B NAVANEETHA KANNAN Vs. ADMINISTRATOR/MANAGING DIRECTOR THE PONDICHERRY CO OPERATIVE MILK PRODUCERS UNION LTD PONDICHERRY

JUDGEMENT

(1.) THE petitioner B.Navaneetha Kannan has filed the present writ petition initially against the dismissal order passed by the first respondent in Ref.Ponlait/Estt/P.A.No.4/2004 dated 25.8.2004 and quash the same and for a consequential direction to the respondents to reinstate the petitioner in service with all attendant benefits. At the very outset, it is relevant to mention that during the pendency of the Writ Petition, the petitioner has amended the prayer to quash the order dated 25.08.2004 and the subsequent Appeal Rejection Order passed by the first respondent in Ref.Ponlait/Estt/P.A.No.4/2004 dated 30th June 2010 and quash the same, consequently directing the respondents to pay all the cumulative monetary benefits arising therefrom.

(2.) (i) The petitioner joined the services of the Pondicherry Co-operative Milk Producers Union Ltd., as Dairy Assistant in the year 1971 and he was promoted to the post of Assistant General Manager in the said Union Ltd. While he was serving, he was also holding the additional charge of the post of Managing Director, Pondicherry Co-operative Milk Producers' Union during the period from May 1995 to January 2001. For about 5 1/2 years, the petitioner was functioning as Managing Director. While so, he was placed under suspension by proceedings dated 30.6.2002. Aggrieved by the suspension order, the petitioner filed W.P.No.25595/2002 on the file of this Court under Article 226 of the Constitution of India. At the time of admission of W.P.No.25595/2002 itself, the writ petition was withdrawn and the petitioner was reinstated into service on 15.02.2003. (ii) In the meanwhile, the second respondent has issued a direction to the first respondent to constitute an Expert Panel as per the bye-laws to select the Managing Director and accordingly, when an advertisement was given in a daily newspaper for the post of Managing Director on 29.10.1999, four applications were received. Out of the same, three were found ineligible as per the terms mentioned in the advertisement and bye-laws and the petitioner was the only eligible candidate. At that point of time, the second respondent issued a direction to the first respondent not to consider the petitioner's application for the post. On that basis, the Expert Panel adjourned the proceedings sine die without appointing the petitioner. Therefore, the petitioner preferred W.P.No.18210/1999 against the direction issued by the second respondent not to consider the petitioner's application. Subsequently, the first respondent also filed another Writ Petition-W.P.No.4785/1999 against the direction. Both Writ Petitions were taken up together and, by a common order, dated 5.5.2000, in W.P.No.18210/1999, the impugned direction challenged by the petitioner dated 9.11.1999 was quashed as prayed by the petitioner and finally, a direction was issued to the Expert Panel to consider the petitioner and the other Writ Petition-W.P.No.4785/1999 was dismissed. (iii) Thereafter, when the order of the Court was not properly implemented, the petitioner preferred Contempt Petition Nos.497 and 631 of 2000 and WMP Nos.23143, 23144, 23318 and 18717 of 2000. This Court, by taking up both the Contempt Petitions together passed an order on 22.1.2001, appointing one Mr.Uddipt Ray, I.A.S., Joint Secretary, Government of Pondicherry, as the Special Officer to exercise all powers of the Chairman, Board of Directors and Managing Director of the Union and also to take all necessary steps to select and appoint the Managing Director within four months. As a result, the Chairman and the Board of Directors were restrained from acting in their capacity until further orders. In the meanwhile, the petitioner was directed to go on Special Leave with payment of full salary until further orders. Subsequently, the appointment of the Special Officer was stayed and the Board was permitted to proceed with the selection of Managing Director. Again, interview for the post of Managing Director was conducted on 11.6.2001 and one Rajeswaran was selected to the post of Managing Director. But the petitioner's name was at the second place in the selection list, thereby, the position was, in case Rajeswaran did not report, the petitioner would be appointed. However, Rajeswaran was appointed as Managing Director on 11.7.2001. Subsequently, the respondent Management filed W.A.No.315/2001. By order dated 8.2.2002 the first Bench of this Court passed an order to take back the petitioner's services. Accordingly, the petitioner joined services on 1.3.2002 as Assistant General Manager. In view of the aforementioned circumstances by which the petitioner was placed for appointment to the post of Managing Director, Mr.Rajeswaran started giving trouble from the date of appointment and finally the said