IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/10/2004
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
WRIT PETITION No.9209 OF 1997.
Murugampakkam Primary
Agricultural Cooperative Bank,
rep. by its President
Maduranthakam,
Chengai Anna District. ... Petitioner
-Vs-
1. The Deputy Commissioner
of Labour (Appeal),
Chennai,
DMS Complex,
Chennai-600 006.
2. S.Ramachandran
3. Joint Registrar of Cooperative
Societies,
Chengai MGR District,
Kancheepuram. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for the relief as stated therein.
For petitioner : No Appearance
^For R.1 & R3 : Mrs.Malarvizhi,
Govt.Advocate
For R.3 : No Appearance
:O R D E R
The above writ petition has been filed under Article 226 of the
Constitution of India praying to issue a writ of Certiorari to call for the
records relating to the order dated 7.1.1997 made by the first respondent in
T.S.E.No.23 of 1995 and quash the same.
2. On 21.9.2004, when the above matter has been taken up for
consideration, no representation has been offered on the part of the
petitioner and the contesting second respondent and hence this Court is left
with no option but to hear those who are present and reserve the judgment for
proper consideration of the materials placed on record and to decide the same.
3. On a perusal of the materials placed on record and upon hearing
the learned Government Advocate for the respondents 1 and 3, it comes to be
known that the second respondent was the Secretary of the petitioner
Cooperative Bank and on charges that he committed irregularities and that he
had not maintained the ledger books properly and had misappropriated funds of
the Bank to the tune of Rs.1,66,258.95, and hence conducting a departmental
enquiry, a punishment of dismissal from service was inflicted on him.
Thereupon, the second respondent preferred an appeal before the first
respondent who, having observed that the domestic enquiry was conducted in
total violation of the principles of natural justice, held that the
termination of the second respondent was illegal and unjust and has set aside
the order of dismissal. Aggrieved, the Management has come forward to file
the above writ petition.
4. In the affidavit filed in support of the above writ petition, the
petitioner/Management has submitted that the second respondent has
misappropriated several amounts of the petitioner Bank and committed several
irregularities and he was placed under suspension on 9.3.1993 pending enquiry;
that on such charges, a domestic enquiry was commenced on 30.7.1994 and the
second respondent requested the assistance of an Advocate by filing a memo.
but the Enquiry Officer, upon examination of the second respondent, found that
he was a Graduate with sufficient knowledge of putting up his case since he
was possessed of the knowledge of Cooperative Societies Act and turned down
the request of the second respondent and persuaded the second respondent to
continue to defend himself in the enquiry; that the enquiry officer accusing
that the second respondent unnecessarily disrupted the enquiry proceedings by
raising irrelevant demands coupled with uncharitable remarks and left the
venue of enquiry on his own accord thereby absenting himself from putting
forth his defence and on such remarks, set him exparte and having gone through
the materials available on records connected with the proceeding submitted his
report on 18.11.1994 on the basis of which, a show-cause notice dated
13.12.1994 was issued to the second respondent along with the Enquiry
Officer’s findings by registered post and the second respondent, having
received the same, since failed to give explanation within the stipulated
time, the petitioner management dismissed him from service and sent the order
by registered post to the second respondent which also he refused to receive.
5. In the above scenario, the petitioner would further submit that
the second respondent in his letter dated 8.3.1993 has admitted the act of
misappropriation and promised to repay the said amount but he has not paid any
amount and even during the enquiry, the principles of natural justice have not
at all been violated as the petitioner has permitted the second respondent to
verify the documents as per his request further effecting the payment of the
entire subsistance allowance; that the Enquiry Officer has not permitted the
assistance of an Advocate to the second respondent as the charges levelled
against him were simple and unambiguous and that an Advocate was appointed as
an Enquiry Officer only to conduct an impartial enquiry as per law. But, on
appeal preferred by the workman, the learned appellate authority, the first
respondent herein, without considering the submissions of the petitioner, has
allowed the appeal of the second respondent/ workman and hence the present
writ petition.
