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2001 DIGILAW 750 (CAL)

R. N. Singh v. Eastern Coalfields Ltd.

2001-12-13

Ashok Kumar Mathur, Subhro Kamal Mukherjee

body2001
JUDGMENT Ashok Kumar Mathur, CJ.: This is an appeal directed against the order passed by the learned Single Judge dated 16th June,1995 whereby the learned Single Judge has dismissed the writ petition. 2. The brief facts which are necessary for disposal of this appeal are that the petitioner was a clerk in the Eastern Coalfields Limited at Dhemomain Colliary. A departmental inquiry was initiated against him by serving a charge sheet that he had prepared and presented wage sheets of the underground loaders for the month of February, 1983 for signature of the Assistant Personal Manager who when wanted to make a test check before signing the sheets, that was not liked by the delinquent and he misbehaved with him and snatched away the said wage sheets and later on produced the wage sheet for signature of the Manager, the Manager also did not sign the sheets and on checking found that the employee had prepared false bills to the extent of Rs.2,409.59 with a view to defraud the company. The original sheets were also at variance with the duplicate copies thereof as shown in the annexure to the charge sheet. On further inquiry and checking it was found that the wage sheets prepared by him for the months of October, November and December,1982 and January, 1983 contained falsification of accounts aggregating to Rs.13,501/-. Explanation of petitioner was sought for, his reply was not satisfactory, therefore, a departmental inquiry was initiated against him; It is alleged that inspite of repeated notices the petitioner did not participate in the inquiry proceedings on various pleas and ultimately the inquiry was held ex parte. The inquiry officer submitted his finding and found the petitioner guilty of the charges and the same was concurred by the management and thereupon the order of dismissal from service was passed against the petitioner and it was communicated to him on 31st March, 1984. The petitioner preferred an appeal against this order. Without waiting for the result of the appeal, the petitioner filed a writ petition before this Court (Matter No. 2176 of 1986) challenging the order of dismissal. This Court on 8th June, 1989 set aside the order of dismissal and directed the management to proceed with the inquiry afresh giving the petitioner reasonable opportunity of being heard. Without waiting for the result of the appeal, the petitioner filed a writ petition before this Court (Matter No. 2176 of 1986) challenging the order of dismissal. This Court on 8th June, 1989 set aside the order of dismissal and directed the management to proceed with the inquiry afresh giving the petitioner reasonable opportunity of being heard. It was also directed that the petitioner be treated as on duty for the entire period since the order of dismissal but he shall only be paid 25% of the arrear salary for the time being. It was also ordered that in the event the writ petitioner succeeds in the inquiry he shall be entitled to the entire salary for the period during which the order of dismissal was operative. Liberty was given to proceed afresh on the basis of the self same charge sheet. Aggrieved against this order an appeal was preferred (Appeal No.349 of 1989) by the management. This Court on 9th June, 1989 stayed operation of the order passed by the learned Single Judge and further directed that the management could proceed with the inquiry as directed by the learned Single Judge but directed that the final order may be passed consequent upon the completion of the fresh inquiry but effect shall not be given to that order without the leave of the appellate court. The second inquiry was conducted and the petitioner was found guilty of the charges and the disciplinary authority on 20th December, 1990 agreeing with the finding of the inquiry officer imposed the punishment of dismissal from service upon the petitioner but in view of the order passed by the Division Bench the order could not be given effect to and a permission was bought from the Division Bench to give effect to the order. On 1st August, 1991 the Division Bench passed an order directing the management to pay the writ petitioner dues @ 25% of the salary as ordered by this Court for the period till 7th June, 1989 and to pay the full salary of the petitioner for the period from 8th June,1989 till 31st July, 1991. Leave was also granted for communication of the order of dismissal passed by the disciplinary authority and accordingly on 20th December, 1990 the order of dismissal was communicated to the petitioner. The appeal as well as the stay petition were disposed of by the Division Bench. Leave was also granted for communication of the order of dismissal passed by the disciplinary authority and accordingly on 20th December, 1990 the order of dismissal was communicated to the petitioner. The appeal as well as the stay petition were disposed of by the Division Bench. 3. Aggrieved against the second order of dismissal dated 20th December, 1990 the petitioner filed a second writ petition being the present one. This writ petition was also heard by the learned Single Judge and the learned Single Judge after hearing the matter came to the conclusion that the order of dismissal passed by the management does not warrant any interference and he dismissed the writ petition. 4. One of the principle submission which was made before the learned Single Judge was that February,1983 records was not made available, therefore, need arose for examining the earlier inquiry officer in the witness to substantiate the February, 1983 records. It was submitted that it was there at the time of the first inquiry and therefore just because that the records of February, 1983 is not available that should not be taken to mean that there is no ground to substantiate the charges. This argument was negatived by the learned Single Judge. It was observed by the learned Single Judge that simply because of the absence of the record of February, 1983 the charges with regard to falsification of accounts for the months of October, November and December, 1982 and January, 1983 does not render unbelievable or untrustworthy. Therefore, the learned Single Judge negatived the contention. 