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2002 DIGILAW 512 (CAL)

SHIVA ANAND v. INDIAN AIRLINES

2002-08-02

KALYAN JYOTI SENGUPTA

body2002
KALYAN JYOTI SENGUPTA, J. ( 1 ) THE writ petitioner was an employee of the respondent No. 1 company and had been holding at the relevant time the post of Master technician having EMP 423769. His initial appointment was in the post of Aircraft technician, subsequently he was elevated to the above post. On or about October 28, the petitioner was served with a charge-sheet with the following charges:"that you submitted a false employer certificate to Australian High Commission, new Delhi, forging the signature of Shri s. K. Basu, Deputy General Manager G. S. and also used a fabricated rubber stamp in. the name of Shri S. K. Basu for obtaining visa to visit Australia. The above act of yours, if proved, would tantamount to misconduct within the meaning of Clause 28 (11) and Clause 28 (20) of the Standing, order as applicable to you which reads asfollows: clause 28 (11) fraud and dishonesty in connection with business or property of the corporation, and Clause 28 (20) commission of any act subversive of discipline or of good behaviour in the premises of the establishment. " ( 2 ) BEFORE issuance of the aforesaid charge-sheet the petitioner was placed under suspension in contemplation of the above disciplinary proceedings. However, order of suspension was revoked, subsequently on representation being made by the petitioner. Notwithstanding revocation of suspension order the disciplinary proceeding continued. ( 3 ) IT appears on receipt of the aforesaid charge-sheet the petitioner raised the preliminary question as to maintainability of the aforesaid disciplinary proceedings, contending amongst others that the petitioner was not a factory worker so the standing order for factory workers is not applicable, as such the alleged misconduct as mentioned in the impugned charge-sheet being Clauses 28 (11) and 28 (20) are not applicable. The said standing order is applicable in case of the factory worker as such initiation of this disciplinary proceeding is bad in law. He also asked for a lawyer's assistance having regard to the complex nature of the charges of fraud and forgery. ( 4 ) IT appears to me that no reply to the aforesaid charges was given by the petitioner denying the charges, yet, enquiry was held appointing appropriate officials as Enquiry officer, of course under the provisions of the aforesaid standing order. ( 4 ) IT appears to me that no reply to the aforesaid charges was given by the petitioner denying the charges, yet, enquiry was held appointing appropriate officials as Enquiry officer, of course under the provisions of the aforesaid standing order. From the writ petition as well as the afndavit-in-opposition, I find at every stage of the proceeding, the writ petitioner despite service of notice did not appear, so enquiry officer concluded the enquiry ex parte holding him guilty and the disciplinary authority having accepted the report of the enquiry officer issued second show cause. The petitioner replied to the said second show cause, notice. The disciplinary authority imposed punishment upon the petitioner of dismissal from his services, having dealt with the report of the enquiry officer. ( 5 ) THE aforesaid fact is narrated, in short, in order to have better understanding of this case and anything more details of this case is not called for in a proceeding of this nature. ( 6 ) MR. Mazumdar appearing on behalf of the respondent has taken a preliminary point that the writ petition is not maintainable, as there involved disputed question of fact and the industrial Tribunal is competent to resolve the dispute with its elaborate mechanism. So, when there exists alternative remedy the petitioner should resort to the same. Moreover, he contends in the event this Court holds that the principle of natural justice has not been followed, then, the respondent company would not be in a position to prove by producing evidence that principle of natural justice was adhered to. However, if the matter is taken to the Industrial Tribunal, then such opportunity will be made available to the respondent company as a matter of course. Under such circumstances the respondent company should not be deprived of this opportunity to prove the natural justice was observed. ( 7 ) IN support of his submission he has drawn my attention to the Supreme Court decision in Municipal 'committee, Taura v. Harpal Singh reported in AIR 1999 SC 843 : 1998 (5) SCC 635 : 1999-I-LLJ-1028. ( 8 ) MR. Mazumdar further contends that the respondent company has already applied for permission under Section 33 (2) (b) of the industrial Disputes Act, 1947 before the national Industrial Tribunal, Mumbai, the said application