IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.06.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.37577 of 2007 S.Murugan .. Petitioner vs. 1.The Chairman Tamil Nadu Khadi & Village Industries Board Kuralagam Chennai 108. 2.The Tamil Nadu Khadi & Village Industries Board rep. By its Chief Executive Officer Kuralagam, Chennai 108. 3.The Assistant Director Khadi & Village Industries Coimbatore. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari as stated therein Calling for the entire records relating to the impugned order of termination of service of the petitioner passed by the Ist Respondent in his proceedings No.Khadi Board Proceedings Order No.44 dated 24.10.2007 and quash the same. For petitioner : Mr.C.Prakasam For respondents : Mr.S.Packiaraj for R.1 & R.2 Mr.R.Neelakandan for R.3 ORDER The writ petition is directed against the order of the first respondent, the Chairman, Tamil Nadu Khadi and Village Industries Board, dated 24.10.2007, rejecting the appeal filed by the petitioner by confirming the order of termination of services of the petitioner. 2. The petitioner was appointed as a Soap Chemist on 28.02.1991. While he was working in the said capacity at Gudalur Branch, Ooty Taluk, The Nilgiris District, in 2003, he was suspended https://hcservices.ecourts.gov.in/hcservices/ in respect of certain irregularities and misappropriation of funds, thereby causing shortage. The charges levelled against him are: 1.that he has misappropriated the amount of Rs.29,624/- by preparing bogus bills with regard to sale of Khadi clothes to Devan Solai, Devan Estate in Gudalur Branch; 2.he has exchanged poor quality raw materials in the place of good quality raw materials, causing shortage to the tune of Rs.90,885/-; 3. that he has prepared bogus credit bills in the name of individuals at Kerala and misappropriated a sum of Rs.22,997/-; 4.that there was a shortage in the Modakuruchi Soap Unit in respect of raw materials and finished goods to the tune of Rs.1,59,247/-; 5.hat he has assisted to get loan to the employees of the Board from Gudalur Repco Bank by preparing bogus documents; and 6.he has acted against the Conduct Rules. (a). The petitioner has submitted his explanation denying the charges leveled against him. There was a domestic enquiry conducted, and after conducting enquiry, the Enquiry Officer submitted a report before the second respondent, the Chief Executive Officer and in turn, the second respondent called for an explanation. But, according to the petitioner, without giving second show cause notice, the termination order was passed by the second respondent on 10.07.2006, removing him from service. (b) Against the said order of the second respondent, without filing appeal, when the petitioner had earlier approached this Court by filing W.P.No.23534 of 2006, this Court by an order dated 19.08.2006, directed the petitioner to file an appeal before the first respondent and thereafter, the petitioner filed an appeal before the first respondent, which was rejected on 24.10.2007 under the impugned order. (c) Against that, the present writ petition is filed on the ground that in respect of the first charge, the respondents have fixed target for every employee to sell Khadi cloth to the extent of Rs.40,000/- and handicrafts to the extent of Rs.10,000/- and therefore, the petitioner arranged to sell for Rs.24,854/- to Devan Solai, Devan Estate and obtained signatures of the concerned employees in the credit bills. Thereafter, the petitioner was on https://hcservices.ecourts.gov.in/hcservices/ leave and therefore, he was unable to recover the same from the employees. However, it is stated that one Namasivayam, Manager of Gudalur Branch received certain amount and issued temporary receipts to the employees. The petitioner collected the said temporary receipts and produced the same before the Enquiry Officer at the time of enquiry assuring that he would recover the amount from employees and tendered it before the Board. However, it is seen that the said Namasivayam, who had issued the receipts, disowned his signatures and the Enquiry Officer had not even verified the signature of the Namasivayam and arrived at a conclusion that the petitioner is liable for the amount. (d) In respect of second charge regarding the quality of raw-materials, when he was transferred to the present place, in the report he clearly stated that the quality of the goods was poor, however, when the petitioner handed over the Stock Register to the successor in charge on 24.07.2003, the successor in charge refused to receive the same, since the stocks were not of quality, which was brought to the notice of the Assistant Director of Khadi Board and the same was endorsed by the Inspector of Cottage Industries. Therefore, according to the petitioner, if at all any liability, he is liable to the extent of Rs.6,210/- only. (e) In respect of third charge regarding raising of credit bill in the name of individuals, who belong to Kerala for supply of kadhar items to the tune of Rs.22,997/-, it is stated that as per the prior permission of the Assistant Director, there were 700 bar soaps supplied to the Kerala agent, viz., V.V.Agencies under proper bill and on 5.07.2002, Mr.Namasivayam, who was working as a Manager in Gudalur Khadi Branch issued a receipt for Rs.22,997/-, but he did not raise the bill and according to the petitioner, the respondents have not properly enquired the said Namasivayam, who has disowned his responsibilities. (f) Regarding the 4th charge of shortage of