Madras High Court
R.Pattabhi (Died) vs The Tamil Nadu Minerals Limited on 25 August, 2010
Author: R.Banumathi
Bench: R.Banumathi, G.M.Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.08.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI Writ Appeal No.2954 of 2002 1. R.Pattabhi (died) 2. p.Saroja 3. P.Rajkumar 4. P.Dharani .. Appellants (Appellants 2 to 4 were brought on record as legal representatives of the deceased sole Appellant as per the order dated 10.11.2009 made in M.P.No.101/2009) Vs. The Tamil Nadu Minerals limited, represented by its Chairman-cum- Managing Director, at TWAD House, Chepauk, Chennai-5. .. Respondent Prayer: Writ Appeal filed under Clause 15 of Letters Patent against the Order of the learned single Judge of this Court dated 14.12.2001 made in W.p.No.437 of 1994. For Appellants : Mr.T.M.Hariharan For Respondent : Mrs.A.V.Bharathi JUDGMENT
R.BANUMATHI,J This Writ Appeal arises out of the order in W.P.No.437 of 1994 dated 14.12.2001 whereby the learned single Judge dismissed the Writ Petition filed by the sole Appellant-Pattabhi seeking for Certiorarified Mandamus to quash the Proceedings in Rc.No.7366/EA1/90 dated 29.1.1993.
2. During the pendency of Writ Appeal, the sole Appellant-Pattabhi died on 31.8.2009 and his legal representatives were brought on record as Appellants 2 to 4 as per the orders in M.P.No.101 of 2009 dated 10.11.2009.
3. Brief facts are that deceased Appellant-Pattabhi was appointed as Manager (Production) in the Respondent company and joined duty in TAMIN Granites, Manali on 05.03.1986. During his tenure as Manager (Production), 1st Appellant committed several irregularities. Since, detailed enquiry was required, 1st Appellant was placed under suspension on 26.03.1990 under Rule 4.4 (a) of TAMIN Conduct, Discipline and Appeal Rules. As many as 15 charges were framed against the 1st Appellant. Gist of chargers were:- Due to his negligence, slabs were not properly produced resulting in loss; Break down of machines due to lack of supervision, improper maintenance; Responsible for Labour unrest; Paid labour charge to a supplier on the higher side. Charge memo was issued on 28.07.1990 in Rc.No.7366/EA1/90 calling upon him to offer his explanation. 1st Appellant submitted his explanation on 01.10.1990. Since the explanation was found to be unsatisfactory, Enquiry Officer-Standing Counsel of TAMIN was appointed to conduct an enquiry. Enquiry Officer conducted enquiry after giving opportunity to the 1st Appellant and submitted his report on 19.03.1991 finding him guilt in all the charges levelled against him. Based on the Enquiry Officer's report, Respondent-Management by its Proceedings dated 06.04.1991 passed an order removing the 1st Appellant from service in terms of Rule 4.1 (b) of TAMIN Conduct, Discipline and Appeal Rules.
4. Case of Appellants is that 1st Appellant preferred appeal before the Board of Directors. Confirming the order of removal from service by the Managing Director of Respondent-Management, the Appellate Authority [Board of Directors] dismissed the appeal preferred by the 1st Appellant. The decision of the Appeal was communicated to the 1st Appellant. Being aggrieved by the order of the Appellate Authority [Board of Directors], the 1st Appellant filed W.P.No.437/1994 seeking to quash the same.