is pending and the petitioner would be entitled to appear before the said Tribunal. ( 8 ) MR. Mazumdar further contends that the respondent company has already applied for permission under Section 33 (2) (b) of the industrial Disputes Act, 1947 before the national Industrial Tribunal, Mumbai, the said application is pending and the petitioner would be entitled to appear before the said Tribunal. ( 9 ) I am not much impressed with submission on the question of alternative remedy in this case. It is well settled principle of law that existence of alternative remedy is not a bar for exercising jurisdiction under article 226 of the Constitution of India. Though Mr. Mazumdar's citation of the karnataka High Court's decision in this regard in the case of Mohini v. General Manager, syndicate Bank reported in 1995-I-LLJ-351, speaks otherwise, but I am of the view the provision in the Industrial Disputes Act is not a bar to entertain the writ petition as it is alleged in the writ petition about the question of jurisdiction and/or authority of the Enquiry officer and disciplinary authority and/or applicability of the standing order, more so, there is complaint as regard violation of principle of natural justice. ( 10 ) IT is well established by this time that when there is an allegation of breach of principle of natural justice that the doors of the writ Court will not be shut out. Hence, I am unable to accept the preliminary objection raised by Mr. Mazumdar and I decide to hear this matter in exercise of power of judicial review under Article 226 of the Constitution of india within its parameter that is well established by this time. ( 11 ) MR. Pijush Kanti Dutta, senior advocate contends in support of the writ petition that the initiation of the disciplinary proceeding is bad in law since its beginning, as the petitioner cannot to termed to be a factory worker so as to apply the provision of the standing order for holding the disciplinary proceeding. He submits further that the standing order is applicable in case of the factory worker and the petitioner was holding the supervisory post. His next contention is that the charges are vague and afterthought and without having any particulars whatsoever, moreover, it was issued in a pre-judged mind. In support of the contention of this point he has relied on the following authorities: n. C. Chakraborty v. Union of India 1966 (12)Faclr 120. His next contention is that the charges are vague and afterthought and without having any particulars whatsoever, moreover, it was issued in a pre-judged mind. In support of the contention of this point he has relied on the following authorities: n. C. Chakraborty v. Union of India 1966 (12)Faclr 120. A. L. Kalra v. Project and Equipment corporation of India Ltd,, AIR 1984 SC 1361 : 1984 (3) SCC 316 : 1984-H-LLJ-186. State of Uttar Pradesh v, Md. Sharif AIR 1982 SC 937 : 1982 (2) SCC 376 : 1982-II-LU-180. Subrata Bhattacharyya v. Bharat Process and Mechanical Engineers 1984 (2) Cal HN 185. ( 12 ) HE submits that non-compliance of the natural justice writ large as there is no mention in the charge-sheet of any list of witnesses and none of the Australian High Commission has been cited as a witness, only a document, namely faxed copy of the alleged forged employer certificate was produced and the original of the same was never tendered. He contends further that the order of the Appellate authority which was passed on appeal being preferred department-ally by the petitioner should be set aside, as there was no proof of forgery. ( 13 ) MR. Mazumdar, on the other hand, submits on merit that the provisions of the standing order as quoted above is applicable and the petitioner was and is a factory worker. Therefore, all procedures as laid down in the standing order were followed. He contends that in spite of repeated notices the petitioner failed to turn up before the enquiry officer, even the petitioner did not deny the allegations filing suitable reply, to the charge-sheet. Alternatively if it is held that the petitioner is a non-factory worker, then the principle of natural justice has been observed substantially, as show-cause notice was issued, opportunity of being heard was given after having considered the report of the enquiry officer this impugned dismissal order was passed. The writ court should not interfere with the findings of the enquiry officer, as well as the disciplinary authority as after taking evidence and considering the same the aforesaid dismissal order was passed. The writ Court cannot act like an appellate authority over the decision of the respondent authority. Under such circumstances this Court will not interfere with this and the writ petition should be dismissed. The writ Court cannot act like an appellate authority over the decision