javarappa janatha bazaar
TRANSCRIPT
From:C.Javarappa,Manager (Under Suspension),Janatha Bazaar,Mysore.
Residing at;# 3017, Ramamandira Road,Tonachikoppalu,Mysore-3.
To:The Managing Director,MDCCW Stores Limited,Mysore.
Sir, Sub: Furnishing of opinion against the domestic Inquiry conducted by Sri.D.S.shivaprakash, Advocate. Ref: letter No.435: Sibbandi: MCDCCWS/11-12, Dtd.15-11-2011.
The domestic inquiry conducted against me is malafide, illegal and
unjustified. Inquiry was non-jurisdictional, loaded with full of technical flaws,
factual errors and bias. The venom based attitude in the form multiple charge
sheets, denial of opportunity to engage defence assistant, putting the Presenting
Officer in witness box and Inquiring Authority taking the role of Presenting
Officer during the inquiry process etc., shows inexperience and bias attitude both
on the part of Disciplinary Authority and the Inquiring Authority. The entire
domestic inquiry initiated against me void abinitio i.e., right from beginning. The
details are narrated in the subsequent paras.
Totally I was served with 3 charge sheets. The First Charge sheet served
on 5-10-2010. The Second charge sheet served on 2-12-2010. The third Charge
sheet served on 8-3-2011. This shows vengeance and venom full attitude of
Disciplinary Authority qualified with the pre-determined idea of imposing
penalty. No investigation or preliminary enquiry has been done to reach the prima
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facie i.e., to take decision whether to frame the charge/s or not. Because of the
non-investigation in the matter unnecessarily I was served with multiple and
defective charges without sum and substance in it. Before initiating disciplinary
proceedings, the Disciplinary Authority is required to ensure that there is a prima
facie case of misconduct committed by an employee and that sufficient material is
available to prove his guilt. Investigation may be made where the material
evidence on hand is not sufficient to prove the allegations.
The Investigating Officer collects all the required evidence including the
statements of persons who can speak about the allegations and submits all the
records in original to the Authority which referred the case to him for
investigation or as directed. That Authority transmits them to the Disciplinary
Authority if it is not itself the Disciplinary Authority. The mere fact that an
allegation has been investigated does not as a matter of course mean that an
inquiry is contemplated. An inquiry is said to have been contemplated when the
Disciplinary Authority on an objective consideration of the material before it,
such as report of investigation, has determined to institute disciplinary
proceedings.
The First Charge Sheet served on 5-10-2010. Two charges were alleged in
this First charge sheet. The Inquiring Authority held that these two charges were
proved. The Second charge sheet served to me on 2-12-2010 in which 3 charges
have been framed. Inquiring Authority held that charge 1 & 2 are not proved and
charge No.3 is proved. The charge sheet are with full of defects, bald and most of
the charges audit based reports and not based on original records. This shows total
non-application of mind on the part of the Disciplinary Authority. To facilitate a
fair and proper opportunity being given to the employee to defend himself in the
inquiry, the charge sheet to be given to him shall clearly indicate the charge in
specific terms and should not be vague or bald. If the charge does not spell out the
specific omissions/commission on the part of the Employee in clear terms, the
object of issuing the charge sheet itself gets defeated and all further proceedings
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in pursuance of such a vague charge would be vitiated and no penalty can be
imposed based on the inquiry proceedings held in pursuance of such vague charge
(G.V.Aswathnarayana V/s. Central Bank of India & Ors. – ILR 2003 Kar. 3066
and Sri.Venkatesh Gururao Kuratti V/s. The Syndicate Bank & Ors. – ILR 2004
Kar. 2240).
As already stated, each charge should be specific and definite and should
be drawn up clearly and precisely avoiding vagueness in the charge as otherwise
the inquiry held in pursuance of a charge which is neither specific not definite
vitiates the whole proceedings for violation of Rule 11 (3) of the Rules
(Sri.Venkatesh Gururao Kuratti V/s. The Syndicate Bank & Ors – ILR 2004 Kar.
2240).
The articles of charge should be based on the original documents and the
Disciplinary Authority has to apply its mind while framing the articles of charge
as the application of mind should be that of the Disciplinary Authority alone.
