Allowed

K.Muthusamy v. Tamilandu Waterhousing

Madras HC18 Jan 2021WP/24320/2007

Case brief

AI extract

What is this about?

The Court quashed departmental orders imposing recovery of salary from four warehouse managers. The Enquiry Officer concluded the petitioners were liable for transit loss without adducing any documentary or oral evidence to substantiate the charges. The Court held that the penalty was unsustainable as the finding lacked a preponderance of probability and was contradicted by the employer's own ackn

What did the court decide?

Quashed the orders of recovery and quash the impugned orders of the Disciplinary and Appellate Authorities, holding no recovery can be effected.

K.Muthusamy Vs Tamilandu Waterhousing — Pension and Retirement Benefits | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Date : 18.01.2021

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CORAM:

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THE HON'BLE MR. JUSTICE R.SURESH KUMAR

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W.P.No.24320 of 2007 and W.P.No.25482 of 2007 and W.P.No.22708 of 2007 and W.P.No.25481 of 2007

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K.Muthusamy ... Petitioner in W.P.No.24320 of 2007 T.Thomas ... Petitioner in W.P.No.25482 of 2007 S.Charles Chandra Mohan ... Petitioner in W.P.No.22708 of 2007 K.Radhakrishnan ... Petitioner in W.P.No.25481 of 2007 Vs. 1.Tamil Nadu Warehousing Corporation, Rep. by its Chairman and Managing Director, (Disciplinary Authority) 82, Anna Salai, Guindy, Chennai - 600 032.

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2.Executive Committee (Appellate Authority), Tamil Nadu Warehousing Corporation, 82, Anna Salai, Guindy, Chennai - 600 032.

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... Respondents in all WPs

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Prayer in W.P.No.24320 of 2007 : Petition filed under Article 226 of Constitution of India praying for issuance of a Writ of Certiorarified Mandamus after calling for the records from the first respondent bearing Ref.No.02148/2001/E4 dt: 30.6.2005 as confirmed by the second respondent vide his proceedings Rc.No.5450/05/E4 dt: 02.05.07, quash the said orders and consequently direct the respondents to refund the amount deducted from the petitioner's salary together with interest at 12% p.a., with consequential benefits.

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Prayer in W.P.No.25482 of 2007 :praying for issuance of a Writ of Certiorarified Mandamus after calling for the records from the first respondent bearing Ref.No.02148/2001/E4 dt: 30.6.2005 as confirmed by the second respondent vide his proceedings Rc.No.5990/05/E4 dt: 27.04.07, quash the said orders and consequently direct the respondents to refund the amount deducted from the petitioner's salary together with interest at 12% p.a., with consequential benefits.

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Prayer in W.P.No.22708 of 2007 :praying for issuance of a Writ of Certiorarified Mandamus after calling for the records from the first respondent bearing Ref.No.02148/2001/E4 dt: 30.6.2005 as confirmed by the second respondent vide his proceedings Rc.No.5699/05/E4 dt: 02.05.07, quash the said orders and consequently direct the respondents to refund the amount deducted from the petitioner's salary together with interest at 12% p.a., with consequential benefits.

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Prayer in W.P.No.25481 of 2007 :praying for issuance of a Writ of Certiorarified Mandamus after calling for the records from the first respondent bearing Ref.No.02148/2001/E4 dt: 30.6.2005 as confirmed by the second respondent vide his proceedings Rc.No.5796/05/E4 dt: 02.05.07, quash the said orders and consequently direct the respondents to refund the amount deducted from the petitioner's salary together with interest at 12% p.a., with consequential benefits.

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Since the issue involved in all the four writ petitions are one and the same, these writ petitions were heard together and being disposed of by this common order.

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2.All these petitioners were working in various capacities such as Assistant Warehouse Manager, Deputy Warehouse Manager, Warehouse Manager at Mettupalayam Warehouse of the respondent Corporation viz., the Tamil Nadu Warehousing Corporation.

