Balagovinda Rao vs The Chief Engineer
2023 Latest Caselaw 101 Mad

    2023/MHC/261



                                                                                     W.P.No.18133 of 2016


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 03.01.2023

                                                       CORAM

                                  THE HONOURABLE MR.JUSTICE M.S.RAMESH

                                                 W.P.No.18133 of 2016
                                              and W.M.P.No.15902 of 2016


                     Balagovinda Rao                                          ...      Petitioner
                                                            Vs.
                     1.The Chief Engineer,
                       Chennai Port Trust,
                       Chennai.

                     2.The Secretary,
                       Chennai Port Trust,
                       Chennai.                                                ...     Respondents

                     Prayer : Writ Petition filed under Article 226 of the Constitution of India,
                     praying to issue a Writ of Certiorari, calling of the proceedings of 1st
                     respondent in its No.E6/5302/1996/E dated 10.05.2016 and quash the
                     same.


                                     For Petitioner   : Mr.V. Vijay Shankar

                                     For Respondents : Mr.M. Palanimuthu


                                                       ORDER

https://www.mhc.tn.gov.in/judis W.P.No.18133 of 2016

The petitioner herein was appointed as a Mazdoor in the

respondents/Chennai Port Trust, in the year 1984 and later was promoted

as an Assistant Maistry. Alleging that his community certificate certifying

him to belong to Kondakapu Community (Scheduled Tribe) was a fake

certificate, based on a letter of the Collector, Vizianagaram dated

24.02.1996, the following charges came to be framed against the

petitioner through a letter dated 02.07.1996 in the following manner:-

“That at the time of his initial appointment as mazdoor in the Trust he had produced bogus Schedule Tribe community certificate and gained employment in the Trust”.

2. In the meantime, the Port Trust had once again requested the

Collector of Chennai to conduct the verification of the petitioner's

community, on the ground that the petitioner has been residing in Chennai

for the past 10 years. In turn, the Collector of Chennai had requested the

Tahsildar, Tondiarpet, to conduct an inquiry and in the report of the

Tahsildar dated 13.04.1998, it was opined that the petitioner belongs to

Scheduled Tribe. While the report of the Tahsildar was under

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consideration with the Collector, the respondents had issued a fresh

Charge Memo dated 05.10.2011 with the following charge:

“That at the time of his initial appointment as Mazdoor (PW) in the Trust he had produced Bogus Schedule Tribe Community Certificate and gained employment in the Trust”.

3. Not being satisfied with the petitioner's explanation dated

31.01.2012 for the aforesaid Charge Memo dated 05.10.2011, a domestic

inquiry was conducted. In the inquiry, a letter of the Collector of

Vizianagaram dated 24.02.1996 was marked and based on the said letter,

the Inquiry Officer had held the charge against the petitioner as 'proved',

through his report dated 14.09.2012. The further explanation of the

petitioner herein dated 01.10.2012 was not accepted and ultimately, the

impugned order of dismissal was passed on 10.05.2016.

4. The learned counsel for the petitioner predominantly raised the

ground that the inquiry report, as well as the consequential dismissal

order, is vitiated since the contents of the letter dated 24.02.1996 was not

proved through any witness. Secondly, he would submit that when the

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respondents had earlier framed charges on 02.07.1996, alleging that the

petitioner's community certificate was bogus, the same set of charges

cannot be once again framed against him on 05.10.2011. Thirdly, the

learned counsel also placed reliance on the report of the Tahsildar of

Tondiarpet dated 13.04.1998, which evidences that the petitioner belongs

to Schedule Tribe Community, as well as his request in this regard to the

respondents to keep the departmental action pending till finalization of the

inquiry by the Collector of Chennai and inspite of the same, the

respondents have disregarded his request, as well as the report of the

Tahsildar and proceeded with the inquiry based on the original letter of

the Collector of Vizianagaram. The learned counsel further submitted that

in the absence of any inquiry or cancellation of the community certificate

by the concerned Revenue Authority, a mere letter alleging that the

community certificate is bogus, cannot be relied upon.

