Madras High Court
A.S.Venkateswaran vs The Chairman And Managing Director on 25 February, 2010
Author: R.Banumathi
Bench: R.Banumathi, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.02.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE M.M.SUNDRESH W.A.NO.2733 of 2001 A.S.Venkateswaran .... Appellant Vs. 1.The Chairman and Managing Director Tamilnadu Small Industries Development Corporation, Madras 6. 2.The Board of Directors, rep.by their Chairman, Tamilnadu Small Development Corporation, Madras -6. .... Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the Order passed by the single Judge dated 22.2.1999 made in W.P.No.14467 of 1991. For Appellant : Mr.V.Prakash,Sr.Counsel for Mr.K.Elango & Mr.M.Suresh Kumar For Respondent : Mr.B.Shanthakumar Senior Counsel for SIDCO JUDGMENT
R.BANUMATHI,J.
This Appeal arises out of the Order in W.P.No.14467 of 1991 dismissing the Writ Petition and declining to quash the punishment of dismissal from service imposed on the Appellant.
2. The brief facts, which led to filing of Writ Petition, are as follows:
Appellant joined Government Pressure Die Casting Unit, Guindy, then under the Control of the Department of Industries and Commerce, Government of Tamil Nadu as a Foreman Trainee on 10.3.1965. He has held various positions in Department of Industries and Commerce and he was promoted as Assistant Director of Industries and Commerce in Salem. During July, 1974, he was deputed to Tamil Nadu Small Industries Development Corporation Limited (SIDCO) and posted as Assistant Development Officer in the Raw Material Division. Within months of his deputation to SIDCO, Government selected him for the assignment of "Management by Objectives" Adviser for SIDCO as well as the Industries Department. For various irregularities noticed in the distribution of raw materials during the period when he worked as Manager, Raw Materials and also for staying away from duty unauthorisedly, 17 charges were framed against the Appellant. The Appellant was served with a memo dated 15.6.1987 containing as many as 17 charges. On receipt of charge memo, Appellant made a request before the Chairman and Managing Director for supply of relevant documents pertaining to the memo dated 15.6.1987 to enable him to answer the charges.
3. One Mr.V.Gunalan, General Manager was appointed as Enquiry Officer. The Enquiry Officer asked the Appellant to appear for enquiry on 20.1.1988 and again on 25.1.1988. Inspite of repeated opportunities, the Appellant was insisting for furnishing of certain records and he did not cooperate in the enquiry. The enquriy was fixed on 9.5.1988. Insisting for furnishing of documents, the Appellant is said to have left the enquiry. Thereafter the Enquiry Officer held enquiry and submitted a report dated 22.6.1988 holding that all charges were proved.
4. Though the Enquiry Officer has submitted that all the 17 charges were proved, the disciplinary authority after analysing the report of the Enquiry Officer, with reference to Charges, ultimately came to the conclusion that Charge Nos.1, 2, 5, 6, 11, 12, 16 and 17 alone were proved and that Charge Nos. 14 and 15 were partly proved. So far as the other charge Nos.3,4, 7, 8, 9, 10 and 13, the disciplinary authority held that they were not proved. Taking note of the gravity of proved charges on the basis of service rules, the 1st Respondent passed orders imposing punishment of dismissal from service. Against the said order, Appellant preferred an Appeal before the Chairman, Tamilnadu Small Industries Development Corporation Limited (SIDCO). Having regard to gravity of proved charges, it was resolved to reject the Appeal Petition preferred by the Appellant. The Appellate Authority confirmed the order of the Managing Director dated 4.5.1989 dismissing the Appellant from service of the Corporation. Challenging the punishment of dismissal from service, Appellant filed W.P.No.14467 of 1991. The learned single Judge held that the enquiry was held in accordance with the Service Rules and after giving sufficient opportunities to the Appellant. Insofar as the contention that the disciplinary authority ought to have afforded further opportunity, the learned single Judge held that since the conclusion of the Enquiry Officer was against the Appellant and that has been modified by the disciplinary authority, and that the Appellant succeeded to some extent before the disciplinary authority, the learned single Judge held that the contingency of issuing further show cause notice has not arisen. Pointing out that the disciplinary authority considered that the punishment of dismissal from service is adequate and sufficient punishment, which is in accordance with Rule 6.15(b) of the Rules, the learned single Judge dismissed the Writ Petition.
