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Thangaswamy (T.P.) Vs. S.i. Railway Employees' Co-operative Credit Society, Ltd. and Anr. (28.03.1961 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1961)IILLJ754Mad
AppellantThangaswamy (T.P.)
RespondentS.i. Railway Employees' Co-operative Credit Society, Ltd. and Anr.
Cases ReferredDr. K.S. Rao v. State
Excerpt:
.....loss of his service. it is well known that in criminal trials, the supply of copies of prior statements of witnesses, before the trial, gives proper opportunity to the accused person to cross-examine the witnesses more effectively. to invite a person to cross-examine a witness while keeping back from him earlier statements made by the witness would be like blindfolding a man and asking him to find his way about. here again, the service rules in the case of government servants, require that the government servant should be given a copy of the findings against him so that he could make any representation he liked, even at the stage when he had been asked to show cause against the punishment. it was pointed out that in the case of an employee like the present petitioner, there was no..........enquiries against railway non-gazetted staff, would apply to the petitioner. his request for copies of statements and so on were in accordance with those rules.11. it is clear that the specific rules for a railway non-gazetted servant do not apply to a person like the petitioner in the employment of the railway employees' co-operative credit society. we have to determine whether the brief direction in section 41(1) of the madras shops and establishments actthat the finding should be supported by satisfactory evidence recorded at the enquiry,would include the compliance with the petitioner's demand that he should be supplied with copies of statements of witnesses recorded before the enquiry, so that he could use those statements for cross-examining the witnesses at the enquiry. the.....
Judgment:
ORDER

Ramakrishnan, J.

1. T.P. Thangaswami, the petitioner, was employed as an attender under the South Indian Railway Employees Co-operative Credit Society, Ltd., Tiruchirappalli. At the relevant period he had a service of more than sixteen years. It appears that one Rajamanickam who resides in the same street as the petitioner, applied to the abovementioned society for a loan. For the purpose of the loan, apparently one P. Veeran had stood surety. On 15 June 1957, a director of the society came to know that Veeran denied that he stood as surety for Rajamanickam. Another director of the society, one Ganapathi, recorded a statement from Rajamanickam on 22 June 1957, stating that it was Thangaswami, the petitioner, who got an unknown person to stand as surety for the loan after obtaining some monetary benefit. This statement of Rajamanickam was shown to the petitioner; and a memo, was issued to him on 27 June 1957, in the following terms:

T.P. Thangaswami is chargesheeted for serious misconduct in having obtained the signature of Veeran as a surety for the loan of Rajamanickam without his knowledge and he should show cause within four clear days why he should not be dismissed from service.

The petitioner replied to this memo of 27 June 1957, stating that Rajamanickam was neither his friend nor his relative, that he had no transaction with him and that any representation made by him was false and then he added a prayer that an enquiry might be arranged so that he could submit his defence and that he should be permitted to be assisted by an assistant for the purpose of the enquiry. The petitioner followed this communication with another letter to the secretary of the society on 3 July 1957, drawing attention to the fact that Veeran had signed the loan application in the presence of witnesses; and that the witnesses had not stated that the applicant and surety did not sign in his presence. He repeated his statement made earlier about his having no interest in Rajamanickam and repeating his prayer for permission to be assisted by a railway servant at the enquiry. The enquiry was posted to 11 September 1957.

2. In the meantime some witnesses had been examined by the society. They included Veeran examined on 1 July 1957, one Srinivasaraghavan, an attesting witness examined on 5 July 1957 and one Sivaprakasam, examined on 2 August 1957. But when these statements were recorded, the petitioner was not present. The society sent a communication to the petitioner on 3 September 1957 that the enquiry would be held on 11 September 1957 and that he could have an employee of the Society to represent him. The petitioner wrote a letter on 4 September 1957 to the secretary of the society requesting that true copies of the complaint and statements of the witnesses might be furnished to him for the purpose of the enquiry to be conducted on 11 September 1957. He also requested that Rajamanickam, Veeran, Srinivasaraghavan and Sivaprakasam might be directed to be present for the enquiry. On 4 September 1957, he wrote another letter stating that no employee of the society was willing to assist him and asked for permission to be represented by a shareholder, To this communication, the society replied on 7 September 1957, that he would be permitted at the enquiry to peruse all the relevant papers, and that he would be given an opportunity to cross-examine the complainant and the witnesses. By letter, dated 11 September 1957, the petitioner expressed his inability to be present at the enquiry, because true copies of the complaint and the statements of the complainant and the witnesses had not been supplied to him.

