Madras High Court
C.Tamilselvam vs The Managing Director on 7 August, 2023
WP.No.10504/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 07.08.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.10504/2017 & WMP.Nos.11393 & 11394/2017
C.Tamilselvam ... Petitioner
Versus
1.The Managing Director,
Tamil Nadu Minerals Limited
No.31, Kamarajar Salai
Chepauk, Chennai-5.
2.The Enquiry Officer/Manager [Productions]
Tamil Nadu Minerals Limited
No.31, kamaraja Salai,
Chepauk, Chennai-5. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of certiorari calling for the records in
pursuant to the impugned enquiry report submitted by the 2nd respondent in
proceedings dated 24.03.2017 and the consequential impugned proceedings
issued by the 1st respondent in proceedings Na.Ka.No.22956/E4/1998 daetd
05.04.2017 and quash the same.
1
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WP.No.10504/2017
For Petitioner : Mr.R.Prem Narayan
For R1 & R2 : Mrs.A.Srijayanthi, Spl.GP
ORDER
(1) The writ petition has been filed in the nature of a certiorari seeking
records relating to an Enquiry Report submitted by the 2 nd respondent,
the Enquiry Officer/Manager [Productions], Tamil Nadu Minerals
Limited at Chennai, in proceedings dated 24.03.2017 and the
consequential impugned proceedings issued by the 1st respondent,
Managing Director, Tamil Nadu Minerals Limited at Chennai, in
proceedings in Na.Ka.No.22956/E4/1998 dated 05.04.2017 and to
quash both the said proceedings.
(2) This is an issue which, as facts exhibit, prima facie prejudice on the
part of the 1st respondent against the petitioner herein. Though it has
the trappings of a domestic enquiry, it is an example of how not to
conduct a domestic enquiry and how not to be vindictive against an
employee. The facts reveal that the petitioner herein had been
originally appointed as Jeep Driver in the office of the Divisional
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Manager of Tamil Nadu Minerals Limited at Ariyalur. He was then
transferred to Krishnagiri and was placed under suspension on
27.11.1995. During his posting as Driver in Krishnagiri, he was also
directed to serve as Watchman on shift basis. A charge memo was
originally issued on 23.03.1996 complaining that the petitioner and
nine others were involved in theft of rods which were used in quarries
for Tamil Nadu Minerals Limited.
(3) A perusal of the counter affidavit shows that the 1st respondent was of
the very firm opinion that such theft could not have happened in a
single day, but that it could have occurred from 01.04.1995 onwards
on a piecemeal basis. The petitioner was placed under suspension
under Rule 4[4] of TAMIN Conduct, Discipline and Appeal Rules in
proceedings in No.21726/EB3/95 dated 27.11.1995. Thereafter, an
enquiry was conducted. It must also to be mentioned that parallely, a
criminal case was also registered consequent to a FIR being lodged.
But, no further details are available as to the proceedings of the said
criminal case. It is not known whether the Final Report had been
filed and it is not known whether a logical conclusion had been
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WP.No.10504/2017
reached in the criminal Court. At any rate, this Court is concerned
only with the departmental proceedings initiated against the petitioner
herein.
(4) It is seen that an Enquiry Officer was appointed and after examining
the entire records, he had held that the charges were not proved. This
was not to the liking of the Managing Director. It is for that reason
that this order started with the observation that the entire proceedings
exhibited prejudice and bias by the Managing Director against the
petitioner herein. The Managing Director who could have either
accepted the Enquiry Report or could have dissented from it and
given reasons, had however called upon the Enquiry Officer to
furnish a second Report. The second Report was promptly given and
it was held that the charges have been proved. Holding so, the
petitioner herein was terminated from service on 10.07.1997. The
petitioner then filed an appeal on 26.08.1997. That appeal was
rejected on 01.10.1997. Quite concerned with this second finding,
which is unknown to service jurisprudence, the petitioner filed
WP.No.16341/1998.
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(5) That writ petition came to be allowed on 28.07.2008 and the entire
procedure was struck down and liberty was given to the respondents
to conduct a fresh enquiry on the same set of charges. But, however
it was stipulated that such enquiry should commence within a period
of three months. The petitioner was reinstated in service on
22.09.2008.
(6) It is stated by the learned counsel for the petitioner that the order copy
had been received by the respondents consequent to which the
petitioner had been reinstated. It is stated that the three months
period would have reasonably ended in November 2008. But,
however, fresh enquiry proceedings which is the subject matter of the
present writ petition, commenced on 12.01.2009. A fresh enquiry
was conducted. The same documents were relied on. But, it is
informed that the statements were recorded again and the Enquiry
Officer, who had been appointed afresh, had returned a finding that
charges were not proved. This was on 30.01.2009. Once again, the
Managing Director, called for a second Report. Again, this
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establishes the extreme prejudice and bias exhibited by the 1st
respondent. He had already suffered an order in WP.No.16341/1998
wherein the earlier act of calling for a second Report had been viewed
with askance by this Court and the entire proceedings had been set
aside. But, however, he still persisted in getting a further Report from
the Enquiry Officer. The Enquiry Officer had again returned a
finding that the charges were not proved. Not satisfied with that, the
1st respondent had again directed a fresh Report to be submitted and
furnished a list of seven fresh documents. On the basis of those
additional documents, which according to the learned counsel for the
petitioner, were revealed to the petitioner only when the Enquiry
Report was furnished to him, it was held that charges were proved.
