D SELVARAJ Vs. MADRAS METROPOLITAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THE petitioner herein was working as a Driver with the first respondent herein. On May 25, 1987, report appeared in the newspaper that the petitioner herein had stabbed his wife on a quarrel with her and she had been admitted in the general Hospital, Madras, and the petitioner himself has absconded. Based on this report, the petitioner herein was placed under suspension from May 25, 1987 by the first respondent herein pending enquiry into a criminal offence against him. subsequently, a criminal case has been filed against the petitioner under S. 228, ipc, before the X Metropolitan Magistrate, Egnore, and before that, he was arrested and released on bail. The criminal court acquitted the petitioner on June 20, 1987, when the only witness, the wife of the petitioner herein, turned hostile. In the absence of any witness, the criminal court acquitted the accused the petitioner herein, as the offence on him could not be proved beyond doubt and giving benefit of doubt to the accused/ the petitioner herein. After the criminal case ended in acquittal, the first respondent Department initiated departmental proceedings against the petitioner and a charge memo was issued to the petitioner under Section v of M. M. D. A. Service Regulations and the said charge memo runs as follows:-

(2.) MR. Fenn Walter, the learned counsel for the petitioner, placed before me the following contentions: (1) the act of the petitioner herein cannot be called as misconduct as it has not been enumerated under any of the Regulations of the m. M. D. A. (2) The procedure adopted in the said enquiry is highly irregular in the sense the petitioner herein was examined first before the witnesses on the side of the Department were examined to prove the charge against the petitioner. (3) Assuming that the act of the petitioner herein is a misconduct, the findings given by the Enquiry Officer are perverse, as there is no evidence on record to prove the guilt of petitioner (4) The punishment imposed on the petitioner is wholly illegal as the petitioner cannot be reverted to a post lower than to which he was initially recruited.

(3.) MR. Fenn Walter, the learned counsel for the petitioner, contends that what has been stated in the charge memo against the petitioner is one which occurred in his private life, that a charge has been framed against the petitioner stating that he has committed a misconduct in private life which is likely to bring discredit to the organisation and that the said charge-memo cannot be legally sustained. The learned counsel further argues that it is not a misconduct which has been enumerated any where in the Rules or regulations governing the service conditions of the petitioner herein. The learned counsel further argues that assuming that the petitioner's act is a misconduct, since it occurred in his private life the said misconduct is purely a private one and it cannot be countenanced by the first respondent Department and more so a charge-memo cannot be issued based on this alleged misconduct. The learned counsel refers to a decision of the Supreme Court in Glaxo lab. (I) Ltd. v. Labour Court, Meerut (1984-I-LLJ-16) and a decision in A. L. Kalra v. The project and Equipment Corpn. of India Ltd. , (1984-II-LLJ-186), for this proposition. The learned counsel further argues that the procedure adopted by the Department is highly irregular in the sense that the petitioner was cross-examined even before the witnesses were examined on the side of the respondent Department. The learned counsel argued that the above said procedure is highly irregular and violates the principles of natural justice, especially in a disciplinary proceeding. The learned counsel relies upon a decision which reported in Associated Cement Companies Ltd. v. Their Workmen (1963-II-LLJ-396) for that proposition. Mr. Fenn Walter, the learned counsel for the petitioner, refers me to the evidence of the witnesses on the side of the respondent Department and strenuously contends that no reasonable person can arrive at such a finding on the basis of this evidence that the petitioner herein is guilty of the charges. The learned counsel vehemently argues that the findings of the Enquiry officer are perverse and the petitioner's punishment is on 'no evidence'. The learned counsel refers to the decision in Nyadar Singh v. Union of India 1988 (II) CLR 448, for the proposition that the punishment imposed on the petitioner cannot be sustained on the ground that the petitioner cannot be reduced to a post lower than the rank to which he was directly recruited.