WP/13557/2000 of T.Venkata Naryana, Vs Girijan Cooperative Corporation Ltd, Visakhapatnam, on 22 December 2006

ORDER:

THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN

WRIT PETITION NO.13557 OF 2000

Seeking to have the proceedings, in Rc.No.5429/97. Admn. dated 10.9.1998, issuedby the 1[st] respondent and the consequential notice, in Rc.No.B/176/97 dated 9.1.1999, issued by the 4[th] respondent quashed, the present writ petition is filed.

In his proceedings dated 10.9.1998, the Vice-Chairman and Managing Director of theRespondent–Corporation, dismissed the petitioner from service treating the period of hissuspension as “dies non” and further directed that he shall make good the loss caused to therespondent-corporation of Rs.54,034-10 with interest. Thereafter, the Senior Manager,Yellandu, (4[th] respondent), issued notice dated 9.1.1999 directing the petitioner to remitRs.54,034-10 with 18% interest per annum within 15 days from the date of receipt of thenotice. The petitioner was informed that, in case he failed to do so, necessary legal actionfor recovery would be initiated against him.

Facts, in brief, are that the petitioner, a Junior Stores Assistant, while working in theMahadevpur unit of the respondent–corporation, was placed under suspension, videproceedings dated 2.12.1997, pending enquiry into certain allegations. The order ofsuspension continued to remain in force till the order of punishment of dismissal from servicewas imposed on him vide proceedings dated 10.9.1998. The Dy.General Manager (Admn.)issued proceedings dated 29.1.1998 framing 10 charges against the petitioner and called forhis explanation. In reply thereto, the petitioner submitted his detailed explanation, vide letterdated 3.4.1998, denying all the charges. The 1[st] respondent, vide proceedings dated2.7.1998, issued a provisional conclusion order proposing the punishment of dismissal fromservice. Along with the said order a copy of the enquiry report was enclosed calling upon thepetitioner to submit his explanation thereto. The petitioner, in his letter dated 15.7.1998,submitted his explanation requesting that the proceedings be dropped. The 1[st] respondent,thereafter, passed the impugned order of punishment dated 10.9.1998. The petitionerpreferred an appeal thereagainst on 28.10.1998.

In this writ petition, the petitioner would question the competence of the 1[st] respondentto inflict on him the punishment of dismissal from service and contend that the competentauthority to inflict punishment is the Regional Manager and that the appellate authority is theManaging Director. According to the petitioner since charge sheet was issued and the orderof punishment was passed by the Managing Director, who is the appellate authority, thepetitioner was deprived of his right of appeal. Petitioner would submit that Rule 4, whichempowered a superior authority also to inflict punishment, was unconstitutional. Petitionerwould contend that the enquiry officer did not conduct any enquiry, that merely on the basisof the statements recorded behind his back, during the preliminary enquiry, the enquiryofficer had concluded that the charges were proved, that the persons, whose earlierstatements were relied upon, were not produced for cross-examination. Petitioner wouldsubmit that, under the rules, it is the duty of the enquiry officer to establish the charge andafford an opportunity to the delinquent employee to cross-examine the witnesses. However,in the present case, as no witness was examined by the enquiry officer, the order of dismissal was contrary to law and was required to be set aside. Petitioner would alsocontend that the findings of the enquiry officer are perverse and are based on no evidence,that no documents were supplied to him along with the charge sheet and that the enquiryofficer had recorded a finding of guilt against the petitioner based on his personalknowledge. Petitioner would contend that the 1[st] respondent, in his provisional conclusionorder, had made up his mind to impose the punishment of dismissal from service on thepetitioner and, since the entire exercise was pre-determined, the order of punishment stoodvitiated and was required to be set aside. Petitioner would contend that, while passing theorder of dismissal from service, the 1[st] respondent did not take into consideration any of theobjections raised by him. According to the petitioner since the Disciplinary and AppealRules, governing employees of the respondent – corporation, provide for imposition of onlyone penalty, the order of punishment imposed on the petitioner was liable to be set aside astwo punishments were imposed on him, one of dismissal from service and the other forrecovery of Rs.54,034-10 ps along with interest at 18% per annum. Petitioner would submitthat as dismissal from service is a major penalty, and recovery of the pecuniary loss causedto the corporation is a minor penalty, and since a major penalty can only be imposed afterdue enquiry, the respondents could not have imposed on him the major penalty of dismissalfrom service.

In their counter affidavit, respondents would submit that the petitioner, while workingas a Junior Stores Assistant at Yellandu in the year 1997, had misappropriated hugeamounts and had caused them monetary loss and that, on the irregularities coming to hisnotice, the Assistant Project Officer, ITDA, Bhadrachalam had reported the same to the 1[st]respondent in his letter dated 26.11.1997. Respondents would contend that the irregularitiescommitted by the petitioner were grave in nature, that he was the custodian of the stocks inthe godown of GPCMS and was responsible for supply of provisions to the tribal hostels inthe area and that he had resorted to forgery, cheating and misappropriation of amounts forhis personal gain. According to the respondents the petitioner, without supplying stocks tothe hostels, had raised bills, forging the signatures of the wardens, for a sum of Rs.54,034-10 and it was in such circumstances that he was placed under suspension, vide proceedingsdated 2.12.1997, pending enquiry and that, vide proceedings dated 2.12.1997, the Dy.General Manager (Admn.) was appointed as the enquiry officer to enquiry into the chargesframed against him. Respondents would submit that, as many as 10 charges were framedagainst the petitioner, a charge memo was served on him and his explanation called for, thatthe material available for conducting the enquiry was enclosed to the charge memo, that thepetitioner had submitted his explanation thereto on 3.4.1998 and had requested forexamination of two witnesses on his behalf i.e., Golla Kanakaiah, Maistry/Hamali and B.Rajaiah, Maistry/Hamali, that the enquiry officer had conducted a detailed enquiry and hadrecorded the evidence of the then Manager on behalf of the department on 20.4.1998 and

thereafter the petitioner and his witnesses were also examined. According to therespondents, the petitioner did not choose to cross-examine the departmental witnesses. They would contend that the records sought for by the petitioner were also provided, that theenquiry officer had furnished his report dated 6.6.1998 to the 1[st] respondent who, afterconsidering the enquiry report, had issued the provisional conclusion order dated 2.7.1998,enclosing thereto a copy of the enquiry report, which was served on the petitioner on4.7.1998. Respondents would submit that the petitioner had filed his explanation to theprovisional conclusion order on 15.4.1998 and had referred to the enquiry report thereinwhich established that he was in receipt of the enquiry report and all the other documentsrelied upon by the department. It is stated that, after considering his explanation and thefindings in the enquiry report, a final order was passed, vide proceedings dated 10.9.1998,imposing on the petitioner the punishment of dismissal from service, treating the period ofsuspension undergone by him as “dies non” and directing him to make good the loss causedto the Corporation of Rs.54,034-10 with interest at 18% per annum. It is stated that the finalorder of dismissal from service was served on the petitioner on 6.10.1998 against which hepreferred an appeal. As the term of the Board of Directors had expired, and as the new Boardwas not constituted, the petitioner had filed the present writ petition and this Court hadgranted interim stay of recovery. It is stated that, during the pendency of the writ petition,the Board of Directors was re-constituted and that the Board, vide proceedings dated10.9.1999, had confirmed the order of the disciplinary authority. Respondents would submitthat the petitioner had filed an application seeking amendment of the prayer to include achallenge to the validity of the order of the appellate authority. Respondents would state thatthe Vice-Chairman and Managing Director had the power to pass the impugned orderdismissing the petitioner from service, that as per the service regulations the competentauthority, or any superior authority, could initiate disciplinary action against a delinquentemployee and, while the Regional Manager was the competent disciplinary authority toimpose the punishment, the Vice-Chairman and Managing Director, a superior authority, wasalso empowered to pass the impugned order of dismissal from service. It is stated that theBoard of Directors, vide resolution dated 11.8.1998, had conferred powers on the Vice-Chairman and Managing Director to impose the punishment of dismissal and removal fromservice on employees of all cadres. It is stated that since an appeal lies to the Board ofDirectors against the orders of the Vice-Chairman and Managing Director, and as thepetitioner had invoked this remedy of appeal, the contention that he had lost his right ofappeal was not tenable. Respondents would submit that the enquiry officer had conducted adetailed enquiry and had examined witnesses both on behalf of the department and thepetitioner. They would deny that no enquiry was conducted and submit that these allegationswere made only to prejudice this Court. It is stated that sufficient opportunity was given tothe petitioner to peruse the records and that he had availed such an opportunity.

