IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.7.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.26482 of 2009 A.Selvaraj . . Petitioner Vs. 1. The Director of Handlooms and Textiles Kuralagam, Chennai – 108. 2. The Assistant Director of Handlooms and Textiles, Erode, Erode District. 3. The Special Officer K.1126 Thandampalayam Weavers Cooperative Production and Sale Society Limited Thandampalayam Post, Sivagiri Via Erode Taluk and District. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the entire records relating to the impugned order passed by the first respondent in his proceedings No.Na.Ka.6325/2009/G1, dated 13.11.2009 whereby confirming the order passed by the third respondent in his proceedings No.Nil, dated 3.2.2009 and quash the same and consequently direct the respondents to reinstate the petitioner into service with all attendant benefits and other benefits in the third respondent society. For Petitioner : Mr.C.Prakasam For Respondents: Mr.R.M.Muthukumar Government Advocate for respondents 1 and 2 Mr.R.Neelakandan for 3rd respondent ORDER The petitioner, who was employed as a Manager in the third respondent/Co-operative society, filed the present writ petition seeking to challenge an order dated 13.11.2009 passed by the first respondent/ Director of Handlooms and Textiles, Chennai, confirming the order of the third respondent, dated 3.2.2009, and https://hcservices.ecourts.gov.in/hcservices/ after setting aside the same, seeks a direction to reinstate him in service with all attendant benefits. 2. The writ petition was admitted on 21.12.2009. Pending the writ petition, this Court initially ordered notice in the stay petition. Subsequently, this Court rejected the said petition, but directed the expeditious hearing of the writ petition. On notice from this Court, the respondents filed counter affidavit dated 12.2.2010. Mr.R.Neelakandan, learned counsel appearing for the third respondent also produced the original enquiry file for perusal by this Court. 3.1. The facts leading to the termination of the petitioner are as follows: While the petitioner was working in the society, one member – N.Thirunavukarasu made a complaint to the Assistant Director of Handlooms and Textiles about the petitioner giving false declaration of date of birth and when no action was taken, a writ petition was filed by the member before this Court, being W.P.No.22092 of 2007. This Court, by order dated 29.6.2007, directed the respondents to consider his representation within a time frame. 3.2. As per the direction given by this Court, the District Employment Exchange Officer, Erode made a preliminary enquiry and held that there was no discrepancy in the dates of birth furnished by the petitioner and that the department was not responsible if the society accepts a particular date and thereafter finds fault with the acceptance of such date. However, a charge memo was given to the petitioner on 21.7.2008 and the petitioner's explanation was not accepted and an outside advocate was engaged as Enquiry Officer. 3.3. The said Enquiry Officer conducted enquiry. In that enquiry, ten documents were filed on the side of the management and the Past-President of the Society was examined as M.W.1. On the side of the petitioner, 18 documents were filed and were marked as Exx.D1 to D18. The said Enquiry Officer held that both the charges were not proved and the petitioner did not give any wrong information for joining duty and he has also not given any false statement before the District Employment Office. 3.4. After receipt of the enquiry report dated 10.9.2008, the third respondent/society did not take any further action on the said report, but, on the contrary, ordered for another enquiry to be conducted by a retired Joint Registrar. In the said enquiry, the Enquiry Officer found the petitioner guilty of the charges vide report dated 6.1.2009. On the basis of the said report, a second show cause notice was given to the petitioner on 20.1.2009 and the petitioner gave an explanation on 27.1.2009. Not satisfied with the explanation submitted by the petitioner, the third respondent, https://hcservices.ecourts.gov.in/hcservices/ by order dated 3.2.2009, dismissed the petitioner from service. 3.5. In the meantime, the petitioner filed a writ petition before this Court, being W.P.No.2684 of 2009, challenging the said dismissal order. But however, on being advised that he has a remedy by way of revision under Section 153 of the Tamil Nadu Co- operative Societies Act before the first respondent, he filed a revision petition after withdrawing the said writ petition. The said revision petition was heard by the first respondent and the first respondent, by order dated 13.11.2009, dismissed the revision petition and held that there was no ground to interfere with the order of dismissal. Challenging the order made in revision, including the order of dismissal, the present writ petition came to be filed. 4.1. The contention raised by Mr.C.Prakasam was that the second enquiry conducted by the respondent/society was thoroughly illegal and not supported by any legal provision and therefore, on that short ground the impugned orders are liable to be set aside. 