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2004 DIGILAW 1192 (MAD)

P. Meishak v. The Management of MRF Limited

2004-09-17

N.KANNADASAN

body2004
Judgment :- By consent, the main writ petition is taken up for final hearing. 2. The petitioner seeks for issue of a Writ of Declaration declaring the second Show Cause Notice dated 1.8.2004 issued to the petitioner is illegal and in conflict of law. 3. The learned senior counsel for the petitioner would contend that in the impugned show cause notice, a representation is made to the effect that as per the enquiry report, the respondent has come to the conclusion that the representation is acceptable with regard to the guilt of the petitioner and the notice also is proceeded to that effect. Further, notice also proceeds to offer an explanation with regard to the guilt as well as the proposed punishment. In the light of the fact that the enquiry report was not made available so far and before obtaining explanation from the petitioner, no final decision about the irregularity committed by the petitioner could be made, the present show cause notice takes away the said right of offering an effective explanation and the impugned order suffers from illegality. 4. The learned counsel would further contend that the Hon'ble Supreme Court in 1993 4 SCC 727 (Managing Director, ECIL, Hyderabad and Others vs B. Karunakar and Others) has specifically held that the employee should not be deprived of offering explanation after furnishing him a copy of the report. It further held as follows: "29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice" ........... That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice" ........... 30.(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceedings or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question(iv) is answered accordingly. 5. The learned senior counsel for the petitioner would specifically contend that it is mandatory for all the authorities including public or private bodies to furnish the copy of the report before arriving at a finding with regard to the guilt of the employee. In the light of the above principles, the learned counsel would contend that the writ petition is maintainable. 6. Per contra, the learned senior counsel appearing for the respondent contended that as per the guidelines stated in paragraph 30 (iv) with regard to the furnishing of the copy of the report, in the very same decision, in paragraph 30(v) the Apex Court held as follows: "30(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. The answer to this question has to be relative to the punishment awarded. 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 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 back-wages 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 indicate 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 the 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." 7. The Apex Court has also observed therein that in all other cases, unless finding is rendered that the non supply of report would have caused prejudice, the relief cannot be granted. Further, a direction could be granted to furnish a copy of the report, only if finding is rendered about the non-supply of the report. 8. The learned senior counsel appearing for the respondent also would contend that the grievance on the part of the petitioner about the non furnishing of the report cannot be gone into under Article 226 of The Constitution of India against the respondent. Inasmuch as the alternative remedy is available the petitioner cannot approach this Court on the premise that there is violation of natural justice. Inasmuch as the alternative remedy is available the petitioner cannot approach this Court on the premise that there is violation of natural justice. The learned senior counsel also brought to my notice of the Full Bench of this Court reported in FJR Vol 106 126 (P. Pitchumani s Management, Sri Chakra Tyres Limited) in support of his contention. 9. It is not in dispute that the respondent is a private body and cannot be construed as an authority under Article 12 of the Constitution. Even though the Apex Court in its decision rendered supra as set forth the detailed guidelines, that is not helpful for the petitioner to invoke the jurisdiction of this Court under Article 226 of The Constitution of India, more particularly, when the alternative remedy is available under the Industrial Dispute Act. Further the Full Bench of this Court in the decision rendered in P. Pitchumani s Management, Sri Chakra Tyres Limited (FJR Vol 106 126), reads as follows: "13. The apprehension of delay in adjudication by the forums created under I.D. Act cannot be a ground to invoke Writ Jurisdiction. As already stated above, Writ Jurisdiction can be invoked only when an action involves a public duty. However, in appropriate cases, the High Court can always fix a time for adjudicating the disputes. In some cases, as the employees have failed to comply with the orders of transfer by joining at the transferred places, they have been dismissed from service without holding any enquiry. In those cases, the matter has to be viewed with some mercy and there is no need for emphasis that justice should always be tempered with mercy. 14.In view of what is stated supra, we hold that (i) only such violations under I.D. Act, which involve public duties, are amenable to Writ jurisdiction under article 226 of Constitution of India; (ii)dismissals, transfers and other matters concerning the service conditions of employees governed by I.D. Act have to be resolved only by common law Courts;" 10. In the light of the above said legal position, I am of the view that the writ petition itself is not maintainable in law. Therefore, the writ petition is dismissed. Consequently, the connected W.P.M.P and W.V.M.P is closed. No cost. 11. In the light of the above said legal position, I am of the view that the writ petition itself is not maintainable in law. Therefore, the writ petition is dismissed. Consequently, the connected W.P.M.P and W.V.M.P is closed. No cost. 11. The petitioner is granted two weeks time from today to submit his further explanation to the impugned show cause notice and on receipt of which the respondent shall consider and pass orders on merits and in accordance with law.