Respondents would state that the petitioner never complained that the enquiry wasconducted arbitrarily or that he was not permitted to peruse the records of the Corporation. Itis stated that the order dismissing the petitioner from service was passed by the Vice-Chairman as the charges held established included that of forging the bills andmisappropriation of huge amounts. Respondents would state that the Corporation isempowered to recover the loss caused to it.

In his rejoinder, the petitioner would reiterate that the department had not producedany witnesses during the enquiry for cross-examination, that this was clear even from theprovisional conclusion order as well as the final order passed by the respondents whereinthere was no mention about the evidence of the official witnesses and, if there was any truthin their contention that the witnesses had been examined and that he did not choose tocross-examine them, nothing prevented the department from recording their evidence duringtrial, that on the contrary there was no whisper about their witnesses or of what they hadstated during the enquiry and that the department had relied upon some letters supposed tohave been written by them without examining those persons and without giving the petitionerthe opportunity of cross-examining them. Petitioner would reiterate that no official ordepartmental witnesses were examined nor allowed to be cross-examined by him during theenquiry and that the entire action was vitiated for violation of principles of natural justice. Petitioner would contend that the impugned order of punishment does not refer to any of thewitnesses having been examined on behalf of the department or the date on which they wereexamined by the enquiry officer or what was the cross-examination done by him and, in theabsence of such averments, it was not open to the respondents to state, for the first time intheir counter affidavit, that witnesses were examined in the enquiry. Petitioner wouldcontend that the witnesses referred to in the counter affidavit were his witnesses and not thatof the department. Petitioner would emphasize that the counter affidavit was silent as to thename of the departmental witnesses examined in the enquiry and the date on which theywere examined. Petitioner would reiterate that two punishments were imposed on him andthat, on this score also, the impugned order of punishment was liable to be set aside.

Dr.K.Lakshmi Narasimha, learned counsel for the petitioner, would seek to have theimpugned order of punishment quashed on the following grounds:

1. The charges levelled against the petitioner in the departmental enquiry were identicalto the charges levelled against him in C.C.246 of 1999 in the Court of the JudicialMagistrate of First Class, Yellandu. As the criminal case was dismissed, and thepetitioner was held not guilty of the charges under Sections 468, 471 and 409 I.P.C.,the order of punishment, based on the departmental enquiry held on the very samecharges, and on the very same set of facts, stood vitiated and was required to be setaside. Learned counsel would rely Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited[[1]]and Jasbir Singh v. Punjab & Sind Bank[[2]];

2. No witnesses were examined in the departmental enquiry in the presence of thepetitioner nor was the petitioner afforded an opportunity of cross-examining them. Reliance was placed on statements recorded behind the petitioner’s back to hold himguilty of the charges. petitioner nor was the petitioner afforded an opportunity of cross-examining them. Reliance was placed on statements recorded behind the petitioner’s back to hold himguilty of the charges.

Arguments

3. The evidence of witnesses examined behind the back of the petitioner, and withoutgiving him the opportunity to cross-examine them, must be eschewed. As there wasno other evidence, to establish the charges levelled against the petitioner, the order ofpunishment, based on the findings of the enquiry officer relying on such evidence, wasliable to be quashed. giving him the opportunity to cross-examine them, must be eschewed. As there wasno other evidence, to establish the charges levelled against the petitioner, the order ofpunishment, based on the findings of the enquiry officer relying on such evidence, wasliable to be quashed.

4. The Discipline and Appeal Regulations of the respondent – corporation provides thatonly one punishment can be imposed. As two punishments had been imposed on thepetitioner i.e., (1) dismissal from service and (2) recovery of the pecuniary losscaused to the Corporation, the impugned order of punishment was liable to be setaside.only one punishment can be imposed. As two punishments had been imposed on thepetitioner i.e., (1) dismissal from service and (2) recovery of the pecuniary losscaused to the Corporation, the impugned order of punishment was liable to be setaside.

Learned counsel would contend that, on the impugned order of punishment being setaside, the petitioner is entitled to be reinstated into service with all consequential benefits. Learned counsel would rely on Narinder Mohan Arya Vs. United India Insurance Co.Ltd[3]in this regard.

Sri N.Sridhar Reddy, Learned Standing Counsel for the respondent-corporation, on theother hand, while fairly conceding that the statement in the counter affidavit, that thedepartmental witnesses were examined first and thereafter the petitioner and his witnesseswere examined, was erroneous, would submit that on 20.4.1998, while the witnesses onbehalf of the petitioner were examined, on the next day i.e., 21.4.1998 the evidence of SriT.Mahender Reddy, Senior Manager, Yellandu was recorded. Learned Standing Counselwould submit that, since the then senior manager had deposed in the enquiry, and thepetitioner had failed to avail the opportunity of cross-examining him, the mere fact that thepetitioner had chosen not to cross-examine the said witness would not vitiate the enquiry. Learned Standing Counsel would submit that, even if the petitioner is held to have beendenied the opportunity of cross-examining the witnesses, since a perusal of his explanationto the charge memo would establish that he had admitted his guilt, at least in respect ofsome of the charges, violation of principles of natural justice during the course of enquirywas of no consequence, since the petitioner could have been imposed the punishment ofdismissal from service merely on the basis of his admission and the departmental enquirywas a needless formality and a superfluous exercise. Learned Standing Counsel wouldsubmit that, even if some of the charges are held to be established on the basis of theadmissions of the petitioner, the respondents were entitled to impose on him the punishment

of dismissal from service. According to the Learned Standing Counsel, this Court, inproceedings under Article 226 of the Constitution of India, would not sit in appeal over thedecision of the disciplinary authority on the nature and extent of punishment to be imposed. Learned Standing Counsel would submit that, even if this Court were to hold that thedisciplinary proceedings were vitiated for violation of principles of natural justice, as theallegations levelled against the petitioner were grave and serious, the respondents must begiven the liberty to now hold an enquiry in compliance with principles of natural justice and,thereafter, take action against the petitioner in accordance with law. Learned StandingCounsel would submit that, in certiorari proceedings, an enquiry by this Court was limitedonly to the validity of the order and it was not open to the petitioner to contend that, once theorder of punishment was quashed, he should be reinstated into service. Learned StandingCounsel would contend that, while the charges in the disciplinary proceedings and in thecriminal case may be similar, the judgment in Capt. M. Paul Anthony[1]and Jasbir Singh[2]could notbe applied to this caseas the evidence adduced in the departmental enquiry wasnot identical to the evidence let in the criminal case. Learned Standing Counsel wouldsubmit that, even if the impugned order of punishment is quashed and liberty is given by thisCourt to complete the enquiry in accordance with principles of natural justice, it was alwaysopen to the respondents to produce witnesses, other than those examined in the criminalcase, to establish the charge. According to the learned standing counsel the onlypunishment imposed on the petitioner was that of dismissal from service and the very factthat action had been initiated against him, under the provisions of the A.P. CooperativeSocieties Act, for recovery of the pecuniary loss caused to the corporation, would establishthat the second punishment, of recovery of the pecuniary loss caused to the corporation, hadnot been imposed. Learned Standing Counsel would submit that the respondents wereentitled to recover the amount of pecuniary loss caused to the Corporation and, since therecovery proceedings initiated under the A.P. Cooperative Societies Act was not as a directconsequence of the disciplinary enquiry, it would not amount to a punishment merelybecause recovery of pecuniary loss is enumerated as one of the minor penalties.

