AVDHESH CHANDRA SAXENA v. UTTER PRADESH CO-OPERATIVE SUGAR FACTORIES FEDERATION LTD — 1993 DIGILAW 703 (ALL)

A. P. SINGH, J. ( 1 ) PRESENT writ petition has been filed against the order dated 17. 11. 1992, which is filed as Annexure-10 to the writ petition, passed by the General Manager of Majhola Distillety and Chemical Works, majhola, district Pilibhit. Petit oner has also prayed for an order that his functioing as Store Keeper in the said distillery may not be disturbed or the basis of the aforementioned order of dismissal. ( 2 ) IN Paras 1 to 4 of the writ petition, it has been alleged that although the petitioner was employed to v ork in tlie Majbola Distillery and Chemical works, Majhola, district Pilibhit (hereinafter referred to as the distillery), but the said distillery has no Independent status and is not registered under the Companies Act or under any other Act but is being run by the U. P. Co-operative Sugar Factories Federation Ltd. , Lucknow, which controls its functioning and finances. It has further be in alleged that the U. P. Co-operative sugar Factories Federation Ltd. , Lucknow (hereinafter referred to as federation) is an instrumentality of the State Government and, therefore, it is covered under Article 12 of the Constitution. ( 3 ) IN the counter-affidavit filed on behalf of the Distillery, the fact that the distillery has no independent status of its own has not been denied. It has not been disclosed in the counter-affidavit as to under which enactment or instrument the said distillery has been created or registered. The respondent distillery has, however, alleged that the said distillery is independent of and has nothing to do with the Federation inasmuch as it has got its licence in its own name for carrying on its activities under the U. P. Excise Act. ( 4 ) IN absence of specific pleading regarding the incorporation of the distillery either under the Companies Act or under U. P. Co-operative societies Act or under the Partnership Act or under any other law, there is no alternative but to accept the allegation of the petitioner that the distillery is the creation of the Federation and it is the Federation which is running the distillery. ( 5 ) THE petitioner was appointed as Store Keeper in the distillery on 23rd March, 1983. He was, however, dismissed from service by the impugned order dated 17. 11. 1992 on the proved charges of misconduct. ( 5 ) THE petitioner was appointed as Store Keeper in the distillery on 23rd March, 1983. He was, however, dismissed from service by the impugned order dated 17. 11. 1992 on the proved charges of misconduct. ( 6 ) IN the writ petition, petitioner has challenged the said order on the ground that no enquiry was conducted before passing the order of dismissal against the petitioner and holding him guilty of the charges of misconduct except for asking his explanation on certain items of misconduct. Allegations in this respect are to be found in Paras 13, 18, 19 and 20 of the writ petition, which merit reproduction and are being reproduced below :"13. That thereafter to further notice was issued to the petitioner nor any enquiry held nor any date fixed in any enquiry proceedings whatsoever. On 17-11-1992 an office order has been issued by the General Manager terminating the services of the petitioner. A true copy of the office order dated 17-11-1992 is being enclosed rs Annexure 10 to this writ petition. 18. That the impugned order has been passed in violation of principal of natural justice. Form a perusal of the office order dated 17-11-1992 it transpires that after the submission of the reply by the petitioner on 7-9-1992 to the notice dated 26-8-1992 some parawise comments had been obtained by the General manager from the Deputy Chief Account and the Distillery manager and on the basis of the same the impugned order has been passed It is, however, specifically stated that at no point of time any such point-wise report was made applicable to the petitioner nor the petitioner permitted to submit a reply to this paragraphwise reply. 19. That reliance placed upon the alleged report of the Deputy chief Accountant and the Distillery Manager referred to in the office order dated 17-11-1992 is wholly ex parte and without any opportunity to the petitioner to rebut the same. 20. That the impugned order dated 17-11-1992 had not been preceded by any enquiry proceeding. It is stated that at no point of time any Enquiry Officer was appointed no evidence led, the petitioner also not permitted any opportunity to lead any evidence in his defence and straightaway the order dated 17-11-1992 has been passed. 