Delhi High Court
R.L.Moria vs Chairman-Cum-Managing Director Ial & ... on 14 May, 2010
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 14.05.2010
+ CWP No.7284/1999
R.L.MORIA ...Petitioner
Through: Mr.R.K. Singh & Ms.Deepa Rai,
Advocates.
Versus
CHAIRMAN-CUM-MANAGING DIRECTOR
IAL & ORS. ...Respondents
Through: Mr.Jayant Nath,Sr. Advocate with
Mr.Upender Thakur,
Mr.Amish Tandon, Advocates.
AND
CWP No.151/2005
R.L.MORIA ...Petitioner
Through: Mr.R.K. Singh & Ms.Deepa Rai,
Advocates.
Versus
CHAIRMAN-CUM-MANAGING DIRECTOR
NATIOIAL AVIATION COMPANY OF INDIA LTD.
...Respondent
Through: Mr.Lalit Bhasin,Ms.Ratna Dhingra
& Ms.Shreya Sharma, Advocates.
AND
CWP No.6576/2005
INDIAN AIRLINES LIMITED ...Petitioner
Through: Mr.Lalit Bhasin,Ms.Ratna Dhingra
& Ms.Shreya Sharma, Advocates.
Versus
UNION OF INDIA & ANR. ...Respondents
Through: Mr.R.K. Singh & Ms.Deepa Rai,
Advocates for R-2.
CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 1 of 23
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. By this common order, I shall dispose of the following three petitions:-
(i) CWP No.7284/1999 filed by the petitioner R.L.Moria challenging the order of his dismissal dated 11.8.1999. This writ petition had been disposed of on the first date of filing i.e. on 6.12.1999 with direction to respondent to decide the statutory appeal of the petitioner within eight weeks from the said date; if the petitioner was aggrieved with the outcome of the statutory appeal he would be at liberty to approach this Court for the revival of the petition. Statutory appeal of the petitioner was dismissed on 13.1.2000. The present writ petition was revived on his application.
(ii) CWP.151/2005 filed by petitioner R.L.Moria challenging a part i.e. para no.9 of the order passed by the National Industrial Tribunal dated 20.8.2004 whereby on the application under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as "the said Act") filed by the employer, the National Industrial Tribunal set aside the finding of the Enquiry Officer CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 2 of 23 dated 11.8.1999 and at the same time granted liberty to the department to lead additional evidence.
(iii) CWP No.6576/2005 filed by the petitioner i.e. the Indian Airlines impugning the order passed by the National Industrial Tribunal dated 20.8.2004 whereby the findings of the Enquiry Officer and the Appellate Court had been set aside; thereby setting aside the order of dismissal of R.L.Moria on the ground that there has been a violation of principles of natural justice and the order is perverse. The contention of the petitioner herein is that the scope of enquiry by the Tribunal under the provisions of 33(2)(b) of the said Act is limited; it was not an Appellate Court.
2. The facts of the case are as under:-
(i) Petitioner R.L.Moria had joined Indian Airlines as a Daftary on 8.7.1963. At the relevant time he was working in the store and supply department as a superintendent in Grade 7/8.
(ii) On 10.3.1993 officials of the department of Enforcement apprehended Sandeep Moria (son of the petitioner), Anita Moria (daughter-in-law of the petitioner), Umesh Bhatia and Sonu Shaskar, passengers travelling on Interline Passage Facility of the company at the IGI Airport.
(iii) On 19.3.1993 on a prima facie finding of the involvement of the petitioner, the petitioner was CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 3 of 23 suspended. This suspension was subsequently revoked on 15.6.1994.
(iv) During this period i.e. between 1993-95 CBI conducted an enquiry and in the course of the enquiry interrogated various officials of the Indian Airlines. Involvement of high officials in the racket of misuse of free interline tickets was revealed. As per the procedure, airline employees who are in Grade-17 or above and their dependents coming within the ambit of „family‟ were alone entitled to confirmed tickets with the Air India. A list of such employees was maintained.
(v) Allegations against the petitioner were that he not being in Grade-17 or above had represented himself as a finance manager whereas he was only a store superintendent and had procured interline tickets for his two daughters-in-law namely Rakhee and Anita who did not fall within the definition of „family‟.