Before examining the rival contentions it is necessary to refer to the relevant rules and applicable provisions:- DISCIPLINARY, PUNISHMENTS AND APPEAL RULES:-

1. An employee who commits a breach of the Rules of the Corporation or who displaysnegligence, inefficiency, disobedience or indolence or who knowingly does anythingdetrimental to the interests or prestige of the Corporation who commits a breach of disciplineor is guilty of any other act of misconduct or misbehaviour shall be liable for any one of thepenalties specified in Rule (2) below:negligence, inefficiency, disobedience or indolence or who knowingly does anythingdetrimental to the interests or prestige of the Corporation who commits a breach of disciplineor is guilty of any other act of misconduct or misbehaviour shall be liable for any one of thepenalties specified in Rule (2) below:

2. NATURE OF PENALTIES:

The following penalties may for good and sufficient reasons and as hereinafter provided, beimposed on an employee referred to in Rule (1) above.

a) Minor Penalities

I) Censures

II) Fine (to be imposed only on categories VIII and below)

III)With-holding of increments or promotion.

IV)Recovery from pay of the whole or any part of pecuniary loss caused to theCorporation.Corporation.

b)Major Penalties

V)Suspension (where an employee has been kept under suspension pendingenquiry)enquiry)

VI)Reduction to a lower rank in seniority list or to a lower post not being lower thanthat to which he was directly recruited or to lower time scale not being lower than thatto which he is directly recruited or to a lower stage in a time scale.that to which he was directly recruited or to lower time scale not being lower than thatto which he is directly recruited or to a lower stage in a time scale.

VII)Compulsory retirement.

VIII)Removal from service which does not disqualify him for future employment in the Corporation to a post lower than the one from which he is removed.

IX)Dismissal from service which disqualified him for future employment.

Appendix-E prescribes the procedure to be followed in inflicting punishments and the relevantclauses therein are referred to hereunder:-

2. REQUEST FOR AN ORAL ENQUIRY AND/OR TO BE HEARD IN PRESENCE:

a) if within the prescribed time or such further time as the enquiry officer may give, no writtenstatement in defence is filed and no request, in writing, is made for oral enquiry or for beingheard in person or if the delinquent officer absents himself without sufficient reason to attendthe enquiry on the date fixed, it is always better that the enquiring officer proceeds with theenquiry ex-parte to satisfy himself about the truth of the charges. An enquiry must necessarilybe held where the employee asks for it or has expressed a desire to be heard in person, orhaving regard to the written statement in defence, or the statement made by the employeehimself when he is heard in person, a further enquiry is necessary to decide the truth of thecharges.statement in defence is filed and no request, in writing, is made for oral enquiry or for beingheard in person or if the delinquent officer absents himself without sufficient reason to attendthe enquiry on the date fixed, it is always better that the enquiring officer proceeds with theenquiry ex-parte to satisfy himself about the truth of the charges. An enquiry must necessarilybe held where the employee asks for it or has expressed a desire to be heard in person, orhaving regard to the written statement in defence, or the statement made by the employeehimself when he is heard in person, a further enquiry is necessary to decide the truth of thecharges.

B) The Enquiring Officer shall examine the delinquent orally, if he desires to be heard inperson. The delinquent should not be compelled to be a witness against himself.

3. RECORDING OF EVIDENCE.

a)At the oral enquiry evidence should be heard on charges which are not admitted. Theenquiry, however, should not extend to matters not mentioned in the charge sheet.enquiry, however, should not extend to matters not mentioned in the charge sheet.

b)The evidence in support of the charges should be recorded first and the accused employeegiven an opportunity to cross-examine the witness.given an opportunity to cross-examine the witness.

c)The evidence of each witness should be recorded in the form of a narrative and within theevidence is completed it should be read to the witness, and if necessary, explained to him inthe language in which it was given. If the witness denies the correctness of any part of theevidence, when it is read over to him, the Enquiry Officer may either carry out the correction,or instead of correcting the evidence, make a memorandum of the objection taken and addsuch remarks as he thinks necessary. Then the statement shall be signed by the EnquiryOfficer. Copies of such evidence as are required by the accused employee should besupplied to him free of costs.evidence is completed it should be read to the witness, and if necessary, explained to him inthe language in which it was given. If the witness denies the correctness of any part of theevidence, when it is read over to him, the Enquiry Officer may either carry out the correction,or instead of correcting the evidence, make a memorandum of the objection taken and addsuch remarks as he thinks necessary. Then the statement shall be signed by the EnquiryOfficer. Copies of such evidence as are required by the accused employee should besupplied to him free of costs.

NOTE: No document or statement produce or recorded at the preliminary enquiry can be relied onat the regular enquiry, unless such document is duly proved on the person who made thestatement in regular enquiry or unless such document or statement is admitted by the accusedemployee.

7. ENFORCING THE ATTENDANCE OF WITNESS:

The officer holding the enquiry has no power to enforce the attendance of any non officialwitnesses. As regards official witnesses he should be able to procure their presence either bywriting to them direct or through the administrative heads of appropriate levels. Normally, therequest to call on official witness should not be rejected. When, however, it appear, that therequest is frivolous or vexatious, that it is made with a view to unnecessarily prolong the enquiryand that the facts which he is expected to speak to (according to the statement of the accused arenot relevant for the purpose of enquiry) the request should be refused and the reasons thereof recorded in writing and communicated to the delinquent Officer.

8. Inspection of documents by the employee concerned:

The enquiry officer should give every reasonable facility to the accused employee to inspectany documents or records necessary for the purpose of preparing his defence. Such inspectionsshould be arranged in the presence of a responsible officer to ensure that the records are nottempered with in any manner.

9. Enquiry Officer’s responsibility:

It is the Enquiring Officer’s responsibility to arrive at the truth or falsity of the charges against theemployee. For this purpose, it is his responsibility to put whatever question as may be necessaryboth to the witness examined in support of the charges and to the witnesses produced by theaccused employee.

10. Submission of another written statement by the accused:

After the entire evidence has been heard, the person charged shall, if he so desires put in afurther written statement to his defence and also his defence orally to the Enquiring Officer.

11. Drawing up of the findings of the enquiring officer:

a. On completion of the enquiry including the personal examination of the accused, if any,the Enquiry Officer shall record his findings in respect of each charge, with reasonstherefore and forward the proceedings to the authority appointing him. The Enquiryofficer should not rely on any document or material which the delinquent had noopportunity to explain.the Enquiry Officer shall record his findings in respect of each charge, with reasonstherefore and forward the proceedings to the authority appointing him. The Enquiryofficer should not rely on any document or material which the delinquent had noopportunity to explain.

b. The proceedings forwarded shall contain:

i.The charges framed against the employee along with the grounds of charges:

ii.Written statement filed in defence, if any.

iii.Record of the evidence given during the oral enquiry (two copies)

iv.A Memorandum of the points urged by the employee concerned during the personal hearing, if any.

v.A statement of the findings of the Enquiry Officer.

vi.The penalty recommended.

It is well settled that the disciplinary authority cannot make use of any material orevidence collected by it, in the course of preliminary enquiry, against the delinquent officerunless these material and evidence are produced in accordance with law in a regulardepartmental enquiry and the delinquent employee is given a fair opportunity to meet theseadverse material and evidence. (K. David Wilson Vs. Secretary to Govt., Law Department (Legislative Affairs and Justice, Hyderabad[[4]]).

