V.Lakshmikandan v. Tamil Nadu Civil Supplies Corpn.Ltd.Rep

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 4.7.2007Coram:The Hon'ble Mr.JUSTICE S.RAJESWARANW.P.No.668 of 1993V.Lakshmikandan.. Petitionervs.Tamil Nadu Civil Supplies Corpn.Ltd.Rep., by its Chairman-cum-Managing Director42 Thambuswamy RoadMadras-600 010.. RespondentWrit Petition filed under Article 226 of the Constitution ofIndia seeking to issue a writ of Certiorari, calling for therecords relating to the proceedings No.Ka.Ka.G5/116268/90 dated22.12.92 of the respondent and quash the same. For Petitioner : Mr.S.VenkataramanFor Respondent : Mr.V.Selvanayagam ORDER:This Writ Petition is filed under Article 226 of theConstitution of India seeking to issue a writ of Certiorari,calling for the records relating to the proceedingsNo.Ka.Ka.G5/116268/90 dated 22.12.92 of the respondent and quashthe same.2.This writ petition has been filed challenging the order ofthe respondent dated 22.12.1992 by which the petitioner wasdismissed from service from the respondent-corporation.3.The petitioner joined the services of the respondent-corporation as Assistant Quality Inspector in January 1982. Hewas served with a charge memo dated 10.6.91 by the Senior RegionalManager when he was working in Ramanathapuram region. The chargescontained in the charge memo related to the period November 1987when he was working in Mobile Direct Purchase Centre, Sirkali. https://hcservices.ecourts.gov.in/hcservices/ The gist of the charge memo is that the writ petitioner acted asan instrument in misappropriating 180 bags or spillage paddycollected at the Rail Head Sirkali by Thiru R.Kanagasundaram,Quality Inspector and thereby he caused the respondent-corporationand the Government to incur heavy loss to the tune ofRs.19034.35and Rs.4,637.50 respectively. It is further allegedthat the writ petitioner by misusing his official positionprepared bogus bills as if the paddy was purchased and moved.4.The Senior Regional Manager in his charge memo dated10.6.1991 framed nine charges against the writ petitioner, whichare as under:"Charge No.1That by misusing his official position asmobile Asst. Quality Inspector, on 9.11.87 hehad prepared bogus Truck; memo bearingNo.142785 as if 190 bags of TKM 9 varietypaddy was moved from Sankaranpandal villagecontrary to the facts, through the lorryNo.TDF 2529, with the connivance of ThiruR.Kanagasundaram, Quality Inspector, RailHead, Sirkali Thiru Abdul Azeem Asst. QualityInspector, Rail Head, Sirkali and ThiruDasarathan of Arasur Village.Charge No.2 That to suit his convenience with anobject of achieving personal benefit, he hadprepared the Truck memo No.142785 dt.9.11.87without noting the time of departure of lorryTDF 2529 from Sankaranpandal and without acertificate about the tarpaulin coverage andseals and this violated the instructions.Charge No.3That fully knowing the fact that thealleged seller of the paddy is a paddy dealernot owning any land at Sankaranpandal village,he had issued fertiliser coupon bearingNo.960553 dt.17.11.87 for a sum of Rs.4637.50for which the dealer was not entitled as perthe orders of the Government and thuscommitted an irregularity.Charge No.4:That contrary to the purchase procedure,he had created the truck memo No.42785dt.9.11.87 as if 190 bags of paddy was moved,whereas the purchase bill was made on 17.11.87as per Bill No.460755 dt.17.11.87. https://hcservices.ecourts.gov.in/hcservices/ Charge No.5:That fully knowing the fact that thepaddy brought through the lorry No.TDF 2529 byThiru Dasarathan is the paddy misappropriatedby Thiru R.Kanagasundaram, Quality Inspector,Rail Head, Sirkali with connivance of ThiruAbdul Azeem, Asst. Quality Inspector, RailHead Sirkali from the Rail Head, by hiscollusion he had created bogus records viz.,truck memo No.142785 and purchase billNo.460755 and committed an irregularity.Charge No.6 That by misusing his official position hehas created bogus records as if the 190 bagswere purchased and thereby caused the TNCSCLtd., a loss of Rs.18560/- being the cost of180 bags of paddy misappropriated at RailHead, Sirkali.Charge No.7: That for this fraudulent transaction hehad issued fertilizer coupon bearingNo.960553, dt.17.11.87 for a sum of Rs.4637.50causing the Government of Tamil Nadu a loss ofRs.4637.50 psCharge No.8: That by creating the bogus records, hehas enabled M/s.Selvam Transport, Sirkali toreceive a sum of Rs.474.35 towards transportcharges and thereby caused the TNCSC Ltd., toincur a loss of said amount.Charge