Tamil Nadu Housing Board v. O.R. Mothilal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.6.2009CORAMTHE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HON'BLE MR.JUSTICE RAJA ELANGOWrit Appeal No.482 of 1998Tamil Nadu Housing Boardrep. by the Managing DirectorNandanamChennai 35. ..Appellant/ 1st Respondent Vs.1. O.R. Mothilal2. The Government of Tamil Nadu rep. by its Commissioner & Secretary to Government Department of Housing and Urban Development..Respondents/ Madras 9. Petitioner and 2nd Respondent Appeal against the order of the learned single Judge dated12.2.1998 made in W.P.No.5702 of 1994 on the file of this Courtpetition filed under Article 226 of the Constitution of India for therelief sought for to scrap the impugned order passed by the firstrespondent wherein the petitioner's rank was reduced to lowest rank.For Appellant : Mr.D.VeerasekaranFor Respondent-1 : Ms.Y.Kavithafor M/s.P.V.S.GiridharJ U D G M E N T(Delivered by S.J.MUKHOPADHAYA,J.)The appeal has been preferred by the Tamil Nadu HousingBoard/first respondent in the writ petition (hereinafter referred toas "Housing Board"), against the order dated 12.2.1998 passed by thelearned single Judge, whereby, the writ petition preferred by thepetitioner against the order of punishment of reduction to lowestrank was allowed. https://hcservices.ecourts.gov.in/hcservices/

2. As the case can be disposed of on a short point, it is notnecessary to discuss all the facts, except the relevant one.3. A departmental enquiry was initiated against the writpetitioner imputing three charges as follows:"1. That he has tampered with the rate in itemNo.24 of tender of Thiru M.Subbiah with motive andmalicious intention and has rewritten the quoted rate ofRs.10/- as "rupees nine" and thus favoured the tendererin respect of the work of construction of 14 blocks of astoreyed 168 MIG flats at Ellis Nagar, Madurai.2. That he has committed a serious irregularityinvolving malpractice and moral turpitude.3. That by his malacious action, he has beendisloyal and dishonest to the Board."4. In the departmental proceedings, the enquiry officer held allthe three charges proved against the writ petitioner. The learnedsingle Judge, while dealing with the matter, noticed that there wasno material on record to suggest that the petitioner had tampered thetender paper, but in the chart prepared by the petitioner, he hasreduced the quotation of Rs.10/- to Rs.9/-, on the basis of thecircumstantial evidence, the enquiry officer held the charges provedagainst the petitioner. Taking into consideration the relevantfacts, the learned single Judge held that the punishment isdisproportionate to the gravity of charges and set aside the order.5. The learned counsel appearing on behalf of the Housing Boardsubmitted that the enquiry was conducted after giving an opportunityto the delinquent. The learned single Judge ought to have dismissedthe writ petition in the absence of any illegality, as, this Courtunder Article 226 of the Constitution, cannot sit in appeal over thefindings of the enquiry officer.6. Per contra, according to the learned counsel for the writpetitioner, the Court should not interfere with the order passed bythe learned single Judge, as otherwise, it would restore an illegalorder of punishment. It is submitted that the enquiry was conductedin complete violation of the rules of natural justice. No list ofdocumentary evidence was cited nor any list of witnesses was suppliedeither to the petitioner (charged employee) or to the enquiryofficer. Even in the absence of those evidence, the enquiry officer,of his own, after perusal of some records, has given his findings.7. In reply, the learned counsel for the Housing Board submittedthat in the absence of any statutory rule, it is not necessary tosupply any list of evidence or list of witnesses to the delinquent. https://hcservices.ecourts.gov.in/hcservices/

