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2013 DIGILAW 947 (CAL)

V. Raman v. Lt. Governor

2013-12-20

DIPANKAR DATTA, GIRISH CHANDRA GUPTA

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Judgment : Dipankar Datta, J. 1. The appellant in this writ appeal calls in question the judgment and order dated January 29, 2013 passed by the learned single judge dismissing his writ petition. 2. Certain facts are undisputed. The appellant was initially appointed as bus driver by the Assistant Director (Admn.), Directorate of Transport, Andaman and Nicobar Administration on a daily wage of Rs.39/-w.e.f. December 15, 1993. On the recommendation of the Departmental Promotion Committee for Group ‘C’ posts, the Director of Transport (the second respondent) vide office order no.2125 dated August 20, 1997 appointed 5 (five) daily rated bus drivers including the appellant as bus driver purely on adhoc basis for a period of 6 (six) months in the scale of pay of Rs.950-1500/- together with dearness allowance and compensatory allowance as admissible under the rules with immediate effect. Close on the heels of such appointment, memo dated October 6, 1997 was issued to the appellant by the Director. It was alleged therein that the appellant had misappropriated 119 litres of HSD oil by way of showing excessive consumption thereof, which is a serious offence and deserved to be dealt with severely in terms of the Certified Standing Orders (hereafter the CSO) applicable to the workmen of the department. He was, accordingly, asked to show cause why his adhoc appointment shall not be terminated with immediate effect. The notice allowed the appellant 3 (three) days from date of receipt thereof “to submit his written statement to defend the case” failing which necessary exparte action for termination was threatened. In his 4 (four) line response dated January 17, 1997, the appellant denied the allegation of misappropriation of 119 litres of HSD oil as “false and fabricated”. Office order no.2932 dated November 17, 1997 followed, issued by the Director, terminating the adhoc appointment of the appellant with immediate effect in terms of paragraph 14(2) of the CSO on 3 (three) grounds, viz. Office order no.2932 dated November 17, 1997 followed, issued by the Director, terminating the adhoc appointment of the appellant with immediate effect in terms of paragraph 14(2) of the CSO on 3 (three) grounds, viz. (i) the appellant’s explanation to the show cause notice, on examination, was not found satisfactory and his conduct during the first 2 (two) months having been found unbecoming of a Government servant, continuing him in service would be “detrimental to the department” and not in “public interest”; (ii) he refused to perform duty on STS Bus No. 235 on October 9, 1997; and (iii) he was found absent from duty on October 10, 1997 without prior intimation or sanction resulting in cancellation of the scheduled trip to the utter prejudice of the passengers and loss of revenue for the department. Such termination gave rise to an industrial dispute. A reference was made to the Labour Court, Andaman and Nicobar Islands, Port Blair by the Lieutenant Governor (the first respondent) on March 20, 2003 [in exercise of power conferred by Sections 10(1) and 12(5) of the Industrial Disputes Act, 1947 (hereafter the Act) read with notification dated December 13, 1955] for decision whether the termination of the appellant’s service effected by the Director is legal and justified and if not, to what relief, if any, is he entitled. I.D. (L.C.) Case No.09/03 was registered, whereupon the parties filed their pleadings and adduced evidence. The Presiding Officer of the Labour Court by his award dated July 22, 2011 held the termination to be legal and justified and answered the reference accordingly. The award was assailed by the appellant by preferring a writ petition, which has since been dismissed by the judgment and order under appeal. 3. The Presiding Officer of the Labour Court upon consideration of the “written argument” and the documents furnished by the Director noticed that though the appellant was asked to show cause regarding the alleged pilferage of HSD oil, he had “only denied the charge” and returned findings that the documents filed by the Director “speak that time to time there was pilferage in the HSD oil” and that the oil taken by the appellant “was totally disproportionate to the kilometers for which the journey was undertaken” and further that the appellant “could not give any satisfactory reply challenging the said annexures”. The said officer thereafter proceeded to consider the point as to whether the appellant was retrenched from service or not and answered it in the negative. He further considered the involvement of the appellant in a criminal case arising out of violation of traffic rules committed by him in course of discharging duty. Contention raised on behalf of the appellant regarding the requirement to hold departmental enquiry before ordering termination of service was repelled by observing that the cause shown could not satisfy the employer and since he was not a permanent employee, he was not clothed with such protection. 4. The learned single judge after recording the factual aspects observed as follows: “Mr. Kumar would contend, neither the authority nor the labour Court did apply their mind as would be apparent from their respective orders. He would contend, the authority issued a show cause notice only against the pilferage whereas the order of retrenchment and/or termination would refer to unauthorized absence and refusal to obey the directives. Similarly, the labour Court mentioned the traffic rules violation resulting in criminal case that never surfaced earlier. Mrs. Nag would, however, contend, those are nothing but passing reference mentioning about earlier incidents to explain the conduct of the delinquent and nothing else. I am not fully impressed with Mrs. Nag’s explanation. It would have been appropriate for the Tribunal not to mention about traffic violation. However, the principal charge of pilferage was specific. Delinquent miserably failed to answer the show cause notice that would seal his fate. I am satisfied with the judgment and order of the Tribunal on the issue of applicability of section 25(f) of the said Act of 1947. The writ petition fails and the same is hereby dismissed. There will, however, no order as to costs.” 