Madras High Court
M.Paramaguru vs The Managing Director on 5 March, 2020
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
W.P(MD).Nos.6296 of 2020 etc. batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 17.12.2020
Delivered on : 22.12.2020
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.P(MD).Nos.6296; 13655; 13660; 13663; 14272; 14284; 14317;
14320; 14468; 15408; 16349; 16391; 16848 and 18182 of 2020;
21044; 21953 and 26212 of 2019; 14250; 11907; 16867 and 17513 of
2020
and
W.M.P.(MD).Nos.5516; 11364; 11365; 11368; 11927; 11972; 11974;
12107; 12944; 13657; 13711; 13712; 14074 and 15164 of 2020; 17643;
18716 and 22645 of 2019; 14102 and 14659 of 2020
W.P(MD).No.6296 of 2020
M.Paramaguru ... Petitioner
Vs.
1.The Managing Director,
The Tamil Nadu State Marketing Corporation
Limited,
th
Head Quarters, 4 Floor, CMA Tower-2,
Egmore, Chennai – 600 008.
2.The Senior Zonal Manager,
The Tamil Nadu State Marketing Corporation
Limited,
Madurai Division, Madurai.
3.The District Manager,
The Tamil Nadu State Marketing Corporation
Limited,
Sivagangai District.
http://www.judis.nic.in
1/16
W.P(MD).Nos.6296 of 2020 etc. batch
4.The District Manager,
The Tamil Nadu State Marketing Corporation
Limited,
Tirunelveli District.
... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorari calling for the records
of the impugned order passed by the 4th respondent in Na.Ka.No.R.
1/516/2019, dated 05.03.2020 and quash the same as illegal.
For Petitioner : Mr.R.J.Karthick
For Respondents : Mr.B.Jameel Arasu
and
Mr.H.Arumugam
COMMON ORDER
These writ petitions have been filed challenging the impugned orders passed by the respondents due to the reason of MRP Violation on the part of the petitioners.
2.The petitioners in these writ petitions are all sales Supervisors/Salesmen in the TASMAC shops. When they were working, at the instance of the respondents, sudden inspection was conducted and http://www.judis.nic.in 2/16 W.P(MD).Nos.6296 of 2020 etc. batch found that the petitioners sold the liquors above the MRP. Therefore, the show cause notices were issued and after receipt of the reply, the impugned orders were passed. Hence, challenging the said impugned orders, the present writ petitions have been filed by the petitioners.
3.The main contention of the petitioners is that the respondents issued show cause notices stating that on the inspection conducted in the petitioners' shops, it was found that they have sold the liquor on higher price, which is above the maximum retail price and therefore, they are liable to pay fine and GST on such fine. The petitioners have denied all the charges. Inspite of the denial of the charges, the respondents proceeded to pass the impugned orders without conducting any enquiry. The petitioners further submitted that though the impugned orders were passed, since they have not admitted the occurrence, they have not paid the penalty amount along with GST as imposed in terms of 'Clause 7 (b)
(xiii)' under the Code of Prevention and Detention of Fraudulent Acts in Tamil Nadu State Marketing Corporation Limited, 2014. As per the said Code, MRP violation is a serious offence and therefore, they have to conduct a domestic enquiry as narrated in the investigation procedure stated in Clause 6 of the Code. But the respondents have not followed the http://www.judis.nic.in 3/16 W.P(MD).Nos.6296 of 2020 etc. batch same.
4.The next contention raised by the petitioners is that without any proper inspection, they have forced the petitioners to sign in the inspection register and thereafter they have filled the last column No.21 of the Inspection Form as 'extra price'. In order to substantiate the claim of the petitioners, they have contended that if at all if there is any inspection in the shops of the petitioners, the respondents are supposed to have entered the details of the inspection in the inspection register maintained in the shops, but no such entries are available in the said register.
5.Yet another contention raised by the petitioners is that no mention anything about the alleged admission on the part of the petitioners is available in the show cause notices issued by the respondent.
6.In support of the contentions of the petitioners, they have referred the following Judgments:-
http://www.judis.nic.in 4/16 W.P(MD).Nos.6296 of 2020 etc. batch
(i).In the case of MADHYA PRADESH STATE COOPERATIVE DAIRY FEDERATION LIMITED AND ANOTHER v. RAJNESH KUMAR JAMINDAR AND OTHERS, reported in 2010 (1) SCC (L&S) 512=2009 (15) SCC 221;
(ii).In the case of PRAKASH RATAN SINHA v. STATE OF BIHAR AND OTHERS, reported in 2010 (1) SCC (L&S) 443 = 2009 (14) SCC 690; and
(iii).In the case of CANARA BANK BY ITS GENERAL MANAGER, BANGALORE v. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, CHENNAI AND ANOTHER, reported in 2008 (2) MLJ 414. Therefore, the learned counsel appearing for the petitioners submitted that the impugned orders are liable to be quashed.