4.2. He also submitted that inasmuch as enquiry was conducted by an Enquiry Officer and that Enquiry Officer has found the petitioner innocent, the respondent/society cannot order for a fresh enquiry and if at all it is aggrieved, it must only disagree with the said enquiry report. In that context, he placed reliance upon the judgment of the Supreme Court in Kanailal Bera v. Union of India and others, [2007] 11 SCC 517. 5. Mr.R.Neelakandan, learned counsel appearing for the third respondent/Society submitted that the petitioner did not protest against the second enquiry and therefore, he cannot raise that issue at this point of time. 6. In the revision petition filed before the first respondent/revisional authority, the petitioner, in paragraph [4], had raised a specific objection about the appointment of the second Enquiry Officer and not passing orders on the report submitted by the first Enquiry Officer and the revisional authority did not deal with the said objection. Therefore, the revisional authority failed to take note of the relevant issues and did not render any finding on the said issue. On the other hand, even the third respondent is unable to justify the appointment of the second Enquiry Officer. In paragraph [12] of the counter affidavit, except stating that the petitioner did not object to the fresh enquiry, no other justification is given. In paragraph [11] of the counter, it was stated that the Enquiry Officer has not given clear finding whether the allegations against the petitioner have been proved or not. https://hcservices.ecourts.gov.in/hcservices/ 7. In fact, in this context, the judgment rendered by the Supreme Court in Kanailal Bera, supra, assumes importance. In that case, the Supreme Court referred to the previous ruling in K.R.Deb v. Collector of Central Excise, [1971] 2 SCC 102 and extracted the said judgment in paragraph [7], which is as follows: "7. In K.R. Deb v. CCE, [1971] 2 SCC 102 this Court while considering the provisions contained in Rule 15 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 held as under: (SCC p. 105, paras 12-13) “12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the disciplinary authority may ask the inquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the inquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. 13. In our view the Rules do not contemplate an action such as was taken by the Collector on 13-2-1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the Rules but was harassing to the appellant.” 8. The Supreme Court also followed the earlier ruling in K.R.Deb case, supra. In that judgment, the Supreme Court, while dealing with the disciplinary rules framed by the Central Government, more particularly Rule 15, held that only when there is any additional evidence to be let in, the Enquiry Officer can be directed by the disciplinary authority to record such additional evidence, but on no ground a fresh enquiry can be directed to be conducted to fill up the loopholes or lacunae in the earlier enquiry. In such cases, it is not as if the disciplinary authority is without any remedy. It is always open to him to disagree with the finding of the Enquiry Officer and give a fresh show cause https://hcservices.ecourts.gov.in/hcservices/ notice on the basis of the materials already recorded. Therefore, in the light of the ratio laid down by the Supreme Court in Kanailal Bera, supra, the action taken by the respondents cannot be countenanced by this Court. The fact that the petitioner did not protest or did participate in the enquiry cannot be a ground to deny the relief to the petitioner. 9. On the other hand, when an opportunity came to him to raise an objection regarding the appointment of the second Enquiry Officer and not passing orders on the report submitted by the first Enquiry Officer, he had made a valid point to the revisional authority and it is the revisional authority who has failed to advert to those objections. The revisional authority ought to have held that it is a clear case of error apparent on the face of the records and should have interfered with the punishment imposed on the petitioner by the third respondent/society. Even though the counter affidavit pleads that the first Enquiry Officer did not render proper finding and therefore that necessitated the conducting of second enquiry, the same cannot be accepted as a valid reason. In view of the above, the writ petition stands allowed and the impugned order of the revisional authority dated 13.11.2009, confirming the order of dismissal dated 3.2.2009, stands set aside. No costs. sasi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1. The Director of Handlooms and Textiles Kuralagam, Chennai – 108. 2. The Assistant Director of Handlooms and Textiles, Erode, Erode District. + 1 cc to M/s. C.Pakasam, Advocate SR No.42939 + 1 cc to Government Pleader, SR No.42858 RB(CO) SR/25.7.2011 W.P.No.26482 of 2009 https://hcservices.ecourts.gov.in/hcservices/