CHAIRMAN, NIMHANS, BANGALORE v. G. N. TUMKUR — 1988 DIGILAW 382 (KAR)

BOPANNA, J. ( 1 ) THIS writ appeal is directed against the order of the learned single Judge in W. P. No. 6688 of 1980 quashing the order of compulsory retirement from service of the respondent herein on the ground that he had committed gross mis-conduct within the meaning of the relevant C. C. A. Rules. ( 2 ) THE learned single Judge took the view that the disciplinary authority did not apply its mind to the gravity of mis-conduct said to have been proved against the respondent and accordingly relying on the decision of the Supreme Court in Shankar Doss v Union of india, (A. I. R. 1985 S. C. , 772.) the learned Judge came to the conclusion that the punishment imposed was not commensurate with the gravity of mis-conduct in the light of the aforesaid decision of the Supreme Court and that there was no application of mind to that aspect of the case. Therefore, he quashed the impugned orders reserving liberty to the disciplinary authority to proceed with the inquiry from the stage at which the infirmity had occurred. He further made a direction that the respondent would be entitled to all consequential benefits. ( 3 ) LEARNED counsel for the appellants in vited our attention to the relevant portion of the impugned order wherein the question of punishment was considered by the disciplinary authority. In page-100 of the paper book, there is a consideration by the disciplinary authority as to the nature of mis-conduct committed by the respondent and the punishment that the authority had proposed to impose on him. It reads as under:-"the charges against Sri G. N. Tumkur are of very serious in nature. His action of trying to put salt into the petrol tank of car no. MYQ 5973 is not only very serious but mischievous. This aspect has been very clearly brought out by the various witnesses by their deposition at the time of enquiry and the enquiry officer also concluded that the charges against Sri g. N. Tumkur stands proved. The delinquent has not brought any new points other than what he was brought out at the time of enquiry and in his final representation in reply to the show cause notice. Under these circumstances, I hold that the memo of charges issued in Memo no. PF/gnt/77, dated 8. 3. The delinquent has not brought any new points other than what he was brought out at the time of enquiry and in his final representation in reply to the show cause notice. Under these circumstances, I hold that the memo of charges issued in Memo no. PF/gnt/77, dated 8. 3. 77 under Rule 14 of CCC (CCA) Rules to Sri G. N. Tumkur stand proved. Since the charge is of very grave in nature, I do not find any reason to take a lenient view in the matter. If such mischievous and undisciplined officials are kept in service it is not good for any Institution. It will spoil the discipline of the entire Institution. Hence a deterrent punishment has to be given. However taking his age and service into account, I would like to be little lenient and therefore proposed the punishment of compulsory retirement in the show cause notice. Now I don't find any reason to reduce the proposed punishment any further. Hence, I order that Sri G. N. Tumkur, Driver, National institute of Mental Health and Neuro sciences, Bangalore, be compulsorily retired from the service from the date of which the memo served to him. " This portion of the order was quashed by the learned single Judge and consequently the respondent was entitled to all the consequential benefits in terms of salary from the date of termination upto the date of his re-instatement. " ( 4 ) THIS Court, by an order dated 18-12-1987, granted an interim stay of the operation of the order of the learned single Judge. An application for early hearing was made and the same was allowed. The appeal was heard on merits and was adjourned from time to time to give an opportunity to the parties to come to a settlement out of Court. To-day, learned counsel for the appellants submitted that this was not a proper case to be compromised and that the appeal may be disposed of on merits. Accordingly, we have heard the learned counsel for both sides. To-day, learned counsel for the appellants submitted that this was not a proper case to be compromised and that the appeal may be disposed of on merits. Accordingly, we have heard the learned counsel for both sides. ( 5 ) WE are of the view that it is un-necessary to go into the correctness of the finding of the learned single Judge since, by a perusal of the inquiry report which is produced at Annexure-F in the writ petition, we are satisfied that the inquiry conducted by the Inquiry Officer is violative of the principles of natural justice and the findings of the Inquiry officer are vitiated by non-application of the mind to the relevant evidence on record. On these grounds alone the impugned orders will have to be set aside. ( 