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3.While they were working in the year 2001, a show cause notice was issued separately to all these petitioners seeking to show cause as to why disciplinary action should not be initiated against them for the alleged transit loss caused to the respondent Corporation while transporting the stock from Mettupalayam Warehouse to Tirunelveli by rail wagon. It seems that, explanation had been given by these petitioners separately to the show cause notices in the year 2001 itself. However, after having receipt of the explanation given by these petitioners, there was no immediate response from the respondents as to whether they accepted the explanation given by these petitioners and dropped the proceedings or they have not

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satisfied with the explanations and they proceeded against these petitioners by issuance of charge memo.

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4.However, after three years, only in the year 2004 i.e., on 10.03.2004 charge memo separately have been issued against these petitioners, where, four charges were framed against each of the petitioner, which are similar to each other.

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5.Pursuant to the said charge memo, explanation was sought for from these petitioners, which also have been given by these petitioners in April 2004. However, not satisfied with the same, an Enquiry Officer was appointed to conduct enquiry and accordingly, separate enquiry was conducted. However, it seems that, no documentary or oral evidence had been put forward by the respondent Corporation in support of the charge framed against each of the petitioner. However, only based on the query raised by the Enquiry Officer separately from each of the petitioner and the oral reply given by them, having been recorded by the Enquiry Officer and based on which, it was concluded by the Enquiry Officer that, all the charges framed against each of the petitioner have been proved, thus they were liable to be imposed a recovery of the alleged sustained loss of the respondent Corporation.

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6.The said Enquiry Officer's report or findings dated 23.12.2004 having been served on the petitioners, second explanation was sought for, which was also given by them in the year 2005. However, not satisfied with the same, the respondent i.e., Disciplinary Authority, by order dated 30.06.2005, issued the order of recovery, whereby the loss which they calculated as per the Enquiry Officer's finding based on the charge memo, to the extend of more than Rs.11 lakhs have been divided into four and therefore, the 1/4th of the loss was sought to be recovered from each of the petitioner. As against the said order of the Disciplinary Authority dated 30.06.2005, appeal has been filed by the petitioners, which was also decided in the year 2007 i.e., on 02.05.2007 by the Appellate Authority, confirming the order passed by the Disciplinary Authority. Therefore, as against such orders passed by the Disciplinary Authority, as confirmed by the Appellate Authority, the petitioners approached this Court by filing these writ petitions with the aforesaid prayers.

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7.I have heard Mr.K.M.Ramesh, learned counsel appearing for the petitioners in W.P.Nos.24320, 25482, 22708 of 2007. Insofar as the other writ petition is concerned, though no one was appeared on behalf of the petitioner, the issue raised in that writ petition also is similar to that of the three writ petitions, that writ petition is also taken up for consideration to decide by this common order.

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8.On behalf of the respondents, though notice have been served and the name of the respondents have been shown in the cause list, none was present.

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9.Mr.K.M.Ramesh, learned counsel appearing for the petitioners would submit that, these petitioners had been working under various capacities like Assistant Warehouse Manager, Deputy Warehouse Manager as well as Warehouse Manager of the Tamil Nadu Warehousing Corporation and their responsibility and duty though have been enumerated, by which, they have to send the stock from Mettupalayam Warehouse to the required places, and in this context, the stock in question had been despatched to Tirunelveli Godown sometime in December, 2000. The stock sent from Mettupalayam to Tirunelveli reached Tirunelveli in February, 2001, where, it was found that, 99.431 metric tonne transit loss of the stock, for which, they fixed the responsibility on these petitioners as they have not taken due and diligent care to ensure before despatching that, there could be no seepage of the stock sent through wagons. Therefore, it seems that, the respondent Corporation found these petitioners guilty of the loss sustained by the Corporation during transit and accordingly, the charge memo was issued against these petitioners.

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10.It is to be noted that, though separate enquiry was conducted by the same Enquiry Officer in respect of these petitioners, in the Enquiry Officer's report dated 23.12.2004 in respect of each of the four charges, the charge, the explanation given by the petitioners and the finding of the Enquiry Officer alone has been recorded.