20. That the impugned order dated 17-11-1992 had not been preceded by any enquiry proceeding. It is stated that at no point of time any Enquiry Officer was appointed no evidence led, the petitioner also not permitted any opportunity to lead any evidence in his defence and straightaway the order dated 17-11-1992 has been passed. " ( 7 ) FROM a perusal of Paras 17, 18, 19, 23, 24 and 25 of the counter-affidavit of the Distillery, it bears out that no forroal disciplinary enquiry was held for establishing the charges against the petitioner. On the other hand, the petitioner was called upon to give his explanation to the charges levelled against him. After his explanation was submitted, a Stores verification Committee was constituted in which the petitioner was invited to co-operative so as to verify the shortages in the stores, Petitioner appears to have not co-operated in the exercise of verification of stores by the stores Verification Committee and the Committee submitted its report whereafter the disciplinary authority considered the explanation of the petitioner submitted by him in respect of the charges levelled on him, the report of the Stores Verification Committee and the service record of the petitioner and thereafter passed the impugned order holding him guilty of the charges. ( 8 ) AT the Bar, it was argued by the learned counsel for the petitioner that the provisions of U. P. Co-operative Societies Employees Services regulations were applicable to the petitioner and since the order of dismissal was passed in violation of Service Regulation 85 and also Regulation 87 of the said Service Regulations, the same was liable to be quashed. Learned counsel also argued that the order under challenge was also in the breach of the principles of natural justice and was also arbitrary and, therefore, it was violative of Article 14 of the Constitution and the same therefore deserved to be quashed. Learned counsel also argued that the order under challenge was also in the breach of the principles of natural justice and was also arbitrary and, therefore, it was violative of Article 14 of the Constitution and the same therefore deserved to be quashed. ( 9 ) ON the other hand, learned counsel for the respondents has argued that the service conditions of the employees of the distillery are governed by the standing Orders framed by the State Government and enforced under Section 3-B of the U. P. Industrial Disputes Act, 1947 and, therefore the 1975 Service Regulations, Specially Regulations 85 and 87 are not applicable and the order, therefore, cannot be quashed for non-compliance of the said Service Regulations It was also argued that the order was neither in the breach of the principles of natural justice and nor it was in violation of the provisions of Article 14 of the Constitution inasmuch as the petitioner was given fair opportunity before passing the order of dismissal. It was further alleged that the enquiry by the Stores Verification committee was held in the matter but the petitioner himself failed to appear for verification of the articles found short in the store which was under his control and, therefore, the report submitted by the Committee regarding shortage of items from the store was rightly accepted by the disciplinary authority, who rightly passed the order of dismissal after considering the explanation of the petitioner submitted by him in reply to the items of charges included in the charge-sheet, the report of Stores Verification committee and the service record of the petitioner. ( 10 ) THE learned counsel for the parties also submitted their written arguments. ( 10 ) THE learned counsel for the parties also submitted their written arguments. The emphasise in the written arguments by the learned counsel for the respondents was that the petitioner was a workman, as such, the proper remedy which was available to him was under the provisions of u. P. Industrial Disputes Act and the extraordinary jurisdiction under article 226 of the Constitution should not be made available to the petitioner specially so when the Standing Orders govern his service conditions and also for the reason that even if the order of dismissal is found to have been passed in breach of the principles of natural justice, the employer distillery will have opportunity before the Labour Court to lead evidence to prove the charges on which the petitioner was dismissed from service whereas to such opportunity is available in writ jurisdiction. ( 11 ) ON the other hand, learned counsel for the petitioner urged that the order of dismissal having been passed in violation of the principles of natural justice and Article 14 of the Constitution, the Court need not go into the exercise of deciding as to whether the Service Regulations or the standing Orders govern the service conditions of the petitioner and should quash the order of dismissal as the same is void ad initio and for that reason the petitioner should not be relegated to the forum of Labour court under the U P. Industrial Disputes Act even if he is found to be a workman under that Act. ( 12 ) BOTH the learned counsel cited cases in support of their contentions referred to above. ( 13 ) LEARNED counsel for the petitioner relied on a judgment of this court in Writ Petition No. 398 of 1983 and other connected writ petitions decided on 23rd July, 1984 by a Division Bench of this Court sitting at luckhnow In the said decision, this Court relied on another judgment in the case of Parmeshwar Dayal Shukla v. Deputy