5. Resisting the Writ Petition, Respondent-Management filed counter contending that since 1st Appellant being incharge of the production department was directly responsible for the irregularities committed by him, as many as 15 charges were framed against him. Case of Respondent is that during enquiry ample opportunity was given to the 1st Appellant and in fact, 1st Appellant took nearly 60 days to submit his explanation. The Enquiry Officer appointed by the TAMIN was involved in many enquiries and is a capable person for conducting the enquiry in a fair and proper manner. Further case of Respondent is that instead of participating in the enquiry proceedings, 1st Appellant has attempted to comment on the status of the Enquiry Officer. According to the Respondent, 1st Appellant was unable to establish his case and he abandoned the enquiry. It is averred that 1st Appellant instead of offering suitable explanation to the charges levelled against him found fault with the preliminary conclusion mentioned in the charge memo. Further case of Respondent is that the order of removal of 1st Appellant from service is in accordance with law and the Board of Directors have also took reasonable time to consider the Appeal and only after careful examination, they dismissed the Appeal. Since the enquiry was conducted in a fair manner and during enquiry, 1st Appellant was found guilty of the charges framed against him and the punishment imposed upon him warrants no interference, Respondent-Management prayed for dismissal of the Writ Petition.
6. Learned single Judge dismissed the Writ Petition holding that in the enquiry proceedings it was established that 1st Appellant's negligence has caused loss to TAMIN as the slabs were not prepared as per the specifications. Placing reliance upon 1964 (2) LLJ 139 (SC) [Saran motors v. Vishwanath and another] and 1970 (3) SCC 259 [M/s.Dalmia Dadri Cement Limited v. Shri Murari Lal Bikaneria], the learned single Judge rejected the objection as to appointment of Standing Counsel for the Organization as the Enquiry Officer. Objection of the 1st Appellant regarding non-furnishing of Enquiry Officer's report was rejected on the ground that 1st Appellant has not shown that prejudice was caused to him by non-furnishing of copy of Enquiry Officer's report. Contention regarding disposal of the Appeal by the Board of Directors by non-speaking order was also rejected by the learned single judge by observing that perusal of the order shows that Board has considered the grounds raised by the 1st Appellant and the learned single Judge dismissed the Writ Petition.
7. Challenging the order of dismissal of the Writ Petition, Mr.T.M.Hariharan, learned counsel for Appellants contended that enquiry was not fair and bonafide and that the production order itself was addressed to the Works Manager and while so, the Works Manager was left scot-free and was only produced as the sole witness against the 1st Appellant. It was further submitted that enquiry into 15 charges commenced and conducted between 6.30 P.M. and 9.30 P.M. on a single day and no sufficient opportunity was afforded to the 1st Appellant. It was further argued that even in the questionnaire to be submitted with the reply to the charge sheet, 1st Appellant requested that copy of Enquiry report be furnished immediately after the enquiry and even then Enquiry Officer's report was not furnished to him which caused serious prejudice to the employee. It was further submitted that while confirming the order, the Appellate Authority must furnish reasons which was not properly considered by the learned single Judge. In support of his contention, learned counsel placed reliance upon 2001 (3) CTC 176 [State of U.P. v. Harendra Arora]; (2008) 3 SCC 469 [Divisional Forest Officer, Kothagudem and others v. Madhusudhan Rao]; (2008) 8 SCC 236 [State of Uttaranchal and others v. Kharak Singh]; (2008) 12 SCC 331 [Man Singh v. State of Haryana and others] and other decisions.
8. Drawing our attention to the materials on record, Mrs.A.V.Bharathi, learned counsel for Respondent-Management submitted that sufficient ample opportunity was given to the 1st Appellant and Respondent-Management after considering the matter, accepted the finding of the Enquiry Officer. It was further submitted that the procedure adopted in the enquiry proceeding was legal and valid and 1st Appellant could not establish a defence in his favour and so he did not continue the enquiry proceedings and having abruptly withdrawn from the enquiry, 1st Appellant cannot complain of the violation of principles of natural justice. It was further submitted that 1st Appellant has not shown any prejudice nor had it affected the ultimate order passed by the Disciplinary Authority. In support of her contention, learned counsel for Respondent placed reliance upon (2008) 2 SCC (L&S) 442 [H.V.Nirmala v. Karnataka State Financial Corporation and others] and 2010 (2) SCALE 255 [Sarv U.P. Gramin Bank v. Manoj Kumar Sinha] and other decisions.
9. We have carefully considered the rival contentions and materials on record and the order of the learned single Judge. We have also perused the File.