raw materials and finished goods to the tune of Rs.1,60,000/-, it is stated that enquiry has already been conducted and recovery of Rs.2,000/- per month has been deducted from the salary of the petitioner and therefore, including the same will amount to double jeopardy. (g) Regarding the 5th charge, the Enquiry Officer himself has found that the charge was not proved and that has not been considered and according to the petitioner, he has not acted against the interest of the Board at any point of time. 3. In the counter affidavit filed by the second respondent, it is stated that the removal of the petitioner was on the basis of the proven charges. It is stated at the outset that there has been Board’s instructions that he should obtain an undertaking from the employer of Devan Solai and Deven Estate for the credit bill from https://hcservices.ecourts.gov.in/hcservices/ their employees from their salary in 10 monthly instalments; that he should write in the invoice the clear address of the person to whom the sale is effected; that he should take steps to collect the amount in 10 equal monthly instalments; that he should get purchaser’s signature in the duplicate copy of the bill; and that he should effect credit sales only to the extent of purchaser’s basic pay. It was evident that the petitioner has not followed any of the instructions and raised credit bills without actual sales, which are proved to be bogus and fictitious in nature. (a) It is also stated that the original bill copy of the sales effected by the petitioner was kept in tact in Khadi Craft without making a claim, which shows that he has not made any sales at all, but the petitioner has taken away the goods and made fictitious entry. (b) The allegation that the competent authority who passed the impugned order and the appellate authority are one and the same, is denied. It is stated that upto 2003, as per Regulation 38 of the Tamil Nadu Khadi and Village Industries Board Regulations, the Government was the appellate authority to dispose of the appeal by all Board employees. Subsequently, the said Regulation was amended to the effect that the appeal preferred by "C" & "D" group employees of the Board should be disposed of by the Board, and accordingly, the petitioner has preferred an appeal to the first respondent. It is stated that in respect of the first charge, credit amount of Rs.24,854.00 effected by the petitioner is still pending to be collected. The Board was unable to collect the amount, since there was no signature obtained by the petitioner, and there was no address as well as the undertaking of the purchasers available and there was deliberate failure on the part of the petitioner in discharging his duties. (c) The said Namasivayam was subjected to cross-examination during domestic enquiry and the statement made by him could not be controverted and therefore, Namasivayam’s statement is found proved. It is also stated that raw materials which were kept are not worthy for production purposes, resulting in loss. The petitioner has not taken any tenable action to dispose of the raw materials. It is also stated that as per the Board’s Rules, demand draft in advance has to be obtained for the sale of soap effected to Kerala Soap Agent before supplying. It was the duty of the petitioner to get demand draft in advance and without obtaining the demand draft the petitioner has made a credit sale to the tune of Rs.22,997/- to the Kerala Agent, and thereby he violated the Board’s regulations. It is also stated that in respect of Modakurichi Soap Unit, gross irregularities have been effected in respect of finished goods and packaged materials to the extent of Rs.1,59,247.70 and in fact, the petitioner has accepted for the recovery of the said amount from his salary at the rate of Rs.2000/- per month and therefore, he has admitted the guilt and in https://hcservices.ecourts.gov.in/hcservices/ such circumstances, the domestic enquiry has been conducted in a fair manner and he has been given proper opportunity. 4. It is the contention of Mr.C.Prakasam, learned counsel appearing for the petitioner that in respect of each of the charges the petitioner has been made as a scapegoat and according to him, the Enquiry Officer has not properly conducted the enquiry and taken evidence in proper manner. The learned counsel has brought to the notice of this Court the various elaborate proceedings of the Enquiry Officer and this Court should reappreciate the evidence recorded. 5. On the other hand, Mr.Packiaraj, learned counsel appearing for the respondent Board has produced the entire records and the Tamil Nadu Khadi and Village Industries Board’s Service Regulations and also submitted that the petitioner has participated in the domestic enquiry and he has cross-examined the witnesses and he cannot complain of any violation of the principles of natural justice. He would also submit that all the charges have been proved. 6. On a reference to the pleadings and the documents produced before this Court, it is concluded that as per Regulation 48 of the Tamil Nadu Khadi and Village Industries Board’s Service Regulations, which is as follows: "48. PAY, ALLOWANCES, LEAVE, LEAVE SALARY, PENSION AND OTHER CONDITIONS OF SERVICE: The General Rules for the State and Subordinate Services Fundamental Rules, the Tamil Nadu Leave Rules, the Manual of Special pay and Allowances and the Tamil Nadu Travelling Allowances Rules and the pension Rules as amended from time to time in so far as they may be applicable and except to the extent expressly provided in those regulations, shall MUTATIS MUTANDIS, apply to the members of the Board service in the matter of their pay, allowances, Travelling allowances, Leave, Leave Salary and other conditions of service.” the General Rules for Tamil Nadu State and Subordinate Service Rules are applicable mutatis mutandis, to the employees of the respondent Board. 