Tatakula Siva Rama Krishna Prasad vs The State Of Andhra Pradesh
2023 Latest Caselaw 796 AP

 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                 WRIT PETITION No. 4527 of 2018

ORDER:

This writ petition is filed for the following relief:

" ..... to issue a writ, order or direction, more particularly, one in the nature of writ of certiorari by calling the records by declaring the action, things and deeds of respondents in terminating the petitioner from service by proceedings dated 24.11.2016 issued by the 3rd respondent which are illegal, irregular, arbitrary and contrary to the provisions of the A.P. Co-operative Societies Act, 1964 and its Rules and against to the Memorandum of Settlement arrived between the Andhra Pradesh Co-operative Banks' Association, Hyderabad and the Andhra Pradesh Bank Employees Federation/Andhra Pradesh Co-operative Central Banks employees Association on 07.07.2008, against to the directions of this Court in W.P.No.41141 of 2015 dated 20.07.2016 and also in violation of Articles 14, 19, 21 and 311 of the Constitution of India and consequently, to set aside the proceedings dated 24.11.2016 by re-instating the petitioner into service with all benefits including back wages and to pass such other order or orders as this Court may deem fit and proper in the circumstances of the case."

2. Heard Sri Narasimha Rao Gudiseva, learned counsel for the

petitioner, learned Government Pleader for Cooperation appearing

for respondent Nos.1, 2, 4 and 5 and Sri A. Rajendra Babu, learned

counsel for respondent Nos.3 and 6.

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3. Learned counsel for the petitioner would submit that the

petitioner joined as Paid Secretary in P.A.C.S., Pedaparupudi, on

12.10.1984. Thereafter, he got promotion and he was posted as

Special Category Assistant (Staff Assistant) in the K.D.C.C.

Branch, G.Konduru, 6th respondent herein, on 18.01.2012. While

so, an enquiry under Section 51 of the A.P. Cooperative Societies

Act, 1964 was conducted on the affairs of the 6th respondent by the

Enquiry Officer. On the basis of the enquiry report of the Enquiry

Officer dated 10.07.2012, the petitioner was kept under suspension

vide proceedings dated 03.10.2012 by the 3 rd respondent.

Thereafter, a charge memo dated 27.11.2012 was issued alleging

that the petitioner, in connivance with one T.Murali Krishna,

AM/Cashier, raised seven demand drafts worth Rs.8,67,000/- and

shown gross negligence in discharge of duties and misappropriated

the funds of the bank to an extent of Rs.4,33,500/-.

i) The learned counsel would also submit that after receipt of

the Enquiry Report, the 3rd respondent appointed one A. Sudhakara

Rao, Advocate, as a Domestic Enquiry Officer by proceedings

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dated 15.01.2014 to enquire into the charges/allegations levelled

against the petitioner. In the enquiry, the petitioner specifically

pleaded that he did not commit any misappropriation of funds of

the bank. More so, the Domestic Enquiry Officer did not permit

the petitioner to engage an advocate on his behalf and also not

provided a proper opportunity to defend his case. After completion

of enquiry, the Domestic Enquiry Officer submitted a report

holding that the charges levelled against the petitioner were

proved. Subsequently, the 3rd respondent issued a show cause

notice dated 15.06.2015 to the petitioner to inflict a punishment of

termination from service, for which the petitioner submitted an

explanation dated 08.08.2015.

ii) The learned counsel would further submit that the 3 rd

respondent simply issued an order terminating the services of the

petitioner from service on 12.10.2015 by accepting the domestic

enquiry report. In the order of termination, it was mentioned that

no written objections were filed, though the petitioner submitted a

written explanation on 08.08.2015 itself. Aggrieved by the same,

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the petitioner filed W.P.No.41141 of 2015 before this Court. This

Court allowed the writ petition by an order dated 20.07.2016

setting aside the order dated 12.10.2015 and directed the 3 rd

respondent to consider the explanation of the petitioner and pass

appropriate orders in accordance with law. Pursuant thereto, the

petitioner submitted a representation dated 08.10.2016 to the 3 rd

respondent seeking permission to engage an advocate and to

submit oral submissions on the date of hearing. Then, the 3 rd

respondent issued a notice dated 11.11.2016 through e-mail

informing the petitioner about the personal hearing on 15.11.2016

at 3.00 p.m. But, the same was noticed by the petitioner after the

expiry of the date of hearing. Then, the petitioner submitted

another representation dated 24.11.2016 stating all the facts about

observing the notice dated 11.11.2016 sent through e-mail on

20.11.2016 and requested for providing an opportunity of hearing.

