In the High Court of Judicature at Madras Dated :-02.09.2008 Coram : The Honourable Mr.Justice K.RAVIRAJA PANDIAN and The Honourable Mr.Justice P.P.S.JANARTHANA RAJA W.A.No.1801 of 2004 and W.A.M.P.No.3373 of 2004 1.The Board of Directors, The Tamil Nadu Industrial Investment Corporation Ltd., rep. By its Chairman 473, Anna Salai, Nandanam, Chennai 35. 2. The Tamil Nadu Industrial Investment Corporation Ltd., rep. By its Managing Director, 473, Anna Salai, Nandanam, Chennai 35. 3. The Managing Director,T.I.I.C, 473, Anna Salai, Nandanam, Chennai 35. Appellants Vs. N.Somasundaram Respondent Prayer: Writ Appeal in W.A.No.1801 of 2004 is filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 31.03.2004 made in W.P.No.19121 of 2003 to issue a Writ of Certiorarified Mandamus calling for records of the Ist respondent made in proceedings No.TIIC/Admn./D.W./2003 dated 23.6.2003 and Proc.No.Admn/DW/2000-1 dated 29.3.2001 passed by 3rd respondent and to quash the same and direct the respondents to reinstate the petitioner to the post of manager and to pay all attendant benefits including the back wages. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.Vijay Narayan, Senior Counsel for Mr.M.J.Jaseem Mohammed For Respondent : Mr.R.Muthukumarasamy, Senior Counsel for M/s K.Venkatasubbaraju JUDGMENT (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) Having aggrieved by the order of the Writ Court dated 31.03.2004 made in W.P.No.19121 of 2003, the appellants preferred the present appeal. 2. The material facts of the case for the purpose of disposal of the appeal go as follows:- The respondent has joined as a Junior Officer (Technical) with the appellant in the year 1982 and promoted as a Branch Manager in the year 1994. While the respondent was working as Branch Manager in Ambattur Branch of the appellants, he was served with a charge memo dated 17.06.1999 for certain lapses alleged to have committed by him in approving/recommending loan to one M/s Lucky Auto Tech in the year 1996. As the respondent was not having any material to submit his explanation to the charges, sought for certain documents from the appellants. He was allowed to peruse some documents and some other documents have not been furnished to him. Ultimately, without any explanation being filed by the respondent, the enquiry was conducted and concluded by finding that out of 17 charges framed, 6 charges were proved and 9 other charges were not proved and two other charges were left to be decided by the disciplinary authority. After furnishing the Enquiry Officer's report and obtaining explanation from the respondent, the disciplinary authority held that charges No.7, 13 and 14, which were not found proved by the enquiry officer were also found to be proved and on that basis, passed the order as follows:- "9.....I concur with the findings of the Enquiry Officer in respect of charge Nos.1,2,6,9,11 and 15 which were held 'proved' by the Enquiry Officer and also concur with the findings of the Enquiry Officer in respect of charge Nos.7,13 and 14 which were held 'not https://hcservices.ecourts.gov.in/hcservices/ proved' by the Enquiry Officer. I do not conur with the findings of the Enquiry Officer in respect of Charge Nos.3,4,5,8, 10 and 12 which were held as 'not proved' by the Enquiry Officer and I hold them as proved. I also hold that charge Nos.16 and 17 are proved against the Employee charged. ...... ...... Accordingly, as per rule 6.16 of the Service Rules of the Corporation, it is ordered that Thiru.N.Somasundaram, Manager of the Corporation is placed to a lower post, i.e., to the cadre of Asst. Manager of the Corporation as specified in Rule 6.15(b)(vi) of the Service Rules of the Corporation and placed first in the seniority list in the cadre of Asst. Manager as on date as specified in Rule 6.15(b)(Vi) of the Service Rules of the Corporation from the date of this order". 3. Aggrieved by that order, the respondent preferred an appeal before the first appellant on the ground that the enquiry was not properly conducted; the same is contrary to the principles of natural justice; that none of the charges levelled against him was proved by the Management by examining any witness; that the documents relied on by the Management has not been marked through witnesses as required by the Service rules and thus the respondent was denied the valuable opportunity of cross-examining the witnesses and explaining the documents to prove his innocence and that the imposition of penalty is based on no evidence and the enquiry is farce in nature. 4. When the appeal was pending before the first appellant Board, it issued a show cause notice dated 15.02.2000 calling upon the respondent to show cause as to why the punishment imposed on the respondent by the disciplinary authority, reduction in rank should not be enhanced as to one of dismissal from service. The respondent filed his explanation objecting the same by his reply dated 27.03.2002. However, the first appellant passed an order dated 23.06.2003 dismissing the respondent from service. 5. The correctness of the said order was challenged by the respondent by filing writ petition in W.P.No.19123 of 2003. The Writ Court in its order dated 31.03.2004 set aside the enquiry proceedings and concluded as follows:- "7. For all these reasons, I am inclined to set aside the impugned disciplinary action initiated against the petitioner, with a direction to the respondents to reinstate the petitioner in https://hcservices.ecourts.gov.in/hcservices/ service in the capacity of Manager, by passing appropriate orders within thirty days from the date of a copy of this order, of course, leaving the matter to the respondents as to the further course of action. The writ petition is allowed. No costs". 