IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 5-12-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.24706 of 2008 & M.P.No.2 of 2008 K.P.Perumal ... Petitioner Vs. 1. The Tamil Nadu Industrial Investment Corporation Ltd., rep.by its Chairman (on behalf of the Board of Directors), 692, Anna Salai, Nandanam, Chennai - 600 035. 2. The Managing Director, The Tamil Nadu Industrial Investment Corporation Ltd., No.692, Anna Salai, Chennai - 600 035. ... Respondents Prayer: This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified mandamus calling for the records relating to the order No.TIIC/Admn/2005, dated 1.9.2005 of the first respondent Board of Directors as communicated by the second respondent Managing Director by his letter No.TIIC/HO/HRM/2008-2009 dated 30.9.2008 and quash the departmental proceedings culminating in the punishment of compulsory retirement on the petitioner, as being illegal, arbitrary, mala fide, contrary to the principles of natural justice and constitutional and consequently direct the respondents to continue the petitioner in service with all attendant benefits including seniority and monetary benefits. For Petitioner : Mr.N.G.R.Prasad for M/s.Row & Reddy For Respondents : Mr.P.S.Raman, Addl.Advocate General, assisted by Mr.A.Panneerselvam O R D E R
By consent of both sides the writ petition is taken up for final disposal.
2. The prayer in the writ petition is to quash the order of the first respondent dated 1.9.2005 communicated through the second respondent on 30.9.2008, imposing the punishment of compulsory retirement against the petitioner with a direction to the respondents to continue the petitioner in service with all attendant benefits including seniority and monetary benefits.
3. The brief facts necessary for disposal of the writ petition are as follows:
(a) The petitioner was appointed as Assistant General Manager in the year 1987 in the Tamil Nadu Industrial Investment Corporation Ltd., fully owned by the Government of Tamil Nadu and in the year 1994 he was overlooked for promotion to the post of Deputy General Manager, at the instance of promotee Officers. The petitioner got his promotion as Deputy General Manager in the year 1995 and he is continuing in the said post.
(b) In the year 2002, the petitioner became eligible for promotion to the post of General Manager in the vacancy caused and according to the petitioner, he was deprived of getting promotion at the instance of promotee officers. A show cause notice dated 27.2.2003 was issued stating that the petitioner made false travel allowance claim for a sum of Rs.4,402/- for his official tours performed during July and August, 2002, to Coimbatore, Bangalore and Madurai.
(c) Petitioner submitted explanation on 18.3.2003 by stating that as Deputy General Manager, he is entitled to First Class A/C fair, but claimed only second class A/C fair. According to the petitioner, as he travelled at the last minute, he relied upon the private travel agent and got tickets, which were subsequently upgraded as second class A/C. Petitioner further stated that if the Corporation dispute the amounts, they can pay the amount as in the case of other employees.
(d) On 7.4.2003, a regular charge memo was issued alleging three charges. On 25.4.2003, the General Manager was appointed as Enquiry Officer. Petitioner attended the enquiry on 28.10.2003, which was adjourned to 3.11.2003. However, as the petitioner was on medical leave from 1.11.2003 to 2.12.2003, which was also sanctioned by the Medical Board, he was not able to attend the enquiry on 3.11.2003 and on 3.11.2003, the Enquiry Officer set the petitioner ex parte and on 7.11.2003 and closed the enquiry. Petitioner was directed to give written arguments by 14.11.2003. On 27.11.2003, the Enquiry Officer found that the charges are proved.
(e) On 16.12.2003, a show cause notice was issued with regard to the enquiry findings. The petitioner filed W.P.No.37805 of 2003 and challenged the show cause notice. On 24.12.2003, interim stay of further proceedings were granted by this Court in W.P.NO.37805 of 2003 and on 1.3.2004, the said writ petition was allowed with a direction to the second respondent Corporation to conduct enquiry from the stage in which it was closed, i.e., from 7.11.2003. The said order was challenged by the second respondent in W.A.No.1443 of 2003, which was also dismissed by the Division Bench on 17.4.2004.
