Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
29. 10-2013 CORAM THE HONOURABLE Mr. Justice S.TAMILVANAN W.P.No.11394 of 2005 and W.P.M.P.No.12415 of 2005 C.John Masilamani ..Petitioner Vs. 1.Chairman Cum Managing Director Tamil Nadu Civil Supply Corporation Limited No.41, Thambusami Road Kilpauk, Chennai 10. 2.The General Manager (Administration) Tamil Nadu Civil Supply Corporation Limited No.41, Thambusami Road Kilpauk, Chennai 10. 3.The Senior Regional Manager Tamil Nadu Civil Supply Corporation Limited No.7, Constranswimth Road Gopalapuram Chennai - 86. ...... Respondents For Petitioner : Mr. R.N.Amarnath For Respondents : Mr. V.Selvanayagam Writ Petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of a writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the third respondent in proceeding No.A17/194/2001 dated 15/3/2004 and the consequential order passed by the second respondent in A.D.No.1/59365/2004 dated 20/10/2004 and quash the same and to direct the respondents to reinstate the petitioner with continuity of service, backwages and all other attendant benefits. ORDER
Heard the learned counsel for the petitioner as well as the respondents.
2. This writ petition has been filed by the petitioner to issue a writ of Certiorarified Mandamus, calling for the records pertaining to an order passed by the third respondent in proceeding No.A17/194/2001 dated 15/3/2004 and the consequential orders passed by the second respondent in A.D.No.1/59365/2004 dated 20/10/2004 and quash the same and to direct the respondents to reinstate the petitioner with continuity of service and backwages and all other attendant benefits.
3. It is an admitted fact that the petitioner herein had joined duty as a bill clerk in the first respondent, Tamil Nadu Civil Supply Corporation Ltd., on 23.07.1998. He was posted as Junior Assistant in a godown known as 'Narayuanapillai Godown' run by the Tamil Nadu Civil Supplied Corporation Ltd. The petitioner was assigned with the duty of verifying the stocks which were brought inside and also taken outside from the godown, by issuing neccessary gate pass, however, the stock Register was maintained by other Assistants, who were employed in the same Corporation.
4. On 08.01.2001, the third respondent herein placed the petitioner under suspension by issuing a charge memo dated 27.03.2001. There were totally five charges levelled against the petitioner for which the petitioner had submitted his explanation dated 08.05.2001 and 19.11.2001, denying the charges. It is also an admitted fact that as per the records, on 3.1.2001, total stock of Mazoor dhall available in the godown was found 108.932 tonnes and the permissible limit, due to storage loss was 2.198 tons. However, the shortage as on 06.01.2001, was only 759 kgs. Subsequently, a Criminal Case in C.C.No.1331 of 2002, was filed on the file of the XV Metropolitan Magistrate, Chennai, against the petitioner and other accused for an alleged offence of criminal misappropriation. On the date of occurrence, one Balasubramaniam, was the Superintendent of the godown and the petitioner herein was working under him, as junior assistant. The said Balasubramaniam, had given a complaint to the third respondent on 01.01.2001, stating that there was a theft of 122 bags of Mazoor dhall from the godown from the stock No.119/130. In the aforesaid criminal case, T.Balasubramanian, R.Sugumar, M.Abdul Jaleel, N.P.Padmanaban, N.Maruthichandrasekar, C.John Masilamani, N.Perumal, A.Dilli, P.L.Mani and the petitioner herein were arrayed as accused. However, in the departmental enquiry, A.1 viz., Balasubramaniam and A.10. Perumal, were examined as witnesses.
5. Learned counsel for the petitioner drew the attention of this Court to the Judgment of the Learned XV Metropolitan Magistrate, in C.C.No.1331 of 2002, whereby the accused in the criminal case were acquitted, as the prosecution had not established the alleged offence of criminal misappropriation against them. It is also not in dispute that there was no appeal preferred against the acquittal of the accused, recorded by the Learned XV Metropolitan Magistrate. As per the prosecution case, the said Balasubramaniam was arrayed as A.1 and Ex.P.12. was also marked as one of the documents. However, there was no evidence available to show that totally 122 bags of mazoor dhall were taken away from the godown and that the finding of the criminal court is that prosecution had not established the alleged guilt against the petitioner and others.
