Prayer: Writ petition is filed under Article 226 of Constitution of India for the issuance of a Wit of Certiorari, calling for the records relating to the impugned order of the Board of Directors bearing Proceedings No. DD/09-10 dated 8.2.2010 together with minutes dated 06.11.09, 9.12.09 and 29.1.2010 of the 1st respondent Corporation to quash the same as being illegal malafide arbitrary without jurisdiction and contrary to the findings of the Learned Enquiry Officer dated 21.10.2009 and consequently direct the respondents to continue the petitioner in service as the charge contained in the charge sheet dated 7.4.2003 is not proved with all attendant benefits including seniority and monetary benefits, award costs.
O R D E R
1. The petitioner has impleaded The Tamil Nadu Industrial Investment Corporation Limited (hereinafter called as 'the Corporation') twice, by showing it as respondent nos.1 & 2.
2. The petitioner joined the Corporation, as Assistant General Manager in the year 1987 as direct recruit. The petitioner was due for promotion as DGM in 1994. The submission of petitioner is that promotion was given to others, who were juniors to the petitioner.
3. The petitioner filed representation against non consideration of his case for promotion, on the representation, the State Government directed restoration of the seniority of the petitioner. The petitioner was, therefore, promoted, as DGM in 1995.
4. In the year 2002, the post of General Manager fell vacant. The petitioner was overlooked for promotion and junior to the petitioner D.Sai Baba was promoted as General Manager. The petitioner did not challenge the said promotion, but submits that direct recruits were not given promotion in due time, by the Corporation.
5. The petitioner was served with charge memo on 07.04.2003, which according to the petitioner, was actuated by malafide, as Management wanted to send petitioner out of the Corporation. The reason being that the promotees were of the opinion that direct recruit will get promotion earlier to them.
6. Prior to issuance of charge memo, the Assistant General Manager, who was junior to the petitioner, had issued memo to the petitioner regarding irregularity in T.A. Bills.
7. The petitioner submitted a representation explaining circumstances in which petitioner had to make list minute travel plans as Marketing Head of the Corporation. The petitioner took the assistance of a private travel agent, to get booking by whatever class was available and later on upgraded the ticket during course of journey to Second Class A/C, by paying excess travel fare. It was submitted by petitioner that he was entitled to First Class A/C, whereas he claimed only second class A/C, being the actual fare paid by him.
8. It is the submission of petitioner that respondent Corporation in their counter, to W.P.37805 of 2003, filed by petitioner, had admitted that so far no employee of the Corporation was charge sheeted qua the claim of T.A. Bills, without travel receipts.
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9. The petitioner was issued charge memo on 07.04.2003, and the departmental enquiry was ordered to be held by the General Manager. The petitioner applied for medical leave, which was sanctioned by the Medical Board of Tamil Nadu Government. The enquiry Officer, by ignoring the medical leave, proceeded exparte, in violation of principles of natural justice.
10. The petitioner filed W.P.No.37805 of 2003 to challenge the order of the Corporation, enclosing a copy of the report of enquiry Officer, holding petitioner guilty of charges. The stay of further proceedings was granted by this Court. On 01.03.2004, this Court quashed the enquiry proceedings, and directed the enquiry Officer to commence enquiry from the stage from where petitioner was proceeded exparte.
11. The W.A.No.1443 of 2004, filed by Corporation against the decision of the Hon'ble Single Judge was dismissed.
12. It is the submission of the petitioner that the Managing Director was annoyed with petitioner, for having approached this Court, and decided to hold enquiry herself. The case of petitioner is, that the Managing Director of the Corporation did not allow the petitioner to examine the travel agent as witness in the enquiry and threatened the travel agent. The Managing Director as enquiry Officer also rejected the request of petitioner to examine the Railway Officials, who had written letters Ex.A7 & A8.
13. The petitioner again filed W.P.No.15950 of 2004 for declaration that department enquiry held in pursuance to charge memo dated 07.04.203 was illegal and without jurisdiction.
14. This Court, on 05.06.2004 again granted interim stay. The case of petitioner is that the Hon'ble Single Judge of this Court, vide judgment dated 24.11.2004, took serious exception to the conduct of the Managing Director, and directed her to keep out of enquiry. As requested by the petitioner, the Board of the Corporation was asked to appoint enquiry officer by superseding the Managing Director.
15. In the Board meeting, Mr.N.P.K.Menon, a retired District Judge, was appointed and enquiry officer to hold the enquiry. Before the enquiry officer, the Corporation marked letters Ex.A7 & A8, being the reply given by the Southern Railway to the respondent Corporation, regarding travel detail of tickets bearing PNR Nos. The author of the letters was not examined by the respondent.
