Andhra HC (Pre-Telangana)
N. Subramanyam vs Chairman Visakhapatnam, Port Trust And ... on 19 January, 1997
Equivalent citations: 1998(2)ALD509, 1998(1)ALT501
ORDER
1. Petitioner seeks a writ of Certiorari calling for the records relating to the orders passed by the third respondent in proceedings No.E/M/PC/4356/2142 dated 19-2-1994 as confirmed by the first respondent in his oroceedings No. Al/Mech. 1/ Perl.NS/94. dated23-6-1994 and to set aside the said proceedings by holding them as arbitrary, unjust, illegal and violative of the principles of natural justice. Petitioner further seeks a direction to respondents 1 to 3 to reinstate him as Driver (Upgraded) in the Visakhapatnam Port Trust by duly counting the period of his absence for 19-2-1994 till the date of reinstatement as on duty with all consequential benefits.
2. Petitioner states that he studied in C.B.M. High School, Visakhapatnam during the year 1960-61. On account of financial stringencies, he joined the Indian Army as a driver as he had Heavy Truck Driving Licence. Due to compelling circumstances, he sought retirement from Indian Army and accordingly he was discharged from army service.
3. According to the petitioner he was recruited in the Chief Mechanical Engineering department of Visakhapatnam Port Trust as a Greaser against one of the posts reserved for Ex-servicemen. He joined in the said post on 19-11-1969. The qualification required for the post of Greaser in the Mobile Crane Complex of the Chief Mechanical Engineering Department of the Port Trust was. that the person must possess the Heavy Truck Driving Licence. Since the petitioner possessed the same, he was recruited and joined the service. Later on, he was also promoted as Junior Driver and also as Driver (upgraded). He states that right from the date of joining, he has been serving the department without any blemish.
4. On 8-12-1992,while the petitioner was working as driver (upgraded), he was served with a memo by the Chief Mechanical Engineer who is the disciplinary authority. The charge against the petitioner was that he produced a false educational certificate at the time of his entry into Port Trust Service and therefore, it amounted to violation of Regulation 3(1) of the Conduct Regulations of the Port Trust. Petitioner claims that he submitted his explanation to the said charge memo on 24-12-1992 pointing out that he was not guilty of the said charge. However, not satisfied with the explanation offered by the petitioner, a regular departmental enquiry was ordered and Sri Y. Prabhakar Rao, Executive Engineer (Mechanical) was appointed as an Enquiry Officer on 23-1-1993. The enquiry was conducted between 16-3-1993 and 10-9-1993. Sri M.Seethapathi, Assistant Executive Engineer (Mechanical) was appointed as the Presenting Officer to present the case of the management and whereas the petitioner secured the services of Sri B.Rama Rao, Senior Assistant in Chief Mechanical Engineer's office and Ch. V.Ramana Murthy, Senior Assistant in Vigilance Section, Administration Department Petitioner claims that he has examined Sri Tulsi Rao charge-hand an his defence witness and the management examined two witnesses.
5. According to the petitioner, the Enquiry Officer submitted his report to the disciplinary authority holding the petitioner guilty of the charge. The only reason the Enquiry Officer has shown in the enquiry report is that the transfer certificate produced by the petitioner was forwarded to the Head Master of C.B.M.High school for verification and the Head Master of C.B;M. High School has replied that the said transfer certificate is found to be false as the entries in it were not tallying with their admission register. On the basis of the reply of the Head Master of C.B.M High School that the transfer certificate produced by the petitioner is fictitious, the charge against the petitioner was held proved.
6. On the basis of the enquiry report, the third respondent-disciplinary authority issued a show-cause notice to the petitioner on 13-1-1994 proposing to remove him from service. Petitioner states that he has filed his reply to the said show-cause notice on 1-2-1994 protesting against the proposed penally by pointing out that the report of the enquiry officer, holding the petitioner guilty of the charge, is without any evidence and as such the enquiry itself is vitiated on account of non-availability of positive evidence to hold the petitioner guilty of the charge. Petitioner claims that despite his detailed reply to the show-cause notice, the third respondent without applying his mind and without examining the reply submitted by him, in a routine manner passed the order of compulsory retirement through proceedings dated 19-2-1994.
7. As against the said order dated 19-2-1994 passed by the disciplinary authority-third respondent, petitioner claims to have preferred an appeal before the appellate authority - first respondent on 9-3-1994. However, petitioner states that the first respondent also without applying his mind has confirmed the order of the third respondent.
