IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28.4.2010 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL W.P.No.40652 of 2002 T.Sam Pushparaj Petitioner vs. 1. Chennai Port Trust, rep by its Chairman, Rajaji Salai, Chennai 600 001. 2. The Presiding Officer, Industrial Tribunal, Chennai. Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records of the second respondent in connection with the Award in I.D.No.81 of 1988 pronounced on 30.10.2001 and published in the Gazette thereafter and quash the same and direct the first respondent to reinstate the petitioner in service with continuity of service and backwages and all other consequent benefits. For petitioner : Mr.V.Prakash, Senior Counsel for Mrs.Sudha For R1 : Mr.R.S.Jeevarathinam, Senior Counsel for Mrs.Madhuri Donti Reddy ORDER The petitioner joined the service of Madras Port Trust during the year 1981 as Junior Signal Man. On 3.11.1987, the Deputy Port Conservator (DPC) Madras Port Trust suspended the petitioner on the ground that the petitioner boarded the vessel m.v.Nata on 31.12.1986 and forcibly took away a pen from the Master of the vessel impersonating himself as Anti Pollution Officer. The DPC called upon the petitioner to submit his explanation within seven days as to why severe disciplinary action should not be taken against the petitioner. The petitioner submitted his explanation on 6.1.1987. He contended that he did not impersonate himself as Anti Pollution https://hcservices.ecourts.gov.in/hcservices/ Officer. The explanation submitted by the petitioner was not accepted by the DPC. Charge was framed as against the petitioner alleging that he boarded the vessel m.v.Nata at about 14.00 hours on 31.12.1986 and unauthorisedly took away the pen from the Master of the vessel impersonating himself as Anti Pollution Officer. An enquiry was conducted. The petitioner was permitted to have the assistance of a co-worker during the course of enquiry. The petitioner pleaded innocence before the Enquiry Officer. The Enquiry Officer returned a finding that the charge framed against the petitioner stood established. A second show cause notice was issued to the petitioner directing him to show cause as to why he should not be dismissed from service for the charges stood established and accepted by the disciplinary authority. The petitioner submitted his explanation to the second show cause notice. The Deputy Port Conservator, Madras Port Trust, vide his order dated 27.5.1987, discharged the petitioner from the service with immediate effect. The petitioner preferred an appeal before the Chairman, Madras Port Trust. The appeal was rejected by the appellate authority. The petitioner filed a petition under section 2A of the Industrial Disputes Act before the Conciliation Officer for effecting a settlement. As conciliation failed, the matter was referred for adjudication before the Presiding Officer, Industrial Tribunal, Chennai, the second respondent herein. The second respondent passed an award dismissing the claim of the petitioner on 30.10.2001. Therefore, the petitioner has preferred the present writ petition. 2. The charge as against the petitioner is that the petitioner boarded the vessel m.v.Nata at about 14.00 hours on 31.12.1986 and unauthorisedly took away the pen from the Master of the vessel impersonating himself as an Anti Pollution Officer which is a serious misconduct amounting to dishonesty and fraud with Board's business. 3. One Mr.S.Kannan, Pollution Control Officer was examined as Management Witness 1 before the Enquiry Officer. He has categorically spoken before the Enquiry Officer that on 2.1.1987 at about 10.30 am, the DPC called him in his room and showed me to a foreigner to identify whether he was the person who boarded the vessel as Anti Pollution Officer, but, the foreigner replied that he was not the person who entered into the vessel as Anti Pollution Officer, but, the person who entered into the vessel was lean and short. Mr.S.Kannan came to understand that the said foreigner was the Captain of the vessel. Mr.S.Kannan, according to his version, immediately suspected the role of the petitioner herein considering the identification features disclosed by the Captain of the vessel and the previous antecedent of the petitioner. It is further deposed by S.Kannan the Managing Witness No.1 that the Captain of the vessel identified the petitioner as the person who visited the vessel as Anti Pollution Officer and took away his pen. It is his further version that the petitioner flatly refused at the first instance to admit the fact that he entered into the vessel and took away the pen. https://hcservices.ecourts.gov.in/hcservices/ After much persuasion, the petitioner came down and informed him and the Managing Witness 4 Mr.S.Dhanapathy Fire Officer that it was he who entered into the vessel m.v.Nata and took away the pen. 4. The Managing Witness No.4 Dhanapathy has also corroborated the evidence of the first Managing Witness S.Kannan to the effect that the Captain of the vessel m.v.Nata identified the petitioner as the person who entered into the vessel as Anti Pollution Officer and took away his pen Though the petitioner refused to admit his guilt in the presence of all, after much persuasion, he admitted the guilt in his presence and also in the presence of S.Kannan. He also spoke to the fact that the petitioner returned the pen on 3.1.1987 at about 8.15 am at his residence. He brought the pen and handed over to the DPC, who in turn, entrusted the same to the Deputy Commissioner, who, in the presence of Mr.Kannan, Mr.Dhanapathy and the DPC, returned the pen to the Captain on his identification. 5. The above evidence recorded by the Enquiry Officer would go to show that the Enquiry Officer, having thoroughly adverted to the materials on record, arrived at a conclusion that the charges stood established. The court finds that it is not a case where there is no evidence to conclude that the charge stood established. 