IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15-3-2002
CORAM:
THE HON'BLE MR. JUSTICE K. SAMPATH
W.P.NO.21366 Of 2001 and W.M.P.No.31550 of 2001 and W.V.M.P.No.100 of 2002
P. Periasamy,
S/o Ponnusamy,
114, St. Joseph Nagar,
Kondur,
Cuddalore 607 001. ... Petitioner
Vs.
The General Manager
(Operation),
Tamil Nadu State Transport
Corporation,
Villupuram (Division-I) Ltd.,
Villupuram 605 602. ... Respondent
For Petitioner: ... Mr.S. Balasubramanian
For Respondent: ... Mr.S. Jayaraman
This writ petition is filed under Article 226 of the
Constitution for the issue of a certiorarified mandamus to call for the
records of the respondent in his proceedings Ka.Ku.No.1047/1929/TS/TNSTC/2001,
quash his notice dated 24.10.2001 and direct the respondent to take
disciplinary action against the petitioner for the charges levelled against
him by the respondent pursuant to his notice dated 21-6-2001 after conducting
fresh enquiry against him.
: ORDER
By consent the main writ petition itself was taken up and
arguments heard.
2.The facts leading to the filing of the writ petition may be
summarised as follows:
The writ petitioner was working as a Conductor in the
respondent Depot at Cuddalore. Alleging misconduct of misappropriation as
found by the Auditing Committee, charge sheet was issued to the petitioner on
21.6.2001. The charges in main were that: when he was performing duty in
route No.310-G service between Cuddalore and Trichy, apart from taking the
regular ticket book for that route, he had also taken the ticket books of some
other route and also the invoices; he had corrected the ticket book and
invoice of the other route whenever the Checking Inspector inspected, so that
they tallied with the actual collection, which he remitted to the office; he
had also suppressed the amount collected on the issuance of ticket book
relating to such other route and misappropriated the same; he also forged the
signatures of drivers, who were working with him, as for example, on 9.10.2000
and 19-10-2000 he misappropriated huge sums of money. It was found that the
petitioner during the period 1-4-1999 to 30-11-2000 had suppressed and did not
bring into account 114 invoices and 36963 tickets. The value of the amount
thus misappropriated by the writ petitioner would come to Rs.14,23,000/-. The
petitioner was charged under clauses 20(4), 34 and 37-A of the Certified
Standing Orders of the Corporation. The petitioner was directed to submit his
explanation within seven days. After a good passage of time, he submitted his
reply on 24-7-2001 denying the charges. The Corporation was not satisfied
with the explanation offered and ordered a domestic enquiry. A notice of
enquiry dated 6-8-2001 was sent to the petitioner intimating that one Mr.T.
Rangarajan, Retired Judge, had been appointed as Enquiry Officer. The enquiry
was to take place on 16-8-2001 at the Villupuram Head Office at 10 a.m. The
petitioner wrote a letter on 11-8-2001 insisting that the enquiry should be
held in some depot other than Villupuram Depot and wanted the Enquiry Officer
to be changed. The enquiry was adjourned to 10-9-2001. The petitioner,
instead of attending the domestic enquiry, sent a telegram to the Corporation
that he would not attend the enquiry since the Enquiry Officer and the venue
of the enquiry had not been changed as per his request. As he had refused to
attend the enquiry, the Enquiry Officer setting him exparte, proceeded with
the enquiry. The Management examined two witnesses on its side. The Enquiry
Officer came to the conclusion that the charges levelled against the
petitioner were found proved. The Corporation concurred with the findings of
the Enquiry Officer and having regard to the seriousness and gravity of the
misconduct and the loss caused to the Corporation and on a perusal of his past
record , the Corporation proposed to remove him from service. The petitioner
was directed to submit his reply to the second show cause notice within seven
days from the date of receipt of the notice. He took time twice for
submitting his reply and without submitting any reply, he moved this Court on
7-11-2001 and obtained an order of status quo.
3.The main contention of Mr.S. Balasubramanian, learned
Counsel for the petitioner, is that the Enquiry Officer, who had conducted
enquiry for the Corporation, had always held in favour of the Corporation and
against the interest of the employees and that the petitioner was therefore,
justified in seeking change of Enquiry Officer, that though the respondent
Corporation conceded the demand of the petitioner with regard to change of
venue, it was not justified in refusing to change the Enquiry Officer.
According to the petitioner, the Enquiry Officer would be biased against him.
The learned Counsel also relied on a judgment of a Bench of the Orissa High
Court reported in HAREKRISHNA DAS VS. UNION OF INDIA AND OTHERS (1993(I) LLJ
20) in support of his contention that when a person expresses apprehension
about the impartiality of an Enquiry Officer, that would be a sufficient
ground for changing the Enquiry Officer.