Rajeswaran as Managing Director placed the petitioner under suspension without giving any specific reason on 1.7.2002 which continued till 14.2.2003. Subsequently, the said Rajeswaran who had grudge against the petitioner has given a newspaper publication in three Tamil dailies asking the public not to have touch with him. In these circumstances the petitioner was issued with a charge memo containing 9 charges on 12.8.2002 for allegations that he along with the Chairman took a circuitous route for the Agri.Tech.99 Exhibition at Isreal from 2.9.2000 to 10.9.2000 instead of resorting to the direct route. (iv) In the meanwhile, the said Rajeswaran, Managing Director was also placed under suspension by the Deputy Registrar of Co-operative Societies. Subsequently, the said Deputy Registrar was appointed as Special Officer. Immediately, on receipt of the abovesaid charges, the petitioner submitted his explanations. The disciplinary authority not being satisfied with the said explanations dated 3.2.2003 ordered for appointment of the Enquiry Officer to go into the charges framed against the petitioner. The Enquiry Officer also commenced the enquiry on 27.9.2003. On completion of the enquiry, the Enquiry Officer submitted his report on 28.11.2003. (v) After the Enquiry Officer accepting the explanation offered by the petitioner, the Chairman, by proceedings dated 19.11.2002, had dropped charges 7 and 8 relating to the price of ghee per kilo gram. Further, the Enquiry Officer not only held that the management has not proved charge Nos.1 and 2 but also, by accepting the evidence of Mr.Gunasekaran, exonerated the petitioner from charge No.5. In respect of charge No.6, the Enquiry Officer, acting upon the evidence of Sakthivel, Deputy Manager, came to the conclusion that the loss was not due to the charged officer. Accordingly, charge No.6 was also not proved. In respect of charge No.5 that he acted against the interest of the Union by placing orders for the purchase of disposable cups without calling for quotations, the Enquiry Officer exonerated the petitioner. Regarding charges 3 and 4 alleging inaction of the petitioner against the Junior Assistant G.Arumugam, by accepting the evidence of Mr.G.Arumugam, the Enquiry Officer held that the management has failed to prove the said charges as well. As regards charge No.9 pertaining to the allegations that the petitioner, during his suspension went to Chennai leaving the Head quarters, it was specifically held that he went to Lawspet in Pondicherry to consult his lawyer and he did not leave Pondicherry. Accordingly, Charge No.9 was also dismissed. (vi) Finally, the Enquiry Officer after thorough enquiry, has come to the conclusion that no charges have been made out and so, concluding exonerated the petitioner based on the evidence and documents produced by both sides. After submission of the report by the Enquiry Officer, the respondent ordered for a de novo enquiry for a purported reason that the Enquiry Officer has forwarded the report to the Disciplinary authority through the Presenting Officer of the Department. Besides, the Disciplinary Authority, after receipt of the enquiry report, while differing from the report of the enquiry officer, without issuing a show cause notice, calling upon the petitioner to show cause as to why the disciplinary authority should not ignore such report, hastily proceeded to hold a de novo enquiry. When the disciplinary authority issued an order for holding a de novo enquiry on 21.1.2004, the petitioner, by filing W.P.No.2394/2004 challenged, the said order on the ground that the disciplinary authority failed to give an opportunity of representation to the charged employee before differing with the findings, which is against the ruling of the Hon'ble Apex Court in the decision rendered in MANAGING DIRECTOR, E.C.I.L., HYDERABAD v. B.KARUNAKAR (II) (1993 (4)SCC 727). This Court, by an interim order, dated 9.2.2004 passed in W.P.M.P.No.2702/2004 in W.P.No.2394/2004 directed that the enquiry may go on, however, to withhold the result till further orders. Subsequently, the enquiry proceedings were conducted and thereafter, when the petitioner wanted to choose one Dr.T.Velayutham a retired Government employee as a defence assistant the said request of the petitioner was not considered. Nonetheless, a Writ Appeal came to be filed in W.A.No.2642/2004. (vii) Mr.V.Prakash, learned senior counsel further contended that the de novo enquiry proceedings, dated 21.1.2004, shall be held as void-ab-initio for the reason that the first Enquiry Officer conducted a detailed exhaustive enquiry dealing with all charges from 1 to 9. Except charge Nos.7 and 8 which were already dropped by the Government, the Enquiry Officer categorically found the petitioner "not guilty" of any of the charges. Accordingly, the Enquiry Officer submitted his report on completion of the enquiry. After completion