(f) On 3.5.2004, the Managing Director took a decision to conduct enquiry by herself and fixed the date of enquiry as 19.5.2004. Petitioner objected the same by sending representation on 13.5.2004. On 21.5.2004 the petitioner requested to produce the railway officials, who had given letter to the TIIC about his travel, for cross-examination. The said request was rejected by stating that unless the said official is examined by the management, no question of cross-examination will arise. The Managing Director having proceeded with the enquiry, the petitioner filed W.P.No.15940 of 2004 and on 15.6.2004 this Court granted interim stay of all further proceedings and the writ petition was finally disposed of on 24.11.2004 and the said judgment is reported in 2005 (1) LLN 566 (K.P.Perumal v. Tamil Nadu Industrial Investment Corporation). The learned Judge appointed Sri N.P.K.Menon, retired District Judge, to conduct enquiry and submit report to the Board of Directors and directed the Managing Director not to sit for the Board meeting while considering petitioner’s case.
(g) The contention of the petitioner is that Exs.A-6, A-7 and A-8 were marked without examining the authors of the said documents. The material witnesses viz., the Assistant General Manager, TIIC, and the Railway Officials were not examined despite petitioner’s repeated request. The evidence given by DW-2 Travel Agent and DW-3 retired Chief Travelling Ticket Examiner, Southern Railways, were not at all considered, particularly with regard to the statement of DW-3 that ticket could be upgraded during journey and the same would not reflect in the final chart. Ultimately, the Enquiry Officer held that the charges are proved and a finding was given.
(h) According to the petitioner, since the Enquiry Officer conducted the enquiry in a biased manner, he filed W.P.No.8744 of 2005 and this Court on 21.3.2005 passed an interim order to the effect that the Corporation can pass orders and the same shall not be given effect to and the petitioner’s explanation given on 17.3.2005 with regard to the enquiry finding was also directed to be considered. The said writ petition was finally heard on 30.9.2008 and the same was dismissed on the ground that the writ petition is premature and if final order is passed, it is always open to the petitioner to challenge that order, with a further direction that any adverse order, if any passed would not be given effect to for a period of 30 days. The second respondent communicated the decision dated 1.9.2005 compulsorily retiring the petitioner with effect from 30.9.2008.
(i) The said order of compulsory retirement dated 1.9.2005 giving effect from 30.9.2008 is challenged in this writ petition on the ground that the Enquiry Officer relied upon Exs.A-6, A-7 and A-8 without examining the authors of the documents; that the non-examination of the author of the exhibits viz., the Assistant General Manager and the Railway Official has resulted in denial of reasonable opportunity to the petitioner; that the evidence of defence witnesses DW-2 Travel Agent and DW-3 Retired Chief Travelling Ticket Examiner were not considered and the Enquiry Officer brushed aside their evidence; that the travel claims made by other managers were not called for and no verification was made in respect of TA claims made by other officers and only against the petitioner departmental action was taken; that in his explanation dated 18.3.2003 he had stated that he may be paid the amount as the Corporation feels; and that the second respondent is biased by setting the petitioner ex parte, which was set aside by this Court.
(j) The Managing Director, who is the disciplinary authority herself conducted the enquiry, which shows the mala fide intention to proceed against the petitioner, the non-consideration of the petitioner’s reply dated 17.3.2005 which was ordered to be considered by this Court has resulted in non-consideration of relevant issues. Since witnesses were not examined despite the request, principles of natural justice is violated. The action initiated against the petitioner is motivated at the instance of the promotee officers since the petitioner is a direct recruit.
