1. A.P.
Cooperative Societies Act, 1964
2. Kerala
Cooperative Societies Act, 1969
3. Kerala
Cooperative Societies Rules, 1969
4. Maharashtra
Cooperative Societies Act, 1950
5. T.N.
Cooperative Societies Act, 1983
6. U.P.
Cooperative Societies Act, 1965
7.
U.P. Cooperative Societies Employees Service Regulations, 1975
1. ANDHRA PRADESH CO OPERATIVE
SOCIETIES ACT, 1964
Section 2(p) 'Society' means Co operative society registered under Co operative Societies Act All Societies registered are subject to provisions of Minimum Wages Act.
2. KERALA COOPERATIVE SOCIETIES'ACT, 1969
·
Section 80(4) No provision found in Act
or Rules thereunder prescribing lower standard of scrutiny for Scheduled
Castes/Tribes candidates.
APPOINTMENT. [1999]
Section 109 Kerala Co operative Societies Rules, 1969 Rule 198 Suspension Validity of Appointing Authority alone can suspend an employee Disciplinary sub committee not being appointing authority has no power to suspend an employee In no case employee can be kept under suspension for continuous period exceeding one year without prior approval of Registrar.
The Disciplinary sub committee of the
Cooperative Bank put the appellant under suspension pending enquiry into
serious allegations against her. On a representation preferred by her before
the Joint Registrar against the suspension order, the same was rescinded by the
Joint Registrar on the ground that the suspension could be ordered only by the
Appointing Authority. This order of the Joint Registrar was challenged by the
co operative Bank in a Writ Petition, with a stay application which was
granted. The appellant filed an application for vacation of stay order. The
learned single Judge, instead of vacating the stay order, extended the period
of stay order. It is against the extension order of the learned single Judge
that this appeal is filed by the Appellant. Therefore, the Division Bench
disposed of the appeal along with the Writ Petition.
Held: The order of Suspension issued by
the Disciplinary Sub Committee is incompetent; the Authority competent to
appoint the employee, namely the Managing Committee, only can do it. As per
Rule 198(6) of the Rules an employee cannot be kept under suspension for a
period exceeding one year without the prior approval of the Registrar, and in
this case there is no such approval. (Para 3)
The suspension order is in total
violation of the Rules, and the continued suspension is without any authority
of law. (Para 5) Chandramathi K.K. v.
Vadakkumpad Service Co operative Bank Ltd [1999]
3. KERALA CO OPERATIVE SOCIETIES RULES, 1969
Rule 176 Power of Registrar of Co op Societies to rescind Resolution, Resolution passed by society to terminate services of employee for proved misconduct joint Registrar of Co. op. Societies rescinding Resolution on ground that punishment was not proportionate to proved misconduct and no opportunity given to employee to correct himself No specific violations of provisions of Act or Rules or Bye Laws was pointed out by Joint Registrar joint Registrar of Co op. Societies has no power to consider adequacy of punishment or findings of Enquiry Officer Findings of Enquiry Committee or Enquiry Proceedings cannot be scrutinised by Joint Registrar of Co op Societies as Appellate Authority Order of Dismissal passed with retrospective effect will not be void but will be valid and effective from date of dismissal i.e. prospective date.
Disciplinary action was initiated
against the employee of Milk Producer's Co.op Society. After the domestic
enquiry, a resolution was passed to terminate the services of the employee.
Accordingly, she was dismissed from service for the proved misconduct of
misappropriation of money forging the local sales bill by wrongfully recording
the price of measured milk of some producers in the name of some other
producers.
The employee filed a petition before the
Joint Registrar of Co.op Societies who interfered with the decision of the Sub
Committee terminating the services of the employee. That decision was
challenged by filing a writ petition and the same was set aside. However, the
High Court directed the Society to conduct the enquiry afresh since the
previous enquiry was conducted exparte and also directed the Society to pay
subsistence allowance for the period of suspension and keep her under
suspension till completion of domestic enquiry. Hence the Appeal.
Held: A reading of Rule 176 of the Kerala
Co operative Societies Rules, 1969, would show that the Joint Registrar can
rescind the resolution only when it appears that:
1. It
is ultra vires of the objects of the Society;
2. It
is against the provisions of the Act, Rules, Bye laws;
3. It
is against any direction or instructions issued by the Department;
4. It
is calculated to disturb the peaceful and orderly working of the Society or
5. It
is contrary to the better interest of the Society.
Taking disciplinary action against an
erring employee is not intended to disturb the peaceful and orderly working of
the society. Nor can it be said that it is ultra vires of the objects of the
Society. (Para 3)
In the present case, the Joint Registrar
of Coop. Societies interfered with the dismissal because the punishment was
found not proportionate to the offence committed and the employee was not given
an opportunity to correct herself. Specific violation of any of the provisions
of the Act or Rules are not pointed out. The Registrar, under Rule 176 has no
power to consider the adequacy of the punishment or findings of the enquiry
officer. He can only consider whether the resolution passed is against the
provisions of the Act or Rules made thereunder or Bye laws and he cannot sit in
appeal over the findings of the enquiry committee or scrutinise the enquiry
proceedings. In a proceedings under Rule 176, the Joint Registrar can certainly
examine whether Rule 198 or any other provisions of the Act or Rules or Bye
Laws are violated or not while taking disciplinary action notwithstanding the
right of appeal or any other alternate remedy. It is the statutory duty of the
Joint Registrar. (Para 4)
It is settled law that an employee can
be dismissed only prospectively and not retrospectively. It is also well settled
that retrospective order will not be void but it will be deemed to have been
effective from the date of dismissal i.e. prospectively. The Joint Registrar
can set aside the Resolution passed for taking disciplinary action only when he
finds that the resolution or disciplinary action is in violation of provisions
of the Acts, Rules or Regulations and there should be a finding to that effect
in the Order. In the absence of such a finding, the Order of the Joint
Registrar cannot be sustained. It has to be set aside. (Para 5) Parappuram Milk Producers Co operative Society v. Deputy
Directory, Department of Dairy Development. [1999]
Rule 198 Suspension Validity of Appointing Authority alone can suspend an employee Disciplinary sub committee not being the appointing authority has no power to suspend an employee In no case employee can be kept under suspension for continuous period exceeding one year without prior approval of the Registrar.
Chandramathi K.K. v.
Vadakkumpad Service Co operative Bank Ltd. [1999]
4. MAHARASHTRA CO OPERATIVE SOCIETIES ACT, 1960
Section 65(2) Petitioners No. 2 to 25 are working members of Petitioner No. 1 registered co operative society doing honorary work and getting honorarium No disciplinary control over them like employees Not covered by other labour laws Honorarium, not wages under Section 2(22) of E.S.I. Act Petitioners 2 to 25 not employees under Section 2(9) Hence recovery orders of contributions quashed.
5. TAMIL NADU CO OPERATIVE SOCIETIES ACT, 1983
Sections 80, 153 Settlement arrived at in course of conciliation proceedings between Co operative societies and its employees Registrar of Co operative Societies threatening to take action against Board of Management of society for recovery of excess amount paid to employees pursuant to conciliation settlement R.C.S. cannot set aside settlement reached under Section 12(3) of I.D. Act between Management and Employees Settlement arrived at cannot be unilaterally set aside by R.C.S. No action can be taken by R.C.S. against society or persons in Management for recovering amount paid pursuant to settlement.
Jina Chandran S. v. Registrar
of Co operative Societies, Madras. [1999]
6. U.P. CO OPERATIVE SOCIETIES ACT, 1965
Section 135 Regulation 103 of U.P. Co operative Societies Employees Service Regulations 1975For employee of cooperative society forum provided by Labour Law and not forum provided by Regulation is to be availed of.
Held: The High Court dealing with the
contention of the petitioner regarding the forum in which workman could seek
relief, observed that though a non obstinate clause is found in the provision
for settlement of dispute in the U.P. Cooperative Societies Act, 1965, the said
provision specially excluded a dispute regarding disciplinary action against an
employee of a society. (Para 10)
Further with regard to Section 135 of
U.P. Cooperative Societies Act, 1965, it was an admitted position that the said
provision had not been enforced by the requisite notification. (Para 16)
For an employee of a cooperative
society, it was held, the forum to be availed of was the one provided by labour
law and not the forum provided by Regulations under U.P. Cooperative Societies
Employees Service Regulations. (Para 18) Sahkari
Ganna Vikas Samiti Ltd. v. State of U.P. [1999]
Section
135 U.P. Co operative Societies Employees Service Regulations, 1975 Regulation
103 Forum provided by Labour law and not forum provided by Regulation is to be
availed of by employee of Co operative society.
Held: Overruling another objection of
the petitioner, the High Court observed that for an employee of a Co operative
Society, not the forum provided by Regulation 103 of U.P. Co operative Societies
Employees Service Regulations, 1975, but the forum provided by Labour law was
to be availed of. (Para 21) General
Manager, Moradabad Dugdh Utpadak Sangh Ltd. v. Presiding Officer, Labour Court,
Rampur. [1999]
7. U.P. CO OPERATIVE SOCIETIES EMPLOYEES SERVICE
REGULATIONS, 1975
Regulation 103 For employee of cooperative society forum provided by Labour Law and not forum provided by Regulation is to be availed of.
Sahkari Ganna Vikas Samiti
Ltd. v. State Of U.P. [1999]
Regulation
103 Forum provided by Labour Law and not forum provided by Regulation is to be
availed of by employee of co operative society.
·
Contempt petitions filed by workmen
Order of Supreme Court directing management to allow workmen, except those
exercising option not to rejoin Failure of management to inform Court that
factory was not functional Direction to management to make interim payment of
Rs. 30,000 on account and Rs. 500 to each of workmen after they joined job at
Baddi Direction given to pay wages from date of workmen reporting for duty till
closure and later till March 31, 1999 with one year wages as shifting bonus by
cheques payable on a Bank at Baddi (less Rs. 30,000 if paid earlier) In respect
of other workmen who reported for duty at Baddi on January 14115, 1999
direction to pay them wages till April 9, 1999 with one year wages as shifting
bonus plus Rs. 5001 as Extra travel
expenditure issued Another individual application to recall order of Court
dated December 18, 1998 as based on mistake of fact, allowed with consequential
reliefs.
These contempt petitions by workmen of
respondent (M/s. Birla Textiles) were the sequel of the Supreme Court's order
dated December 18, 1998 reported in JT 1998 (9) SC 104. The order was based on
the assumption that the factory at Baddi was fully functional, which was not
true in fact. However as the order had become final, the following directions
pursuant to the aforesaid contempt petitions were issued by the Supreme Court.
Held: (i) To the extent that the factory
at Baddi had become functional, the Supreme Court modified its said order of
December 18, 1998 for its due implementation. (Para 8)
(ii) An
interim payment of Rs. 30,000/ was directed to be paid to the workmen on
account. (Para 2)
(iii) The management was responsible for not
informing the Court before it passed the said order on December 18, 1998 that
the factory was not functional. The extra expense of the 937 workmen who could
be provided job immediately at Baddi had to be borne by the Industry
(management). Hence it was directed to pay Rs. 500/ to each of these workmen
after they join job at Baddi, to meet the extra travel expenditure. (Para 10)
(iv) Wages to the said group of 937 workmen
from date of closure upto January 15, 1999 the earlier date on which they had
reported, together with wages payable from January 15, 1999 to March 31, 1999
together with one year wages payable as shifting bonus (minus, the sum of Rs.
30,000/ if paid), directed to be paid by cheques payable on a bank at Baddi.
(Para 13)
(v) Regarding the workmen, other than the group of 937 above referred, and who had earlier reported on
January 14/15, 1999 were directed to report for duty on April 9, 1999 and wages
payable to them from the date of closure up to April 9, 1999 together with
shifting bonus of one year wages plus Rs. 500/ towards expenses for journey to
Baddi were directed to be paid to them by cheque. (Para 16)
(vi) In an individual case of an application to
recall its order dated December 18, 1998 as based on mistake of fact, it was
allowed so far as it concerned the individual, with directions granting
consequential reliefs. (Para 17) Workmen
of Birla Textiles v. K.K. Birla. [1999]
·
Section 19(l)(b) Having regard to age of
appellant and changed circumstances, held, not necessary to send appellant to
civil prison for contempt of Court.
Held: In this short judgment, the
Supreme Court, considering the changed circumstances, since appellant was
sentenced about 13 years ago to pay fine of Rs. 2000/ and undergo detention in
civil prison for civil contempt of Court, was of the opinion that it was now
not necessary to send the appellant to civil prison. (Para 4) Sophy Kelly v. Chandrakant Ganpat. [1999]
Increment
Notional increments on reinstatement Benefit of continuity of service cannot be
restricted to seniority and pensionary benefits.
Managing Director, APSRTC v.
Sankaraiah M. [1999]
Section
23 No violation of principle of public policy is involved by stipulation in
terms of appointment that services during probation could be terminated.
Held: The High Court further observed
that the impugned action (of termination), in the circumstances narrated above,
was not violative of any rule (of public policy). Section 23 of the Contract
Act was not even remotely attracted in this case. (Para 8) Jasmer Singh v. Chandigarh State Co operative Bank Ltd.
[1999]
Section
27 Negative Covenant Enforcement of Agreement between employer and employee
containing negative covenant restraining employee from engaging or
understanding employment for 12 months on leaving services of employer Such
post termination restraint is unenforceable, void and against public policy
Such restraint is in violation of Section 27 of Indian Contract Act Court
cannot grant injunction against employee enforcing such negative covenant Court
cannot permit a thing which is prohibited by Law by granting injunction
Granting of injunction would curtail freedom of employment and employee would
be prevented from improving his future prospects and service conditions by
changing employment No injunction can be granted which would result in
situation 'once employee of particular employer always employee of such
employer' Such situation would amount to "Economic Terrorism" or
creating conditions of "Bonded Labour" Employee has got freedom to
change employment for improving service conditions Such vital and important
right cannot be restricted or curtailed Employee's right to terminate contract
of employment cannot be curtailed by Court Injunction Employer must provide
attractive terms of employment and better service conditions to retain their
employees Freedom in Free Market Economy is to be protected in larger interest
of free Trade and Business.
Pepsi Foods Ltd. v. Bharat
Coca Cola Holdings Pvt. Ltd. [1999]
Section 72 No tax shall be collected except by authority of law No equitable consideration can be imported in Section 72 of Contract Act whose terms are clear and unambiguous.
Anil Textile Industry v.
Employees' State Insurance Corporation. [1999]
Abolition of Contract Labour Vulcanisers: attending to maintenance and repair of conveyer belts at Coal berths at Haldia Dock Complex, Calcutta Port Trust, filing writ petition for abolition of contract system in regard to engagement of Vulcanisers No claim for absorption in regular establishment can be made till Notification is published prohibiting engagement of Vulcanisers; as contract labour Leave given to Vulcanisers to move appropriate Government for prohibition of engagement of Vulcanisers as contract labour in Haldia Dock Complex, Calcutta Port Trust Orders: of status quo issued subject to certain conditions.
Sheikh Jahangir Ali v.
Calcutta Port Trust. [1999]
CONTRACT
LABOUR (REGULATION AND ABOLITION) ACT, 1970
Section 1(4) proviso Nature of the proviso.
The operation of
the Act is restricted to establishments or contractors engaging 20 or more
workmen. Under the impugned proviso, the Act can be extended in exceptional
cases to any establishment or contractor employing less than 20 workmen. Such
extension in the exceptional cases can be effected by the appropriate
Government only by following the procedure prescribed in the Act. The impugned
proviso was therefore, in the High Court's opinion, meant to serve the purpose
as an exception and not as an addendum or supplement to main section. (Para 9) Asia (P) Ltd., Bangalore v. Union of India.
