This second appeal is focussed as against the judgment and decree dated 30.09.1997 in A.S.No.33 of 1997 on the file of the learned II Additional District Judge, Trichy, reversing 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, Trichy.
2. Previously this court vide Judgment dated 06.06.2007 in S.A.No.1010 of 1998 relating to the appellant therein viz., L.Joseph Stalin, who is the employee of the Tamil Nadu Civil Supplies Corporation Limited, passed Judgment. The fact remains that the first appellate Court by its common Judgment dated 30.09.1997 disposed of five appeals filed by five employees of the said Corporation and as against which alone the earlier S.A.No.1010 of 1998 was filed, which was disposed of by the Judgment dated 06.06.2007 of this Court. This present second appeal has arisen out of the same common Judgment relating to one of the appeal suits, to wit A.S.No.33 of 1997 on the file of the learned II Additional District Judge, Trichy.
3. The learned counsel for the appellant would submit that the case of the appellant herein cannot be carved out from the case of the said appellant, viz., L.Joseph Stalin, whose case was decided as per the Judgment of Court dated 06.06.2007 in S.A.No.1010 of 1998 and accordingly he prays for passing a similar Judgment in this appeal also by this Court, whereas the learned counsel for the respondents would submit that this case is some what different from the earlier case relating to the said appellant viz., L.Joseph Stalin as in this case the appellant was given opportunity twice, but still he did not make use of it in perusing the documents.
4. The perusal of the records including the Judgment of the first appellate Court would reveal that absolutely the present appeal is not in any way different from the previous appeal filed by the said appellant viz., L.Joseph Stalin. Accordingly, I proceed to decide the matter.
5. The nitty-gritty, the gist and kernel of the case of the plaintiff as stood exposited from the plaint is to the effect that while he was working as Shift Engineer under the defendants organisation, he was falsely implicated and charge-sheeted relating to some alleged deficit in the paddy. Without conducting any departmental enquiry, as per the departmental rules governing enquiries, the plaintiff was terminated from service. The plaintiff therefore filed the suit in the District Munsif Court, Trichirappalli, seeking the reliefs as under:
"a) declaring that the order of dismissal vide proceeding issued under No.G3/56203/89, dt:29.10.1991 by the 2nd defendant as ultravires, illegal and avoid and consequentially restraining the defendants from enforcing the same in any manner whatsoever;
b) awarding the costs of the suit; and
c) passing such other and further reliefs as the Hon'ble Court may deed fit and proper in the circumstances of the case and thus render justice."
6. Per contra, gainsaying and challenging the averments/allegations in the plaint, the defendants filed the written statement to the effect that the plaintiff along with others indulged in misconduct of stiffening the paddy of the Tamil Nadu Civil Supplies Corporation Limited; proper enquiry was conducted and due opportunity was given to the plaintiff to peruse the documents and that the prayer of the plaintiff was untenable and accordingly, the defendants prayed for dismissal of the suit.
7. The trial Court decreed the suit. But, the first appellate Court reversed it.
8. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the plaintiff has filed this second appeal on the following main grounds among others:
The first appellate Court failed to take into consideration the fact of witnesses having been not examined in the presence of the plaintiff and that no departmental enquiry at all was conducted as per the Service Rules and the principles of natural justice.
9. Based on the above, the following substantial question of law was framed by my learned Predecessor at the time of admitting this second appeal: "Whether the observation of the learned Appellate Judge that the finding given in Criminal appeal Nos.125 and 123 of 1989 dated 22.2.95 does not bind the civil Court even the subject matter is related to the dismissal of an employee of the respondent Corporation, the basis of which was held not proved in the above said criminal appeal?"
10. Heard both sides in entirety.
11. Advancing the arguments on the side of the appellant, the learned Counsel would stress upon the fact that no enquiry was conducted in accordance with law and as per the Service Rules. He would also correctly highlight that the first appellate Court wrongly understood Ex.A.24 as though it was a proper enquiry report, even though it was crystal clear from the bare reading of it, that it was only a mere recording of what the plaintiff had stated before the enquiry officer.
12. Per contra, the learned Counsel for the respondents would contend that as revealed by Ex.A.24, the plaintiff himself appeared before the Enquiry Officer and clearly and categorically without mincing words expressed his stand that he was having no evidence to put forth before the Court and that in view of his own submissions, the Enquiry Officer submitted his report to his Managing Director who passed the termination order.
