Andhra HC (Pre-Telangana)
J. Nageswara Rao vs The Chairman-Cum-Managing Director, ... on 25 April, 1994
Equivalent citations: 1994(2)ALT162
Author: T.N.C. Rangarajan
Bench: T.N.C. Rangarajan
ORDER
T.N.C. Rangarajan, Adv.
1. This writ petition seeks to quash the order of removal passed by the disciplinary authority, and for a declaration that the petitioner is entitled to be reinstated as a supervisor in the Visakhapatnam Steel Plant.
2. The petitioner was initially appointed in Hindustan Steel Limited on 29-7-1967 and later transferred to the Visakhapatnam Steel Plant on 23-10-1980. Since 8-8-1984, he had been working in Jaggayyapeta Lime Stone Quarry, a unit of Visakhapatnam Steel Plant. On 8-5-1986, he was elected as the General Secretary of the Mines Employees Union at Jaggayyapet. Thereafter, he made certain complaints on 17-10-1986 to the Secretary, Steel and Mines, as well as the Prime Minister regarding the misuse of the public funds of the plant, and also filed writ petition No. 16849 of 1988 as a public interest case. On 12-12-1989, he resigned the post of General Secretary of the Employees Union. On 17-2-1990, a complaint was made by Sri V. Ravi Kumar, and on 19-2-1990, he was placed under suspension. A second complaint was received on 21-2-1990. An enquiry was conducted, and on 16-6-1990 he was removed from service. On 19-6-1990, he filed writ petition No. 8523 of 1990 questioning the remvoal order, which was dismissed on the ground that the petitioner should follow the alternative remedy of appeal. On 18-7-1990, the appeal was dismissed. On 6-9-1990, the petitioner gave an apology letter seeking reinstatement, and on 11-10-1990, order of contract appointment was given to petitioner. Even this led to Writ Petition No. 15280 of 1990, and under directions of the Court the joining report was submitted and the petitioner joined duty on 21-9-1991. He was given increments for the subsequent years and he made a representation for permanent appointment. When the contract appointment was about to expire on 20-9-1993, the petitioer filed this Writ Petition on 2-9-1993. The learned Single Judge made interim direction on 3-9-1993 in W.P.M.P. No. 16369 of 1993 allowing the petitioner to continue in the employment. However, on 29-9-1993, that interim direction was vacated and the petitioner filed the writ appeal No. 1118 of 1993. At the time of the hearing of the writ appeal, it was contended on behalf of the petitioner that he was being deprived of the livelihood by unfair means and therefore, his employment should be continued until the writ petition is disposed of. On the other hand, it was contended on behalf of the respondents that the employment was on contract basis and the petitioner had no right to continue once the period of contract came to an end. We then came to the considered opinion that it would be appropriate to hear the writ petition itself.
3. The learned Counsel for the respondents thereafter took a preliminary objection that the bench of this Court hearing the appeal under the Letters Patent over an interim order passed by a learned Single Judge in the writ petition could not by itself hear the writ petition but could only direct the single Judge to hear the writ petition. It was submitted that the jurisdiction of the bench hearing the writ appeal against the interim order was confined to the legality or correctness of the interim direction and the subject of the appeal could not be enlarged to hear the writ petition itself. It was submitted that by doing so, the respondents were being deprived of the right of appeal under the Latters Patent and therefore, the writ petition should not be heard by the bench and it should be heard only by the single Judge in accordance with the Writ Proceedings Rules, 1977.
4. On the other hand it was contended on behalf of the petitioner that the question of hearing the writ petition by the bench was a matter of judicial discretion considering the interests of justice and when a bench could hear a writ petition on a reference by the learned single Judge, there was no reason why the bench should not by itself hear the writ petition. It was pointed out that when a writ petition is referred to a bench by a single Judge, the right of appeal under the Letters Patent is lost any way and therefore, the respondents could not cimplain of such a loss when the bench itself chooses to hear the writ petition.