5. Mr. Singh, learned advocate representing the appellant, contended that since the appellant’s service has been terminated by a stigmatic order, an enquiry ought to have preceded the same notwithstanding the fact that he was an adhoc appointee. According to him, the Labour Court and the learned single judge failed to consider this aspect and erred in the exercise of their jurisdiction in refusing to accept the claim of the appellant. It was also contended by him that the Labour Court looked into documents which were not brought on record in a legal manner. According to him, the Labour Court and the learned single judge failed to consider this aspect and erred in the exercise of their jurisdiction in refusing to accept the claim of the appellant. It was also contended by him that the Labour Court looked into documents which were not brought on record in a legal manner. Orders holding the termination illegal and reinstatement of the appellant in service with consequential benefits were, accordingly, prayed for by him. 6. Per contra, Ms. Nag, learned advocate for the Director and the Secretary (Transport) (the third respondent) urged that termination of the service of the appellant by no means can be branded illegal and not justified. He was appointed on adhoc basis for 6 (six) months and had no right to the post. There being an allegation of pilferage against the appellant, the Director did not consider it prudent to continue him in service and no exception ought to be taken to the order passed in this behalf. The appellant, it was clearly opined by the Labour Court, could not rebut the documentary evidence brought on record by the Director. The Labour Court and the learned single judge were right in reaching the conclusions recorded in the award and the judgment under appeal respectively and the same do not warrant interference. She, accordingly, prayed for dismissal of the writ appeal. 7. We have heard the parties at length and perused the records of the Labour Court. 8. Attention of Ms. Nag was drawn by us to the decision of the Supreme Court in Dipti Prakash Banerjee v. SatyendraNath Bose National Centre for Basic Science : AIR 1999 SC 983 and hearing was adjourned to enable her to address us on the next day. The only difference that Ms. Nag could notice, on perusal of the report, is that the Supreme Court was dealing with a probationer appointed on a civil post who was entitled to the protection of Article 311 of the Constitution whereas the appellant before us was an adhoc appointee and, therefore, the ratio of the said decision, she submitted, would have no application here. 9. We are afraid, the submission of Ms. Nag is not well-founded. 9. We are afraid, the submission of Ms. Nag is not well-founded. It does not appear on perusal of the decision in Dipti Prakash Banerjee (supra) that the employee concerned was appointed on a civil post and that he was entitled to the protection Article 311 of the Constitution guarantees to the holder of such post. 10. Be that as it may, the Supreme Court in Madan Gopal v. State of Punjab : AIR 1963 SC 531 ruled that there is no difference between cases where service of a temporary employee is terminated and where a probationer is discharged. In view thereof, there can be no iota of doubt that the principle of law laid down in Dipti Prakash Banerjee (supra) dealing with discharge of a probationer and the previous decisions referred to therein would apply and guide us in reaching a proper conclusion. 11. The issue as to whether an order of termination of service of a temporary/adhoc employee or discharge of a probationer is punitive or not has to be examined bearing in mind whether an allegation of misconduct was the motive or the foundation behind the order of termination or discharge, as the case may be. The Court or the tribunal is entitled to lift the veil to see the true nature of the order. If the basis of the order of termination is not misconduct, it deserves to be sustained. 12. Hon’ble Krishna Iyer, J. (as His Lordship then was) speaking for the majority in Gujarat Steel Tubes v. Gujarat Steel Tubes MazdoorSangh: (1980) 2 SCC 593 observed regarding 'foundation' as follows: "53. . . . . . a termination effected because the master is satisfied of the misconduct and of the desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used." As to motive, His Lordship held : "54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge.***" 13. Considering the aforesaid exposition of law, it was held in Dipti Prakash Banerjee (supra) as follows: “22.If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid.” 14. On facts and in the circumstances of the present case, it was open to the Director, even after receiving the appellant’s response to the show cause notice, to pass an innocuous order observing that he did not wish to continue the service of the appellant. On facts and in the circumstances of the present case, it was open to the Director, even after receiving the appellant’s response to the show cause notice, to pass an innocuous order observing that he did not wish to continue the service of the appellant. No reason therefor was required to be assigned. An order of termination simpliciter would have sufficed. Instead, the Director complicated matters by not only referring to the appellant’s response to the show cause being found