P.Karuppusamy v. The Chairman

THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.1.2007 CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWRIT PETITION No.11218 of 2003P.Karuppusamy... PetitionerVs.1. The Chairman, Tamil Nadu Tourism Development Corporation Ltd., Fort St. George, Chennai – 600 009.2. The Managing Director, Tamil Nadu Tourism Development Corporation Ltd., Near MLA Hostel, Chennai – 600 002. .. RespondentsWrit Petition filed under Article 226 of the Constitution of India asstated therein.For petitioner : Mr.K.RajaFor respondents : Mr.R.Kannan O R D E RThe Writ Petition has been filed praying for the issuance of a writof Certiorarified Mandamus to call for the records of the secondrespondent in his proceedings No.5757/O.Ni.1/97, dated 23.12.1998 and theproceedings No.5757/O.Ni.1/97, dated 14.9.1999, and quash the same and todirect the respondents herein to reinstate the petitioner in service withall backwages, monetary and other attendant benefits.The brief facts of the case, as stated by the petitioner, are asfollows:2. It is stated by the petitioner that he was appointed as a FrontOffice Assistant in the Tamil Nadu Tourism Development CorporationLimited, through the Employment Exchange, in the year, 1983. While so, on15.10.1997, he was placed under suspension. On 24.10.1997, a charge memowas framed containing the charges on 11 counts. Though the petitioner had https://hcservices.ecourts.gov.in/hcservices/ submitted his explanation denying the charges, an enquiry was conductedand the petitioner was found to be guilty of the charges. Hence, he wasremoved from service by the proceedings of the second respondent inproceedings No.5757/O.Ni.1/1997, dated 23.12.1998. The petitioner hadfiled an appeal to the Board of Directors. Since the appeal was keptpending and it had not been disposed of, the petitioner had moved thisCourt by way of a writ petition in W.P.No.3200 of 2003, praying for a writof mandamus to direct the respondents therein to pass an order on thepetitioner's appeal. By an order, dated 3.2.2003, this Court had directedthe first respondent therein to dispose of the appeal within a period ofeight weeks from the date of receipt of a copy of the said order. Later,it was learnt that the appeal filed by the petitioner had been disposedof, on 14.9.1999 itself, rejecting the plea of the petitioner and theorder, dated 14.9.1999, was communicated to the petitioner only, on22.3.2003. Therefore, the petitioner has come forward with the presentwrit petition challenging the order of the second respondent, dated14.9.1999, rejecting the appeal filed by the petitioner.3. The petitioner had stated that the punishment of removal fromservice imposed by the second respondent is disproportionate to thecharges levelled against him. The Enquiry Officer's report ought to havebeen served at the first instance and only thereafter, a show cause noticeought to have been issued to the petitioner. However, in the present case,the Enquiry Officer's report was served on the petitioner along with theshow cause notice. The enquiry has not been conducted in a free and fairmanner. The charge memo, the statement of the allegations and thestatement of the witnesses were not furnished to the petitioner, in spiteof his repeated representations. The complainant was not examined as awitness in the enquiry and the petitioner had not known the nature of thecomplaint. Further, there was no discussion in the order about thecharges, explanation to the charges, the enquiry report and theexplanation given to the show cause notice. Therefore, the appellateauthority has passed the non-speaking order, without giving an opportunityto the petitioner and in violation of the principles of natural justice. 4. In the counter-affidavit filed on behalf of the respondents, it isstated that the petitioner was appointed as an attendant and he had joinedduty, on 22.8.1983, at Hotel Tamil Nadu, Madurai. On 4.11.1987, he wasredesignated as a Front Office Assistant and was transferred toRameswaram. In the year 1992, while he was working as the Front OfficeAssistant, at Rameswaram, he was awarded the punishment of censure forinsubordination and negligence in his duty. On 2.9.1997, a complaint wasreceived against the petitioner. After verification, the first respondenthad directed the Joint General Manager of the Corporation to enquire intothe complaint. The Joint General Manager had conducted an enquiry andsubmitted a report, on 14.10.1997. Based on the report, the petitioner wasplaced under suspension, by