5. Per contra, the learned counsel for the respondents/Port Trust

placed reliance on the averments in the counter-affidavit filed by them and

submitted that pursuant to the Collector's letter dated 24.02.1996, an

inquiry was conducted whereby, the petitioner was given due opportunity

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and all his requests and representations were also considered. It is based

on the report of the Inquiry Officer that the Disciplinary Authority had

passed the order of dismissal. The learned counsel further submitted that

it is not required to send a report to the petitioner or to conduct the inquiry

by the Collector since the Revenue Authority of Andhra Pradesh has

clearly declared that the certificate in question has not been issued by the

Authority as per the records and hence, it is construed that the certificate

itself is bogus. The learned standing counsel submitted that no inquiry is

needed since the Collector has concluded that no such caste certificate was

issued from their Office.

6. I have given careful consideration to the submissions made by the

respective counsels.

7. Insofar as the first ground raised by the learned counsel for the

petitioner with regard to the validity of the report produced in the inquiry,

the Hon'ble Supreme Court in the case of 'Roop Singh Negi Vs. Punjab

National Bank & others' reported in '(2009) 2 SCC 570', had dealt with

the manner in which the production of document in a departmental inquiry

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requires to be proved. As per the said decision, the contents of the

documentary evidence has to be proved by examining the witnesses. Such

a proposition was made in the following manner:

.... “14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The enquiry officer performs a quasi-

judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.....”

8. As held in the aforesaid decision, when the charge against the

petitioner was only on the basis of a letter of the Collector, Vizianagaram

claiming that the certificates produced by the petitioner was not issued

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from their office, the contents of that letter can be proved only through

statements of the Collector or other persons connected with the Collector's

Office.

9. Thus the Inquiry Officer's reliance on the letter of the Collector,

Vizianagaram dated 24.02.1996, without examining any witnesses to

substantiate the contents of the letter, would stand vitiated in view of the

ratio laid down in the aforesaid decision.

10. Likewise, it is further seen that the respondents had earlier

framed charges through a notice dated 02.07.1996, in the following

manner:-

“That at the time of his initial appointment as mazdoor in the Trust he had produced bogus Schedule Tribe community certificate and gained employment in the Trust”.

11. However, without proceeding any further on this Charge Memo,

which is termed as a communication, the respondents have proceeded to

frame the following fresh charge through their Charge Memo dated

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05.10.2011:-

“That at the time of his initial appointment as Mazdoor (PW) in the Trust he had produced Bogus Schedule Tribe Community Certificate and gained employment in the Trust”.

12. A reading of the original Charge Memo dated 02.07.1996 and

the subsequent Charge Memo dated 05.10.2011 would reveal that both

the charges are identically verbatim. It is not the case of the respondents

that earlier the Charge Memo dated 02.07.1996 was dropped. The

respondents have also not assigned any valid reason in their second

Charge Memo as to why they had discarded the earlier Charge Memo and

proceeded to issue the second one. Thus, the issuance of a Second Charge

Memo either without dropping the first Charge Memo or assigning any

valid and acceptable reason in the second Charge Memo for ignoring the

first Charge Memo cannot be sustained, in view of the following decisions.

13. The Hon'ble Division Bench of this Court in the case of 'A.

Obaidhullah Vs. The State of Tamil Nadu, Home Department' reported

in '2002 (5) CTC 380', had held this possession in the following manner:-

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10........ “We have already mentioned that the second charge memo dated 5-12-90 does not contain any reason for cancellation of first charge memo dated 29-8-78. It is not the case of the department that new materials have been gathered and based on the same, the second charge memo dated 5-12-90 came to be issued. On the other hand, the very same charge based on the report of the Commission was reiterated in the fresh charge memo dated 5-12-90. The tribunal has overlooked the issuance of the second charge memo superseding the earlier charge memo without adequate reason which is fatal to the disciplinary proceedings.

In the light of the principles laid down in the Supreme Court decision, in the absence of any explanation for not pursuing the first charge memo and issuance of fresh charge memo after a period of 12 years cannot be sustained......”

In the aforesaid decision, the Hon'ble Division Bench had placed reliance

on a Constitutional Bench judgment of the Hon'ble Supreme Court in

'K.R. Deb Vs. Collector of Excise, Shillong' reported in '1971 (2) SCC

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102', wherein, the main contention before the Hon'ble Supreme Court was

that a third inquiry, while two earlier reports were in existence, cannot be

sustained. Accepting the contention, the Hon'ble Supreme Court had held

that, when the Disciplinary Authority had enough powers to reconsider

the evidence itself, a third inquiry was unwarranted.

