Bombay High Court
Sundarlal Dhanraj Kasliwal vs Karmaveer Kakasaheb Wagh Sakhar ... on 8 September, 1994
Equivalent citations: 1995(2)BOMCR253, [1995(70)FLR1016], (1996)ILLJ332BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. By this writ petition under Article 227 of the Constitution of India, the Writ Petitioner has challenged the order of the Labour Court, Nasik, made in Application (BIR) No. 3 of 1980 dated 3-11-1983 and the order of the Industrial Court, Nasik, made in Appeal (IC) No. 48 of 1983 dated 6-1-1987, both declining to grant any relief to the petitioner.
2. The first respondent is a Co-operative Society manufacturing sugar in Nasik District. The factory of the first respondent in covered under the provisions of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as "the Act"). The petitioner was employed in the service of the first respondent from 19th August, 1975 as a Store Keeper. It appears that upto the year 1979 there was no grievance about his work or conduct. On 3rd July, 1979 the petitioner was served with an order of suspension which vaguely said, "There are some lapses found in your working as "Store Keeper" and the record is not found satisfactory. You are therefore suspended from work with immediate effect.
A regular charge-sheet will be issued to you in due course and enquiry will be held in the matter".
The petitioner was immediately place on suspension. The petitioner, thereafter, was served with a charge-sheet dated 31st July, 1979. Since the order of suspension in terms said that the charge-sheet "detailing the charges" levelled against the petitioner was being sent to him, and much of the arguments in this writ petition centres on the vagueness of the charges alleged against the petitioner, it would be necessary to quote the details of the charges alleged against the petitioner. The charge-sheet dated 31st July, 1979 says, inter alia, "The misconducts committed by you are as under :-
(1) That during the checking of stores by the Auditors, it is seen that there are vast discrepancies in the stock, some items are in excess and some items in shortage. For this act stockness, you have failed to give satisfactory explanation. The shortage are abnormal.
(2) That store issue indents are not properly numbered and maintained. The Bin Cards were not maintained correctly. There was no control on receipts and issue of materials. No totals are tallied. The records maintained by you are incomplete, and incorrect and therefore your working as a Store Keeper raises suspicion in Your conduct.
Thus you have acted in your duties with carelessness and gross negligence and with irresponsible attitudes."
The charge-sheet was issued under signature of the Managing Director of the first respondent. One D. B. Kale, B. A. LL. B., was appointed as the Enquiry Officer to enquire into the charges levelled against the petitioner.
3. By a letter dated 7-8-1979 addressed to the Managing Director of the first respondent, the petitioner pointed out that the charge-sheet was vague, utterly bereft of particulars and that as he was suspended from service and refused entry into the premises of the factory, it was impossible for him to reply such a vague charge-sheet. He, therefore, asked for a month's time and requested holding of the enquiry on any date after 12th September, 1979. For some unfathomable reason, the order on this application is passed by the Enquiry Officer. In his order dated 13th August, 1979, the Enquiry Officer ordered, "the date of enquiry is extended to 27th August, 1979, issued (sic) allowed to inspect documents in the stores along with the Security Officer", which was conveyed to the petitioner on the same day.
4. On 27th August, 1979, the petitioner again pointed out to the Enquiry Officer by his letter that the charges levelled against him were extremely vague and without particulars. He, therefore, demanded that the material particulars on which the charges were based be supplied to him after which only he would be able to give a written explanation in the matter. The Enquiry Officer promptly passed an order on this and ordered.
"The charges are for mismanagement in the stores about stock balances. He is directed to take inspection to satisfy the enquiries by 2nd September (sic). He is directed to attend enquiry on September 2, 1979 at 2 p.m."
The petitioner lodged his protest on the same day and pointed out, "Until I get the required information in writing, I am unable to produce any evidence or documents for the same."
