Punjab-Haryana High Court
Punjab State Cooperative Agricultural ... vs Presiding Officer & Anr on 9 December, 2014
Author: Deepak Sibal
Bench: Satish Kumar Mittal, Deepak Sibal
L. P. A. No. 1432 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Letters Patent Appeal No. 1432 of 2014 (O&M)
Date of Decision : December 09, 2014
Punjab State Cooperative Agricultural
Development Bank Limited .... Appellant
Vs.
The Presiding Officer, Labour Court,
UT, Chandigarh and others .... Respondents
CORAM :HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.
HON'BLE MR. JUSTICE DEEPAK SIBAL.
* * *
Present : Mr. P. S. Bajwa, Advocate
for the appellant.
Mr. Karanvir Singh Khehar, Advocate
for respondent no. 2.
* * *
DEEPAK SIBAL, J. :
C. M. No. 3185-LPA of 2014 :
Through the present application, the appellant seeks condonation of delay of 180 days in re-filing the appeal. For the reasons mentioned in the application, which is duly supported by an affidavit, the same is allowed and delay of 180 days in re-filing the appeal is condoned.MONIKA
2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 2 C. M. No. 3186-LPA of 2014 :
Through the present application, the appellant seeks condonation of delay of 100 days in filing the appeal. After hearing counsel for the parties and for the reasons so mentioned in the application, which is duly supported by an affidavit, the same is allowed and delay of 100 days in filing the appeal is condoned. Main Appeal :
Jaswant Singh Paul, who was working as a Junior Accountant with the appellant, was removed from service on 27.07.1983. His order of removal was confirmed in appeal on 06.02.1985, which led to filing of a reference by him before the Labour Court, Union Territory (UT), Chandigarh. Through Award dated 09.04.1990, the Labour Court held the termination of his services and the appellate order referred to above to be illegal and directed the appellant to reinstate him in service with continuity of service and full back wages with all other consequential benefits. On challenge to the order passed by the Labour Court before this Court, the writ petition filed by the appellant was dismissed on 06.08.2013 by a learned Single Judge of this Court through the order which the appellant impugns before us. Though the above said Jaswant Singh Paul won his legal battle, for which he had started his fight about three decades ago way MONIKA back in the year 1985 - both before the Labour Court and before the 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 3 learned Single Judge, but before he could enjoy the fruits of such decisions, he lost his battle with life as we are informed that he expired during the pendency of the present appeal. It is in that circumstance that today, it is his widow, who continues with the fight for justice, initiated by her late husband about 30 years ago.
The appellant Management removed the late husband of respondent no. 2 (hereinafter referred to as - the workman) from service on account of inquiry held on the basis of several serious charges. As observed earlier, appeal against the order of removal was also dismissed. Before the Labour Court, the workman claimed that his order of removal from service and the order passed in appeal were illegal as the same had been passed by the authorities, not competent to pass such order and were passed in gross violation of principles of natural justice as virtually, no relevant document had been supplied to him even after repeated requests. The workman further claimed that the Management had gone to the extent of terrorizing Management witnesses to depose against him and it was clear from the inquiry proceedings that the Inquiry Officer was completely biased qua him.
After examination of witnesses and perusal of the record, the Labour Court held that the case was one of those cases, where the MONIKA Management had committed patent violation of principles of natural 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 4 justice, equity and good conscience besides infringing the statutory provisions of rules and procedures applicable to the employees of the appellant Bank. The Labour Court began to deliver the Award by holding as above in its very first paragraph which is as under :-
"It is one of those cases where the management had committed the patent violation of principles of natural justice, equity and good conscience besides infringing the statutory provisions of rules and procedures applicable to the employees of Punjab State Co-operative Land Mortgage Bank Limited, Chandigarh."
In the later portion of the Award, there are categoric findings so recorded by the Labour Court showing gross violation of principles of natural justice on the part of the appellant by refusing to supply relevant documents to the workman, which were found germane to the charges levelled against him. Relevant paragraphs of the Award of the Labour Court, to this effect, are reproduced below :-
"..... The management has committed the illegality with respect to all the three MONIKA charge sheets by not supplying the copies 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 5 of the documents to be relied upon by the management during the enquiry of proceedings. My reasons derive support from sub rule 6 of Rule 8 which lays down that when the punishing authority is not the enquiry officer himself, he shall forward to the enquiry officer evidence proving the delivery of documents required to be delivered to the Government employee under sub rule 4 of Rule 8. It is a common case of the parties that no documents have been supplied to the workman so that he could prepare his statement of defence.
