TMI Blog2016 (3) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... dverse effect which its order may have on the rights, liberties or interest of persons keeping in mind the purpose for which the rules framed were intended to serve. The person not only gets less or no pay but goes through the ignominy of having to face all his colleagues, family and friends while under suspension and after termination. He is shamed Taking into account the totality of the facts and circumstances, it is of the view that the recommendation of the Official Liquidator in his further report dated 31st October, 2011 read with report dated 18th February, 2013 cannot be accepted. As find it difficult to even accept that Shetty could be faulted. At the same time this court by its order dated 16th January, 2006 declined the prayer of resumption of regular employment to Shri Shetty. Hence Shri Shetty should be given all benefits including increments and promotion that he would have obtained during the period after 16th January, 2006 had he not been under suspension. His salary/emoluments to be fixed/determined accordingly. In the circumstances, have no hesitation in setting aside the inquiry report dated 20th May, 2011 of Shri N. Chinnachamy. Since setting aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pments belonging to M/s. Centurion Bank Limited (CBL) through the Court Receiver. In order to comply with the order dated 10th April, 2003, the Official Liquidator vide office order dated 26th June, 2003 directed Shri S.M. Shetty, company paid Peon and Shri C.L. Saraiya, the then Junior Technical Assistant (JTA) to proceed to the factory site of M/s. Otoklin Plants Equipments Limited at Kandla, Gandhidham, Gujarat to hand over through the Court Receiver the leased assets that belonged to CBL. The factory premises it should be noted was situated at Sector IV, Kandla Special Free Trade Zone, Kandla, which means inside a customs notified area. 4. Shri Saraiya and Shri Shetty reached the site on 1st July, 2003. When these two gentlemen reached the site, there were two representatives from the Court Receiver's office, viz., Shri P.S. Rao and Shri Mangesh Jog and two representatives from CBL, viz., Shri Srinivasan and Shri Mahesh Rane. Apart from these six persons there were representatives of the person who had purchased the equipments from M/s. Centurion Bank Limited to take delivery of the same through the Court Receiver. 5. On 1st July, 2003 Shri Saraiya and Shri Shetty t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Shetty guilty of dereliction of duty and concealment of fact of removal of the machines belonging to Al-Qahtani which has prompted the Official Liquidator to recommend termination of services. 9. By an office order dated 25th November, 2004 issued by the Official Liquidator, Shri Shetty was suspended with immediate effect till outcome of the findings of the enquiry which was to go on. Shri Shetty has been suspended with effect from 25th November, 2004. As subsistence allowance, he was initially paid half salary which was subsequently revised to 75%. Shri Shetty filed a writ petition challenging the order of suspension and praying that he be resumed in his regular employment. The said petition came to be disposed by an order dated 16th January, 2006 whereby this court directed the Union of India through Official Liquidator to pay full salary to Shri Shetty towards subsistence allowance but declined to grant the prayer of resumption in regular employment. Since 25th November, 2004 Shri Shetty has been under suspension and as on date it is more than 11 years and he is getting 100% subsistence allowance. 10. As per the report filed by the Official Liquidator, Deputy Official ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.R. Kom, the then Official Liquidator have been examined on 2nd May, 2011 and 4th May, 2011 and the witness except Shri P.N. Mohanan have submitted their statement in writing with regard to the enquiry against Shri Shetty. 12. The counsel for the Official Liquidator in fairness stated that none of these witnesses were made available for cross examination by Shri Shetty. Infact Shri Shetty has also, as recorded in paragraph 8 of the enquiry report, mentioned that he had sought details vide his letter dated 15th April, 2011 which was not provided. The enquiry officer has based his conclusion on Shetty's statement dated 16th April, 2011 but Shetty vide his letter dated 18th April, 2011 has objected and stated that under duress he has been made to sign a wrong statement on 16th April, 2011. If this is the position, the same is in violation of principles of natural justice. 13. The counsel for Shri Shetty submitted a compilation of documents which included a memorandum of charges issued by the Government of India, Ministry of Company Affairs, Office of the Regional Director, Western Region to Shri C.L. Saraiya; copy of the true translation of the FIR lodged by Prakash K. Kale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30 security guards, 2 gun men and 3 supervisors of Crack Agency Private Limited for each shift have been present. It is also stated that the representatives of CBL falsely represented to Shri Shetty, the representative of the Official Liquidator, that the machinery of Al-Qahtani also belonged to CBL and thus by making false representation as to the said machinery belonging to them, they have loaded the same in the trucks and they have taken the same. From the FIR lodged by the Official Liquidator it is quite apparent that Shri Shetty himself was a victim of misrepresentation by third parties. 15. From the minutes of the meeting recorded at the time of taking possession of the equipments by the representative of the Official Liquidator, it appears that the site was a 50 acres plot of land at Kandla Special Free Trade Zone and the plot did not have any compound wall though the Kandla Special Free Trade Zone has a Metallic Framed Netting. It also appears that it is a custom bonded area. From the statement of one P.S. Rao, who was deputed by the Court Receiver, recorded on 12th July, 2005 before the enquiry conducted by the office of the Regional Director, Western Region, it appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. So you are, therefore, directed to stay till the completion of handing over the machine to CBL and further one more order was issued and faxed to me on 5.8.04 to hand over deliver process of Pipes (398) to ONGC. Question: Do you have any knowledge during the course of handing over the machineries to CBL some other machineries was also picked up by bank people? Answer: I have no knowledge about the subject and in addition I was asked to sign delivery challan; what was mentioned in it was not known to me. The same process was being carried out on the directions of Shri Saraiya and OL and Dy. OL to whom I talked over phone during the period who also told me to sign the delivery challan. Question: Who authorised you to give delivery? Answer: Mr. Saraiya directed me while going that you should sign delivery challan. Question: Do you know what were the item that were being lifted from the premises by the CBL? Answer: I have no knowledge what were the items being lifted. In fact, it was job of Court Receiver. I was only directed to be physically