5. The next contention which was raised was with regard to non-supply of the report of the inquiry officer before passing the order of dismissal. In that context the learned Single Judge examined the decision of the Apex Court in the case of Union of India vs. Mohammed Ramzan Khan, AIR 1991 SC 471 , as well as in the case of Managing Director, ECIL, Hyderabad vs. B. Karunakar, AIR 1994 SC 1074 . The learned Single Judge examined the ratio laid down in the case of Karunakar (supra) and with reference to page 1092 observed that the Courts should not mechanically pass the order when the report of the inquiry officer is not made available to the delinquent to mean denial of principles of natural justice. The learned Single Judge examined the ratio laid down in the case of Karunakar (supra) and with reference to page 1092 observed that the Courts should not mechanically pass the order when the report of the inquiry officer is not made available to the delinquent to mean denial of principles of natural justice. Courts and Tribunals should examine the report and thereafter there should be a finding that non-supply of the report of the inquiry officer has caused grave prejudice to the delinquent. Relying on this observation of the Apex Court the learned Single Judge dismissed the writ petition and found that non-supply of the report of the inquiry officer has not caused any prejudice to the petitioner as none was pleaded in the writ petition. Therefore, the learned Single Judge dismissed the writ petition. Aggrieved against this order the present appeal has been filed by the petitioner. 6. We have heard the learned counsel for the parties and perused the records. 7. The learned counsel for the appellant submitted that it is an admitted fact that neither the report of the inquiry officer was supplied to the petitioner nor the petitioner was given a second show cause notice calling upon him to show cause as to why he should not be dismissed from service. The learned counsel with reference to the decisions of Mohammed Ramzan Khan (supra) and Karunakar (supra) submitted that non-supply of the report of the inquiry officer is in breach of principles of natural justice and in violation of the ratio laid down by the aforesaid decision of the Apex Court. At the outset it may be stated that as far as Mohammed Ramzan Khan's case (supra) is concerned, that was delivered on 20th November, 1990 and it was clearly mentioned in the Karunakar's case (supra) that the ratio laid down by the Constitution Bench in the Karunakar's case (supra) will operate prospectively and not retrospectively. Earlier in Mohammed Ramzan Khan's case (supra) their Lordships observed that the event of non-supply of the report of the inquiry officer and the order passed by the disciplinary authority will be in serious violation of the principles of natural justice and that will be bad on that count. Earlier in Mohammed Ramzan Khan's case (supra) their Lordships observed that the event of non-supply of the report of the inquiry officer and the order passed by the disciplinary authority will be in serious violation of the principles of natural justice and that will be bad on that count. But subsequently in the Karunakar's case (supra) their Lordships observed that it is true that the delinquent is entitled to a copy of the report before the disciplinary authority takes a decision regarding the guilt or innocence of the delinquent and refusal to furnish a copy of the report of the inquiry officer amounts to denial of reasonable opportunity. It was further observed that the ratio which has been laid down by the Constitution Bench shall be prospective that is after 20th November, 1990. As such the action which has been taken prior to 20th November, 1990 on the basis of the position of law as amended under Article 311 of the Constitution shall not be rendered invalid. It was further observed that even in cases in which there is non-supply of the report of the inquiry officer, their Lordships held that, the Court or the Tribunal should not mechanically pass the order setting aside the order of punishment. They must weigh the situation whether non-supply of the copy of the inquiry officer has really caused prejudice or not. Therefore, have qualified the effect of the non-supply of the copy of the report of the inquiry officer and observed that each case should be examined by the Courts and Tribunals before setting aside the impugned order of punishment. In this connection it may be relevant to read the observation of the Apex Court given in Karunakar's case (supra), which goes on to say: "When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have made prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with backwages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. Hence to direct reinstatement of the employee with backwages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. 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. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an 'unnatural expansion of natural justice' which in itself is antithetical to justice. Hence, in all cases where, the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and the 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 report was not furnished. 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. 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. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law.". 8. The aforesaid decision of the Constitutional Bench summarised whole position of law. Therefore, in each case where the report of the inquiry officer has not been given and punishment has been imposed should be examined that in fact non-supply of the report of the inquiry officer has caused serious prejudice or not. In the present case it may be noted that the appeal was filed by the appellant and before waiting for the result of appeal, the appellant preferred to the present writ petition. In the present case it may be noted that the appeal was filed by the appellant and before waiting for the result of appeal, the appellant preferred to the present writ petition. Therefore, the petitioner by his own conduct has frustrated the filing of the appeal before the Appellate Authority. 