(7) If, further documents are to be relied on, principles of natural justice
imply that opportunity must be given. Opportunity should not be a
hollow opportunity, but it should be effective and at every stage.
Introducing fresh documents necessitates opportunity of questioning
not only the veracity of those documents, but also questioning as to
why those documents were not produced at the earlier instance. The
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reason why they were not introduced in the first instance and their
evidenciary value and when they were introduced at such a belated
stage should also be taken into consideration. Explanation will also
have to be given as to why copies were not given and why those
documents were not tested on the grounds of proof and relevancy.
(8) It is no doubt true that proof in departmental proceedings is only by
preponderance of evidence. But, however, the evidence has to be
admissible. It has to be relevant and it has to be proved in manner
known to law. Appreciation of that particular evidence alone varies
as between the departmental proceedings and a criminal trial.
(9) Learned counsel for the petitioner, in this regard, placed reliance on a
judgment of a Division Bench reported in 2010 [3] MLJ 625 [State
of Tamil Nadu Vs. T.Ranganathan]. The only point on which the
present judgment was relied on was on the fact that the enquiry
proceedings commenced on 12.01.2009, after the period of three
months had long passed from the date of order made in
WP.No.16341/1998, which was allowed on 28.07.2008. It is very
specifically contended by the learned counsel for the petitioner that
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the order copy had been received earlier and proceedings commenced
after the period of three months.
(10) Learned counsel for the petitioner also placed reliance on a yet
another judgment of a Division Bench in WA [MD].No.1210/2015
dated 16.12.2015 [State of Tamil Nadu rep.by the Secretary,
Department of School Education and Another Vs.
Dr.A.S.Radhakrishnan], wherein the Division Bench has held as
follows:-
''17.Once, the enquiry report is submitted
holding the charges not proved, there are two courses
of action open to the disciplinary authority. First is to
accept the report and pass a final order dropping
further action. The second course of action is to come
to an independent conclusion different from the
findings recorded by the Enquiry Officer and issue
notice to the delinquent to show cause as to why a
different view should not be taken. Both these courses
of action were not followed by the Government.
18.If both the above courses of action are not
acceptable to the disciplinary authority, the
disciplinary authority should set aside the findings and
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order for a de nova enquiry. Even this third course of
action was not resorted to by the Government...''
(11) In the instant case, among the documents which had been introduced
was a confession apparently given by the petitioner herein and a
statement of another employee before the Investigating Agency.
Reliance placed on the same, without putting them to the petitioner
herein, would not withstand the scrutiny of this Court. A confession,
even in a disciplinary proceedings, if it is to be taken on record,
should be first put to the petitioner herein and the petitioner must be
given an opportunity to explain the circumstances under which he had
given the confession. The statement of the witness who could be
termed as an accomplice also has very thin evidenciary value and
even if it is to be accepted as accomplice, the veracity of that
particular statement should also be examined.
(12) In view of the procedures adopted and documents being taken at their
face value, the Enquiry Officer who had originally returned a finding
that the charges were not established twice, had turned around and
held that they are established. The entire proceedings, has to be struck
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down on the ground of extreme bias on the part of the 1st respondent
herein who appears to have an impression that the petitioner alone is
responsible for the theft which had, even according to the counter
affidavit, occurred from 01.04.1995 onwards.
(13) Even when the writ petition came up for admission, a learned Single
Judge was of prima facie view that the enquiry had not been
completed within three months and that the respondents could not
have proceeded beyond the time limit. It is in this connection, the
judgment reported in 2010 [3] MLJ 625 [cited supra], was relied on
by the learned counsel for the petitioner.
(14) In view of all these facts, I hold that the entire proceedings stands
vitiated and both the proceedings of the first and second respondents
dated 24.03.2017 and 05.04.2017 respectively, are struck down.
The writ petition stands allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
07.08.2023
AP
Internet : Yes
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WP.No.10504/2017
To
1.The Managing Director,
Tamil Nadu Minerals Limited
No.31, Kamarajar Salai
Chepauk, Chennai-5.
2.The Enquiry Officer/Manager [Productions]
Tamil Nadu Minerals Limited
No.31, kamaraja Salai,
Chepauk, Chennai-5.
https://www.mhc.tn.gov.in/judis
WP.No.10504/2017
C.V.KARTHIKEYAN, J.,
AP
WP.No.10504/2017
07.08.2023
https://www.mhc.tn.gov.in/judis