10. 1st Appellant-Pattabhi was appointed as Manager [Production] and he joined in TAMIN Granites, Manali on 05.03.1986. During his tenure as Manager [Production], 1st Appellant is alleged to have committed several irregularities. As many as 15 charges were levelled against him in the Proceedings Rc.No.7366/EA1/90 dated 28.07.1990. The main charge relates to his failure to produce random slabs and tiles of required quantity with the required specification as per the supply order sent in their Office letter dated 20.01.1990 and 15.09.1989 respectively which has resulted the buyer refusing to take delivery of the slabs prepared at a bigger thickness which were not required by them. The other important charge is that 1st Appellant has failed to supervise the work in the factory and also maintain the machineries in proper condition, resulting in series of break down of machines.
11. Learned counsel for Appellants contended that gang saw machines were installed in 1986 and they were totally unsuited for production of slabs and tiles less than 4 cm. thickness and that 1st Appellant has periodically pointed out this defect in the machinery in all his production and sales reports submitted to the Management and in fact, accepting this innate defect in the gang saw machine, the Managing Director of the Respondent-Management prepared a note to the Board of Directors being item No.7. Learned counsel for Appellants has drawn our attention to item No.7 in the Board Meeting No.78 dated 21.03.1990 placing before the Board the fact that gang saw machines do not perform well and that 2 cm. thick building slabs produced from these machines were found to taper considerably higher than the International level of acceptance.
12. By perusal of the materials, we find that it was placed before the Board that gang saw machines do not perform well. It was also placed before the Board that gang saw machines were not suitable for cutting 2 cm. thick slab and could be utilised profitably only for producing slabs of 4 cm. Ofcourse, in the Proceedings dated 21.3.1990, it was pointed out that consequently the rejection of the slabs was of very high order and that rectification periodically taken up by the technicians from the suppliers themselves could not solve the problem.
13. As regards 2 cm. specification clear instructions were given by the Respondent to produce 2 cm. for making shipment to foreign buyers vide letters dated 05.01.1990 and 20.01.1990. The 1st Appellant who was the Manager [Production] was responsible for the production of slabs of 2 cm. thickness. Being the Manager [Production], it was the duty of the 1st Appellant to act according to the directions of his superiors and having failed to act as per the specifications, 1st Appellant has to account for the loss caused by him to the organization. Though, periodically the defect in the machine is said to have been pointed out to TAMIN, as rightly pointed out by the learned single Judge, in the counter-affidavit the same has been denied by the General Manager [Finance]. As pointed out by the learned single Judge, if the 1st Appellant had done so, TAMIN would have taken proper steps and would have rectified the defects. Enquiry Officer has considered all these aspects and based upon the materials, Enquiry Officer held that the 1st Appellant's carelessness and failure to carry out his duty has caused loss of 5400 US dollars.
14. The next contention of the Appellants is that 1st Appellant was not afforded opportunity of perusing the documents. The learned counsel for Appellants contended that 1st Appellant had been permitted only to peruse some of the records and the charges running to nearly 18 pages were framed against the 1st Appellant and not permitting the 1st Appellant to peruse the records has caused serious prejudice and hardship to the 1st Appellant which would vitiate the entire proceedings.
15. In so far as the contention of Appellants that 1st Appellant was permitted only to peruse some of the documents, by perusal of the materials, it is seen that on 10.08.1990, 1st Appellant has asked for copies of the records or inspection of records and asked for production of documents numbering more than fifteen. On 14.08.1990, 1st Appellant has sought for extension of time for submitting his explanation on the ground that copies of records have not been furnished to him so far. After a perusal of the records, on 30.08.1990, 1st Appellant had thanked the Managing Director for permitting him to peruse the records connected with the charges on 29.08.1990. In his letter dated 30.08.1990, 1st Appellant had also listed out the documents which he perused. In the said letter, he has stated that he was only permitted to go through the records and asked for xerox copy of the records. By granting him permission, we are of the view that sufficient opportunity was given to the 1st Appellant to peruse the records. It is not necessary that copies of all the official records are to be furnished to the delinquent officer. Further, it is also seen from his letter dated 14.09.1990 that 1st Appellant had also perused some more records.