5. We have carefully considered this preliminary objection and we have no doubt in our mind that it has to be over-ruled. The hearing of writ petitions is regulated by the Writ Proceedings Rules, 1977.Rule 14(a) provides that certain writ petitions relating to Habeas Corpus, elections and taxes are to be heard by a bench of two Judges. Rule 14(b) provides that every other petition shall be posted before a single Judge, who may, if he thinks fit, refer any of them to a bench of two Judges. There is a similar provision in respect of the rules relating to petitions under Article 227 of the Constitution where Rule 2 states that the said petitions may be posted for admission before a single Judge dealing with the writ petitions, and the Judge may, if he thinks fit, refer it to a bench of two Judges. It also reserves the power of the Chief Justice to direct any application under Article 227 to be posted before a bench of two Judges, such a power being absent in the case of petitions under Article 226. The analagous provision in the Appellate side Rules is Rule 1 which lists out the cases to be heard by a single Judge and provides that that Judge may at any time adjourn it for hearing and determination by a bench of two Judges. Now, Clause 15 of the Letters Patent as applied to this court states that an appeal shall lie to the said High Court from a judgment of one Judge of the High Court made under the original jurisdiction. But there is no provision for an appeal against an order of a single Judge in a petition under Article 227. It is in this context that the Supreme Court observed in Umaji v. Radhikabhai, that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the Court ought to treat the application as being made under Article 226. The learned Counsel for the respondents relies heavily on this observation to contend that by the Bench itself hearing the writ petition, the valuable right of appeal would be lost. But, that was a case where there is choice of remedies and the Supreme Court, recommended the adoption of a fair procedure which will ensure the right of appeal. In the present case, we are concerned with a completely different situation. Rule 14(b) of the Writ Proceedings Rules provides that the learned single Judge may, if he thinks fit, refer a writ petition to be heard by a Division Bench. If he does so, the respondents cannot complain of the loss of the right of appeal because that will be in exercise of the power specifically conferred by the rule. The only objection of the respondents is that that power cannot be exercised by the Bench but it can only be exercised by the learned single Judge. There are two reasons why this objection cannot stand scrutiny. Under Article 36 of the Letters Patent, any function which is directed to be performed by the High Court in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof and, therefore, the powers of the Judges of the Court are co-extensive and when a power can be exercised by one Judge, there is no reason why it cannot be exercised by two Judges sitting together in the absence of a specific statutory provision forbidding such a course of action. Secondly, an appeal is nothing but a continuation of the original proceedings, (see Mahadeo v. S.K. Srivastava . When the single Judge was hearing the W.P.M.P. he could have referred the main petition itself to the Division Bench for hearing. The Bench which hears an appeal against the order made in W.P.M.P., is exercising the same power which the single Judge excercises in hearing the W.P.M.P., and would therefore, retain the same power which he had to make reference of the main petition itself to a Division Bench. One of the conclusions that we have arrived at in deciding the appeal against the order of learned single Judge in W.P.M.P. is that justice cannot be rendered without hearing the writ petition and in order to say that the petition is effectively and properly disposed of, it would be a fit case to be heard by a bench of two Judges. This decision is taken in exercise of the judicial discretion and accordingly. The power reserved for a single Judge under Rule 14(b) of The Writ Proceedings Rules, 1977 enures to the bench of two Judges to hear the writ appeal against the interim direction. Therefore, in exercise of such judicial discretion, we over-rule the preliminary objection of the respondents and decided to hear the main writ petition itself. It is also to be noted that unlike in the case of an application under Article 227, which has to be sent to the bench only by the learned Chief Justice, there is no provision in the rules relating to petitions under Article 226, that for the bench hearing the appeal against an order of the learned Single Judge in W.P.M.P. to hear the main writ petition, it has to be sent to the bench by the learned Chief Justice.
