WRIT PETITION 1040 of 2002 on 2 November 2000

O R D E R

The petitioner submits that he joined the services of the Tamil NaduCivil Supplies Corporation Limited, as Bill Clerk on 01.11.1973 in SalemRegion. Thereafter, he was promoted as Junior Assistant on 01.02.1975. Hewas transferred to Dharmapuri Region in the year 1978. He was promoted asAssistant on 21.11.1980. He became Superintendent on 09.10.1985. He wasgiven Selection Grade on 09.10.1995. He is now working as Selection GradeSuperintendent in Dharmapuri Region.

2. The petitioner further submits that in the year 1998 and he was working in TNCSC Godown in Dharmapuri as Superintendent. He submitsthat the post of Superintendent is a Supervisory job.

3. The petitioner submits that the Vigilance Cell at Head Office ofTNCSC conducted a surprise inspection in the Dharmapuri Godown on11.03.1998 and is said to have found out certain defects and irregularities.He was on casual leave on 11.03.1998. However, on 12.03.1998 when hereported for work the Vigilance Cell asked him to sign in the Inspection Note(Ann.P-1) prepared by them and he was also asked to give a statementregarding the alleged irregularities found out by them. He gave a statementon 12.03.1998 (Ann.P-2). In his above statement itself and he stated thatthere was no shortage as alleged by the Vigilance Cell. He also stated thatthere was no irregularity as alleged by them. However, the Regional Managerof Dharmapuri Region by proceedings Rc.D1/5750/98-2, dated 16.05.98(Ann. P-3) issued a Charge Memo to him. It was alleged in the said ChargeMemo in charge No.1 that he was responsible for the shortage of 33 numberof 100 Kgs capacity GRM gunnies. Charge No.2 stated that he wasresponsible for preservation of 17 bags of Boiled Rice (S.F) open Market aloofand away from the stack No.G4/5/313. Charge No.3 stated that three stocksof same variety of Raw Rice under stack No.G2/7/327 and G2/7/382 wereoperated and issues made simultaneously. Charge No.4 stated that he hadnot properly supervised the work. Charge No.5, stated that he had not scrupulously followed the office instructions.

scrupulously followed the office instructions.

4. The petitioner submits that out of the five charges levelled againsthim in the charge memo, Charge No.1 alone is a serious charge of shortage of33 numbers of 100 Kgs capacity gunnies. Shortage is only with regard togunnies and not the essential commodity. He replied to the charge memo on23.07.1998 (Ann.P-4) denying all the allegations. He has categorically statedin his explanation with regard to Charge No.1 that the question of shortagedoes not arise and while making entry in the Stock Register instead of makingentry for 100 Kgs gunny wrongly entry had been for 75 Kgs gunny and hencethere is excess of 27 gunnies in 75 Kgs. The remaining 6 gunnies were notreturned by the Noon Meal Centres and hence there is no question ofshortage of 33 Nos 100 Kgs gunnies. He stated in his explanation thatso called shortage found out by the Vigilance Cell had been duly accountedfor even during the inspection itself and the Members of the Vigilance Cell didnot record his statement and refused to look in to the stack Register to verifythe correctness of his statement.

5. The petitioner submits that not with standing his explanation, the Regional Manager, Dharmapuri Region by his proceedingsROC.No.D1/5750/98 dated 08.08.98 (Ann.P-5) stated that oneM.K.Chandradoss, Manager (Quality Control) has been appointed as Enquiry Officer for conducting domestic enquiry in respect of the charges framedagainst him as well as against V.Ganesan, Quality Inspector. One K.Chandran,Superintendent was appointed as the management representative in theenquiry. He submits that in the domestic enquiry, at the inception theenquiry officer asked him to give a statement (Ann.P-6), which he did.

6. The petitioner submits that in the domestic enquiry after gettinghis statement in the beginning, neither a single witness was examined nor asingle document was marked on the side of the management. The EnquiryOfficer concluded the enquiry after getting his statement.

7. The petitioner submits that the Management did not even make anattempt to prove the charges/allegations by letting in oral and documentaryevidence in support of the charges. He submits that he was thus denied aneffective opportunity to defend himself from the charges. He also could nothave an opportunity to lead any rebuttal evidence.

8. The petitioner submits that by letter bearing Na.Ka.No.5750/98/D1dated 24.09.99 (Ann.P-7) the Regional Manager stated that the enquiry officerhas submitted his findings and enclosed a copy of the said findings (Ann.P-8)and directed him to submit his additional explanation if any.

9. The petitioner submits that the Enquiry Officer had found that thecharges 1 to 3 levelled against him have been proved and charges 4 and 5have not been proved. It is seen from the findings of the Enquiry Officer thathe has come to the conclusion only on the basis of his explanation to thecharges. As already stated that there was no scope for appreciation of anyevidence as there was neither oral nor documentary evidence in support ofthe charges in the said enquiry. He submits that the findings of the EnquiryOfficer were not rendered in a manner known to law.

