Heard both sides. The petitioner who was employed as an Accountant was dismissed from service by the first respondent by an order dated 05.7.1994. In view of the same, he filed an appeal under section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (for short 'TNSE Act') to the appellate authority (second respondent herein). His appeal was allowed by the appellate authority by an order dated 12.2.1996.
2. The first respondent UPASI directly went before the Supreme Court under
Article 136 of the Constitution and challenged the order of the second respondent. Civil Appeal No.1786 of 1997 was allowed by the Supreme Court on 06.3.1997 and the matter was remitted for fresh consideration by the second respondent. The judgment of the Supreme Court has been subsequently reported in (1997) 4 SCC 741 (United Planters Association of Southern India -vs- K.G.Sangameswaran. The direction given by the Supreme Court as found in paragraphs 28 and 29 is usefully reproduced below:-
''28. In the instant case, the appellant has contended that the respondent did not participate in the domestic enquiry in spite of an opportunity of hearing having been provided to him. He was also offered the inspection of the documents, but he did not avail of that opportunity. He himself invoked the jurisdiction of the Appellate Authority and the order of dismissal passed against him was set aside on the ground that the appellant did not hold any domestic enquiry. It has already been seen above that the Appellate Authority has full jurisdiction to record evidence to enable it to come to its own conclusion on the guilt of the employee concerned. Since the Appellate Authority has to come to its own conclusion on the basis of the evidence recorded by it, irrespective of the findings recorded in the domestic enquiry, the rule laid down in Ratna case19 will not strictly apply and the opportunity of hearing which is being provided to the respondent at the appellate stage will sufficiently meet his demands for a just and proper enquiry.
29. In view of the above, the appeal is allowed. The judgment and order dated 12-2-1996 passed by the Appellate Authority is set aside and the case is remanded back to the Appellate Authority to dispose of the appeal filed by the respondent under Section 41 of the Act afresh in accordance with law in the light of the observations made above. No costs".
3. On such remand, the appellate authority allowed the parties to lead evidence and mark documents. On behalf of the petitioner, he had examined himself as A.W.1 and on the side of the first respondent M/s.Ullas Menon and N.Palani were examined as M.W.1 and M.W.2. The petitioner filed 15 documents and were marked as Exs.A.1 to A.15 and on the side of the first respondent, 19 documents were filed and marked as Exs.B.1 to B.19. The second respondent appellate authority came to the conclusion that the misconducts levelled against the petitioner were proved and since the issue involves misappropriation, fabrication of records, he need not be shown any leniency and the punishment was commensurate with gravity of charges.
4. It is this order of the appellate authority dated 08.5.1998, which is the subject matter of challenge in the present writ petition. The writ petition was admitted on 22.4.1999.
5. Mr.Ajoy Khose, learned counsel for the petitioner in attacking the impugned order raised the following grounds:-
a)The petitioner was not paid subsistence allowance and, therefore, the enquiry was vitiated.
b)Even though the first respondent was given an opportunity to lead fresh evidence, excepting the auditor's report, no other evidence was produced by them.
c)From the materials produced, one cannot say whether the charges have been proved or not.
d)The authority failed to consider the evidence in respect of each charge.
e)The findings are based upon surmises and conjectures;
f)Since there was no collusion or fraud and at the maximum, his conduct could be labelled as negligence and, therefore, the punishment of dismissal was disproportionate.
6. In respect of these submissions, the learned counsel placed reliance upon the judgment of the Supreme Court in Union of India -vs- H.C.Goel reported in AIR 1964 SC 364 and relied upon the following passage found in para 27:-
''Para 27. ..... .... Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules".
7. On the question of non-examination of the complainant, the learned counsel placed reliance upon the decision of the Supreme Court in Hardwari Lal -vs- State of U.P. And others reported in (1999) 8 SCC 582 and the following passage found in paragraphs 2 and 3 may be usefully reproduced below :-
''Para 2 . .... ... ...Similarly, the contention regarding non-examination of Virender Singh, who was the complainant in the case, and witness, Jagdish Ram, who was supposed to have witnessed the incident, was also rejected by the Tribunal on the basis that the examination of Virender Singh was only formal to prove the report dated 17-7-1991 and no prejudice has been caused to the defence of the appellant. According to the Tribunal, evidence of Jagdish Ram also was not important because he had merely accompanied him for the purpose of medical examination. The High Court affirmed this finding and ultimately concluded that apart from the evidence of these two witnesses there was sufficient material on record to establish the fact that the incident took place and thus there was no ground to interfere with the order made by the Tribunal and dismissed the writ petition. Hence this appeal.