Petitioner therefore states that the order of imposing the penalty of compulsory retirement passed by the third respondent on 19-2-1994 as confirmed by the first respondent on 23-6-1994 are liable to be set aside on the grounds of violation of principles of natural justice as the said proceedings are totally arbitrary, unjust and not based upon any valid or tenable evidence.
8. A detailed counter-affidavit has been filed on behalf of the respondents. In the counter it is contended that the qualifications prescribed under the recruitment rules for the post of Greaser, Mobile Crane Complex, are that the candidate must have passed III form and must hold heavy, medium or light dirty vehicles driving licence, preferably with some experience as motor mechanic. According to the respondents, in order to obtain appointment by fraudulent means, the petitioner submitted a false school certificate purported to have been issued by the Head Master, C.B.M. High School,Visakhapatnam at the threshold. Accepting it to be genune, the Port Trust authorities appointed the petitioner as Greaser with effect from 19-11-1969. it is further stated that the genuineness of the transfer certificate submitted by the petitioner was enquired into and on having found that it was false, the petitioner was placed under suspension. Later on a charge-memo was issued on 8-12-1992. Respondents stated that in the explanation filed to the charge-memo, the petitioner has stated that he studied in City High School upto in form and as such his explanation itself is sufficient to hold that he produced a false certificate. It is further stated that in order to give a reasonable opportunity, a departmental enquiry was conducted by appointing Sri. Y.Prabhakar Rao as Enquiry Officer. When the transfer certificate was referred to the Head Master of the C.B.M. High School for verification, the Head Master replied that the entries in the said transfer certificate were not tallying with the entries in the original admission register and therefore, the said certificate is fake. Respondents in this background, justified their action of imposing the penalty of compulsory retirement on the petitioner. It is also denied that the principle of natural justice are violated in this case nor the order of imposing punishment suffers from any mala fides.
9. It is vehemently contended by Sri Nuty Rama Mohana Rao, Counsel for the petitioner that the enquiry report submitted by the Enquiry Officer Sri. Y.Prabhakar Rao to the third respondent- disciplinary authority fails to disclose an iota of truth aS to the petitioner filing as false transfer certificate seeking employment in Visakhapatnam Port Trust. According to the learned Counsel, the two witnesses examined on behalf "of the management as S.Ws. 1 and 2 have never stated that they have visited the C.B.M. High School from where the petitioner had obtained the transfer certificate and verified the contents of the same with reference to the school records. Counsel contends on the basis of the letter dated 27-1-1992 issued by the Head Master, C.B.M.High School wherein it is stated that the transfer certificate produced by the petitioner was not tallying with the original record and as such it was not genuine, the petitioner was penalised. Counsel contends strenuously that the said Head Master of the C.B.M. High School was not examined nor the original school record was called for during so that the genuineness of the said certificate could have been verified. Apart from these lacuna, Counsel stated, the enquiry report submitted by the Enquiry Officer holding the petitioner guilty of the charge is a perverse finding as there was no positive evidence on record to come to such conclusion. Basing on the perverted finding, it is contended, the third respondent and the first respondent have endorsed their stamp of approval on the punishment of compulsory retirement imposed on the petitioner and as such, the said punishment cannot be sustained and is liable to be set aside.
10. To buttress his submissions, learned Counsel has referred to a series of decisions reported in Habeeb Mohammad v. State of Hyderabad, , Tika Ram and Sons Ltd., v. Its Workman (Bishamber Dayal), , Union of India v. KC.Goel, 1984 (2) SLR 359 and in P.B. Rocho v. Union of India, AIR 1964 SC 364.
11. On behalf of the respondents, Ms. Sudha, learned Counsel contended that the case of the petitioner could be rejected only on the ground of confession of the petitioner in his reply to the charge-memo on 24-12-1992 that he studied upto HI form in City High School. Counsel further contended that the petitioner has admitted that he was 15 years old at the time of issuance of the said school certificate and he did not know how his father managed to get the certificate and requested the respondents to take a lenient view for this time on humanitarian grounds as he has three unmarried daughters. Counsel therefore states that this admission of the petitioner is sufficient to hold that he did not study his III form in C.B.M.High School. Counsel further stated that the Head Master of C.B.M. High School in his letter dated 27-1-1992 has communicated to the respondents that the transfer certificate produced by the petitioner did not tally with the original entries in his register and as such it is a bogus certificate. Therefore, it is clear that the petitioner has produced a false certificate and non-examination of the Head Master is not fatal to the enquiry as there is other supporting evidence to hold safely that the petitioner is guilty of the charge. Counsel justified the action of the respondents in imposing and confirming the order of compulsory retirement from service on the petitioner.