While Dr. K. Lakshmi Narasimha, learned Counsel for the petitioner, would emphasizethat the entire enquiry was a farcical exercise wherein evidence was adduced only on behalfof the charge sheeted employee and the statements of witnesses recorded prior to thedepartmental enquiry were relied upon by the enquiry officer to hold that the charges levelledagainst the petitioner had been established, Sri N. Sridhar Reddy, learned Standing Counsel,would submit that while it is true that the witnesses produced by the petitioner wereexamined first on 20[th] April, 1998, on the very next day ie., on 21[st] April, 1998 the SeniorManager of the respondent corporation was examined as a management witness. LearnedStanding Counsel would submit that though the said witness was examined in thedepartmental enquiry, the petitioner had chosen not to cross-examine him and, having failed to avail the opportunity of cross-examining the management witnesses, it was not open tothe petitioner to contend that the enquiry proceedings were vitiated for failure to comply withthe rules of natural justice.

The petitioner specifically stated, in his rejoinder, that the statement of themanagement witness was not recorded in his presence and that he was not given theopportunity to cross-examine him. Rule 11(b)(III), of the Discipline & Appeal Rules of theRespondent-corporation, requires a record of the evidence adduced during the course ofenquiry to be maintained by the enquiry officer and two copies thereof to be forwarded, oncompletion of the enquiry, to the disciplinary authority. The Respondent-corporation wasdirected to place before this Court a copy of the record of evidence adduced during the oralenquiry. Learned Standing Counsel, on instructions, would submit that no such record isavailable and except for the statement given by the Senior Manager on 21.04.1998, there isno other record available to show that the said witness was examined on 21.04.1998 in thedepartmental enquiry, in the presence of the petitioner or that he was given an opportunity tocross-examine the said management witness. In the light of the specific plea, in the affidavitand the rejoinder, that the petitioner has been denied reasonable opportunity of cross-examining the management witness, and as the record required to be maintained in thisregard has not been produced before this Court despite being called upon to do so, anadverse inference has necessarily to be drawn and the contention, on behalf of the petitioner,that he was denied the opportunity of cross-examining the management witness is requiredto be accepted. As a result the enquiry proceedings must be held to be vitiated for violationof the principles of natural justice.

Sri N. Sridhar Reddy, learned standing counsel for the respondents would, however,submit that as petitioner has admitted to some of the charges, even if the enquiry is held tobe vitiated for non-compliance of the rules of natural justice and since the very requirementof conducting an enquiry was an unnecessary exercise in the light of these admissions, thepunishment imposed by the disciplinary authority does not call for interference.

A charge memo issued by the Disciplinary Authority and the reply/explanation offeredby the delinquent official in a departmental enquiry can be compared to a plaint and a writtenstatement in a suit. A charge memo, and the reply/explanation thereto, in a departmentalenquiry, are pleadings. (K. Venkateswarlu Vs. Nagarjuna Grameena Bank[[5]]). At anenquiry, facts have to be proved and the person proceeded against must have an opportunityto cross-examine witnesses and to give his own version or explanation of the evidence onwhich he is charged and to lead his defence. If, however, the charged employee himself has,in answer to the charge levelled against him, admitted his guilt, there will be nothing more forthe employer to enquire into. If the allegations are denied by the employee, the burden ofproving the truth of those allegations will be on the employer and the witnesses examined bythe employer, must be allowed to be cross-examined by the employee, and the latter must

also be given an opportunity to examine himself and adduce any other evidence that he mightchoose in support of his plea. But if the employee admits his guilt to insist upon the employerto let in evidence about the allegations will only be an empty formality. In such a case it willbe open to the employer to examine the employee himself, even in the first instance, so as toenable him to offer any explanation for his conduct or to place before the employer anycircumstances which will go to mitigate the gravity of the offence. But, even then, theexamination of the employee, under such circumstances, should not savour of an inquisition.If, after examination of the employee, the employer chooses to examine any witnesses, theemployee must be given a reasonable opportunity to cross-examine those witnesses andalso to adduce any other evidence that he may choose. If admissions are taken as a wholewith all its qualifications, and it is clear that the delinquent employee has admitted the factsnecessary to establish the charge against him, it cannot be held that the enquiry was held inbreach of the principles of natural justice. (The Central Bank of India Vs. KarunamoyBanerjee[[6]]).

Where the accusation is based on a matter of record, or the facts are admitted, it maybe permissible to draw the attention of the delinquent to the evidence on the record whichgoes against him and which, if he cannot satisfactorily explain, must lead to a conclusion ofguilt. In certain cases it may even be fair to the delinquent to take his version first so that theenquiry may cover the point of difference and the witnesses may be questioned properly onthe aspect of the case suggested by him. It is all a question of justice and fairplay. If thesecond procedure leads to a just decision of the disputed points and is fairer to thedelinquent than the ordinary procedure of examining evidence against him first, no exceptioncan be taken to it. It is, however, wise to ask the delinquent whether he would like to make astatement first or wait till the evidence is over but the failure to question him in this way doesnot ipso facto vitiate the enquiry unless prejudice is caused. It is only when the personenquired against is held at a disadvantage or has objected to such a course that the enquirymay be said to be vitiated. In all cases in which the facts in controversy are disputed theprocedure ordinarily to be followed is that, before the delinquent is asked anything, all theevidence against him must be led. (Employees of Firestone Vs. Workmen[[7]]).

Giving of an opportunity of being heard or holding an enquiry is a check and balanceconcept that no one’s right be taken away without giving him/her an opportunity of beingheard in compliance with the rules of natural justice or where the statute so requires. But thisprocedure is not necessary in a case where the allegations and the charges are admitted andno possible defence is placed before the authority concerned. What enquiry is to be madewhen one admits violations? In a case where the facts are admitted, the case reveals itselfand is apparent on the face of the record, and in spite of an opportunity no worthwhile explanation is forthcoming, it would not be a fit case to interfere with the termination order.(Dharmarothmakara Raibahadur Arcot Ramaswsamy Mudaliar Educatinal InstitutionVs. Educational Appellate Tribunal[[8]])

Strict Rules of Evidence Act do not apply to departmental/disciplinary enquiries. In adepartmental enquiry, it would be permissible for the authorities to prove that the delinquentemployee did make such a confession/admission and it would be for the disciplinaryauthority to decide whether it is a voluntary confession/admission or not. If the disciplinaryauthority comes to the conclusion that the statement was indeed voluntary and true, he maywell be entitled to act upon the said statement. (Kuldip Singh Vs. State of Punjab[[9]]). Adelinquent employee should not ordinarily, having regard to the scope and ambit of adomestic enquiry, be permitted to resile from his earlier stand. An admission by a party tothe proceeding is binding on him proprio vigore. He, at a subsequent stage, should not bepermitted to resile therefrom or explain away the same. (H. Kondal Reddy Vs. Central Bankof India, Hyderabad[[10]]). Admission is the best piece of evidence against the personmaking the admission. It is, however, open to the person making the admission to show whythe admission is not to be acted upon. (Delhi Transport Corporation Vs. Shyam Lal[[11]])

If a delinquent is proved to have made an admission then it is his duty to explain thesame and not that of the employer to ask him to do so. The effect of an admission is merelyto shift the onus on the party making them unless a plea of estoppel can be successfullyinvoked. The evidentiary value of admissions depends upon the circumstances in whichthey are made and the possibility of incorrect statements being misguidedly made, byignorant persons, should not be overlooked. If admissions are made with regard to the legalconsequences under misapprehension as to the true interpretation of law it is not bindingupon a person. (K. Venkateswarlu[5]).