6. It is seen in the departmental enquiry that four witnesses were examined including the Superintendent, Balasubramaniam and Perumal, who was arrayed as A.1 and A.10. in the criminal case. It is also not in dispute that no specific allegation was raised by the witnesses who were examined on behalf of the complainant against the petitioner herein.
7. Learned counsel appearing for the respondents submitted that the Enquiry Officer found that the charges levelled against the petitioner herein have been proved. It is not in dispute that in a criminal case, to convict an accused person, the alleged offence has to be proved beyond any reasonable doubt and the said standard of proof is not required in a disciplinary proceeding, hence, preponderance of probability is sufficient to prove the charges and to impose punishment in a departmental enquiry. However, it cannot be disputed that without following principles of natural justice and without prima facie material to establish the charges, the Enquiry Officer cannot give any finding that charges against the petitioner have been proved.
8. In the instant case, according to the learned counsel for the petitioner, there is no legal evidence available against the petitioner to establish the charges levelled against him and no satisfactory reason is available on the side of the respondents as to how some of the accused in the criminal case were arrayed as witnesses in the Departmental Proceeding, especially, A1., who was the Superintendent of the godown and another accused was also treated as witness of the Corporation in the departmental enquiry. It is a settled proposition of law that, if the findings of any Enquiry Officer or the Court below is against the evidence available on record or not supported by evidence, that has to be construed as perverse finding.
9. In the instant case, it was argued on behalf of the petitioner that the Enquiry Officer has held that the charges levelled against the petitioner have been proved. The finding of the Enquiry Officer is that the charges levelled against the petitioner have been proved, however, as contended by the learned counsel for the petitioner, there is no acceptable evidence for the aforesaid finding. Third respondent, the Senior Regional Manager of the respondent Corporation, based on the enquiry report submitted by the Enquiry Officer, passed an order dated 15.03.2004, whereby punishment of compulsory retirement of the petitioner from service was imposed on the petitioner. Aggrieved by the said order, the petitioner preferred an appeal before General Manager, Administration, who is the second respondent herein. The second respondent, by his order dated 20.10.2004, confirmed the findings and the punishment imposed on the petitioner, and dismissed the appeal preferred by the petitioner.
10. In this writ petition, the petitioner has raised the following grounds : a. the order passed by the third respondent is contrary to law and is violation of principles of natural justice. b. the third respondent erred in relying on the record of the case which was pending in H5 Police station and the statements of the witnesses recorded by the Inspector, H5 Police station under Section 161 Crl.P.C. C. the criminal case was tried in C.C.No.1331 of 2002 on the file of the Xvth Metropolitan Magistrate George Town, Chennai. The Learned Magistrate found that there was no proof to show that 30 bags of Mazor dhall was seized from Samuvel. The Learned Magistrate found that the case of misappropriation was also not established by the police. d. The Learned Magistrate also found that there was no evidence either oral or documentary to connect the petitioner and other accused in the criminal case. In the circumstances, the third respondent erred in relying on the case diary of the police officer in a pending case before the Learned Magistrate to hold that there was misappropriation of Mazoor dhall from the godown. e. When the criminal case was pending trial in C.C.No.1331 of 2002 for the offence punishable under Section 409 read with 109 IPC, the third respondent ought to have postponed the enquiry till finality is reached in the criminal case since the issue before the criminal court and the departmental enquiry are one and the same. f. The third respondent erred in relying on the report of the Inspector H5 Police Station in Cr. No.56 of 2001, which was neither relied on in the charge memo nor placed before the enquiry officer during the course of enquiry. The petitioner was not informed by the enquiry officer that the said documents would be used against him in the enquiry. The petitioner was not given an opportunity to dispute the statements allegedly recorded by the police officer. The said statements were not proved in the enquiry. g. The Chemical register would reveal the fact that on 30.12.2000, the entire stock was in order, when the stock was fumigated. The Chemical Conception Register was deliberately withheld by the third respondent during the enquiry. In the circumstances, the disciplinary authority ought to have drawn adverse inference. h. Rajan Packer, Savithiri Sweeper, Marimuthu Gangman had deposed in the enquiry that on 31.12.2000, when the stock was fumigated they found that the stock was in order. The Superintendent of the godown during his examination deposed that he had made a complaint on 1.1.2001, before the Inspector of Police, H5 Police Station and to the third respondent regarding the theft of Mazoor dhall