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2013 DIGILAW 1014 (MAD)

A. Baskaran v. S. Balasundari

2013-02-18

VINOD K.SHARMA

body2013
JUDGMENT 1. The petitioner has approached this Court with a prayer for issuance of a writ in the nature of certiorari, to quash the order vide No.L2/9141/99 dated 22.02.2003, passed by the Registrar, Tamil Nadu Agricultural University, imposing minor punishment of stoppage of two increments without cumulative effect. 2. The petitioner belongs to scheduled caste community, and after passing B.Sc. Horticulture in first class, obtained the Master degree also in first class. 3. The petitioner joined as Assistant Professor Horticulture at Tamil Nadu Rice Research Central, Aduthurai, in 1997. The petitioner was, thereafter, sent on deputation to TANUVAS at Kattupakkam as Assistant Professor in the training centre. 4. The petitioner, during his service, came in contact with respondent No.1, a colleague of the petitioner in different department. The petitioner treated her to be the elder sister and moved with her. The petitioner used to share his experience of his field and seek her view point whereas she used to visit the petitioner with food, which she used to bring from her house and share it with him. The petitioner also used to visit her. 5. It is submitted that the first respondent gave a frivolous complaint against the petitioner. The allegations levelled against the petitioner were not true, which, according to the petitioner, were not only childish but absurd. 6. The complaint against the petitioner was that he disturbed her during duty hours and did not allow her to attend to her work. The other allegation was that he had taken her vehicle without her knowledge/permission. 7. On notice by the employer, the petitioner submitted reply to the false allegations. 8. It is submitted that beside the complaint of the respondent No.1 to the Head of the Department, her husband and her relatives with certain rowdy elements came and attacked the petitioner on 11.08.1999. 9. The petitioner was directed by the Head of Department to lodge a complaint with the local police for this act, which was done. 10. That though the relatives of the petitioner came to enquire about the incident of beating of the petitioner, the incident was falsely reported to be assault by the relatives of the petitioner against respondent No.1 and was reported to the police by respondent No.1. 11. The petitioner was transferred to Bavanisagar, where he was not allowed to join duty for three months, and suspended from service. 12. 11. The petitioner was transferred to Bavanisagar, where he was not allowed to join duty for three months, and suspended from service. 12. It is the case of the petitioner that on passing of the order of suspension, he came to know that respondent No.1 has pressurized the superiors to proceed against the petitioner. It is further submitted that her allegations in charge memo were contrary to the written report submitted by her earlier. 13. It is the case of the petitioner that in the show cause notice, proposed punishment was not mentioned and the suspension order was passed under Para 4(1)(d)(i) of Appendix IX and in exercise of powers conferred under Item No.4 of Appendix X of the ASR & R of Tamilnadu Agricultural University. That the suspension order being illegal was untenable. 14. It is submitted that the show cause notice was issued to the petitioner by the Disciplinary Committee on 03.05.2000 whereas he was kept under suspension continuously, though it ought to have been revoked within three months. The show cause memo was not accompanied by the documents like list of witnesses and copy of the complaint, and other documents. 15. The petitioner, therefore, submitted interim explanation denying the charges. It is submitted that the respondents, without supplying the necessary documents, issued charge memo by adding new charges, one such charge being that the petitioner was not at Headquarters during his period of suspension. 16. It is submitted that the charge memo stood vitiated for want of necessary documents and denial of his request to furnish the documents. 17. The enquiry was held separately and the petitioner was not allowed to witness the enquiry, which resulted in denial of right to cross-examine the witnesses. 18. The petitioner was also kept in dark about the entire proceedings. The petitioner was asked to file a statement pleading guilty, but he refused to sign the statement, but was compelled to sign it. 19. It is submitted that the petitioner only came to know on issuance of second show cause notice that the Committee found him guilty of the charges. 20. The petitioner filed reply to the second show cause notice, wherein he objected to finding of the guilty and also raised the point that he could not be held guilty on the mere inference, in absence of proved evidence. 21. 20. The petitioner filed reply to the second show cause notice, wherein he objected to finding of the guilty and also raised the point that he could not be held guilty on the mere inference, in absence of proved evidence. 