3. Because of the above stand taken by the petitioner, the rest of the enquiry was conducted ex parte by the society, and the petitioner was served with an order dated 28 September 1957, that he bad been dismissed from service with effect from 27 September 1957.

4. Against this order of dismissal, the petitioner, filed an appeal on 10 October 1957 alleging, inter alia, that he had not been given a second opportunity to show cause against the proposed penalty of dismissal. The committee of management of the society cancelled the order of dismissal, and informed the petitioner of that fact by letter, dated 1 November 1957, and stated that he would continue to be on suspension. In this communication, dated 1 November 1957, the petitioner was not informed, as to why the order of dismissal had been cancelled.

5. On 4 November 1957, the society informed the petitioner to show cause why he should not be dismissed from service, as the charge against him was held to be proved. But in this communication, the charge already framed against the petitioner originally on 27 June 1957, was recast as follows:

You got yourself involved in obtaining a bogus signature purporting to be that of Veeran as surety for the loan of Rajamanickam.

The petitioner sent an elaborate explanation on 9 November 1957, in answer to the above communication. He drew attention to the contradiction in the two charges? He again complained that he had not been supplied with copies of the complaint and the statements of the witnesses. He made a request that copies of the findings of the sub-committee who held the enquiry against him in his absence, should be supplied to him so that he could make his representations against the proposed order of dismissal. No reply was sent to this requet and he was dismissed from service by order, dated 23 November 1957, stating that he was dismissed with effect from 25 November 1957.

6. The petitioner filed an appeal under Section 41(2) of the Madras Shops and Establishments Act, 1947, to the Additional Commissioner for Workmen's Compensation, respondent 2 in the petition. The appeal was filed against the original order of dismissal, dated 28 September 1957, and his appeal was filed on 8 October 1957. When the opposite party, that is, the society, was called upon to file an answer statement, it represented to the appellate authority, that the order of dismissal on 27 September 1957, had already been cancelled, and that the society was exempt from the provisions of the Madras Shops and Establishments Act. When the appellate authority asked the petitioner whether he would withdraw his appeal, he replied that he had been again dismissed from service on 30 November 1957. This representation was received on 2 December 1957. The Additional Commissioner for Workmen's Compensation treated the second order of dismissal as the one against which the petitioner had appealed and heard the parties. Apparently one of the grounds urged by the petitioner before the Additional Commissioner for Workmen's Compensation, was that there was no proof that the signature in the loan application was not that of Veeran. The Additional Commissioner sent the signature to the Examiner of Questioned Documents for his opinion. The order of the Additional Commissioner shows that the opinion of the Examiner of Questioned Documents was not conclusive. Before the Additional Commissioner for Workmen's Compensation, the petitioner had alleged as one of the grounds that he had not been supplied with copies of the records. The Additional Commissioner, however held, after referring to the ex parte evidence of Veeran and Srinivasaraghavan found in the record, that the subcommittee had given convincing reasons for its conclusion, and the Additional Commissioner for Workmen's Compensation saw no reason why the finding should not be accepted. The appeal was dismissed.

7. The petitioner has filed this writ petition under Article 226 of the Constitution, praying for the issue of a writ of certiorari directed against the above appellate order of the Additional Commissioner for Workmen's Compensation. His main grounds are:

(1) In order to comply with the canons of natural justice, the petitioner should have been supplied with copies of the 'complaint and the statements of Rajamanickam, Veeran, Srinivasaraghavan and Sivaprakasam as requested by him. But this was not done;

(2) when he represented to the secretary of the society that no employee of the society was willing to come forward to assist him and that he would have, instead, the assistance of a shareholder, the society did not permit him to do so;

(3) Rajamanickam, the complainant had subsequently withdrawn his original complaint and wrote a letter on 14 September 1957 to the society informing them that the complaint given by him on 27 June 1957 was obtained by compulsion and threat and that the facts recorded therein were incorrect. The petitioner wanted a copy of this letter of Rajamanickam, to assist him in the enquiry and it was not supplied to him;

(4) there were fundamental differences between the two charges framed against the petitioner and these differences were not taken into account;

(5) the procedure for holding the enquiry is indicated in Section 41(1) of the Madras Shops and Establishments Act, 1947.

It is not now in dispute that the Act is applicable to this case. That section states that

no employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for a reasonable cause and without giving such person at least one month's notice or wages in lieu of such notice, provided, however, that such notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose.

It was urged that the direction about obtaining satisfactory evidence to support the charge recorded at the enquiry held for the purpose, had not been complied with in this case as the evidence was obtained behind the back of the petitioner.

