Madras High Court
M.Shahul Hameed vs The Managing Director on 12 May, 2011
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.05.2011 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.5201 of 2004 M.Shahul Hameed ... Petitioner vs. 1. The Managing Director, Tamil Nadu Industrial Investment Corporation Ltd., 473, Anna Salai, Nandanam, Chennai 600 035. 2. The Chairman, Board of Directors, The Tamil Nadu Industrial Investment Corporation Ltd., 473, Anna Salai, Nandanam, Chennai 600 035. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for and examining the entire records relating to and connected with the proceedings of the first respondent herein resulting in his order in Proceedings No.Admn/DW/2000-2001 dated 21.03.2001 as confirmed by the order of the second respondent herein dated 18.11.2002 in the proceedings in TIIC/Admn/DW/2002-03, to quash the same and directing the respondents to reinstate the petitioner into service with all benefits and privileges which he would have been entitled to but for the impugned orders. For Petitioner : Mr.Balan Haridoss for Mr.S.M.Hameed Mohideen For Respondents : Mrs.Rita Chandrasekaran for M/s.Aiyar & Dolia ORDER
Heard Mr.Balan Haridoss, learned counsel appearing for Mr.S.M.Hameed Mohideen, learned counsel for the petitioner and Mrs.Rita Chandrasekaran, learned counsel appearing for the respondents.
2. Challenging the proceedings of the first respondent herein, dated 21.03.2001 as confirmed by the order of the second respondent dated 18.11.2002, the petitioner has filed this writ petition seeking to quash the same and for a direction to the respondents to reinstate him into service with all benefits and privileges which he would have been entitled to but for the impugned orders.
3. The facts of the case as put forth by the petitioner in the affidavit would run thus :
(i) About a year and a half after the completion of his education, the petitioner was appointed as a Junior Clerk in Tamil Nadu Industrial Investment Corporation (TIIC) Ltd. by the 1st respondent herein, by his order dated 20.03.1972. Subsequently, he was promoted as Senior Clerk and later as Staff Assistant Superintendent and thereafter as Officer-Finance. For about 10 years since 1977, the petitioner has been the Treasurer of the TIIC Employees' Association. In the year 1980, he became the Director of TIIC Employees' Co-operative Societies and its President sometime later.
(ii) While so, the Managing Director of TIIC, by his order dated 28.10.1998 placed the petitioner under suspension stated to be in contemplation of enquiry into grave charges purportedly under Rule 6.18 of the Service Rules of the Corporation. Nearly, nine months thereafter, the Managing Director served a Charge Memo dated 06.07.1999 on the petitioner running to several pages, calling upon him to offer his explanation within 15 days from the date of receipt thereof. On 27.12.1999, the petitioner submitted his explanation to the 24 charges. Almost, all the charges relate to a loan sanctioned and partly disbursed to a borrower of the TIIC by name 'Sri Sakthi Studio', a partnership firm. On 08.11.1995, the said firm made an application to TIIC asking for sanctioning of loan to the extent of Rs.60 lakhs for the purchase of machinery to be installed at its premises at No.3066, 13th Main Road, Anna Nagar, Chennai 600 040. According to the Charge Memo, Mr.D.Karunanidhi, Manager, the petitioner (Officer-Finance), Mr.D.Baskaran (Officer-Finance) and Mrs.B.Maragatham (Officer-Legal) were guilty of lapses.
(iii) According to the petitioner, the Charge Memo would show that he had no direct role to play in the processing and sanctioning of the loan. The loan was sanctioned to the said firm on it having placed as security its immovable properties. The properties were inspected by a qualified Civil Engineer, who was TIIC's Panel Valuer. The Civil Engineer assessed the value of the properties after taking into account the nature of the properties, the extent thereof and its location and submitted a report. The documents relating to the properties including the deeds of title were scrutinised by the legal department of TIIC and the opinion of the TIIC's legal adviser was obtained. After following all the formalities, the owner of the properties was called upon by the Legal Department of TIIC to execute a deed of mortgage in favour of TIIC. Until that stage, it was the Branch Office headed by the Bank Manager which had been directly dealing with matters relating to the documentation as a sequel to the sanctioning of the loan by the Head Office. The file relating to the loan transaction was passed on to the Branch Manager for disbursement of the amount already sanctioned by the Head Office to the borrower.
(iv) The Branch Manager of TIIC, on receipt of the file, passed it to the petitioner, who is the Disbursement Officer. Being the Disbursement Officer in the Branch Office, the petitioner was obliged to merely carry out the instructions of the Branch Manager. At a later stage, one of the properties was found to be measuring only 39 cents and not 10 acres 39 cents as it was believed to be. Another item was found to be measuring only 18 cents and not 10 acres 18 cents as it was believed to be. The value of the two items was found to be much less than what had been given by the panel valuer.
(v) The petitioner would further state that charges 1 to 6 relate to the extent of the properties and the value thereof and that he is in no way responsible for either the ascertainment of the extent of the properties or the assessment of the value thereof. He would state that he did not cause pecuniary loss to TIIC and what was disbursed by him was only Rs.10 lakhs out of the sanctioned amount of Rs.60 lakhs and it was long after the disbursal of Rs.10 lakhs to the borrower that the extent and worth of the properties being much less than what were believed to be were deducted.
(vi) It is the further submission of the petitioner that he had never been associated with the (a) officer-in-charge of sanctioning of the loan (b) the panel valuer who after making a local inspection submitted his report (c) the panel lawyer who scrutinised the documents and offered his legal opinion and (d) the legal officer of TIIC who got a mortgage deed executed by the borrower in respect of his properties in favour of TIIC. The Managing Director after going through the petitioner's explanation, absolved him of the said charges and the 2nd respondent herein, the Appellate Authority had held the petitioner guilty of the same.
(vii) According to the petitioner, charges 8 and 9 relate to the handing over of the cheque drawn in the name of the equipment supplier to the borrower instead of sending the same to the equipment dealer and that giving of the cheque to the borrower is not a serious irregularity because the cheque is drawn in favour of the supplier and the borrower was expected to deliver it to the supplier in due course. It was only the instructions of the TIIC contained in its circular issued in February 1998 followed by its subsequent circular dated 29.01.2002 that were actually followed and instead of absolving him of the said charges, punishment was inflicted on him as having been guilty of the same.
(viii) It is his further submission that charges 10 to 18 relate to the procedure followed by the equipment dealer M/s.Telescreen Communications Private Limited and its Managing Director and that Charge No.7 is to the effect that the petitioner submitted a note for the change of supplier to the Executive Director suggesting the name of M/s.Telescreen Communications Pvt. Ltd. and sought later the approval of the Executive Director. Charges 19 and 20 relate to allegations that the petitioner submitted a false report as to the supply of the machinery by the supplier to the borrower even before the encashment of the cheques issued by the borrower to the supplier and that he failed to find out the exact whereabouts of the machinery. Charge No.21 is to the effect that notices sent by the Tahsildar to the borrower were returned unserved and that he failed to take appropriate action after knowing about the return of the notices. Charge No.22 is to the effect that he failed to take action against the borrower and Charge No.23 is a vague charge which says that he in furtherance of a conspiracy to defraud the Corporation hatched a plan with Mr.Karunanidhi and Mr.Baskar. Charge No.24 is also a vague charge as it accuses the petitioner of having violated the Service Rules of the Corporation.
(ix) The petitioner has further stated that one Mr.K.Subash, the then General Manager of TIIC who was nominated as the enquiry officer, conducted the enquiry and none was allowed to be engaged by him to defend him. Even though the petitioner sought the permission of the Enquiry Officer to engage Mr.A.Mohan, the then Assistant Manager to represent him in the proceedings, permission was denied and no oral evidence was let-in in support of the charges against the petitioner. On 30.08.2000, the Enquiry Officer made his report holding the petitioner guilty of all the charges, except Charge No.7. The Managing Director, who was the Disciplinary Authority accepted the petitioner's explanation only in respect of Charges 1 to 7 and held him not guilty of the same. The disciplinary authority, however held that the other charges against the petitioner were proved. By his order dated 21.03.2001, the Disciplinary Authority has held that he concurred with the findings of the Enquiry Officer in respect of charges 8 to 24 as proved and concluded that in his opinion, the petitioner deserved to be severely punished. Ultimately, the petitioner was removed from the services of the Corporation. Aggrieved by the said order of the Disciplinary authority, the petitioner preferred an appeal to the Board of Directors on 09.05.2001. The Board of Directors, without independently appraising the facts and circumstances of the case and the evidence on record, concurred with the findings of the Disciplinary Authority and passed final orders on 18.11.2002 holding that even charges 1 to 7, which were held to be not proved by the Disciplinary authority, are proved against the petitioner.
(x) The petitioner would state that along with him, three other persons namely, (i) Mr.D.Karunanidhi, Branch Manager (ii) Mr.M.P.Rajkumar, Officer-Finance and (iii) Mrs.S.Mohana, Officer-Finance were allegedly involved in the alleged irregularities. Orders were passed by the Disciplinary Authority in the case of Mr.Karunanidhi and in the case of Mrs.Mohana on 29.08.2000 and in the case of the petitioner and Mr.M.P.Rajkumar on 21.03.2001. Mr.Karunanidhi was dismissed from service while Mrs.Mohana was just demoted and retained in service. So also, the petitioner was removed from service and Mr.M.P.Rajkumar was just demoted and retained in service. According to the petitioner, the impugned orders are contrary to law and vitiated by material irregularities and hence, this writ petition.
4. In the counter filed by the respondents, it is stated that Tamil Nadu Industrial Investment Corporation (TIIC) Ltd. is sponsored by the State of Tamil Nadu and was established with the object of extending financial assistance to various entrepreneurs in the State of Tamil Nadu and for development of industries in the State. It obtains refinancing facility from apex financial institutions namely, IDBI and SIDBI and lends to entrepreneurs at reasonable rate of interest and deals in crores of rupees of public money every year.
4a. On random check up of certain files (11 files) at Chennai (North) Branch Office, it was found that the petitioner had committed serious lapses/irregularities in 5 loan files. Charge Memos were issued in the aforesaid five files. One of the files is M/s.Sri Sakthi Studio, which was sanctioned a Term Loan of Rs.60 lakhs on 12.01.1996 for purchase of equipments to set up a U-matic Studio with post production facilities like dubbing, editing, etc. The petitioner was the Loan Administrative Officer for the above loan and was fully responsible for all the matters connected to the above case allotted to him including disbursement, follow-up, etc. 4b. The gist of irregularities committed by the petitioner in the aforesaid file, as listed by the respondents in the counter, is reiterated hereunder :
(i) As per the terms and conditions of sanction, the borrower concern should offer collateral security to the extent of 100% of the loan amount. The borrower at the time of submitting loan application had proposed to offer a plot at Velachery having then market value of Rs.100 lakhs with land area extending 80 cents in the name of Tmt.Shyamalakumari. Subsequently, the promoter proposed 6 acres of land owned by Tmt.Valliammal at Kelambakkam Village, Arakonnam Taluk, which was valued at Rs.60 lakhs by VAO. But, without any reason or justification, the following properties were accepted as collateral security.
(a) The landed property in Survey No.377/7, extending 10.39 acres of land at Kolathur Village, Sriperumbudur Taluk, Chengalpet District, owned by Thiru Palani Naicker.
