THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.NO.17367 OF 1996 ORDER: The petitioner seeks a direction in the form of writ of mandamus, to direct the respondent to pay him the differential salary and other benefits pursuant to his voluntary retirement, treating him to have retired as such as Stores Officer-Grade II. The writ petitioner joined the service of the Electronic Corporation of India Limited, henceforth referred to as `ECIL’ as a Lower Division Clerk/Typist on 29.4.1971 and ultimately earned promotion as a Stores Officer – Grade II on 1.5.1986. While he was working as such he appears to have noticed certain discrepancies with regard to the quantity of scrap supplied by one of the contractors of ECIL and hence he has lodged a written complaint in that regard with the Assistant General Manager on 14.6.1993. However, suspecting that the writ petitioner may have been involved in the discrepancies relating to scrap supplied by the contractor, he was placed under suspension on 1.10.1993, followed up by a charge sheet issued to him leveling the following three specific charges: i) Fraud or dishonesty in connection with the business or property of the Company; ii) Acting in a manner prejudicial to the interests of the Company. iii) Commission of any act subversive of discipline or of good behaviour. These three charges are based upon the following allegation: “It has been alleged that you have indulged in certain malpractices in collusion with M/s. Sharada Mechanical Engineering, who are the Sub-Contractors for APD in determent to the interests of the Corporation. Further it has been alleged that the items as well as quantities returned back by the said Sub-Contractors have been altered/manipulated/added in the respective Delivery Challans with ulterior motives. The details of discrepancies that came to notice are shown in the Annexure.” At the domestic enquiry, seven witnesses have been examined on behalf of the management, while the writ petitioner has examined two witnesses on his behalf. The Enquiry Officer concluded the enquiry and found six of the limbs of the allegations to have been held established while two limbs are said to be not established. Based upon this enquiry report, the writ petitioner has been imposed the punishment of reduction to a lower grade to the post of Assistant Stores Officer. Order of punishment was imposed on 6.7.1995 by the General Manager who is the competent disciplinary authority. However, the writ petitioner appears to have submitted an application seeking to retire voluntarily from the service of the corporation which was accepted on 28.7.1995 and has been relieved accordingly from the service of the corporation with effect from 28.7.1995 AN. The writ petitioner, in effect, seeks to challenge the validity of the order imposing punishment on him and since he has already retired from the service of the corporation immediately after the order of punishment has been imposed, he sought for direction for a payment of the differential amounts of benefits between what was paid to him treating him as an Assistant Stores Officer and what he would have got had he been treated as a Stores Officer-Gr.II. The writ petitioner was specifically alleged to have colluded with the proprietor or the representatives of M/s. Sharada Mechanical Engineering, who are the sub- contractors of ECIL. It was specifically alleged that he has fraudulently or dishonestly altered/manipulated/added the quantities in the respective delivery challans furnished by the said sub- contractor. The details of the eight manipulated transactions have been listed out. At the domestic enquiry, the proprietor of the firm M/s. Sharada Engineering has been examined as PW7. Though several other officers of the ECIL are also examined, no one has specifically alleged that it is the writ petitioner who has carried out any such unauthorized alterations or manipulations. The entire case of the ECIL is sought to be rested upon the statement made by the proprietor of the said Sharada Mechanical Engineering Firm. Interestingly enough, the said proprietor has not spoken a word about the role of the writ petitioner in the alleged manipulations. On the contrary, he has specifically alleged that it is someone else who has attempted the manipulations. However, the Enquiry Officer realizing the dearth of material brought forth on behalf of the management to establish the guilt of the writ petitioner, has chosen a novel method of finding the writ petitioner guilty of the allegations on the precious plea that the explanation offered by him has not been found satisfactory. It will be useful therefore to extract as to how the Enquiry Officer concluded his report with reference to the six specific charges thrown against the writ petitioner and found established by him. Case by case findings from enquiry proceedings of the discrepancy detailed in Annexure to Charge sheet: 1. Discrepancy – Sl. No.1 of the Annexure to Charge Sheet: L.T. Brackets – DF No. 32872, dt. 18.1.92 – Qty as per DF 10 Nos. DC No. 62 dt. 18.1.92 – Qty as per DC 1640 Kgs A1 Scrap The Proprietor of M/s. Sharada Mechanical Engineering, Hyderabad (Sub-Contractor) Mr. Veera Swamy has stated that he had sent 10 LT Brackets with DC for 10 LT Brackets. He had also sent 1640 Kgs of scrap with corresponding DC. But the 1640 Kgs of A1 Scrap never entered ECIL whereas the Declaration Form for LT Brackets was used for showing the return of 1640 Kgs of A1 Scrap. This manipulation, he carried out at the instance of Mr. Kameswara