8. In the counter-affidavit filed by the society, it was urged after mentioning the details of the procedure followed, and which has been cut down at the beginning of this order, that the petitioner had been given a reasonable opportunity to defend himself; there was nothing in the rules which required that the statements recorded before the enquiry should be furnished to the petitioner; that the petitioner was given an opportunity to peruse the statements and the complaint at the time of the enquiry; he had seen the statement of Rajamanickam, dated 27 June 1957; he was informed that he could cross-examine the witnesses at the enquiry held on 11 September 1957; in view of the above the procedure was in consonance with Section 41 of the Act. As regards the allegation that the petitioner was not allowed to be represented by a shareholder, it was urged that the shareholders stand in the position of employers and it would not, therefore, be proper to permit the petitioner to be assisted by a shareholder. This did not prejudice the enquiry, as the petitioner did not participate at all in the enquiry. As regards the conflict in the charges, it was urged that the two charges were substantially the same. The original charge had to be revised because Rajamanickam had resiled from his previous statement, and the society was forced to modify the charge, in order to bring the charge to conform to the materials established at the e nquiry. It was urged therefore that the statutory requirements were followed.

9. The Additional Commissioner for Workmen's Compensation, respondent 2, did not file any counter-affidavit.

10. The provision for the conduct of an enquiry of this kind to show cause against termination of service, is contained in Section 41(1) of the Madras Shops and Establishments Act extracted above. These directions are not so elaborate as the directions found, for example, in the service rules affecting Government servants. In a further affidavit, called reply affidavit, the petitioner alleged that in the case of another employee Syed Ibrahim, the society had given him copies of all the statements. It was also urged in the additional affidavit of the petitioner that the procedure adopted in this case giving a second opportunity to the petitioner to show cause against the punishment proposed against him, was a procedure indicated in the rules for railway servants. It was urged that this would show by implication, that the procedure for holding disciplinary enquiries against railway non-gazetted staff, would apply to the petitioner. His request for copies of statements and so on were in accordance with those rules.

11. It is clear that the specific rules for a railway non-gazetted servant do not apply to a person like the petitioner in the employment of the railway employees' co-operative credit society. We have to determine whether the brief direction in Section 41(1) of the Madras Shops and Establishments Act

that the finding should be supported by satisfactory evidence recorded at the enquiry,

would include the compliance with the petitioner's demand that he should be supplied with copies of statements of witnesses recorded before the enquiry, so that he could use those statements for cross-examining the witnesses at the enquiry. The procedure adopted in this case indicates that the society was aware that for the purpose of a proper enquiry, the witnesses should be examined in the petitioner's presence, and that he should be given an opportunity to cross-examine them. This is particularly important, bearing in mind the circumstances that the entire evidence against the petitioner, comprises of oral statements of three persons, one of whom, Rajamanickam, the complainant, has given contradictory statements, the earlier one implicating the petitioner and the second one exonerating him. The stand taken by respondent 1, is that it would suffice for the purpose of complying with the principles of natural justice, if the petitioner was shown copies of the statements at the time of the enquiry itself, and that it was not necessary to give him such copies in advance. The petitioner took a serious view of the allegations against him, knowing full well that if proved, they would entail loss of his service. That was why he was particular in demanding from the very beginning, that he should be permitted to be represented by a suitable person. The supply of copies of statements in advance, is an essential part of a formal enquiry into serious charges, especially where they are founded exclusively on oral evidence. It is well known that in criminal trials, the supply of copies of prior statements of witnesses, before the trial, gives proper opportunity to the accused person to cross-examine the witnesses more effectively. But a cursory perusal afforded just at the time of the enquiry, will seriously handicap the accused person in the matter of making an effective cross-examination. There appears to be no reason why a different canon should be set down for an enquiry contemplated under Section 41(1) of the Act. No doubt for a criminal trial or even for an enquiry conducted under the service rules against Government servants, the rules themselves provide for supply of copies in advance. But no such provision is found in the Madras Shops and Establishments Act. On the question whether the omission to supply copies in advance in a particular case of enquiry under the Madras Shops and Establishments Act, did or did not prejudice the accused person, will depend upon the facts of the particular case. In the absence of rules, the question whether the enquiry is vitiated or not, should be approached not from the point of view of a specific contravention of a particular rule,' but from the point of view whether the result of the enquiry had been vitiated on the ground that the principles of natural justice had not been respected. In the circumstances of the present case, bearing in mind first of all, the seriousness of the charge, secondly that the entire evidence comprises only of oral statements of witnesses, and thirdly that the principal witness had given conflicting statements, it appears to me that the omission to supply copies of statements of witnesses to the petitioner in advance of the enquiry, involved a violation of the principles of natural justice and so prejudiced the finding against him.