No.9:That he has procured paddy through thepaddy dealer Thiru R.Dasaradhan, which isprohibited during monopoly procurementperiod."5.By his explanation dated 25.6.1991 the writ petitionerdenied all the charges. Subsequently an enquiry was conducted andconsequent to the completion of the enquiry, the enquiry officersubmitted his report to the Senior Regional Manager who by memodated 5.6.92, enclosed the findings of the enquiry officer anddirected the writ petitioner to submit his explanation. The writpetitioner has also submitted his explanation on 22.7.92 to thefindings of the enquiry officer. On 22.12.92, the Chairman-cum- https://hcservices.ecourts.gov.in/hcservices/ Managing Director passed the impugned order dismissing the writpetitioner from service and aggrieved by the same, the writpetitioner has filed the above writ petition. 6.The respondent-corporation filed a counter affidavitjustifying the order of dismissal passed by the Chairman-cum-Managing Director and also questioning the maintainability of thewrit petition itself, as the same has been filed withoutexhausting the appeal remedy as mentioned in the impugned order.7.Heard the learned counsel for the petitioner and thelearned counsel for the respondent-corporation. I have alsoperused the documents and the judgments referred to by them insupport of their submissions.8.The learned counsel for the petitioner submitted that theSenior Regional Manager, Thanjavur Region is the disciplinaryauthority and it is he who issued the charge memo, appointed theenquiry officer, received the enquiry report and forwarded thesame to the petitioner for further explanation. But the impugnedorder of dismissal was passed by the Chairman-cum-ManagingDirector who is the appellate authority and therefore the impugnedorder is liable to be set aside. The learned counsel furthersubmitted that the enquiry conducted by the Department is not inconsonance with the Regulation 4 Chapter V of the CorporationService Regulations 1989 and no evidence was let in either oral ordocumentary and therefore the impugned order of dismissal is to beset aside. The learned counsel further urged that as theappellate authority has himself passed the order of dismissal, andeven though it was indicated that an appeal would lie to the Boardof Directors, the writ petitioner is justified in approaching thecourt as the Board of Directors would be influenced by the conductof the Chairman-cum-Managing Director, who is also the Chairman ofthe Board of Directors. The learned counsel relied on thefollowing decisions in support of his submissions:(1)1991(2)LLJ 511 (K.Rajendran v. T.N.Handicrafts Devt.Corp.Ltd. &Anr)(2)An unreported judgment dated 27.3.98 made in W.P.No.7740/1988(B.Kumaradhas v. The Tamil Nadu Civil Supplies Corporation Ltd.,rep., by its Senior Regional Manager & anr.)(3)Another unreported judgment dated 18.9.2003 made inW.A.No.2430/03 (Tamil Nadu Civil Supplies Corpn.Ltd.& anr. v.C.Nataraja Pillai) 9.per contra the learned counsel for the respondent-corporation submitted that the procedure contemplated under theservice regulations are complied with and another employee by nameR.Kanagasundaram, Class II employee was also involved, for whomthe disciplinary authority is the Chairman-cum-Managing Director, https://hcservices.ecourts.gov.in/hcservices/ the entire papers including that of the writ petitioner were sentto Chairman-cum-Managing Director who passed the final orders inrespect of all the persons who are involved in the matter.Therefore the learned counsel submitted that there is nothingwrong in the order passed by the Chairman-cum-Managing Directorespecially when an appeal remedy was provided to the writpetitioner.10.I have considered the rival submissions with regard tofacts and citations.11.The main grounds urged by the learned counsel for thepetitioner are that-(1)there was no evidence let in by the respondent-corporation toprove the guilt of the writ petitioner;(2)enquiry was not conducted in accordance with the serviceregulation; and(3)the Chairman-cum-Managing Director who is the appellateauthority ought not to have passed an order when the RegionalManager is the disciplinary authority.12.Now let me consider whether the enquiry was properlyconducted and whether there was no evidence to hold the petitionerguilty.13.The findings of the enquiry officer would reveal that hehas perused the office copy of the Truck memo, the gate registermaintained in the Modern Rice Mill, the statement of the personconcerned to the