4. The respondents filed counter affidavit contending as follows:
(i) The petitioner was instructed to travel to discharge official duty and he had submitted his claim for reimbursement of TA Bills. A routine enquiry was sent to the Southern Railway Office seeking details about the journey, allegedly performed by the petitioner, to ascertain whether the petitioner had performed journey in Second A/C Coach, as claimed by him. The Chief Commercial Manager, Southern Railways, in his letter dated 16.12.2002 furnished the status of the journey undertaken by the petitioner and as per the report the petitioner had not travelled in A/C coach and he travelled only in second class sleeper. Having travelled in second class sleeper, petitioner was not eligible to claim any fair above second class sleeper fair and therefore he had submitted false claim seeking Second A/C fair.
(ii) The petitioner is also found to have submitted false claims by not having undertaken journey in reserved class on 12.7.2002, 3.8.2002 and 5.8.2002 respectively, as confirmed in the railway report. However, he chose to claim A/C fair for these journeys also. Based on the report received from the railways, a show cause notice was issued asking the petitioner as to why he made fraudulent claims, for which the petitioner submitted explanation and the same having been found not acceptable, regular charges were framed on 7.4.2003 and an enquiry was conducted by the then General manager initially and the said report was set aside since it was conducted during his medical leave.
(iii) The subsequent enquiry conducted by the Managing Director was also challenged by the petitioner alleging bias and this Court ultimately appointed a retired District Judge to conduct enquiry with the consent of the petitioner as well as the second respondent. Consequently the retired District Judge conducted enquiry, examined witnesses from the administrative department and through him nine documents were marked. On behalf of the petitioner, two witnesses apart from the petitioner was examined. Petitioner also marked eight documents. The Enquiry Officer found that the charges were proved and submitted a report on 7.5.2005.
(iv) Thereafter petitioner filed another writ petition which was ultimately dismissed with liberty to challenge the final order. The decision taken by the second respondent is justified on the ground that based on the proven charges of attempting to defraud the TIIC, compulsory retirement order was passed.
(v) It is also stated in the counter affidavit that the petitioner’s earlier attempt to get the charge memo quashed was rejected by this Court. The enquiry report was placed before the Board and after considering the reply given by the petitioner, Board took a decision to impose the punishment of compulsory retirement.
(vi) Regarding summoning of Southern Railway Officials, who had issued the letters indicating that the petitioner travelled in Second Class Sleeper for certain days and not travelled on three days, the Enquiry Officer suggested the petitioner to file a petition for the same and take steps for issuing summons, but the petitioner refused to take steps to summon the railway officer.
(vii) The Enquiry Officer also gave a finding that Exs.A-7 and A-8 were sent after verification at the office of the Southern Railway and there is no necessity to enquire the railway officials for that purpose. The petitioner did not produce tickets for Second A/C for all the journeys and also not produced the receipt for paying difference amount for upgrading the tickets, issued by the Travelling Ticket Examiner (TTE). The burden of proof is on the petitioner and as the petitioner has not discharged the said burden, he cannot question the order of the Enquiry Officer. It is further stated that the charge being serious in nature the respondent being a financial institution, viewed the delinquency of the petitioner seriously and the punishment of compulsory retirement is ordered.
5. Petitioner filed a reply affidavit and reiterated the points raised in the affidavit in support of the writ petition, particularly the non-examination of the Railway Officials, the motive on the part of the Managing Director and the discriminatory treatment meted out to the petitioner when similarly placed officials were sanctioned with TA bill, either based on the claim or sanction with restricted amount.
6. Mr.N.G.R.Prasad, learned counsel appearing for the petitioner submitted that when a show cause notice was issued on 27.2.2003, the petitioner sent reply stating that if the claim was not admissible, eligible amount may be sanctioned and hence there was no necessity to frame regular charge memo dated 7.4.2003. Exs.A-6, A-7 and A-8 were marked without the authors being examined and thus the petitioner was denied of the opportunity to cross-examine the said persons, who are the authors of the said documents. The Enquiry Officer shifted the burden to the petitioner to prove that he has actually travelled as claimed by him. The charge having been framed by the respondents, it is for the respondents to prove the charges alleged against the petitioner. The evidence of DW-3, who is a retired Railway Official, was not considered by the Enquiry Officer and the punishment is also unproportionate to the gravity of the charges framed.
