IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.08.2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.18716 of 1998 N.Sakthirajan ... Petitioner Vs. 1. Nesamani Transport Corporation Limited rep. by its Chairman, now known as Tamil Nadu State Transport Corporation (Madurai Division III) Limited, Nagercoil. 2. Managing Director, Nesamani Transport Corporation Limited now known as Tamil Nadu State Transport Corporation (Madurai Division III) Limited, Nagercoil. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India to India for the issuance of a Writ of Certiorari to call for the records of the 2nd respondent in his proceedings 3217/Legal 4/NTC/Disc/89-II dated 27.5.1991 confirmed by the office order of the 1st respondent of even number dated 11.2.1997, quash the same. For Petitioner : Mr.K.V.Subramanian, Senior Counsel for Mr.M.Abdul Wahab For Respondents : Mrs.Kala Ramesh 1 and 2 O R D E R The petitioner was working as a Chief Accounts Officer in Nesamani Transport Corporation (presently Tamil Nadu State Transport Corporation), Nagercoil. On 18.7.1988, the Managing Director of the said Corporation by his proceeding in No.18/CM/PC/NTC/88 issued a charge memorandum levelling as many as five charges. The petitioner submitted a due explanation for the same denying all the above charges. But, there was no further progress made on the basis of the said charge memorandum, instead, a fresh charge memorandum was issued to the petitioner by the Managing Director by his proceedings in No.03217/Legal.4/Disc./NTC/89 dated 9.5.1989. However, there is a reference about the charge memorandum dated 18.7.1988 in this https://hcservices.ecourts.gov.in/hcservices/ charge memorandum. In the charge sheet dated 9.5.1999, there were as many as 12 charges framed. The petitioner denied all the charges and duly submitted an explanation on 19.6.1989 itself. Thereafter not satisfied with the same, an enquiry into the said charges was ordered and accordingly, an Enquiry Officer was appointed. One Mr.S.Andi, a Retired Subordinate Judge, held enquiry into the charges. Before the Enquiry Officer, on the side of the Management, as many as four witnesses were examined and 25 documents were exhibited. On the side of the petitioner, 3 witnesses were examined and 74 documents were exhibited. At this juncture, it should also be mentioned that similar charge sheets had been issued to two other employees by name Lingasamy and Neelakandan. The Enquiry Officer conducted a joint enquiry as against all the three employees in respect of all the charges and submitted a common report. As a matter of fact, the evidence let in were also common. To put it otherwise, the evidence let in by one of the Delinquents was used against the other delinquents. Similarly a witness examined as against one delinquent was used as against other delinquents. Then a common report was filed by the Enquiry Officer on 30.3.1990 wherein the Enquiry Officer held that in so far as the petitioner is concerned, all the charges were proved. Thereafter, a copy of the report was furnished to the petitioner along with the second show cause notice for which the petitioner again submitted a reply. Finally, the Managing Director by his proceedings dated 25.7.1991 imposed a punishment of postponement of increment of one year with cumulative effect which is a major punishment as per the Corporation Regulations. Challenging the same, the petitioner preferred an appeal and the Board rejected the same under Resolution No.100 in its 65th Board Meeting held on 31.10.1996. The same was communicated to the petitioner by the Managing Director by his proceedings in No.3217/Legal 4/NTC/Disc/89-2 dated 11.2.1997. Challenging the above punishment, the petitioner has come up with this writ petition. 2. I have heard the learned Counsel for the petitioner and the learned Counsel for the respondents and also perused the records carefully. 3. Though several grounds have been raised in this Writ Petition, the learned Senior Counsel appearing for the petitioner would focus his arguments on the following grounds: i. The charges framed against the petitioner were all very vague which could not be defended by the petitioner effectively. On this ground alone, the entire punishment is liable to be set aside. ii. The enquiry was held jointly along with the other delinquents and the evidence recorded as against one delinquent have been used against the others. The procedure adopted, thus, by the Enquiry Officer is wholly illegal as the same violates the principles of natural justice. https://hcservices.ecourts.gov.in/hcservices/ iii. The Enquiry Officer's report together with the explanation of the petitioner was placed before the Board though the disciplinary proceedings had been initiated by the Managing Director. The Board considered everything and directed the Managing Director to issue the 2nd show cause notice as to why punishment should not be imposed. Thereafter, the Managing Director imposed the punishment. Curiously, an appeal filed by the petitioner was again considered by the very same Board and was rejected. When the Appellate Authority is the Board, the same ought to have refrained itself from considering the issues even before the Disciplinary Authority could decide. This again is violative of the principles of natural justice. 