In a disciplinary proceedings if the delinquent admits the charge framed against him ormakes an unconditional and unqualified confession, then there is nothing more to be done byway of an enquiry and it cannot be argued that the procedure of a departmental enquiryshould have been applied notwithstanding such admission or confession. When admissionmade by a delinquent shows that he had committed misconduct then the question of violationof principles of natural justice cannot have any relevance. If the employee admits his guilt inthe enquiry, that is to say in his reply to the charge memo or before the enquiry officer, thereis no obligation on the management to lead evidence on merits as that would be an emptyformality. If an order made by the disciplinary authority, imposing punishment on adelinquent, could be sustained on the basis of the admission made by him, the punishmentcannot be set aside by the Court on the ground that no witness was examined on behalf of the disciplinary authority. Examination of the witnesses on behalf of the disciplinaryauthority, in such facts situation, is unnecessary. Further, in case the delinquent admits theguilt unconditionally and clearly, and despite that the employer holds a departmental enquiryagainst him and the Court finds certain flaws or defects in such an unnecessary enquiryconducted by the employer, even then the Court cannot set aside the order made by theemployer imposing punishment as, even if the defective enquiry is conducted, no prejudice iscaused to the delinquent and action could have been taken against him merely on the basisof his admission. (K.Venkateswarlu[5]).

If the statements made by the delinquent do not amount to a clear or unambiguousadmission of his guilt, failure to hold a formal enquiry would certainly constitute a seriousinfirmity in the order of punishment passed against him. It is of the utmost importance that, intaking disciplinary action against a charged employee, a proper departmental enquiry mustbe held against him after supplying him with a charge-sheet, and he must be allowed areasonable opportunity to meet the allegations contained in the charge-sheet. Thedepartmental enquiry is not an empty formality. It is a serious proceeding intended to givethe officer concerned a chance to meet the charge and to prove his innocence. In theabsence of any such enquiry it would not be fair to strain facts against the charged employeeand to hold that, in view of the admissions made by him, the enquiry would have served nouseful purpose. That is a matter of speculation which is wholly out of place in dealing withcases of orders passed against charge sheeted employees terminating their services.

(Jagadish Prasad Saxena Vs. The State of Madhya Bharat[[12]]).

In The Nagarjuna Grameena Bank v.[ M.P.Bruc][e][[13]], aDivision Bench of this Courtobserved:- “………In the above said judgments, it has been laid down that the statement made by a delinquent officerwould amount to admission of guilt only when the said statement is made voluntarily and in unequivocalterms. The entire statement made by the delinquent officer must be considered in toto to come tothe conclusion that such statement amounts to admission of guilt. In case, after regarding theentire statement, the only conclusion that could be reached is that the delinquent officer hasaccepted the guilt, then it has to be held that the delinquent officer has admitted the guilt inunequivocal terms and that no further enquiry is necessary and the enquiry officer can submit hisreport without conducting further enquiry. Otherwise, the enquiry officer has to conduct enquiryby examining the witnesses to prove the charge and shall give an opportunity to the delinquentofficer to cross-examine the said witnesses and to lead his evidence and shall proceed further inaccordance with law. But, where the enquiry officer, merely on the basis of a vague statementmade, by the delinquent officer, or considering only a part of the statement, without taking thestatement in toto into account, comes to the conclusion that the delinquent officer has admitted theguilt and on such a footing, proceeds, without conducting further enquiry, to make a report findingthe delinquent officer guilty of the charges, it has to be held that such an enquiry is no enquiry inthe eye of law as it is not a fair enquiry…….

………The delinquent officer-respondent herein had submitted an explanation to the charge-memo. Hesubmitted his explanation with respect to all the charges. In the first part of the explanation, he disputed theveracity of the charges and stated the circumstances in which a particular thing or act happened. In thelatter part of the explanation, he stated that in case the authority comes to the conclusion that the chargeslevelled against him are proved, he may be pardoned. Therefore, by reading the explanation as a whole it is not possible to conclude that the delinquent officer-respondent herein has admitted the guilt in clear andunequivocal terms………” (emphasis supplied)

If, indeed, the petitioner had categorically and unequivocally admitted to the chargeslevelled against him, the mere fact that an enquiry was held, which is found to be defective,would be of no consequence and if, on the basis of such admission, the charges levelledagainst the delinquent employee can be held to be established and such established acts ofmisconduct would justify imposition of punishment of dismissal from service, no interferenceis called for in proceedings under Article 226 of the Constitution of India.

In order to examine this contention, as to whether the charges have been categoricallyand unequivocally admitted to by the petitioner, it is necessary to refer to the charges levelled and the explanation submitted by him in reply thereto.

CHARGE No.1: “that Sri T. Venkatanarayana, Jr. Stores Assistant on deputation to GPC. SocietyYellandu raised the following fictitious credit bills as having supplied DR items to the following Hostels.”

1. STBH (Old), Yellandu Bill No. 250, Dt: 20.3.97 Rs.9,807.002. STBGH, Sublaid ,, 7998, Dt: 26.2.97, Rs.14,151.503. STBH, Vallabhi ,, 7999, Dt: 27.2.97, Rs.14,793.204. STBH, Kusumanchi ,, 8000, Dt: 27.2.97, Rs.15,282.40EXPLANATION:

I submit that I had actually supplied the stock under thorough acknowledgement of the concernedwarden of ST Boys Hostel (Old), Yellandu. The Hamali charges claimed by me in having loaded andunloaded the stock as per Vr. No. 228 dated 25.03.97 may kindly be seen to cross check the transaction. Regarding supply of Food provisions to the remaining 3 (three) Hostels of Khammam circle I am tosubmit that I had sent the stock not immediately after raising the credit bills, but at a latter date afterpurchasing the stock as there are no certain stocks available in the godown. The wardens of the Hostelshave approached the Senior Manager, GPC.Society Ltd., Yellandu and requested that the stocks were notissued to them for February, 97 and the quota will lapse, if the stocks are not supplied before the end ofFebruary, 97. The Senior Manager, Yellandu instructed to issue bills, and to supply the stock bypurchasing where ever necessary. Therefore the stocks were supplied by loading into the lorry andsending them through messengers who were kept at my disposal. The Lorry transportation as perVouchers No. 588 and 589 claimed by me on 31.03.1997 is the evidence in having supplied the stock to theHostels. There is also another evidene of Hamali charges (for Loading and Unloading) claimed as per Vr.No. 147 on 17.3.97.

The messengers who were deputed along with the vehicle have submitted the bills duly obtaining thesignatures of the concerned wardens in having received the stock as per bills. The wardens wantonly denied the receipt of stock, but I had actually sent the stock through Lorryalong with the messenger. Therefore raising fictitious credit bills does not arise.

CHARGE NO.II.

“that Sri T. Venkatanarayana, has resorted to forgery of the signatures of wardens of the Hostels asmentioned in charge No.1 in raising the above bills and forgery for signature of others is an offence.”EXPLANATION:

I had never did so and there is no necessity of forgery, as I had actually sent the stock to the Hostelsthrough messengers kept at my disposal, not immediately after raising but after receiving the stock in thegodown in March, 97.

Therefore I am innocent in the matter, as I had never resorted to forge the signatures of others. Theallegation levelled against me is baseless.

CHARGE NO.III.

“that Sri T. Venkatanarayana, failed to claim the bills No.2,3 and 4 stated in charge NO.1 above alongwith other bills of February, 97 but claimed in March, 97 wantonly delayed, with malintention so that they getpassed in the treasury in the rush of clearing March, 1997 bills.”EXPLANATION:

In this regard I submit that this is not only one occasion of claiming the February, 97 bills in March, 97but almost all in every month 2 to 3 months bills were claimed at one stretch. This happens because at thetime of supply of DRs stocks, the concerned wardens will not available. Therefore the stocks will beunloaded at Hostels by handing over to the watchmen or any other staff that are available concerned to theHostel. Subsequently to get the signatures on the bills it will be delayed, and the wardens will send the bills leisurely. There are occasions that the messengers sent from office were returned without obtaining billsduly signed stating that wardens are not available.