7. Mr.P.S.Raman, learned Additional Advocate General, on the other hand submitted that the petitioner having claimed to have upgraded his ticket from Sleeper class to Second A/C during the course of the journey, he is bound to produce the receipt issued by TTE and the said receipt having not been produced, the claim made by the petitioner is to be treated as bogus claim. There is no perversity in the finding of the Enquiry Officer since Ex.A-6, A-7 and A-8 were marked, after serving copy to the petitioner and hence not cross-examining the authors of the said document has not caused any prejudice to the petitioner. The submission of the petitioner that the TA claims of other officers is also to be called for is unjustified by contending that since allegation is made only against the petitioner therein no need to call for TA claims of other officers. The findings given by the Enquiry Officer is based on the oral and documentary evidence available, and hence the said finding cannot be treated as perverse finding. Learned Additional Advocate General submitted that the jurisdiction of this Court to go into the issue under Article 226 of Constitution of India being very limited, the impugned order passed by the respondents are legal and valid.
8. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Additional Advocate General for the respondents in the light of the pleadings and decisions cited on either side.
9. The charges dated 7.4.2003, levelled against the petitioner reads as follows:
“1. On verification, it is found that neither the name of Thiru K.P.Perumal, nor the ticket No.25692481 furnished by Thiru K.P.Perumal in his T.A.Bill is found in the passenger dump details maintained by Southern Railway, Chennai, for journey in any reserved class from Chennai Central to Coimbatore by Train No.2875 (Kovai Express) of 05.08.2002. Hence it is obvious that Thiru K.P.Perumal had not travelled by any reserved class, but has claimed fare of Rs.479/- fraudulently as though he had travelled by A/c Chair car.
2. Regarding the journey performed by him from Coimbatore to Chennai on 06.08.2002, it is found that the Ticket No.25692482 furnished by him for II A/c was booked in the name of Thiru K.P.Perumal for journey in sleeper class from Coimbatore to Chennai Central by Train No.2674 (Cheran Express) of 06.08.2002 and that Thiru K.P.Perumal performed the journey in Coach No.S-9 Berth No.53. Hence, it is obvious that Thiru K.P.Perumal had travelled by II Class Sleeper whereas he has claimed Rs.925/- in his T.A.Bill fraudulently as though he had travelled by II Class A/c.
3. Thiru K.P.Perumal has claimed a sum of Rs.717/- towards the fare of II Class A/c for the journey performed by him from Chennai to Bangalore on 31.07.2002 as if he had travelled by II Class A/c. On verification it is found that Thiru K.P.Perumal had booked the ticket in Ticket No.25906568 in his name for the journey in Sleeper class from Chennai Central to Bangalore City by Train No.6222 on 31.07.2002 and that he had performed the journey in Coach No.S-5 Berth No.71. Hence it is obvious that Thiru K.P.Perumal had travelled only in II Class Sleeper, but, has fraudulently claimed Rs.717/- in his T.A.Bill as though he had travelled by II Classs A/c.
4. Thiru K.P.Perumal has claimed a sum of Rs.717/- in his T.A.Bill for the journey from Bangalore to Chennai on 03.08.2002. On verification, it is found that neither the name of Thiru K.P.Perumal nor the ticket No.28754186 are found in the passenger dump details maintained by Southern Railway, Chennai, for the journey in any reserved class from Bangalore City to Chennai Central on that day. Hence, it is obvious that Thiru K.P.Perumal had not travelled from Bangalore to Chennai in any reserved compartment, but has fraudulently claimed Rs.717/- in his T.A.Bill as though he had travelled by II Class A/c.