Framing of charges merely on the basis of Audit Reports, Inspection
Reports of Preliminary inquiries without looking into the original documents on
which those reports are based shall, as far as possible be avoided since it may in
certain circumstances vitiate the proceedings on the ground of non-application of
mind by the Disciplinary Authority.
The articles of charge should consist of the substance of the imputations of
misconduct in clear terms based on the statement of allegations prepared with
reference to the original documents.
All the facts in the articles of charge and statement of imputations of
misconduct in support of the articles of charge must be verified with reference to
the evidence available. Suspicion however strong in nature cannot take the place
of proof (Union of India V/s. H.C.Goel reported in AIR 1964 SC 364). Therefore,
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charges should not be based on suspicion. In my case all the three charge sheets
are based on suspicion and conjectures.
The Disciplinary Authority may prepare the articles of charge or that
authority can have the draft articles of charge prepared by another authority; but
the application of mind in taking a decision should be that of the Disciplinary
Authority alone. In other words, the charge sheet must have the approval of the
Disciplinary Authority. Non-application of mind in looking into the charge by the
Disciplinary Authority vitiates the charge itself (Lokinder Singh Chaudhary V/s.
State of Haryana – 1970 SLR (P & H) 363).
While preparing the charge, the authority should look into the original
documents based on which charges are to be framed. It is to be noted that original
documents based on which charges are prepared may have to be produced for
inspection by the employee on demand from him to enable him to submit
statement of his defence in reply to show cause notice containing the articles of
charge etc., (State of U.P. V/s. Shatrughan Lal & Anr. –(1998) 6 SCC 651).
Hence, while preparing the charges, the Disciplinary Authority must be in
possession of the original documents or certified copies taken from the originals if
the original documents have already been produced before a Court of Law.
Audit reports, inspection reports, investigation report etc., may be used for
preparing a charge but charge should not be prepared only on the basis of such
report. The documents (original) referred to in such reports should be relied upon
to frame the articles of charge and not merely such reports. Therefore all the three
charges sheets deserve to be quashed since the basic principles of law and ethics
has not been followed while framing the charges.
The covering letter to CS No.344/ Sibbandi/ MDCCWS/ 2010-11 dtd.5-11-2010
reveals the closed mindedness of Disciplinary Authority. In the third para it is
mentioned that, ‘in case of refusal to agree with the charges’ the Inquiring
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Authority will be appointed to inquire into the matter’. This is not the procedure
to be followed. In cases where charges are refused with details, then the
Disciplinary Authority has to take decision whether inquiry is required or not.
This is the correct procedure to be followed. But unfortunately in this case correct
procedure has not been followed. Notice to be issued by the Disciplinary
Authority should not be defective. The initial defect in the notice issued by the
Disciplinary Authority cannot be cured by the Appellate Authority (Nooli
Channayya Smaraka V/s. State of Karnataka by its Secretary, Education
Department, Bangalore & Ors – ILR 2004 Kar. 4133). Therefore entire domestic
inquiry is void abinitio i.e., right from the beginning.
I have given common reply on 13-12-2010 against both the charge sheets
dtd.5-10-2010 and 2-12-2010. The Disciplinary Authority did not apply his mind
while ordering for inquiry on 10-11-2010. In the said inquiry order dtd.10-11-
2010, the Disciplinary Authority referred ‘the reply letter dtd.21-10-2010’. My
reply letter is not dtd.21-10-2010. Till date, I am not aware of the fact which
‘reply letter dtd.21-10-2010’ has been cited by Disciplinary Authority in his
inquiry order dtd.10-11-2010. Not considering my reply, Disciplinary Authority
has ordered for inquiry on 10-11-2010. Non-consideration my replies to charge
sheets reveal the closed minded approach on the part of the disciplinary authority.
“To consider means, there must be a proper consideration to deliver justice.
(M.Raja Rao V/s. G.M. 9P.W.), H.O., Canara Bank -1999 (5) Lar.L.J 428].
Relevant extract of para 5 of the judgment of the Hon’ble High Court of
Karnataka in M.Raja Rao’s case is furnished hereunder:
“5………………… ‘Consider’ as contemplated postulates consideration of all the
aspects, the pros and cons of the matter. The dictionary meaning of the word
‘consider’ is to review attentively, to survey, examine, inspect, to look attentively,
to contemplate mentally, to think over, mediate on, give heed to, take note of, to
think deliberately, bethink oneself, to reflect”.
