Madras High Court
K.P.Elumalai vs The Managing Director on 4 July, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 04.07.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
W.P.No. 26827 of 2019
K.P.Elumalai ... Petitioner
..Vs..
1. The Managing Director
Tamil Nadu State Marketing Corporation Ltd.,
4th Floor, CMDA Towers-2
Egmore, Chennai – 600 008.
2. The Senior Regional Manager
Tamil Nadu State Marketing Corporation Ltd.,
Salem.
3. The District Manager
Tamil Nadu State Marketing Corporation Ltd.,
Thiruvannamalai District. ... Respondents
PRAYER: Petition under Article 226 of the Constitution of India, praying
for the issue of a Writ of Certiorarified Mandamus calling for the records
relating to the dismissal order made in Na.Ka.Ar.V.2/1078/2015 dated
07.10.2015 on the file of the third respondent and consequential order in
Se.Mu.No.219/2018/A dated 28.08.2018 on the file of the second
respondent and subsequent order passed by the first respondent in his
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2
proceedings made in Se.Mu.Na.Ka.No. R1/8437/2018 dated 26.10.2018
and quash the same and direct the third respondent to reinstate the petitioner
in service with full back wages, continuity of service, consequential and
other attendant benefits.
***
For Petitioner :: Mr. J.James
For Respondents :: Mr.K.Balakrishnan
Standing Counsel for TASMAC
ORDER
The Writ Petition has been filed in the nature of Certiorarified
Mandamus seeking interference with an order of dismissal dated 07.10.2015
passed by the third respondent and the consequential order of the
conferment passed by the second respondent on 28.08.2018 and the final
order passed by the first respondent confirming both the aforementioned
orders and dated 26.10.2018 in Se.Mu.Na.Ka.No. R1/8437/2018 and
seeking reinstatement of the petitioner in service with full back wages,
continuity of service, consequential and all other attendant benefits.
2. The petitioner was working as Supervisor in TASMAC shop in
retail vending IMFL Shop No. 9254. He joined duty on 01.01.2004. On
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10.04.2015, the second respondent, the Senior Regional Manager, Tamil
Nadu State Marketing Corporation Ltd., Salem, had made a surprise
inspection of the aforementioned vending shop of the petitioner where the
petitioner was Supervisor. At that particular point of time, the petitioner was
away and he claims that he was in the Bank. The sales man
S.Krishnamoorthy was available. The inspection had been completed even
before the petitioner could come back and the petitioner was asked to sign in
the notes prepared during the course of the inspection. Thereafter, on the
next day, ie., on 11.04.2015, the petitioner was asked to come over to the
office of the third respondent, District Manager, Tamil Nadu State
Marketing Corporation Ltd., Thiruvannamalai District. He was issued with a
relieving order stating that he stood relieved from service with effect from
10.04.2015 by proceedings dated 10.04.2015 issued by the third
respondent. There were various allegations against the petitioner.
3. This Court need not examine those facts because under Article
226 of the Constitution of India while examining an order of dismissal, it is
the procedure adopted which can be reviewed by this Court and not the
order passed. If the procedure is not proper, then naturally there will be a
consequential interference with the order passed by the respondents.
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4. The learned counsel for the petitioner placed on record the
charges which have been framed against the petitioner and also filed copy of
the charge memo. The petitioner was placed under suspension on
10.04.2015 and on the same day, ie., on 10.04.2015, the charge memo was
also issued.
5. The reasons for suspension were nine in number in the
suspension order. The same 9 reasons were incorporated in the charge
memo. The 7th charge was that the petitioner had violated the directions of
the higher officials. It was not given, who the higher officials were and it
was not mentioned as to how the petitioner violated the directions of the
higher officials. The 8th charge was that the TASMAC shop was managed in
violation of rules. The specific violation was not mentioned in that particular
charge. The 9th charge was that the petitioner was very casual during the
period of service. Again the details had not been given. The first, second
and third charges required examination and an enquiry to be conducted.
They stated that brandy bottles were found open and it was suspected that it
was either to dilute it with water or to sell it in smaller quantities. The
fourth charge was that the petitioner had not discharged his work as
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Supervisor. The fifth charge related to a complaint given in FIR in Cr.No.
176 of 2015 dated 14.04.2015. The sixth charge was that there was a short
fall at Rs.2348/- in cash.