5. Thiru K.P.Perumal has furnished T.A.Bill for the journey performed by him from Chennai to Coimbatore on 04.07.2002 as if he travelled by II Class A/c and furnished ticket No.08343542 and claimed a sum of Rs.925/- towards the fare of II Class A/c as reimbursement. On verification, it is found that the ticket bearing No.24058562 was booked in the name of Thiru K.P.Perumal for journey in II Class Sleeper in Coach No.S-1, No.102 from Chennai to Salem by Train No.2679 Coimbatore Intercity Express of 04.07.2002. Hence, it is obvious that Thiru K.P.Perumal had travelled from Chennai to Salem by II Class Sleeper whereas he has fraudulently claimed II Class A/c fare upto Coimbatore as though he travelled by II Class A/c upto Coimbatore. Even though he performed the journey only upto Salem on 04.07.2002, he furnished lodge bill No.1364 dated 07.07.2002 of Sri Kumaran Lodge, Coimbatore, as if he stayed at Coimbatore from 05.07.2002 (5.30 A.M.) to 07.07.2002 (8.00 P.M.).
6. He claimed T.A. for the journey performed from Madurai to Chennai on 12.07.2002 as if he travelled in II class A/c. with Ticket No.04146271. On verification, it is found that neither the name of Thiru K.P.Perumal nor the ticket No.04146271 is found in the passenger dump details maintained by Southern Railway, Chennai, for journey in any reserved class from Madurai City to Chennai. Hence, it is obvious that he had not travelled from Madurai to Chennai in any reserved compartment whereas he fraudulently claimed II Class A/c. fare of Rs.895/-.”
From the perusal of the Charge Memo it is evident that the charges were framed after getting a report from the Southern Railway Chief Commercial Manager dated 16.12.2002. The said report reads as follows:
“SOUTHERN RAILWAY
Head Quarters Office,
Commercial Branch,
Chennai -3
Dated 16-12-2004
No.C.268/II/LTC/2001/Vol.IV/82 & 87
Assistant General Manager (Admn),
The Tamil Nadu Industrial Investment
Corporation Limited,
New No.692, Anna Salai,
Nandanam,
Chennai – 600 035.
Sir,
Sub: Verification of LTC case
Ref: Your letter No.Admn/A 6/2002-2002,
dated 18-09-2002.
—-
With reference to our letter cited above, it is advised that neither the name of the passenger Shri K.P.Perumal, aged 48 years, nor the ticket No.25692481 as furnished by you were found in the passenger dump details maintained at PRS Chennai for journey in all reserved class from Chennai Central to Coimbatore by Train No.2675 of 05-08-2002.
Return Journey the passenger transaction details indicate that the PNR No.431-8204183, Ticket No.25692482 has been initially booked on 06-08-2002 in favour of Shri K.P.Perumal aged 47 years for journey in Sleeper Class from Coimbatore to Chennai Central by Train No.2674 of 06-08-2002. The verification of Final Reservation Working Charts indicate that the party has performed the journey in coach No.S9, berth No.53.
Regarding item II, Return Journey by Train No.6008/6518 of 03-08-2002, neither name of the passenger Shri.K.P.Perumal aged 48 years, nor the ticket No.28754186 as furnished by you were found in the passenger dump details maintained at PRS Chennai for journey in all reserved class from Bangalore City to Chennai Central.
Regarding item III, it is advised that the passenger transaction details indicate that the PNR No.441-7609660, Ticket No.24058562 has been initially booked on 30.06.2002 in favour of Shri K.P.Perumal aged 47 years for journey in Second Class from Chennai Central to Salem by Train No.2679 of 04.07.2002. The verification of Final Reservation Working Charts indicate that the party has performed the journey in Coach No.S1, berth No.102.
