Madras High Court
The Chairman vs R. Munusamy on 23 September, 2021
W.A.No. 2499 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE S. VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A. NAKKIRAN
W.A.No. 2499 of 2013 and
M.P. No 1 of 2013
The Chairman,
Coffee Board,
No.1, Veedhana Veedhi,
Banglore-560 001 ...Appellant
Vs.
1.R. Munusamy
2. The Secretary to Government of India,
Ministry of Commerce,
New Delhi. ....Respondents
Prayer: Writ Appeal filed under Clause 15 of Letter Patent Act, to set
aside the order dated 23.10.2009 passed in W.P.No. 3284 of 2001 and
allow the Writ Appeal.
1/15
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W.A.No. 2499 of 2013
For Appellant : Mr.J. Pradiv
for M/S.V. Sundareswaran
For Respondents: Mr.R.Ganesh Kumar (R1)
Mr.S. Sathishrajan (R2)
Central Government Standing Counsel
*****
JUDGMENT
(Judgment of the Court was delivered by S.VAIDYANATHAN,J)
The Writ Appeal is filed against the order passed in W.P.No.3284 of
2001, dated 23.10.2009 in allowing the Writ Petition filed by the first
respondent.
2. It is the contention of the learned counsel for the Appellant that
five charges were framed against the First Respondent/Employee, out of
which the first one relates to "Criminal Breach of Trust", which was duly
proved in the enquiry. Though the said factum was not denied by the first
respondent before the Writ Court, there was no discussion in the impugned
order, warranting interference of the order of the Appellant under Article
226 of Constitution of India. According to the Appellant, the employee has
misappropriated a sum of Rs.1,76,563.85/-, on account of short despatch of
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W.A.No. 2499 of 2013
coffee to one M/s Pandiyan Coffee Curing Works, Theni and he also
admitted his guilt before the Enquiry Officer. Further, the employee also
agreed to pay the amount, which was initially recovered at Rs.2,000/- per
month and thereafter, at Rs.1,000/- per month, pursuant to the letter of the
Vigilance Officer dated 30.09.1996. Hence, the learned Single Judge ought
not to have interfered with the same, as the misconduct has been duly
established by the Appellant.
3. It is the further contention of the Appellant that a plea was taken
by the First Respondent/Employee before the Enquiry Officer that due to
coercion, he paid the amount and therefore, a denovo enquiry has been
conducted, wherein four witnesses were examined, and two charges, out of
five were held to be proved. The Disciplinary Authority confirmed the
findings of the Enquiry Officer, after affording an opportunity of hearing to
the employee, after considering the explanation submitted by the employee
and imposed punishment of penalty at Rs.1,78,563.85/- and withholding one
increment without cumulative effect. The same punishment was also
affirmed by the Appellate Authority. The Appellant further submitted that
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W.A.No. 2499 of 2013
even though serious charges have been framed against the First
Respondent/Employee, minor punishment alone has been imposed and
therefore, the learned Single Judge ought not to have interfered with the
punishment and he prays to set aside the order of the learned Single Judge.
4. The learned counsel appearing for the First Respondent submitted
that the learned Single Judge, by discussing various Judgments of this Court
as well as Apex Court, on considering the materials available on record, has
rightly allowed the Writ Petition observing that the Writ petitioner's option
for Voluntary Retirement Scheme had been accepted and he was also
relieved from service vide order dated 30.11.1999 and the penalty imposed
by the Disciplinary Authority i.e., recovery of Rs.1,76,563/- which has been
paid by the Writ Petitioner and therefore, according to the learned counsel
for the First Respondent, the order of the learned Single Judge does not
warrant interference.
5. Heard both sides. Perused the materials available on record.
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W.A.No. 2499 of 2013
6. The learned Single Judge has extracted the discussions of the
Enquiry officer and held as follows:
"The analysis of the evidence, with
respect to breach of trust and practiced fraud
on the alleged fact of misappropriation as
discussed by the Enquiry Officer is as
follows:
From the prosecution side four
witnesses viz. Sri K.Arunagiri P.W.1; Sri
P.C.John (P.W.2), Sri L.P.Rangan (P.W.3)
and Sri Ramaswamy (P.W4) appeared and
adduced evidence and they were also cross-
examined by the Defence Assistant. As
regards short delivery of 155 kgs of
Plantation EP bulk coffee and 2940 kgs of
Arabica Parchment during 1993-94 season.
P.W.1 while adducing evidence confirmed
the same. He has also produced the
documentary evidence like consolidated
statement P1 and P2 and also the delivery
challans and acknowledgments issued by
the curing works viz.Exs.P3 to P7, while
scrutinizing the C1 Register together with
Ex.P3 to Ex.P7 it is confirmed that there is a
short dispatches of coffee by the charged
official. From seeing the records produced
and marked as exhibits the charged official
was having a stock of 30282 kgs of Arabica
parchment, 3018 kgs of Plantation EP bulk,
5429 kgs of Arabica cherry, 47 kgs of
Plantation EP blacks/bits, 125 kgs of
Arabica cherry bulk, 126 Kgs of Arabica
Cherry BBB and 98 kgs of Robusta cherry
EP bulk coffee aggregating to 40897 kgs.
