Madras High Court
P.K. Sadagopa Ranganathan vs Secretary, Tamil Nadu State ... on 29 March, 1988
Equivalent citations: (1988)2MLJ180
ORDER S. Nainar Sundaram, J.
1. The petitioner, who was a Divisional Engineer (Electrical) with the respondent has been, on disciplinary section, visited by the impugned order, with the punishment of compulsory retirement under Regulation 5 (vi) of the Tamil Nadu Electricity Board Employees' Discipline and Appeal Regulations, hereinafter referred to as the Regulations. There were two charge memorandums, one dated 9.6.1981 and the other dated 17.8.1981. The first memorandum of charge put forth against the petitioner three charges as follows:
CHARGE 1: That he has encashed the cheque bearing No. 839169, dated 3.4.1970 for Rs. 878 issued in favour of the Assistant Engineer/ construction/Tiruttani towards the recoupment of interest on 6.4.1970, when he was not Assistant Engineer/Construction/Tiruttani. This is with a view to prevent detection of fictitious purchases of Blue Granite Jelly.
CHARGE 2: He has brought into interest accounts of the Assistant Engineer/Construction/ Tiruttani on 3.4.1970 the amount encashed by him on 6.4.1970 wilfully and intentionally to account for fictitious payments.
CHARGE 3: He has accounted for payments to an extent of Rs. 984 from the interest account of the Assistant Engineer/Construction/Tiruttani on 3.4.1970 when the actual cash balance was Rs. 122 leaving the sum of Rs. 878 which encashed on 6.4.1970 and intentionally brought it into accounts on 3.4.1970. This tends to show that payments are bogus. This is a serious irregularity.
2. The Second charge memorandum put against the petitioner three charge as follows: CHARGE 1: That Thiru P.K. Sadgoparangathan, made purchase of considerable quantity of blue metal 3/4 size when he was Divisional Engineer, Trivellore. No records have been maintained to show that actual purchase like stock check measurement. No. K2 agreements were obtained nor tenders called for. There was no urgency for the use of blue metal.
CHARGE 2: That the store transactions were made based on hand receipts only and not on physical production of the materials.
CHARGE 3: That requisitions for blue metal were given by the Section Officers to the Divisional Engineer (El. & Cl.). Based on his directions the quantity noted in the requisitions being specified by the Divisional Engineer (Elecl.). But they have not actually received any materials against the requisitions so given.
3. With regard to the first charge memorandum, the charges 1 to 3 are interlinked with one another. The enquiry Officer exornerted the petitioner of charge No. 3, of the first charge memorandum. Even with regard to the charges 1 and 2. The Enquiry Officer held that the latter parts of these charges are not proved, thereby holding that the petitioner could not be accused of having done something with a view to prevent the detection of fictitious purchase nor the petitioner did something wilfully and intentionally to account for fictitious payments. However, on the charges 1 and 2, acting upon the letter of the State Bank of India, dated 19.2.1976, the Enquiry Officer came to the conclusion that the cheque dated 3.4.1970 was encashed only on 6.4.1970 after the petitioner, who until 4.4.1970 was the Assistant Engineer/Construction/Tiruttani; got transferred to Trivellore. Apart from other contentions raised by A.L. Somyaji, learned Counsel for the petitioner, the contention that the acting upon the bare letter from the State Bank of India, dated 19.2.1976 with regard to the encashment of the cheque; especially when the petitioner has questioned the legal and factual propriety of acting upon that letter, has vitiated the findings on charges 1 and 2 of the first charge memorandum is substantial one and has got to be countenanced in view of the pronouncements of the highest Court in the land S. Ramalingam, learned Counsel for the respondent, would submit that this letter would amount to a certificate coming from official sources, and that is certainly a relevant factor to be taken note of and acted upon. If the contents of the letter have not been put in issue, and have been admitted by the petitioner, it could be stated that placing reliance on the same is in order. But here we find the petitioner even in the course of the enquiry did advance an objection that this letter could not be accepted and acted upon without the Officer of the State Bank of India, who gave the same speaking about its contents and without the original cheque which got encashed being produced during the course of the enquiry. This objection has been summarily brushed aside by the Enquiry Officer. This only has led to the bare letter, which if at all would amount to a statement by the concerned Officer of that letter and that statement having been taken behind the back of the petitioner, should not be treated as substantive evidence and acted upon as such. In this connection, learned Counsel for the petitioner draws my attention to the following pronouncements of the highest Court in the land.
