This Writ Petition is filed for issuance of a Writ of Certiorari, to quash the order of the first respondent under the Tamil Nadu Shops and Establishments Act, 1947 in Appeal No.6 of 2014, dated 04.04.2017.
2. The second respondent was working as Accounts Assistant in the petitioner Trust and was promoted as Deputy Secretary. While functioning as Deputy Secretary, he not only committed various irregularities by causing loss to the petitioner Trust but also brought down the reputation of the Trust. A charge memo, dated 16.12.2013 containing 13 allegations was issued to him. The second respondent submitted his explanation, dated 23.12.2013. Not satisfied with the explanation, an enquiry was ordered. The Enquiry Officer by his report, dated 13.03.2014, held that the charges leveled against the second respondent were proved. Ultimately, the second respondent was dismissed from service on 19.05.2014. https://www.mhc.tn.gov.in/judis 2/22 W.P(MD)No.7688 of 2017 Aggrieved against the order of dismissal, the second respondent filed an appeal before the first respondent under the Tamil Nadu Shop and Establishment Act. The first respondent held that only three charges, out of 13 charges, were proved, without giving any cogent reasons for his conclusion. After holding that three charges had been proved, the first respondent ordered reinstatement of the second respondent. Therefore, this Writ Petition is filed.
3. Learned counsel appearing for the petitioner submitted that the scope of an Appellate Authority in an appeal against the findings of the enquiry report and punishment is very limited. Findings of fact arrived at by the disciplinary authority should not be normally interfered with unless malafides or perversity is established. In the case beforehand, the Enquiry Officer had given cogent reasons for reaching the conclusion of proof of charges against the second respondent. The power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. In the case beforehand, the Appellate Authority, despite holding that three charges, out of 13 charges, had been proved, proceeded to order reinstatement of the second respondent, which is contrary to law. The second respondent committed various acts of misconduct which included flagrant https://www.mhc.tn.gov.in/judis 3/22 W.P(MD)No.7688 of 2017 violation of Rules and procedures, criminal misappropriation etc. Therefore, the order of the Appellate Authority has to be set aside. The order of dismissal passed by the disciplinary authority has to be restored. In support of his submission, he relied on the Judgments reported in 2021 (2) SCC 612 [Deputy General Manager (Appellate Authority) and others Vs. Ajai KUmar Srivastava] and AIR 2022 SC 2531 [State Bank of India and another Vs. K.S.Vishwanath] with regard to the powers of the Court in judicial review in departmental proceedings.
(i) In 2021 (2) SCC 612 [Deputy General Manager (Appellate Authority) and others Vs. Ajai KUmar Srivastava], wherein it is observed as follows:-
"26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
https://www.mhc.tn.gov.in/judis 4/22 W.P(MD)No.7688 of 2017
27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The Constitutional Court while exercising its jurisdiction of judicial review under
Article 226 or
Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
(ii) In AIR 2022 SC 2531 [State Bank of India and another Vs. K.S.Vishwanath], wherein it is observed as follows:- https://www.mhc.tn.gov.in/judis 5/22 W.P(MD)No.7688 of 2017 "10. In B.C.Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] , again a threeJudge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence."