[1999]
Section
1(4) proviso Constitutionality of the proviso Held, proviso not violative of
Articles 19(l)(g) and 14 It does not put any unreasonable restriction on
employers of the establishments and contractors Power given under it to the Govt.
not beyond the permissible limits of valid delegation of power For exercise of
power under the proviso guidelines in the form of procedure laid down which are
required to be followed To exercise powers under said proviso, prescribed
procedure has to be followed.
(i)
appropriate
Government has to issue the notification disclosing its intention to extend the
applicability of the Act;
(ii)
notice of
not less than 2 months is to be given in the said notification;
(iii)
it must
specify the establishments or contractors to which Government intends to apply
the Act and the number of workmen in such establishments and contractors must
be specified;
(iv) the Government has to hear objections upon
disclosing its reasons for the proposed extension of the Act's applicability.
(Para 12) Asia (P) Ltd., Bangalore v.
Union of India. [1999]
Section
1(4) proviso Words "as may be specified" used in the proviso
Significance of Notification under Impugned notification making Act applicable
to establishment or contractor employing less than 20 workmen, without
specifying actual number and simply copying language of proviso It showed clear
non application of mind Held, it suffered from arbitrariness.
Held: The High Court, however, concluded
that the impugned notification under the aforesaid proviso, showed total non
application of mind, as it made the Act applicable to every establishment or
contractor employing less than 20 workmen without specifying the actual number
and simply copying the language of the proviso. The impugned notification was
in fact an amendment to the main provisions of Section 1(4)(a) and (b) of the
Act which could not be allowed to be sustained. (Para 9) Asia (P) Ltd., Bangalore v. Union of India. [1999]
Sections 1(4), 10 and 2(k) In absence of employer employee relationship, dispute regarding regularisation of service cannot be brought within definition of "Industrial Dispute" in Section 2(k) of I.D. Act Reference of such dispute for adjudication will only frustrate object of ameliorating plight of workmen Only course for immediate relief is to issue notification under Section 10 of Contract Labour Act Government has unbridled powers to apply Act, to establishment or contractor whose numerical strength is below prescribed cut off at 20 labourers.
·
Section 2(l)(a) Appropriate Government
Meaning of Clearage of judicial opinion Matter directed to be placed before
larger Bench.
Held: This two Judges' Bench of the Supreme
Court noted the difference of judicial opinion on the question relating to the
definition of 'appropriate Government' set out in Section 2(l)(a) of the
Contract Labour (Regulation and Abolition) Act, 1970 which was one of the
questions argued in this bunch of petitions. One view was that) in the case of
a company wholly owned and c6ntrolled by the Central Government, the
appropriate Government would still be the State Government; the opposite view
was taken by another equivalent Bench (of these judges). Further since the
effect of notification under Section 10 of the Act it being an important
question, also arose for consideration, the Supreme Court directed the placing
of the matter before a larger Bench. (Paras 2 & 6) F.C.I., Bombay v. Transport and Dock Workers' Union. [1999]
Sections 7, 10 and 12 Municipal Corporation Act, 1888 Section 61 Obligatory duties of Municipal Corporation Removal of garbage, silt, house gully and solid waste material being one such duty Corporation continuing to engage contract labour for discharging such statutory obligation even after passing of 1970 Act it had to comply with provisions of said Act Contractors employed on such work also had same duty to comply with said Act These provisions ensure that contract labour is not subject to exploitation Respondent Corporation continuing system of contract labour without so complying and subjecting that labour to continuous exploitation Petitioner Union of Contract Labour granted reliefs under directions of High Court.
A Trade Union claiming to represent
about 2000 workmen doing the work of lifting debris garbage silt, house gully
materials etc. was the petitioner here, which sought relief against continuance
of the workmen under Contract Labour system, it sought direction for absorption
of the workmen as direct employees of the respondent Bombay Municipal
Corporation, the High Court allowed the writ petition.
Held: The High Court analysed the
provisions of the Bombay Municipal Corporation Act, 1888 of which Section 61
laid down the duty of removal of filthy matter and rubbish as one of the
obligatory duties of the Municipal Corporation. (Para 8)
The respondent Municipal Corporation was
carrying on the work of the said removal or garbage through contract labour for
almost 15 years, even after the passing of the Contract Labour (Regulation and
Abolition) Act, 1970 without complying with its provisions. (Para 19)
The High Court dealt with the
contentions of the respondent and found none of them tenable. Firstly, a
distinction between removal of garbage and removal of debris sought to be made
to justify the respondent's stand, was declared to be tenuous and chimerical.
(Para 25)
The work entrusted to the workmen was
perennial in nature to be done all 365 days of the year. (Para 25)
Secondly, the respondent contended that
the jurisdiction to abolish contract labour was vested under Section 10 of the
1970 Act in the appropriate Government and that the High Court could not usurp
the powers of the Government. The High Court rejected also this contention by
pointing out that there were sufficient material crying out to do justice
forthwith by abolishing the evil system of contract labour. The State admitted
that all the facts requisite for acting under Section 10(2) of the said Act were
there but because of the supervening difficulty of Election Code of conduct it
was unable to act. If the State machinery failed to act, the High Court was
obliged in exercise of writ jurisdiction to direct the State what it had to do.
(Para 33)
Thirdly, rebutting again the
respondent's contention that the petitioner had to seek the alternative remedy
of an industrial dispute before Labour Court as disputed question of facts was
involved, the High Court observed that the material on record was more than adequate
to come to the conclusion the High Court arrived at. (Para 34)
Finally, the High Court turned down the
plea that in view of a High Power Committee's recommendations on the subject,
the High Court should not anticipate the issue but desist from a decision, and
observed that these were matters yet in the womb of future. (Para 45) Kachara Vahatuk Shrainik Sangh v. Bombay
Municipal Corporation. [1999]
Section 10 Notification by Government of India prohibiting employment of contract labour for sweeping, cleaning etc. of buildings owned by establishments in respect where of Central Government was appropriate Government Respondent Corporation held bound by notification Employees for such work through contractor directed to be absorbed by Corporation as its regular and permanent employees.
Petitioner trade union sought in this
petition regularisation of 27 workmen, engaged by the respondent Corporation
through contractor for cleaning, sweeping etc. of buildings owned and possessed
by the Corporation, in the service of the Corporation. The High Court allowed
the petition.
Held: The High Court observed after
discussing the decisions cited, that the Corporation had enough supervision and
control over the work of sweeping, dusting etc. of the buildings and squarely
came within the purview of a notification by the Government of India
prohibiting contract labour for the abovesaid items of work. (Para 26) Mumbai Shramik Sangh v. Bharat Petroleum
Corporation Ltd. [1999]
Section 10 Abolition of Contract Labour Vulcanisers attending to maintenance and Repair of conveyer belts at coal berths at Haldia Dock Complex, Calcutta Port Trust, filing writ petition for abolition of Contract System in regard to engagement of Vulcanisers No claim for absorption in regular establishment can be made till Notification is published prohibiting engagement of Vulcanisers as Contract Labour Leave given to vulcanisers to move appropriate Government for prohibition of engagement of Vulcanisers as contract labour in Haldia Dock Complex, Calcutta Port Trust Order of Status Quo issued subject to certain conditions.
The Calcutta Port Trust Board engaged
the Contractor, M/s. Chanda Vulcanisers (P) Ltd. to appoint Vulcanisers for
maintenance and repairs of conveyer belts at the coal berth of the Haldia Dock
Complex, Calcutta. They filed a writ petition. According to the Vulcanisers,
they have been performing such duties for about 12 to 15 years without break,
and the duties performed by them were of continuous and perennial in nature
which require employment of regular employees. According to them, the Calcutta
Port Trust is the Principal Employer and they have been deprived of the
benefits of regular Scales of Pay and other service benefits which are being
given to other regular employees of the Calcutta Port Trust. They sought for
regularisation of their services by absorbing them into service of the Calcutta
Port Trust.
Held: Considering the provisions of
Section 10 of Contract Labour (Regulation & Abolition) Act, 1970 and the
various decisions cited on behalf of the parties, the ratio which emerges is
that consequent upon abolition of contract labour in a particular establishment
by publication of a notification under Section 10(l) of the said Act, the
workmen concerned acquire a right to be absorbed in the regular establishment
and such right could be enforced in the writ jurisdiction of the Hon'ble
Supreme Court and the High Court. (Para 27)
In the present case no such Notification
has been published so far as 'Vulcanisers' employed as contract labour in the
Calcutta Port Trust and until such Notification is published, the petitioner
cannot straightaway claim absorption and regularisation. The Petitioners are
given liberty to make application to the Appropriate Government under Section
10(l) of the Contract Labour (Regulation & Abolition) Act, 1970, for
prohibition by notification in the Official Gazette, employment of the
petitioners as contract labour in the Haldia Dock Complex, Calcutta Port Trust,
and if such an application is made, the same is to be disposed by the
appropriate Government within 3 months from the date of such application being
made. (Paras 28 & 29)
However, there will be an order of
status quo as regards petitioners' services and if an application is made under
Section 19(l) of the above Act pursuant to the leave granted, the said order of
status quo will continue till two weeks after decision of the appropriate
Government is conveyed to the writ petitioners. If no such application is made
within the time stipulated, the order of status quo will stand vacated. (Para
30) Sheik Jahangir Ali v. Calcutta Port
Trust. [1999]
Section
10 Factories Act, 1948 Section 46 Karnataka Factories Rules, 1959 Rules 93 to
99A Contract Labour (Regulation and Abolition) Karnataka Rules, 1974 Rules 3
and 25(v)(a) Vires of notification prohibiting employment of contract labour in
industrial canteens in factories employing 250 workers and above General
notification abolishing contract labour from class of industries can be issued
Exercise of powers under Section 10 falls under conditional legislation
Impugned notification held based on intelligible criteria forming reasonable
classification It cannot be said to be over inclusive as establishments with
250 or more employees from separate category, they being statutorily required
to run canteens.
These writ petitions challenged
notifications under Section 10 prohibiting contract labour in certain cases.
The first group related to a notification prohibiting contract labour in
industrial canteens in factories employing 250 workers and above. The High
Court dismissed the writ petitions.
Held: The High Court observed that the
Contract Labour (Regulation and Abolition) Act, 1970 did not countenance the
employment of contract labour when the work involved was incidental or
necessary to the main operations and perennial in nature. Under Section 46 of
the Factories Act, 1948 and the Rules framed thereunder it was mandatory, the
High Court said, for an employer to provide a canteen in factories where 250 workers
or more were employed. This being a statutory requirement, the incidentally,
potentiality, regularity and sufficiency, the four criteria mentioned in
Section 10(2) of the Contract Labour (Regulation and Abolition) Act, 1970 had
to be presumed. (Paras 9 & 10)
In the present case, the Government
issued the impugned notification abolishing contract labour in establishments
employing 250 or more workers. A general notification, such as the impugned
one, under the said Section 10 of the Act abolishing contract labour from a
class of industries could be issued. (Para 28)
Exercise of powers under said Section 10
would fall under "conditional legislation" as distinguished from
"delegated legislation", thus restricting the scope of judicial
review. (Para 31)
The impugned notification could not be
said to be over inclusive for the reason that all the establishments with 250
or more employees which were required to statutorily run canteens from a
separate category based on intelligent criteria. (Para 38)
The second group of petitions related to
the notification abolishing contract labour in steel reenrolling mills.
Contract Labour in these works was permanent and perennial in nature directly
connected with the main operation of the establishments. Permitting of employment
on contract labour in these processes in steel re rolling mills would be
contrary to the Contract Labour (Regulation & Abolition) Act, 1970. (Para
41)
The contention of contractors that
running of a canteen was a specialised service and abolition of contract labour
in it was violative of Article 19(l)(g) of the Constitution, did not carry
weight with the High Court which held that the contention ran counter to the
objects of the Contract Labour (Regulation & Abolition) Act, 1970. (Para
42) Larsen & Toubro Ltd., Bangalore v.
State of Karnataka. [1999]
Section 10 Plea that matter referred to Labour Court under Section 10 of I.D. Act could not be decided by it on ground that it was case of workmen employed under contractor and not under principal employer Plea being one based on facts and Labour Court giving findings contrary to said plea, held petition should be dismissed.
In this writ petition an employer's
challenge to the maintainability of a reference under Section 10 of the I.D.
Act for lack of jurisdiction in the Labour Court failed, as the findings of the
Labour Court on facts were contrary to what the employer pleaded, namely that
the workmen concerned were those engaged under an agreement by a contractor and
not by the principal employer.
Held: In the impugned award, the Labour
Court, on facts, held the workmen were employed under the petitioner. Hence the
above preliminary objection of the petitioner (employer), the High Court
concluded, need not be considered as the same would come up for consideration
only if on facts the workmen concerned were found to be employed by a
contractor. The writ petition was therefore dismissed. (Para 6) Swadeshi Cotton Mills Co. Ltd., Kanpur v. Labour Court (1)
Kanpur. [1999]
Section
10 For purpose of acting within purview of Act, specific finding to such effect
by appropriate Government is necessary Direction to issue guidelines given.
These writ petitions were by workmen who
sought issue of directions to the first and second respondents to treat
petitioners as regular employees and not as contract labour under different
contractors with the first and second respondents. The High Court allowed the
writ petitions directing the Central Government to make proper guidelines as
provided under the Contract Labour (Regulation and Abolition) Act, 1970, within
three months.
Held: The High Court observed, after referring to the argument and
decisions cited by counsel, that in the present case, although it had been
stated in an omnibus way regarding the workings of the petitioners being
perennial in nature and on continuous service, and it had not been denied in
that way, but still for the purpose of acting within the purview of the Act,
there required to be a specific finding to that effect and there should be a
direction from the appropriate Government, which in the present case, was the
Central Government. (Para 10) Vijoy
Bahadur Singh v. Steel Authority of India Ltd. [1999]
·
Section 10 When contract workers carry
out work of perennial nature, contract labour system gets abolished If contract
labour is for seasonal work, question of abolition would not arise If so called
contractor was mere name lender, who procured labour for appellant Board, as
broker, Board was not principal employer So called contract was mere camouflage
which concealed real relationship of employer employee.
Appellant Electricity Board challenged
in these appeals a judgment of the Punjab and Haryana High Court by which it
held a relationship of employer and workmen between the Board and the respondents
existed and gave consequential reliefs. The Supreme Court dismissed the
appeals.
Held: The Supreme Court discussed the
legislative intent of the Contract Labour (Regulation and Abolition) Act, 1970.
(Paras 10 to 18)
This was not a case, the Supreme Court
observed, where here was a genuine contract labour system prevailing with the
Board. The so called contractor was a mere name lender and had procured labour
for the Board from the open market. He was almost a broker or an agent of the
Board for that purpose. Once the Board was not a principal employer and the so
called contractor was not a licensed contractor under the Act, the inevitable
conclusion was that the so called contract system was a camouflage, smoke and a
screen and disguised in almost a transparent veil which could easily be pierced
and the real relationship between the Board and the respondent employees could
be clearly visualised. (Para 19) Secretary,
Haryana State Electricity Board v. Suresh. [1999]
Section 10 Whether mere letter can effect changes in Notification Appropriate Government for Food Corporation of India is Central Government Perennial work like work of cleaning, watching buildings etc. cannot be given to contract labour.
The questions in this appeal are (i)
whether Food Corporation of India can employ contract labour for watchman's
work and (ii) which is the appropriate Government for the Food Corporation of
India.
The Appellant Union has challenged the
action of the Respondent Corporation in engaging contract workers as watchmen
on the ground of violation of Section 10 of the Contract Labour (Regulation and
Abolition) Act, 1970. It was also contended by the Appellant Union before the
learned single Judge that in view of the Notification dated December 9, 1976
issued by the Government of India the engagement of contract labour in areas of
sweeping, cleaning, dusting and watching buildings occupied by establishments
in respect of which the appropriate Government is the Central Government is
barred. The Union further contended that in view of the amending Act (14 of
1986) amending the definition of the expression appropriate Government the
Central Government is deemed to be appropriate Government for Food Corporation
of India.