12. In support of her contentions, Ms. Sudha, learned Counsel for the respondent relied on the following decisions reported in Shambhu Nath Goyal v. Bank of Baroda, and in Union of India v. M. Bhaskaran, 1995(6) Scale 214. According to the Counsel for the respondents, when once the fraud is detected, it is open to the authorities to take appropriate action by imposing proportionate punishment It is further contended that under Article 226 of the Constitution of India, Courts have only power of review and as such the punishment imposed by the authorities cannot be interfered with. Learned Counsel lastly submitted that the dispute is only between the workman and the management and as such the remedy under Article 226 is not available to him.
13. In the wake of these divergent submissions, this Court is called upon to examine whether the respondents are justified in imposing the punishment of compulsory etirement on the petitioner?
14. It is seen that the petitioner was appointed as a Greaser on 19-11-1969 against a vacancy reserved for ex-servicemen. Petitioner at the time of his appointment, also possessed the licence to drive heavy vehicles. It is only after 24 years or so, an enquiry is sought to be made against the petitioner on the ground that he produced a false transfer certificate at the time of his appointment. Pursuant to the charge, the petitioner has no doubt submitted his explanation on 24-12-1992 stating that he studied upto III form in City High School. The respondents could have acted on the basis of the reply given by the petitioner but, however, proceeded with the departmental enquiry to prove the charge against the petitioner that he filed a false certificate claiming to have studied third form in C.B.M. High School during the year 1960-61. On the basis of the reply given by the Head Master of the C.B.M. High School, Visakhapatnam, it is seen that the respondents have examined two witnesses, namely S. Ws.l and 2. However, none of the two has come forward to say that he visited the C.B.M. High School and verified the entries in the certificate produced by the petitioner with the school records nor the respondents have examined the Head Master of C.B.M. High School and got marked the entries of the original admission register as exhibits. The explanation given by the petitioner on 24-12-1992 was not part of the enquiry proceedings.
15. Learned Counsel for the petitioner contended that there was no positive evidence available before the enquiry officer to hold the petitioner guilty of the charge. A reading of the report of the Enquiry Officer, at Para 6 under the caption "analysis of evidence'' fails to impress this Court that there was any evidence before the Enquiry Officer to hold the petitioner guilty of the charge. The second witness S.W.2 who was examined on behalf of the management deposed that as per the report of the Head Master of C.B.M. High School, which is marked as S.Ex.4, the entries in the transfer certificate (S.Ex.2) produced by the petitioner are not tallying with the entries made in the admission register for the year 1960-61 maintained in the C.B.M. High School. However, the only competent person to speak about the genuiness or otherwise of the entries in the transfer certificate produced by the petitioner with reference to the original admission register for the year 1960-61 is the Head Master of the C.B.M. High School. Unfortunately, the management did not chose to examine the Head Master of the C.B.M. High School for the reasons best known to them. Had the said Head Master been examined on behalf of the management. His evidence could have thrown any amount of light on the transfer certificate produced by the petitioner and the petitioner would have got an opportunity to cross-examine him. Basing on the letter written by the Head Master dated 27-1-1992 the respondents have held the charge proved against the petitioner and imposed the penalty of compulsory retirement from service. When such a severe punishment is imposed only on the basis of the letter dated 27-1-1992 written by the Head Master of the C.B.M. High School, it shocks the conscience of the Court as to how such a major penalty could be imposed on the petitioner without there being any evidence supporting the version of the management.
16. It is by now well settled that the judicial review under Article 226 of the Constitution is available only to the limited extent of examining whether the procedure followed by the authorities in awarding punishment/penalty on a delinquent is in accordance with the procedure known to law.
17. It is not necessary for this Court to deal with each and every facet of contentions and discuss them at length when this Court., Prima facie, is satisfied that there is no evidence before the enquiry officer to come to such conclusion that the certificate produced by the petitioner at the time of his entering the service of the respondents is bogus. As discussed earlier, the respondents for the reasons best known to them, have withheld a crucial witness like the Head Master of the C.B.M. High School from Examination, whose evidence would have thrown much light on the veracity of the stand taken by them.
