Andhra HC (Pre-Telangana)
Management Of Indian Airlines, ... vs Industrial Tribunal-I, Hyd. And ... on 8 March, 2001
Equivalent citations: 2001(2)ALD625, 2001(2)ALT726
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, CJ
1. This writ appeal by the Indian Airlines, represented by its Station Head, Begumpet, Secunderabad, is directed against the judgment and order dated 20-9-2000 passed by a learned single Judge of this Court in WP No. 13392 of 1999 whereby and whereunder the writ petition filed by the 2nd respondent herein was allowed in the following terms:
"Therefore, I am satisfied that the finding of the Tribunal that the enquiry was fair and proper was not legal and not sustainable. The violation of the Standing Orders of the Company is writ at large to the extent that the petitioner was denied the right of defence. In these circumstances, I set aside the award of the Tribunal insofar as it relates to the finding that the enquiry was fair and proper and hold that the enquiry is vitiated by violation of the Standing Orders. The writ petition is accordingly allowed and the matter is remanded back to the Tribunal to adjudicate the dispute on the merits of the case leaving open to the parties to adduce their respective evidence. The Tribunal shall afford an opportunity to the management to justify their action of dismissal de novo and also permit the petitioner to adduce his defence evidence. Thereafter, it shall passed the award basing on the evidence available on record and keeping in view the Standing Orders of the Company. This entire exercise shall be completed within a period of 3 months from the date of receipt of a copy of this order."
2. The writ petitioner, respondent No.2 herein, at the relevant time was working as Senior Security Guard in the Indian Airlines, Begumpet. A charge-sheet was given to him on 26-6-1991 alleging that he was absent from duty for 257 days. The respondent No.2 herein raised a defence that because of his mental illness, he could not attend the office. Being not satisfied with his explanation, a domestic enquiry was directed to be conducted. Pursuant thereto, notices were issued to him but he did not respond. A final notice had been issued calling upon him to attend the enquiry on 15-11-1991 which was received by him on 14-11-1991 at 6 p.m. Allegedly, he pleaded his inability to attend the said enquiry. But the enquiry was conducted ex parte against the 2nd respondent wherein the management examined its witnesses. The enquiry officer submitted a report holding that the charges levelled against the delinquent officer were proved. He was thereafter dismissed from service.
3. As at the relevant point of time a dispute with regard to the service conditions of Indian Airlines employees was pending with the National Industrial Tribunal, an application for approval of the said order in terms of Section 33(2)(b) of the Industrial Disputes Act was filed. Such approval was granted by the National Tribunal holding that the enquiry was fair and proper. An industrial dispute thereafter was raised which was referred for adjudication before the learned Tribunal. The learned Tribunal held that the domestic enquiry was fair and proper. But, having regard to the quantum of punishment, the Tribunal altered the punishment of dismissal from service to that of compulsory retirement by award dated 13-1-1999. The learned single Judge, having regard to the fact that the 2nd respondent was asked to attend the enquiry on 15-11-1991 by reason of notice dated 14-11-1991, held that the same was violative of the principles of natural justice. The learned single Judge referred to Standing Orders 25 and 26 for arriving at the conclusion that at least seven days notice ought to have been given.
4. Mr. K. Srinivasa Murthy, learned Counsel appearing on behalf of the appellant herein, inter alia, submitted that the learned single Judge committed an error in passing the impugned order insofar as he failed to take into consideration the admission of the 2nd respondent herein in his letter dated 6-5-1992. Learned Counsel would contend that the said letter was received in reply to the show-cause notice issued to the 2nd respondent herein by the management in terms of its letter dated 28-3-1992. Our attention has further been drawn to an order passed by the learned National Tribunal whereby it was held that the enquiry was in accordance with law and procedure and there was no violation of the principles of natural justice and the respondent No.2 avoided the enquiry on one pretext or the other.
5. Mr. Jaya Prakash Rao, learned Counsel appearing on behalf of respondent No.2-writ petitioner, on the other hand, submitted that whereas the charge-sheet was issued on 26-6-1991, the ex parte enquiry was held on 15-11-1991 and, therefore, it cannot be said to be a case where having regard to the admission made by the delinquent employee, it was not at all necessary to hold any domestic enquiry. It was submitted that once it is held that the principles of natural justice had not been complied with, the order of punishment cannot be upheld on any ground whatsoever. In support of his contention, reliance has been placed on the decision of the Supreme Court in Delhi Cloth and General Mills Co. Ltd v. Thejvir Singh, 1972 (1) LLJ 201. As regards the finding of the National Tribunal, it was submitted that observation made in a proceeding under Section 33(2)(b) of the Industrial Disputes Act, is not relevant having regard to the fact that the Industrial Tribunal could have come to a finding contra.
