IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED; 13-10-2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.42497 of 2002 L.Russel ..Petitioner Vs. 1.The General Manager Tamilnadu State Transport Corporation (Madurai Div.III) Limited, Nagercoil, K.K.Dt., 2.The Managing Director Tamilnadu State Transport Corporation (Madurai Div.III) Limited, Nagercoil, K.K.Dt., … Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari calling for the records relating to the order of the 1st respondent issued in order No.1695/Legal-III/Discipline/TNSTC/02, dated 16.10.2002 and quash the same. For petitioner : Mr.P.Mahalakshmi for Mr.K.Ravichandra Babu For respondents : Mr.V.R.Kamalanathan (for R1 and R2) O R D E R The present writ petition is filed by the petitioner Conductor- L.Russel challenging the correctness of the issuance of the impugned notice dated 16.10.2002 in and by which he was called upon to submit his explanation to the proved charges that were found in the report of the enquiry officer. 2. The learned counsel appearing for the petitioner submits that when the petitioner who was appointed as Conductor on 2.11.1998 in the service of the respondent Corporation was on his duty as Conductor in a bus bearing Regn.No.TN74/N761 of Route No.83 V, some Checking Inspectors checked up the petitioner’s bus coming from https://hcservices.ecourts.gov.in/hcservices/ Erayummanthurai to Marthandam. After the Checking Inspectors boarded the bus at Thoothoor at about 17.40 hours, there were only eight passengers sitting in the bus. The Checking Inspectors on their inspection found that two tickets which were sold to two passengers were not recorded as sold in the journey bill. Further, these two tickets were marked at fare stage No.23 instead of fare stage No.13. In view of this, the Checking Inspectors were preparing irregularity memo to the Conductor. However, when the bus had reached the village which was the native place of the Conductor, immediately the petitioner Conductor by shouting, as though he had not done anything wrong called the passengers and his relatives. Under the instigation of the petitioner, the Checking Inspectors were manhandled by the petitioner along with his natives. As a result, one of the Checking Inspectors-D.Amose ran to the police station and lodged a complaint in the Nithravilai Police Station and thereafter, he took medical treatment at Government Hospital at Kuzhithurai and he was admitted in the Government Head Quarters Hospital at Kottar, Nagerkoil for the injuries suffered. When these things were brought to the notice of the higher officers, the petitioner was departmentally proceeded with by issuing a charge memo. But the petitioner refused to participate in the enquiry on the pretext that the criminal case filed by one of the Checking Inspectors was pending before the Criminal Court. Therefore, the learned counsel for the petitioner submitted that in any event, when the enquiry was over after completion of the enquiry, the disciplinary authority without even furnishing a copy of the enquiry report to the petitioner, by issuing the impugned order to the petitioner called upon the petitioner to submit his explanation which indicates that they have already made up their mind to terminate the petitioner from service. This is a clear indication of their decision to punish the petitioner when he was not even issued with a copy of the report of the enquiry officer. On this basis, it was contended that, first of all he was not given reasonable hearing before the enquiry officer and the enquiry officer proceeded exparte even though the petitioner was asked to postpone the enquiry till the completion of the criminal case by the criminal court and the enquiry officer submitted his report to the disciplinary authority. Even without furnishing a copy of the enquiry report to the petitioner, the disciplinary authority should not have issued the present impugned notice. Therefore, the learned counsel appearing for the petitioner submits that for non-furnishing of the report of the enquiry officer, the entire domestic proceedings are violated and on that basis prayed for setting aside the impugned notice calling upon explanation as to why he should not be dismissed from service. 3. Opposing the said relief, the learned counsel for the respondents submits that the domestic enquiry is different from the criminal case filed by the Checking Inspector-D.Amose who after suffering several injuries at the instance of the petitioner and his natives lodged a complaint before the Nithiravilai Police Station. Thereafter, he took medical treatment in the Government Hospital, https://hcservices.ecourts.gov.in/hcservices/ Kuzhithurai and then he was admitted in the Government Head Quarters Hospital, Kattar at Nagercoil for the injuries inflicted on him by the petitioner along with his natives. The criminal case filed against the petitioner under Sections 332 and 379 I.P.C., is nothing to do with the departmental proceedings. Therefore, the enquiry officer after giving number of chances to the petitioner, finding that the petitioner refused to participate in the enquiry proceeded exparte and thereafter submitted his enquiry report to the disciplinary authority. Therefore, the impugned notice was issued calling upon him to show his explanation as to why he should not be dismissed from service, hence, the impugned notice calling an explanation does not warrant any interference by this Court. 4. Heard the learned counsel for the respective parties. 