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K. Sarboji Vs. State of Tamil Nadu and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.P. No. 1131 of 1984
Judge
Reported in(1986)ILLJ395Mad
ActsConstitution of India - Article 226(3); Indian Penal Code (IPC), 1860 - Sections 34, 109 and 409
AppellantK. Sarboji
RespondentState of Tamil Nadu and anr.
Cases ReferredTara Chand Khatri v. Municipal Corporation of Delhi
Excerpt:
- - against the petitioner and one thiru jayaraj and that though the petitioner as well as thiru jayaraj were convicted under s. in doing so the learned sessions judge took the view that the non-production of the stock book would weaken the prosecution case and would render it improbable as well and it was in this context that the learned sessions judge also stated that thiru narayanaswami, examined as p. 1 had already been pronounced upon by a competent criminal court and, therefore, it was incompetent for the disciplinary authorities to proceed to enquire into the same on the basis of fresh materials and to sustain it as well. from this communication addressed by the petitioner, it is obvious that the petitioner had accepted the shortage as per the list already furnished to him,..........read with s. 34, i.p.c. and 409 i.p.c. read with s. 109 i.p.c. against the petitioner and one thiru jayaraj and that though the petitioner as well as thiru jayaraj were convicted under s. 409 i.p.c. read with s. 34 i.p.c. and s. 409 i.p.c. read with s. 109 i.p.c. respectively, yet on appeal before the sessions court in criminal appeal nos. 219 of 1980, 223 of 1980 and 230 of 1980, the petitioner and jayaraj were acquitted after finding that thiru narayanaswamy, examined as p.w. 1, appeared to have burned the stock book and that therefore, charge no. 1 cannot at all be sustained against the petitioner. on the other hand, the learned additional government pleader submitted that the criminal prosecution related to breach of trust in respect of 2364 pairs of shoes entrusted to the.....
Judgment:
ORDER

1. In this writ petition, the petitioner has prayed for the issue of a writ of certiorarified mandamus calling for the records of the second respondent relating to the proceedings in C. No. 199904/A.P. 1/82 dated 26th November, 1983 by which he dismissed the appeal of the petitioner against the order of his dismissal and quash the same. The petitioner was holding the post of a Reserve Sub Inspector attached to Home Guard Office, City Home Guards, since 1971. By a charge memo dated 14th December, 1973 issued by Thiru P. A. Narayanaswamy, the Deputy Superintendent of Police, the following two charges were framed against the petitioner.

'(i) Highly reprehensible conduct in causing the disappearance of stock books of clothing articles together with the acquittance rolls on 2nd August, 1973 and thus preventing the physical verification of stocks and

(ii) serious irregularity in the issue of clothing articles resulting in the shortage of Government properties to the tune of Rs. 604/-.'

An oral enquiry was conducted in which four persons were examined and after taking into consideration the written explanation submitted by the petitioner denying the charges, the enquiry officer found that the charges framed against the petitioner were made out and that there were no extenuating circumstances mitigating the same. Thereupon, by proceedings dated 13th May, 1974, the petitioner was called upon to show cause why he should not be dimissed from service. In response to this, the petitioner submitted an explanation dated 10th September, 1974 and after considering the same on 11th August, 1975 orders were passed by the Commissioner of Police dismissing the petitioner from service. The petitioner filed W.P. No. 6679 of 1975 praying for a writ of certiorari to quash the order of the Commissioner of Police dated 11th August, 1975. However, by an order dated 8th February, 1978, this Court held that the writ petition had abated by virtue of Art. 226(3) of the Constitution as amended by 42nd Amendment Act, but gave a Direction that the petitioner could file an appeal within a month from the date of that order and the appellate authority was also directed to entertain the appeal and dispose of the same on merits as expeditiously as possible. Pursuant to this, on 3rd March, 1978, the petitioner preferred an appeal before the second respondent herein. On a consideration of the facts and circumstances, the second respondent found that all the charges framed against the petitioner stood established and that taking into account the service rendered by the petitioner in the department for nearly 21 years, the punishment of dismissal from service was not called for, but that the punishment could be modified into one of compulsory retirement from service with effect from the date of the dismissal of the petitioner. It is the correctness of this order that is challenged in this writ petition.