4. Per contra, learned counsel appearing for the second respondent submitted that the charges levelled against the second respondent are very vague charges without any specific allegations of civil or criminal misconduct. The Enquiry Officer has not properly conducted the enquiry and without any sufficient materials gave a finding that all the charges levelled against the second respondent were proved. The charges were based only on mere surmises and conjectures. No documents had been produced before the Enquiry Officer in support of the charges. However, without sufficient and legal evidence, the Enquiry Officer found that the charges against the second respondent were proved. On that basis, the second https://www.mhc.tn.gov.in/judis 6/22 W.P(MD)No.7688 of 2017 respondent was dismissed from service. In appeal, finding that only three charges are proved and that the dismissal was disproportionate to the misconduct proved, the Appellate Authority ordered reinstatement to the second respondent. There is no merit in this Writ Petition to interfere with the order of the Appellate Authority and prayed for dismissal of this Writ Petition. In support of his submission, learned counsel appearing for the second respondent relied on the following Judgments:-
(i) In (1975) 3 SCC 254 [Remington Rand of India Limited Vs. R.Jambulingam], wherein it is observed as follows:-
"10. Mr. Natesan also submitted that the Commissioner should not have interfered with the order passed in the domestic enquiry since there was so violation of the principles of natural justice nor was the finding perverse. The jurisdiction of the Commissioner is an appellate jurisdiction and is of wider scope unlike that of the Tribunal in an application under
section 33 of the I.D. Act. The Commissioner is competent to rehear the matter completely and come to its own conclusion after re-
appreciation of the evidence. There is no legal bar in entertaining additional evidence if that is necessary in the interest of justice. The rule of law which has been https://www.mhc.tn.gov.in/judis 7/22 W.P(MD)No.7688 of 2017 laid down by this Court with regard to jurisdiction of the Industrial Tribunal in an application under
section 33 of the I.D. Act in interfering with the order of dismissal passed in a domestic enquiry, is not applicable to the case of an appeal before the Commissioner provided for under section 41 of the Shops Act. We are, therefore, unable to accept the submission of the learned counsel."
(ii) In (1996) 1 LLJ 169 Mad [Parry and Company Limited, Madras Vs. Deputy Commissioner of Labour and another], wherein it is observed as follows:-
"7. We have already extracted the provisions contained is sub-sections (2) and (3) of section 41 of the Act. From the aforesaid provisions, it is clear that an appeal lies not only on questions of law but also on question of fact. In fact, it is open to .... the Appellate Authority to reappreciate the evidence in order to determine as to whether the employee had been guilty of misconduct as held by the employer. The appellate Authority cannot record such a finding without re-
appreciating the evidence. Therefore, in the light of the provisions contained in Section 41(2) of the Act it is not possible to apply the decision of the Supreme Court relied upon by the learned counsel for the appellate in State of Haryana v. Rattan Singh, (1982) 1 Lab LJ 46 : when the statute itself gives wide power to the https://www.mhc.tn.gov.in/judis 8/22 W.P(MD)No.7688 of 2017 Appellate Authority, it is not at all permissible to restrict its jurisdiction and hold that it can reverse the finding recorded in the domestic enquiry only on a limited ground.
8. In addition to the above, the Appellate Authority in light of the evidence of P. G. John examined by the employer, has noticed that the entire discussion which related to the misconduct in question was tape-recorded. For reasons best known to the employer, that tape has not been produced. On the contrary, the misconduct is tried to be proved by the oral evidence, keeping back the evidence contained in the tape which was the best evidence. Similarly Thiru Vellaiyan was also a material witness and he has not been examined. Investigating Officer, on the basis of whose investigation, the charge of misconduct was framed against the employee, was also not examined. The documents of the Investigating Officer and the original report of the Agency were also not produced. Thus, the Appellate Authority has rightly come to the conclusion that the material evidence contained in the form of documents as well as oral had not been produced. This reasoning and the approach of the Appellate Authority cannot be held to be contrary to the provisions contained Section 41(2) of the Act, nor is it possible to hold that the Appellate Authority exceeded his jurisdiction. That being so, it is not possible to appreciate the contention of the appellant that the Appellate Authority has exceeded his https://www.mhc.tn.gov.in/judis 9/22 W.P(MD)No.7688 of 2017 jurisdiction in re-appreciating the evidence and therefore, the interference by the Appellate Authority with the order of the employer, without there being any perversity in the finding recorded by the Disciplinary Authority is not warranted cannot be accepted. It is already pointed out that the employer has recorded the finding withholding the material evidence. This conduct of the employer would lead to an inference that such evidence, if produced would have gone against the employer. Therefore, the finding recorded by the employer can very well be characterised as the one recorded without there being a material evidence on record......"