In the circumstances explained above the bills were claimed lately in March, 97. But there is no anymalafide intention as attributed in the charge.

CHARGE NO.IV.

“that he resorted t tampering of office records with a malafide intention to cheat the GCC and Govt.for his personal gain”.EXPLANATION:

I submit that I had not corrected the bills that were submitted to the Dist. Tribal welfare officer,Bhadrachalam. Nor did I correct the bills that were furnished to accounts section to record necessaryentries in the books of accounts. The dates in the bills of last copy were corrected so as to explain theAuditor the actual position at a latter date, that too only to keep it in my memory. By doing so I had notgained anything and there is no any malafide intention.

CHARGE NO.V.

“that Sri T. Venkatanarayana raised fictitious bill No. 7999 and 8000 on Hostels on 27.2.97 while thereare no actual stock balances by that date as seen from the stock register maintained by him, specificallyfor items of G.N. Oil, B.G. Dhall, Onions, chilly powder, Garlic, Bengal gram Dhall and mustard”.EXPLANATION:

It is a fact that the stocks are not available in the godown on the day of raising the bills. The bills wereraised only on the request of the wardens made to the Senior Manager, Yellandu, stating that the budgetand quota will lapse if the bills are not issued before the end of the month. The Senior Manager, Yellanduinstructed to issue the bills and to supply the stock immediately after purchase. But there is no any evil intention, and the transactions were made only on the direction of the SeniorManager, Yellandu.

CHARGE NO.VI.

“that Sri T. Venkatanarayana failed to follow the procedure of payment to DRs suppliesbyDRs/cheques but paid by cash deliberately for personal gains.”EXPLANATION:

Here I am to submit that I am neither the person responsible nor competent enough to arrangepayments by DDs/Cheques. The Senior Manager, Yellandu being the Head of the office is competent toarrange payment. The Senior Manager, Yellandu paid me purchase advance, instructed to pay the amountto the parties for the stocks received in the godown. Hence from the purchase advance available with me Ihad paid the bill amounts to the concerned parties in front of the Senior Manager, Yellandu. The SeniorManager, Yellandu had admitted the bills for adjustment against my purchase advance. Accordingly myadvance amount was reduced in the books of accounts.

Therefore I am not at all responsible for the charge, and hence request to kindly drop the charge.

CHARGE NO.VII:

“that Sri T. Venkatanarayana resorted to purchasing the D.Rs from parties not approved by thepurchase committee and thus violated instructions of DM and purchase committee”.EXPLANATION:

In this regard I submit that I am not an independent officer to purchase the stocks. The SeniorManger, Yellandu is only the competent officer to make any transaction in the society, I have t act only asper the directions of the Senior Manager. My duty is to receive the stock that were purchased by thesociety and to distribute them as per the directions of the Senior Manager. Therefore I am not responsiblefor the charge.

CHARGE NO. VIII:

“that he cheated the corporation with malafide intention of personal gain where by he producedfictitious purchase bills for DR items without actual purchases and got the bills adjusted to his “Due to hispurchase advance”.EXPLANATION:

As explained to the earlier charges, I am not co-competent to purchase the DRs stocks. The SeniorManager, Yellandu is alone competent for any purchase in the society. I am responsible to the extent ofreceiving the stocks, distribute them as per the directions of the Senior Manager and to maintain them in astock register. As alleged in the charge it is not correct to say that I had produced fictitious purchase billsfor DR items. I had received the stock in the godown, recorded necessary stock entries in the stockregister and presented them to the Senior Manager, and only on the instructions of the Senior Manager,Yellandu from the advance kept at my disposal, I had paid the bill amounts to the party in front of the SeniorManager at Yellandu and requested to adjust the bills against my purchase advance. Thus cheating andhaving malafide intention does not arise.

CHARGE NO.IX:

“that Sri T. Venkatanarayana misappropriated the corporation money to a tune of Rs.2,07,116.50 byclaiming fictitious purchase bills as shown in charge No.8.”EXPLANATION:

My explanation to charge No.8 holds good, and attributing misappropriation for the stocks received inthe godown is not fair on the part of the Management. To the extent of Drs purchases, I am notresponsible, but the stocks purchased by the Senior Manger, Yellandu were received by me in thegodown. After receiving the bills from the party and only on the direction of the Senior Manager I had paidthe amount kept at my disposal that too infront of the Senior Manager, Yellandu and the bills were adjustedduly passing by the Senior Manger against my advance amount.

In the circumstances explained above I request to kindly drop the charge.

CHARGE NO.10.

“that Sri T. Venkatanarayana shown false account of stock in the stock register and cheated theGCC and Govt. showing that he delivered the stocks to Hostels through bills by a date much before theyare stated to have been purchased by him.”EXPLANATION:

It is a regular practice that as per the orders placed over phone by the Senior Manager, Yellandu, theprivate merchants used to supply the stocks in advance, and will be sending the bills at a later date. Accordingly the stocks received in the godown were distributed to the different hostels and our DRDeposit. Therefore it may kindly be observed that the issues are shown earlier, than the stock entryrecorded in the stock register. Thus there is no mismanagement and misappropriation, as the stocks wereactually supplied to the hostels. It is also a practice that whenever the wardens have to purchase thestocks in open market, they have to obtain “No stock certificate” from the Senior Manager, Yellandu. But itis learnt from the Enquiry Officer that the stocks were purchased by the wardens in the open marketwithout obtaining “No stock certificate”. It is clearly evident that the wardens with the collusion of office staffof Dist.Tribal welfare, Bhadrachalam, and supported the wardens to make out a false case against me.

In this case it was found that I had cheated the GCC and Govt. showing that I had delivered thestocks to Hostels through bills by a date much before they are stated to have purchased by me, which is afalse allegation. I had clearly explained above the actual and practical experience in receiving anddistribution of stocks. This is a well known fact to all of us in the corporation, and this practical thing willtake place at every society so as to facilitate the wardens in their day to day needs of the Hostels. When the Enquiry officer found in the stock register (as per the statements of few wardens) that thestocks were shown as issued without having stocks in the godown as per stock register, it may kindly beobserved that along with the Hostel wardens who raised allegation of not receiving the stock, there areother transactions also to whom the supplies were made, and subsequently the amounts also wererecovered from the authorities concerned. In the charge Memo, it was alleged that in 4 (Four) commodities I had shown the supplies which arehaving stock balances in the stock register. I submit hereunder the particulars of stocks; supplied to otherHostels, Ashram Schools, I.C.D.S., Sudimella and APRS, Subiimella, and subsequently the amounts alsowere realized from them.

13. STBH, Subiledu 0242 15-03-97 0.01.00014. STGH, Khammam 0244 15-03-97 0.02.00015. STGH, Khammam (B) 0243 15-03-97 0.02.00016. STBH, Yellandu 0414 17-03-97 0.02.00017. AHS.Chjeenangula 0399 23-03-97 0.04.000 gadda18. AUPS. Moolapocharam 0437 21-03-97 0.05.000D. Bengal gram Dhall:1. ICDS. Sudimella 7963 06-03-97 9.60.0002. AHS. Gangaram 0438 21-03-97 0.50.000

As against the above credit supplies the amounts were received from the Dist. Tribal Welfare OfficerBhadrachalam except to the Hostels which are under objection. In this regard it is to submit that whenthere is no stock at all, how can I supply the stock to the institutions as shown above, and how can theyarrange payment without actually receiving the stock by them.Along with the Hostels and Ashram schools who raised objection, the stocks were issued to theICDS., sudimella and APRS (G) Sudimella in March, 97. Subsequently the following amounts, as againstthe above credit supplies were received by Demand drafts.

