{"id":34755,"date":"2004-10-08T00:00:00","date_gmt":"2004-10-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/murugampakkam-primary-vs-the-deputy-commissioner-on-8-october-2004"},"modified":"2015-12-30T23:55:31","modified_gmt":"2015-12-30T18:25:31","slug":"murugampakkam-primary-vs-the-deputy-commissioner-on-8-october-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/murugampakkam-primary-vs-the-deputy-commissioner-on-8-october-2004","title":{"rendered":"Murugampakkam Primary vs The Deputy Commissioner on 8 October, 2004"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Murugampakkam Primary vs The Deputy Commissioner on 8 October, 2004<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 08\/10\/2004\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE V.KANAGARAJ\n\nWRIT PETITION No.9209 OF 1997.\n\nMurugampakkam Primary\nAgricultural Cooperative Bank,\nrep. by its President\nMaduranthakam,\nChengai Anna District.                          ... Petitioner\n\n-Vs-\n\n1. The Deputy Commissioner\n   of Labour (Appeal),\n   Chennai,\n   DMS Complex,\n   Chennai-600 006.\n\n2. S.Ramachandran\n3. Joint Registrar of Cooperative\n   Societies,\n   Chengai MGR District,\n   Kancheepuram.                        ... Respondents\n        Writ  Petition  filed  under  Article 226 of the Constitution of India\npraying for the relief as stated therein.\n\nFor petitioner :  No Appearance\n^For R.1 &amp; R3 :  Mrs.Malarvizhi,\n                Govt.Advocate\nFor R.3         :  No Appearance\n\n:O R D E R\n<\/pre>\n<p>        The  above  writ  petition  has  been  filed  under Article 226 of the<br \/>\nConstitution of India praying to issue a writ of Certiorari to  call  for  the<br \/>\nrecords  relating  to the order dated 7.1.1997 made by the first respondent in<br \/>\nT.S.E.No.23 of 1995 and quash the same.\n<\/p>\n<p>        2.  On 21.9.2004,  when  the  above  matter  has  been  taken  up  for<br \/>\nconsideration,  no  representation  has  been  offered  on  the  part  of  the<br \/>\npetitioner and the contesting second respondent and hence this Court  is  left<br \/>\nwith  no option but to hear those who are present and reserve the judgment for<br \/>\nproper consideration of the materials placed on record and to decide the same.\n<\/p>\n<p>        3.  On a perusal of the materials placed on record  and  upon  hearing<br \/>\nthe  learned  Government  Advocate for the respondents 1 and 3, it comes to be<br \/>\nknown  that  the  second  respondent  was  the  Secretary  of  the  petitioner<br \/>\nCooperative  Bank  and on charges that he committed irregularities and that he<br \/>\nhad not maintained the ledger books properly and had misappropriated funds  of<br \/>\nthe  Bank  to  the tune of Rs.1,66,258.95, and hence conducting a departmental<br \/>\nenquiry, a  punishment  of  dismissal  from  service  was  inflicted  on  him.<br \/>\nThereupon,  the  second  respondent  preferred  an  appeal  before  the  first<br \/>\nrespondent who, having observed that the domestic  enquiry  was  conducted  in<br \/>\ntotal   violation  of  the  principles  of  natural  justice,  held  that  the<br \/>\ntermination of the second respondent was illegal and unjust and has set  aside<br \/>\nthe order  of  dismissal.   Aggrieved, the Management has come forward to file<br \/>\nthe above writ petition.\n<\/p>\n<p>        4.  In the affidavit filed in support of the above writ petition,  the<br \/>\npetitioner\/Management   has   submitted   that   the   second  respondent  has<br \/>\nmisappropriated several amounts of the petitioner Bank and  committed  several<br \/>\nirregularities and he was placed under suspension on 9.3.1993 pending enquiry;<br \/>\nthat  on  such  charges, a domestic enquiry was commenced on 30.7.1994 and the<br \/>\nsecond respondent requested the assistance of an Advocate by  filing  a  memo.<br \/>\nbut the Enquiry Officer, upon examination of the second respondent, found that<br \/>\nhe  was  a  Graduate with sufficient knowledge of putting up his case since he<br \/>\nwas possessed of the knowledge of Cooperative Societies Act  and  turned  down<br \/>\nthe  request  of  the second respondent and persuaded the second respondent to<br \/>\ncontinue to defend himself in the enquiry; that the enquiry  officer  accusing<br \/>\nthat  the second respondent unnecessarily disrupted the enquiry proceedings by<br \/>\nraising irrelevant demands coupled with  uncharitable  remarks  and  left  the<br \/>\nvenue  of  enquiry  on  his  own accord thereby absenting himself from putting<br \/>\nforth his defence and on such remarks, set him exparte and having gone through<br \/>\nthe materials available on records connected with the proceeding submitted his<br \/>\nreport on 18.11.1994  on  the  basis  of  which,  a  show-cause  notice  dated<br \/>\n13.12.1994  was  issued  to  the  second  respondent  along  with  the Enquiry<br \/>\nOfficer&#8217;s findings by  registered  post  and  the  second  respondent,  having<br \/>\nreceived  the  same,  since  failed  to give explanation within the stipulated<br \/>\ntime, the petitioner management dismissed him from service and sent the  order<br \/>\nby registered post to the second respondent which also he refused to receive.