COMMON ORDER Though, there are two individual writ petitions filed by the two petitioners, the issues, allegations and the transactions involved are one and the same. Thus, both the writ petitions are disposed of by way of a common order.
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2. At the outset, it may be relevant to state that the facts are identical except for the following dates viz., S.No Name of the Petitioners Suspension Period Non-duty Period 1 Mr.R.Anandan (in 13.05.1989 to 29.10.1991 30.10.1991 to W.P.No.7148 of 2010) and 01.04.2008 to 12.02.2008 03.02.2010 2 Mr.N.Vannisamy (in 13.05.1989 to 29.10.1991 31.10.1991 to W.P.No.7149 of 2010) and 14.02.2008 03.04.2008 to 03.02.2010
3. The petitioners joined the service of the Respondent Corporation as Shift Engineers, thereafter they were promoted to the post of Assistant Engineer (Mechanical) in-charge of the Modern Rice Mill, Adavathur. Whileso, the petitioners were suspended from service on 25.04.1989 and was thereafter issued a Charge Memo dated 28.07.1989, wherein 3 charges were framed against the petitioners. The crux of the charges being that the petitioners along with 5 others had prepared bogus acknowledgments and false entries had been made to show that raw paddy was dispatched from Trichy to MRM, Adavathur and fed into silo at Adavathur on 17.04.2018, although no raw paddy was dispatched/ received on the said date. In respect of the very same facts, a Criminal Case was lodged which ultimately ended in acquittal of the petitioners and 5 others by the Principal Sessions Judge, 3/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 Trichy vide order dated 22.06.1995 in Criminal Appeal Nos.125 and 133 of 1993.
4. The petitioners responded to the Charge Memo by submitting their explanations. However, orders of dismissal was passed vide order dated 29.10.1991 by the Managing Director of the Respondent Corporation. Aggrieved by the same, the petitioners filed a suit before the Additional District Munsiff, Trichy, which was decreed in favour of the petitioners. The matter was carried by way of an appeal and the First Appellate Court reversed the order of the trial Court.
5. Being aggrieved by the order of the First Appellate Court, petitioners filed a Second Appeal before this Court in S.A.642 of 1998. The above Second appeal came to be disposed of by this Court after finding that the authorities of the Respondent Corporation had not complied with the procedure/ mandate contained in Para 4 of the Tamil Nadu Civil Supplies Corporation Employees Service Regulations, 1989 (hereinafter referred as "Regulation") and thus the Respondents were directed to reinstate the 4/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 petitioners while granting liberty to the Respondent Corporation to conduct enquiry in accordance with the procedure set-out in the Regulations. It was found by this Court in S.A.No.642 of 1998 that no regular enquiry was conducted though a major penalty was imposed against the petitioners. In particular, Para 4 of the Regulation which contemplates examining of witnesses during enquiry and granting opportunity to cross examine the witnesses was not complied with. The learned Judge recorded that no witnesses were examined nor any document was marked as an exhibit. It appears that despite the directions of this Court in S.A.No.642 of 1998, the Respondent Corporation had failed to comply with the directions. It may therefore be relevant to extract the relevant portions of the said order:
“ 15. A mere perusal of paragraph Nos.3 and 4 of the Regulations, would demonstrate that during departmental enquiry, the witnesses should be examined in the presence of the delinquent official after furnishing necessary documents to him. Above all, due opportunity should be given to the delinquent official to cross-examine the witnesses. In this case, the perusal of Ex.A.24 would show that no such procedure had been followed in accordance with the aforesaid regulation. Surprisingly, no witness was examined during 5/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 enquiry in the presence of the delinquent official despite as per Ex.A.24 itself, the plaintiff expressed his grievance that witnesses were not examined in his presence and that documents were not furnished to him. Ex.A.29 dated 20.06.1991 report submitted by the Enquiry Officer to the Chairman cum Managing Director, T.N.C.S.C Ltd., the defendant Corporation, in now way, would highlight that regular departmental enquiry was conducted.
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18. During arguments, nothing has been highlighted as to how the alleged enquiry could be termed as one in accordance with the said regulation or in accordance with the basic principles of natural justice.
19. It is an admitted fact that earlier the charge sheet referred to minor penalty proceedings and that after emergence of Ex.A.24, the relevant provision was altered so as to proceed as against him for imposing major penalty as against the plaintiff. Thereafter also, no regular enquiry was conducted.
20. Truism, as it is, to state that for minor penalty as per paragraph No.3, no detailed enquiry is required. But, here admittedly, major penalty was imposed and in such a case, the authority concerned should have necessarily adhered to 6/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 paragraph No.4 of the said regulation which contemplates examining of witnesses during enquiry and due opportunity ought to have been given for cross- examining the witnesses. But, in this case, admittedly no witness at all was examined and no document was also exhibited.