I.ICDS., Sudimella:D.D. No. Date Amount0378923 31-03-97 63,000-000378798 17-03-97 63,000-000378902 29-03-97 17,000-00 Total 1,43,000-00II.APRS (C), Sudimella:How can the institutions pay the amounts with actually receiving the stock. In the circumstancesexplained above it may kindly be observed that the warder with a preplan only to blame our organizationplaying fowl game with the collusion of their office who are supporting in the D.T.W.O., office,Bhadrachalam. That too this allegation was raised by the wardens only I had rendered my servicesfrom 1992 to 1997 without any remark. Therefore this is asame played by the wardens to defame meand our organization.

Thus it may kindly be observed that I had received the stock in the godown and distributed thestocks as shown in the stock register.In the circumstances explained to all the charges above I submit that I am not quality in discharging myduties. I therefore request to kindly drop all the charges levelled against me as oblige.”

On considering the explanation, submitted by the petitioner in reply to the chargememo, in its entirety and with all its qualifications, it cannot be held that he has admitted thefacts necessary to establish the charge against him, in categorical and unequivocal terms. The charges levelled against the petitioner include his having raised fictitious credit bills andof having forged the signature of wardens of the hostels. The petitioner did not admit to hishaving raised fictitious credit bills or to have forged the signatures of wardens. On the otherhand, it is his specific case that the supplies were made to the hostels, albeit belatedly. Inhis concluding remarks in the explanation the petitioner would reiterate that what he has donewas in accordance with the past practice in the respondent corporation. It cannot, therefore,be said that there has been a categorical and unequivocal admission of the charges by thepetitioner rendering holding of a departmental enquiry an unnecessary exercise or that thedefective enquiry held, to enquire into the charges levelled against the petitioner, is liable tobe ignored. I see no reason to strain facts to such an extent or to carry out a microscopicevaluation thereof to ascertain whether an inference of admission of guilt can be drawn. Since the contention that the petitioner has admitted his guilt, obviating the requirement ofholding a departmental enquiry, does not merit acceptance, it is wholly unnecessary for thisCourt to deal with the contention of Dr. K. Lakshmi Narasimha, learned Counsel for the

Conclusion

petitioner, that in the absence of necessary pleadings in this regard in the counter affidavit,and as the order of punishment was not passed on the basis of the petitioner having admittedto the charges, it was not open for the respondents to raise this plea for the first time duringthe course of hearing of the writ petition.

As the departmental enquiry stands vitiated for non-compliance of the applicable rules,and the principles of natural justice, the order of punishment is liable to be quashed, leavingit open to the respondents to hold an enquiry, into the charges levelled against the petitioner,in accordance with the Discipline and Appeal Rules of the respondent Corporation and incompliance with principles of natural justice and thereafter take action, against the petitionerherein, in accordance with law. Since the order of punishment is being set aside on theground of violation of the applicable rules, and for non-compliance with the principles ofnatural justice, it is also unnecessary for this Court to examine the contention as to whetherthe petitioner was imposed two punishments or not. Since the impugned order, of the ViceChairman and Managing Director, dated 10.09.1998, whereunder the petitioner wasdismissed from service, his period of suspension was treated as “dies non” and he wasdirected to make good the pecuniary loss caused to the respondent-Corporation ofRs.54,034.10ps, has been set aside in its entirety, this contention does not necessitateexamination in the present writ petition.

The contention of Dr. K. Lakshmi Narasimha, learned Counsel for the petitioner, thatsince the charges levelled against the petitioner in the criminal case and the charges in thedepartmental enquiry are identical, it would necessitate all further proceedings in thedepartmental enquiry to be quashed, consequent upon the petitioner’s acquittal in thecriminal case, is required to be examined.

In Captain M. Paul Anthony[1], the Supreme Court observed:- “……..The conclusions which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceedsimultaneously as there is no bar in their being conducted simultaneously, thoughseparately.simultaneously as there is no bar in their being conducted simultaneously, thoughseparately.

(ii) If the departmental proceedings and the criminal case are based on identical andsimilar set of facts and the charge in the criminal case against the delinquentemployee is of a grave nature which involves complicated questions of law and fact,it would be desirable to stay the departmental proceedings till the conclusion of thecriminal case.similar set of facts and the charge in the criminal case against the delinquentemployee is of a grave nature which involves complicated questions of law and fact,it would be desirable to stay the departmental proceedings till the conclusion of thecriminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whethercomplicated questions of fact and law are involved in that case, will depend upon thenature of offence, the nature of the case launched against the employee on the basisof evidence and material collected against him during investigation or as reflected inthe charge-sheet.complicated questions of fact and law are involved in that case, will depend upon thenature of offence, the nature of the case launched against the employee on the basisof evidence and material collected against him during investigation or as reflected inthe charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation tostay the departmental proceedings but due regard has to be given to the fact that thedepartmental proceedings cannot be unduly delayed.stay the departmental proceedings but due regard has to be given to the fact that thedepartmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the

departmental proceedings, even if they were stayed on account of the pendency ofthe criminal case, can be resumed and proceeded with so as to conclude them at anearly date, so that if the employee is found not guilty his honour may be vindicatedand in case he is found guilty, the administration may get rid of him at the earliest…..

………There is yet another reason for discarding the whole of the case of the respondents. Aspointed out earlier, the criminal case as also the departmental proceedings were based on identicalset of facts, namely, the raid conducted at the appellants residence and recovery of incriminatingarticles therefrom. The findings recorded by the enquiry officer, a copy of which has been placedbefore us, indicate that the charges framed against the appellant were sought to be proved bypolice officers and panch witnesses, who had raided the house of the appellant and had effectedrecovery. They were the only witnesses examined by the enquiry officer and the enquiry officer,relying upon their statements, came to the conclusion that the charges were established against theappellant. The same witnesses were examined in the criminal case but the Court, on a considerationof the entire evidence, came to the conclusion that no search was conducted nor was any recoverymade from the residence of the appellant. The whole case of the prosecution was thrown out andthe appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicialpronouncement with the finding that the raid and recovery at the residence of the appellant werenot proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the exparte departmental proceedings to stand……

…….Since the facts and the evidence in both the proceedings, namely, the departmentalproceedings and the criminal case were the same without there being any iota of difference, thedistinction, which is usually drawn as between the departmental proceedings and the criminal caseon the basis of approach and burden of proof, would not be applicable to the instant case……..(emphasis supplied)

If the departmental enquiry and the criminal case are based on identical set of facts andthe evidence in both the proceedings are common, on the employee being acquitted in thecriminal case, the order of dismissal passed against him pursuant to a departmental enquirymay also be required to be set aside.