16. Whereas the petitioner examined the Free Lance Travel Agent to prove last minute arrangement, to show that initially ticket of lower class was purchased, which was subsequently upgraded, because of his close contact with TTR.
17. The petitioner also examined the retired Railway Chief Ticket Examiner to prove that upgradation was possible in the course of journey.
18. The enquiry officer held the petitioner guilty of the charge by drawing adverse inference against the petitioner, by placing reliance of Ex.A7 & A8, for non production of receipts of TTE for payment of excess amount.
19. The petitioner filed W.P.No.8744 of 2005 for quashing the report of enquiry officer followed by the show cause notice dated 07.02.2005. Vide order dated 21.03.2005, the Hon'ble Single Judge of this Court prohibited the respondents from implementing the decision based on the finding of the enquiry officer. The writ petition was disposed of on 13.09.2008 by this Court, being premature having been filed against the second show cause notice.
20. The management was allowed to communicate the final decision to the petitioner, but implementation of decision was stayed for a month. The petitioner, thereafter, filed W.P.No.24706 of 2008 to challenge the order of punishment of compulsory retirement, with a prayer to permit him to continue in service with all consequential benefits.
21. The writ petition filed by the petitioner was allowed on 05.12.2008.
22. The operative part of the order reads as under:
16. Thus, I am of the view that the non-examination of the Railway Officials, who are the authors of Exs.A-7 and A-8, which is the basis for framing charge memo and holding the petitioner guilty of the charges and denial of petitioners to cross examine the said authors of the documents are denial of reasonable opportunity to the petitioner to establish his innocence. Hence the finding of the Enquiry Officer drawn without examining the said Railway Officials on the basis of Ex.A-7 and A-8 and drawing adverse inference against the petitioner for non-production of receipts to the TTE for payment of excess amount, is to be treated as perverse finding and the consequential decision taken by the first respondent to impose the punishment of major penalty of compulsory retirement against the petitioner is unsustainable.
17. However, it is open to the respondents to proceed with the enquiry against the petitioner by summoning the Railway Officials, who have issued Exs.A-7 and A-8 and give opportunity to the petitioner. If the respondents are willing to conduct enquiry on the above line, the same should be commenced and completed within a period of two months from the date of receipt of copy of this order.
23. The appeal filed by the Corporation against the judgment was also dismissed, but with consent of parties, Mr.Justice K.P.Sivasubramanian, a retired Judge of this Court was appointed as enquiry officer to conduct enquiry with a direction to complete the enquiry before 30.10.2009.
24. In pursuance to the orders passed by the Hon'ble Divisioni Bench, Mr.Justice K.P.Sivasubramanian conducted the enquiry, wherein parties were allowed to lead evidence. The enquiry officer, in view of the judgment passed earlier, exonerated the petitioner of the charges.
25. The enquiry report was placed before the Board of Directors, and on consideration, the impugned show cause notice was issued to petitioner, which reads as under: The Tamilnadu Industrial Investment
Corporation Limited
(Sponsored by the Government of Tamilnadu)
Proceedings of the Board of Directors
Procds.No.DD 08.02.10
Sub: TIIC  DD  Thiru K.P.Perumal, DGM (MIS)  Charge memo issued  Enquiry conducted by Retired High Court Judge  Report furnished  Enquiry Officer's Report placed before the Board  Board decided to vary with Enquiry Officer's decision  Enquiry Officer's report and Board Minutes furnished  Informed to submit written representation, if any
Ref: TIIC Charge Memo No.TIIC/Admn/A6/2003-04 dt.7.4.2003
ORDER:
Thiru K.P.Perumal, Deputy General Manager (MIS) was issued a Charge Memo dt. 7.4.2003 vide reference cited. The Enquiry Officer, Thiru N.P.K.Menon, Retired District Judge, appointed by the Hon'ble High Court in W.P.No.15950 of 2004, submitted his report.
2) In the Writ petition filed by Thiru K.P.Perumal (W.P.No.24706 of 2008) challenging the Enquiry Officer's report, the Hon'ble High Court, Madras directed the TIIC to proceed with the enquiry, summoning the railway official who have issued exhibit A7 & A8.
3) In the Writ Appeal (959 of 2009) filed by TIIC, the Hon'ble Division Bench of the High Court, Madras appointed Mr.Justice K.P.Sivasubramanian (Retd.) as Enquiry Officer to conduct the enquiry.
4) Mr.Justice K.P.Sivasubramanian (Retd.), the Enquiry Officer submitted the report dated 21.10.2009 to the Board of Directors and the enquiry report was placed and discussed in the Board Meetings held on 6.11.09, 9.12.09 and 29.1.2010
5) The Board after careful discussions on the Enquiry Officer's Report, decided to vary with the Enquiry Officer's decision as conveyed in it.