8. In view of the above submission, the learned counsel for theHousing Board was directed to produce the relevant original recordswith regard to the enquiry, including the list of evidence andwitnesses, if any forwarded to the petitioner and the enquiryofficer. On perusal of the records, the learned counsel for theHousing Board accepts that no such list of evidence or witnesses wasforwarded either to the petitioner or to the enquiry officer. 9. Counsel for the Housing Board relied upon the decision of theSupreme Court in State Bank of Patiala v. S.K.Sharma [AIR 1996 SC 69]and submitted that the petitioner could have raised an objectionduring the enquiry. He has also relied upon the Supreme Courtdecision in U.P. State Road Transport Corporation v. Musai Ram [1999(3) SCC 372]. However, according to us, none of the above cases areapplicable to the present case.10. In the case of State Bank of Patiala (supra), the SupremeCourt noticed that copies of statement of two witnesses were notsupplied to the delinquent officer. But, it was found that the saiddelinquent officer was permitted to peruse them and to take notestherefrom more than three days prior to their examination. Noobjection was raised by the delinquent and therefore, the SupremeCourt observed that it cannot be said that he had no fair hearing orenquiry against him was not fair enquiry.11. In the case of Musai Ram (supra), a bus conductor was provedguilty on the basis of two reports of Assistant Traffic Inspector(ATI), which, the delinquent did not controvert during the course ofenquiry. Findings of the enquiry was questioned on the ground thatthe statement of passengers recorded by ATI was not taken intoconsideration. Such objection was held not sustainable because thedelinquent himself has not cross examined ATI. However, the Courtheld that it was for the enquiry officer and not for the Court todecide whether charges could be proved on the basis of these reports.12. So far as the present case is concerned, it is admitted thatno list of documentary evidence or witness was cited nor communicatedto the petitioner or the enquiry officer. In the absence of any suchdocument, it is not clear as to how the enquiry officer could heldthe charges proved. It is settled law that the enquiry officercannot take out a document to prove the charges levelled against thecharged employee. The disciplinary authority is supposed to provethe charges against the charged employee on the basis of evidenceeither documentary or oral, of which, intimation is required to begiven to the charged employee to prepare his defence effectively.Such evidence is also required to be communicated to the enquiryofficer, in the absence of which, the enquiry officer cannot lay handon any document to bring home the charges. https://hcservices.ecourts.gov.in/hcservices/

13. When similar case fell for consideration before a Divisionbench of this Court in V.Narayanan v. Deputy General Manager andothers [W.A.No.392 of 2008 dated 18.11.2008], the Division Bench heldas under:"When an employee is facing a disciplinary proceeding,he is entitled to be afforded with a reasonableopportunity to meet the charges levelled against him nan effective manner. No one, facing departmentalenquiry, can effectively meet the charges unless thecopies of the relevant statements and documents to beused against him are made available to him. In theabsence of such copies, the delinquent cannot preparehis defence, cross-examine the witnesses and point outthe inconsistencies with a view to show that theallegations are incredible. Whether or not refusal tosupply copies of documents or statements has resulted inprejudice to the employee facing the departmentalenquiry depends on the facts of each case."14. In view of the above facts that the disciplinary authorityhas not cited any list of documentary evidence or witness, we are ofthe view that the enquiry officer had no jurisdiction to lay hand onany other document to bring home the charge and for that, the reportcannot be upheld. Accordingly, we hold that the enquiry report andthe order of punishment as illegal, and for the said reason, we arenot inclined to interfere with the order passed by the learned singleJudge.Finding no merit, the writ appeal stands dismissed. No costs.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarkplTo1. The Commissioner & Secretary to Government Department of Housing & Urban Development Madras 9. https://hcservices.ecourts.gov.in/hcservices/

2. The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-35.+ 1 c.c. to Mr. K. Chelladurai, Advocate. S.R.No.26002.+ 1 c.c. to M/s. P.V.S. Giridhar & Sai Associates. S.R.No.26328.+ 1 c.c. to The Government Pleader. S.R.No.26288.W.A.No.482 of 1998MSM (CO)GSK 16.07.2009.