Madras High Court
K. Govindaswamy vs Tamil Nadu Civil Supplies Corporation ... on 16 March, 1998
Equivalent citations: (1998)2MLJ323
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. The petitioner has approached this Court to call for the records relating to the proceedings of the first respondent dated 23.6.1988 in RC.A9/05370/ 88 as confirmed by he second respondent in his Order dated 9.11.1988 by issuance of a writ of certiorari on various grounds.
2. According to the petitioner, when he was working as a time-scale Bill Clerk under the control of the first respondent on 25.2.1988, he was suspended from service for certain alleged irregularities in the Chief Minister's Nutritious Meal Scheme at Century Flour Mills' Godown. Thereafter, on 25.3.1988, he was served with a charge memo alleging pilfering and under-weighment in the stocks allotted to the Chief Minister's Nutritious meal centres and thereby gained excess stocks for personal benefit. He was also charged with misappropriation of stocks and proved to be an untrustworthy employee of the Corporation. Along with the said charge memo a Questionnaire form was furnished to him in which he was asked to specify whether an oral enquiry was required in his presence and whether he intended to examine witnesses on both sides. On receipt of the charge memo, he gave an explanation on 5.4.1988 denying the charges and submitted the Questionnaire form duly filled in, in which he not only wanted to have a perusal of certain documents, but also specified the names of various persons who should be produced before him for his cross-examination. It is further stated that after the receipt of the explanation, an Enquiry Officer was appointed to conduct the enquiry into the charges and the enquiry was posted to 16.5.1988 and then to 10.6.1988. In the enquiry proceedings, he denied the charges levelled against him. Thereafter, however, the Enquiry Officer simply recorded his statement and closed the enquiry proceedings. No documents were marked in support of the charges and no oral evidence was let in respect of the charges. He was denied the opportunity to peruse the documents and also the benefit of cross-examination of those persons who were to depose against him. A farce of an enquiry was held and the Enquiry Officer has submitted a report. Based on the said report, the first respondent though concluded that a severe punishment was warranted, yet, imposed the punishment of stoppage of increment for a period of two years with cumulative effect and also treating the period of suspension as substantive 'suspension' in and by his proceedings; dated 23.6.1988. Thereupon, he preferred an appeal to the chairman-cum-Managing Director, who in his proceedings dated 9.11.1988 summarily rejected his appeal. He has filed the present writ petition questioning both the Order s referred to above.
3. Respondents filed a counter-affidavit wherein it is contended that while the petitioner was working as Bill Clerk in the Century Flour Mills Godown during the month of February, 1988, the Vigilance cell of the Head Office intercepted the lorry bearing Registration No. TMT 5766 carrying foodgrains from the said godown to the C.M.N.M.P. centres for delivery on 5.2.1988 and noticed excess stock of rice, palmolin in the said vehicle. The excess stock of rice and other commodities reported are quite alarming as per the records of the godown, whereas only a lesser quantity of stocks were sought to be transported. Unless there was under weighment in the stocks allotted to the Noon-meal centres, there cannot be any possibility to gain the excess stock. Thus, the petitioner was placed under suspension on 25.2.1988 and two charges have been framed. The charge memo was served upon the petitioner on 29.3.1988. He has submitted an explanation on 5.4.1988. An Enquiry Officer was appointed to conduct the enquiry. In the said enquiry, it was held that charges are proved. After examining the explanation and findings of the Enquiry Officer along with the connected records, a punishment of stoppage of increment for a period of 2 years with cumulative effect was Order ed apart from treating the period of suspension as substantive suspension. The appeal preferred by the petitioner to the Chairman-cum-Managing Director, the Appellate Authority, was also rejected. It is also stated that the enquiry was conducted in accordance with the principles of natural justice and petitioner was given ample opportunity. Further, the petitioner himself has admitted that there were excess stock of rice in the lorry during the verification of the Vigilance Cell and also admitted that the stock was released from the godown on 100% weighment and that there was no excess/shortage as it was released as per records of the godown. In view of the said admission, the question of examination or cross-examination of any witness does not arise in the case. However, in the enquiry conducted, the petitioner was given full opportunity to defend the charges. The punishment imposed to the petitioner is proportionate to the gravity of the charges and the appeal petition was also rejected by the second respondent as there was no merit to interfere with the Order s passed by the first respondent.