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Since my reply to the charge sheets are not considered the entire inquiry is
void abinitio i.e., right from the beginning.
The Disciplinary Authority appointed an Advocate Sri.D.S.Shivaprakash. As per
Government order No.Se.Aasu.E. 3 Say.E.V 96, dated 24-4-1998, only the
Retired Judges have to be appointed as Inquiring Authorities. There is no
provision to appoint an Advocate as Inquiring Authority. Therefore Appointment
of an Advocate as Inquiring Authority is illegal and inquiry is void abinitio. The
said Advocate who had functioned as Inquiring Authority has committed lot of
incurable irregularities in conducting inquiry by disclosing his prosecution bias
and by closing the doors of reasonable opportunity to the delinquent.
Even more shocking factor is that, during the process of inquiry with
reference to I and II charge sheet, the Disciplinary Authority had issued III charge
sheet dtd.8-3-2011. No opportunity has been given to me to reply against III
charge sheet dtd.8-3-2011. Without giving such opportunity, Inquiring Authority
meaninglessly had conducted inquiry with reference to Charge No. III and held
that charges were proved. When I had objected against the conducting of inquiry
with reference to III Charge Sheet dtd.8-3-2011, the Inquiring Authority without
recording orally told that, ‘if you want, you record those points in your Written
Argument or to go to Court of Law’. The principles of natural justice provides for
appointment of Inquiring Authority after consideration of the reply from the
Employee to the show cause notice containing the charge memo or if no reply is
received within the time granted for submission of his reply. If an Inquiring
Authority is appointed even before (a) considering the reply of the Employee to
the charge memo, if he has submitted his reply within the time granted or (b)
expiry of the time granted to submit his reply to the charge memo, then the
procedure adopted would not be fair and it leads to an indication of the mind of
the Disciplinary Authority that the inquiry shall proceed irrespective of the reply
from the Government servant to the charge memo and therefore, further inquiry is
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likely to be vitiated (State of Punjab V/s. V.K.Khanna – AIR 2001 SC 343). This
shows the closed mindlessness of Inquiring Authority. This is why Government in
GO No. No.Se.Aasu.E. 3 Say.E.V 96, dated 24-4-1998 has directed all the
Departments / Organizations directly or indirectly under its control to appoint
retired judges as Inquiring Authorities.
The charge No.4 in Charge Sheet III pertains to reconciliation of accounts.
All the branches of Janatha Bazaar are regularly doing transactions with the
Government Departments and Government organizations etc., and with the well-
established private institutions. There are frequenting errors in respect of crediting
one cheque in favour of one unit of Janatha Bazaar to another unit of Janatha
Bazaar. For these kind of mistakes every official in Janatha Bazaar ‘was and is’
responsible. But no loss has taken place and no loss will going to take place,
because most of customers are Government Departments. Reconciliation has to be
updated and the debtors have to be identified and the balance has to be recovered.
Suspense accounts have to be investigated and should be taken against the sundry
debtors. The Management Authorities at different level are fully aware of these
facts. These matters have been discussed in the monthly Business Committee
meetings. The Director in person had participated with me in the debt recovery
actions. The connected files on all these matters clearly reveal the correspondence
that has been done with reference to the outstanding assets. Therefore it is
incorrect held one person as responsible for irregularities of any. Only
assumptions and presumptions have been made to target me. These points have
been explained in detail during the inquiry. But it did not enter the hammer
headed inquiry officer. I hope at least, this will certainly enter the head of
Management and the Disciplinary Authority.
The preliminary hearing conducted on 11-1-2011 is defective and
unreasonable. The Inquiring Authority did not apply his mind on the point of
defence assistant to be engaged by me. Usually it is very difficult to find a
reasonable expert in disciplinary rules. There may be many such experts (both
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retired and still in service) in the Government Departments who are functioning as
Defense Assistants. Such experts are not available in the MCDCCW Stores
Limited. There is no rule, to limit to engage the services of an employee (or Rtd)
from MCDCCW Stores Limited only. But Inquiring Authority made such kind of
wrong assumption and did not allow me to choose and engage Defense Assistant
outside MCDCCW Stores Limited. In other organizations private, semi-Govt.
organizations, Educational Trusts, the Inquiring Authorities who are from District
Judge Cadre allowed the Retired Government Servants to practice as Defence
Assistants on behalf of employees of various other organizations. In this case
Inquiring Authority did fail to apply his mind and did not allow such kind of
opportunity to me. This stands in utter violation of Principles of natural justice.