But, contrary to the representation of the petitioner as well as the

orders of this Court, the 3rd respondent issued the impugned

proceedings of termination of the services of the petitioner dated

24.11.2016.

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iii) The learned counsel would contend that the impugned

proceedings dated 24.11.2016 are passed totally ignoring the

directions of this Court vide order dated 20.07.2016 in

W.P.No.41141 of 2015 and without considering the explanation of

the petitioner dated 08.08.2015 as well as the representations dated

08.10.2016 and 24.11.2016. He would further submit that as per

the surcharge proceedings, the petitioner misappropriated an

amount of Rs. 4,33,500/-, whereas the 5th respondent concluded the

enquiry and held that the petitioner misappropriated an amount of

Rs.9,000/- only. Though the misappropriated amount is Rs.9,000/-

which is meagre, the 3rd respondent imposed major punishment of

dismissal of petitioner from service which is certainly

disproportionate to the allegations levelled against the petitioner.

The learned counsel would contend that the 3rd respondent passed

the impugned order without observing the principles of natural

justice as directed by this Court and without conducting proper

enquiry as per the Article 311 of the Constitution of India. In

support of his contentions, the learned counsel relied upon the

judgments of the Hon'ble Supreme Court in Board of Trustees of

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the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni1,

M/s. Lakmirattan cotton Mills Co.Ltd., Vs. Its Workmen2, and

also the judgment of the High Court of Madras in S.Venkataraman

Vs. Deputy Registrar of Co-operative Societies3. Therefore, the

impugned proceedings are liable to be set aside.

iv) In Dilipkumar Raghavendranath Nadkarni case (1 supra),

the Hon'ble Supreme Court held in paras 8,9,11,13 and 14 of its

judgment held thus:

"8. The time honoured and traditional approach is that a domestic enquiry is a managerial function and that it is best left to management without the intervention of persons belonging to legal profession. This approach was grounded on the view that a domestic tribunal holding an enquiry without being unduly influenced by strict rules of evidence and the procedural jagger-naught should hear the delinquent employee in person and in such an informal enquiry, the delinquent officer would be able to defend himself. The essential assumption underlying this belief is questionable but it held the field for some time and there are decisions of this Court in Brooke Bond India (Pvt.) Ltd. v. Subba Raman (S) and Anr. [1961] 2 L L J 417 and Dunlop Rubber Co. v. Workmen (1965)ILLJ426SC, in which it has been held that in a disciplinary enquiry before a domestic tribunal a person accused of misconduct has to conduct his own case and

(1983) 1 SCC 124

AIR 1975 SC 1689

1976 LawSuit (Mad) 469=1978 (1) MadLJ 284

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therefore as a corollary it cannot be said that in such an enquiry against a workman natural justice demands that he ought to be represented by a representative of his Union much less a member of the legal profession. While buttressing this approach, an observation was made that unless rules prescribed for holding the enquiry do not make an enabling provision that the workman charged with misconduct is entitled to be represented by a legal practitioner, the Enquiry Officer and/or the employer would be perfectly justified in rejecting such a request as it would vitiate the informal atmosphere of a domestic tribunal. A strikingly different view was sounded by Lord Denning in Pet v. Greyhound Racing Association Ltd.