6) The reasons for differing with the Enquiry Officer's report were recorded in the Minutes of the Board Meetings held on 9.12.2009 and 29.1.2010.
7) In pursuant to the decision of the Board meeting held on 29.1.2010, the copies of Minutes of Board meeting held on 6.11.09, 9.12.09 and 29.1.2010 and copy of the Enquiry Officer's report dated 21.10.2009 are enclosed.
8) Thiru K.P.Perumal is informed to submit his representation on the decision of the Board, if any within 15 days from the date of receipt of the communication.
SHEELA RANI CHUNKATH,
CHAIRPERSON & MANAGING DIRECTOR
Proceedings of the Board of Directors dated 29.01.2010
Item No.20
Sub: Proposal to decide further course of action in the disciplinary proceedings against Thiru K.P.Perumal, DGM (MIS)
DIRECTORS PRESENT:
1. Tmt. Sheela Rani Chunkath, IAS
Principal Secretary,
Chairperson & Managing Director, TIIC
2. Dr.Vijay M.Pingale, IAS
Deputy Secretary to Government
Finance Department,
Government of Tamilnadu
3. Thiru Randolph Edmund Rowe
General Manager,
SIDBI.
4. Thiru S.Sundar
Chief General Manager (Retd.)
State Bank of India
5. Thiru D.Gandhi Kumar
President, TANSTIA
LEAVE OF ABSENCE:
1. Thiru P.Selvam, IAS
Addl. Chief Secretary to Government,
MSME Department,
Government of Tamilnadu
2. Thiru Namgial
Chief General Manager
SIDBI
The Chairperson informed the Officers and Thiru MHVS Rama Mohan Rao, Deputy Secretary to Government, Industries Department who were presented for discussion in the other subjects, to stay away from the Board Meeting, as the Board decided to discuss a confidential subject. Hence, the Officers and Thiru MHVS, Rama Mohan Rao, Deputy Secretary to Government, Industries Department stayed out of the meeting.
1.The Board placed very close attention to the subject as it referred to integrity and honesty  basic and critical needs in any executive working in a financial institution; and, also as it involved the severe punishment of dismissal.
2.The Board desired to place on record that all observations and the direction recorded herein were consequent to an independent application of mind by the directors, discussions and perusal of the papers placed. For the last task, the Board called for all relevant records.
3.The Board noted that the two charges framed against the employee, Thiru K.P.Perumal through proceedings dated 7.4.2003, in brief, related to
i)fraudulent T.A. Bill claims by furnishing false details, and
ii)the employee's conduct being unbecoming of an employee of a financial institution
4.After due domestic enquiry, the Corporation had imposed the penalty of compulsory retirement of the employee vie its letter dated 30.9.2008.
5.The Corporation, in its proceedings against the employee, had cited six train travels undertaken by him, for official purpose, where the TA Bill claims had been preferred for travel by II AC Class, with the travels not having been performed as mentioned in the TA Bills, or, with some having been undertaken by a lower class.
6.To help case of understanding, the Board desired to tabulate the travel details in its proceedings, which indicate, in brief, the information presented by the employee in his claims and the certifications issued by the Chief Commercial Manager, Southern Railway, Chennai, for each travel.
I. Chennai Central to Bangalore
Particulars
As per TA Claim
As per Travel and Southern Railway Certificate (Exhibit A8)
Date
31.07.2002
31.07.2002
Class of Travel
II AC
Thiru K.P.Perumal performed the journey in Sleeper Class (Coach No.S-5, Berth No.71)
Ticket Number
28754185
25906568
Cost of Ticket
Rs.717/-
II. Coimbatore to Chennai Central
Particulars
As per TA Claim
As per Travel and Southern Railway Certificate (Exhibit A7)
Date
06.08.2002
06.08.2002
Class of Travel
II AC
Thiru K.P.Perumal performed the journey in Sleeper Class (Coach No.S-9, Berth No.53)
Ticket Number
25692482
25692482
Cost of Ticket
Rs.925/-
III. Chennai Central to Coimbatore (As per TA Claim)
Chennai Central to Salem (As per S.Railway Certificate)
Particulars
As per TA Claim
As per Travel and Southern Railway Certificate (Exhibit A7)
Date
04.07.2002
04.07.2002
Class of Travel
II AC
Thiru K.P.Perumal performed the journey in Second Class (Coach No.S-1, Berth No.102)
Ticket Number
08343542
24058562
Cost of Ticket
Rs.925/-
IV. Chennai Central to Coimbatore
Particulars
As per TA Claim
As per Travel and Southern Railway Certificate (Exhibit A7)
Date
05.08.2002
Class of Travel
AC Chair Car
Ticket Number
25692481
Cost of Ticket
Rs.479/-
Neither the name of Thiru K.P.Perumal nor the ticket number 25692481 were found in the Passenger dump details for journey in all reserved class by Train No.2675 of 5.8.2002
V. Bangalore to Chennai Central
Particulars
As per TA Claim
As per Travel and Southern Railway Certificate (Exhibit A7)
Date
03.08.2002
Class of Travel
II AC
Ticket Number
28754186
Cost of Ticket
Rs.717/-
Neither the name of Thiru K.P.Perumal nor the ticket number 28754186 were found in the Passenger dump details for journey in all reserved class from Bangalore City to Chennai Central.