vigilance department, the statement of the VAO,the purchase bills and the fertilizer coupon and on that basis,the enquiry officer held that the charges are proved. Thereforeit cannot be contended that the findings of the enquiry officerare not based on any evidence. In fact, no objection was raisedby the writ petitioner in his explanation dated 22.7.1992 thatenquiry was not conducted in accordance with law. Only on 5.8.92,after the enquiry was closed, the findings were given to him forsubmitting his explanation and after submitting his explanationdated 22.7.92 to the findings of the enquiry officer, the writpetitioner by letter dated 5.8.92 requested the Senior RegionalManager for re-enquiry as he did not cross-examine the witnesseswith the documents produced in the enquiry. Therefore it is madeclear that the writ petitioner did not have any query in thisregard even after submitting his explanation to the findings ofthe enquiry officer. 14.Further, Chapter V of the Tamil Nadu Civil SuppliesCorporation Ltd., employees service regulations, 1989 deals withdisciplinary proceedings, penalties and appeal regulations.Regulation 4 of Charter V deals with the procedure to award majorpenalties. https://hcservices.ecourts.gov.in/hcservices/

15.As per Regulation 4, Chapter V, the competent authority toimpose the major penalty shall issue a memo recording the basis ofthe charge and shall appoint an enquiry officer to conduct anobjective enquiry into the charges in the presence of thedelinquent. At the enquiry the documents relied upon in thecharge memo should be made available to the delinquent. Thewitnesses whose versions form the basis of the charges should beexamined providing opportunity to the delinquent to cross-examine.The delinquent may also produce his witnesses and he may bepermitted to file the written statement. Thereafter the enquiryofficer, after summarising the proceedings and analysing theevidence give his findings on the charges framed without recordingthe quantum of punishment. On receipt of the findings of theenquiry officer, the copy of the same is to be forwarded to thedelinquent to file his further explanation. After perusing theentire records, the authority competent to impose the penaltyshall decide whether each and every charge could be held proved ornot. After taking such a decision, the competent authoritydecide on the quantum of punishment and the order shall concludeindicating the time allowed for appeal before the appellateauthority. 16.If the facts of the present case are juxtaposed with theprocedure to avoid major penalty as contemplated under Regulation4, Chapter V, it cannot be said that the disciplinary proceedingswere not conducted in accordance with Regulation 4.17.It is true that the charge memo does not inform the listof documents and the list of witnesses, but it does not mean thatthe entire proceedings are vitiated on that score. It is not thecase of the writ petitioner that the documents relied on by theCorporation were not made available to him and he was notpermitted to cross-examine the witnesses. In fact, the writpetitioner himself did not choose to cross-examine the witnesseseven after submitting his further explanation to the findings ofthe enquiry officer on 22.7.92. Only on 5.8.92, he made such arequest asking for re-enquiry and therefore it is very clear thatit is only an afterthought. Hence I am of the considered viewthat the procedure contemplated under Regulation 4, Chapter V aresubstantially complied with by the respondent-corporation.18.It is settled law that under Article 226 of theConstitution of India, this court cannot go into the decision ofthe disciplinary authority and it can only go into the decisionmaking process to find out whether reasonable opportunity has beenafforded to the delinquent and the procedures contemplated arecomplied with. It is also a trite law that in a disciplinaryproceeding, the department is not expected to prove the guilt of https://hcservices.ecourts.gov.in/hcservices/ the delinquent beyond any doubt as in criminal court and it issufficient if the preponderance of probabilities is proved.Therefore I do not find any illegality nor infirmity norperversity in the order of dismissal, impugned in this writpetition.19.Insofar as the Chairman-cum-Managing Director (appellateauthority) himself passing the order of dismissal is concerned, noexception could be taken in this regard. It is explained in thecounter that along with the writ petitioner some other personswere also