Madras High Court
M.Rajagopal vs The Principal Labour Court on 31 March, 2009
Author: S.Nagamuthu
Bench: D.Murugesan, S.Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 31.03.2009 C O R A M THE HONOURABLE MR. JUSTICE D.MURUGESAN AND THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Writ Appeal No.1794 of 2005 M.Rajagopal .. Appellant vs. 1.The Principal Labour Court, Madurai. 2.The Special Officer (DO) 576, Kalanjipatti Primary Co-operative Bank, Kalanjipatti Post, Ottanchathiram Via, Palani Taluk. .. Respondents * * * Prayer: Appeal filed under Clause 15 of Letters Patent against the order dated 05.02.2001 of P.D.Dinakaran,J., in W.P.No.3983 of 1993. For Appellant : Mr.AR.L.Sundaresan, SC for Ms.A.L.Gandhimathi For Respondents : Mr.N.Umapathy for M/s.Silambanan Associates JUDGMENT
(Judgment of the Court was delivered by S.Nagamuthu,J.) The appellant was working as a Salesman in a Fair Price Shop run by the second respondent. On the allegation that the appellant has caused loss to the society to the tune of Rs.12,870/-, he was placed under suspension w.e.f 30.08.1988. Thereafter, a charge memorandum was issued to him on the same allegations. The appellant submitted his explanation denying the charges. Having not satisfied with the same, an Enquiry was ordered and the same was held. The appellant participated in the enquiry. On completing the enquiry, the Enquiry Officer submitted a report holding the charges proved. Accepting the said report, the management passed a final order on 03.04.1989, dismissing the appellant from service w.e.f 30.08.1988. Challenging the same, the appellant raised an industrial dispute in I.D.No.419 of 1989. Before the Tribunal, no witness was examined on either side. On the side of the second respondent/management, as many as 10 documents were exhibited. On considering the materials, the Tribunal by award dated 18.02.1992, dismissed the case of the appellant and confirmed the dismissal. Aggrieved by the same, the appellant filed W.P.No.3983 of 1993. A learned single Judge of this Court by order dated 05.02.2001 dismissed the writ petition. However, the learned single Judge in the said order has issued the following direction:-
"it is suffice to permit the petitioner to make appropriate representation to the second respondent bank to consider his case as a fresh entrant, and the same shall be considered by the second respondent bank on merits, irrespective of his age."
The appellant is now before this Court, challenging the above order of the learned single Judge.
2.We have heard Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the appellant and Mr.N.Umapathy, learned counsel appearing for the respondents.
3.The learned Senior Counsel appearing for the appellant would contend that before passing the final order, dismissing the appellant from service, a copy of the Enquiry Officer's report was not furnished to the appellant and no second show cause notice was issued to him calling upon his further explanation. The learned Senior Counsel would rely on Rule 149 (18) (b) of the Tamil Nadu Co-operative Societies Rules, 1988 which was in vogue then. He would further contend that the impugned order of dismissal is not correct and therefore, he would pray for setting aside the award of the tribunal and for remitting the matter back to the tribunal for passing fresh orders after affording sufficient opportunity to the appellant.
4.Per contra, the learned counsel for the second respondent would contend that furnishing copy of the Enquiry Officer's report is not provided in the Rules and therefore, there was neither necessity nor occasion for the second respondent to furnish copy of the Enquiry Officer's report to the appellant. He would further submit that though it is true that no second show cause notice was issued as required under Rule 149 (18)(b), on that ground alone, the impugned order of the dismissal cannot be set aside as such non furnishing of copy has not resulted in any prejudice to the appellant.
5.We have considered the rival submissions.
6.Before going into the facts of the case, let us first analyse the law on this subject. Prior to the 15th amendment to the Constitution of India, sub Article 2 of Article 311 in the original constitution provided "No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
7.The above said Article came to be considered as early as in the year 1958 in Khem Chand v. Union of India, 1958 SCR 1080 (AIR 1958 SC 300) wherein, a Constitution Bench of the Hon'ble Supreme Court, after tracing the history of the growth of the service jurisprudence, has held as follows:-
The reasonable opportunity envisaged by the provision under consideration includes
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposed to inflict one of the three punishments and communicates the same to the government servant.
8.The 15th amendment to the Constitution of India came into effect from 06.10.1963 by which Sub Article 2 of Article 311 was amended to the following effect:-
311. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.
9.After the above amendment, the Hon'ble Supreme Court consistently held "failure to furnish a copy of the report of the Inquiry Officer would result in violation of the guarantee of reasonable opportunity." (vide State of Maharashtra v. Bhaishankar Avalram Joshi (AIR 1969 SC 1302).
10.Another Constitution Bench of the Hon'ble Supreme Court in Union of India v. H.C.Goel (AIR 1964 SC 364) has held as follows:-
"It would thus be seen that the object of the second notice is to enable the public servant to satisfy the government on both the counts, one that he is innocent of the charges framed against him and the other that even if the charges are held proved against him, the punishment proposed to be inflicted upon him is unduly severe. This position under Article 311 of the Constitution is substantially similar to the position which governed the public servants under Section 240 of the Government of India Act, 1935.