Rao, Stores Assistant and Mr. Madhusudan Rao, Stores Assistant. Shri Shankaraiah has stated that when he had received the scrap of 1640 kgs, the representative of Sub-Contractor had shown him the original DF containing 1640 Kgs. Of scrap along with LT Brackets and he has not physically checked the scrap. The explanation given Mr.Shankaraiah is found not convincing because when the quantity of scrap returned is more than 500 kgs as per the established practice it should be accompanied by weighment certificate and scrap unloading is done in the presence of security guard, representative of stores as well as supplier. Shri Shankaraiah has not followed the above and acknowledged the receipt of the scrap which indicates that he has involved himself in manipulation of DC. 2. Discrepancy – Sl. No.2 to the Annexure of Charge Sheet: A1 Scrap – DF No. 47436 dt. 11.5.1992 – Qty as per DF 42 Kgs DC No. 005 dt.11.5.92 – Qty as per DC 1242 Kgs The Proprietor of Shri Sharada Engineering, Mr.Veera Swamy, has stated that he had sent 1242 kgs of A1 scrap and weighment certificate was given for 1200 Kgs, but the material that entered ECIL only 42 kgs as per D/F. The balance 1200 Kgs of A1 Scrap never entered ECIL. Shri Shankaraiah has stated that when he had acknowledged the DC the original DF has shown 1242 kgs. Since weighment slip shows 1200 kgs he had corrected the DC to 1200 Kgs. And singed accordingly and he has not seen the physical receipt of the scrap. The explanation given by Mr.Shankaraiah is found not convincing. As per established practice the return of scrap of this quantity has to be done with the representatives of security, stores and sub-contractor. He has corrected the DC from 1240 kgs to 1200 kgs to suit the weighment certificate and this he has done without the involvement of security and the representative of the sub-contractor. Shri Sankaraiah has, therefore, involved himself in the manipulation. 3. Discrepancy – Sl. No.3 of the annexure to the Charge sheet : A1 Scrap – DF No. 64651 dt. 16.10.92 – Qty. as per DF – 17 Kgs DC No. 044 dt. 16.10.92 – Qty. as per DC – 117 Kgs The Proprietor Mr. Veera Swamy of M/s. Sharada Mechanical Engineering has stated that he has sent only 17 kgs. A1. Scrap under DF No. 64651. It appears that Shri Kameswara Rao, Stores Assistant, got the DC altered to 117 Kgs. Shri Shankaraiah has stated that when he received the scrap, the original DF showed as 117 kgs. The original DF could not be produced during the enquiry proceedings, but, however, Shri Shankaraiah as Stores Officer should have physically checked the quantity before acknowledging the DC which indicates his involvement in the manipultation. 4. Discrepancy – Sl. No.4 of the annexure to the Charge sheet: MS Scrap – DF No. 71775 dt. 30.12.92 – Qty as per DF – 270 Kgs DC No. 068 dt. 30.12.92 – Qty as per DC – 1270 Kgs According to the Sub-Contractor only 270 Kgs of MS Scrap entered ECIL and later DC was altered as 1270 Kgs at the instance of Mr.Kameswara Rao, Stores Assistant. Shri Shankaraiah has stated that when the DC was shown to him at the time f receipt of material, the quantity was 270 Kgs and that the DC was corrected at the time of taking GR Number on DC. The explanation given by Shri Shankaraiah is not convincing as issue of GR No. is the area of responsibility of Stores Officer. It indicates that there is involvement in the manipulation. 5. xxxxxxxxxxxxxxxxxxxxx 6. xxxxxxxxxxxxxxxxxxxxx 7. Discrepancy Sl. No. 7 of the Annexure to the Charge Sheet: SS Scrap DF No. 91677 dt. 20.5.93 – Qty. as per DF – 19 Kgs DC No. 16 dt. 20.5.93 – Qty. as per DC – 540 Kgs Shri Shankaraiah could not give satisfactory explanation in respect to quantity discrepancy of this DC except that he has acknowledged the DC without seeing original DF. The explanation is not satisfactory and it indicates involvement of manipulation in quantity. 8. Discrepancy Sl. No.8 of the Annexure to the Charge sheet: A1. Scrap & DC No.17 dt. 20.5.93 185 kgs & SS Scrap 41 Kgs Shri Shankaraiah has acknowleged the DC without seeing the original DF. The explanation given by Shri Shankaraiah is not convincing and it indicates his involvement in the manipulation.” From a perusal of the above, what emerges is that the Enquiry Officer has proceeded as if it is for the writ petitioner to establish his innocence and since he has failed in that regard, he was found guilty of the allegations leveled by the management. I am afraid, that this is hardly a satisfactory way of concluding the disciplinary proceedings. It is the management of the ECIL, which leveled the charges. It must bring home those charges against the delinquent employee with reference to relevant material evidence. If the management of the ECIL has failed to bring home the charges, with reference to specific and or credible material, the employee cannot be penalized, for his failure to come up with a satisfactory explanation. Particularly, in a case where a specific allegation has been thrown against the writ petitioner that he has altered or manipulated the delivery challans submitted by a sub- contractor, there should be positive and concrete material upon which such conclusions are drawn and thus linking up the mischievous conduct of the employee. The writ petitioner cannot explain as to who has attempted or carried out such alterations or manipulations. All he can plead is that, he has not done it. It is in fact, he, who has brought out in his complaint dated 14.6.1993 the discrepancies noticed by him. It, therefore stands to reason to infer