5. (i) The petitioner was employed as a Conductor in the respondent Tamil Nadu State Transport Corporation, Madurai Division, Nagercoil, K.K.District. He was so appointed as a Conductor on 02.11.1998. While he was on duty as Conductor on 20.3.2002 in a bus bearing Regn.No.TN74/N761 of Route No.83 V, the Checking Inspectors checked up the bus in which the petitioner was on duty, on its journey from Erayummanthurai to Marthandam. While the Checking Inspectors boarded the bus at Thoothoor at about 17.40 hours, there were only 8 passengers in the bus. On proper investigation of the individual tickets it was found that two tickets under Rs.5.50 denomination bearing Nos.2561 and 2562 which were sold to two passengers were not recorded as sold in the Journey Bill. Again those tickets were also marked at fare stage No.23 instead of fare stage No.13. Therefore, the Checking Inspector-D.Amose after finding that this was done with a view to collect back those tickets from those passengers for the purpose of resale, for the said irregularities was preparing to issue a memo to the Petitioner/Conductor. But, at that time, the bus reached Virivilai bus stop, that is the native place of the Conductor. Soon after the bus was stopped, the petitioner shouted, as though, he had not done any wrong and called up the passengers and neighbours to come for his help. The passengers of the bus and also the public of that locality who gathered there, assaulted one of the Checking Inspectors Mr.D.Amose. Therefore, the Checking Inspector got down from the bus and ran towards the department Jeep to escape from the crowd. However, the crowd followed him and torn his shirt. Therefore, the Checking Inspector sped away in the Jeep leaving behind the co- Checking Inspector there. On his way, the Checking Inspector lodged a complaint in the Nithravilai Police Station against the petitioner and the same was also registered as Crime No.323/2002. In the meanwhile, another Checking Inspector, Mr.D.Rethinasamy was caught by the public including the petitioner and he was locked inside the house and managed to obtain a statement from him as if the Checking Inspector-D.Amose assaulted the petitioner herein and took away the cash bag etc. https://hcservices.ecourts.gov.in/hcservices/ (ii) After all this, the petitioner failed to remit the collection amount of Rs.4,963.50 and the floating cash of Rs.100/-. But only the driver of the vehicle Mr.E.David Raj handed over the ticket bag containing tickets worth Rs.2,000/- in the office. In view of the above serious misconduct reported against the petitioner, he was kept under suspension by order dated 23.3.2002. For all these reasons, the petitioner was issued with a charge-memo dated 30.3.2002 containing 12 allegations which are extracted hereunder: “Charges: 1. Not recorded the sale of the sold ticket Nos. 2561 and 2562 under Rs.5.50 denomination in the journey bill even though there were only a limited number of 8 passengers in the bus, while the bus bearing Regn.No.TN74/N761 of Route No.83 V was checked by the Checking Inspectors at Thoothoor at about 17.40 Hrs.on 20.3.2002 on its trip from Erayummanthurai to Marthandam. 2.Marked the Fare Stage No.23 instead of Fare Stage No.13 with an intention to collect those sold tickets for resale in the next journey. 3.Assaulted the Checking Inspector along with the passengers and village people while the Checking Inspector was issuing irregularity memo. 4.Joined hands with the public and assaulted the Checking Inspector on his back and pushed him aside, when he ran towards the Jeep No.9162 to save his life. 5.Responsible for the Checking Inspector taking first aid in Kuzhithurai Government Hospital and getting in patient treatment in Nagercoil Government Head Quarters Hospital. 6.Caught hold of the other Checking Inspector viz., Thiru D.Retnaswamy with the help of the public and threatened to his life and obtained written statement against Thiru D.Amose, Checking Inspector. 7.Lodged false complaint before the Nithiravilai, Police Sttion against Thiru D.Amose as if the Checking Inspector demanded Rs.500/- and as he did not give he was manhandled by the Checking Inspector. 8.On 21.3.2002 handed over the ticket rack containing tickets worth Rs.2000/- only through his co-worker Driver. 9.Misappropriated Rs.5063.50 including the collection amount Rs.4963.50 and floating cash Rs.100/-. 10.Incited the passengers and public and acted against the Checking Officials. 11.Obstructed the duties of the Checking Inspectors. 12.Committed misconducts as per Standing Orders No.13(d), (u), (z), (a), (ao), (ar), (au) and (aad) of the Corporation. https://hcservices.ecourts.gov.in/hcservices/ After receipt of the said charge memo, the petitioner also submitted his explanation dated 4.5.2002 denying the charges. Dissatisfied with the explanation submitted by the petitioner, enquiry was initiated against him and the petitioner was directed to appear for the enquiry fixed on 18.5.2002. But, he failed to appear before the enquiry officer. He sought for adjournments for enquiry. Therefore, the matter was adjourned to 6.6.2002, 5.7.2002, 5.8.2002 and 3.9.2002 at his request. In the meanwhile, the Criminal case filed by the Checking Inspector-P.Amose was also pending. By citing the pendency of the criminal case filed by D.Amose, the petitioner asked for the postponement of the enquiry indefinitely. But the letter written by the petitioner’s Counsel on 2.9.2002 addressed to P.Justin, Enquiry Officer shows that in view of the pendency of the criminal case filed by Mr.Amose, the departmental proceedings cannot legally proceed and on that basis he requested the enquiry officer not to hold the enquiry till the disposal of the criminal case. Again on 3.9.2002, the petitioner represented the same request, in