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Madhya Pradesh High Court · body

2012 DIGILAW 1201 (MP)

M. P. State Electricity Board v. P. N. Verma

2012-11-21

K.K.TRIVEDI

body2012
JUDGMENT : Since these two writ petitions have been filed against the order dated 22-9-2005, passed in an appeal filed by the respondent/employee by the Industrial Court partially allowing the appeal and setting aside the order of the Labour Court, both the writ petitions were heard together and are being decided by this common order. However, for the purposes of this order, the facts are taken from W. P. No. 16445/2005(s). 2. These petitions under Article 227 of the Constitution of India are directed against the aforesaid order dated 22-9-2005. The claim made by the employer in the writ petition is that the respondent was working as a Sub Engineer in the establishment of the petitioner. At the relevant time, he was posted at Pandhurna Division. A charge-sheet was issued to the respondent on 18-1-1984, making certain allegations of misconduct. The respondent was placed under suspension. After receiving the reply of the charge-sheet, the Enquiry Officer and Presenting Officer were appointed. After conducting the enquiry, a report was submitted holding that Charges No. l (j) and (e) were partially proved and Charges (a), (b), (c), (d) and (f) were fully proved. It was further held that the Charges No. 2 and 3 were completely proved. A second show cause notice proposing a punishment of termination from service was issued to the respondent on 21-11-1986 and after getting a reply of the said show cause notice, the order was issued on 27-1-1987 terminating the services of the respondent. The respondent assailed the order of termination by filing a dispute under the M. P. Industrial Relations Act, 1960 (hereinafter referred to as the Act for short) before the Labour Court where the Case No. 35/1988 was registered. The said case was transferred from Jabalpur to Chhindwara, where it was registered as Case No. 23/MPIR/1993. An order was passed on 15-3-1990 by the Labour Court holding that the domestic enquiry conducted against the respondent was bad in law. Subsequently, the claim of the respondent was decided by the Labour Court on 29-1-1999 and the termination of the respondent was set aside. The direction was issued to reinstate the respondent with full backwages. 3. An appeal was preferred by the petitioner against the order dated 15-3-1990 and order dated 29-1-1999 before the Industrial Court Jabalpur. Subsequently, the claim of the respondent was decided by the Labour Court on 29-1-1999 and the termination of the respondent was set aside. The direction was issued to reinstate the respondent with full backwages. 3. An appeal was preferred by the petitioner against the order dated 15-3-1990 and order dated 29-1-1999 before the Industrial Court Jabalpur. The Industrial Court allowed the appeal by order dated 14-10-2000 and held that the order dated 15-3-1990 holding that the domestic enquiry conducted against the respondent was bad in law is not sustainable in the eye of law and, therefore, the same was set aside. However, the order of setting aside the termination so issued by the Labour Court was also set aside and the matter was remitted back to the Labour Court to decide the application of the respondent afresh after hearing the parties on the quantum of punishment in view of the proven misconduct. The Labour Court after hearing the parties decided the claim of the respondent and held that the order of termination so issued against the respondent was just and proper and dismissed the claim of the respondent vide order dated 12-2-2002. The appeal was preferred by the respondent before the Industrial Court being Appeal No. 56/02/MPIR, which came to be decided on 1-11-2003 and the matter was again remitted back to the Labour Court to decide the application of the respondent on the question of misconduct and quantum of punishment. Again the Labour Court vide its order dated 16-9-2004 rejected the claim of the respondent and dismissed the application of the respondent. Again an appeal was preferred before the Industrial Court by respondent which having been allowed in part, this writ petition is required to be filed by the petitioner employer. The connected writ petition has been filed by the respondent assailing the part of the order passed by the Appellate Court by which the backwages have been refused to the respondent. 4. It is contended by learned counsel for the petitioner that once the order passed by the Labour Court with respect to the validity of the domestic enquiry was set aside by the Industrial Court, it was not open to the Industrial Court to reopen the consideration on the same issue even when there was no such challenge to the earlier order of the Industrial Court by the respondent. At no point of time, could it be said that the domestic enquiry conducted against the respondent was bad in law. By no stretch of imagination, could it be said that the findings recorded by the Enquiry Officer with respect to the proven misconduct of the respondent were not acceptable in view of the fact that certain documentary evidence were not produced. It was not open to the Industrial Court to reopen its own findings recorded on earlier occasion, only because in the appeal certain facts were stated by the respondent. If such findings could not have been given by the Industrial Court, there was no scope to interfere in the order of the Labour Court and even to partially allow the appeal of the respondent. It is contended that in fact the appeal of the respondent was liable to be dismissed. Thus, it is submitted that the order impugned is per se illegal and is liable to be set aside. 