7. It is not in dispute that there was a domestic enquiry conducted and the petitioner participated in the same throughout. In fact, in respect of the first charge, it has been the specific case of the petitioner that one Namasivayam, who is also one of the employees, has issued receipts under his signature and he being the Manager of Gudalur Branch has received the amount. Therefore, according to the petitioner, as far as the first charge of https://hcservices.ecourts.gov.in/hcservices/ misappropriation to the extent of Rs.29,624/- is concerned, it cannot be construed as misappropriation, and on the other hand, as it is seen from the records, the said Namasivayam was called as a witness during the domestic enquiry and in the domestic enquiry, the petitioner cross-examined the said Namasivayam and the petitioner was not able to elicit anything in his favour. 8. Likewise, in respect of other charges also, there is clear proof for either misappropriation or want of quality of materials and deliberate disobedience of the directions of the authorities and the Rules and Regulations. In fact, in respect of shortage of raw- materials to the tune of Rs.1,60,000/-, the petitioner has accepted the same during the enquiry and agreed for recovery at the rate of Rs.2,000/- per month from his salary and in turn, he agreed to recover the same from the persons concerned. While such is the position, it is not known as to how this Court has got jurisdiction to reappreciate the evidence, which has been recorded during the course of domestic enquiry. It is not as if the domestic enquiry was not conducted in the manner known to law and that is not the case of the petitioner also. The petitioner having participated in the enquiry and having taken up the full opportunity of cross examining the witnesses, cannot turn around and say that the enquiry was conducted as an eye wash. In the absence of any evidence to show that there has been lacuna in the enquiry conducted, I do not agree with the contention of the learned counsel for the petitioner that the second respondent has failed to appreciate the evidence in a proper manner. Law is well settled that under Article 226 of the Constitution of India, it is only the decision making process and not the decision, which is the subject matter of scrutiny, and this Court cannot sit as an appellate authority for the purpose of reappreciating the evidence, which has been taken before the domestic enquiry and the limited power of this Court cannot be extended for the purpose of deciding and giving its own opinion about the evidence let in. In any event, there is clinching evidence at least in respect of few of the charges, especially when the said Namasivayam, Manager of the Gudalur Branch, who is stated to have issued receipts on receipt of amount, has himself stated that it is not his signature, and disowned the receipts produced by the petitioner. In such circumstances, it is not for this Court to come to a different conclusion that it is the signature of the said Namasivayam. 9. Further, as far as the stock sheets are concerned, the loss caused in respect of Nambalakottai Soap Unit was to the tune of Rs.90,885/- and the petitioner has in fact stated very curiously that the shortage is only to the extent of Rs.6,170.15 and not to the extent of Rs.90,885/-. This sort of defence cannot absolve the petitioner of his liability to the Board, whether it is Rs.6,210/- or https://hcservices.ecourts.gov.in/hcservices/ Rs.90,885/-. More shockingly, when the petitioner having accepted the shortage in respect of 4th charge and agreed for recovery of Rs.2,000/- per month cannot turn around and say that the said charge is false. That apart, the sale of Khadi materials to an agent, who is outside the State, should have been properly programmed as per the Regulations, but the petitioner has failed to do so. The petitioner having failed to perform his duty, again points the finger at Namasivayam, who has disowned his responsibility. It is, in all these circumstances, the second respondent has considered the individual charges and found that there are abundant materials to show that the charges against the petitioner are proved. Accordingly, the second respondent has come to the conclusion that the petitioner is liable for punishment of removal from service. The appellate authority, viz., the first respondent, on direction from this Court in the writ petition filed by the petitioner, has in detail discussed the entire issue threadbare and accepted the reasonings. Accordingly, I do not see any illegality or perversity in the impugned orders of the respondents. Consequenlty, the writ petition fails and the same is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Kh To 1.The Chairman Tamil Nadu Khadi & Village Industries Board Kuralagam Chennai 108. 2.The Chief Executive Officer The Tamil Nadu Khadi & Village Industries Board Kuralagam, Chennai 108. 3.The Assistant Director Khadi & Village Industries Coimbatore. 1 cc To Mr.C.Prakasam, Advocate, SR.32234 1 cc To Mr. S.Packiaraj, Advocate, SR.32109 W.P.No.37577 of 2007 nm(co)pmk.10.6.2011 https://hcservices.ecourts.gov.in/hcservices/