[Emphasis supplied by us].
Now I come to the factual position which is discernible from the enquiry file whether the workman had been beseeching for the supply of the copies of documents in order to prepare his defence and how these prayers had been MONIKA rejected with one stroke of the pen by the 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 6 management. The first document which I would like to refer the application dated 5th May, 1982 of the workman whereby he requested for the supply of affidavit/documents relied upon while framing the charge sheet against him.
This request was repeated by another application dated 12th May, 1982 appearing on page no. 65 of the enquiry file. Yet two more applications dated 17th May, 1982 on the subject matter are pending on the file at pages 47 and 49 whereby the workman explained to the management that under Rule 8 sub-rule 4, it was incumbent upon the authorities to deliver or caused to be delivered a copy of the statement of imputations. He also points out to the authorities that refusal to do so amount to violation of the rules applicable to the employee. [Emphasis supplied by us]. Again the MONIKA workman writes on 18th May, 1982 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 7 requesting the management to direct Mr. M. S. Dhillon presenting officer for the supply of the copies and inspection of file so that he may be able to reply without fail. Against all these prayers, the management ony delivered a negative reply on 13th May, 1982 categorically stating that no copies of the documents can be supplied to him and that the workman is not authorised to examine the noting portion and the statements of witnesses. No extension in the period to submit reply could be allowed to him due to uncalled for correspondence being restored by him. [Emphasis supplied by us]. The workman in spite of the fact that he received a complete negative reply from the management, still hoping against hopes had been writing for the supply of the copies of the documents so that a proper reply may be drafted. In MONIKA these circumstances he had to file a reply 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 8 to the charge sheet on 25th May, 1982."
So far as the inquiry proceedings are concerned, after examination of evidence, the Labour Court returned a categoric finding that the same were tainted with the vice of bias. The record had revealed that the Inquiry Officer had been putting questions to the witnesses and the tone and tenor of such questions was in the nature of cross-examination, with an object to derive supportive evidence against the workman. The Labour Court further found that such instances were not at one but at several stages of the inquiry. In this regard, the following observations of the Labour Court can usefully be referred to :-
"..... The surprising part of the proceedings, dated 26th November, 1982 and 27th November, 1982 is that out of the four witnesses examined by the management, two witnesses namely Sarvshri Jagjit Singh and Mehar Singh did not support the management case.
Shri Jagjit Singh was declared hostile by the presenting officer and he started cross-examination him. Still not satisfied MONIKA with the cross-examination of the 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 9 presenting officer, the enquiry officer Mr. Jattana himself started putting the questions to this witness and the tone of the questions put to this witness by the enquiry officer was in the nature of cross-examination with an object to derive some supporting evidence against the workman. Similar act was repeated by the presenting officer and the enquiry officer against Shri Mehar Singh who did not want to support the case of the prosecution." [Emphasis supplied by us].
The allegation of mala fide made by the workman against the appellant regarding the very initiation of the inquiry proceedings were found by the Labour Court to be writ large in the proceedings undertaken against him. There were two witnesses namely Jagjit Singh and Mehar Singh, who had made statements in favour of the workman before the Inquiry Officer and due to the fact that they did not support the case of the Management, they were suspended just after a few days of their statements.
MONIKA We feel that by doing this act, not only did the 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 10 Management show their mala fide intentions qua the workman, but also the above action was to put on guard the witnesses to follow, that in case, they did not support the case of the Management, they would meet the same fate as Jagjit Singh and Mehar Singh. Thus, this amounted to nothing less than terrorizing the witnesses to follow.
The Labour Court further found that the inquiry was conducted at breakneck speed. From this, only one thing was obvious that the appellant was in a hurry to get rid of the workman.