6. If the materials before the Enquiry Officer are such, from which the conclusion arrived at by the Enquiry Officer could not be arrived at by a prudent man, then, it is needless to state that the finding has to be characterised as perverse. (See: DELHI CLOTH AND GENERAL MILLS v. LUDH BUDH SINGH ((1972) 1 SCC 595)). 7. The materials on record which weighed in the mind of the Enquiry Officer to arrive at a conclusion that the charges stood established would go to show that no different conclusion could be arrived at by a reasonable person. In view of the above, the finding arrived at by the Enquiry Officer cannot be classified as a perverse finding. 8. It is found that full opportunity was given to the petitioner to challenge the charge levelled as against him during the course of enquiry. In fact, the petitioner was given the option to engage a co- worker to defend himself. The only grievance of the petitioner is that the report submitted by the Captain of the ship was not circulated to him and the Captain of the ship was also not examined by the Management. The learned Senior Counsel appearing for the petitioner, in the ground of the above contention of the petitioner, would submit that sufficient opportunity was not given to the petitioner during the course of conducting enquiry by the management. 9. Nothing has been shown before the court that the petitioner was prejudiced on account of failure on the part of the management to supply a copy of the report submitted by the Captain. It is the https://hcservices.ecourts.gov.in/hcservices/ admitted case of the petitioner that the report of the Captain was made available to him during the course of enquiry for perusal and thereafter, the enquiry was posted to a different date giving liberty to the petitioner to reflect upon the report submitted by the Captain for the purpose of defending himself during the course of enquiry. Therefore, by no stretch of imagination, we can come to a decision that the failure on the part of the management to supply a copy of the report of the Captain prejudiced the petitioner. 10. It is to be noted that the strict rule of evidence need not be adhered to during the departmental proceedings. Even if the report of the Captain was not exhibited, the management as well as the employee were aware of the charge levelled as against the employee. The petitioner, having come to know of the tenor of the report submitted by the Captain, on perusal of the same, has cross-examined the witnesses examined on the side of the management. Therefore, no prejudice has been caused to the petitioner on account of non supply of the report of the Captain. 11. It is not a criminal case where the author of the document shall be subjected to cross-examination. Further, a Captain of the ship cannot be asked to stay back in India for the purpose of prosecuting the case by the management. The Captain who lodged a report to the DPC had identified the real culprit and got the pen retrieved and thereafter set sail for his country. It is not as if the author of the report, who was very much present at the time of enquiry, was not subjected to cross-examination during the course of enquiry. As the Captain was out of reach during the course of enquiry, he could not be examined by the management. The management could establish the case even without the evidence of the Captain of the ship. 12. The learned Senior Counsel appearing for the petitioner would submit that Mr.Kannan, managing witness No.1 jumped to a hasty suspicion that the petitioner might have committed those offences. The management has proceeded on the basis of the suspicion entertained by Mr.S.Kannan, it is submitted. 13. Suspicion or presumption cannot take the place of proof even in domestic enquiry. (See: NARINDER MOHAN ARYA v. UNITED INDIA INSURNCE CO. LTD – (2006) 4 SCC 713). 14. The Supreme Court in UNION OF INDIA v. GOEL (1964(I) LLJ 38 (SC)) has held as follow:- "Undoubtedly, Mr.Rajagopalan suspected the respondent's conduct, and, so, made a report immediately. But, the suspicion entertained by Mr.Rajagoplan cannot, in law, be treated as evidence against the respondent even though there is no doubt that Mr.Rajagopalan is a https://hcservices.ecourts.gov.in/hcservices/ straightforward and an honest officer. 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." 15. Mr.Kannan has spoken to the fact that identification features of the person, who entered into the vessel m.v.Nata as Anti Pollution Officer, were furnished by the Captain of the ship after ruling out the involvement of S.Kannan, who happened to be the Anti Pollution Officer. Further, S.Kannan also was aware of the earlier involvement of the petitioner in a similar occurrence of impersonation. It is quite natural for any prudent man to suspect a person with similar antecedents and identification features. 16. It is not as if the management proceeded only on the basis of the suspicion entertained by the management witness No.1 S.Kannan. In the identification process embarked upon by S.Kannan and Dhanapathy, it is found that the Captain of the shop could very well identify the person who entered into the ship m.v.Nata as Anti Pollution Officer. Both of them have spoken to the fact that the petitioner admitted his guilt and promised to return the pen on 3.1.1987. Dhanapathy has spoken about the return of the pen by the petitioner and handing over of the same to the Captain by the Deputy Commissioner in the presence of Kannan, DPC and himself. Therefore, it is not a case where on mere suspicion, the charges were framed as against the petitioner. Concrete materials were available before proceeding against the petitioner. 17. It is submitted by the learned Senior Counsel appearing for the petitioner that the Labour Court has mistakenly referred to the evidence of Mr.Kannan, the managing witness No.1 as though Mr.Kannan deposed that the petitioner returned the pen to him who, in turn, delivered it to the Captain on identification. The misreading of the evidence available on record by the Labour Court has resulted in rejection of the plea for reinstatement sought for by the petitioner before the Labour Court, it is submitted. 