JUDGMENT
S.K. Krishnan, J.
1. Aggrieved by the order, dated 5.5.2004, of the Tamil Nadu Administrative Tribunal, the petitioner has filed the above two Writ Petitions. Since the issue involved and the parties in the above two Writ Petitions are one and the same, these two Writ Petitions are disposed of by a common order.
2. The facts, leading to the filing of these petitions, are as follows:
a. The petitioner is working as Inspector of Police. He was served with a Charge Memo dated 18.11.2002 by the Deputy Inspector General of Police, Coimbatore Range and subsequently, by the Deputy Inspector General of Police, Tirunelveli Range on 2.1.20036. The Charge Memo Contains the following two allegations:
“a. Reprehensible conduct in having demanded and accepted a bribe amount of Rs. 5000 at his residence D.No. 23 (Old No. 29) Rama Lakshmana Nagar, Erode, on 6.5.2002 at 16.00 hrs. from one K. Selvaraj s/o. Kumarasami, threatening him he would be arrested in Erode E.O.W.Cr.No. 3/2000 and assured him that no action would be taken against him after the receipt of bribe.
b. Gross neglect of duty and reprehensible conduct in having insisted Tr. Subramanian, Director, State Finance Company, Erode on 4/5.5.2000 at 02.00 hrs. to record the loan or deposit amount of Rs. 3,70,000 instead of Rs. 2,70,000 received from Thiru. Kulandaivelu, Panumathi and Uthayakumar with ante date in the blank pronotes seized from State Finance Company on 3.5.2000 in connection with E.O.W.Cr. No. 3/2000 with intention to take the difference amount of Rs. 1,00,000 for his own.”
b. The enquiry officer, who conducted an enquiry, held that the charges against the petitioner were proved and thereby the Deputy Inspector General of Police published by the Government of increment for a period of one year without cumulative effect.
c. Further, since the punishment was imposed on the petitioner, his name was not included in the panel for promotion as Deputy Superintendent of Police published by the Government in Police Note No. 11, dated 26.2.2004.
d. Feeling aggrieved, the petitioner filed two applications before the Tribunal for the following two reliefs.
“a. To quash the punishment of postponement of increment for a period of one year without cumulative effect imposed by the Deputy Inspector General of Police, Tirunelveli Range, in his proceedings No. P.R.3/2004/TIN Range, P.R. No. 78/2002 (SP/Erode) dated 28.2.2004.
b. To direct the respondents to promote the petitioner as Deputy Superintendent of Police (Category-I) with effect from the date of promotion of his immediate junior with due seniority and all consequential benefits.”
e. However, the Tribunal, after considering the documents available on record, dismissed the applications. Hence, the petitioner has come forward with the above Writ Petitions invoking the jurisdiction of this Court under the Article 226 of the Constitution of India.
3. Now the point for consideration is whether the order of the Tribunal is sustainable under law.
4. The learned counsel appearing for the petitioner vehemently contended that though the Tribunal concluded that the applicant was a party for manipulation of records, the enquiry officer did not examine Kulandaivelu, who got the receipts of Rs. 3,70,000, and without evidence of the said Kulandaivelu, the conclusion arrived at by the Tribunal is against law and therefore the order of the Tribunal has to be set aside.
5. Further, the learned counsel contended that though the petitioner gave a petition dated 15.11.2003 to examine three witnesses namely, Nallasivam, Ranganathan and Kulandaivelu as defence witnesses, it was not considered by the enquiry officer and thereby an opportunity was denied to the petitioner to prove his case. He further contended that had the said Kulandaivelu been examined, the Tribunal would have come to a right conclusion in respect of manipulation of records and in such circumstances, the report of the enquiry officer as well as the order if the first respondent is in violation of principles of natural justice and therefore, the order of the Tribunal is also not sustainable under law.
6. In support of his contention, the learned counsel relied on the following decisions:
(a) Cental Bank of India Ltd. v. Prakash Chand Jain, ; (b) Kuldeep Singh v. Commissioner of Police and Ors., ; (c) Apparel Export Promotion Council v. A.K. Chopra, ; and M.P. Dhanaraj, Executive Engineer (O & M), Coimbatore Electricity Distribution Circle (North), TNEB Mettupalayam v. The Tamil Nadu Electricity Board, represented by The Chairman, Chennai and Anr..
7. Per Contra, the learned Government Advocate appearing for the respondent would contend that when in respect of the second charge a finding was given by the enquiry officer as well as the Tribunal that the said charge was proved, this Court cannot interfere with the findings of the enquiry officer and the Tribunal as well by re-appreciating the evidence and it cannot come to a different conclusion.
8. Reliance was placed in Lakshminarayana Shetty v. Shantha and Anr., and in Om Kumar and Ors. v. Union of India, 2001 (2) SCC 386.
9. As stated above, the petitioner was imposed a punishment of postponement of increment for a period of one year without cumulative effect on the ground that two charges framed against him were proved. However, on the basis of materials available on record, the Tribunal came to a following conclusion in respect of charge No. 1.
“So, the findings of the enquiry officer and its acceptance by the punishing authority relying upon those statements recorded behind the back of the applicant, is erroneous. The finding in respect of charge No. 1 therefore, has to be set aside.”
