Madras High Court
Selvaraj P. vs M.D., Kattabomman Transport ... on 1 September, 1998
Equivalent citations: (1999)ILLJ1186MAD
JUDGMENT K.P. Sivasubramaniam, J.
1. This Second Appeal is directed against the judgment of the learned II Additional Judge, City Civil Court, Madras in Appeal Suit No. 44 of 1982 confirming that of the learned II Assistant Judge, City Civil Court, Madras in Original Suit No. 1551 of 1976. The Plaintiff in the suit is the appellant in the above Second Appeal.
2. The suit was filed by the plaintiff, being a former employee of the Kattabomman Transport Corporation, Nagercoil praying for declaration that the order of dismissal dated Decembers 1, 1974, as confirmed by the Managing Director on October 24, 1975 is unjust, improper, contrary to the rules, Principles of Natural Justice, violative of Constitution of India, and hence invalid, inoperative and illegal and that the plaintiff was deemed to continue in service with all benefits. According to the plaintiff, he entered into service as a Conductor under the Tamil Nadu State Transport Department in 1963 and he was carrying on with his work faithfully and diligently and the plaintiff was originally serving at Madras and was transferred to Nagercoil branch of the Transport in 1973. From January 1, 1974, the plaintiff became an employee under the first defendant and due to his ill-health he requested the authorities to post him in duties other than line duty namely, Conductor. The Managing Director considered his representation and posted him to duties other than line duty and the plaintiff was working in the Reservation Office in the Municipal Bus Stand and the plaintiff was posted to other duty by the Operation Manager. But the Depot Superintendent out of ill will and grudge and personal animosity towards him had posted him to other duty. The plaintiff would further state that by about April 1973 he was suspended in an arbitrary and unjust manner under oral orders of the authorities, since the authorities thought that he was responsible for the strike and as such the defendant was determined to ruin his career. In spite of his protest, he was asked to take charge as a conductor. The plaintiff would further state that on and from May 30, 1974, the rates of the tickets were enhanced and were brought to effect and the plaintiff was compelled to take up the duty as conductor in bus route 12-A from market to Nagarcoil and on and from May 30, 1974 the route was extended to Suchindram. Therefore in view of the changed route and with the revision of ticket fares he got very much confused and further as he was out of touch with the duties of conductor, he found it difficult and he would also further state that in the said 12-A route closing of ticket entries had to be effected at Nagercoil at stage No. 2 by the time keeper. Since the Route was extended beyond Nagercoil and upto Suchindram, the stage had to be closed by the conductor himself on and from May 30, 1974 and the plaintiff was not able to realise his new position. According to the plaintiff, there was also heavy rain on that particular day and that the bus was diverted from route No. 12-A to the route of 12-D, and as conductor, the plaintiff was bound to issue a 45 paise ticket and not 40 paise ticket from Kurunthankode to Nagercoil. On May 30, 1974, when he began to issue tickets at the rate of 45 paise, there was a quarrel by the passengers with the plaintiff. He was working on down journey form Market to Suchindram and at about 6 a.m. he was in a perplexed and confused state due to the reasons stated above and due to the diversion of the route and enhanced fares it took time for the passengers also to realise the same and the passengers had become restless and began to abuse the plaintiff and also to threaten him. In the midst of the confusion, the plaintiff forgot to close stage No. 2 and issued tickets at Nagercoil also and the bus was proceeding in-between stage No. 2 and stage No. 1. Normally the stage should have been closed by the Time Keeper. The plaintiff on coming to realise that he had not closed Stage No. 2 and has issued tickets by mistake made entries in the register and closed the second stage. Thereby tickets issued in stages 3 and 2 got mixed up together. It was at this stage, that he was apprehended by the Checking Inspector at Kottar junction near Kottar Police Station. The plaintiff on coming to know the position, explained the facts to the Checking Inspector how he failed to close the stage No.2. According to the plaintiff, the Checking Inspector was also bearing ill-will and grudge towards him. He was determined to terminate and ruin the future of the plaintiff and they took action against the plaintiff. In spite of his request to the Checking Inspector to verify the facts from the passengers, the Checking Inspector refused to examine anyone of the passengers. The Checking Inspector also took money, cash bag and said that there was an excess of 95 paise and the plaintiff had clearly explained how a passenger got down before the stage and hence there was excess. The Checking Inspector also made a wild allegation that 3 tickets were found inside the cash bag. Though the Checking Inspector appeared to be satisfied with his reply, to his great surprise he got a suspension order on June 11, 1974 and he subsequently