K.Natarajan vs The Chairman
2023 Latest Caselaw 9740 Mad

                                                                              W.P.No.15684 of 2013

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 07.08.2023

                                                        CORAM:

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                 W.P.No.15684 of 2013

                     K.Natarajan                                             ... Petitioner
                                                           Vs.
                     1.The Chairman,
                       Tamil Nadu Khadi and Village Industries Board,
                       Kuralagam, Chennai 600 108
                     2.The Chief Executive Officer,
                       Tamil Nadu Khadi and Village Industries Board,
                       Kuralagam, Chennai 600 108                                         ...
                     Respondents

                     PRAYER: Writ Petition is filed under Article 226 of Constitution of
                     India praying to issue a Writ of Certiorarified Mandamus calling for the
                     records relating to the impugned order of the first respondent in Khadi
                     Board Proceedings (Ms) No.26 dated 11.06.2008 confirming the order
                     passed by the second respondent in Na.Ka.No.82103/E3(2)/97 dated
                     29.11.2002 and quash the said orders and direct the respondents to
                     reinstate the petitioner in service with all attendant benefits.
                                     For Petitioner     : Mr.P.Rajendran

                                     For Respondents
                                           For R1        : No appearance

                                           For R2        : Mr.S.K.Bose

                     1/12
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                                                                                W.P.No.15684 of 2013

                                                           ORDER

This writ petition has been filed challenging the order passed

by the first respondent dated 11.06.2008 thereby confirmed the order

passed by the second respondent dated 29.11.2002 thereby dismissed the

petitioner from service.

2. The petitioner was appointed as Khadi Assistant Grade-III

on 27.04.1985 in the Tamilnadu Khadi and Village Industries Board.

Thereafter, he was promoted as Khadi Assistant Grade-II and Grade-I. In

the year 1999, he was served with a charge memo dated 27.01.1999. The

said charge memo was consisting three charges and the same are as

follows:

Fw;wr;rhl;L vz;/1 thhpa fzf;fha;tf[ ; FG fz;fhzpg;ghsh; jhuhg[uk; khtl;l fjh; fpl';Fld; ,ize;j mGf;file;j tpiyFiwg;g[ bra;j fjh; uf';fs; gphpit Ma;t[ bra;a te;jnghJ KG xj;JiHg;g[ bfhLf;fhky; 12/12/1997 Kjy; 18/12/1997 Koa gzpf;F tuhky; jd;dpr;irahf epd;Wtpl;lhh;/ Fw;wr;rhl;L vz;/2 jhuhg[uk; khtl;l fjh; fpl';Fld; ,ize;j mGf;file;j tpiy Fiwg;g[ bra;j fjh; uf';fs; gphpit thhpa fzf;fha;tf[ ; FG

https://www.mhc.tn.gov.in/judis W.P.No.15684 of 2013

fz;fhzpg;ghsh; ,Ug;g[ rhpghh;jj; nghJ bkhj;j kjpg;g[ U:/6.34.244/35 (U:gha; MW yl;rj;J Kg;gj;J ehd;fhapuj;J ,UE}w;wp ehw;gj;jp ehd;Fk; igrh Kg;gj;ije;J kl;Lk;) f;F Fiw Vw;gLj;jp thhpaj;jpw;F ,Hg;g[ Vw;gLj;jp ifahy; bra;Js;shh;/ Fw;wr;rhl;L vz;/3 tpiy Fiwg;g[ bra;j tpw;gid bra;a mDkjpj;j fjh; uf';fis tpwg; id bra;a ntz;lhk; vd epWj;jp itj;J Miz tH';fg;gl;oUe;J nghJ jd; brhe;j yhgj;jpw;fhf tpw;gid bra;J ,Ug;gpy; Fiwt[ VwgLj;jpa[ss ; hh;/

3. After receipt of explanation submitted by the petitioner,

enquiry was ordered and conducted enquiry. The Enquiry Officer found

that the first charge was not proved and second and third charges were

proved. On the strength of the enquiry report, the disciplinary authority

dismissed him from service. Aggrieved by the same, the petitioner also

filed appeal and the same was also dismissed.

