J. Ison vs The Chief Engineer and The Superintending Engineer, Procurement and Administration, Tuticorin Thermal Power Station, Tamil Nadu Electricity Board

D. Hariparanthaman, J.—According to the Petitioner, the Petitioner was employed as a contract labor in Tuticorin Thermal Power Station from the year 1984 onwards. Based on the award of Justice Khalid Commission, dated 11.02.1991, he was considered for absorption as a helper, as he served as a contract laborer. The Selection Committee was constituted pursuant to the aforesaid award. He appeared before the Selection Committee on 12.02.1998 and he produced the service certificates issued by the Contractors as well as the Assistant Executive Engineer, Mr. G. Selvaraj, of Tuticorin Thermal Power Plant. Based on those certificates, the Selection Committee recommended for absorption and accordingly, he was observed as Field Assistant by issuing an order of appointment in March 1999.

While so, a charge-memo dated 07.06.2004 was issued to the Petitioner, alleging that he produced bogus certificates as if he worked in the Tuticorin Thermal Power Station, while he worked in Poombukar Shipping Corporation. It is alleged that Mr. Porus, Mr. R. Gunaselan, Mr. Jeba Gnana Abiraham and Mr. Arnold Fernandez gave letters, dated 22.08.2003, to the Electricity Board stating that the Petitioner was not employed as contract worker and on the other hand, he was employed in Poombukar Shipping Corporation.

The Assistant Executive Engineer was appointed as an enquiry officer. In the enquiry, Mr. Porus alone was present and he deposed in favor of the Petitioner. He disowned the statement dated 22.08.2003 said to have been given by him to the Vigilance Officer of the Tamil Nadu Electricity Board. Mr. Porus was not cross-examined by the Electricity Board. The other persons did not appear in the enquiry to substantiate the statements said to have been given on 22.08.2003 to the Vigilance Officer and on the other hand, they sent letters to the enquiry officer disowning their statements. No attempt was made to examine those persons in the enquiry. However, the enquiry officer relied on the statement made by those persons behind the back of the Petitioner on 22.08.2003 and held that the charges were proved. Based on his findings dated 12.05.2006, the second Respondent imposed the punishment for stoppage of increment for 5 years with cumulative effect by an order dated 21.02.2008.

The Petitioner preferred an appeal dated 02.04.2008, to the first Respondent and the first Respondent confirmed the punishment order. It is relevant to note that the first Respondent was the then Assistant Executive Engineer, who issued the service certificate in favor of the Petitioner, that he worked in the Tuticorin Thermal Power Station.

The Petitioner filed the present writ petition to quash the order dated 19.04.2008 of the first Respondent and the order dated 02.04.2008 of the second Respondent.

Heard Mr. M. Saravana Kumar, learned Counsel appearing for the Petitioner and Mr. Panneer Selvam, learned Counsel appearing for the Respondents.

The learned Counsel appearing for the Petitioner submits that the enquiry officer was not correct in holding that the charges were established, based on the statement made by the persons behind the back of the Petitioner and those persons addressed letters to the enquiry officer disowning their statement and one of them appeared in enquiry and disowned the statement made behind the back of the Petitioner.

The learned Counsel for the Petitioner relied on the decision of the Apex Court in Central Bank of India Ltd. Vs. Prakash Chand Jain, .

On the other hand, the learned Counsel for the Respondents reiterated the averments in the counter-affidavit and has sought for dismissal of the writ petition.

I have considered the submissions made on either side.

Admittedly, the charge-sheet was issued, based on the statements made by four persons on 22.08.2003 before the Vigilance Officer, stating that the Petitioner was employed at the relevant time in the Poombukar Shipping Corporation and not as contract labor. One of them appeared in the enquiry and disowned his statement given behind the back of the Petitioner and others sent letters to the enquiry officer disowning their statements. The department failed to cross-examine the persons, who disowned the statement in the enquiry, treating him hostile. Furthermore, the department did not take steps to examine other three persons to substantiate the charges.

In these circumstances, I am of the view that the learned Counsel for the Petitioner is correct in his submissions that the enquiry officer was not correct in holding the charges as proved, based on the statements that were obtained behind the back of the Petitioner.

The judgment of the Apex Court relied on the Petitioner squarely covers this case and the following passage in paragraph No. 8 of the judgment is extracted hereunder:

The Principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.

Further more, as rightly pointed out by the learned Counsel for the Petitioner, the Selection Committee acted upon the certificate issued by the then Assistant Executive Engineer, who is none else than the first Respondent, that the Petitioner served in Tuticorin Thermal Power Station as contract labor.

Taking into account the aforesaid facts, the impugned order dated 19.04.2008 of the first Respondent and the order dated 02.04.2008 of the second Respondent are liable to be set aside. Accordingly, the writ petition is allowed and the impugned orders are set aside. Consequently, connected miscellaneous petition is also closed. No costs.