4. I have heard Mr. S. Venkataraman, learned Counsel for the petitioner and Mr. N. Kannadasan, learned Counsel for the respondents.
5. Mr. S. Venkataraman, learned Counsel for the petitioner, after taking me through the charge memo, explanation as well as Tamil Nadu Civil Supplies Corporation Service Rules, submitted that inasmuch as the respondents have not followed the procedure contemplated under Rule 16 and no one was examined before the Enquiry Officer to substantiate the charges, the ultimate punishment imposed by the respondent cannot be sustained. On the other hand, Mr. N. Kannadasan, learned Counsel for the respondents, submitted that inasmuch as the petitioner himself has admitted that there was excess stock of rice in the lorry during verification of the Vigilance Cell and also admitted that the stock was released from the godown on 100% weighment and that there was no excess/shortage as it was released as per the records of the godown, the procedure adopted by the respondents are in Order and the ultimate punishment is also proportionate to the gravity of offences; hence he prayed for dismissal of the writ petition.
6. I have carefully considered the rival submissions. 7. While the petitioner was working as a time-scale Bill Clerk, he was served with the following two charges:
(1) That he in the capacity of Bill Clerk pilferred the stock and made under weighment in the stock, allotted to the C.M.N.M.P centres and thereby gained excess stocks for his personal benefits. Thus, he has not only committed a serious offence under Tamil Nadu Weights and Measures Enforcement Act, 1958, but also brought discredit to the Corporation.
(2) That he in the capacity of Bill Clerk has thus misappropriated the stocks by under-weighment of stocks entrusted to him. Thus, he proved himself as an untrustworthy employee of the Corporation.
The said charge memo was served on the petitioner on 29.3.1988 and he submitted an explanation on 5.4.1988 denying all the charges. It is the case of the petitioner that a Questionnaire form was furnished to him in which he was asked to specify whether an oral enquiry was required in his presence and whether he intends to examine witnesses on both sides. He further contended that he has submitted the Questionnaire form duly filled in which he not only wanted to have a perusal of certain documents, but also specified the names of various persons, who should be produced before him for his cross-examination. After receipt of the explanation, an Enquiry Officer was appointed to conduct the enquiry into the charges and the enquiry was posted initially on 16.5.1988 and then to 10.6.1988. It is also the definite case of the petitioner that in the notice of enquiry, it was specifically pointed out that the petitioner would be given full opportunity to defend himself by examining his witnesses, to peruse documentary evidence and also to cross-examine those deposing against him. As stated above, on receipt of the explanation, an enquiry notice dated 29.4.1988 has been served on the petitioner. In the said notice it is stated thus:
During the enquiry the delinquents will be given full opportunity to defend themselves by examining their witnesses, providing documentary evidence if any or by cross-examining those deposing against them. The above delinquents are therefore directed to be present for the enquiry on the above mentioned date without fail, along with their witnesses if any failing which the same will be held ex parte. They are also informed that they can peruse the records if any before the Enquiry Officer on the date of enquiry.
sd/- xxx Enquiry Officer, Deputy Manager (Purasai).
However, it is seen from the counter affidavit that the Enquiry Officer on the basis of the explanation offered by the petitioner, found that charges are proved. The first respondent, after considering the explanation and findings of the Enquiry Officer along with the connected records, imposed a punishment of stoppage of increment for a period of 2 years with cumulative effect and also Order ed that the period of suspension is treated as substantive suspension. Hence, it is the case of the respondents that after giving an opportunity to the petitioner and on the basis of the explanation of the petitioner, findings of the Enquiry Officer and after perusing the connected records, appropriate punishment is imposed on the petitioner.
8. In the light of the above facts, now I shall consider whether the procedures adopted by the respondents are in accordance with the Rules and whether they satisfied the principles of natural justice and conducted fair hearing.
9. The Service Rules of the Tamil Nadu Civil Supplies Corporation Limited are applicable to all the employees of the Tamil Nadu Civil Supplies Corporation, other than those covered by standing Order s. There is no dispute that the said Rules are applicable to the petitioner also. Rule 16 of the said Rules deals with penalties and procedure which reads thus:
Rule 16. Penalties: An employee for good and sufficient reason, including any breach of any of the regulation and Rules of the Corporation, or negligence, inefficiency, insubordination, or failure to show due diligence and attention in the discharge of his duties or failure to conform to the instructions of his superiors or any irregularities in the discharge of his duties or any criminal act shall be liable to any of the following penalties.