the proceedings No.283/HTN/RMM/97, dated15.10.1997. The charges were framed on 11 counts and a show cause noticehad been issued, along with the charge memo, asking the petitioner to https://hcservices.ecourts.gov.in/hcservices/ submit his explanation for the charges levelled against him. Thepetitioner had sent his explanation, on 1.11.1997, denying the charges. Asthe explanation submitted by the petitioner was not convincing, therespondent Corporation, by its proceedings No.5757/HAT/97, dated 9.3.1998,had appointed S.Devi Mohan, Assistant Chief Manager (TPT), as the EnquiryOfficer to enquire into the charges levelled against the petitioner.S.Bosco, Deputy Manager, Office of the Regional Manager (South) had beenappointed as the Management representative. 5. It has been further stated that from 18.3.1998 to 19.3.1998, theenquiry was conducted, following the principles of natural justice and theprocedures established by law. The petitioner had participated in theenquiry without raising any objection. At the conclusion of the enquiry,the enquiry Officer had submitted his detailed report, on 23.3.1998. On26.11.1998, the petitioner had submitted a letter accepting his mistakesand had requested the respondent Corporation not to take any actionagainst the petitioner and tendered an unconditional apology for his act.The said letter is a clear proof to show that the petitioner had actedagainst the interest of the respondent Corporation. Thereafter, thepetitioner was dismissed from service by the proceedings No.5757/HAT/97,dated 23.12.1998. The order of termination was challenged by thepetitioner by way of an appeal, dated 2.2.1999, and 25.2.1999. The appealfiled by the petitioner was rejected in the 184th meeting of the Board,held on 3.8.1999, and the same was communicated to the petitioner.6. The learned counsel appearing on behalf of the petitioner submitsthat according to Rule 8 of the Tamil Nadu Civil Services (Discipline &Appeal) Rules, the authorities empowered to impose the punishment canimpose the same only for good and sufficient reasons. This has not beenseen to be stated in the order dismissing the petitioner from his service.According to Rule 23 of the Tamil Nadu Civil Services (Discipline &Appeal) Rules, the Appellate Authority ought to have considered, whetherthe facts, on which the order was based, have been established; whetherthe facts established afford sufficient ground for taking action; andwhether the penalty is excessive, adequate, or inadequate, before passingthe order in appeal.7. The learned counsel appearing on behalf of the petitioner hadrelied on the following decisions to support his contentions. They are asfollows:7.1 In DIRECTOR (MKT.), INDIAN OIL CORP., LTD., VS. SANTOSH KUMAR,reported in (2006 (3) CTC 669), the Supreme Court has held that "it wasevident in the order of the Appellate Authority that there was non-application of mind as the Appellate Authority had merely adopted thelanguage employed by the disciplinary authority while inflicting thepunishment of dismissal." https://hcservices.ecourts.gov.in/hcservices/

7.2 In N.VANAJA VS. THE BOARD OF DIRECTORS OF TAMIL NADU SMALLINDUSTRIES DEVELOPMENT CORPORATION LTD., CHENNAI rep. by its CHAIRMAN ANDANOTHER, reported in 2006 (4) CTC 52, this Court has held that "theappellate authority should have considered whether the penalty imposed isadequate, inadequate or severe and ought to have passed appropriateorders. But, no reason was given by the Appellate Authority as to whetherthe punishment imposed by the disciplinary authority was adequate orinadequate. Therefore, the order of the Appellate Authority affirming theorder passed by the Disciplinary Authority is set aside."7.3 In RAM CHANDER VS. UNION OF INDIA AND OTHERS, reported in (AIR1986 S.C.1173), the Supreme Court has held that "it is of utmostimportance after the Forty-Second Amendment as interpreted by the majorityin Tulsiram Patel's case ((1985) 3 SCC 398) that the Appellate Authoritymust not only give a hearing to the Government servant concerned but alsopass a reasoned order dealing with the contentions raised by him in theappeal. Reasoned decisions by tribunals, such as the Railway Board in thepresent case, will promote public confidence in the administrativeprocess. An objective consideration is possible only if the delinquentservant is heard and given a chance to satisfy the Authority regarding thefinal orders that may be passed on his appeal. Considerations of fairplayand justice also require that such a personal hearing should be