Madras High Court
Mr.R.Ramchandran vs Mr.A.Vijayakumar on 2 November, 2010
Author: K.B.K. Vasuki
Bench: K.B.K.Vasuki
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 02/11/2010 *CORAM THE HONOURABLE MS. JUSTICE K.B.K.VASUKI +WP.11253 of 2009 #M.Umashankari $TTDC Ltd !FOR PETITIONER : Mr.R.Ramchandran ^FOR RESPONDENT : Mr.A.Vijayakumar :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.11.2010 CORAM :
THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No. 11253 of 2009 M.Umashankari .. Petitioner Vs.
1. The Chairman Tamil Nadu Tourism Development Corporation Ltd., Tourism Complex, No.2, Wallajah Raod, (Adjacent to Kalaivanar Arangam) Chennai-2
2. The Managing Director, Tamil Nadu Tourism Development Corporation Ltd., Tourism Complex, No.2, Wallajah Raod, (Adjacent to Kalaivanar Arangam) Chennai-2 Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records in respect of the proceedings Order No.4641/A1/07 dated 18.08.2008 issued by the second respondent, imposing the punishment of down grading the petitioner to the post of Junior Assistant for three months in the scale of pay of Rs.3200-85-4900 from the post of SG Assistant and consequential rejection orders of appeal of the petitioner by the Board through the order of the second respondent in the proceedings/Order No.4641/A1/07 dated 18.02.2009 to quash the same and to direct the respondents to grant the petitioner all consequential benefits thereof including the payment of difference in salary during the suspension period by regulating the suspension period as duty period.
For Petitioner : Mr.R.Ramchandran.
For Respondents : Mr.A.Vijayakumar.
ORDER The writ petition is filed against the punishment imposed upon the petitioner by the 2nd respondent dated 18.07.2008 in the disciplinary proceedings initiated against her as confirmed by the appellate authority and to quash the same with all consequential monetary and service benefits and by treating the period of suspension as duty period.
2. The brief facts which are relevant for consideration herein are :
While the petitioner was working in the office of 2nd respondent as Selection Grade Assistant in the purchase section, she was on 02.11.2007 transferred to sales counter. The petitioner has in compliance with the transfer order handed over her charge as SGA in the purchase section to one Madavan Pillai who assumed her seat and she reported for duty at the sales counter on 05.12.2007. In the meanwhile, she approached the Tours Manager in-charge in this regard. The Manager Tours, according to the petitioner has after having discussed the issue with the Managing Director/2nd respondent in the presence of the General Manager (Finance) and Company Secretary endorsed in the joining report to maintain status quo as on date before the order of transfer. When the petitioner approached the Manager (Administration) with the joining report having such endorsement he did not consider the same and with ulterior motive not allowed her to join the post in the sales counter.
3. As a result, she was compelled to send a representation on 10.12.2007 to the 2nd respondent to take suitable action in this regard. Pending consideration of the same by the 2nd respondent she returned to purchase section from where she was transferred. While so, the petitioner was suspended on 13.12.2008 pending enquiry into certain charges and the same is followed by issuance of charge memo on 07.01.2008. The petitioner has on receipt of the charge memo submitted her detailed explanation. But the management not convinced with the same initiated departmental enquiry. The same was commenced on 15.01.2008 on which date the petitioner sought for in writing for production of certain documents and witnesses, with further request to hold the enquiry at head office instead of at Island ground to make it convenient for her to bring her witnesses. However the enquiry was conducted only in Island ground and she could not bring all the witnesses from the head office and the enquiry was proceeded with and completed and the enquiry report holding the charges 1,2,3 and 5 to be proved and charge No.4 to be not proved and the same is also communicated to the petitioner on 11.07.2008 and the same was followed by the final order dated 18.07.2008 passed by the 2nd respondent imposing punishment upon the petitioner. Aggrieved against the same the petitioner preferred an appeal before the Chairman representing the Board of Directors and the appeal is also rejected by the Board consisting of the respondents 1 and 2 as the Chairman and one of its members. The correctness and validity of the order passed by the original authority as confirmed by the appellate authority is seriously challenged in this writ petition.
