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PETITIONER: THE CHIEF ENGINEER & ANR.

       Vs.

RESPONDENT: K. RAMAN

DATE OF JUDGMENT:       08/08/1996

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) PARIPOORNAN, K.S.(J)

CITATION:  JT 1996 (7)   435        1996 SCALE  (5)754

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P.JEEVAN REDDY, J.      Leave granted.      This appeal  is preferred  against the  judgment  of  a learned single  member (administrative  member) of the Tamil Nadu   Administrative   Tribunal   allowing   the   Original Application filed by the respondent.      The respondent  was a  Jeep Driver  in the public Works Department of  State of the Tamil Nadu. He applied for leave from 1.3.1984 to 31.3.1988 on the ground that he has to look after his  ailing mother  and his  family properties. He was granted earned  leave from  1.3.84 to  31.3.84 and  leave on loss of  pay from  1.4.84 to  31.3.88. Since he did not join duty after  expiry of  leave, it appears that on 12.11.1988, was asked  to join duty. He reported to duty on 27.11.88 and according to  the respondent,  he was  admitted to  duty  on 6.12.88.      On 2.12.1988,  an order  was passed  by  the  Executive Engineer stating  that the respondent must be deemed to have resigned  from   service  with  effect  from  1.4.1984.  The respondent challenged  the said  order before the Tamil Nadu State Administrative  Tribunal in  O.A.No. 282  of 1989. The Tribunal held that since the respondent was admitted to duty pursuant to  the letter  calling upon  him to join duty, the respondent was  entitled to  join duty on 6.12.88. So far as the order  dated 2.12.88  is concerned, the Tribunal quashed the same  on the ground that it was passed without holding a regular enquiry  as required  by rules and the principles of natural  justice.   After  reinstating   the  respondent  as directed by  the Tribunal,  the appellant  issued a  memo of charges upon  him. He was also suspended pending enquiry and a regular  disciplinary enquiry  held. The  gravamen of  the charges was  that  having  obtained  leave  on  the  grounds aforestated, the  respondent left the country for working in a foreign  country without  obtaining the  permission of the department.   The   enquiry   officer   held   the   charges

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established.  The   report  of   the  enquiry   officer  was communicated to  the respondent  to which  he submitted  his explanation. The  Superintending Engineer, after considering the entire  material, imposed  the punishment  of compulsory retirement  by   order  date   14.10.91  with   effect  from 31.10.1991.      The respondent  challenged the  order dated  14.10.1991 before the  Tamil Nadu  Tribunal in O.A.NO.2386 OF 1992. The learned  Administrative   member  quashed   the   order   of compulsory retirement on the only ground that in view of the earlier order of the Tribunal dated 11.4.1990 in O.A.No.2 of 1989. it  was not permissible for the appellants to hold the disciplinary enquiry.  The learned  member opined  that  the respondent was entitled to join duty on 6.12.88, his joining duty on 6.12.1988 was perfectly in order. The learned Member further opined  that the  reference in the said order to the failure  on  the  part  of  the  appellants  to  follow  the procedure  prescribed   for  imposing  punishment  was  only incidental and  that the  said order  did not also grant the permission to  take  disciplinary  proceedings  against  the respondent. Accordingly,  the learned  Member set  aside the order dated  31.10.91 and  made certain directions regarding past service.      We  have  carefully  read  the  earlier  order  of  the Tribunal. In  our opinion,  the main  ground  on  which  the Tribunal has  quashed the order dated 1.4.88 was that it was passed without  following the  procedure prescribed by rules and in violation of the principles of natural justice. It is true that  the order  also observed  that  in  view  of  the appellants letter  calling upon the respondent to join duty, the respondent  was entitled  to join  duty on  6.12.88, but that  circumstance   has  absolutely  no  relevance  on  the competence of  the disciplinary  authority to hold a regular disciplinary  enquiry   on  the   charges  aforesaid   viz., obtaining employment  in a foreign country without obtaining the permission  of the  department. Even  if it is held that the respondent  was admitted  to duty  on 6.12.88, that fact does not  in any  way disentitle  the disciplinary authority from  holding   a  disciplinary  enquiry  on  the  aforesaid charges. We  are also of the opinion that the learned member was not  right in  observing that  inasmuch as  the  earlier order of  the Tribunal  did not  grant any permission to the appellants to  hold a  disciplinary enquiry, no such enquiry could have  been held.  For holding  a disciplinary  enquiry according to  rules,  no  permission  of  the  Tribunal  was required. The  earlier order  declaring that respondent must be deemed  to have  resigned from  service with  effect from 1.4.1984 was  set aside, as stated above, on the ground that it was passed without holding an enquiry as per Rules and in violation of  the principles  of natural justice. It did not bar a  disciplinary  enquiry  according  to  Rules  and  the principles of natural justice.      Since  the   only   ground   on   which   the   learned Administrative Member has set aside the order dated 14.10.91 is found  unsustainable, the  appeal is liable to be allowed and is  accordingly  allowed  herewith.  The  order  of  the Tribunal is set aside. There shall be no order as to costs.