VI. Madurai to Chennai
Particulars
As per TA Claim
As per Travel and Southern Railway Certificate (Exhibit A7)
Date
12.07.2002
Class of Travel
II AC
Ticket Number
04146271
Cost of Ticket
Rs.895/-
Neither the name of Thiru K.P.Perumal nor the ticket number 04146271 were found in the Passenger dump details for journey in all reserved class from Madurai City to Chennai Central.
7.The proceedings have lasted around six years with both on domestic enquiry by the Corporation and enquiries conducted as directed by the High Court.
8.Referring to the travel, the Board noted that the three travels, viz. Chennai Central to Bangalore, Coimbatore to Chennai Central and Chennai Central to Coimbatore, were certified by the Railways that they were performed by a lower (i.e.Sleeper) class. They contain the relevant ticket number, class and berth number.
This was refuted by the employee. He has claimed that
i.such booking was made by him, but upgraded to the higher class by his paying excess fare to the T.T.E;
ii.the excess fare vouchers could not be produced as they had been handed over by him to the Ticket Collector at the gate;
iii.The certificates conveyed by Southern Railway (through letters marked as 'exhibits A7 and A8) were not dependable as they had been issued without referring to the revised charts.
He had asked for the production of the signatory to these letters for cross examination by him; he had also mentioned that this was not allowed in the Corporation's domestic enquiry, thus vitiating the process.
9.The other three journeys show data in TA Bills indicating travel by II AC. The Railways, however, have recorded that the relative charts do not show any passenger by his name having travelled by any reserved class on the relevant dates; also that the ticket numbers were also not found i the dump details at all, of any reserved class. There was, thus, the Board felt, no proof relating to the employee's travel by any class, upgradation, excess fare etc.
10.The Corporation's proceedings met with several writ petitions filed before the Madras High Court by the employee.
At one of them, when the employee objected to the appointment of the Managing Director, TIIC, as the Enquiry Officer (W.P.No.15950 of 2004), the Hon'ble Court appointed Retired District Judge Thiru N.P.K.Menon to conduct an independent enquiry.
11.The Retired District Judge held, through his Order dated 07.02.2005, inter alia, that,
i.the employee's evidence did not support his contentions; that all the claims were bogus ones; and hence all charges were proven. ii.an opportunity was given to the employee to produce the signatory to exhibits A7 and A8 at the enquiry for cross-examination by the employee; he was asked to place an application to that effect to be considered by the Enquiry Officer. This was not done. iii.The charged employee's contention that it was for the Corporation to prove that he traveled in a lower class was not correct; the burden was on the charged officer only.
12.The above report was forwarded to the charged employee for his explanation. He filed yet another Writ Petition to quash the Administrative Proceedings, including the above report and its findings. The Court directed TIIC on 21.3.05 to take appropriate decision on the employee's explanation and to bring it to the Court's notice before implementing it. It also directed TIIC, on 12.4.05 to go on with administrative proceedings and then await Court directions.
13.The charged employee's representation was placed and discussed in the Board's meetings; he was also permitted to represent his case before the Board. At its meeting 18.8.05, the Board decided to compulsorily retire the employee. The decision was kept in a sealed cover. Later, with permission from the Court the cover was opened and the contents conveyed to the employee.
14.In response to the employee's Writ petition against proceedings, Hon'ble Mr. Justice Paul VasanthaKumar, in his order dated 5.12.2008, set aside the previous Enquiry Officer's report. The order observed, inter alia, that the non-examination of the Railway Officials who were the authors of A-7 and A-8 (report on the travel), basis for the framing of the charge memo and holding the petitioner guilty of the charges, and the denial of the petitioner to cross examine them, are denial of reasonable opportunity to the petitioner to establish his innocence. And, also, that the finding drawn without examining the Railway Officials on the basis of A-7 and A-8 and drawing adverse inference against the petitioner for non-production of receipts for the payment of excess amount, is to be treated as perverse finding. He left it open to the Corporation to continue its enquiry calling the Railway officials as witnesses.
