1 IN THE HIGH COURT OF JUDICATURE AT MADRAS CAV ON:08.01.2013 DATED:15/ 04 /2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.1040 of 2002 P.Karunakaran ... Petitioner Vs. 1.The Chairman and Managing Director, Tamil Nadu Civil Supplies Corporation Ltd., 42, Thambusamy Road, Kilpauk. Chennai – 600 010. 2.The General Manager, (Administration), Tamil Nadu Civil Supplies Corporation Ltd., 42, Thambusamy Road, Kilpauk. Chennai – 600 010. ... Respondents 2 PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to call for all the records and connected papers in connection with the impugned proceedings of the 2nd Respondent herein bearing his Proceedings No.G5/72739/99 dated 02.11.2000 which has been confirmed by the 1st Respondent in his Proceedings No.G9/16962/2001, dated 24.10.2001 by the issue of a Writ, Order or Direction, more particularly a Writ, in the nature of Writ of Certiorari and quash the impugned proceedings of the 2nd Respondent bearing No.G5/72739/99 dated 02.11.2000 and also the Proceedings of the 1st Respondent on appeal in his Proceedings No.G9/16962/2001 dated 24.10.2001. For Petitioners : Mr.S.Kumaraswamy For Respondents : Mr.V.Selvanayagam for R1 and R2 - - - O R D E R The petitioner submits that he joined the services of the Tamil Nadu Civil Supplies Corporation Limited, as Bill Clerk on 01.11.1973 in Salem Region. Thereafter, he was promoted as Junior Assistant on 01.02.1975. He was transferred to Dharmapuri Region in the year 1978. He was promoted as Assistant on 21.11.1980. He became Superintendent on 09.10.1985. He was given Selection Grade on 09.10.1995. He is now working as Selection Grade Superintendent in Dharmapuri Region. 2. The petitioner further submits that in the year 1998 and he was 3 working in TNCSC Godown in Dharmapuri as Superintendent. He submits that the post of Superintendent is a Supervisory job. 3. The petitioner submits that the Vigilance Cell at Head Office of TNCSC conducted a surprise inspection in the Dharmapuri Godown on 11.03.1998 and is said to have found out certain defects and irregularities. He was on casual leave on 11.03.1998. However, on 12.03.1998 when he reported for work the Vigilance Cell asked him to sign in the Inspection Note (Ann.P-1) prepared by them and he was also asked to give a statement regarding the alleged irregularities found out by them. He gave a statement on 12.03.1998 (Ann.P-2). In his above statement itself and he stated that there was no shortage as alleged by the Vigilance Cell. He also stated that there was no irregularity as alleged by them. However, the Regional Manager of Dharmapuri Region by proceedings Rc.D1/5750/98-2, dated 16.05.98 (Ann. P-3) issued a Charge Memo to him. It was alleged in the said Charge Memo in charge No.1 that he was responsible for the shortage of 33 number of 100 Kgs capacity GRM gunnies. Charge No.2 stated that he was responsible for preservation of 17 bags of Boiled Rice (S.F) open Market aloof and away from the stack No.G4/5/313. Charge No.3 stated that three stocks of same variety of Raw Rice under stack No.G2/7/327 and G2/7/382 were operated and issues made simultaneously. Charge No.4 stated that he had not properly supervised the work. Charge No.5, stated that he had not 4 scrupulously followed the office instructions. 4. The petitioner submits that out of the five charges levelled against him in the charge memo, Charge No.1 alone is a serious charge of shortage of 33 numbers of 100 Kgs capacity gunnies. Shortage is only with regard to gunnies and not the essential commodity. He replied to the charge memo on 23.07.1998 (Ann.P-4) denying all the allegations. He has categorically stated in his explanation with regard to Charge No.1 that the question of shortage does not arise and while making entry in the Stock Register instead of making entry for 100 Kgs gunny wrongly entry had been for 75 Kgs gunny and hence there is excess of 27 gunnies in 75 Kgs. The remaining 6 gunnies were not returned by the Noon Meal Centres and hence there is no question of shortage of 33 Nos 100 Kgs gunnies. He stated in his explanation that so called shortage found out by the Vigilance Cell had been duly accounted for even during the inspection itself and the Members of the Vigilance Cell did not record his statement and refused to look in to the stack Register to verify the correctness of his statement. 