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11.The Enquiry Officer's report does not suggest that, on behalf of the respondent corporation, there was any oral evidence or documentary evidence to substantiate the allegation made against these petitioners.

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12.Mainly the Enquiry Officer has proceeded to come to a conclusion that, these petitioners had been responsible for the loss sustained during transit as they have not ensured for the correct weight at the time of weighing the stock maintained by the Corporation nor the stock had not been repacked with fresh gunny bags as the gunny bags stock had already packed and loaded, had been kept for more than 10 months at the godown at Mettupalayam, during which period, most of the gunny bags got damaged and in some of the bags, though had been opened, since the stock had been loaded through wagon, that was the main reason or main cause for the transit loss, therefore, accordingly it seems that the Enquiry Officer found that these petitioners are responsible for the loss sustained during the transit.

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13.In order to appreciate the same, the relevant portion in the Enquiry Officer's report are extracted hereunder:

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"In respect of Charge No.2, the Enquiry Officer findings reads thus:

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tprhuiz mYtyu; fz;lwpe;jit : ,e;jpa czt[ fHf gr;ruprp nkl;Lg;ghisak; fpl';fpy; 7 Kjy; 9 khj';fs; tiu nrkpg;gpy; itf;fg;gl;oUe;jJ ,Ug;gpypUe;j ruf;fpd; nfhzpg;igfs; giHa fpHpe;j iee;Jnghd epiyapy; ,Ue;Js;sJ mg;igfis khw;Wtjw;fhf fpl';F nkyhsu; fojk; ,/c/f-2000-j/eh/nr/fp/ep-nk/gh-ehs; 16/09/2000 y; nfhzpg;igfs; tH';f nfl;Lf;bfhz;ljw;F nfhak;gj;J}h; ,/c/f/ khtl;l nkyhsu; fojk; v!; & rp 8(1)-1999 2000-ehs; 20/09/2000 y; thu';fy; khtl;lj;jpypUe;J xU Rika[e;J (Lorry) gS nfhzpg;igfs; vjpu;ghh;j;jjhft[k; mit bgw;wt[ld; njitahd nfhzpg;igfs; mDg;gg;gLbkd;W gjpy; mDg;gpa[s;shu;/ vdnt bjhlu; eltof;if vLj;J g[jpa nfhzpg;igfis bgw;W ruf;Ffis mDg;gp itf;fhj epiyapy; Vw;gl;l gr;ruprp eilapil ,Hg;g[ 93/431 bk/ld;f;F Tl;lhft[k; jdpahft[k; bghWg;ghfpwhu; vd;gJ epU:gzkhfpwJ/

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In respect of Charge No.3, the findings reads thus: tprhuiz mYtyu; fz;lwpe;jit : ,/c/f/ gr;ruprp ve;j epiyapy; bgwg;gl;lnjh mnj epiyapy; Vwj;jhH 10 (gj;J) khj nrkpg;gpw;F gpd;du; ,Ug;g{u;jp K:yk; kPstpl;lhDf;Fk; jpUbey;ntypf;Fk; g[jpa nfhzpg;igfs; tH';fg;glhj epiyapy; giHa. fpHpe;j kw;Wk; kf;fpa epiyapy; bgwg;gl;l K:l;ilfis mg;gona mDg;g ntz;oa epu;g;ge;jj;jpy; mDg;gpitj;jjhf tpsf;fkspj;Js;s tifapy; Vw;gl;l eilapHg;g[. nfhzpg;igfs; bryt[ kw;Wk; ruf;Ffl;lzk; cs;spl;l ,/c/f/ gpoj;jk; bra;Js;s U:/13.93.015/- f;F Tl;lhft[k; jdpj;jk; bghWg;ghfpwhbud;gJ epU:gzkhfpwJ/