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W.A.No. 2499 of 2013
But while despatching the charged official
short despatched 2940 kgs of Arabica
parchment and 155 kgs of Plantation EP
bulk to M/s.Pandyan coffee curing works,
Theni. The acknowledgment was also given
by the Curing works for the actual quantity
received. The charged official also accepted
the acknowledgment given by the curing
works for the receipt of coffee less the
above short despatch. As per the schemes
of the Board the duty of the charged official
was to collect coffee from growers at the
prescribed rates of the Board. The charged
official has to dispatch such coffee collected
from the growers to the pool agent as
directed by the Board. In the instant case,
the charged official short dispatched the
coffee to the tune of Rs.1,76,563.85 this has
been established by the relevant documents
produced by the prosecution witnesses
P.W.1 and P.W.2 at the time of enquiry.
Even the P.W.4 Sri.G.Ramaswamy
confirmed in his deposition that the charged
official short despatched the coffee to M/s.
Pandyan coffee curing works, Theni and to
that effect, he had recorded his statement.
But the recorded statement was not
produced by the witness at the time of the
enquiry. The value of coffee i.e. 1,76,563.85
short dispatched by the charged official was
worked out on the basis of supplementary
and final payment declaration circular
issued by the Board exhibited as Ex.P38 A
to J.
Perusal of the findings of the enquiry
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W.A.No. 2499 of 2013
Officer shows that the petitioner was
alleged to have short despatched coffee to
the tune of Rs.1,76,563.85. However,
analysis of the evidence does not show as to
how the petitioner had committed
misconduct of misappropriating the above
said sum. Further more, charge 5 reads that
in order to misappropriate the Board's
money to the tune of Rs.83,821.15 and the
value of 2940 kgs. of Arabica Parchment
and 155 kgs of Plantation EP bulk pooled
with the India Coffee Depot, Periyakulam to
the tune of Rs.1,76,563.85, the petitioner
had tampered with the documents, receipts
of the Board including coffee pass. As
rightly pointed out by the learned counsel
for the writ petitioner that if the charge 5
(i.e.) tampering with the documents/receipts
of the Board, including coffee pass in order
to misappropriate the Board's money to the
tune of 1,76,563.85, is held as not proved,
then this Court is unable to subscribe as to
how the enquiry officer could render an
independent finding that the petitioner had
misappropriated Rs.1,76,563.85, being the
value of 2940 kgs of Arabica parchment and
155 kgs of Plantation EP bulk by short
despatch as alleged. In this context, it is
reproduced the findings recorded by the
enquiry officer in respect of charge 5, which
reads as follows:
8.4. Made records for the excess
payment to the tune of Rs.78,321.15 in the
name of 162 growers while making
supplementary/final payment and caused
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W.A.No. 2499 of 2013
corresponding loss to the Board:
Regarding excess payments made to
the growers, it may be stated that the
charged official was expected to pay the
value of the coffee pooled by the growers on
the basis of the payment circular issued by
the Board as and when the payments were
declared. While making payment, the
charged official was expected to deduct
whatever the payments made to a particular
grower and pay the balance amount. In the
instant case, as enlightened by the
prosecution witness Sri P.C.John, P.W.2,
that the charged official has made excess
payment to various growers to the tune of
Rs.78,321.15. The receipts showing the
excess payment made by the charged
official are marked as Ex.P14 to Ex.P37
(bunch of receipts) the allegation is
accepted by the charged official. Further,
he contended that whatever the excess
payment made by him was later recovered
while disbursing the subsequent payments
to the growers. In the deposition made by
the prosecution witness Sri.G.Ramaswamy,
P.w.4 confirmed that the excess payment to
the growers was a common phenomenon
among the pool agents and same could be
recovered at the time of subsequent
payment. The prosecution witness P.W.4
also agreed in the cross-examination that
whatever amount recovered after 4.3.1997
(date of charge sheet made) could not be a
loss to the Board subject to proof. It is seen
from the above, the excess payment made
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W.A.No. 2499 of 2013
by the charged official shows his negligence
in discharging his official duties. However,
we cannot say that he has misappropriated
the amount of Rs.78,321.15 excess paid to
the growers.
3.5: In order to misappropriate
Board's money to the tune of Rs.5,500/- he
has tampered the office copy of the receipt
No.63465, 63466 and 63467 dated
18.3.1994 and shown inflated amounts than
what has been paid to the planters and
thereby practiced fraud on Board:
As regards tampering of office copies
of the receipts issued to the planter Sri
L.P.Rangan and L.P.Alagarajan, Sri
L.P.Rangan was produced as P.W.3. During
his deposition, he confirmed the contents of
the statement given by him, which is
exhibited as Ex.P12. But in the cross-
examination he totally denied his statement
and also informed that the statement was
obtained by the ACMO and his staff. He
also confirmed that whatever stated in the
statement was false and he also confirmed
that the statement was written by one Sri
Subramaniam attached to ACMO's office
and not by him. In the cross-examination he
further informed that the statement whatever
said to have been recorded by the ACMO
was not read over to him as well as his
brother and they signed the statement only
out of belief. By seeing the deposition
given in the cross-examination of Sri
L.O.Rangan, P.W.3, it is clearly established
that the statement said to have been
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W.A.No. 2499 of 2013
obtained from P.W.3 and his brother by the
ACMO. Sri G.Ramaswamy is totally false.