7.Per contra, Mr.H.Arumugam and B.Jameel Arasu, learned standing counsels appearing for the respondents contended that they have conducted the inspection and in the inspection report some of the petitioners signed it, thus, a mere perusal of the said inspection report would show that the petitioners have accepted the selling of the liquor for more than MRP price and therefore, it is a clear-cut admission on the part http://www.judis.nic.in 5/16 W.P(MD).Nos.6296 of 2020 etc. batch of the petitioners. The respondents have issued the show cause notices in order to give opportunity to the petitioners to give their reply. The learned counsels would further submit that the MRP violation is a serious offence and hence, the respondents, based on the admission, should have imposed penalty. So, the respondents, with the good intention of giving appropriate opportunity to the petitioners, have issued show cause notices and thereafter, based on the reply given by the petitioners as well as the inspection report only, they have passed the impugned orders.
8.However, the learned counsels fairly submitted that in some of the cases, in the inspection report, the petitioners have not admitted the fact of selling the liquor for more than MRP price and therefore, the impugned orders in respect of the said petitioners may be quashed and based on the reply received from the petitioners to the show cause notices, the respondents may be permitted to issue charge memo and proceed with the enquiry and thereafter to pass final orders.
9.In respect of the cases, where ever the petitioners admitted the commission of offence by signing the inspection report, in those cases, the respondents pleaded that they have passed orders only on the basis of http://www.judis.nic.in 6/16 W.P(MD).Nos.6296 of 2020 etc. batch the admission and therefore, those writ petitions may be dismissed.
10.In reply to the submissions made by the learned counsel for the respondents, the petitioners submitted that in respect of the alleged admission on the part of the petitioners, as contended by the respondents, they submitted that even though they have signed in the inspection report, to construe the same as admission on the part of the petitioners, in the show cause notices, nothing has been mentioned about the admission made in the inspection report. If the admission was made in the inspection report, nothing prevented the respondents to impose the penalty if it is a minor penalty, on the basis of the admission without conducting the domestic enquiry as contemplated under the said Code. The respondents are well aware of the fact that the offence is a serious in nature and as per the investigation procedure laid down in Clause 6 of the Code, it is required to conduct a detail investigation and thereafter only, they can pass final orders, which procedure had not been followed by the respondents and therefore, all the impugned orders are liable to be quashed.
http://www.judis.nic.in 7/16 W.P(MD).Nos.6296 of 2020 etc. batch
11.Heard the learned counsels appearing for the petitioners and the learned counsel appearing for the respondents and also perused the materials available on record.
12.The charges levelled against the petitioners is that they have sold the liquor for more than the MRP price. According to the learned counsels for the respondents they have conducted the inspection and in the inspection report, some of the petitioners have signed agreeing that they have sold the liquors for more than the MRP price and therefore, they contended that the impugned orders passed by the respondents based on the admission of the petitioners are sustainable. However, this Court is of the view that with regard to the admission made by the petitioners by virtue of signing in the inspection report, the respondents have not mentioned anything in the above show cause notices. Further, as per the circular issued on 10.10.2019, by the first respondent, every shop is required to maintain the inspection register and in the inspection register, if any inspection is conducted by the respondents, they have to make an entry about the details of the inspection. It is an admitted fact that in all these cases nothing was entered in the register maintained by http://www.judis.nic.in 8/16 W.P(MD).Nos.6296 of 2020 etc. batch the respective shops by the inspection team in terms of Circular, dated 10.10.2019. Further, this Court is also of the view that when the admission was made by the petitioners, this Court is unable to understand and trace out any substantial reason as to why the respondents have issued the show cause notices once again to all the petitioners. This is because, the respondents are well aware the fact to impose any penalty, it is mandatory to issue show cause notice to the petitioners, as the admission made by the petitioners in the inspection report is not sustainable due to the reason, the inspection team has not made any entries in the inspection register maintained in the respective shops. Obviously this would create doubts abut the conduct of inspection in the petitioners shop.
13.The reason why, the respondents have not proceeded to impose the penalty on the petitioners, based on the alleged admission in the inspection report alone is not enough to impose penalty, but it require the issue of show cause notice followed by domestic enquiry, as the offences under MRP violation are serious in nature, but the respondents, without conducting any enquiry, have passed the impugned orders. Hence, the interference of this Court is required as the impugned order is not http://www.judis.nic.in 9/16 W.P(MD).Nos.6296 of 2020 etc. batch sustainable under law and it is totally against the procedure laid down under the Code.
14.At this juncture, it is relevant to refer the investigation procedure laid down in Clause 6 of the Code, which reads as under:-
“6(a)....
(b)....