Para 3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and the witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant."
8. The learned counsel also submitted that the Auditors were not examined and the first respondent had withheld the examination of crucial witnesses. According to him, this will vitiate the enquiry. For this purpose, he relied upon the Division Bench judgment of this Court in Parry & Co. Ltd. -vs- Deputy Commissioner of Labour and another reported in (1996) I LLJ 169. The following passage found in para 8 may be usefully reproduced below:-
''Para 8. ...... .... 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 material evidence on record."
9. The argument advanced by the learned counsel regarding the enquiry being vitiated on account of non-payment of subsistence allowance has no relevance to the present case. The matter has been remanded by the Supreme Court and parties were allowed to lead evidence afresh before the authority and, therefore, such issues cannot be raised during the second round of litigation. With reference to the contention that crucial witnesses were withheld, there is no substance in the said contention. It is for the employer to lead evidence to the satisfaction of the authority. Accordingly, the first respondent had let in evidence by examining the Financial Controller Mr.Ullas Menon (M.W.1) as well as one Assistant Chemist Mr.N.Palani (M.W.2). N.Palani, M.W.2 clearly deposed about the signature in the cheque presented for T.A.claim was not that of his and he never received any second payment. The Financial Controller Ullas Menon, M.W.1 has clearly stated in his chief examination, which is as follows:-
'' Ex.B7 is the list of double payments made by UPASI. It contains 26 different cases, the exact amount is found in the Auditor's report. To cite an example, travelling bill submitted by Thiru A.D.Chandrashekar, Ex.Committee member for a sum of Rs.10825/- was encashed by the appellant after signing for Mr.Chandrashekar and for Sangameswaran himself. Subsequently, another cheque was given for the same amount which was encashed by Mr.Chandrashekaran himself. Thereafter similar 25 other cases which are noted in Ex.B6 series. All the supporting documents are seen in Ex.B.7 series and the appellant has made some fictitious payments for which there is no supporting documents. Ex.B.8 contains 23 such cases. To cite an example, an amount of Rs.6346.50 was given to one Mr.K.Raju by cheque to whom we did not owe any amount and the same was encashed by the appellant signing as Raju. Thiru ... was an ex-employee of UPASI. We used to maintain account in Syndicate Bank, Coonoor. We have deposited a large amount with the Syndicate Bank in connection with the Centenary Foundation. The appellant pledging deposit which was in the name of UPASI had taken loans which he was not authorised. The ex.Committee alone had the power to deposit and withdrawals. The details of unauthorised loans taken by the appellant is shown in Ex.B.9. As we are exempted establishment under the EPF Act, we were to deposit the amount in a separate account and as per Government regulations. No such investments were made and the appellant used to file false returns and he himself signed for the Secretary General. Ex.B.10 is a copy of such return filed by the appellant. On account of P.F. UPASI had to pay an amount of Rs.36 lakhs when the matter was disclosed. In view of the seriousness of the matter members have shared the burden. Appellant permitted M/s.Sivaram to maintain accounts in UPASI which was totally improper. M/s.Sivaram was the wife of the then Secretary General. The appellant was responsible for all the falsification of accounts which came around Rs.80 lakhs. The details are found in the Auditor's report. In view of the serious lapses the appellant was dismissed on 05.7.1994."
10. Though the petitioner had cross-examined M.W.1 extensively, he could not elicit any favourable admission.
11. Apart from the positive evidence let in against the petitioner, the petitioner himself had given a confessional statement marked as Ex.B.12. In that statement, dated 20.7.1993, he had listed out the list of commissions and omissions done by him. He also gave an affidavit of undertaking undertaking to pay a sum of Rs.14,88,000/-. The said affidavit of undertaking was signed before a notary public. Though he later claimed that the same was obtained under duress, there was no evidence to establish the same. He had also not explained the circumstances under which he gave a cheque for Rs.50,000/- in favour of UPASI towards part payment of his liability.
12. In the light of all these, it cannot be said that it is a case of no evidence. The authority was satisfied about the nature of evidence let in before it and considering the gravity of the charges, he had declined to interfere with the quantum of punishment.
13. In view of the above, there is no case made out to interfere with the order of the appellate authority and accordingly, the writ petition will stand dismissed. However, there will be no order as to costs.
js To
1.The President, United Planters Association of Southern India, Coonoor-643 101.
2.The Appellate Authority under the Tamil Nadu Shops and Establishments Act, (Deputy Commissioner of Labour), Coimbatore 641 018