The other problem that I have faced is that, I was holding the Senior Position as
Manager in MCDCCW Stores Limited. Most of the subordinates in the
MCDCCW Stores Limited, Mysore are stand in the position of witnesses and in
one way or the other they are connected to issues in this case. Also remaining
very few is not aware of the very existence of disciplinary rules. I have explained
all these circumstances on 11-1-2011 before the Inquiring Authority. But
Inquiring Authority simply asked me ‘either defend on your own or engage a co-
employee or retired co-employee of MCDCCW Stores Limited’. The Inquiring
Authority did not give any reasons for such conclusions or orders. The Inquiring
Authority instead of taking decision by not allowing me to engage defence
assistant from the Government departments, he should have referred the matter to
Disciplinary Authority to take appropriate decision. Eventhough Inquiring
Authority has got no power to decide in such given circumstances, still he has
taken decision at his level itself. “9. Recording of reasons is a part of fair
procedure. Reasons are harbinger between the mind of maker of the decision in
the controversy and the decision or conclusion arrived at. They substitute
subjectivity with objectivity. As observed in Alexander Machinery (Dudley) Ltd.
V. Crabtree (1974 LCR 120), failure to give reasons amounts to denial of justice”.
In this connection, the observations of the Hon’ble High Court of
Karnataka in Shenoy V/s. Disciplinary Authority (ILR 1994 Kar. 1550) and
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NWKRTC V/s. Mohammad K.Sindgikar (ILR 2003 Kar. 202) as extracted below
may be kept in view:
“9. Nevertheless as observed by several learned Authors, in a case where the
delinquent is not in a position to express himself or his livelihood is in stake, or
that his social or financial status are likely to be ruined, or where several
complicated questions are raised which the delinquent is unable to comprehend,
etc., the question of such delinquent employee being afforded the assistance of a
Counsel can be considered ---------”
Being non-expertise in Disciplinary rules I could not able to cross-examine the
charge witnesses effectively. In the circumstances explained in this para,
Inquiring Authority should have allowed me to engage an Advocate or to engage
a Government Servant or a retired Government Servant to defend my case. But
Inquiring Authority had committed very serious error and thereby he has defeated
very concept of reasonable opportunity which is an essential backbone of
principles of natural justice.
Charge No.I;
‘Remained absent after applying for one day CL on 3-7-2010, without,
getting it sanctioned.
With reference to this First Charge, the Presenting Officer presented P-2
CL application, P-3 Notice regarding Unauthorized Absent issued by Managing
Director and P-5 Attendance Register for the months of July-October 2010. The
Inquiring Authority in his report argued that, ‘AGO was holding the responsible
post of Manager, he should have informed the Chairman before going on CL and
to make alternative arrangement and held that this First Charge is proved’. The
Inquiring Authority report is argumentative on some portion and contains opinion
on some other portion. Rather than conducting an inquiry, the Inquiring Authority
had conducted Mahazar. The duty of Inquiring Authority is to analyze the
strength and weakness of evidence of both sides and he has to give the reason for
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preferring one evidence against the other. But in this case Inquiring Authority did
not do such kind of analyses and therefore his report deserves to be rejected.
The actual facts are, I have applied for CL on 3-7-2010 (Saturday). 4 th
being Sunday and Government Holiday and therefore I have not attended the
office. 5th being ‘Bharath Bandh’, due to transportation problem I have not
attended the office. On that day office also did not function. While proceeding on
CL on 3-7-2010 I have clearly informed the Chairman about the urgency.
Similarly on 6-7-2010 I tried contact the Chairman over phone. Since the
Chairman was not available over phone, I have informed the Staff to pass on the
information to the Chairman regarding necessity on my part to go on long leave
etc. But these points not enquired into by the Disciplinary Authority before
issuing of charge sheet No.I and also not considered during the process of inquiry
by the Inquiring Authority. This shows a team has been formed against me to
finish my carrier.
Once leave is applied it is the responsibility of leave sanctioning authority
either to sanction leave or refuse to sanction leave. In this case nothing has been
written on P-2 in the form of line of action.