9. Now coming to the question of what prejudice has been shown by the petitioner in his writ petition, we called upon the learned counsel for the appellant to point out the paragraphs in which it is pleaded. The copy of the report of the inquiry officer was given to the petitioner at the time when the application was moved by the management before this Court for permitting them to pass the order on the basis of the report of the inquiry officer, therefore, it cannot be said that the delinquent was not in possession of the report of the inquiry officer. The delinquent was in possession of the report of the inquiry officer and he should have made all the grievances and the prejudices which has been caused to him by non-supply of the report or the inquiry officer. The learned Single Judge has specifically referred to the observation made by the Apex Court in Karunakar's case (supra) that before the delinquent succeeds in the writ petition he must show that in what way grave prejudice has been caused to him on account of non-supply of the copy of the report of the inquiry officer. The learned Single Judge observed in the order as under: "In the present writ application no prejudice is pleaded because of non-furnishing of a copy of the report before the final order was passed. It is also beyond my comprehension now furnishing of a copy of the report holding the employee guilty of mis-appropriation of fund and falsification of account could have made the end result different. In all considerations I hold that non-furnishing of a copy of the report before the final order was passed did not cause any prejudice to the employee. Therefore, the second objection also fails." 10. Therefore, there is a categorical finding of the learned Single Judge that there is no pleading in the writ petition nor. In all considerations I hold that non-furnishing of a copy of the report before the final order was passed did not cause any prejudice to the employee. Therefore, the second objection also fails." 10. Therefore, there is a categorical finding of the learned Single Judge that there is no pleading in the writ petition nor. any submission was made before the learned Single Judge to show that any prejudice has been caused to the delinquent We also called upon the learned counsel for the appellant to show on the basis of the report of the inquiry officer in what way prejudice has been caused to the petitioner, but no answer was forthcoming. It is an admitted fact that for the period of October, November and December, 1982 and January, 1983 accounts were manipulated and there was a difference of Rs 13,501/-. We called upon the learned counsel for the appellant to explain this discrepancy. We also called upon the learned counsel for the appellant to explain why was the difference in the original bill and the duplicate bill but none of the questions were replied by the learned counsels for the appellant. It is apparent from the evidence on record that the original bill is the inflated bill for drawing sums fro in the office and in the duplicate bill correct amount has been written which has to be paid to the labourers and this falsification was made by the delinquent to defraud the company. All these facts were considered by the inquiry officer and it is borne out from the evidence of the parties which is on record. We have gone through the statements of D.S. Chowdhury, Mr. D.K. Gupta and Mr. Farooki. In the report of the inquiry officer he has given his categorical findings that on checking of the main documents there is no scope of denying that there was no falsification in annexures I, II and III. On the other hand, the delinquent himself agreed that in the colliery the mistake in the wage sheet is possible due to oversight or by mistake or due to various reasons e.g. not getting munshi report in time etc. The inquiry officer observed that how can there be an overbooking in the original payment sheet through the duplicate carbon copy pay sheet prepared by the charge-sheeted workmen did not show these over bookings. The inquiry officer observed that how can there be an overbooking in the original payment sheet through the duplicate carbon copy pay sheet prepared by the charge-sheeted workmen did not show these over bookings. This shows that over booking was done deliberately in the first copy of the pay sheets in order that the delinquent may draw cash from the company by showing the first copy of the pay-sheet for disbursement to worker, obviously the false overbooking amounts were misappropriated. The delinquent prepared two accounts one in original and one in duplicate. In the duplicate he showed correct statements but in the original one he showed inflated amounts. Payment was made on the basis of the duplicate bill to the workmen, therefore, the workmen could have no grievance because he got his dues. The delinquent drew the inflated amounts from the office on the basis of the original and the difference between the amounts shown in the original and the duplicate bill has been mis-appropriated by him. This aspect is too obvious in the matter and we called upon the learned counsel to explain as to how could this happen, but the same was not replied to. Therefore, even if the copy of the report had not been supplied, the result would not have been different. The learned counsel for the appellant next submitted that the punishment of dismissal from service in the present case is dis-proportionate to the charges and therefore it offends the constitutional safeguards. In that connection learned counsel for the appellant has invited our attention to the decision of Bhagat Ram vs. Union of India, AIR 1993 SC 454; Ranjit Thakur vs. Union of India, (1987) 4 SCC 611 ; Kartar Singh Grewal vs. State of Punjab, AIR 1993 SC 341 ; Union of India vs. Giriraj Sharma, AIR 1994 SC 215 ; and Meghna Singh vs. Inspector General or Police, (1995)5 SCC 682 . We need not to examine all these cases, suffice it to say that each case has its own peculiar facts but the punishment which has been awarded in the present case is not dis-proportionate to the deliquency. Normally the Courts very rarely interfere with the quantum of punishment. We need not to examine all these cases, suffice it to say that each case has its own peculiar facts but the punishment which has been awarded in the present case is not dis-proportionate to the deliquency. Normally the Courts very rarely interfere with the quantum of punishment. The quantum of punishment has to be proportionate to the guilt but if the punishment is disproportionate to the guilt then there is no bar for the Court under a given case to interfere. However, this discretion is normally exercised very sparingly and in a very harsh case but in the present case we find that the deliquency of the incumbent is so obvious that no company would repose confidence in such man. Therefore, we are not impressed with the arguments that the punishment in the present case is grossly or otherwise disproportionate to the deliquency. 11. As a result of the above discussion we are of the opinion that there is no merit in the appeal and the same is dismissed. No order as to costs. Subhro Kamal Mukherjee, J. : I agree. Appeal dismissed.