Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 936 (MP)

V. K. Kaul v. State of M. P.

2003-08-01

S.P.KHARE

body2003
ORDER 1. This is a writ petition under Articles 226 and 227 of the Constitution of India for quashing the order dated 6.9.2001 (Annexure P-I0-B) by which the petitioner has been dismissed from service and for a direction to the respondents to reinstate him. 2. It is not in dispute that the petitioner was initially employed by respondent No. 2 M.P. State Electonics Development Corporation Ltd. as Coordinator (Accounts) and later he was transferred to its subsidiary company respondent No.3 Optel Telecommunications Ltd. as per order dated 28.11.1992 (Annexure P-3). He was served with a charge-sheet dated 3.4.1999 (Annexure P-4) containing three charges. The gravamen of the charges was that on 5.3.1999 he incited other workers to go on strike and sit on dharna to force the Company to implement the report of the 5th Pay Commission even though the Company had incurred a loss to the tune of Rupees twenty crores; he did not discharge his duties faithfully from 5.3.1999 to 29.3.1999 affecting the production of the Company, he abused five senior officers of the Company and used indecent language towards them on 8.3.1999 and forced them also to sit on dharna and surrounded them on 9.3.1999 and made them to sign a paper promising to implement the report of the Commission upto 14.3.1999. According to the respondents, these acts constituted grave misconduct on the part of the petitioner. He submitted his reply denying the charges. An advocate was appointed as enquiry officer. He supplied copies of all the relevant documents to the petitioner. Three witnesses were examined on behalf of the Management and the same number by the petitioner. The enquiry officer submitted his detailed report on 3.10.2000. That is Annexure P-l0-A. All the three charges were held proved against the petitioner. The disciplinary authority agreed with the findings of the enquiry officer and sent a show cause notice to the petitioner along with a copy of the enquiry report. The petitioner did not submit any representation against the enquiry report. The petitioner was dismissed from service by the impugned order dated 6.9.2001 (Annexure P-l0-B). 3. The petitioner's case is that he retained his lien with his original employer and therefore the disciplinary action could not be taken by Optel. The petitioner did not submit any representation against the enquiry report. The petitioner was dismissed from service by the impugned order dated 6.9.2001 (Annexure P-l0-B). 3. The petitioner's case is that he retained his lien with his original employer and therefore the disciplinary action could not be taken by Optel. It is also stated that the enquiry was conducted by an Advocate but the petitioner's application for permission to engage a lawyer to defend himself was rejected and this amounts to breach of the principles of natural justice. It is further stated that the findings arrived at by the enquiry officer are perverse and unreasonable and he has assumed that the petitioner is guilty of the charges framed against him. It is submitted that the petitioner was the General Secretary of the Officers' Union and he has been victimised. The punishment is said to be harsh and disproportionate. 4. The respondents' case is that the services of the petitioner were permanently transferred to Optel and he was appointed afresh on a higher post by order dated 2.11.1995 (Annexure R-1). He was appointed as an Executive on his application and after his interview. He was later on confirmed on this post. Thus, the petitioner became an officer of Optel. It is said that there was no breach of any principle of natural justice. The petitioner was not provided the assistance of an advocate and that does not amount to denial of reasonable opportunity. The petitioner was an officer well versed with the functioning of the Corporation and therefore he defended himself. He did not ask for the assistance of any other officer. The findings of the enquiry officer are based on evidence and cannot be disturbed in a writ petition. The punishment cannot be said to be disproportionate keeping in view the nature of misconduct committed by the petitioner. 5. The learned counsel for both the sides have been heard. A perusal of the appointment letter dated 2.11.1995 (Annexure R-1) shows that the petitioner was given a fresh appointment as an Executive in the pay scale of Rs.2375-4125. There was an application of the petitioner for this post and his interview was also taken. Thus, the petitioner got a new post and he must be deemed to have abandoned his claim to his inferior position in the M.P. State Electronics Development Corporation. There was an application of the petitioner for this post and his interview was also taken. Thus, the petitioner got a new post and he must be deemed to have abandoned his claim to his inferior position in the M.P. State Electronics Development Corporation. Thus, there was no question of retention of his lien in this Company. There was no order to this effect. . 