(vi) On 18.10.1995 charge sheet was issued to the petitioner. It was alleged that during the period January,1993 to March 1993 R.L.Moria had through his friend Mahesh Chandra Sahdev working in the Air India had got processed four Indian Airlines Interline requests in favour of Anita Moria and Rakhee Moria shown as his daughters as also for his two sons Sandeep Kumar and Vijay Kumar for the Delhi-Singapore-Bombay-Delhi Sector. Further the petitioner not being in the category CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 4 of 23 of Grade-17 or above was not entitled to free confirmed tickets of Air India; Anita Moria and Rakhee Moria were his daughters-in-law who had been described as his daughters.
(vii) Enquiry Officer submitted its report dated 18.10.1995. During the course of enquiry six witnesses were examined by the department which included J.S. Emanuel, Investigating Officer of the CBI and M.C.Sahdev, Senior Officer in Air India. Cross- examination of both these witnesses could not be concluded. Petitioner was held guilty of misconduct under Clause 16(3), 6(4) and 16(8) of the Rules & Standing Orders applicable to him.
(viii) On 13.1.2000, the Appellate Authority endorsed the findings of the Enquiry Officer and held that the order of removal of the petitioner did not merit any change. Appeal was dismissed.
(ix) The respondent filed an application under Section 33(2)(b) of the said Act before the National Industrial Tribunal, Mumbai seeking approval of the findings of the Enquiry Officer dated 11.8.1999 removing the petitioner from service.
(x) The Tribunal vide its judgment dated 20.8.2004 set aside the report of the Enquiry Officer on the ground of the violation of principles of natural justice holding that the findings of Enquiry Officer were perverse. The CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 5 of 23 company was granted opportunity to lead additional evidence before the Tribunal.
3. This order of the National Industrial Tribunal dated 20.8.2004 has been assailed both by the employer and the employee i.e. by the Indian Airlines as also R.L.Moria in two separate writ petitions i.e.CWP No.6567/2005 filed by the employer i.e. the Indian Airlines and CWP No.151/2005 filed by the employee i.e. R.L.Moria.
4. R.L.Moria, the petitioner, (in his first writ petition i.e. CWP No.7284/1999) had assailed his order of dismissal dated 11.8.1999; it was submitted that the findings of the Enquiry Officer are violative of his fundamental rights guaranteed under Articles 14 and 16 of the Constitution. The said disciplinary proceedings are also vitiated by inordinate delay which was solely for the purpose to destroy the evidence in the intervening period in order that the petitioner does not get a fair opportunity to defend himself; original documents had not been produced; petitioner had been discriminated as similar allegations of procuring N1 tickets had been leveled against various other co-employees but none of them had been charge sheeted; findings of the Enquiry Officer are perverse.
5. In the second writ petition CWP No.151/2005), petitioner R.L.Moria had assailed para no.9 of the order of the National Industrial Tribunal, Mumbai dated 20.8.2004 wherein the company had been granted opportunity to adduce additional evidence. It was submitted that the order of the Tribunal was CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 6 of 23 grossly violative of Articles 14, 16 and 21 of the Constitution. The well established parameters to consider an application under Section 33(2)(b) of the said Act had been given a go-by. Tribunal had failed to consider as to whether the application made by the management was bonafide or not; additional evidence, if any, must be led by the management before the proceedings are concluded under Section 33(2)(b) of the said Act; claim to lead additional evidence cannot be granted as a matter of right. The Tribunal had granted such leave to the management in a mechanical fashion.
6. The management was also aggrieved by the impugned order dated 20.8.2004 passed by National Industrial Tribunal. In the writ petition CWP No.6576/2005) filed by the management it was submitted that jurisdiction of the Tribunal under the aforestated provision of law is narrow; evidence led before the Enquiry Officer could not have been re-appreciated and findings of the Enquiry Officer could not have been substituted by the findings of the Tribunal; Tribunal was not appellate forum. Tribunal had ignored the evidence led before the Enquiry Officer i.e. the confessional statement made by R.L.Moria; the confession has till date had not been retracted; documentary evidence had also been overlooked; Tribunal had failed to appreciate that the testimony of PW Emmanuel and PW Sahdev could not be overlooked as their cross examination could not be completed because of the fault of R.L. Moria himself for which he could not take advantage. Vital evidence CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 7 of 23 had been ignored by the Tribunal in setting aside the order of the Enquiry Officer.
