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2012 DIGILAW 1153 (BOM)

Union of India v. Prakash

2012-06-29

A.B.CHAUDHARI, VASANTI A.NAIK

body2012
Judgment : A.B. Chaudhari, J. This petition is directed against the judgment and order dated 17.4.2006 passed by the Central Administrative Tribunal, Bombay Bench, Circuit at Nagpur, in O.A. No.2233/02 directing the Disciplinary Authority to reconsider the punishment awarded to the respondent. 2. We have heard learned counsel for the respective parties. We have gone through the impugned order made by the Tribunal. We have also seen the record. Mr. Sambre has placed reliance on a decision in Poonam Chand v. Union of India & ors. -(1996) 34 ATC 30 and another decision of apex court in the case of Chairman-cum-Managing Director, Coal India Ltd. v. Mukul Kumar Choudhari & ors. - (2009) 15 SCC 620 in support of the proposition that the doctrine of proportionality has been considered by the Tribunal in the instant case and the Tribunal has merely asked the employer, namely petitioners to impose any other punishment than one of removal. Mr. Sambre then argued that the finding recorded by the Tribunal about Rule 17 of Rules 1968 is illegal and contrary to the settled principles of law and, therefore, the said finding deserves to be modified. This order made by the Tribunal need not be re-examined by this Court in its extra ordinary writ jurisdiction. 3. We have gone through the impugned judgment and order recorded by the Central Administrative Tribunal. We have heard the learned counsel for both the sides. Taking up the first issue as regards Rule 17, it would be relevant to quote below Rule 17 of the Railway Servants (Discipline and Appeal) Rules. "(17) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the railway servant. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit." 4. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit." 4. Admittedly a finding of fact has been recorded by the Tribunal that the statement of the delinquent employee, namely respondent no.1, was recorded first and thereafter the statements of the witnesses for the department were recorded. The Tribunal has, however, stated that this does not constitute a serious illegality so as to vitiate the entire proceedings. We differ with the above conclusion drawn by the Tribunal as regards Rule 17. In the first place, Rule 17 provides as to the manner and mode of holding enquiry against a railway servant and there is no reason why any departure could be made from what is contained in the said Rule. There is no justification anywhere to be found for such a departure. In our opinion, allowing a course contrary to Rule 17 or recording the statement of the delinquent first and the witnesses thereafter would clearly expose the delinquent of his defence and would provide ample opportunity to the witnesses to be examined by the department after him to fill up the lacunae or make such suitable statements upon considering the defence of the delinquent already disclosed. Such a course would obviously, if allowed, be violative of the principles of natural justice and rather it would be snatching away the right of the delinquent to open his defence during the course of cross-examination of the witnesses for the department or at the end of the enquiry. In M/s Hindustan Steels Ltd. v. The Workers -1970 Lab. I.C. 102 the Division Bench of Orissa High Court, after referring to the decision in Associated Cements Companies Ltd. v. Their Workman -(1963) 2 Lab. LJ 396 (SC), held thus in para 10 : "It was commented that the Enquiry Committee first examined the delinquent workman about the allegations made against him. Admittedly, this was done at the very commencement of the enquiry before any evidence in support of the charges levelled against him was recorded. The management should have first called evidence in support of the charge. Thereafter the workman should have been called to meet the charges against him. Admittedly, this was done at the very commencement of the enquiry before any evidence in support of the charges levelled against him was recorded. The management should have first called evidence in support of the charge. Thereafter the workman should have been called to meet the charges against him. Until the management adduced evidence in support of the charge, the workman could not have known of the charges he has to meet. In Associated Cements Companies Ltd. v. Their Workman -(1963) 2 Lab. LJ 396 (SC), it was held that it is necessary to emphasise that in domestic enquiries the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence, and then should the workman be asked whether he wants to give any explanation about the evidence led against him; it is not fair in domestic enquiry against industrial employees that at the very commencement of the enquiry the employee should be cross-examined even before any of the evidence is led against him; it is necessary not to expose the employee to the risk of cross-examination in the manner adopted in the enquiry proceedings; and that such an elaborate examination of the accused workman at the outset constitutes an infirmity in the enquiry. Relying on this decision, the Labour Court came to the conclusion -with which we agree-that the enquiry conducted by the Enquiry Committee was unfair to the workman." We are fully in agreement with the above proposition of law set out by the Division Bench of Orissa High Court. We, therefore, hold that the finding recorded by the Tribunal that for violation of Rule 17 only irregularity is caused and that the enquiry is not vitiated, is illegal. 5. Coming to the next issue regarding the doctrine of proportionality, we find that the Tribunal has correctly recorded a finding that the punishment of removal from service awarded to the respondent no.1 was shockingly disproportionate. The Tribunal held so after looking at the past service record of the employee. The basis was the evidence of his superior officer who deposed before the Inquiry Officer that the performance of the employee had been excellent before his termination and he was punctual in his duty throughout. There was no past record of any punishment given to the employee/respondent no.1. The basis was the evidence of his superior officer who deposed before the Inquiry Officer that the performance of the employee had been excellent before his termination and he was punctual in his duty throughout. There was no past record of any punishment given to the employee/respondent no.1. In that background, the Tribunal rightly thought that the punishment of removal of respondent no.1/employee from service for absence from employment for some days would cause his economic death. The employee had served for about ten years punctually and honestly. We, therefore, find that the Tribunal rightly remitted the matter to the disciplinary authority with a specific rider that except for removal from service some other punishment should be given to the employee. We have no reason to disturb the finding recorded by the Tribunal. The doctrine of proportionality has been correctly applied by the Tribunal. In view of the above we make the following order. ORDER (i) W.P. No.4896/06 is dismissed. (ii) Order dated 17.4.2006 made by the Tribunal in O.A. No.2233/02 is confirmed. (iii) The petitioner/employer shall implement the decision of the Tribunal within a period of four months from today. The Petitioner shall also decide the question of award of back wages and continuity of service. If the decision is not taken within four months, the employee/respondent shall be deemed to be reinstated in service of the employer from such date, namely immediately after the expiry of the period of four months and shall be paid the regular salary. Rule discharged. There shall be no order as to costs.