Madras High Court
Periyar District ... vs Appellate Authority, Tamil Nadu Shops ... on 12 March, 1999
Equivalent citations: (2000)IIILLJ325MAD
ORDER N.V. Balasubramanian, J.
1. The petitioner is a registered co-operative society. The petitioner is having one of its fair price shops at Karungalpalayam, Erode. The second respondent herein was an employee employed as a sales-man. There was an inspection in the abovesaid shop by the flying squad led by Special Tahsildar, Erode and the flying squad detected shortage of 126 litres of palm oil. According to the petitioner the second respondent as a salesman was solely responsible for the stock and distribution of essential commodities. The petitioner has averred that the first respondent has admitted the shortage of palm-oil before the inspection squad. The second respondent, thereafter, was placed under suspension and the second respondent through a statement dated March 26, 1984 admitting the shortage, claimed that the packer Kanagaraj, who was working on daily wages was solely responsible for shortage. The petitioner has stated that the packer Kanagaraj was engaged on daily wages, the second respondent was engaged in the proper distribution of essential commodities and Kanagaraj has no responsibility for the proper distribution of the articles. The petitioner found that the explanation given by the second respondent was not satisfactory and framed charges against the second respondent and the second respondent has submitted his explanation and an enquiry was held and based on the enquiry report a show-cause notice was issued to the second respondent and after considering his explanation the petitioner terminated the service of the second respondent.
2. The second respondent has preferred an appeal under Section 41 of the Tamil Nadu Shops and Establishments Act before the Deputy Commissioner of Labour, Coimbatore against the order of dismissal of service of the second respondent from the post of Co-operative Societie's Salesman from Erode. The Appellate Authority held the view that the second respondent relied upon in his defence a letter purported to have been written by Kanagaraj (Exhibit A-5) and that the said document was not considered by the enquiry officer and the Appellate Authority also observed that in the said document Kanakaraj, packer has accepted the responsibility for the shortage of palm-oil and that he sold out mixing palm oil to the outsiders with the knowledge of the second respondent. Therefore the Appellate Authority took the view that since the second respondent was denied an opportunity to cross-examine the co-accused Kanagaraj, the Appellate Authority, though it recorded that there is nothing to show that the second respondent has requested the Enquiry Officer to allow him to cross-examine the co-accused Kanagaraj, the Enquiry Officer should have given an opportunity to the second respondent to cross-examine the said Kanagaraj and had this opportunity been given to the second respondent, much light would have been thrown on the real offender and justice would have been rendered. The Appellate Authority was also of the view that the non-furnishing of the Enquiry Report to the second respondent handicapped the second respondent to submit his explanation and therefore the Appellate Authority set aside the order of dismissal of the second respondent. It is against the order of the Appellate Authority, the Writ Petition has been filed.
3. Learned counsel for the petitioner submitted that the second respondent has accepted the shortage of palm-oil, and the co-accused Kanagaraj was not a permanent workman and the second respondent was responsible for the stock in the stores. He also submitted that the original letter of confession of Kanagaraj was neither produced by the petitioner before the Enquiry Officer nor did the petitioner cross examine the said Kanagaraj and the conduct of the second respondent in not cross-examining Kanagaraj would show that he was not denied a fair opportunity. Learned counsel relied upon a decision of the-Supreme Court in the case of State Bank of Patiala v. S.K. Sharma and submitted that the second respondent should prove that he was prejudiced by not being given an opportunity and there is no proof of prejudice and the order of the Appellate Authority is not sustainable in law. In so far as the non-furnishing of the report of the Enquiry Officer is concerned, the learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar , and submitted that the non-furnishing of the enquiry report would not vitiate the enquiry.
4. Learned counsel for the second respondent submitted that in the order passed by the Disciplinary Authority it is clearly stated that the Enquiry Officer has taken into account the letter of Kanagaraj and since the letter of Kanagaraj was taken into consideration the Enquiry Officer should have granted an opportunity to the second respondent to cross-examine Kanagaraj and his failure to afford an opportunity has vitiated the entire proceedings. Learned counsel further submitted that the second respondent has relied upon a letter written by Kanagaraj as a defence and the letter written by the said Kanagaraj shows that he accepted the responsibility for the shortage of palm-oil mixing the oil and sold to outsiders.