14. In 'Parameswaran Vs. State of Tamil Nadu, Rural

Development Department' reported in '2006 (1) CTC 476', when two

Charge Memos were already issued on the employee and he had also

submitted his explanation, a third Charge Memo was issued which was

quashed by an Hon'ble Division Bench of this Court, by holding as

follows:-

...... “10. In the case before us, the alleged failure to utilise the advance amount and failure to complete the work entrusted to him by utilising the funds had taken place prior to 1985. It is not a case of misappropriation or retention of Government money. On the other hand, the allegation relates to negligence in monitoring the projects and non-

utilising the funds within the time prescribed. Taking

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note of the same and in the light of unexplained reason for not pursuing the first and second charge memos, when admittedly, the petitioner submitted his explanations denying all the allegations and considering the length of time involved, viz., 20 years, we are of the view that the judgment of the Supreme Court referred to above (2005 (4) CTC 403), is directly on the point. Further, the petitioner has already suffered enough mental agony on account of the protracted disciplinary proceedings. These material aspects have not been considered by the Tribunal, which has committed an error in dismissing the original application filed by the petitioner.

15. The aforesaid extracts are self-explanatory. As such, issuance

of a second Charge Memo in the present case, without dropping the first

Charge Memo or adducing any valid and acceptable reason for issuance of

second Charge Memo, is opposed to the ratio laid down in the aforesaid

decision and hence, illegal.

16. Thus, the impugned punishment, which culminated from the

second Charge Memo dated 05.10.2011, without dropping the earlier

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charges dated 02.07.1996, cannot be sustained and on this ground also,

the consequential punishment may require interference.

17. The learned counsel for the petitioner also placed reliance on the

report of the Tahsildar dated 13.04.1998, which evidences that the

petitioner herein belongs to Schedule Tribe community. At the instance of

the Chennai Port Trust to the Collector, Chennai, to conduct an inquiry

with regard to the validity of the petitioner's community certificate, the

petitioner herein had made a request to the respondents to keep the

disciplinary proceedings in abeyance, pending the outcome of the

Collector's final report, which request was ignored and a fresh Charge

Memo was issued against him.

18. Though the report of the Tahsildar, as well as the request of the

petitioner, did not form part of the inquiry report, this Court is of the view

that such reports and representations may have a persuasive value,

co-jointly considered along with procedural irregularities adopted during

the course of inquiry.

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19. Insofar as the objections raised by the learned counsel for the

respondents, is concerned, the same does not deserve any consideration

since the inquiry itself is in gross violation of the procedure to be adopted

during the course of a departmental inquiry. In normal circumstances, this

Court may have remanded back the matter to the respondents to conduct a

fresh inquiry. However, in the instant case, the proceedings came to be

initiated in the year 1996 and the petitioner has also reached the age of

superannuation in the year 2021 and by remanding back the matter,

serious prejudice would be caused to the petitioner herein. This apart, this

Court is of the view that since the petitioner herein was not in employment

from the date of his dismissal, this Court does not intend to remand back

the matter in the light of the peculiar circumstances of his service career,

the ends of justice could be secured if the arrears of salary from the date of

dismissal till the date of his superannuation, are withheld.

20. In the light of the above findings, the impugned order dated

10.05.2016, is hereby quashed. Consequently, there shall be a direction to

the respondents to forthwith pass orders, to the effect that the petitioner

had continued in his service from 10.05.2016 onwards and notionally

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M.S.RAMESH,J.

Sni retire him from the services, attaining his age of superannuation, by

extending the continuity of service and all other service benefits. Such

orders, including pension and disbursal of the retirement and pensionary

benefits, shall be passed atleast within a period of four (4) weeks from the

date of receipt of a copy of this order.

21. With the above directions, this Writ Petition stands allowed. No

costs. Connected miscellaneous petition is closed.

03.01.2023 Speaking order Neutral Citation: Yes Index: Yes Internet: Yes Sni To

1.The Chief Engineer, Chennai Port Trust, Chennai.

2.The Secretary, Chennai Port Trust, Chennai.

W.P.No.18133 of 2016

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