6. The procedure for holding domestic enquiry had been laid down in the Certified Standing Orders of the Corporation. Standing Orders 26 and 27 read thus:
"26. When there is a prima facie case against an employee or the explanation referred to in the Standing Order 25 is unsatisfactory, the competent authority shall take cognizance of the case and pass orders for initiation of disciplinary proceedings, which will be conducted as follows: (a) The grounds on which it is proposed to take action against the employee should be reduced into definite charges with a statement of allegation enumerating all the facts and circumstances on which the decision to start proceedings against him was taken. (b) The charges should be communicated to the official concerned in the form at Appendix I, alongwith the order of suspension if any, and he should be asked to put in by a prescribed date, a written statement of his defence, and to state whether he desires to be heard in person, cross-examine witnesses appearing against him and to adduce oral evidence in his defence. One week at least should be allowed for submitting written statement of defence, including details about cross-examination and production of witnesses and being heard in person.
27. After the written statement of the employee has been received, the enquiry officer shall give him a personal hearing, if the employee has requested the same. In case the employee has desired in his written statement, or the enquiry officer considers it necessary witnesses will be called and examined on such of the. allegations as are not admitted in the explanation. The person charged shall be allowed to produce documentary evidence in his defence to cross-examine the witnesses appearing against him and to examine any witnesses in his defence. All the proceedings will be recorded by the enquiring officer. But the enquiring officer may in his discretion refuse to call any witness for sufficient reasons which should be recorded in writing."
7. Before the Industrial Tribunal, the parties have adduced independent evidence. The Tribunal having considered the evidence and the entire material on record arrived at the following findings of fact: Despite service of notice, he did not send any explanation at the first instance. He did not respond to the notice of the enquiry officer. He was issued another notice Ex.M3 fixing the date of hearing as 29-10-1991. He received the same on 24-10-1991 but did not attend the enquiry. He submitted Ex.W2 medical certificate dated 20-10-1991 on the ground that he was advised complete rest for six weeks for hyper tension. It was found that there was no endorsement on Ex.W2 as to whom it was sent and the date of sending thereof nor any evidence was adduced that it was in fact received by any competent authority. MW1 the witness examined on behalf of the management deposed that he had no knowledge about the same. Thereafter another notice Ex.M4 was sent to him fixing the date of hearing as 15-11-1991 which was received by the respondent No.2 on 14-11-1991 at 6 p.m., but he did not participate in the enquiry. Though a medical certificate was said to have been sent to the security staff receipt thereof again was denied by MW1.
8. The learned Industrial Tribunal considered the material on records in great details and arrived at the following conclusion:
"I, therefore, feel having regard to the conduct of the petitioner that enquiry officer has no option except to proceed ex parte. As stated above, the petitioner adopting dilating tactics by sending medical certificate on the dates of having without endorsing on Exs.M3 and M4 notices that due to ill health he is not in a position to attend the enquiry on the dates fixed under them".
Having regard to the materials placed before it, the Industrial Tribunal had also come to the conclusion:
"In the result, I hold that I am satisfied that there has been proper and valid domestic enquiry into the charges levelled against the petitioner and principles of equity fair play and natural justice have been followed."
To the same extent is the finding of the National Industrial Tribunal which was marked as Ex.M18.