6. But very unfortunately, the list of witnesses to substantiate the
charges and the list of documents on the basis of which the charges were to
be substantiated had not been enclosed or annexed along with the charge
memo. Imputations necessitating the framing of the charges had also not
been stated. These are required to be stated with a major punishment under
Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules
are to be framed. The petitioner had given an explanation on 14.04.2015.
An Enquiry Officer was then appointed and the enquiry report had also been
enclosed as a document before this Court.
7. It is seen that the enquiry officer had adopted a strange
procedure. Any departmental enquiry in the nature of disciplinary
proceedings against a delinquent must have as its fulcrum, the principles of
natural justice. Opportunity must be granted to the diligent at each and
every stage. There must be prior disclosure of the list of witnesses. There
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must be prior disclosure of the list of documents. There must be a
questionnaire enclosed calling upon the delinquent to inform whether he is
interested in adducing oral and documentary evidence. These aspects
should form part of the enquiry report. Unfortunately none of them are
present in the Enquiry Report, now impugned.
8. In the enquiry report, it is stated that the entire file had been
produced by Assistant Manager, who was present. She was not examined.
The specific documents relating to the charges were not marked. Since the
documents were not marked, they cannot pass the bench mark of
admissibility, proof and relevancy. Their genunity could not be questioned
by the petitioner. Thereafter the statement of the petitioner alone was
recorded. It was then stated he did not give any explanation in writing. The
charges were then repeated in the report and it was held that they were all
proved.
9. I really wonder how the disciplinary authority / Enquiry Officer
could come to that conclusion without any document being marked and
without oral evidence being adduced on the part of the respondents herein.
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10. I hold the entire enquiry report has to be set aside having been
prepared with mala fide intention and pre-decided conviction to some how
impose a punishment on the petitioner herein.
11. But I must place my appreciation to Mr.K.Balakrishnan,
learned Standing Counsel for the respondents, who, as always, was
extremely fair and pointed out that the other sales person against whom also
similar charges were framed, had filed W.P.No. 1222 of 2018 and a learned
Single Judge of this Court by a Judgment dated 08.12.2022, after, again
expressing opinion that there were procedural irregularities in conducting
the domestic enquiry, had quashed the charge memo. Since the said sales
person had been dismissed, a direction was given to reinstate that petitioner
back into service. An opportunity was however granted to the respondents
to follow due procedure and give adequate opportunity to let in oral and
documentary evidence and then to proceed against the petitioner therein.
The same reasoning accrues to the petitioner also.
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12. As stated, the Enquiry Report suffers from want of grant of
adequate opportunity to the petitioner herein. Effective opportunity must be
granted. It must be realistic. The principles of natural justice must be
followed not only in letter but also in spirit.
13. In view of all these reasons, the enquiry report is set aside and
once that is set aside, every order order consequential passed, necessarily
has to be interfered with by this Court and are set aside. A direction is
issued to respondent to reinstate the petitioner with all attendant backwages
and benefits.
14. As opined by the learned Single Judge in W.P.No. 1222 of
2018, a similar direction will also ennure to the respondents. It is open to
the respondents to proceed against the petitioner if they chose to do so by
following due procedures and by conducting enquiry and giving adequate
opportunity to the petitioner to let in oral and documentary evidence.
15. I only add that issue of opportunity must start with issuance of
a show cause notice inviting a reply from the petitioner, framing an opinion
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that the reply is not satisfactory and a charge memo has to be framed and
thereafter framing the charge memo accordance with rules by disclosing the
list of witness and list of documents and also the imputations of charges.
16. The Writ Petition stands allowed. The respondents must
reinstate the petitioner within a period of 12 weeks, with all attendant back
wages and emoluments. No costs.
04.07.2023
vsg
Index: Yes/No
Internet: Yes/No
Speaking / Non Speaking Order
To
1. The Managing Director
Tamil Nadu State Marketing Corporation Ltd.,
4th Floor, CMDA Towers-2
Egmore, Chennai – 600 008.
2. The Senior Regional Manager
Tamil Nadu State Marketing Corporation Ltd.,
Salem.
3. The District Manager
Tamil Nadu State Marketing Corporation Ltd.,
Thiruvannamalai District.
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C.V.KARTHIKEYAN, J.,
vsg
W.P.No. 26827 of 2019
04.07.2023
https://www.mhc.tn.gov.in/judis