2. The learned counsel for the petitioner first contended that charge No. 1 referred to earlier formed the subject-matter of a criminal prosecution for offences under S. 409. I.P.C. read with S. 34, I.P.C. and 409 I.P.C. read with S. 109 I.P.C. against the petitioner and one Thiru Jayaraj and that though the petitioner as well as Thiru Jayaraj were convicted under S. 409 I.P.C. read with S. 34 I.P.C. and S. 409 I.P.C. read with S. 109 I.P.C. respectively, yet on appeal before the Sessions Court in Criminal Appeal Nos. 219 of 1980, 223 of 1980 and 230 of 1980, the petitioner and Jayaraj were acquitted after finding that Thiru Narayanaswamy, examined as P.W. 1, appeared to have burned the stock book and that therefore, Charge No. 1 cannot at all be sustained against the petitioner. On the other hand, the learned Additional Government Pleader submitted that the criminal prosecution related to breach of trust in respect of 2364 pairs of shoes entrusted to the petitioner and Jayaraj and that had nothing whatever to do with Charge No. 1 framed against the petitioner and therefore the petitioner cannot claim that by reason of his acquittal in the appeal, Charge No. 1 cannot be sustained against him. It was also further pointed out by the learned Additional Government Pleader that before the criminal court there was no evidence to show what happened to the stock books on 2nd August, 1973, while in the course of the enquiry conducted against the petitioner, there was clear evidence to show that the stock book had been taken by the petitioner and, therefore, the petitioner cannot claim that charge No. 1 is unsustainable.

3. A perusal of the judgment dated 10th September, 1980 in C.C. No. 10063 of 1979 before the Fourth Metropolitan Magistrate, Saidapet, shows that the petitioner and Thiru K. Jayaraj were charged for offences under S. 409 I.P.C. read with S. 34 I.P.C. and S. 109 I.P.C. for committing breach of trust with reference to 2364 pairs of shoes and abetment of the same by Thiru K. Jayaraj. P.W. 1 examined on behalf of the prosecution in that case was Thiru Narayanaswami. On a consideration of the evidence, the learned 4th Metropolitan Magistrate, Saidapet found the petitioner and Jayaraj guilty under S. 409 I.P.C. read with S. 34 and 409 I.P.C. read with S. 109 I.P.C. respectively and convicted them to rigorous imprisonment for two years and 15 months respectively. Against the conviction the petitioner preferred C.A. No. 223 of 1980, while, Thiru Jayaraj likewise appealed in C.A. No. 210 of 1980. While disposing of the appeals, the learned Sessions Judge in the course of pars 7 of his judgment observed that considerable doubt was thrown on the truth of the prosecution case owing to the non-production of the stock-book and that Thiru Narayanaswami examined as P.W. 1 in the course of the prosecution appeared to have burned the stock book. This observation of the learned Sessions Judge is the basis of the first contention of the learned counsel for the petitioner. However, it is seen from the judgment of the learned Sessions Judge that he was concerned with finding out whether the prosecution had established the charge of criminal breach of trust against the petitioner. In doing so the learned Sessions Judge took the view that the non-production of the stock book would weaken the prosecution case and would render it improbable as well and it was in this context that the learned Sessions Judge also stated that Thiru Narayanaswami, examined as P.W. 1 appears to have burned the stock book. This observation made by the learned Sessions Judge was made while considering the propriety of the conviction against the petitioner and Thiru Jayaraj. Neither the trial court nor the appellate court at that stage was in any manner concerned with the question whether the petitioner had caused the disappearance of the stock book of clothing articles together with the acquittance rolls which formed the subject matter of Charge No. 1 levelled against the petitioner. The subject matter of the prosecution and the nature of the charge framed against the petitioner were not the same. In other words, there was no identity of facts of charges in the criminal prosecution taken out against the petitioner and the departmental enquiry initiated against him and therefore, the petitioner cannot, by relying upon the observations of the learned Sessions Judge, claim that Charge No. 1 framed against him is wholly unsustainable.