22. The perusal of the aforesaid decisions would show that the failure to give opportunity to the delinquent official to cross-examine the witnesses in departmental proceedings would be fatal. But, here, the witnesses were not examined at all in the presence of the delinquent official namely the plaintiff and in such a case, the termination order suffers from legal infirmities.
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27. In the result, the second appeal is allowed, setting aside thejudgment and decree dated 30.09.1997 in A.S.No.33 of 1997 on the file of the learned II Additional District Judge, Trichirappalli and the judgment and decree dated 31.10.1996 in O.S.No.2577 of 1991 on the file of the learned III Additional District Munsif, Trichirappalli is confirmed. However, in the facts and circumstances of the case, there is no order as to costs. I make it clear that the defendants shall reinstate the plaintiff immediately and it is open for the defendants to conduct regular enquiry in accordance with the 7/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 procedures referred to above. At the conclusion of the departmental enquiry, the plaintiff's entitlement to his salary and / or his right to other entitlements, would be determined finally by the authority concerned.” (emphasis supplied)
6. Pursuant to the above orders of this Court, an enquiry officer was appointed to conduct domestic enquiry. Thereafter, Memos dated 07.10.2008 were issued enclosing copy of the enquiry report dated 04.08.2008. The petitioners were called upon to offer their explanation to the enquiry officer's report. A perusal of the enquiry officer's report would reveal the following:
a) Reliance was sought to be placed on the alleged statements of P.Durairaj, owner of the lorry No. MDJ 2086 and Ramdoss, owner of lorry No. PNS 6417 wherein it has been stated by them in the criminal proceedings that on 17.04.1989, they had not transported any paddy.
b) The statements of loadsmen were also relied upon to show that paddy was not received on 17.04.1989 in lorry Nos. MDJ 2086 and PNS 6417.
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7. The petitioners vide letter dated 10.11.2008 submitted their objections inter alia highlighting the following:
a) That the Respondent Corporation had not furnished the copies including acknowledgments which was relied upon in support of the charge despite the fact that the petitioners had requested for copies of the same as early as on 16.08.1989.
b) That the statements of the lorry owners given in the criminal proceedings ought not to be relied upon in the disciplinary proceedings inasmuch as even the criminal proceedings has ended in acquittal.
c) None of the loadsmen were examined in the presence of the petitioners.
d) The Specific direction by this Court in S.A.No.642 of 1998 to follow Regulation 4 was not complied.
8. The above enquiry culminated in order dated 06.04.2009 by the Managing Director of the Respondent Corporation whereby the charges 9/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 were confirmed. The submission of the petitioners that all the copies of the documents sought to be relied upon must be furnished, the witnesses must be examined in their presence and an opportunity to cross-examine must be granted and the contention that enquiry report traversed beyond the Charge Memo was not even examined. Instead the charges were confirmed on the basis of the statements of the Lorry Owners, Assistant Enquiry Inspector and Loadsmen to hold that the transaction were fictitious and the documents were bogus. On the basis of the above, it was held that the charges were proved and they were serious in nature and the period of suspension of the 1st petitioner from 13.05.1989 to 29.10.1991 and 01.04.2008 to 03.02.2010 and the 2nd petitioner from 13.05.1989 to 29.10.1991 and 03.04.2008 to 03.02.2009 was ordered to be treated as substantive punishment and the non-duty period from 30.10.1991 to 12.02.2008 and 31.10.1991 to 14.02.2008 in the case of 1st and 2nd petitioners respectively, were to be treated as "No Work - No Pay" and petitioners were restored into duty from suspension.
9. Aggrieved by the same, an appeal was preferred before the Board of 10/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 Directors, the petitioners raised the following grounds viz., a. That the impugned proceedings were made contrary to the directions in S.A.No.642 of 1998 and in gross disregard to Para 4 of the Regulation.
b. Relied upon documents has not been furnished to the petitioners nor has the witnesses whose statements was sought to be relied upon examined in the presence of the petitioners and an opportunity to cross- examine such witnesses granted despite the specific directions of this Court.
10. The appellate authority concluded that the charges were proved and confirmed the order of punishment of the suspension period from 13.05.1989 to 29.10.1991 & 01.04.2008 to 03.02.2010 and 13.05.1989 to 29.10.1991 & 03.04.2008 to 03.02.2010 respectively, was ordered to be treated as substantive punishment and the non-duty period from 30.10.1991 to 12.02.2008 and 31.10.1991 to 14.02.2008 respectively, were to be treated as "No Work - No Pay" without examining any of the above contentions.
11. The learned counsel for the petitioners submitted that no enquiry 11/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 in the eye of law took place in respect of the charges alleged against the petitioners inasmuch no witnesses were examined nor any documents marked. The proceedings were wholly contrary and in disregard to the procedure laid down in the Tamil Nadu Civil Supplies Corporation Employees Service Regulations, 1989.