6. The correctness of the same is canvassed in this appeal. 7. Mr.Vijay Narayan, learned Senior Counsel appearing for the appellants contented that the enquiry officer has recorded his finding based on documents, that which are as many as 58 produced before him; that those documents are official documents; that at no stage the respondent objected to the enquiry proceedings; that no prejudice whatsoever has caused to the respondent in not marking the documents through witnesses. The applicability of principles of natural justice in the recent time has undergone a sea change after the decisions of the Supreme Court in the case of E.C.I.L. vs. B.Karunakar, reported in (1993) 4 SCC 727, State Bank of Patiala vs. S.K.Sharma reported in (1996) 3 SCC 364. All the decisions have been subsequently re-affirmed by the Supreme Court in the case of P.D.Agrawal vs. State Bank of India and Others reported in (2006) 8 Supreme Court Cases 776. Totally contrary to the above settled principle of law. the Writ Court has set aside the order of the appellant on the ground of violation of principles of natural justice. 8. Per contra, Mr.R.Muthukumarasamy, learned senior counsel appearing for the respondent contended that it is true that the concept of violation of principles of natural justice which vitiates the entire enquiry proceeding has undergone a change, but those judgments have carved out certain circumstances - where the procedure followed was not as required by the statutory provision which is substantive in nature, would definitely vitiates the proceedings; when the prejudice caused to the delinquent officer is manifest, the violation of principles of natural justice definitely vitiates the enquiry proceedings. 9. We have heard the arguments of the learned counsel and perused the materials on record. 10. The disciplinary proceedings against the respondent was initiated on the following charges by charge memo dated 17.6.1999:- "Charge 1: that he in violation of Circular No.Project/91-92/02-07 dated 11.02.1992 considered M/s Premier Machine Tools for supply of machinery https://hcservices.ecourts.gov.in/hcservices/ to the borrower who is neither a manufacturer nor a standard supplier or their accredited dealers or approved supplier in the list of Corporation and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. Charge 2. that he recommended M/s Premier Machine Tools for supply of machinery which resulted in over invoicing, supplying of substandard machinery etc., and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. Charge 3: that he failed to note that M/s Premier Machine Tools failed to mention about the number of dies, size, specification etc., in the proforma invoice and he also failed to assess the requirement of dies and recommened only lumpsum provision of Rs.1.00 lakh for dies and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation.(charged not proved by the Enquiry Officer) Charge 4: that he recommended M/s Premier Machine Tools for supply of machinery at a cost of Rs.29,18,912/- whereas the actual cost of the machinery was only Rs.4,29,000/- and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. (charged not proved by the Enquiry Officer) Charge 5: that he obtained the legal documents through a person who was not authorised viz., LAA even though there are LAO and Officer (Legal) in that Branch in violation of the norms of the Corporation and thereb violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. (charged not proved by the Enquiry Officer) Charge 6: that he approved the disbursement note put up by LAA instead of LAO violating the norms of the Corporation and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. https://hcservices.ecourts.gov.in/hcservices/ Charge 7: that he accepted bogus Encumbrance Certificate and VAO Certificate from the borrower and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. (charged not proved by the Enquiry Officer) Charge 8: that he obtained the property in S.No.80, extending 50 cents, Srinivasapuram Village,Ayyappanthangal, Sriperumbudur Taluk, which was already sold by the mortgagor and disbursed the loan amount without collateral security and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. (charged not proved by the Enquiry Officer) Charge 9: that he failed to collect Risk Coverage Fund dues before the first disbursement as against the norms of the Corporation and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. Charge 10: that he failed to note that the cost of the machinery at the time of disbursement was escalated to the tune of Rs.1.68 lakhs i.e., from Rs.28,18,912/- (as per the scheme) to Rs.30,87,432/- within 2 months from the date of original quotation without any reason and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. (charged not proved by the Enquiry Officer) Charge 11: that he released contingency provision to the machinery supplier without any justification/explanation for the cost escalation and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. Charge 12: that he failed to obtain insurance policy for the machinery before disbursement of the loan as per the norms of the Corporation and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. (charged not proved by the Enquiry Officer) https://hcservices.ecourts.gov.in/hcservices/ Charge 13: that he failed to note that the machinery supplier had supplied dies for cycle components and that the dies supplied by the supplier were not relevant for this scheme and without ascertaining these facts he had recommended the disbursement of the loan amount to the borrower and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. (charged not proved by the Enquiry Officer) Charge 14: that he