6 ) THEN the point for consideration is whether there should be a fresh inquiry at this distance of tune. That point will be considered after giving our reasons for the first finding. ( 7 ) IT is seen from the inquiry proceedings that statements of as many as six witnesses were recorded on or after the incident alleged to have taken place on 27-11-1976. In paragraph-4 of the inquiry report, there is a reference to the list of documents and based on the same, articles of charge had been framed against the respondent. They are:i) Written statement dated 27-11-1976 by Sri M. Sundar, Driver. ii) Written statement dated 27-11-1976 made by Sri Vasupillai, Watchman on duty. iii) Combined written statement dated 29-11-1976 made by Dr. M. G. Ramu, senior Research Officer, Ayurvedic Research Unit and Mrs. Norma P. Chowrappa, Stenographer. iv) Written statement dated 29-11-1976 made by Sri G. N. Tumkur, Driver. v) Memorandum dated 29-11-1976 made to Sri G. N. Tumkur. vi) Written (Kannada) statement dated 29-11-1976 made by Sri G. N. Tumkur (Translation of the Kannada statement translated to English ). "these statements were recorded on 27-11-1976 and 29-11-1976. Copies of these statements were not given to the respondent till 5-5-1977 on which date the inquiry commenced. This is also clear from the specific stand taken by the respondent in his reply dated 21-3-1977 to the charges framed against him. "these statements were recorded on 27-11-1976 and 29-11-1976. Copies of these statements were not given to the respondent till 5-5-1977 on which date the inquiry commenced. This is also clear from the specific stand taken by the respondent in his reply dated 21-3-1977 to the charges framed against him. In his reply i. e. , his explanation to the charges, he has stated that the copies of the enclosures enclosed to the charge should have been given with the memo dated 29-11-1976 issued to him by the Institute and that the delay of four months in taking action has been done purposely and his written statement has been obtained as desired by the Institute. In the charge sheet, it is stated that he tried to put salt into the petrol tank of the car at about 11 A. M. , but he has pointed out that in the memo dated 29-11-1977 served on him it is mentioned that he had put salt in the petrol tank. ( 8 ) SO, the point for consideration is whether the inquiry could be said to be an inquiry held in consonance with the principles of natural justice when the inquiring authority used the written statements of the witnesses as evidence as could be seen from the inquiry proceedings. The procedure adopted by the inquiry officer in the inquiry is found in paragraph-11 of the inquiry report. The first paragraph reads: "sri S. Vasupillai, Watchman was examined first with reference to his written statement given by him on 27-11-1976. He had given the statement as follows:-" in paragraph-12, there is a reference to the written statement of the very same Vasupillai and he has been cross-examined by the respondent. ( 9 ) IN paragraph-13 it is mentioned that one M. Sunder, driver of the car MYQ 5973 was examined next with reference to his written statement given by him on 27-11-1976. His written statement is quoted in extenso in that paragraph. That was admitted to be correct by this witness and he was cross-examined by the respondent. But it is not clear from the proceedings whether these witnesses were examined by the Presenting Officer and, on the basis of the statements made by them in the examination-in- chief, they were cross-examined by the respondent. The inquiry Officer has used the word 'cross-examination' in all the paragraphs. But it is not clear from the proceedings whether these witnesses were examined by the Presenting Officer and, on the basis of the statements made by them in the examination-in- chief, they were cross-examined by the respondent. The inquiry Officer has used the word 'cross-examination' in all the paragraphs. That obviously means that the Presenting Officer also cross-examined the witnesses in order to bring out certain clarifications and that has caused grave prejudice to the respondent in the domestic inquiry held by the Inquiry Officer. Like-wise, the statements of other witnesses are marked as evidence and they have been cross-examined by the Presenting Officer and the respondent. ( 10 ) ONE more serious infirmity in the inquiry is that the Inquiry Officer has recorded the combined statement of two witnesses viz. , dr. M. G. Ramu, Senior Research Officer, ayurvedic Research Unit and Mrs. Norma P. Chowrappa, Stenographer. These persons were also examined as witnesses and their combined statement recorded earlier was marked as evidence in the inquiry. It is well settled that in a domestic enquiry as also in a quasi- Judicial Enquiry not to speak about the judicial enquiry, a combined statement of two witnesses would be gravely prejudicial to