5. It appears that during the period of suspension the petitioner was not paid any subsistence allowance payable under the applicable Standing Orders which put the petitioner to considerable economic hardship. Finally by his letter dated 27th August, 1979 addressed to the Managing Director of the First Respondent, the Petitioner pointed out that at no point of time had he been informed about any objections or irregularities in the accounts as per the report of the Auditor and that he had never been given any particulars of the so called discrepancies of amount of about Rs. 6.10 lacs alleged against him. He contended that the charge alleged against him was false, far from truth, and since he was being supplied any material particulars, it would be impossible to accept what was alleged against him. In addition, he also pointed out that the work of numbering the stores indents was the job of the issue clerk and the work of maintaining the Bin Cards was the job of Bin clerk, both not being the jobs of the Store Keeper, which the petitioner was. He also states that the Departmental Head had given written instructions with regard to the numbering of the stores indents and proper maintenance of Bin Cards, but the concerned clerks were negligent for which he could not be held responsible as he was not concerned with the said work. He contends that the failure to maintain serially numbered indents and irregularities in maintaining Bin Cards occurred because the first respondent had employed unexperienced clerks to do the said work. The petitioner refuted the allegations against him and said that as till date he had not been supplied any particulars of the charge or the documents in support of the charge, he was unable to effectively defend himself. He also stated that he would attend the enquiry, but, however, since the Enquiry Officer had refused to give full particulars of the charges against him, if any one sided decision was taken, it would not be binding on him.
6. By another letter dated 27th August, 1979, addressed to the Managing Director, the petitioner pointed out the fact that the first date of the enquiry was fixed, after keeping him on suspension for 55 days without payment of any subsistence allowance, indicating that the suspension imposed against him, only to harass and victimise him by making him face the agony of starvation. He also protested the fact that he had not been supplied with any relevant documents on which the charges were based, that his entry to the factory had been denied, that he had not been shown any of the relevant records, that the instructions had been given to the concerned staff to deliberately misplace relevant papers and also adopt an attitude of non-co-operation with the petitioner, which had made him virtually impossible to appear before the enquiry to answer the serious charges levelled against him. In these circumstances, he gave an ultimatum to the first respondent that, without prejudice to his right to take action according to law, he was going to take up alternative employment or independent vocation in the meanwhile to earn his livelihood, as otherwise, he and his family were starving to death.
7. On 2nd September, 1979, an enquiry was held. Since the petitioner has not been supplied with the full particulars of the charges as demanded, not was he given copies of the relevant documents, he did not attend the enquiry on 2nd September, 1979. The proceedings of the enquiry on 2nd September, 1979, show that all that transpired on that day that one Tukaram Dinkar Khorate, who succeeded the petitioner as Store Keeper, was examined on that day. He had no personal knowledge in the matter at all. He merely produced a copy of the Auditor's Report in which the Auditor had drawn attention to some irregularities in the accounts of the stores. The enquiry consisted only of his statement, after which the enquiry was closed. The Enquiry Officer thereafter gave an extremely vague and short finding by which he found the misconduct alleged against the petitioner established. The Enquiry Officer's report needs to be reproduced in full, in order to appreciate it.
"The M. D. Inquiry Report : Reg. : S. D. Kasliwal.
Respected Sir, Shri. S. D. Kasliwal, Store Keeper was given a charge-sheet on 31-7-1979 for the alleged misconduct committed by him.
The first enquiry was kept on 11-8-1979, but before that he made an application to have inspection of document in the stores. He was informed in writing to take inspection for two days before 27th August, 1979 and the enquiry was fixed on 27-8-1979.
On 27-8-1979, he presented an application demanding details of charges. He was told in writing to get information from the stores and attend enquiry on 2-9-1979.
On 27-8-1979, he presented his application to the Managing Director, which were forwarded to me. Since the application were reluctant and baseless, the undersigned had no business to take cognizance of the same.
As instructed Shri Kasliwal did not attend the enquiry on 2-9-1979 as intimated.
The undersigned had no other alternative but to conduct - enquiry ex parte.
During the enquiry it is revealed that there is lot of shortage of materials in the stores. The auditor had taken a very serious view of such heavy shortages of materials and lot of proof was produced before me for mismanagement.
