Madras High Court
The Chief Administrative Officer ... vs V. Krishnamurthy on 3 December, 1990
Equivalent citations: (1991)150MLJ1
Author: D. Raju
Bench: D. Raju
JUDGMENT D. Raju, J.
1. The above writ appeal has been filed against the order of the learned single Judge dated 8.7.1988 in Writ Petition No. 6803 ofl985 allowing the writ petition filed by the respondent seeking to quash the order of dismissal dated 6.5.1983 passed by the first appellant and confirmed by the order dated 20.5.1984 passed by the second appellant and for a consequential direction to reinstate him in service with effect from 29.9.1982 and for all attendant benefits.
2. The respondent, at the relevant point of time, was employed as a stenographer in the Visvesvaraya Iron and Steel Ltd., a State Undertaking. When he was working in the Madras branch, one S.K. Somanath was the Branch Manager. On account of certain allegations against the said Branch Manager, certain enquiries were held in which the respondent figured as a witness for the management, and a result of which, the said Somanath came to be dismissed from service. Thereupon the respondent had been transferred from Madras to Bhadravati and accordingly he reported to duty on 29.9.1982. He was then placed under suspension pending disciplinary proceedings.
3. By a charge memo dated 22.11.1982 three charges have been framed against the respondent to which an explanation dated 27.11.1982 was submitted whereunder the respondent while denying the charges that he was responsible for any misappropriation as such, pleaded that whatever role that he played was on the directions of the then Manager of the Madras branch and that he had no option but to obey his direction. Thereupon, a domestic enquiry was proposed and on 19.1.1983, in the domestic enquiry, instead of the management producing evidence in support of the charges, appears to have obtained a statement from the respondent in which the respondent has stated "on the lines of my explanation regarding the three charges I plead guilty and request that management to pardon me on humanitarian grounds. "Once again he reiterated therein the dominant role played by the then Branch Manager and highlighted the fact that it was he who really brought to the notice of the management about the so-called irregularities and the assistance rendered by him to bring home the guilt of the then branch manager. He emphasised in the said statement the fact that he obeyed the instructions of the superior, the then Manager, as a subordinate in good faith in respect of the transactions covered by the charges and the moment he came to know about the dishonest intention of the then Branch Manager, he brought into the notice of the management.
4. Considering the statement of the respondent to be an admission of the guilt, the Enquiry Officer appears to have submitted a report finding the respondent guilty of the charges levelled against him. Thereupon, the order of dismissal dated 6.5.1983 was passed.
5. The respondent filed an appeal challenging the said order of dismissal and in the appeal he contended that there was no proper enquiry for establishing the charges as well as his alleged connivance with the then Branch Manager, S.K. Somanath. The respondent also highlighted the fact that neither the said Branch Manager called during the enquiry nor the related documents made available for the enquiry officer to examine and come to the conclusion that the respondent was guilty of the charges. It was the contention of the respondent that the order of punishment should have been preceded by a detailed enquiry and proof of the charges beyond doubt and neither of these requirements have been-complied with in his case before passing the order of dismissal. The appellate authority by proceedings dated 11.3.1985 rejected the appeal without going into any of these grounds in detail, but merely stating that there are no grounds for interfering with the punishment already awarded.
6. The respondent questioned the order of the appellate authority in Writ Petition No. 6803 of 1985. The learned single Judge, after hearing the learned Counsel for the respective parties, came to the conclusion that the three charges framed against the respondent could not be brought within the fold of Standing Order No. 15(b). The learned single Judge also came to the conclusion that there was no admission of the charges by the respondent herein, and the statement relied upon by the appellants in the peculiar background and circumstances of the case would not constitute an admission of guilt which could result in an order of dismissal from service. On the question as to whether the non-conduct of the proper domestic enquiry has resulted in grave prejudice to the respondent, the learned single Judge agreed with the stand of the respondent and. came to the conclusion that the failure to hold the domestic enquiry vitiated the order of dismissal, The plea of availability of an alternative remedy by means of an adjudication under the Industrial Disputes Act did not find favour of acceptance with the learned single Judge. The learned single Judge recorded a finding that there has been gross violation of the principles of natural justice in the instant case and on account of the said violation, the order of dismissal could not be sustained. It is as against this, the present appeal has been filed by the management.
7. In this appeal before us, Mr. T.S. Subramaniam, learned senior counsel appearing for the appellants raised the following three submissions:
(i) The charges levelled against the respondent squarely fall within Standing Order No. 15 (b), either individually or collectively taken, and the conclusion of the learned single Judge to the contrary cannot be sustained.
(ii) The respondent having admitted the guilt, there was no need to conduct an enquiry cannot be said to result in violation of the principles of natural justice or to vitiate the order of dismissal passed.
(iii) The learned Judge ought to have rejected the writ petition on the ground that the respondent had a right to take up the matter for adjudication under the Industrial Disputes Act and ought no to have exercised jurisdiction under Article 226 of the Constitution of India.