4. In Khardh Co. Ltd. v. Their Workmen , it was observed as follows:
Normally, evidence on which the charges are sought to be proved must be led at such an enquiry in the presence of the workman himself. It is true that in the case of departmental enquiries held against public servants, this Court has observed in the State of Mysore v. Sivabasappa that if the deposition of a witness has been recorded by the enquiry officer in the absence of the Public Servant and a copy thereof is given to him, and an opportunity is given to him to cross-examine the witness after he affirms in a general way the truth of his statement already recorded, that would confirm to the requirements of natural justice; but as has been emphasised by this Court in M/s. Kesoram Cotton Mills Ltd. v. Gangathar (1963)2 Lab.L.J. , these observations must be applied with caution to enquiries held by domestic Tribunals against the Industrial employees. In such enquiries, it is desirable that all witnesses on whose testimony the management relies in support of its charge against the workman should be examined in his presence. Recording evidence in the presence of the workman concerned serves a very important purpose. The witness knows that he is giving evidence against a particular individual who is present before him, and therefore, he is cautious in making his statement. Besides, when evidence is recorded in the presence of the accused person, there is no room for persuading the witness to make convenient statements, and it is always easier for an accused person to cross-examine the witness if his evidence is recorded in his presence. Therefore, we would discourage the idea of recording statements of witnesses ex parte and then producing the witnesses before the employee concerned for cross-examination serving him with such previously recorded statements, even though the witnesses concerned make a general statement on the latter occasion that their statements already recorded correctly represent what they stated.
5. In M/s. Kesoram Cotton Mills Limited v. Gangadhar it was observed as follows:
Even as, the purpose of rules of natural justice is to safeguard the position of the person against whom an inquiry is being conducted so that he is able to meet the charge laid against him properly. Therefore, the nature of the inquiry and the status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice. Where, for example, lawyers are permitted before a tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer, it may be possible to say that a mere reading material to be used in the inquiry may sometimes be sufficient; (see New Prakash Transport Co. Ltd., v. New Swarna Transport Co. Limited , but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker. Further we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of labour union may not be present to defend them. In such case, to read over a prepared statement, in a few minutes and then ask, the workmen to cross-examine would make a mockery of the opportunity that the rules of natural justice require that the workmen should have to defend themselves. It seems to us, therefore, that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the witnesses from the beginning to the end in the presence of the workman at the enquiry itself. Oral examination always takes much longer than a mere reading of a prepared statement of the same length and brings home the evidence more clearly to the person against whom the enquiry is being held. Generally speaking, therefore, we should expect a domestic inquiry by the management to be of this kind.
Proceeding further, the Court held:
The minimum that we shall expect where witnesses are not examined from the very beginning at the inquiry in the presence of the person charged, is that the person charged should be given a copy of the statements make by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the copy of the statements should be given well in advance, we mean that it should be given at least two days before the inquiry is to begin. If this is not done and yet the witnesses are not examined-in-chief full at the inquiry, we do not think that it can be said that principles of natural justice which provide that the person charged should have an adequate opportunity of defending himself are complied with in the case of a domestic inquiry in an industrial matter.
6. In Central Bank of India v. P.C. Jain there was a stress on the principle that statements made behind the back of the person charged are not to be treated as substantive evidence, and it was observed as follows:
It is in this connection that importance attaches to the views expressed by this Court in the cases cited above where it was pointed out that a finding of a domestic tribunal may be perverse if it is not supported by any legal evidence. It is true, that, in numerous cases, it has been held domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the more ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.