5. I have carefully considered the submissions of the learned counsel for the parties. The Second respondent was appointed as the salesman of the ration shop in Karungalpalayam, Erode and his appointment dated January 19, 1984 shows that he was responsible for stock jointly and severally along with the working in the section. On March 15, 1984 flying squad Tahsildar of Erode found the shortage of 126 Kilograms of Palm-oil and has given the inspection report also. The petitioner has accepted the shortage on the date of inspection. Kanagaraj, packer has also accepted the shortage. On March 29, 1984 charges were framed against the second: respondent and the first charge was for shortage of the stock and second charge was his failure to perform the duties of the salesman. An enquiry was also conducted and in the inquiry the Special Tahsildar Flying Squad was examined on behalf of the petitioner. The special Tahsildar gave evidence for the shortage of 126 Kgs of Palm-oil. The second respondent, though was given an opportunity to cross-examine the Special Tahsildar, he did not cross-examine the Special Tahsildar or other witnesses examined on behalf of the petitioner. All the witnesses have stated about the shortage of the stock on the date of inspection. The second respondent was examined and after him Kanagaraj was examined. The petitioner attempted to produce xerox copy of the letter written by Kanagaraj. The Enquiry Officer found that no reliance can be placed on the xerox copy of the letter and he also found that Kanagaraj should have been questioned on the document said to have been written by him. He therefore considered the question whether the document can be relied upon the recorded finding that the document cannot be taken as part of the evidence. On the basis of the report of the Enquiry Officer and on the basis of the explanation of the second respondent, the order of dismissal was passed against the second respondent.
6. The short question that arises is whether the enquiry held is vitiated because the Enquiry Officer did not give an opportunity to the second respondent to cross examine the said Kanagaraj with reference to the letter said to have been written by Kanagaraj. In this connection, it is relevant to notice that the petitioner relied upon the report of the Flying Squad and also the evidence given by the witnesses examined on behalf of the writ. The witnesses examined on behalf of the writ petitioner were not subjected to cross-examination by the second respondent and their evidence remain uncontroverted. The 2nd respondent sought to produce a letter said to have been written by Kanagaraj. It is significant to notice that Kanagaraj was also examined after the examination of the second respondent, but the second respondent has not questioned Kanagaraj with reference to the letter Exhibit A-5. The said Kanagaraj was also charge-sheeted along with the second respondent and when Kanagaraj was examined, the petitioner should have cross-examine with reference to the letter written by him. That apart, the letter Exhibit A-5 written by Kanagaraj was sought to be introduced as a document of the second respondent and when the second respondent relied upon the said document in support of his case, it is his duty to examined Kanagaraj with reference to the document or summon Kanagaraj to examine him if he has been examined already and then produce a document. It is also significant to notice that there is nothing to show that the Enquiry Officer prevented the second respondent from cross-examining the said Kanagaraj. The Appellate Authority has also recorded a finding that there is no material to show that the second respondent made a request to cross-examine the said Kanagaraj, but, that was refused by the Enquiry Officer.
7. On the other hand, the Appellate Authority has proceeded on the basis that the Enquiry Officer should have suo motu given an opportunity to cross-examine the said Kanagaraj. In my view, the said view of the Appellate Authority is not sustainable in law. When the second respondent did not cross-examine the said Kanagaraj during the course of his examination it cannot be said that he was denied the fair opportunity. It is also significant to notice that it is not the duty of the Enquiry Officer to inform the second respondent as to how he should conduct the proceeding before the Enquiry Officer. The duty of the Enquiry Officer in my view is to conduct the enquiry fairly and properly. He is not a self appointed adviser of the delinquent employee to advise or instruct him as to how he should conduct his case. The Enquiry Officer's duty, as already observed is to conduct the inquiry properly and it is the sole responsibility of second respondent to conduct his case. If any opportunity was denied to the second respondent to cross-examine Kanagaraj, then it can be said that there is a violation of the principles of natural justice. On the other hand, when the (sic...) petitioner did not avail of the opportunity to cross-examine Kanagaraj at the time of his examination, it cannot be said that the second respondent did not get an opportunity to cross-examine Kanagaraj and therefore the view of the Appellate Authority that the enquiry is vitiated is not sustainable in law. Therefore, I hold that the view of the Appellate Authority that no opportunity was given to the second respondent to examine Kanagaraj is not sustainable in law. In this view of the matter, it is not necessary to consider the decision of the Supreme Court in the case of State Bank of Patiala v. S.K. Sharma (supra) and examine whether there was any prejudice caused to the second respondent.
8. The submission of the learned counsel for the second respondent that the letter written by Kanagaraj was relied upon as a defence to disprove the charges is bereft of force. The finding of the Enquiry Officer is clear that he rejected the photostat copy of the document produced by the second respondent for valid reasons. When the second respondent complained that the Enquiry Officer has not considered the document, it was observed by the Disciplinary Authority that the Enquiry Officer has considered the document but the observation made by the Disciplinary Authority does not indicate that the document was relied upon by the Enquiry Officer. In so far as the other finding of the Appellate Authority that the Enquiry Officer's report is vitiated because of the non-furnishing of the report is concerned, the Supreme Court in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar (supra) has held that the order of punishment was passed prior to the decision in Mohd. Ramzan Khan's case, without furnishing the copy of the enquiry report should not be disturbed and the disciplinary proceedings which gave rise to the said order should not be reopened on that account. Therefore the non-furnishing of the enquiry report is not fatal to the, enquiry. Both the reasons given by the Appellate Authority are not sustainable in law.
9. Accordingly, the impugned order is set aside and the writ petition is allowed. Rule Nisi is made absolute. There will be no order as to costs. Consequently, W.M.P. No. 15128 of 1991 is closed.