The contention of the Respondent
Corporation before the learned single Judge was that in view of the
clarification issued by Government of India vide letter No. 31/27/85 L.S. 111
dated May 20, 1987, the Notification dated December 9, 1976 will not apply to
the establishments of the Respondent Corporation.
The learned single Judge accepted the
stand of the Respondent Corporation and dismissed the Writ Petition. Hence this
appeal.
Held: The Division Bench noted that the
same question (that is the same Notification dated December 9, 1976) was the
subject matter before the Bombay High
Court in United Labour Union & Others v. Union of India [1990] The
Bombay High Court after analysing the definition of appropriate Government used
in the Act and after noticing various pronouncements of the Apex Court had held
that the Notification dated December 9, 1976 bars contract labour in respect of
the work of sweeping, cleaning, dusting or watching in all establishments of
which the Central Government was or is the appropriate authority (And this
decision of Bombay High Court was upheld by the Supreme Court in [1997] (Para
6)
Again, following the decision of the
Supreme Court in [1997] held, the appropriate Government is the Central
Government from the inception of the Act. The Notification published under
Section 10 on December 9, 1976, therefore was in exercise of its power as
appropriate Government. So it is valid in law. (Para 9) Food Corporation of India, Class IV Employees' Union
(Regd.), Sangrur v. Food Corporation of India, Chandigarli. [1999]
Section
10 Notification of Central Government prohibiting employment of contract labour
from March 1977 for work of sweeping, cleaning etc. by establishments in
respect of which appropriate Government was Central Government Central
Institute of Fisheries Education though performing sovereign functions was held
to the subject to provisions of Act.
Petitioner trade union sought absorption
an regularisation of services of workmen doing work of sweeping and cleaning of
buildings of respondent Institute, financed and controlled by the Central
Government. It also sought a direction to the Central Government to take a
decision whether or not employment of Contract Labour in jobs of Peons,
Electricians, Gardeners etc. in the said Institute should be prohibited. The
High Court held the petitioner to be entitled to the reliefs sought.
Held: The High Court observed that the
functions of the respondent Institute could not be said to be sovereign (so as
to exclude the applicability of the Contract Labour Act). Applying the dominant
nature test and other tests laid down in [1978] the activities of the Institute
would be treated as subject to the provisions of the said Act. (Para 8)
The Supreme Court therefore directed
inter alia the absorption and regularisation of services of concerned workmen,
and the taking of the decision sought for in the writ petition. (Para 10) Janavadi General Kamgar Mazdoor Union v.
Central Institute of Fisheries Education. [1999]
Section 10 G.O. abolishes certain categories of contract labour in APSEB Only employees working on day of abolition entitled to be absorbed Petitioners not in rolls on said date not entitled to claim regularisation.
Held: Admittedly, none of the
petitioners was working as contract labour on the date of the G.O. Ms. No. 41
which abolished contract labour in 33 categories of employment. It cannot,
therefore, be said the petitioners have acquired any vested right to be
considered for absorption of their services on a regular basis. Only those
contract labour who were on the rolls on the appointed day are entitled to be
absorbed in terms of the G.O. Ms. 41. No writ will lie against the Board
commanding them to absorb the writ petitioners in the service. (Para 4) Chandra Mouli Reddy v. Member Secretary,
APSEB. [1999]
·
Section 10 Appropriate Government is
charged with duty to consider whether it is necessary to prohibit contract
labour in any process.
Members of the petitioner Union were
workmen of an air conditioning plant and the petitioner Union sought on their
behalf a writ of mandamus directing the appropriate Government to issue
notification under Section 10 of the Contract Labour Act, 1970, prohibiting
employment of contract labour in the plant in question. The Supreme Court
disposed of the writ petitions with directions.
Held: The Supreme Court directed that
the present writ petitions be treated by the appropriate Government as a
representation by the workmen and a decision thereon whether or not a case for
issuance of notification under Section 10 of the Act was made out within a time
frame be taken. (Para 3) All India General
Mazdoor Trade Union (Regd.) v. Delhi Administration. [1999]
Section
10(2) Payment of Gratuity Act, 1972 Industrial Disputes Act, 1947 Section 25FF
Notification under Section of 10(l) of Contract Labour Act No provision in the
Act for absorption of employees whose contract of employment stands abolished
under notification Principal employer not under obligation to absorb such
employee.
Held: The Supreme Court in [1997] in has
held that there is no express provision in the Act for absorption of employees
whose contract labour system stood abolished by way of publication of
notification under Section 10(l) of the Act. In view of this the principal
employer cannot be forced to absorb the employee from the date on which the
contractor has employed him making the principal employer liable to pay the
gratuity from such date. (Para 3)
The appellate authority is not right in
applying the provisions of Section 25 FF of the I.D. Act as there is no
transfer of ownership or management of an undertaking either by agreement or by
operation of law. (Para 10)
As a special case, interest at the rate
of 12% per annum awarded. (Para 11) Madras
Aluminium Co., Salem v. Regional Labour Commissioner. [1999]
Section
21 Petitioner Workman claiming to be doing job of perennial nature and as such
he automatically became employee of the principal employer, particularly in
view of deduction of provident fund from his salary Relationship of 'employer
and employee' did not subsist between principal employer and employee of
contract or High Court can not convert itself into Industrial Court and
interfere in disputes between private employer and its employee.
The appellant workman, an employee of a
contractor of Damodar Valley Corporation filed a writ petition in the High
Court against the order of termination of his services on ground of misconduct.
The writ petition was dismissed inter alia on ground of maintainability.
Aggrieved by the order of the Single Judge of the High Court, the appellant filed
this appeal. The main contention of the appellant is that as he was doing a job
of perennial nature, he automatically became employee of the principal employer
viz. D.V.C. particularly in view of the fact that allegedly provident fund
contribution was deducted from his salary. The High Court dismissed the appeal.
Held: The High Court observed that in
terms of the provisions of the Contract Labour (Regulation and Abolition) Act,
1970, no relationship of employer and employee comes into being between the
principal employer and employee of the contractor.
Although certain duties a recast on the
principal employer enumerated in Section 21 of the Act it has not given any
other benefit to an employee and that no relationship of employer and employee
comes into being between the principal employer and employee of the contractor.
The dispute between the writ petitioner
and the contractor was a private dispute and if the appellant workman was
aggrieved by the order of termination passed by the contractor his only remedy
was to raise an industrial dispute in terms of the I.D. Act. High Court cannot
convert itself into an Industrial Court. Further Courts should refuse to
entertain such writ application where a more expeditious remedy by way of
raising in industrial dispute is available. (Para 5) Gangadhar Ghosh v. Damodar Valley Corporation.[1999]
CONTRACT
LABOUR (REGULATION AND ABOLITION) (CENTRAL) RULES, 1971
·
Rule 25(2)(v)(a) Since no infirmity
existed in facts found by High Court, it was not necessary to decide import of
words 'same or similar' in rule.
The present appeal by the Union of India
challenged an order of the High Court quashing a notification dated May 27,
1975 issued by the Labour Enforcement Officer (Central) directing the
respondent Contractor to pay their workmen at the same rate as was paid by the
Railways to their workmen in Class IV. The Supreme Court dismissed the appeal.
Held: The Supreme Court observed that on
facts found, the impugned order of the High Court did not appear to suffer from
any infirmity. Hence it was not necessary to decide the exact import of the
words "same or similar" used in Rule 25(2) (v) (a) of the Contract
Labour Central Rules, 1971. (Para 2)
The categorisation of the workers into
skilled and unskilled by the Railways was very wide and that could not by
itself furnish foundation for coming to the conclusion that workers engaged by
the respondent were performing the same or similar work. (Para 2) Union of India v. Amardeep Trading Company. [1999]
CONTRACT
LABOUR (REGULATION AND ABOLITION)
(KARNATAKA) RULES, 1974
Rules
3 and 25(v)(a) Vires of notification prohibiting employment of contract labour
in industrial canteens in factories employing 250 workers and above General
notification abolishing contract labour from class of industries can be issued
Exercise of powers under Section 10 of Contract Labour (Regulation and
Abolition) Act, 1970 falls under conditional legislation Impugned notification
held based on intelligible criteria forming reasonable classification It cannot
be said to be over inclusive as establishments with 250 or more employees form
separate category, they being statutorily required to run canteens.
Larsen & Toubro Ltd.,
Bangalore v. State of Karnataka. [1999]
Section
13 Confers powers on High Court to authorise Industrial Tribunals to try
offences under E.S.I. Act (Sections 84 and 85) No such authorisation made Held,
impugned order was without jurisdiction.
Jitendra Kumar Agarwal v.
Employees' State Insurance Corporation Hyderabad [1999]
Sections
24(8), 301 Government filing prosecution against Directors of Public Company
for not implementing Award of Industrial Tribunal relating to D.A.[H.R.A. Such
complaint was riled by Government itself without authorising Trade Union to
rile Complaint Trade Union filing writ petition seeking direction to Government
to appoint, named Special Public Prosecutor for representing State before
Metropolitan Magistrate's Court Under Section 24(8) of Code of Criminal
Procedure, Trade Union, who is not in reality complainant, cannot insist for
appointment of some other Lawyer as Special Public Prosecutor Mere fact that
appropriate Government should authorise any other person to rile complaint
under Industrial Disputes Act has no nexus or relevance with prayer for
appointment of Special Public Prosecutor Appointment of Special Public
Prosecutor should not be insisted upon as of right by Trade Union much less in
favour of any particularly named Advocate Code of Criminal Procedure provides for
conduct of prosecution by Public Prosecutor or Assistant Public Prosecutor
Trade Union cannot insist upon representation by named Advocate of State for
conducting prosecution since Trade Union is not complainant who is total
outsider so far as prosecution is concerned Offence committed by Company and
its Directors would be deemed to have been committed against State since State
is complainant and Union has not been authorised to conduct prosecution.
Section
162(2) Statement of deceased admissible as evidence even in absence of
corroboration.
Jasuben wd/o Devehandbhai
Parmar v. Gujarat Electricity Board. [1999]
Sections
212 and 219 Indian Penal Code 1860 Sections 406 and 409 Deposit of amount
deducted from wages of employees, before accused acquired knowledge of
launching of prosecution, would not absolve him of criminal liability Framing
charges and holding joint trial for offence committed beyond the period of one
year, not justified.
Mukesh Kr. Agganval, Prop. Mahalakshmi Industries, Khanna v. E.S.L Corporation, Chandigarh. [1999]
Section
252 Offences under social welfare measures like Minimum Wages Act Need for
exemplary punishment Fact, accused pleaded guilty is no ground for imposing
lesser punishment.
State of Gujarat v. Krishna
Engineering Works. [1999]
·
Sections 374, 389(l) and 482 Government
Servant Suspension of conviction or sentence by Criminal Court Public Servants
Convicted under provisions of Prevention of Corruption Act, 1947 Public Officer
convicted for offences under Sections 392, 218 and 466 of IPC Suspension of
conviction and sentence by High Court in exercise of Revisional Powers
Revisional Court or Appellate Court shall consider moral conduct involving
criminal case before suspending conviction or sentence Payment of stipend could
be revived and made good if Government servant succeeds in Revision Conviction
and sentence cannot be suspended because of disadvantage of which Government
servant may suffer on account of such conviction or sentence.
Government employees were convicted by
Judicial Magistrate for various criminal offences and sentenced to undergo
various sentences. A Criminal Review was filed with an application for
suspension of conviction and sentence The High Court suspended the conviction
as well as the sentence. Hence the Civil Appeal by Special Leave.
Held: In the present case, in the event
the revisions against their conviction and sentences are allowed by the High
Court the damage, if any, caused to the respondents with regard to payment of
stipend etc. can well be revived and made good to the respondents. If such
matters are taken into consideration, then every conviction will have to be
suspended pending appeal or revision involving the slightest disadvantage to a
convict. The High Court has to consider the moral conduct of the respondents
before suspending the conviction or sentence. The discretionary power to
suspend the conviction should not be exercised because one of the respondents
who was the Police Inspector was convicted under Sections 392, 218 and 466 IPC,
while the other respondents who are also public servants have been convicted
under the provisions of Prevention of Corruption Act. (Para 3) State of Tamil Nadu v. A. Jaganathan. [1997]
Section 468 Limitation Offence under Section 29 of I.D. Act being a continuous one, not barred by limitation.
Executive Engineer v.
Government Labour Officer. [1999]
Section 468 Filing writ petition will not create embargo against proceedings under Sections 29 and 17 A of I.D. Act.
Executive Engineer v.
Government Labour Officer. [1999]
Section 468(2) Offence of failure to rile statutory returns by due date Not a continuing offence Complaint will be time barred if it relates to offence committed more than one year prior to it.
Held: The High Court observed that an
offence of failure to file statutory returns by due date would not be a
continuing offence. Hence the impugned order so far as it related to the
offence pertaining to the year 1981 1982 was quashed. (Paras 25 & 26) Transport Corporation of India Ltd. v. R.M.
Gandhi.[1999]
Sections
468(2)(b), 472 and 473 Failure to submit return of contribution due under
E.S.I. Act, 1948 amounts to continuing offence Trial Court ought not to have
acquitted accused on ground of limitation.
Employees' State Insurance Corporation,
Bangalore v. M.P. Mohammed Ali, Bangalore. [1999]
Section
482 Offences under P.F. are continuing ones Hence law of limitation is not
applicable to them Respondent Complainant was competent to launch prosecution.
Meenakshi Industries,
Cointbatore v. G. Guruswamy. [1999]
Section
482 Substitution of parties in criminal law Extent of revisional power Suit for
specific performance Transfer of Property Act, 1882Section 53 A Can be invoked
only on basis of written contract Temporary injunction cannot be granted on
basis of oral agreement and or in cases which do not admit of permanent relief
Decisions of Civil Courts are binding on Criminal Courts and not the converse.
Jolly Durga Prasad v.
Goodricks Group Ltd. [1999]
Section
482 Provisions of Section 630 of Companies Act are quasi criminal Court has
inherent powers to direct officer or employee of company to vacate property
wrongfully withheld.
Metal Box (India) Ltd. v.
State of West Bengal. [1999]
Negative
Covenant Enforcement of Agreement between employer and employee containing
negative covenant restraining employee from engaging or understanding
employment for 12 months on leaving services of employer Such post termination
restraint is unenforceable, void and against public policy Such restraint is in
violation of Section 27 of Indian Contract Act Court cannot grant injunction
against employee enforcing such negative covenant Court cannot permit a thing
which is prohibited by Law by granting injunction Granting of injunction would
curtail freedom of employment and employee would be prevented from improving
his future prospects and service conditions by changing employment No
injunction can be granted which would result in situation 6once employee of
particular employer always employee of such employer' Such situation would
amount to "Economic Terrorism" or creating conditions of "Bonded
Labour" Employee has got freedom to change employment for improving
service conditions Such vital and important right cannot be restricted or
curtailed Employee's right to terminate contract of employment cannot be
curtailed by Court Injunction Employer must provide attractive terms of employment
and better service conditions to retain their employees Freedom in Free Market
Economy is to be protected in larger interest of free Trade and Business.
Pepsi Foods Ltd. v. Bharat
Coca Cola Holdings Pvt. Ltd. [1999]
Daily
Wagers/Muster Roll employees Daily wagers are appointed only to meet unexpected
or temporary increased workload It cannot be made when need is permanent
Government cannot take advantage of prevailing unemployment in society by
employing daily wagers even when need is permanent.
In this common judgment disposing of
writ petitions and appeals, the controversy involved was whether Daily
Wagers/Muster Roll employees in the Forest Department of the U.P. Government
could get their prayer for a writ of mandamus directing the Government to
regularise their services and pay them salary equal to class III and IV
employees. The High Court partly allowed the writ petitions and Appeals.