the defence of the delinquent official and such a procedure would vitiate the inquiry proceedings. This Court in hundreds of orders arising out of the decisions of the Land tribunals has quashed those orders on the ground that the combined statement of witnesses were recorded by the Tribunals. These witnesses did not make any statement orally in the presence of the respondent. Had their oral statements been recorded, it would have been possible for the respondent to bring out the contradictions in the earlier statements made in writing and the statements made before the Inquiry Officer. These witnesses did not make any statement orally in the presence of the respondent. Had their oral statements been recorded, it would have been possible for the respondent to bring out the contradictions in the earlier statements made in writing and the statements made before the Inquiry Officer. In our view, the procedure adopted by the inquiry Officer has resulted in substantial failure of justice and if any authority is necessary, there are decisions of the Supreme court in Kesoram Cotton Mills v Gangadhar (AIR 1964 S. C. , 708) and The State of Mysore and Others v Shivabasappa Shivappa Makapur (AIR 1963 S. C. , 375) In Shivabasappa's case, the Supreme Court observed as follows :-"for a correct appreciation of the proposition, it is necessary to repeat what has often been said that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. "in Kesoram Cotton Mills' case, the Supreme court observed:"it is urged on behalf of the appellant that rules of natural justice are the same whether they apply to inquiries under article 311 or to domestic inquiries by managements relating to misconduct by workmen. It may be accepted that rules of natural justice do not change from tribunal to tribunal. Even so the purpose of rules of natural justice is to safeguard the position of the persons against whom an inquiry is being conducted so that he is able to meet the charge laid against him properly. Therefore the nature of the inquiry and status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice. Therefore the nature of the inquiry and status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice. Where, for example, lawyers are permitted before a tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient: (see New Prakash Transport co. Ltd. v New Suwarna Transport Co. Ltd. 1957 SCR 98 : ( (S) AIR 1957 SC 232 ), but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker. Further we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of labour union may not be present to defend them. In such a case to read over a prepared statement, in a few minutes and then ask the workmen to cross-examine would make a mockery of the opportunity that the rules of natural justice require that the workmen should have to defend themselves. It seems to us therefore that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the witnesses from the beginning to the end in the presence of the workman at the inquiry itself. Oral examination always takes much longer than a mere reading of a prepared statement of the same length and brings home the evidence more clearly to the person against whom the inquiry is being held. Generally speaking therefore we should expect a domestic inquiry by the management to be of this kind. Even so, we recognise the force of the argument on behalf of the appellant that the main principles of natural justice cannot change from tribunal to tribunal and therefore it may be possible to have another method of conducting a domestic inquiry (though we again repeat that this should not be the rule but the exception) and that is in the manner laid down in Shivabasappa's case, air 1963 SC 375 . The minimum that we shall expect where witnesses are not examined from the very beginning at the inquiry in the presence of the person charged is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the copy of the statements should be given well in advance we mean that it should be given at least two days before the inquiry is to begin. If this is not done and yet the witnesses are not examined-in-chief fully at the inquiry, we do not think that it can be said that principles of natural justice which provide that the person charged should have an adequate opportunity of defending himself are complied with in the case of a domestic inquiry in an industrial matter. In the present case all that had happened was that the prepared statements were read over to the workmen charged and they were asked then and there to cross-examine the witnesses. They were naturally unable to do so and in the circumstances, we agree with the tribunal - though for different reasons - that the inquiry did not comply with the principles of natural justice. " ( 11 ) APART from this infirmity, even the finding of the Inquiry Officer, in our view, is wholly based on suspicion and not'on the basis of any