Madras High Court
V. Kasinathan vs The Chairman Cum Managing Director, ... on 2 September, 2005
ORDER K.P. Sivasubramaniam, J.
1. The petitioner who was working as a Quality Inspector in the respondent Tamil Nadu Civil Supplies Corporation (hereinafter called the Corporation) in the godown at Villupuram, seeks for a Certiorari to call for the order dated 4.7.2002 terminating him from service and to quash the same.
2. According to the petitioner, on 20.6.2001, all the T.V. Channels flashed clippings alleging that the rice procured and supplied in the Corporation's godown was highly discoloured and was unfit for human consumption, which was a political issue which arose out of the change of Government after the general election in May 2001. It was in those circumstances, surprisingly, on 26.6.2001, the local M.L.A. from Villupuram, belonging to the opposition party, came to the godown at 1.00 p.m., with about 70 persons. As an individual employee, he could not stand against the mob who forcibly entered into the Godown Division before his establishing contact with his immediate higher official. It was beyond his imagination to stand up to a local M.L.A. and his supporters. If the mob goes out of control, great danger would be done to the stock in the godown and the fate of the employees would be at peril. In the said circumstances, he had to succumb to the pressure and was a silent spectator to the happenings. The M.L.A. took law unto himself and took samples of rice and also took video of the samples. The happenings appeared to have been telecasted in the T.V. having allegiance to the opposite party. Immediately after the invaders had left, he gave a written report to the second respondent about the whole incident and thereafter, on instructions from higher authorities, the matter was referred to the police. When the police arrived at the scene, the First Information Report was prepared by the petitioner and the same was registered. On the basis of the First Information Report, the M.L.A. and few others were arrested for offences of trespassing into the godown and they were remanded by the Magistrate. The petitioner was immediately thereafter transferred to Cuddalore Region. According to the petitioner, the local trade union leader belonging to the ruling party had written to the Government stating that the M.L.A. and others were allowed inside the godown to spoil the image of the Government and its leader. On receipt of the said letter from the Union, the second respondent had suspended the petitioner from service. The order of suspension was challenged in W.P.No.13266 of 2001 and the said writ petition was disposed of with a direction to the Corporation to initiate and complete the disciplinary proceedings within three months.
3. Subsequently, a charge memo dated 3.1.2002 was issued alleging that he had allowed the M.L.A. inside the godown to take samples of rice and allowed the T.V. Group to video tape the functioning of the godown and that due to the telecast in the T.V. Channel, the reputation of the Corporation was affected and a wrong opinion was created in the minds of the public.
4. The petitioner denied the allegations and sought for full-fledged oral enquiry. The explanation was received by the second respondent and in terms of the service regulations, he alone should have appointed as enquiry officer. However, he was shocked to find that the Chairman-cum-Managing Director stepped into the shoes of the second respondent and appointed the General Manager (Quality Control) to hold an enquiry into the charge.
5. On 15.2.2002, the petitioner appeared before the enquiry officer and filed two documents in support of his defence.
6. In the enquiry, no witness was examined and no document came to be marked and he was merely interviewed by the enquiry officer. The enquiry was only a farce of an enquiry. Subsequently, he was communicated with the report of the Enquiry Officer by the first respondent and the petitioner was shocked to find that the Enquiry Officer had held all the charges as proved. On receipt of the enquiry report, he submitted his further explanation. However, the first respondent had issued the impugned order. The petitioner has also stated that though an appeal was available before the Board of Directors, yet, the petitioner was constrained to approach this Court, as the remedy would be a farce. Hence, the writ petition.
7. In the counter affidavit filed by the Corporation, it is stated that on 26.6.2001, the petitioner had allowed the sitting M.L.A. and more than 30 outsiders who were politically opposed to the present Government to enter into the godown to verify the quality of the rice stored in the godown and to take photograph and videograph the entire proceedings. But the alleged activity was carried out without getting any prior permission from the authorities concerned and thereby, the rules and regulations had been violated. Therefore, he was placed under suspension.