Held: The High Court directed the
Government to appoint a committee to consider the question of framing a scheme
for regularisation/ absorption of the petitioner employees. (Para 15)
The High Court further observed that the
real question in this case was whether the Government could run its Department
primarily by Daily Wagers/Muster Roll employees at Class III and IV levels
without giving them job security, and with out paying the wages/salary
equivalent to those of the regular employees. (Para 8)
Daily wagers had been appointed on
meager wages and for long periods, in some cases more than 20 years. Such a
course of action on the part of the Government was not permissible in view of
the underlying principle contained in Articles 14 and 16 of the Constitution.
(Para 9)
In the present case, the appropriate
pleadings were not found so as to declare the employment of the petitioners as
daily wagers for considerably long period as "unfair labour practice"
within Section 2(ra) Serial No. 10 of the Industrial Disputes Act, 1947. The
questions were to be considered and decided by the Government. (Para 12) State of U.P. v. Putti Lal. [1999]
Daily Wager Compassionate
Appointment Under Government scheme for such appointment, dependent of even
daily wager dying in harness can be considered for appointment.
Municipal Employees Union v.
Secretary (Labour). [1999]
Daily
Wager Employee on daily wage basis not in any duty created or sanctioned post
His grievance regarding termination of service cannot be sustained in law.
Writ petitioner who was a Steno typist
in the third respondent temple taken over by the Government, challenged in this
petition an order dispensing with his service. The High Court dismissed the
petition.
Held: The High Court observed that the
appointment of the petitioner was a mere engagement of services on daily wage
basis and he could not claim to be an incumbent in any duty created or
sanctioned post. Hence his grievance could not be sustained in law. (Para 6)
A daily wager, as the petitioner was in
the case, particularly in the absence of any sanctioned post, could not stake
any claim for permanent employment. In such circumstances, a plea that
abolition of post was effected by an authority not competent to do so, had no
relevance or justification. (Para 7) Balwinder
Singh v. State of Himachal Pradesh. [1999]
Initiation
of proceedings and levy of damages after a lapse of 4 1/2 to 8 years Whether
vitiates order levying damages Initiation of proceedings by Regional Provident
Fund Commissioner after lapse of 4 1/2 to 8 years would not vitiate order
levying damages However considering prejudice caused to employer on account of
such delayed action on part of the Provident Fund Commissioner quantum of
damages reduced by 50% Employees Provident Funds and Miscellaneous Provisions
Act, 1952 Section 14 B.
Presidency Kid Leathers (P) Ltd.,
Madras v. Regional Provident Fund Commissioner, Madras. [1999]
Non
payment of contribution Levy of damages Petitioner not given any particulars as
to how quantum of damages was arrived at Matter remanded for fresh
consideration.
Management of Simpson &
Co. v. E.S.LC [1999]
Power
to recover damages is penal Impugned order imposing damages showed total non
application of mind No reasonable person could come to conclusion that
petitioner company had committed any default Employees' Provident Funds and Miscellaneous
Provisions Act, 1952 Section 14 B.
Abhijat Samayadarshika
(Maharashtra) Ltd. v. Union of India. [1999]
Imposition
of damages depends on facts and circumstances of each case It is not subject to
any strait jacket formula Appropriate date to be considered in levying damages
is date of payment by draft/cheque and not date of encashment Employees'
Provident Funds and Miscellaneous Provisions Act, 1952 Section 14 13.
Orissa State Electricity
Board v. Union of India. [1999]
Order
levying damages, being punitive in nature, action thereupon should be initiated
within reasonable time Employer cannot take shelter behind fact it has applied
for exemption Applicability of Act to establishment is sine qua non for
imposing penalty by way of damages Employees' Provident Funds and Miscellaneous
Provisions Act, 1952 Sections 14 B, 16 and 17.
H.P. Agro Industries Corporation Ltd.
v. Regional Provident Fund Commissioner. [1999]
Claim
for damages for tort under common law Suo motu deposit by employer and receipt
of such claim by claimants It does not exhaust option to claim damages under
common law.
Jasuben Wdlo Devchandbhai
Parmar v. Gujarat Electricity Board. [1999]
Reference
Dispute regarding date of birth Workman permitted to get birth date corrected
six months prior to date of retirement Only objection to such correction was
workman was, likely to be below 18 at time of appointment Since Port Trust used
at that time to employee persons, below 18, correction could not be challenged
Industrial Disputes Act, 1947 Section 10.
Petitioner Port Trust challenged an
award of Central Administrative Tribunal accepting a correction in the birth
date of a worker based on his School Leaving Certificate. The High Court
rejected the petition.
Held: The High Court observed that the
only objection to the correction was that the worker was likely to be a minor
at the time he joined service but the Port Trust used at that time to employ
minors (i.e. below 18). Hence the Tribunal's award could not be interfered
with. (Paras 6, 8) Board of Trustees of
the Port of Bombay v. Transport and Dock Workers Union. [1999]
Request
for correction in service book Blind application of Rules will not work out
justice in matter Application for correction was neither belated nor defective
for non submission of S.S.L.C. Book Direction to Government to pass fresh
orders issued.
Appellant State impugned in this appeal
an order granted in an O.P. directing the State to consider afresh the
respondent's application for correction of his date of birth in his Service
Register. The High Court dismissed the appeal.
Held: The High Court observed, after
referring to Kerala Service Rules, Part III, Rules 140 to 143, that blind
application of rules would not work out justice in the matter. On the facts,
the contentions of the State Appellant that the application of the respondent
was belated and that it had not been accompanied by the corrected S.S.L.C. Book
were held not sustainable. (Paras 12 to 15) State of Kerala v. Yoosuf Kunju. [1999]
·
Writ petition would not become
infructuous on account of appellant having attained age of superannuation
during pendency of proceedings based on date of birth claimed by him High Court
could have examined claim of appellant on merits and if date of birth claimed
by him was upheld could have considered grant of relief on account of his
premature retirement Case remitted to High Court for consideration on merits. (Para 4)
Ashgar Klhan v. Union of
India. [1999]
Gratuity
Payment of No reason shown for deduction on account of alleged loss Deduction
held not justified.
Mansukh Lal v. National
Textile Corporation (M.P.) Ltd. [1999]
Appeal,
not giving rise to substantial question of law, flied beyond prescribed time No
cause shown for delay in support of application for consideration of delay
Workmen's Compensation Act, 1923 Section 30.
Superintending Engineer, Ukai
Circle v. Arjunbhai Dabhubhai Godavale. [1999]
Delay and laches In seeking invalidation of award of Labour Court Time gap of four years and three months between award and filing of writ petition Petition dismissed inter alia on ground of laches.
This judgment dealt with two writ
petitions, one each by employer and employee, the former challenging, and the
latter seeking implementation of, the Labour Court's award directing
reinstatement of the employee whose services had been terminated by the
employer. The High Court dismissed the writ petition of the employer but
allowed that of the employee (workman).
Held: The High Court observed, while
dealing with the employer's writ petition, that documents produced by the
employer appeared to have been fabricated in order to mislead the Court. (Para
14)
Further the employer's petition had been
filed after a time gap of four years and three months from the date of the
impugned award; the very fact that this writ petition was filed after receiving
notice of the workman's writ petition showed that it was filed only to avoid
the charge of callous negligence in implementing the said award. The Court
therefore said it had no difficulty in holding that the writ petitioner
(employer) was guilty of delay and laches. (Para 15)
Dealing with the other writ petition,
namely the writ petition of the workman, the Court found the workman had been
running from pillar to post to get the award (directing his reinstatement)
implemented and had now invoked the writ jurisdiction of the High Court for
getting relief. (Para 1,6) Sukhjinder
Singh v. Director, State Transport, Punjab, Chandigarh. [1999]
·
Appointment to Civil Service (Executive
Branch) Appointment to Civil Service challenged by unsuccessful candidates
Matter carried to Supreme Court Candidates were appointed as Excise and
Taxation Officers and also getting themselves impleaded before Supreme Court
Supreme Court directing candidates to rile proper writ petition before High
Court Writ Petition riled cannot be dismissed on ground of delay and laches
Circulars issued by Government can be enforced under circulars issued by
Government Appellants are entitled to be considered as vacancies arise by
reason of non appointment of some of the candidates especially when vacancies
arise within period of six months from date of previous selection.
Virender S. Hooda v. State of
Haryana. [1999]
Compassionate
Appointment Employee died in 1989 Writ petition filed in 1996 seeking
compassionate appointment Only representation shown to have been made was in
1995 Order of single Judge directing appointment by creating supernumerary post
Not justified However additional monetary benefit ordered to be paid.
Vice Chairman & M.D.,
APSRTC, Hyderabad v. B. Dasarath Kumar. [1999]
Compassionate
Appointment Employee died in harness in 1991 Application made for compassionate
appointment in 1992 No orders passed Writ petition filed in 1997 Held, liable
to be dismissed on ground of laches.
Managing Director, APSRTC,
Hyderabad v. K. Santha Kumari. [1999]
Delay
of nearly 5 years in payment of backwages ordered by Labour Court Claim for
interest upheld.
State of Haryana v. Hisam
Singh. [1999]
Ex parte award Employer not filing' application before Labour Court for setting aside award due to Supreme Court decision in [1981] Petition in High Court Delay in approaching Court Vague averments; on same Petition dismissed Industrial Disputes Act, 1947.
Delhi Development Authority
v. Pradeep Kumar. [1999]
Insurer
is not liable to pay interest on amount, payment of which was delayed due to
laches on part of employer Workmen's Compensation Act, 1923 Section 4 A(l).
Oriental Insurance Co. Ltd.,
Hyderabad v. Talla Shankar. [1999]
·
Suit for reinstatement and backwages
Court decreeing reinstatement and ordering wages for 3 years and 2 months
Respondent, instead of claiming decretal amount, making departmental
representation on reinstatement Later, on refusal of representation, filing
writ petition claiming backwages Held, it was not permissible to claim back
wages in a belated writ petition.
State of Punjab v. Sukhdev
Singh. [1999]
DELHI
DEVELOPMENT AUTHORITY (SALARIES, ALLOWANCES, AND CONDITIONS OF SERVICE)
REGULATIONS, 1961
Regulation
19 Removal from Service No notice given to employee to explain charge of
complicity in encroachment of land Order of removal from service not
sustainable, being opposed to principles of natural justice.
Murli Singh v. Delhi
Development Authority. [1999]
Meaning
of 'dependent' If parents of deceased workman although may fall within
definition, were not dependent on deceased workman, as matter of evidence, they
would not be able to succeed in their claim Workmen's Compensation Act, 1923
Section 2(d).
Pampiya Bai W/O Shyamlal v.
Laxmi Devi Wd/o Suresh. [1999]
Disciplinary
Action Government servant on deputation to autonomous Body Action by whom in
case of misconduct Government has power even outside service regulations to
take action if employee can be brought under Prevention of Corruption Act, 1988
Section 2(c)(iii).
State of Kerala v.
Sugathakumar. [1999]
Employees
on deputation in another sister concern are to be calculated to fix liability
to pay contribution Employees' State Insurance Act, 1948 A.P. Shops and
Establishments Act, 1966Sections 2(9), (10) & 22.
Employees' State Insurance
Corporation v. Scientific Fertilizer Co. (Pvt.) Ltd. [1999]
Employee of Government Roadways Sent on deputation to Corporation Continued to be Government servant and not became employee of Corporation Not an "employee" as defined in Section 2(e) Hence not entitled to gratuity as per Act Payment of Gratuity Act, 1972 Sections 2(e) and 4.
U.P. State Road Transport Corporation v. Asst. Labour Commissioner, Gorakhpur. [1999]
Transfer Petitioner's plea that he being physically handicapped and suffering from 40% disability, should not ordinarily be transferred as it would cause inconvenience to him Court referred to 'NIRTAR' for examination Report shows 25% disability only Held that order of transfer does not suffer from any infirmity.
Kirtan Bihari Sahoo v.
Chairman & Managing Director, United Bank of India. [1999]
SEE UNDER THE HEADING "TERMINATION OF SERVICE"
1. Charges
2. Competent authority
3. Criminal proceedings vis a vis
departmental proceedings
4. Enquiry officers
5. Evidence
6. Fresh or second enquiry
7. Holding of enquiry
8. Judicial review
9. Natural justice
10. Practice
and procedure
11. Punishment
(a)
Court's interference
(b)
Power to impose
(c)
Recording of reasons
12. Retirement/Death of delinquent
13. Right to be represented
14. Right to copy of enquiry report
15. Rules, Regulations, Awards
16. Show cause notice
17. Validity of proceedings
18. Witnesses examination, cross examination
Disciplinary Enquiry Though charges are mentioned in charge sheet, wrong Standing Order was quoted Labour Court setting aside domestic enquiry on this ground Award cannot be sustained Remanded for fresh decision.
Held: The award of the Labour Court is
based on the ground that the relevant Standing Order was wrongly quoted in the
charge sheet. Charges are mentioned in the charge sheet. The reason given by
the Labour Court, for setting aside the domestic enquiry cannot be sustained.
The award cannot, therefore, be sustained and therefore has to be quashed and
set aside.
Matter will go back to the Labour Court
for fresh disposal. (Paras 2 & 3) VY.F.
Limited v. Sarva Shramik Sangh. [1999]
·
Domestic enquiry If documents mentioned
in memo of charge are neither relevant to charge nor relied upon by
authorities, non supply of such documents would not vitiate proceedings.
The appellant Transport Corporation
impugned in this appeal an order of the High Court whereby the writ petition of
the respondent Conductor was allowed. The Conductor had filed the said writ
petition challenging the dismissal by the U.P. Public Services Tribunal of his
claim for relief against removal from service. The Supreme Court allowed the
appeal.
Held: The Supreme Court observed that
the High Court seemed to have reached its conclusions without examining the
file relating to the enquiry. The High Court proceeded on the assumption,
contrary to the Tribunal's finding based on the enquiry file, that a certain
Asst. Traffic Inspector on whose report the charges against the respondent were
framed, had not been examined by the enquiry officer. In fact the respondent
had declined, while the Asst. Inspector was being examined, to cross examine
him. (Paras 5 & 10)
When the respondent did not choose to
cross examine the Asst. Traffic Inspector, regarding statements of passengers
on the basis of which the report was made, it was not possible for him to
contend that there was violation of principles of natural justice by reason of
non supply of statements of those passengers or their non examination as
witnesses. (Para 6)
The Supreme Court further observed that
non supply of documents irrelevant to the charge, and not relied upon by the
authorities, would not vitiate the proceedings. (Para 7)
The Court would not sit in appeal over
the findings of the enquiry officer so long as they were based on
uncontroversial material. (Para 9) U.P.
State Road Transport Corporation v. Musai Ram. [1999]
Disciplinary
Action Government servant on deputation to autonomous Body Action by whom in
case of misconduct Government has power even outside service regulations to
take action if employee can be brought under Prevention of Corruption Act, 1988
Section 2(c)(iii).
Respondent had challenged three orders
(order suspending him pending enquiry passed by Vigilance Department of
Government of Kerala, order passed by Government of Kerala reinstating him
without prejudice to the disciplinary action pending against him, and order of
the Government of Kerala to initiate further disciplinary action against him
before the single Judge, on the ground that the Government of Kerala is not his
disciplinary authority and with his regularisation as Director of ANERT the
Government has no such powers over him and only the Executive Committee of
ANERT can exercise such power.
The Respondent was acting as a Director
of ANERT, his parent Department being Technical Education Department. ANERT is
a body controlled and financed by the Government of Kerala.
The learned single Judge allowed the
Respondent's petition. Hence the State of Kerala went in appeal before the
Division Bench.
