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Judgment
N. Kirubakaran, J.—Challenging the Industrial Award, passed in I.D. No. 587-A/2001 dated September 13, 2002, by which the order of
dismissal of the petitioner was confirmed, petitioner is before this Court. Petitioner was appointed as Extra Departmental Branch Post Master
during July, 1982 by the second respondent. Subsequently a charge memo dated December 2, 1991 was issued regarding non bringing of deposit
in the account of post office during the period from January 1, 1984 to January 26, 1986. The amount involved are Rs. 20, 40, 20, 10, 40, 10, 10,
40, 10, 40 and in all amounting to Rs. 240/-. The petitioner was put off duty on January 27, 1986 immediately after detection of the alleged
valuation by the petitioner. The charge memo was suitably replied by the petitioner. Not satisfied with the explanation offered by the petitioner, the
Departmental enquiry was conducted wherein it was held that the four charges leveled against the petitioner was proved. The second show cause
notice was issued on October 27, 1992 for which the petitioner gave a reply on December 26, 1992. Consequently based on the enquiry report,
on December 30, 1992 the petitioner was dismissed from service. An appeal dated March 22, 1993 was preferred by the petitioner and the same
was dismissed by the appellate authority on January 17, 1994.
Meanwhile, criminal proceedings were initiated against the petitioner in CC. No. 38/1995, before Judicial Magistrate, No. 1, Ramanathapuram
who acquitted the petitioner by the judgment dated September 11, 1995. Against the order of dismissal, the petitioner raised an industrial dispute
before the first respondent in I.D. No. 587-A/2001. After contest the Industrial Tribunal confirmed the order of dismissal by the award dated
September 11, 2002 which is challenged by the petitioner-in this writ petition.
S. Jothivani learned Counsel for the petitioner submitted the charge memo was issued belatedly after five years and on the ground of laches, the
proceedings are liable to be quashed. Secondly, she submitted that the petitioner was prejudiced because of the long delay in issuing charge memo
as the petitioner was put off duty on January 27, 1986 during which period the petitioner was not given salary or allowance. Hence, counsel
submitted because of the long delay the petitioner is prejudiced. Apart from that, she found fault with the enquiry conducted by the second
respondent.
The learned Counsel, submitted that along with the charge memo certain documents were annexed. However, seven additional documents were
relied upon by the enquiry officer and those seven additional documents were not supplied to the petitioner in spite of notice from - him on May 1,
1992. The counsel submitted that non supply of documents which were relied upon by the respondent would vitiate the enquiry. More over, no
original documents which were shown in the charge memo were marked during the enquiry and only Xerox copy of the documents alone were
marked. In the absence of original document, the learned Counsel submitted that Xerox copies of the document cannot be marked and same could
not be relied upon by the parties and even if they are marked, there cannot form the basis for arriving at a conclusion.
The main charge against the petitioner is that he fabricated pass books. When such is the position the original documents are necessary, the
counsel contended. The learned Counsel further submitted that the criminal proceedings launched against the petitioner ended in acquittal. When
identical charges were made in departmental enquiry as well as criminal proceedings, the departmental proceedings are liable to be set aside as the
criminal Court acquitted the petitioner.
Mr. Udayakumar, learned Counsel for the second respondent submitted that even though there was a delay in issuing charge memo the
petitioner is not prejudiced because of the delay. Secondly the petitioner indulged in serious offences especially when he was incharge of the
parties money, the petitioner was supposed to have integrity and should have handled the money in a proper manner by properly maintaining the
pass books. Whereas the petitioner did not do it and the lack of trust has lead to dismissal from the office. As far as, supply of documents are
concerned, the learned Counsel submitted that along with the memo of charges, documents were annexed and no prejudice was caused to the
petitioner because of non supply of documents. Moreover the original documents were before the criminal Court and that was the reason why the
second respondent was not able to produce the original documents during the enquiry. Finally, the learned Counsel submitted that mainly because
the criminal Court acquitted the petitioner, that would not automatically lead to vitiation of departmental proceedings. The standard of proof before
the criminal Court and the departmental proceedings are different and distinct. Before the criminal Court the standard of proof is beyond
reasonable doubt, Whereas in the departmental proceedings, compliance of natural justice and preponderance of probabilities is required to be
followed. Hence, he submitted that the person who was entrusted with money should have honesty and integrity and as it was found to be lacking
with the petitioner, he was dismissed.
As far as delay in concluding the enquiry is concerned, Mr. Udayakumar relied upon the judgment of Hon''ble Supreme Court in the
Government of Andhra Pradesh v. Appala Swamy wherein it was held that only under two circumstances the proceedings could be quashed
namely:
(1) Where by reason of the delay the employer condoned the lapses on the part of the employee;
(2) Where the delay caused is prejudice to the employee.