unsatisfactory but also hurled other allegations against him in regard to refusal to perform duty and absence from duty on particular days resulting in harassment to the passengers and loss of revenue for the department without even seeking any explanation in regard thereto from him. These are positive findings in relation to misconduct committed by the appellant without holding regular departmental enquiry against him and obviously arrived at behind his back, and were the foundation, and not the motive, for passing the order of termination of service. The Director failed to realize that by passing such a punitive order containing ‘stigma’, he jeopardized the appellant’s career and future employment prospects. It would be difficult, if not impossible, for him to find employment on the face of the unsubstantiated allegations contained in the order of termination. None would be willing to employ a person who has been found guilty of theft, or dereliction of duty and unauthorized absence. In Bishan Lal Gupta v. State of Haryana: AIR 1978 SC 363 , it was stated that if the order contained a stigma, the termination would be bad for "the individual concerned must suffer a substantial loss of reputation which may affect his future prospects”. The Director, in the circumstances, ought to have been more discreet in his approach. 15. Unfortunately, the Presiding Officer of the Labour Court and the learned single judge do not appear to have had the benefit of applying the law laid down in Dipti Prakash Banerjee (supra) in their attempt to resolve the controversy between the parties and reached conclusions which cannot be said to be unexceptionable, as contended by Ms. Nag. 16. Next, there is one very important aspect noticed by us from the records based on the submission of Mr. Singh that goes to the root of the matter and renders the award passed by the Labour Court completely vitiated. Nag. 16. Next, there is one very important aspect noticed by us from the records based on the submission of Mr. Singh that goes to the root of the matter and renders the award passed by the Labour Court completely vitiated. The award is the clear manifestation of total non-application of mind of its Presiding Officer. The appellant filed evidence on affidavit under Order XVIII Rule 4 of the Code of Civil Procedure (hereafter the CPC) and by order no.19 dated December 13, 2006, it was recorded that documents produced by him have already been marked exhibits [as listed in Form No. (J) 23]. These documents had been admitted in evidence on January 12, 2006. The said order no.19 fixed March 15, 2007 for evidence of the second party, i.e. the Director. On that day, it was submitted on behalf of the Director that “he does not want to adduce any witness” and, accordingly, by order no.20 dated March 15, 2007 his evidence was closed and May 25, 2007 was fixed for arguments. Order no.27 dated November 30, 2007 records filing of certain documents by the Director, while filing of written argument by him is recorded in order no.37 dated February 17, 2009. The written argument is a single page document and together with it, inter alia, were annexed (i) memo dated March 22, 1995 calling upon the appellant to show cause why he should not be disengaged from service for having been arrested on the ground that he was driving under the influence of liquor; (ii) duty refusal report; and (iii) absent report. The documents that the Director produced on February 17, 2009 and those annexed with the written arguments were not brought on record in the manner prescribed by law. It is well known that mere production of a document is not enough; contents of documentary evidence have to be proved by examining witnesses. None had testified before the Labour Court on behalf of the second respondent regarding proof of the facts stated therein. In such circumstances, it is incomprehensible as to how the Presiding Officer of the Labour Court could hold against the appellant for not giving satisfactory reply in respect of the documents which were not at all exhibited. Such a course of action, to say the least, is unacceptable. 17. In such circumstances, it is incomprehensible as to how the Presiding Officer of the Labour Court could hold against the appellant for not giving satisfactory reply in respect of the documents which were not at all exhibited. Such a course of action, to say the least, is unacceptable. 17. The learned single judge does not appear to have looked into the records probably because notwithstanding unacceptability of the submission of Ms. Nag and despite the Presiding Officer being remiss as recorded in the judgment and order under appeal, the appellant’s fate was sealed on the ground of his miserable failure to give a satisfactory reply. 18. Let us now examine how far the learned judge was justified in so observing. The Director invoked paragraph 14(2) of the CSO, reading as follows: “No temporary workman and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explain the charges of misconduct alleged against him in the manner prescribed in Paragraph 15”. 19. Paragraph 15 of the CSO contains provisions for disciplinary action for misconduct. After laying down which of the acts of omission/commission would amount to misconduct and the nature of penalty that could be imposed upon a workman found guilty of misconduct, it provides that: “No Order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances against him. The approval of the employer is required in every case of dismissal and when circumstances appear to warrant it, the employer may institute independent enquiries before dealing with charges against a workman, provided that in the case of workman to whom the provisions of Article 311 of clause (2) of the Constitution apply the provision of that Article shall be complied with”. 