12. In this connexion, the observations of Balakrishna Ayyar, J., in Writ Petition No. 1515 of 1956. in Kumari C. Gabriel v. State of Madras : (1959)2MLJ15 have been quoted before me. It is observed therein:

To cross-examine properly he would have to study the earlier statements of the witnesses at leisure and note down the points on which he wants to question him, sometimes even to write out the entire questions be wants to put. To invite a person to cross-examine a witness while keeping back from him earlier statements made by the witness would be like blindfolding a man and asking him to find his way about. That is plainly and manifestly not just.

As pointed out earlier, the statements of important witnesses were already recorded before the enquiry on 11 September 1957, and It was the plain duty of the enquiring body to supply the petitioner with those statements, as requested by him or to give an opportunity to peruse the statements and take extracts on a date earlier than the date of enquiry. In my opinion, the noncompliance with this request of the petitioner, vitiated the enquiry on the ground that the principles of natural justice were not complied with.

13. The second important defect in the procedure appears to be this: After setting aside the first dismissal order, the society sent a communication to the petitioner stating

accepting the findings against him that he was guilty of the charge, they proposed to dismiss him from service and asked him to show cause against the dismissal.

Here again, the service rules in the case of Government servants, require that the Government servant should be given a copy of the findings against him so that he could make any representation he liked, even at the stage when he had been asked to show cause against the punishment. It was pointed out that in the case of an employee like the present petitioner, there was no obligation on the society to supply him with copies of those findings. It was urged that that was the reason why he was not supplied with such copies. It was pointed out by the petitioner, that though there are no rules to that effect, still the principles of natural justice required that he should be given a copy of the findings, in order to be able effectively to make his representations at the second opportunity, given to him to show cause against the punishment. It was pointed out in particular, that when, in fact, a second opportunity to show cause against the proposed punishment had been given, the aggrieved individual should be given an opportunity to show cause against the findings themselves. Reliance for this view was derived from certain observations of the Andhra High Court in Dr. K.S. Rao v. State 1958 I L.L.J. 206 where the following observations occur:

It is true that reasonable opportunity to show cause against the action proposed to be taken includes an opportunity to canvass the correctness of the reasons for taking the proposed action. The authority should necessarily in its order requiring the civil servant to show cause, give not only the punishment proposed to be inflicted on him but also the reasons for coming to that conclusion.

In my opinion, in the present case, the punishing authority having decided to mention in the show-cause notice the findings against the petitioner by the enquiry subcommittee, and having decided to give him an opportunity to show cause against the punishment proposed, the punishing authority should, In order to comply with the principles of natural justice, having given to the petitioner a copy of the findings against him so that he could make his representations in that regard.

14. The petitioner's contention that the conflict in the charges has vitiated the trial appears also to have substance. The earlier charge framed against the petitioner was that he obtained the signature of Veeran without his knowledge. In other words, be abetted an offence of forgery, or committed an offence of forgery. But the petitioner has been found guilty not upon this charge but upon a charge recast:

You got yourself involved in obtaining a bogus signature.

No doubt we are dealing with people whose knowledge of English might not be very exact, but even to the ordinary person it will appear that the word 'involved' is a very vague term. The petitioner after having been first told that he committed forgery or abetted forgery, to be told subsequently that he got himself 'involved' in an offence of forgery, only created a confusion in his mind. For altering the charge in this manner, the first respondent explained that it was based on the contradictory stand taken by Rajamanickam at the enquiry, and on the evidence of witnesses taken subsequently, hence they had to alter the charge. The rules of natural justice require that the petitioner should be told exactly for what offence he was being punished and therefore what exactly the word 'involved' meant in this case. In my opinion, the alteration of the charge in the above fashion, without informing the petitioner of the reasons therefor, also gravely prejudiced the result of the enquiry against him.

15. Finally, as regards the order of the appellate authority, namely, the Additional Commissioner for Workmen's Compensation, it was pointed out that as the appellate authority, he should have given his reasons for coming to the conclusion about the petitioner's guilt on the charges. He has merely said that he agreed with the findings of the enquiring authority. But in view of my finding above that the enquiry itself was vitiated in more than one respect, it is unnecessary to canvass the position, whether the appellate authority should have gone further than he did by canvassing the evidence and by giving independent reasons himself.

16. I am of opinion that the enquiry in this case has been vitiated because it has violated the principles of natural justice.

17. The petition is allowed and the order of dismissal of the petitioner is set aside. The rule nisi is made absolute. The petitioner will get his costs of the petition from respondent 1. Counsel's fee Rs. 100.


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