\n<\/p>\n<p>        5.   In  the  above scenario, the petitioner would further submit that<br \/>\nthe second respondent in his letter dated 8.3.1993 has  admitted  the  act  of<br \/>\nmisappropriation and promised to repay the said amount but he has not paid any<br \/>\namount and even during the enquiry, the principles of natural justice have not<br \/>\nat  all been violated as the petitioner has permitted the second respondent to<br \/>\nverify the documents as per his request further effecting the payment  of  the<br \/>\nentire  subsistance  allowance; that the Enquiry Officer has not permitted the<br \/>\nassistance of an Advocate to the second respondent  as  the  charges  levelled<br \/>\nagainst  him were simple and unambiguous and that an Advocate was appointed as<br \/>\nan Enquiry Officer only to conduct an impartial enquiry as per law.   But,  on<br \/>\nappeal  preferred  by  the workman, the learned appellate authority, the first<br \/>\nrespondent herein, without considering the submissions of the petitioner,  has<br \/>\nallowed  the  appeal  of  the second respondent\/ workman and hence the present<br \/>\nwrit petition.\n<\/p>\n<p>        6.  The case of the second  respondent\/workman  before  the  appellate<br \/>\nauthority was that he joined the services of the Management on 2.4.1987 ; that<br \/>\nhe  was the main witness in the assault case between the Circle Supervisor the<br \/>\npetitioner Primary Cooperative Bank and the Field Manager of the  Kancheepuram<br \/>\nControl  Cooperative  Bank,  Maduranthakam  Branch,  which was disliked by the<br \/>\nCircle Supervisor and hence he was victimised by the  said  Circle  Supervisor<br \/>\nconsequent  to  which all these false charges were framed against him and even<br \/>\nhis request for the assistance of an Advocate in the enquiry was  rejected  by<br \/>\nthe  Enquiry  Officer,  who has only directed him to say &#8216;yes&#8217; or &#8216;no&#8217; against<br \/>\nthe charges levelled; that he  was  forced  to  sign  the  written  statements<br \/>\nprepared  by  the Enquiry Officer and an exparte enquiry was conducted without<br \/>\naffording any opportunity to him thus  violating  the  principles  of  natural<br \/>\njustice  and  hence  he  was  not  even  able  to  give  his  explanation as a<br \/>\nculmination of which and he was  dismissed  from  service  with  retrospective<br \/>\neffect  from 9.3.1993 under a dismissal order dated 6.4.199 5 which was pasted<br \/>\nat his residence on 15.6.1995; that his long unblemished service was not taken<br \/>\ninto account before awarding the capital punishment.    On  such  grounds,  he<br \/>\nwould  pray  to  the  appellate  authority  to  set  aside  the  order  of the<br \/>\ndisciplinary authority.\n<\/p>\n<p>        7.  In consideration of  the  facts  pleaded,  having  regard  to  the<br \/>\nmaterials  placed  on  record and upon hearing the learned Government Advocate<br \/>\nfor respondents 1 and 3, this Court is able  to  assess  that  a  departmental<br \/>\nenquiry  was  initiated  against  the  second  respondent  herein  who was the<br \/>\nSecretary of the petitioner  Cooperative  Bank  to  go  into  the  charges  of<br \/>\nmisappropriation  of  funds  of the Bank and the same has been decided exparte<br \/>\nsince, according to the Management, the second respondent  did  not  cooperate<br \/>\nwith the  Enquiry  Officer in the conduct of the enquiry.  But, the same would<br \/>\nbe attributed by the second respondent to the high-handed behavioural  pattern<br \/>\nof  the  Enquiry  Officer  at  the instigation of the Circle Supervisor of the<br \/>\npetitioner Cooperative Bank, who was ill-disposed of with  him.    The  second<br \/>\nrespondent  would  offer the reason for such a stand to be taken that since he<br \/>\ndid not budge to the dictates of the Circle Supervisor since he was  cited  as<br \/>\nthe  main  witness in the case registered as a result of the assault that took<br \/>\nplace in between the Circle Supervisor of the petitioner and the Field Manager<br \/>\nof the Kancheepuram Control Cooperative Bank, Maduranthakam Branch, all  these<br \/>\nfalse charges  are  framed against him.  