8. The second respondent had framed four charges. The explanation of the petitioner dated 29.1.2002 was found unsatisfactory and the first respondent appointed the enquiry officer by proceedings dated 7.2.2002. The Enquiry Officer, by report dated 21.5.2002, found all the charges as proved. The Enquiry Officer's report was sent to the petitioner who submitted his explanation on 10.6.2002. After careful consideration, and on consideration of the findings of the Enquiry Officer, the respondent had imposed punishment of removal from service for the various irregularities. In the counter affidavit, the various averments raised by the petitioner had been denied. The contention that the petitioner was helpless was denied and it is stated that the conduct of the M.L.A. and his accomplice were witnessed by the petitioner in a calm manner and he did not object to the conduct of the M.L.A. and his companions. It is further stated that the Storage Manual of the Corporation envisages the procedure relating to the inspection of the godown which the petitioner was very well aware. It is only a High Level Committee consisting of Government officials and M.L.As are having a close vigil on the functioning of the Public Distribution System in order to avoid possible malpractices. The name of the said M.L.A. of Villupuram does not find a place in the said Government Order, which had been served on the petitioner on 4.4.2001 itself. Therefore, the petitioner was very well aware that the M.L.A. had no powers to inspect the godown. In spite of the same, he had allowed the M.L.A. to enter the godown and to do whatever they liked, for their political gains.
9. It is further stated that the petitioner himself had accepted before the enquiry officer that the action of the M.L.A. was in violation of the rules and regulations. That being so, he ought to have rushed to the police station and lodged a complaint with the police on his own accord, which he failed to do so. The said facts would clearly prove that he had acted in connivance of the M.L.A., rather than in the interest of the Corporation as well as the Government. It is further stated that the video clippings which had been telecasted in the private channel is the main basis of the charges and the same was displayed through the video player to the petitioner by the Enquiry Officer on 15.2.2002 during the enquiry. Copies of the paper cuttings to which reference was made were also furnished to the petitioner. At the conclusion of the enquiry, the petitioner has not given a direct reply to the question of the Enquiry Officer as to whether he has any further explanation to offer. Therefore, there is no violation of principles of natural justice. The entire events disclose that the petitioner willingly allowed the M.L.A., and his companions to unauthorisedly enter the premises and to take videograph, creating a law and order situation and thereby damaging the reputation and name of the Corporation and the Government. Therefore, the action had been properly initiated against the petitioner.
10. Mr. S. Venkataraman, learned counsel for the petitioner, contends that the impugned action is nothing but political victimisation as a result of the publicity in the newspapers, which followed the M.L.A's action, which had caused considerable embarrassment to the Government. Whether the action of the M.L.A. was proper or not is not the question to be considered. It is the conduct of the petitioner as an employee of the Corporation which has to be considered and as to whether the petitioner had no control over the incidents which had taken place. The following are the points raised by the learned counsel:
(i) List of witnesses and documents were not given in the charge memo as required under the Regulations. In spite of repeated requests, the respondents did not furnish the copies of the documents, especially the video extracts on which reliance was placed upon;
(ii) The petitioner who is nothing more than an employee of the Corporation, has been victimised due to political rivalry;
(iii) Even the documents which are relied upon by the Enquiry Officer were not supplied to the petitioner;
(iv) The objection relating to alternate remedy may not be sustained, having regard to the background under which action was sought against the petitioner. The action was initiated only at the instance of superior officers, namely, the first respondent and no useful purpose would be served in filing an appeal;
(v) The reliance placed on the newspaper reports cannot be sustained, as different newspapers had carried out different points of view and versions;
(vi) In fact, the First Information Report was given only by the petitioner himself and action was initiated against the M.L.A. and his companions only on the basis of the complaint given by the petitioner himself and hence, there was no basis for accusing the petitioner of any inaction.
(vii)The entire action was initiated only due to the motivated complaint given by the Union having allegiance to the ruling party.