of the respondent authority. Under such circumstances this Court will not interfere with this and the writ petition should be dismissed. ( 14 ) HAVING heard I have carefully considered respective submissions of the learned advocates and the records of this case. It appears to me, objection raised by the petitioner since date of issuance of charge-sheet is as to whether the standing order for the factory workers is applicable to the petitioner's case or not needs to be addressed first. Admittedly, the charge-sheet has been issued alleging misconduct under Clause 28 (11) and clause 28 (20 ). The petitioner was appointed initially as an Aircraft Technician on 17/06/1988 and since then he hajd been attached to line Maintenance Division of Dum Dum airport of the respondent company, subsequently in the capacity of Master technician. The Engineering Complex, new technical area Dum Dum, Calcutta of the respondent company is a factory within the meaning of the Factories Act, 1948. This factum is evidenced by a Licence issued by the government of West Bengal showing that the aforesaid Complex of the respondent No. 1 is a factory. The aforesaid document is annexed to the affidavit-hvopposition being 'r-2'. ( 15 ) THEREFORE the petitioner is a factory in my view. It appears that in exercise of the power conferred by Section 45 of the Air corporation Act, 1953 (27 of 1953) the Indian air Lines Corporation with a previous approval of the Central Government made a Notification attaching a standing order for factory workers of the Corporation. The aforesaid standing order it appears is applicable not only to the workmen but also the employees holding supervisory positions. It appears further from the affidavit-in-opposition which he was in service, the petitioner reported for his duty at the Engineering Complex for which he was required to punch his incoming and outgoing time on the card provided for the purpose in terms of Clause 8 (ii) of the standing orders for factory workers, and his clock No. was 5018. The work allotment of the petitioner was issued in the maintenance hanger at the new technical area, Dum Dum, an thus the petitioner was a factory worker. . Therefore, it is absolutely clear as has been rightly argued by Mr. The work allotment of the petitioner was issued in the maintenance hanger at the new technical area, Dum Dum, an thus the petitioner was a factory worker. . Therefore, it is absolutely clear as has been rightly argued by Mr. Mazumdar that the petitioner was a factory worker so there is no mistake under the law or fact in applying provision of standing order by holding a disciplinary proceeding against the petitioner. The regulation as urged by Mr. Dutt has ho manner of application for holding a disciplinary proceeding. In any view of the matter the whole object of holding disciplinary proceeding is to deal with the delinquent employee for misconduct upon giving opportunity of being heard to the concerned employee before he is punished departmentally. The allegation in the charge-sheet is of serious nature both on fact and law. Therefore, the procedural mistake does not invalidate the disciplinary proceeding altogether, if the same has otherwise substantially conformed to the basic requirement of natural justice. In this case the petitioner was issued with a charge-sheet and he has replied to the same. ( 16 ) THE contention of Mr. Dutt is that the charge-sheet is vague and devoid of any material particulars whatsoever, is not acceptable to me as the nature of charges is such which in absence of any particulars cannot be maintained and sustained, provided the proof is produced. The particular of a charge is necessary where without the same the delinquent does not understand what is the allegation of misconduct levelled against him. In this case the charge of the management against the petitioner is that he had submitted a false employer's certificate to Australian High commission, New Delhi, forging the signature of Sri S. K. Basu, for obtaining Visa to visit australia. It is nobody's case that the petitioner frequently applies for obtaining Visa. The gravamen of the charge is production of false employer certificate by means of forging signature of an official and using fabricated rubber stamp. ( 17 ) THEREFORE, it is not necessary in this case to give details or particulars as to the date and time of submission of the said application or production of the false certificate, no date can be mentioned in case of fraud and forgery of this nature, it is good enough to establish prima facie that there was fraud and forgery perpetrated by the employee concerned. Under such circumstances I reject submission of Mr. Dutt on this score. The decisions on this point cited by him are not at all applicable. In the decision of the Supreme