IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.Nos.18592 and 18593 of 2009, M.P.Nos.1,1,2 and 2 of 2009 A.Arivu Selvam ... Petitioner in W.P.No.18592/2009 G.Murugan ... Petitioner in W.P.No.18593/2009 Vs The District Manager, The Tamil Nadu State Marketing Corporation Ltd., Perambalur District, Perambalur. ...Respondent in both WPs Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, calling for the proceedings of the Respondent in Na.Ka.No.343/C.V./2009/A1 and Na.Ka.No.313(1)/C.V./2009/ A1 dated 18.08.09 and 01.09.09 respectively and quash the same and consequently direct the Respondent herein to reinstate the Petitioners back into the service as Shop Salesman. For Petitioners : Mr.Vijayshankar for Mr.V.Rajinikanth For Respondent : Mr.J.Ravindran C O M M O N O R D E R The petitioners in the two writ petitions more or less raised similar contentions. In the first writ petition, the petitioner was working as Salesman in the retail liquor shop No.6427 at Melamathur, Perambalur District. He challenged the order dated 18.08.2009 wherein and by which, his service was terminated on the basis of proved charges. Though the petitioner had a right of appeal to the Senior Regional Manager, TASMAC, he did not file any appeal, but chosen to file the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2. In the second writ petition, the petitioner was a Salesman in Retail Shop No.6326 at Perambalur District. He was removed from service on the ground of adulteration of liquor. 3. Both the petitioners raised an identical contention viz., that after their explanation, an enquiry was ordered to be conducted by the Depot Manager and during the enquiry, no witness was examined and no documents were produced and proved in the manner known to law. The enquiry was nothing but questioning the petitioners of their conduct. This would amount to transferring the burden of proof on the petitioners. 4. Notice of motion was ordered on 11.09.2009. On notice from this Court, the respondents have filed a counter affidavit dated 29.03.2010. In respect of both cases, identical stand was taken by the respondent and the relevant averments set out in page 2 of the counter, which is as follows: "I respectively submit the district Manager by his proceedings date 18.04.2009 call for explanation from the petitioner for the charges after the receipt of Forensic report. I respectively submit that the district manager by his proceeding date 02.05.2009 appointed Mr.V.Thangarasu, Depot Manager as enquiry officer. I respectively submit that the petitioner personal appear for enquiry on submitted his explanation which reduce in writing on 18.05.2009. I respectively submit that enquiry officer submitted the report on 08.06.2009 before the district manager, Perambalur found that the explanation is not satisfactory and found proved all the charges leveled against the petitioner and recommended for further action. I respectively submit that the enquiry report was served upon the petitioner with show cause to give explanation for the report of the enquiry officer the petitioner submitted to written explanation on 26.06.2009 and pleader that he would be vigilant in future. I respectively submit that district manager summoned the petitioner who appear in person and district manager question the petitioner personally and recorded to explanation for all the charges on 14.08.2009 and terminated this service of the petitioner 18.08.2009 and served to copy of the termination order directly to petitioner on 22.08.2009." 5. The averments made by the respondent only proves the contention raised by the petitioners that there was no enquiry and whatever enquiry that was conducted ended up resulting only the petitioners being cross-examined. https://hcservices.ecourts.gov.in/hcservices/ 6. It must be noted that this Court in B.Sivakumar v. The Managing Director, TASMAC Ltd. in W.P.No.6304 of 2009 dated 15.03.2010 after analysing the provisions of various enactments applicable to TASMAC has finally held that the provisions of Section 41(1) of Tamil Nadu Shops and Establishments Act, 1947 and the Model Standing Orders framed by the State Government under Industrial Employment Standing Orders Act, 1946 will apply. In the present case, the order of termination given to the petitioners do no measure to the standard prescribed therein. Inasmuch as no worthwhile enquiry was conducted, the impugned order is liable to be set aside. 7. As to what is the elementary principles of conducting a domestic enquiry came to be considered by the Supreme Court vide its judgment in Meenglas Tea Estate v. Workmen reported in AIR 1983 SC 1719. In that case, the Supreme Court took exception that in the name of enquiry, only the chargesheeted workman alone would be examined and there was no evidence let in by the employer who chargesheeted the workman. In that context, in paragraph 4, the Supreme Court has held as follows: "4. The Tribunal held that the enquiry was vitiated because it was not held accordance with the principles of natural justice. It is contended that this conclusion was erroneous. But we have no doubt about its correctness. The enquiry consisted of putting questions to each workman in turn. No witness was examined in support of the charge before the workman was questioned. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him. In the present case neither was any witness examined nor was any statement made by any witness tendered in evidence. The enquiry, such as it was, made by Mr Marshall or Mr Nichols who were not only in the position of judges but also of prosecutors and witnesses. There was no opportunity to the persons charged to cross- examine them and indeed they drew upon their own knowledge of the incident and instead cross-examined the persons charged. This was such a travesty of the https://hcservices.ecourts.gov.in/hcservices/ principles of natural justice that the Tribunal was justified in rejecting the findings and asking the Company to prove the allegation against each workman de novo before it." 8. In the light of the above and there being no worthwhile enquiry conducted by the employer, the impugned orders will stand set aside. Both the writ petitions will stand allowed. No costs. Consequenlty, connected miscellaneous petitions are closed. However, it is open to the respondent TASMAC if they so desire to conduct a proper enquiry in accordance with law and in the light of the observation made by the judgment referred to above. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. svki The District Manager, The Tamil Nadu State Marketing Corporation Ltd., Perambalur District, Perambalur. 2 ccs to Mr.V. Rajinikanth, Advocate, Sr. 25472, 25473 1 cc to Mr.J. Ravindran, Advocate, Sr. 25741 W.P.Nos.18592 and 18593 of 2009 GV (CO) kk 22/4 https://hcservices.ecourts.gov.in/hcservices/