Before the Division Bench the
submissions on behalf of the State were (i) the Government has the power to
repatriate its servant if the lien has not been expressly terminated, (ii)
Government has the power to take disciplinary action against a Government
servant on deputation, and (iii) consequently the Government has power of
suspension over the deputationist. The Division Bench accepted these
contentions.
Held: The Respondent being a Government
servant within the meaning of Section 2(c)(iii) of the Prevention of Corruption
Act and the ANERT is a body controlled and aided by the Government as envisaged
in the Act, the Government has got jurisdiction to initiate disciplinary action
and also place the Government employee under suspension. The Government has the
power and jurisdiction to suspend a person from service even outside the
provisions of the service regulations so long as the incumbent is a public
servant within the meaning of Prevention of Corruption Act. (Para 9)
The Director of ANERT will be nominated
by the Government of Kerala. Thus the appointing/nominating authority in the
case of Director is the Government and not the Executive Committee or Governing
Body of ANERT. The power of the Government to nominate or appoint the Director
also includes the power to dismiss or terminate the nomination/appointment of
the Director. (Para 10) State of Kerala v.
Sugathakumar. [1999]
3. CRIMINAL PROCEEDINGS VIS A VIS DEPARTMENTAL
PROCEEDINGS
·
Departmental Proceedings Acquittal of
delinquent officer by Criminal Court will not conclude departmental proceedings
on same charge.
A sub post master was dismissed (reduced
to compulsory retirement on appeal) from service on two charges of misconduct
as a result of a departmental enquiry He was prosecuted in Criminal Court in
respect of the first charge but was acquitted since the offence was not held to
be proved beyond reasonable doubt. On appeal, the Central Administrative
Tribunal held that after acquittal by the criminal Court, punishment should not
be imposed in the departmental proceedings based on the finding relating to the
first charge, the punishment had to be reviewed because it related to two
charges and since the finding on the more serious of the charges had been set
aside as unsustainable, the order to the extent of imposing the punishment
could not be sustained. The Tribunal directed the appellate authority to
consider the question of punishment afresh and pass appropriate orders. The
High Court in appeal affirmed the above orders. Aggrieved by the above orders
the appellant has preferred the present appeal.
Held: The Supreme Court held that while
in a criminal case the charge has to be proved by the standard of proof beyond
reasonable doubt, in departmental proceedings the standard of proof for proving
the charge is preponderance of probabilities. The Tribunal was therefore in
error in holding that in view of the acquittal of the respondent by the
criminal Court on the first charge, the finding in the departmental proceedings
could not be upheld. (Para 6)
The Tribunal was also not right in
taking the view that even though the second charge was proved, the punishment
of compulsory retirement imposed on the respondent could not be sustained. The
punishment of compulsory retirement could be imposed for misappropriation of
funds. The Tribunal could not therefore direct the appellate authority to
review the penalty imposed on the respondent. (Para 6) Senior Supdt. of Post Offices, Pathanainthitta v. A.
Gopalan. [1999]
Disciplinary proceedings On charges identical with charges in criminal proceedings Acquittal of workman in criminal proceedings Disciplinary proceedings cannot be continued.
This writ petition by employer
cooperative society challenged an award of the Labour Court on several grounds.
The High Court accepted none of them and dismissed the writ petition.
Held: In the first place, the Labour
Court's finding that disciplinary proceedings against the concerned workman
were not permissible, as they were based on charges identical with those on
which criminal proceedings had taken place and the workman acquitted, could not
be interfered with, said the High Court. It is true, observed the High Court,
that scope of disciplinary proceedings is ordinarily different from the scope
of criminal proceedings. But when the charges are identical and a finding has
been arrived at as regards facts involved and on that basis the workman
concerned has been honorably acquitted (in the criminal proceedings), there is
no reason, for continuing the disciplinary proceeding on the same charges.
(Para 7) Sahkari Ganna Vikas Samiti Ltd.
v. State of U.P. [1999]
Domestic Enquiry Stay of, pending criminal trial It will not be in interest of administration to stay domestic enquiry Delinquent Officer also will get benefit of knowing prosecution case.
Held: This petition by a delinquent
official sought a stay of enquiry proceedings against him till petitioner made
his statement under Section 342 Code of Criminal Procedure in the criminal
trial against him commenced upon an FIR lodged by the respondent containing the
same charges as those in the domestic enquiry. The High Court dismissed the
petition observing that the scope of criminal proceedings was different since
strict provisions of Evidence Act did not apply to domestic enquiry. It would
not be in the interest of the administration to stay the domestic enquiry.
(Para 2) Yadav R.N. v. State of Haryana.
[1999]
Departmental
Enquiry While criminal prosecution is pending Dismissal before completion of
prosecution proceedings which ended in acquittal Difference in charges before
both Forums Untenable charge in Court can hardly amount to delinquency.
The respondent, an employee of the
appellant, was prosecuted before the Sessions Court for alleged murder of his
wife, and the prosecution ended in his acquittal. During the pendency of the
criminal prosecution, the appellant initiated a departmental proceeding against
the respondent on the misconduct of "having involved in a criminal case of
alleged killing" and was removed from service.
The respondent challenged the order of
removal in the High Court which quashed the removal order; hence the appeal
before the Division Bench.
Held: The charge was on involvement of
the employee in a criminal case. As soon as the criminal case itself was found
to be untenable in the Court the very basis of the charge was knocked out. The
charge should have been quashed as and when the criminal case ended in
acquittal. Involvement in a criminal case which was not tenable in Court of law
can hardly amount to any delinquency. It cannot be disputed that the
disciplinary authority is entitled to hold disciplinary enquiry on the same
charge as is before a Criminal Court because the scope of disciplinary enquiry
and a criminal trial is different. But where the charge in the disciplinary
enquiry is necessarily dependent on the result of the criminal case and if the
criminal case itself ends in favour of the delinquent, the charge in the
disciplinary enquiry becomes unsustainable. (Para 4) A.P.S.R.T.C v. T. Venkatapathi, Ex Depot Controller, APSRTC,
Srikalhasti. [1999]
Departmental
Enquiry Standard of proof Scope of enquiry different from that of criminal
trial Neither technical rules of evidence nor doctrine of proof "beyond
doubt" has any application.
The appellant Bank has impugned in this
appeal the judgment of a single Judge who allowed the writ petition of the
respondent, setting aside his removal from service by the disciplinary and
appellate authorities. The High Court allowed the appeal and set aside the
impugned judgment of the Single Judge. The Single Judge in his impugned
judgment had held that while the respondent's negligent conduct amounted to
misconduct and he was rightly held guilty of such misconduct, nevertheless the
punishment of removal from service was disproportionate to the charge leveled
against him.
Held: In the present judgment allowing
the appeal, the High Court considered that non examination of witnesses in
question (in the domestic enquiry) had not vitiated the enquiry, keeping in
view the other evidences brought on record and documentary evidences and the
defence of the respondent himself. (Para 19)
Nor did the Court agree that the
punishment meted out to the respondent was grossly disproportionate to the
charges proved against him. (Para 28) Syndicate
Bank v. B,S. Narayanan. [1999]
Life
Insurance Corporation of India (Staff) Regulations, 1960 Regulation 39(l)
Probation of Offenders Act, 1958 Section 12 Factum of conviction not washed out
by release under Probation of Offenders Act Stigma continues inspire of such
release Disciplinary Authority can pass appropriate order upon issue of show
cause notice.
Petitioner in this writ application,
holding the post of sub staff in the Life Insurance Corporation, challenged a
"charge sheet cum show cause notice" proposing a penalty of his
removal from service. He was found guilty by a Criminal Court of an offence
under Section 471 I.P.C. for having got himself appointed as a sub staff by
forging a Class IX pass certificate but released after due admonition under the
Probation of Offenders Act. The challenge to the impugned show cause notice was
mainly based on the plea that upon release of the petitioner under the
Probation of Offenders Act, his alleged misconduct stood washed out and the
impugned notice could no longer be sustained.
Held: The High Court did not accept this
plea and the Disciplinary Authority was held to be within its jurisdiction to
pass an appropriate order after the petitioner submitted his cause to the
impugned show cause notice. The factum of conviction was not washed out, the
Court said, merely by the release of the offender on probation. The stigma
continued and the finding of misconduct resulting in conviction had to be treated
as conclusive proof. (Para 10) Kedar Das
v. Life Insurance Corporation of India. [1999]
·
Criminal proceedings and departmental
proceedings can proceed simultaneously Exception to this rule is where
departmental proceedings and criminal case are based on same set of facts and
same evidence.
A security officer in the respondent
Gold Mines in Kilar was dismissed from service on charges of alleged recovery
of gold ball and gold bearing sand from his house. He challenged the dismissal
in a writ petition which was allowed by a Single Judge, but a Division Bench on
letters patent appeal set aside the Single Judge's judgment. Hence the present
appeal by the Security Officer. The Supreme Court allowed the appeal.
Held: The Supreme Court observed that a
Criminal case, based on the same set of facts as those on which the
departmental proceedings were based, had been thrown out and the appellant
acquitted. It would therefore be unjust and oppressive, said the Supreme Court,
to allow, the findings recorded at the ex parte departmental proceedings, to
stand. (Para 34)
The Supreme Court referred to the basic
principle that proceedings in a criminal case and the departmental proceedings
could proceed simultaneously. One exception to this rule, the Supreme Court,
observed, was where the departmental proceedings and the criminal case were
based on same set of facts and the evidence in both the proceedings was common
without there being a variance. (Para 13)
The appeal was allowed also for the
reason that the appellant had been punished in total violation of the
principles of natural justice and he was literally not afforded any opportunity
of hearing. On account of non payment of subsistence allowance to the
respondent during pendency of the departmental proceedings, he could not
undertake a journey to attend those proceedings which had been held exparte,
stood vitiated. (Para 33) Capt. M. Paul
Anthony v. Bharat Gold Mines Ltd. [1999]
Probation of Offenders Act, 1958 Section 4(l)
Indian Penal Code Section 498 A Husband of woman subjecting her to cruelty
Employee of Bank convicted by criminal Court for offence u/S 498A and sentenced
for imprisonment as well as fine High Court on revision giving benefit of
Probation of Offenders Act to such employee Subsequently disciplinary action
imposing punishment of Discharge from service Husband subjecting his wife to
cruelty within meaning of Section 498 A is offence involving moral turpitude
Release under probation of Offenders Act will not wipe away guilt and
conviction Mere release under Probation of Offenders Act is not ground to
escape from provision of Section 10(l)(B)(i) of Banking Regulation Act No
lesser punishment can be imposed than Discharge from service Employee convicted
by criminal Court for offence under Section 498 A and released under Probation
of Offenders Act cannot claim reinstatement and order of Discharge cannot be
set aside.
Vincent
Varghese v. State Bank of India. [1999]
Domestic
enquiry, Enquiry Officer junior in rank than Presenting Officer In absence of
any material showing that Enquiry Officer was in any way prejudiced or
influenced by the rank of the Presenting Officer, held, contention of
appellant, that enquiry was not fair or reasonable could not be accepted. (Para 21)
Verma
V. K. v. Hindustan Machine Tools Ltd., Pinjore. [1999]
·
Standing Orders Clause 62(C) Enquiry to
be made by Manager or other responsible officer Advocate appointed as enquiry
officer He has all normal powers of enquiry officer including power to give
findings as to misconduct of employees.
The question that arose for
consideration in this appeal by the management, which impugned an order of a
Division Bench of the Madras High Court, was whether or not an advocate
appointed as enquiry officer to conduct an enquiry into alleged misconduct of
employees could, in addition to recording evidence, give his findings as to
such misconduct. The Supreme Court answered the question in the affirmative and
allowed the appeal.
Held:
The Supreme Court
observed that an advocate appointed as an enquiry officer would have all the
normal powers of an enquiry officer including the power to give findings as to
the misconduct of the employees. (Para
14) Management
of Thanjavur Textiles Ltd. v. B. Purushotham. [1999]
·
Departmental enquiry Statements recorded
during preliminary enquiry It is permissible to appreciate evidence given by
witnesses before the enquiry officer in light of earlier statements during
preliminary enquiry Strict rules of evidence not applicable in departmental
enquiries.
Held:
It was permissible to
appreciate evidence given by the two women before the enquiry officer in the
light of their earlier statements during the preliminary enquiry. The
Tribunal's conclusion that it was a case of 'no evidence' is not sustainable.
The Tribunal's view that if the
witnesses had contradicted themselves during the regular enquiry their previous
statements could be used only for discrediting
them but not for the purpose of appreciation of evidence cannot be
sustained.
It is settled position of law that
strict rules of evidence are not applicable to departmental enquiries. (Paras 4 & 5) State of Tamil Nadu v. M.A.
Waheed Khan. [1999]
·
Departmental Enquiry Applicability of
Evidence Powers of Disciplinary Authority Power to disagree with findings of
Enquiry Officer as to record reasons for disagreement and then record his own
evidence if evidence available on record be sufficient for such exercise or
else to remit case to Enquiry Officer for further enquiry Strict Rules of Evidence
are not applicable to Departmental Enquiry Requirement of law is allegation of
misconduct must be established by such evidence acting upon which responsible
person acting reasonably and with objectivity may arrive at findings of guilt Mere conjecture or surmises cannot sustain
finding of guilt Court exercising
powers of judicial review cannot interfere with findings and facts arrived at
departmental enquiry proceedings except in case of mala fides or perversity Court cannot embark upon reappreciate
evidence or weighing facts like Appellate Authority Presence of some evidence to support conclusion arrived at by
Disciplinary Authority is sufficient
Disciplinary Authority has to record his own findings stating out
evidence already available on record in support of finding of guilt arrived at
by him Such finding is immune from
interference by Court exercising power of judicial review.
A criminal complaint was filed by Bank
of India against one of its Officers working in Middle Management Grade alleging
certain misappropriations. During the pendency of the investigation in the
criminal complaint, the Officer was interviewed for promotion. The result of
the interview was withheld on account of the pendency of the criminal
proceedings. During 1981 2 criminal cases were filed by the C.B.I. In the year
1987, the Officer was again considered for promotion and he was informed that
he was found fit for promotion w.e.f. January 1, 1986. However, the finding of
the Promotion Committee was not being given effect to on account of the
pendency of the criminal cases. The criminal cases ended on August 17, 1988
favourable to the respondent. He filed a writ petition seeking relief for
promotion. The High Court by an Interim Order directed the Bank to promote the
Officer on an ad hoc basis w.e.f.
January 1, 1986. On the Appeal filed by the Bank the Division Bench confirmed
the Order of the learned single Judge but at the same time went on to add an
observation that the employer was at liberty to enquire into the matter
departmentally though ad hoc promotion
as ordered by the single Judge had to be given.
On December 3, 1991 a charge sheet was
issued to him alleging commission of misconduct by him. The statement of
allegations accompanying the charge sheet referred to certain incidents of the
years 1973 to 1978. A writ petition was filed by the Officer contending that
the domestic enquiry related to stale matters and therefore the charge sheet
was liable to be quashed. The writ petition was dismissed. The domestic enquiry
went ahead. The Enquiry Officer submitted his report on October 11, 1994
recording the findings that none of the charges leveled against the Officer was
proved. However, the Disciplinary Authority disagreed with the findings
recorded by the Enquiry Officer on one of the charges and called upon the
Officer to show cause why he be not punished. By Order dated March 4, 1995, the
Disciplinary Authority reversed the finding of the Enquiry Officer and held the
respondent guilty of misconduct and imposed upon him the punishment of
reduction of pay by one stage which is a major punishment. At that time, the
writ appeal filed by the employee against the Order dismissing the Writ
Petition challenging the domestic enquiry was pending. The Officer wanted to
prefer an amendment in view of the subsequent event of a major punishment
inflicted on him. The Division Bench permitted the employee to amend the writ
petition so as to seek the relief to set aside the punishment of reduction by
one stage.