that the writ petitioner may not have implicated himself by filing an adverse report on 14.6.1993. Obviously, the proprietor of the sub- contracting engineering firm has been examined to establish the collusion between the writ petitioner and the said firm or its representatives. When the statement made by PW7, the proprietor of the said firm before the Enquiry Officer is perused in its totality, far from implicating the writ petitioner, the proprietor of the said engineering sub-contractor firm has specifically named two other employees as responsible for the entire episode. The ECIL has not bothered to proceed against them or even when proceeded, the result thereof is not brought out. When I repeatedly queried the learned Standing Counsel as to what action has been taken against the employees whose role has been spoken to by the management witness himself, an additional counter affidavit has been filed in the matter, the contents of which are very evasive. No answer is forthcoming as to why the other employees have been spared of any penal action. A distinctly uncomfortable feeling has been left behind by the ECIL that it was not willing to come up clean in this regard. The power of judicial review is liable to be exercised with regard to the scrutiny of the decision making process itself and it has got nothing to do with the ultimate decision itself. If the decision making process is fair, reasonable and the relevant principles of natural justice have been applied, then this court does not exercise any appellate power to sit over the decision of the disciplinary authority. It would be apt, in this context, to recall the legal limits or contours of judicial review power spelt out by the Supreme Court in Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh[1]: “6. …….. The judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice……...” However, perversity of conclusion reached by an Enquiry Officer, whose conclusion in turn has formed the basis or substratum for further action by the disciplinary authority, is one of the recognized grounds for exercise of certiorari jurisdiction. It would be appropriate to notice the principle enunciated by the Supreme Court in this regard in H.B.Gandhi v. Gopinath and others[2], which is to the following effect: “………… But what was assailed in review was, in substance, the correctness — as distinguished from the legal permissibility — of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. 8. But here what was assailed was the correctness of findings as if before an appellate forum. Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.” When we bear these legal principles in mind and examine the findings recorded by the Enquiry Officer, it becomes crystal clear that the conclusions are drawn by the Enquiry Officer not so much based upon the evidence gathered at the enquiry, but on the precious plea that the writ petitioner has failed to establish his innocence in the matter. Unlike in criminal trials where the burden of proof on the State does not get shifted on to the accused till the very last and beyond all reasonable doubt, even in domestic enquiries, which are quasi judicial in nature and content, the initial burden lies on the management which has leveled the charges/allegations against the delinquent employee. Until and unless reasonable material is brought forth at the domestic enquiry, establishing the role played by the delinquent employee, the burden does not get shifted on to the shoulders of the delinquent employee. Preponderance of probability pre-supposes that the allegations leveled by the management are the probable ones in the face of the material brought forth. The management which levels the charges without brining forth any material cannot accept the probability of the allegations sticking to the employer. Therefore, while the judicial review courts do not weigh and assess the sufficiency of material or evidence available on record, but it does certainly make an assessment as to availability of some relevant material or the other on record. Without there being any material brought forth, it is not open to a domestic tribunal to draw the conclusions of guilt. If such conclusions are drawn, they become fatal, for, the standard to be applied is the one which a reasonable body of mean, would have reached to such a conclusion in the face of availability of the material. Where no material exists, the reasonable body of men would not have reached the conclusion that the delinquent employee is guilty of allegations drawn against him. If a conclusion contrary to the evidence/material on record is reached, it acquires the dimension of perversity. Perversion of conclusion of the Enquiry Officer, which in turn forms the basis of action by the disciplinary authority, it supplies automatically fatal ammunition for destruction of the ultimate decision. In the instant case, the order of punishment passed by the disciplinary authority has almost and without fail drawn inspiration and support only from the findings of the Enquiry Officer. The findings of the Enquiry Officer which were extracted supra, in turn are based upon the theory that the writ petitioner has failed to convincingly explain that he is not guilty of the allegations. To my mind, the approach adopted by the Enquiry Officer and the disciplinary authority are totally erroneous. They have not discharged the initial burden lying on them to bring home the allegations and charges leveled against the writ petitioner. In the counter affidavit, three objections