IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.12.2008 CORAM THE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HON'BLE MR.JUSTICE V.DHANAPALAN Writ Appeal No.559 of 2002 C.Packianathan .. Appellant/Petitioner Vs. 1. Tamil Nadu Handicrafts Development Corporation Ltd. rep. by its Chairman 759, Anna Salai Chennai 600 002. 2. The Chairman Tamil Nadu Handicrafts Development Corporation Ltd. 759, Anna Salai Chennai 600 002. 3. The Managing Director Tamil Nadu Handicrafts Development Corporation Ltd. 759, Anna Salai Chennai 600 002. .. Respondents/Respondents ----- Appeal against the order of the learned Single Judge dated 14.12.2001 made in W.P.No.4468 of 1994 filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records on the file of the second respondent pertaining to his order bearing R.C.No.5773/Per/I/93 dated 15.2.94 and quash the same and consequently direct the respondents to reinstate the petitioner in service with continuity of service, backwages and all other attendants benefits. ----- For Appellant : Mrs.A.V.Bharathi For Respondents : Mr.N.Jothi ----- https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (Delivered by S.J.MUKHOPADHAYA,J.) The appellant, who was a Sales Assistant in the Tamil Nadu Handicraft Development Corporation Ltd. (hereinafter referred to as the 'Corporation') was proceeded departmentally, vide charge memo dated 10.12.1991. Three charges were levelled against him and having been found guilty of all the three charges by the enquiry officer, he was removed from the service of the Corporation vide order dated 6.4.1993, issued by the Managing Director of the Corporation. The appeal having been rejected, the appellant preferred W.P.No.4468 of 1994 and the same has been dismissed on 14.12.2001. Aggrieved by the same, the present appeal has been preferred. 2. As the case can be disposed of on a short point, it is not necessary to discuss all the facts, except the relevant one. 3. The appellant was charge sheeted vide memo dated 10.12.1991 for the following charges: Charge No.1: That he had unauthorisedly absented himself from duty from 21.5.1991 to 26.6.1991 and from 5.7.1991 to 26.7.1991 attracting rule 3.6 (General conditions) 5.2(a), 5.2(f) and 5.2(h) of the Service Rules of the Corporation. Charge No.2: That he had handicrafts business dealings with Thiru Raghavan and Thiru Perumal of Kancheepuram in procuring paper toys and dolls using his official position attracting rules 5.2(c) and 5.2(j) read with rule 5.1(c) of the Service Rules of the Corporation. Charge No.3: That he along with Thiru V.Jeyaraj, Office Superintendent (under suspension) has procured handicrafts of several items from Thiru Kumaresan of Modaiyur and Thiru R.K.Duraisamy of Kallakurichi, etc. During August-September 1991 and sold handicrafts at Trimurthy Emporium, Bombay during September 1991 when the Corporation conducted 'Ganesh' exhibition at Bombay, attracting rules 5.2(c) and 5.2(j) read with rule 5.1(c) of the Service Rules of the Corporation. The Secretary and Administrative Officer was appointed as the Enquiry Officer, who, after taking into consideration the explanation submitted by the appellant and statement of two witnesses, held the appellant guilty. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned counsel appearing on behalf of the appellant referred to the enquiry report to show the infirmities in the said report. It was submitted that the enquiry report being not based on evidence and findings and have been given on the basis of surmises and presumptions, such report cannot be taken into consideration to impose the punishment of removal. 5. On the other hand, according to the learned counsel for the Corporation, the enquiry was conducted in accordance with law and after giving an opportunity to the appellant, taking into consideration the relevant evidence on record and statement of witnesses, he was held guilty. It was further submitted that the Court cannot sit in appeal over the findings of the enquiry officer. 6. We have heard the learned counsel for the parties, noticed the rival contentions and perused the records. 7.1. It would be evident from charge No.1 that the appellant has unauthorisedly absented himself from duty from 21.5.1991 to 26.6.1991 and from 5.7.1991 to 26.7.1991. It has been brought on record by the appellant that the Corporation vide Rc.No.127/A/91 dated 23.9.1991, noticing that the appellant applied for medical leave for the period from 8.5.1991 to 26.6.1991 and produced medical certificate for the period from 10.5.1991 to 26.6.1991, directed the appellant to submit a revised leave application for the period from 10.5.1991 to 26.6.1991 immediately for taking further action in the matter. 7.2. The aforesaid fact was not noticed by the enquiry officer, who, merely noticing the submission made by the appellant that he was actually suffering from fever and had gone to residence at Bombay and after recovery from illness, produced the leave letter, along with medical certificate, at the time of his joining on 27.6.1991, held that the appellant had given the leave application only after availing the leave. 