4. There is also the statement of Thiru K. Jayaraj, examined as P.W. 2, in the course of the disciplinary enquiry and that is to the effect that on 2nd August, 1973, the petitioner came to the stores and checked the bills with the stock book till about 1.30 p.m. and that thereafter, he (P.W. 2) had gone away for the evening parade and that when he returned next day, the Deputy Commissioner of Police questioned him about the stock book and the bills and he informed that he found only the bills, but not the stock book. In the course of the enquiry, all that was said by the petitioner against the evidence of P.W. 2 was that he (P.W. 2) could not have noticed the petitioner carrying away the records, as he had left the office at about 1.45 p.m. when the petitioner was there. This was not accepted as the evidence of D.W. 4 established that the petitioner left officer at about 2.00 p.m. subsequent to P.W. 2's departure. It is thus seen that with reference to Charge No. 1 relating to the disappearance of stock books, the evidence of P.W. 2 had been accepted by the authorities below. Therefore, it is not as if the first charge against the petitioner has not been made out by the evidence. Earlier, it had noticed how the charge of causing disappearance of stock books of clothing articles attributed to the petitioner did not form the subject matter of prosecution. It is therefore clear that the subject matter of Charge No. 1 was not already adjudicated upon either by the trial court of the appellate court, but was considered by the enquiry officer on the basis of fresh materials and evidence only in the course of the disciplinary proceedings initiated against the petitioner. It is therefore not possible to accept the contention of the learned counsel for the petitioner that Charge No. 1 had already been pronounced upon by a competent criminal court and, therefore, it was incompetent for the disciplinary authorities to proceed to enquire into the same on the basis of fresh materials and to sustain it as well.

5. The learned counsel for the petitioner next contended that in so far as the second charge framed against the petitioner is concerned, it flows from the first charge and that charge cannot be sustained on the basis of the materials made available during the enquiry. With reference to this, the learned Additional Government Pleader submitted that the petitioner had frankly admitted the shortage in his statement and cannot now be heard to contend that this charge has not been proved.

6. It is seen from the enquiry file that on 5th November, 1973, the petitioner had been furnished with a list of shortage articles and therein, the petitioner has made an endorsement to the effect that he will come to the office and speak and that there is no shortage. Thereupon on 9th November, 1973, a memo had been issued to the petitioner asking him to come to the Home Guard Office and to trace the articles short listed. It is in response to this, the petitioner had addressed a communication dated 16th November, 1973 (Ex. P. 18) to the Deputy Commissioner of Police, Head Quarters, Madras-8. Therein the petitioner has listed about 10 articles found short. After stating this, the petitioner had proceeded to give an explanation for the shortage on the ground that they were all part worn and were given away as souvenir to the Home Guards who participated in the Third All India Home Guards and Civil Defence Duty Meet at Bangalore during 1972. The petitioner wound up that communication by saying that the proportionate cost of the articles may be written off as the value of the shortage was negligible. From this communication addressed by the petitioner, it is obvious that the petitioner had accepted the shortage as per the list already furnished to him, though not to the full extent and had attempted to explain the shortage as well. There is no material placed by the petitioner to establish that the short listen articles were either given away as souvenir on the occasion mentioned by the petitioner in his communication dated 16th November, 1973. In other words, while the petitioner has accepted the shortage even as per his communication dated 16th November, 1973, he has not been in a position to offer any accepted or satisfactory explanation for the same. Under those circumstances, on the materials, the second charge framed against the petitioner was also rightly held to have been proved.

