BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17/09/2007 CORAM: THE HONOURABLE MR.JUSTICE K. CHANDRU W.P(MD)No.4683 Of 2004 M.Rajapandian .. Petitioner vs. 1. The Tamil Nadu Khadi and Village Industries Board, represented by its Board of Directors, Kuralagam, Chennai-108. 2. The Chief Executive Officer, Tamil Nadu Khadi and Village Industries Board, Kuralagam, Chennai- 600 108. 3. The Assistant Director of Khadi and Village Industries Board, Ramanathapuram .. Respondents. PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the impugned order of the first respondent in Khadi Board Proceeding(MS)No.66, dated 1.12.2004 and the order of the second respondent passed in Na.Ka.No.61393/2000/E3 (1) dated 15,.11.2002, and to quash the same and consequently direct the respondents to provide the petitioner with all monetary attendant benefits, pay the pension and Pensionary benefits due to the petitioner from the date of eligibility with interest till date of realisation !For Petitioner ... Ms.VeeraKhadiravan ^For Respondents ... Ms.S. Packiaraj 2 and 3 :ORDER
The petitioner in the present writ petition challenges the orders passed
by the respondent Board, Chief Executive Officer dated 15.11.2004 dismissing him
from service and confirmed by the Board’s appellate order dated 01.12.2004.
2. The petitioner joined as a Khadi Assistant in the respondent Board in
the year 1975. At the relevant time, the petitioner served in the sales depots
at Paramakudi, and Parthibanoor at Ramanathapuram District. During that time,
on the basis of a preliminary enquiry conducted by the Board certain
irregularities were found which resulted in chargesheeting the petitioner vide
charge memo dated 09.12.2000. The petitioner submitted his explanation dated
18.05.2001.
3. Thereafter, an Assistant Director was appointed to conduct an enquiry
against the petitioner and in the enquiry no witnesses were examined and no
documents were filed and he merely took into account the explanation submitted
by the petitioner. Even after the Enquiry Officer’s report was given the
petitioner was not supplied with a copy of the enquiry report and finally on the
basis of enquiry officer’s report (Assistant Director) dated 19.01.2001 the
petitioner was dismissed from service by an order dated 15.11.2002.
4. In that order it was informed that he can file an appeal to the
Government Khadi Department against the order of dismissal. Accordingly, the
petitioner filed an appeal in terms of those Statutory Rules. Subsequently, the
rule under went modification where instead of the Tamil Nadu Government, the
Khadi and Village Industries Board was made as an appellate authority. Since the
petitioner appeal dated 04.01.2003 was not heard immediately the petitioner
filed a present writ petition before this Court being W.P.No.883 of 2004. This
Court without going into the merits of the case, by an order dated 31.08.2004
directed the appeal which was forwarded to the Board by the Government, to be
disposed of after giving a personal hearing to the petitioner.
5. The Board on receipt of the said order appointed an enquiry officer.
The enquiry officer put questions to the petitioner and recorded the same. On
the basis of this record, his appeal was rejected by the orders of the Board and
was communicated by the Chief Executive Officer. As against the said order
confirming the original dismissal, the present Writ Petition has been filed by
the petitioner as noted already.
6. Heard the arguments of Mr.Veerakathiravan, the learned counsel for the
petitioner and Mr.S.Packiaraj, the learned counsel for the second and third
respondents and have perused the records.
7. The Tamil Nadu Khadi and Village Industries Board was created under the
Tamil Nadu Khadi and Village Industries Board Act, 1959 (Tamil Nadu Act 18 of
1959). In respect of the service conditions of the employees of the Board
statutory rules have been framed under Section 30 of the said Act. Regulation
No.33 provides for procedure for conducting enquiry against its employees and
the following is the procedure prescribed:
“33(b)(i) In every case where it is proposed to impose on a member of the
service any of the penalities specified in items(iv),(vi),(vii) and (viii) in
regulation 28, the grounds on which it is proposed to take action shall be
reduced to the form of 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 shall be required within a
reasonable time to put in a written statement of his defence and to state
whether he desires an oral enquiry or to be heardin person or both. An oral
inquiry shall be held if such an enquiry is desired by the person charged or is
directed by the authority concerned. Even if a person charged has waived an
oral enquiry such inquiry shall be held by the authority concerned in respect of
charges which are not admitted by the person charged and which can be proved
only through the evidence of witnesses.
(At the 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, to give evidence in person and to have such witnesses called, as
he may wish, provided that the officer conducting the inquiry may, for special
and sufficient reasons to be recorded in writing, refuse to call a witness.)
After the enquiry has been completed the person charged shall be entitled
to put in, if he so desires, any further written statement of his defence.