Mr. Udayakumar learned Counsel also relied upon the decision of the Hon''ble Supreme Court in Deputy Registrar, Cooperative Societies,
Faizabad Vs. Sachindra Nath Pandey and Others, , Wherein the High Court set aside the charge memo and on appeal, the Hon''ble Supreme
Court held that the charges were very serious and therefore, it was not inclined to close the matter. In the said judgment, the case of the appellant
was that notice could not be served upon the first respondent because he avoided the service and did not also co-operate in the conduct of the
enquiry. In paragraph (7), the Hon''ble Supreme Court stated that about sixteen years elapsed since, the date of commencement of the disciplinary
proceedings more particularly when the appellant cannot be held responsible for the delay. In that case, appellant was the disciplinary authority. On
facts the appellant was not held to be responsible for the delay whereas in this case the respondent was responsible for the delay. Judgment of the
Division Bench of this Court in Vengatasalam v. Union Bank of India and Ors. passed in W.P. No. 11032/2004 was relied on wherein the
Division Bench relying upon Deputy Registrar, Co-op Societies v. Sachindra Nath Pandey (supra) and other judgments, dismissed the writ petition
filed by the delinquent officer against the award of the tribunal.
A perusal of the records would show that the alleged offences was detected in 1986 and the petitioner was put off duty on January 27, 1986.
The matter related to the year 1984-1986. After a lapse of five years, the charge memo was issued on December 2, 1991. From the records there
is no evident explanation as to why there was a long delay in issuance the charge memo. Apart from that the petitioner is necessarily prejudiced
because of the delay on the part of the second respondent in issuing the charge memo as the petitioner was put off duty on January 27, 1986 and
there was no amount paid to the petitioner for almost five years and eleven months. The allowance like subsistence allowance was not paid, during
the period as there was no provision at that point of time. In any event, the said period definitely would prejudice when the petitioner was not paid
any amount.
As far as, the proceedings before the enquiry officer is concerned the charges are with regard to fabrication of entries. When such serious
charges were made against the petitioner, the second respondent should have been diligent enough to produce the original documents whereas in
this case only Xerox copies of the documents were produced. Secondly, nine documents and seven additional documents, which were relied upon
by the department were not given to the petitioner. The enquiry Officer relied upon documents five and six. The disciplinary authority on being
addressed for their production, intimated that these documents namely diaries of the SD1 (P) Ramnad and Mall Oversear, were not available for
production as the period of preservation was over. It was mentioned that the diary dated January 27, 1986 of Kavanoor Branch Office was called
for from the disciplinary authorities and had been intimated by the SPOs Ramanathapuram that the above said documents were not available and
hence it was not produced. The aforesaid, findings were given by the enquiry officer pursuant to the notice dated May 1, 1992 issued by the
delinquent officer to produce the documents. When the enquiry was launched against the delinquent officer, it was bounden duty of the disciplinary
authority to preserve the documents and produce the same during enquiry. It cannot wash of its hand that the documents were not available or by
saying it was not preserved. If that was the case, the disciplinary proceedings against the petitioner would get vitiated. If no documents were
produced, no reliance could be made on them and no findings could be made against the delinquent officer. The disciplinary authority very much
knew the period in which the alleged offence took place and what were the documents required to be produced and in that event it was the
paramount duty of the authority to preserve the documents. It would give room for this Court to presume that no such document was in existence
or the petitioner was falsely implicated. Such perception, though unwarranted, it cannot be ruled out. Hence non production of relied documents
during the enquiry proceedings would vitiate the enquiry. Moreover, this Court, is bound to draw adverse inference against the department namely
if the documents were produced, it would go against the department and that was the reason why the department did not produce the documents
in spite of notice to produce the documents.
The Hon''ble Supreme Court in M.V. Bijlani Vs. Union of India (UOI) and Others, , quashed the proceedings for initiating proceedings after
lapse of six years and the material documents based on which the departmental proceedings were initiated were not produced. The said case is
squarely applicable to the facts of the present case. In this case also, after a lapse of five years and ten months, charge memo was issued. The
original and the material documents which were relied upon were not produced during the enquiry. The lapse of non production of original
document would vitiate the entire proceedings.
A perusal of the judgment dated September 11, 1995 passed in the criminal proceedings in C.C. No. 38/1990 and the charge memo dated
December 2, 1991 would reveal that on the same and identical set of facts both department proceedings as well as criminal proceedings were
launched. When the criminal proceedings ended in acquittal, when the same set of facts form basis for the departmental proceedings, necessarily
department proceedings also had to be set aside. It was held so by the Hon''ble Supreme Court in Bank of India and Anr. v. Bhinson Gochhayat
(2009) 13 SCC 74 : 2009 IV LLJ 663, viz, that acquittal by criminal Court on the same set of charges, the departmental enquiry is liable to be
quashed.