9. It may be true that it is not a case where the delinquent admitted his guilt prior to the initiation of the disciplinary proceedings. But the question which arises for consideration is having regard to the nature of charges, it was for him to show that he could not attend to his duties on the ground of his illness. In view of the findings of fact arrived at by the Tribunal, it would not be possible for this Court to arrive at a finding contra. It is further well known that the principles of natural justice are not embodied in a rigid formula and the same vary from case to case and from circumstance to circumstance. In the instant case, the petitioner admitted his guilt at the stage of second show-cause notice. He, therefore, was not prejudiced even if there was insufficiency of notice. Recently, this Bench in OA No.19 of 2001 (Ch. Anitha and 11 others v. State of Andhra Pradesh) speaking through one of us (S.R. Nayak, J.) held:
"Natural justice has two main limbs: (i) the right to a fair hearing, also known as the audi alteram partem rule which means that no one is to be condemned unheard; and (ii) the rule against bias, or, nemo judex in causa sua, i.e., no one may be a Judge in his own cause. These two concepts reflect and guards the values of fairness and impartiality. These two concepts are twin formidable pillars supporting natural justice. In order to decide whether in the instant case, fair hearing was given to the petitioners before the impugned adverse action was taken against them, it becomes necessary to know what does fair hearing, or, audi alteram partem envisage? What procedural safeguards are necessary so that hearing is not just a sham, but meaningful and fair? What are the norms or components of a fair hearing? Lord Bridge of Harwich in Lloyds and others v. Mc. Mohan, (1987) 1 All.ER 1118, has observed that "..... the so-called rules of natural justice are not engraved on tablets of stone". The Supreme Court in Rattan Lal Sharma v. Managing Committee, , opined that natural justice is not a fixed but a flexible concept, that there is no invariable standard of fair hearing and that each case has to be decided on its own merits. Further, in Mohinder Singh Gill v. Chief Election Commissioner, , the Supreme Court has emphasised that the standards of natural justice vary with situations "contracting into a brief even post-decisional opportunity, or expanding into trial-type trappings". The principles of natural justice are not 'embodied' rules and, therefore, it is not possible nor practicable to precisely define the parameters of natural justice; that the aim of these rules is to secure justice or to prevent miscarriage of justice and not to thwart justice; that there is no invariable standard of reasonableness in the matter of hearing and whether in a particular case natural justice has been contravened or not is ultimately for the Courts to decide. The Supreme Court in Union of India v. J.N. Sinha, AIR 1971 SC 41 and C.B. Boarding and Lodging v. Stale of Mysore, , opined that each case has to be decided on its own merits. In Mineral Development Ltd. v. State of Bihar, , the Supreme Court observed that concept of fair hearing is "an elastic one and is not susceptible of easy and precise definition". Again, the Supreme Court in FEDCO v. Bilgrami, , observed that there can be no invariable standard for reasonableness in such matters except that the Court's conscience must be satisfied that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him and that the ground on which the action is proposed are either non-existent, or even if they exist, they do not justify the proposed action. The core decision on this question will necessarily and invariably depend upon the peculiar facts and circumstances of each case, including the nature of the decision making body, the nature of the action proposed, the grounds on which the action is proposed, the materials on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him, his admissions by conduct or otherwise of some or all the allegations, the effect of the ruling made and all other matters which help the mind of the authority in coming to a fair conclusion on the question. In Maneka Gandhi v. Union of India, , the Supreme Court was pleased to observe:
"The rules of natural justice are not embodied rules. What particular rules of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case". In A.K. Roy v. Union of India, AIR 1982 SC 749, the Supreme Court talking of natural justice in the context of preventive detention has emphasised that rules of natural justice "are not rigid norms of unchanging context" and the ambit of those rules must vary according to the context and "they have to be tailored to suit the nature of the proceedings in relation to which the particular right is claimed as a component of natural justice". In K.L. Tripathi v. State Bank of India, AIR 1984 SC 597, the Supreme Court has again emphasised that whether any particular principle of natural justice would be applicable to a particular situation, or the question whether there has been any infraction of the application of that principle, has to be judged, in the facts and circumstances of each case. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just, fair and objective manner with regard to the relevance of the materials and reasons. Fair hearing does not stipulate that proceedings be as formal as in a Court. Undoubtedly natural justice is elementary justice, as distinct from complex or technical justice. Natural justice is not a replica of Court procedure; it only sets certain standards of procedural fairness. In A Treatise on Administrative Law by M.P. Jain (1996 Edition) at page 306, it is observed thus:
"..... It is regarded unwise to fully judicialise hearing procedures followed by adjudicatory bodies. Many a time, adjudicatory functions are cast on administrators. Their working will be very adversely affected if they are required to follow an elaborate and formal procedure and much of the rationale and justification of having adjudicatory bodies outside the normal Court system will evaporate in thin air if they are saddled with too judicial a procedure. Also, costs of administration will increase enormously. Therefore, the attempt is to keep the hearing procedure less formal consistent, however, with the minimal fundamental concepts of procedural due process so as to promote justice and fair play."
It was further noticed by one of us, Satyabratha Sinha, CJ., as under:
The principle of natural justice does not have a rigid formula. Natural justice has different facets - the requirement to comply with the principle of audi alteram partem and the extent thereof. The doctrine of natural justice does not contain any body of codified canons. As natural justice has a root in fairness the application thereof would certainly vary from case to case. When there are gross irregularities involving a large number of persons it may not be possible to give a personal hearing to each one of them particularly when the truth and substance of the matter can be found out from the record. Although natural justice to some of us is being considered to be part of Article 14, the concept has undergone a change. Although at one point of time non-compliance of the principles of natural justice was considered to be per se having a prejudicial effect, by and by the prejudice theory has been evolved by the Apex Court.