present and sign the challans. Question: How long dismantling work took place? Answer: Dismantling and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period from 3.7.03 to 9.8.03, the representative of the Centurina Bank Mumbai (1) Shri Mahesh Rane and (2) Shri Srinivasan and their two representatives Shri D.K. Talwar and Shri Irshad alongwith the 20 labourers took away the machineries which were not marked with the word CBL and which were belonging to M/s. Al-Qahtani pipe and coating terminal and which they were knowing that it was not belonging to the Centurian Bank and intentionally for their personal benefit and without taking into the confidence the representative Shri S.M. Shetty of the Office of the Official Liquidator and without informing any thing, took away by cheating and by making fraud the machineries of M/s. Al-Qahtani pipe and coating terminal along with their CBL machineries of ₹ 4 crores appropximately in 51 Trucks engaged for the purpose of delivery of the machineries. As they have made the fraud, I on behalf of my office and as per the specific letter of the OL, dt.18.1.2004 would like to give my complaints against them and also against those whose names come in light during the course of investigation. The documents which I have submitted to the Police Station along with the complaint will be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iquidator also submitted that Shri Shetty was not given opportunity to cross examine Shri Kom, Shri Ansari, Shri Mohanan and Shri S.D. Patil because he had already admitted that he was guilty. The counsel relied upon the judgment in the matter of Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution vs. Educational Appellate Tribunal and another (1999) 7 SCC 332. The counsel also relied upon the judgment in the matter of State Bank of Patiala and others vs. S.K. Sharma (1996) 3 SCC 364 to submit that principles of natural justice cannot be reduced to any hard and fast formulae and at the most not giving him an opportunity to cross examine is only a voilation of a procedural provision and no prejudice has been caused to him. The fact is, the enquiry officer has called four gentlemen as witnesses and also relied on statement of three (one did not give his statement). We do not have the benefit to consider these statements as they are not available in records and proceedings before this court but at the same time it was necessary to make them available to cross examination by Shri Shetty. It should not be forgotten that Shri S.M. Shetty was in the post of a Grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank are removed by them I objected and stopped. When I informed them that I will report the matter to the Official Liquidator, if any machineries which are not belonging to them are removed, they threatened me that if I report such things to the Official Liquidator then they will put me liable for the same since I have also signed the delivery challans which were prepared by the representative of Centurion Bank, Mr. Mahesh Rane in his own handwriting. Since I have stopped and prevented them from lifting machineries other than of Centurion Bank Ltd., the machineries must have dismantled in my absence during early morning or in the night and after dismantling the machines it was not possible for me to identify the same as to the same belongs to Centurion Bank Ltd. or M/s. Al-Qahtani pipe coating terminal. Since there was no lock and seal at the premises the representatives of Centurion Bank Limited was able to enter the premises at any time. Further I never thought that the representatives of such a reputed bank will indulge in such heinous activities. In the above circumstances and with a belief that since I have stopped the representatives of Centurion Bank Limited from dismantli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with by the enquiry officer in his report. The enquiry officer has not mentioned anything about Shri Shetty's stand. Therefore, the enquiry report cannot be accepted as it is. 25. Relying on this enquiry report, the Official Liquidator has filed a further report dated 31st October, 2011 read with report dated 18th February, 2013 stating that Shri Shetty has admitted that machinery was being illegally removed from place where he was deputed. I do not find that he has admitted. Even assuming he has admitted and the enquiry report was correct, the Official Liquidator has not explained as to why the maximum punishment of termination has to be given to Shri Shetty. The enquiry officer has also stated he has considered the past record of the employee and there are no extenuating circumstances warranting any lenient view. This is nothing but a bald statement. He has not mentioned what should have been there if he had to take a lenient view. Has there been such an incident involving Shri Shetty before? Nothing is stated. In the scheme framed for the Company Paid Staff, the Official Liquidator has been authorised to take appropriate action against the Company Paid Staff guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied to public functionaries to recommend a punishment, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. He has to discern between right and wrong; and therefore, whoever, hath power to act is bound by the rule of reason and law. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself. The said recommendatory power has to be exercised fairly and bona-fide. 28. The suspension of an employee is injurious to his interest and must not be continued for an unreasonably long period. As no explanation whatsoever has been given for the unusual delay, infact there is not even an attempt to explain, it would be fair to make this assumption that the rights of Shri Shetty has been prejudiced due to unexplained delay. 29. The Apex Court in the judgment delivered as recently as on 16th December, 2015 in the matter of Prem Nath Bali vs. Registrar, High Court of Delhi and another Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the same time this court by its order dated 16th January, 2006 declined the prayer of resumption of regular employment to Shri Shetty. Hence Shri Shetty should be given all benefits including increments and promotion that he would have obtained during the period after 16th January, 2006 had he not been under suspension. His salary/emoluments to be fixed/determined accordingly. 31. In the circumstances, I have no hesitation in setting aside the inquiry report dated 20th May, 2011 of Shri N. Chinnachamy. In the given situation, I may have directed the Official Liquidator to conduct a fresh enquiry or file a fresh report factoring in all the points mentioned above and conferring another opportunity of being heard to Shri S.M. Shetty. In the facts of this case, I do not think it is necessary to do so mainly in view of the fact that it is almost 12 years since the incident and it is almost 12 years since Shri Shetty has been under suspension. 32. Since I am setting aside the enquiry report itself, the leave sought by the Official Liquidator in his further report dated 18th February, 2013 is declined. The suspension order of Shri S.M. Shetty is set aside. The Official Liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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