10. The petitioner submits that the Enquiry Officer had just extractedthe charges, then stated his explanation and then simply gave his conclusion.He submits that the Enquiry Officer failed to see that he was not by lawexpected to deal with his explanation. The Enquiry Officer failed to realisethat he had to give his findings on the basis of oral or documentary evidencein support of the charges. He submits that the Enquiry Officer ought to havegiven a finding that there was neither oral nor documentary evidence in theenquiry in support of the charges and hence the charges are not proved.

11. The Petitioner further submits that since he was asked to give hisremarks by a letter dated 24.04.1999 on the findings of the Enquiry Officer.He submitted his explanation on 30.05.98(Ann.P9). He submits that on thebasis of his explanation the 2[nd] Respondent passed the impugned order in his proceedings No.G5/72739/99 dated 02.11.2000 (Ann. P-10). He submits thatthe 2[nd] Respondent without applying his mind acted in a mechanical mannerwhich can only to lead to a legal inference of arbitrariness, passed theimpugned proceedings by accepting the findings of the Enquiry Officer andordering punishments of stoppage of increment for two years with cumulativeeffect.

12. The petitioner submits that the 2[nd] Respondent had simply statedin the impugned proceedings the charges for his explanation, the EnquiryOfficer's findings and then his explanation and then his conclusion. Hesubmits that the punishing authority had also erred in failing to see that thecharges are to be proved by the management levelling the charges and thatthe charges cannot be held to be proved on the reading of his explanationwhen the same was not accepted and when the same was not deemed to bean admission to dispense with the enquiry itself.

13. The petitioner further submits that he preferred an appeal on31.01.2001 (Ann.P-11) against the order of punishment dated 02.11.2000.He had pointed out that there was no evidence in support of the charges andwith regard to first charge of shortage and he reiterated that there was noshortage as alleged by the Vigilance Cell. He had also pointed out the procedural irregularity in the enquiry.

14. The petitioner submits that the 1[st] Respondent Appellate Authorityrejected his appeal in his proceedings No.G9/16962/2001 dated 24.10.2001(Ann.P-12). It is submitted that the order of the 1[st] Respondent also suffersfrom the vice of arbitrariness as he has also failed to apply his mind on theground about the procedural irregularity in the domestic enquiry. Hence, thisWrit Petition has been filed to quash the same.

15. The respondents submit that the Vigilance Cell, head Office duringtheir surprise inspection of Tamil Nadu Civil Supplies Corporation Godown,Dharmapuri, on 11.03.1998 noticed the following serious irregularities forwhich P.Karunakaran, Superintendent incharge of the godown and as acustodian of the stocks in the godown is fully responsible for the irregularitiesbrought under the stocks in the godown is fully responsible for theirregularities brought under as follows:

1. Shortage of 33 Nos. of 100 Kgs. Capacity gunnies;

2. 17 bags of boiled rice (super fine) weighing 1.695 M.Ts. were keptseparately away from the connected stock No.G4/5/313 with ulteriormotive;separately away from the connected stock No.G4/5/313 with ulteriormotive;

3. Same variety of raw rice stock was issued simultaneously from twodifferent stacks viz.No.G2/7/327 and G2/7/383 which is against theinstructions contained in storage manual;different stacks viz.No.G2/7/327 and G2/7/383 which is against theinstructions contained in storage manual;

4. Variations noticed in pre-standardised rice bags up to 500 gms;

5. Raw rice stocks were issued from six stacks by overlooking priority.

For the above lapses 5 charges were framed againstThiru.Karunakaran, Superintendent under Regulation-4, Chapter-V of theTamil Nadu Civil Supplies Corporation Employees' Service Regulation-1989 inRegional Manager, Dharmapuri Charge Memo No.D1/5750/98-2, dated16.05.1998. The Petitioner submitted his explanation to the charges on03.08.1998. An enquiry Officer was appointed by Regional Manager,Dharmapuri Proceedings No.D1/5750/98, dated 08.08.1998 to conductenquiry on the charges framed against the petitioner. The Enquiry Officerconducted the full fledged enquiry after giving opportunity to the petitionerand submitted his report on 20.04.1999 holding charges 1 to 3 as proved andcharges 4 and 5 has not been proved. The Disciplinary Authority, the 2[nd]Respondent herein, after examining the Enquiry Officer's report along with theconnected materials has accepted the findings of Enquiry Officer and for theproven charges, awarded the punishment of stoppage of increment for twoyears with cumulative effect in her Proceedings No.G5/72739/99, dated02.11.2000. Against this, the Writ Petitioner preferred an appeal and the Appellate Authority Chairman and Managing Director after examining theappeal in detail with all connected records rejected it as devoid of merit in hisProceedings No.G9/16962/2001, dated 24.10.2001. The Writ Petitioner hasnot filed this Writ Petition against the order of the first Respondent and hedenies the averments contained in Para 4 of the affidavit of the writ petitionerand states that the post of Superintendent is a supervisory post. When aSuperintendent is posted to work in a godown and he is governed by theduties and responsibilities as prescribed in the storage manual of theCorporation then it is the bounden duty to account the issues and receipts ofstocks in the godown and he denies the averments contained in para 6 of theaffidavit of the petitioner and states that the petitioner himself has admittedthat Charge No.1 is a serious charge of shortage of 33 Nos of 100 Kgscapacity gunnies. His explanation that he has wrongly entered in 75Kgscapacity gunnies instead of 100 Kg capacity cannot be accepted since it isonly an after thought. He has failed to maintain proper accounts in respect ofempty gunnies thus he has failed in his duties and responsibilities asprescribed in para 18.2.5(q) of the storage manual.

