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2001 DIGILAW 279 (MP)

MAHESH PAL SINGH v. SUPERINTENDING ENGINEER, LOWER CHAMBAL CIRCLE

2001-03-27

R.B.DIXIT, S.P.SRIVASTAVA

body2001
( 1 ) HEARD the learned counsel for the appellant as well as the learned Government advocate representing the State/respondent no. 1. ( 2 ) PERUSED the record. ( 3 ) THE appellant who was a respondent in the writ petition giving rise to this appeal feels aggrieved by the judgment and order passed by the learned single Judge whereunder allowing the writ petition filed by the employer, the order passed by the Industrial Court directing the reinstatement of the appellant in service with the entitlement to have 50% of the back wages was quashed restoring the order of the labour Court which had dismissed the application filed by the present appellant under sections 31, 61 and 62 of the Madhya Pradesh industrial Relations Act, 1960, upholding the order dismissing him from the service. The appellant has prayed for setting aside of the impugned judgment and order passed by the learned single Judge and restoration of the order passed by the Industrial Court. ( 4 ) THE appellant claimed to have acquired the status of a "permanent employee" as contemplated under rule 2 of the Standard standing Orders annexed with the Madhya pradesh Industrial Employment (Standing 'orders) Rules, 1963, on account of his having worked on the Post of Typist for a period of more than six months as against a vacancy in that post on satisfactory basis. It was claimed that his abrupt termination amounted to illegal retrenchment. It was also asserted that before dispensing with his service though charges of misconduct had been levelled against him, no departmental enquiry had been held. It was further claimed that before the termination of his service, he had not even been given one month's notice or paid the wages for one month in lieu of the notice. ( 5 ) THE employer had contested the claim asserting that the appellant was a muster roll employee engaged on temporary basis for a limited period. He was a quarrelsome person and his work was not at all satisfactory. On may 22, 1987, the present appellant had assaulted Y. R. Kadam, Pratham Shreni Lipik which led to the lodging of the first information report and the arrest of the appellant. It was claimed that full opportunity was given to defend and after holding the enquiry his service had been dispensed with. On may 22, 1987, the present appellant had assaulted Y. R. Kadam, Pratham Shreni Lipik which led to the lodging of the first information report and the arrest of the appellant. It was claimed that full opportunity was given to defend and after holding the enquiry his service had been dispensed with. It was also claimed that the appellant was not entitled to any notice or salary in lieu of the notice as claimed. The order dispensing with his service was passed in accordance with law. ( 6 ) THE employer had also asserted in clear and categorical terms that the present appellant had not worked for 240 days in a calendar year and was not entitled to any protection as sought for. ( 7 ) DURING the pendency of the case before the labour Court, both the parties led the oral and documentary evidence in respect of their respective claims. ( 8 ) ON a consideration of the oral and documentary evidence led by the parties, the labour Court came to the conclusion that the present appellant accompanied with his associates had indulged in the marpeet as claimed by the employer in respect whereof a first information report had been lodged. The fact that the appellant did indulge in the marpeet of Mr. Kadam stood admitted to him in the affidavit, exhibit D/7. In support of the fact that the present appellant along with his associates assaulted Y. R. Kadam within the premises of the office where they worked, reliance had been placed on the statements of lal Govindram Hingorani, Madanlal Batham and Yashwantrao Kadam, the witnesses examined on behalf of the employer. ( 9 ) IT may be noticed that Madanlal Batham had deposed that Mahesh Pal Singh, the present appellant along with 4 to 5 of his associates armed with Katta, knife etc. , had assaulted yashwantrao Kadam which incident was witnessed by various persons. ( 10 ) YASHWANTRAO Kadam had claimed that in that marpeet he had received injuries in his eyes, chest, lips, hands and back and a knife injury in his hand. Mahesh Pal Singh, the present appellant, it was claimed had given fist punch (Ghoonsa) blows also to him and the entire matter was reported to his office by him as well as to the police. Mahesh Pal Singh, the present appellant, it was claimed had given fist punch (Ghoonsa) blows also to him and the entire matter was reported to his office by him as well as to the police. ( 11 ) BEFORE the labour Court, it had been urged that in his cross-examination, Y. R. Kadam in answer to a question put to him had stated that it was correct to say that the applicant had not beaten him and further that he had not got himself medically examined. ( 12 ) ON the basis of the aforesaid alleged admission, it was sought to be urged that the whole incident wherein the appellant was claimed to have committed the misconduct was false and his service could not be dispensed with on account of his having indulged in the marpeet, etc. ( 13 ) THE labour Court however, taking into consideration the assertions made by the appellant in his affidavit (exhibit D/7) and the evidence of the other eye-witnesses, had chosen to rely upon the statement made by