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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