7. The learned counsel for the petitioner next contended that there has been a differential and discriminatory treatment between the petitioner and Thiru Jayaraj, who were both prosecuted on certain charges, in that after the acquittal of Thiru Jayaraj, he had been reinstated in service, while the petitioner has been subjected to disciplinary proceedings and punished as well. This contention is also without force. It is true that the petitioner along with Thiru Jayaraj was convicted by the trial court and that both of them were acquitted by the Sessions Court. In so far as Thiru Jayaraj is concerned, consequent to his conviction by the trial court, he was dismissed without reference to any disciplinary proceedings against him. On his conviction being set aside on appeal. Thiru Jayaraj was thereafter taken back. In other words apart from the conviction in the criminal prosecution there were no other proceedings against Thiru Jayaraj. On the contrary, in the case of the petitioner, the criminal conviction was not the only ground upon which action against the petitioner was taken. Despite his acquittal by the Sessions Court, the petitioner was departmentally proceeded against with reference to the charge referred to earlier, which were different and on proof of those charges; punishment had been inflicted on the petitioner without reference to the criminal proceedings. In such a situation, the petitioner cannot be heard to complan of any discriminatory or differential treatment between Thiru Jayaraj and himself. Thus, the third contention of the learned counsel for the petitioner also fails.

8. An attempt was made by the learned counsel for the petitioner to contend that the disciplinary proceedings initiated against the petitioners were motivated and the outcome of some prior misunderstandings between the petitioner and Thiru Narayanaswami. On a careful perusal of the records, it is rather difficult to accept that the departmental proceedings were motivated or otherwise initiated owing to misunderstandings between the petitioner and his erstwhile superior Thiru Narayanaswami. Even otherwise, it is not in dispute that the authorities which has initiated action against the petitioner has the power to do so and that the other requirements in connection therewith had also been complied with and under those circumstances, motive for initiating the action may not be strictly relevant at all.

9. Lastly, the learned counsel for the petitioner contended that the appeal had not been given a proper disposal by the appellate authority, for, according to him the appellate authority had not examined in extenso the evidence with reference to each one of the charges and had not rendered a clear and categorical finding in respect thereof. On the contrary, the learned Additional Government Pleader submitted, relying upon the decision of the Supreme Court in Tara Chand v. Municipal Corporation of Delhi 1977-I L.L.J. 331 that with reference to an order of concurrence, it may not be necessary to support the same by reasons and that in this case, it cannot be said that the order is a non-speaking order. A perusal of the order of the appellate authority clearly shows that it had applied its mind to the charges framed against the petitioner and to the relevant records and had only proceeded to record its conclusions on the several points raised by the petitioner in his appeal. As a matter of fact, it is seen from the impugned order that all the points raised by the petitioner in his written representation have been met seriatim. Though it may be that the order is not very elaborately written as in a judicial proceeding, yet, it is manifest that the appellate authority had adverted to the charges framed against the petitioner and had also taken into account the materials in support thereof and had only thereafter arrived at the conclusions it did. The Supreme Court in Tara Chand Khatri v. Municipal Corporation of Delhi, (supra), pointed out that while it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order, it it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment of the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons. In this case, as noticed earlier, the appellate authority had written an order which speaks on the vital aspects of the charges framed against the petitioner and the proof in support thereof as well as the conclusions arrived at on the points urged by the petitioner in the course of his appeal. That would be sufficient to indicate that the appeal had been properly considered and dealt with on merits. there is one other circumstance, which also makes it clear beyond doubt that appellate authority had applied its mind and had dealt with the matter. In the concluding portion of the impugned order, the appellate authority had taken into account the services rendered by the petitioner in the department for nearly 21 years as a circumstance which persuaded it to take a lenient view and on that basis, the appellate authority had modified the punishment into one of compulsory retirement with effect from the date of dismissal of the petitioner instead of dismissal from service. Thus, on a careful consideration of all the materials, facts and circumstances of the case, the conclusion is irresistible that the appellate authority was right in dismissing the appeal preferred by the petitioner and no exception could be taken to that order. Consequently, the rule nisi is discharged and writ petition is dismissed. There will be, however, no order as to costs.


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