16. After perusal of the records, 1st Appellant submitted a detailed explanation dated 01.10.1990 running to 35 pages elaborately answering each one of the charges. After referring to series of correspondence, the learned single Judge has rightly held that 1st Appellant perused all the required documents and we endorse the views of the learned single Judge.
17. The next objection of the Appellants is that appointment of Standing Counsel of TAMIN Mr.N.Jothi, Advocate as Enquiry Officer vitiates the proceedings. Learned counsel for Appellants submitted that the learned single Judge relying on 1964 (2) LLJ 139 (SC) [Saran motors v. Vishwanath and another] and 1970 93) SCC 259 [M/s.Dalmia Dadri Cement Limited v. Shri Murari Lal Bikaneria] rejected the objection of the 1st Appellant as to the appointment of Standing Counsel as Enquiry Officer. Learned counsel for Appellants would further contend that in those two cases, a person some times employed by the employer as lawyer and a junior Advocate occasionally assisting the counsel for the Management in some matters were appointed as Enquiry Officer. Whereas in the instant case, the Standing Counsel for the Respondent had been appointed as Enquiry Officer. It was further contended that being the Standing Counsel, the Enquiry Officer would certainly take decision infavour of the Management and this has occasioned in serious violation of principles of natural justice attending domestic enquiries and the proceedings are therefore vitiated.
18. From the fact that Standing Counsel was appointed as Enquiry Officer, it cannot be said that Enquiry Officer had taken a biased and partisan view and that he was partial towards the Management of the Company. In 2009 (4) LLN 91 [Biecco Lawrie Limited and another v. State of West Bengal and another], the Company lawyer was appointed as Enquiry Officer. Holding that Enquiry Officer being a Company lawyer cannot be considered as "biased and partisan" and that he was partial towards the Management of the Company, the Supreme Court held as under:-
" 12. ..... Principle of natural justice is attracted whenever a person suffers a civil consequence or a prejudice is caused to him by an administrative action. In other words principle of natural justice is attracted where there is some right which is likely to be affected by any act of the administration including a legitimate expectation [See: Ashoka Smokeless Coal India (Private) Ltd. v. Union of India and others [JT 2007 (1) SC 125]. The procedure to be followed is not a matter of secondary importance and in the broadest sense natural justice simply indicates the sence of what is right and wrong [Voinet v. barrett [(1885) 55 LJQB 39] and even in its technical sense it is now often equated with fairness. As a well-defined concept, it comprises of two fundamental rules of fair procedure that a man may not be a judge of his own cause (nemo judex in re sua) and that a man's defence must always be fairly heard."
19. The instant case might appear to be a case of departmental bias as it is persistently stated by the 1st Appellant that the Enquiry Officer was biased being a Standing Counsel and had favoured the TAMIN in causing miscarriage of justice. Departmental bias arises when the functions of a Judge and the prosecutor are combined in the same department as it is not uncommon to find that the same department which initiates the matter also decides it, therefore, at times, department fraternity and loyalty militates against the concept of fair hearing. In Hari Khemu Gawali v. The Deputy Commissioner of Police [AIR 1956 SC 559] an externment order was challenged on the ground that since the police department which heard and decided the case was the same, the element of departmental bias vitiated administrative action and the Court rejected the challenge on the ground that so long as two functions (initiation and decision) were discharged by two separate officers, though they were affiliated to the same department, there was no bias.
20. In General Secretary, South Indian Cashew Factories Worker's Union v. Managing Director, Kerala State Cashew Development Corporation, Ltd. and others [2006 (3) LLN 761], it was held that the inquiry had been conducted by the Assistant Personnel Manager of the Corporation and the Union raised an industrial dispute in which Labour Court set aside the inquiry on the ground of institutional bias as the enquiry officer was part of the same institution and had also made certain uncorroborated remarks against the employee. In appeal, the Court held that mere presumption of bias cannot be sustained on the sole ground that the officer was a part of the management and where findings of the enquiry officer were based on evidence and were not perverse, the mere fact that the inquiry was conducted by an officer of the management would not vitiate the inquiry. On a bare perusal of these decided cases, it could be strongly established that the fact that P.K.Mukherjee, the enquiry officer, who was also the company lawyer cannot be considered as being "biased and partisan" who favoured and was partial towards the management of the company.