13. The learned Counsel for the respondents also by placing reliance on Ex.B.1, would submit that the plaintiff was called upon to peruse the documents which were in the criminal Court at that time. Ex.B.15, would demonstrate that on the particular date of proposed inspection, the Court Clerk concerned was on leave and hence, the inspection of documents was postponed. There is nothing to show that thereafter any opportunity was given to the plaintiff for perusing the documents and records.
14. Obviously and apparently, palpably and ex facie, it is clear that the defendants authority imposed the major penalty of termination and in such a case, the authority ought to have adhering to paragraph No.4 of the Tamil Nadu Civil Supplies Corporation Ltd., Employees-Service Regulations, 1989, should have conducted enquiry. It is just and necessary to extract hereunder the relevant service rules governing the departmental enquiry relating to minor penalty as well as the major penalty as found set out in the Tamil Nadu Civil Supplies Corporation Ltd., Employees-Service Regulations, 1989. Paragraph Nos.3 and 4 of the said Regulations are extracted hereunder for ready reference: "3.PROCEDURE TO IMPOSE MINOR PENALTIES:
The competent authority to impose the penalties as per regulation 2 may, either suo moto or on receipt of report as per explanation under that regulation either cause further enquiry or impose the penalty fair and just to meet the ends of justice, satisfying himself that the delinquent was given a reasonable opportunity to defend himself against the charges. If the authority is of view that the gravity of the charges is serious enough to warrant a major penalty, then he should initiate actioin as per Regulation 4 infra. Every Charge Memo indicated under the Explanation in Regulation 2 or otherwise shall contain in detail the basis of the charge quoting the relevant Rules or instructions failed to be followed or the specific default committed. Besides, the default should be in the form of specific charge or charges and the delinquent should be given reasonable time and opportunity to offer his explanation against the charges. The explanation, if received in time, and presuming that there is no explanation if no such explanation is forthcoming within the time stipulated should be carefully analysed to meet all the points raised therein to come an objective decision whether the charges could be held as proved. There shall be separate analysis against each and every charge. After taking a decision on the charges, as held proved or not proved, the punishing authority should consider the gravity of the charges that were held proved and then decide the quantum of punishment not more than minor punishment deemed fit to meet the ends of justice. The order shall conclude indicating the time for appeal to the appellate authority as specified in Regulation 8 below.
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 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 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 summarise the proceedings analyse 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. On receipt of the findings report of the enquiry officer, the competent authority to impose the penalty shall forward a copy of the findings report to the delinquent requiring him to file his further explanation within a reasonable time (to be specified). The further explanation, if received in time, shall be examined in detail with reference to every point raised therein and after perusing the entire records including the record of enquiry the analysis of evidence and the findings of the enquiry officer. The authority competent to impose the penalty shall decide whether each and every charge could be held proved or otherwise.
After taking such a decision, the competent authority shall examine the gravity of the charges held as proved and decide on the quantum of punishment commensurate with the gravity of charges to meet the ends of justice. The order shall conclude indicating the time allowed for appeal to the appellate authority as specified in Regulation 8 below:
It is not necessary that following the procedure to impose a major punishment should end in inflicting a major punishment. Ends of justice may be met even with by minor punishments deserving cases depending upon the gravity of the proved charges (But to inflict a major punishment after following the procedure in Regulation 3 will not be sustainable.)
(b) In cases where a delinquent was kept under suspension, and ultimately removed, dismissed or compulsorily retired from service, the punishment order shall specifically add in the order to treat the period of suspension as one of substantive punishment (in addition to the punishment of removal, dismissal or compulsorily retirement) since no order of removal, dismissal or compulsorily retirement, shall have retrospective effect. The punishment could even be mere treating the period spent on suspension or a part thereof as a substantive penalty treating the remaining period as duty.
(c) If on the other hand the competent authority chooses to inflict any other penalty (ie., other than removal, dismissal, compulsory retirement or period of suspension as substantial punishment) or totally exonerate the delinquent the period spent on suspension shall be treated as duty. Note: Part of the period of suspension can be treated as one of suspension as sustansion as substantive penalty and remaining as one spent on duty."
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 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.
16. The distinction between the fact finding enquiry and regular enquiry was not borne in mind by the Enquiry Officer or by the authority who passed the termination order.
17. The cardinal principle of natural justice 'audi alteram partem' as found embodied in the Regulations, was thrown to winds shockingly. Pithily and precisely, I may observe that the alleged enquiry claimed to have been conducted turned out to be an ill-wind that blew no one any good, as it has to be taken as non-est in the eye of law.
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 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.