4. The learned Senior Counsel for the petitioner would further submit that the Board is only the Reviewing Authority and as per the Corporation Regulations, a selective members of the Board alone are the Appellate Authorities known as Selection Committee of Directors. But, in this case, instead of, the appeal being considered by such committee, the same was considered by the Board itself which again is illegal. 5. In order to substantiate all these contentions, the learned Senior Counsel for the petitioner has taken me initially through the entire Charge Memorandum dated 9.5.1989. For the sake of better appreciation, it would be very appropriate to extract the charges as found in the Charge Memorandum below : "1. That you have failed to verify the entire tickets ear marked for destruction. 2. That you did not carry out the entire destruction process at Sun Paper Mill Limited with your physical presence as directed by the Managing Director. 3. That you have failed to accompany the vehicle MSO 934 on 22.2.88 which carried the obsolete tickets for destruction and you have visited Sun Paper Mills only on 22.3.1988. 4. That you have failed to ensure entire destruction of tickets which have been entered in the surrender ticket register. 5. Due to your negligence, 80 paise ticket bundle K3B 2300 to 2399 was found out by a public on road at Tenkasi. 6. That you are responsible for the discrepancy in the number of gunny bags and card board boxes despatched from the corporation and received at Sun Paper Mills Limited. 7. That you have kept the surrendered block at the premises of Sun Paper Mills Limited for a month without informing the management. 8. A number of 105 denomination ticket bundles earmarked for destruction and acknowledged by you are taken possession for destruction were lying in the used Invoice and Way Bill Godown in the ground floor of Dept.- https://hcservices.ecourts.gov.in/hcservices/ II Office since you have delibertately committed the mistake. 9. That you have disobeyed the orders of the Managing Director. 10. Caused delay in finding the truth in the ticket scandle case. 11. Negligence in duty. 12. Committed misconduct as per rule 28(e), (g), (h) of the Conduct Rules of the Corporation." 6. No more statement of allegation was appended to the said charge memo. Further, the details of the fact which constitute the foundation for the charges have not been mentioned in the charge memorandum. The learned Senior Counsel for the Petitioner would further submit that no document has been mentioned in the Charge Memorandum and no copy of any document which was sought to be relied on by the Management during enquiry was supplied to him. Thus, according to the learned Senior Counsel, the entire proceedings have been conducted illegally in violation of the principles of natural justice. 7. Per contra, the learned Counsel for the respondents would vehemently oppose the Writ Petition. She would submit that for the first time vagueness is raised as a ground which cannot be entertained. According to her, the prejudice due to vagueness cannot be inferred and it is a matter to be pleaded and proved. She would add that throughout the proceedings, the petitioner did not express any grievance regarding prejudice because of the alleged vagueness of the charges. Non-furnishing of the statements of allegations and non-furnishing of the details regarding documents, according to the learned Counsel, would not amount to vagueness. She further added that the petitioner understood the charges, participated in the enquiry, faced the authorities and thereafter, simply because the petitioner has to face the punishment, he cannot be allowed to raise such prejudice for the first time in the Writ Petition. The learned Counsel would further submit that there is nothing wrong in holding a joint enquiry as against three employees, since the allegations are almost similar against each of the employee. She would further state that the evidences let in before the Enquiry Officer were duly appreciated by the Enquiry Officer who happened to be a retired Subordinate Judge. For sound reasons, according to the learned Counsel, the Enquiry Officer has found the petitioner guilty of all the charges. In respect of the consideration by the Board, all the proceedings even before any tentative decision could be taken by the Disciplinary Authority would be placed before the Board. The learned Counsel for the respondents would submit that it is only an irregularity which will not vitiate the proceedings. Similarly, according to her, the consideration of the appeal by the Board is also only an irregularity, but it does not vitiate the proceedings. The learned Counsel would conclude her arguments stating that the entire proceedings have been done strictly adhering to the procedure established under law, more particularly, the principles of natural justice and therefore, the https://hcservices.ecourts.gov.in/hcservices/ impugned punishment does not require any interference at the hands of this Court. 8. I have considered the above submissions. 