5. Learned Senior Counsel for Appellant submitted that the non-issuance of further show cause notice as per Rule 6.17 of SIDCO, Service Rules, there is violation of principles of natural justice, which would vitiate the imposing of punishment. It was further argued that even though Charge Memo proceeds as if numerous complaints have been received against the Appellant copies of such complaints were never furnished inspite of the request made by the Appellant, which proves that the charges are vague in nature. The entire proceedings was actuated by malice. Learned Senior Counsel would further submit that the findings of the Enquiry Officer are based on no evidence warranting interference and while so the learned single Judge was not right in dismissing the Writ Petition.
6. Drawing our attention to the Service Rules and taking us through the counter affidavit, the learned Counsel for SIDCO submitted that inspite of several opportunities, the Appellant was not willing to participate in the enquiry and the Enquiry Officer had no other option but to deal with the matter and having not participated in the enquiry it is not open to the Appellant to make grievance of violation of principles of natural justice.
7. As per Rule 3.3 of SIDCO Service Rules, Appointing Authority is the authority competent to make appointments to the posts indicated in Col.2 of the table set out in Appendix-I. As per Rule 6.15 (b), dismissal from service is a major penalty. As per Rule 6.16, the appointing authorities shown in Appendix I may impose any of the major penalties. From Appendix I, it is seen that for the post of "Manager", the appointing authority is "Board of Directors with prior approval of the Government."
8. Learned Senior Counsel appearing for the Appellant submitted that at the time when punishment was imposed upon the Appellant, he was working as Manager and the major penalty dismissal from service could be imposed only by the Board with prior approval of the Government and while so the proceedings of the 1st Respondent dated 4.5.1989 emanates from the 1st Respondent, which is not by the competent authority as per Rule 6.16. It was further argued that when the appointing authority has not passed the punishment, it must be deemed that the punishment was imposed by incompetent authority, which would vitiate the punishment imposed upon the Appellant.
9. On the same lines, it was also contended by the learned Senior Counsel for the appellant that the Charge Memo dated 15.6.1987 was issued by the disciplinary authority. It was further submitted that without the approval of the Board, the charge memo issued by the 1st Respondent was ultra vires and the punishment imposed upon the Appellant cannot be sustained.
10. Learned counsel for the Respondents submitted that there was amendment to the Rules in 1982 and as per the amendment, Managing Director is the Appointing authority for the post of Manager. As per the minutes of the 78th Board Meeting dated 5.11.1982, wherein column No.(4), as against the appointing authority, the word "Managing Director" was ordered to be substituted in the place of "Board of Directors with approval of the Government". It is clear that as per the amended Rules, for the post of Manager Material, the Appointing Authority is the Managing Director and therefore Managing Director had the power to initiate disciplinary proceedings and pass final orders. The charge memo issued and the enquiry conducted are well in accordance with the Service Rules and Regulations for SIDCO.
11. Taking us through the report of the Enquiry Officer, the learned Senior Counsel submitted that even though in the charges it was stated that number of complaints have been received against the Appellant, copies of such complaints were never furnished to the Appellant. It was further submitted that no oral or documentary evidence was produced before the Enquiry Officer and when finding is not supported by any evidence, the finding is perverse and cannot be sustained. It was further argued that absolutely no opportunity was given to the Appellant and the findings of the Enquiry Officer are not to be ipse dixit of the Enquiry Officer and even in an exparte proceedings a duty is cast upon the Enquiry Officer to record evidence and refer to the documentary evidence before arriving at the conclusion.