4. The learned counsel for the petitioner has seriously argued that the enquiry is not conducted in fair and proper manner and the petitioner was deprived of her opportunity to effectively defend her case in the same for want of documents and due to her inability to produce the witnesses from the head office to island ground where the enquriy is held. It is further argued by the learned counsel for the petitioner that the findings of the enquiry officer as confirmed by the disciplinary authority and the appellate authority are apparently erroneous on the face of the records and the outcome of total non application of mind. The disciplinary authority has also while disagreeing with the finding of the enquiry officer with regard to charge No.4 by holding it as proved against the petitioner without following well laid down legal procedure by sending due notice to the petitioner with reasons for his tentative conclusion so arrived it against the petitioner and by giving her opportunity to be heard and such failure amounts to violation of the principles of natural justice. The order of the appellate authority confirming the order of the disciplinary authority is also not based on any discussion on merits and is passed without application of mind that too by totally non speaking order. Further the action of the disciplinary authority in confirming his own order in his capacity as one of the members of Board who is the competent and statutory appellate authority is also perse illegal without jurisdiction and opposed to public policy.
5. Per contra, the learned standing counsel for the respondents 1 and 2 would strenuously attempt to justify the action of the respondents 1 and 2 in imposing and confirming the punishment upon the petitioner respectively.
6. I have heard and considered the rival submissions made on both sides and perused the materials available herein.
7. The petitioner was under the charge memo dated 07.01.2008 served with 5 charges all arising out of the order of transfer dated 02.11.2007 issued by the 2nd respondent thereby transferring her from purchase section to sales section. The five charge are (1) the delinquent officer had even after the transfer remained in her seat from where she was transferred thereby causing interference to her successor in office from discharging his duties (2) she used un-parliamentary words against the Manager (Administration), Assistant Manager (House keeping) at 10.15am on 14.12.2007 (3) she left the office on 2.00 pm on 11.12.2007 without permission of the competent authority (4) she made false statement to the representative of the Bata company as if the file relating to the settlement of bill is lying on the table of Manager (administration) (5) she did not keep the files inside the cupboard and failed to give the details of handing over of the files to record section in spite of repeated requests from the Assistant Manager (house keeping) and also shouted very badly.
8. The petitioner has in her representation dated 03.12.2008 explained in detail as to how she is innocent of all the charges levelled against her. She has also by her letter dated 15.05.2008 sought production of certain documents and permission to examine certain witnesses and to change the venue of the enquiry and on the failure of the department to respond to the same did not attend the enquiry but the enquiry officer proceeded with the enquiry and completed it and filed the enquriy report holding the charges 1, 2, 3 and 5 to be proved against her and holding charge 4 as not proved.
9. The disciplinary authority has on receipt of the findings of the enquiry officer dated 26.06.2008 communicated the copy of the same to the petitioner through memo dated 01.07.2008 and thereafter proceeded to pass the impugned order on 18.07.2008 in and under which the 2nd respondent who is the disciplinary authority has held all the 5 charges to be proved against the delinquent and the delinquent misbehaved with officials and on basis of the such conclusion imposed punishment by down grading her to Junior Assistant in the scale of pay of Rs.3,200.
10. The petitioner has in this writ petition not only challenged the findings rendered by the enquiry officer in respect of charges 1, 2, 3 and 5 but also questioned the correctness of the procedure followed by the disciplinary authority in differing with the view of enquiry officer in respect of charge No.4 and the manner in which the punishment imposed by the disciplinary authority is confirmed by the appellate authority.
11. Before going into the legally of the order passed by the 2nd respondent/disciplinary authority the first aspect to be considered is the grievance raised by the petitioner against the manner in which the enquiry is conducted by the enquiry officer. It is represented on behalf of the petitioner that she was not given any reasonable opportunity to get the copies of the documents relevant for proving her innocence and she was not provided with congenial enquiry venue to produce the witnesses from the Head office. It is her definite case that as the enquiry was held in island ground instead of head office, the witnesses could not be brought there and the request to change the venue was not responded and the failure to produce the witnesses amounts to denial of effective opportunity to the petitioner to defend her case which in turn amounts to violation of principles of natural justice.