enclosed the borrower's margin money cheque of Rs.1,10,000/- along with the commitment letter to the machinery supplier M/s Premier Machine Tools and handed over the same directly to the machinery supplier by RPAD in violation of Circular No.1 dated 14.11.84 of the Operation Department, and MD D.O. Letter dated 26.12.86 and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. (charged not proved by the Enquiry Officer) Charge 15: that he disbursed a sum of Rs.5,53,432/-towards SBL, whereas the borrower was eligible only for Rs.4,85,289/- i.e., 85% of the eligible SBL amount in violation of the norms of the Corporation and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. Charge 16: that he in furtherance of the conspiracy to defraud the Corporation hatched with Thiru.S.Sivasubramanian, Assistant Branch Manager, Thiru.S.Rajagopal, Manager, Thiru.Gunaseelan Abraham, Officer (F) and Thiru.L.Jagannathan, LAA, the borrower,supplier, panel valuer and to unduly and illegally enrich himself and others had indulged the above lapses/irregularities and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 (xiii) of the Service Rules of the Corporation. (left to the disciplinary authority to decide) Charge 17: that his conduct as above is unbecoming of an employee of a financial institution and thereby violated rules 6.14 (viii) and (xii) and 6.1 (a), 6.1 (b) read with 6.14 https://hcservices.ecourts.gov.in/hcservices/ (xiii) of the Service Rules of the Corporation. (left to the disciplinary authority to decide)". 11. On service of the show cause notice, the respondent sought for certain documents. It is pertinent to state here that on and from 10.05.1996, the respondent was not working as a Manger of the Ambattur Branch of the appellant, but was transferred to the Head Office, that made the respondent to sought for certain documents to give reply to the charge memo. However, he was only allowed to peruse certain documents and certain other documents were not furnished to him, which is obvious from paragraph 3 of the Enquiry Officer's report, wherein it is stated as follows:- "During the course of enquiry, the employee charged requested the undersigned to call for and verify certain other files indicated by him so that the employee charged may come to his own conclusion in this enquiry. I am unable to accept the request of the employee charged whether the employee charged has adhered to the rules/practices/circulars of the Corporation and has acted with due care and without negligence based on facts, materials, Management exhibits available and the records connected therewith. In my opinion, it is not within the scope of my enquiry to call for various other files to examine whether similar lapses as alleged by the employee charged have been committed or not in those files". 12. The enquiry officer has come to the conclusion that those files were not relevant to the enquiry in his opinion without giving any reason with reference to the documents sought for by the respondent for reaching such conclusion. However, it is evident from the above extracts that the documents were required by the respondent to prove that the Corporation has allowed the supplier in certain other cases to supply machineries. It is also evident from the enquiry officer's report that the Management representative submitted as many as 58 exhibits and none of the exhibits has been furnished to the delinquent officer and they have been simply taken on file at the instance of the Management Representative. Yet another factor is that the enquiry has been concluded without there being any explanation to the charges levelled against the respondent. It is also amply clear from the enquiry officer's report as well as the conclusion arrived at by the Writ Court that the enquiry was concluded based on the charge memo and the documents submitted by the Management Representative without the document being proved as correct by adducing oral evidence. The enquiry has not been conducted by giving an opportunity to the respondent to refute the content of https://hcservices.ecourts.gov.in/hcservices/ the documents by examining witness. The documents were not marked through the witnesses for the purpose of establishing the same. Unless the documentary evidence relied on by the Management to substantiate the charges is proved by giving an opportunity to refute the same, it cannot be regarded that documents are proved. However, in this case, these documents are taken to its face value. 13. It is also contended, rather admitted fact that pursuant to the recommendation made by the respondent, the Loan Sanctioning Committee of the appellants sanctioned the loan on 29.03.1996 with a condition that the disbursement of the loan should be made after installation of the machinery in the loanee's factory and after obtaining the valuation report of such machinery from the approved valuer. In the recommendation made by the respondent, supplier has been identified by him. On 10.05.1996, the respondent was transferred from Ambattur Branch to the Central Office. On 18.05.1996, the machinery for which loan has been sanctioned has reached the premises of the borrower. The appellant got the valuation report of the machineries purchased by the loanee on 21.05.1996 from the approved valuer. Again on 23.05.1996, the site was inspected. On 29.05.1996, the loan was released to the borrower. On 12.11.1996, one more inspection was also took place for valuation of the machineries and the report has been submitted. As the borrower committed default in making repayment of the loan, on 08.01.1998, the appellant Corporation seized the machineries and valued the same to Rs.4.29 lakhs as against the value of Rs.29 lakhs valued earlier. In that valuation report, it is noted that most of the part of the machineries are not available. All the above objections were not allowed to be established. 