21. In (2008) 2 SCC (L&S) 442 [H.V.Nirmala v. Karnataka State Financial Corporation and others], Legal Advisor was appointed as Enquiry Officer. Objection as to the appointment of Legal Advisor was not raised during enquiry proceedings and Appellant participated in the enquiry without any objection. Holding that doctrine of estoppel and acquiescence would apply to waive the objection, the Supreme Court held as under:-
"12. In SBI v. Ram Das (2003) 12 SCC 474 this Court held:
"27. ... It is an established view of law that where a party despite knowledge of the defect in the jurisdiction or bias or malice of an arbitrator participated in the proceedings without any kind of objection, by his conduct it disentitles itself from raising such a question in the subsequent proceedings. What we find is that the appellant despite numerous opportunities made available to it, although it was aware of the defect in the award of the umpire, at no stage made out any case of bias against the umpire. We, therefore, find that the appellant cannot be permitted to raise the question of bias for the first time before this Court."
The decisions of the Supreme Court make it clear that there is no bar in appointing the Standing Counsel as the Enquiry Officer. In the instant case, 1st Appellant did not raise any objection in regard to the appointment of Enquiry Officer and he participated in the enquiry proceedings without any demur. Witnesses were examined before the Enquiry Officer and they were also cross examined. Having not raised any objection and having participated in the enquiry, the 1st Appellant cannot be permitted to raise the plea that Enquiry Officer was biased.
22. The next objection raised by the Appellants is appointment of Mr.R.Dhanabalan as Presenting Officer. Learned counsel for Appellants contended that Mr.R.Dhanapalan, Works Manager was inimical and biased against the 1st Appellant and in fact it was only Mr.R.Dhanapalan was incharge of the factory as the Works Manager and if at all anybody is directly responsible to the Management regarding the alleged lapses, it is the Works Manager who is to be held responsible and while so, the said Mr.R.Dhanapalan has been appointed as the Presenting Officer and was also examined as witness by the TAMIN. Appointment of Mr.R.Dhanapalan as Presenting Officer vitiates the entire proceedings. Ofcourse Mr.R.Dhanapalan, General Manager [Technical] gave evidence as management witness and one Dhanasekaran, Superintendent took the evidence of the Management witness by presenting the case in his role as the Presenting Officer. The said Dhanasekaran was the Presenting Officer. As pointed out by the learned single Judge, at the time of enquiry, Mr.R.Dhanapalan was present only to be examined as Management witness and not as Presenting Officer. There is no force in the contention that Mr.R.Dhanapalan was the Presenting Officer and therefore, enquiry was vitiated.
23. The next objection raised is that enquiry was not fair and bonafide. Learned counsel for Appellants contended that only Mr.R.Dhanabalan who was the Works Manager was directly answerable to the Management regarding the alleged lapses and curiously, he was examined as witness for the Management against the 1st Appellant and a person who ought to have been a delinquent was examined as witness and that vitiates the entire proceedings. Placing reliance upon (2008) 12 SCC 331 [Man Singh v. State of Haryana and others], it was contended that State action whether Legislative, Quasi-Judicial or Administrative is subject to judicial review if they are opposed to fairness which in turn is a facet of equality under Article 14 of Constitution of India.