21. It is also submitted (i) That the fourth respondent accepted the report of the Inquiry Committee without applying mind and proceeded to impose punishment of stoppage of two increments with cumulative effect and ordering that the period of suspension be treated as leave of kind due. (ii) That the fourth respondent erred in upholding the findings of the enquiry, which were in violation of service rules and principles of natural justice, besides being contrary to law laid down by the Hon'ble Supreme Court. (iii) That respondents should have regularized the service of the petitioner, since the date of suspension, but the period of suspension was treated to be leave of kind due. It is the case of the petitioner that as he did not have leave to his credit, this only resulted in the denial of salary for the period. 22. The petitioner preferred an appeal against the order and in appeal, the punishment was reduced from one of stoppage of two increments with cumulative effect to the one of without cumulative effect. The appellate authority, however, failed to modify the order treating the suspension period to be the period spent on leave of the kind due. 23. The petitioner, thereafter, sent repeated appeals to different headquarters. In all such appeals, he was asked not to submit any further appeal. 24. The impugned order is challenged on the ground (i) That the order passed by the fourth respondent is contrary to the facts and probabilities of the case. (ii) That the impugned order is in violation of service law and principles of natural justice. (iii) That the respondents should not have believed the allegations in the complaint. (iv) That the third respondent had included the charge of "seeking sexual favours" when it was not part of the complaint. 25. The learned counsel for the petitioner vehemently contended, that the enquiry proceedings against the petitioner stood vitiated, as, along with the charge memo, the petitioner was not supplied the documents nor the list of witnesses was supplied to him. 26. Therefore, the enquiry report deserves to be set aside on this ground alone. 25. The learned counsel for the petitioner vehemently contended, that the enquiry proceedings against the petitioner stood vitiated, as, along with the charge memo, the petitioner was not supplied the documents nor the list of witnesses was supplied to him. 26. Therefore, the enquiry report deserves to be set aside on this ground alone. Consequently, the order of punishment also cannot be sustained in law. 27. The learned counsel for the petitioner also vehemently contended, that in this case, no enquiry was held by following rules and principles of natural justice. On the charge memo issued to the petitioner, the statement of the complainant was recorded, without letting her to step into the witness box for cross-examination. 28. The enquiry committee did not hold enquiry by first examining the witnesses and then, letting the petitioner to cross-examine the witnesses and thereafter, letting the petitioner to lead defence evidence. 29. On consideration, this Court finds that this writ deserves to be allowed. The reading of the order, on the face of it, shows that the competent authority, i.e., the Registrar, did not apply his independent mind and acted under the directions of the Vice-Chancellor, who was the appellate authority. Therefore, he could not have issued any direction to the competent authority, to act in particular manner. The Registrar was required to take independent decision in the matter, by applying his mind to the evidence of prosecution, as also the defence raised by the petitioner. 30. The impugned order also suffers from patent illegality. The order in appeal is again passed by the Registrar. He being the competent authority, could not sit in appeal over his own decision. This order is again said to be under the orders of the Vice-Chancellor. It is not understood how appellate authority could delegate its power to authority whose order was under appeal. The impugned order, therefore, on the face of it, is void. 31. The allegation of the petitioner that the documents were not supplied has also not been controverted, nor it is borne out from the proceedings placed on record. 32. The respondents also have chosen not to file any counter to the averments made in this writ petition. 33. The enquiry held against the petitioner stands vitiated, as it was incumbent upon the respondents supplying necessary documents and list of witnesses to be examined, to the petitioner, along with charge memo. 34. 32. The respondents also have chosen not to file any counter to the averments made in this writ petition. 33. The enquiry held against the petitioner stands vitiated, as it was incumbent upon the respondents supplying necessary documents and list of witnesses to be examined, to the petitioner, along with charge memo. 34. The enquiry officer was also required to hold enquiry in consonance with the service rules and by following principles of natural justice, which has not been done in this case. 35. Consequently, the writ petition is allowed. The impugned order is set aside. The case is remitted back to the respondents, for fresh decision, keeping in view the seriousness of charges. The respondents are directed to issue fresh charge memo along with list of witnesses and documents to be relied upon in the enquiry and thereafter, proceed in accordance with the service rules and by following principles of natural justice. 36. No costs. Consequently, connected M.P. is closed.