5. Per contra it is submitted by learned counsel appearing for the respondent (Petitioner in W. P. No. 3306/2006) that such findings were recorded cursorily by the Industrial Court on earlier occasion and after remittance of the matter to the Labour Court since it was pointed out by the respondent that while conducting the enquiry specific provisions of M. P. Industrial Employment (Standing Orders) Rules, 1961 were violated. However, these facts were not considered by the Labour Court and as a whole, the claim of the respondent was rejected, therefore, in appeal such grounds were rightly raised. Having considered these grounds in appropriate manner, the Industrial Appellate Court has granted the relief partially to the respondent and has rightly held that the departmental enquiry conducted against the respondent was not just and proper. It is further contended that the entire allegations were based on certain documents of which the originals were never produced and in the enquiry such documents were never exhibited. If this was not done, how could it be recorded that the misconduct of the respondent was fully proved. None of the charges could be said to be proved against the respondent and, as such, it was rightly held by the Industrial Appellate Court that the domestic enquiry conducted against the respondent was not just and proper. If this was not done, how could it be recorded that the misconduct of the respondent was fully proved. None of the charges could be said to be proved against the respondent and, as such, it was rightly held by the Industrial Appellate Court that the domestic enquiry conducted against the respondent was not just and proper. However, it is submitted that while granting the relief partially to the respondent, the Industrial Appellate Court has gravely erred in not granting the relief of reinstatement with backwages and, therefore, such a claim is made by the respondent in the connecting writ petition. It is contended that in view of these facts, the writ petition filed by the petitioner employer is liable to be dismissed and the writ petition filed by the respondent employee is liable to be allowed. 6. Heard learned counsel for the parties at length and perused the record. 7. It is not in dispute that the charge-sheet was issued to the respondent and a reply was received from him. The charges made in the charge-sheet against the respondent were relating to the financial irregularities. For one of the charges, it was said that the respondent has collected certain money from the consumers, issued them temporary receipts duly signed by him, but did not deposit the amount in the Board's account. In misutilisation of his official capacity as Sub Engineer, the respondent acted in a deceptive and disloyal manner causing misappropriation of employers' money and caused loss of revenue to the employer. If this was the charge, it was necessary to produce some of the witness to show that any such amount was received by the respondent from such consumers and any receipt was issued to them so as to establish that the misconduct was committed by the respondent. From the record produced before this Court, the evidence if scrutinised, though not specifically required in a petition under Article 227 of the Constitution of India, it would be clear that some of the witnesses were examined by the employer to show that the amount was actually received by the respondent, but was not accounted for in Board's account and to some of the consumers amount was refunded. The temporary receipts were such documents which were never available with the employer as neither any counterfile of the same was maintained by the respondent nor the same was ever placed in the possession of the employer. This particular aspect is required to be examined from the statements of witnesses who have deposed such facts in their deposition before the Labour Court. Undisputedly, the respondent was allowed full opportunity to cross-examine those witnesses before the Labour Court. If these witnesses were examined in the departmental enquiry and their statements were recorded in the departmental enquiry on the basis of which a finding was recorded by the enquiry officer, by no stretch of imagination, could it be said that the domestic enquiry was not conducted properly, therefore, the Industrial Appellate Court on first occasion was correct in interfering with the earlier order of the Labour Court and holding that the domestic enquiry conducted against the respondent was proper. 8. The other facet of such a finding is that the Rules aforesaid prescribe the Standard Standing Order (hereinafter referred to as the SSO for brevity) as contained in annexures appended to the Rules. Part-II of the Rules prescribe annexures entitling SSO for all the undertaking in the State. Clause 12(4) of the said SSO prescribes that no punishment shall be imposed on an employee unless proved guilty of misconduct in an enquiry conducted in the manner prescribed. The manner prescribed for the conduct of such an enquiry is as follows :- "12(4). Part-II of the Rules prescribe annexures entitling SSO for all the undertaking in the State. Clause 12(4) of the said SSO prescribes that no punishment shall be imposed on an employee unless proved guilty of misconduct in an enquiry conducted in the manner prescribed. The manner prescribed for the conduct of such an enquiry is as follows :- "12(4). No punishment shall be imposed on an employee unless proved guilty of misconduct in an enquiry conducted in the following manner:- (a) The manager or other officer authorised by him in this behalf shall give to the employee a charge-sheet clearly setting forth the mis-conduct charged and the circumstances appearing against him and requiring his explanation; (b) The employee shall be given for submitting his explanation a period of at least 24 hours if he is charged with a minor misconduct and at least 72 hours if he is charged with major misconduct; (c) An employee shall be allowed to defend by himself or the representative of employees, if he so desires; (d) Except in cases where he admits the charge levelled against him the employee shall be permitted to produce witness in his defence and cross-examine any witness on whose evidence the charge rests; (e) The substance of the evidence shall be recorded and read over; (f) An order of punishment shall be in writing and shall be issued over the signature of the manager or other officer authorised under standing order (1)(a). A copy of the order passed awarding the punishment shall be given to the employee." 