12. The learned Senior Counsel contending that the Appellant must have been given sufficient opportunity to put forth his case placed reliance upon 1963(II) LLJ 392 (MEENGLAS TEA ESTATE VS. ITS WORKMEN), wherein the Supreme Court has held as follows:
".... It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him."
13. Contending that when findings are not based upon legal evidence, such finding is perverse, the learned Senior Counsel placed reliance upon 1972(1) LLJ 180 (ELHI CLOTH AND GENERAL MILLS CO.LTD. VS. LUDH BUDH SINGH), wherein the Supreme Court has held as under:
"25. We may also refer to the decision in Central Bank of India Ltd., New Delhi v. Shri Prakash Chadn Jain, (1969-II L.L.J 377) = (1969) 1 S.C.R. 735, where after a reference to the principles laid down in The Lord Krishna Textile Mills v. Its Workmen (1961-I L.L.J. 211), it has been pointed out that the test of perversity of a finding recorded by a Tribunal or an enquiry supported by any legal evidence at all. It has been further pointed out that a finding recorded by a domestic Tribunal like an enquiry officer will also be held to be perverse in these cases where the finding arrived at by the domestic Tribunal is one, which no reasonable person could have arrived at on the material before it. The position was summed up by this Court in the said decision as follows:
"Thus, there are two cases where the findings of a domestic Tribunal like the inquiry officer dealing with disciplinary proceedings against a workman can be interfered with, and these two are cases in which the findings are not based on legal evidence or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal. In each of these cases the findings are treated as perverse."
Bearing in mind the above principles, we will now consider whether in the case before us the Enquiry Officer afforded reasonable opportunity to the Appellant and whether the disciplinary authority was justified in imposing punishment of dismissal from service.
14. From 7.7.1987 to 27.1.1988, on various dates, the Appellant was deliberately asking for time to offer his explanation until the final report dated 22.6.1988 was filed. Even after receiving the Enquiry Officer's report, the Appellant had not given any explanation for the charges framed against him. In the absence of explanation to the charges by an employee, it leads to the inference of admission of charges by the Appellant.
15. By perusal of the report of the Enquiry Officer and the proceedings of Disciplinary Authority, it is seen that after the charge memo was issued, the Appellant was repeatedly writing letters to the Corporation requesting for certain details and documents. The Appellant had raised objections for appointment of Mr.V.Gunalan as enquiry Officer. By perusal of the files and from submission of learned counsel for respondents, it is seen that the Appellant willfully failed to appear for the enquiry despite sufficient opportunities were provided to explain his conduct and to defend his case. As rightly submitted by learned counsel for SIDCO, the Appellant failed to avail opportunities afforded to him. In his letter dated 4.2.1988, the Appellant had only raised objection that the General Manager cannot be the Enquiry Officer and therefore no explanation was furnished by him. Since the Appellant did not appear for the enquiry, subsequently the 1st Respondent by his proceedings dated 10.2.1988 overruled the objection of the Appellant and directed the Enquiry Officer to go ahead with the enquiry. The Managing Director in his letter dated 10.2.1988 made it clear that if the Appellant failed to submit his explanation it would be presumed that he has no explanation to offer and further action would be taken on the merits of the case. Learned counsel for Respondents submitted that the Appellant has been adopting some delay tactics to avoid the enquiry and by his letter dated 16.3.1988 followed by a telegram the Appellant only sought time for thirty days. Thereafter the enquiry was postponed to 19.4.1988 and the Appellant appeared before the Enquiry Officer. On 22.4.1988, the Appellant requested for copies of Memorandum and Articles of Association and SIDCO Service Rules to enable him to submit his reply. The Appellant was insistent on having copy of SIDCO Service Rules and Memorandum and Articles of Association.
16. The learned counsel for Respondent submitted that Memorandum and Articles of Association and SIDCO Service Rules are all public documents. By perusal of Report of Enquiry Officer, it is seen that on 9.4.1988, the Appellant was informed that he could peruse the memorandum and Articles of Association at the Office of Registrar of Companies for which the Appellant is said to have accepted.