[1968] 2 All E.R. 545, wherein the concerned authority directed an enquiry to be held into the withdrawal of a trainer's dog from a race at a stadium licensed by the National Greyhound Racing Club. The rules of the Club did not prescribe the procedure to be followed in such an enquiry, and there was negative provision excluding a legal practitioner from such an enquiry. The procedure for enquiry was the routine one of examination and cross- examination of the witnesses. The licensee charged with misconduct sought permission to be represented by counsel and Solicitor at the enquiry, which request was turned down by track stewards. When the matter reached the Court of Appeal, Lord Denning observed as under :

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.

The trend therefore is in the direction of permitting a person who is likely to suffer serious civil or pecuniary consequences as a result of an enquiry, to enable him to defend himself adequately, he may be permitted to be represented by a legal practitioner. But we want to be

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very clear that we do not want to go that far in this case because it is not necessary for us to do so. The all important question: where as a sequel to an adverse verdict in a domestic enquiry serious civil and pecuniary consequences are likely to ensue, in order to enable the person so likely to suffer such consequences with a view to giving him a reasonable opportunity to defend himself, on his request, should be permitted to appear through a legal practitioner is kept open.

9. We concern ourselves in this case with a narrow question whether where in such a disciplinary enquiry by a domestic tribunal, the employer appoints Presenting- cum-Prosecuting Officer to represent the employer by persons who are legally trained, the delinquent employee, if he seeks permission to appear and defend himself by a legal practitioner, a denial of such a request would vitiate the enquiry on the ground that the delinquent employee had not been afforded a reasonable opportunity to defend himself, thereby vitiating one of the essential principles of natural justice.

11. 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

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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

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person against whom enquiry is held must be afforded a reasonable opportunity to defend himself.

13. We would reach the same conclusion for a different reason altogether. The first respondent while submitting a reply to the charge-sheet dated 14th April 1975 requested the Chairman of the appellant to permit him assistance of an advocate at the enquiry. This request was refused and the decision was conveyed by the Dock Manager as per his letter dated March 1975. The enquiry opened on April 13, 1976. By May 8, 1976 evidence of only one out of 25 witnesses of the employer was offered and the second witness was under examination. On that date Bombay Port Trust Employees (Regulation) 1976 admittedly came into force. The relevant Regulation 12(8) is extracted herein before. The latter portion of the regulation practically borrows the language of Sub-rule (5) of Rule 15 referred to herein before, in that it provides that the delinquent officer may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the Disciplinary Authority is the legal practitioner or the Disciplinary Authority having regard to the circumstances of the case so permits. Now the first respondent had already submitted his request for appearing through a legal practitioner at the enquiry. This eminently just request was turned down on untenable grounds, and to make matters worse for the delinquent employee two law officers of the appellant were appointed Presenting-cum-Prosecuting officers. Assuming that in the absence of rules the Chairman has a discretion which was required to be exercised wisely yet taking shelter behind legal facade it was exercised against the first respondent because he was not under any statutory obligation to grant this request. However, when Regulation 12(8) came into force the situation materially altered and the large number of witnesses almost all except one were examined after the Regulation came into

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force and which made it obligatory to grant the request of the first respondent because the regulation provided granting of permission to appear and defend by a legal practitioner once the department was represented by legally trained minds. A very feeble submission was made by Mr. Nariman that after the Regulation 12(8) came into force, the request was not renewed. In our opinion, that is hardly relevant. The unjustly refused request was already there and obligation under the regulation coupled with fairplay in action demanded that the employer should have suo motu reviewed his order refusing the request. 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-Persecuting 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. In this connection, we would like to refer to a weighty observation on this point where despite constitutional inhibition this Court conceded such a right. In K. Roy v. Union of India, 1982CriLJ340, the learned Chief Justice while rejecting the contention that a detenu should be entitled to appear through a legal adviser before the Advisory Board observed that Article 22(3)(b) makes it clear that the legal practitioner should not be permitted to appear before an Advisory Board for any party. While noting this constitutional mandate, the learned Chief Justice proceeded to examine, what would be the effect if the department is represented before the Advisory Board by a legally trained person. It was held that in such a situation despite the inhibition of Article 22(3)(b) the fair procedure as contemplated by Article 21 requires that a detenu be permitted to appear by a legal practitioner. Thus spoke the learned Chief Justice :

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We must therefore make it clear that if the Detaining Authority or the Government take the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that Officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such Officers are not "legal practitioners" or legal Advisers.