7. Arguments have been heard in detail and counsel for both the parties has led this court through the detailed reports i.e. the report of the Enquiry Officer, the evidence led before him both oral and documentary.
In his conclusion (on internal page no. 9) he had concluded as follows:
"CONCLUSION Based on the foregoing the following gets clearly established: -
1. Shri R.L.Moria had asked for interline tickets in respect of self and his two daughter-in-laws Mrs. Anita Moria and Mrs. Rakhi Moria declaring them as daughters and not as daughter-in-laws though he knew very well that Mrs. Anita Moria and Mrs. Rakhi Moria were his daughter-in-law and not daughters.
2. Shri R.L. Moria was aware that his daughter-in-law Mrs. Anita Moria wife of Sh. Sandeep Moria was travelling to Singapore on 10.03.1993 on the interline tickets which was issued along with the tickets of the defendant and Mrs. Rakhi Moria has other daughter-in-law.
3. Interline tickets in respect of Sh. Sandeep Kumar, Sh.
Umesh Bhatia, Mrs. Anita Moria and Mrs. Sonu Shahskar were made on the basis of interline requests signed by Sh. Baldev Kumar of IAL and approved by Mrs. G. Clair of Air India after their processing by Shr. M.C. Sahdev of Air India.
4. Shri Sandeep Kumar definitely give some interline requests out of the four to Sh. M.C. Sahdev for issuance of interline tickets.
5. Sh. M.C. Sahdev delivered some interline tickets which included tickets of Mrs. Anita Moria, Mrs. Rakhi Moria and Mr. R.L. Moria at the residence of Mr. R.L. Moria.
It could however not be established that
1. Sh. R.L.Moria introduced his son Sh. Sandeep Kumar to Sh. M.C. Sahdev of Air India.
CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 8 of 23
2. Shri R.L. Moria accompanied Sh. Sandeep Moria and Anita Moria to the airport on 10.03.1993.
3. Sh. R.L. Moria or Sh. Sandeep Kumar arranged the tickets of Sh. Umesh Bhatia and Mrs. Sonu Shashkar.
4. Sh. R.L. Moria was aware that the interline tickets were made on the basis on reciprocal list of which he was not entitled.
5. Sh. R.L. Moria was given some interline tickets at his residence by Sh. M.C. Sahdev of Air India.
Shri R.L. Moria, therefore, knowingly obtained interline tickets in respect of his two daughter-in-laws namely Mrs. Anita Moria wife of Mr. Sandeep Moria and Mrs. Rakhi Moria wife of Mr. Vijay Kumar wrongly declaring them as his daughter. Out of these, Mrs. Anita Moria tried to utilise the said ticket on 10.03.1993 and Shri R.L. Moria was aware of this.
Charges levelled against Sh. R. L. Moria, Stores and Supplies Supdt. Staff No. 277444, IAL, N.R. vide chargesheet no. DSD/154/1204 dated 18.10.1995 stand proved only to the extent stated above. Rest of the changes levelled against him do not stand established."
8. Statutory appeal of the petitioner was dismissed vide order dated 13.1.2000.
9. The National Industrial Tribunal, Mumbai set aside the findings of the Enquiry Officer. Evidence of PW Emmanuel had been discarded. On internal page no. 5 of the said judgment, it was inter alia held as follows:
"It was rightly argued that in case the cross-examination was not concluded the value of evidence of J.S.Emmanuel, Inspector (CBI) was of no consequence. In the opinion of this Tribunal the Enquiry Officer should have refrained from considering the evidence of this witness for any purpose. It was further pointed out that at page 34 of enquiry proceeding on 16.9.1998 observed as follows:
"I would new request you to proceed with the cross-examination of Sh.Emmanuel taking the certified copies as original. If originals are not produced in the enquiry the same will not be relied upon by me. You are also requested to confine your cross-examination of Management witness to his deposition in this enquiry".