proof. The defence taken by the respondent was that (i) he was not in the Institute on the date in question, which was rightly negatived by the Inquiry Officer and that (ii) he was not in the garage at the time of the incident in question, which was also rightly negatived by the Inquiry Officer. On the charge against the respondent that he attempted to put salt to the petrol tank of the car belonging to the Institute, the Inquiry Officer himself found in para-30 (v) (a) of his report that nobody had seen the respondent actually putting salt to the petrol tank of the staff car. Having observed so, he relies on the statement of one of the witnesses viz. Having observed so, he relies on the statement of one of the witnesses viz. , M. Sunder who had deposed in his statement that he noticed grains of salt on the cap of the petrol tank cup and grains of salt in the petrol tank passage and some grains of salt on the dicky also. The Inquiry Officer relies on the clarification by Sunder that the petrol tank cap cannot be taken out as it is not 'lock type' and all the salt cannot be put into the tank at one time and can be put only in small quantities. From this clarification, he comes to the conclusion that a person who performed the act could not put large quantity of salt into the petrol tank as he would have got the suspicion of being watched by somebody and while attempting to perform the act in a hurry the salt might have fallen on the cap of the petrol tank, dicky and near the garage. Having drawn this inference, he finds that the witness Sunder himself might have put some little quantity into the petrol tank. To quote his own words:"as Sri Sunder had also noticed some grains of salt in the passage of the petrol tank, he might have put some little quantity into the petrol tank also. " ( 12 ) HOWEVER, the learned counsel for the appellants argued that sentence does not refer to Sunder. The last words 'also' makes it clear that the Inquiry Officer had no doubt in his mind that Sunder was also a culprit. However, in paragraph 30 (v) (b) of the inquiry report, the Inquiry Officer refers to some suspicion that Vasupillai had when he came to the garage from the portico and he found Sunder sitting in the car. To quote his own words: b) It would appear from the written statement of Sri S. Vasupillai that when he brought back the salt thrown by Sri Tumkur from the ditch, he saw no other person in the garage except sri Sunder who was sitting inside the car. He had shown Sri Sunder the salt that has fallen near the garage after making an inquiry with Sri Tumkur about the salt fallen near the garage. He had shown Sri Sunder the salt that has fallen near the garage after making an inquiry with Sri Tumkur about the salt fallen near the garage. Sri Vasupillai had stated that Sri sunder told him that since he got a suspicion he came from portico to the garage and was sitting in the car. Sri sunder had also stated in his written statement that when he was being watched by a stranger, he got some suspicion and therefore proceeded to the garage from the portico. He noticed Sri G. N. Tumkur going inside the car garage from the rear corner. He has stated that by the time he could reach the garage, Sri Tumkur had already come out from the garage with a packet of salt which was kept in the garage. When Sri Sunder asked sri Tumkur as to why he had put the salt to the petrol tank of the car, Sri tumkur had replied Sunder that he had brought the salt packet to be thrown to the ditch and he wanted to wash his hands and therefore he went to the car garage and picked up the water bucket. It would therefore be seen from the written statement of Sri vasupillai and Sri Sunder that there were no other person in the garage except sri Tumkur before Sri Sunder entered the garage from the portico to sit in the car. c) The bringing of salt by Sri Tumkur to the garage on 27-11-1976, has been established - vide sub-para (iv) above. In the written statement furnished by sri M. Sunder, Sri Sunder has stated that it was replied by Sri Turrikur that he brought the salt to the garage to be thrown into the ditch. It is really surprising whether any person could carry something from the house to the office to be thrown into the ditch. As the reply of Sri Tumkur does not sound to any reason, the salt should have been brought to the garage by Sri Tumkur with some intention and ulterior motive. ( 13 ) IN our view, this finding is wholly based on suspicion and not on proof of misconduct. That apart, the appeal preferred by the respondent came to be rejected by the appellate Authority in one sentence holding that 'there is no merit in the appeal'. On that ground also, the impugned orders are liable to be quashed. ( 13 ) IN our view, this finding is wholly based on suspicion and not on proof of misconduct. That apart, the appeal preferred by the respondent came to be rejected by the appellate Authority in one sentence holding that 'there is no merit in the appeal'. On that ground also, the impugned orders are liable to be quashed. The order of the Appellate authority is found at Annexure-H. It reads:"the appeal of Shri G. N. Tumkur, ex-Driver, National Institute of Mental health and Neuro Sciences, Bangalore, against his compulsory retirement from service has been considered by the chairman of the governing Body of the institute and his appeal has been rejected. "this order is patently opposed to the provisions of Rule 25 of the CCA. Rules which reads as under:-"25. Consideration of appeals.