15.The appeal preferred against this order by the Corporation (W.A.No.959 of 2009) was heard by the Hon'ble Bench of High Court. It disposed of the writ appeal through its judgment dated 25.8.2009 wherein it stated we, however, cannot take a different view from the one taken by the Learned Single Judge. Also, ...while we are not interfering with the order passed by the learned Single Judge, we cannot deny the opportunity to the appellants to conduct the enquiry permitted by him...
16.Hon'ble Mr.Justice K.P.Sivasubramanian, retired Judge of High Court, was appointed as the Enquiry Officer for this purpose.
17.The Learned Enquiry Officer's report is as at now, the final one and the one discussed by the Board.
18.The Learned Enquiry Officer clearly mentioned in his report that the scope of his enquiry was to consider two defects pointed out in the previous judgment viz.,
a)Non examination of the author of Exhibits A7 & A8 and denial of an opportunity to the petitioner for cross examination and
b) Drawing adverse inference against the petitioner for non-production of the receipts for the payment of excess amount, were properly dealt.
19.The crucial evidence relating to exhibits A7 & A8 were taken care of in the enquiry by the production of Tmt.V.Vllinayagi, Senior Commercial Manager, Southern Railway, and her cross examination by the charged officer's Advocate.
20.As the Board considered the notings / findings recorded in the enquiry report was important, the Board desired to reproduce the same in its proceedings., ie.,
15. I have perused the evidence of Mrs.Vallinayagi, apart from having watched her demeanor and I have no doubt in my mind that Ex.A7 and A8 had been properly and adequately provd and established. She has very clearly stated the following facts and the very detailed cross examination is no help to the petitioner to the extent as mentioned below:
1.The witness is the author of the said two letters.
2.The witness had the authority to send those letters on behalf of the Railways.
3.The witness has signed both the letters after full verification of the facts from the file / records produced before her.
4.The witness has verified the records relating to the subject PNRs, cancellation details, live charts which are available for a period of 6 months (question No.10)
5.The witness has very categorically stated that no pressure was put on her by any official from the Corporation. The attempt on the part of the petitioner to bring out in the cross examination that the signatory of Ex.A7 & A8 was under some pressure from the Corporation to give a favourable reply or that any bias had been created in her mind, is found to be baseless.
16.In the cross examination, strenuous attempt was made on behalf of the petitioner to show that the facts stated in Ex.A7 & A8 were not based on any material, that the signatory had without any supporting materials had mechanically signed the letters and that at any rate, some kind of pressure was put on the railways / the signatory to respond favourably to the Corporation on queries raised by the Corporation. The said attempt was not successful and the witness had categoriclly stated that the conclusion arrived at by her were based on facts revealed by the connected records and that she as the signatory had personally satisfied herself about the facts. Much ado was made about the non availability of the records as on date due to periodical destruction of the records. Mere absence of or non-availability of the records alone cannot vitiate an official communication or a record containing conclusion based on all the necessary records. Ex.A7 & A8 are contemporaneous records which are sufficient to lead to a presumption that they are based on proper and sufficient materials. Apart from the fact that in a domestic enquiry decree of proof is not as strict as in civil / criminal cases, even in criminal cases official communications per se are acceptable without supporting materials. For instance a post mortem report which is only a summary of the various reports of analysis is accepted without any challenge or the need to produce supporting materials. The various reports of analysis which form the basis of post mortem report are destroyed in course of time and their non production along will not vitiate the Report. Therefore, the attempt on the part of the petitioner to take advantage of the fact that the basic records like the dump details and reservatioin chart etc not being available as on today cannot result in throwing out the evidence of a person who is the actual author and signatory of Ex.A7 & A8 and her positive evidence that the said letters were signed by her only after satisfying herself from the records. If according to the petitioner, there was any necessity to call for and retain the records, then even during the enquiry he ought to have called upon the Enquiry Officer to summon the records and to be retained along with the enquiry proceedings. Not having done so, to insist on the production of dump details, reservation chart etc. at this distance of time cannot at all be appreciated.
17.Therefore, I have no hesitation in concluding that Ex.A7 and A8 have been adequately and satisfactorily proved.