And this view was taken as flowing from Article 21 which mandates that no one shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The expression 'life' does not merely connote animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning. Where therefore the outcome of a departmental enquiry is likely to adversely affect reputation or livelihood of a person, some of the finer graces of human civilisation which make life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fair procedures. In this context one can recall the famous words of Chapter II of Bhagwad Gita :

Sambhavitasya Cha Kirti Marnadati Richyate Therefore in this case, there can be no doubt that for the additional reason that after the Regulation 12(8) came into force, the first respondent should have been given a reasonable opportunity to appear through legal practitioner and failure on their part had vitiated the enquiry. For these reasons, this appeal fails and is dismissed with costs quantified at Rs. 2,000.

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14. Now, we may note the consequence of this decision. As the decision reached by the domestic tribunal is held to be vitiated on the ground that the enquiry was held in violation of the principles of natural justice on the ground that the first respondent was not afforded a reasonable opportunity to defend himself, the High Court was justified in quashing the order of dismissal. The sequel to our order would certainly mean that it would be open to the appellant to continue the enquiry. But it must be expedited. We therefore direct that while continuing the enquiry, it will be open to the appellant to treat the examination-in-chief of each witness already recorded during the enquiry as proper but all witnesses examined at the enquiry will have to be offered to the first respondent for cross-examination and the respondent would be entitled to appear through a lawyer of his choice and even examine witnesses and participate in the enquiry. The earlier cross-examination may also be retained as part of the record. Both sides would be entitled to adduce fresh evidence both document and oral, if considered necessary. The first respondent would be entitled to call upon the appellant to produce any document which he desires for effective adjudication subject to the decision of the Enquiry Officer about its relevance and necessity for efficient and just disposal of the enquiry. As the order of dismissal is being set aside and the enquiry is being continued, the order suspending the first respondent from service pending enquiry would be revived and the appellant should pay substance allowance throughout this period and till the end of the enquiry which would be continued hereafter after taking credit of whatever payment that had been made since the suspension order and till today. The payment herein directed should be made within a month from today."

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v) In Lakmirattan Cotton Mills Co. Ltd case (2 supra), the

Apex Court held in paras 9,10 and 11 of its judgment as follows:

"9. We must then proceed to consider whether the domestic enquiry held by the appellant culminating in the dismissal of these twenty-one workmen was a proper enquiry conducted in accordance with the principles of natural justice and in conformity with Standing Order 26. If the domestic enquiry was in breach of the requirements of Standing Order 26 or in violation of the principles of natural justice, it would be vitiated and the dismissal of these twenty-one workmen consequent upon it would be invalid. The Industrial Tribunal, as already pointed out, found, in the main, three infirmities in the domestic enquiry. We need not discuss the first two infirmities- whether the view of the Industrial Tribunal in regard to them was correct or not-as we find that the Industrial Tribunal was right in holding that the third infirmity vitiated the domestic enquiry. The view taken by the Industrial Tribunal was that the domestic enquiry was invalidated because the notices issued by the appellant to these twenty-one workmen after receipt of reports of the Labour Officer finding them guilty of the misconduct charged against them, were not served on them, nor were they given a proper and adequate opportunity to show cause why the punishment of dismissal should not be imposed on them. The learned Counsel appearing on behalf of the appellant made a heroic attempt to assail the correctness of this view, but we are afraid this attempt cannot succeed. Clause (c) of Standing Order 26 provides that where it is proposed to inflict the punishment of dismissal for any misconduct, the workman shall be given notice in writing to show cause within a specified period why the proposed punishment may not be awarded and along with such notice he shall be given a copy of the findings of the enquiring officer on the charge or charges.