5. Considered the rival submissions and perused the records.
6. Considered the submissions made by the learned counsel for the parties. On the consideration of the materials produced before this Court, we come to understand that a charge memo, dated 16.12.2013 was issued to the second respondent for 13 charges. After enquiry, the Enquiry Officer found by his report, dated 13.03.2014 that the charges levelled against the second respondent had been proved and observed as follows:- https://www.mhc.tn.gov.in/judis 10/22 W.P(MD)No.7688 of 2017 "The enquiry has brought out the following: ➢ That Mr.P.Arumugam has been negligent and has failed to exercise proper care in discharging his responsibilities as Deputy Secretary. ➢ Instead of getting quotations from three sources for construction of houses estimated at Rs.15 lac, willingly settled for getting quotation from a single source, made mockery of the policy / procedure and awarded the work to the person who does not bother to send the quotation in the letterhead. The possibility of unlawful gain to Mr.Arumugam in this issue cannot be ruled out. One undisputed finding is the misuse/abuse of authority by Mr.Arumugam.
➢ The acts of not getting the temporary connection, payment of penalty not once but twice, justification of this unethical / unlawful acts on financial terms, irresponsible and condemnable act in not getting the approval from the local authorities prior to the construction of the buildings all show that Mr.Arumugam has by his commission / omission has sullied the image and reputation of the Trust, has put the Trust at the risk of being hauled (for violation of statutory requirement, a serious one, besides his overall failure in discharging his duties and responsibilities. https://www.mhc.tn.gov.in/judis 11/22 W.P(MD)No.7688 of 2017 Thus I hold that Mr.P.Arumugam has been negligent in his work, failed to follow the procedure, violated statutory requirement knowing well the implications, has sullied the reputation and image of the organization and the possible unlawful gain in exercising his statutory as the Chief Operating Officer."
7. The Appeal order shows that except charge Nos.3, 4 and 5, other charges were not proved. The Appellate Authority also found that charge No.4 involves the revenue loss of Rs.16,850/- to the petitioner and directed to recover this amount from the second respondent. Considering the fact that the second respondent had been working with the petitioner for more than 34 years and the proved charges do not require the punishment of dismissal, the dismissal order was set aside. Challenging this order, the petitioner alone filed this Writ Petition. The second respondent has not challenged the confirmation of the findings that three charges had been proved against him. Thus, the position is that there is no challenge to three charges proved against the second respondent. These three charges and other charges are also very vague in nature and there are no specific allegations of corruption, misappropriation or any other grave charge. 13 charges are kind of omnibus charges. These 13 charges are just the narration of acts https://www.mhc.tn.gov.in/judis 12/22 W.P(MD)No.7688 of 2017 and omission constituting misconduct as per the standing order of the petitioner. The Enquiry report lacks in detail with regard to the documents relied on, for the purpose of giving its conclusion.
8. Now, the point to be considered is whether the proved three charges deserve to be inflicted with the punishment of dismissal or the punishment of dismissal is disproportionate to the proved charges.
9. For easy understanding, the proved three charges, namely, charge Nos.3, 4 and 5 are extracted in vernacular language as follows:-
"3. jhq;fs; Jizr;brayhsh; bghWg;g[ tfpj;j fhyj;jpy; eilbgw;w g[jpa fl;ol ntiyfSf;F xnu eghplk; btt;ntW bgah;fspy; 3 tpiyg;g[s;spfs; bgw;wjhfj; jzpf;if mwpf;ifapy; Rl;of;fhl;lg;gl;Ls;sJ. nkYk; Kiwahd vGj;J g{h;tkhd kjpg;gPL kw;Wk; xg;ge;jk; nghd;w tpguq;fs; bgwg;gltpy;iy. ,jpy; ve;j tHpKiwa[k; gpd;gw;wg;gltpy;iy. cjhuzkhf jw;rkak; fhe;jpfpuhkj;jpy; fl;lg;gl;L tUk; berthsh; FoapUg;g[ld; Toa tpw;gid mq;fho tshfj;jijf; Twyhk;.