In view of this, it is not desired to keep such a irresponsible and careless person on such valuable posts.
The alleged shortages are due to his mis-management for which he could not give any satisfactory explanation although he was asked to give many times.
As such the charges are proved against him beyond doubt as such the case is recommended for dismissal.
Sd/- In. Officer".
On these findings, the petitioner was dismissed by an order dated 20th October, 1979, with effect from 22nd October 1979. The petitioner served an approach notice under Section 42(4) of the Act demanding reinstatement in service and, as the industrial dispute was not satisfactorily dissolved, moved the Labour Court by his application (BIR) No. 3 of 1980, under the provisions of Section 79 read with Sections 78 and 42(4) of the Act. Whatever the Shortcomings of the enquiry if there was some tangible material showing dishonesty or gross negligence in discharge of duty on the part of the petitioner, such material ought have been placed on record before the Labour Court during the trial of the application. The only evidence lad before the Labour Court was the oral evidence of the petitioner. No evidence of any kind was led by the first respondent. I am told that, on behalf of the first respondent the Enquiry Officer's report and the record of the proceedings of the enquiry were placed on record. On appreciation of the evidence before it, strangely, by its order dated 11-10-1983, the Labour Court recorded a finding that the enquiry held against the petitioner was both legal and proper and that the he had been given full opportunity to defend himself. The Labour Court further held that the enquiry came to be held ex parte on 2-9-1979, because the petitioner had already made up his mind not to participate in the enquiry and if he had decided to remain absent on 2-9-1979, it would not render the enquiry bad in law. Thus, the Labour Court was satisfied that the domestic enquiry held against the petitioner was quite fair, proper and legal and fixed the matter for hearing the parties on the question of the quantum of punishment. By a further order dated 3-11-1983, the Labour Court held, "I have perused the enquiry papers and I am satisfied that the findings of the Enquiry Officer are based on the evidence before him and are in no way perverse".
The petitioner was charged with certain shortages in the stores in the course of the audit in the year 1976-77 and 1977-78. In the audit of the year 1976-77, 50 bulbs and in the next year (i.e. 1977-78) again 50 bulbs of 24 watts and 117 bulbs of 25 watts were found short. This had been highlighted by the Auditor, and was held to amount to mismanagement and misappropriation of the property of the first respondent by the petitioner. The Labour Court, therefore, took the view that the only question to be considered was whether the order of dismissal was well-founded and expressed its view that the order of dismissal was perfectly well-founded. On this reasoning, all reliefs were denied to the petitioner and his application was dismissed.
8. The petitioner's appeal being Appeal (IC) No. 48 of 1983 before the Industrial Court also met with short shrift. The Industrial Court fully endorsed all findings of the Labour Court and, agreeing with the view of the Labour Court, held that the petitioner was guilty of misconduct of allowing large shortages to take place in the stores, that he was guilty of misconducts of serious nature and that the order of dismissal of the petitioner was neither excessive, not disproportionate. The appeal was, therefore, dismissed by an order dated 6-1-1987.