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This clause clearly contemplates a notice to be given to the workman for the purpose of enabling him to show cause within a specified period as to why the proposed punishment of dismissal should not be inflicted on him. The notice is required to be given not as a mere idle formality; it has a meaning and a purpose. It is intended to provide an opportunity to the workman to show cause against the proposed punishment of dismissal. The workman may show that the findings of the enquiring officer are not justified on the evidence on record or that even if the findings, are justified, they do not warrant the extreme penalty of dismissal from service having regard to the nature or gravity of the misconduct, the past record of the workman and any other extenuating circumstances. The notice must, therefore, give a reasonable opportunity to the workman. That is a condition precedent which must be satisfied before an order of dismissal can be validly passed by the employer.

10. Here in the present case, it is obvious from the various timings notified to the erring workmen at which the domestic enquiry would be held against different groups of workmen, that the domestic enquiry against the first group of workmen must have commenced at 10 a.m. and against the last group of workmen, it must have ended not earlier than 9.15 p.m. on 21st October, 1972. The Labour Officer must then have prepared his reports setting out the conclusions reached by him on the evidence recorded at the domestic enquiry and these reports must thereafter have been forwarded by the Labour Officer to the Manager of the appellant. The Manager of the appellant, on receipt of these reports from the Labour Officer, must have considered the cases of these different groups of workmen in the light of these reports and the evidence recorded at the domestic enquiry for the purpose of satisfying himself prima facie that the workmen were guilty of the misconduct charged

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against them, before issuing notices calling upon them to show cause why they should not be dismissed from service. This whole procedure must have taken a certain amount of time and the show cause notices inter alia to the twenty-one workmen concerned in this appeal, could, therefore, have been issued at the earliest not before 10.30 pm. on 21st October, 1972. Now admittedly, no attempt was made to serve the show cause notices on any of these twenty-one workmen and the only mode in which service was purported to be effected was by pasting the show cause notices on the notice board of the mill. We may point out that this mode of service adopted by the appellant was wholly unjustified and that in itself introduces a serious infirmity in the domestic enquiry, unless it can be shown by the appellant that these twenty- one workmen were otherwise aware of the contents of the show cause notices and no prejudice was occasioned to them by reason of non-service of the show cause notices. Of that, however, there is no evidence, as there is nothing to show that these twenty-one workmen read the show cause notices on the notice board of the mill. It must be remembered that almost all the workmen of the appellant, including these twenty-one workmen, were on strike and no presumption can, therefore, be drawn that they would look at the notice board and read the show cause notices pasted on it. But even if we assume in favour of the appellant that these twenty-one workmen must have looked at the notice board and seen what was pasted there, it is clear from what is stated above that the show cause notices could not have been pasted on the notice board before 10.30 p.m. on 21st October, 1972. If that be so, the earliest that these twenty-one workmen could possibly come to know of the show cause notices would have been the next day, that is 22nd October, 1972, but that day happened to be a closed day for the mill and none of these twenty-one (workmen could, therefore, be expected to be present and was in fact present at the mill,

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so that he could come to know about the show cause notices by looking at the notice board. These twenty-one workmen could not, in the circumstances, have looked at the notice board earlier than 23rd October, 1972 when they came to the mill in the morning for the purpose of their sit-in-strike. But the time specified in the notices within which these twenty-one workmen were required to show cause against the proposed punishment of dismissal was 10 a.m. on 23rd October, 1972 and that would mean that they had hardly a couple of hours within which to show cause against the action proposed to be taken against them. It does not need much argument to come to the conclusion that this could hardly be regarded as affording a reasonable opportunity to these twenty-one workmen to show cause against the proposed punishment of dismissal. There can, therefore, be no doubt that there was not only non-compliance with the requirements of Clause (c) of Standing Order 26 but also infraction of the principles of natural justice. The orders of dismissal passed against these twenty-one workmen could not, in the circumstances, be justified on the basis of the domestic enquiry held by the appellant.

