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2011 DIGILAW 380 (CAL)

Madan Pal Singh v. The Union of India

2011-03-16

JYOTIRMAY BHATTACHARYA

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JUDGMENT :- Jyotirmay Bhattacharya, J. Service of the petitioner, who was Clerk-cum-Checking Inspector attached to Bus Terminus, was terminated by an order being No.616 dated 11th March, 2010 passed by the Director of Transport, after conducting a departmental enquiry against him under the Standing Orders applicable to the Industrial Establishment of Transport Department framed under the Industrial Employment (Standing Orders) Act, 1946. The instant writ petition is directed against the said order of termination of his service. At the very outset, a preliminary objection regarding maintainability of this writ petition was raised by Mr. Ashish Kumar Ray, learned Senior Counsel appearing for the respondents. According to him, the petitioner is a motor transport worker as per the provision of the Motor Transport Workers’ Act, 1961. He contended that the Payment of Wages Act, 1936 is applicable to Motor Transport Service engaged in carrying passengers or goods or both by road for hire or reward. He thus contended that when the service of such a workman is terminated by his employer by following the Standing Orders applicable to the industrial establishment of Transport Department framed under the Industrial Employment (Standing Orders) Act, 1946, any disputes or differences between that workman and his employer connected with or arising out of such dismissal and/or termination of his service shall be deemed to be an industrial dispute under section 2A of the Industrial Dispute Act, 1947 and as such if the dismissed employee feels aggrieved by the order of the termination of his service, he is required to seek remedies under the Industrial Disputes Act, 1947 before the Industrial Tribunal. He further contended that since the remedy of the writ petitioner lies under the Industrial Disputes Act before the Tribunal set up under the said Act, the instant writ petitioner is not maintainable. According to him, no remedy concerning an industrial dispute can be sought for by any dismissed workman in any other forum and not even before this Hon’ble Court under Article 226 of the Constitution of India as the Industrial Dispute Act, 1947 creates an absolute bar upon any other forum to entertain any industrial dispute for its trial. This Court cannot reject such contention of Mr.Ray, learned Senior Counsel altogether as the aforesaid contention of Mr.Ray, no doubt, has substance. Keeping in mind the aforesaid submission of Mr. This Court cannot reject such contention of Mr.Ray, learned Senior Counsel altogether as the aforesaid contention of Mr.Ray, no doubt, has substance. Keeping in mind the aforesaid submission of Mr. Ray, let me now consider the fate of the writ petition in the facts of the instant case. The petitioner is the Clerk-cum-Checking Inspector. He defaulted in depositing the daily collection with the office either on the date of its collection or on the next following day, on many occasions. On many occasions he deposited the daily collection in cash collection counter after two to five days after the collection. This is the most vital charge against him. He did not take permission from his employer before purchasing a Light Motor Vehicle. He also did not take permission for purchasing another light motor vehicle in the name of his wife. He allegedly misused the official telephone. There are other charges against him. Under such circumstances, a charge sheet was issued to him containing the aforesaid memorandum of charges. Accordingly, he was called upon to submit his reply to the said charge sheet. The petitioner submitted his reply to the said charge sheet. An Enquiry Officer was appointed for holding an enquiry with regard to the charges levelled against him in the said charge sheet. Both the employer as well as the charged employee adduced evidence in support of their respective contention. At this stage, this Court does not want to make any effort to appreciate the evidence of the respective parties for assessing the correctness of the findings either of the Enquiry officer or of the Director (Transport) who passed the order of dismissal of the petitioner from service. It will be suffice to record here presently that though two witnesses were examined on behalf of the employer but the evidence of not a single witness of the employer was scanned by the Enquiry Officer to ascertain the evidential value of the evidence of those two witnesses of the employer. When the evidence was adduced by two witnesses of the employer to support the charges levelled against the petitioner, was it not the duty of the Enquiry Officer to scan the evidence of those witnesses of the employer along with other evidence on record of the charged employee before coming to the ultimate conclusion regarding the offences allegedly committed by the charged workman? The very same mistake was again committed by the Director (Transport) who also passed the impugned order of dismissal of the petitioner from his service without considering the evidence of those two witnesses of the employer. In fact, the Director (Transport) has also not spent a single line about the evidential value of the evidence of those two witnesses of the employer before coming to the ultimate conclusion about the commission of the offence by the charged workman. In my view, non-consideration of the material evidence on record vitiates the entire trial of the departmental proceeding and if any conclusion is drawn without considering the material and relevant evidence on the issue, then the conclusion which was so drawn by the said authority must be held to be perverse. Now, let me consider the effect of the perverse order. There is gulf difference between an illegal order and a perverse order. An order may be incorrect and/or erroneous and again it may be illegal having no foundation in law but still then such illegal order cannot be ignored unless it is set aside by the superior forum. Even an illegal order has a binding effect upon the parties and if any party wants to avoid the said order, he is required to approach the