received a charge-sheet dated June 24, 1974 charging that he has resold the tickets, that he kept 3 tickets with a view to sell them afresh, etc. The plaintiff denied the charges and he submitted his reply. A subsequent enquiry was conducted by the Enquiry Officer and he was greatly prejudiced and biased against the plaintiff and he wanted to cross-examine the plaintiff without examining any of the prosecution witnesses. The Enquiry Officer proceeded with the assumption that the plaintiff was guilty of the charges. In spite of giving a list of defence witnesses, the respondents did not take any action , to summon any of them as witnesses. The plaintiff stated that the conclusion of the Enquiry Officer that all the charges were proved are totally false and perverse. According to the plaintiff, the defendant did not comply with the basic duty of establishing the prosecution charges and to his surprise, he was issued a memo by the Managing Director dated November 12, 1974 stating that he concurred with the findings of the enquiry officer, that all the charges have been proved and that he had reached a provisional conclusion for the dismissal of the plaintiff from service. In the plaint, the plaintiff has raised several grounds, which according to him would vitiate the order of dismissal passed against him and hence the suit.
3. In the written statement filed by the first I defendant, it was contended that the Civil Court has no jurisdiction to entertain the suit. In asmuchas the plaintiff had rights to proceed under Industrial Disputes Act, the Civil Court will have no jurisdiction. The contentions of the plaintiff regarding the competence of the second defendant to dismiss the plaintiff from service was also denied. The other contention that the plaintiff had not committed any misconduct was denied by the defendant and the defendant would submit that the plaintiff in his reply had specifically and categorically admitted that he was in a perplexed and confused state of mind. The plaintiff, as a conductor, should be aware of his duties as to when, as to where and at which stage, the journey bill was to be closed, as alleged. According to the defendant, the plaintiff had practically conceded that he had committed an offence and was charge-sheeted for the same and was awarded punishment as the charges were proved. There was no justification as to why the plaintiff had kept the tickets in his cash bag. He had also kept the tickets bearing Nos. 86 and 87 in the cash bag intentionally with a view to give the tickets back to the passengers and collect the fare and appropriate it to his own use and therefore the said conduct was a fraudulent act on the part of the plaintiff. The defendant would also justify the procedure followed by the Enquiry Officer in the conduct of the enquiry. 4. On consideration of the said pleadings oral and documentary evidence, both the Courts below held that the action taken against the plaintiff was justified and that in the conduct of the enquiry proceedings, there were no infirmities as alleged by the plaintiff. The Courts below also took it for granted that the plaintiff had admitted his guilt and therefore the contentions raised by the plaintiff to the contra were not sustainable. The findings rendered by the trial Court were also confirmed by the Appellate Court and hence the present Second Appeal. 5. The learned counsel for the appellant would seek to assail the findings arrived at by the Courts below as well as the procedure adopted by the Enquiry Officer which according to her had caused serious prejudice to the rights of the plaintiff. 6. On my specific questioning as to whether the suit was maintainable in view of the fact that the plaintiff had adequate remedy under the Industrial Disputes Act, the counsel representing the appellant would contend that the suit was maintainable while the learned Government Advocate would insist that the suit was not maintainable in view of the fact that the grievance of the petitioner was entertainable before the forums constituted under the Industrial Disputes Act. 7. Reference was made to a judgment of the Supreme Court reported in Rajasthan State Road Transport Corporation v. Krishna Kant and Ors. (1995-II-LLJ-728) SC. That was also a case of dispute between employer and employee and the question arose whether the jurisdiction of Civil Court was available in cases of disputes covered by Section 2-A of Industrial Disputes Act. The Supreme Court after a very detailed analysis, in para 32 of its judgment summarized the principles under 7 paragraphs. Paragraph 1 will be relevant for the present case which is as follows: "Where the dispute arises from general law of contract, namely, where reliefs are claimed on the basis of the general law of contract, a suit filed in Civil Court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947". In the succeeding paragraphs, the Supreme Court dealt with various other situations and dealt with the issue as to whether the Civil Court will be competent under the said circumstances. 