11.The 42nd amendment to the Constitution, which came into force in the year 1976, altered sub Article 2 of Article 311 as follows:-
"No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
12.The effect of the same came to be considered by the Hon'ble Supreme Court in Union of India v. Mohd. Ramzan Khan (AIR 1991 SC 471) wherein, in paragraph No.15 after analysing the above provision and analysing the principles of natural justice, the Court has held as follows:-
"15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.
13.A thorough reading of the above judgment would make it clear that furnishing of a copy of the report of the Enquiry Officer and affording yet another opportunity to make his submissions is a part of the principles of natural justice. Therefore, even in the absence of any rule or regulation providing for furnishing of a copy of the Enquiry Officer's report and second opportunity to defend, in compliance with the principles of natural justice such course should be adopted.
14.But, in the above judgment, the Hon'ble Supreme Court did not notice a contrary view taken by an earlier Bench of the Hon'ble Supreme Court in Kailash Chander Asthana v. State of U.P (AIR 1988 SC 1338). Therefore, to resolve the said conflict, the issue was referred to a Constitution Bench in Managing Director, ECIL v. B.Karunakar (AIR 1994 SC 1074), in which, the Court ultimately upheld the ratio laid down in Mohd. Ramzan Khan's case (cited supra).
15.Following the above view taken by the Constitution Bench the Hon'ble Supreme Court again held in State Bank of Patiala v. S.K. Sharma, (AIR 1996 SC 1669) has held as follows:-
"We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no notice, no opportunity and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar18. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/ statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity and no adequate opportunity, i.e., between no notice/no hearing and no fair hearing. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it void or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
16.Similar view has been taken subsequently by a Full Bench of the Hon'ble Supreme Court in Punjab National Bank v. Kunj Behari Misra (1998 (II) CTC 742).
17.A close reading of all the above judgments would make it abundantly clear that irrespective of whether there is any rule or regulation providing for furnishing of a copy of the report of the Enquiry Officer and a further opportunity of personal hearing to the delinquent, in compliance with principles of natural justice, it is mandatory on the part of the employer to furnish Enquiry Officer's report and to afford yet another opportunity to him to make his submissions except in certain circumstances as indicated in State Bank of Patiala's case.
18.With the above legal background, let us now go into the facts of the present case. It is not in controversy that as per Rule 149(18)(b), before passing a final order on the basis of an Enquiry Officer's report, a second show cause notice should be issued to the delinquent calling upon him for his further explanation. At this juncture, it would be useful to extract the said provision, which runs thus:-
"(b)No penalty shall be imposed on any employee unless he has been given a reasonable opportunity of making any representation that he may desire to make and such representations, if any, shall be taken into consideration before final orders are passed.
Provided that where it is proposed to impose penalties specified in items (v) to (x) in sub-rule (17), the employee concerned shall be afforded an opportunity of personal hearing to defend himself."
19.A plain reading of the above provision would go to show that it is absolutely mandatory on the part of the second respondent to afford a second opportunity for the appellant to make his submissions and afford personal hearing to defend himself. Such explanation and personal hearing could be meaningful if only the appellant is made to know the conclusions of the Enquiry Officer's report. The said course would be possible if only copy of the Enquiry Officer's report is also furnished to the appellant while serving the second show cause notice. Without furnishing a copy of the Enquiry Officer's report, the appellant cannot be expected to offer his explanation and to defend himself effectively.
20.Admittedly, in the instant case, the second respondent has neither furnished a copy of the Enquiry Officer's report nor afforded an opportunity of personal hearing to the appellant to defend himself as required under the Rule. Undoubtedly, the said provision is substantive in nature and it cannot be stated to be merely procedural. In our considered opinion, in this case, non furnishing of copy of the Enquiry Officer's report and failure to afford personal hearing would have certainly caused serious prejudice. Thus, there is a clear violation of the mandatory provision as well as the ratio laid down by the Hon'ble Supreme Court. Therefore, on this ground alone, we are inclined to set aside the award of the tribunal.
21.At this juncture, we would like to record the statement of the learned Senior Counsel appearing for the appellant that in respect of the enquiry, the appellant has got no grievance. In view of the said submission, we make it clear that the appellant cannot question the correctness of the enquiry for any purpose in future. For all these reasons, we are inclined to set aside the order of the learned single Judge and the award of the tribunal.
22.In the result, the writ appeal is allowed; the order of the learned single Judge is set aside; consequently, the award of the tribunal is set aside and the matter is remitted back to the tribunal for fresh disposal in accordance with law after affording sufficient opportunity to the appellant as indicated above. No costs.
jbm To
1.The Principal Labour Court, Madurai.
2.The Special Officer (DO) 576, Kalanjipatti Primary Co-operative Bank, Kalanjipatti Post, Ottanchathiram Via, Palani Taluk