Therefore, the second respondent has,<br \/>\nprima facie, a strong case to put up against  the  Circle  Supervisor  of  the<br \/>\npetitioner  Bank,  who  is  his  superior,  to  have manipulated the facts and<br \/>\naccused the petitioner of having indulged in misappropriation of the funds  of<br \/>\nthe  petitioner  Bank  which,  according  to  him, is not true and he has been<br \/>\nvictimised in commencing the disciplinary  proceeding  against  him  on  false<br \/>\ncharges framed.\n<\/p>\n<p>        8.  Be  that as it may.  Now the point for consideration is &#8216;whether a<br \/>\nfree and fair enquiry has been held by the Enquiry Officer  appointed  by  the<br \/>\npetitioner  to  go into the charges framed against the second respondent so as<br \/>\nto arrive at the conclusion to hold the charges proved as it has been  arrived<br \/>\nat  on  the  part of the Enquiry Officer based on which the petitioner awarded<br \/>\nthe   punishment   of   dismissal   from   service    against    the    second<br \/>\nrespondent\/delinquent  Officer  or  whether for non-cooperation on the part of<br \/>\nthe second respondent for conducting a smooth enquiry, the Enquiry Officer was<br \/>\nleft with no option but  to  decide  the  enquiry  exparte  and  whether  such<br \/>\nopportunity  afforded  to  the  second  respondent  in  the  case  in  hand is<br \/>\nsufficient opportunity in the circumstances of the case&#8217;?  This point has been<br \/>\nanswered in the negative and in favour of the  second  respondent  on  a  wide<br \/>\ndiscussion  held on facts connected in the appeal preferr ed by the delinquent<br \/>\nOfficer before the first respondent who allowed the appeal setting  aside  the<br \/>\norder  of dismissal passed by the disciplinary authority based on the findings<br \/>\nof the exparte enquiry.\n<\/p>\n<p>        9.  A perusal of the materials placed on record would  show  that  the<br \/>\nsecond  respondent  delinquent  was not even permitted to verify the documents<br \/>\nand registers connected with the charges and that he was  not  even  paid  the<br \/>\nsubsistance allowance during the period of suspension and therefore he was not<br \/>\nin a position to send his explanation to the show-cause notice; that moreover,<br \/>\naccording  to  the  second  respondent,  his  request for the assistance of an<br \/>\nAdvocate has also been rejected by the  Enquiry  Officer  and  this  could  be<br \/>\ntermed  by  the  second  respondent  as  a  lack of opportunity as against the<br \/>\nprinciples of natural justice.\n<\/p>\n<p>        10.  Regarding the permission sought  for  by  the  second  respondent<br \/>\nseeking assistance of an Advocate, it has been rejected by an order which does<br \/>\nnot  seems  to have been challenged before the appropriate appellate authority<br \/>\nand therefore that issue has been finalised and no discussion need be held  on<br \/>\nthat subject.    But,  the  other two main charges alleged against the enquiry<br \/>\nofficer and the disciplinary authority that the Enquiry Officer did not at all<br \/>\npermit him to peruse the  vital  documents  and  registers  connected  to  the<br \/>\ncharges  and  that he was not at all paid the subsistance allowance during the<br \/>\nperiod of suspension, which are  not  only  against  the  cardinal  principles<br \/>\ngoverned  by  the  laws  and  the  propositions  of  the  upper  forums of law<br \/>\nparticularly that of the Honourable Apex Court but also a vindictive  one  and<br \/>\nfurther  since  the Enquiry Officer did not follow the procedures which are to<br \/>\nbe normally adopted in the matter of  such  enquiry  proceedings,  the  second<br \/>\nrespondent  was not able to carry on with the enquiry proceedings and the same<br \/>\ncould not be termed as refusal  to  participate  in  the  enquiry  proceeding.<br \/>\nTherefore,  the  appellate  authority  has  every  reason to arrive at, in his<br \/>\nconsidered view, his own  conclusions  that  the  domestic  enquiry  has  been<br \/>\nconducted  in  total  violation of the principles of natural justice and hence<br \/>\nheld the dismissal  of  the  delinquent  officer  from  the  services  of  the<br \/>\npetitioner&#8217;s  Bank  as  unjust, illegal and invalid, consequently allowing the<br \/>\nappeal and it is this order passed by the appellate authority and  the  Deputy<br \/>\nCommissioner  of  Labour  (Appeals)  Chennai,  which is under challenge in the<br \/>\nabove writ petition.\n<\/p>\n<p>        11.  No doubt, the Enquiry Officer, alleging  non-cooperation  on  the<br \/>\npart  of  the  delinquent Officer, has decided the enquiry exparte holding the<br \/>\nsecond respondent guilty of the delinquencies for which he was charged against<br \/>\nand the same would be  attributed  by  the  second  respondent  to  the  wrong<br \/>\nprocedures  adopted  on  the part of the Enquiry Officer without affording him<br \/>\nsuch opportunities required to be given under law.\n<\/p>\n<p>        12.  