It is not in dispute that the charges in the criminal case and in the disciplinaryproceedings are similar. In C.C. No. 246 of 1999, the Judicial Magistrate of I Class,Yallandu, in his judgment dated 28.08.2003, noted that the evidence of P.Ws-2 and 3 (thewardens), led in support of the allegation that the petitioner-accused had forged thesignatures of wardens on the vouchers without supplying goods, revealed that the signaturein Exs.P-2 and P-3 did not belong to them. The learned Magistrate, however, held that therewas no material on record to hold that the petitioner had forged their signatures. While notingthat the signatures were sent to the hand writing expert, the learned Magistrate held that theopinion of the hand writing expert was not exhibited, that the Investigating Officer had notbeen examined and that the prosecution has failed to produce them in spite of issuance ofsummons and sufficient time being granted by the Court. The learned Magistrate held thatnon-examination of the investigating officer was fatal to the prosecution and that theinvestigating officer had committed a glaring error in the matter of collecting the admittedsignature and the hand writing of the accused, as he himself had collected the specimensignatures and hand writing of the accused in the presence of mediators instead ofrequisitioning the competent Magistrate to do so. Relying on the judgment of this Court, inCh. Venkateswar Rao Vs. State of A.P.[[14]], the learned Magistrate held that the action ofthe investigating officer, in obtaining the signatures and hand writing of the accused, was

fatal to the prosecution. The learned Magistrate held that there was no material on record toshow that the accused had forged the signatures of the wardens on the vouchers and that hewas not inclined to accept the testimony of P.Ws- 1 to 4 to hold that the accused had forgedthe vouchers. The learned Magistrate held that the prosecution ought to have establishedbeyond reasonable doubt, as to who had forged the document and it was only thereafter atnext stage did the question arise whether such forged document had been used by theaccused as genuine. The learned Magistrate also held that it could not be said that thepetitioner-accused had attempted to misappropriate Rs.54,034.10ps and that the prosecutionhad failed to prove that the petitioner-accused had forged the signatures of the wardens onthe vouchers for the purpose of cheating, that the accused had used the forged documentsas genuine and had committed breach of trust. It is in these circumstances that thepetitioner was acquitted in the criminal case. It is evident from the judgment, in C.C. No. 246of 1999 dated 28.08.2003, that neither the hand writing expert to whom the signature wassent for examination nor the investigating officer, who had obtained the signatures, wereexamined by the prosecution. Since the order of punishment dated 10.09.1998 is beingquashed, leaving it open to the respondents to hold an enquiry in compliance of principles ofnatural justice, it cannot be said with certainty that the very same witnesses in the criminalcase would alone be examined and not any other witnesses. In any event such a contentionis premature as it is not for this Court to hazard a guess as to whether the very samewitnesses, who were examined in the criminal case, would alone be examined in thedepartmental enquiry.

Reliance placed on behalf of the petitioners on the judgment of the Supreme Court inJasbir Singh[2], is misplaced. In Jasbir Singh[2], the Supreme Court referred to its earlierjudgment in Captain M. Paul Anthony[1]and held that in cases where the departmentalproceedings and the criminal case were based on identical set of facts and the evidence inboth the proceedings were common and the employee was acquitted in the criminal case, theorder of dismissal already passed may also be set aside. In Jasbir Singh[1], not only was thedelinquent employee acquitted in the criminal case, the suit filed by the respondent bank forrecovery of the embezzlement amount of Rs.25,000/- was also dismissed by the Civil Court. The order of the Civil Court had attained finality. The Supreme Court held that the judgmentin the civil suit, having attained finality, was binding on the bank and that the High Court hadfailed to take note of the decision of the Civil Court which it could not have refused to lookinto. The judgment of the Supreme Court in Jasbir Singh[2]has no application to the facts ofthe present case and is of no assistance to the petitioner.

The only contention which remains to be examined is whether, as a consequence ofthe impugned order of punishment being quashed, a mandamus should issue to therespondents to reinstate the petitioner into service. Dr. K. Lakshmi Narasimha, learned Counsel for the petitioner, would rely on the judgment in Narinder Mohan Arya[3], wherein theSupreme Court observed:

“…….. For the foregoing reasons the impugned judgments cannot be sustained which are set asideaccordingly. Although, the consequence of setting aside of the said orders would have been to remit thematter back to the disciplinary authority for consideration of the matter afresh on merit, but having regard tothe fact that the disciplinary proceedings were initiated against the appellant as far back in 1976, we refrainourselves from doing so. He, indisputably, has suffered a lot. However, the question which arises is whatrelief should be granted to the appellant. The appellant shall be reinstated in service. We, however, whiledirecting reinstatement of the appellant, keeping in view the fact that no work had been taken from him,direct that only 50% of the back wages shall be payable. The appeal is allowed with the abovementioneddirections……”

The order passed by the Supreme Court in Narindra Mohan Arya[3]was under Article142 of the Constitution of India, which confers power on the Supreme Court to pass ordersas is necessary for doing complete justice in any cause or; matter pending before it.

I n The Managing Director, U.P. Warehousing Corporation Vs. Vijay NarayanVajpayee[[15]], the Supreme Court observed:

“…… Further contention of the learned Counsel for the appellant is that even if thedismissal of the respondent was wrongful, the High Court could only quash the same, but it couldnot in the exercise of its certiorari jurisdiction under Article 226 of the Constitution give the furtherdirection that the employee should be reinstated in service with full back wages. It is maintainedthat in giving this further direction, the High Court had overleaped the bounds of its jurisdiction.

There appears to be force in this contention. It must be remembered that in the exercise ofits certiorari jurisdiction under Article 226 of the Constitution, the High Court acts only in asupervisory capacity and not as an Appellate Tribunal. It does not review the evidence upon whichthe inferior tribunal proposed to base its conclusion; it simply demolishes the order which itconsiders to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute itsown view for those of the inferior tribunal. In other words, the offending order of the impugnedillegal proceeding is quashed and put out of the way as one which should not be used to thedetriment of the writ petitioner. Thus, in matters of employment, while exercising its supervisoryjurisdiction under Article 226 of the Constitution, over the orders and quasi-judicial proceeding ofan administrative authority not being a proceeding under the Industrial/Labour Law before anIndustrial/Labour Tribunal culminating in dismissal of the employee, the High Court shouldordinarily,in the event of the dismissal being found illegal, simply quash the same and should notfurther give a positive direction for payment to the employee full back wages (although as aconsequence of the annulment of the dismissal, the position as it obtained immediately before thedismissal is restored); such peculiar powers can properly be exercised in a case where theimpugned adjudication or award has been given by an Industrial Tribunal or Labour Court. Theinstant case is not one under Industrial/ Labour Law. The respondent employee never raised any industrialdispute, nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved theHigh Court for the exercise of its special jurisdiction under Article 226 of the Constitution for challenging theorder of dismissal primarily on the ground that it was violative of the principles of natural justice whichrequired that his public employment should not be terminatedwithout giving him a due opportunity to defendhimself and to rebut the charges against him. Furthermore, whether a workman or employee of a statutoryauthority should be reinstated in public employment with or without full back wages, is a question of factdepending on evidence to be produced before the tribunal. If after the termination of his employment theworkman/ employee was gainfully employed elsewhere, that is one of the important factors to beconsidered in determining whether or not the reinstatement should be with full back wages and withcontinuity of employment. For these twofold reasons, we are of opinion that the High Court was in error indirecting payment to the employee full back wages……..” (emphasis supplied).

When the enquiry is found to be defective, it would not be proper to directreinstatement with all consequential benefits. The matter is required to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault is pointed outand to take action in accordance with law. The consequential benefits would depend upon theresult of the enquiry and the order passed thereon. (State of Punjab Vs. Dr. HarbhajanSingh Greasy[[16]]).

The impugned order of punishment dated 10.09.1998 is quashed leaving it open to therespondents to take action against the petitioner in accordance with law. The respondentsshall examine the consequences of the impugned order of punishment being set aside, andthe claim of the petitioner herein for being reinstated into service, in accordance with therules, within a period of one month from the date of receipt of a copy of the order.

The writ petition is accordingly disposed of. However, in the circumstances, without costs.

____________________________Date: -12-2006 RAMESH RANGANATHAN,J

Note: L.R. copy to be marked. B/oMRKR/ASP

[1]1999(3) SCC 679[2](2006(8) Supreme 690[3](2006) 4 SCC 713)[4]2002(5) ALD 406 (DB)[5]1995(1) ALD 500[6]AIR 1968 SC 266[7]AIR 1968 SC 236[8]1999(7) SCC 332[9]1996(10) SCC 659[10]2002(1) ALD 280(FB)[11]2004 (8) SCC 88[12]AIR 1961 SC 1070[13]1995(3) ALD 786[14]2000(1) ALT (Crl.) 84[15]AIR 1980 SC 840[16]1996(9) SCC 322