Bombay High Court
Shireen Dubash (Ms.) vs Air India Ltd. And Ors. on 2 March, 2000
Equivalent citations: (2000)IILLJ108BOM
Bench: A.P. Shah, S. Radhakrishnan
JUDGMENT
1. The petitioner joined the 1st respondent Air India Ltd. as Air Hostess on October 1, 1975 and she was confirmed on October 1, 1976 after successful completion of her probationary period. The petitioner is at present holding the post of Senior Check Air Hostess. On August 20/21, 1997 the petitioner was on the flight assignment on Flight No. A1 825/824, Bombay-Riyadh-Bombay. After the petitioner cleared custom check, the security personnel checked the petitioner and allegedly recovered from her some cococola cans, a mineral water bottle, toilet tissue rolls and some magazines. According to the petitioner she was falsely implicated by the security personnel of the 1st respondent and during the search her cash of US $ 985 and cheque for Rs. 6,434.33 was found missing. She requested the security personnel to allow her to return to the aircraft and search for the missing envelope containing cash and the cheque. The security personnel refused to pay any heed to her complaint regarding stolen money and the cheque. The petitioner seems to have complained to the Director of Inflight Service Department and finally filed a complaint to the police on August 24, 1997 about the stolen money and the cheque. On August 25, 1997 the Istrespondent issued charge sheet-cum-suspension order for alleged acts of misconduct of theft and acts of subversive of discipline. The said chargesheet was received by the petitioner on September 1, 1997. Later on pursuant to the statement made by the 1st respondent before this Court in Writ Petition No. 503 of 1998 the suspension of the petitioner was withdrawn. An enquiry was held into the alleged misconduct by the enquiry committee and during the enquiry three witnesses on behalf of the management were examined. Before the enquiry committee the petitioner produced a letter/communication by the custom official Mr. Jespal Sharma wherein it was stated that no such alleged item of the 1st respondent's property were amongst the petitioner's personal effects. The petitioner wanted to lead evidence of Mr. Jespal Sharma i.e. the custom official and Mr. Amarjeet Singh, the Inspector of Police, who recorded the petitioner's complaint regarding stolen money and the cheque. The enquiry committee, however, disallowed the request of the petitioner on the ground that their evidence was not relevant. The petitioner produced herself as defence witness which was permitted by the enquiry committee. The enquiry committee vide its report dated August 17, 1998 found the petitioner guilty of misconduct and pursuant thereto the 1st respondent by its order dated April 19, 1999 imposed major penalty of stoppage of two annual increments which are due to the petitioner on July 1, 1999 and July, 1, 2000 with cumulative effect. The legality and correctness of the impugned order dated April 19, 1999 is challenged by the petitioner in this petition under Article 226 of the Constitution of India.
2. We heard Mr. Cama learned Counsel for the petitioner and Ms. Shah learned counsel for the respondents on January 27, 2000. Today we also heard Mr. Talsania learned Counsel for the respondents.
3. Mr. Cama learned Counsel for the petitioner raised before us several contentions. Mr. Cama submitted that the so called enquiry proceeding is clearly an attempt of victimisation. Mr. Cama urged that the petitioner had been victimised even in the past and the chargesheet has been issued to the petitioner only in order to falsely implicate her. He submitted that the petitioner has been deliberately implicated by alleging possession of apparently valueless and insignificant refuse items, the theft whereof no ordinary and prudent person of the petitioner's status would resort to. Mr. Cama also urged that there is total violation of principles of natural justice as the petitioner was not permitted to examine Mr. Jespal Sharma and Mr. Amarjeet Singh as witnesses. Mr. Cama urged that the entire enquiry is vitiated on account of refusal of the enquiry committee to permit the petitioner to examine the aforesaid two witnesses. In this behalf he relied upon the decision of the Supreme Court in the case of Hardwari Lal v. State of U.P. and Ors. (2000-I-LLJ-495) (SC) Mr. Cama also submitted that the enquiry proceeding was concluded in undue haste without giving a proper opportunity to the petitioner. Mr. Cama also submitted that the findings of the enquiry committee are entirely based on the panchanama and that the pancha's evidence disclosed that they were not present at the time when the search was taken and therefore the findings are perverse.