8. Reliance is also placed on another judgment of the Supreme Court reported in State of Madhya Pradesh v. Mangilal Sharma (1998-I-LLJ-995) SC that was a case, which arose under the Specific Relief Act for declaratory decree under Section 34. The plaintiff in the said suit merely prayed for a declaratory decree to the effect that he continued to be in service of the State. He did not claim arrears of salary or other consequential reliefs. Subsequently, he sought to file a separate suit claiming consequential reliefs. The State took the respondent back in service on the basis of the decree of declaration but the respondent in execution proceedings claimed further reliefs regarding arrears of salary and other consequential benefits. The Supreme Court held that a declaratory decree merely declares the right of the decree-holder and did not direct the judgment to do or to refrain from doing any particular act and that as such there was no decree for reinstatement or payment of arrears of salary and therefore the executing Court cannot issue any process for the said purpose as that would be going outside or beyond the decree. 9. The learned counsel for the appellant also seeks to sustain the prayer oh the basis of the said judgment namely, that she has only asked for a declaratory decree, which was maintainable under Section 34 of the Specific Relief Act. It is also seen on a perusal of the plaint in the present case that the plaintiff has also pleaded that he was deemed to continue in service with all benefits. Whether the plaintiff would be entitled to such a relief or not will be considered later. On merits, the learned counsel for the appellant very strenuously urged that the procedure adopted by the Enquiry Officer was in violation of accepted Principles of Natural Justice and fair procedure. 10. She would also contend that the employee was subjected to cross-examination by the Enquiry Officer himself even without having examined any witness on the side of the management to substantiate the charges. She would also state that the driver of the bus and other witnesses who had actually witnessed the incident had not been examined and the management did not summon the witnesses cited by the employee. 11. On the question as to whether the Enquiry Officer would be entitled to cross-examine the witness, the learned counsel for thee appellant has referred to several decisions in support of her contention that it was not proper for the Enquiry Officer to cross-examine the witness. Reliance is placed on the judgments of the Supreme Court reported in: 1. Associated Cement Companies Ltd. v. Their Workmen and Anr. (1963-II-LLJ-396) (SC) 2. C. J. Poulose v. President, Pindamana Service Co.op. Bank Ltd (1996-II-LLJ-487) (Ker). 3. Meenglas Tea Estate v. The Workmen (1963-II-LLJ-392) (SC). 4. Firestone Tyre & Rubber v. Workmen (1967-II-LLJ-715)(SC). 12. It is not necessary to extract all the observations of the Supreme Court as made in the above citations. It is sufficient to record here that the Supreme Court has held that before the delinquent is asked anything, all the evidences against him must be laid by the Management. But in the case of Firestone Tyre and Rubber Co. Ltd (supra) the Supreme Court has held that the said rule cannot be an invariable rule in all cases and the situation will be different where the accusation was based on a matter of record or the facts are admitted and that in such case, it was presumable to draw the attention of the delinquent to the evidence on record which goes against him. Therefore according to the said decision, there is no hard and fast rule that the Enquiry Officer cannot cross-examine the employee in a domestic enquiry. While that would be the general rule, in case where the employee has admitted the offence or where the evidence is a matter of record, it was open to the Enquiry Officer to cross-examine the employee. It is also held that the Enquiry Officer can cross-examine the employee by way of clarification and not otherwise. It is necessary to consider whether the enquiry in the present case has been conducted in a fair and proper manner. 13. As an excuse for not following the procedure and in order; to justify the circumstance that the Enquiry Officer had chosen to cross-examine the employee in the beginning itself, a stand is taken by the Management to the effect that the employee had admitted his guilt. Both the Courts below without going into the actual contentions raised in the statement made by the employee, had chosen to uphold the stand of the Management to the effect that the employee had admitted his guilt. A perusal of the statement given by the delinquent which is termed as 'in admission of guilt' by the employee had been marked as Exhibit B11 in the evidence. It is true that in the said statement the petitioner had stated that whatever that had happened, had happened because of the problems which were created by the passengers and their quarrel with him and that he has not consciously committed any mistake. The said observations alone are taken into account by the Courts below completely ignoring the other parts of the explanation given by the employee. It is upto the Enquiry Officer to believe or not to believe the stand taken by the employee, but it is not correct to assume that the employee had admitted his guilt in any manner by merely picking out a single sentence from the entire explanation. Therefore, the approach of the Enquiry Officer as well as that of the Courts below in having treated the statement of the employee as amounting to admission of guilt cannot be sustained.