One cannot make an assumption saying that, ‘I did not inform
Chairman’. Further again it is not correct to conclude that no evidence has been
produced to prove the point of ‘having informed Chairman’. But while doing
evidence analysis Inquiring Authority is erred in making such kind of assumption
based conclusions. He has taken advantage of the ‘trust’ in the system. There is
enough scope to misuse or misinterpret the word ‘trust’. In this case had the
Chairman and / or the Staff that I had contacted over phone had confirmed the
truth on this point there would not have been so much of confusion over the point
of unauthorized absence. Instead of helping me, the management started to give
trouble and might have secretly instructed Inquiring Authority to put final nail.
The Inquiring Authority did fail to analyze from the key angle i.e., ‘is it possible
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to obtain in writing and to make alternative arrangement in case of real
emergency?’ unfortunately Inquiring Authority never thought of analyzing his
findings from this point of view. Therefore the Inquiring Authority report which
is argumentative type deserves to be rejected. His arguments are based on
suspicion only and not on fact. Findings should not be based on suspicious
evidence as mere suspicion should not be allowed to take the place of proof
(Union of India V/s. H.C.Goel reported in AIR 1964 SC 364). In the
circumstance as explained in this para, it is very much confirmed that charge No.1
is not proved.
The Inquiring Authority is a regularly paid legal advisor for MCDCCW
Stores Limited; naturally he has to act to the tunes for the management and
Chairman. Therefore Inquiring Authority stands in the position of interested party
and because of this reason right from beginning of inquiry till the end, verbally
and nonverbally the bias was writ large on his face.
II Charge;
It is alleged that AGO remained unauthorizedly absent from 4-7-2010 and
he had not handed over charge list. This has affected day-to-day business of
organization.
The Inquiring Authority had put questions including the leading questions
to the witness Sri.Hanumanthashetty and recorded the statement. He himself
obtained file from Presenting Officer, searched the documents and shown the
documents to witness and marked it as ‘p’ series of exhibits. With reference to
charge No.2 Inquiring Authority himself identified P-4, P-2, P-3, P-5 to P-8’.
During the examination-in-chief, the Inquiring Authority may put questions to the
Witness for the sake of clarifications; but no leading questions should be put to
the Witness. Further, the Inquiring Authority should not put such questions to the
Witness the answers to which are likely to strengthen the case of the Disciplinary
Authority in proving the charge (S.Krishnan Nair V/s. The Divisional
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Superintendent – 1973 (2) SLR 353). In a case where the Disciplinary Authority
had appointed an Inquiring Authority and had not appointed any Presenting
Officer, the Inquiring Authority had examined all the five Witnesses on behalf of
the Management and put questions to the Witnesses to elicit evidence in support
of the case of the management. This is sufficient to hold that the Inquiring
Authority was biased. Inquiry proceedings got vitiated from that stage
(D.Muralidhar V/s. Central Bank of India reported in 2005 AIR Kant: H.C.R.
344).
The particulars as explained against Charge No.1 also holds good against
Charge No.2, since the 75% the same matter of Charge No.1 has been repeated in
Charge No.2. The fact of attempt to contact Chairman and Managing Director
over phone No.243094 on 6-7-2010 remained unchallenged by Inquiring
Authority (since Presenting Officer remained silent). Alternatively the fact of
contacting the Accountants Smt.Jyothi Urs explaining the difficulty to attend the
office has not been denied. She had confirmed that she had told Chairman and
Managing Director regarding my inability to attend the office.
The other side of the Charge No.2 has not been proved by the
Inquiring Authority during the inquiry process. Basically it is the responsibility of
the Presenting Officer to prove the charges and it is not for the AGO to disprove
the charges. In other words ‘what is not proved need not be disproved’. But
Inquiring Authority who played the role of Presenting Officer did fail to prove
these points specified in the Charge No.2. In a departmental inquiry, normally, the
burden of proving the charges heavily lies on the prosecution (The Managaement
of Sri.Siddaganga Education Society and Another V/s. S.Kumaraswamy and
Another- ILR 2003 Kar 4715). Hence, the Presenting Officer leads evidence on
behalf of the Disciplinary Authority in support of the articles of charge. In this
case it is not correct on the part of the Inquiring Authority who has himself the
examination-in-chief.