7. After referring to its earlier views expressed in Khadarh Co. Ltd. v. The Workmen and in M/s. Kesoram Cotton Mills Limited v. Gangadhar , it was observed as follows:
These views expresed by this Court, in our opinion, bring out what was meant when this Court held that findings recorded by an Enquiry Officer must be supported by legal evidence. The evidence, as indicated in these cases, should consist of statements made in the presence of the workman charged. An exception was envisaged when the previous statement could be used after giving copies of that statement well in advance of the workman charged, but with the further qualification that that previous statement must be affirmed as truthful in a general way when the witness is actually examined in the presence of the workman.
8. The crucial aspect for all the charges under the first charge memorandum was encashment of the cheque on 6.4.1970. If that aspect is to be held as not having been proved by legal evidence, then all the charges must certainly fall to the ground. As already noted, the three charges under the first charge memorandum are interlinked with one another. Fortunately for the petitioner, the Enquiry Officer himself has exonerated the petitioner of charge No. 3. part from the bare letter from the State Bank of India, there is no evidence placed before the Enquiry Officer on this crucial aspect of encashment of the cheque on 6.4.1970. The letter would only amount to a statement given behind the back of the petitioner. The Officer of the State Bank of India, who gave the letter was not summoned even to affirm the contents of the letter in a general way, and the petitioner was not afforded an opportunity to cross-examine the said officer. The petitioner has not in any manner accepted the truth of the contents of that letter. On the other hand, the petitioner would state that the cheque was encashed by the driver Ramaswamy even earlier and the case was handed over to the petitioner. Under these circumstances, the acting upon the bare letter of the State Bank of India and pinning down an culpability on the petitioner on the ground that the cheque must have got encashed on 6.4.1970 only would amount to acting upon no legal evidence. Hence the grievance of the learned Counsel for the petitioner that with regard to the first charge memorandum concerning charges 1 and 2 of which alone the petitioner has been found guilty, it is a matter of the findings being not supported by any legal evidence, and hence these findings must be characterised as perverse, requiring striking down by this Court in writ powers, has got to be countenanced.
9. Coming to the second charge memorandum, the Enquiry Officer himself has exonerated the petitioner of charges 1 and 2 and the finding against. the petitioner has been rendered only in respect of charge No. 3.
10. Learned Counsel for the petitioner would contend that even here, it must be held that the enquiry officer has rendered a finding on no acceptable legal evidence. To expatiate this contention, learned Counsel for the petitioner took me through the findings of the enquiry Officer and his discussion of the evidence placed with regard to charge No. 3 of the second charge memorandum. Prosecution witnesses 4 to 11 were examine on the allegation that the petitioner did not supply the materials against the requisitions given to him. Learned Counsel for the petitioner points out that all the prosecution witnesses do not support this allegation against the petitioner, and in particular he drew my attention to the discussion of the evidence of the prosecution witneses 4 and 5, who admitted that they received the materials and also the discussion of the evidence of P.Ws.8 and 9, who have not stated anything about the nonreceipt of the materials, but who admitted that they signed the receipt columns of the requisitions. It must be first remembered that this Court is not exercising appellate powers over the findings of the domestic Tribunal. The adequacy or otherwise of the evidence could not be a matter of review by this Court in writ powers. It is not for this Court to dissect and reassess the evidence once again to find out whether that is sufficient to find the charged servant guilty. Even aschewing the evidence of prosecution witnesses 4, 5, 8 and 9, there is evidence of other prosecution witnesses, which has been duly taken note of by the Enquiry Officer to hold that the petitioner did not supply the materials against the requisitions given to him. Hence, I could not appreciate and accept this line of attack put forth by the learned Counsel for the petitioner with regard to charge No. 3 of the second charge memorandum in respect of which the petitioner has been found guilty by the Enquiry Officer.