12. To the contrary, it was submitted by the learned counsel for the Respondents that the enquiry was made in compliance with the procedures laid down in the TNCSC Employees Service Regulation, 1989. The petitioners were granted adequate opportunities to defend themselves and the entire proceedings were made in compliance with principles of natural justice and the order of the Respondents does not warrant interference.
13. Heard the learned counsel appearing on both sides and perused the entire materials available on record.
14. On a perusal of the impugned order it appears to me that it suffers from the following two infirmities viz., 12/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010
a) The impugned proceedings had been made without complying with the procedure contemplated in Regulation 4 which reads as under:
"4. Procedure to award major penalties:
(a) The competent authority as per Regulation 2, may either suo moto or on receipt of report as per explanation under that regulation or as indicated in Regulation 3 shall issue a memo recording the basis of charge, quoting the relevant rules or instructions omitted to be followed, the consequent result of such omission with specific charges suitably framed and the delinquent should be informed of the list of documents relied upon as the basis of charge, the list of witnesses whose versions also form the basis of charge, the list of witnesses whose version also form the basis of the charge. The delinquents should then be required to furnish the list of witnesses if any on his defence within a reasonable time failing which the presumption would be that he has no witnesses on his defence.
The competent authority to impose the Major Penalty thereon shall appoint an enquiry officer, immediately subordinate to him (punishing authority) to conduct an objective enquiry into the charges in the presence of the delinquent who should have been given due notice therefor. At the enquiry, the documents relied upon in the charge memo 13/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 should be made available to the delinquent for perusal. The delinquents may also be permitted to peruse any other record of the Corporation that are relevant to the charges, if he/she so desires. If for any reason such records, desired to be perused, are considered to be not relevant to the charges, the enquiry officer shall record so in his findings. So also the witnesses whose versions form the basis of the charges should be examined providing opportunity to the delinquent to cross- examine. Thereon the witnesses produced by the delinquent should be examined with due relevance to the charges. The delinquent may also be permitted to file his written statement.
The enquiry officer shall summarize the proceedings analyze the evidence put forth before him examine the written statement of the delinquent carefully and give his findings on the charges framed (charge by charge). It is not for the enquiry officer to recommend the quantum of punishment." A reading of the above Regulation would show that the following aspects ought to be complied viz.,
i) The delinquent should be informed the list of witnesses whose version forms the basis of the charge.
ii) The documents relied upon in the Charge Memo should be 14/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 made available to the delinquent for perusal.
iii) Witness whose version forms the basis should be examined and an opportunity must be granted to the delinquent to cross examine.
b) Secondly, the directions of this Court in Second Appeal No.642 of 1998, in particular, the following has not been complied viz.,
i) Witnesses should be examined in the presence of the delinquent after furnishing necessary documents to the petitioners.
ii) Opportunity to cross examine the witness.
15. This Court in S.A.No.642 of 1998 while remitting the matter had observed as under:
"20......But, in this case, admittedly no witness at all was examined and no document was also exhibited."
I am afraid the position has not improved in the impugned proceedings made pursuant to the order of this Court in S.A.No. 642 of 1998 inasmuch as neither any witness been examined nor any documents marked as exhibits. Since, the very same infirmities found in the earlier round of litigation in S.A.No.642 of 1998 continues to exist, I am of the view 15/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 that the impugned proceedings cannot be sustained.
16. Though, normally this Court would have remanded the matter back, however taking into account the facts that the petitioners are now about 68 years of age and it has been 3 decades since the alleged incident had occurred and there is a good possibility that the evidences may be lost or the facts have become obscure from the lapse of time or the defective memory or death, or removal of witnesses, I am not inclined to remand the matter.
17. In these circumstances, this Court is of the view that ends of justice would be met if the Respondents are directed to pay 50% of back wages along with 6% interest per annum from the date of suspension until his superannuation, after deducting the subsistence allowance, if any paid.
18. With the above directions, these writ petitions stand disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
29.06.2022 Speaking order : Yes/No 16/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 Index: Yes/No Psa MOHAMMED SHAFFIQ, J.
Psa To :
1.The Chairman, Tamil Nadu Civil Supplies Corporation Ltd., 42, Thambusamy Road, Kilpauk, Chennai-600 010.
2.The Managing Director, Tamil Nadu Civil Supplies Corporation Ltd, 42, Thambusamy Road, Kilpauk, Chennai-600 010.
Pre-Delivery Order in W.P. Nos.7148 and 7149 of 2010 17/18 https://www.mhc.tn.gov.in/judis W.P. Nos.7148 and 7149 of 2010 29.06.2022 18/18 https://www.mhc.tn.gov.in/judis