6. Coming to the merits of the writ petition, the learned counsel for the petitioner submitted that the appellate order confirming the removal of the petitioner from the service of the respondents, was vitiated on six grounds. It was submitted firstly that the petitioner was entitled to the assistance of any worker under the Standing Order 30(2), whereas it was unnecessarily restricted to the worker in the particular plant and was thus deprived of proper assistance. Secondly, it was submitted that under the Conduct, Disciplinary and Appeal Rules, where the employee does not plead guilty, the case was to be adjourned for a period of thrity days to enable the inspection of the documents and preparation of the case, which had been denied to the petitioner by conducting the enquiry forthwith. Thirdly, it was submitted that the evidence on record relating to the charges made against the petitioner was unsatisfactory and did not lead to an irresistible inference that the petitioner had committed such misconduct. Fourthly, it was submitted that copy of the enquiry report was not given to the petitioner before the passing of the removal order, in spite of his request. Fifthly, it was submitted that opportunity was required to be given before imposing the punishment and failure to give such an opportunity vitiated the order of removal. Lastly, it was submitted that the petitioner had an unblemsihed record throughout his career before the complaint was made and against after the re-appointment, and it was only because he had certain complaints of misuse of funds that these proceedings had been initiated to teach him a lesson. It was submitted that for all these grounds, the order of removal was required to be cancelled.
7. On the other hand, it was contended on behalf of the respondent that by giving the letter of apology and accepting the contract appointment for a period of two years, the petitioner had acquiesced, waived and abandoned any remedy against the order of removal. It was also submitted that the conduct Rules were not applicable, but only the Standing Orders were applicable as the petitioner was taken to be a workman, and the procedure followed was strictly in accordance with those standing orders and they did not provide for giving a copy of the enquiry report or opportunity before imposing the punishment. Thirdly, it was submitted that the petitioner had filed a writ petition earlier with regard to the same matter and hence, this writ petition was not maintainable. It was pointed out that the decision of the Supreme Court regarding the opportunity before punishment, in Union of India v. Mohd. Ramzan Khan, was applicable to orders of punsihment passed after 20-11-1990, and as the order of removal in this case was made before that date, the petitioner was not entitled to the benefit of the case.
8. We have considered the submissions of both the sides and the merits of the case, and we find that the order of removal was tainted by victimisation, and cannot be upheld. The very first complaint by Sri Ravi Kumar was that the petitioner came to the Guest House on 17-2-1990 at 9-30 p.m., in a drunken condition and abused him . That complaint mentions that earlier there was disorderly behaviour in the office of Ravi Kumar on 6-2-1990, for which there was no contemporaneous complaint at all. The petitioner had submitted that he was undergoing treatment in Sri Dhanwantri Nursing Home on that date. There is the certificate of the doctor dated 18-2-1990 stating that the petitioner was treated as an in -patient and was discharged on 18-2-1990 at 7-30 p.m. There is another certificate dated 30-4-1990 stating that the petitioner was in an anxiety stage and was recovering fairly well, but meanwhile, in view of his indecent behaviour within the hospital premises in an intoxicated condition, he was asked to leave the hospital at about 7.30 p.m., on 17-2-1990. This is indeed strange that an in-patient was discharged on the ground that he was in an intoxicated condition. How was it that an in-patient was able to become intoxicated when he was under the treatment of a doctor; and how was it that the doctor discharges him from the hospital when he finds that the condition of the patient was not normal. Even with regard to the behaviour of the petitioner on 6-2-1990, the evidence of Ravi Kumar itself is that the petitioner had some allergic condition in his hand the previous day for which he had taken him to the hospital for treatment and misunderstanding arose with regard to the medical advance for purchasing the medicines prescribed. Further, there is no formal complaint about that behaviour at that time. The second charge is that when the suspension order was sought to be served on the petitioner on 21-2-1990, he hit out on the person who brought the notice to serve on him. He is supposed to have hit that person through the window. It is pertinent to note that at the relevant time, the petitioner had been diagnosed as suffering from "manic -defnessive psychosis" by The Nizam's Institute of Medical Sciences vide out -patient card dated 24-2-1990. Even assuming that the petitioner did react violently to the service of the suspension order, his condition of health cannot be ignored. In fact, he had taken this point in appeal as a ground to contend that in view of his health condition, the failure to give a proper opportunity and proper assistance to conduct his case, deprived him of adequate representation. We find that the appellate order has glossed over this aspect while differing from the findings of the disciplinary authority that his record of service was not clean. Considering the background of the petitioner that there had been no such complaints on any earlier occasion and that this complaint is given for the first time over a long period of service, one would have thought that as an enlightened employer, the respondents would have considered the health condition of the petitioner as a mitigating factor, and arranged for treatment rather than punishment. No doubt, the proceedings have been conducted formally in accordance with the Standing Orders, and perhaps in view of the Judgment relied on by the respondents, the petitioner cannot demand for a hearing on the enquiry report and an opportunity before the imposition of punishment since the order of punishment was made prior to 20-11-1990. Yet a lingering odour of victimisation pervades the entire proceedings as they have been commenced shortly after the petitioner laid down his office as the Secretary of the Union.