from the godown on 31.12.2000. However, no other witness was examined on the side of the department to prove that there was misappropriation of Mazoor dhall or any other stock from the godown. In the circumstances, the order of the third respondent is in violation of principles of natural justice. i. The first respondent was examined as PW1 in the criminal case in C.C.No.1331 of 2002. He had given evidence against the petitioner in the criminal case stating that the petitiner has misappropriated the stocks, however, the order is violation of principle of natural justice. Though the personal who passed the impugned order and the person given evidence as PW1 are not different persons. j. The appellate authority has stated against an order passed by the Senior Regional Manager inflicting major penalty as contemplated under emplyees service Regulation Act 1989 of the Chairman Cum Managing Director of the Corporation. The appeal was preferred before the Managing Director as per Rules and as stated in the order of third respondent. But the appeal was disposed of by the second respondent who is not the competent authority. The second respondent is an authority lower in grade from that of the appellate authority. Hence the appeal filed by the petitioner was not disposed of by the competent authority. k. In the enquiry the department had not examine any witness. The petitioner was cross examined by the enquiry officer, however, the petitioner's statement was not recorded in the enquiry. Without recording the petitioner's statement, he was cross examined by the enquiry officer alone. In the circumstances, the enquiry is vitiated for non-observance of the principles of justice. l. The criminal court held that the alleged misappropriation was not proved thereby the evidence of the Senior Regional Manager who was examined as PW1 in the case was not believed by the Criminal Court. In the circumstances, the third respondent has erred in passing the impugned order.
11. Mr.R.N.Amarnath, learned counsel for the petitioner argued that the findings of the Enquiry Officer, confirmed by the appellate authority were perverse, not supported by any legal evidence. According to him, there is a violation of principles of natural justice by the third respondent and no material evidence is available on record, to establish the charges levelled against the petitioner. Therefore, the punishment of compulsory retirement imposed on the petitioner is against the principles of natural justice.
12. Mr.V.Selvanayagam, learned counsel for the respondents has not disputed that some of the other accused were examined as witnesses of the respondents herein and there is no evidence available on record as against the petitioner herein to prove the charges. Mr.R.N.Amarnath, learned counsel appearing for the petitioner submitted that as per the evidence and materials available on record, the charges levelled against the petitioner has not been established as per procedure known to law, hence, capital punishment of awarding compulsory retirement would show that it is a discriminatory order, not legally sustainable.
13. Learned counsel for the petitioner would submit that it is not in dispute that the petitioner was suspended on 08.01.2001, and compulsory retirement was imposed on him, with effect from 15.03.2004. Had the punishment was not imposed on the petitioner, he would have attained superannuation on 30.04.2008. According to the learned counsel for the petitioner, the petitioner is entitled to get monetary benefits till the date of his superannuation and subsistance allowance should have been given by the respondents during the period of suspension. In support of his contention, the learned counsel for the petitioner had relied upon the judgment rendered in Union of India vs. Madhusudan Prasad in (2004) 1 SCC43 wherein it has categorically held as follows: ".the above case was concerning an employee, who was found guilty in an enquiry but the report was not furnished to the employee and the show cause notice was not served on him. In view of the facts and circumstances of the case, the Court directed that appropriate order should be passed regarding the back wages. In the instant case, the Appellate Authority directed the reinstatement of the respondent and held that he was not entitled to get back wages for the period he was out of service. It may be noticed that the respondent was removed from service without any enquiry and he was not even given a show-cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principles of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of back wages. We do not think it is a fit case where Fundamental Rule 54 could have been invoked by the authorities. We find no merit in the appeal. The appeal is accordingly dismissed.".
14. In the instant case, the learned counsel appearing for the petitioner submitted that the enquiry officer, without considering all the facts of the case had given finding that all the charges levelled against the petitioner were proved, however, it is not the case of the petitioner that there was no departmental enquiry conducted by the respondents. In the typed set of papers at page number 31, a copy of the memo, dated 11.08.2003 issued on the petitioner has been produced. It is seen that the charges were framed against the petitioner herein and others and they were asked to submit their explanation, if any, within 15 days from the date of the memo issued by the respondents.