(b) The landed property in Survey No.374/1, extending 10.18 acres of land at Kolathur Village, Sriperumbudur Taluk, Chengalpet District owned by Thiru P.M.Sampath.
The above properties were valued by the panel valuer Thiru T.B.Ranganathan, on 23.09.1996 by adopting sq. ft. Rate (for the agriculture land) as under :
S.No. Extent Rate/ sq. ft.
Guideline value Market value 1 10.39 acres (4,52,588 sq.ft.) Rs.3.70 16,74,576/-
-
210.18 acres (4,43,441 sq.ft.) Rs.6.50 28,82,367/-
-
Thiru T.B.Ranganathan, had not furnished the market value of the property. The petitioner did not clarify with the panel valuer as to why he did not furnish the market value. The said property were accepted as collateral security without assessing the market value of the property by accepting the boosted value of the panel valuer in terms of sq. ft. Instead of acreage rate which is applicable to agriculture land.
(ii) The collateral property is situated at Kolathur, Sriperumbudur Taluk, which comes under the jurisdiction of the Chengalpet (East) Branch of the Corporation. The Branch had failed to call for valuation from Chengalpet (East) Branch of the Corporation violating Circular No.Project/02/87/92-93 dated 05.11.1993 in order to conceal the real value of the property which would hamper the fulfillment of the collateral security clause resulting in non-disbursement of the loan amount.
(iii) As per Circular No.Project/94-95/190, dated 22.08.1994, if the collateral security is only land the Branch might dispense with the valuation of the land by the panel valuer and the valuation might be done only by the officials of the Corporation. But the property was not valued by the petitioner in violation of the aforesaid circular. He intentionally failed to value the property in order to conceal the real facts viz. extension of the property and the property were already sold by the collateral owner even before the mortgage created in favour of the respondent. Hence, there is no collateral security for the loan sanctioned to M/s.Sri Sakthi Studio.
(iv) The Head Office had approved the machinery supplier M/s.Broadcast Equipment Private Ltd. Chennai 4 for supply of the machinery to the borrower. The petitioner had put up the note for change of machinery supplier from M/s.Broadcast Equipment (P) Ltd., to M/s.Telescreen Communications Pvt. Ltd. This note was approved by the then Executive Director (who had no such power) subject to the condition that necessary evidence should be produced for the import of the machinery from M/s.Sony by M/s.Telescreen Communications (P) Ltd., and that the equipments mortgaged should be brand new and that evidence should be furnished for the duty paid. However, this note was not approved by the then Chairman and Managing Director as per the norms of our Corporation.
(v) The petitioner had handed over the margin money cheques of Rs.28.00 lakhs to the borrower himself instead of sending the same to the supplier directly by RPAD violating the norms of the Corporation. Further, the petitioner failed to verify whether the margin money cheques drawn in favour of the machinery supplier were realized or not before disbursement of the loan amount.
(vi) The petitioner accepted the receipts of M/s.Telescreen Communications (P) Ltd. for the borrower's margin money which were bogus since the margin money cheques were not at all presented for enchashment.
(vii) The petitioner failed to note that the invoices for Rs.41,97,489.60 and for Rs.28,08,181/- of M/s. Telescreen Communications P Ltd., were having one and the same invoice number and date and the invoice for Rs.41,97,489.60 was only a xerox copy of the invoice for Rs.28,08,181/- except for the change in figures.
(viii) The petitioner failed to apply his mind as to how Thiru.Ravichandran, the Managing Director of the machinery supplier company could sign in the invoices both at Chennai and Hyderabad on the very same day.
(ix) The petitioner accepted the invoice No.SC/002/96-97 dt, 05.07.96 which was stated as second sale and no sales tax was charged, while the supplier M/s. Telescreen Communications P Ltd., is a sole distributor of M/s. Pinnacle System, USA in India and they have to necessarily charge sales tax, it being the first sales in India.
(x) The petitioner accepted the xerox of the bill of entry which was not in the name of the supplier M/s. Telescreen Communications P Ltd and the bill of entry showed that the Video Recorder was imported from USA and not from M/s.SONY Corporation of Hongkong Ltd.
(xi) The petitioner failed to obtain a copy of the original documents from the local dealer to ensure that the machinery/equipments purchased were brand new and that the price was paid.
(xii) The petitioner furnished false inspection reports as if the machinery were available at Numgambakkam and Anna Nagar while the margin money cheques were not encashed by the supplier and the invoices were fake.
(xiii) It is found that the then Branch Manager and the petitioner had issued a notice on 21.5.97 to the owners of the collateral security. But the notice was returned to the Corporation as unserved. The postal department had made an endorsement in the aforesaid cover that there was no such person in the address. It is also found that the VAO, Kolathur Village had furnished a copy of the Field Measurement book and copy of the Chitta and Adangal extract in respect of the properties in S.Nos.377/77 and 374/1, Kolathur village. On perusal of the aforesaid Revenue Records, it is found that the land in S.No.377/77 consists of only 39 cents and the land in S.No.374/1 consists of only 18 cents and that the borrower had manipulated the sale deed dt. 20.05.81 by adding the digit "1" before 0.39 cents so as to give an impression that the extent of land was 10.30 acres and similarly in the sale deed dated 17.05.1980, by adding 1 before 0.18 cents so as to give the impression that the extent of the land was 10.18 acres. Even after the fraud committed by the borrower was brought to the notice of the petitioner, the petitioner did not take any steps against the borrower or the property owners.
4c. Concealing the above facts, the petitioner issued a letter dated 05.08.1997 to one of the partners of the concern requesting him to install the machinery at any place and arrange for inspection of the unit. When the fraud committed by the borrower was brought to the petitioner's knowledge, the petitioner ignored the fraud and failed to lodge criminal complaint against the borrower and the collateral owner. The petitioner had not even indicated the fraud committed by the borrower in the letter 05.08.1997. The fraud committed by the mortgagor and the borrower could have been avoided, if the petitioner had inspected and valued the property as per Circular No.Project/94-95/190, dt.22.08.1994 or if the petitioner had referred the same to Chengalpet(East) Branch Office within whose jurisdiction the property is situated as per circular No.Project/02-87/92-93 dt. 05.11.1993. It is also found that the property had already been sold to various persons before mortgaging the same to the Corporation.
4d. The petitioner had not submitted his explanation in time as stipulated in the charge memo. Hence, the Enquiry Officer was appointed by the respondent to conduct a detailed enquiry about the charges framed against the petitioner. An enquiry was conducted in a fair manner, giving him a chance to defend his case. After going through the enquiry, the Enquiry Officer has submitted his report finding that 23 charges out of 24 charges levelled against the petitioner were proved. By way of giving an opportunity to the petitioner, a copy of the Enquiry Officer's report was sent to the petitioner for his representation. The petitioner gave his representation vide his letter dated 13.09.2000.
4e. After going through the entire records, the Disciplinary Authority in his order vide proceedings No.Admn/DW/200-2001 dt. 21.03.2001 had concurred with the findings of the Enquiry Officer in respect of charge Nos.8 to 24 as "proved" and also concurred in respect of charge No.7 as 'not proved'. The Disciplinary Authority ordered that the petitioner be removed from the service of the Corporation under Rule 6.15 of the Service Rules of the Corporation. Aggrieved by the order of removal from service, the petitioner filed an appeal on 09.05.2001 to the Board of Directors, the Appellate Authority.
4f. The Board, at its meeting held on 31.01.2002 considered the charge memo, explanation of the petitioner, Enquiry proceedings, report of the Enquiry Officer, connected records, the order of the Disciplinary Authority and the appeal of the petitioner dated 9.5.2001, in detail and was of the opinion that very grave irregularities/lapses such as handing over the cheques drawn by the borrower to the borrower himself instead of directly sending the same to the machinery supplier by RPAD so as to enable the borrower to keep the cheques himself to avail the loan without borrower's margin money; recommending for disbursement of the loan based on the bogus and fabricated documents; releasing the loan; failing to take action against the borrower/mortgagor; furnishing false inspection report as if the machinery were purchased by the borrower while invoices and bill of entry were bogus, etc. were the core of the charge memo. The borrower committed fraud by manipulating the extent of the property by adding "1" in the sale deeds to give the impression that the extent of the land was 10.39 acres and 10.18 acres as against 0.39 acres and 0.18 acres and the original owner of the property already selling the collateral to various persons before mortgaging the same to the Corporation and considering the nature of the charges framed against the petitioner, the petitioner's reply for the charges framed against the petitioner, the report of the Enquiry Officer and the orders of the Disciplinary Authority, the Board was of the opinion that the penalty imposed by the Disciplinary Authority in this case was quite inadequate and that if such mild punishment was imposed for such grave irregularities as in this case, it would encourage the delinquent and other staff of the Corporation to indulge in more such malpractices. The Board was of the view that deterrent punishment was called for since the respondent Corporation is a Financial Institution dealing with public money where the highest integrity is expected from the employees.
4g. The Board also felt that there should be sufficient safeguards to prevent recurrence of such malpractices in the Corporation. The Board, therefore, after noting the manner in which the irregularities were committed and the amounts involved, decided that the punishment awarded might have to be enhanced in this case. Hence, the Appellate Authority issued a show cause notice dated 15.02.2002 informing the petitioner to submit an explanation as to why the punishment already awarded should not be enhanced to dismissal from service. On receipt of the show cause notice, the petitioner had submitted his explanation on 21.03.2002. While placing the show cause notice and the explanation before the Board of Directors at their meeting held on 13.05.2002, the petitioner was also permitted to appear before the Board for a personal hearing. The petitioner appeared in person before the Board on 13.05.2002 and represented his case. After hearing him at length, the Board of Directors advised the petitioner to submit his explanation in writing. The petitioner submitted his representation vide his letter dated 14.05.2002. The Board of Directors after a detailed discussion concluded that the explanation given by the petitioner was not convincing and resolved to confirm its earlier tentative conclusion to enhance the punishment already awarded to dismissal from service. The Board further resolved that the order of dismissal would take effect from the date of issuance and the decision of the Board was communicated to the petitioner vide proceedings dated 18.11.2002.
4h. According to the respondents, the present writ petition is neither maintainable in law nor on facts. The punishment was awarded to the petitioner only after observing all the principles of natural justice. The petitioner was given a fair chance to defend before the Enquiry Officer. Even before awarding the punishment of removal by the Disciplinary Authority, the petitioner was given a chance to offer his comments to the Enquiry Officer's report and again Board of Directors, being an Appellate Authority had given a chance to defend his case. Hence, when an employee was given all opportunity to refute the charges framed against him, it is not correct for any employee to approach the High Court by filing a Writ petition under Article 226 of the Constitution of India.