"I once again request you to proceed with the cross examination taking the certified copies as CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 9 of 23 originals till originals are shown to you before conclusion of the enquiry. If however, originals are not shown before conclusion of the enquiry the same will not be relied upon. The reciprocal list has been accepted as Management Exhibit and marked ME."
Despite the above assertion original were not produced by the witnesses and the Company. In view of this matter too there was no effective cross-examination. This Tribunal is of the view that the entire cross- examination was of no consequence, as the original were never produced. In view of this matter the evidence of J.S.Emmanuel should have been rejected in toto. However, the enquiry officers not only made in summary of the evidence in his enquiry report but also considered it for the purpose of recording the findings. Certainly the principles of natural justice were violated."
10. The question which now arises for decision is whether the Tribunal could have re-appreciated and gone into findings of the Enquiry Officer in the manner in which it had done so in view of the limited scope of the provisions of Section 33(2)(b) of the said Act as has been contended by the learned counsel for the management.
11. Learned counsel for the management has relied upon Cholan Roadways Ltd. Vs. G. Thirugnanasambandam AIR 2005 SC 570 to substantiate her submission that the jurisdiction of the Industrial Tribunal under Section 33 (2)(b) of the said Act is a limited one. Reliance has been placed upon para 13 and para 15 of the said judgments which inter alia reads as follows:-
13. It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one.
The jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act. In this case admittedly an enquiry has been held wherein the parties examined their witnesses.
..............................
CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 10 of 23
15. It is now a well-settled principle of law that the principle of evidence Act have no application in a domestic enquiry."
It has further been held:
"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. v. The Workers of the Company (1952) LAC 490(F)."
12. In Bareilly Electricity Supply Company Ltd. v. The Workmen and Others, AIR 1972 SC 330 MANU/SC/0501/1971, it had inter alia been held as follows :
"Now it is no doubt true that the evidence of the Respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by Tribunal even though they may be judicial in character. The law requires that such Tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that which obtains in a Court of law."
13. In the Martin Burn Ltd. v. R.N. Banerjee AIR 1958 SC 79, MANU/SC/0081/1957, the Apex Court commenting on the powers of the Tribunal under Section 33(2)(b) of the said Act had inter alia held as follows:-
"While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent; keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 11 of 23 employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act."
14. Per contra, counsel for R.L.Moria has relied upon a judgment of the Supreme Court reported as Karnataka State Road Transport Corpn. v. Lakshmidevamma (2001) 5 SCC 433, where the Constitution Bench of the Supreme Court had held that the procedure laid down in the Shambhu Nath Goyal (1984) 1 SCR 85 is just and fair and requires no variations. It was further held that the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court was an alternate plea for the management and not as an admission of any illegality in its domestic enquiry; it was also of advantage to the workmen inasmuch as they would be put to notice of the fact that the management is likely to adduce fresh evidence and hence they could keep their rebuttal and other evidence ready.
It had been observed further :
But this should not be understood as placing fetters on the powers of the court / tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice."
15. Counsel for the petitioner has relied upon this proposition to advance a submission that it was only till the stage when the proceedings before the Tribunal were pending, could the company be permitted to lead evidence and not after the closure of the proceeding before the Tribunal. Attention has CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 12 of 23 been drawn to the orders of the Tribunal dated 05.03.2003, 25.04.2003, 13.06.2003, 25.07.2003 and 28.08.2003 wherein time was sought by the management on all the aforenoted dates to file their affidavit. On 08.04.2004 the management had made a statement that they did not wish to lead any oral evidence. It is submitted that the management having given up their right to lead any evidence before the Tribunal and the judgment cited supra also allowing the management to lead additional evidence only till the time of closure of the proceeding before the Tribunal, the order of the National Industrial Tribunal permitting the management to lead additional evidence is illegal not only in law but also on facts as it was the department itself who had made a statement that they do not wish to lead any oral evidence.
16. What necessarily follows is that when the Enquiry Officer‟s report is a well considered document wherein he had examined the evidence adduced before him and he has given reasons in support of his final conclusion; it is not open to the Industrial Tribunal to sit in appeal over the findings of such an Enquiry Officer and to re-appreciate the evidence for itself. The Tribunal cannot withhold its approval merely because it could have arrived at different conclusion of facts by appreciation of the same evidence. All that the Tribunal had to see was as to whether the employer had conducted the enquiry fairly and the action taken or proposed to be taken was bonafide and not due CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 13 of 23 to victimization or unfair labour practice. To that extent the jurisdiction of the Tribunal is limited.