given."7.4 In MANAGING DIRECTOR ECIL, HYDERABAD Vs. B.KARUNAKAR, reported in(1993 (3) AISLJ 193 (SC)), the Supreme Court has held that "Article 311(2) applies only to the members of the civil services of the Union or anall-India service or a civil service of a State or to the holders of thecivil posts under the Union or a State. In the matter of all punishmentsboth Government servants and others are governed by their service rules.Whenever, therefore, the service rules contemplate an inquiry before apunishment is awarded, and when the Inquiry Officer is not thedisciplinary authority the delinquent employee will have the right toreceive the Inquiry Officer's report notwithstanding the nature of thepunishment. Since it is the right of the employee to have the report todefend himself effectively, and he would not know in advance whether thereport is in his favour or against him, it will not be proper to construehis failure to ask for the report, as the waiver of his right. Whether,therefore, the employee asks for the report or not, the report has to befurnished to him. When the employee is dismissed or removed from serviceand the inquiry is set aside because the report is not furnished to him,in some cases the non-furnishing of the report may have prejudiced himgravely while in other cases it may have made no difference to theultimate punishment awarded to him. Hence, to direct reinstatement of theemployee with back-wages in all cases is to reduce the rules of justice toa mechanical ritual. The theory of reasonable opportunity and theprinciples of natural justice have been evolved to uphold the rule of lawand to assist the individual to vindicate his just rights. They are notincantations to be invoked nor rites to be performed on all and sundry https://hcservices.ecourts.gov.in/hcservices/ occasions. Whether in fact, prejudice has been caused to the employee ornot on account of the denial to him of the report, has to be considered onthe facts and circumstances of each case. Where, therefore, even after thefurnishing of the report, no different consequence would have followed, itwould be a perversion of justice to permit the employee to resume duty andto get all the consequential benefits. It amounts to rewarding thedishonest and the guilty and thus to stretching the concept of justice toillogical and exasperating limits. It amounts to an "unnatural expansionof natural justice" which in itself is antithetical to justice."8. Per contra, the learned counsel appearing on behalf of therespondents, had pointed out that the petitioner himself had admitted hismistakes by a letter, dated 26.11.1998. Since the petitioner was givenfull opportunity to defend his case, he did not ask the Enquiry Officer tosummon the complainant as a witness. Since the charges levelled againstthe petitioner were serious in nature and warranting a severe punishment,the petitioner had been dismissed from service. Further, it is submittedon behalf of the respondents that by a preliminary report, dated2.11.1998, was communicated, along with the necessary documents, to thepetitioner asking him as to why he should not be imposed with thepunishment of removal from service. Therefore, the petitioner was givenample opportunity in accordance with the principles of natural justicewith regard to the punishment proposed to be imposed. 9. The learned counsel appearing on behalf of the respondents hadrelied on a decision of the Supreme Court in VIVEKA NAND SETHI Vs.CHAIRMAN, J & K BANK LTD., AND OTHERS, reported in ((2005) 5 SCC 337), theSupreme Court has held that "the principle of natural justice, it istrite, is no unruly horse. When facts are admitted, an enquiry would be anempty formality. Even the principle of estoppel will apply. The principlesof natural justice are required to be complied with having regard to thefact situation obtaining therein. It cannot be put in a straitjacketformula. It cannot be applied in a vacuum without reference to therelevant facts and circumstances of the case." 10. In THE EAST INDIA HOTELS VS. THEIR WORKMEN AND OTHERS, reported in(AIR 1974 S.C. 696), the Supreme Court has held that "when a properenquiry has been held by an employer and the finding of misconduct hassupport from the evidence adduced at the said enquiry, the Tribunal has nojurisdiction to sit in judgment over the decision of the employer as anappellate body. The interference with the decision of the employer will bejustified when the enquiry is unfair or the findings arrived at in theenquiry are perverse or have no basis