5. To the said counter affidavit, the petitioner has filed a reply stating that, as Disbursement Officer in the Branch Office, under pressure, he disbursed Rs.10,00,000/- out of Rs.60,00,000/- as against borrower's part margin money Rs.2,50,000/- to the borrower's equipment dealer M/s.Telescreen Communications P. Ltd., a company situated within 3 kms from the respondent, who happened to be in the panel of suppliers with the respondent and at that time supplied equipments to yet another borrower of the respondent. The said Private Ltd. Company encashed the said amount and the respondent who speaks about 'public money' did not initiate any recovery proceedings to reclaim the said amount. The loan was sanctioned at the head office on 12.01.1996. These variations in collateral security documents came to light only when the borrower neither utilised the balance Rs.50,00,000/- nor repaid Rs.10,00,000/- issued on behalf of the borrower to the said equipment supplier. The petitioner caused a registered notice to the borrower on 05.08.1997. Within 30 days, on 01.09.1997, the petitioner was abruptly transferred and relieved on the same day. The then new Branch Manager Mr.Viswanathan, who relieved the petitioner was none other than the Management representative in his trial, who did not pursue to recover the said money. The petitioner would further submit that neither the equipment supplier M/s.Telescreen Communications (P) Ltd., who was then in respondent's panel of equipment suppliers were examined in the enquiry nor as in other cases 'status report' was obtained from the said equipment supplier deliberately.
6. Mr.Balan Haridoss, learned counsel appearing for the petitioner would strenuously contend that the impugned orders are legally infirmed for the reasons that (i) there is denial of opportunity, as the petitioner's request for engagement of a legal practitioner to defend him at the enquiry has not been considered (ii) they are vitiated for non-examination of relevant witnesses and therefore, it is a case of no evidence (iii) there is a discrimination that when other co-delinquents are given lesser punishment, the petitioner has been imposed with harsh and excessive punishment of removal from service and (iv) the punishment inflicted on the petitioner is disproportionate to the charges levelled against him.
7. In support of his case, learned counsel for the petitioner has relied on the following:
(a) a catena of Supreme Court decisions, relevant paragraphs of which are extracted as under :
(i) 1972 (3) SCC 542 (C.S.Subramaniam vs. Collector of Customs, Cochin) "... From the facts set out above, it is clear that the Enquiry Officer did not afford the appellant necessary facility to have the assistance of another Government servant in defending him which assistance he was entitled to under the rule. He was deprived of that assistance solely because of the indifferent attitude adopted by the Enquiry Officer. Therefore we have no hesitation in coming to the conclusion that the Enquiry Officer had clearly breached rule 15(5).
It is needless to say that rule 15 is a mandatory rule. That rule regulates the guarantee given to Government servants under Art. 311. Government servants by and large have no legal training. At any rate, it is nobody's case that the appellant had legal training. Moreover when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be. The accusation against the appellant threatened his very livelihood. Any adverse verdict against him was bound to be disastrous to him, as it has proved to be. In such a situation he cannot be expected to act calmly and with deliberation. That is why rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another government servant or in appropriate, cases by a legal practitioner. For the reasons mentioned above, we think that there had' been a contravention of rule 15(5). We are also of the opinion that the 'appellant had not been afforded a reasonable opportunity to defend himself. Hence the impugned order is liable to be struck down and it is hereby struck down. The facts of this case are not such as to justify any fresh enquiry against the appellant. Hence we direct that no fresh enquiry shall be held against the appellant and he be restored to the position to which he would have been entitled to but for the impugned order. The appeal is accordingly allowed. The appellant is entitled to his costs from the respondents both in this Court as well as in the High Court."
(ii) 1983 (I) LLJ 1 (The Board of Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni and others) "7. The narrow question which we propose to examine in this appeal is whether where in a disciplinary enquiry by a domestic tribunal, the employer complaining misconduct appoints legally trained person as Presenting-cum- Prosecuting Officer the denial or refusal of a request by the delinquent employee seeking permission to engage a legal practitioner to defend him at the enquiry, would constitute such denial of reasonable opportunity to defend one self and thus violate one of the essential principles of natural justice which would vitiate the enquiry?
10. Even in a domestic enquiry there can be very serious charges and adverse verdict may completely destroy the future of the delinquent employee. The adverse verdict may so stigmatize him that his future would be bleak and his reputation and livelihood would be at stake. Such an enquiry is generally treated as a managerial function and the Enquiry Officer is more often a man of the establishment. Ordinarily he combines the role of a Presenting-cum-Prosecuting Officer and an Enquiry Officer, a Judge and a prosecutor rolled into one. In the past it could be said that there was an informal atmosphere before such a Domestic Tribunal and that strict rules of evidence and pitfalls of procedural law did not hamstring the enquiry by such a Domestic Tribunal. We have moved far away from this stage. The situation is where the employer has on his payrolls labour officers, legal advisers lawyers in the garb of employees and they are appointed Presenting-cum-Prosecuting Officers and the delinquent employee pitted against such legally trained personnel has to defend himself. Now if the rules prescribed for such an enquiry did not place an embargo on the right to the delinquent employee to be represented by a legal practitioner, the matter would be in the discretion of the Enquiry Officer whether looking to the nature of charges, the type of evidence and complex or simple issues that may arise in the course of enquiry, the delinquent employee in order to afford a reasonable opportunity to defend himself should be permitted to appear through a legal practitioner. Why do we say so? Let us recall the nature of enquiry, who held it, where it is held and what is the atmosphere?
Domestic enquiry is claimed to be a managerial function. A man of the establishment dons the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a court presided over by an unbiased judge. The Enquiry Officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action. And a quasi-judicial tribunal cannot view the matter with equanimity on inequality of representation. This Court in M. H. Hoscot v. State of Maharashtra (1978) 3 SCC 544, clearly ruled that in criminal trial where prosecution is in the hands of public prosecutor, accused, for adequate representation, must have legal aid at State cost. This will apply mutatis mutandis to the present situation. We are faced with the situation where when the enquiry commenced the rules neither provided for permitting the delinquent employee to be represented by an advocate nor an embargo was placed on such appearance. The rules were silent on this point. But the Chairman of the appellant while rejecting the request of the first respondent seeking permission to appear through a legal practitioner simultaneously appointed M/s.R.K.Shetty and A. B.Chaudhary, Legal Adviser and Junior Assistant Legal Adviser respectively, in the employment of the appellant as Presenting cum-Prosecuting Officers. What does this signify? The normal inference is that according to the Chairman of the appellant the issues that would arise in the enquiry were such complex issues involving intricate legal propositions that the Enquiry Officer would need the assistance of Presenting-cum Prosecuting Officers. And look at the array of law officers of the appellant appointed for this purpose. Now examine the approach of the Chairman. While he directed two of his law officers to conduct the enquiry as prosecutors, he simultaneously proceeds to deny such legal representation to the delinquent employee when he declined the permission to the first respondent to appear through a legal practitioner. Does this disclose a fair attitude or fair play in action? Can one imagine how the scales were weighted and thereby tilted in favour of the prosecuting officer. In this enquiry the employer would be represented by two legally trained minds at the cost of the Post Trust while the first respondent was asked either to fend for himself in person or have the assistance of another employee such as Nadkarni who is not shown to be a legally trained person but the delinquent employee cannot engage legal practitioner at his cost. Can this ensure a fair enquiry? The answer is not far to seek. Apart from any legal proposition or formulation we would consider this approach as utterly unfair and unjust. More so in absence of rules, the Chairman of the appellant was not precluded from granting a request because the rules did not enact an inhibition. Therefore apart from general propositions, in the facts of this case, this enquiry would be a one sided enquiry weighted against the delinquent officer and would result in denial of reasonable opportunity to defend himself. He was pitted against the two legally trained minds and one has to just view the situation where a person not admitted to the benefits of niceties of law is pitted against two legally trained minds and then asked to fend for himself. In such a situation, it does not require a long argument to convince that the delinquent employee was denied a reasonable opportunity to defend himself and the conclusion arrived at would be in violation of one of the essential principles of natural justice, namely, that a person against whom enquiry is held must be afforded a reasonable opportunity to defend himself.
11. Are we charting a new course ? The answer is obviously in the negative. In C.L. Subarmaniam v. Collector of Customs, Cochin (1972 I L.L.J.465) a Government employee requested the Enquiry Officer to permit him to appear through a legal practitioner and even though a trained public prosecutor was appointed as Presenting Officer, this request was turned down. When the matter reached this Court, it was held that the enquiry was in breach of the principles of natural justice. The order of the domestic tribunal was sought to be sustained on the submission that sub-rule 5 of rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 that "...... the Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits." The submission was that it is a matter within the discretion of the Enquiry Officer whether to grant permission and more so because the relevant rule fetters the claim to appear through a legal practitioner. Negativing this contention, this Court held that the fact that the case against the appellant was being handled by a trained prosecutor was by itself a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against him. This conclusion was recorded after reference to the earlier decisions in Brooke Bond India (Pvt) Ltd. v. Subba Ramman and Anr. and Dunlop Rubber Co. v. Workmen(Supra). Reference was made to Pet's case, referred to earlier, but it is observed that this case has not commended itself to this Court. The earlier cases of this Court were distinguished. In our view we have reached a stage in our onward march to fair play in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated. This view has been taken by a learned Single Judge and while dismissing the appeal in limine approved by the Division Bench of the High Court commends to us. Therefore, this appeal is liable to be dismissed."
(iii ) (2006) 5 SCC 88 (M.V.Bijlani vs. Union of India and others) "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
26. The report of the Enquiry Officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the appellate authority which are based on the said enquiry Report, thus, cannot be sustained. ..."
(iv) 2008 (3) SC 308 (Man Singh vs. State of Haryana & Others) "19. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of 'fair play' and reasonableness. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings.The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the Excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of service."
(v) 2009 (2) SCC 570 (Roop Singh Negi Vs. Punjab National Bank & Ors) "10. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left."
(vi) (2009) 12 SCC 78 (Union of India & Ors v. Gyan Chand Chattar) "21. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the concerned employee. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
35. In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjunctures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct."
(vii) 2010 (2) LLN 581 (Life Insurance Corporation of India and another vs. Ram Pal Singh Bisen) "25. We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law.
26. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.
27. It was the duty of the appellants to have proved documents Exts. A-1 to A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do."
(viii) 2010 (2) SCC 772 (State of Uttar Pradesh and Ors vs. Saroj Kumar Sinha) "28. An inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
(ix) 2010 (5) SCC 783 (State of Uttar Pradesh & Ors vs. Raj Pal Singh) ".... nature of charges levelled against the 5 employees who stood charged on account of the incident that happened on the same day and then the High Court came to the conclusion that since the gravity of charges was the same, it was not open for the disciplinary authority to impose different punishments for different delinquents. The reasonings given by the High Court cannot be faulted with since the State is not able to indicate as to any difference in the delinquency of these employees. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established, to award appropriate punishment. But when the charges are same and indentical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory."
(b) a catena of decisions rendered by this court, relevant portion of the same is extracted below :
(i) a Division Bench judgment reported in 1992 II LLN 811 (Indian Airlines Corporation v. N. Sundaram) "8. The anxiety and vigil of the court must be to keep the balance and not to countenance the bringing in and perpetuation of an imbalance in the conduct of disciplinary proceedings. By any act of the employer, the employee should not be put to disadvantage in the conduct of disciplinary proceedings. That is the cardinal rule that must prevail and guide and there cannot be prosecution of disciplinary proceedings in derogation thereof. In Board of Trustees of Port of Bombay v. Dilipkuma Raghavendranath Nadkarni [1983 I L.L.N. 314] as to the nature of the domestic enquiry and the need to keep the scales even, this is what has been observed in para 10, at page 318:
"....Let us recall the nature of enquiry, who held it, where it is held and what is the atmosphere? Domestic enquiry is claimed to be a managerial function. A man of the establishment dons the robe of a Judge. It is held in the establishment office or a part of it. Can it even be compared to the adjudication by an impartial arbitrator or a court presided over by an unbiased judge? The enquiry officer combines the judge and prosecutor rolled into. one. Witnesses are generally employees of the employer who directs an enquiry into misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and lilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done, but must seem to be done is not an euphemism for courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action.