of the first enquiry, the decision to initiate de novo enquiry dated 21.1.2004, once again subjecting the petitioner to second enquiry, is in total violation of the principles of natural justice and also against the dictum laid down in MANAGING DIRECTOR, E.C.I.L., HYDERABAD V. B.KARUNAKAR(II) (1993 (4) SCC 727) (viii) As per the judgment of the Constitution Bench when the first enquiry officer's findings recorded in favour of the delinquent officer are proposed to be overturned by the disciplinary authority, the principles of natural justice requires that the employee should have a fair opportunity to meet, explain and to controvert before he is condemned. In other words, it was contended by the learned senior counsel that when the findings in favour of the delinquent officer are proposed to be overturned by the Disciplinary Authority, a fair opportunity should be granted to the delinquent officer before the disciplinary authority proceeds to differ with such conclusion, as otherwise, he would be condemned unheard. (ix) In the present case, curiously, in respect of charges 1 to 6 and charge No.9, a de novo enquiry was ordered and the second enquiry officer once again proceeded against the petitioner also to deal with charge Nos.7 and 8 which were already dropped by the Chairman, and it was found that the petitioner was guilty of charge Nos.7 and 8 as well. This approach of the second Enquiry Officer holding the petitioner guilty of even charge Nos.7 and 8 which were already dropped by the Chairman itself, goes without saying that not only the Enquiry Officer conducted the de-nove enquiry without application of mind, but also, the disciplinary authority, while passing the dismissal order against the petitioner by accepting the findings of the second Enquiry Officer, repeated the same irregularities and mistake of non-application of mind in accepting the findings of the second enquiry officer even though charge Nos.7 and 8 which were already dropped by the Government. (x) Adding his submission, the learned senior counsel submitted that the learned single judge passed an order dated 20.6.2004, in W.P.No.2394/2004, directing the respondents to conduct an enquiry on day-to-day basis and complete the same on or before 15.7.2004. Having aggrieved by the said order the petitioner preferred W.A.No.2642/2004. The First Bench of this Court, by order dated 12.7.2004, directed the matter to be posted on 19.7.2004 and in the meanwhile, the enquiry may be completed and even the findings can be recorded by the Enquiry Officer and the same may be placed before the Court in a sealed cover. According to the learned senior counsel appearing for the petitioner, in spite of such clear and specific direction by the Division Bench of this Court to record only the findings of the enquiry officer, the respondent once again, defying the order passed by this Court, straight away passed the final order, dismissing the petitioner from service. This shows the second motivated action against the petitioner. (xi) Further when W.A.No.2642/2004 was taken up on 20.7.2004, on being apprised of the dismissal order, the Division Bench, after noting that the petitioner was dismissed from service as against which he had also filed W.P.No.27699/2004, dismissed the Writ Appeal as having become infructuous, however, with liberty to raise the grounds which have been raised in W.A.No.2642/2004 in the pending Writ Petition-W.P.No.27699/2004, wherein, the order of dismissal was under challenge. Therefore, the learned senior counsel has submitted that when the Division Bench has given him liberty to raise all the grounds which have been raised in the W.A.No.2642/2004, in W.P.No.27699/2004 challenging the order of dismissal, the petitioner is entitled to raise all the issues including the validity of the direction to hold a de novo enquiry against the petitioner. On that basis, the learned senior counsel has further argued that the entire exercise of the respondent from holding of the de novo enquiry upto the passing of the dismissal order against the petitioner, is not only unlawful and unjustified, but also a deliberated and motivated move totally contrary to the dictum laid down by the judgment of the Constitution Bench in B.KARUNAKAR CASE, followed by another judgment of the Apex Court in PUNJAB NATIONAL BANK AND OTHERS V. KUNJ BEHARI MISRA (1998)7 SCC 84. Since the respondents have failed to follow the principles of natural justice by adhering to the proper procedure as mandated by the Supreme Court in B.KARUNAKAR case in the matter of holding de novo enquiry, the entire disciplinary proceedings resulting from the de novo enquiry shall be declared to be void on the ground of gross violation of principles of natural justice. On these basis, the learned senior counsel prayed for allowing the present Writ Petition.

(3.) CONSIDERED the rival submissions as advanced on either side.