Registrar, Co-operative Societies U. P. and others, 1982 Labour and Industrial Cases 1712, and held that the Federation was State and the writ petition was maintainable against it. ( 14 ) IN view of the aforesaid judgment, it is now futile to enter into the exercise of deciding as to whether the Federation is or is not State for the purposes of Part III of the Constitution. ( 14 ) IN view of the aforesaid judgment, it is now futile to enter into the exercise of deciding as to whether the Federation is or is not State for the purposes of Part III of the Constitution. ( 15 ) FURTHER, in absence of denial by the respondents that the distillery is the creation of the Federation and has no independent status of its own, the Court has to proceed that the distillery has no independent status and has its name given to it by the Federation itself and Federation is its mother organization and the petitioner for all legal purpose is to be deemed to be an employee of the Federation. ( 16 ) THERE is a serious debate between counsel for the parties regarding applicability of Service Regulations in respect of the petitioner. On the one hand, it was argued by the learned counsel for the petitioner that the Service Regulations and not the standing Orders applied to govern the service conditions of the petitioner. On the other hand, learned counsel for the respondents argued that it was the standing Orders and the service regulations which govern the service conditions of the petitioner, on the basis where of on the one hand, it was argued by the learned counsel for the petitioner that the writ petition was maintainable for the breach of the provisions of the Regulations while the learned counsel for the respondents argued that the case was at the most an industrial dispute which must therefore be taken to the Labour Court which was the proper course to have been adopted by the petitioner and the writ petition desrves to be dismissed on that ground alone. ( 17 ) JT is no doubt true that the State Government has framed Standing orders under Section 3-B of the U. P. Industrial Disputes Act, 1947 and has applied the said Standing Orders to govern the service conditions of all the Co-operative Distilleries and those Standing Orders to govern the service conditions of the employees of the Co-operative Sector. It is also true that the petitioner is an employee of the distillery run under the co-operative Sector. The Standing Orders have been framed by the State government and notified under Section 3-B of the U- P. Industrial disputes Act and are, therefore, applicable to the petitioner. It is also true that the petitioner is an employee of the distillery run under the co-operative Sector. The Standing Orders have been framed by the State government and notified under Section 3-B of the U- P. Industrial disputes Act and are, therefore, applicable to the petitioner. The impugned order of dismissal to has been passed by the General Manager of the respondent distillery for the breach of sub-clauses (i), (iv), (vii), (viii), (x), (xi), (xv), (xviii) and (xix) of the Standing Order No. 22. ( 18 ) NOTWITHSTANDING the fact that the order under challenge is an order passed in exercise of powers under the Standing Orders in respect of a workman under the U. P. Industrial Disputes Act, but should it be sufficient to deny relief to the petitioner under Article 226 of the Constitiution? as a citizen, petitioner has certain fundamental rights. Those fundamental rights include a right of being treated fairly and reasonably which is guaranteed under Article 14 of the Constitution. The Article enjoins on every State and its instrumentalities to act fairly and reasonably and not arbitrarily. The iajunction of Article 14 has overriding effect on all laws including the Standing Orders A breach of Article 14 of the constitution can be complained of directly in the Supreme Court under article 32 of the Constitution as well as in this Court under Article 226 thereof. It is however, for the Supreme Court or for this Court to entertain a petition which has been filed with such a complaint itself or to relegate the petitioner to avail the appropriate authority under the concerned enactment. Normally, litigant must avail the normal remedy which is available to him under the law which governs his service but as a rule the Court does not say an emphatice no to all the persons who approach it directly without availing the remedy available to them under the normal laws. In a fit case, the Supreme Court as well as this Court entertains writ petitions directly under Article 32 or under Article 226 of the Constitution as the case may be. In a fit case, the Supreme Court as well as this Court entertains writ petitions directly under Article 32 or under Article 226 of the Constitution as the case may be. ( 19 ) THE question, which now arises, is as to in whic h case the Court should and in which case the Court should not interfere in its exercise of powers under Article 226 of the Constitution, that is to say, in what situation the Court should tell the