9. A plain and simple reading of the aforesaid clause, will make it clear that only the opportunity is required to be granted for the purposes of cross-examination after the examination-in-chief of witness is completed by Presenting Officer. No further opportunity is required to be granted. From the record made available, again it is clear that the statements of witnesses were recorded in presence of the respondent wherein such facts were recorded and after that the enquiry report was prepared by the Enquiry Officer. In the enquiry report, it is categorically held that the charges were proved in the manner indicated herein I above. If this was the situation, it could not have been said that the punishment was not to be imposed on the respondent because no charges were proved against him. 10. In the enquiry report, it is categorically held that the charges were proved in the manner indicated herein I above. If this was the situation, it could not have been said that the punishment was not to be imposed on the respondent because no charges were proved against him. 10. The aspect that such a finding was already recorded by the Industrial Court on one occasion while passing the order is to be examined. In fact, the appeal was preferred by the petitioner against the order dated 29-1-1999 before the Industrial Court and in the said appeal since the earlier order dated 15-3-1990 was also called in question, the appellate authority was required to examine whether the enquiry against the respondent was properly conducted or not. Specific findings were recorded by the appellate authority in paragraphs 7, 8, 9 and 10 in order dated 14-10-2000 passed in Appeal No. 107/MPIR/1999. Undisputedly, this order was never called in question by the respondent anywhere and the same has attained the finality. However, the appellate authority remitted back the matter to the Labour Court with respect to consideration of claim whether the respondent was rightly punished or not. There was no occasion for the very same authority to review its own order even when there was no such application. The Labour Court in compliance of the order of remand passed the order on 12-2-2002 rejecting the claim of the respondent, which order was again assailed in appeal being Appeal No. 56/2002/MPIR before the Industrial Court. The Appellate Court remitted back the matter to the Labour Court again recording findings that holding of a departmental enquiry and its validity is something else, but whether the misconduct of the respondent was fully proved or not, was required to be examined by the Labour Court on evaluation of the evidence available on record and since this was not done, the matter was remitted back to the Labour Court. The Labour Court vide order dated 16-9-2004 decided the dispute and rejected the claim of the respondent. Against this order, the appeal was preferred by the respondent and in the said appeal, the impugned order has bean passed. The Labour Court vide order dated 16-9-2004 decided the dispute and rejected the claim of the respondent. Against this order, the appeal was preferred by the respondent and in the said appeal, the impugned order has bean passed. The Industrial Court travelled beyond the scope of appeal and held that since the documentary evidence relied by the employer was not produced in original in the departmental enquiry, the domestic enquiry itself was invalid and on the basis of such an invalid departmental enquiry, no punishment could be imposed on the respondent. 11. This Court fails to understand as to how such a finding could be recorded by the Industrial Court specially when on earlier occasion the very same Court has reached to the conclusion that the enquiry was rightly conducted against the respondent. The appellate authority was not sitting as an appellate authority against its own order passed on earlier occasion. When asked, learned counsel for the respondent could not point out as to how he could challenge the validity of the enquiry before the Labour Court once again when the enquiry itself was held to be proper by the appellate authority on the appeal filed by the petitioner herein. The course open to the respondent was to challenge the order of the appellate authority before the next higher forum and to get the same set aside. Once the finding is recorded by the appellate authority, the same would be binding on the Labour Court and no finding contrary to the finding recorded by the appellate authority could be given by the Labour Court. If this was done by the Labour Court, where was the question of challenging the order of the Labour Court before the appellate authority in a fresh appeal. This being so, the findings recorded by the appellate authority with respect to the validity of the domestic enquiry in the order impugned cannot be sustained. 12. Now remains examination of the fact whether the punishment was rightly imposed on the respondent keeping in mind the misconduct committed by him or not. The same is not open to challenge in a writ petition. The appellate authority has not given any finding in this respect whether the punishment imposed on the respondent was in consonance to the misconduct said to be proved against him or not. The same is not open to challenge in a writ petition. The appellate authority has not given any finding in this respect whether the punishment imposed on the respondent was in consonance to the misconduct said to be proved against him or not. The entire consideration is done as if the domestic enquiry conducted against the respondent was not just and proper which finding according to the reasons assigned hereinabove could not have been reached by the appellate authority. In view of this, the order passed by the appellate authority cannot be sustained. 13. Consequently, Writ Petition No. 16445/2005(s) is allowed. The order dated 22-9-2005 is hereby quashed. The matter is remitted back to the Industrial Court Jabalpur for adjudication of the appeal of the respondent, preferred against the order dated 16-9-2004 passed in Case No. 23/93/MPIR, within a period of four months from the date of receipt of the record. The Appellate Court will not look into the fact whether the domestic enquiry was conducted against the respondent validly or not. However, in view of the findings recorded by the Labour Court, it has to be examined whether the punishment imposed on the respondent was just and proper or not. Let the record of the Court below be remitted back to the Court with a copy of the order passed today. 14. Consequently, Writ Petition No. 3306/2006 is hereby dismissed. There shall be no order as to costs of these proceedings. Order accordingly.