Madras High Court
A.N. Arumugam vs The District Manager on 27 June, 2014
Author: T. Raja
Bench: T. Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :: 27.06.2014
CORAM:
THE HON'BLE MR. JUSTICE T. RAJA
W.P. No. 20621 of 2011
A.N. Arumugam ..Petitioner
Vs.
1. The District Manager
Tamil Nadu State
Marketing Corporation Ltd.,
Thiruvallur District
Thiruvallur.
2. The Senior Regional Manager
Tamil Nadu State
Marketing Corporation Ltd.,
Anna Salai
Chennai 600 002. .. Respondents
PRAYER: The Writ Petition has been filed under Section 226 of the Constitution of India to issue an order of Writ of Certiorarified Mandamus, calling for the records connected with the proceedings No. A2/3465/2010 dated 04.08.2010, passed by the first respondent and quash the same and further direct the respondents to reinstate the petitioner into service with back wages and continuity of service along with all other attended benefits thereon from the date of permanent termination, so far as the petitioner is concerned and pass such further orders.
For petitioner : Ms. Lesi Saravanan
For respondents : Mr. S. Muthuraj for R1 & R2
O R D E R
The present Writ Petition has been filed by Mr. A.N. Arumugam, challenging the impugned order of termination imposed against him by the first respondent, the District Manager, Tamil Nadu State Marketing Corporation Ltd., Thiruvallur District, in his proceedings No. A2/3465/2010 dated 04.08.2010, on the ground that when the petitioner along with one Mr. Shankar was suspended on the allegation that they have adulterated the liquor in bottles kept for sales by mixing water, on 29.09.2009. Without there being any enquiry whatsoever, the respondents have straight away, violating all the canons of law including the principles of natural justice, without even affording a reasonable opportunity to defend his case by filing an explanation to the respondents, for the allegation upon which he was placed under suspension on 29.09.2009, snatched away the livelihood, by imposing the grave punishment of termination.
2. Learned counsel appearing for the petitioner further submitted that even though the petitioner was suspended along with Mr. Shankar, from the date of suspension i.e. 29.09.2009 till the date of impugned order of termination issued against the petitioner, the respondents have not even come forward to pay the subsistence allowance, which also violates the principles of fair enquiry. Unless the person, who is placed under suspension is paid with the subsistence allowance enabling him to defend his case by participating in the enquiry, the petitioner would not be in a position take part in the enquiry, that was held subsequently. Moreover, it was also submitted when it is an admitted case of both sides that the petitioner and Mr.Shankar were present on the alleged date of inspection which ultimately made the respondents to place the petitioner and Shankar under suspension, without even any justification whatsoever, had revoked the suspension order in favour of Mr. Shankar. While, the petitioner and Mr.Shankar were in-charge of the wine shop in question on the relevant date 28.09.2009 and while it is also an admitted fact that the allegation of adulteration of water in the liquor bottle were made against both persons, based on which they were placed under suspension, the reason assailed for reinstating Mr. Shankar, Supervisor would equally apply to the case of the petitioner also because the petitioner Mr.A.N. Arumugam was only serving as a bar attender, when Mr. Shankar was working as a Supervisor, having total control of the entire administration of the shop in question. Therefore, discriminating the petitioner by not extending the benefit of reinstatement that was given to Mr. Shankar, is violative of Article 14 of the Constitution of India. On concluding her argument, learned counsel further stated that when the writ petition was filed taking a solid ground that the impugned order of termination has been issued against the petitioner, without there being any proper and fair enquiry, the respondents till date have also not issued the copy of the enquiry report filed by the enquiry officer, holding him guilty.
3. Even the two pages counter affidavit filed by the respondents also, does not disclose how the petitioner can be discriminated when he was working only as a bar attender. Moreover, the short counter affidavit has not even made any rebuttal on the allegation of, violation of principles of natural justice. When the respondents have not come forward to deny that there was no fair and proper enquiry held before passing the impugned order, the same is liable to be interfered with.
4. Per contra, learned counsel appearing for both the respondents, although agreed that the supervisor Mr. Shankar was reinstated in service by accepting his explanation, imposing a fine of Rs.5000/-, he is unable to place on record a copy of the enquiry report, to appreciate that there has been a fair and proper enquiry held against both the petitioner and Mr. Shankar. This Court on an earlier occasion also, by a specific order dated 10.06.2014, directed the counsel appearing for the respondents to produce the proof of furnishing a copy of the report of the enquiry officer to the petitioner, to find out whether the petitioner was afforded a reasonable opportunity to submit his written representation, to the report of the enquiry officer. Although time was granted till now, again, the respondents have not taken any step to produce even a copy of the enquiry officer's report, which attitude shows that there was no proper enquiry held by the respondents, while passing the impugned order of termination. The respondents herein have not even whispered in the counter affidavit about furnishing of the Enquiry Officer's report. It is well settled legal position that non-furnishing of the report of the Enquiry Officer to the delinquent would be violative of the principles of natural justice, rendering the final order invalid. In this connection, it is more appropriate to recall the ratio laid down by the Hon'ble Apex Court in Union of India and Ors. vs. Mohd. Ramzan Khan (1991 (1) SCC 588, by quoting below the relevant text:
18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter. In the present case, the counter affidavit of the respondent not even suggests that a proper enquiry was held. Further, in the light of the above ratio, non-furnishing of copy of the Enquiry Officer's report to the petitioner for defending his case ultimately vitiates the final order impugned herein.
5. Moreover, this Court taking note of the fact that the petitioner who was placed under suspension on 29.09.2009 along with Mr. Shankar, having not been paid with the subsistence allowance, enabling him to participate in the enquiry said to have been held by the respondents and again by taking note of another fact that the co-accused Shankar was reinstated by only imposing a fine of Rs.5000/-, is not able to see any justification in not extending the same treatment to the writ petitioner, who was only a bar attender whereas Mr. Shankar was serving as a Supervisor.
6. For the reasons mentioned above, the writ petition is allowed and the respondents are directed to reinstate the petitioner, within a period of four weeks from the date of receipt of a copy of this order. Further, to meet the ends of justice, this Court deems it fit to pay the entire subsistence allowance for the period he was kept under suspension, as he has not been not paid with the same. However, he is not entitled to get any back wages. No costs.
17.06.2014 Index: Yes/No Internet : Yes/No avr To
1. The District Manager Tamil Nadu State Marketing Corporation Ltd., Thiruvallur District, Thiruvallur.
2. The Senior Regional Manager Tamil Nadu State Marketing Corporation Ltd., Anna Salai, Chennai 600 002.
T. RAJA J., avr W.P. No. 20621 of 2011 17.06.2014