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Judgment
V. Bakthavatsalam, J.—The petitioner herein was working as a Driver with the first respondent herein. On May 25, 1987, report appeared
in the newspaper that the petitioner herein had stabbed his wife on a quarrel with herein had stabbed his wife on a quarrel with her and she had
been admitted in the General Hospital, Madras, and the petitioner himself has absconded. Based on this report, the petitioner herein was placed
under suspension from May 25, 1987 by the first respondent herein pending enquiry into a criminal offence against him. Subsequently, a criminal
case has been filed against the petitioner under S. 228, IPC, before the X Metropolitan Magistrate, Egmore, and before that, he was arrested and
released on bail. The criminal court acquitted the petitioner on June 20, 1987, when the only witness, the wife of the petitioner herein, turned
hostile. In the absence of any witness, the criminal court acquitted the accused the petitioner herein, as the offence on him could not be proved
beyond doubt and giving benefit of doubt to the accused/the petitioner herein. After the criminal case ended in acquittal, the first respondent
Department initiated departmental proceedings against the petitioner and a charge memo was issued to the petitioner u/s V of M.M.D.A. Service
Regulations and the said charge memo runs as follows :-
... That Thiru D. Selvaraj, Driver under suspicion had stabbed his wife as per complaint to the police dated May 25, 1987 and thus the said Thiru
D. Selavaraj committed a misconduct in his private life bringing embarrassment and spoiling the reputation of the organization ...
After following the procedure under the M.M.D.A. Regulations, an oral enquiry was conducted. During the said enquiry, three witnesses were
examined on the side of the first respondent Department, apart from the petitioner herein. The Enquiry Officer submitted a report holding that the
charge farmed against the petitioner has been proved and that his misconduct in his private life has spoiled the reputation of the organization. A
show-cause notice was issued to the petitioner herein under S. 5, R 2(vi) of the Service Regulations to award him a major punishment of reduction
to a lower rank of messenger for a period of five years. The petitioner gave his explanation. After considering the explanation submitted by the
petitioner herein, by letter dated July 28, 1988 the petitioner herein was awarded a punishment of reduction to lowers rank by the first respondent
Department, as a messenger for a period of five years. Aggrieved by this order, the petitioner is before this Court praying for the issuance of a writ
of certiorarified mandamus to quash the order of the first respondent dated July 28, 1988 and to direct the first respondent Department to permit
him to continue to work as a Driver.
Mr. Fenn Walter, the learned counsel for the petitioner, placed before, me the following contentions : (1) the act of the petitioner herein cannot
be called as misconduct as it has not been enumerated under any of the Regulations of the M.M.D.A. (2) The procedure adopted in the said
enquiry is highly irregular in the sense the petitioner herein was examined first before the witnesses on the side of the Department were examined to
prove the charge against the petitioner. (3) Assuming that the act of the petitioner herein is a misconduct, the findings given by the Enquiry Officer
are perverse, as there is no evidence on record to prove the guilt of petitioner (4) The punishment imposed on the petitioner is wholly illegal as the
petitioner cannot be reverted to a post lower that to which he was initially recruited.
Mr. Fenn Walter, the learned counsel for the petitioner, contends that what has been stated in the charge memo against the petitioner is one
which accused in his private life, that a charge has been framed against the petitioner stating that he has committed a misconduct in private life
which is likely to bring discredit to the organisation and that the said charge-memo cannot be legally sustained. The learned counsel further argues
that it is not a misconduct which has been enumerated by where in the Rules or Regulations governing the service conditions of the petitioner
herein. The learned counsel further argues that assuming that the petitioner''s act is a misconduct, since it occurred in his private life the said
misconduct is purely a private one and it cannot be countenanced by the first respondent Department and more so a charge-memo cannot be
issued based on this alleged misconduct. The learned counsel refers to a decision of the Supreme Court in Glaxo Lab. (I) Ltd. v. Labour Court,
Meerut 1984-I-LLJ-16 and a decision in A. L. Kalra v. The Project and Enquirement Corpn. of India Ltd., 1984-II-LLJ-186 for this proposition.