11. There are other common points also taken by the learned Counsel for the petitioner, and I am dealing with them as follows:
It is contended that the petitioner has been put to prejudice on account of the delay in the prosecution of the present charge memorandum in 1978, since the incidents relate to the year 1970-71. I find the petitioner never advanced a grievance of prejudice at any point of time earlier and the petitioner could not be stated to have been disabled from putting forth any effective defence on account of any delay. On the facts of the case, I am not persuaded to hold that the delay aspect must be taken note of to hold that it has vitiated the domestic enquiry. It was also contended that the misconducts thrown against the petitioner were hot those enumerated in the Regulations. This contention could not be countenanced because Regulation 5 is generously couched so as to take in not only misconducts enumerated, but also misconduct which would come within the expressions "good and sufficient reasons". There was also a contention that there was an earlier charge memorandum in 1974, which was prosecuted, and the petitioner challenged the second show cause notice before this Court and the enquiry was dropped, and it is not possible to resurrect the charges and prosecute them by way of a second enquiry. The first enquiry was found to have suffered a technical flaw, and as rightly pointed out by Mr. S. Ramalingam, learned Counsel for the respondent, taking note of the legal opinion expressed in this behalf, the first enquiry was not prosecuted, and the second enquiry was necessitated only on account of the above factor. Under these circumstances, it could not be stated that the second enquiry was totally incompetent.
12. With regard to the first charge memorandum, it has been found the charges 1 and 2 in respect of which the petitioner has been found guilty could not survive at all against the petitioner, and the findings of the Enquiry Officer, which have been taken note of and acted upon by the Disciplinary Authority, namely, the respondent stand vitiated. If this is so, charge No. 3. of the second charge memorandum alone survive. The Disciplinary Authority has cumulatively taken note of the findings of the Enquiry Officer on all the charges. There has been no punishment contempleted and imposed separately for specific charges. In fact, in paragraph 3 of the impugned order, this is was has been observed:
The charges held proved are of serious nature involving neglect of work on the part of delinquent and breach of prescribed procedures. The Board has decided that for the charges held proved in both the disciplinary proceedings, he should be compulsorily retired from service.
Now the findings on charges 1 and 2 of the first charge memorandum have to be ignored and only charge No. 3 of the second charge memorandum could survive, it would be just, firm and equitable for the disciplinary Authority to reconsider the question of punishment. Learned Counsel for the petitioner submits that the petitioner has put in 32 years of unblemished service, and this aspect also requires consideration on the question of punishment. The Disciplinary Authority shall do so. Further, learned Counsel also says that the petitioner must be afforded an opportunity to make his say on the question of any punishment if proposed to be imposed on reconsideration of the matter pursuant to this order of this Court. The Disciplinary Authority shall certainly afford this opportunity to the petitioner. For this purpose, the matter has to once gain go before the respondent. Accordingly, the writ petition is allowed in the following terms:
1. The findings in the enquiry against the petitioner with regard to charges 1 and 2 of the first charge memorandum, dated 9.6.1981 will stand quashed. As a result, nothing survives with regard to the first charge memorandum against the petitioner.
2. The findings against the petitioner with regard to charge No. 3 of the second charge memorandum, dated 17.8.1981 are not disturbed.
3. The impugned order of the respondent is set aside and the matter is remitted to the respondent for a fresh consideration of the question of punishment taking note of fact that the petitioner is found guilty of charge No. 3 alone of the second charge memorandum.
4. The respondent shall also take note of the Service records of the petitioner while reconsidering the question of punishment.
5. The respondent shall afford an opportunity to the petitioner to make his say on the question of any punishment, if proposed to be imposed on him on a reconsideration of the matter pursuant to this order of this Court.
6. The respondent shall dispose of the matter pursuant to this order of remittal with expedition.
7. There will be no order as to costs.