- xx XX (2) In the case of an appeal against an order imposing any of the penalties specified in rule 8, the Appellate authority shall consider - (a) whether the procedure prescribed in these rules has been complied with, and, if not whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (b) whether the findings are justified; and (c) whether the penalty imposed is excessive, adequate or inadequate and after consultation with the Commissioner, if such consultation is necessary in the case, pass orders - (i) setting aside, reducing, confirming or enhancing the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case: xx xx xx the resultant position is that the report of the Inquiry Officer is bad in law and hence the order of the Disciplinary Authority, which is based on that report, cannot be sustained. The order of the Appellate authority is also violative of the mandatory requirement of Rule 25 of the C. GA. Rules. For these reasons, the impugned orders are liable to be quashed and are accordingly quashed. ;" ( 14 ) NOW the point for consideration is whether we should remit the matter for fresh enquiry in accordance with law. This case had a very long history of litigation. The incident occurred some time during emergency and the respondent had made a grievance that he was a victim of the circumstances which prevailed at that time. ;" ( 14 ) NOW the point for consideration is whether we should remit the matter for fresh enquiry in accordance with law. This case had a very long history of litigation. The incident occurred some time during emergency and the respondent had made a grievance that he was a victim of the circumstances which prevailed at that time. It is on record he had examined self before the Shah Commission. The delay in disposal of these proceedings from the sfage of institution of the inquiry against the respondent upto this day could not be held against the respondent as chat was not his making. Further more, a fresh enquiry at this distance of time may not bring out the charge against the respondent and both public time and money would be wasted in holding a denovo enquiry into this matter. However, regard being had to the fact that the appellants have expressed themselves strongly about the undesirability of taking the respondent back to the service from the point of view of the smooth working of the Institution and regard being had to the fact that appellant No. 1 is a National Institution for Mental Health for patients who require special care and protection, the proper course is to direct the appellants to pay the respondent the backwages from the date of his retirement of his services upto this date and pension in proportion to the salary he would have drawn as on this date. Accordingly, the appellants shall pay the backwages to the respondent on the basis of the average of the salary due to him from the date of his retirement upto date. Had the respondent been in service, he would have been entitled to certain increments. Taking into consideration the present salary of the car driver in the Institute, it would be reasonable to fix the average salary of the respondent at rs. 1,200/- P. M. The backwages on the basis that the respondent was entitled to rs. 1,200/- P. M. , should be paid to him from the date of termination of his services upto the date of this order. Further, he is also entitled to pension since the post held by him is admittedly a pensionable post and he has seven years of service left behind him. 1,200/- P. M. , should be paid to him from the date of termination of his services upto the date of this order. Further, he is also entitled to pension since the post held by him is admittedly a pensionable post and he has seven years of service left behind him. ( 15 ) ACCORDINGLY, the appeal is partly allowed and in modification of the order of the learned single Judge, we quash the impugned orders herein and direct the appellants to pay the backwages due to the respondent at the rate of Rs. 1,200/- P. M. from the date of compulsory retirement of his services upto- date and pensionary benefits on the basis of the salary drawn by him had he remained in service for another seven years. These directions shall be implemented within a period of six weeks from the date of receipt of this order. --- *** --- .