17. On this touchstone, the report of the Enquiry Officer has to be viewed. Perusal of this report and order of the Tribunal shows that the Tribunal had in fact exceeded its jurisdiction while passing the impugned order dated 20.8.2004. The Enquiry Officer has after giving a brief about the deposition of the six prosecution witnesses and the three witnesses of the defence, gone on to examine their testimony in the light of the rival submissions made by the contending parties. No doubt the cross-examination of J.S.Emmanuel, Investigating Officer of the CBI and M.C.Sahdev, the Assistant Officer of Air India could not be concluded in spite of several dates of examination. PW J.S.Emmanuel had produced the record wherein in the course of his investigation as the Investigating Officer of the CBI he had recorded the statements of various witnesses. Material brought out on record by him was unchallenged and not disputed by R.L.Moria which only to that extent had been read and relied upon by the Enquiry Officer. M.C.Sahdev had deposed before the Enquiry Officer that the disputed four interline requests had been brought to him by Sandeep Kumar (son of the petitioner);
further Sandeep Moria was well known to him. The petitioner has also admitted that M.C.Sahdev was well known to him. This fact had been disclosed by the petitioner in his disclosure statement recorded on 15.4.1993 by PW S.L.Khanna, the Vigilance Officer. The Enquiry Officer had also relied upon the CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 14 of 23 deposition of PW V.S.Nagar, PW Baldev Kumar to substantiate the allegation that the petitioner at the relevant time was not in Grade-17 or above entitling him to confirmed tickets on Air India. Relevancy of each witness had been examined in detail by the Enquiry Officer before he had given his concluded findings on the last but one page of his enquiry report. The boarding cards of flight A 1404 dated 10.3.1993 in respect of Sandeep Kumar, Anita Moria and two other person Umesh Bhatia and Sonu Shaskar had been proved as also the interline register of Air India for the period 4.1.1993 to 12.3.1993. It was also never disputed by the petitioner that his son Sandeep Kumar and daughter-in-law Anita Moria were travelling on these interline request tickets on 10.3.1993 to Singapore when they were detained by the officers of the Enforcement Directorate at the IGI Airport. Enquiry Officer had concluded that Sandeep Kumar, Anita Moria, Umesh Bhatia and Sony Shaskar had been issued tickets on the interline requests signed by Baldev Kumar. Baldev Kumar had been examined as PW-5. He had admitted his signatures on the four interline authorizations. His version had been relied upon by Enquiry Officer to that extent. Findings of the Enquiry Officer wherein the five circumstances detailed therein stood established were based on the evidence adduced before him both oral and documentary and which he had examined in intrinsic and deep detail.
CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 15 of 23
18. The National Industrial Tribunal has also recorded a clear finding that the workman had admittedly been given full opportunity to cross-examine his witnesses before the Enquiry Officer. The Tribunal had upset the findings of the Enquiry Officer primarily premised on the ground that since the cross- examination of J.S.Emmanuel had not been concluded it could not be relied upon. The Apex Court has time and again held that the strict rules of evidence are not applicable to enquiry proceedings. Reliance by Enquiry Officer on the material produced by PW J.S.Emmanuel was fair as it was not the case of R.L.Moria that the materials on which the Enquiry Officer had placed reliance were not genuine documents; his only grievance being that only certified copies of the same had been produced and not the originals. Certified copies of documents are also admissible under the Evidence Act; merely because an application for leading secondary evidence to prove certified copies was not filed would not take away the genuineness of the documents especially in view of the fact these documents were in fact admitted documents and never disputed by the petitioner. In these circumstances, the findings of the Tribunal that since the original documents were not produced it amounted to a violation of principles of natural justice is an illegality and was an unwarranted and unjustifiable inference in the findings of the Enquiry Officer. That apart the Enquiry Officer had based his findings not only on the version of J.S.Emmanuel but five other PWs who had also been examined CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 16 of 23 and cross-examined in depth and detail. In arriving at his conclusion Enquiry Officer had relied upon the unrebutted version of M.C.Sahdev which was to the effect that both the petitioner namely R.L.Moria and his son Sandeep Moria were well known to him. After processing the four interline letters on the telephonic requests of R.L.Moria, these tickets were handed over by him to R.L.Moria at his residence. The processing of these tickets at the Air India level were done by PW Baldev Kumar. Version of Baldev Kumar has also been relied upon by Enquiry Officer to this extent. He had admitted his signature on the interline request in respect of Sandeep Moria. It was also an undisputed fact that Anita Moria was the daughter-in- law of the petitioner and did not fit into the definition of „family‟ entitling her to free ticket; she had been described as a daughter. She had admittedly been stopped on 10.3.1993 at the IGI Airport by Enforcement Directorate when she along her husband Sandeep Moria were boarding the flight from Delhi to Singapore on the free interline requests. Baldev Kumar and M.C. Sahdev working in the Air India and Indian Airlines were colleagues of R.L.Moria; they had direct linkage of relationship with Sandeep Moria. Who was the ultimate beneficiary of these interline request tickets which had been issued to Sandeep Moria and Anita Moria on which they had proceeded to travel on 10.3.1993? It was R.L.Moria and his „family‟.