Whether or not the person charged desired or had an oral enquiry, he shall be
heard in person at any stage, if he desires before passing of final orders. A
report of the enquiry or person hearing as the case may be shall be prepared by
the authority holding the inquiry or personal hearing whether or not such a
authority competent to impose the Penalty. Such report shall contain a
sufficient record of the evidence, if any, and a statement of the findings and
the grounds thereof.
8. A perusal of the statutory Regulation clearly shows that the respondent
had followed the procedure more in its breach than for its observance. After
calling for explanation from the petitioner no worthwhile enquiry was conducted
by the Chief Executive Officer. It is only when the petitioner sought for his
appeal to be disposed of it came before the Board. The Board instead of
examining the records and remanding the matter for fresh disposal,
misunderstood the scope of the direction given by this court and once again
appointed another enquiry officer to record the statement of the petitioner and
disposed of the appeal. When it was pointed out by the learned counsel for the
petitioner Mr.Dhanaseelan states that whatever may be the defect in the original
enquiry the same had been cured at the appellate stage. This Court is unable to
agree with the said submission. First of all it must be stated that a defective
enquiry cannot be cured by an effective appeal.
9. Even other wise the contention of the petitioner in his appeal petition
was that no enquiry was held against him in respect of the charges and he was
not given copy of the statement recorded behind his back. Even after enquiry
officer’s report he was not furnished with a copy before passing final orders.
This contention of the petitioner was mistaken by the Board to mean that he was
demanding show cause notice on penalty. The petitioner in his appeal memo did
not demand any show cause notice on penalty. But on the alternative he insisted
that a charged officer was entitled for a copy of the enquiry report if the
enquiry officer was different from that of the disciplinary authority. This
position of the law is well settled by the judgement of the Supreme Court
Ramzan Khan case and affirmed by a Constitution Bench of the court vide its
judgement in Managing Director, ECIL, Hyderabad .vs.B.Karunakar reported in
(1994 Supp (2) SCC 391).
10. However, the learned counsel for the respondents persists that the
petitioner admitted the charges that there was no need to hold any enquiry.
From the explanation submitted by the petitioner I am unable to see that the
petitioner had ever accepted any of the charges. On the contrary, he was only
projecting his grievances that several other persons have also dealt with the
sale of Khadi at the relevant time.
11. In any event, a perusal of the disciplinary authority’s order as well
as the appellate authority’s order shows that the Board had not kept in mind the
statutory Regulation made in this regard and it had not conducted any worthwhile
enquiry.
12. The Supreme court vide its judgement in Meenglas Tea Estate .vs. The
Workmen reported in (AIR 1963 S.C. 1719) answered a question as what is the
minimum requirement for conducting a departmental enquiry and the following
passages found in Paragraph 4 is usefully extracted below:
“(4) The Tribunal held that the enquiry was vitiated because it was not
held in accordance with the principles of natural justice. It is contended that
this conclusion was erroneous. But we have no doubt about its correctness. The
enquiry consisted of putting questions to each workman in turn. No witness was
examined in support of the charge before the workman was questioned. It is an
elementary principle that a person who is required to answer a charge must know
not only the accusation is supported , he must be given a fair chance to hear
the evidence in wupport of the charge and to put such relevant questions by way
of cross-examination as he desires. The he must be given a chance to rebut the
evidence led against him. This is the barest requirement of an enquiry of
this character and this requirement must be substantially fulfilled before the
result of the enquiry can be accepted. A departure from this requirement in
effect throws the burden upon the person charged to repel the charge without
first making it out against him. In the present case neither was any witness
examined nor was any statements made by any witness tendered in evidence, the
enquiry, such as it was, made by Mr. Marshall or Mr. Nichols who were not only
in the position of judges but alo of prosecutors and witnesses. There was no
opportunity to the persons charged to cross-examine then and indeed they drew
upon their own knowledge of the incident and instead cross-examined the persons
charge. This was such a travesty of the principles of natural justice that the
Tribunal was justified in rejecting the findings and asking the Company to prove
the allegation against each workman de novo before it.”
13. Under these circumstances, this court has no hesitation in setting
aside the appellate order as well as the original order. Accordingly, they are
set aside and the writ petition stands allowed. No costs. The respondent Board
is at liberty to conduct an enquiry afresh in the manner known to law regarding
the charges levelled against the petitioner.
14. It is seen from the records that the petitioner had already reached
the age of superannuation and therefore if at all any enquiry was conducted, the
said enquiry can be only with reference to fixation of an alleged loss committed
by the petitioner and he cannot be imposed with any penalty by a disciplinary
action.
vsn
To
1. The Board of Directors,
The Tamil Nadu Khadi and
Village Industries Board,
Kuralagam,
Chennai-108.
2. The Chief Executive Officer,
Tamil Nadu Khadi and Village
Industries Board,
Kuralagam,
Chennai- 600 108.
3. The Assistant Director of Khadi and
Village Industries Board,
Ramanathapuram