Return journey by Train No.2638 of 12.07.2002, neither name of the passenger Shri K.P.Perumal aged 48 years, nor the ticket No.04146271 as furnished by you were found in the passenger dump details maintained at PRS Chennai for journey in all reserved class from Madurai City to Chennai Central.
Regarding by Train No.6222 of 31.07.2002, the verification is under process and would be advised to you in due course.
This is for your information.
Yours sincerely,
Chief Commercial Manager.”
The said report was received by the TIIC, based on the letter written by the General Manager based on the oral instruction given by the Managing Director and the same is admitted during examination of the management witness.
10. It is an admitted case that at the first instance when the petitioner was confronted with the allegations, he has stated that if the claims made are not found acceptable, the respondents can restrict the claim and sanction admissible amount and pay the same. It is also an admitted fact that the exparte enquiry made against the petitioner when the petitioner was on medical leave, was set aside by this Court in W.P.No.37805 of 2003 dated 1.3.2004 by holding that sufficient opportunity was not given to the petitioner, and with a direction to hold enquiry from the stage where it was closed. It is also an admitted fact that the said order was confirmed in W.A.No.1443 of 2004 dated 17.3.2004. Thereafter the Managing Director, who is the disciplinary authority herself proposed to conduct enquiry, against whom the petitioner alleged bias and this Court in the decision reported in 2005 (1) LLN 566 (K.P.Perumal v. Tamil Nadu Industrial Investment Corporation) ordered to conduct enquiry by a retired District Judge and the Managing Director was directed not to sit in the Board meeting, when decisions are taken with regard to the petitioner. The retired District Judge also conducted enquiry and examined the witnesses.
11. It is the specific case of the management that on receipt of the report and details from the Southern Railways, regular charge memo was issued and the Managing Director orally requested to get verification report from the Southern Railway. In the cross examination it is admitted by the management witness that even though the TA Rule may not provide any power to verify the claim by AGM, he acted on the oral instructions of the Managing Director. The said AGM was not examined to substantiate the said statement made by the management witness and the letter written by the AGM, Southern Railway is also marked. The report of the Southern Railway with regard to the petitioners journey details is also marked through the management witness. The petitioner objected the said marking and requested the Enquiry Officer to summon the Officer, who issued the said details. The Enquiry Officer instead of summoning the Southern Railway Official, who is the author of Ex.A-7 and A-8, has chosen to state that the petitioner has to file interim application and if any such interim application is filed, the same will be considered.
12. When the whole charge memo is based on the reply received from the Railway Officials, it is incumbent on the part of the respondents, more particularly the Enquiry Officer to summon the said officer to corroborate the statements contained therein. It is the specific case of the petitioner that during the course of the journey he has upgraded the ticket from Sleeper class to Second A/C. It is also the specific case of the petitioner that he has paid the difference amount and the TTE issued the receipt, however the same was returned to the Ticket Collector on his reaching the destination and therefore he is not having the receipts. The retired Railway Official, who was examined as DW-3 also deposed that when a passenger travels in higher class after paying the difference in fair, the TTE issues receipt, which is known as excess fair ticket. It is also stated that Exs.A-7 and A-8 issued by the Railway Office only refer to the passenger chart and not the final chart submitted and without final chart, no conclusion can be drawn. It is also stated that when the TTE remits the excess fair collected, the excess fair ticket book is not verified and not surrendered to the railways.
13. In the light of the said evidence given by DW-3 and since the entire case revolves around the documents marked as Exs.A-7, A-8, it is all the more required by the Enquiry Officer to summon the Railway Officials, who issued the said reply to the respondents while relying upon the contents in the said documents. The petitioner says he has upgraded the ticket during the course of the journey and remitted the excess fair by cash, for which receipt was issued, which was said to be returned along with railway ticket to the Ticket Collector. When that being the case, the examination of the Railway Officials to find out whether the petitioner really paid the excess amount and travelled in the upgraded ticket, can be verified only from the charts/counterfoil maintained by the railways and the amount remitted by the TTE concerned. The non-examination of the Railway Officials, who issued A-7 and A8, vitiates the entire enquiry proceedings. Further the Enquiry officer gave a finding based on suspicion by observing, “all these are suspicious circumstances, which cannot be overlooked”.