10. Accordingly, the Tribunal set aside the Charge No. 1.
11. In respect of Charge No. 2, the finding of the Tribunal is that the petitioner helped manipulated the records.
12. Now the question is whether the finding of the Tribunal in respect of charge No. 2 is sustainable under law.
13. Charge No. 2 reads as follows:
“Gross neglect of duty and reprehensible conduct in having insisted Tr. Subramanian, Director, State Finance Company, Erode, on 4/5.5.2000 at 02.00 hrs. to record the loan or deposit amount of Rs. 3,70,000 instead of Rs. 2,70,000 received from Thiru. Kulandaivelu, Panumathi and Uthayakumar with ante date in the blank pronotes seized from State Finance Company on 3.5.2000 in connection with E.O.W.Cr. No. 3/2000 in intention to take the difference amount of Rs. 1,00,000 for his own.”
14. The finding of the Tribunal in respect of the above charge is as follows:
“These three witnesses have spoken to the fact of used deposit receipt books at the time of seizure when only counter foil receipts up to Sl.No. 1 to 74 were found in the book. But subsequently, three more receipts 75,76, and 77 have been issued in the name of Kulandaivelu, Panumathi and Udayakumar respectively for a sum of Rs. 3,70,000. Since documents were seized by the applicant on 3.5.2000 and since these deposit receipts have been issued subsequent to that, naturally the applicant also is made liable for manipulating records to suit the interest of Subramanian and to further the case of Kulandaivelu. It is also suggested that while the Subramanian borrowed only Rs. 2,70,000, now receipts have been issued that too in the name of the Partnership Firm for Rs. 3,70,000 and the excess of Rs. 1 lakh was stated to be for the benefits of this applicant. There is no evidence that applicant personally benefited from this excess amount. Nobody has spoken to any money having been received by this applicant with regard to excess amount. In fact no amount have been discovered or realized by the use of the three deposit receipts which are still available only with Kulandaivelu. Therefore, the evidence has only established that applicant was a party for manipulation of records which was against the interest of other partners.”
15. When there is no evidence as to the charge that the petitioner insisted Subramanian to issue ante date pronotes for Rs. 3,70,000 on 4/5.5.2000 at 02.00 hrs. instead of Rs. 2,70,000 received from Kulandaivelu, Panumathi and Udayakumar and the Tribunal came to the conclusion that there is no evidence that the petitioner personally benefited from this excess amount and nobody has spoken to any money having been received by this petitioner with regard to excess amount and in fact no amount has been discovered or realised by the use of the three deposit receipts which are still available only with Kulandaivelu, we are of the view that it is not proper to hold that either the petitioner helped manipulated the records or he insisted the said Subramanian to issue such receipts.
16. It is seen from the records that the petitioner gave a petition dated 15.11.2003 to enquiry officer to examine Kulandaivelu, Nallasivam and Ranganathan as defence witnesses. However, his claim was rejected on the ground that the above persons were shown as prosecution witnesses.
17. As rightly contended by the learned counsel for the petitioner, had the said Kulandaivelu been examined either as prosecution witness or as defence witness as claimed by the petitioner, the truth would have come to light and the Tribunal also would have come to a right conclusion as the said Kulandaivelu is the important and indispensable witness as to the second charge.
18. The enquiry officer should have examined the said Kulandaivelu or she should have allowed the petitioner to examine Kulandaivelu as defence witness. Such non-examination of the important and indispensable witness makes the second charge as baseless. Further, in our opinion, in the wake of non-examination of Kulandaivelu as prosecution witness, the enquiry officer should have permitted the petitioner to examine Kulandaivelu as defence witness. But the claim of the petitioner was denied. Such denial, closed the door of both sides, namely cross examination or chief examination of Kulandaivelu by the petitioner and prevented him to prove his case and therefore, such denial, is a clear violation of principles of natural justice. For such violation of principles of natural justice, we are of the view that the finding of the enquiry officer and the punishment imposed thereupon as well as the order of the Tribunal have to be set aside. Accordingly they are set aside.
19. From the above discussion, it is clear that though we have arrived at a different conclusion as to the second charge we make it clear that it is not on the basis of re-appreciation of evidence as contended by the learned Government Advocate. In this case, no necessity has arisen to re-appreciate the evidence to come to a just and right conclusion. We have come to the above conclusion on perusal of the order of the Tribunal and materials available on record. Further, the Tribunal came to the conclusion that as far as second charge as against the petitioner has been party proved. In such circumstances, we are of the view that even for proving the charge No. 2 partly against the petitioner, the examination of the said Kulandaivelu is must and therefore, we are of the view that without examining the said Kulandaivelu, the finding of the enquiry officer and the punishment thereupon and also the order of the Tribunal are in violation of principles of natural justice and therefore, the same are not sustainable under law and accordingly, they are set aside.
20. In result, both the Writ Petitions are allowed setting the order of the first respondent, in W.P. No. 20819 of 2004, dated 28.2.2004 and also the order of the Tribunal. Further, the respondents 1 and 2 in W.P. No. 20820 of 2004 are directed to promote the petitioner as Deputy Superintendent of Police with effect from the date of promotion of his immediate junior with all service and monetary benefits. No costs. Connected W.P.M.Ps. are closed.