11. Mr. R. Muthukumarasamy, learned Additional Advocate General, appearing for the Corporation, contended that the substance of the charge was permitting third parties in an unauthorised manner. The facts stated in the first information report is substantially correct in the sense that he did not voluntarily permit the invaders. There was no dispute that about 70 people had entered and the charge is that as the Officer in charge of the godown, he ought not to have permitted third parties to enter. The respondent did not place any reliance on the newspaper reports. Reliance was placed only on the photographs. Video clippings were shown to the petitioner at the time of enquiry. Learned Additional Advocate General also referred to the statement of the petitioner himself in his explanation dated 10.6.2002, which is as follows:
" In the said situation, I had to succumb to the pressure and was a silent spectator to the happenings."
12. This is again repeated in the affidavit also. Therefore, according to the learned Additional Advocate General, it is admitted that he had yielded to the pressure and had allowed third parties to have access to the godown. He did not also take immediate action to complain to the Regional Office or to the police station. The First Information Report was given only at 6.00 p.m., after five hours.
13. Learned Additional Advocate General also assured that there were no political motives and action was taken purely on the happenings on the day, resulting in law and order problem and indiscipline which he should have avoided. As regards the procedure, it was contended that the procedure would depend upon the facts of each case and in a domestic enquiry, there was no scope for strict rules of evidence. The questions put to him by the Enquiry Officer do not amount to cross-examination but intended only to elicit information and to help the delinquent to explain.
14. As regards alternate remedy, learned Additional Advocate General contended that the Managing Director will not be a party to the Board's proceedings and unless any prejudice was pleaded and established, the delinquent cannot bypass the alternate remedy.
15. In reply, Mr. Venkataraman contended that it was an admitted fact that the M.L.A. had entered with 70 persons and according to the reports, with dangerous weapons. As regards the filing of the First Information Report, report has been given immediately to the Regional Manager in writing and on his advise, the First Information Report was given to the police.
16. I have considered the submissions of both sides.
17. Here is a case of action taken against the quality Inspector of the respondent Corporation which ended in an order removing him from service. The issue centres around the alleged action of the local M.L.A. entering the godown forcibly, then taking rice samples and videographs the happenings and later televising the same in one of the T.V. Channels. At the outset, it may be clearly stated that this Court is not called upon to examine or concerned with the correctness, propriety or otherwise of the action of the M.L.A. That appears to be a subject matter of a criminal complaint and we are not concerned with the same. What is required to be analysed in this writ petition is the action or inaction on the part of the petitioner, which would justify an order of his removal from service. The following is the extract of the First Information Report given by the petitioner himself:
" Even at the cost of life if one is to face them, if the mob goes out of control and great damage is done to the stock in the godown, the fate of the employees at that point of time would be in peril and the Corporation would hold the employees responsible for the loss of stock which would have come to several lakhs of rupees. In the said situation I had to succumb to the pressure and was a silent spectator to the happenings. The MLA took law unto himself and not only took the samples of rice but took video of the samples and it seems later the gist of the happenings in the godown came to be telecast in a TV having allegiance to the opposition political party in the State. "
18. Learned Additional Advocate General fairly made it clear that the respondent has no quarrel with the facts stated in the First Information Report. Their only grievance is that the petitioner, as the officer responsible for the godown, should have prevented the unlawful entry, of taking of samples, videographing, etc. On the other hand, he had connived and colluded with the intruders, according to the respondent, and that the charges have been made out. In view of the stand taken by the respondent Corporation that they have no quarrel over the facts stated in the First Information Report, the scope of the enquiry is considerably reduced to the facts stated thereunder and whether those facts make out a proper case against the petitioner. This Court is not concerned with the proof or otherwise of the allegations contained in the First Information Report, but concerned only with the facts stated therein to the extent to analyse as to whether the description of the incident in the First Information Report would justify the action taken against the petitioner. I have also considered the objections taken by the learned counsel for the petitioner on the merits of the charges as well as the process of the enquiry and the reply of the learned Additional Advocate General on those objections. On overall consideration, I am of the opinion that the action taken against the petitioner is not justified for the following reasons:
(a) The facts stated in the First Information Report disclose unexpected and forcible entry into the godown by more than 30 persons and they have behaved very violently. It is alleged that he was threatened with a dangerous weapon (Kuthoosi) and he was forcibly taken inside and they took samples of rice. The petitioner is alleged to have again attempted to prevent them from taking samples. But again he was threatened not to repeat any attempt to resist them. Thereafter, they have videographed the samples and went away after 15 minutes. The complainant/ petitioner has also stated that if he had offered any further resistance or objection, the functioning of the public distribution system would have been affected and he would have been seriously injured. We may even totally ignore the pleadings of the petitioner in the writ petition and even the explanation of the charge memo. We may strictly confine to the facts stated in the First Information Report with which the Corporation has no disagreement. An employee of the Corporation who is unarmed, who is suddenly confronted with the above described threatening situation by a mob of not less than 30 or 35 persons and facing a clear threat of serious physical injuries, how else could any individual behave except to remain quiet? The entire operation had lasted only 15 minutes under a threatening atmosphere, leaving no room for him to make any immediate complaint to the higher authorities as long as the group was inside the premises. If he had left the place to give a police complaint as suggested by the respondents, things would have become worse and he could also be accused of abandoning his duty. By the time police are brought in, the intruders would have left considering that the whole operation took place only by 15 minutes. I have repeatedly put the question to the learned Additional Advocate General as to whether the facts stated in the First Information Report is in any manner contrary to the stand of the Corporation and I have been assured that they are in full agreement with the facts stated in the First Information Report. That being so, it is not possible to give any finding in favour of the complaint of collusion, connivance or deliberate failure on the part of the petitioner to resist the intruders. The person who had framed the charge, the Enquiry Officer who had found that the charges are proved and the disciplinary authority who had inflicted the punishment for removal from service ought to have put themselves in the shoes of the petitioner and the situation in which he was placed.
(b) The report of the Enquiry Officer suffers from a major defect of not taking into account the contents of the First Information Report. The Corporation cannot blow hot and cold, on the one hand, confirm the contents in the First Information Report and on the other hand, for the purpose of departmental action, ignore the facts stated in the First Information Report.
(c) There should have been other members of the staff of the Corporation present at the time of the incident and there is no proper justification or reasons for not examining any such witness. I agree that there can be no compulsion in a departmental enquiry that some witnesses should be examined or that some documents should be marked as exhibits. It is possible to sustain a charge only on the basis of the files without oral or documentary evidence, provided, the delinquent had been permitted to peruse the file for preparing his defence. But in this case the only material on which the Corporation had proceeded are the newspaper reports which are admittedly varied and contradictory with each other in some of the factual aspects and the video clippings. Learned Additional Advocate General submitted that that they have relied only the photographs in the newspapers and not the reports. This submission is only partly correct. A perusal of the Enquiry Officer's report discloses that the Enquiry Officer relies on the photograph as well as the reports. As regards the first charge, the Enquiry Officer has positively stated that he had taken into account the reply said to have been given by the petitioner to the Reporter of Dinamani for the news item which appeared on 27.6.2001. It is true that reliance can be placed upon newspaper reports which are not contradicted or denied by the person to whom the statement is attributed. But as far as this incident is concerned, the Enquiry Officer should have taken into account all the statements, at least from the newspapers and magazines relied upon by the Corporation itself or should have ignored all the reports, if they are conflicting. A perusal of the report in Junior Vikatan dated 4.7.2001 which has been marked as Ex.M2, contains statements made by the petitioner referring to one of the intruders, Suresh, who tried to take video and the petitioner tried to prevent him. But Suresh violently pushed him aside and threatened him. It also contains a statement of the reporter of Dinamani of having stated that when the M.L.A. wanted to inspect the godown, the petitioner immediately contacted the Regional Manager over the phone and after talking to him, the petitioner told the M.L.A. that he can go inside, but not take any sample of rice. Why is it that the enquiry officer did not turn his attention to both the said statements which are found in the very documents marked by the Corporation itself? Even in the statement of the petitioner in Dinamani dated 27.6.2001 which is specifically dealt with in the report of the Enquiry Officer, the petitioner is said to have told the Reporter that he was disabled from making any immediate complaint to the police because of the tense atmosphere prevailing at the godown. I fail to appreciate how the said statement could adversely implicate the petitioner. Therefore, before any newspaper report may be relied upon, in view of the conflicting reports in different newspapers and magazines, if the Department wanted to rely on any statement, the least which should have been done is to have examined the Reporter or at least should have obtained an affidavit confirming the text of the report. Admittedly, none of these requirements had been complied with. On the contrary, reports from several newspapers have been produced in evidence and the Enquiry Officer had chosen to refer to some of the reports and photographs in a selective manner and not all the contents of the reports marked by the Department itself. Such an approach cannot be permitted.