11. But that does not mean that the workmen are entitled to succeed in the Reference. It is now well settled as a result of several decisions of this Court, of which we may mention only two, namely, Oriental Textile Finishing Mills, Amritsar v. Labour Court, Jullundur MANU/SC/0508/1971 : (1971)IILLJ505SC and Delhi Cloth & General Mills Co. v. Ludh Budh Singh MANU/SC/0423/1972 : (1972)ILLJ180SC that even where it is found that the domestic enquiry held by the employer is due to some omission or deficiency, not valid, the employer can none-the-less support the order of dismissal by producing satisfactory evidence and proving misconduct, when the dispute arising out of the order of dismissal is referred for industrial adjudication. This

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Court pointed out in Oriental Textile Finisher's case MANU/SC/0508/1971 : (1971)IILLJ505SC that in such cases "the evidence which is produced to substantiate and justify the action taken against the workmen is not as stringent as that which is required in a Court of Law". What is required is "that the evidence should be such as would satisfy the Tribunal that the order of termination is proper". It was for this reason that in the present case the appellant made the application dated 12th March. 1973 praying that if for any reason the Industrial Tribunal was inclined to take the view that the domestic enquiry held by the appellant was improper or not according to law,, the appellant should be given an opportunity to prove its case on merits and for that purpose file and prove additional documents. This was clearly a request to the Industrial Tribunal to try the issue as to the validity of the domestic enquiry as a preliminary issue and if the finding on this preliminary issue was against the appellant, to give an opportunity to the appellant to adduce evidence for the purpose of establishing that the orders of dismissal were justified. Now, the question as to what is the procedure to be followed by the Industrial Tribunal when such a request is made by the employer, came up for consideration before this Court in Delhi Cloth & General Mill's case MANU/SC/0423/1972 : (1972)ILLJ180SC . This Court, after discussing the previous decisions on the subject, culled out certain principles which, according to it. emerged from a consideration of these decisions. These principles were formulated in the form of seven propositions and of them, the fourth and fifth propositions are material for our purpose:

"(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence

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before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was not guilty of the alleged misconduct.

(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such

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opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper."

It will, therefore, be seen that when the application dated 12th March, 1973 was made by the appellant, the Industrial Tribunal should have either declined to try the issue as to the validity of the domestic enquiry as a preliminary issue and directed the appellant to lead its evidence simultaneously on the issue as to the validity of the domestic enquiry as also in regard to the misconduct of the workmen so as to justify its action, or decided to deal with the validity of the domestic enquiry as a preliminary issue and if the finding on the preliminary issue went against the appellant, then to give an opportunity to the appellant to adduce additional evidence to justify its action. Strangely enough, however, the Industrial Tribunal refused to give either of these two directions on the application of the appellant and merely passed an order that on the application "orders would be passed at the appropriate time". We fail to see what "appropriate time" the Industrial Tribunal had in mind. It seems that "appropriate time" never arrived, because in fact no order was made on the application by the Industrial Tribunal at anytime and without passing such an order the award was made. It would be perfectly intelligible if the Industrial Tribunal did not pass an order on the application immediately, but there can be little doubt that it should have passed the appropriate order on the application sufficiently before the recording of the evidence commenced. The cryptic remark made by the Industrial Tribunal that it would pass an order on the application at "appropriate time" could well lead the

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appellant to believe that the Industrial Tribunal would first decide the issue as to the validity of the domestic enquiry and if its finding went against the appellant, it would give an opportunity to the appellant to lead further evidence. The award made by the Industrial Tribunal without giving an opportunity to the appellant to lead additional evidence to establish that the workmen were guilty of misconduct and that the action of the appellant in dismissing them was justified, cannot, therefore, be sustained."

vi) In S.Venkataraman case (3 supra), the High Court of

Madras held in para 4 of its judgment as under:

"4. Section 65 of the Act contemplates an enquiry into the affairs of the Society. When an enquiry takes place under that section, it would reveal the loss sustained by the Society. In order to fix the individual liability to surcharge, Section 71 will have to be resorted to by the departmental officials. Whether a further enquiry under Section 71 will have to be conducted or not is not a point which calls for my decision in view of my following finding about the violation of the principles of natural justice. In the instant case, a show cause notice was issued. No doubt, in reply to that notice, the petitioner contended that statements obtained behind his back should not be used against him without his being given an opportunity to question the correctness of that statement. Nevertheless, it is conceded by the learned counsel appearing for the department that those ex parte statements were used against the petitioner when passing ultimately the order of surcharge. Undoubtedly, if a liability is sought to be fastened to the petitioner on the basis of certain statements, he should be given an opportunity to cross examine those witnesses. But no such

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opportunity was ever afforded to the petitioner. Merely because the petitioner did not specify the documents which he wanted to peruse, it will not mean that it will cure the failure to afford an opportunity. So also, the fact that he had a remedy by way of appeal to the Co- operative Tribunal is no substitute for not affording an opportunity since the same handicap which was prevailing before the original authority would continue to prevail. In this connection, a reference may be made usefully to the decision of a bench of this Court in Soundaram V. Entertainment Tax Officer, 1969 2 MadLJ

7. The head note of the said decision reads thus:

The materials collected by the Department behind the back of the assessee may well be used by the Department to initiate proceedings, but cannot be used, in such proceedings, to the prejudice of the assessee unless he has been given a proper and reasonable opportunity of answering such materials. The assessee can do so only if he was fully informed of the materials which the Department proposed to use against him, and given a reasonable time to think out his defence and make his objections. Therefore, it has to be held that there was infraction of natural justice."

4. On the other hand, learned counsel for respondent Nos.3 and

6 would submit that after receiving the orders of this Court in

W.P.No.41141 of 2015 dated 20.07.2016, the 3rd respondent issued

a notice to the petitioner on 11.11.2016 through e-mail as well as

through post. But, the petitioner failed to seek time through mail

on the same day for hearing and addressed a letter dated

NV,J W.P.No.4527 of 2018

24.11.2016 and posted the same on 29.11.2016 requesting the

authority to provide a date for personal hearing. Further, without

availing the remedy of appeal before the appellate authority, the

petitioner directly approached this Court by way of filing the

present writ petition. Therefore, the writ petition is not

maintainable and the same is liable to be dismissed. The learned

counsel would submit that an enquiry was conducted by the

authorities under Section 51 of the Andhra Pradesh Co-operative

Societies Act, 1964 and a surcharge order was issued by the

Deputy Registrar of Co-operative Societies, Vijayawada, on

15.06.2016 wherein it was confirmed that a total amount of

Rs.2,63,68,648/- was found to be misappropriated by the Branch

Manager, Cashier and the petitioner. He would further submit that

the petitioner himself admitted that he signed the drafts without

verifying about the receipt of the amounts against the demand

drafts, which clearly shows the petitioner's negligence on his part

while performing his duties at the bank. A domestic enquiry was

also conducted against the petitioner along with others. Even in the

domestic enquiry, the charges levelled against the petitioner were

NV,J W.P.No.4527 of 2018

proved. Both the enquiry report and the surcharge order issued by

the 5th respondent proved the misappropriation of funds by the

petitioner along with other employees of the bank. The learned

counsel would also submit that the competent authority having

considered the enquiry report, surcharge order, explanations and

replies submitted by the petitioner, passed the impugned order by

following due process of law and service regulations. Therefore,

the impugned order is sustainable and it warrants no interference

by this Court. In support of his contentions, the learned counsel

placed reliance on the judgment of the Hon'ble Supreme Court in

Chief Executive Officer, Krishna District Cooperative Central

Bank Limited Vs. K. Hanumantha Rao4. There are no merits in

the writ petition and the same is liable to be dismissed.

