Heard both sides.
2.This writ petition arose out of O.A.No.3344 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this court and was renumbered as W.P.No.32717 of 2006.
3.The petitioner sought for the issuance of a writ of certiorarified mandamus to call for the records connected with proceedings Na.Ka.No.11552/96/Ni.Vu.6 dated 26.3.98 of the Dean, Government Raja Mirasdar Hospital, Thanjavur and to set aside the same and to direct the respondents to reinstate the applicant into service, treating the period he is out of employment as duty for all purposes.
4.The petitioner challenges the order of the second respondent, dated 26.3.1998, wherein by which he was compulsory retired from service by way of penalty. The petitioner did not file any statutory appeal, but moved the Tribunal with OA No.3344 of 1998. The petitioner was issued with a charge memo under Rule 17(b) for allegedly demanding and accepting Rs.1000/- from one inpatient by name Marudammal, W/o. R.Nallu, for supplying blood for transfusion during operation. The petitioner denied the charge.
5.The basis for the said charge was said to be the complaint, dated 18.9.96 received from the said inpatient Marudammal. Her husband R.Nallu was cited as a witness. The petitioner was directed to fill up a pro-forma questionnaire along with the charge memo. The petitioner filled up the said questionnaire on 21.11.96. The petitioner stated as against question No.2.1 that he wants an opportunity to cross examine the witness. He also stated that he wants to lead evidence and denied the charge of taking bribe. In his explanation, dated 7.10.96, he had stated that he was not guilty of charges.
6.An enquiry was ordered to be conducted by Dr.K.Thiagarajan, the medical officer. Even before the enquiry, the petitioner produced a letter, dated 13.11.96 written by the complainant R.Nallu that he did not pay any money to the petitioner and he has also received the said amount from the patient. Notwithstanding these developments, the so-called enquiry was conducted.
7.In the reply affidavit, dated 9.6.98 with reference to the procedure adopted in the enquiry, in paragraph 10, the respondents have stated as follows:
"10.Since he has not expressed his desire to enquire the witnesses in support of his explanation either in the questionnaire form or in his explanation the witnesses were not enquired at the time of Enquiry and hence the question of witnesses were not enquired to prove charges, does not arise. The questionnaire form xerox copy is enclosed for reference. Accordingly the applicant has given false statement."
8.Therefore, this court directed by an order, dated 27.8.2009, to produce the original file. Accordingly, learned Government Advocate had produced the original file. It is seen from the records that at no point of time, the petitioner has admitted the charges. But in the enquiry conducted against him on 4.2.1997 recorded by Dr.Thiagarajan, only the statement of the petitioner was marked and no other witnesses were examined. It is only on the basis of this farce of the enquiry, the Enquiry officer gave a report, dated 28.1.98 holding the petitioner guilty.
9.The petitioner gave a reply, dated 16.2.98 once again reiterating the same stand. But on the contrary to the petitioner's stand, the respondents imposed a punishment of compulsory retirement. When the petitioner has specifically denied the charge levelled against him and also in the questionnaire form, he expressed his desire to cross examine the witnesses, the respondents cannot complete the enquiry without recording even an iota of evidence.
10.In this context, it is necessary to refer to the judgment of the Supreme Court in Bareilly Electricity Supply Co. Ltd. v. Workmen reported in (1971) 2 SCC 617. Paragraph 14 of the said judgment may be usefully extracted below:
14. .... But the application of principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. When the appellant produced the balance-sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order 19 of the Civil Procedure Code and the Evidence Act both of which incorporate these general principles....
11.Subsequently, the Supreme Court in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant reported in(2001) 1 SCC 182 in paragraph 19 observed as follows:
19. While it is true that in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-nigh impossibility to decry availability of judicial review at the instance of an affected person. The observations as above, however, do find some support from the decision of this Court in the case of Apparel Export Promotion Council v. A.K. Chopra7.
12.Very recently, the Supreme Court in a judgment in State of Uttaranchal v. Kharak Singh reported in (2008) 8 SCC 236 in paragraphs 18 to 21 observed as follows:
18. Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16-11-1985 reads as under:
During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect. (emphasis supplied) Though there is no specific bar in offering views by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officer has no right to continue in the government service and he has to be dismissed from service with immediate effect.
19. As pointed out above, awarding appropriate punishment is the exclusive jurisdiction of the punishing/disciplinary authority and it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. It is clear from the materials, the officer, who inspected and noted the shortfall of trees, himself conducted the enquiry, arrived at a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well-known principles enunciated by this Court.
20. A reading of the enquiry report also shows that the respondent herein was not furnished with the required documents. The Departments witnesses were not examined in his presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit before the High Court in the writ proceedings, those averments were specifically controverted in the reply-affidavit filed by the Department. Mere denial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the enquiry officer to the disciplinary authority, the respondent herein was furnished with the copy of the said report along with all the relied upon documents. When all these infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not pointed out the relevant materials from the records of the enquiry officer and disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent.
21. After taking note of all the infirmities and in the light of the various principles enunciated by this Court, the High Court has rightly interfered and quashed the orders dated 5-3-1986 passed by the Divisional Forest Officer, Haldwani as well as order dated 27-4-1991 passed by the Conservator of Forests, Western Circle, Nainital.
13.If the case of the petitioner is tested in the light of the legal pronouncements made by the Supreme Court, it is clear that the petitioner has been condemned without there being any worthwhile enquiry. It cannot be said that the petitioner has been given protection of
Article 311(2) of the Constitution before he was sent out of service.
14.In the light of the above factual matrix and the legal precedents, the writ petition stands allowed. However, there will be no order as to costs.
15.Normally, this court would have directed re-trial, but in the present case, since the incident relating to 12 years before and also the fact that the petitioner had produced a letter, dated 13.11.96 from the complainants themselves that there was no receipt of money by him and no such incident had taken place, it is not worthwhile to direct a fresh enquiry to be conducted. This order shall be implemented within a period of two months from the date of receipt of the copy of this order.
vvk To
1.Director of Medical Education, Chennai-5.
2.Dean, Government Raja Mirasdar Hospital, Thanjavur