person approaching it to avail of the remedy available to him under the normal laws and in which case it should open its door to entertain the petition at the instance of a person who has remedy under the normal laws but has approached the Court without availing that remedy. ( 20 ) CONSIDERABLE debate in this connection has been undergone in various judgments of the Supreme Court as well as of this Court, some of them have been cited by the learned counsel for the parties in their written arguments. Without referring to those decisions one settled principle culled out from the said decisions is that where a right emanates in favour of the petitioner under the special law and the remedy therefor is also provided in that law, the proper procedure for the petitioner is to take recourse under that law for enforcement of the right created by that law. But where the right is created under the general law or under the Constitution, the Supreme Court or this Court while hearing writ petitions will still examine as to whether the facts of the case do justify entertaining and deciding the petition by itself or it was still required to relegate the petititioner to avail the appropriate remedy under the special law (Industrial law ). Even in the second category of cases if the Court finds that there are no disputed questions of fact and no enquiry into the factual aspects of the case is required to be made for judging the illegality complained of, it will be futile exercise to relegate the petitioner to the forum under the industrial law as the same will cause unnecessary harassment to the petitioner. Thus, if the illegality from which the order under challenge is said to be suffering on the face as per the pleadings of the parties in the case, the Court will not relegate the petitioner to avail the remedy under the industrial law, but it will entertain the petition and decide it by itself although the appropriate remedy under the special or general law was available to the complainant in that regard but it was not availed. ( 21 ) IN the present case, the petitioner has challenged the order as having been passed in the breach of principles of natural justice and in a wholly arbitrary fashion without holding an enquiry for establishing the guilt of the petitioner in respect of the charges which were levelled on him and for which he has been punished with the impugned order of dismissal. These averments of the petitioner in the writ petition have not been seriously disputed by the respondents. Respondents have not come up with the case that an enquiry was held in which charges against the petitioner were proved by examining witnesses and by affording opportunity of hearing to the petitioner and by allowing the petitioner to cross-examine the witnesses produced against him. What has been alleged is that the petitioner was given full opportunity of submitting his explanation and to participate in the verification process which was conducted by the Stores verification Committee. Petitioners allegation that the report of the Stores Verification Committee too was not supplied to him nor he was called upon to offer his comments thereon has also not been denied. The respondents, however, have tried to justify the impugned order by saying that the same was passed after considering the explanation of the petitioner, report of the Stores Verification committee and the service record of the petitioner. ( 22 ) A scruitiny of the allegations and counter-allegations made by the parties in the case Distinctly mark out that no enquiry, whatsoever, was conducted for establishing the charges levelled on the petitioner in respect whereof the impugned order of dismissal was passed against him. It is also established that the petitioner was not given opportunity to examine the documents on which the charges were based and which offered the basis for passing the order of dismissal. It is also established that the petitioner was not given opportunity to examine the documents on which the charges were based and which offered the basis for passing the order of dismissal. The report of the Committee, which was also relied on against the petitioner, was also not given to him nor the petitioner was invited to give comments on them. Thus, there has been complete violation of principles of natural justice in passing the order of dismissal against the petitioner. The Supreme Court in its recent judgment in the case of Managing Director, ECIL, Hyderabad v karunakar JT 1993 (6) SC 1, has held that furnishing of the report of the disciplinary Enquiry Committee is a pre-requisite of the mandate of law of affording opportunity of hearing enshrined in Article 14 of the Constitution and the said obligation is inherent whether the employee is of the State or of an instrumentality of the State or of a private body. ( 23 ) THE scope of reasonable opportunity of hearing has been identified in numerous cases and in various decisions of the Supreme Court and this Court, it has been held that a person on whom charges of misconduct are levelled must be given