24. In Man Singh's case, one of the charge against the Appellant thereon was that he failed to exercise the supervisory control over his subordinate. Punishment of stoppage of two increments was imposed on the Appellant and his Appeal and Revision Petitions were also rejected by the higher authorities. However, contrary to the same, the co-delinquent Head Constable was acquitted in criminal case and the Appellate Authority also removed punishment imposed on him. The net result therefore was that the Appellant was punished whereas perpetrator of misconduct i.e. Head Constable was let-off both in the criminal case as well as in the departmental enquiry. Relying upon Man Singh's case, learned counsel for Appellants further submitted that there should be fairness in action and non-framing of charge against Mr.R.Dhanapalan and whereas examining him as witness for the Management would show that the entire proceedings are biased and pre-determined farce of an enquiry has been run through to give a colour of acceptance to fore gone conclusion. The contention that by examination of Mr.R.Dhanapalan, Management proceeded in a biased and pre-determined manner does not merit acceptance. As many as 15 charges were framed against the 1st Appellant and only 1st Appellant was proceeded with. The 1st Appellant being Manager [Production] was directly responsible for the production of slabs as he was the Officer incharge of the production and he was the person who had direct contact with the production Management. As rightly contended by the learned counsel for Respondent that 1st Appellant cannot shift the blame to others, it cannot be said that examination of Mr.R.Dhanapalan as Management witness [MW1] has vitiatesd the enquiry proceedings.
25. The next contention of Appellants is that enquiry was not conducted in a fair and bonafide manner and no sufficient opportunity was given to the 1st Appellant. The learned counsel for Appellants contended that as many as 15 charges were framed. Enquiry was conducted and completed between 6.30 P.M. and 9.30 P.M. on a single day and this specific allegation is in fact admitted in Paragraph 34 of the counter-affidavit. Learned counsel for Appellant mainly contended that enquiry was conducted and completed in less than three hours and 1st Appellant was not given opportunity to produce his witnesses and to submit his representation. It was further submitted that even in the questionnaire appended to the reply to the charge memo, 1st Appellant has pleaded that "he wish to examine his witnesses". It was stoutly contended that 1st Appellant was denied fair hearing which is in violation of principles of natural justice. It was further contended that had he been given an opportunity by adjourning the enquiry to another day, 1st Appellant would have had an opportunity of putting forth and substantiating his defence.
26. A proper hearing must always take in its ambit a fair opportunity to those who are parties in the controversy for correcting or contradicting anything that is prejudicial to their view. Lord Denning has observed in Kanda v. Government of Malaya [1962 AC 322] that "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict him."
27. Thus what is essential is substantial fairness. As pointed out earlier, 1st Appellant was provided with opportunity of perusing the records. The copy of proceedings appointing the Enquiry Officer was sent to the 1st Appellant which was personally handed over to him, but he refused to endorse the same. Even though, the enquiry alleged to have been held between 6.30 P.M. and 9.30 P.M., by perusal of the Enquiry File, it is seen that enquiry commenced at 5.15 P.M. We are of the view that 1st Appellant has been provided with sufficient opportunity to present his case before the Enquiry Officer. By perusal of the records, we find that the management witness Mr.R.Dhanapalan [MW1] was elaborately cross examined. By going through the File, we also find that after the delinquent [1st Appellant] elicited answers from the Management witness, the delinquent [1st Appellant] was responding to the same and the Enquiry Officer has elaborately referred to them as "Note". It is also pertinent to note that 1st Appellant has also signed in each page of the enquiry proceedings and the "Note" so recorded. Referring to the File, the learned single Judge observed that 1st Appellant informed the Enquiry Officer that he is not interested in further cross examining the witness which only led to have chief examination of the witness remain as unchallenged. The Enquiry Officer has observed that time was given to the delinquent [1st Appellant] to think on this issue and that the delinquent [1st Appellant] has stated the same. Only because he did not co-operate in proceeding further, the witness was discharged and the enquiry was closed. The delinquent [1st Appellant] wanted certain things to be recorded. After the witness was relieved the response of the charged official was also recorded by the Enquiry Officer in extenso. Referring to the observation of the Enquiry Officer, the learned single Judge also observed that Enquiry Officer repeatedly explained the legal position to the 1st Appellant in leaving the matter at that stage without further cross examining the witness and unmindful of the said information, the 1st Appellant has abruptly left the enquiry proceedings. As pointed out by the learned single Judge, by not further cross examining the witness, the 1st Appellant was prepared to face the result without utilising the opportunity given to him.