forum which is competent to consider the legality of such order. Selection of such forum should be made according to the provision of the statute. Industrial Dispute Act provides for such a forum for resolving an industrial dispute. Thus no other forum can be selected by the dismissed workman for resolving an industrial dispute. If the submission of Mr. Ray is considered in the light of the discussion as above then, this Court has no other alternative but to hold that this writ petition is not maintainable. But what will happen, if the order is perverse meaning thereby that the conclusion which is drawn, cannot be drawn by any man of ordinary prudence? To find out the answer to this question, this Court will have to find out the binding effect of such a perverse order upon the parties. In fact, a perverse order has the same effect as that of a non-speaking order. Neither the perverse order nor the non-speaking order can be retained on record as such orders are regarded as nonest in the eye of law. In fact, a perverse order has the same effect as that of a non-speaking order. Neither the perverse order nor the non-speaking order can be retained on record as such orders are regarded as nonest in the eye of law. After all, termination of service of an employee has a great impact upon his right to livelihood, and as such the employer should proceed very cautiously before taking the ultimate decision for termination of service of its employees. Since the ultimate conclusion was drawn by the employer without considering the vital part of the evidence of the witnesses of the employer which largely support the stand taken by the charged workman in his reply to the said charge sheet, this Court, even without considering the merit of the contention of Mr. Bahadur, learned advocate appearing for the petitioner about the applicability of CCC(Conduct Rules) of 1964 to the petitioner who is not a central government employee, and his further contention as to the awarding of punishment to the petitioner disproportionate to the offence allegedly committed by him, this Court holds that the impugned order being a perverse order cannot be retained on record and for avoiding the effect of such a perverse order, the workman need not approach the Tribunal as this Court’s power of judicial review under Article 226 of the Constitution of India was recognized by the Hon’ble Supreme Court in the case of Indian Airlines Ltd. V. Prabha D. Kanan reported in (2006) 11 SCC 67 . The Hon’ble Supreme Court by recognizing the High Court’s power of judicial review held that in case of judicial review where no appeal is provided for, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not confine its jurisdiction only to the known tests laid down therefor, viz. illegality, irrationality and procedural impropriety rather it has to delve deeper into the matter as it would require a deeper scrutiny. In the present case, there is no provision of appeal against the order of dismissal, under the Extant Standing Orders. As such, High Court is not powerless to assess the correctness of such order in exercise of its power of judicial review. In the present case, there is no provision of appeal against the order of dismissal, under the Extant Standing Orders. As such, High Court is not powerless to assess the correctness of such order in exercise of its power of judicial review. Thus, this Court holds that though it is true that an illegal order of termination of service should not ordinarily be interfered with by the High Court in exercise of its writ jurisdiction as the remedy against such illegal termination of service is available to the dismissed employee before the Industrial Tribunal, but at the same time, the High Court should not refuse to exercise its writ jurisdiction when the impugned order of termination of service is found to be a perverse order, as the consequence of such a perverse order has a far reaching effect upon the right to livelihood of the petitioner as enshrined in Article 21 of the Constitution of India. Accordingly, this Court finds no other alternative but to set aside the impugned order being No.616 dated 11th March, 2010 passed by the Director of Transport being Annexure P-5 to this writ petition appearing at page 79 thereof as well as the inquiry report prepared by the Inquiry Officer contained in the annexure P-3 to this Writ petition at page 53. Thus the impugned order of dismissal of the petitioner from service and the enquiry report as referred to above, stand set aside. The writ petition, thus, stands allowed. The respondents are directed to reinstate the petitioner in service immediately. It is made clear that this order will not prevent the employer to complete the said proceeding afresh after seeking a fresh report from the Enquiry Officer, who may submit his report to the Director (Transport) after taking into consideration the entire materials on record including the evidence of the employer’s witness as well as the evidence of the petitioner. After submission of the said report, the concerned authority may take ultimate decision in this regard in the light of the evidence on record of both the employer and the charged workman recorded in connection with the said departmental proceeding. The writ petition is thus disposed of with the above observations. Later Mr. Ray learned senior advocate appearing for the respondents prays for stay of the operation of this order for enabling his client to challenge this order before the appellate forum. Mr. The writ petition is thus disposed of with the above observations. Later Mr. Ray learned senior advocate appearing for the respondents prays for stay of the operation of this order for enabling his client to challenge this order before the appellate forum. Mr. Bahadur, learned advocate appearing for the petitioner opposes such prayer of the learned advocate for the respondents. However, considering the submission of the learned counsel appearing for the parties, this Court feels that an opportunity should be given to the respondents to challenge this order before the appellate forum. Accordingly, this Court directs that operation of this order passed by this Court on 16.3.2011 will remain stayed for a period of two weeks from date.