addition to his letter dated 2.9.2002 through the lawyer Mr.R.Bennet Stephenson requesting the General Manager of the Tamil Nadu State Transport Corporation, Rani Thottam, Nagercoil to give up the departmental proceedings as it is not advisable to have the departmental enquiry, since the criminal case filed by one of the Checking Inspectors-Amoze has not been disposed of. (iii)These facts clearly show that the petitioner has deliberately abstained from participating in the enquiry. In fact, the department has not filed any criminal case against the petitioner. Only the Checking Inspector who was allegedly assaulted by the petitioner has filed the Criminal Case under Sections 332 and 379 IPC. Therefore, there is no connection between the criminal case filed against the petitioner under Sections 332 and 379 I.P.C., and the disciplinary action initiated under the provisions of the standing orders of the Corporation. When the petitioner called up for help the other passengers and the neighbours as though the Checking Inspector has assaulted him, it has created a huge problem. Since the petitioner was belonging to the same village, the public in that village gathered and assaulted the Checking Inspectors. As a result, one of the Checking Inspectors ran away from the spot towards the departmental jeep to escape from the crowd. Still the crowd followed him and torn his shirt. However, he managed to escape from the incident by leaving another Checking Inspector there itself who was locked inside a house and by threat the petitioner along with his native managed to obtain a statement the checking inspectors had assaulted the conductor, took away cash bag, ticket etc. After leaving the place in view of the attack suffered by him, Mr.D.Amose lodged a complaint in the Nithiravilai Police station, subsequently he took medical treatment in Government Hospital, Kuzhithurai due to the injury inflicted on him by the act on the part of the petitioner. Therefore, in view of the criminal complaint, filed by the Checking https://hcservices.ecourts.gov.in/hcservices/ Inspector-D.Amose, is pending for trial, citing the pendency of the Criminal Case filed by D.Amose, the petitioner has avoided the enquiry. However, the enquiry officer rightly proceeded with the exquiry exparte and on completion of the enquiry, the enquiry officer submitted his report. The disciplinary authority instead of furnishing a copy of the enquiry report to the petitioner, issued a show cause notice calling upon him to submit his explanation as to why he should not be removed from the service. When the enquiry officer has submitted his report to the disciplinary authority, the disciplinary authority without furnishing a copy of the enquiry report on completion of the enquiry and calling for the written explanation from the petitioner on the basis of the report of the enquiry officer, should not have issued the present impugned notice and therefore, the grievance of the petitioner is that without issuing the copy of the enquiry report, the present impugned notice calling upon him to submit his explanation is violative of principles of natural justice and the same deserves to be quashed, needs acceptance. (iv)In the judgment of the Apex Court rendered in UNION OF INDIA V. MOHD RAMZAN KHAN (1991 (1) SCC 588) it has been held that the report of the enquiry officer containing his findings will have to be conveyed to the delinquent, otherwise, this will violate the principles of natural justice. Admittedly, in the present case the impugned notice dated 16.10.2002, calling upon the petitioner to submit his explanation within seven days to show cause as to why he should not be dismissed from service has not mentioned furnishing of a copy of the enquiry report to the petitioner. (v) Moreover, calling upon the petitioner to submit his explanation as to why he should not be terminated from service also indicates the fact that the disciplinary authority has pre-judged the issue. Therefore, this Court is inclined to set aside the impugned order/notice. (vi) Further, in the decision rendered in ORIENTAL INSURANCE COMPANY LTD., V. S.BALAKRISHNAN ( 2001 (3) LLN 727) it has been held that non-furnishing of the enquiry report vitiates the entire enquiry proceedings. 6. In the light of the aforesaid judgments and also for the reasonings that the disciplinary authority has not furnished a copy of the enquiry report to the petitioner and the disciplinary authority has pre-judged the punishment, the impugned order is set aside. 7. However, by taking note of the serious nature of misconduct of the petitioner which has been proved by the enquiry officer, particularly, the way in which the petitioner called upon his own villagers to misbehave and assaulted the Checking Inspector and the https://hcservices.ecourts.gov.in/hcservices/ allegation of misappropriation, this Court directs the respondent disciplinary authority to furnish a copy of the report of the enquiry officer to the petitioner to submit his explanation to the enquiry report and then to proceed further in accordance with law and pass appropriate orders on merits. 8. With these observations, the writ petition stands disposed of. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sal To 1.The General Manager Tamilnadu State Transport Corporation (Madurai Div.III) Limited, Nagercoil, K.K.Dt., 2.The Managing Director Tamilnadu State Transport Corporation (Madurai Div.III) Limited, Nagercoil, K.K.Dt., 1 cc To Mr.K.Ravichandra Baabu, Advocate, SR.63435 1 cc To M/s.V.R.Kamalanathan, Advocate, SR.63354 order in W.P.No.42497/2002 RSI(CO) RH (14.11.11) https://hcservices.ecourts.gov.in/hcservices/