........
12. Sri. N.G.R. Prasad, learned Counsel for the respondents, would also submit that on account of the petitioner not availing of the services of a legal practitioner, the petitioner did not suffer any prejudice in the course of the conduct of the disciplinary proceedings. Prejudice is not the test to be kept in the forefront to consider as to whether reliefs should follow or not, when there is a violation of the principles of natural justice. The rule is, the very violation of the principles of natural justice is prejudice and nothing more is required to apply the rule and accord the reliefs. In S.L.Kapoor v. Jagmohan [A.I.R 1981 S.C. 136],the proposition has been discussed in the following terms.
"Linked with this question is the question whether the failure to observe natural justice does not at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where oh the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it appears the non-observance of natural justice but because courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however slightly, and penalties are discretionary........
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because courts do not issue futile writs."
The Corporation did have the services of a legally qualified and trained person, who had considerable experience in the conduct of disciplinary proceedings. It is not claimed that either the petitioner or Mr. S. Ramanathan, who assisted the petitioner as a friend, was equal to the Presenting Officer, appointed by the Corporation. How far the petitioner could have achieved the result desired by him, namely, extricating himself from the charges if he had only the assistance of a legal practitioner, we cannot envisage and say. a positive answer one way or the other. It would be unfair to do so also. The fact, indisputable as it is, remains that the petitioner was at a disadvantage in the course of the prosecution of the disciplinary proceedings and the ultimate result went against him. He must be accorded the reliefs. We must record that the question of maintainability of the writ petition was not argued before us. The result of our preceding discussion is, this writ appeal fails and the same is dismissed. No costs."
(ii) yet another Division Bench judgment reported in 2001 (II) LLJ 617 (Kasi M. vs. Management of Indian Bank, Madras and another) "22. Thus, in our view, the contention of the appellant that there was only a procedural lapse and there was no proper conclusion after analysing the matter the appellant has committed misconduct either by the enquiry officer or by the disciplinary and appellate authorities, and the same was not properly submitted before the learned single Judge. As a matter of fact, the appellate authority has not considered the instance of Murugan Trailer as a ground for considering the case of the appellant. The appellate authority has taken into account only the first three charges, of which, the first one relates to granting of O.C.C. to O.K. Exporters and T.O.D. to Book Land and the second charge related to entertainment by Sri K. Panju. All these three charges have been properly explained, but the same was not considered by the appellate authority. Therefore, we are of the view that the disciplinary authority as well as the appellate authority had no evidence to substantiate the charges of misconduct and that they have awarded disproportionate punishment for the alleged charges, assuming they are true, which in our view, are only procedural lapses. Therefore, we are unable to agree with the views expressed by the learned Judge. The impugned orders are liable to be quashed and are accordingly quashed."
(iii) another Division Bench decision reported in 2001 (3) LLN 677 (S.Gnanasambandam vs. Tamil Nadu Cements Corporation, Ltd., Chennai and another) "16. On a reading of the above judgments, the following points shall emerge:
(i) When the Rule provides for the employee to have the assistance of a lawyer, he is entitled to have the assistance of a lawyer as per the Rule;
(ii) When the Rule does not provide for such an assistance of a lawyer, the employee cannot as a matter of right seek for assistance of a lawyer as the grant of permission for assistance of a lawyer to the employee is a matter of discretion of the employer;
(iii) When the Rule is silent as to the assistance of a lawyer/legally trained person for both the employer and the employee and the employer had chosen to appoint a Presenting Officer who is a legally trained person to put forth the case of the employer before the enquiry officer, the same benefit has to be given to the employee to avoid a total imbalance creeping into the conduct of the disciplinary proceedings and to follow the principles of natural justice.
17. Based upon the above principle, coming to the facts of this case, the Presenting Officer, Mr. S. Chandrasekaran is a graduate in law and he has acted as Presenting Officer and enquiry officer in a number of cases. The Rules applicable to the domestic enquiry do not provide any assistance of a lawyer either to the employer or to the employee. However, the employer has chosen to appoint a Presenting Officer who is a legally trained person. The contentions of the learned counsel for the respondents for refusing permission to the petitioner to have the assistance of a lawyer are that the petitioner himself is a Commerce graduate and he has passed A.C. A. and A.C.S. and has served in very many posts in the same Corporation and the Presenting Officer and the petitioner are on the same cadre. Therefore, the petitioner cannot be called as an illiterate to defend his case. When the question of violation of principles of natural justice is pleaded by the petitioner, this Court has to consider as to whether a benefit availed by the employer by appointing a Presenting Officer could be refused to the petitioner on the ground that the petitioner is not an illiterate person. In my view, such a contention cannot be accepted in view of the fact that once the employer had chosen to appoint the Presenting Officer who is a law graduate, it cannot lie in the mouth of the respondents to say that the petitioner is not an illiterate and can defend his case by himself. When the petitioner is pitted against a legally trained person, only consideration is as to whether he is entitled to an assistance of a lawyer or not and not whether the petitioner himself is a trained person to conduct the enquiry. When the petitioner pleaded his inability to defend his case before the enquiry when the employer is represented by the Presenting Officer who is a law graduate, the principles of natural justice requires the request of the petitioner for assistance of a lawyer ought to have been accepted by the respondents. Therefore, I do not accept the contention of the learned Government Pleader that since the petitioner is not an illiterate, he is not entitled to the Assistance of a lawyer in the domestic enquiry and I reject the same.
18. The next submission of the learned Government Pleader is that the charges levelled against the petitioner are very minor in nature namely that the petitioner has refused the office order and therefore for such a minor charge, the petitioner cannot have the assistance of a lawyer and more particularly there are no procedures or documents evidenced to denote the enquiry is of complicated nature. The said argument shall also fall to the ground since in the very show cause notice dated April 20, 2000 the respondent has referred that "refusal to receive the office order is a serious misconduct especially by an officer in a senior position in the organisation." Therefore, the employer itself has considered the charges as serious misconduct; it cannot merely refuse the assistance of a lawyer to the petitioner on the ground that charges levelled against the petitioner are not complicated in nature. The Court has to consider only that the apprehension of the petitioner to defend his case effectively and not the nature of the charges. When prejudice in the conduct of enquiry without assistance of a lawyer is pleaded by the employee on the ground he is pitted against legally trained persons, it must be presumed that principles of natural justice is violated and the nature of the charges loses its significance. Therefore, I do not find any merit in the contention of the learned Government Pleader that the judgments relied upon by the petitioner arose under the relevant standing orders with regard to workmen and in the present case, the petitioner is an officer and governed by service rules and therefore the principles laid in the above judgments may not be applicable to the present case. The said submission cannot be accepted for the simple reason that the law laid down by the Supreme Court is based upon the principles to provide an opportunity to the delinquent when such an employee is pitted against a legally trained person. Such a cardinal principle of law cannot be made applicable only for workmen and could be refused to an officer like the petitioner. Therefore, the said contention of the learned Government Pleader is also rejected. In the judgment relied upon by the learned counsel for the respondents reported in Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union 1999 (1) L.L.N 654, it is true that the Supreme Court has held that there is no right to representation in the departmental proceedings by another person or a lawyer unless the service rules specifically provide for the same. However, in the present case, even in the absence of such rule enabling the employer also to engage a legally trained person to put forth the case of the employer, the employer has chosen to engage a Presenting Officer who is a legally trained person and a law graduate and the officer who has been pitted against such a legally trained person has not been given the benefit of assistance of a lawyer. Therefore, the judgments relied upon by the learned Government Pleader is not applicable to the facts of the present case. This point has been answered in favour of employee by the Supreme Court in the judgments reported in The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, [1983 (1) L.L.N 314], as well as the Division Bench of this Court in Pushpa Iyengar v. Indian Airlines Corporation, [1988 (2) L.L.N. 749].
19. Another judgment relied upon by the learned Government Pleader reported in Cipla Ltd. v. Ripu Daman Bhanot [1999 (2) L.L.N. 1032] relates to a case as per the service rules where the employee is entitled to be represented by a co-employee only and no right is conferred on the employee to be represented by a lawyer in the departmental enquiry. That was a case where the employer has not engaged any legally trained person to prosecute the case of the employer. In the absence of the same, the employee cannot have the assistance of a lawyer more particularly in the absence of a provision to have the assistance of a lawyer in the rules. Therefore, the said judgment also is not applicable to the facts of the present case. In that view of the matter, I do not find any justification in rejecting the request of the petitioner to have the assistance of a lawyer in the domestic enquiry conducted against the petitioner on the basis of the charge memo dated April 20, 2000. Accordingly, I set aside the findings recorded by the enquiry officer dated October 4, 2000 refusing the assistance of a lawyer to the petitioner to defend his case in the domestic enquiry. The respondents are directed to permit the petitioner to have the assistance of a lawyer to defend his case. With the above direction, the Writ Petition No. 17494 of 2000 is allowed."
(iv) a First Bench decision of this court reported in 2005 (2) LLN 853 (Chairman and Managing Director, Hindustan Teleprinters, Ltd., Chennai vs. M.Rajan Isaac) "10. The question still remains is as to whether in the absence of any rule the workman or officer, as the case may be, would be entitled to the assistance of a lawyer when such workman or officer is pitted against a legally trained person. This issue came up for consideration in "C.L. SUBRAMANIAM v. THE COLLECTOR OF CUSTOMS, COCHIN [A.I.R.1972 S.C.2178]. While considering the grievance of the appellant therein that his request for assistance of a lawyer was rejected even when he was pitted against a legally trained prosecutor, the Supreme Court has observed as follows:
"The grounds urged by the appellant in support of his request for permission to engage a legal practitioner were by no means irrelevant. The fact that the case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighed against him. The Disciplinary Authority completely ignored that circumstance. Therefore, that authority clearly failed to exercise the power conferred on it under the rule. It is not unlikely that the Disciplinary Authority's refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself."
The said observation was made by the Supreme Court taking into consideration the fact as to whether the officer was given a reasonable opportunity to defend himself in accordance with sub-rule (5) of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 which provided that the government servant may not engage a legal practitioner for the purpose mentioned in that clause unless the disciplinary authority having regard to the circumstances of the case so permits. The Supreme Court while distinguishing the law laid down in Kalindi's case [A.I.R.1960 S.C. 914] Brooke Bond India (Private) Ltd. case and in Dunlop Rubber Co. Ltd. case [A.I.R.1965 S.C.1392],has held in paragraph 17 as follows:-
"The learned counsel for the State relied on the decisions mentioned above in support of his contention that the appellant was not entitled to have the assistance of a legal practitioner. This contention is without force. In those cases this Court considered whether a person proceeded against in an enquiry before a domestic tribunal had a right to be represented by someone else on the basis of the principles of natural justice. Therein this Court was not called upon to consider either the limits of the reasonable opportunity to defend oneself, guaranteed under Article 311 or the scope of a statutory rule. The question that falls for decision in this case did not arise for decision in those cases."