8. Mr. A. Devanathan, learned Counsel for the respondent reiterated the submissions made before the learned single Judge and sought to sustain the order of the learned single Judge. He submitted that the order of the learned single Judge does not call for interference at our hands.
9. On a careful consideration of the submissions made by the learned Counsel on both sides, we are of the view that the order of the learned single Judge docs not call for any interference. So far as the first point raised on behalf of the appellants on the scope of Standing Order No. 15(b) is concerned, we find that the learned single Judge has gone in detail in respect of each one of the charges and came to the conclusion that having regard to the language of Standing Order No. 15(b) and the specific plea raised by the respondent that all the three charges as framed could not be brought within the fold of Standing Order 15(b), must be upheld. In our view, the interpretation placed by the learned single Judge on the scope of the Standing Order could not be said to be vitiated by any error of law warranting our interference in this appeal. That apart, we find that the order of dismissal is vitiated on account of the complete violation of the principles of natural justice in not holding any enquiry as contemplated under Standing Order No. 16, which provides a detailed procedure by stages as to how such an enquiry has to be held before dismissing an employee. Standing Order No. 16 provides that an enquiry can be dispensed with only if in the explanation given by the delinquent workman/employee he accepts the allegations made against him.
10. The question that tails for our consideration now will be as to whether statement dated 19.1.1983 said to have been given by the respondent on which heavy reliance is placed by the learned Counsel for the appellants, constitutes acceptance of the allegations made against the respondent in the present case. After going through the relevant materials including the explanation as well as the statement dated 19.1.1983, we are unable to agree with the plea made on behalf of the appellant that it constituted such admission or acceptance of the allegations. In our view, to constitute an admission and acceptance of the allegations so as to dispense with the holding of an enquiry, such admission or acceptance must be specific, clear and unequivocal. The argument of the learned Counsel for the appellants that the expression "unequivocally or unambiguously" had been omitted by an amendment of the Standing Order made on 26.10.1982would not improve the case of the appellants. Even in the absence of such an expression, with a view to bind the employee, the admission has to be clear, specific and unequivocal, and the dispensation of an enquiry could not be ventured on vague pleas of admission.
11. In order to get over the hurdle, the learned Counsel for the appellants placed reliance on the decision of the Supreme Court reported in C.B. Happali v. State of Mysore . That decision cannot advance, in any manner, the case of the appellants. A reading of paragraph 4 of the judgment establishes that the facts was on the basis of the admission of all facts that the inference of plea of guilt was arrived at. In the instant case, there is no such admission of facts constituting the charges.
12. The decisions reported in Firestone Tyre and Rubber Co. (P.) Ltd. v. The Workmen A.I.R. 1968 S.C. 326 and Central Bank of India v. Karunamoy Banerjee , cannot also help the appellants because in both the cases, the enquiry has been held, witnesses had been examined and the admission of the employee Concerned was taken only as one of the circumstances in the course of the enquiry properly and legally conducted. Even a semblance of enquiry has not taken place in the instant case. The employee was not even asked to show cause against the charges whether he admitted any of the facts constituting those charges. Even assuming t hat there was some vague admission in the present case, in our view that by itself will not be sufficient to dispense with the enquiry violating the principles of natural justice and to visit the respondent with an order of punishment straightaway. We are fortified in our above conclusion by a decision of the Constitution Bench of the apex Court reported in Jagdish Prasad Saxena v. State of Madhya Pradesh A.I.R. 1961 S.C. 1070. At page 1073, the Court opined thus:
...In such a case, even if the appellant had made some statements which amounted to admission, it is open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules. But apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in order of dismissal passed against him.
In view of the undisputable position of law that there must be clear and unambiguous admission of guilt which is not the position in the present case, we consider that the learned single Judge was right in his conclusion that not only there was no admission within the contemplation of the Standing Order in question, but the failure to conduct a proper domestic enquiry has resulted in the violation of the principles of natural justice rendering the order of dismissal invalid.
13. Coming to the plea of the availability of an alternative remedy raised on behalf of the appellants, it requires to be noticed only to be rejected. We have come to the conclusion that no proper enquiry has been conducted and that there has been violation of the principles of natural justice in the instant case before passing the order of dismissal against the respondent. That being the position, the availability of an alternative remedy cannot be held to be a bar for entertaining the writ petition under Article 226 of the Constitution of India. It has always been held to be a rule of convenience and discretion and not a rule of law. The decision reported in Basant Kumar v. Eagle Rolling Mills , relied upon by the learned Counsel for the appellants is of no avail to the appellants in the. light of what we have stated above. Thus, for what we have said above, all the pleas raised by the learned Counsel for the appellants fail. The writ appeal merits dismissal and it is accordingly dismissed. There will be no order as to costs in this appeal.