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Sri.Hanumanathashetty is not a competent witness and the documents
marked through him is a serious procedural irregularity and prejudicial to the
interest of justice. If a document is to be relied upon during the course of inquiry,
the author of the document has to be examined. If the author of the document
cannot be produced for examination in the inquiry, the position is different.
Hence, as far as possible, a document, the author of which can be examined
during the course of inquiry may be relied upon. The principle is that the
statement of a person who is not examined during the course of inquiry cannot be
relied upon to prejudice the interest of either party. (Ministry of Finance & Anr.
V/s. S.B.Ramesh – (1998) 3 SCC 227). It should be ensured that documents
should be got marked only by competent Witness, because admitting documents
not from the competent Witnesses would amount to not proving such documents
(G.V.Ashwathanarayana V/s.Zonal Manager & Ors. – ILR 2004 Kar. 298).
There is no proof that, the business has suffered. Only assumption has
been made to that extent. The organization has functioned normally. For the sake
of using the words ‘business has suffered’ they have been used in the charge
sheet, i.e., mechanically without any sum and substance. In the same way
Inquiring Authority used the said words in his report i.e., without application of
mind. Therefore inquiry report looks like Mahazar Report. The Inquiry Officer
has done investigation rather than inquiry.
There is no proof regarding the communication of P-3 dtd.9-7-2010 and P-
4 dtd.26-7-2010 to me. Proof of communication is not producing during inquiry.
What are the things and / or key/s in my custody? There is no answer.
How does not handing over of such things / key affect the work? Not explained
by any witness and also not explained in the charge sheet and there is nothing on
record show about the loss caused to the Organization. The words ‘business
affected’ has been used in extreme bald manner. To be more clear, appropriate
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reference of 11 (3) of Karnataka Civil Service (CC & A) Rules can be made. In
this Rule 11 (3) it has been clearly mentioned that charge must be specific and
distinct. In other words it cannot be bald or vague. But in my case, the words
‘business suffered’ has been used in totally vague terms. The point to be noted is
that, it is not possible to anyone to answer for such bald charges. Therefore
Inquiring Authority quiet trickily held that this charge point is proved because of
his inborn attitude of prosecution bias and he ‘was and is’ a regularly paid legal
consultant.
The job chart does not describe or mentions the custody of materials with
an employee. The Inquiring Authority did fail to understand this basic point.
Therefore reliance made by the Inquiring Authority on P-5 to P-8 does not make
sense at all.
The comparison between the different dates under different indicators
should have been done to prove the point of view ‘how business has suffered’. All
these points clearly prove that Inquiring Authority has taken the role of
Disciplinary Authority to say that charges are proved without getting into the
length, breadth and height of evidences. Therefore assumptive based and bald
based evidence analysis of Inquiring Authority deserves to be rejected. Therefore
the charge No.2 is not proved even within the limits of preponderance of
probability.
Additional charges No.1 & 2;
Inquiring Authority did not conclude these two Additional charges since
the matter is pending in 2 JMFC Court CC. 791/ 2003. Hence my opinion or
statement of these additional charges No. 1 & 2 is nil.
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Additional charge No.3;
Inquiring Authority held that Additional charge No.3 is proved. It is
alleged that, as Manager in the First Unit, disposed the old records and papers
without following the rules and by exercising the powers which he is not having’.
With reference to this charge Inquiring Authority relied on P-16 to P-19.
Inquiring Authority failed to look into the very basics of evidence. The Inquiring
Authority who has taken the role of Presenting Officer should have answered
against 2 key questions in his report, i.e.,-
Where is the document containing the delegation of powers in respect
of Auctions?
Which Stores Rules has been violated?
The Inquiring Authority did not cite any rule / rule book in his report. His
report is totally bald without analysis, eventhough he has asked the words
analyses.
It is not disputed that, most of the times I was holding the additional charge
of Chief Executive Officer. In the capacity as I/c Chief Executive Officer I have
taken decision to auction the old papers. It is a routine procedure and precedent
based procedure. The Business Committee, Chairman and M.D are fully aware of
such kind of procedure. There was no necessity to raise this issue as if it is a new
one. The actions taken etc. will always be used to be placed before the meeting of
Business Committee during the next month. The Business Committee used to
ratify the same. This is a routine matter and there is no adversity or specialty in it.