4. The learned counsel for the petitioner would submit that

insofar as the first charge, he was absent from duty unauthorisedly from

12.12.1997 to 18.12.1997. After completion of enquiry, the Enquiry

https://www.mhc.tn.gov.in/judis W.P.No.15684 of 2013

Officer found that the charge was not proved on the ground that already

the said period was treated as leave and he was paid salary. However the

disciplinary authority had taken different stand and held that the said

charge was also proved. When the disciplinary authority is taking

different view from the Enquiry Officer, the petitioner ought to have been

put on notice and he must be given opportunity for submitting his

detailed explanation. The proposed findings to be furnished to the

petitioner in order to give opportunity to him to submit his explanation.

The disciplinary authority did not provide any opportunity to the

petitioner to submit his explanation for the different findings. The

petitioner was also not served with any proposed findings against the

findings rendered by the Enquiry Officer.

4.1 He further submitted that insofar as the second charge is

concerned, though the Enquiry Officer found that the said charge was

proved, on perusal of counter, it revealed that there was fire accident in

the shop. Therefore, the Khadi goods worth about Rs.6,38,244.35/- were

burnt due to fire accident. Admittedly, there was no insurance for the

https://www.mhc.tn.gov.in/judis W.P.No.15684 of 2013

building. Therefore, the Assistant Director of Khadi Kraft was informed

about the fire accident and the Assistant Director failed to insure the

building. Therefore, there was departmental action as against him and

recovery was ordered from the Assistant Director. Therefore, there was

no misappropriation of a sum of Rs.6,34,244.35/- at any point. Whatever

Rs.6,34,244.35/- worth of goods which were burnt due to fire accident,

now termed as misappropriation. Therefore, there was no

misappropriation by the petitioner and in fact, the Assistant Director was

punished with only recovery and whereas the petitioner was removed

from service The third charge also is connected with the second charge.

Since the entire clothes were burnt due to fire accident and there was no

appropriation by the petitioner.

5. Heard, the learned counsel appearing on either side.

6. On perusal of counter filed by the second respondent

revealed that while pending the appeal, the petitioner was given

opportunity to submit his explanation for the charge No.1 when the

https://www.mhc.tn.gov.in/judis W.P.No.15684 of 2013

disciplinary authority had taken different view. Therefore, it cannot be

said that the petitioner was not given sufficient opportunity to submit his

explanation when the disciplinary authority had taken decision to deviate

from the findings of the Enquiry Officer. It further revealed that

admittedly there was shortage of clothes to the tune of Rs.6,34,244.35/-.

The petitioner was in charge of godown. He should have taken action for

insuring the said building by approaching the concerned officials.

Therefore, due to lack on the part of the petitioner, the petitioner was

imposed punishment. He also had undertaken by admitting his liability

and promised to settle the said amount.

7. Admittedly, the Enquiry Officer found him not guilty insofar

as the first charge. However, the disciplinary authority had taken

different view and found him guilty for the first charge also. In this

regard, the learned counsel for the petitioner relied upon the judgment of

the Hon'ble Supreme Court of India in the case of Punjab National Bank

and Others Vs. Kunj Behari Misra reported in (1998) 7 SCC 84,

wherein it is held that whenever the disciplinary authority disagrees with

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the enquiry authority on any article of charge, then before it records its

own findings on such charge, it must record its tentative reasons for such

disagreement and give to the delinquent officer an opportunity to

represent before it records its findings. The report of the enquiry officer

containing its findings will have to be conveyed to the delinquent officer

will have an opportunity to persuade the disciplinary authority to accept

the favourable conclusion of the enquiry officer. In the case on hand,

admittedly the petitioner was not given any opportunity to submit his

explanation for the disagreement by the disciplinary authority from the

findings of the enquiry officer.