18.However, the Corporation has yet another hurdle to cross, vide ground No.2 mentioned in Para No.12, supra. The defence of the petitioner is that the ticket was upgraded by paying an excess fare. The least he could have done is to have produced the receipt for having paid the excess fare. Learned counsel for the Corporation very vehemently contended that the Corporation cannot be asked to establish the negative. The actual prevailing scenario is that once the ticket checking inspector checks the ticket in the reserved coaches at the starting point itself and the ticket is handed over to the passenger, there is no occasion at all for surrendering the ticket either on the way or the station where the passenger alights and leaves the train. Though technically passengers were supposed to hand over the tickets at the exit point of the Railway station, practically speaking, no passenger surrenders the ticket nor is there the demand by the checking personnel to surrender the ticket. Checking at the point of alighting on the platform itself is done only in cases of unreserved coaches and that also rarely. Even if a passenger volunteers to surrender the ticket at the exit point, there is no necessity to hand over the receipt and normal conduct of the person in the position of the petitioner who has to file his claims for the excess fare spent by him will be to retain the receipt and to surrender only the ticket. In all cases where the passenger is entitled to claim reimbursement, they retain the ticket / receipts with them. In the said circumstances, learned counsel contends that it would be casting the burden wrongly to ask the Corporation to prove that the petitioner did not have the ticket upgraded.
19.There is much force in the submission of the learned counsel for the Corporation. But I cannot go beyond the parameters laid by the Hon'ble Court...
21.The Board was convinced that these findings and recordings confirmed the Corporation's stand that the TA Bill claims of Thiru K.P.Perumal were, indeed, bogus ones. The basis burden in the charged officer's arguments, viz. the non production of the railway official and his inability to cross examine him, have also been laid to rest.
22.The Board concluded that this and the other three travels viz. Chennai Central to Coimbatore, Bangalore to Chennai Central and Madurai to Chennai Central, for which railway certified that the relative chart did not show any passenger by his name and the ticket number were not found in the dump details, fully consolidated the Corporation's proving the employee as guilty.
23.The Board noted further the Learned Enquiry Officer's findings at Para 19 of the Report,
19. ...the finding of the Enquiry Officer drawn without examining the said railway officials on the basis of Ex.A7 and A8 and drawing adverse inference against the petitioner for non production of receipts to the TTE for payment of excess amount, is to be treated as perverse finding...... that being so, it is not open to me to conclude otherwise
The Learned Enquiry Officer has not correctly interpreted the order of Mr.Jutice Paul VasanthaKumar, who has only observed that the previous Enquiry Officer (Thiru N.P.K.Menon) having not examined the author of Ex.A7 and Ex.A8 should not have drawn adverse inference against the employee for non production of receipts to TTE for payment of excess amount.
25.The Learned Judge for that reason had permitted the Corporation to conduct enquiry by summoning the Railway Official in light of Ex.A7 and Ex.A8 and permitting the employee to cross examine the said official. Pursuant to the same, the Learned Enquiry Officer had presently called upon the author of Ex.A7 and Ex.A8 and after conducting elaborate enquiry had clearly found that Ex.A7 and Ex.A8 have been adequately and satisfactorily proved. He had also found that the Corporation having proved the veracity of Ex.A7 and Ex.A8 it is not the burden of the Corporation to prove that the employee has paid the excess amount to the TTE. But, the learned Enquiry Officer failed to take note of the fact that in view of the fresh enquiry conducted specifically regarding Ex.A7 and Ex.A8, the finding of the Learned Single Judge will not apply to the present Enquiry proceedings. Hence, conclusion of Learned Enquiry Officer is not only against his own clear and adequate findings, but is also not in consonance with the intention of the order of the Learned Single Judge and as confirmed by Hon'ble Division Bench.
26.Hence, it is clear that the finding of the Learned Single Judge in his order dated 5.12.2008 in W.P.No.24706 of 2008, which reads as follows:
16. ... the finding of the Enquiry Officer drawn without examining the said railway officials on the basis of Ex.A7 and A8 and drawing adverse inference against the petitioner for non production of receipts to the TTE for payment of excess amount, is to be treated as perverse finding..... pertains only to the enquiry report of the previous Enquiry Officer (Thiru N.P.K.Menon)
27.The Board after taking all these into careful consideration, concluded that,
a) The Corporation's finding the employee as guilty of the charges framed against him was actually strengthened by this enquiry and not weakened in any manner; and
b) The conclusion by the Learned Enquiry Officer viz., not proven, was not aligned to his own enquiry findings.
28.The Board, therefore, felt that it would be in order for the Corporation to convey to the employee charged, viz., Thiru K.P.Perumal, DGM, that it differed with the Enquiry Officer's report, with the reasons thereof. The Board, hence, authorised the Chairperson & Managing Director of the Corporation, to do so and also to furnish a copy of the Enquiry Officer's report along with the Minutes of the Board Meeting to the employee charged.
29.The Board further decided to give the employee charged, Thiru K.P.Perumal an opportunity to represent his case, in writing, in response to the Board's observations and decision; also that his representation should reach the Board within 15 days from the date of receipt of the Board's decision.