5. The petitioner submits that not with standing his explanation, the Regional Manager, Dharmapuri Region by his proceedings ROC.No.D1/5750/98 dated 08.08.98 (Ann.P-5) stated that one M.K.Chandradoss, Manager (Quality Control) has been appointed as Enquiry 5 Officer for conducting domestic enquiry in respect of the charges framed against him as well as against V.Ganesan, Quality Inspector. One K.Chandran, Superintendent was appointed as the management representative in the enquiry. He submits that in the domestic enquiry, at the inception the enquiry officer asked him to give a statement (Ann.P-6), which he did. 6. The petitioner submits that in the domestic enquiry after getting his statement in the beginning, neither a single witness was examined nor a single document was marked on the side of the management. The Enquiry Officer concluded the enquiry after getting his statement. 7. The petitioner submits that the Management did not even make an attempt to prove the charges/allegations by letting in oral and documentary evidence in support of the charges. He submits that he was thus denied an effective opportunity to defend himself from the charges. He also could not have an opportunity to lead any rebuttal evidence. 8. The petitioner submits that by letter bearing Na.Ka.No.5750/98/D1 dated 24.09.99 (Ann.P-7) the Regional Manager stated that the enquiry officer has submitted his findings and enclosed a copy of the said findings (Ann.P-8) and directed him to submit his additional explanation if any. 6 9. The petitioner submits that the Enquiry Officer had found that the charges 1 to 3 levelled against him have been proved and charges 4 and 5 have not been proved. It is seen from the findings of the Enquiry Officer that he has come to the conclusion only on the basis of his explanation to the charges. As already stated that there was no scope for appreciation of any evidence as there was neither oral nor documentary evidence in support of the charges in the said enquiry. He submits that the findings of the Enquiry Officer were not rendered in a manner known to law. 10. The petitioner submits that the Enquiry Officer had just extracted the charges, then stated his explanation and then simply gave his conclusion. He submits that the Enquiry Officer failed to see that he was not by law expected to deal with his explanation. The Enquiry Officer failed to realise that he had to give his findings on the basis of oral or documentary evidence in support of the charges. He submits that the Enquiry Officer ought to have given a finding that there was neither oral nor documentary evidence in the enquiry in support of the charges and hence the charges are not proved. 11. The Petitioner further submits that since he was asked to give his remarks by a letter dated 24.04.1999 on the findings of the Enquiry Officer. He submitted his explanation on 30.05.98(Ann.P9). He submits that on the basis of his explanation the 2nd Respondent passed the impugned order in his 7 proceedings No.G5/72739/99 dated 02.11.2000 (Ann. P-10). He submits that the 2nd Respondent without applying his mind acted in a mechanical manner which can only to lead to a legal inference of arbitrariness, passed the impugned proceedings by accepting the findings of the Enquiry Officer and ordering punishments of stoppage of increment for two years with cumulative effect. 12. The petitioner submits that the 2nd Respondent had simply stated in the impugned proceedings the charges for his explanation, the Enquiry Officer's findings and then his explanation and then his conclusion. He submits that the punishing authority had also erred in failing to see that the charges are to be proved by the management levelling the charges and that the charges cannot be held to be proved on the reading of his explanation when the same was not accepted and when the same was not deemed to be an admission to dispense with the enquiry itself. 13. The petitioner further submits that he preferred an appeal on 31.01.2001 (Ann.P-11) against the order of punishment dated 02.11.2000. He had pointed out that there was no evidence in support of the charges and with regard to first charge of shortage and he reiterated that there was no shortage as alleged by the Vigilance Cell. He had also pointed out the 8 procedural irregularity in the enquiry. 