18. In Habeeb Mohammed's case (supra) the Supreme Court has held that withholding a witness from examination would cast a serious reflection on the fairness of the trial. In the present case, the respondents should have discharged their burden by examining the crucial witness like the Head Master of the C.B.M High School. The respondents simply cannot throw the burden on the petitioner. In Tika Ham and Sons Ltd 's case (supra), the Supreme Court has held that when a charge is made against a delinquent, the burden to prove the charge initially rests on the authority which charges the delinquent and it cannot be shifted totally on the delinquent
19. In P.B.Rocho's case (supra), the Supreme Court held that if the order of punishment imposed on the delinquent is without any evidence, a writ of certiorari is available to the delinquent under Article 226 of the Constitution. The Supreme Court further held that the High Court under Article 226 is entitled to enquire whether there was any evidence available before the authorities to hold that the delinquent is guilty of the charge framed against him.
20. Applying the ratio laid down by the Supreme Court in the above decision to the present case, I do not think, the Enquiry Officer had any evidence worth the salt before him to reach to the conclusion to declare that the charge against the petitioner is proved. Basing on the report of the Enquiry Officer, the third respondent has passed the order of compulsory retirement on the petitioner with effect from 19-2-1994. It is by now well settled that the disciplinary authority has to give necessary reasoning either for accepting or rejecting the report of the Enquiry Officer. A reading of the order passed by the third respondent- disciplinary authority which is dated 19-2-1994 imposing the punishment of compulsory retirement from service on the petitioner fails to convince this Court that the third respondent has applied his mind at all while imposing such a major punishment.
21. Though the learned Counsel for the respondents vehemently contended that this Court under Article 226 cannot interfere in the punishment imposed on the petitioner by the respondent-authorities, I am afraid, this submission is not available to the respondents. Compulsorily retiring the petitioner, by all means, is a major penalty which is imposed on him without there being any positive evidence. The punishment is harsh and disproportionate. Though the petitioner is a workman, when a major punishment is imposed touching on the living condition and offends Article21 of the Constitution remedy under Article 226 is available to such parties, without regard to the availability of any other remedy. Similarly, when a public authority fails to act in a fair manner and its actions, prima facie, appear to be arbitrary and vindictive, the affected party is entitled to move this Court under Article 226 of the Constitution of India Since the respondent-Port Trust Authority is a public authority, its actions are amenable to writ jurisdiction.
22. Having regard to the above discussion and in the light of the facts and circumstances of the case, the order of compulsory retirement dated 19-2-1994 passed by the third respondent on the petitioner, as confirmed by the first respondent by his order dated 23-6-1994 cannot be sustained and accordingly they are set aside.
23. Now, the next question is whether the petitioner is entitled for reinstatement into service with all consequential benefits?
24. In normal circumstances the petitioner is entitled for reinstatement into service with all consequential benefits from the date of compulsory retirement till the date of reinstatement treating the interregnum period as on duty. However, in this case, the petitioner is said to be suffering from Cerebral Haemmorrhage and is under treatment. It would be inappropriate to direct the respondents to reinstate the petitioner forthwith into service keeping in view the nature of the ailment from which the petitioner is suffering and the nature of duties he has to perform. Therefore, in the circumstances, the respondents are directed to refer the case of the petitioner to a Medical Board consisting of specialists for seeking its opinion as to the capability of the petitioner to perform his duties as driver, as he is suffering from Cerebral Haemmorrhage. If in the opinion of the Medical Board, the petitioner is incapacitated to discharge his duties as driver, it would be open to the respondents to retire the petitioner voluntarily on medical grounds. Till such date of voluntary retirement of the petitioner on medical grounds, on being advised by the Medical Board is ordered, the petitioner is entitled for all consequential benefits including the difference of pay scales, if any and other incidental benefits. It is further directed that the respondents shall take necessary steps in this regard and complete the exercise as directed above within a period of three months from the date of receipt of a copy of this order till a final decision is taken, the respondents shall release the monthly salary to the petitioner from 19-2-1994 onwards to till date (the date of this order) within a period of two months from today. Once the respondents take a decision on the basis of the medical advise, the petitioner is entitled to all such benefits according to rules.
25. In the result, the writ petition is allowed with costs quantified at Rs.3,000/-