16. The averments contained in Para 8 and 9 of the affidavit of thewrit petition states that the questionnaire fromat was issued to the petitioneralong with the charge memo dated 16.05.1998 so as to enable him to furnishthe names of witnesses to be examined in his presence and details of copies of records or depositions of witnesses required by him. But, he has notpointed out any name as witness to be examined in his favour and he neverasked for copies of any records. He has failed to utilise the opportunity givento him. Having failed to utilise the opportunity given to him, his contentionnow is that he was denied an effective opportunity to defend himself from thecharges cannot be accepted and it is only an after thought.

17. Regarding the averments contained in Para 10 of the affidavit ofthe writ petitioner had stated that the Regional Manager, Dharmapuri, in hisMemo No.5750/98/D1, dated 24.04.1999 forwarded copies of the enquiryfindings to the Petitioner for his further explanation if any. The memo wasdated 24.04.1999 and not 24.09.1999 as mentioned in the affidavit.

18. He submits that the charges were framed based on the inspectionreport of the Vigilence Cell. The Enquiry Officer submitted his findings afterexamining the charges, explanation of the writ petitioner and inspectionreport of the Vigilence Cell which was the basis for the charges. Thepetitioner has failed to utilize the opportunity given to him during enquiry andhe denies averments contained in para 13 of the affidavit of the Writ Petitionand states that the Regional Manager, Dharmapuri Memo dated 24.04.1999copy of the Enquiry Officer's findings was communicated to the Writ Petitioner for offering his further explanation on the Enquiry Officer's findings. Theadditional explanation on the Enquiry Officer's finding was received from thewrit petitioner on 01.06.1999. After examining the charges, explanation ofthe writ petition, findings of the Enquiry Officer additional explanation of theWrit Petitioner on the Enquiry Officer's findings are disciplinary authoritypassed orders inflicting the punishment of stoppage of increment for twoyears with cumulative effect taking into account the gravity of offence and thecharges proved.

19. He respectfully submitted that the Writ Petitioner has preferred anappeal on 31.01.2001 against the order of punishment dated 02.11.2000.The charges have been proved based on records and rules of the Corporation.The enquiry was conducted as per the procedure established under law to thesatisfaction of the writ petitioner and there was no procedural irregularity aspointed out by the petitioner.

20. He submits that the appeal preferred by the writ petitioner againstthe punishment order was rejected by the appellate authority in hisProceedings No.G9/16962/2001, dated 24.10.2001. The appellate authorityhas examined in detail the appeal of the writ petitioner along with connectedrecords and came to the conclusion that there was no merit in the appeal andaccordingly rejected it.

21. Regarding the averments contained in Grounds of the affidavit ofthe writ petitioner, he submits that the disciplinary authority and appellateauthority have passed orders after examining the case of the petitioner indetail in all the aspects of the case with reference to records the rules andabsolutely there is no question of non application of mind in both the orders.The impugned orders have been passed as speaking orders and the orders donot suffer from any illegality.

22. He submits that the charges were framed against the writpetitioner based on the inspection report of the Vigilance Team of Head office.Out of 5 charges framed charges 1 to 3 were proved based on records andrules of the Corporation. The writ petitioner was the Superintendent inchargeof the Dharmapuri Godown as a custodian of the stock responsible foraccounting the issue / receipt in godown at the time of inspection by theVigilance Team, Head office which detected serious irregularities. Hence, thewrit petitioner as Superintendent of the Godown is responsible for theirregularities detected. The disciplinary authority after examining all theaspects in detail independently passed orders.