On a careful perusal of the enquiry  report,  the  order  of  the<br \/>\ndisciplinary  authority and the order of the appellate authority as well, this<br \/>\nCourt is able to see that there is no evidence for the Enquiry Officer to have<br \/>\npermitted the petitioner either to peruse the records and documents  connected<br \/>\nto  charges  and  that  the  second  respondent  has  not  even  been paid the<br \/>\nsubsistance allowance as required under law.  The opportunity  to  peruse  the<br \/>\nrecords  is  one  of  the  basic  requirements of law that is afforded for the<br \/>\ndelinquent and even without perusal of the  records,  the  delinquent  Officer<br \/>\nwould  not  at  all  be  able to meet with the charges so as to put up a valid<br \/>\ndefence and hence as held in many landmark judgments by the  High  Courts  and<br \/>\nthe Honourable Apex Court, denial of such opportunities for perusal of records<br \/>\nand  documents would vitiate the entire enquiry proceeding thus ultimately the<br \/>\nenquiry proceeding or the findings thereon becoming liable  to  be  set  aside<br \/>\nsince it is against the principles of natural justice.\n<\/p>\n<p>        13.   Likewise,  payment  of  subsistance allowance is the legal right<br \/>\ngranted under law for a delinquent  officer  who  is  facing  enquiry  in  any<br \/>\nenquiry proceeding since it is the only means of livelihood for the delinquent<br \/>\nofficer  to survive during the pendency of the enquiry and therefore it is not<br \/>\nout of place to mention that non-payment of the subsistance allowance  besides<br \/>\nbeing  inhuman  and incongruous goes against the principles of the Subsistence<br \/>\nAllowance  Payment  Act  and  this  would  also  attribute  motives   to   the<br \/>\ndisciplinary  authority  regarding  the very disciplinary proceeding initiated<br \/>\nagainst him and since on the part of the petitioner Bank they are not able  to<br \/>\nplace  such  materials  before  this  Court  to the effect that sufficient and<br \/>\nreasonable opportunities were afforded for the second  respondent  to  exhaust<br \/>\nhis  remedies particularly in the matter of putting up a valid defence such as<br \/>\nseeking the assistance of an expert, perusal of the documents etc.  and  since<br \/>\nsuch  opportunities  have not been afforded to the second respondent, needless<br \/>\nto mention that it is a case of denial of such opportunities in  violation  of<br \/>\nthe  principles  of  natural  justice  and  in  denying to pay the subsistance<br \/>\nallowance, the basic rights of the petitioner enshrined under  law  have  been<br \/>\ndenied  and  at  this  score  also,  the  enquiry  proceeding initiated by the<br \/>\ndisciplinary authority,  the  petitioner  Bank  herein,  becomes  tainted  and<br \/>\ntherefore  the  conclusions  arrived  at by the appellate authority in setting<br \/>\naside the decision of the disciplinary authority resorting to dismissal of the<br \/>\nsecond respondent from service has been legally and in  the  circumstances  of<br \/>\nthe  case, rightly done and therefore this Court does not find it necessary to<br \/>\ncause its interference into such a well considered and merited order passed by<br \/>\nthe appellate authority and hence the following order:\n<\/p>\n<p>In result,\n<\/p>\n<p>(i)  the above writ petition does not merit acceptance but becomes<br \/>\nliable only to be dismissed and is dismissed accordingly.\n<\/p>\n<p>(ii) The order dated 7.1.1997 made in T.S.E.No.23 of 1995 by the<br \/>\nfirst respondent\/The Deputy Commissioner of Labour (Appeals) Chennai is<br \/>\nhereby confirmed.\n<\/p>\n<p>        However, in the circumstances of the case, there shall be no order<br \/>\nas to costs.\n<\/p>\n<p>Index:  Yes<br \/>\nInternet:  Yes<br \/>\nRao<\/p>\n<p>To<\/p>\n<p>1. The Deputy Commissioner<br \/>\n   of Labour (Appeal),<br \/>\n   Chennai,<br \/>\n   DMS Complex,<br \/>\n   Chennai-600 006.\n<\/p>\n<p>2. The Joint Registrar of Cooperative<br \/>\n   Societies,<br \/>\n   Chengai MGR District,<br \/>\n   Kancheepuram.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Murugampakkam Primary vs The Deputy Commissioner on 8 October, 2004 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. &#8230; Petitioner -Vs- 1. The Deputy Commissioner of Labour [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-34755","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Murugampakkam Primary vs The Deputy Commissioner on 8 October, 2004 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/murugampakkam-primary-vs-the-deputy-commissioner-on-8-october-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Murugampakkam Primary vs The Deputy Commissioner on 8 October, 2004 - Free Judgements of Supreme Court &amp; 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