28. We have also perused the File. By perusal of the File, we find that the Enquiry Officer has recorded as under:-
" Thiru R.Dhanapalan, who will be referred shortly as MWI (Management Witness) deposed and gave evidence in detail touching upon all the 15 charges. He was cross examined by the delinquent official for nearly 2= hours running to about 8 pages and could not shake a little bit. ..... When he gave up the cross examination he was informed by the under signed repeatedly to proceed with the cross examination and explained the position of an unchallenged witness and eventual result of the said non-challenge. However the delinquent refused to proceed with the cross examination and informed that his continuation could aggravate the charges. He was given time to think on the issue. Still he could not change his view and informed that he is not interested in proceeding with the cross examination or in participating with the enquiry. ......"
29. By perusal of the File and the observation of the Enquiry Officer's report, we find that ample opportunity was afforded by the Enquiry Officer to cross examine the witness which was not utilised by the 1st Appellant. When the 1st Appellant had abruptly withdrawn from the enquiry without further cross-examination of Management Witness Mr.R.Dhanapalan and abruptly stopped from cross-examination, he cannot complain that he was not afforded sufficient opportunity. In his letter to the Managing Director dated 21.3.1991 raising objection as to the examination of Mr.R.Dhanabalan, 1st Appellant has stated as under:-
" ..... In case, the cross examination would have been continued and ended, certainly it will abnormally affect my future. Further, the General Manager(Tech) was shouting in front of the Enquiry Officer, and the General Manager had not allowed any body to cope up the situation. In this situation, I have expressed my sincere views to the Enquiry Officer and told not interested to continue the enquiry further on 18.3.1991."
1st Appellant having stated that he was not interested further to continue the enquiry, the Respondent cannot be blamed. By not continuing the enquiry further, 1st Appellant cannot complain that he was not given opportunity to put forth his defence.
30. Considering the status and duty of "Enquiry Officer" and holding that "Enquiry Officer" is acting in a quasi-judicial authority, in (2010) 2 SCC 772 [State of Uttar Pradesh and others v. Saroj Kumar Sinha], the Supreme Court held as under:-
"30. When a departmental enquiry is conducted against the government servant if cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry 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."
Upon perusal of the enquiry File, we find that Enquiry Officer has conducted the enquiry with an open mind and in an unbiased manner. Enquiry Officer has faithfully recorded the responses of the charged official and in our considered view, Enquiry Officer has afforded reasonable opportunity to the delinquent [1st Appellant] and his findings are based upon the materials produced before him.
31. The next objection raised by the Appellants is that failure to furnish Enquiry Officer's report which resulted in violation of principles of natural justice. Learned counsel for Appellants contended that in the questionnaire to be submitted with the reply to the charge sheet, 1st Appellant while answering the questions has definitely requested that the report be furnished immediately after the enquiry and 1st Appellant addressed the Managing Director in this regard and that non-furnishing of Enquiry Officer's report has caused serious prejudice to the Appellants. It was further argued that as many as 15 charges were framed and charge sheet runs to 17 pages and in such case, it was imperative that the proceedings and report have to be furnished and failure to furnish would definitely prejudice the employee. In support of his contention, the learned counsel for Appellants placed reliance upon 2001 (3) CTC 176 [State of U.P. v. Harendra Arora]. In the said case, referring to B.Karunakar's case and observing that non-furnishing of enquiry report would not be fatal to order of punishment unless prejudice is shown, the Supreme Court held as under:-
"8. .... Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
32. The recent trend is one of "prejudice". Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Due to non-supplying of copy of Enquiry Officer's report, whether prejudice was caused to the employee or not has to be considered in the facts and circumstances of each case. In (2008) 9 SCC 31 [Haryana Financial Corporation and another v Kailash Chandra Ahuja], the Supreme Court examined the issue in depth and held as under:-
" 21. From the ratio laid down in B.Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.
