Madras High Court
S.C. Tamil Selvan vs The Board Of Tamil Nadu Minerals Ltd on 28 July, 2008
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 16341 of 1998 S.C. Tamil Selvan .. Petitioner Vs. 1. The Board of Tamil Nadu Minerals Ltd. Rep. by the Chairman and Managing Director Chepauk Chennai 2. The Chairman and Managing Director Tamil Nadu Minerals Ltd. Chepauk Chennai .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records pursuant to the impugned order of termination issued by the second respondent in Proc. Na. Ka. No. 21726/EB3/95-2 dated 10.7.1997 and the appellate order issued by the first respondent in Proc. R.C. No. 19970/EB3/97 dated 01.10.1997 and quash the same and consequently direct the respondents to reisntate the petitioner in service with full backwages and consequential service benefits. For Petitioner : Mr. S.M. Subramanian For Respondents : Mrs. A.V. Bharathi ORDER
Heard the arguments of the learned counsel appearing for the parties and perused the records.
2. In this writ petition, the petitioner challenges the order of termination dated 10.7.1997 issued by the second respondent and confirmed by the order 01.10.1997 passed by the first respondent.
3. Pending the writ petition, this Court declined to grant any interim relief vide order dated 04.3.2003. Since the documents relating to the enquiry proceedings were not filed along with the writ petition, this Court gave a direction to the respondent Tamil Nadu Minerals Limited [for short, 'TAMIN'] to produce the original enquiry proceedings. Accordingly, Mrs. A.V. Bharathi, learned counsel for the TAMIN circulated the file.
4. The petitioner was appointed as a Jeep Driver in the office of the Divisional Manager, TAMIN at Krishnagiri on 09.9.1988. He was placed under suspension 28.11.1995 and a charge-memo dated 22.3.1996 was issued to him. The charge-memo contained three charges and they were as follows:-
(i) On 17.5.1995, when he was working as watchman in the Stores at Krishnagiri Branch, the materials worth about Rs.4,00,882.13 were found missing and it was alleged that he was responsible for the theft;
(ii) That he had admitted the said involvement in the statement given to the Police to the extent that he sold 17 drill rods to a local businessman; and
(iii) Since he had admitted the said fact, it showed that the entire theft of the materials was done by him; and
5. The stand of the petitioner was that he was not at all a watchman during that period in which the theft had taken place. An enquiry was conducted against the petitioner and a report dated 26.4.1997 was submitted. The Enquiry Officer held that the charges were proved. According to the petitioner, the enquiry was held without complying with the principles of natural justice and even it was conducted when a criminal case was pending in Crime No. 1212 of 1995 before the Court of Judicial Magistrate at Krishnagiri. Subsequently, on the basis of the enquiry, the petitioner was issued the order of termination dated 10.7.1997. He filed an appeal before the Board of Directors dated 26.8.1997 and the same was rejected by the Board vide its order dated 01.10.1997.
6. The respondents have filed a counter affidavit denying the allegations made by the petitioner. In the counter affidavit, it is stated in paragraph 10 that the enquiry was conducted twice against the petitioner. The first enquiry was fixed on 05.6.1996 but the petitioner did not appear. Thereafter, it was postponed to 19.9.1996 in order to provide an opportunity to the petitioner. It was further stated that a re-enquiry was fixed and conducted on 06.02.1997. Because of the stand taken by the respondent, this Court was constrained to summon the original proceedings.
7. It is seen from the records in page 38 of the original file, it was stated as follows:-
"The Enquiry Officer Manager (Projects) has submitted his report on the charges framed against Thiruvalargal Chintamani, Supdt., M.Arunachalam, Mines Foreman, S.C.Tamilvanan, Jeep Driver.
A perusal of the report of the Enquiry Officer shows that he has not gone into the procedures as required by the rules. For example, against Question No. 3 of the Questionnaire form, Thiru. M. Arunachalam, Mines Foreman has stated that after the closure of prosecution side, he will produce documentary evidence. Similarly against Q.No. 4, he has stated that he will produce details of witnesses after the closure of prosecution witness. Against Q.No. 5, he has stated that he has not been served with any prosecution side documents supporting the charges. He has further requested that all records produced by the prosecution side should be furnished to him. This request was not taken into consideration and complied with before submitting the report by the enquiry officer to CMD. It is seen from the Enquiry Officer's report that he came to a conclusion, based on the statements recorded from prosecution side (administrative side) and from the accused officers. The enquiry report shows that he has not cross checked the statements with reference to the connected records maintained in Madhepalli tile plant or calling for the documentary evidences from accused officers / ..... He has also not called for the details of witnesses and examined their witnesses as mentioned in the explanations of accused persons.
Under the above circumstances, the enquiry report may be returned to the Enquiry Officer (Manager (Projects) for conducting a detailed enquiry and to submit his remarks as to whether the charges held proved or not. For his guidance the important 'Dos' and 'Do nots' filed at PP 609-612 CF may be communicated."
Under this office note, the Managing Director, TAMIN made an endorsement with the following noting, which is found in page 38 of the original file.:-
"Approved. I would like to see revised report of Manager (Projects). Sd. CMD"
A further endorsement is made stating that the report should be submitted within ten days.
8. This conduct is certainly impermissible. Without communicating the report of the Enquiry Officer, the second respondent cannot re-refer the matter to the very same Enquiry Officer and get another report from the Manager (Projects). The petitioner was kept un-informed about the entire situation.
9. Mrs. A.V. Bharathi, learned counsel submitted that the petitioner himself had confessed before the Police. It must be stated that the validity or otherwise of the confession has to be gone into by the Criminal Court and the employer cannot get the copy from the Police and rely upon the same. In the earlier charge-memo framed by the respondents, the statement was not referred to. Further, the Sub-Inspector of Police, Krishnagiri, in his letter dated 20.9.1996 informed the Divisional Manager about the recovery of the drill rod on 06.12.1995 from the petitioner valued at Rs. 34,000/- and the case was pending. Even the veracity of such recovery has to be proved before the Criminal Court and even the Inspector was not examined in the enquiry. In fact, on 18.5.1995 itself, the petitioner had joined duty as a Driver at the TAMIN Head Office and the incident relating to the theft came to be noticed only on 23.11.1995 and the petitioner was placed under suspension on 28.11.1995. Even the recovery by the Police was made only on 06.12.1995. All these incidents raise a great deal of doubt about the genuineness of the enquiry conducted against the petitioner.
10. Apart from that, when an enquiry report was submitted by the Enquiry Officer and if it is found to be irregular, it is open to the disciplinary authority to either discredit it or record a finding on his own. He cannot seek for a second report on the very same materials. It is not as if the second respondent had ordered for a fresh enquiry. But secretly, he called for a revised report from the Enquiry Officer as he thought that the earlier proceedings were improper. In doing so, he also supplied the 'dos' and 'don'ts' to the Enquiry Officer as found in the file noting extracted elsewhere.
11. The Supreme Court in its judgment relating to K.R. Deb v. Collector of Central Excise, Shillong [1971 (2) SCC 102] deprecated such practice as can be seen from the passages found in paragraphs 12 and 13 which may be usefully extracted below:-
Para 12: "It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
Para 13: In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant."
12. In the light of the same, the impugned order dismissing the petitioner as confirmed by the first respondent will stand set aside and the writ petition is accordingly allowed. The petitioner will stand restored to his office immediately. If the respondent TAMIN still wants to conduct any fresh enquiry, it should done in accordance with law and must be completed within a period of three months from the date of receipt of a copy of this order.
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