6. The case of the second respondent/workman before the appellate
authority was that he joined the services of the Management on 2.4.1987 ; that
he was the main witness in the assault case between the Circle Supervisor the
petitioner Primary Cooperative Bank and the Field Manager of the Kancheepuram
Control Cooperative Bank, Maduranthakam Branch, which was disliked by the
Circle Supervisor and hence he was victimised by the said Circle Supervisor
consequent to which all these false charges were framed against him and even
his request for the assistance of an Advocate in the enquiry was rejected by
the Enquiry Officer, who has only directed him to say ‘yes’ or ‘no’ against
the charges levelled; that he was forced to sign the written statements
prepared by the Enquiry Officer and an exparte enquiry was conducted without
affording any opportunity to him thus violating the principles of natural
justice and hence he was not even able to give his explanation as a
culmination of which and he was dismissed from service with retrospective
effect from 9.3.1993 under a dismissal order dated 6.4.199 5 which was pasted
at his residence on 15.6.1995; that his long unblemished service was not taken
into account before awarding the capital punishment. On such grounds, he
would pray to the appellate authority to set aside the order of the
disciplinary authority.
7. In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned Government Advocate
for respondents 1 and 3, this Court is able to assess that a departmental
enquiry was initiated against the second respondent herein who was the
Secretary of the petitioner Cooperative Bank to go into the charges of
misappropriation of funds of the Bank and the same has been decided exparte
since, according to the Management, the second respondent did not cooperate
with the Enquiry Officer in the conduct of the enquiry. But, the same would
be attributed by the second respondent to the high-handed behavioural pattern
of the Enquiry Officer at the instigation of the Circle Supervisor of the
petitioner Cooperative Bank, who was ill-disposed of with him. The second
respondent would offer the reason for such a stand to be taken that since he
did not budge to the dictates of the Circle Supervisor since he was cited as
the main witness in the case registered as a result of the assault that took
place in between the Circle Supervisor of the petitioner and the Field Manager
of the Kancheepuram Control Cooperative Bank, Maduranthakam Branch, all these
false charges are framed against him. Therefore, the second respondent has,
prima facie, a strong case to put up against the Circle Supervisor of the
petitioner Bank, who is his superior, to have manipulated the facts and
accused the petitioner of having indulged in misappropriation of the funds of
the petitioner Bank which, according to him, is not true and he has been
victimised in commencing the disciplinary proceeding against him on false
charges framed.
8. Be that as it may. Now the point for consideration is ‘whether a
free and fair enquiry has been held by the Enquiry Officer appointed by the
petitioner to go into the charges framed against the second respondent so as
to arrive at the conclusion to hold the charges proved as it has been arrived
at on the part of the Enquiry Officer based on which the petitioner awarded
the punishment of dismissal from service against the second
respondent/delinquent Officer or whether for non-cooperation on the part of
the second respondent for conducting a smooth enquiry, the Enquiry Officer was
left with no option but to decide the enquiry exparte and whether such
opportunity afforded to the second respondent in the case in hand is
sufficient opportunity in the circumstances of the case’? This point has been
answered in the negative and in favour of the second respondent on a wide
discussion held on facts connected in the appeal preferr ed by the delinquent
Officer before the first respondent who allowed the appeal setting aside the
order of dismissal passed by the disciplinary authority based on the findings
of the exparte enquiry.
9. A perusal of the materials placed on record would show that the
second respondent delinquent was not even permitted to verify the documents
and registers connected with the charges and that he was not even paid the
subsistance allowance during the period of suspension and therefore he was not
in a position to send his explanation to the show-cause notice; that moreover,
according to the second respondent, his request for the assistance of an
Advocate has also been rejected by the Enquiry Officer and this could be
termed by the second respondent as a lack of opportunity as against the
principles of natural justice.