21. The learned Counsel for the appellant also cited the following decisions:
(i) Premier Auto Mobiles v. K.S.Wadke reported in AIR 1975 SUPREME COURT 2238.
(ii) Madurai District Co-operative Supply and Marketing Society Ltd., A. No.1437 by its Special Officer v. S.Sankaranarayanan reported in 1981 T.L.N.J
529.
(iii) Virudhunagar Sarvodaya Sangh having its Office at E.29, Railway Feeder Road, Virudhunagar represented by its Secretary v. S.Sathiyathinakaran reported in 1995 T.L.N.J 37.
(iv) State of U.P v. Mohd., Sharif reported in AIR 1982 SUPREME COURT 937.
(v)Ambalam Sakthivel Thever v. Secretary Co.Op. Agricultural Credit Society reported in 1991 (1) L.W 402.
(vi) The Board of Trustees of the Port of Bombay v. Dilipkumar reported in AIR 1983 SUPREME COURT 109.
(vii) Indian Airlines Corporation, etc & another v. N.Sundaram reported in 1993-1-L.W-44.
(viii) Uma.B v. The Superintending Engineer, etc., reported in 1991(1) L.W. 43.
(ix) Correya v. Deputy M.D. Indian Airlines reported in 1977 (1) MLJ 364.
(x) Erajan, P. v. The Deputy Inspector General of Police reported in 2005 (4) CTC 202.
(xi) Cheran Transport Corpn. v. G.Balasubramaniam reported in 1999 (III) CTC 500.
(xii) English Electric Company v. The Presiding Officer reported in 1975 MLJ 88.
(xiii) Murugan Mills Ltd., v. Industrial Tribunal reported in 1966 (1) MLJ 9 SC.
(xiv) Andhra Scientific Co v. Seshagiri Rao reported in AIR 1967 SUPREME COURT 408.
(xv) Ram Kumar v. State of Haryana reported in AIR 1987 SUPREME COURT 2043.
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.
23. My discussions above are in commensurate with the decisions cited supra and I am of the view that for canvassing the plaintiff's palpable and clear case, no precedent at all need be cited.
24. The learned Counsel for the respondents would put forth the argument to the effect that there are in-built safe guards to prefer appeal from the order of the termination, but the plaintiff without resorting to such procedure simply filed the suit and that the civil Court had no jurisdiction at all. At the first blesh, such an argument of the learned Counsel for the respondents might be attractive, but a deep scrutiny of such a plea would expose as to how it amounts to let loosing red herrings so as to side track the main approach to the lis at hand.
25. My above discussion would evince and evidence, express and expatiate that authorities did not comply with the paragraph No.4 of the Regulation at all and in such a case, it amounts to not conducting enquiry. Had enquiry been conducted in accordance with the rules contemplated under paragraph No.4 of the said regulations and despite that, if the plaintiff had any grievance, then in that case, he ought to have simply preferred the appeal and in such an event, he would be having no right to approach the civil Court. But, here, in this case, paragraph No.4 of the said Regulations, was not at all adhered to and throwing to winds those provisions, simply the authority passed the order of termination. Hence, in such a case, Section 9 of the Code of Civil Procedure would be attracted and the plaintiff had the right to approach the Civil Court which he correctly resorted to.
26. The ratiocination set out supra would render the judgment of the first appellate Court, nugatory. The perusal of the judgment and decree of the first appellate Court would show that without considering the facts in detail, the first appellate Court reversed the judgment of the trial Court and hence, the judgment and decree of the first appellate Court is liable to be set aside and the judgment and decree of the trial Court shall stand revived.
27. In the result, the second appeal is allowed, setting aside the judgment 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 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.
28. The learned Counsel for the appellant would air the grievance of the appellant to the effect that he had been made to suffer all along without any salary and that at least, some amount may be ordered to be paid by the employer to him as arrears of salary or under any caption. In view of the fact that this second appeal has been disposed of by finding fault with technical irregularities committed by the defendants in conducting the enquiry and that further enquiry is possible in this case, I do not incline to award any amount by way of arrears or under any other caption. However, the plaintiff if at all Service Rules permits could apply to the defendants for interim reliefs and the same shall be considered by the defendants if the Service Rules permits so. If no such further enquiry is resorted to by the defendants, it is open for the plaintiff to take appropriate steps to claim necessary reliefs for he having been terminated without any enquiry, irrespective of any law of limitation in this regard.
smn To
1. The II Additional District Judge, Trichirappalli.
2. The III Additional District Munsif, Trichirappalli.