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In respect of Charge No.4, the findings reads thus: tprhuiz mYtyu; fz;lwpe;jit : Fw;wrhl;L vz;/4 kw;w Fw;wr;rhl;Lfspd; gFjp kw;wk; RUf;fkhdjhf cs;sJ ,/d/f/ gr;ruprp kpfg; giHa. iee;j kf;fpa kw;Wk; fpHpe;j nfhzpg;igfspy; jpUbey;ntyp nrkpg;g[f; fpl';F kw;wk; ,/c/f/ kPstpl;lhd; fpl';fpw;F ,Ug;g{u;jp K:yk; mDg;gpitf;fg;gl;l tifapy; nkl;Lg;ghisak; fpl';fpypUe;J ,Ug;g{u;jp ruf;ffk; kw;Wk; jpUbey;ntyp. kPstpl;lhd; ruf;ff';fspy; kw;Wk; fpl';Ffspy; ruf;F ifahSifapy; Vw;gl;l eilapilapHg;g[ cjpup jhzpa';fis epug;g gad;gLj;jg;gl;l g[jpa nfhzpg;igfspd; fpuak; Kjypa tifapy; U:/13.93.015/- I ,/c/f/ jz;ly; bra;Js;sjw;F jdJ gzpapy; myl;rpakhft[k;. ftdf;Fiwthft[k;. bka;ikapd;wpa[k; ,Ue;jnj fhuzkhf miktjhy; Fw;wr;rhl;L vz;1/ Kjy; 3 tiu epU:gpf;fg;gl;l epiyapy; Fw;wr;rhl;L vz; 4 epU:gzkhfpwJ/"

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14.Therefore, the said finding given by the Enquiry Officer in the scrutiny suggests that, only based on the conclusion he reached that, because of the inaction on the part of the petitioners that, before loading the stock in the wagon, they should have ensured that the stock are repacked in fresh gunny bags, for which, according to the Enquiry Officer, no efforts had been taken by these petitioners.

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15.However, Mr.K.M.Ramesh, learned counsel appearing for the petitioners has submitted that, in fact, specific request had been made by sending letters by the Mettupalayam Warehouse to the Food Corporation of India to supply fresh gunny bags. However, it was replied by them stating that, they were expecting fresh despatch of gunny bags from Hyderabad and as soon as they received, they would forward to the Corporation. It seems that, in this regard, Mr.K.M.Ramesh, learned counsel pointed out that, till the despatch of the stocks, which was taken place in December 2000, no fresh gunny bags were supplied, therefore, having no other option with old gunny bags, where the stocks had already been packed, it had been loaded in the wagon and therefore, if at all any transit loss taken place, for which, no blame can be put against these petitioners as at the time of loading the stock, it was weighed in the wagon machine used by the Corporation at Mettupalayam godown and in this regard, the findings given by the Enquiry Officer, according to the learned counsel, is without any basis.

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16.I find some force in the said contention made by the learned counsel appearing for the petitioners, as the Enquiry Officer's report dated 23.12.2004 does not suggest that, in order to substantiate the said allegations made against the petitioners or the charge made against them was any documentary or oral evidence made on behalf of the respondents. This aspect of having without any evidence either orally or on document basis, on behalf of the respondents, the Enquiry Officer since has come to the conclusion that, these petitioners were responsible for the transit loss, this Court feels that, it violates the principle of conducting domestic enquiry or departmental enquiry.

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17.Further, the learned counsel appearing for the petitioners has heavily relied upon a Joint Committee Report dated 21.08.2001 that was taken place well before the show cause notice issued against the petitioners.

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18.In the Joint Committee Report, the Committee, after having elaborate discussion, has found two reasons for transit loss which reads thus:

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"The Joint Committee feel that the reason for the transit loss may be as

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1.OOZING, BLEEDING THE SPILLINGS FROM THE WAGONS AND

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2.THE VARIATION IN WEIGHT ADOPTED AT THE TIME OF DESPATCH ON THE LORRY WEIGH BRIDGE OPERATED MANUALLY AT METTUPALAYAM AND THAT RECORDED ON THE ELECTRONICALLY OPERATED WEIGH BRIDGE AT THE RECEIVING ENDS."