12. This court finds some bonafide in the contention so raised on the side of the petitioner. The petitioner has in her representation dated 15.05.2008 given the particulars of the document required and witnesses sought to be examined on her side. Though, the receipt of such representation in writing is not denied on the side of the enquiry officer/Management no serious consideration is given to the same, and it was not duly responded one way or other. But the enquiry officer proceeded with further enquiry despite this notice and it is postponed to next hearing at the same island ground and the petitioner has not admittedly attended the hearing resulting in the exparte enquiry report dated 27.06.2008.
13. As rightly argued by the learned counsel for the petitioner such indifferent attitude adopted by the enquiry officer, in not properly responding to her reasonable request and in proceeding further with the enquiry in her absence amounts to denial of proper opportunity to the petitioner as held by the Hon'ble Supreme Court in the judgment reported in 2001 (1) SCC 182 Kumaon Mandal Vikas Nigam ltd Vs. Girja Shankar Pant and others and the same vitiates the enquiry proceedings and outcome of such enquiry proceedings ie., enquiry report.
14. The enquiry officer conducted ex-parte enquiry and found four charges out of five charges to be proved against the delinquent officer and the report was forwarded to the 2nd respondent who is the disciplinary authority who received the same on 27.06.2008 and the same was intimated to the delinquent officer by memo dated 01.07.2008 the copy of which is not enclosed herein. However, the 2nd respondent/disciplinary authority has passed the final order on 18.07.2008 and the final order proceeds to say that as per the enquiry report all the five charges are proved and the charges, explanation of the delinquent and findings of the enquiry officer have been examined and five charges are proved and the delinquent mis-behaved with the officials and not obeyed the official procedure and is hence downgraded to the post of Assistant in the pay scale of Rs.3200/-.
15. As rightly pointed out by the learned counsel for the petitioner when the report of the enquiry officer is to the effect that four charges out of five charges are proved, the conclusion of the disciplinary authority that all the five charges are held to be proved amounts to either totally non application of mind or amounts to disagreeing with the views of the enquiry officer in respect of the particular charge (charge No.4) which is held to be not proved by the enquiry officer. The perusal of order dated 18.07.2008 would further reveal that what is issued to the petitioner on 01.07.2008 after the enquiry officer report is received by the disciplinary authority is only a memo without containing any tentative reason for the conclusion arrived at by the disciplinary authority for disagreeing with the finding of the enquiry officer in respect of charge No.4 and no further notice calling for explanation and further opportunity and hearing is given to the delinquent officer to enable him to persuade the disciplinary authority to accept the finding of the enquiry office in respect of the particular charge. The order of the 2nd respondent dated 18.07.2008 does not disclose application of mind of the disciplinary authority into the relevant records and does not contain any discussion on reason as to why and how the findings of the enquiry officer in respect of proven charges is acceptable and in respect of other charge not proved is not acceptable. Though the final order appears to be solely based on the findings of the enquiry officer the 2nd respondent has even while doing so not properly considered the same and omitted to note that one of the charges is held to be not proved. That being the manner in which order dated 18.07.2008 came to be passed without application of mind, without giving independent reasons, without independent discussion, without following the procedure, without giving the delinquent officer further opportunity and further hearing to have her say the same cannot be allowed to stand as the same is contrary to the principles of reasonableness and principles of natural justice and is totally in disregard of the well laid down legal procedure as held by the Supreme Court in the judgment reported in 1993 (4) SCC 727 in Managing Director, ECI, Hyderabad Vs. B.Karunakaran and others and 2010 (5) MLJ 265 V.Baskaran Vs. Directorate of Collegiate Education. In both the cases the Supreme Court and our High Court have held the order passed by the disciplinary authority without mandatory notice intimating the delinquent that he is disagreeing with the findings of the enquiry officer as perse illegal.