1. Minor punishment: (a) Censure.
(b) Stoppage of increment.
(c) Fine in the case of employees of Classes IV and V.
2. Major Punishment: (a) Suspension.
(b) Reversion to a lower stage in the category or to a lower category.
(c) Discharge, removal or dismissal from service. Note: Suspension by itself is not a major punishment.
Recovery of the loss, if any, caused to the Corporation by any act or omission of any employees may be Order ed in addition to any of these punishments.
Before considering the fact whether the petitioner was given sufficient opportunity and whether the procedure adopted was in accordance with the Service Rules, even though it is stated in the counter affidavit that the writ petitioner himself has admitted that there was excess stock of Rice in the lorry during verification of the Vigilance Cell and also admitted that the stock was released from the godown on 100% weighment and that there was no excess/shortage as it was released as per records of the godown, the same have been emphatically denied by the petitioner. In this regard the learned Counsel for the petitioner has brought to my notice the explanation offered by the petitioner. The said explanation dated 5.4.1988 addressed to the Senior Regional Manager of the Corporation is included in the additional typed-set of papers wherein he has denied both the charges and explained his position in detail. In the light of the explanation offered by the petitioner on 5.4.1988 and after going through the same, I am unable to accept the argument of the learned Counsel for the respondents, namely, in view of the admission, the question of examination or cross-examination of any witness does not arise. Inasmuch as both the charges have been specifically denied by furnishing facts and particulars and of the fact that the petitioner has made a specific request for full opportunity to defend himself and also cross-examine the witnesses to be examined on the side of the Corporation coupled with the fact that he has indicated in the Questionnaire form itself that witnesses have to be examined on his side, 1 am of the view that the respondents ought to have examined witnesses to prove the charges. It is not possible to arrive at a conclusion merely on the basis of the explanation offered by the petitioner.
10. Mr. N. Kannadasan, learned Counsel for the respondents submitted that inasmuch as the punishment imposed is only stoppage of increment for a period of two years with cumulative effect and also treating of the period of suspension as suspension, which is minor punishment and if it is so, as per the procedure contemplated under Rule 16 of the said Rules, an opportunity to explain the charges alone is sufficient and in this case, the same has been properly complied with. However, Mr. Venkataraman, learned Counsel for the petitioner submitted that if it is a mere stoppage of increment, it would come under the head 'Minor Punishments', but in our case the petitioner was awarded a punishment of stoppage of increment for a period of two years with cumulative effect; hence it cannot be termed as a minor punishment as per Rule 16(1) of the said Rules and certainly it is a major punishment under Rule 16(2) of the Rules. In support of his contention, he has relied on a decision of the Apex Court reported in Mohinder Singh v. State of Punjab and Ors. (1994) 2 S.C.C. (L. and S.) 842. In the said decision, their Lordships have concluded that stoppage of increments with cumulative effect is a major penalty and the same cannot be imposed without enquiry. In Kulwant Singh Gill v. State of Punjab (1990) 2 L.L.N. 1019 : (1990) 61 F.L.R. 635, the Apex Court has again concluded that directing stoppage of two increments with cumulative effect would come within the concept of major penalty and imposition of such punishment without an enquiry would be illegal. Following the said decision of the Apex Court, J. Kanakaraj, J., in an identical circumstance wherein the present respondent, namely, Tamil Nadu Civil Supplies Corporation was a party, in A.G. Mohamed Jaffar v. Tamil Nadu Civil Supplies Corporation Ltd. (1992) 1 L.L.N. 585 has held as follows:
It is clear that only stoppage of increment is mentioned as minor punishment. Where the stoppage of increment is continued with cumulative effect for a period of two years, it means that two increments earned by the employee was cut off as a measure of penalty. Dealing with the similar rule, the Supreme Court of India in Kulwant Singh Gill v. State of Punjab (1990) 2 L.L.N. 1019, has pointed out that when stoppage of increment is Order ed with cumulative effect and the rules are silent on that aspect, it would be deemed as a major punishment calling for a regular enquiry as prescribed for a major punishment. Following the dictum of the Apex Court, the writ petition is allowed and the impugned Order is quashed...