11. A similar question came up for consideration in the "BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. DILIPKUMAR RAGHAVENDRANATH NADKARNI[1983 (1) L.L.N.314], Regulation 12(8) of the Bombay Port Trust Employees' Regulations, 1976, which was put in issue before the Supreme Court, reads as under, in para 3, at pages 316 and 317:
"The employee may take the assistance of any other employee or, if the employee is a Class III or a Class IV employee, of an 'Office Bearer' as defined in clause (d) of Section 2 of the Trade Unions Act, 1926 (16 of 1926) of the union to which he belongs, to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the said Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits."
While considering the scope of the rule imposing conditions on the employee to engage a legal practitioner in case the presenting officer appointed by the disciplinary authority is a legal practitioner, the Supreme Court has held as follows:-
"In our view we have reached a stage in our onward march to fair play in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated."
In fact the Supreme Court had further observed as follows:-
"In fact one can go so far as to say that the Enquiry Officer in order to be fair and just, whenever he finds the employer appointing legally trained persons as Presenting-cum-Prosecuting Officers must enquire from the delinquent employee before commencement of enquiry whether he would like to take assistance of a legal practitioner. The option then is with the delinquent employee."
12. The general rule is that in the absence of rules an employee has no right to seek for assistance of a lawyer in the departmental enquiry. Ordinarily the principles of natural justice do not postulate a right to be represented or assisted by a lawyer in the departmental proceedings. But there is an exception and the question would be different if the delinquent officer or the workman, as the case may be, is pitted against a legally trained person in the departmental enquiry and the delinquent officer or the workman is not that much familiar with the legal procedures involved in the departmental enquiry. When a presenting officer is stated to be a man of law, justice would require that the officer or workman who has no legal background is represented through a lawyer. Though the quasi-judicial authorities holding domestic enquiries are not governed by strict and technical rules of evidence, yet they are governed by the rule of equity and natural justice and they must act in fairness. This concept is to ensure that there is no failure of justice. Natural justice is a concept which has succeeded in keeping the arbitrary action in limits and preserving rule of law. In this context, the following observation of Lord Denning M.R. In "C.A. PETT v. GREYHOUND RACING ASSOCIATION LTD. [1968 (2) ALL ER 545] can be usefully referred to.
"Once it is seen that a man has a right to appear by an agent, then I see no reason why that agent should not be a lawyer. It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man:
'You can ask any questions you like'; whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task? I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He has also a right to speak by counsel or solicitor."
It has been held by the Supreme Court in "S.L. KAPOOR v. JAGMOHAN [(1980) 4 S.C.C. 379], that the non observance of principles of natural justice by itself is a prejudice caused.
13. On the above pronouncements of the Supreme Court relating to the issue, the facts of the case in question should be considered. It is the specific case of the respondent that he was pitted against a legally trained person as a presenting officer. Therefore, he has made a request for the assistance of an advocate. The said request was made on the ground that the presenting officer was the Manager (Personnel & Administration) and also holding charge of the post of Chief Vigilance Officer and had put in not less than 20 years of service as Personnel Manager in the private sector undertakings before joining the appellant undertaking and is a degree holder in law. For better appreciation of the stand of the appellant, the relevant portion as stated in paragraph 6 of the affidavit filed in support of the writ petition reads as under:-
"It is therefore a moot point whether or not the presenting officer was trained in the legal discipline. In any event, having put in not less than 20 years of service in the personnel department of private sector undertakings, it cannot be validly claimed that he was not legally trained. Therefore, when I was denied the assistance of an advocate, having been pitted against a legally trained presenting officer it is against all the principles of natural justice. On this ground alone, the whole disciplinary proceeding against me stands vitiated and false and therefore the order of termination passed against me founded on the said enquiry fails."
While meeting this submission, in paragraph 9 of the counter affidavit, it is stated as follows:-
"As regards paras 6 & 7, I submit that all the averments made therein are false and baseless and hence denied. I submit that Rule 31(6) of the CDA Rules of the respondent company provides that an employee may take assistance of any other public servant but may not engage a legal practitioner for the purpose. Hence, the petitioner's request for legal assistance was denied in accordance with the said rule."
14. From the above rival stand, it is clear that the averment of the respondent that the presenting officer was a legally trained person was not denied by the appellant, except saying that the respondent was denied the assistance of a legal practitioner as the rules do not provide for the same. The Supreme Court in "MINTU BHAKTA v. THE STATE OF WEST BENGAL [(1973) 4 SCC 85] has held that "a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation and therefore the allegation remains unanswered and must consequently be accepted in the absence of any cogent reply". In the absence of specific denial, the claim of the respondent that he was pitted against a legally trained person who is familiar with the procedures of the domestic enquiry including the legal consequences thereof should be accepted. In the absence of such expertise by the officer, the denial of assistance of a legally trained person would render the disciplinary proceedings vitiated. We, therefore, agree with the views expressed by the learned single Judge in this regard. Moreover, the learned single Judge has also given liberty to the appellant to proceed further in accordance with law. "
(v) (2010) 1 MLJ 429 (J.Kuppuswamy vs. TNEB, Chennai and another) "18. In the service law jurisprudence, as the comprehensive procedural aspect of every Act, statute, regulation, rule, it is always contemplated that the disciplinary authority, while passing the order, has to indicate in the order that an appeal would lie to so and so authority within a certain period. But, in this case, it was not so done by the disciplinary authority. Therefore, the petitioner was in dilemma. He, however, preferred a review petition within the time, as prescribed under Regulation 14. Whether it is appeal or review, it is the duty of every authority to give good reasons while rejecting the same. In the present case, the review petition had been withheld, stating that it was not filed within the time, construing that it was an appeal. The order of the first respondent is also vitiated, for the reason that in the absence of any direction or indication in the order of the disciplinary authority, it is the duty of the first respondent to look into the review petition filed by the petitioner.
21. When the team work and the finalisation of tender, including the reduction of quantity, were done by the team as per the oral instructions of the Chief Engineer, who had not been examined in this case, the petitioner alone was singled out for the allegation and, therefore, there was a clear discrimination, in violation of Article 14 of the Constitution of India. The authorities had not chosen to proceed against the persons collectively responsible for the incident, but, instead, they targeted the petitioner alone and made him a scapegoat, in order to make someone responsible for the cause. That being so, proceeding only against the petitioner with the charges after 33 years of his clean service and that too, at the fag end and just a few days before his retirement, could only be termed to be for some ulterior motives. This view has been supported by the decision of the Supreme Court in Bongaigaon Refinery & Petrochemicals Ltd. V. Gi rish Chandra Sarma (supra) case, relied upon by the learned counsel for the petitioner."
(vi) 2010 (4) L.L.N 824 (Chairman, Pandyan Grama Bank, Virudhunagar v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court I, Chennai and another) "8. Let me, at the out set, recapitulate the broad principles propounded by the Hon'ble Supreme Court in respect of the nature and standard of proof required in disciplinary proceedings. It is well settled that in a disciplinary proceeding, the standard of proof of the charges levelled against the delinquent is not proof beyond doubt. Proof beyond all reasonable doubts is a concept alien to the disciplinary proceedings. The charges could be established by applying the test of preponderance of probabilities. The concept of preponderance of probability does not mean that charges could be held to have been proved on mere surmises or conjunctures or speculations. Surmises, conjunctures or speculations can never take the place of proof at all. Proof by means of preponderance of probability denotes the standard which lies somewhere below the standard of proving criminal charge beyond reasonable doubt and slightly different from the standard of proof of any fact in any civil case applying the technical rules of the Evidence Act. In this regard, useful reference may be had to the judgment of the Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and Ors. 1991 (2) SCC 716 wherein the Hon'ble Supreme Court in para 37 has held as follows:
37. ... In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inference in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much practical as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation on conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straight Jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.
10. A person who recorded such a statement during preliminary enquiry is competent to speak about the said statement before the enquiry officer. The said statement can surely be marked through him. But, mere marking of the said statement alone will not prove the contents of the said statement. Here, it cannot be confused as though I am applying the technical rules of Evidence Act relating to the proof of the contents of the said statement. It needs to be correctly understood that as per the basic principles of the Evidence Act which are applicable to disciplinary proceedings, the evidence of a person who recorded the statement during preliminary enquiry [Mr. K. Balchandran in this case] is surely hearsay in respect of the contents of the statement made by the maker of the statement [loanee]. This evidence is admissible though it is hearsay. But, what all that I state is that his evidence is not substantive to prove the contents of the statement recorded by him."
8. Per contra, Mrs.Rita Chandrasekaran, learned counsel appearing for the respondents would contend that the request of the petitioner for legal assistance of Thiru A.Mohan as his representative to defend his case was not accepted due to administrative reasons, since he was charged with certain irregularities committed by him and was under suspension at Headquarters, Ramanathapuram. As regards the non-examination of the witnesses, it is her contention that the Board of Directors, after taking into consideration all the material records, concluded the enquiry proceedings in a transparent manner after marking documents with the consent of the petitioner and that when the petitioner has not agitated anything before the Enquiry Officer, it is not proper for him to raise the same before this court. In respect of the ground of discrimination, she would contend that the grave irregularities and misconduct committed by the petitioner directly attribute to the non-recovery of dues from the borrower and the enquiry findings were also held to be proved. Therefore, the punishment inflicted on the petitioner is valid and he cannot compare the same with that of other co-delinquents. As the respondents have come to such a conclusion based on material evidence, it cannot be assailed on the ground of discrimination. As regards proportionality of the punishment, she would contend that there is no scope for this court to go into the quantum of punishment when the competent authority has considered every aspect in accordance with law, unless it is shocking the conscience of this court.
9. Learned counsel appearing for the respondents, to substantiate her case has relied on the following :
(a) a catena of Supreme Court decisions, relevant paragraphs of which are extracted as under :
(i) 1982 (1) LLJ 46 (State of Haryana and another vs. Rattan Singh) "4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to heresay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding,even though of a domestic tribunal, cannot be held good."
(ii) A.I.R. 1996 SC 1669 (State Bank of Patiala and others v. S.K.Sharma) "32.We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee) (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the ules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature of (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this : Procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.-Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice in established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such eases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is sell- evident. No proof of prejudice as such need be called for in such a case. To report, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle slated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could not be waived by him, then the Court on Tribunal should make appropriate directions (include the setting aside of the order of punishment) keeping in mind the approach adopted by the Constitution Bench in B. Kaninakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram pattern) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice/no hearing" and "no fair hearing", (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh ac-cording to law, i.e., in accordance with the said rule (audi alterant paitem). (b) But in the latter case, the effect of violation (of a facet of the rule audi alterant partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arises before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
(iii) AIR 1997 SC 827 (Food corporation of India Vs. Bant Singh and another) "4. A reading thereof would clearly indicate that an employee is entitled to an opportunity to defend himself either in person or through an employee of the Corporation or of the Central Government or the State Government employee, in the departmental enquiry conducted against the delinquent. A legal practitioner is prohibited to appear before the Disciplinary Authority. Under these circumstances, a direction given by the High Court to allow the respondent to take the assistance of a retired employee, though he is not a legal practitioner who is prohibited to appear and assist the delinquent, in reality amounts to permitting the retired employee to have regular practice. The High Court has committed an error in giving such a direction."