4. In reply, Mr. Talsania, learned Counsel for the respondents submitted that the misconduct of the petitioner has been established at the enquiry conducted in accordance with the rules and regulations of the 1st respondent and, therefore, there is no question of any victimisation of the petitioner. He submitted that the enquiry committee has given valid and cogent reasons for not permitting the petitioner to examine Mr. Jespal Sharma and Mr. Amarjeet Singh. In any view of the matter no prejudice would be said to have been caused to the petitioner for non-examination of these witnesses. Mr. Talsania also submitted that the finding of the enquiry committee is based on the evidence of the witnesses and the panchanama and there is no infirmity in the enquiry report submitted by the enquiry committee.
5. We have gone through the material on record as also enquiry proceedings which run into several hundred pages. We have also given our anxious thought to the submissions made by the learned Counsel for the parties. In our considered opinion the entire enquiry is vitiated for non-observance of the principles of natural justice in not permitting the petitioner to examine the witnesses Mr. Jespal Sharma and Mr. Amarjeet Singh. It is not disputed before us that before the petitioner was checked by the security personnel, she had cleared the custom. Petitioner produced before the enquiry committee letter from the custom official Mr. Jespal Sharma wherein it was categorically stated that no such alleged items were amongst the petitioner's personal effects. The petitioner wanted to lead evidence of Mr. Jespal Sharma through whom the petitioner wanted to establish that since the customs check was conducted anterior in time to the security check of the company, the custom officials would have detected the items which the petitioner is alleged to have had amongst her personal effects. The petitioner's request to allow the custom official to depose was brushed aside by the enquiry committee on March 20, 1998 and again on March 23, 1998. The next person whom the petitioner wanted to site as defence witness was Mr. Amarjeet Singh, Inspector of Police (Crime) at Sahar Police Station who had registered the FIR for the monetary theft of cash of US $985 and cheque for Rs. 6,434.33, which was noticed missing at the time of security check. According to the petitioner the deposition of the said witnesses, if allowed, would have established nexus between the pilferage of the said amount of US $ 985 and the cheque for Rs. 6,434.33 and the framed up charges against the petitioner. In our opinion the enquiry committee was not right in thinking that the examination of these two witnesses could not be material.
6. Mr. Talsania strenuously contended that Mr, Sharma was not in a position to categorically state that the petitioner did not have any items in her personal baggage which was the subject matter of the chargesheet. Moreover the record shows that Mr. Sharma had merely examined personal effects through X-ray machine and there is every chance that Mr. Sharma may not have found anything worth requiring physical examination of the baggage in connection with the levy of custom duty. Ms. Shah submitted that the enquiry committee rightly rejected the application of the petitioner to examine the police inspector as her witness since he was neither in any way connected with the check of the petitioner nor he was present at the time of security check and thus his evidence was in no way relevant for the purpose of the defence of the petitioner. Ms. Shah also submitted that there is nothing on record to suggest that Mr. Amarjeet Singh has completed the investigation and has come to the definite conclusion. We are unable to accept the submission of Mr. Talsania. Having regard to the nature of the charge levelled against the petitioner it is difficult to hold that the evidence of these two witnesses was not material for the purpose of enquiry. Moreover while appreciating the evidence produced before the enquiry committee, it is not possible to assess the impact of non-examination of these witnesses. We do not think that the testimony of these two witnesses would be entirely irrelevant in the facts and circumstances of the case.
7. In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground alone we quash the order of punishment dated April 19, 1999. Rule is made absolute in terms of prayer Clause (d). No order as to cost.
8. Certified copy expedited.