4. I also find that the procedure adopted by the Enquiry Officer is rather unusual to the extent of positively causing prejudice to the employee. No witnesses are examined in chief to substantiate the charges in the presence of the delinquent. On the other hand, at the starting of the enquiry itself, as a first step, the employee is cross-examined, that too not by any representative of the Management, but by the Enquiry Officer himself. Then at the end of the cross-examination of the delinquent, he is asked whether he wants to cross-examine the Checking Inspectors. Strangely, no evidence in chief of the two Checking Inspectors is recorded, but the delinquent is asked to cross-examine both of them at the same time. Naturally, there being no material on which he could put any question in cross-examination, the employee puts only two questions, namely as to whether any ticket was taken from his bag and whether they enquired him about the dead tickets at the time of checking, for which both the witnesses had answered in the affirmative. The stranger part of the enquiry is that the questions are put to the two witnesses together at the same time and both of them had given their answers in unison. And that is the end of the enquiry, which is found to be sufficient to find the delinquent guilty and to dismiss him from service. 15. Though as stated earlier, there is no hard and fast rule that an Enquiry Officer cannot at all cross-examine the delinquent, and it is not disputed that an Enquiry Officer is entitled to put questions for the purpose of clarifying any fact in issue, the facts of the present case will show that the cross-examination had caused prejudice to the employee. The Courts below have observed that the questions were put by the enquiry officer only seeking clarification. Such a finding is totally erroneous and the respondents have chosen to submit to the Court in a very opportunistic manner by contending that the questions were put only for the purpose of clarification, presumably after obtaining legal advice. On the face of the minutes of the enquiry itself, it is clearly seen that the proceeding itself is described as "Cross-Examination" by the Enquiry Officer himself. Excluding the last question, namely, as to whether the delinquent wanted to examine or to cross-examine any witness, as many as 23 searching and adverse questions have been put to the delinquent. A perusal of the Enquiry Report also shows that for finding the delinquent guilty, reliance is placed upon only from the answers of the delinquent himself and no other evidence. The following is the finding as recorded in the minutes of the enquiry which has been marked as Exhibit B16. "I have analysed the case carefully giving due consideration to all the factors. The Conductor had stated that he issued tickets with wrong punching because of the quarrel in the bus and had realised it later and as there was no other way entered in Stage 2, the tickets which he issued with marking in Stage 3 is only a well-framed story by the delinquent to suit the occasion. But his vision was not fulfilled because of the possession of the marked tickets K2 R 84486,87 and 88 in the Cash bag. But for his malafide intention of re-sale mere is no necessity to keep those tickets which were marked in stage 3 inside the Cash bag. It is evidently proved on records that tickets from 86 to 95 were sold from stage 3 and the Conductor had recollected and sold tickets bearing Nos. 91 and 92 and kept tickets bearing numbers 86, 87 and 88 in the Cash Bag intentionally. The claim for balance is only to be considered as plucking of evidence. 1 infer that he is guilty of the charges. All procedures have been followed in this case. The minutes are prepared as dictated by me". The above extract will show that the entire reasonsings for finding the employee guilty are based only on the answers given by the delinquent in the cross-examination and arbitrariness causing serious prejudice to the interest of the employee and in total violation of fairplay and Principles of Natural Justice. On this ground alone, the proceedings are liable to be declared as illegal. 