30.The Board further decided that the representation of the employee charged, if any received from him, has to be placed in the Board Meeting for its consideration.
Sd/-
Principal Secretary /
Chairperson & Managing Director
26. Learned Senior Counsel appearing on behalf of petitioner vehemently contended, that the impugned notice cannot be sustained in law, as it has been issued with pre-determined mind to punish the petitioner. In support of the contention, that it was open to the petitioner to challenge the show cause notice, reliance was placed on a judgment of the Hon'ble Supreme Court in the case of Chief of the Army Staff and others vs. Major Dharam Pal Kukrety, 1985 (1) LLJ 165, wherein the Hon'ble Supreme Court was pleased to lay down as under: 5. The same contentions, as were raised before the High Court, were taken before us at the hearing of this Appeal. We will first deal with the Appellants' preliminary objection that the Respondent's writ petition was not maintainable as being premature. It was the Respondent's case that the Chief of the Army Staff had no jurisdiction to issue the impugned show cause notice after he had been again found not guilty by the court-martial on revision. The said notice expressly stated that the Chief of the Army Staff was of the opinion that the Respondent's misconduct as disclosed in the proceedings rendered his further retention in service undesirable and asked him to submit his explanation and defence, if any, to the charges made against him. If the Respondent's contention with respect to the jurisdiction of the Chief of the Army Staff to issue the said notice were correct, the Respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the Respondent would have then suffered a grave, prejudicial injury by an act which was without jurisdiction. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Court's protection. If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not be open to the Respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature. This was, however, not a contention which could have been decided at the threshold until the court had come to a finding with respect to the jurisdiction of the Chief of the Army Staff to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the Respondent's writ petition was not premature and was maintainable.
27. This judgment is of no help to the petitioner, as the Hon'ble Supreme Court, held that in case the Chief of Army Staff had the power in law to issue show cause notice, then it would not have been open to the employee to approach the court under Article 226 of the Constitution at the stage of notice as in such an event, writ petition could be said to be pre mature.
28. It cannot be disputed that report by enquiry officer was required to be placed before the competent authority, and that the jurisdiction for the competent authority to disagree with the enquiry report cannot be disputed, therefore, it cannot be said that show cause notice is without jurisdiction, so as to attract the law laid down in this judgment, to hold that show cause notice could be challenged.
29. Learned Senior Counsel for the petitioner thereafter placed reliance on the judgment of the Hon'ble Supreme Court in the case of Siemens Ltd vs. State of Maharashtra and others, (2006) 12 SCC 33, to contend that though ordinarily a writ Court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless it is without jurisdiction. However, when the notice is issued with premeditation, a writ petition would be maintainable.
30. The Hon'ble Supreme Court in this case was pleased to lay down as under:
9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P v. Brahm Datt Sharma, Special Director v. Mohd. Ghulam Ghouse and Union of India v. Kunisetty Satyanarayana, but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose (See K.I. Shephard v. Union of India). It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show-cause notice.
31. The contention of the learned Senior Counsel for the petitioner was that the impugned show cause notice deserves to be set aside, as its reading shows that respondents have already made up their mind to punish petitioner, therefore, show cause notice is mere formality.
32. Though proposition of law cannot be disputed, but it cannot be applied to the facts of this case. It is the duty of the competent authority to issue notice to the employee concerned, if it disagrees with the finding of the enquiry officer. The law also requires the competent authority to give reasons for disagreeing with the enquiry officer, further stipulates that show cause notice has to be given to the employee.
33. The show cause notice cannot be quashed by holding it to be pre-determined action on the part of respondent. In Siemens Ltd vs. State of Maharashtra and others, (supra), it was a show cause notice with regard to recovery, which could be quashed, but report of enquiry officer has to be considered by the competent authority, who has to either reject or accept it.
34. It is not within jurisdiction of this Court to issue direction to the competent authority to act in a particular manner and accept the enquiry report. The contention of the learned Senior Counsel, that enquiry being by the Hon'ble Retired Judge of this Court, has to be accepted, only deserves to be noticed to be rejected.
35. Learned Senior Counsel for the petitioner thereafter vehemently contended that according to the Service Rules, the appointing authority in the case of petitioner is the Managing Director. Where show cause has been issued by the Board of Directors, which is appellate authority, therefore, impugned notice is patently without jurisdiction, as it takes away the right of petitioner to file appeal. In support of this contention, learned Senior Counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in the case of Electronics Corporation of India vs. G.Muralidhar, (2001) 10 SCC 43, wherein the Hon'ble Supreme Court was pleased to lay down that the power to impose punishment cannot be exercised by the appellate authority, as it may result in denial of right of appeal This proposition of law is well settled and cannot be disputed. However, when the service conditions are not governed by statutory rules and are only contractual in nature, then the parties by mutual consent can deviate from it.