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19.In this context, it is also to be noted that, subsequent to the disciplinary proceedings on 12.06.2007, the very respondents i.e., Tamil Nadu Warehousing Corporation written a detailed letter on this issue to the General Manager of the Food Corporation of India, where, they have stated the following:

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"The entire movement at Mettupalayam was duly witnessed by ICCO official District Manager, FCI, Coimbatore without any complaint. Though our warehouse Manager Mettupalayam had made several attempts to get gunnies for rebagging, the District Manager finally after the dispatch of this consignment has requested the Warehouse Manager Mettupalayam to take delivery of gunnies from FCI Depot at Coimbatore only on 11.2.2001. All the efforts and attempt of Warehouse Manager Mettupalayam was failed to get gunnies for rebagging before the despatch of the consignment."

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20.Also in respect of the recovery of a sum of Rs.11,29,728/- with penal cost, it was considered to be unreasonable, according to the respondent Corporation, which is also reflected in the said letter of the respondent dated 12.06.2007 which reads thus:

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"The recovery of Rs.11,29,728/- with the penal cost as there is no theft fraud or negligence as against the cost at the rate of PDS for Rs.6500/- is also unreasonable."

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21.On reading of these findings given by the respondent Corporation through its letter dated 12.06.2007 addressed to the Food Corporation of India, it has become quite clear that, the Warehouse Manager, Mettupalayam, though had taken all efforts and attempts to get new gunny bags, his attempt was ended in failure because of the non cooperation of the other end. Therefore, in this context, the stand of the respondent Tamil Nadu Warehousing Corporation is to be taken into account, as against which or quite contrary to the same, the Enquiry Officer has given his findings in his report dated 23.12.2004 that too without any evidence adduced in this regard by the respondents Corporation.

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22.Therefore, it has become also clear that, it is not the case of the Tamil Nadu Warehousing Corporation that, the petitioners have miserably failed in procuring new gunny bags before despatching the stock to Tirunelveli and in this regard, all attempt made by them since ended in failure, no fault can be found from the petitioners side and this has been exactly stated by the letter of the respondent Corporation dated 12.06.2007.

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23.If this aspect is taken into account, the finding given by the Enquiry Officer, in his report based on his conclusion

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and fixing the responsibility on these petitioners, cannot be said to be supported by any solid evidence and therefore, this Court feels that, based on such Enquiry Officer's report which does not meet the decree of proof of preponderance of probability, the penalty of imposing recovery against these petitioners ought not to have been imposed. This position has been clarified in the said letter dated 12.06.2007, which was written by the Manager (Technical) of the respondent Tamil Nadu Warehousing Corporation. Hence, this Court feels that, no blame can be put against these petitioners for the alleged transit loss sustained by the respondent Corporation, for which, no recovery can be effected against these petitioners. In view of the above said discussion, this Court feels that, the impugned orders cannot be sustained. Therefore, they are liable to be quashed.

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24.In the result, the impugned orders are quashed. Since there has been no recovery made against the petitioners during the pendency of the writ petitions, as the impugned recovery orders having been stayed by this Court, which has been made absolute till date, the same is recorded herein and accordingly, there could be no recovery from the petitioners pursuant to the impugned orders.

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25.With these observations, all these writ petitions are allowed, as indicated above. However, there shall be no order as to costs.

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Sd/Assistant Registrar(cs II) //True Copy// Sub Assistant Registrar Sgl To 1.The Chairman and Managing Director, Tamil Nadu Warehousing Corporation, (Disciplinary Authority) 82, Anna Salai, Guindy, Chennai - 600 032. 2.Executive Committee (Appellate Authority), Tamil Nadu Warehousing Corporation, 82,Anna Salai, Guindy, Chennai - 600 032. +3ccs to Mr.M.Ramesh , Advocate SR.No. 2236

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W.P.No.24320 of 2007 and W.P.No.25482 of 2007 and W.P.No.22708 of 2007 and W.P.No.25481 of 2007

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A.SK(19.02.2021).

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K.Muthusamy v. Tamilandu Waterhousing

Case brief

What is this about?

What did the court decide?

K.Muthusamy v. Tamilandu Waterhousing

Case brief

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