The learned single Judge held that the
Disciplinary Authority has jurisdiction to record a finding disagreeing with
the findings recorded by the Enquiry Officer. However, the learned single Judge
was of the view that the finding arrived at by the Disciplinary Authority was
perverse. On that view, the writ petition was allowed and the punishment was
set aside. In the writ petition seeking relief of promotion, the teamed single
Judge held that the Officer was not entitled to any promotion earlier than
January 1, 1986 and promotion granted on ad
hoc basis pursuant to the earlier order was directed to be regularised from
that date. The Bank filed writ appeal against the Orders of the Division
Bench and the Division Bench upheld the Order of the learned Single Judge and
dismissed the writ appeals. Hence the Civil Appeal by Special Leave.
Held:
The Law is well
settled. The Disciplinary Authority on receiving the report of the Enquiry
Officer may or may not agree with the findings recorded by the latter. In case
of disagreement, the Disciplinary Authority has to record the reasons for
disagreement and then to record his own findings if the evidence available on
record be sufficient for such exercise or else to remit the case to the Enquiry
Officer for further enquiry and report. (Para
10)
Strict rules of evidence are not
applicable for departmental enquiry proceedings. The only requirement of law is
that the allegation against the delinquent officer must be established by such
evidence acting upon which a responsible person acting reasonably and with
objectivity may arrive at a finding upholding the gravamen of the charge
against the delinquent officer. Mere conjectures or surmises cannot sustain the
finding of guilt even in departmental enquiry proceedings. The Court exercising
the jurisdiction of judicial review would not interfere with the findings of
fact arrived at in the departmental enquiry proceedings excepting in a case of mala fide or perversity i. e. where there is no evidence to support
a finding or where a finding is such that no man acting reasonably and with
objectivity could have arrived at that finding. The Court cannot embark upon reappreciate the evidence or weighing
the same like an Appellate Authority. So long as there is some evidence to
support the conclusion arrived at by the departmental authority, the same has
to be sustained. (Para 11)
In the present case, the Disciplinary
Authority has taken into consideration the evidence, the findings and the
reasons recorded by the Enquiry Officer and then assigned reasons for taking a
view in departure from the one taken by the Enquiry Officer. The Disciplinary
Authority has then recorded its own findings setting out the evidence already
available on record in support of the finding arrived at by the Disciplinary
Authority. The finding so recorded by the Disciplinary Authority was immune
from interference within the limited scope of power of judicial review
available to the Court. The learned Single Judge as well as the Division Bench
erred in setting aside the finding of the Disciplinary Authority and restoring
that of the Enquiry Officer. The High Court has clearly exceeded the bounds of
power of judicial review available to it while exercising writ jurisdiction
over a departmental disciplinary enquiry proceedings and therefore, the
Judgments of the learned single Judge and the Division Bench cannot be
sustained to that extent. (Para 13) Bank of India v.
Degala Suryanarayana. [1999]
Departmental
enquiry Strict rules of evidence not applicable Decision of disciplinary
authority to be based on material having probative value Weight to be attached
to such material is matter for said authority.
A Section Accountant in the
establishment of the Accountant General charged with misconduct and instigating
rowdy’s and compulsorily retired upon those charges filed this writ petition
challenging an order of the Central Administrative Tribunal which dismissed his
application for relief against such retirement. The High Court dismissed the
writ petition in limine.
Held:
The Court observed that
the petitioner Accountant had been given full opportunity to rebut the evidence
against him in the departmental proceedings, to which the strict rules of
evidence were not applicable. The petitioner had also in fact led evidence in
rebuttal.
It was however, found to be unreliable. (Para 43)
The High Court concluded no justifiable
ground had been made for interference in the impugned decision of the Tribunal.
(Para 44) Balram Varma v. Union of India.
[1999]
Evidence
Act, 1872 Sections 61 and 65 Provisions of Evidence Act not applicable to
departmental proceedings or in industrial application.
Domestic
Enquiry Sophisticated rules of evidence not applicable in domestic enquiries
Industrial award Conductor charged with carrying passengers without tickets
Also quarrelling with checking staff Dismissed after due enquiry Award upheld
as based on cogent and reliable evidence.
Sampat
Raj Pareek v. Rajasthan State Road Transport Corporation, Jaipur. [1999]
Domestic Enquiry Non
examination of handwriting expert Finding of enquiry officer by placing
reliance on expert's opinion Does not suffer from infirmity.
The appellant Bank challenged in this
appeal an order of a Single Judge dismissing its writ petition against the
Industrial Tribunal's award holding the findings of the enquiry officer against
the dismissed respondent clerk of the Bank as perverse. The High Court allowed
the appeal.
Held:
The short question, as
the High Court called it, in this appeal was whether the Single Judge was right
in holding that the Tribunal was right in observing that it was not proper on
the part of the enquiry officer to place reliance on the report (opinion) of a
handwriting expert who was not examined as a witness. (Para 9)
The High Court, after pointing out that
the respondent (dismissed clerk of the Bank) had stated in the enquiry that he
had no questions to be put to the handwriting expert, said it had no manner of
doubt that the enquiry officer had, on the basis of the said report, come to a
correct finding that the respondent was guilty of gross misconduct. (Para 11) British Bank of the Middle East
v. Marcus S. Lobo and another. [1999]
Normally disciplinary
proceedings can be allowed to resume de novo at an appropriate stage after it
has been set aside by High Court.
Held:
The Court observed that
in normal course it would have considered the question of remanding the matter
for fresh enquiry to be started at an appropriate stage but for two reasons.
Firstly because respondent was suffering from blood cancer and the Court was
not inclined to drive him back to the enquiry at that stage of his health and
that too after practically a decade was already over. The other reason was that
in view of time lag involved, it was hazardous to guess whether witnesses and
documents would be made available or not especially when the matter pertained
to foreign branch. Above all the Court considered that it was a fit case when
it should not put a premium on the act of the appellants in their failure to
conduct a proper enquiry. (Paras 16 and
17) State
Bank of India v. R.N. Banerjee. [1999]
Caution administered not being one
of prescribed punishments is no bar to initiation of disciplinary proceedings,
as violating principle against double jeopardy.
Shantharaju
N. v. State Bank of Mysore. [1999]
In case disciplinary proceedings
against seasonal staff are not completed before end of (cane) crushing season,
they are deemed to be dropped U.P. Cane Cooperative Service Regulations, 1975
Regulation 27.
Tilak
Ram Singh v. Cane Commissioner, Lucknow. [1999]
·
Departmental
Enquiry Commencement of Gender harassment and mala fides Allegations of Made by
employee Matter needed investigation at highest level Direction for looking
into matter by Cabinet Secretary given.
The respondent, a lady working as Deputy
Secretary on deputation in R & A wing (Research and Analysis Wing) in a petition
before the Central Administrative Tribunal, made allegations of gender
harassment and mala fides, resulting
in an adverse order of repatriating her to her parent cadre. The Tribunal
directed a proper and thorough fact finding enquiry to be held, as regards the
said allegations. In the present special leave petition, the Tribunal's
directions were assailed. The Supreme Court disposed of the SLP with
directions.
Held:
The Supreme Court
directed that the matter should be looked into by the Cabinet Secretary
himself. (Para 5) Union of India v. Nandita Bakshi
(Smt). [1999]
·
Domestic Enquiry Termination of service
For procuring appointment on ground of suppression of material facts Such
misconduct justified termination No question of holding domestic enquiry arises
in such situation On facts, however, reinstatement must as a fresh recruit from
date of acquittal from criminal case ordered.
Regional
Manager, Bank of Baroda v. Presiding Officer, Central Govt. Industrial
Tribunal. [1999]
Promotion
of delinquent to higher post does not ipso facto preclude employer from
initiating proceedings for act or omission while he held lower post.
An employee of the respondent Bank filed this petition challenging initiation of disciplinary proceedings against him. The High Court dismissed the petition.
Held:
The High Court
observed that the
petitioner's submission that the proceeding was belated and legally barred on
that ground was not in its opinion acceptable. (Para 2)
Equally the fact that the petitioner had been promoted to next
higher post was not a bar to the impugned proceedings; promotion did not earn
immunity for the petitioner against disciplinary action otherwise sustainable. (Para 3) Shantharaju N. v. State Bank of
Mysore. [1999]
·
Judicial Review Finding of
Enquiring Authority Writ Court will not reverse finding of Enquiring Authority
on ground that evidence adduced before Enquiring Authority was insufficient
Conclusion of Enquiring Authority can be based on some evidence and such evidence
reasonably supports conclusion High Court can not interfere with findings of Enquiring Authority High Court
cannot review evidence and arrive at its own independent finding Enquiring
Authority is sole Judge of fact Adequacy or reliability of evidence is not
matter which can be canvassed in writ proceedings.
Saini
R.S. v. State of Punjab. [1999]
·
Departmental
Enquiry judicial Review Scope of Respondent, hospital employee removed from
service on charge of teasing wife of impatient Patient husband died after
leaving hospital Presence of patient's wife in departmental enquiry could not
be secured despite efforts Respondent removed from service after departmental
enquiry based on certain evidence including evidence of co worker and certain
other persons who were present in ward at relevant time Tribunal could not
have gone into adequacy of evidence It
could interfere only if it was case of no evidence' which is not the case here.
(Para 7)
Superintendent,
Government T.B. Sanatorium v. Srinivasan J. [1999]
·
Constitution
of India, 1950 Article 226 Jurisdiction of High Court over findings of
disciplinary authorities Service law Departmental proceedings Scope of
interference Disciplinary authority is sole judge of facts Findings recorded
based on appreciation of evidence, cannot be interfered with by writ Court
unless findings were based on no evidence or findings were wholly perverse or
legally not tenable Adequacy or inadequacy of evidence cannot be canvassed
before High Court High Court cannot normally substitute its own conclusion High Court should not substitute its opinion
in matter of imposition of punishment unless punishment is impermissible or
shocks its conscience.
Apparel
Export Promotion Council v. A.K. Chopra. [1999]
Dismissal Natural justice Opportunity of hearing denied
Appointment of inquiry officer after recording adverse findings was empty
formality to give colour of authenticity to dismissal order Impugned order of
dismissal held to suffer from serious infirmities and hence quashed.
Girija
Shanker Pant v. State of U.P. [1999]
Dismissal On charge of having received illegal
gratification Border Security Force Rules, 1969 Rules 16(5), 45 B and 46 Object
of Rule 46 Once Commandant of accused person is likely to be a witness,
independent authority not under control of Commandant has to take action
Punishment held not justified as it was a case of no evidence.
Writ petitioner, serving as Dy.
Commandant in the Training Centre, Hazaribagh, Bihar, was dismissed from service
on charges of having received illegal gratification from two candidates for the
post of constables. He challenged the dismissal in this writ petition. It was
allowed.
Held:
The High Court observed
that Rule 46 of the Border Security Force Rules, 1969 had not been followed in
this case. The Commandant who was to be a witness in the trial against the
petitioner as regards an alleged confession made by the petitioner, had no
power to deal with the case, he should have issued orders transferring the
petitioner's case to an independent battalion. (Para 16)
After elaborately considering the
witnesses' depositions the High Court held that this was a case of no evidence.
The impugned order of the General Security Force Court imposing the punishment
of dismissal on the petitioner was held therefore to be not sustainable. (Para 67) Jha B.N. v. Union of India. [1999]
·
Where
penalty of dismissal is imposed, disciplinary proceedings on a report of
concerned authority or officer should be taken They should be conducted by
Inquiry Officer duly appointed observing principles of natural justice Employee
should be given opportunity to cross examine or to produce witnesses If no
explanation in respect of charges is received or one tendered is not satisfactory, punishment by
competent authority may be imposed All above requirements found to have been
followed Punishment upheld U.P.
Cooperative Land Development Bank Act, 1964
Section 122 U.P. Co operative Societies Employees' Service
Regulations, 1975 Regulation 102 U.P. Rajya Sahakari Bhumi Vikas Bank
Employees Service Rules, 1976.
In these appeals, the employer Co
operative Bank challenged a judgment of the Allahabad High Court which held the
dismissal of respondent employees of the Bank was vitiated by non compliance
with rules of natural justice and in violation of relevant statutory rules. The
Supreme Court Allowed the appeals, set aside the impugned judgment and
dismissed the writ petitions of the respondents, in which they had challenged
their dismissal.
Held:
The Supreme Court,
after referring to the relevant statutory rules, observed that all the
requirements for the initiation and conclusion of the disciplinary proceedings
had been followed in the present case and rules of natural justice had been
observed. (Para 17) U.P. State Co operative Land
Development Bank Ltd. v. Chandra Bhan Dubey. [1999]
Domestic
enquiry If held to be vitiated for non compliance with statutory provisions or
principles of natural justice, matter should normally be remanded for enquiry
to be proceeded with.
In these petitions, an order of the
Central Administrative Tribunal directing reinstatement of the respondents who
were removed from service for having secured service in the Railways on the
basis of bogus service cards is challenged. The High Court partly allowed the
petitions.
Held:
The High Court observed
the Tribunal ought not to have issued the impugned direction, when the inquiry
was held to be vitiated for noncompliance with statutory provisions or principles
of natural justice. Normally in such circumstances, the matter should be
remanded to the authority for being proceeded with from that stage. (Para 8)
In the result without disturbing the
order for reinstatement, it was left open for the Railway Administration to
hold, if it so wished, enquiry in accordance with law. (Para 10) Union of India v. Ramkrupal Jagannath. [1999]
·
Disciplinary Action Imposition of
Punishment Jurisdiction of High Court or Administrative Tribunal to interfere
with punishment Bus conductor removed from service for proved misconduct of
carrying passengers without ticket High Court while exercising judicial review
should not normally interfere with punishment after finding charges are proved
Imposition of punishment is within jurisdiction and judgment of disciplinary
authority Appellate authority can interfere with punishment but not High Court
or Administrative Tribunal.
U.
P. State Road Transport Corporation v. A. K. Parul. [1999]
Dismissal
Labour Court can interfere with punishment imposed by employer after holding
that departmental enquiry was not vitiated.
Indian Farmers' Fertilizer Corporation Ltd.
etc. v. P.O., Labour Court, Chandigarh. [1999]
Removal
from service Disciplinary and appellate authorities being fact finding
authorities have exclusive power to consider evidence and impose punishment
appropriate to gravity of misconduct.
This challenge to a uniform finding of
guilt against the petitioner, a Coach Attendant in a First Class compartment,
first by the Disciplinary Authority, then by Appellate and Revision authorities
and finally by the Central Administrative Tribunal suffered the same fate in
this petition also.
Held:
The High Court observed
the Disciplinary and Appellate Authorities being fact finding authorities had
the exclusive power to consider the evidence with a view to maintain
discipline. They were invested with the discretion to impose an appropriate
punishment. (Para 4)
This was not a case of no evidence as
contended for by the petitioner or of perverse findings or of harsh punishment.
(Para 5) Sujan Singh v. Union of India.
[1999]
In
case disciplinary authority differs from enquiry report, it has to record its reasons for so
doing and afford opportunity to delinquent official to represent.
The present appeal filed by a Junior
Engineer of the respondent Electricity Board challenged punishment of
withholding one annual increment without cumulative effect and a severe warning
imposed on him, he having failed in that challenge before the Departmental
Appellate Authority and a single Judge of the High Court in a writ petition.
The High Court accepted the appeal.
Held:
The High Court observed
that in case the Disciplinary Authority differed from the report of the Enquiry
Officer, as it did in this case, it as incumbent upon it to record reasons for
so doing and afford an opportunity to the delinquent official to make his
representations, before the Disciplinary Authority recorded its finding. Such
opportunity not having been provided to the appellant the appeal was accepted
with liberty reserved to the Disciplinary Authority to proceed in accordance
with law afresh. (Paras 6 and 7) Tukaram S.