9. In so far as the first and foremost contention of the learned Senior Counsel for the petitioner that the petitioner has been highly prejudiced because the charges were very vague, I find every force. It is settled law that giving a detailed charge memorandum with specific allegations mentioning instances which are the foundations of the charge would be part of the principles of natural justice. If the charges are so vague, it would not be possible for any delinquent to face the same effectively. Thus, by issuing a charge memorandum containing vague charges, the respondents have violated the principles of natural justice. 10. If it is a question of mere violation of one of the facets of the principles of natural justice, as has been repeatedly held by the Honourable Supreme Court, apart from showing that there has been violation of such facet of principles of natural justice, the delinquent is required to plead and prove prejudices also. But in a case where the principles themselves have been violated, then no prejudice need be shown by the delinquent in which case the very non-observance of the principles would vitiate the entire proceedings. In this regard, the learned Senior Counsel has relied on a judgment of the Honourable Supreme Court in Sawai Singh Vs. State of Rajasthan reported in AIR 1986 Supreme Court 995 wherein in paragraph 14 of the said judgment dealing with an identical situation, the Honourable Supreme Court has held as follows: "14. Quite apart from that fact, it appears to us that the charges were vague and it was difficult to meet the charges fairly by any accused. Evidence adduced was perfunctory and did not at all bring home the guilt of the accused." That was also a case where the appellant without raising any objection regarding the vagueness of the charges did participate in the enquiry. The Honourable Supreme Court further proceeded to say that the same would not exonerate the department to bring home the charges. In paragraph 15 of the said judgment, the Honourable Supreme Court has held as follows: "15. Shri B.D.Sharma, learned Advocate for the respondent, contended that no allegations have been made before the enquiry officer or before the High Court, that the charges were vague. In fact, the appellant had participated in the enquiry. That does not by itself exonerate the department to bring home the charges." 11. Similarly in Government of Andhra Pradesh and others Vs. A.Venkata Raidu reported in (2007) 1 Supreme Court Cases 338, the Honourable Supreme Court in paragraph No.9 of the judgment has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said G.Os. or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged." A perusal of the above judgment would go to show that it is the consistent view of the Honourable Supreme Court that charges should be more specific and precise, so that the Delinquent would be in a position to understand the charges, know the materials which are going to be placed against him so as to defend himself effectively. As held by the Honourable Supreme Court if the charges are so vague and the details of the instances which are the foundations of the charges have not been furnished and documents to be relied on have not been furnished, surely the proceedings will stand vitiated. 12. Per contra, the learned Counsel for the respondents would rely on a judgment of the Honourable Supreme Court in Om Prakash Mann vs. Director of Education (BASIC) and others reported in 2006 (4) L.L.N. 678 wherein the Honourable Supreme Court has held in paragraph No.9 as follows: "9. By now, it is well settled principle of law that the doctrines of principle of natural justice are not embodied rules. It cannot be applied in a straitjacket formula. To sustain the complaint of violation of the principle of natural justice one must establish that he has been prejudiced by non-observance of the principle of natural justice. As held by the High Court the appellant has not been able to show as to how he has been prejudiced by non-furnishing of the copy of the enquiry repot. The appellant has filed a detailed appeal before the appellate authority which was dismissed as noticed above. It is not his case that he has been deprived of making effective appeal for non-furnishing of copy of enquiry report. He has participated in the enquiry proceedings without any demur. It is undisputed that the appellant has been afforded enough opportunity and he has participated https://hcservices.ecourts.gov.in/hcservices/ throughout the enquiry proceedings, he has been heard and allowed to make submission before the enquiry committee." 13. In my considered opinion, the facts involved in the said case are totally distinguishable. That was a case where the dismissal of a probationer was considered by the Honourable Supreme Court. In paragraph No.10 of the judgment, the Honourable Supreme Court has held as follows: "10. ...It is well settled principle of law that if the probationer is dismissed/terminated during the period of probation no opportunity is required to be given and, therefore, the question of violation of principle of natural justice does not arise, in the given facts of this case." Therefore, the background in which the Honourable Supreme Court held in the said case that there was no violation of the principles of natural justice is not applicable to the instant case. Here in this case, as I have already stated, there is a total non-observance of principles of natural justice inasmuch as the charges were vague, the details of the instances which were the foundations for the charges were not furnished and the documents were also not either mentioned or furnished to the delinquent. Therefore, the judgment relied on by the learned senior Counsel for the petitioner alone would be helpful to resolve the issues involved in this writ petition. 