(Delivered by S.J.MUKHOPADHAYA,J.) The appeal has been preferred by the Tamil Nadu Housing Board/first respondent in the writ petition (hereinafter referred to as "Housing Board"), against the order dated 12.2.1998 passed by the learned single Judge, whereby, the writ petition preferred by the petitioner against the order of punishment of reduction to lowest rank was allowed.
2. As the case can be disposed of on a short point, it is not necessary to discuss all the facts, except the relevant one.
3. A departmental enquiry was initiated against the writ petitioner imputing three charges as follows:
"1. That he has tampered with the rate in item No.24 of tender of Thiru M.Subbiah with motive and malicious intention and has rewritten the quoted rate of Rs.10/- as "rupees nine" and thus favoured the tenderer in respect of the work of construction of 14 blocks of a storeyed 168 MIG flats at Ellis Nagar, Madurai.
2. That he has committed a serious irregularity involving malpractice and moral turpitude.
3. That by his malacious action, he has been disloyal and dishonest to the Board."
4. In the departmental proceedings, the enquiry officer held all the three charges proved against the writ petitioner. The learned single Judge, while dealing with the matter, noticed that there was no material on record to suggest that the petitioner had tampered the tender paper, but in the chart prepared by the petitioner, he has reduced the quotation of Rs.10/- to Rs.9/-, on the basis of the circumstantial evidence, the enquiry officer held the charges proved against the petitioner. Taking into consideration the relevant facts, the learned single Judge held that the punishment is disproportionate to the gravity of charges and set aside the order.
5. The learned counsel appearing on behalf of the Housing Board submitted that the enquiry was conducted after giving an opportunity to the delinquent. The learned single Judge ought to have dismissed the writ petition in the absence of any illegality, as, this Court under
Article 226 of the Constitution, cannot sit in appeal over the findings of the enquiry officer.
6. Per contra, according to the learned counsel for the writ petitioner, the Court should not interfere with the order passed by the learned single Judge, as otherwise, it would restore an illegal order of punishment. It is submitted that the enquiry was conducted in complete violation of the rules of natural justice. No list of documentary evidence was cited nor any list of witnesses was supplied either to the petitioner (charged employee) or to the enquiry officer. Even in the absence of those evidence, the enquiry officer, of his own, after perusal of some records, has given his findings.
7. In reply, the learned counsel for the Housing Board submitted that in the absence of any statutory rule, it is not necessary to supply any list of evidence or list of witnesses to the delinquent.
8. In view of the above submission, the learned counsel for the Housing Board was directed to produce the relevant original records with regard to the enquiry, including the list of evidence and witnesses, if any forwarded to the petitioner and the enquiry officer. On perusal of the records, the learned counsel for the Housing Board accepts that no such list of evidence or witnesses was forwarded either to the petitioner or to the enquiry officer.
9. Counsel for the Housing Board relied upon the decision of the Supreme Court in State Bank of Patiala v. S.K.Sharma [AIR 1996 SC 69] and submitted that the petitioner could have raised an objection during the enquiry. He has also relied upon the Supreme Court decision in U.P. State Road Transport Corporation v. Musai Ram [1999 (3) SCC 372]. However, according to us, none of the above cases are applicable to the present case.
10. In the case of State Bank of Patiala (supra), the Supreme Court noticed that copies of statement of two witnesses were not supplied to the delinquent officer. But, it was found that the said delinquent officer was permitted to peruse them and to take notes therefrom more than three days prior to their examination. No objection was raised by the delinquent and therefore, the Supreme Court observed that it cannot be said that he had no fair hearing or enquiry against him was not fair enquiry.
11. In the case of Musai Ram (supra), a bus conductor was proved guilty on the basis of two reports of Assistant Traffic Inspector (ATI), which, the delinquent did not controvert during the course of enquiry. Findings of the enquiry was questioned on the ground that the statement of passengers recorded by ATI was not taken into consideration. Such objection was held not sustainable because the delinquent himself has not cross examined ATI. However, the Court held that it was for the enquiry officer and not for the Court to decide whether charges could be proved on the basis of these reports.
12. So far as the present case is concerned, it is admitted that no list of documentary evidence or witness was cited nor communicated to the petitioner or the enquiry officer. In the absence of any such document, it is not clear as to how the enquiry officer could held the charges proved. It is settled law that the enquiry officer cannot take out a document to prove the charges levelled against the charged employee. The disciplinary authority is supposed to prove the charges against the charged employee on the basis of evidence either documentary or oral, of which, intimation is required to be given to the charged employee to prepare his defence effectively. Such evidence is also required to be communicated to the enquiry officer, in the absence of which, the enquiry officer cannot lay hand on any document to bring home the charges.
13. When similar case fell for consideration before a Division bench of this Court in V.Narayanan v. Deputy General Manager and others [W.A.No.392 of 2008 dated 18.11.2008], the Division Bench held as under:
"When an employee is facing a disciplinary proceeding, he is entitled to be afforded with a reasonable opportunity to meet the charges levelled against him n an effective manner. No one, facing departmental enquiry, can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, the delinquent cannot prepare his defence, cross-examine the witnesses and point out the inconsistencies with a view to show that the allegations are incredible. Whether or not refusal to supply copies of documents or statements has resulted in prejudice to the employee facing the departmental enquiry depends on the facts of each case."
14. In view of the above facts that the disciplinary authority has not cited any list of documentary evidence or witness, we are of the view that the enquiry officer had no jurisdiction to lay hand on any other document to bring home the charge and for that, the report cannot be upheld. Accordingly, we hold that the enquiry report and the order of punishment as illegal, and for the said reason, we are not inclined to interfere with the order passed by the learned single Judge.
Finding no merit, the writ appeal stands dismissed. No costs.
kpl To The Commissioner & Secretary to Government Department of Housing & Urban Development Madras 9