The matters which are subject to post-fact approval or ratification cannot be a
subject of disciplinary matters. In this case auction sales vide P-16 to P-18 has
been ratified in R-2 and In R-3. Once ratified there cannot be a charge. That
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means charges have been framed with an vengeance attitude and without
application of mind.
The above details clearly show that the Inquiring Authority did fail to
apply his mind properly without referring the rule book and ratification issues.
Therefore the report of Inquiring Authority deserves to be rejected. The
Additional Charge No.3 is not proved.
Additional charge No.IV;
The Inquiring Authority has held that, the Charge No.4 is proved. It is
alleged that, in the First Unit, the AGO did not taken any action with reference to
the accumulated amount from number of years under the head ‘Sundry Debtors’
to the extent of Rs.50,52,589 as per 2008-09 Audit report’.
For this charge Inquiring Authority has identified P-20, P-21 and P-22.
Basically Inquiring Authority did fail to look into the following points,-
Audit Report shall not be the basis to frame the charge sheet. Audit Report is
only a secondary document and it is not a primary document. Documents cited
in an Audit Report are Primary documents. Such primary documents should
have been produced during the inquiry. The primary documents should be
verified and only after reaching the prima facie point charge sheet may be
framed. Merely reproducing the conclusions in Audit Report in the charge
sheet is nothing but ‘without application of mind’. The Inquiring Authority
did fail to understand this basic point.
The sundry debtors’ accumulation period i.e., ‘from and to’ not specified in
charge sheet. Also this has not been mentioned in the inquiry report.
The incumbency period of officers/ employees and pro-rata responsibility has
not been assessed. A charge sheet has been framed as if ‘C Javarappa’ alone
was existed.
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The Inquiring Authority should have summoned records to verify the
authenticity of my defence statement in the interest of Justice. Instead of
doing it, Inquiring Authority in his report, mechanically mentioned that,
‘AGO did not produce any documents in support of his defence statement’,
because it is easy for him to write like that. Now at this stage the Disciplinary
Authority may please call for the records to verify the following points,-
Unit-2 outstanding dues merged with the Unit-1. What was the outstanding
dues on 30-6-2007 in Unit-2.
As on 31-3-2009 outstanding dues to be realized by Unit was Rs.20.43 lakhs.
Outstanding dues to be realized by Unit 2 have been continued.
Every month the status of Sundry Debtors i.e., outstanding assets reconciled
Accounts, action to recover the arrears has been placed before Business
Committee and Managing Director.
Follow up action has been taken as per instructions of Business Committee
and Managing Director.
Managing Director completely aware of the status of ‘outstanding assets’
month by month and action taken on it.
The cheques received without credit particulars worth Rs.10-75 lakhs has
been held up in ‘suspense Accounts’. This has to be deducted out of sundry
debtors as on 31-3-2009. Staff and Auditors shall put their own efforts to clear
the ‘suspense accounts’ as early as possible. Perhaps, the Inquiring Authority
did fail to understand the meaning of the words ‘sundry debtors’, ‘Outstanding
Assets’, ‘bad debts’, and suspense accounts.
The sundry creditors account no doubt showing the status of outstanding
liabilities. Since there is no claimants and no litigations against this account,
the balance of ‘sundry creditors’ has to be closed and taken as revenue with
the approval of Business Committee.
It is the basic responsibility of auditors to ensure that the re-conciliation of
accounts has been done properly and then only they have to commence the
annual audit. If reconciliation has not been done properly the auditors shall
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themselves have to do reconciliations and then they have to commence audit.
But in this case the auditors failed to follow the basic procedure.
Under the instructions of Business Committee, even the pass-book system for
each department has been introduced to effectively watch the recovery and to
stop the supplies in case of continued over dues.
The auditors did fail to narrate in detail the actions taken by the internal staff
and ATN on Audit Report placed below the Business Committee. But
Inquiring Authority did fail to call the original records pertaining to the above
points.
The Management is toothless in initiating legal action of recovery against the
debtor-Government departments for the reason of losing business and because
the MCDCCW Stores limited has to function directly under the nose of
Officers belonging to Cooperation and Cooperative Audit Department.
Therefore for having permanently fixed in this problem, the management
identified soft target to wash of its hands.
All the actions, realities and situations clearly show that, I have taken
sufficient action to the extent possible at my level. Therefore Inquiring Authority
report has to be rejected.