15. As per the enquiry report available in the typed set, it is seen that 5 charges were framed against the petitioner. The first charge is that the petitioner in the capacity as Junior Assistant of the godown made abnormal shortage of mazhoor dhall, rice and empty gunnies worth Rs.4,15,475.80/- whereby committed criminal breach of trust. In the explanation, the petitioner has submitted that he had not commit any criminal breach of trust and only on the supervision of the Superintendent with the assistance of security staff, the goods were stored and taken out from the godown periodically. On 22.12.2000, while the godown was inspected by the Senior Regional Manager of the Corporation, there was no allegation of shortage. On 30.12.2002, there was spray of pesticides for about 800 bags of goods. In the recorded statement, A.Rajan, who was incharge of the spray of pesticides had deposed that he had used pesticides for 800 bags and therefore, it was argued that the petitioner is no way responsible for the shortage of the goods stored in the godown.
16. The second charge is that the petitioner in collusion with the godown staff at Narayanapillai godown had made excess of gunnies 1259 numbers and 8599 numbers of Karpagambal godown in various categories, which would show his improper maintenance and manipulation of gunny accounts, for which the petitioner submitted his explanation that the responsibility of getting and maintaining gunny bags was with the Superintendent, hence, Superintendent and the assistants alone are responsible for the same. With the said reply, the petitioner denied the charge levelled against him.
17. The third charge is that the petitioner had transferred three bags of Mazoor dhall weighing 311 Kgs from closed stock No.VI/80 to 99/88 and kept it for ulterior motive. In his explanation, the petitioner denied the charge levelled against him and for proving the charges, there is no evidence available on record.
18. The fourth charge is that he petitioner, in collusion with staff of the godown had neglected 10891 numbers of empty gunnies and stocked in respective category in the godown, without preparing acknowledgement, which was received from hulling agents and thereby violated the standing instructions and the fifth charge is that the petitioner had misappropriated 0.446.300 Metric Tonnes of Mazoor dhall from stock No.123/96 from which issues have not commenced leading to 18 chippams and covered the quantity found short for personal gain and the presence of 18 chippams in the above stock was done with malafide intention. The petitioner has denied the charges 4 and 5 stating that he was not responsible for any shortage or misappropriation and according to him, only the Superintendent and the Assistants were responsible for the alleged charges. As contended by the learned counsel for the petitioner, there is no evidence available on record against the petitioner herein to fix the responsibility on the petitioner.
19. In the criminal case, the petitioner herein John Masilamani was arrayed as 5th accused. As per the Judgment, dated 08.12.2004 made in C.C.No.1331 of 2002, the case was ended in acquittal. It is seen from the Judgment that there was no specific charge framed against the petitioner / A5, supported by any evidence to convict him under Section 409 r/w 34 IPC or Section 409 r/w 109 IPC. Though there were 7 witness examined on the side of the prosecution, apart from marking of Exhibits, the learned Metropolitan Magistrate, having considered the evidence and the arguments advanced by both sides, has held that the charges were not proved and accordingly, recorded acquittal of the petitioner and others.
20. On the aforesaid circumstances, as submitted by Mr.R.N.Amarnath, learned counsel for petitioner, it has to be construed that only an honourable acquittal was recorded, so far as the petitioner / A5 is concerned, as the charges were not supported by evidence against him. Hence, according to the learned counsel, the petitioner is entitled to backwages. In support of his contention, he relied on the following decisions :
1. Madurantakam Coop. Sugar Mills Ltd., v. S.Viswanathan, (2005) 3 SCC1932. Punjab National Bank Ltd., v. A.K.Jayaprakash, 2005 (1) CTC2833. IRCON v. Ajay Kumar, 2003-II LLJ15021. In Madurantakam Coop. Sugar Mills Ltd., v. S.Viswanathan, reported in (2005) 3 SCC193 the Hon'ble Apex Court has held as follows : ".19... It is an undisputed fact that the workman had since attained the age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc, and accepting the statement of the learned Senior counsel for the appellant Mills, that it is undergoing a financial crisis, on the fact of this case, we think it appropriate that the full backwages granted by the Labour Court be reduced to 50% of the backwages. In addition, the respondent workman will also be entitled to all other retiral benefits, as if he was in service throughout the period when his services were discharged.".