The learned counsel further argues that the procedure adopted by the Department is highly irregular in the sense that sense that the petitioner was
cross examined even before the witnesses were examined on the side of the respondent Department. The learned counsel argued that the above
said procedure is highly irregular and violates the principle of natural justice, especially in a disciplinary proceeding. The learned counsel relies upon
a decision which reported in Associated Cement Companies Ltd. v. Their Workmen 1963-II-LLJ-396 for that proposition. Mr. Fenn, Walter, the
learned counsel for the petitioner, refers me to the evidence of the witnesses on the side of the respondent Department and strenuously contends
that no reasonable person can arrive at such finding on the basis of this evidence that the petitioner herein his guilty of the charges. The learned
counsel vehemently argues that the findings of Enquiry Officer are preserve and the petitioner''s punishment is on ''no evidence''. The learned
counsel refers to the decision in Nyadar Singh v. Union of India 1988 (II) CLR 448 for the proposition that the punishment imposed on the ground
that the petitioner cannot be reduced to a post lower than the rank to which he was directly recruited.
Mr. Gajapathy, the learned counsel appearing for the respondent Department, argues that the petitioner herein was punished on a charge which
has been taken as a misconduct. The learned counsel argues that though the misconduct of the petitioner was purely a private one, as a Driver of
the respondent Department he is expected to be more patient with all sense of responsibility. The learned counsel further argues that the
involvement of the petitioner herein in the case of stabbing his wife will cause apprehension in the minds of the co-employees, who will have to ride
with him in carrying out their official duties and as such the misconduct of the individual in his private life has its impact on public life. The learned
counsel points out that the criminal court has acquitted the petitioner only giving benefits of doubt to the accused and not one merits. The learned
counsel also contends that there is no bar to proceed with the enquiry even if the criminal case has ended in acquittal. The learned counsel also
contends that event though the act of the petitioner herein is a private affair it causes apprehension in the minds of the co-workers as well as the
officers and will have great impact on his Government service. The learned counsel tries to sustain the impugned order purely on the evidence of
the Police Officer, who made investigations on the complaint made by the wife of the petitioner herein. The learned counsel fairly states that there is
no evidence, except the evidence of three witness who were examined on the side of the respondent Department, to prove the charge against the
petitioner.
I have considered the arguments the arguments of Mr. Fenn Walter, the learned counsel appearing for the petitioner and of Mr. Gajapathy, the
learned counsel appearing for the respondent Department, M.M.D.A. It is seen that the charge has been framed against the petitioner herein stating
that the petitioner had stabbed his wife as per complaint to the police dated may 25, 1987 and that the petitioner has committed a misconduct in
his private life bringing embarrassment and spoiling the reputation of the organisation of the respondent Department. It is also to be remembered
that on a complaint made under S. 326, IPC, the petitioner herein was acquitted by X Metropolitan Magistrate, Egmore when the only witness the
wife of the petitioner herein, turned hostile. Though the petitioner was acquitted giving benefit of doubt, yet it is an acquittal. Actually, even in the
criminal case, there is no other evidence except the evidence of the petitioner''s wife to prove the charge against the petitioner herein. The case of
the petitioner, all along in the case is that his wife fell on he ''Aruvalmanai'' and that he had not stabbed his wife. To disprove this statement, there is
no other evidence in the criminal court. Whether an incident which occurred within the four walls of a house could be taken as an act of misconduct
is to be considered. It is not disputed that the charge, as framed, did not fall under under any of the Rules, or Regulations of the respondent
Department. The Supreme Court has an occasion to consider this aspect in a case in Glaxo Lab (I) Ltd. v. Labour Court, Meerut, (supra). In that
case, the Supreme Court has considered Cl. 10 of the Standing Order, which runs as follows :
... (10) Drunkenness, fighting, indecent or disorderly behaviour, us of abusive language, wrongfully interfering with the work of there employees or
conduct likely to cause a breach of the peace or conduct endangering the life or safety of any other person, assault or threat of assault, any act
subversive of discipline and efficiency and any act involving moral turpitude, committed within the premises of the establishment or in the vicinity
thereof ...