14. The Honourable Supreme Court in the decision reported in AIR 1964 SC 364 (Union of India v. H.C.Goel), in paragraph 24 held that mere suspicion cannot be a ground to punish a person even under the departmental proceedings. In paragraph 26 it is observed as follows:
“……. Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. ……….”
The Supreme Court in the decision reported in (2008) 8 SCC 236 (State of Uttaranchal v. Kharak Singh) in paragraph 15 held that the departmental enquiry must be conducted bona fide and care must be taken to see that the equiries should not become empty formalities.
15. The service rule applicable to the petitioner viz., Rule 6.17 of the Tamil Nadu Industrial Investment Corporation Ltd., Service Rules, 1990, also contemplates that the delinquent is entitled to cross-examine the witnesses called he/she may wish and the enquiry officer may refuse to call a witness by stating special and sufficient reasons in writing. The said sub-rule reads as follows:
6.17 (i) In every case where it is proposed to impose on a member of a service under the Corporation any of the penalties specified in items (i) to (x) in Rule 6.15, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He/She shall be required within a reasonable time, to put in a written statement of his/her defence and to state whether he/she desires an oral enquiry. The enquiry shall be held if such an enquiry is desired by the person charged or is directed by the authority concerned. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses called, as he/she may wish, provided that the Officer conducting the enquiry, may, for special and sufficient reasons to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and on statement of the findings and the grounds thereof.
Provided that in case of a person appointed or promoted to a post by transfer from any other class or service the Corporation may at any time before the appointment of the said person as a full member to the said post, revert him/her to such class or service either for want of vacancy or in the event of his/her becoming surplus to requirements without observing the formalities prescribed in this sub-rule.
(ii) In case it is decided to hold an enquiry in a disciplinary proceeding, an employee of the Corporation above the rank of the person charged shall be appointed as the Enquiry Officer. No outside person or agency shall be appointed as the Enquiry Officer.”
The conduct of the Enquiry Officer in not calling the Railway Officials for examination merely on the ground that the petitioner has not filed interim application is not correct.
16. Thus, I am of the view that the non-examination of the Railway Officials, who are the authors of Exs.A-7 and A-8, which is the basis for framing charge memo and holding the petitioner guilty of the charges and denial of petitioners to cross examine the said authors of the documents are denial of reasonable opportunity to the petitioner to establish his innocence. Hence the finding of the Enquiry Officer drawn without examining the said Railway Officials on the basis of Ex.A-7 and A-8 and drawing adverse inference against the petitioner for non-production of receipts to the TTE for payment of excess amount, is to be treated as perverse finding and the consequential decision taken by the first respondent to impose the punishment of major penalty of compulsory retirement against the petitioner is unsustainable.
17. However, it is open to the respondents to proceed with the enquiry against the petitioner by summoning the Railway Officials, who have issued Exs.A-7 and A-8 and give opportunity to the petitioner. If the respondents are willing to conduct enquiry on the above line, the same should be commenced and completed within a period of two months from the date of receipt of copy of this order.
The writ petition is allowed on the above terms. No costs. Connected miscellaneous petition is closed.
Index : Yes/No.
Website : Yes/No. 5-12-2008 vr To 1. The Chairman (on behalf of the Board of Directors), Tamil Nadu Industrial Investment Corporation Ltd., 692, Anna Salai, Nandanam, Chennai - 600 035. 2. The Managing Director, The Tamil Nadu Industrial Investment Corporation Ltd., No.692, Anna Salai, Chennai - 600 035. N.PAUL VASANTHAKUMAR, J. vr Pre-Delivery Order in W.P.No.24706 of 2008 5-12-2008