6. The petitioner was not permitted to engage any lawyer during the course of the departmental enquiry. The petitioner was quite intelligent and an Executive of the Company. It must be presumed that he was in a position to defend himself. He did not ask for the help of any other officer. The enquiry officer was an advocate but the presenting officer was only an officer of the Company. The enquiry is not vitiated on the ground that the petitioner was not permitted to engage a lawyer for his defence. The Supreme Court held in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi [ (1993) 2 SCC 115 ] that the delinquent has no right to be represented through counsel unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent's right of hearing is concerned, cannot and does not extend to a right to be represented through counsel. The object is to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly. The same view has been taken in Indian Overseas Bank v. Indian Overseas Bank Officers' Association [ (2001) 9 SCC 540 ]. It has been observed that the law does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and there is no right to representation by somebody else unless the relevant rules or regulations and standing orders specifically recognise such a right and provide for such representation. Irrespective of the desirability or otherwise of giving the employee facing charges of misconduct in a disciplinary proceeding to ensure that his defence does not get debilitated due to inexperience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial thereof would vitiate the enquiry itself. 7. The learned counsel for the petitioner has cited. 7. The learned counsel for the petitioner has cited. the decision of the Supreme Court in J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. [ AIR 1991 SC 1221 ] in support of the plea that the petitioner ought to have been permitted to engage a lawyer in his defence. In that case, rule 7 (5) of the relevant rules specifically provided for representation through a counsel. In the present case there is no such rule. Further, in that case the presenting officer was found to be legally trained person. In the present case the presenting officer was not a lawyer or a legally trained person. He was only an officer of the Company. The enquiry officer was no doubt an advocate, but the enquiry officer acts in a quasi-judicial manner and that does not entitle the employee to have the assistance of a lawyer for his defence. 8. The enquiry report dated 3.10.2000 (Annexure P-10-A) has been perused by this Court. The enquiry officer has dealt with the entire evidence objectively and dispassionately. The report is very exhaustive and has considered all the aspects. The findings are reasonable. There is no perversity. These are not open to interference by the High Court in exercise of writ jurisdiction Export Promotion Council v. A.K. Chopra {[ AIR 1999 SC 625 ]}. 9. The punishment imposed upon the petitioner cannot be said to be 'shockingly disproportionate'. He incited others to go on strike, sat on dhama, sorrounded the senior officers, made them also to sit on dhama, abused and humiliated them and obtained an assurance in writing to implement the 5th Pay Commission report. The petitioner went too far and exceeded the legitimate boundary for bargaining in a democratic way. The Corporation was incurring heavy losses and it could not further precipitate the situation by implementing the report of the 5th Pay Commission which was appointed for Central Government employees. The Corporation had its own limitations and therefore its senior officers could not be forced to concede something which was beyond their capacity. The right to form Unions and Associations and ventilation of grievances of its members through the same has to be exercised with reasonable restraint and within reasonable limits without polluting the healthy working atmosphere. There should be no indiscipline, insubordination, violence or intimidation. If such means are resorted to, these would invite disciplinary action. The right to form Unions and Associations and ventilation of grievances of its members through the same has to be exercised with reasonable restraint and within reasonable limits without polluting the healthy working atmosphere. There should be no indiscipline, insubordination, violence or intimidation. If such means are resorted to, these would invite disciplinary action. It must be realised that the Corporation or the Company must function properly without affecting its productivity. Then alone the employees or the officers can draw their sustenance. Looking to the economic condition of Optel, the demand for implementation of 5th Pay Commission report in Optel was not legitimate and, in any case, the means which were adopted, as discussed above, were not proper. In that situation, the Management rightly swing into action to take disciplinary action by following the principles of natural justice. The punishment is not disproportionate. 10. The petition is dismissed.