10. In Khaitan (India) Ltd. v. Union of India, Cal.LT 1999 (2) HC 478, it was observed:
"10. Assuming for the sake of argument that violation of the principles of natural justice has taken place, and thus, this Court may exercise its jurisdiction under Article 226 of the Constitution of India, a question would arise as to whether keeping in view the facts and circumstances of the case it would entertain the writ application.
11. The concept of principles of natural justice has undergone a radical change.
It is not in every case, that the High Courts would entertain a writ application only on the ground that violation of principles of natural justice has been alleged. The apex Court, in State Bank of Patiala and others v. S.K. Sharma, has clearly held that a person complaining about the violation of the principles of natural justice must show causation of a prejudice against him by reason of such violation. The Apex Court has held that the principles of natural justice, may be said to have been violated which requires an intervention when no hearing, no opportunity or no notice has been given. Reference in this connection may also be made to Managing Director, ECIL v. B. Karunakar, . The question as to the effect of non-grant of enough opportunity to the learned Counsel for the appellant by the Commission to meet the allegations made in the supplementary affidavit requires investigation. As to what extent the appellant has suffered prejudice would be a question which would fall for a decision of a Higher Court. Where such a disputed question arises, in the considered opinion of this Court, a writ application will not be entertained only because violation of natural justice has been alleged and more so, in a case of this nature where such a contention can also be raised before the Highest Court of India. A distinction has to be borne in mind between a forum of appeal which is presided by an administrative body and the Apex Court as an appellate Court."
11. Yet again in Kumaon Mandal Vikar Nigam Ltd. v. Girja Shankar Pant, AIR 2001 SC 24, Banerjee, J., speaking for the Bench observed:
"1. Since the decision of this Court in Kraipak's case A.K. Kraipak v. Union of India, one golden rule that stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge v. Baldwin, (1964) AC 40 very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances-who then is a reasonable man - the man on the clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin (supra) in not attributing a definite meaning to the doctrine but attributing it to be representing a fair procedure still holds good even in the millennium year. As a matter of fact this Court in the case of Keshav Mills Co., Ltd v. Union of India, , upon reliance on the attributes of the doctrine as above slaled as below (at pp.393 and 394 of AIR ):
'8. The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of natural justice cannot be put into a straight jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in Re. HR (an infant), (1967) 2 QB 617. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case (1964 AC 40) (supra) as "insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances". However, even the application of the concept of fair-play requires real flexibility. Every thing will depend on the actual facts and circumstances of a case. As Tucker, LJ observed in Russell v. Duke of Norfolk, (1949) 1 All ER 109:
"The requirement of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being deal with and so forth.
2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Straight-jacket formula cannot be made applicable but compliance of the doctrine is solely dependant upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the. vice of non-compliance of the doctrine, the law Courts in that event ought to set right the wrong inflicted upon the concerned person and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a Governmental action."
12. In view of our finding that the petitioner was not prejudiced in any way on account of insufficiency of notice and in view of the decisions referred to above, it cannot be said that the enquiry was conducted in gross violation of the principles of natural justice. We are, therefore, of the view that the decision of the Apex Court in Delhi Cloth and General Mills Co., Ltd. v. Thejvir Singh, 1972 (1) LLJ 201, relied upon by the learned Counsel for the respondent No.2 has no application to the facts of the present case.
13. There is another aspect of the matter which must be taken note of. In any event, for the purpose of grant of equitable relief by the High Court in exercise of the jurisdiction under Article 226 of the Constitution of India, the conduct of the petitioner also plays an important role. Where the conduct of a writ petitioner is such that it disentitles him from obtaining any equitable relief, this Court, may not interfere with the matter although it may be lawful to do so. In view of the fact that at least at one stage of the enquiry, the respondent No.2 had admitted his guilt and accepted the fact that he was absent from duty unauthorisedly and particularly having regard the findings of fact arrived at by the learned Tribunal, and also having regard to the fact that the Industrial Tribunal had already reduced the quantum of punishment of dismissal from service to that of compulsory retirement, this Court is of the opinion that it is not a fit case where the learned single Judge ought to have interfered with the matter.
14. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly and the award of the Tribunal is confirmed. The writ appeal is allowed. But, in the circumstances, there shall be no order as to costs.