The judgment produced by the learned Counsel for the respondent Deputy Registrar Co-operative societies v. Sachindranath Pandey (supra),
wherein the Hon''ble Supreme Court, considering the very serious nature of charges involved in that case, set aside the judgment of this High
Court, quashed the charge memo and remanded the matter. In that case in paragraph (3) of the judgment the Supreme Court Cases held as
follows:
Memo charges was issued to the first respondent but the case of the appellant is that it could not be served upon the first respondent because he
was avoiding service and did not also co-operate in the conduct of the Inquiry.
In paragraph (7) it has been observed as follows:
On a perusal of charges, we find that the charges are very serious. We are therefore, not inclined to close the matter only on the ground that about
16 years for elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held
responsible for this delay. So far as the merits are concerned, we regret to say that the High Court has not dealt with the submissions and facts in
support of the submission of the appellant - that in spite of being given a number of opportunities the first respondent has failed to avail of them.
The aforesaid facts easily distinguishes the case on hand. In that case, the delinquent officer, indulged in delaying tactics and was avoiding services
of charge memo and failed to co-operate in the enquiry. Apart from that, the Hon''ble Supreme Court held that the delay was not on the part of
disciplinary authority. In this case the delay was due to the second respondent and the same could be easily confirmed by the following facts
namely the petitioner was put off duty on January 27, 1986 and charge memo was issued only December 2, 1991 and therefore, the delay cannot
be justified by any proper reason. Hence the said judgment would not apply to the facts of the present case. The other judgment viz. Appalla Samy
relied upon by the respondent would infact support the case of the petitioner as two explanation were given for quashing of proceedings. This case
squarely comes under the said explanations namely delay and causing prejudice to employee. The aforesaid two points were already explained and
hence this judgment on the contrary should be held against the respondent only. The Division Bench judgment relied upon by the respondent was
rendered in relying upon Government of Andhra Pradesh v. Appala Swamy (supra). As this Court had distinguished the point, the judgment of the
Division Bench is also distinguishable.
In paragraph (6), of the award, the Tribunal observed that the delinquent officer was given fair and sufficient opportunity to defend himself. The
said finding is perverse for the simple reason that documents which were relied upon by the disciplinary authority were not at all supplied. When
that is the position, it is not fair on the part of the Tribunal to come to the conclusion that the petitioner was given fair and sufficient opportunity. It is
curious that the Tribunal observed that it was not the case of no evidence and enquiry officer have given a perverse finding. In fact the Tribunal
gave a perverse finding about the enquiry report which was given based on no evidence. Regarding non production of original documents, the
Tribunal observed that the delinquent officer did not i produce them. The said findings are based on conjunctures and surmises. When the charge
depended on the original documents, definitely the non-production of the same would vitiate the proceedings.
The charge memo which was issued after lapse of five years and ten months is liable to be quashed, as there was no explanation from the
respondent, for the lapse of 5 years.
The departmental enquiry is vitiated for non production of original documents inspite of notice from the petitioner on May 1, 1992 and that
would amount to denial of fair chance to defend the petitioner''s case and would definitely amount to violation of Principles of natural justice.
The Tribunal had passed the award without considering the vital facts namely non production of documents, which would cause prejudice to
the petitioner, and confirmed the dismissal order which was passed on no evidence.
Though the Tribunal is the last forum to give finding of fact, this Court is not without jurisdiction, especially when the order was passed on no
evidence. As stated above, the delay in initiating the departmental proceedings would cause prejudice to the petitioner as he is left with no money.
Apart from that, on same set of facts the criminal Court has already acquitted the petitioner in which case, the departmental proceedings which
were initiated on its same set of facts are liable to be quashed. Accordingly it is quashed. The order of dismissal is set aside.
Considering the facts and circumstances, this Court suggests that 50% back wages to be paid to the petitioner. The learned Counsel Mr.
Udayakumar relied on a judgment rendered in Union of India (UOI) and Others Vs. P.K. Kuttappan, , wherein the order of the Tribunal granting
50% of the backwages, was confirmed by the High Court. On appeal the Hon''ble Supreme Court modified the order only by reinstating the
delinquent officer by deleting the payment of 50% backwages considering very serious charges made against the delinquent officer. In this case
also though the charges were not proved, the delinquent officer who was entrusted with the public money was supposed to have responsibility by
making entries in the pass book and absolute integrity is required of him. In view of the judgment produced by the learned Counsel for the
respondent, this Court orders reinstatement of the petitioner with 30% backwages. Accordingly, the writ petition is allowed. No cost.