Presenting Officer illegally deposed as witness:
In this case the Presenting Officer Sri.P.Sathish has been taken as witness
by Inquiring Authority and Inquiring Authority put the leading questions to
Presenting Officer and recorded the statement of Presenting Officer on 26-3-2011.
Again further examination-in-chief of the Presenting Officer has been done 2-4-
2011 i.e., in my absence. The documents from P-9 to P-15 were marked as
exhibits. Examination-in-chief of Presenting Officer also done on 9-4-2011 and
exhibits P-16 to P-22 has been marked. But at all the stages I was not allowed to
do the cross-examination of the Presenting Officer. This kind of procedure as
adopted by Inquiring Authority, if placed below the bench, no doubt bench will
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call Inquiring Authority as a ‘joker’. Therefore report of Inquiring Authority
deserves to be rejected. Only at the end Inquiring Authority realized his mistake
and passed correctional order. But Inquiring Authority has done incurable
damage, which no bench will excuse him.
Witness K.S.Hanumanthashetty was allowed to adopt the deposition made by the Presenting Officer
Even worse is that Inquiring Authority allowed the witness
K.S.Hanumanthashetty to adopt the deposition made by the Presenting Officer.
This reveals the maximum heights professional incompetency in conducting of
inquiry by the Inquiring Authority.
Inquiring authority has leaded the evidence:
The Inquiring Authority has taken the role of Presenting Officer and put leading
questions to the witness Sri.L.Narasihma Rao Peshwa and recorded his
deposition. When Inquiring Authority puts the questions to the witness, it is not
permissible for the AGO to cross-examine this shows the closed mindedness and
prosecution-bias of the Inquiring Authority. This is with reference III charge sheet
dtd.19-1-2011.
The entire inquiry has been conducted like spot Mahazar. The inquiry
report is like argumentative in nature rather than contents of evidence analysis.
While drafting the report of inquiry, it should be ensured that the report should
discuss and spell out the reasons for preferring particular evidence against the
other evidence. The report of inquiry should be a reasoned one and it should
establish co-relation between the evidence on record and the findings (Anil
Kumar V/s. Presiding Officer 1985 (3) SLR 26). The inquiring authority has done
incurable damage by adopting the wrong procedure of inquiry in total violation of
principles of natural justice. Now if this reply is referred to him it will result in
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much more higher irregularity. There is no provision to conduct fresh inquiry or
de-novo inquiry. Therefore the fees paid to the inquiring authority have to be
recovered with interest from the inquiring authority.
Prayer:
The entire case has been conducted on the grounds of suspicion and
conjectures. Charge cannot be sustained on mere conjectures in the absence of
evidence. Hence, the findings shall not be based on conjectures. Since such
findings based on conjectures do not sustain, the conclusions of the Inquiring
Authority should not be based on conjectures. In the case of State of Assam V/s.
Mohan Chandra Kalita and another reported was charged of making illegal
collection of money from the villagers while distributing compensation amount
due to them. He was removed from service. The Hon’ble Assam and Nagaland
High Court quashed the order of removal as the Inquiring Officer had based his
conclusions on conjectures. The Assam State went in appeal to the Hon’ble
Supreme Court. The Hon’ble Supreme Court dismissed the appeal of Assam State
against the orders of the Hon’ble High Court of Assam and Nagaland which had
quashed the order of removal on the ground that the finding of the Inquiring
Authority was based on conjectures. Suspicion however strong in nature cannot
take the place of proof. Hence, any evidence of any Witness, either charge
Witness or defence Witness, casting strong suspicion, if it is not corroborated
either by documentary evidence or by circumstantial evidence is not worth relying
upon (Union of India V/s. H.C.Goel – AIR 1964 SC 364).
All the above particulars clearly show that Inquiring Authority has erred
on legal count and on factual count. Inquiring Authority assumed answers for
many non-existent evidence points. Factually no charges were proved against me.
I deserve to be exonerated from the alleged charges in the 3 charge sheets, both on
the honourable and on the technical grounds. Accordingly I herewith submit by
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prayer to the Disciplinary Authority to pass the exoneration order by quashing the
suspension order with consequential benefits with reinstatement.
Yours faithfully,
Place:
Date: [C.Javarappa]
Manager, MCDCCW Stores Limited, Mysore, Residing at, # 3017, Ramamandira Road, Tonachikoppalu, Mysore-3.
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