19. The statement made by the petitioner on 15.4.1994 and recorded by PW S.L.Khanna wherein all these facts had been CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 17 of 23 admitted by the petitioner was also relied upon by the Enquiry Officer. Submission of the counsel for R.L.Moria that this statement was given under duress and pressure was considered and rejected by the Enquiry Officer. This was the entire gamut of the evidence considered and relied upon by the Enquiry Officer. Enquiry Officer had considered all these aspects before arriving at a finding of guilt holding the petitioner guilty of misconduct. The findings of the Enquiry Officer could not be said to be perverse; there was sufficient evidence both oral and documentary before the Enquiry Officer to arrive at the conclusion at which he had arrived. Tribunal has picked up pieces of the evidence adduced before the Enquiry Officer to arrive at an opposite finding which it could not have done so not being an appellate forum. Well established principles and guidelines that unless there has been a violation of principles of natural justice and the findings of the Enquiry Officer are based on no evidence or a basic manifest error resulting in a perversity, the Tribunal should not substitute its own finding had not been adhered to. Merely because two views are possible, would be no ground to arrive at a contrary finding. The Tribunal is not an appellate forum. The Tribunal could not in these circumstances have acted as a court of appeal to review and substitute its own judgment for that of the management. It was also not the case where in these circumstances no other reasonable man could have arrived at the impugned finding.
CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 18 of 23
20. Finding of the Tribunal in para no.9 granting opportunity to the management to adduce additional evidence after its closure is also erroneous conclusion. On 08.4.2004 a categorical statement was made that the management does not wish to lead any oral evidence. In these circumstances, the Tribunal had greatly erred in granting such an opportunity to the management.
21. In Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. & Anr. AIR 1979 SC 1652 it was held that there is no such obligatory duty of the Industrial Tribunal to call upon the employer to adduce additional evidence. In this case opportunities having been given to the management to adduce such evidence which the management had categorically refused the Tribunal could not have after closure of the case again granted such an opportunity to the department. The order of the Tribunal is faulty in this regard as well.
22. With regard to the jurisdiction of the High Court under Articles 226 and 227 of the Constitution the observations of the Apex Court in the judgment reported as Sayed Yakoob v. K.S. Radhakrishnan and Ors. AIR 1964 SC 477 are relevant, which reads as under:
"In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding."
23. The result of the aforestated discussion is that the writ petition filed by the management CWP No.6576/2005 is CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 19 of 23 allowed; the impugned order of the National Tribunal dated 20.8.2004 is set aside.
24. CWP No.151/2005 filed by R.L.Moria challenging para no.9 of the order dated 20.8.2004 of the National Industrial Tribunal permitting the management to lead additional evidence as a necessary corollary is also set aside.