16. The learned counsel for the appellant has rightly pointed out that in spite of the fact that the delinquent wanted the driver to be examined as witness, the Management did not take any step to make the Driver available for cross-examination. During the enquiry the delinquent was not asked as to whether he wanted to examine any witness. He was only asked to state whether he wanted to examine or cross-examine; the Checking Inspectors in connection with the case. Going by the statement of the Checking Inspectors, the checking was done in the immediate presence of the driver and it is not known as to why the management did not produce him as an independent witness to support the evidence of Checking Inspectors, whose evidence is nothing more or less than that of a prosecuting or investigating witness. In this context, the learned counsel for the appellant rightly relies on the judgment of this Court reported in Jeeva Transport Corporation Ltd. v. Industrial Tribunal and Anr. 1994-II-LLJ-350. In that case, the Management examined one Engineer to whom the conductor had given a report about the accident and relying on his evidence, the driver was held to have driven the vehicle rashly and negligently and the proceedings ended in the dismissal of the driver. The learned Judge held that the conductor who was witness to the incident was not examined as witness. Apart from the conductor another person had also witnessed the accident and he was also not examined as a witness on the side of the Management. Therefore, having regard to the facts of the present case, the evidence of the Checking Inspectors are only in the nature of an investigating or prosecuting witness and their evidence had been accepted without any corroboration. Admittedly, the driver was present when the employee's Cash bag was checked and there is no reason why the Management did not choose to examine the driver. 17. As stated earlier, the Courts below have been carried away by an erroneous assumption that the employee had admitted his guilt, which as stated earlier, is a conclusion which is not at all warranted in the circumstances of the case. 18. Now coming to thee relief which can be provided to the appellant, reference has already been made to the judgment of the Supreme Court reported in State of Madhya Pradesh v. Mangilal Sharma in which the Supreme Court has held that where thee employee had merely prayed for a declaratory decree, only such declaration can be granted and that the plaintiff will not be entitled to any consequential reliefs. In the present case, it is true that the plaintiff had asked for a farther relief namely, that he was deemed to continue in service with all benefits. The question is as to whether such a prayer can be granted which would obviously result in requiring the Management to reinstate the appellant in service and to grant to him all the incidental benefits. 19. Mr. Arumugam, the learned Government Advocate refers to the judgment of the Supreme Court in Jitendra Nath Biswas v. Empire of India and Ceylone Tea Co. and Anr. (supra). In that case, the Supreme Court has held that Industrial Disputes Act not only confers the right on a worker to seek reinstatement and back-wages if the order of termination was not in accordance with law but also provided for a detailed procedure and machinery for getting such reliefs and that therefore there was an implied exclusion of the jurisdiction of the Civil Court to grant such relief. Therefore, on a conjoint analysis of the two judgments of the Supreme Court referred to above, the jurisdiction of the Civil Court to entertain a suit of the present nature, which is also available before the forums created under the Industrial Disputes Act can only be limited for a declaratory relief as may be available under Section 34 of the Specific Relief Act and that the Civil Court cannot grant any consequential relief either by way of ordering reinstatement of the dismissed employee or to provide any consequential relief Therefore, to the said extent of the claim of the plaintiff for a declaration that he was deemed to continue in service with all the benefits, the relief cannot be granted. The plaintiff will be entitled only for a bare declaration that the order of dismissal was invalid. 20. In the result, the above Second Appeal Ms allowed. However, the decree shall be limited only for a declaration that the order of dismissal dated December 31, 1974 of the first defendant dated October 24, 1975 is null and void and illegal. The plaintiff is not entitled to the other prayer that he is deemed to continue in service with all the benefits. 21. Subject to the above limitation, the above Second Appeal is allowed and the suit is decreed as prayed for. No costs.