While considering the scope of Clause 10, which is extracted above, the Supreme Court in the above mentioned case observed as follows (p. 20)
:
.... After reading Clause 10, Mr. Shanti Bhushan contended that the expression ''committed within the premises of the establishment or in the
vicinity thereof can qualify only the expression ''any act subversive of discipline and efficiency and any act involving moral turpitude'' but not the
earlier portion of the clause. Numerous acts of misconduct have been collected in C. 10 such as drunkenness, fighting, indecent or disorderly
behaviour, use of abusive language, wrongfully interfering with the work of other employees, etc. Says Mr. Shanti Bhushan that these acts of
misconduct are per se misconduct that each one of them cannot have any correlation to the time or place where it is committed and each one of it
is an acts of misconduct irrespective of the time and place where it is committed. Expanding the submission, it was urged that drunkenness is such
as socially reprehensible action that if it is committed within the premises of the establishment or in the vicinity thereof or anywhere else be an act of
misconduct comprehended in Cl. 10 punishable under 0. 23. If this construction were even to be accepted the employer will have more power
than the almighty State because State chooses to punish drunkenness in public place. But on the construction canvassed for if a man consumes
liquor in his own house with the doors closed and gets drunk, the employer can still fire him. If a man uses abusive language towards his close
relation in his own house within closed door, the employer would be entitled to fire him, and this approach over looks the purpose of prescribing
conditions of service by a statute. To enable an employer to peacefully carry on his industrial activity, the Act, confers powers on him to prescribe
conditions of service including enumerating acts of misconduct when committed within the premises of the establishment. The employer has hardly
any extraterritorial jurisdiction. He is not the custodian of general law and order situation nor the Guru or mentor of his workmen for their well
regulated cultural advancement. If the power to regulate the behaviour of the workmen outside the duty hours and at any place wherever they may
be was conferred upon the employer, contract of service may be reduced to contract of slavery. The employer is entitled to prescribe conditions of
service more or less specifying the acts of misconduct be enforced within the premises where the workmen gather together for rendering service.
The employer has both power and jurisdiction to regulate the behaviour of workmen within the premises of the establishment, or for peacefully
carrying the industrial activity in the vicinity of the establishment. When the broad purpose of conferring power on the employer to prescribed acts
of misconduct that may be committed by the workmen is kept in view, it is not difficult to ascertain whether the expression ''committed within the
premises of the establishment or in the vicinity thereof'' would qualify each and every act of misconduct collocated in Cl. 10 or the last two only,
namely ''any act subversive of discipline and efficiency and any act involving moral turpitude''. To buttress this conclusion, one illustration would
suffice. Drunkenness even form the point of view of prohibitionist can at best be said to be an act involving moral turpitude. If the misconduct
alleging drunkenness as an act involving morel turpitude is charged, it would shave to be shown that it was committed within the premises of the
establishment or vicinity other of but if the misconduct charged would be drunkenness the limitation of its being committed within the premises of
the establishment can be disregarded. This makes no sense. And it may be remembered that the power to prescribe conditions of service is not
unilateral but the workmen have right to object and to be heard and a statutory authority, namely, Certifying officer have to certify the same.
Therefore, keeping in view the large objective sought to be achieved by prescribing conditions of employment in certified Standing Orders, the only
construction one can put in Cl. 10 is that the various acts of misconduct therein set out would be misconduct for the purpose of S.O. 22 punishable
under S.O. 23, if committed within the premises of the establishment or in the vicinity thereof. What constitutes establishment or its vicinity would
depend upon the facts and circumstances of each case ....