9. The petitioner has also established that there are procedural irregularities which vitiated the proceedings. Even though the petitioner claimed that he was governed by the disciplinary rules. It is now not in dispute that the petitioner was treated as a workman and was therefore governed by the Standing Orders since he was working in a plant. Standing Order No. 30.3 provided that a workman may be allowed to take the assistance of any other workman of the project plant or an office bearer of the trade union who is an employee of the company of which he is member, to present the case on his behalf. The learned counsel for the respondents contended that the words 'project/plant' must be read disjunctly so that the petitioner was entitled to the assistance of only another worker in the same plant where he was working. We are unable to accept such a restrictive reading of this standing Order. The case of the petitioner was that other employees of the same plant were subjected to the control of those who are conducting the enquiry and would not be in a position to defend him fearlessly. He wanted the assistance of any other employee of the company itself and in our opinion that request was quite reasonable and should not have been denied.
10. With regard to the second objection taken by the petitioner, no doubt the Standing Order, unlike the disciplinary rules, does not provide for an adjournment for inspection of documents and preparation of the case. Yet it is seen that the enquiry officer had issued a notice on 20-4-1990 and commenced the enquiry on 9-5-1990 and concluded the same on 12-5-1990 giving his report on 29-5-1990. The petitioner has not made out any specific case of lack of opportunity with regard to the documents or presentation of evidence.
11. The third point with reference to the inference drawn from the evidence cannot be gone into in a Writ Petition.
12. With regard to the fourth point regarding the supply of the copy of the enquiry report, the learned counsel for the respondents submitted that there was no such requirement in the Standing Orders except Standing Order No. 30.5 which was for the purpose of filing an appeal if the employee concerned requested for the same. A reading of the Standing Orders shows that Standing Order No. 28.2 specifically provides that in respect of minor punishments such as censure, fine and suspension without pay, it is to be imposed after giving an opportunity to show cause why such a punishment should not be imposed implying that there is to be no enquiry prior to the same. With regard to the other punishments, Standing Order No. 28.3 states that they shall be made only after holding an enquiry and under Standing Order No. 30.4 the disciplinary authority shall consider the record of the enquiry, record its conclusions on each charge and pass appropriate orders. Standing Order No. 30.5 to provides that copies of all relevant documents in connection with enquiry such as enquiry proceedings, findings of the enquiry officer, etc., shall be supplied by the management to the employee concerned on request. This item is part of the procedure for imposing punishment given in Standing Order No. 30 and if it be read together, it leaves us with the impression that the workman is entitled to a copy of the enquiry report before the orders are passed. In the present case, the petitioner asked for a copy of the enquiry report by letter dated 22-5-1990 followed up by a telegram dated 31-5-1990. The reply given on 1-6-1990 was that the copy will be given as and when it is ready. Curiously, the enquiry report was dated 29-5-1990 and the order of removal was passed on 6-6-1990. When a specific request was made for the enquiry report which was available on that date and the order of removal had not yet been passed, there was no justification for denying a copy of the report to the petitioner. Thus, there was a clear violation of the principles of natural justice. Coupled with the fact that the unblemished earlier record of the petitioner had not been taken into account, it indicates a predisposition to conclude the proceedings against the petitioner.