8. He also relied upon the judgment of the Hon'ble Supreme

Court of India in the case of S.P.Malhotra Vs. Punjab National Bank &

Ors rendered in Civil Appeal No.5128 of 2013 dated 04.07.2013,

wherein it is held that where the disciplinary authority differed from the

view of the enquiry officer, denial of opportunity was per se violative of

the principles of natural justice. In fact, not furnishing the copy of the

recorded reasons for disagreement from the enquiry report itself causes

https://www.mhc.tn.gov.in/judis W.P.No.15684 of 2013

the prejudice to the delinquent. Therefore, the petitioner was not given

opportunity of hearing to submit further explanation and opportunity to

peruse the proposed different findings by the disciplinary authority. That

apart, the Assistant Director and Supervisor Staff were found guilty for

non insuring the godown and they were imposed recovery of

Rs.6,34,244.35/- and they were also imposed punishment of stoppage of

increment for four years and five years respectively. However, though

there was no misappropriation by the petitioner, the enquiry officer found

that the charge of misappropriation to the tune of Rs.6,34,244.35/- was

concluded as proved against the petitioner.

9. Admittedly, there was fire accident in the godown.

Immediately, it was informed to the petitioner by the Watchman.

Immediately, the petitioner rushed to the godown and informed to the

Assistant Director. Unfortunately, the said godown building was not

insured with any insurance company. Therefore, the Assistant Director of

Khadi and Supervisor staff and the petitioner were charged. However,

except the petitioner, other Assistant Director as well as Supervisor Staff

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were imposed of stoppage of increment for four years and five years.

They were also ordered to pay the said amount. However, the petitioner

was removed from service, that too for charge of misappropriation.

10. The Hon'ble Supreme Court of India in the case of Man

Singh Vs. State of Haryana and Others reported in (2008) 12 SCC 331,

held that concept of equality as enshrined in Article 14 of the

Constitution of India embraces the entire realm of State action. It would

extend to an individual as well not only when he is discriminated against

in the matter of exercise of right, but also in the matter of imposing

liability upon him. Equals have to be treated equally even in the matter

of executive or administrative action. As a matter of fact, the doctrine of

equality is now turned as a synonym of fairness in the concept of justice

and stands as the most accepted methodology of a governmental action.

The administrative action is to be just on the test of 'fair play' and

reasonableness. In the case on hand, admittedly, the petitioner was

imposed with capital punishment to remove from service whereas the

Assistant Director and Supervisor Staff were imposed punishment of

https://www.mhc.tn.gov.in/judis W.P.No.15684 of 2013

stoppage of increment for the period of four years and five years

respectively. Insofar as the third charge is concerned, it is also connected

with charge No.2 Therefore, the order of punishment cannot be sustained

and it is liable to be modified.

11. Accordingly, the punishment imposed by the impugned

order of the first respondent dated 11.06.2008 is modified to the effect

that 'punishment of stoppage of increment for the period of four years in

respect of the petitioner'. The respondents are directed to reinstate the

petitioner into service forthwith with continuity of his service and without

any backwages.

12. In the result, this writ petition stands partly allowed. There

shall be no order as to costs.

07.08.2023 Internet: Yes Index: Yes/No Speaking/Non-speaking order lok

https://www.mhc.tn.gov.in/judis W.P.No.15684 of 2013

https://www.mhc.tn.gov.in/judis W.P.No.15684 of 2013

G.K.ILANTHIRAIYAN, J.

lok

To

1.The Chairman, Tamil Nadu Khadi and Village Industries Board, Kuralagam, Chennai 600 108

2.The Chief Executive Officer, Tamil Nadu Khadi and Village Industries Board, Kuralagam, Chennai 600 108

3. The Government Advocate, High Court, Madras.

W.P.No.15684 of 2013

07.08.2023

https://www.mhc.tn.gov.in/judis