The Supreme Court in A. L. Kalra v. P & E. Corporation of India Ltd., (supra), has held that removing a person from service on the report of the
alleged misconduct not falling under any of the misconducts specifically enumerated in Rules is not proper. As I have already stated, the charge
based on alleged stabbing, assuming it as a misconduct, cannot be sustained since it has not been pointed out as a misconduct as enumerated any
where in the Rules and Regulations governing the petitioner.
Coming to the procedure adopted by the respondent Department in the enquiry, I do not think any authority is needed to hold that the
procedure adopted by the respondent Department is highly irregular. It is fundamental principle that the Department concerned has to first lead the
evidence to prove the charge against the delinquent/accused and then only the delinquent can be asked to adduce any evidence if he so wants.
What had been done in this case is quite contrary to the accepted norms and procedures adopted in any enquiry. From the records produced
before, me, I could see that the petitioner has been cross-examined by the Enquiry Officer on December 18, 1987 even before the witness on the
side of the Department were examined. In my view undoubtedly this vitiates the enquiry. It is the duty of the respondent Department to prove the
charge against the accused officer and it is not open to the respondent Department to question the accused officer first and then start examining the
witness on its side. A reference to Associated Cement Companies v. Their Workmen, (supra), can be usefully made in which the Supreme Court
has held as follows 1963-II-LLJ-396 :
... It is necessary to emphasize that in domestic enquiries the employer should take steps first to lead evidence against the workmen charged, give
an opportunity to the workmen to cross-examination the said evidence and then should the workmen be asked whether he wants to give any
explanation about the evidence led against him. It seems to us that it is not fair that in domestic enquiries against industrial employers the employee
should be at the very commencement of the enquiry, closely cross-examined even before any evidence is led against him.
Coming to the impugned order, it is to be seen that even the Enquiry Officer accepts that on enquiring the witnesses, whom he has summoned, it
is found that they have the knowledge of the occurrence of the incident, but they tried to conceal the fact behind it, under the apprehension that the
consequences of the case would adversely affect the career of the petitioner here in. A reading of the deposition given by three witnesses clearly
shows that absolutely there is no evidence to prove the charge against the petitioner herein as framed. That is why, even the Enquiry Officer had
stated that the witnesses were not coming out with truth. May be so. Yet the fact remains that there is no evidence to connect the petitioner to the
alleged incident, if it is true. Except, the police compliant given originally by the petitioner''s wife, which ended in an acquittal by the criminal court,
there is no other evidence to prove the charge framed against the petitioner. A reading of the enquiry that the finding of the Enquiry Officer are
perverse and no reasonable person could arrive at such a conclusion, that is to say, that the petitioner is guilty of the charge. It is well settled in
such cases, that if there is no evidence and the findings are perverse, then it is open to this Court to set aside the order. See Union of India v. H. C.
Goel, 1964-I-LLJ-38.
Coming to the last point, Mr. Fenn Walter the learned counsel for the petitioner, refers to me the decision in Myadar Singh v. Union of India
(supra), for the proposition that reduction to a post lower than to which a Government servant was initially recruited cannot be suggested. In that
case, the Supreme Court had an occasion to consider R. 11(vi) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 and
held that on an interpretation of the said Rules, it has to be held that it imposes a limitation on the power of a disciplinary authority to reduce by
way of punishment a Government servant to a post in a lower time scale grade or service or post in a lower time scale grade or service or post
which he never held before. It cannot be said that he framing of the charge on the facts of the case on hand, is entirely wrong. Unfortunately, there
are no Service Rules or Regulations of M.M.D.A. to treat the act of the petitioner herein as a misconduct on the part of the petitioner. It is true that
such acts of a public servant may spoil the reputation of the organisation. But, to sustain the charge, it is for the respondent Department M.M.D.A.
to frame a Regulation so that this can be treated as a misconduct. So far there is no Regulation governing this sort of acts, as held by the Supreme
Court in the above mentioned case, the petitioner herein cannot be taken to task for the alleged act he has committed in his private life. As I have
already stated the impugned order has to be set aside even on merits on the case.
In the result, the impugned order is quashed and the write petition will stand allowed. However there will be no order as to costs.