10. Regarding the permission sought for by the second respondent
seeking assistance of an Advocate, it has been rejected by an order which does
not seems to have been challenged before the appropriate appellate authority
and therefore that issue has been finalised and no discussion need be held on
that subject. But, the other two main charges alleged against the enquiry
officer and the disciplinary authority that the Enquiry Officer did not at all
permit him to peruse the vital documents and registers connected to the
charges and that he was not at all paid the subsistance allowance during the
period of suspension, which are not only against the cardinal principles
governed by the laws and the propositions of the upper forums of law
particularly that of the Honourable Apex Court but also a vindictive one and
further since the Enquiry Officer did not follow the procedures which are to
be normally adopted in the matter of such enquiry proceedings, the second
respondent was not able to carry on with the enquiry proceedings and the same
could not be termed as refusal to participate in the enquiry proceeding.
Therefore, the appellate authority has every reason to arrive at, in his
considered view, his own conclusions that the domestic enquiry has been
conducted in total violation of the principles of natural justice and hence
held the dismissal of the delinquent officer from the services of the
petitioner’s Bank as unjust, illegal and invalid, consequently allowing the
appeal and it is this order passed by the appellate authority and the Deputy
Commissioner of Labour (Appeals) Chennai, which is under challenge in the
above writ petition.
11. No doubt, the Enquiry Officer, alleging non-cooperation on the
part of the delinquent Officer, has decided the enquiry exparte holding the
second respondent guilty of the delinquencies for which he was charged against
and the same would be attributed by the second respondent to the wrong
procedures adopted on the part of the Enquiry Officer without affording him
such opportunities required to be given under law.
12. On a careful perusal of the enquiry report, the order of the
disciplinary authority and the order of the appellate authority as well, this
Court is able to see that there is no evidence for the Enquiry Officer to have
permitted the petitioner either to peruse the records and documents connected
to charges and that the second respondent has not even been paid the
subsistance allowance as required under law. The opportunity to peruse the
records is one of the basic requirements of law that is afforded for the
delinquent and even without perusal of the records, the delinquent Officer
would not at all be able to meet with the charges so as to put up a valid
defence and hence as held in many landmark judgments by the High Courts and
the Honourable Apex Court, denial of such opportunities for perusal of records
and documents would vitiate the entire enquiry proceeding thus ultimately the
enquiry proceeding or the findings thereon becoming liable to be set aside
since it is against the principles of natural justice.
13. Likewise, payment of subsistance allowance is the legal right
granted under law for a delinquent officer who is facing enquiry in any
enquiry proceeding since it is the only means of livelihood for the delinquent
officer to survive during the pendency of the enquiry and therefore it is not
out of place to mention that non-payment of the subsistance allowance besides
being inhuman and incongruous goes against the principles of the Subsistence
Allowance Payment Act and this would also attribute motives to the
disciplinary authority regarding the very disciplinary proceeding initiated
against him and since on the part of the petitioner Bank they are not able to
place such materials before this Court to the effect that sufficient and
reasonable opportunities were afforded for the second respondent to exhaust
his remedies particularly in the matter of putting up a valid defence such as
seeking the assistance of an expert, perusal of the documents etc. and since
such opportunities have not been afforded to the second respondent, needless
to mention that it is a case of denial of such opportunities in violation of
the principles of natural justice and in denying to pay the subsistance
allowance, the basic rights of the petitioner enshrined under law have been
denied and at this score also, the enquiry proceeding initiated by the
disciplinary authority, the petitioner Bank herein, becomes tainted and
therefore the conclusions arrived at by the appellate authority in setting
aside the decision of the disciplinary authority resorting to dismissal of the
second respondent from service has been legally and in the circumstances of
the case, rightly done and therefore this Court does not find it necessary to
cause its interference into such a well considered and merited order passed by
the appellate authority and hence the following order:
In result,
(i) the above writ petition does not merit acceptance but becomes
liable only to be dismissed and is dismissed accordingly.
(ii) The order dated 7.1.1997 made in T.S.E.No.23 of 1995 by the
first respondent/The Deputy Commissioner of Labour (Appeals) Chennai is
hereby confirmed.
However, in the circumstances of the case, there shall be no order
as to costs.
Index: Yes
Internet: Yes
Rao
To
1. The Deputy Commissioner
of Labour (Appeal),
Chennai,
DMS Complex,
Chennai-600 006.
2. The Joint Registrar of Cooperative
Societies,
Chengai MGR District,
Kancheepuram.