20. The appellant, we hold, was a temporary workman within the meaning of paragraphs 2 and 3 of the CSO and, therefore, entitled to the protection that paragraph 14 read with paragraph 15 thereof envisaged. Allegation of misappropriation of HSD oil contained in the show cause notice was denied by him by saying that it was false and fabricated. 20. The appellant, we hold, was a temporary workman within the meaning of paragraphs 2 and 3 of the CSO and, therefore, entitled to the protection that paragraph 14 read with paragraph 15 thereof envisaged. Allegation of misappropriation of HSD oil contained in the show cause notice was denied by him by saying that it was false and fabricated. Since the appellant was accused of a serious offence, the Director could not have on the one hand dispensed with an enquiry and on the other terminate the appellant’s service as a punitive measure writing a stigmatic order contrary to the provisions of the CSO. Extending opportunity to explain the circumstances, appearing in paragraph 15 of the CSO, would imply obtaining the preliminary response and if such response is not found to be satisfactory, an independent enquiry was required to be conducted. Admittedly, no enquiry into the appellant’s conduct was ordered. This, in our opinion, was a serious flaw in the process of decision making. The response of the appellant to the show cause notice in one sentence appears to have weighed heavily in the mind of the Presiding Officer of the Labour Court as well as the learned single judge to hold that he had no defence to offer. We are, however, of the view that such an approach was not proper. Provisions contained in Rules 3 to 5 of Order VIII of the CPC are not applicable to domestic enquiries. Generally, in respect of disciplinary proceedings governed by statutory rules or even standing orders, provisions are to be found that upon the charge-sheet being issued, the delinquent is to be called upon either to deny or admit any or all the charges and a caution is sounded that an enquiry would be conducted only in respect of the charges that are not admitted. A delinquent employee, in such a case, even after receiving the charge-sheet is entitled to maintain silence. If he so chooses, he may not reply to the charges even. That would not amount to admission of the charges. If there is no specific admission of the charges and the management is of the view that the misconduct allegedly committed by the delinquent is such that he ought not to be retained in service, an enquiry for proving the charges by adducing legal evidence cannot be done away with. That would not amount to admission of the charges. If there is no specific admission of the charges and the management is of the view that the misconduct allegedly committed by the delinquent is such that he ought not to be retained in service, an enquiry for proving the charges by adducing legal evidence cannot be done away with. A bare denial in one sentence that the allegations made are false and fabricated cannot be construed as evasive denial sufficient to dispense with the requirement of holding an enquiry. 21. The Presiding Officer of the Labour Court misdirected himself by perceiving that an adhoc appointee like the appellant is not entitled to any protection. So far as the learned single judge is concerned, the problem was also not considered from the proper perspective by adverting to the settled principles of law as well as the provisions of the CSO. We are of the considered view that an enquiry ought to have been conducted before punishing the appellant by terminating his service. 22. From whichever angle one views it, the judgment and order under appeal is indefensible as much as the award, which has since merged therein. The same cannot be sustained in law and are, accordingly, set aside. 23. We would now consider the question of relief that could be granted to the appellant in this writ appeal. The appellant having conducted himself in a manner giving rise to an allegation of pilferage of HSD oil within two months of his adhoc appointment cannot expect us to hold in favour of his automatic reinstatement in service with full back wages, upon answering the reference in the affirmative. As has been held by the majority in Gujarat Steel Tubes (supra), “if misconduct was basic to the discharge and no enquiry precedent to the dismissal was made the story did not end there in favour of the workmen” and the law is well settled that the management may still satisfy the tribunal about the misconduct. 24. In view thereof, we order a remand with the result that I.D. (L.C.) Case No.09/03 on the file of the Labour Court shall stand revived and be decided afresh in accordance with law. 24. In view thereof, we order a remand with the result that I.D. (L.C.) Case No.09/03 on the file of the Labour Court shall stand revived and be decided afresh in accordance with law. We grant opportunity to the Director to approach the Labour Court with a prayer for allowing him to lead evidence to prove the misconduct allegedly committed by the appellant in regard to misappropriation of HSD oil, within three months from date. If such prayer is made, the Presiding Officer shall grant it and thereafter proceed to answer the reference by passing an appropriate award upon granting reasonable and adequate opportunity to both the parties. Since the termination was effected as far back as in November, 1997, it is desirable that the reference be answered finally not beyond six months from date of the order granting opportunity to the Director to lead evidence, without granting unnecessary adjournments. It is made clear that should the Director fail or neglect to pray for opportunity to lead evidence within the time-frame fixed above, the Labour Court shall be at liberty to pass an appropriate award as early as possible thereafter. 25. The writ appeal stands allowed to the extent as above. However, the parties shall bear their own costs.