18. It is not the case of the management that the petitioner handed over the pen to Mr.Kannan, who, in turn, delivered the same to the Captain on identification. Mr.Kannan never spoke about the https://hcservices.ecourts.gov.in/hcservices/ handing over of the pen by the petitioner to him nor had he spoken about the delivery of the pen by him to the Captain of the ship on identification. The materials collected by the Enquiry Officer during the course of enquiry would disclose that the petitioner handed over the pen to Mr.Dhanapathy on 3.1.1987 at about 8.15 am at his residence. He, in turn, delivered the same to the DPC, who handed over the same to the Deputy Commissioner, who organized the return of the pen to the original owner viz., Captain of the ship in the presence of the DPC, Mr.Kannan and Mr.Dhanapathy. Just because the Labour Court has misread the evidence, the decision arrived at by the disciplinary authority and confirmed by the appellate authority as well as the Labour Court cannot be simply set aside. It is not a case where the evidence which was not at all available on record was sought to be relied upon by the Tribunal to arrive at a decision. The Labour Court, while critically analysing the evidence on record, wrongly referred the evidence of Dhanapathy as that of Mr.Kannan. Such a wrong reference cannot be taken advantage of by the petitioner. 19. It has been held by the Supreme Court in ROOP SINGH NEGI v. PUNJAB NATIONAL BANK AND OTHERS ((2009) 2 SCC 570) as follows:- "Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence." 20. That was a case where the appellant therein was involved in a case of theft of bank draft book. An FIR was lodged for the alleged loss and after investigation by the police, the appellant and others were prosecuted. The appellant was however acquitted by the criminal court. Departmental proceedings were also conducted against the appellant wherein the charge against the appellant was held to have been established on the basis of the First Information Report, other documents collected by the investigating agency and the confession given by the appellant before the police. No witness was examined by the Department to prove those documents and the appellant lost his opportunity to cross-examine those witnesses. https://hcservices.ecourts.gov.in/hcservices/ 21. The criminal court chose to record acquittal based on the very same materials which were relied upon by the Department for rendering a finding of guilt as against the erring officer. No other material witness was examined by the department to establish the charge as against the erring officer. In the above background, such an observation was made by the Honourable Supreme Court that the documents were not established during the course of departmental enquiry by examining and cross-examining the witnesses concerned. 22. In the instant case, the star witnesses viz., Mr.Kannan and Mr.Dhanapathy, who spoke to the role of the petitioner were subjected to cross-examination by the petitioner. Further, in departmental enquiry, each and every document produced need not be marked through the author thereof like a criminal case. Therefore, the aforesaid decision will not apply to the facts and circumstances of this case. 23. The Supreme Court in ANIL KUMAR v. PRESIDING OFFICER AND OTHERS ((1985) 3 SCC 378) has held has follows:- "It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. The enquiry officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi- judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the enquiry officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent." 24. The instant case is not one where the enquiry officer failed to apply his mind to the evidence on record. He entered into a thorough discussion with respect to the evidence produced before him. His conclusion is supported by reason. Therefore, the aforesaid ratio laid down by the Supreme Court does not come to the rescue of the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 25. Coming to the punishment awarded to the petitioner, it is found that the petitioner was already found guilty of impersonation and was suitably awarded with punishment. This is a second instance of impersonation charged against the petitioner. The Port Trust accommodates vessels from very many countries. The first impersonation charge established as against the petitioner was visited with minor punishment. When the same was repeated and the reputation of the Port Trust of India in the eye of a foreigner is at peril, the Port Trust of India has no other go except discharging the petitioner from its service. The antecedent of the petitioner was also taken into consideration by the disciplinary authority while imposing the highest punishment. Therefore, it is not a case where the punishment awarded to the petitioner is shockingly disproportionate to the charges established as against him. 26. In view of the above facts and circumstances, I find that the enquiry officer has returned a finding that the petitioner was guilty of the charge based on the materials available on record. The petitioner was also given sufficient opportunity to challenge the charge before the enquiry officer. Second show cause notice also was given before awarding punishment by the disciplinary authority. The principles of natural justice have been adhered to by the authorities concerned. Nothing could be shown before the court that the decision arrived at by the authorities is perverse. 27. In view of the above, the writ petition fails and therefore, it stands dismissed. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssk. To 1. The Chairman, Chennai Port Trust, Rajaji Salai, Chennai 600 001. 2. The Presiding Officer, Industrial Tribunal, Chennai. https://hcservices.ecourts.gov.in/hcservices/ Copy to The Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.V.Prakash, Advocate, SR.28302. 1 cc To Mr.R.S.Jeevarathinam, Advocate, SR.28647. W.P.No.40652/2002 RL(CO) RVL 01.06.2010 https://hcservices.ecourts.gov.in/hcservices/