14. The petitioner submits that the 1st Respondent Appellate Authority rejected his appeal in his proceedings No.G9/16962/2001 dated 24.10.2001 (Ann.P-12). It is submitted that the order of the 1st Respondent also suffers from the vice of arbitrariness as he has also failed to apply his mind on the ground about the procedural irregularity in the domestic enquiry. Hence, this Writ Petition has been filed to quash the same. 15. The respondents submit that the Vigilance Cell, head Office during their surprise inspection of Tamil Nadu Civil Supplies Corporation Godown, Dharmapuri, on 11.03.1998 noticed the following serious irregularities for which P.Karunakaran, Superintendent incharge of the godown and as a custodian of the stocks in the godown is fully responsible for the irregularities brought under the stocks in the godown is fully responsible for the irregularities brought under as follows: 1. Shortage of 33 Nos. of 100 Kgs. Capacity gunnies; 2. 17 bags of boiled rice (super fine) weighing 1.695 M.Ts. were kept separately away from the connected stock No.G4/5/313 with ulterior motive; 9 3. Same variety of raw rice stock was issued simultaneously from two different stacks viz.No.G2/7/327 and G2/7/383 which is against the instructions contained in storage manual; 4. Variations noticed in pre-standardised rice bags up to 500 gms; 5. Raw rice stocks were issued from six stacks by overlooking priority. For the above lapses 5 charges were framed against Thiru.Karunakaran, Superintendent under Regulation-4, Chapter-V of the Tamil Nadu Civil Supplies Corporation Employees' Service Regulation-1989 in Regional Manager, Dharmapuri Charge Memo No.D1/5750/98-2, dated 16.05.1998. The Petitioner submitted his explanation to the charges on 03.08.1998. An enquiry Officer was appointed by Regional Manager, Dharmapuri Proceedings No.D1/5750/98, dated 08.08.1998 to conduct enquiry on the charges framed against the petitioner. The Enquiry Officer conducted the full fledged enquiry after giving opportunity to the petitioner and submitted his report on 20.04.1999 holding charges 1 to 3 as proved and charges 4 and 5 has not been proved. The Disciplinary Authority, the 2nd Respondent herein, after examining the Enquiry Officer's report along with the connected materials has accepted the findings of Enquiry Officer and for the proven charges, awarded the punishment of stoppage of increment for two years with cumulative effect in her Proceedings No.G5/72739/99, dated 02.11.2000. Against this, the Writ Petitioner preferred an appeal and the 10 Appellate Authority Chairman and Managing Director after examining the appeal in detail with all connected records rejected it as devoid of merit in his Proceedings No.G9/16962/2001, dated 24.10.2001. The Writ Petitioner has not filed this Writ Petition against the order of the first Respondent and he denies the averments contained in Para 4 of the affidavit of the writ petitioner and states that the post of Superintendent is a supervisory post. When a Superintendent is posted to work in a godown and he is governed by the duties and responsibilities as prescribed in the storage manual of the Corporation then it is the bounden duty to account the issues and receipts of stocks in the godown and he denies the averments contained in para 6 of the affidavit of the petitioner and states that the petitioner himself has admitted that Charge No.1 is a serious charge of shortage of 33 Nos of 100 Kgs capacity gunnies. His explanation that he has wrongly entered in 75Kgs capacity gunnies instead of 100 Kg capacity cannot be accepted since it is only an after thought. He has failed to maintain proper accounts in respect of empty gunnies thus he has failed in his duties and responsibilities as prescribed in para 18.2.5(q) of the storage manual. 16. The averments contained in Para 8 and 9 of the affidavit of the writ petition states that the questionnaire fromat was issued to the petitioner along with the charge memo dated 16.05.1998 so as to enable him to furnish the names of witnesses to be examined in his presence and details of copies 11 of records or depositions of witnesses required by him. But, he has not pointed out any name as witness to be examined in his favour and he never asked for copies of any records. He has failed to utilise the opportunity given to him. Having failed to utilise the opportunity given to him, his contention now is that he was denied an effective opportunity to defend himself from the charges cannot be accepted and it is only an after thought. 17. Regarding the averments contained in Para 10 of the affidavit of the writ petitioner had stated that the Regional Manager, Dharmapuri, in his Memo No.5750/98/D1, dated 24.04.1999 forwarded copies of the enquiry findings to the Petitioner for his further explanation if any. The memo was dated 24.04.1999 and not 24.09.1999 as mentioned in the affidavit. 