11. In the light of the principles enunciated in the above mentioned decisions, I am of the view that withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 16(l)(b) of the said Rules. But when penalty was imposed withholding two increments i.e., for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In the words of His Lordship K. Ramaswamy, J., in the Bench decision reported in Kulwant Singh Gill v. State of Punjab (1990) 61 F.L.R. 635, it is observed as follows:
The clock is put back to a lower stage in the time-scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned Order by necessary implication, is that the appellant employee is reduced in his time-scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time-scale of pay as a measure of penalty. The words are the skin to the language which if pealed off its true colour or its resultant effects would become apparent.
Hence, the punishment imposed on the petitioner would attract Rule 16(2) of the said Rules. Accordingly, as per the procedure, the petitioner shall be given opportunity for his personal hearing and to examine witnesses specified by him and he shall be permitted to submit his explanation thereafter. Admittedly no one was examined on the side of the Corporation/Management and no opportunity was given to the petitioner to examine his witnesses as claimed by him in the Questionnaire form. Hence the contention of the learned Counsel for the petitioner is well founded and the punishment imposed on the petitioner is vitiated.
12. Apart from this, it is also brought to my notice that after passing an Order of stoppage of increment for a period of two years with cumulative effect, there is another punishment treating the period of suspension as 'suspension'. If that is so, it would attract Rule 16(2) since suspension is one of the major punishments. Hence, by passing such an Order , the respondents have to necessarily follow the procedure contemplated under Rule 16 of the Rules.
13. Further, it is settled law that it is for the Management to prove the charges beyond any doubt. Merely because the petitioner did not seek opportunity that would not mean that charges were established. As observed by Shivaraj Patil, J., in a decision reported in N. Radhakrishnan v. T.N.C.S. Corporation Ltd. (1995) 2 L.L.N. 1081, it was for the management to establish the charges by the materials on record. As a matter of fact, in our case, it is seen that the petitioner not only denied the charges but also sought permission to examine witnesses on his side even in the Questionnaire form. The said procedure has not been followed. Kanakaraj, J., in W.P.No. 11145 of 1987 dated 19.2.1991 has taken the same view that failure to follow the said principle vitiates the enquiry and ultimate Order passed by the respondents. Abdul Wahab, J., in a decision reported in K. Mohan Doss v. Tamil Nadu Civil Supplies Corporation (1997) 2 L.L.N. 892. has held that without examining any witness and marking documents, submission of a report by the Enquiry Officer and basing on that report, imposition of punishment cannot be sustained and the procedure adopted for enquiry is not proper. In Writ Appeal No. 782 of 1992 dated 18.3.1997 the Division Bench of this Court, in a similar circumstance has held as follows:
...We are of the view and it is by now well settled that in a domestic enquiry, as in a regular trial the burden of proof of establishing the guilt on a charge is always on the accuser and not on the accused and this burden must be discharged fully in conformity with the principles of natural justice. The employer should take steps first to lead evidence against the workmen charged, give him an opportunity to cross-examine the said evidence and then should ask the concerned workman whether he wants to give any explanation about the evidence led against him. Before asking the workman to produce his evidence, it was also held in catena of cases, that it is not fair at the very outset to closely cross-examine even at the commencement of the domestic enquiry the delinquent officer concerned and act upon the answers given or materials gathered during the preliminary enquiry, without making it part of the regular enquiry during the course of the domestic enquiry held by the Enquiry Officer appointed for the purpose. The procedure adopted by the domestic Enquiry Officer in this case as also the materials relied upon could not be said to be a legal one and enquiry is vitiated seriously. The Order of punishment passed on the basis of such enquiry and the enquiry report cannot also be sustained by us.
14. Apart from this, the Appellate Authority, without considering the case of the petitioner merely confirmed the Order passed by the original authority.
15. In the light of what is stated above, the Order of the first respondent dated 23.6.1988 and confirmed by the second respondent in his Order dated 9.11.1988 are quashed and the writ petition is allowed as prayed for. No costs. I make it clear that if the respondents so desire, it is open to them to proceed afresh as stated above and in accordance with law.