22. In IRCON v. Ajay Kumar, reported in 2003-II LLJ150 the Hon'ble Apex Court, relying on an earlier decision in Hindustan Tin works Pvt. Ltd., v. Employees of Hindustan Tin Works Pvt. Ltd., and other, reported in AIR1979SC75:
1979. (2) SCC80 quoting the ruling of a Three Judge Bench of the Apex Court, granted backwages. Three Judge Bench of the Apex Court has held as follows : ".In the very nature of things, there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage, the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. ".
23. In P.G.I of Medical Education and Research, Chandigarh v. Raj Kumar reported in 2001 (2) SCC54 the Hon'ble Supreme Court found fault with the High Court in setting aside the award of the Labour Court, which restricted the back wages to 60% and directing payment of full back wages. However, the Apex Court, found that payment of back wages, having a discretionary element involved in it, which has to be dealt with, on the facts and circumstances of each case and no strait-jacket formula could be evolved, though, there was statutory sanction to direct payment of back wages in its entirety. In this regard, earlier decision in Hindustan Motors Ltd., v. Tapan Kumar Bhatacharya and Another, reported in 2002-II-LLJ1156(SC), was also relied on by the Hon'ble Apex Court.
24. In Punjab National Bank Ltd., v. A.K.Jayaprakash, reported in 2005 (1) CTC283 this Court (A.K.Rajan, J), has held that the employee was entitled to 60% back wages with a direction to reinstate the employee forthwith.
25. Mr.V.Selvanayagam, learned standing counsel appearing for the respondents relying on the decision in State of Haryana v. O.P.Gupta, reported in (1996) 7 SCC533 contended that the petitioner is not entitled to claim any back wages. The aforesaid decision was rendered by the Hon'ble Supreme Court, considering the facts and circumstances of the said case. As contended by the learned counsel for the petitioner, it is seen that the aforesaid decision is not applicable to the facts and circumstances of the case on hand.
26. However, on the facts and circumstances, the decision rendered by the Supreme Court in Madurantakam Coop. Sugar Mils Ltd., v. S.Viswanathan, reported in (2005) 3 SCC193(cited supra), is directly applicable to the case on hand. As held by the Hon'ble Apex Court, in the aforesaid decision, here also, as per the case on hand, there is no evidence on the part of the management to establish the charges levelled against the petitioner in the Departmental proceeding and similarly there is no evidence or material to show that the petitioner herein was gainfully employed, during the period of suspension or removal from service. In the referred case also, the order was passed after the retirement of the employee on attaining his superannuation. The Judgment of the criminal case would show that there was honourable acquittal in favour of the petitioner herein and there was no appeal preferred by the respondent herein and therefore, relying on the aforesaid decision, I find it just and reasonable to award 50% of the back wages, as held by the Hon'ble Apex Court, in the said decision.
27. On the aforesaid circumstances, in the light of the decisions referred to above, this Court is of the view that it would be proper, to meet the ends of justice, to hold that the writ petitioner is entitled to 50% of the back wages. Accordingly, the respondents are directed to pay 50% of the back wages to the petitioner. In addition to that he is entitled to all other retirement benefits, as if he was in service, throughout the period and retired on superannuation. The aforesaid direction shall be complied with by the respondents, within eight weeks from the date of receipt of a copy of this order.
28. With the above directions, this writ petition is disposed of. Consequently, connected W.P.M.P.No.12145 of 2005 is closed. No order as to costs. 29-10-2013 Index : Yes Internet : Yes tsvn S.TAMILVANAN, J tsvn To 1. The Chairman Cum Managing Director Tamil Nadu Civil Supply Corporation Limited No.41, Thambusami Road Kilpauk, Chennai 10.
2. The General Manager (Administration) Tamil Nadu Civil Supply Corporation Limited No.41, Thambusami Road Kilpauk, Chennai 10.
3. The Senior Regional Manager Tamil Nadu Civil Supply Corporation Limited No.7, Constranswimth Road Gopalapuram Chennai 86. Pre-Delivery Order in W.P.No.11394 of 2005 29-10-2013