involved out of whom one is a Class-II officer for whomthe disciplinary authority is the Chairman-cum-Managing Directorand therefore the entire papers including that of the writpetitioner were placed before him.20.Further it is only when an officer lesser in rank than thecompetent authority passes an order of punishment, the order issaid to be bad. Not in a case where the appellate authoritypasses an order of punishment if an appeal remedy is provided to afurther superior authority. The underlying principle in thisregard is that the delinquent employee should be provided with atleast one remedy of appeal and that should not be deprived to him.21.In the present case even though the impugned order waspassed by the Chairman-cum-Managing Director, the appellateauthority, it clearly points out that the writ petitioner couldfile an appeal to the Board of Directors within 60 days from thedate of receipt of the order. Therefore the writ petitioner wasnot deprived of the appeal remedy and in such circumstances theimpugned order of dismissal cannot be held to be bad on the groundthat the same was passed by the appellate authority.22.Now let me consider the decisions relied on by the learnedcounsel for the petitioner.23.In 1991(2)LLJ 511 (cited supra), this court held that theservice rules are mandatory in nature and whether the employeedemanded an enquiry or not the employer must have the support ofsatisfactory evidence recorded at an enquiry held for thatpurpose. This court further held that in view of the fact thatthe Chairman himself passed the impugned order, the appeal to theBoard presided over by the Chairman himself, cannot be consideredas an effective alternative remedy and therefore the writ petitioncannot be dismissed on the ground of existence of alternativeremedy.24.This decision is not useful to the petitioner hereinbecause in the above matter, the learned Judge of this court heldthat no evidence was recorded at the enquiry to prove the act ofmisconduct alleged against the delinquent. The facts in thepresent case are different and I have already referred to the https://hcservices.ecourts.gov.in/hcservices/ evidence relied on by the enquiry officer for coming to hisconclusion. Further, only when the Chairman presides over theBoard of Directors while dealing with appeal, the appeal remedy isnot an effective alternative remedy. If the Board minus theChairman hears and disposes of the appeal, it cannot be said thatit is not an effective alternative remedy. In fact having passedthe impugned order, the Chairman-cum-Managing Director ought notto preside over the Board while dealing with the appeal preferredagainst his own order. 25.In W.P.No.7740/1988 (cited supra), the learned SingleJudge of this court quashed the order of dismissal on the groundthat the past conduct of the delinquent was also relied on by thedisciplinary authority for imposing the punishment of terminationfrom service. While quashing the order of the learned Judge afterconsidering the fact that 15 years have lapsed since the legalbattle began, did not permit the respondent-corporation to proceedwith the enquiry afresh and consequently directed reinstatement ofthe writ petitioner.26.This decision is also not helpful to the petitioner hereinbecause in the impugned order his past conduct was not at allrelied on by the Chairman-cum-Managing Director while imposing thepunishment of dismissal.27.In Writ Appeal No.2430/2003, a Division Bench of thiscourt had an occasion to deal with regulation 4 of Chapter V ofthe service Regulations of the respondent-corporation. TheDivision Bench held that the regulations bind the Board, theemployer and the employees. Since the regulations were breachedin that case as held by the learned Single Judge, the DivisionBench upheld the order of the Single Judge setting aside theimpugned order.28.This decision is also not supporting the case of the writpetitioner as I have held that regulation 4 of Chapter V of theservice Regulations of the respondent-corporation weresubstantially complied with by the respondent-corporation. https://hcservices.ecourts.gov.in/hcservices/

29.In the result, there are no merits in the writ petitionand the same is dismissed. No costs. sksSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Chairman-cum-Managing DirectorTamil Nadu Civil Supplies Corpn.Ltd.42 Thambuswamy RoadMadras-600 010+ one cc to Mr. P. Venkataraman, Advocate sr no. 40444+ one cc to Mr. V. Selvanayagam, Advocate sr no. 40046sr(co)nm(19.07.07)W.P.668/93.