As such, it is established that the charged
official had not tampered the office copy of
the receipts issued to Sri L.P.Rangan, P.W.3
and his brother Sri.L.P.Alagarajan. Further,
the investigating officers have not obtained
the office copy of the said receipts instead
they produced only the photocopy of the
receipt. Hence, it is difficult from the
available photo copy of the receipt that the
Charged officer had tampered the receipts.
25.The enquiry report was drawn up
on 28.7.1999 and that the same was
communicated to the petitioner on 4.8.1999.
On receipt of the same, the petitioner has
submitted his representation dated
11.8.1999, objecting to the findings of the
enquiry Officer, wherein he has submitted
that there was no direct evidence against
him, except the interested testimony of
P.W.1. It is the contention of the writ
petitioner that the impugned order of
recovery and withholding one increment
with cumulative effect suffers from legal
infirmity and it is also in violation of the
principle of natural justice. Perusal of the
impugned order of the disciplinary authority
does not indicate that the disciplinary
authority has considered the explanation
submitted by the petitioner. Therefore, he
has submitted that the orders have to be set
aside, in the light of the decision of this
Court in Tamil Nadu Civil Supplies
Corporation Limited rep. by Sub Regional
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W.A.No. 2499 of 2013
Manager, Mayiladuthurai and another v.
S.Sampath reported in 2005-1-L.W.795.
Per contra, it is the contention of the
respondents that no detailed reasons need be
assigned by the appellate authority, if the
disciplinary authority has already recorded
the findings, after analysing the evidence."
7. From the above discussions, it is very clear that there is no
evidence of misappropriation and out of five charges, three charges were
not proved. In fact, we have accepted the contention of the Appellant that if
the employee was not given opportunity to conduct denovo enquiry, the
charges would have been proved based on his alleged admission before the
Enquiry Officer, which could be seen from the Enquiry Officer's report
dated 25.04.1994. But however, there was no reason as to why it has been
decided to conduct fresh enquiry. In the preliminary enquiry, infact more
than once, the employee was asked to think about the admission of the
charges but having allowed him to get away from the admission, the
Department cannot go back and contend that there was an admission. Of
course, neither the Disciplinary Authority nor the Appellate Authority
proceeded on the basis of admission of guilt. In catena of cases, this Court
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W.A.No. 2499 of 2013
has held that when there is an admission in the enquiry, that itself is suffice
to establish the charges and there is no further evidence required to
establish the case. But in this case having given a go-by to the admission
and decided to establish charges in the enquiry, the charge of Criminal
Breach of Trust and misappropriation has not been established.
8. The learned Single Judge in detail has analysed the evidence let in
by the parties and came to the conclusion that the charges are not at all
established. Though it is the contention of the Appellant that in the light of
the Judgment of the Apex Court in the case of B.C. Chaturvedi Vs. Union
of India and Ors reported in 1995 6 SCC 749, the matter has to go back to
the Disciplinary Authority to conduct enquiry afresh, whether there is any
mistake or not need not be looked into at this stage more particularly, when
the issue is two decades back. Secondly the employee has been allowed to
go on VRS. That being the case, there is no Employee-Employer
relationship as on date and that there is cessation of employment on account
of VRS and therefore sending the matter back to the Disciplinary Authority
at this stage is not possible. Even assuming for the sake of argument, the
contention of the appellant is accepted, we are unhappy that the Appellate
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W.A.No. 2499 of 2013
Authority has passed a non speaking order, in which detailed reasons ought
to have been given for each and every point raised by the delinquent. The
Appellate Authority needs to give detailed reasons and it is not necessary
that he has to verbatim reproduce the findings of the Enquiry Officer, while
imposing the punishment, as the Enquiry Officer has been appointed by the
Disciplinary Authority. Moreover, the Appellate Authority has not taken
note of the fact that there is no Employee-Employer relationship and that the
evidence of the Management does not establish the fact that there is a
misappropriation committed by the Writ Petitioner.
9. In such view of the matter, there is no reason to interfere with the
order of the learned Single Judge and hence, this Writ Appeal is liable to be
dismissed.
10. In the result, this Writ Appeal is dismissed. The order passed by
the learned Single Judge in W.P.No.3284 of 2001 is confirmed. No costs.
[S.V.N., J.,] [A.A.N., J]
23.09.2021
Index: Yes/no
Internet: Yes/no
arr
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W.A.No. 2499 of 2013
To
The Secretary to Government of India,
Ministry of Commerce,
New Delhi.
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W.A.No. 2499 of 2013
S. VAIDYANATHAN,J
and
A.A. NAKKIRAN, J
arr
W.A.No. 2499 of 2013
23.09.2021
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