36. In reply to the contention of the learned senior counsel for the petitioner, the learned Senior Counsel appearing on behalf of the respondents vehemently contended the petitioner is estopped by his own conduct from challenging the authority of the Board of Directors to issue show cause notice. The contention of the learned senior counsel was, that it was on the request of the petitioner that the Board of Directors accepted the request of the petitioner in pursuance to the direction of this Court, to appoint an independent enquiry officer. The retired District Judge was appointed as enquiry officer, therefore, the petitioner by his conduct is now estopped by challenging the jurisdiction of the Board to issue notice.
37. On being question by this Court as to how there could be estoppel against law in view of service rules, which defined the appointing authority and take away the right of appeal from the petitioner, the learned senior counsel for the respondent pointed out, that service rules framed by the Corporation are only a contract for service, having no statutory force of law, therefore, it is open to the parties to modify or change the terms by consent, as has been done by this Court with consent of the parties, by directing the Board of Directors to appoint an enquiry officer.
38. In support of this contention, learned Senior Counsel for the respondents placed reliance on the judgment of the Hon'ble Supreme Court in National High School, Madras vs. Education Tribunal and another, AIR 1992 SC 717, laying down as under: 4. The argument for the appellant before us is that there is no statutory obligation for the school committee to conduct the enquiry against the school teacher and the enquiry could be held either by the school committee or by any third person. In our opinion, it is unnecessary to decide this issue since the appeal could be conveniently disposed of on another ground. It is not in dispute that the respondent himself demanded that the enquiry should be held by educationists other than the school committee. That request seems to have been necessitated since he has made accusations against the Headmaster of the School. Accordingly a committee of outsiders was appointed to hold the enquiry. The respondent participated in the enquiry and did not at any time raise objection as to the jurisdiction of the committee. He was, therefore, estopped from raising the objection as to the jurisdiction of the school committee. Secondly, the Form No. VII(A) relied upon by the Division Bench of the High Court is a form under which the agreement shall be executed by the school committee while appointing a school teacher. By consent the terms of the agreement could be changed and that is what the parties seemed to have done in this case.
5. Mr. Rangam, learned Counsel for the respondent, relied upon the letter dated 24 April, 1975 said to have been written by the respondent. Counsel wanted to infer from the contents of that letter that the respondent wanted the school committee itself to hold an enquiry against him. But we do not find any support for the contention from that letter. All that he stated in the letter was that the committee should hold an enquiry strictly in accordance with the Act and Rules. Apart from that the letter was written on 25 April, 1975. The Enquiry Committee was constituted on 22nd April, 1975. Even in that letter he did not object to the Constitution of the Enquiry Committee.
6. In the result, we allow the appeal, set aside the judgment of the Division Bench and uphold the judgment of the learned single Judge but not for the reasons stated therein.
39. On consideration, I find force in the contention raised by the learned senior counsel for the respondents. The petitioner had challenged the authority of Managing Director, and in view of the fact that this Court, by accepting the plea of petitioner, had directed the Board of Directors to appoint an enquiry officer, no fault can be found with issuing of show cause notice by the Board of Directors.
40. It was also contended by the learned senior counsel for the petitioner that whole of the Board of Directors have not issued the show cause notice, therefore, show cause notice issued is not valid. This contention again deserves to be noticed to be rejected, as the coram of the board was complete in issuing show cause notice, therefore, it is to be treated on behalf of whole of the Board.
41. Learned senior counsel for the petitioner finally contended that once the Hon'ble retired Judge of this Court exonerated the petitioner, it is not open to the Board of Directors to disagree with him, as Corporation is bound to accept his finding, exonerating the petitioner, by relying on in the finding recorded by this Court in W.P.No.24706 of 2008.
42. This contention of the learned Senior Counsel for the petitioner again deserves to be rejected. This Court would not like to comment on the finding of the enquiry officer, as it may prejudice the right of either of party in considering the question on merit, but it may be observed that it cannot be said that the Hon'ble High Court had exonerated the petitioner as in that case, there was no necessity to appoint an enquiry officer to proceed with the enquiry further.
43. It may also be noticed that merely because the enquiry officer happens to be a retired Judge of High Court, still as per law, the report of enquiry officer has to be considered by the competent authority. It is for the authority to show grace, but it does not give any legal right to the petitioner to challenge the show cause notice, calling upon the petitioner to submit his explanation, only on the ground that enquiry officer is a retired Judge of this Court.
44. No merits. Dismissed.
45. No costs. Connected miscellaneous petition is closed.