in evidence or the management isguilty of victimisation, unfair labour practice or mala fide or thepunishment is harsh and oppressive. The Tribunal cannot, therefore,reappraise the evidence and arrive at a conclusion different from thatarrived at by the domestic Tribunal. Even if no enquiry has been held byan employer or if the enquiry held by him is found to be defective, theTribunal in order to satisfy itself about the legality and validity of the https://hcservices.ecourts.gov.in/hcservices/ order, has to give an opportunity to the employer and employee to adduceevidence for the first time justifying his action. Once misconduct isproved, either in the enquiry conducted by the employer or by the evidenceplaced before the Tribunal the punishment imposed cannot be interferedwith by the Tribunal except in cases where the punishment is harsh andoppressive."11. In STATE OF U.P. VS. SHEO SHANKER LAL SRIVASTAVA AND OTHERS,reported in ((2006) 3 SCC 276), the Supreme Court has held that "it is nowwell-settled that the High Court or the Tribunal in exercise of its powerof judicial review would not normally interfere with the quantum ofpunishment. Doctrine of proportionality can be invoked only under certainsituations. The High Court shall be very slow in interfering with thequantum of punishment, unless it is found to be shocking to one'sconscience.12. In A.SUDHAKAR VS. POSTMASTER GENERAL, HYDERABAD AND ANOTHER((2006) 4 SCC 348), the Supreme Court has held that "in terms of Article311(2) of the Constitution of India, the procedural requirements, whichwere required to be followed were as under:(i) opportunity to the officer concerned to deny his guilt andestablish his innocence which means he must be told that whatthe charges against him are and the allegations on which suchcharges are based;(ii) he must be given a reasonable opportunity to cross-examinethe witnesses produced against him and examine himself or otherwitnesses on his behalf; and(iii) he must be given opportunity to show cause that theproposed punishment would not be proper punishment to inflictwhich means that the tentative determination of the competentauthority to inflict one of the three punishments must becommunicated to him.It is well-settled that those principles of natural justice are notembodied principles. The requirements contained in Article 311(2) of theConstitution are held to be as a part of the principle of natural justice.The courts in the aforementioned situation are required to see as towhether non-observance of any of the said principles in a given case hasresulted in denial of justice. If there had been substantial compliance ofthe procedure, the court may not interfere." 13. In NATIONAL FERTILIZERS LTD. AND ANOTHER VS. P.K.KHANNA, reportedin ((2005) 7 SCC 597), the Supreme Court has held as follows:"9. Apart from misreading the Enquiry Officer's report, theHigh Court also misapplied the law. The various decisionsreferred to in the impugned judgment make it clear that theDisciplinary Authority is required to give reasons only when the https://hcservices.ecourts.gov.in/hcservices/ Disciplinary Authority does not agree with finding of the EnquiryOfficer. In this case the Disciplinary Authority had concurredwith the findings of the Enquiry Officer wholly, in Ram Kumar v.State of Haryana(1987 Supp SCC 582), the Disciplinary Authority afterquoting the content of the charge-sheet, the deposition ofwitnesses as recorded by the Enquiry Officer, the finding of theEnquiry Officer and the explanation submitted by the employeepassed an order which, in all material respects, is similar tothe order passed by the Disciplinary Authority in this case.Learned Counsel appearing on behalf of the respondent sought todraw a distinction on the basis that the Disciplinary Authorityhad, in Ram Kumar(1987 Supp SCC 582) case itself quoted the details of thematerial. The mere quoting of what transpired would not amount tothe giving of any reasons. The reasons were in the penultimateparagraph which we have said virtually used the same language asthe impugned order in the present case. This Court dismissed thechallenge to the order of punishment in the following words:- "8. In view of the contents of the impugned order, itis difficult to say that the punishing authority hadnot applied his mind to the case before terminating theservices of the appellant. The punishing authority hasplaced reliance upon the report of the Enquiry Officerwhich means that he has not only agreed with thefindings of the Enquiry Officer, but also