(iv) 1999 (1) LLJ 900 (Cipla Ltd. & other vs. Ripu Daman Bhanot and others) "12. In Kalindi and Ors. v. Tata Locomotive & Engineering Company Ltd. MANU/SC/0237/1960 : (1960)IILLJ228SC , it was held that a workman against whom a departmental enquiry is held by the Management has no right to be represented at such enquiry by an outsider, not even by a representative of his Union though the Management may in its discretion allow the employee to avail of such assistance. So also in Dunlop Rubber Company v. Workmen MANU/SC/0211/1964 : (1965)ILLJ426SC , it was laid down that an employee has no right to be represented in the disciplinary proceedings by another person unless the Service Rules specifically provided for the same. A Three-Judge Bench of this Court in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi MANU/SC/0469/1993 : (1993)ILLJ907SC , laid down that the right to be represented in the departmental proceedings initiated against a delinquent employee can be regulated or restricted by the Management or by the Service Rules. It was held that the right to be represented by an advocate in the departmental proceedings can be restricted and regulated by statutes or by the Service Rules including the Standing Orders, applicable to the employee concerned. The whole case law was reviewed by this Court in Bharat Petroleum Corporation Ltd. v. Maharashtra Genl. Kamgar Union and Ors. MANU/SC/0783/1998 : (1999)ILLJ352SC , and it was held that a delinquent employee has no right to be represented by an advocate in the departmental proceedings and that if a right to be represented by a co-workman is given to him, the departmental proceedings would not be bad only for the reason that the assistance of an advocate was not provided to him."
(v) (2000) 9 SCC 94 (State of Bihar and others vs. Kameshwar Prasad Singh and another) "30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh & Ors. v. NDMC & Ors. [1996 (2) SCC 459] held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:
"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
Again in Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain & Ors. [1997 (1) SCC 35] this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:
"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
(vi) 2006 (11) SCC 645 (National Seeds Corporation Ltd. vs. K.V.Rama Reddy) "10. ... The reasons indicated by the respondent for the purpose were : (a) amount alleged to have been misappropriated is Rs.63.67 lakhs (b) a number of documents and number of witnesses are relied on by the respondent and (c) the prayer for availing services of the retired employee has been rejected and the respondent is unable to get any assistance to get any other able co-worker. None of these factors are really relevant for the purpose of deciding as to whether he should be granted permission to engage the legal practitioner. As noted earlier, he had to explain the factual position with reference to the documents sought to be utilised against him. A legal practitioner would not be in a position to assist the respondent in this regard. It has not been shown as to how a legal practitioner would be in a better position to assist the respondent so far as the documents in question are concerned. As a matter of fact, he would be in a better position to explain and throw light on the question of acceptability or otherwise and the relevance of the documents in question. ..."
(vii) (2010) 5 SCC 349 (Union of India and others vs. Alok Kumar) "75. Despite the factual aspect of the case, the learned Counsel appearing for the appellants has relied upon the judgment of this Court in the case of Sunil Kumar Banerjee v. State of West Bengal and Ors. MANU/SC/0456/1980 : 1980 (3) SCC 304, contending that it was not necessary and no prejudice had been caused to the respondent because of the alleged non-supply of the Vigilance note. On the contrary, the learned Counsel appearing for the respondents has relied upon the judgment of this Court in the case of State Bank of India and Ors. v. D.C. Aggarwal and Anr. MANU/SC/0711/1992 : 1993 (1) SCC 13, to raise a counter plea that any document taken into consideration for imposing a punishment and if the CVC recommendations were prepared at the back of the officer, the order of punishment so passed would be liable to be set aside. The proposition of law stated in the above two judgments can hardly be disputed. What is really required to be seen by the Court is, whether the duty to furnish such a report arises out of a statutory rule or in consonance with the principles of natural justice and whether non-furnishing of such a report has caused any prejudice to the officer concerned.
76. From the aforenoticed facts it is clear that, there is nothing on record to show that the alleged CVC notes have actually been taken into consideration and that the same have affected the mind of the disciplinary authority while considering the defence of the delinquent officer and imposing punishment upon him. Unless such notes were actually considered and had some prejudicial effect to the interest of the delinquent officer, it will not be necessary for the Court to interfere in the departmental inquiry proceedings on that ground.
77. In Sunil Kumar Banerjee, where the Vigilance Commissioner had been consulted, there was alleged non-supply of Vigilance Commissioner's report to the officer. A three Judge-Bench of this Court took the view that the findings of the disciplinary authority and its decision was not tainted and, therefore, would not be termed as illegal. The Court in Para 4 of the judgment held as under:
4. We do not also think that the disciplinary authority committed any serious or material irregularity in consulting the Vigilance Commissioner, even assuming that it was so done. The conclusion of the disciplinary authority was not based on the advice tendered by the Vigilance Commissioner but was arrived at independently, on the basis of the charges, the relevant material placed before the Inquiry Officer in support of the charges, and the defence of the delinquent officer. In fact the final conclusions of the disciplinary authority on the several charges are so much at variance with the opinion of the Vigilance Commissioner that it is impossible to say that the disciplinary authority's mind was in any manner influenced by the advice tendered by the Vigilance Commissioner. We think that if the disciplinary authority arrived at its own conclusion on the material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commissioner and obtained his views the very same material. One of the submissions of the appellant was that a copy of the report of the Vigilance Commissioner should have been made available to him when he was called upon to show cause why the punishment of reduction in rank should not be imposed upon him. We do not see any justification for the insistent request made by the appellant to the disciplinary authority that the report of the Vigilance Commissioner should be made available to him. In the preliminary findings of the disciplinary authority which were communicated to the appellant there was no reference to the view of the Vigilance Commissioner. The findings which were communicated to the appellant were those of the disciplinary authority and it was wholly unnecessary for the disciplinary authority to furnish the appellant with a copy of the report of the Vigilance Commissioner when the findings communicated to the appellant were those of the disciplinary authority and not of the Vigilance Commissioner. That the preliminary findings of the disciplinary authority happened to coincide with the views of the Vigilance Commission is neither here nor there.
78. No rule has been brought to our notice where it is a mandatory requirement for the disciplinary authority to consult the vigilance officer and take the said report into consideration before passing any order. If that was the position, the matter would have been different.
79. In the present case, firstly, no such rule has been brought to our notice and secondly, there is nothing on record to show that the alleged notes of the CVC were actually taken into consideration and the same effected or tainted the findings or mind of the authority while passing the orders of punishment. Thus, in our view, the findings of the Tribunal cannot be sustained in law. Unless the Rules so require, advice of the CVC is not binding. The advice tendered by the CVC, is to enable the disciplinary authority to proceed in accordance with law. In absence of any specific rule, that seeking advice and implementing thereof is mandatory, it will not be just and proper to presume that there is prejudice to the concerned officer. Even in the cases where the action is taken without consulting the Vigilance Commission, it necessarily will not vitiate the order of removal passed after inquiry by the departmental authority. Reference in this regard can also be made to the judgment of this Court in the cases of State of A.P. and Anr. v. Dr. Rahimuddin Kamal MANU/SC/0209/1997 : 1997 (3) SCC 505 and Deokinandan Prasad v. State of Bihar"
(viii) (2011) 2 SCC 316 (State Bank of India and others vs. Bidyut Kumar Mitra and others) "28. We have considered the submissions made by the learned Counsel for the parties. Before we consider the judgment of the Division Bench, it would be appropriate to notice the opening remarks made by the learned Single Judge in its order dated 18th April, 2001. The learned Single Judge observed as follows:
Very many points had been urged in the writ petition in support of the challenged thrown to the charge sheet, proceedings pursuant thereto and the orders passed therein, but at the hearing the same was restricted to denial of natural justice for not supplying the vigilance report, which, according to the Petitioner, was considered while taking the decision for completion of the disciplinary proceedings.
From the above, it become obvious that even before the learned Single Judge, the Respondent had made no grievance about the non-supply of documents. Also no further issue was raised about any prejudice having been caused to the Respondent.
32. The Division Bench, in our opinion, erroneously proceeded to presume that there has been either any breach of the statutory rules or violation of rules of natural justice. The Division Bench also failed to take into consideration that the issue with regard to the non-supply of the documents listed in the letter dated 3rd April, 1982 was not even canvassed before the learned Single Judge at the time of arguments. As is evident from the remarks of the learned Single Judge at the hearing of the writ petition, counsel for the Respondent restricted the challenge only to denial of natural justice for not supplying the vigilance report. This apart, the Division Bench totally ignored the fact that the Respondent did not care to raise the issue of non-supply of the documents during the entire course of the enquiry proceedings. He also totally omitted to raise such an issue in the written brief containing his defence arguments."
(b)(i) a decision of this court reported in 2003-III-LLJ 52 (S.Muthuraman and others vs. Presiding Officer, Labour Court, Madurai and another)
8. In this case, the management was not represented by legally trained persons. So, the question of ensuring the balancing of the scales by allowing the workmen to have the assistance of legally trained persons did not arise.
9. The assistance of a trade union leader is not provided for in the certified standing orders or the model standing orders under the Rules framed by Tamil Nadu under the Industrial Employment (Standing Orders) Act, and there is no principle on which it can be said that the denial of benefit of the assistance of a trade union leader would vitiate an enquiry. It was open to the management to decline to permit the representation of the workmen by the trade union leader when the standing order itself did not provide for such representation. Although the model standing orders prescribed under the Central Rules provide for representation of the delinquent workman by an office bearer of a trade union of which that workman is a member, similar provision is not made in the model standing orders under the State Rules.
14. Unless there are compelling reasons, the need to provide legal assistance to one of the parties when the other party had the benefit of such assistance being a fundamental matter, the Courts have held that notwithstanding the absence of a provision for granting such assistance in the standing orders, the larger requirements of fairness mandates that management who want to have the benefit of the assistance of such legally trained persons must recognise a similar right in the delinquent workmen against whose conduct the enquiry is being held. Where, however, in the domestic enquiry, the management merely participate through it's own officers who are not legally trained, workmen cannot assert a right to be represented through another, unless the standing orders provide for the same, or the Enquiry Officer permits such assistance."