4. Per contra, Mr.S. Jayaraman, learned Counsel for the
respondent Corporation, vehemently submitted that there was absolutely no
justification on the part of the writ petitioner to have avoided the enquiry
and stayed away. No bias at all could be attributed to the Enquiry Officer
and the same had not been substantiated by the petitioner. The learned
Counsel further submitted that even assuming without conceding that the
Enquiry Officer had entered a wrong finding, it would always be open to the
petitioner to go before the Labour Court and it would be for the Labour Court
to satisfy itself about the manner in which the domestic enquiry had been
conducted, whether it was vitiated and whether there was lack of evidence, in
which event it would be open to the employer to lead independent evidence
before the Labour Court and court a decision. According to the learned
Counsel, the writ petition was totally misconceived and no case had been made
out for interference. The learned Counsel further submitted that this was a
case where lakhs of rupees had been found to have been misappropriated by the
petitioner and the petitioner knowing fully well that he did not stand a
chance, had been only stalling the proceedings and he should not be allowed to
get away with it.
5. No doubt, there is substance in what the learned Counsel
for the respondent submitted. But then it is an exparte order and in the
circumstances, I am of the view that an opportunity can be afforded to the
petitioner to have a decision on merits, but then not with a change of the
Enquiry Officer. Absolutely no case is made out for holding that the Enquiry
Officer is biased. The decision relied on by the learned Counsel for the
petitioner has held that a request for change of inquiring authority is to be
decided not from the point of view of the disciplinary authority, but from the
angle of the employee concerned and that it is not necessary that bias must be
actually present in the inquiring authority, but it is sufficient if there is
reasonable apprehension regarding impartiality of the inquiring authority.
However, the decision cautions that mere fanciful or imaginary claim of bias
would not sustain the plea for change of inquiring authority. The test is as
to whether a man of reasonable prudence, if placed in the similar
circumstances as that of the employee, would have thought the inquiring
authority to be biased against him. On facts the Bench of the Orissa High
Court found that there was no way of developing a reasonable apprehension of
bias in the inquiring authority, since he never acted contrary to the interest
of the petitioner. In that case, a few documents were sought to be exhibited
by the petitioner, but those were documents, which were non-existent and the
inquiring authority explained it to the delinquent officer that those were not
available and the preliminary inquiry repor t which was not a document to be
inspected was not shown to him and it could not therefore be said that a
reasonable man would have been threatened with apprehension of bias in mind.
The Bench pointed out that it was on the other hand as if the petitioner had
the single objective of avoiding the inquiry and there was as such no
justification for the demand for the change of the inquiring authority.
6.The decision relied on by the learned Counsel for the
petitioner does not really support the case of the petitioner. Even before
the enquiry started, the petitioner sought change of venue and the Enquiry
Officer and absolutely no tenable objection had been raised by him against the
Enquiry Officer. Some statement had been made that in the previous enquiries
he had favoured the Management, that he had not allowed the delinquents to
cross -examine the witnesses on the side of the Management. No specific
instance of any such behaviour on the part of the Enquiry Officer has been
mentioned anywhere. I am satisfied that the contention on the part of the
petitioner to ask for change of Enquiry Officer on the ground of bias cannot
at all be sustained. The attempt has been only to stall the proceedings. The
misconduct attributed to the petitioner is very grave. The Enquiry Officer, I
am aware, has had a clean record in the judiciary and no bias can be
attributed to him.
7.In sum, while setting aside the report on the basis of
exparte enquiry and the consequent second show cause notice, I direct a fresh
enquiry to be conducted in which the petitioner will participate without any
objection and without indulging in delaying tactics. The enquiry shall be
completed within a period of three months from the date of receipt or
production of a copy of the order in the writ petition. The petitioner shall
co-operate as also the Management for completing the enquiry within the
stipulated time. No unjustified adjournments shall be allowed by the Enquiry
Officer. The writ petition is disposed of on the above terms. The stay
petition in W.M.P.No.31550/200 1 and the vacate stay petition in
M.V.M.P.No.100/2002 are closed. There will be no order as to costs.
15-3-2002
Index: Yes
IGP
TO
The General Manager
(Operation),
Tamil Nadu State Transport
Corporation,
Villupuram (Division-I) Ltd.,
Villupuram 605 602.
K. SAMPATH, J.
W.P.NO.21366 of 2001
and
W.M.P.No.31550/2001 &
M.V.M.P.No.100/2002
15-3-2002