18. He submits that the charges were framed based on the inspection report of the Vigilence Cell. The Enquiry Officer submitted his findings after examining the charges, explanation of the writ petitioner and inspection report of the Vigilence Cell which was the basis for the charges. The petitioner has failed to utilize the opportunity given to him during enquiry and he denies averments contained in para 13 of the affidavit of the Writ Petition and states that the Regional Manager, Dharmapuri Memo dated 24.04.1999 copy of the Enquiry Officer's findings was communicated to the Writ Petitioner 12 for offering his further explanation on the Enquiry Officer's findings. The additional explanation on the Enquiry Officer's finding was received from the writ petitioner on 01.06.1999. After examining the charges, explanation of the writ petition, findings of the Enquiry Officer additional explanation of the Writ Petitioner on the Enquiry Officer's findings are disciplinary authority passed orders inflicting the punishment of stoppage of increment for two years with cumulative effect taking into account the gravity of offence and the charges proved. 19. He respectfully submitted that the Writ Petitioner has preferred an appeal on 31.01.2001 against the order of punishment dated 02.11.2000. The charges have been proved based on records and rules of the Corporation. The enquiry was conducted as per the procedure established under law to the satisfaction of the writ petitioner and there was no procedural irregularity as pointed out by the petitioner. 20. He submits that the appeal preferred by the writ petitioner against the punishment order was rejected by the appellate authority in his Proceedings No.G9/16962/2001, dated 24.10.2001. The appellate authority has examined in detail the appeal of the writ petitioner along with connected records and came to the conclusion that there was no merit in the appeal and accordingly rejected it. 13 21. Regarding the averments contained in Grounds of the affidavit of the writ petitioner, he submits that the disciplinary authority and appellate authority have passed orders after examining the case of the petitioner in detail in all the aspects of the case with reference to records the rules and absolutely there is no question of non application of mind in both the orders. The impugned orders have been passed as speaking orders and the orders do not suffer from any illegality. 22. He submits that the charges were framed against the writ petitioner based on the inspection report of the Vigilance Team of Head office. Out of 5 charges framed charges 1 to 3 were proved based on records and rules of the Corporation. The writ petitioner was the Superintendent incharge of the Dharmapuri Godown as a custodian of the stock responsible for accounting the issue / receipt in godown at the time of inspection by the Vigilance Team, Head office which detected serious irregularities. Hence, the writ petitioner as Superintendent of the Godown is responsible for the irregularities detected. The disciplinary authority after examining all the aspects in detail independently passed orders. 23. He submits that out of 5 charges framed against the writ petitioner charges 1 to 3 were proved based on records by the Enquiry Officer and it was accepted by the disciplinary authority. A questionnaire form was also 14 issued to the writ petitioner along with the name of witnesses to be examined in his presence and details of copies of records or depositions of witnesses. But he has not named any witness to be examined in his presence or asked for copies of any records. He has failed to avail and utilise the opportunity given to him in the enquiry. His contention now that he was denied an effective opportunity to defend himself from the charges are totally denied as false and cannot be accepted. 