4. nkYk; fl;olq;fs; fl;lg;gLk; nghJ jz;zPh; trjpf;fhf ntz;o kpd;rhuj;ij Kiwnflhf gad;gLj;jpajhy; jkpH;ehL kpd;rhu thhpak; ,uz;L Kiw mguhjk; tpjpj;Js;sJ.
https://www.mhc.tn.gov.in/judis 13/22 W.P(MD)No.7688 of 2017 Kjy; Kiwahf fhe;jpfpuhkk; mq;fho fl;lg;gLk; nghJ kpd;rhuj;ij jtwhfg; gad;gLj;jpaikf;fhf ehs; 17.02.2013 md;W &.10>539/- mguhjk; tpjpf;fg;gl;lJ. mLj;J fhe;jpfpuhkj;jpy; fl;lg;gl;L tUk; berthsh; FoapUg;g[f;F kPz;Lk; kpd;rhuj;ij jtwhfg; gad;gLj;jpaikf;F 21.05.2013 md;W &.6,311/- mguhjk; tpjpf;fg;gl;Ls;sJ. ,t;thW kpd;rhu thhpak; mguhjk; tpjpj;jJ %yk; fjh; mwf;fl;lisf;F cq;fshy; ,Hg;g[ Vw;gl;Ls;sJ. nkw;fz;l ,Hg;gpw;F ePq;fns bghWg;g[ ,J brayhshpd; ftdj;jpw;Fk; bfhz;Ltug;gltpy;iy.
5. fl;lg;gl;L tUk; fl;olq;fSf;F Cuhl;rp kd;wj;jpy; Kiwahd xg;g[jy; kw;Wk; ,ju trjpfisg; bgWtjpy; eph;thfj;jpw;F Vw;gLk; ,lh;ghLfSf;F jhq;fs; jhd; bghWg;g[ Vw;f ntz;Lk;.
10. The gist of charge Nos.3, 4 and 5 in English are as follows:-
Charge No.3:-
It is mentioned in the Audit report that three quotations for the construction of a new building were received from a single person. No estimate or agreement was secured before awarding the contract.
Charge No.4:-
The Tamil Nadu Electricity Board imposed a penalty for two times for misusing the electricity. The https://www.mhc.tn.gov.in/judis 14/22 W.P(MD)No.7688 of 2017 penalty was Rs.10,539/- on 17.02.2013 and Rs.6,311/- on 21.05.2013. The second respondent was responsible for this payment of the penalty.
Charge No.5:-
No proper building approval was secured from the Panchayat Union for the construction of the building. The second respondent has to take responsibility for the issue relating to getting electricity service connection and water connection.
11. The discussion with regard to charge No.3 is that three quotations were received from a single source while constructing a colony for waivers. The quotations were mentioned in the ordinary computer paper. These three quotations were received in a single thapal. When asked about these allegations, the second respondent kept mum.
12. The discussion with regard to charge No.4 is that while construction work was being carried out, no temporary connection/permission was obtained from the Tamil Nadu Electricity Board. TNEB squad, in a surprise check, found misuse of electricity and slashed the penalty as aforesaid. The explanation of the second respondent is that for constructing two buildings, a sum of https://www.mhc.tn.gov.in/judis 15/22 W.P(MD)No.7688 of 2017 Rs.9,000/- each should be paid for Electricity service connection, once in three months. The construction was carried out for nine months. A sum of Rs.54,000/- ought to have been paid under the normal course, but only a sum of Rs.16,850/- was paid and therefore, there is no loss to the Trust and it only resulted in savings. However, the Enquiry Officer found that violation of Rules and paying a penalty cannot be justified.
13. For charge No.5, it was the submission of the second respondent that he informed the Panchayat President about the construction. However, it was found that the construction was carried out without proper approval from the Government authorities. Thus we found that only three charges were held proved by the Appellate Authority and the remaining charges were held to be not proved.