9. In my view, the petitioner is entitled to succeed in the writ petition on the short ground of violation of principles of natural justice. The charges alleged against him were so delightfully vague that no reasonable person could have effectively replied to them or effectively defended himself against them. A detailed analysis of the charges is called for at this stage. The charge was that there were 'vast discrepancies in the stock', that 'some items were in excess and some items in shortages' and that, for this act of 'stockness (sic)', the Petitioner had failed to give a satisfactory explanation. It was stated that the shortages were abnormal. There was also grievance that the store issue indents were not properly indented and the Bin Cards were not properly maintained, that totals had not been properly tallied, that the records maintained by the Petitioner were incomplete and incorrect and, therefore, his working as Store-Keeper raised suspicion about his conduct. It is difficult to understand why sufficient particulars could not have been supplied to the petitioner in charge-sheet itself. It is duty of the employer to indicate to a delinquent employee served with the charge-sheet not only the precise nature of the charges, but also the documents, if any, upon which the charges are based. This becomes all the more necessary where the charges are of a general nature and pertain to accounts maintained over a period of time. Nothing could have been simpler than to indicate the precise nature of the discrepancies about stocks in the Department which were found in excess or short, the period during which such irregularities had been discovered and, finally, the documents in which such irregularities were reflected. It is unfortunate that, despite the complaint made by the petitioner that the particulars of the charges were vague and his strident demands repeatedly made from supply of the material particulars and inspection of the concerned documents, nothing was done except a cryptic order of the Enquiry Officer that the petitioner could take inspection of all concerned documents in the presence of Security Officer. Such an order is far from compliance with the principles of natural justice. Before the petitioner could have been called upon to the take inspection, it was obligatory upon the first respondent to disclose, either in the charge-sheet, or later, the documents on which the charges were based, and then offer inspection of the documents to the petitioner. For some unfathomable reason, this was not done. The second limb of the charge was that store issued indents and Bin Cards had not been maintained. There is no suggestion that this was the job of the petitioner and that the petitioner had failed to do. The petitioner's reply is explicit and says that these were the jobs of the respective clerks appointed for the said jobs. It was incumbent upon the first respondent to lead some evidence at the enquiry to establish that the responsibility for properly maintaining the store issue indents properly maintaining the store issue indents and the Bin Cards correctly was that of the petitioner, directly or indirectly. No such effort was made. If the Auditors Report of any particular year was the basis for the charge, a copy of the Auditors Report ought to have been supplied to the petitioner; that was also not done.
10. Not only did the first respondent failed to produce proper material at the enquiry, but it also failed to place on the record of the Labour Court any evidence from which any reasonable person could have recorded a finding a misconduct on the part of the petitioner. What was the material before the Labour Court to support the charges ? A so-called enquiry proceedings and a Auditors Report, neither of which was properly proved, nor in respect of which the petitioner was given an opportunity to cross-examine any one. In the fact of this shoddy evidence, it is difficult to appreciate how both Courts below could have concurrently found that requirements of law, including principles of natural justice, have been complied with and that the petitioner was guilty of the serious misconduct of dishonesty or gross negligence in the discharge of his duties. In my view, orders of both the Courts below are perverse and deserve to be interfered with in writ jurisdiction for two reasons, First, because they contrary to the record on the question of compliance with the principles of natural justice and secondly, there is no independent material in support of the finding of misconduct.
11. I am of the view that this is a fit case where this Court should exercise its powers under Article 227 of the Constitution of India and quash the impugned orders of the two lower Courts in the interest of Justice.
12. In the result, the writ petition is allowed. The orders of the Labour Court dated 11-10-1983 and 3-11-1983 made in Application (BIR) No. 3 of 1980 as well as the order of the Industrial Court, Nasik, dated 6-1-1987 made in Appeal (IC) No. 48 of 1983 are hereby quashed and set aside. It is held that the petitioner is entitled to reinstatement in service with continuity and full backwages from 22nd October, 1979. The first Respondent is directed to reinstate the petitioner in service with continuity of service and pay him full back wages from 22nd October, 1979, to the date of reinstatement. The direction with regard to reinstatement and backwages shall be implemented not later than 1st December, 1994, failing which the first respondent shall be liable to pay interest at the rate of 12 per cent per annum on the unpaid amount, without prejudice to any other liability which it may incur in law for failure to implement the direction of this Court. In order to obviate scope for any further dispute or litigation, it is clarified that backwages would include all amounts which would have been payable to the petitioner had he not been payable to from service. The petitioner shall also be entitled to subsistence allowance between 3-7-1979 to 21st October, 1979. Mr. Kochar applies that there should be direction for full wages for the period of suspension. It would not be possible to give such a direction in the present writ petition, since the prayer before the courts below was limited to setting aside the order of dismissal, and consequential benefits. The petitioner is free to pursue his remedy to claim wages for the suspension period, if he is entitled to in law.
13. Rule in accordingly made absolute in the above terms.
14. First respondent to pay costs of the petition quantified at Rs. 500/-.