24. He submits that the appeal preferred by the writ petitioner against the punishment order was rejected by the appellate authority in his Proceedings No.G9/16962/2001, dated 24.10.2001. The appellate authority has examined in detail the appeal of the writ petitioner along with connected records and came to the conclusion that there was no merits and accordingly rejected it. The appellate authority in his conclusion of the Proceedings has narrated in detail the reasons for rejecting the appeal. Hence, the contention of the petitioner that the appellate authority has passed orders without applying his mind is not correct. The writ petitioner did not mention any procedural irregularity in the enquiry in his appeal submitted to the appellate authority. However, there was no procedural irregularity at all in the enquiry and the enquiry was conducted to the satisfaction of the writ petitioner. Under these circumstances, it is just and necessary that this Court may be pleased to dismiss the above writ petition with cost. 15 25. The highly competent counsel Mr.S.Kumarasamy, appearing for the petitioner submits that the petitioner had joined the services of the Tamil Nadu Civil Supply Corporation as Bill Clerk on 01.09.1973 in Salem Region. Subsequently, he was promoted as a Junior Assistant in the year of 1975 and after that he was transferred to Dharmapuri Region in the year of 1978 and he was promoted as Assistant in the year of 1980. Subsequently, he has become Superintendent on 09.10.1985 and he was given selection grade Superintendent in Dharmapuri Region. The nature of work was supervisory in nature. The Vigilence Cell, which is attached to the Tamil Nadu Civil Supplies Corporation had conducted surprise inspection in the Dharmapuri Godown on 11.03.1998 and said to have found out certain defects and irregularities. On the relevant date, he was on casual leave. The very next day he reported for duty and at that time, the vigilance cell asked him to sign in the inspection note and asked him to give a statement regarding the alleged irregularities. Further, there was no shortage as alleged by the vigilance Cell. Under the circumstances, the Regional Manager of Dharmapuri had issued charge memo and as such, the petitioner was held responsible for the shortage of 33 numbers of 100 Kg capacity GRM Gunnies and 17 bags boiled rice for preservation. Further, the petitioner had not properly supervised the work of standardization. 16 26. The first charge was serious in nature. However, the charge was not proved against the petitioner. At the time of domestic enquiry, he had revealed the entire facts and told he is innocent. After domestic enquiry, the findings were given by the Enquiry Officer was that charges 1 to 3 had been proved and the 4th and 5th charges had not been proved. Thereafter, the impugned order has been passed and his increment was stopped for a period of two years with cumulative effect. Thereafter, the petitioner made an appeal to the Chairman and Managing Director, who rejected the said appeal. The very competent counsel further submits that the domestic enquiry was not conducted in the presence of witnesses and that the management had not produced and documentary proof. Hence, the learned counsel entreats the Court to set aside the respondent's order. 27. The very competent counsel, Mr.V.Selvanayagam, appearing for the respondents submits that the Vigilance which is attached to the respondents Department had inspected Dharmapuri Godown on 11.03.1998 and found some irregularites. Hence, five charges were levelled against the petitioner. The Vigilance Cell had noticed shortage in the Pre-Standardized bags. The shortage was noted by the Vigilance, after physical verification and inspection of documents. The petitioner also submitted explanation before the Enquiry Officer. Further, the petitioner has not scrupulously followed the office instructions, which is evident from having noticed the overlooking of priority in 17 six stacks. Further, the petitioner is responsible for preservation of 17 bags of boiled rice, open mark aloof and away from the stack, which indicates his ulterior motive to dispose of the stock for personal gain. Therefore, the petitioner had committed irregularities. Hence, the minimum had been imposed. 28. On considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the typed set of papers, this Court does not find sufficient force in the writ petition to allow it. Further, this Court is of the view that the Enquiry Officer had come to a conclusion that the charges 1 to 3 had been proved on the basis of oral and documentary evidence. The rest of the two charges has not been pressed by the Enquiry Officer. Hence, the quantum of punishment ie., stoppage of increment to the petitioner for a period of two years with cumulative effect is appropriate. Hence, the above writ petition is dismissed. No costs. 15.04.2014 Index : Yes/No Internet : Yes/No ub 18 C.S.KARNAN, J. ub Pre-Delivery Order in W.P.No.1040 of 2002 19 15.04.2014