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Judgment
Mr.Justice D. Hariparanthaman
The petitioner was employed as a Forester in Sethumadi East Section of Coimbatore District. He was issued acharge memo dated 29.10.1999 under Rule 17(b) of theTamilnadu Civil Service (Discipline and Appeal) Rules. Thecharge-sheet is solely based on the report of the Assistant Conservator of Forests (Training). Annexure-III to thecharge-memo refers three documents that are to be relied onto prove the charges. The first document is the LetterNo.235/9 dated 9.9.99 of the Assistant Conservator ofForests (Training). The second document is the Letter Na.Ka. No. 435/99 dated 9.9.99, 29.9.99 and 5.10.99 of theAssistant Conservator of Forests (Training) and the thirddocument is the Certificate issued by the AssistantVeterinary Doctor, Malaiyandipattinam. The enquiry wasconducted and five witnesses were examined. Based on thefindings of the enquiry officer, the second respondentpassed the order dated 28.2.2001 imposing the punishment ofstoppage of increment for one year without cumulativeeffect. The petitioner preferred an appeal and the samewas dismissed by the first respondent by order dated 03.7.2011.
The petitioner filed O.A. No. 5705/2011 to quash theaforesaid orders dated 28.2.2001 of the second respondentand 03.7.2011 of the first respondent. The 2nd respondent filed a reply affidavit refuting the allegations.
On abolition of the Tribunal, O.A.No.5705/2001got transferred to this Court and renumbered asW.P.No.1234/2007.
Heard both sides.
The learned counsel for the petitioner submits thatthe entire charge-sheet is based on the report of theAssistant Conservator of Forests (Training) and the letterswritten by him were the documents relied on to prove thecharges. The Assistant Conservator of Forests was notshown as a witness in Annexure-IV to the charge memowherein the list of witnesses is cited. According to him,reliance placed on the Assistant Conservator of Forests(Training) without subjecting him to cross-examination would vitiate the punishment order. Thelearned counsel relies on the decision of the Apex Court in L.I.C. of India and Another Vs. Ram Pal Singh Bisen,
On the other hand, the learned Government Advocatefor Forests seeks to sustain the impugned order based onthe reply affidavit.
I have considered the submissions made on either side.
The petitioner has categorically stated in ground(c), (d) and (e) that the Assistant Conservator of Forests (Training) should have been examined and he should havebeen given liberty to cross-examine him. Without examiningthe Assistant Conservator of Forests (Training), thereliance placed by the department on his letters isillegal. The reply affidavit does not deal with theallegations parawise. The learned Government Advocate (Forests) relies on para 9 of the reply affidavit as thereply to the allegations made in ground (c) to (e) in the Original Application. Para 9 of the reply affidavit isextracted hereunder:
The evidence found in the documents made available to the Enquiry Officer has been proved based ondetailed enquiry conducted by him. Hence, this ground isunsustainable. In this para the applicant has discussedabout this procedural flaw in the conducting on enquiryinto the disciplinary case against him by pointing outthat he was not allowed to cross examine the witnesses.This is totally untenable on the ground that only thewitnesses mentioned in the Annexure 5 of the charge sheetwere examined by the Enquiry Officer and the request ofthe applicant to examine the Assistant Conservator of Forests in charge of Pollachi Range and VeterinaryAssistant Surgeon, Malaiyandipattinam was not granted asit was not considered relevant.
In my view there is no answer for the specific issue thatwas raised by the petitioner. It is well settled that without subjecting the author of the document for cross examination, the document shall not be relied on to prove the allegations. As the judgment in L.I.C. of India and Another Vs. Ram Pal Singh Bisen, ) relied on by the learned counsel for the petitioner squarely applies to the facts of this case, paragraphs 25, 26 and 27 are extracted hereunder:
25.We are of the firm opinion that mere admissionof a document in evidence does not amount to its proof.It other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law.
26.As has been mentioned herein above, despiteperusal of the record, we have not been able to come toknow as to under what circumstances the respondent-plaintiff had admitted those documents. Even otherwise,his admission of those documents cannot carry the case ofthe appellants any further and much to the prejudice ofthe respondent.
27.It was the duty of the appellants to have provedthe documents, Exts.A-1 to A-10 in accordance with law.Filing of the enquiry report or the evidence adducedduring the domestic enquiry would not partake thecharacter of admissible evidence in a court of law. Thatdocumentary evidence was also required to be proved bythe appellants in accordance with the provisions of the Evidence Act, which they have failed to do."
In view of the categorical pronouncement of the Apex Court,the impugned orders are liable to be quashed and accordingly, quashed.
Consequently, the writ petition is allowed. No costs.