The Original Application in O.A.No.746 of 2002 before the Tamil Nadu Administrative Tribunal (hereinafter referred to as the "Tribunal") is the present writ petition.
2.The petitioner was working as Union Overseer in Melaneelithanallur Panchayat Union. Admittedly, the Engineering Stock Register was in his custody, in which, the details of 24 teak wood rafters, dismantled and removed from the Panchayat Union School building of Pandiapuram Village, were entered in page No.26. Those teak wood rafters were sold in public auction, conducted on 28.07.1993. There were some allegations against Thiru. A.Kadhar Masthan, the then Block Development Officer, regarding the public auction of teak wood rafters. In the enquiry, against the said Block Development Officer, it was found that page Nos.25, 26, 67 and 68 of the said Engineering Stock Register had been torn out. The petitioner is made responsible for missing of those pages and the respondent issued charge sheet dated 17.09.1997, under Rule 17(b) of the Tamil nadu Civil Services (Discipline and Appeal) Rules, alleging that while the petitioner handed over the Engineering Stock Register on 21.04.1995 to the Additional Block Development Officer, for onward transmission to the Vigilance and Anti-corruption Department, the page Nos.25, 26, 67 and 68 of the said Register had been torn out.
3.The petitioner submitted his explanation dated 27.10.1997 to the respondent, denying the allegations. According to petitioner, he handed over the Engineering Stock Register on 21.04.1995 to the Additional Block Development Officer and no pages were removed, when he handed over the same to the concerned officer. However, an enquiry was held by an Assistant Director of Rural Development.
4.The Enquiry Officer, gave a report dated 05.05.1999, finding the petitioner guilty of the charge. Based on the report of the Enquiry Officer, the respondent imposed the punishment of stoppage of increment for a period of two years with cumulative effect, affecting pension, on the petitioner.
5.The petitioner filed the Original Application in O.A.No.746 of 2002 (W.P.No.7448 of 2007) to quash the impugned order in G.O.(D)No.534, Rural Development Department, dated 24.10.2001 of the respondent.
6.Heard the submissions made by Mr.Karthik Rajan, learned counsel for the petitioner and Mr.P.MuthuKumar, learned Government Advocate for the respondent.
7.The learned counsel for the petitioner submits that there is a basic flaw in the very conduct of the enquiry, as no person was examined on the side of the Department in the enquiry, in support of the charges. He brings to my notice that Annexure-IV of the charge memo states that they do not have any witness to prove the charges. He has also brought to my notice the findings of the Enquiry Officer at Folder-II, wherein, it is stated as follows:
"C) List of witness examined in proof of charges .. NIL .. "
The learned counsel for the petitioner further submits that no oral evidence was let in to prove the charges and therefore, the Enquiry Officer was not correct in recording a finding of guilt.
8.Further, the Enquiry Officer proceeded, as if the petitioner stated in the enquiry that he handed over the concerned stock register to the Assistant, Thiru. Mohan Kumar, and that Thiru. Mohan Kumar found that the page Nos.25, 26, 67 and 68 were missing at the time of receiving the stock register, when he did not make such statement in the enquiry. In this connection, the learned counsel has brought to my notice a passage from the findings of the Enquiry Officer and the same is extracted here-under:-
"At the time of enquiry, the delinquent officer has stated that he was the custodian of the register and he had been handed over the register to the Assistant concerned."
The learned counsel for the petitioner contends that at no point of time, he stated that the register was handed over to the Assistant Mr.Mohan Kumar and it was his specific case that the same was handed over directly to the Additional Block Development Officer. Therefore, he asserts that the finding of the Enquiry Officer is perverse.
9.On the other hand, the learned Government Advocate strenuously contends that based on the reply affidavit filed in the Original Application, the petitioner handed over the stock register to the Assistant Mr.Mohan Kumar and at that time, the concerned pages were not found. The learned counsel has brought to my notice para 10 of the reply affidavit and also the statement of Mr.Mohan Kumar, which is said to have been made in the enquiry.
10.I have considered the submissions made on either side. I have perused the statement of Mr.Mohan Kumar, which is said to have been made in the enquiry. In the said statement, there was no signature of the petitioner to establish that the said statement was made in the presence of the petitioner. It is relevant to mention that in the charge memo, it is stated by the respondent that they did not propose to examine any witness in the enquiry. Further, in the minutes recorded by the Enquiry Officer, the Enquiry Officer recorded that no witness on the side of the Department was examined in the enquiry. It is true that the Department could very well examine a person, though they did not mention in the charge sheet. However, they should do so only in the presence of delinquent. Admittedly, Mr.Mohan Kumar was not examined in the presence of the petitioner. The petitioner has filed a reply affidavit, denying the factum of the examination of the said Mohan Kumar in the enquiry. In these circumstances, the averments of the respondent at para 10 of the reply affidavit has to be necessarily rejected.
11.The learned counsel for the petitioner has relied on a decision of the Honourable Apex Court in Hardwarilal Vs. State of U.P. And others REPORTED IN (1999) 8 SCC 582 and submits that the non-examination of the material witness would vitiate the entire proceedings. Neither the Additional Block Development Officer nor Mr.Mohan Kumar was examined in the enquiry, in the absence of the examination of material witnesses, it should be held that there is no oral evidence to support the charge. Further, recording a finding merely based on documents, without examination of witnessess is disproved by this Court in R.KARUPPANNAN VS. TAMIL NADU WATER SUPPLY AND DRAINAGE BOARD reported in 1992 (II) L.L.N.127. Para 9 of the said judgment is extracted here-under:-
"9. I have considered the arguments of the learned counsel for both sides. A look at the charges extracted above shows that the charges have been framed for the alleged purchase of excess number of pumpsets in 1980. The charges were framed on the basis of audit report, 1983-84 after a lapse of 5 years, i.e., in 1989. So, virtually the charges are framed after 9 years after the commission of alleged offence, i.e., non-application of mind. This itself is sufficient in my view to set aside the order of punishment. A charge-memo issued after 9 years could not be sustained, more so when it is based on documentary evidence alone. If the department wanted to prove that the purchase of 17 pumpsets was in excess, it should have proved by independent evidence oral evidence to that effect in the inquiry. It is not necessary for the petitioner to ask the department to lead the evidence. It is for the department to prove that the charges are correct. Then only comes the defence on the part of the officer. In this case, it is curious that the department has proceeded purely on correspondence and the statements made by the officers who succeeded the petitioner that the pumpsets are in excess and they are not needed. If the department has let in evidence by the officers concerned between 1982 and 1989 and has proved what the petitioner did was wrong, it should have been appriciated. I has not been done in this case. It is one of the fundamental principles of natural justice that merely because facts are admitted or are indisputable, it does not follow that natural justice need not be observed See S.L.Kapoor V. Jagmohan (A.I.R. 1981 S.C. 136). So this is a case in my view where the impugned order has to be set aside on the ground of violation of principle of natural justice."
12.Since the findings of the enquiry officer, based on which the impugned punishment was issued, is found to be perverse, the impugned order is liable to be quashed. Accordingly the impugned order is quashed and the writ petition is allowed. No costs.
vsm To The Secretary to Government, Rural Development Department, Fort St. George, Chennai 600 009