Vernekar v. Karnataka Electricity Board, Bangalore. [1999]
On
facts, inference that petitioner alone forged bills cannot be faulted with
Disciplinary authority and reviewing authority concerning with findings of
enquiry committee not obliged to give reasons Industrial Disputes Act, 1947
Schedule III Item 8.
Khan
Asif Abdulla v. Indian Oil Corporation Ltd. [1999]
12. RETIREMENT/DEATH OF
DELINQUENT
Retirement
Refusal of permission to retire for purpose of completing disciplinary
proceedings Kerala Service Rules Rule 3 of Part III Rule does not authorise
continuance of disciplinary proceedings after retirement except for certain
limited purpose.
Thomas
N.V v. Plantation Corporation of Kerala Ltd. [1999]
Disciplinary
action Retired employee On retirement, master servant relationship ceases No
disciplinary action, therefore can be taken after retirement Disciplinary
proceedings taken while in service can only culminate in an order for recovery
from pension and cannot end in any punishment.
Held:
When an employee
retired from service, the master and servant relationship between the employer
and the employee ceases. Thereafter the master has no authority to suspend the
employee or to take any disciplinary action. That is why the Kerala Service
Rules specifically provide in Part II of Rule 3 that any
disciplinary/departmental action taken while an employee is in service can be
continued after his date of superannuation. But the above proceedings can only
culminate in an order by which recovery can be ordered from the pension. It cannot
end in any punishment enumerated in the 1960 Rules. (Para 3) Baskaran Pillai v. Devaswom Commissioner. [1999]
13. RIGHT TO BE REPRESENTED
Disciplinary
Proceedings If employer is represented by legally trained officer in such
proceedings, request of employee to have assistance of lawyer has to be
granted.
This petition by an employee sought a
direction to the respondent employer to permit the petitioner employee to
engage an advocate to represent his case in the departmental proceedings
against him. The High Court allowed the writ petition.
Held:
The High Court observed
that in this case the Presenting officer for the prosecution was well versed in
enquiry proceedings. In such circumstances the petitioner was held entitled to
the assistance of an advocate during the enquiry. (Para 7) Kabali K. v. Asst. Security
Commr., Rail way Protection Force, Southern Railway. [1999]
Domestic Enquiry When
delinquent employee is permitted to have assistance of legal Practitioner,
there is no illegality in employer availing of legal practitioner to be
Presenting Officer.
This writ petition filed by a clerk cum
typist of respondent Bank, challenged
its order directing inter alia a
legal practitioner to be the Presenting Officer in the domestic enquiry that
was being conducted in respect of certain charges against the petitioner. The
High Court dismissed the petition.
Held:
The High Court
observed, after referring to the decisions on the point and clause 12 of the
Bipartite Settlement that when the writ petitioner employee had been permitted
to have the assistance of a legal practitioner, there was no illegality in the
respondent employer availing (of) the services of a legal petitioner to be the
Presenting Officer. (Para 24) Babu M. v. Joint
Zonal Manager cum Disciplinary Authority, Bank of India,
Chennai 86. [1999]
·
Domestic
enquiry Departmental proceedings would not be bad only for reason that
assistance of advocate to delinquent employee was not provided.
A Medical Representative of the
appellant company challenged the termination of his services by raising an
industrial dispute which was referred to the Labour Court for adjudication. The
Labour Court held he was not a 'workman' and dismissed the reference. On the
High Court remanding the matter back to the Labour Court, it held on the second
occasion that the domestic enquiry was not fair and proper as the respondent
was not allowed the assistance of an advocate. On another issue also, the
Labour Court held in favour of the respondent that the termination was bad as
it was passed by an authority which was not the appointing authority. The
appellant company did not succeed in its challenge of the Labour Court's above
referred award, before the High Court in a writ petition. Hence the present
appeal. The Supreme Court allowed the appeal, and directed the Labour Court to
decide the whole matter afresh.
Held:
The Supreme Court
observed, after referring to the appellant company's Service Rules, Rule 16 in
particular, that a delinquent employee could avail of the assistance of a co
representative of his choice in departmental proceedings. (Para 11)
But a delinquent employee had no right
to be represented by an advocate in such proceedings. (Para 12) Cipla Ltd. v. Ripu Daman Bhanot. [1999]
14.
RIGHT TO COPY OF ENQUIRY REPORT
Enquiry
report served along with show cause notice proposing punishment Held no
prejudice caused to workman.
The only point urged in the present writ
appeal was that there was denial of reasonable opportunity inasmuch as the
enquiry report was not served before issuing the show cause notice proposing
punishment.
The High Court did not accept this
argument.
Held:
The High Court observed
that the requirement of furnishing enquiry report could not be viewed as a
ritual. No prejudice was caused to the appellant on account of the enquiry
report being served along with the show cause notice. Hence the writ appeal was
dismissed. (Para 1) Ramulu G. v. Depot Manager,
APSRTC, Gadwal. [1999]
Disciplinary
Proceedings Enquiry report not furnished to delinquent employees Disciplinary
authority determining case before hearing impugned orders were not speaking
orders Held unsustainable in law.
Petitioner employees of respondent
Canara Bank challenged in these petitions orders of stoppage of their increment
for 2 years with cumulative effect, which were confirmed by the appellate
authority. The High Court allowed the writ petitions.
Held:
The High Court observed
that the disciplinary authority had not furnished the enquiry report before
accepting findings of the enquiry officer. (Para
5)
The disciplinary authority had pre
determined the case before hearing the petitioners. This was violative of
principles of natural justice. (Para 6)
There was total non application of mind while passing the
impugned orders. (Para 7)
The disciplinary authority which had
passed the impugned orders had not given the personal hearing to the
petitioners. (Para 8) Bairy v. General Manager. [1999]
·
Departmental Enquiry Preliminary enquiry
report Whether it should be supplied to delinquent before commencing enquiry
Held there is no rule requiring that preliminary enquiry report should be
supplied to delinquent No prejudice shown to have resulted to respondent by non
supply of report Administrative
Tribunal could not therefore interfere with findings of disciplinary authority.
(Para 7)
Superintendent,
Government TB. Sanatorium v. Srinivasan J. [1999]
·
Departmental
Enquiry Natural justice Report of Enquiry Officer Delinquent Officer was found
to be not guilty of charges by Enquiry Officer Enquiry Report not supplied to
delinquent while asking him to show cause as to why he should not be dismissed
from service Conduct of State in not supplying Enquiry Officer's Report and not
disclosing that Enquiry Officer has found delinquent not guilty of charges is
unfair Disciplinary Authority directed to communicate reasons for disagreement
with Enquiry Officer's findings and hear delinquent officer before passing
orders.
Held:
Enquiry Officer's
report was in favour of the delinquent employee and he was exonerated of the
charges. Copy of this Report was not communicated to the delinquent officer. A
show cause notice was given proposing to dismiss him from service for those
charges, without indicating in any manner, that the Enquiry Officer has found
the charges not proved. The Enquiry Officer's report was also not supplied to
the delinquent employee. The Enquiry Officer's Report came to light only when
it was filed along with the Counter Affidavit in the writ petition. This was
not fair thing to do. The conduct of the State is prima facie unfair. The Disciplinary Authority should communicate
reasons for disagreement with the Enquiry Officer's findings on the Delinquent
Officer, hear him and pass orders. (Paras
3 & 4) Gabhane
R.R. v. State of M.P. [1999]
Domestic enquiry Conducted as per
Standing Orders applicable to petitioner Workman Standing Orders do not provide
for furnishing copy of enquiry report Non furnishing of copy of enquiry report
does not violate principles of natural justice Principles enunciated in Ramzan Khan's case [1991] not applicable
As they are prospective in nature. (Paras
23 and 24)
Verma
V.K. v. Hindustan Machine Tools Ltd., Pinjore. [1999]
15. RULES, REGULATIONS,
AWARDS
Fertilizer Corporation of India Ltd. Employees (Conduct,
Discipline and Appeal) Rules, 1972Rules 23, 35 Power to review material for
imposing penalty.
This dismissal matter was remitted by
the High Court back to the FCI (employer) twice, once to the Disciplinary
Authority and on the second time to the reviewing authority with certain
directions. However when the second time it was remanded, the FCI carried an
appeal before the Supreme Court against the order of the High Court. The
Supreme Court allowed the appeal of FCI, but remanded the matter to the High
Court to consider the submissions of the petitioner on the contention that the
reviewing authority has not applied its mind to the contentions raised by the
petitioner relating to violation of the principles of natural justice.
Thus the parties are before the High
Court again. After perusing the records the Courts found that the reviewing
authority has not dealt with certain aspects of the evidence in the impugned
order.
Held:
Disciplinary
proceedings are quasi judicial in nature and minimum requirements
of the rules of natural justice are to be observed. It is fundamental
requirement that the domestic Tribunal should arrive at its conclusion on the
basis of some evidence. (Para 7)
In conclusion, the specific stand taken
by the petitioner has not been dealt with, more particularly in respect of the
aspects relating to principles of natural justice. Impugned order is set aside
and the matter remitted to the reviewing authority for fresh decision taking
into consideration the contentions raised by the petitioner. (Para 8) RangadharNayak v. Fertilizer
Corporation of India Ltd. [1999]
·
Orissa State Financial Corporation
Regulations, 1975 Regulations 17 and 44(3)(c) No provision in regulations for
continuance of departmental enquiry after superannuation Nor any provision for
deducting amount from P.F. consequent to misconduct determined in such enquiry
Salary during suspension period and retrial benefits, held payable, as if there
had been no disciplinary enquiry or order consequent thereto.
Bhagirathijena
v. Board of Directors, O. S. F. C. [1999]
Punjab
Civil Services (Punishment and Appeal) Rules, 1970 Rule 8(8) Non compliance
with rule No grievance about non compliance, or denial of assistance of Co
worker was ever made earlier Enquiry proceedings not vitiated as no prejudice
shown as resulting from alleged violation of principles of natural justice.
Ghanshyani
Dass v. Presiding Officer, Labour Court, Ambala. [1999]
·
Rajasthan Civil Service (Classification,
Control and Appeal) Rules, 1958 Rule 16 Rules of High Court of Rajasthan 1952
Rules 14, 15 and 32 Fact that preliminary report was not brought to notice of
Full Court could not be reason for recalling order of Chief Justice Complaint
not supported by affidavit could not be entertained as per order of Chief
Justice Full Court acting contrary to it, had no valid reason to revoke earlier
decision of Chief Justice High Court's decision to institute disciplinary
proceedings against petitioner lacked bona
fides and amounted to victimisation.
Sood
R. C. v. High Court of Judicature at Rajasthan. [1999]
·
Tamil Nadu Police Subordinate Service
(Discipline and Appeal) Rules, 1955 Rule 2 A and Schedule Rule enabling
Governor or other authority to institute disciplinary proceedings will not
derogate power of authority otherwise competent.
Additional
Superintendent of Police v. T. Natarajan. [1999]
·
Vigilance Manual of Central Vigilance
Commission Volume 1 Chapter III Para 1.7 Mandatory instructions Investigation
by CBI Voluminous documents and scores of witnesses will take longer span of
time for completion of enquiry Changes of enquiry officers while enquiry is on,
naturally prolongs period of enquiry.
In April 1986 the CBI had investigated certain allegations on the Respondents (employees of Appellant Corporation) and submitted its report to the Appellant recommending disciplinary proceedings against the Respondent employees. The Appellant Corporation, thereafter referred the matter to the Central Vigilance Commission who in turn, recommended initiation of proceedings. Consequently chargesheets were served on Respondents and an Enquiry Officer also was appointed to conduct the enquiry. While the enquiry proceedings were under way, the Respondents moved the Writ Court and got the enquiry proceedings quashed on the ground of delay in commencing the enquiry proceedings. Hence the Appellant filed appeal in the Supreme Court.
The Supreme Court found that the VIGILANCF
MANUAL of the Central Vigilance Commission,
(which is adopted by the Appellant Corporation) gives certain directions in
respect of enquiries. Volume 1 Chapter III Para 1.7 of the MANUAL MANDATES that
once a case has been entrusted to the CBI, further inquiries should be left to
them, and departmental enquiry should be held in abeyance.
Held:
In view of the
direction contained in the Vigilance Manual no fault can be found with the
Appellant Corporation in waiting for the investigation report of the CBI. (Para
5)
The charge memos served on the
Respondents show that 69 documents were relied upon and there were 44 witnesses
to be examined in the enquiry. Under these circumstances taking slightly more
than a year to serve the charge sheets does not amount to undue delay. (Para, 6)
As regards the delay in proceeding with
the enquiry after charge memos were given, it is seen from the records that
enquiry officers had to be appointed thrice. That is because these enquiry
officers were on deputation to the Appellant Corporation and when each one of
them was repatriated to his parent office, another one had to be appointed. (Para 7) Food Corporation of India v. V.P.
Bhatia. [1999]
16. SHOW CAUSE NOTICE
Dismissal
From service Neither ordinary law of land nor industrial law requires second
opportunity to show cause against proposed punishment Failure to serve enquiry
officer's report before enquiry commenced will not vitiate enquiry, as ratio in
Ramzan
Khan's case [1991] applied only
prospectively.
A dismissed senior store keeper of the
respondent company filed this writ petition challenging the Labour Court's awards
rejecting his claim for reinstatement with back wages. The High Court dismissed
the petition.
Held:
The High Court observed
that the enquiry was not vitiated on the ground of non furnishing of enquiry
officer's report, as the ratio in Ramzan
Khan's case [1991] on which the petitioner relied, would apply only
prospectively. (Para 5)
There was no law nor any provision in
the Standing Orders that a second opportunity should be given to the delinquent
employee against the proposed punishment. (Para
6)
The Labour Court was held to have
elaborately dealt with the matter and found the charges to have been
established. (Para 8) Pichumani Mani E. v. Mazgaon
Docks Ltd. [1999]
17. VALIDITY OF PROCEEDINGS
·
Departmental Enquiry Held pursuant to
order of Court into allegation against dealing clerk Enquiry Officer came to
conclusion that there was no evidence in regard to allegation On going through
report Court held that Enquiry Officer's conclusions could not be accepted in
face of material placed before him Meanwhile new Enquiry Officer appointed
Court directed new Enquiry Officer to independently go into and conduct enquiry
and submit his report to Court.
During the pendency of an appeal against
the award of a Reference Court under Land Acquisition Act, the Supreme Court
had directed the Appellants to pay the Respondents 50% of the enhanced
compensation. An allegation was made by the Respondents in these appeals that
the dealing clerk of the Defence Estate Office had approached the Respondents
and asked them to pay 2% commission promising that the decrial amount will be
deposited. The Director, Defence Estate, Western Command, Chandigarh was
appointed Enquiry Officer. In his report he came to the conclusion that there
is no evidence in regard to the allegation.
After going through the report submitted by the Enquiry
Officer the Court.
Held:
We are at a loss to
understand his conclusion in the face of the material placed before him. It is
needless to say that the report submitted by the Enquiry Officer is not even
worthy of salt to look at and was not stemmed with a sense of responsibility,
but with a zeal to shield the corrupt and the reasons are not far to seek an ex facie eloquence. (Para 4)
The Enquiry Officer has been replaced by
another Enquiry Officer. Since another Enquiry Officer has been appointed to
conduct the enquiry the Court ordered that the Enquiry Officer should
independently go into and conduct the enquiry and take appropriate action and
submit the report to the Court on the action taken in the matter. (Para 4) Union of India v. Rattan Singh.
[1999]
State
Bank of India (Supervising Staff) Service Rules, 1975 Rules 3(4) and 50(2)(vii)
Circular issued by Deputy Managing Director granting monetary benefits in
favour of Prosecuting Officer and prosecuting witness and denying
lodging/boarding charges to
defence representatives and witness
Statutory right is conferred upon Officers to have assistance of defence
representative to represent them before Enquiry Officer Conduct of enquiry by
Disciplinary Authority entails serious civil consequences affecting fundamental
rights Denial of monetary benefits to defence representative and witness while
granting benefits to Presenting officer and prosecution witness violates not
only fundamental right guaranteed under Constitution but also service
rules Circular issued by Deputy
Managing Director makes invidious discrimination between prosecuting witnesses
and Presenting Officer and defence representative and witnesses.