25. CWP No.7284/1999 has been filed by R.L.Moria challenging the order of dismissal dated 11.8.1999. This is the only prayer made in this petition. While allowing the afore two writ petitions and setting aside the order of the Tribunal dated 20.8.2004 the necessary corollary which flows is that the order of dismissal of the petitioner dated 11.8.1999 passed by the Enquiry Officer is restored; this order of dismissal had in fact merged with the order of the Tribunal. 30. Counsel for the petitioner has vehemently argued that in his grounds of appeal he had challenged the order of dismissal as being discriminatory; this finds mention in ground A. In para no.2 of the petition, it is stated that the enquiry initiated against the petitioner is an example of the victimization of an employee as other similarly placed co-employees have been let off. Attention have been drawn to the enquiry initiated by the CBI and the major penalties recommended against other co- employees also; it is submitted that the petitioner alone could not have been picked up, discriminated and punished when other persons who had also committed similar offences had been let off. The department by charging the petitioner alone CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 20 of 23 has infringed the fundamental right of the petitioner under Article 14.
26. This arguments has to be noted only to be rejected. Reliance by the counsel for the petitioner on the judgment reported as T.V.Choudhary with E.S. Reddi Vs. Chief Secretary, Government of A.P. & Anr. (1987) 3SCC 258 is misplaced on its facts. In that case sanction for prosecution had been sought under Section 6(1)(a) of the Prevention of Corruption Act, 1947 against two persons; it had been argued that similarly placed co-employees had not sought to be prosecuted; matter had been adjourned; on the next date it had been informed that the co- employees had also been suspended. Since that was the only prayer sought in that writ petition it had been disposed of; there was no finding by the Court that there have been any selective suspensions or violation of Article 14. The second judgment relied upon by the petitioner in Union of India Vs. Tejvir Singh 2002(TLS) 127133 is also distinct on its facts. In the said case a joint enquiry had been held against six persons and all were found guilty; the punishment by the disciplinary authority against the petitioner in the said case was of removal from service whereas other co-employees had only been imposed a punishment of reduction of rank. The ratio of the said judgment is inapplicable to the facts of the instant case.
27. Counsel for the petitioner has in the alternate also raised a plea that the doctrine of desuetude is applicable to the facts of the instant case. In Municipal Corporation for City of Pune & CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 21 of 23 Anr. Vs. Bharat Forge Co. Ltd. & Ors. (1995) 3 SCC 434, the Supreme Court had held that this doctrine which necessarily envisages that where a statute has been in disuse for a long duration and instead a contrary practice has been put to use it becomes a „dead letter‟; the fundamental right guaranteed under Article 14 of the Constitution protects the prosecution and punishment for the violation of a law which has become such a „dead letter‟.
28. On behalf of R.L.Moria, it is submitted that in the instant case the definition of „family‟ as has been engrafted in the resolution of 1980 which had excluded a daughter-in-law had become a dead letter; it has not been in use; a contrary practice has been in use; all employees of the department had in fact been using free interline request tickets for their daughters-in- law; even though they did not come within the ambit of definition of „family‟; the contrary practice had thus come into operation; this doctrine protects prosecution and punishment of the petitioner. It is pointed out that the CBI in its enquiry had prima facie noted these irregularities. On a specific query put to the counsel for the petitioner as to for how long this contrary practice has been prevailing, he had no answer. Admittedly, this offence had occurred in the year 1993. Enquiry had been initiated and conducted by the CBI in the intervening period between 1993 to 1995. What was the long duration and long period of time when this definition of „family‟ came to be CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 22 of 23 expanded and started including a daughter-in-law could not be answered or explained by the counsel.
29. This arguments has also to be noted only to be rejected.
30. Lord Mackay‟s views in Brown v. Magistrate of Edinburgh 1931 SLT 456,458 had held as follows:
"I hold it clear in law that desuetude requires for its operation a very considerable period, not merely of neglect, but of contrary usage of such a character as practically to infer such completely established habit of the community as to set up a counter law or establish a quasi-repeal."
31. End result is that the order of dismissal dated 11.8.1999 qua the petitioner stands revived. Order of the Tribunal dated 20.8.2004 is set aside in toto. CWP No.7284/1999 is dismissed; CWP No.151/2005 is allowed. CWP No.6576/1995 is allowed. The aforestated petitions are disposed of in the above terms. No order as to cost.
(INDERMEET KAUR) JUDGE MAY 14, 2010 nandan CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 23 of 23