an opportunity of hearing which will necessarily include a viva voce enquiry into the items of charges levelled against the person concerned and also opportunity to be given to him to cross-examine the witnesses who must be examined to establish those charges and also an opportunity to the delinquent to produce his own evidence in support of his written explanation by way of explanation to the items of the charges levelled against him. ( 24 ) IN the present case, nothing of the sort was done. What was done was that explanation of the petitioner on the items of the charges levelled on him was called for. Petitioner denied those charges Before filing his explanation, he requested for supply of certain documents which was not supplied to him. No oral enquiry was held neither witnesses were examined to prove the charges levelled against the petitioner. Instead a Stores Verification Committee was appointed and report was obtained from it. Petitioner denied those charges Before filing his explanation, he requested for supply of certain documents which was not supplied to him. No oral enquiry was held neither witnesses were examined to prove the charges levelled against the petitioner. Instead a Stores Verification Committee was appointed and report was obtained from it. Even the copy of the report was not given to the petitioner nor the petitioner was invited to offer his comments against the said report no opportunity to meet the findings of the Committee was given to the petitioner nor the petitioner was called upon to show cause as to why punishment of dismissal be not inflicted on him on the basis of his explanation and the report submitted by the Committee. ( 25 ) THE principles of natural justice have no written codified rules nor its scope can be limited to cover all the cases which may arise for all times to come. Its scope changes from the facts of each case. In the present case, the respondent, being an instrumentality of the State, was under legal obligation having been enjoined by article 14 of the Constitution to act in a fair and reasonable manner and not to act in an arbitrary fashion. The respondent was under obligation to have held oral enquiry by associating the petitioner for establishing the charges of misconduct levelled on him. That, admittedly, was not done and the order was passed barely on the basis of the explanation submitted by the petitioner to the charges of misconduct as well as on the basis of the report submitted by the Stores verification Committee, which too was never supplied to him. The order was thus passed in an arbitrary manner in breach of principles of natural justice which is an integral part of the requirement of fairness enshrined under Article 14 of the Constitution. The impugned order of dismissal is thus ab initio being in breach of principles of natural justice as well as of Article 14 of the Constitution. ( 26 ) NOW should the order be quashed for the said reason of being violative of Article 14 of the Constitution and the principles of natural justice or the respondents be permitted to establish the charges by holding an enquiry as was argued by the learned counsel for the respondents. ( 26 ) NOW should the order be quashed for the said reason of being violative of Article 14 of the Constitution and the principles of natural justice or the respondents be permitted to establish the charges by holding an enquiry as was argued by the learned counsel for the respondents. It was contended that if the petitionr is relegated to the forum under the U. P. Industrial Disputes Act, the respondents will have the opportunity of proving the charges against the petitioner before the Labour Court. The grievance of the respondents appears to be bona fide. In the circumstances, a via media has to be called out for doing justice between the parties. ( 27 ) THE writ petitioner succeeds and is allowed ; the order dated 17. 11. 1992, whereby petitioner was dismissed from service is quashed. The respondents are, however, at liberty to hold the requisite enquiry against the petitioner if they so like and complete the same within a period of four months from today, if the enquiry proceedings are terminated within the period of four months and the petitioner is found guilty and dismissed from service, the respondents shall not be called upon to pay salary or wages to the petitioner with effect from 17. 11 1992 till the date of this judgment. The respondents shall, however, reinstate the petitioner before they proceed with the enquiry proceedings under this order and shall pay his salary to which the petitioner may be legally entitled as an employee of the distillery after his reinstatement. In case, the dismissal order, passed by the respondents against the petitioner after holding enquiry, as said above, is set aside by the Labour Court, the petitioner will be entitled to claim entire salary including arrears and other increments etc. with effect from 17. 11. 1992. The petitioner will also be entitled to costs of this case, which is assessed at Rs, 1500. Writ petition allowed. .