(b)(ii) an unreported decision of this court dated 02.03.2006 made in W.P.Nos.39127 to 39131 of 2005 (M.Anbu Vs. Reserve Bank of India & others) "26. I have carefully gone through the decision in Subramaniam's case, cited supra, on which heavy reliance was placed by the learned counsel for the petitioner. In the said case, the delinquent, who was a member of the civil service of the Union of India, was removed from service, which is a major penalty. The procedure for imposing major penalties is prescribed in Rule 15 of the Central Civil Services ( Classification, Control and Appeal) Rules, 1957, a rule framed under Article 309 of the Constitution and sub-rule (5) of that rule provided that the Government servant may present his case with the assistance of any Government servant approved by the disciplinary authority but may not engage a legal practitioner for the purpose unless the person nominated by the disciplinary authority as aforesaid was a legal practitioner or unless the disciplinary authority, having regard to the circumstances of the case, so permits. The delinquent sought permission to engage a counsel to appear on his behalf and defend him during the enquiry. The request was rejected on the ground that though the Presenting Officer was a legally trained, he was not a legal practitioner. The departmental enquiry proceeded and ultimately the delinquent was removed from service. On the delinquent's challenge to the said order by way of writ petition, the High Court dismissed the writ petition. In the appeal before the Supreme Court, the delinquent raised the main contention that since he was not given a reasonable opportunity to present case, there was a violation of Rule 15(5) and consequently the impugned order was liable to be struck down. Allowing the appeal, the Supreme Court held that the delinquent was a member of the civil services of the Union of India and in view of Article 311 of the Constitution, he could not be removed from service except after enquiry in which reasonable opportunity was given to him and breach of this procedural guarantee vitiated the enquiry. The relevant observations of the Supreme Court are as follows:
From the facts set out above, it is clear that the enquiry officer did not afford the appellant necessary facility to have the assistance of another Government servant in defending him which assistance he was entitled to under the rule. He was deprived of that assistance solely because of the indifferent attitude adopted by the enquiry officer. Therefore, we have no hesitation in coming to the conclusion that the enquiry officer had clearly breached Rule 15(5)."
(b)(iii) a decision of the Karnataka High Court reported in 1995 (1) LLJ 1011 (G.R.Venkateshwara Reddy vs. Karnataka State Road Transport Corporation) "11. Let me now examine, on the basis of the above principles, whether the petitioner has made out a case for grant of permission to engage the service of a legal practitioner. The relevant rules do not expressly permit the employee to engage the services of a legal practitioner. On the other hand, they specifically prohibit the employee from engaging the services of a legal practitioner. The petitioner will not therefore be entitled to claim representation through counsel as a matter of right. Hence to become entitled to engage a legal practitioner, the petitioner should either prove that the presenting officer is a legal practitioner or legally trained prosecutor or satisfy that the charges are serious and complex in nature.
12. It is not in dispute that the presenting officer was not a legal practitioner nor is the case of the petitioner that the presenting officer is a legally trained person. Hence the first aground is not available. A reading of the article of charges disclose that the charges are not of complicate nature nor do they involve any legal interpretations that may require the assistance of a legal practitioner, but are charges relating to simple question of fact, which can effectively be defended by the petitioner or any of his co-employee.
The charges are extracted below for ready reference :
"I. For reprehensible conduct by usurping and ordering Sri K. P. Ali Khanna, Junior Assistant. Chitradurga Depot on 2-3-1988 to remove the tickets of various denominations from the tickets tray of Sri G. Revanasiddappa. Conductor, B. No. 1686 and show them as sold in the above conductor's CWA and ordered to tear off those tickets. Subsequently, you directed Sri K. P. Ali Khanna to hand over those torn pieces of tickets to Sri Rajanna, peon to burn it. You have thereby abused your official position, besides betrayed the confidence reposed in you by the Corporation and intimating the others by engineering to destroy the tickets to suit you will-designed motive, which acts of yours is unbecoming a servant of the Corporation.
II. For gross misconduct of abusing your official position by exercising the authority not vested in you in entering into a contract with M/s. Mahaveer Enterprises, Mysore for supply of 33 T.V. Sets and one Two-in-one Set to the KSRTC Employees Co-operative Society, Chitradurga, although the Board of Directors of the above society have not authorised to do so. You have thereby deliberately stepped out of jurisdiction and betrayed the confidence reposed in you by the Corporation, which act of yours exhibits an unworthy conduct.
III. For failure to intimate the Corporation in accepting a commission of Rs. 6,000/- from M/s. Ganga Electronics, Bangalore, for having placed an order for supply of 33 T.V. Sets to the KSRTC Employees Co-operative, Society, Chitradurga Depot. You have thereby contravened the provisions of Regulations 4(5) of the KSRTC Servants (C&D) Regulations, 1971, besides failed to maintain devotion to duty in the discharge of your official duty."
Thus having regard to the nature of charges, it cannot be said that this is a case where the petitioner should be permitted to be defended by a legal practitioner. Consequently, the refusal to permit the petitioner to engage the services of legal practitioner is not opposed to the principles of natural justice.
13. At this juncture, it is necessary to deal with the submission of the petitioner's counsel that the regulations specifically provide for a delinquent employee engaging the services of legal practitioner.
14. Regulation 23(8) of the Regulations which is relevant, reads as follows :
"The Corporation servant may take assistance of any of other Corporation servant to present the case on his behalf, but may not engage a legal practitioner for the purpose. "
A plain reading of this regulation would mean that in an enquiry, a delinquent employee will be entitled to take the assistance of another co-employee, but not a legal practitioner. In other words, it prohibits the employee from engaging a legal practitioner. But Sri K. Subba Rao, learned counsel for the petitioner contents that the words 'but may not engage a legal practitioner' has been the subject of judicial interpretation by two decisions of this Court and that this Court has held that the said words mean that a delinquent employee is entitled to engage the services of a legal practitioner and refusal to grant such permission vitiates the enquiry. "
7. I have heard the learned counsel on either side, perused the decisions relied on by them and the relevant materials on record.
8. Admittedly, the petitioner joined as a Junior Clerk in TIIC and promoted as Senior Clerk and later was promoted as Staff Assistant Superintendent and thereafter as Officer-Finance. For about 10 years from 1977, he was the Treasurer of the TIIC Employees' Association and in 1980, he became the Director of TIIC Employees' Co-operative Societies. By an order dated 28.10.1998, the 1st respondent placed the petitioner under suspension contemplating enquiry into grave charges under Rule 6.18 of the Service Rules of the Corporation and thereafter, a charge memo containing 24 charges was issued to the petitioner on 06.07.1999, for which, the petitioner submitted his explanation on 27.12.1999 denying the same. Almost, all the charges relate to a loan sanctioned and partly disbursed to a borrower of the TIIC by name 'Sri Sakthi Studio', sanctioning of loan to the extent of Rs.60 lakhs for the purchase of machinery to be installed at its premises involving four persons, namely, Mr.D.Karunanidhi, Manager, the petitioner (Officer-Finance), Mr.D.Baskaran (Officer-Finance) and Mrs.B.Maragatham (Officer-Legal) and they were guilty of lapses.
9. It is seen that after the issuance of the charge memo, the petitioner has submitted his explanation within the time as stipulated in the charge memo. However, he made his explanation on 27.12.1999. By that time, Thiru. K.Subash (G.M.) was appointed as Enquiry Officer to conduct the enquiry into the charges framed against the petitioner vide proceedings of the Managing Director, dated 12.08.1999. The Enquiry Officer, after conducting a detailed enquiry has furnished his report on 30.08.2000, to which the petitioner submitted his representation on 13.09.2000. Having accepted the report, the Disciplinary authority, namely, the Managing Director of the Corporation in the impugned proceedings in Proceedings No.ADMN/DW/2000-01, dated 21.03.2001 came to the conclusion that the petitioner deserves to be punished and accordingly, as per Rule 6.16 of the Service Rules, ordered removal of the petitioner from service of the Corporation with effect from the date of the order and under Rule 6.15 (b) imposed the punishment of removal from service, against which the petitioner preferred an appeal to the Chairman, Board of Directors, TIIC, the 2nd respondent herein on 09.05.2011. The appellate authority came to the conclusion that the Board, after considering the explanation given by the appellant, resolved to enhance the punishment already awarded, i.e. dismissal from service and accordingly, the order of dismissal, i.e. the Show Cause Notice was issued by the appellate authority on 15.02.2002 vide proceedings TIIC/Admn/DW/2001-02 and the same is challenged by the petitioner.
10. On going through the records and on considering the facts and circumstances of the case, the points which arise for consideration in this matter are:
(i) denial of opportunity to the petitioner regarding engagement of a legal practitioner to defend him in the enquiry
(ii) non-examination of relevant witnesses
(iii) discrimination in inflicting punishment to the petitioner and other co-delinquents
(iv) proportionality of the punishment on the petitioner to the charges levelled
11. Denial of opportunity : As regards denial of opportunity to the petitioner to engage a legal practitioner to defend his case, it is seen that the petitioner, after submitting his explanation and on seeing that the Enquiry Officer in the rank of General Manager of the Corporation is appointed, made a request to the Managing Director of TIIC on 19.07.1999 with a copy marked to the Enquiry Officer to permit him to engage Mr.A.Mohan, Assistant Manager, Ramanathapuram (under suspension) as his representative in the enquiry proceedings. But, the said request was not accepted vide proceedings of the respondent dated 30.07.1999 due to administrative reasons, but, the petitioner was informed that if, he so desires, may suggest a panel of other employees of the Corporation to represent him and out of the panel so suggested, the Corporation will permit one employee to represent him, subject to suitability.
11(a). The regulations of the bank enable an officer-employee to take the assistance of any other officer-employee to defend him in the disciplinary proceedings, but a note was added restraining the officer-employee from taking the assistance of any other employee who had two pending disciplinary cases on hand, in which he had to give assistance. While considering the scope of the said note to the regulations, the Supreme Court held that the said note to the regulations is not violative of Article 14 as the Management can always observe the same while considering the need for choosing a presenting officer in an individual case even in the absence of a stipulation therefor. The Supreme Court further observed that mere possibility or otherwise of any action which may result in differential standard or norm being adopted in a given case cannot be assumed to provide sufficient ground or reason to undermine the right of the management to make a regulation or Standing Order of the nature in question or militate against the reasonableness or justness of the said provision.
11(b). While giving consideration to that issue, the Supreme Court in the case of Chairman & Managing Director, Hindustan Teleprinters Ltd. vs. M.R.Issac (2005 (2) LLN 853) has arrived at four different conclusions namely, (i) there is no vested or absolute right in the officer/employee/workman, as the case may be, to represent either through a counsel or through an agent unless the statutes/regulations/rules/Standing Orders recognize such a right (ii) the right to representation through a counsel or agent can be restricted, controlled or regulated by statutes/regulations/rules/Standing Orders, as the case may be (iii) in the absence of any provision in the statutes/regulations/rules/Standing Orders, refusal to representation either through a counsel or through an agent does not violate the principles of natural justice. (iv) even in case of only an option is given to an employee to secure the assistance of a lawyer/agent, by such clause, there is no vested or absolute right on the employee, as it is the discretion of the employee to accept such request depending upon the facts of each case with reference to the complicated issues raised and involved in the enquiry.
11(c). The question still remains is as to whether in the absence of any rule the workman or officer, as the case may be, would be entitled to the assistance of a lawyer when such workman or officer is pitted against a legally trained person. The Supreme Court observed that the grounds urged by the appellant in support of his request for permission to engage a legal practitioner were by no means irrelevant. The fact that the case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighed against him. The Disciplinary Authority completely ignored that circumstance. Therefore, that authority clearly failed to exercise the power conferred on it under the rule. It is not unlikely that the Disciplinary Authority's refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself. After considering the various decisions in Brooke Bond India (Private) Ltd. case, Dunlop Rubber Co. Ltd. case, Board of Trustees of Port of Bombay's case and S.L.Kapoor's case, the Supreme Court has ultimately ruled that it is therefore, a moot point whether or not the presenting officer was trained in the legal discipline. In any event, having put in not less than 20 years of service in the personnel department of private sector undertakings, it cannot be validly claimed that he was not legally trained. Ultimately, the ruling is that a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation and therefore the allegation remains unanswered and must consequently be accepted in the absence of any cogent reply. In the absence of specific denial, the claim of the respondent that he was pitted against a legally trained person who is familiar with the procedures of the domestic enquiry including the legal consequences thereof should be accepted. In the absence of such expertise by the officer, the denial of assistance of a legally trained person would render the disciplinary proceedings vitiated. Therefore, the order of termination passed against the petitioner on the said enquiry fails. This principle has been accepted and ruled by the Supreme Court after taking into account its earlier decision.