have been specifically pleaded for dismissing this writ petition. (1) The ECIL being a corporate entity has not been impleaded as a party respondent to this writ petition. (2) The disciplinary authority who imposed the punishment viz., the General Manager has not been impleaded. (3) An appeal is provided under the Employees CCA Regulations and without exhausting the appellate remedy, this writ petition is instituted. It is true that ECIL being a company has a corporate entity and every company is liable to be sued in its name. It is only liable to be represented by its Managing Director. Its no doubt true, in the instant case, ECIL as a corporate body has not been impleaded as a party respondent, but instead the Chairman and Managing Director of ECIL has been made the respondent. The Chairman and Managing Director of ECIL is the highest executive of the said corporation. I can only observe that it is an imprecise way of settling the pleadings. The party really meant to sue was the ECIL as a corporation and as his employer, but not its Chairman and Managing Director in his official capacity alone. For such imprecise and improper pleadings alone, the writ petition should not be thrown out. When the intention is otherwise manifest from the record, it would not be improper to infer that the relief is only sought for against ECIL by the petitioner, but not against its Chairman and Managing Director. Further, the fact that the disciplinary authority has also not been impleaded does not vitiate the entire exercise. If any specific vitiating acts are attributed to the exercise of power carried out by the disciplinary authority, or any malice is attributed the presence of such an authority as a party respondent was essentially required inasmuch as without providing an opportunity to such an agency, no adverse finding can be recorded about any such improper exercise of power. However, in the instant case, no such allegations have been thrown against the disciplinary authority. On the contrary, the exercise of power by the disciplinary authority has been termed as unsustainable in the face of the legal principles on the subject. I therefore hold that not impleading the disciplinary authority viz., the General Manager to this writ petition cannot be a fatal ground. Normally, the writ court would be reluctant to entertain a writ petition when there is an effective alternative remedy available to a party. Such a principle is a self-devised auto restraint employed by the courts. When factual disputes do arise in cases, the most appropriate method of resolving them would be to leave them for adjudication by the appellate authorities. Seldom, factual disputes are sought to be resolved in exercise of writ jurisdiction under Article 226. Such disputes are better left for resolution to the in-house mechanism. When such a measure is not availed, the petitioner can ill afford to invite the jurisdiction of the writ court for correcting any factual dispute. In the instant case, the facts are not at all in dispute. Therefore, the non-availing of in-house appellate remedy cannot be treated as fatal either, though, perhaps, it would helped immensely the cause of the writ petitioner. The learned counsel for ECIL has tried to place reliance upon the following judgments of the Supreme Court in Bank of India v. O.P.Swarnakar[3], Punjab National Bank v. Virender Kumar Goel[4], Punjab & Sind Bank and another v. S.Ranveer Singh Bawa and another[5], HEC Voluntary Retd. Employees Welfare Society and another v. Heavy Engineering Corpn. Ltd. And others[6] and Gyanendra Sahay v. Tata Iron & Steel Co. Ltd.[7] wherein it has been held that when once an employee opts for voluntary retirement, he shall not be permitted to avail any further benefits thereafter, vis-à-vis the employer, because the terms of the voluntary retirement are settled by way of a mutual contract by and between the employer and the employee. After the relationship of Master and Servant has been brought to an end by a voluntary action of cessation of the employee, he would not be allowed to secure any more benefits. But, in the instant case, the writ petitioner is not seeking any such benefits, arising from any obligation of the employer, created after his offer of voluntary retirement from service has accepted and acted upon. On the contrary, he was effectively seeking for treating him to have retired as Stores Officer-Gr.II on 28.7.1995. Therefore, but for the order of punishment dated 6.7.1995 reverting him to the lower post of Assistant Stores Officer, the writ petitioner would have continued to function as Stores Officer-Gr.II as on 28.7.1995. I, therefore find substance and force in the claim of the writ petitioner that he is entitled to be settled all his terminal benefits treating him as Stores Officer-Gr.II as of 28.7.1995 instead of treating him to have retired as Assistant Stores Officer. Therefore, the terminal benefits that become payable to the writ petitioner, treating him to have retired from service from ECIL as Stores Officer-Gr.II with effect from 28.7.1995, be recalculated and the differential amount be paid to him within a maximum period of six months from the date of receipt of a copy of this judgment. The writ petition accordingly stands allowed. No costs. --------------------------------- Nooty Ramamohana Rao, J knk 17th December 2009 [1] AIR 1997 SC 1908 : (1997) 3 SCC 657 [2] (1992) Supp. (2) SCC 313 [3] (2003) 2 SCC 721 [4] (2004) 2 SCC 193 [5] (2004) 4 SCC 484 [6] (2006) 3 SCC 708 [7] (2006) 5 SCC 759