(c)....
(d).If the charges are grave and if it is found that the continuance of the employee in service is injurious to the interest of fair investigation / disciplinary proceedings, he may be suspended pending enquiry. In such event, he shall be paid subsistence allowance as per rules.
(e).When the person does not admit the charges or the Management is not satisfied with the explanation offered by the person and the charges are sufficiently grave and serious to warrant a punishment other than censure, reprimand or warning, the Management shall conduct a domestic enquiry by any person of its choice.
(f)....
(g).At the enquiry, the charge sheeted person will be given the fullest opportunity to cross examine the http://www.judis.nic.in 10/16 W.P(MD).Nos.6296 of 2020 etc. batch witnesses, examined on behalf of the Management and also examine witnesses, if any, on his behalf. It shall be responsibility of the charged person to bring the witnesses he chooses to examine on his behalf to the enquiry.
(h)....
(i)....
(j)....
(k)....
(l).Upon the conclusion of the enquiry, the Enquiry Officer will submit to the Management a report containing his findings after a careful examination of the proceedings of the enquiry. The report should be a self-contained speaking report.
(m).The charge sheeted person will be furnished with a copy of the findings of the Enquiry Officer after giving him an opportunity to make his representation, if any.
(n).Before imposing any punishment, consequent upon the charges proved at the enquiry, the person shall be given an opportunity to make his representation against the punishment proposed to be imposed to him.
(o).While imposing any punishment, the Management shall take into consideration the gravity of the misconduct proved, the previous record of service of the employee and any aggravating circumstance that may exist.” http://www.judis.nic.in 11/16 W.P(MD).Nos.6296 of 2020 etc. batch
15.A mere perusal of the investigation procedure would show that when a person does not admit the charges or the Management is not satisfied with the explanation offered by the person and the charges are sufficiently grave and serious to warrant a punishment other than censure, reprimand or warning, the Management shall conduct a domestic enquiry by any person of its choice. In the present case, it is not the case of censure, reprimand or warning in which case, the respondents ought to have followed the investigation procedure as contemplated under Code. As the MRP violation is serious in nature, without conducting a domestic enquiry in terms of the above said Code, the respondents have passed the impugned orders. Hence, this Court is of the opinion that the impugned orders are liable to be set aside.
16.After all, the petitioners are working in a TASMAC shop for selling the liquors, many of them holder of various degrees and if any such stigma imposed on the petitioners, it would affect their career while they are participating in the competitive examinations for Government jobs. Therefore, the respondents, while imposing penalty under the Code, http://www.judis.nic.in 12/16 W.P(MD).Nos.6296 of 2020 etc. batch it should have followed the investigation procedures as laid down under Clause 6 of the Code strictly, which they have not followed in the present cases as the same would deprive the right of the petitioners to have the chance of fair enquiry.
17.It is well settled proposition of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature.
18.It has also brought to the knowledge of this Court by the learned counsels for the respondents that in the event of issuing the charge memo, the petitioners may be suffered with the order of suspension. This Court is not in a position to accept the said submission, since the respondents have imposed the penalty in all the cases by virtue of the impugned orders, any punishment by the respondents after the enquiry shall be only to find out whether the punishment imposed in the impugned orders can be sustained or reduced or set aside and in any case the respondent can not go beyond penalty imposed in the impugned order http://www.judis.nic.in 13/16 W.P(MD).Nos.6296 of 2020 etc. batch under challenge.
19.In view of the above, this Court is of the opinion that all the impugned orders passed by the respondents in all the writ petitions are liable to be quashed and accordingly quashed. These writ petitions are allowed.
20.While quashing the impugned orders, the matters are remanded back to the respondents for re-adjudication directing the respondents to conduct a domestic enquiry and pass final orders in accordance with the procedure laid down under the Code. No costs. Consequently, connected Miscellaneous Petitions are closed.
22.12.2020 rj2 http://www.judis.nic.in 14/16 W.P(MD).Nos.6296 of 2020 etc. batch To
1.The Managing Director, The Tamil Nadu State Marketing Corporation Limited, th Head Quarters, 4 Floor, CMA Tower-2, Egmore, Chennai – 600 008.
2.The Senior Zonal Manager, The Tamil Nadu State Marketing Corporation Limited, Madurai Division, Madurai.
3.The District Manager, The Tamil Nadu State Marketing Corporation Limited, Sivagangai District.
4.The District Manager, The Tamil Nadu State Marketing Corporation Limited, Tirunelveli District.
http://www.judis.nic.in 15/16 W.P(MD).Nos.6296 of 2020 etc. batch KRISHNAN RAMASAMY, J.
rj2 Pre-delivery Order made in W.P(MD).Nos.6296 of 2020 etc. batch 22.12.2020 http://www.judis.nic.in 16/16