Mr. Kadam in his examination-in-chief as representing the true version of the incident. The employer, it may be noticed had relied upon the statement of the eye- witnesses examined before the order dispensing with the service of the present appellant had been passed. ( 14 ) THE Industrial Court had set aside the order of the labour Court on the ground that the employer having dispensed with the service of the appellant on the basis of an alleged misconduct ought to have served a charge-sheet and undertaken the full- fledged departmental enquiry which was not done and further that in face of the admission of Mr. Kadam occurring in his cross- examination, the termination of service could not be sustained in law. ( 15 ) A perusal of the impugned judgment passed by the learned single Judge indicates that the stray sentence in the cross-examination referred to hereinabove was not held to be sufficient to render the order passed by the labour Court unsustainable in law. The question of assaulting of Y. R. Kadam had been determined taking into consideration the cumulative effect of the oral and documentary evidence led by the employer which could not render the version as disclosed in the examination-in-chief of Y. R. Kadam as unworthy of credit. The question of assaulting of Y. R. Kadam had been determined taking into consideration the cumulative effect of the oral and documentary evidence led by the employer which could not render the version as disclosed in the examination-in-chief of Y. R. Kadam as unworthy of credit. ( 16 ) THE learned single Judge recorded his satisfaction that the reasons for the conclusion and the finding of the labour Court were cogent and they had not been met by the Industrial court at all while reversing the ultimate order passed by the labour Court. ( 17 ) IN the present case, what we find is that on his own showing the appellant had claimed to have acquired the status of a "permanent" employee as envisaged under rule 2 (i) of the Standard Standing Orders referred to hereinabove. ( 18 ) THE aforesaid rule provides that a 'permanent' employee is one who has completed six months satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee. ( 19 ) RULE 11 of the Standard Standing orders provides for the procedure regulating the termination of the employment and the notice thereof to be given by the employer to the employee. ( 20 ) CLAUSE (a) of the aforesaid rule stipulates that when the employment of a permanent employee is to be terminated, he shall be given one month's notice or shall be paid wages for one month in lieu of notice. No employee other than a permanent employee shall be entitled to any such notice or wages in lieu thereof for termination of his service. ( 21 ) THE employer, in the present case had come up with a consistent case that the present appellant did not have a satisfactory service record. In the circumstances, as contemplated in rule 11 referred to hereinabove, he was not entitled to any notice or wages in lieu thereof for the termination of his service specially when according to the employer, the present appellant was engaged on daily wage basis as a temporary measure and that too for a limited period. In the circumstances, as contemplated in rule 11 referred to hereinabove, he was not entitled to any notice or wages in lieu thereof for the termination of his service specially when according to the employer, the present appellant was engaged on daily wage basis as a temporary measure and that too for a limited period. ( 22 ) IT may, however, be noticed that it is by now well established that strict laws of evidence are not applicable to the departmental proceedings and the insistence on the observance of the rules of evidence by the disciplinary authorities, would rob the administrative law of its utility and the needed flexibility as it hinders or hampers them unduly in their task of weighing evidence and deciding on facts, besides resulting in the exclusion of much of the evidence of probative value. It may, however, be emphasised that the decision of the disciplinary authority must be based on material of some probative value which tends to logically show the existence of facts relevant to the issue to be determined. If the material relied upon by the disciplinary authority is capable of having a probative value, the weight to be attached to it is a matter for the said authority entrusted with the responsibility of deciding the issue. ( 23 ) WE are of the clear opinion that if the material relied upon is capable of having any probative value, the weight to be attached to it is a matter for the disciplinary authority entrusted with the responsibility of deciding the issue. It is the preponderance of probability that matters. In the matters regarding departmental proceedings, the expression "sufficient evidence" to prove a charge has to be taken as distinguishable from the evidence which merely raises a suspicion. The proof has to be capable of scrutiny and should stand the test of reasonableness consistent with the normal conduct and probability. The rule followed in criminal trial that an offence is not established unless proved by evidence beyond reasonable doubt is not applicable to the departmental proceedings. ( 24 ) TAKING into consideration the facts and circumstances brought on record including those noticed hereinabove, we are not satisfied that any sufficient ground can be said to have been made out requiring an interference in the impugned order. ( 25 ) THIS appeal is clearly devoid of merit and is dismissed in limine. .