Court rendered in case of State of Uttar Pradesh v. Md. Sharif (supra) was rendered on a different fact. In that case the charges against the delinquent employee was for unauthorised entry of the delinquent employee in the Government forest. In that case date and time of unauthorised entry were obviously very relevant and important factor to maintain charge and on that ground it was held by the Hon'ble Supreme Court that because of lack of particulars charges were vague so as to render the same incomprehensible to any reasonable prudent man. The contention of Mr. Dutt is that the charge-sheet was issued is closed and/or capsuled mind. Upon careful reading of the charge, I do not find that the respondent has expressed its intention to punish the petitioner. Only it has been mentioned in the charge-sheet if the above act, if proved will tantamount to misconduct within the meaning of Clause 28 (11) and Clause 28 (20) of the standing order as applicable to you. The closed and capsuled mind would have been apparent had the respondent concerned expressed mind beforehand to inflict punishment while making the charges, but in this case I do not find there is any intention, rather it has been warned to the petitioner if the aforesaid imputations are proved then the same amount to misconduct. ( 18 ) THE authority cited by Mr. Dutt in this connection namely 1984 (2) Cal HN 185, is not applicable in this case. The judgment of JUSTICE umesh CHANDRA BANERJEE in this case is factually distinguishable. In that case the languages used in the charge-sheet were such that it was suggestive of closed mind at the stage of framing of the charges. In the charge-sheet therein the language used as"by your above mentioned acts and commission you have committed fraud, dishonesty, cheating, breach of trust and misappropriation of company's money. "in that case in the charge-sheet itself there was definite conclusion beforehand reached by the employer that the delinquent employee having committed fraud, dishonesty, cheating, and breach of trust before the enquiry was started. In this case it appears that there is no such expression of mind it is rather mentioned 'if proved'. "in that case in the charge-sheet itself there was definite conclusion beforehand reached by the employer that the delinquent employee having committed fraud, dishonesty, cheating, and breach of trust before the enquiry was started. In this case it appears that there is no such expression of mind it is rather mentioned 'if proved'. ( 19 ) ON the question of violation of principle of natural justice Mr. Dutt contends that the employer concerned should not have refused to allow the petitioner to take help of a legal practitioner, in this case having regard to complexity of the matter. In my view, it is discretion of the employer whether any legal practitioner should be allowed to helpdelinquent officer in the disciplinary proceeding. ( 20 ) IT is not a matter of right nor it is part and parcel of compliance of natural justice. The decision cited by Mr. Dutt in this regard, namely AIR 1986 SC page 109, 1991 CWN at page 554 (sic) are not applicable at all. There the enquiry officer and/ or the presenting officer were legally trained men and in order to match with these legally trained men, it was held in that case that the request of the employee for being represented by a lawyer should not have been refused. In this case I do not find either the enquiry officer or the presenting officer was legally trained man, notwithstanding above, the authority concerned allowed the petitioner to be represented by any co-employee. On this score i do not find any breach of compliance of natural justice having been committed and/or perpetrated. ( 21 ) IT appears admittedly that the petitioner did not participate in the proceeding before the enquiry officer despite the several t notices having been given. I have gone through the report of the enquiry officer and find that the enquiry proceeding was not completed in one or two days and same was adjourned from time to time and all the times the petitioner was informed. ( 22 ) I find that the enquiry officer has relied on a number of documents in order to arrive at his conclusion holding the petitioner being guilty of the alleged misconduct. ( 22 ) I find that the enquiry officer has relied on a number of documents in order to arrive at his conclusion holding the petitioner being guilty of the alleged misconduct. In the charge-sheet the respondent cited Shri S. K. Basu, Deputy General Manager (D. S.) as witness and disclosed two documents, namely, copy of the alleged forged employer's certificate dated 31/07/1998, allegedly submitted by the petitioner to the Australian high Commission and a copy of the letter from second Secretary dated 12/09/1998, addressed to