22. In the instant case, it is not in dispute by and between the parties either before the High Court or before us that a copy of the report of the inquiry officer was not supplied to the delinquent writ petitioner. While the contention of the writ petitioner is that since failure to supply the inquiry officer's report had resulted in violation of natural justice and the order was, therefore, liable to be quashed, the submission on behalf of the Corporation is that no material whatsoever has been placed nor is a finding recorded by the High Court that failure to supply the inquiry officer's report had resulted in prejudice to the delinquent and the order of punishment was, therefore, liable to be quashed.
23. The High Court, unfortunately, failed to appreciate and apply in its proper perspective the ratio laid down in B.Karunakar, though the High Court was conscious of the controversy before it. The Court also noted the submission of the Corporation that there was "no whisper" in the writ petition showing any prejudice to the delinquent as required by B.Karunakar, but allowed the writ petition and set aside the order of punishment observing that in such cases, prejudice is "writ large".
24. In our considered view, the High Court was wrong in making the above observation and virtually in ignoring the ratio of B.Karunakar that prejudice should be shown by the delinquent. To repeat, in B.Karunakar, this Court stated:
"30. (v) ..... Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case."
33. Thereafter, the Supreme Court referred to the development of the principle that prejudice must be proved and not presumed even in cases where procedural requirements have not been complied with in 2008 (9) SCC 31, the Supreme Court concluded as under:-
"44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show "prejudice". Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down."
The same view was reiterated in 2010 (2) SCALE 255 : 2010 (3) SCC 556 [Sarv U.P. Gramin Bank v. Manoj Kumar Sinha] and 2002 III LLJ 1124 (SC) [State of U.P. v. Harendra Arora].
34. We have elaborately examined the factual situation in this case to see as to whether any prejudice has been caused to the 1st Appellant. We are of the opinion that the 1st Appellant was given sufficient opportunity to peruse the records and he has submitted his explanation running as many as 35 pages. Having participated in the enquiry proceedings, 1st Appellant abruptly left the enquiry saying that he is not willing to continue further cross examination of management witness. The charges relate to causing loss , lack of supervision, labour unrest by being the Manager holding the position of trust. We are unable to accept the submissions of the learned counsel for Appellants that prejudice has been actually caused to the 1st Appellant.
35. The next contention of the learned counsel for Appellants is that Appellate Authority is expected to apply its mind to the findings and while confirming the order, the Appellate Authority must also furnish reasons. Submitting that in the instant case, the order of Appellate Authority is laconic, the learned counsel for Appellants placed reliance upon (2008) 3 SCC 469 [Divisional Forest Officer, Kothagudem and others v. Madhusudhan Rao] wherein the Supreme Court held as under:-
"20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum."
36. In (2009) 4 SCC 240 [Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and others], the Supreme Court held as under:-
" 5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case [(1995) 6 SCC 279] has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority."
As pointed out earlier, it is seen from the communication dated 29.1.1993, the Board of Directors considered the order of removal passed by the Managing Director and found that there is no reason for interference with the said order and confirmed the order passed by the Managing Director. Perusal of the said order shows that Appellate Authority considered the grounds raised by the 1st Appellant. By perusal of the order of Appellate Authority, we find that the Appellate Authority took note of the charges and also considered the findings of the Enquiry Officer and the order of removal passed by the Managing Director. The general trend of judicial decision is to minimise the interference in the matter of disciplinary proceedings.
37. The learned single Judge has elaborately considered the arguments advanced by the learned counsel for Appellants. Contention of the Appellants that there was violation of principles of natural justice does not merit acceptance. As regards quantum of punishment, as many as 15 charges were levelled against the 1st Appellant the punishment of dismissal from service cannot be said to be disproportionate. We do not find any reason warranting interference with the well considered order of the learned single Judge and the Writ Appeal is bound to fail.
38. In the result, the Writ Appeal is dismissed. In the circumstances of the case, there is no order as to costs.
(R.B.I.,J.) (G.M.A.,J)
25.08.2010
Index:Yes/No
Internet:Yes/No
bbr
R.BANUMATHI, J
and G.M.AKBAR ALI,J
bbr
Judgment in W.A. No. 2954 of 2002
25.08.2010