The above observations made by the Labour Court were upheld by the learned Single Judge, when challenged before this Court through a writ petition filed by the appellant. The learned Single Judge held as under :-
"3. While examining these objections brought before the Labour Court, the Labour Court found in favour of the Management only the last point adverted to above regarding the competency of the Managing Director to pass the order. The Labour Court held, however, on all other aspects that there had been a serious breach in the MONIKA principles of natural justice before and 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 11 during the course of proceedings before the Enquiry Officer. The Labour Court referred (i) to the relevant statutory rules, namely, Rule 8(3) and (4) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 that obligated the Management to place the substance of imputation, list of documents and the list of witnesses to be furnished to the workman. While his prayer for copies of documents had been denied, even a permission to inspect the documents with the notings in the files were denied to the workman. (ii) The Labour Court noticed that two witnesses-Jagjit Singh and Mehar Singh did not support the stand of the Management and the Enquiry Officer himself had literally cross-examined the witnesses exhibiting a sense of bias. Though an act of participation of the Enquiry Officer, I will not agree would MONIKA amount to any bias, the conduct of the 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 12 Management immediately taking action for suspension of the witnesses even during the progress of enquiry before the Enquiry Officer, the Labour Court ruled, clearly showed that the enquiry was being conducted in a vitiated atmosphere. (iii) The inability of the workman to attend the hearing on 22.12.1982 was perceived by the Labour Court to be another instance of needless haste when the workman had applied for an adjournment citing the illness of his mother and his absence at Lucknow on a telegraphic message received by him and his plea for adjournment made before the adjourned enquiry date. (iv) The offer of the Management to supply all copies of document after the submission of the enquiry report and before imposition of punishment was meaningless attempt to cover their own lapses and it could not MONIKA be a substitute for what the workman was 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 13 at all times pleading for that he should have been given the copies of all documents before the commencement of the enquiry before the Enquiry Officer and not after the report.
4. With all the fallibilities as exposed by the Labour Court, I have no reason to find any justification for modifying the order in making any intervention. If the Labour Court was, therefore, directing a reinstatement with backwages, it was justified in doing so. I do not find any merit in the writ petition for consideration as worthy of challenge. The writ petition is dismissed with costs. Counsel's fee ` 10,000."
From the above portion of the decision rendered by the learned Single Judge, it is clear that the learned Single Judge also found that there was gross violation of principles of natural justice at the hands of the appellant as the relevant copies of the documents and notings were specifically denied to the workman. The learned Single MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 14 Judge also found that the inquiry had been conducted in a vitiated atmosphere and thus, dismissed the writ petition with costs quantified at ` 10,000/-.
Before us, learned counsel appearing on behalf of the appellant referred to a letter written by the workman to project that he himself had admitted receipt of relevant documents relied upon during the inquiry. He thus submitted that there was no violation of principles of natural justice and on this count, the Award by the Labour Court, as also the judgment under appeal, were liable to be set aside. A perusal of that letter does not support the argument, as sought to be raised by the learned counsel for the appellant. Rather, the contents thereof further fortify the findings so recorded by the Labour Court, as also the learned Single Judge with regard to violation of principles of natural justice at the hands of the appellant. In this letter, the workman is crying hoarse to supply to him relevant documents. The relevant portion of this letter is reproduced below :-
"..... As such the inspection of relevant record has not been completed, yet, and also I feel that copies of all the affidavits/statements has not been supplied to me (sic). As such it is MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 15 obvious that I am not in a position to participate in the proceedings."
In the end, through the letter under reference, the workman had prayed as under :-
"It is, therefore, humbly prayed that keeping in view principle of natural justice and fair play, at least a fortnight period after the completion of the inspection of relevant record and supply of copies of remaining documents, may kindly be allowed to me, as I am entitled to this opportunity."
The above portions of the letter belie the claim, so sought to be raised by learned counsel for the appellant.
No other argument was raised.
From the above, it is crystal clear that the documents, which formed the foundation of the disciplinary action taken against the workman, were not supplied to the workman to his prejudice. It is settled law that all documents, which are sought to be relied upon in a departmental inquiry by the Department, are required to be supplied to the delinquent official so that he get an opportunity to effectively MONIKA defend himself. In the absence of non-supply of relevant documents, 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 16 as per settled law, the entire disciplinary proceedings can be vitiated. For this proposition of law, we can safely refer to a judgment of the Apex Court in the case of State of Uttar Pradesh vs. Saroj Kumar Sinha reported as 2010 (2) SCC 772, relevant paragraphs of which are reproduced hereunder :-
"18. Upon due consideration of the extensive pleadings of the parties, the Division Bench has recorded the following conclusions :
"After hearing the rival submission of learned counsel for the parties as well as the averments made in the affidavits, we are of the view that the inquiry officer has not afforded opportunities to the petitioner insofar as he fails to supply the documents to the petitioner which he has relied while framing the charges and further the petitioner was not afforded opportunity to lead the evidence and also denied the opportunities to cross- examination of the person. The inquiry officer has also failed to prove the charges during the inquiry proceedings by the recording any evidence.
MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 17 Thus, the inquiry is vitiated and is violation of principle of natural justice."
19. With these observations the writ petition has been allowed. The appellant has been directed to reinstate the respondent with all consequential benefits.. However, the State was granted liberty to conduct fresh inquiry in accordance with law and the principles of natural justice.
20. We have heard the learned counsel for the parties.
21. We have noticed at some length the sequence of events and the efforts made by the respondent to receive copies of the documents which were relevant for the preparation of his defence in the departmental inquiry. As noticed earlier all the requests made by the respondent fell on deaf ears. In such circumstances, the conclusions recorded by the High Court were fully justified.
xx xx xx MONIKA 27. Apart from the above by virtue of Article 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 18 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of MONIKA Shaughnessy v. United States, 345 US 206 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 19 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
29. The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:
"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive MONIKA evidence ex parte which is not fully disclosed, 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 20 or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."
30. In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case.
31. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the enquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of principles natural justice and total disregard of fair play. The respondent never MONIKA had any opportunity at any stage of the 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 21 proceedings to offer an explanation against the allegations made in the charge sheet.
xx xx xx
34. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of this case. Non- disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant.
35. The aforesaid proposition of law has been reiterated in the case of Trilok Nath v. Union of India 1967 SLR 759 (SC) wherein it was held that nonsupply of the documents amounted to denial of reasonable opportunity. It was held as follows:
"Had he decided to do so, the document would have been useful to the appellant for cross- examining the witnesses who deposed against MONIKA him. Again had the copies of the documents 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 22 been furnished to the appellant he might, after perusing them, have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish the appellant with copies of the documents such as the FIR and the statements recorded at Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry."
36. The proposition of law that a government employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re- emphasise the law as stated by this Court in the case of State of Punjab v. Bhagat Ram (1975) 1 SCC 155 :
MONIKA "The State contended that the respondent was 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 23 not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross- examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.
The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to MONIKA refer to the previous statements of the witnesses 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 24 proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful cross- examination. It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken." Thus, as per the law settled by the Apex Court, on account of non-supply of relevant documents, the entire disciplinary action against the workman stood vitiated. Not only this, the record clearly reveals that the inquiry also was held in a vitiated atmosphere. The Inquiry Officer was virtually acting as the Presenting Officer, colouring the entire proceedings with the taint of bias. Further, the mala fides on the part of the appellant Management are also clear. The two departmental witnesses referred to above, who did not tow the line MONIKA of the Management during the inquiry proceedings, were soon 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 25 suspended by the Management. The Management thus openly showed displeasure when these two witnesses did not support the Department's case during the inquiry. Not only this, by suspending these two officials, the Management gave clear signals to all the department witnesses to follow that in case they did not tow the line of the Management, they would be appropriately dealt with. This clearly showed that the Management was gunning for the workman for mala fide reasons.
In view of the above facts and position of law, we find absolutely no reason to interfere in the well reasoned and justifiable order passed by the learned Single Judge.
The workman is dead and it is the appellant Management, which continued to drag him and keep him in litigation for the last about three decades. In view of the peculiar facts of the case, the matter cannot be relegated back to be proceeded again by following the principles of natural justice. It is in these circumstances that we dismiss the appeal and since the workman, during his life time, was treated in a grossly unfair manner at the behest of the appellant Management, we direct that the consequential benefits arising from the setting aside of the dismissal order of the workman, are released in favour of the legal heirs of the workman, within a period of three MONIKA months from the date of receipt of a certified copy of this order. In 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 1432 of 2014 26 case, the same is not done, then in that eventuality, the respondents are held entitled to interest @ 6% from the date the above three months expire, till the date of actual payment.
( SATISH KUMAR MITTAL ) ( DEEPAK SIBAL )
JUDGE JUDGE
December 09, 2014
monika
MONIKA
2014.12.16 10:59
I attest to the accuracy and
authenticity of this document