14. The learned Counsel for the respondents would rely on a Single Judge Judgment of the Karnataka High Court in D.Anandakumar Vs. Indian Airlines and another reported in 1997 (2) LLJ 528 wherein the Karnataka High Court has taken the view that prejudice should be shown by the delinquent due to the non-observance of the principles of natural justice. That was a case relating to non- furnishing of a copy of the Enquiry Officer's report. The facts in the said case have nothing to do with the facts of the present case. 15. In view of the settled position of law, on a thorough analysis of all the charges framed in this case, I have to necessarily hold that the charges are very vague and thus there is a clear violation of principles of natural justice. Apart from that as I have already narrated, the details of the instances which are the foundations of the charges have not been furnished and the documents were also not furnished to the petitioner. 16. Coming to the procedure adopted by the Enquiry Officer in the matter of conducting enquiry also, it cannot be stated that the enquiry has been held and the same is in accordance with law. It is not known under what authority the Enquiry Officer clubbed the charge memorandums in respect of three individual employees and conducted a joint enquiry by recording common evidence and by submitting a common report. This, in my considered opinion, cannot be stated to be a mere irregularity, it is an illegality. This vitiates the Enquiry Officer's report. https://hcservices.ecourts.gov.in/hcservices/ 17. Nextly, the way in which the Enquiry officer's report was appreciated by the Disciplinary Authority. It is the law that based on the Enquiry Officer's Report, it is for the Disciplinary Authority to take a decision by following the procedure established under law. But in this case, instead, the Enquiry Officer's report was placed before the Board who is the Reviewing Authority as per the regulations, the Board has given a direction to the Managing Director/Disciplinary Authority to issue the 2nd show cause notice. This also shows that the proposed punishment is already predetermined by the Board and the Disciplinary Authority was not free to decide the issues on the Enquiry Officer's Report and on the explanation submitted by the petitioner. It is crystal clear that the Disciplinary Authority was pressurized by the Board to impose punishment upon the petitioner by simply acting upon the Enquiry Officer's Report. 18. Now, coming to the appeal filed by the petitioner, it is curious that instead of, the Committee constituted under the regulations deal with the appeal, the appeal was dealt with by the Reviewing Authority, namely, the Board. The Board has thus usurped the powers of the Committee/Appellate Authority in this matter. This also cannot be stated to be a mere irregularity. 19. For all the above reasons, I hold that the punishment imposed upon the petitioner cannot be sustained at all. When I am quashing the punishment including the charge memorandum, in normal course, this Court would have given liberty to the respondent Management to issue a fresh charge memorandum. But that course is not possible in the given set of facts of this case. The instances relating to the charges took place in the year 1987. If a fresh charge memorandum is allowed to be given at this length of time, i.e. after 23 years, it will surely be prejudicial to the petitioner in his defence. It is settled law that the disciplinary proceedings shall not be allowed to be vitiated after inordinate delay as the same would cause prejudice to the delinquent. Further, it is not the case of the respondents that any loss was caused on account of the alleged misconduct committed by the petitioner. In view of the above position, I am not inclined to give any liberty to the respondents to issue a fresh charge memorandum in respect of the allegations which are involved in this impugned proceedings. 20. In the result, the Writ Petition is allowed and the impugned punishment is quashed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. tsi https://hcservices.ecourts.gov.in/hcservices/ To 1. The Chairman, Nesamani Transport Corporation Limited, now known as Tamil Nadu State Transport Corporation (Madurai Division III) Limited, Nagercoil. 2. Managing Director, Nesamani Transport Corporation Limited now known as Tamil Nadu State Transport Corporation (Madurai Division III) Limited, Nagercoil. 1 cc to Mr.M.A. Abdul Wahab, Advocate, Sr. 57305 1 cc to Mr.P. Sukumar, Advocate, Sr. 57006 W.P.No.18716 of 1998 RSI (CO) kk 25/8 https://hcservices.ecourts.gov.in/hcservices/