(d) Apart from the newspaper reports and video clippings, there is no other evidence, though in the letter dated 7.4.2002, it is stated that the petitioner will be entitled to cross-examine the witness deposing against him and no witness at all was examined by the Corporation.
(e) As far as video clippings are concerned, there is gross violation of principles of natural justice. It is not in dispute that from the beginning, the delinquent had been insisting upon being supplied with copies of all documents and materials to be relied upon by the Department. Though copies of the newspaper reports are stated to have been furnished to the petitioner, admittedly, the video clippings were not furnished. It is also admitted that video clippings were allowed to be viewed by the petitioner only at the time of the enquiry. This is not at all a satisfactory discharge of the obligation on the part of the Department to furnish copies of relied upon documents or materials or to peruse them before the enquiry. The need to supply copies of the relied upon documents or evidence before the enquiry is to provide fair and proper opportunity to the delinquent to submit his explanation to the charge memo. The said requirement not having been complied with by the Department, I am inclined to hold that there is a series of violation of principles of natural justice. In fact, the respondents themselves have taken the stand that the video clipping is the vital evidence against the petitioner.
19. Therefore, for all the aforesaid reasons, I am inclined to hold that there is no proof of collusion or connivance on the part of the petitioner. He had been taken by surprise by the sudden entry of more than 30 or 35 people in a threatening atmosphere. The following report in Dinamani dated 27.6.2001 filed by the Department itself of the interview of the Hon'ble Chief Minister on the arrest of the M.L.A. clearly brings out the Government's version of the incident and the helpless situation in which the officials were placed:
" Along with the reporter of a private TV channel and 50 others Mr. Ponmudi illegally entered the godown of the Civil Supplies Corporation at Villupuram and were carrying weapons. They picturised the rice and prevented the authorities of the godown from discharging their duties. Hence action has been taken against him. He has no right to enter the godown even if he happened to be an M.L.A."
20. An employee, when he is placed in such a helpless situation, his plight should be viewed sympathetically and with humanitarian approach and he should not be made a victim in the race between the ruling party and the opposition party against each other. As stated earlier, the issue as to whether the action of the M.L.A. and his companions was proper or not, does not arise for consideration in this writ petition and we are steering clear from that issue. However, we may assume for a moment for discussion that what they had done was totally wrong and unsustainable. The question is, should it affect the future of the employees/staff of the Corporation who were admittedly placed in a helpless and dangerous situation? The entire episode was over in about 15 minutes and the petitioner had followed up further action immediately by submitting his report to his superiors followed by the complaint of the police. It is only on the basis of the complaint of the petitioner, action was taken against the M.L.A, and his companions. Therefore, I do not find any basis for the initiation of the action against the petitioner.
21. The objection relating to non-availing of the alternate appellate remedy is also rejected, in view of my conclusion that the very action as against the petitioner is misconceived. There is total absence of evidence to proceed further and the facts stated in the First Information Report which are not disputed by the Department are sufficient to hold that there can be no basis for the allegation against the petitioner. The newspaper report filed by the Department itself discloses that the petitioner is stated to have been threatened and violently pushed by one Suresh. The Department is expected to adopt a humane and sympathetic approach, having regard to the situation in which the petitioner was placed and not to be carried away by its perception against the action of the M.L.A. and his companions.
With the result, the writ petition is allowed and the impugned proceedings are set aside.