17. Thereafter the inquiry was posted on 9.5.1988 and the Appellant attended the inquiry and wanted a Certificate from the Management and the Appellant attended the enquiry and wanted a certificate from the Management that a copy of service rules be given to him with updated entries and that he should be given a copy with latest amendments. He has also raised objection stating that his representations were not put up before the Chairman and Managing Director and he insisted for a final decision from the 1st Respondent. The Enquiry Officer has elaborately recorded the dates and events during enquiry and that inspite of repeated requests the Appellant has not given explanation for the charges framed and he was not cooperating in the enquiry on 9.5.1988 stating that he was not in a position to participate in the enquiry the Appellant left the enquiry.
18. Having not cooperated with the enquiry proceedings the Appellant cannot make a grievance of non-affording of reasonable opportunities. As we pointed out earlier, the Appellant had not even given his explanation to the Charge Memo and insistent upon furnishing of certain documents and SIDCO Service Rules. With no other option, the Enquiry Officer has to necessarily proceed with the enquiry and complete the enquiry and held that the charges were proved. Having not participated in the enquiry and not cooperated with the enquiry proceedings ,there is no substance in the grievance of the Appellant that no opportunity was given to him.
19. The extent and application of the doctrine of natural justice cannot be imprisoned within the strait jacket of rigid formula. As held by the Supreme Court in the case of A.K.KRAIPAK VS. UNION OF INDIA (1969) 2 SCC 262, which reads as under:
"What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry was held and the constitution of the Tribunal or body of persons appointed for that purpose. When ever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
It is pertinent to note that in spite of sufficient opportunities the Appellant has not availed of the opportunities given to him, while so the appellant cannot complain of principles of natural justice.
20. Learned Senior Counsel for Appellant nextly contended that even though there are number of charges the finding of the Enquiry Officer is vitiated due to non-mentioning of list of witnesses whom the prosecution proposes to be produced during oral evidence and failure to mention list of documents, non-furnishing of copies of complaints etc., and the impugned order is liable to be quashed as the finding of Enquiry Officer is based on no evidence. As we have pointed out earlier, the Appellant has not even chosen to give his explanation nor furnished statement of defence. Even though the Enquiry Officer has not elaborated upon the facts and evidence before passing the punishment of dismissal the disciplinary authority has applied its mind to the evidence and other aspects and passed the final order.
21. Of course even though the report of the Enquiry Officer is very brief not containing elaborate reasoning, such shortcomings were corrected by the disciplinary authority. The Disciplinary Authority considered each and every charge and materials on record. Even though the Enquiry Officer found that all 17 charges were proved, the disciplinary authority after analysing the report of the Enquiry Officer, with reference to Charges, ultimately come to the conclusion that Charge Nos.1, 2, 5, 6, 11, 12, 16 and 17 alone were proved and that Charge Nos. 14 and 15 were partly proved. So far as the other charge Nos.3,4, 7, 8, 9, 10 and 13, the disciplinary authority held that they were not proved.
22. The Appellant was transferred and posted as Senior Branch Manager at Madurai by proceedings dated 23.3.1987. After receiving the orders, on 24.3.1987, Appellant informed the Office that his conscience factor does not allow him to abide by the same. On 28.3.1987 memo was issued to the Appellant warning him that any attempt to disobey the orders would entail in disciplinary action. Gist of Charge No.17 is that even after receipt of the memo Appellant did not join duty and stayed away and thereby committed an act of indiscipline and insubordination.