14. Of the above said three proved charges, charge Nos.4 and 5 are violations of rules. One is a violation of Electricity service connection rules at the time of construction of a new building. Instead of obtaining a temporary electricity service connection for the purpose of construction, it appears that electricity was taken https://www.mhc.tn.gov.in/judis 16/22 W.P(MD)No.7688 of 2017 from the existing electricity service connection and used for construction purposes. That resulted in the payment of Rs.16,850/-. Charge No.5 is with reference to the construction of the buildings without prior approval. However, it is also seen from the report that the approval was obtained after the completion of the work. These two charges involved only a violation of procedure.
15. The one charge which involves the construction of a building without following proper procedure is that three quotations were received in a single thapal. The quotations were not in a letterhead but in a computer-generated paper. Thus, the Enquiry Officer concluded stating that the possibility of unlawful gain to the second respondent cannot be ruled out. However, in support of this conclusion, there is no evidence produced before the Authority. It is not disputed by the second respondent that three quotations were received in a single thapal. However, there is no evidence to suggest or prove that the second respondent was the person having the authority to shortlist the candidate and award the contract for the construction of the new building. It is submitted that the decision to award a contract to the particular contractor was taken by the committee and was not the individual decision taken by the second respondent. Therefore, in the absence of any conclusive evidence to suggest that the second respondent made illegal gain because of https://www.mhc.tn.gov.in/judis 17/22 W.P(MD)No.7688 of 2017 the receipt of three quotations in a single thapal, we cannot jump to the conclusion that the second respondent gained illegally. But one undisputed fact is that three quotations were received in a single thapal and the construction contract was awarded to one of the persons who gave the quotation. In this case, most probably, to the only one person who generated these three quotations. This is certainly a misconduct paving the way for illegality and corruption.
16. As already stated, when there is no concrete evidence to show that there was legal gain to the second respondent, we cannot punish him for criminal misappropriation or obtaining illegal gratification, but certainly he deserves to be punished for entertaining three quotations in a single thapal and paving way for selection of one person, who generated three quotations and sending in one thapal. There is also no allegation or evidence that the construction was poor and that it was not worthy of estimated amount. The Enquiry Report shows that no exhibits had been marked in the enquiry. Only one witness was examined and the enquiry report was given. The second respondent was holding a responsible position in the petitioner Trust. He was expected to https://www.mhc.tn.gov.in/judis 18/22 W.P(MD)No.7688 of 2017 follow the Rules and Regulations not only in the petitioner Trust but also the other Departments as well. It is proved that he was responsible for receiving three quotations in a single thapal and awarding a building contract to a person; without obtaining temporary electricity connection for the construction used electricity from existing connection leading to a violation of the Tamil Nadu Electricity Power Rules and payment of a penalty; that constructed two buildings without obtaining proper plan approval. These misconducts certainly deserve to be imposed with punishment.
17. When it comes to what is the quantum of punishment, this Court is of the considered view that the dismissal from service is an excessive and disproportionate punishment to the misconduct proved. However, letting the second respondent off with an order to recover a sum of Rs.16,850/- alone is also not commensurate with the proved charges.
18. Considering the nature of the charges proved, this Court confirms the order of the Appellate Authority with regard to setting aside the order of the dismissal, but further orders the petitioner Trust to reinstate the second respondent with a punishment of stoppage of two annual increments with cumulative effect. If he has https://www.mhc.tn.gov.in/judis 19/22 W.P(MD)No.7688 of 2017 already retired from service, the stoppage of two annual increments with cumulative effect will be given effect to and the monetary and other benefits may be paid accordingly.
19. In the result, "This Writ Petition is partly allowed by confirming the order of the Appellate Authority with regard to setting aside the order of the dismissal, but further orders the petitioner Trust to reinstate the second respondent with a punishment of stoppage of two annual increments with cumulative effect. If he has already retired from service, the stoppage of two annual increments with cumulative effect will be given effect to and the monetary and other benefits may be paid accordingly. The said exercise shall be completed within a period of three months from the date of receipt of a copy of this order." There shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.