16. The petitioner has aggrieved against the order of the disciplinary authority preferred statutory appeal through proper channel, and the delinquent officer has in her appeal pointed out so many violation in the matter of conducting enquiry which is according to her is gross violation of the principles of natural justices, she has also raised allegations against certain officers at whose instance according to her either the charges are framed or held to be proved. The statutory appeal is submitted to the statutory appellate authority i.e, Board consisting of Board of Directors constituted as per Article 64 of Memorandum of Association and Articles of Association, Tamil Nadu Tourism Development Corporation Limited and the total number of Board of Directors is more than 10 one among whom is the Managing Director, Tamil Nadu Tourism Development Corporation Limited arrayed as the 2nd respondent herein during relevant point of time as represented by the learned counsel for the respondent.
17.The perusal of records would reveal that the Managing Director of Tamil Nadu Tourism Development Corporation Limited during the relevant point of time was one Thiru.Rajaram who was also the disciplinary authority who passed the final order dated 18.07.2008 which is referred to and discussed above. The same Managing Director by name Rajaram has passed the final order dated 18.02.2009, thereby rejecting the statutory appeal filed by the delinquent officer. It is sought to be explained by the learned standing counsel for the respondents that though the author of the first order and the appellate order is one and the same, the same are passed in two different capacity one as the disciplinary authority and other as the appellate authority, such argument is neither sound nor convincing.
18.In my considered view, the disciplinary authority though happened to be one of the directors in the appellate board ought to have rescued himself from participating in the appeal proceedings, whereas the disciplinary authority has himself passed the final order in the appeal and is also trying to justify the same by saying the other order is passed in different capacity. As a matter of fact, no sufficient record is produced before this court to prove that the impugned order dated 18.02.2009 is the outcome of the discussion of the entire records relating to enquiry proceedings commencing from the complaint in the charge sheet, explanation of the delinquent officer, records relating to enquiry proceedings and enquiry report, 2nd show cause notice further explanation and order of the disciplinary authority and memorandum of appeal grounds etc., and the conclusion which is reflected in the order is in consonance of the finding arrived at by all or majority of the Board of Directors and the same is by way of impugned order signed and communicated by the 2nd respondent in his capacity as one of the Board of Directors. Though the minutes of the Meeting of the Board is produced herein in this regard the same does not reveal the disposal of the appeal by the appellate authority Board in the manner as discussed above. Even the impugned order does not reflect the independent application of the mind of the appellate authority into all records relating to the grounds of appeal raised by the delinquent officer. The Board has contrary to what is alleged by the delinquent officer observed that all the material witnesses were examined in the presence of the delinquent and due opportunity was given to the delinquent officer to cross examine the witnesses and the enquiry officer has held four charges to be proved as no fresh ground or evidence is given in the appeal.
19.As rightly argued by the learned counsel for the petitioner, the order dated 18.7.2008 is liable to be set aside on the sole ground that the author of both the orders impugned herein are one and the same and the orders are the out come of totally non application of mind, which renders the same to be vitiated as unfair, arbitrary and biased and is liable to be quashed.
20.In the result, the enquiry report and the impugned orders dated 18.07.2008 and 18.2.2009 passed by the second respondent in the capacity of Original disciplinary authority and Appellate Authority are quashed. However, liberty is given to the disciplinary authority to conduct fresh enquiry in respect of the charges framed against her after giving due opportunity to the petitioner to defend her case.
21.The writ petition is accordingly ordered. No costs.
2.11.2010 Index : Yes/No Internet :Yes/No tsh To
1. The Chairman Tamil Nadu Tourism Development Corporation Ltd., Tourism Complex, No.2, Wallajah Raod, (Adjacent to Kalaivanar Arangam) Chennai-2
2. The Managing Director, Tamil Nadu Tourism Development Corporation Ltd., Tourism Complex, No.2, Wallajah Raod, (Adjacent to Kalaivanar Arangam) Chennai-2.
K.B.K. VASUKI, J tsh W.P.No. 11253 of 2009 2.11.2010.