11(d). In the instant case, the claim made by the petitioner is that he has to face the Disciplinary authority in the cadre of General Manager and when the Presenting Officer is in that rank, the only reason attributed to the denial of engagement of the Assistant Manager A.Mohan, who was under suspension is that, it could not be considered for administrative reasons and the petitioner was asked to suggest some other person to defend himself effectively and successfully. In the absence of any rule prescribing an officer under suspension to defend the petitioner's case, denial of his request to engage the said A.Mohan, Assistant Manager merely on administrative reasons is not a justifiable ground to deny the opportunity to the petitioner, as it cannot be considered that the officer under suspension is an officer punished, when suspension is not a punishment. It is not the case of the respondents that the Rules of the Corporation prohibit the engagement of an Officer of the Corporation, who is under suspension to be engaged as a defence personnel. If that be the position, it can, of course be held that refusal to engage a defence assistant in a departmental proceeding is clearly a case of denial of opportunity. Therefore, this point is answered in favour of the petitioner.
12. Non-examination of relevant witnesses : The second point raised in this matter is that no oral evidence was letin in support of the charges levelled against the petitioner and no opportunity was given to him to bring out the truth and the proceedings of the Enquiry Officer were one-sided. On 30.08.2000, the Enquiry Officer made his report holding the petitioner guilty of all the charges except Charge No.7. The 1st respondent/Disciplinary Authority, i.e. the Managing Director accepted the petitioner's explanation only in respect of charges 1 to 6 and held him not guilty of the same. However, the disciplinary authority held that the other charges against the petitioner as proved. This claim of the petitioner has been refuted by the respondents that when the oral evidence is recorded and when the entire case is based on the documents, which is the best form of evidence, there is no need of oral evidence. The borrower of the Company against whom the petitioner has sanctioned a loan, based on which the proceedings are initiated, has not been called in question by bringing him before the Enquiry Officer and putting him in box. Therefore, without calling the concerned person for examination and cross-examination, the entire proceedings are vitiated on the ground of non-examination of witness and it can be only a case of no evidence.
12(a). The legal principles are settled that when serious charges are framed and it is required to be proved to the guilt, as it brings civil and criminal consequences on the employer concerned, he would be liable to be prosecuted. Such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities without taking evidence. It is also well settled now that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. Enquiry has to be conducted fairly and objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.
12(b). In a recent decision of the Supreme Court reported in (2009) 2 SCC 570 in the case of Roop Singh Negi vs. Punjab National Bank & others, it is laid down that in a departmental proceeding, which is quasi judicial in nature, the Enquiry Officer performs a quasi judicial function. The charges levelled against the delinquent officer must be found to have been proved. The Enquiry Officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself, could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. Therefore, the only basic evidence whereupon reliance has been placed by the Enquiry Officer, was the purported confession made by the appellant before the police and there was no direct evidence. Even there was no indirect evidence. The Enquiry Officer had made up his mind to find him guilty, as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
12(c). While applying the above ratio laid down by the Supreme Court to the facts of the present case, it could be seen that there was no oral evidence marked by the Management and a perusal of the counter affidavit as well as the records would reveal that there was no oral evidence and therefore, it was admitted by the respondents that right of cross-examination arises only when oral evidence is recorded, which is the best form of evidence and there is no need of oral evidence. Also, it is clear that the authorities below have decided the entire case based on the documents presented before them and there was no direct evidence to take into consideration and thereby, the petitioner has been denied cross-examining the relevant eye-witnesses, if it is to be marked to prove his innocence. A perusal of the entire records would reveal that no evidence has been recorded and there is only documentary evidence, which was presented by the Management. Therefore, it could be manifestly considered that it is a case of no evidence and everything is based on documents, which the Enquiry Officer as well as the authorities below have come to the conclusion. This point is also answered in favour of the petitioner.
13. Discrimination of punishment on petitioner vis-a-vis other co-delinquents : As regards the issue of discrimination which the petitioner specifically averred, it is seen that there are three other officials involved, namely, Mr.D.Karunanidhi (Branch Manager), Mr.M.P.Rajkumar (Officer-Finance) and Mrs.S.Mohana (Officer-Finance). Proceedings were initiated and proceeded with against the petitioner and the said three officials. Mr.Karunanidhi was dismissed from service, while Mrs.Mohana was just demoted and retained in service. Similarly, Mr.M.P.Rajkumar was just demoted and retained in service. Now, it is reported that Mr.Karunanidhi died and other officials connected to this case, namely, Mr.Baskar was inflicted with minor punishment and Mrs.B.Maragatham was fully exonerated. The claim of the petitioner was rejected by the respondent stating that the Disciplinary authority took into consideration the lapses and irregularities committed by them in that file and awarded punishment to various employees involved in the case and as regards Mrs.Mohana, the disciplinary authority found that she deserved punishment of demotion to the lower post. Even though the charges against the petitioner were of a lesser gravity than that of Mrs.Mohana, the disciplinary authority has chosen to remove the petitioner from the services of the Corporation.
13(a). A perusal of the records reveals that Mr.Bhaskar, the then Officer-Finance and Mrs.Maragatham, the then Officer-Legal were inflicted with the punishment of demotion and D.Karunanidhi, who has been dismissed from service is reported dead pending the proceedings. Therefore, it could be seen that when all the four officers are involved in the alleged irregularity, the disciplinary authority disagreed with the Enquiry Officer's findings in respect of Charges 1 to 6 as proved, held Charge No.7 as proved and imposed the punishment of removal from service, holding all other charges as not proved. The same has been now answered by the appellate authority to the extent of dismissal from service. So, while analysing the entire facts and circumstances, it appears that there are different punishments. Of course, this is the matter which the authority concerned has to determine as to under what circumstances and under what rules, the punishment against the particular individual is to be imposed based on the charges. Therefore, it could be seen that there is discrimination in inflicting punishment to the petitioner.
14. Proportionality of punishment : Lastly, the issue which has arisen for consideration is the proportionality of punishment imposed on the petitioner. In this regard, it has to be seen that there were 24 charges, out of which the Enquiry Officer found that 23 charges are proved. When this report was taken into consideration by the Disciplinary Authority, he disagreed with the findings of the Enquiry Officer and found that Charges 1 to 6 are not proved and the 7th charge is also not proved and held Charges 8 to 24 as proved and awarded punishment of removal from service under Rule 6.15 of the Service Rules of the Corporation. Aggrieved by the order of removal from service, the petitioner filed an appeal on 09.05.2011 to the Board of Directors, the appellate authority, the 2nd respondent herein and the Board, in its meeting held on 31.12.2002, considered the charge memo, explanation of the petitioner, enquiry proceedings, report of the Enquiry Officer, connected records, the order of the Disciplinary Authority and the appeal dated 09.05.2001 of the petitioner in detail and was of the opinion that very grave irregularities/lapses such as handing over the cheques drawn by the borrower to the borrower himself instead of directly sending the same to the machinery supplier by RPAD so as to enable the borrower to keep the cheques himself to avail the loan without borrower's margin money and recommending for disbursement of the loan. It was of the further opinion that the penalty imposed by the Disciplinary Authority in this case was quite inadequate and hence, issued a Show Cause Notice, dated 15.02.2002 to the petitioner to submit an explanation as to why the punishment already awarded should not be enhanced to dismissal from service. On receipt of the Show Cause Notice, the petitioner had submitted his explanation on 21.03.2002. While placing the Show Cause Notice and the explanation before the Board of Directors at their meeting held on 13.05.2002, the petitioner was also permitted to appear before the Board for a personal hearing. Accordingly, the petitioner appeared in person before the Board on 13.05.2002 and represented his case. After a detailed discussion, the Board of Directors resolved to enhance the punishment already awarded to dismissal from service and accordingly, it was communicated to the petitioner vide proceedings dated 18.11.2002.
14(a). In this regard, it is worthwhile to refer to a decision of the Supreme Court in the case of Ramanuj Pandey vs. State of Madhya Pradesh reported in (2009) 7 SCC 248, wherein, it is clearly laid down that the discretionary jurisdiction exercised by the authority concerned should not ordinarily be interfered with by a superior court while exercising its power of judicial review unless one or the other ground upon which and on the basis whereof the power of judicial review can be exercised exists. It is therefore, beyond any doubt or dispute that the doctrine of proportionality has to be applied in appropriate case as the depth of judicial review will depend on the facts and circumstances of each case. It is for the disciplinary authority or the administrative authority to decide the quantum of punishment in a case of misconduct and the role of the court is only secondary. Therefore, in the case on hand, taking into account the gravity of the misconduct, the punishment imposed on the petitioner is shocking the conscience of the court.
14(b). The Supreme Court in the case of B.C.Chaturvedi vs. Union of India reported in (1995) 6 SCC 173 has held that if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, while exercising the power of judicial review, it cannot normally substitute its own conclusion on penalty and impose some other penalty.
14(c). In the instant case, it is not in dispute that the Enquiry Officer found Charges 1 to 6 and 8 to 24 are proved, except Charge 7 as not proved. However, the Managing Director, who is the Disciplinary Authority, disagreed with the findings of the Enquiry Officer with regard to Charges 1 to 6 holding 'not proved' and concurred with the Enquiry Officer with regard to Charge 7 as not proved and Charges 8 to 24 as proved. Thereafter, the appellate authority, namely the Board of Directors, differed with the findings of the Disciplinary Authority and passed final orders on 18.11.2002, holding that even charges 1 to 7, which are held not proved by the disciplinary authority, are also proved against the petitioner, coupled with Charges 8 to 24. Then, the Appellate Authority proceeded further to enhance the punishment imposed on the petitioner from removal to dismissal to dismissal from service.
15. On considering the entire issue in question and taking into account the overall facts and circumstances of the case, it is clear that out of four officers alleged with the irregularities, two of them are inflicted with lesser punishment and two others are dismissed from service. It is also seen that one of the officers died during the pendency of the proceedings. Therefore, this court is of the opinion that the punishment imposed by both the Disciplinary Authority and the Appellate Authority requires re-consideration and the matter has to be remanded for fresh consideration. Accordingly, the impugned orders are set aside and the matter is remanded to the authorities below for fresh consideration and moulding the relief in quantifying the punishment and passing appropriate orders within a period of three (3) months from the date of receipt of a copy of this order.
The Writ Petition is allowed with the above direction. No costs.
abe To :
1. The Managing Director, Tamil Nadu Industrial Investment Corporation Ltd., 473, Anna Salai, Nandanam, Chennai 600 035.
2. The Chairman, Board of Directors, The Tamil Nadu Industrial Investment Corporation Ltd., 473, Anna Salai, Nandanam, Chennai 600 035