senior Manager. No other document was supplied nor disclosed nor any name of the other witnesses was mentioned in the charge-sheet. In his reply to the charge-sheet the petitioner specifically denied that the petitioner has forged the signature of the Deputy General Manager. He further denied the charges made against him. From the report of the enquiry officer I find not only the said secretary was examined as witness but also i find as many as seven witnesses were examined and 18 documents were exhibited in order to bring home the charges. As a matter of fact, on 4/06/1999 the hearing of the enquiry proceeding was adjourned at the request of the presenting officer who wanted to produce further evidence, so next date of enquiry was fixed on 25/06/1999. On 16/07/1999 the said enquiry was adjourned to facilitate the employer to produce further evidence. Significantly, the aforesaid further disclosure and production of evidence were made without supplying the copies thereof to the delinquent petitioner and the same were supplied after the same being exhibited as documents and in this process the enquiry officer has allowed the documents to be produced by the management without having cared to see whether the aforesaid documents beforehand supplied to the delinquent employee or not. It appears from the records, namely, the report of the enquiry officer that he had allowed the management to produce further documents without having the same being exhibited, but in the writ petition it appears to me that the enquiry officer had allowed as many as 18 documents to be exhibited and without supplying of the same except two documents before such use as evidence. ( 23 ) HAD those documents not been produced at later stage namely after service of the charge-sheet and without supply of the copy thereof the enquiry officer, perhaps, would not have come to conclusion that the petitioner is guilty of the alleged misconduct. ( 24 ) THEREFORE, I find considerable force in the submission of Mr. Dutt that the enquiry officer having proceeded with inappropriate manner has committed breach of compliance of natural justice. I am further of the view that findings of the enquiry officer that the petitioner having forged the signature of Shri s. K. Basu, Deputy General Manager also is without any evidence as no witness of the management has stated that the petitioner has forged the signature of Shri S. K. Basu, though, the allegation of forgery has to be proved by cogent evidence even by preponderance of probability in a disciplinary action. ( 25 ) 1 have carefully examined the order of the disciplinary authority who has dismissed the petitioner from services and also the order of the appellate authority. I think both the aforesaid authorities have not examined as to whether the enquiry officer had conducted the proceeding in compliance with the rules of natural justice. It appears that the alleged application together with the photographs of the petitioner said to have been submitted to the australian High Commission Office was used and produced as evidence before, the enquiry officer without the supply of copy of the same before use of the same. Further there are other documents, which I have already indicated, were also supplied after the same being exhibited as evidence. Moreover, the aforesaid authorities have not examined the question of proportionality of the quantum of punishment in relation to the alleged charges and this was absolutely necessary having regard to the facts and circumstances of this case. ( 26 ) ACCORDINGLY I set aside the impugned order of punishment and direct the respondent to reinstate the petitioner with the back wages of 50 per cent of his monthly salary. ( 27 ) HOWEVER, it will be open for the respondent company to proceed afresh against the petitioner upon supplying of all the material documents and disclosing names of the witnesses. It would open for the respondents to proceed ex pane as it has been done previously in the event in spite of notice being given the petitioner does not appear. It would open for the respondents to proceed ex pane as it has been done previously in the event in spite of notice being given the petitioner does not appear. In the fitness of the case Enquiry Officer shall be charged. ( 28 ) THEREFORE, I direct the respondent to reinstate the petitioner within a period of fortnight from the date of communication of this order. The writ petitioner shall be paid back wages of 50% of his salary within a period of two months from the date of resumption of his duty. ( 29 ) STAY of operation of this order is prayed for. Since I have granted a fortnight time to reinstate the petitioner, no stay order is called for. ( 30 ) SIGNED copy of the operative part of this order may be made available to the petitioner.