5. The contention of the learned counsel for the petitioner that

the impugned proceedings dated 24.11.2016 were passed

disregarding the judgment rendered by this Court in W.P.No.41141

of 2015 dated 20.07.2016 wherein this Court specifically directed

the 3rd respondent to consider the explanation of the petitioner

(2017) 2 SCC 528

NV,J W.P.No.4527 of 2018

dated 08.08.2015, but contrary to the purport of the said judgment,

the respondent authorities issued a notice through e-mail dated

11.11.2016 informing the petitioner to appear for hearing on

15.11.2016 and without ascertaining as to whether the said notice

was properly received or not and it came to the knowledge of the

petitioner or not, the respondents proceeded with the issuance of

the impugned proceedings in contravention of the purport of the

judgment of this Court, is valid and acceptable, because this Court

specifically directed the 3rd respondent to consider the explanation

of the petitioner before passing any adverse orders against the

petitioner. The object of the Court is to afford an opportunity to

the petitioner before passing any orders by the respondents. Mere

sending of notice through e-mail may not be conclusive and

sufficient service of notice against the petitioner. If the petitioner

does not observe the notice sent through e-mail, it is appropriate

for the respondents to send the same by way of a registered post

with acknowledgment due if really they intend to provide an

opportunity of hearing to the petitioner.

NV,J W.P.No.4527 of 2018

6. The other contention of the learned counsel for the petitioner

that as per the surcharge proceedings, the respondent authorities

found that the petitioner misappropriated an amount of

Rs.4,33,500/-, whereas the 5th respondent, who conducted a

domestic enquiry, held that the petitioner misappropriated an

amount of Rs.9,000/- only and therefore, the major punishment of

termination of the services of the petitioner cannot be imposed, is

to be considered as the misappropriated amount of Rs.9,000/- is a

meagre amount.

7. The contention of the learned counsel for the petitioner that

the impugned orders passed by the 3rd respondent are short of

observing the principles of natural justice and due process of law

and also in violation of principles of service law jurisprudence as

envisaged under Article 311 of the Constitution of India, is

acceptable in view of non-observation of the purport of the

judgment of this Court dated 20.07.2016 passed in W.P.No.41141

of 2015.

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8. On the other hand, the contention of the learned counsel for

respondent Nos.3 and 6 that in compliance of the orders of this

Court in W.P.No.41141 of 2015 dated 20.07.2016, the petitioner

was issued a notice dated 11.11.2016 through e-mail informing the

petitioner about the personal hearing on 15.11.2016 and therefore,

the impugned orders warrant no interference by this Court, is not

sustainable and sound enough, because a notice affording an

opportunity of hearing should be issued not only through e-mail

but also adopting the other settled principle of issuing the notice

through registered post with acknowledgment due or by way of a

telephonic call or by way of a special messenger.

9. The other contention of the learned counsel for respondent

Nos.3 and 6 that the petitioner was provided with an alternative

statutory remedy of appeal, but without availing the same, he

directly approached this Court invoking the extraordinary

jurisdiction, as such, the writ petition is not maintainable, is also

not acceptable, since the petitioner points out non-compliance of

the principles of natural justice as well as due process of law as

NV,J W.P.No.4527 of 2018

contemplated in service law jurisprudence and as laid down under

Article 311 of the Constitution of India. Therefore, the judgment

on which the learned counsel placed reliance is not applicable to

the facts of the case on hand.

10. For the aforesaid reasons and in view of the law laid down

by the Hon'ble Apex Court, this Court is of the opinion that the

impugned proceedings are liable to be set aside for not observing

the principles of natural justice and on the ground that the

punishment of termination of the services of the petitioner is

disproportionate to the offence committed by him.

11. Accordingly, the Writ Petition is allowed and the impugned

proceedings dated 24.11.2016 issued by the 3rd respondent are set

aside. It is, however, made clear that the respondents are not

precluded from proceeding against the petitioner in accordance

with law, after providing an opportunity of hearing to the

petitioner, within a period of six months from the date of receipt of

a copy of this order. No order as to costs.

NV,J W.P.No.4527 of 2018

Consequently, miscellaneous applications, if any, pending

shall stand closed.

____________________________________ VENKATESWARLU NIMMAGADDA, J 10th February, 2023 cbs

NV,J W.P.No.4527 of 2018

HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

Writ Petition No. 4527 of 2018

10th February, 2023 cbs