23. Learned Senior Counsel for the Appellant has submitted that the Appellant was holding the post of President of SIDCO Engineers Association and aided some of the effected Officers to secure justice and due to the said enmity, certain difference of opinion has developed between the Appellant and higher-ups resulting in the abrupt transfer of the Appellant to Madurai in a newly designated post as Senior Branch Manager. It was further submitted that no such post was created at the relevant time, which office was looked after by a lower level Officer viz., Development Officer, which is in the cadre of Deputy Manager and the Appellant was transferred to Madurai to a Post two levels lower in rank. In support of his contention that the transfer of the Appellant was to a lower level post, learned Senior Counsel has drawn our attention to subsequent proceedings in Rc.No.27430/EA1/87 dated 17.6.1987 in which one A.Manzoor Ahamed, Deputy Manager, Industrial Estate Wing, Central Office was transferred and posted as Branch Manager, Madurai in the place of the Appellant since the Appellant has not joined. It was therefore submitted that the dismissal order emanates from non-joining of duty consequent upon the transfer of the Appellant to a Post two levels below. The learned Senior Counsel would submit that sequence of events will show that the Appellant, being President of the Engineers Association, had taken certain actions because of which his transfer was effected and therefore the entire proceedings is actuated by malice.
24. The Appellant had not challenged the order of transfer to Madurai for obvious reasons. Such being the case, the Appellant cannot raise the plea of violation of principles of natural justice nor any malafide against the competent authority, who issued the transfer orders for justifiable reasons in the public interest and for the efficient administration of the Corporation. Learned counsel for Respondents has also drawn our attention to the proceedings showing necessity of appointing a Senior Branch Manager in Madurai. As such, we do not find any malafide in the transfer of the Appellant to Madurai and posting him as Senior Branch Manager. As we pointed out earlier, the Appellant in his letter dated 24.3.1987 had only stated that his conscience does not allow him to abide by the order of transfer dated 23.3.1987.
25. Once an employee is transferred to a post and orders are issued to take charge the employee has to abide by the said order since the transfer is an incidence of service. As per SIDCO Rules, any officer, who stays away from work without reason for over six months is liable to have his services terminated. As per Clause 4.2 (vii) of SIDCO Service Rules, if the employee stays away from work for a period of six months he ceases to be an employee of the Corporation. The Appellant was neither on leave nor he applied for leave nor he joined his duty. As rightly contended by the learned counsel for the Respondents, in his own letter dated 16.3.1988, Appellant himself has stated that he was not on leave. As per SIDCO Service Rules, rightly Charge No.17 was framed and the Appellant was found guilty.
26. The contention that the Appellant was victimised and that he was transferred to a post two levels lower in the rank does not merit acceptance. The Appellant was transferred as a Senior Branch Manger to Madurai. Drawing our attention to another instance that where one Ekambaram was transferred from Madras to Virudhunagar as Senior Branch Manager and assumed charge as Senior Branch Manager on 9.2.1987, the learned counsel for Respondents submitted that the posting in the capacity of Senior Branch Manager does not involve any reduction in rank. We have gone through the file. By a perusal of the file, we find that there is no substance in the contention of the Appellant that his transfer and posting in Madurai as Senior Branch Manager has resulted in reduction in rank to a post two levels below the post he was holding then.
27. In any event, it is pertinent to note that the Appellant has not challenged the transfer order on the ground of malafide. Absolutely there is no basis for the allegations levelled against the first respondent and other higher ups. Having regard to the gravity of charges, it cannot be contended that the enquiry proceedings was vitiated by malice. The Disciplinary Authority has applied its mind to the findings of the Enquiry Officer and held that Charge Nos.1, 2, 5, 6, 11, 12, 16 and 17 alone were proved and that Charge Nos. 14 and 15 were partly proved. So far as the other charge Nos.3,4, 7, 8, 9, 10 and 13, the disciplinary authority held that they were not proved. Since in respect of some of the charges disciplinary authority did not agree with the view of the Enquiry Officer and concluded that the charges were not proved, there was no necessity for affording any further opportunity. The learned single Judge rightly dismissed the writ petition declining to quash the impugned order. We do not find any reason warranting interference with the order of the learned single judge.
28. In the result, the Writ Appeal is dismissed. However, there shall be no order as to costs.
usk Copy to:
1.The Chairman and Managing Director Tamilnadu Small Industries Development Corporation, Madras 6.
2.The Chairman Board of Directors, Tamilnadu Small Development Corporation, Madras 6