimed was on account of unbearable pain in his knee being suffered by him, admittedly the said pain did not occur overnight for him to undertake travel to China on urgent basis. No material is placed to substantiate the claim of the petitioner of he suffering from any knee pain prior to undertaking the travel to China, and before deciding to take treatment in China, he actually took treatment in India for a substantial period and the same did not give any relief.
21. Even assuming that the petitioner was required to undertake a trip to a foreign country on an emergent basis, even if he could not obtain NOC in advance, nothing prevented the petitioner from atleast communicating to competent authority of he requiring to undertake such travel on medical emergency. In absence of any such action being taken by the petitioner, the explanation offered by the petitioner to the charge can only be considered as an afterthought after the respondents coming to know of the petitioner undertaking a trip to foreign country without obtaining permission, based on an anonymous petition received by the respondents. But for the said petition received by the respondents, the petitioner did not disclose the fact of he undertaking the travel even after he completing his two trips and instead accepted promotion to the post of Executive Engineer in November 2015. This conduct on the part of the petitioner only goes to show that the petitioner never had any intention to disclose his trip to a foreign country and in fact, wanted to suppress the same from the knowledge of the respondents.
22. Insofar as challenge to the disciplinary proceedings in a writ petition under Article 226 of the Constitution of India, the scope of the interference by the Court is limited and the Court is mainly required to see as to whether the enquiry proceedings initiated by the competent authority are conducted in accordance with the Regulations; and the principles of natural justice have been adhered to. The Court, while exercising extraordinary jurisdiction under Article 226 of the Constitution of India, cannot act as a second Appellate Authority by examining the evidence as to whether on the basis of the evidence, the disciplinary authority could have imposed the punishment on the applicant or by substituting its own findings with that of conclusions arrived at by the enquiry officer by reappreciating or re-evaluating the evidence or also by undertaking the exercise of modifying the penalty awarded. [See: (I) B.C.Chaturvedi vs. Union of India – (1995) 6 SCC 749, (ii) State of Andra Pradesh vs. Chitra Venkata Rao – (1975) 2 SCC 557, (iii) Union of India vs. Subrata Nath – 2022 SCC Online SC 1617]
23. The Apex Court, in the case of Union of India vs. P.Gunasekaran reported in (2015) 2 SCC 610 dealing with the aspect of re-appreciation of evidence by the High Court and what the Court required to see, had held as under:
“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not :
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.”
24. The Hon’ble Supreme Court, once again, in the case of Indian Oil Corporation vs. Ajit Kumar Singh reported in (2023) 19 SCC 102, while dealing with the interference by a Writ Court with findings of fact, had observed as under:
“11. The views expressed by this Court on the scope of judicial review in SBI v. Ajai Kumar Srivastava [SBI v. Ajai Kumar Srivastava, (2021) 2 SCC 612 :, are extracted below;
28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.”
25. Thus, the contours of interference by a Writ Court having been well laid down by the aforesaid Apex Court decisions, in the facts of the present case, this Court not only cannot undertake the exercise of appreciating the claim of the petitioner of he having required to undertake trip to foreign country without obtaining NOC on account of medical emergency, as the same would amount to this Court re-appreciating the evidence and substituting its own findings with that of the disciplinary authority. It is for the reason that a Writ Court does not act as a second appellate authority, particularly, when the appellate authority and the revisional authority, before whom the petitioner had assailed the action of the disciplinary authority, did not find reason to interfere thereunder.
26. Despite being hit by limitation on account of various judicial decisions, this Court, in order to test the genuineness of the claim of the petitioner, had called upon the petitioner to produce the Passport, as the petitioner, during the course of hearing, had placed before this Court two medical prescriptions on the letterhead of “Kong Jun Xian Hospital” dated 05.06.2015 and the discharge summary dated 18.08.2015.
27. Though the petitioner had produced the copy of his Passport, he had masked the details relating to his travel dates in the Passport, as affixed by the immigration authorities while leaving the country and arriving into the Country from China and also on return.
28. Further a perusal of the copy of the passport as produced by the petitioner shows that the petitioner was issued a Chinese Visa on 09.06.2015. Thus, the medical certificate dated 05.06.2015, being prior in point of time to the date of issuance of Visa, the petitioner could not have undertaken the travel.
29. For the reasons indicated above, this Court is of the view that the impugned order, by which the petitioner is visited with punishment for violation of the respondents' regulations which is required to adhere to and follow while in the service of the respondents, cannot be said either as without taking the attendant circumstances into consideration or the violation being such which does not warrant the initiation of disciplinary proceedings against the petitioner.
30. Since, the petitioner obtained Visa to travel to China only on 09.06.2015, the treatment if any should have been after the said date. The petitioner did not produce any medical certificate of he having availed treatment after he obtained Visa and travelled to China during the period from 21st June to 31st June, 2015. On the other hand, the petitioner produced the medical certificate dated 05.06.2015. Though, it is contended by the petitioner that the said certificate is only advice to him to take medical assistance, since the petitioner had obtained medical advice on 05.06.2015 and having obtained Visa on 09.06.2015 and in fact, having undertaken travel between 21st June and 31st June, 2015, nothing prevented the petitioner from informing the concerned authorities and seeking to grant NOC for his travel to China, in the mean time. Even if the petitioner could not obtain NOC, nothing prevented the petitioner from atleast applying to the authorities to grant permission or issue NOC for him to claim he having undertaken trip to foreign country on account of delay being caused by the concerned authorities to grant such permission. Apparently, no such effort had been made by the petitioner. On the other hand, petitioner seeks to justify his action only on the ground of medical urgency which for the aforesaid reasons, cannot be accepted as a valid reason or cause.
31. Insofar as, the other certificate is concerned, which is titled as a discharge summary, it only mentions the period when he is discharged i.e., on 18.08.2015 and the petitioner having taken treatment and that his knee pain got receded. The normal discharge summary would record as to the problem with which the patient reported, the treatment given and what is the position of the patient at the time of discharge and the follow up action to be taken. However, no such details are mentioned in the discharge certificate/discharge summary. On the other hand, both the medical certificates only show that they are printed on the letterhead of one Kong Jun Xian Hospital, China and there are no details of the Doctor or the registration number to identify who has provided the treatment to the petitioner. Thus, both certificates do not instill confidence in this Court for being accepted.
32. In view of the above, this Court finds the present writ petition as filed is devoid of merit and is dismissed with costs. Costs quantified at Rs.10,000/- payable to the High Court Legal Services Committee within two weeks from the date of receipt of a copy of this order or uploading the order copy on the website of this Court. Consequently, connected miscellaneous petitions are closed.
For Reporting Compliance, post on 31.07.2026.