has acceptedthe reasons given by him for the findings. In ouropinion, when the punishing authority agrees with thefindings of the Enquiry Officer and accepts the reasonsgiven by him in support of such findings, it is notnecessary for the punishing authority to again discussevidence and come to the same findings as that of theEnquiry Officer and give the same reasons for thefindings. We are unable to accept the contention madeon behalf of the appellant that the impugned order oftermination is vitiated as it is a non-speaking orderand does not contain any reason. When by the impugnedorder the punishing authority has accepted the findingsof the Enquiry Officer and the reasons given by him,the question of non-compliance with the principles ofnatural justice does not arise. It is also incorrect tosay that the impugned order is not a speaking order".We respectfully adopt the view. The position is further clarified byRule 33 of the Employees (Conduct, Discipline and Appeal) Rules. It readsas follows:- https://hcservices.ecourts.gov.in/hcservices/ "1. The Disciplinary Authority, if it is not itself theEnquiring Authority may, for reasons to be recorded by it inwriting remit the case to the Enquiring Authority for fresh orfurther Enquiry and report and the Enquiring Authority shallthere upon proceed to hold further Enquiry according to theprovisions of Rule 32 as far as may be.2. The Disciplinary Authority shall, if it disagrees withthe findings of the Enquiring Authority on any article ofcharge, record its reasons for such disagreement and record itsown findings on such charge, if the evidence on record issufficient for the purpose.3. If the disciplinary authority having regard to itsfindings on all or any of the penalties specified in Rule 29should be imposed on the employee shall, notwithstanding anything contained in Rule 31, make an order imposing such penalty.4. If the disciplinary authority having regard to itsfindings on all or any of the articles of charge, is of theopinion that no penalty is called for, it may pass an orderexonerating the employee concerned."11. The respondent's reliance on the decision inM.D., ECIL Vs. B.Karunakar (1993) 4 SCC 727 is misplaced. Thatdecision relates to the right of a delinquent officerto a copy of the Enquiry Officer's report. In thecourse of the judgment the Court had no doubt said thatthe report of the Enquiry Officer is required to befurnished to the employee to make proper representationto the Disciplinary Authority before such authorityarrives at its own finding with regard to the guilt orotherwise of the employee and the punishment, if any,to be awarded to him. By using the phrase "its ownfinding" what is meant is an independent decision ofthe Disciplinary Authority. It does not require theDisciplinary Authority to record separate reasons fromthose given by the Enquiry Officer. The concurrence ofthe Disciplinary Authority with the reasoning andconclusion of the Enquiry Officer means that theDisciplinary Authority has adopted the conclusion andthe basis of the conclusion as its own. it is notnecessary for the Disciplinary Authority to restate thereasoning."14. On a perusal of the records available and on analysing the rivalcontentions of the parties concerned, this Court is of the considered viewthat the principles of natural justice have been substantially compliedwith and that, unless it is clearly shown that the non-compliance of https://hcservices.ecourts.gov.in/hcservices/ certain aspects of procedural formalities has really prejudiced thepetitioner, no relief can be granted. Further, the admission of guilt bythe petitioner is clear from the letter of the petitioner, dated26.11.1998. In such circumstances, it cannot be held that the petitionerhad been prejudiced in any way by the allegation that the enquiry reportwas furnished to him only along with the show cause notice, dated25.3.1998. 15. In such circumstances, the petitioner has not made out a case forinterference by this Court, with the order passed by the second respondentin his proceedings No.5757/O.Ni.1/97, dated 23.12.1998, and theproceedings No.5757/O.Ni.1/97, dated 14.9.1999. Therefore, the writpetition stands dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarlanTo1. The Chairman, Tamil Nadu Tourism Development Corporation Ltd., Fort St. George, Chennai – 600 009.2. The Managing Director, Tamil Nadu Tourism Development Corporation Ltd., Near MLA Hostel, Chennai – 600 002.1 cc To M/s.Kannan, Advocate, SR.5585.WRIT PETITION No.11218 of 2003 AVM(CO)RVL 08.02.2007