23. He submits that out of 5 charges framed against the writ petitioner charges 1 to 3 were proved based on records by the Enquiry Officer and itwas accepted by the disciplinary authority. A questionnaire form was also issued to the writ petitioner along with the name of witnesses to be examinedin his presence and details of copies of records or depositions of witnesses.But he has not named any witness to be examined in his presence or askedfor copies of any records. He has failed to avail and utilise the opportunitygiven to him in the enquiry. His contention now that he was denied aneffective opportunity to defend himself from the charges are totally denied asfalse and cannot be accepted.

24. He submits that the appeal preferred by the writ petitioner againstthe punishment order was rejected by the appellate authority in hisProceedings No.G9/16962/2001, dated 24.10.2001. The appellate authorityhas examined in detail the appeal of the writ petitioner along with connectedrecords and came to the conclusion that there was no merits and accordinglyrejected it. The appellate authority in his conclusion of the Proceedings hasnarrated in detail the reasons for rejecting the appeal. Hence, the contentionof the petitioner that the appellate authority has passed orders withoutapplying his mind is not correct. The writ petitioner did not mention anyprocedural irregularity in the enquiry in his appeal submitted to the appellateauthority. However, there was no procedural irregularity at all in the enquiryand the enquiry was conducted to the satisfaction of the writ petitioner.Under these circumstances, it is just and necessary that this Court may bepleased to dismiss the above writ petition with cost.

25. The highly competent counsel Mr.S.Kumarasamy, appearing for thepetitioner submits that the petitioner had joined the services of the TamilNadu Civil Supply Corporation as Bill Clerk on 01.09.1973 in Salem Region.Subsequently, he was promoted as a Junior Assistant in the year of 1975 andafter that he was transferred to Dharmapuri Region in the year of 1978 andhe was promoted as Assistant in the year of 1980. Subsequently, he hasbecome Superintendent on 09.10.1985 and he was given selection gradeSuperintendent in Dharmapuri Region. The nature of work was supervisoryin nature. The Vigilence Cell, which is attached to the Tamil Nadu CivilSupplies Corporation had conducted surprise inspection in the DharmapuriGodown on 11.03.1998 and said to have found out certain defects andirregularities. On the relevant date, he was on casual leave. The very nextday he reported for duty and at that time, the vigilance cell asked him to signin the inspection note and asked him to give a statement regarding thealleged irregularities. Further, there was no shortage as alleged by thevigilance Cell. Under the circumstances, the Regional Manager of Dharmapurihad issued charge memo and as such, the petitioner was held responsible forthe shortage of 33 numbers of 100 Kg capacity GRM Gunniesand 17 bagsboiled rice for preservation. Further, the petitioner had not properlysupervised the work of standardization.

26. The first charge was serious in nature. However, the charge wasnot proved against the petitioner. At the time of domestic enquiry, he hadrevealed the entire facts and told he is innocent. After domestic enquiry, thefindings were given by the Enquiry Officer was that charges 1 to 3 had beenproved and the 4th and 5th charges had not been proved. Thereafter, theimpugned order has been passed and his increment was stopped for a periodof two years with cumulative effect. Thereafter, the petitioner made anappeal to the Chairman and Managing Director, who rejected the said appeal.The very competent counsel further submits that the domestic enquiry wasnot conducted in the presence of witnesses and that the management hadnot produced and documentary proof. Hence, the learned counsel entreatsthe Court to set aside the respondent's order.

27. The very competent counsel, Mr.V.Selvanayagam, appearing for therespondents submits that the Vigilance which is attached to the respondentsDepartment had inspected Dharmapuri Godown on 11.03.1998 and foundsome irregularites. Hence, five charges were levelled against the petitioner.The Vigilance Cell had noticed shortage in the Pre-Standardized bags. Theshortage was noted by the Vigilance, after physical verification and inspectionof documents. The petitioner also submitted explanation before the EnquiryOfficer. Further, the petitioner has not scrupulously followed the officeinstructions, which is evident from having noticed the overlooking of priority in six stacks. Further, the petitioner is responsible for preservation of 17 bags ofboiled rice, open mark aloof and away from the stack, which indicates hisulterior motive to dispose of the stock for personal gain. Therefore, thepetitioner had committed irregularities. Hence, the minimum had beenimposed.

28. On considering the facts and circumstances of the case andarguments advanced by the learned counsel on either side and on perusingthe typed set of papers, this Court does not find sufficient force in the writpetition to allow it. Further, this Court is of the view that the Enquiry Officerhad come to a conclusion that the charges 1 to 3 had been proved on thebasis of oral and documentary evidence. The rest of the two charges has notbeen pressed by the Enquiry Officer. Hence, the quantum of punishment ie.,stoppage of increment to the petitioner for a period of two years withcumulative effect is appropriate. Hence, the above writ petition is dismissed.No costs.

15.04.2014

Index : Yes/NoInternet : Yes/Noub

C.S.KARNAN, J.ub

Pre-Delivery Order inW.P.No.1040 of 2002

15.04.2014