7.3. The enquiry officer or the authority has not noticed that the appellant took a specific plea that he was suffering from illness and submitted the application immediately on his joining. No medical leave can be obtained in advance on the ground that a person may fall ill in future. Without deliberating on such issue and without application of mind, both the enquiry officer and the punishing authority held him guilty for not submitting leave application for illness in advance. https://hcservices.ecourts.gov.in/hcservices/ 8.1. As far as charge No.2 is concerned, the allegation was that the appellant had handicrafts business dealings with Thiru Raghavan and Thiru Perumal of Kancheepuram in procuring paper toys and dolls, using his official position, attracting certain provisions of the service Rules of the Corporation. The appellant, in his show cause reply and also in his deposition, has taken a specific plea that M/s. Priya Enterprises is owned by his mother- in-law and his wife had business dealings with Thiru. Raghavan and Thiru. Perumal and he had no connection with Thiru. Raghavan and Thiru. Perumal in such business dealings. But the enquiry officer added a sentence that "the business was dealt with only by C.Packianathan" (appellant herein), though he has not made such statement either in the show cause reply or during his deposition before the enquiry officer. No evidence was brought on record to suggest that the appellant, in any manner, was connected with the business of his mother-in-law and his wife, which was at Bombay. The two persons, viz. Thiru. Raghavan and Thiru. Perumal had also deposed that the appellant has no connection with the business. It is only taking into consideration the fact that on behalf of his wife and mother-in-law, the appellant purchased certain materials and that a cheque for a sum of Rs.7,000/- was issued by his wife to three persons, the enquiry officer held charge No.2 proved. 8.2. In fact, there was no material on record to show that the appellant had handicrafts business dealings with Thiru. Raghavan and Thiru. Perumal of Kancheepuram. It was noticed by the punishing authority, who, while issuing the punishment order, observed that the appellant himself admitted in the enquiry that he had procured goods and handed over the cheques to the parties on behalf of his wife and mother-in-law and thereby, it was presumed that the appellant was actively promoting his family business at the above execution. The allegation of promoting family business was neither a part of the charge sheet nor any enquiry was made in that regard. Thus, it is clear that charge No.2 is not based on any evidence and findings by both the enquiry officer and punishing authority are perverse. 9.1. The charge No.3, in fact, is relating to charge No.2, wherein it is alleged that the appellant, along with Thiru. V.Jeyaraj, Office Superintendent (under suspension) has procured handicrafts of several items from Thiru. Kumaresan of Modaiyur and Thiru. R.K.Duraisamy of Kallakurichi, etc. during August-September 1991 and sold handicrafts at Trimurthy Emporium, Bombay during September 1991, when the Corporation conducted 'Ganesh' exhibition at Bombay. The enquiry officer noticed the deposition of the appellant that he had not procured any handicraft items from Thiru. Kumaresan of Modaiyur and Thiru. R.K.Duraisamy of Kallakurichi during August-September 1991 for sale at Trimurthy Emporium, Bombay during 1991. He has stated that his family was at Bombay and he https://hcservices.ecourts.gov.in/hcservices/ was at Bombay. It was specifically pleaded that M/s. Priya Enterprises is run by his mother-in-law, who was participating in 'Ganesh' exhibition at Trimurthy Emporium, Bombay, during the said period. As he was on leave, he paid a visit to the Emporium and his mother-in-law and he was not doing any sales there. Only two witnesses, Thiru. A.Ganesan and Thiru. N.Mannu Silpi were examined. They deposed that on 11.8.1991, at Madras, the appellant purchased handicraft items from them and also from Mr.Kumaresan, at the cost of Rs.20,000/- for sale at 'Ganesh' exhibition at Bombay. The appellant paid only Rs.1,000/- against the total cost of Rs.20,000/-. Later on, on 28.9.1991, at Trimurthy Emporium, Bombay, the appellant had given a cheque for Rs.7,000/- issued by his wife Tmt. Jayashree Packianathan, partner of M/s. Priya Enterprises. The cheque was dishonoured by the Bank. 9.2. Taking into consideration such statement, in spite of the specific stand taken by the appellant that he was not involved in the business dealings with handicrafts items, the enquiry officer held him guilty for the charges. No evidence was brought on record that the appellant was in any manner connected with M/s. Priya Enterprises. 9.3. The learned counsel for the appellant rightly submitted that at the instance of the wife, if the husband purchases certain materials or pay the amount by cheque issued by the wife, the same would not amount to doing a business with the wife. This aspect has not been considered either by the enquiry officer or the punishing authority, while imposing the punishment. 10. The case was taken up on 24.10.2008. Having found that a prima facie case has been made out, the Court observed that whether, without deliberating on the issue, the parties would agree for a settlement if the order of dismissal is set aside, reinstating the appellant and paying 30% of backwages. This was accepted by the appellant. But, no affidavit has been filed by the Corporation. However, it has been informed that the Corporation wants a decision on merit. 11. In view of the findings given by us and as we find that the enquiry report is not based on evidence and nothing is on record to suggest that the appellant was directly connected with the business of his wife, and as we also find that two of the charges, viz. charge Nos.1 and 2 have been held to be without any basis, we have no other option except to set aside the order of dismissal dated 6.4.1993. https://hcservices.ecourts.gov.in/hcservices/ In the result, the appellant stands reinstated. But, in the facts and circumstances and as agreed by the appellant, we allow only 30% of the back wages for the period he was out of service. The writ appeal is allowed with the aforesaid observations. However, there shall be no order as to costs. WAMP No.82 of 2008 is closed. kpl Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. THE CHAIRMAN, TAMILNADU HANDICRAFTS DEVELOPMENT CORPORATION LTD., 759, ANNA SALAI, CHENNAI-600 002 2. THE MANAGING DIRECTOR TAMILNADU HANDICRAFTS DEVELOPMENT CORPORATION LTD., 759, ANNA SALAI, CHENNAI-600 002 3. THE SECTION OFFICER, VR SECTION, HIGH COURT, MADRAS. 2 ccs to Mr.N.Jothi, Advocate, SR.67616 1 cc to Mrs.A.V.Bharathi, Advocate, SR.67449 ntk (co) dv/11.12. W.A.No.559 of 2002. https://hcservices.ecourts.gov.in/hcservices/