13. The stand taken by the respondents regarding acquiescence and waiver follows the same pattern. After the dismissal of the appeal, the petitioner met the Chairman of the respondent company on 25-7-1990 and 5-9-1990 and on 6-9-1990, he wrote a letter stating that he was sorry for his conduct and that he will improve his behaviour and pleaded for reinstatement in the job. On 11-10-1990, an offer was made for appointment on contract basis after considering the application of the petitioner. The petitioner accepted the contract under protest and immediately the appointment was withdrawn. The petitioner came to this Court in Writ Petition No. 15280 of 1990. The prayer in that petition was to set aside the order of removal dated 16-6-1990. But, the order made by this court on 9-11-1990 was that the review application made by the petitioner should be considered, and irrespective of that direction, the petitioner maybe permitted to join service uncoditionally in terms of the offer made earlier. There was again a dispute about the undertaking to be given and it was then resolved by the court by order dated 20-9-1991 in Contempt Case No. 189 of 1991, and thereafter the petitioner joined the service. The review petition of the petitioner was subsequently rejected by order dated 21-2-1991. Though petitions dated 25-7-1990 and 6-9-1990 pleaded for reinstatement on the basis of 23 years of spotless service not a word is mentioned in the order of review regarding his past service. The learned counsel for the petitioner has drawn our attention to the decision of the Supreme Court in Rama Kant Misra v. State of U.P., wherein it was held that indiscreet, improper and abusive language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct during fourteen years of service, would not permit an extreme penalty of dismissal from service. It is apparent from a perusal of record in this case also that the punishment given was grossly disproportionate to the misconduct alleged which was itself mitigated by the condition of health of the petitioner. In this background, we are unable to accept the contention of the respondents that the present petition is not maintainable because of the filing of the earlier petition or that the petitioner had abandoned his remedy by accepting the contract employment. The earlier petition was dismissed on the ground that the review was pending and therefore was considered premature. The contract employment was permitted by this Court as an interim measure pending consideration of the review petition. Neither of these could be considered to have the effect of cancelling the right of the petitioner to question the order of removal. In fact, by the offer of contract employment the petitioner was lulled and gulled.
14. The learned Counsel for the respondents submitted that the prayer in the ealrier Writ Petition No. 15280 of 1993 was to set aside the removal order dated 6-6-1990 as confirmed by the appellate order dated 18-7-1990 and to reinstate the petitioner, and when that Writ Petition was dismissed it must be taken that he had waived the right to question that order and it also operated as res judicata. As we already noted above, this Court by order dated 9-11-1990 took into account the fact that the review petition was pending and directed that the Chairman-cum-Managing Director may pass appropriate orders on that application. Irrespective of the above direction, the petitioner was allowed to accept the offer of contract employment. In other words, that petition was dismissed as premature and the contract of employment was given as an interim measure of relief. The Supreme Court has held in the case of Central Inland Water Transport Corporation Limited v. Brojo Nath, that a contract employment is opposed to public policy in the case of a State undertaking. In the light of that decision, it is obvious that this offer of contract employment was an instance of superior bargaining power and fundamentally unfair. The mode of making effective provision to secure right to work cannot be by giving employment to a person and then without any reason throwing him out of employment and the action of a State agency in those terms is violative of Article 14 and opposed to Directive Principles of State Policy as held by the Supreme Court . It follows that the acceptance of such offer of contract employment cannot amount to a waiver of the right to appeal against an unfair order of dismissal made earlier. Since the earlier writ petition was rejected practically as premature, the review petition being under consideration, the petitioner was entitled to come to this court with a fresh petition after the rejection of that review petition and this petition cannot be precluded by any principle of res judicata or waiver on that account.
15. For these reasons, the impugned order of removal passed by the disciplinary authority as confirmed in appeal and review is quashed and the petitioner is directed to be reinstated forthwith, with full backwages and other consequential benefits including seniority. The writ petition is accordingly allowed with costs. Advocate's fee Rs. 500/-. No orders are necessary in the Writ Appeal, and accordingly it is closed.