14. Rule 6.17 of the Service Rules of the Corporation provided for conduct of the enquiry, which reads as follows:- "In every case where it is proposed to impose on a member of a service under the Corporation any of the penalties specified in items (i)to (x)in Rule 6.15, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He/She shall be required within a reasonable time, to put in a written statement of his/her defence and to state whether he/she desires an oral enquiry. The enquiry shall be held if such an enquiry is desired by the person charged or is directed by https://hcservices.ecourts.gov.in/hcservices/ the authority concerned. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses called, as he/she may wish, provided that the Officer conducting the enquiry, may, for special and sufficient reasons to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and on statement of the findings and the grounds thereof. Provided that in case of a person appointed or promoted to a post by transfer from any other class or service the Corporation may at any time before the appointment of the said person as a full member to the said post revert him/her to such class or service either for want of vacancy or in the event of his/her becoming surplus to requirements without observing the formalities prescribed in this sub-rule". 15. On the face of the above statutory requirement, it is mandatory that an oral enquiry to be conducted and oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses called. Contrary to the said provision, no oral enquiry has been conducted in this case. All the documents produced by the Management Representative have been taken on file as if the contents of documents have been proved as required under the provision. This aspect of the matter has not been disputed by the appellants in their counter affidavit filed before the Writ Court, rather, it is an admitted fact that enquiry has been concluded on the basis of the charge memo and the documents filed by the Management Representative without there being any explanation to the same from the respondent. The above process of conducting enquiry is definitely against the statutory requirement. This violation can only be regarded as violation of substantive statutory provision. Even assuming that the said provision is procedural in nature, the violation of the same, in our view, caused prejudice to the respondent. 16. It is the specific case of the respondent that under defence Ex.1, the very same supplier has been considered for supply of machineries by the appellant Corporation to 1. M/s Shrdi Baba Metals, Hosur 2. M/s Technofab Industries, Hosur 3. M/s Sons Corporation, Madras https://hcservices.ecourts.gov.in/hcservices/ 4. M/s Madha Watch House, Ambattur 5. M/s Narmadha M/c Tools, Madras 39 6. M/s Shanmuga Industries, Thiruvannamalai 7. M/s Saran Industries, Madras 50 The supplier had also supplied machineries through Indian Bank, Amruthanjan Finance Ltd., Madras, Tamilnadu Industrial Co.operative Bank Ltd., Mercantile Credit Corporation Ltd., Madras and Federal Bank etc. The concern has obtained competitive quotation from Singi Industries Patala, Techno Machine Tools, Madras and Excel Machinery Tools, Madras and has further adduced by way of evidence the copy of the Valuation report of Panel valuer dated 12.04.1996 at the time of arrival of the machineries to the borrower's plant, the legal opinion of the Panel Advocate dated 26.04.1996. Yet another machinery valuation report dated 21.05.1996, the Inspection report of the first appellant officer dated 23.05.1996 and yet another valuation report of the Panel valuer dated 23.10.1996 and the Inspection report of the officer of the appellant dated 12.11.1996, Seizure report of the machinery dated 17.02.1997 and the valuation report of the seized machine dated 08.01.1998. Those documents were produced to prove his case that the supplier has been approved by the Corporation in various other cases and the credential has also been accepted by the Corporation and the value of the machineries supplied by the Supplier has not been over invoiced as per the valuation report above referred to. The valuation report of the after seizure clearly stated that most of the parts of the machinery was not available and it has been valued at as is where is condition. 17. If an opportunity had been given as required under the statutory provision of the Service Rules above referred to, the respondent would have proved his case atleast to his satisfaction against the charges levelled against him. For that purpose, an enquiry as contemplated under the above rule had to be conducted, which is not followed in this present case. Hence, prejudice is manifest in this case. 18. The other factor that when the disciplinary authority had taken a different view than the view of the enquiry officer, in respect of the charges which were found to be not proved by the enquiry officer, an opportunity would have been given to the respondent to say his objection to the same, which requires no precedent and it is fundamental that no order adverse to the person should be passed without giving him an opportunity. But, in this case, even without a show cause notice, the disciplinary authority has reached the conclusion that in respect of charge Nos.7,13 and 14, which were held as 'not proved' by the Enquiry Officer, has also https://hcservices.ecourts.gov.in/hcservices/ been held to be proved. He further gave a finding that charge Nos.16 and 17 were proved against the Employee charged. It is totally against the well established service