Officers
of S.B.I., Bangalore v. State Bank of India, Bombay. [1999]
Domestic
enquiry Validity Standing Order of appellant Mills Enquiry Officer held could
not have recorded his finding on guilt of workmen Industrial Disputes Act,
1947.
State
Bank Officer Trial judge held enquiry/disciplinary proceedings vitiated by
violation of principles of natural justice, not following or observing rules
and regulations, not giving full opportunity to respondent of either defending
himself effectively or preparing his defence appropriately and above all
respondent was not liable to be proceeded against as on date of issuance of
charge sheet, he was not in Bank's service Appeal Court held respondent was
factually and physically in service of Bank and, therefore, being in service of
Bank on crucial date was liable to be charge sheeted However, held dismissal order not legally valid and Trial Judge
was correct in setting aside dismissal on grounds of vitiation of enquiry
proceedings and violation of principles of natural justice.
This appeal under Clause 15 of the Letters Patent has been filed by appellant State Bank of India and others against
judgment of the Single Judge whereby disciplinary proceedings including charge
sheet, enquiry report and order of dismissal of the respondent from the service
of the Bank were quashed and set aside with directions to the appellants to
treat the respondent petitioner as having been retired from the service of the
Bank on February 28, 1991 and to give him all consequential retirement benefit
as are admissible under law. The Single Judge found that the
enquiry/disciplinary proceedings were not conducted in accordance with law in
the principles of natural justice, and rules and regulations on the subject
were not properly followed and observed by the Enquiry Officer and others
concerned and that the respondent did not get full opportunity of either
defending himself effectively or preparing his defence appropriately. All these
anomalies and infirmities vitiated the enquiry and prejudiced the respondent.
He also observed that on the date of issuance of charge sheet he was not in the
service of the Bank as per para 19 of the State Bank of India Officers' (Determination
of Terms and Conditions of Service) Order, 1979. The appeal Court while
ultimately dismissing the appeal observed as follows:
Held:
The Court had no
hesitation in holding and concluding that, notwithstanding para 19 of 1979
order, by virtue of the order dated March 6, 1987 and, as a matter of fact, as
a matter of reality, as a matter of substance, the respondent was actually,
factually and physically in the service of the bank as on March 26, 1991 and
therefore, in terms of clause (3) of para 19 of 1979 order he, being in the
service of the bank as on that date was liable to be issued the charge sheet. (Para 7)
The Enquiry Officer did not conduct
herself properly and failed to observe principles of natural justice. By
peremptorily closing the evidence of the respondent on November 25, 1991, while
sitting at Delhi and passing an ex
prate in the absence of the respondent, a grave miscarriage of justice
was caused to the respondent since the respondent was prevented from defending
himself appropriately in the enquiry. This by itself in the Court's view is
enough to vitiate and nullify the proceedings. (Para 11)
The Court did not consider the question
of remanding the matter for fresh enquiry to be started at an appropriate stage
for two reasons; (1) the Court was not inclined to drive the respondent back to
enquiry at the then stage of his health and that too after practically a decade
was already over and (2) at this distance of time it was doubtful whether
witnesses and documents could be made available especially when the matter
pertained to a foreign branch and above all this was a fit case where the Court
should not put a premium on the act of the appellants in their failure to
conduct a proper enquiry. (Paras 16 and
17)
The Court for the foregoing reasons held
that the order was not legally valid and that the Single Judge was correct in
setting aside the dismissal on the ground of vitiation of the enquiry
proceedings and the violation of the principles of natural justice. (Para 18) State Bank of India v. R.N.
Banerjee. [1999]
Domestic
Enquiry Finding of guilt by Enquiry Officer on basis of admission by workman
Credibility of admission, under challenge Labour Court's order that enquiry had
not been proper, upheld.
Petitioner employees challenged in this
petition an order of the Labour Court that the (domestic) enquiry against the
second respondent workman had not been properly held. The High Court rejected
the petition.
Held:
The High Court observed
that the Enquiry Officer found the workman guilty on his alleged admission and
held no further evidence was necessary. But the admission itself was in
controversy and was categorically resoled away from on the basis that the
workman never made conscious admission. (Para
10)
Hence no reason was made out for the
High Court to interfere with the impugned order. (Para 11) Shapoorji Pallonji & Co. Pvt. Ltd. v. D.H. Deshmukh. [1999]
Enquiry
Officer taking into consideration irrelevant facts for determining issue
whether employee belonged to Scheduled Caste Disciplinary authority not
considering fact that no opportunity was given to employee before cancellation
of his caste certificate Impugned orders quashed.
A Cashier cum Clerk in respondent Bank
lost his job for having secured it on the basis of a false claim that he
belonged to Scheduled Caste. Hence the present petition challenging the
termination of his services. The High Court allowed the petition and quashed
the impugned termination.
Held:
The High Court
observed, after referring to the conditions laid down by the Apex Court to
streamline the procedure for issuance of social status certificates, their
scrutiny and approval, that the caste certificates, in the present case, were
issued prior to the Apex Court's decision, laying down the said conditions, and
even if one were to go by the Rules, the Enquiry Officer erred in law in
placing reliance on certificates issued by the college and school authorities.
He had to confine himself to the certificate issued by the Revenue Authority as
mentioned in Rule 6 of the Orissa Caste Certificate (for Scheduled Caste and
Scheduled Tribes) Rules, 1980. (Para 9)
Further the Disciplinary Authority
(also) erred in law in not accepting the contention of the petitioner that
before the Caste Certificate was cancelled, no opportunity was given to him by
the competent authority. (Para 12) Prasanna Kumar
Naik v. State Bank of India. [1999]
Domestic
Enquiry No enquiry is properly conducted when defence of delinquent is refused
or ruled out If findings of enquiry officer are perverse and not based on
evidence, they can be interfered with in judicial review.
An employee (Supervisor) in the
respondent n company filed this petition challenging his dismissal from
service. The High Court allowed the petition.
Held: The High Court observed that the
procedure adopted by the enquiry officer was in violation of rules of natural justice, as the defence representative's
request to adjourn the case for certain valid reasons was unjustifiably
refused. (Para 10)
In the second place, the findings of the
enquiry officer were perverse as they were not based on evidence on record. (Para 15) Indroji Rao D. v. Management of
Charnundi Machine Tools Ltd. [1999]
·
After
conceding before enquiry officer that proceedings were proper, civil servant cannot
complain about enquiry If inspection of documents was needed it should have
been asked for at appropriate time.
Disciplinary proceedings were initiated
against the respondent employee of FCI on six articles of charges. On the last
day of the enquiry proceeding the enquiry officer enquired of the respondent
and his defence assistant whether they required any further documents to be
produced and whether they were satisfied with the fairness of the enquiry; the
defence assistant said that there was nothing to be produced and that they were
satisfied with the enquiry.
After punishment of removal from service
was awarded the respondent filed writ petition which was allowed. Hence appeal
of FCI in Supreme Court.
Held:
Proceedings of the
enquiry before the enquiry officer are self evident to show that enquiry had
been conducted keeping in view the principles of natural justice. The argument
that documents were not supplied or inspection of the same was not allowed is
an after thought. Learned Counsel for the respondent was unable to tell us as
to when the respondent has asked for supply of certain documents or when he had
requested for inspection of certain documents and what those documents were,
which request of the respondent was not accepted. Again learned Counsel for the
respondent has not been able to tell us as to how it could be said that
services of the respondent were terminated by an officer who was lower in rank.
(Para 4) Food Corporation of India v. B.J.
Jambulkar. [1999]
·
Extra
Departmental Delivery Agent was removed from service for proved misconduct
Original Disciplinary Authority who was material witness in disciplinary
proceedings was replaced by ad hoc Disciplinary Authority Original Disciplinary
Authority appointing Enquiry Officer after he was replaced as Disciplinary
Authority Order of removal cannot be set aside on ground that Enquiry Officer
was appointed by Original Disciplinary Authority and not by Ad hoc Disciplinary Authority No
prejudice was caused due to appointment of Enquiry Officer and Presenting
Officer by Original Disciplinary Authority
No allegation of bias or mala fide
made against Enquiry Officer or Presenting Officer Order by dismissal was passed by ad hoc Disciplinary Authority based on
findings of Enquiry Officer Enquiry cannot be set aside and punishment cannot
be quashed unless prejudice is caused or mala
fides are proved against Enquiry Officer.
Asst.
Supdt. of Post Offices v. G. Mohan Nair. [1999]
Departmental enquiry, Enquiry conducted not by the
disciplinary authority Entrusted to another officer No report by the enquiry
officer petitioner, nevertheless, punished Held, impermissible Dismissal set
aside.
Held:
In the instant case,
the disciplinary authority had not conducted the enquiry nor submitted any
report. Instead, it was entrusted to another officer. The enquiry officer did
not give any finding against the petitioner. Yet the petitioner has been
punished that too without giving a valid reason for difference of opinion by
the disciplinary authority with the enquiry officer. It is not permissible
under law. (Para 9)
The impugned order of dismissal and the
consequential appellate order set aside. (Para
10) Lakhan
Lal Singh v. State of Bihar. [1999]
Domestic Enquiry Violated if enquiry is discreet Also
amounts to violation of principles of natural justice Domestic enquiry based on
discreet enquiry report Invalid Validity of social status certificate issued by
Tahsildar valid until cancelled Discreet enquiry into caste factor of employee
not valid Sufficient opportunity to employee is a must.
Siddi
Raajan M. v. District Collector Periyar District, Erode. [1999]
Domestic Enquiry Industrial Disputes Act, 1947 Sections 11
A and 12(3) Dismissal order passed in violation of Section 12(3) That vitiates
domestic enquiry However award is not vitiated as enquiry was conducted before
Labour Court itself.
Venugopal
V. v. Management of Reed Relays & Electronics Ltd., Madras. [1999]
Disciplinary action under repealed Rules
in face of current Rules Proceedings bad Order of punishment without hearing
delinquent Ex prate enquiry on
vague charge Steel Authority being a State is bound to act fairly State should
be model employer Employee cannot be deprived of livelihood without complying
with procedure prescribed.
Petitioner, a junior teacher in the
Education Wing of the Durgapur Steel Plant, was chargesheeted and was also
placed under suspension. The charges were: negligence of duty, habitual
indiscipline, willful insubordination and disobedience of lawful and reasonable
orders. The Conduct Discipline and Appeal Rules, 1977 should have been applied
to the enquiry proceedings. But the management proceeded on the basis of 1962
Rules. The request of the Respondent for permission to be represented by a
retired official was rejected. On June 17, 1994 when the enquiry proceeding was
adjourned she could not attend because her husband was ill, which was intimated
to the Enquiry Officer. The Enquiry Officer submitted a report and by an order
under clause 4(ii)(a) of Discipline and Appeal Rules, 1962 the Disciplinary
Authority imposed a punishment of reduction to the lower post.
The single Judge found the charges to be vague and not specific. He also found that there were irregularities in the enquiry. Before him it was admitted that a copy of enquiry report, although relied upon by the Disciplinary Authority, has not been supplied to her. No list of witnesses was supplied to her. Advocate for the Management had accepted this position before the single Judge. Respondent's Writ Petition before the learned single Judge was allowed. Hence the appeal.
The Division Bench noticed that it was
an ex prate enquiry. On perusal
of 1977 Rules it was clear that it applied to all employees of the Appellant,
and it contained a saving clause and the 1962 Rules must be deemed to have been
impliedly repealed. The Division Bench further noticed that a copy of the
enquiry report had been served along with the order of punishment, and no
notice of the adjourned proceeding was intimated to the employee. Appellant had
not produced the record of the proceedings either before the learned Single
Bench or before the D.B. The Court had been kept in dark as regards the
procedure to be followed in the disciplinary proceedings, noticed the D.B. The
enquiry proceedings were conducted ex prate on 6 days inspire of the application by the employee for
adjournment on the ground of illness of her husband.
Held:
The submission by the
Appellant that 1977 Rules will not apply to the employee does not have any
basis. The Appellant was deliberately trying to mislead the Court. (Para 17)
The provisions contained in 1977 Rules
are in consonance with the principles of natural justice and admittedly they
have not been complied with. (Para 18)
As the ex prate disciplinary proceeding had been held, it was
obligatory on the part of the disciplinary authority to have supplied a copy of
the enquiry report in view of the fact that in the absence of such a report it
was not possible for her to file an effective representation or prefer an appeal
as she was not aware of the material on the basis whereof the Enquiry Officer
is said to have satisfied himself as regards the commission of misconduct by
the employee. (Para 25)
The service of an assistant teacher is
protected under the Statute. The Statute itself provides for the manner in
which the disciplinary proceeding against a teaching staff is to be conducted.
What are the requirements of the principles of natural justice have been
elaborated by this Court in its decision in 1997 (2). Even assuming that the
services of the Petitioner was not protected under a Statute, the Appellant
being a State, was bound to act fairly. As a State it was required to act as a
model employer. In the instant case the Petitioner is entitled to enforce her
fundamental right against any arbitrary act of the State. (Para 28)
The Petitioner having served under a
State could not have been deprived of her livelihood without complying with the
procedure laid down under law. (Para 29) Steel Authority
of India Ltd. v. Bela Ghosh. [1999]
·
Departmental enquiry Natural justice
Delinquent Officer charged of obtaining HRA on false certificates of Municipal
authorities Delinquent not furnishing list of witnesses to be examined
Sufficient opportunity given to delinquent to produce witness not availed of
Plea of non examination of Municipal Officers issuing certificates Unjustified
since certificates were produced by delinquent himself and factum of issuance
was not disputed Plea that documents were marked as exhibits only after conclusion
of enquiry not tenable No material on
record to show that enquiry officer was biased
Held enquiry was not in breach of principles of natural justice Constitution of India, 1950 Articles 311, 14. (Paras
10, 11, 12, 13 &
14)
Director
General, Indian Council of Medical Research v. Dr. Anil Kumar Ghosh. [1999]
Domestic
enquiry Validity Standing Order of appellant mills Enquiry Officer, held, could
not have recorded his finding on guilt of workmen.
Held:
Though it is not
possible to approve the broad proposition laid down by the learned single Judge
in this case that an Advocate could not have been appointed within the scope of
the Standing Order 62(c) applying the principles laid down by the Supreme Court
in [1970] and that a Division Bench of the Court in W.A. 170 of 1978, it must
be held that the enquiry officer could not have recorded his finding as the
guilt of the workmen and the said finding could not have been adopted and acted
upon by the management to proceed further in this case. The invalidity and
irregularity pointed out by the learned single Judge will continue to exist,
though in a varied form, but sufficient to the extent to vitiate the
proceedings culminating in the order of dismissal and therefore there is no
need to interfere with the remand order passed by the learned single Judge. (Para 9) Management of Thanjavur Textile
Mills Limited, Thanjavur v. Presiding Officer, First Additional Labour Court,
Madras. [1999]
18. WITNESSES EXAMINATION CROSS EXAMINATION
Departmental
Enquiry Admission of guilt Natural Justice Principles of Enquiry Officer cross
examining delinquent employee in the beginning of enquiry Admission of guilt
has to be determined by taking into account total explanation given by
delinquent employee and not by picking out of one sentence from explanation.
An employee of the State Road Transport Corpn. filed a suit for a
declaration that the order of dismissal is unjust, improper, contrary to the
rules, principles of natural justice, violative of Constitution of India and
therefore invalid, inoperative and illegal and that he should be deemed to
continue in service of the Corporation. The Trial Court as well as the 1st
Appellate Court took the view that the dismissal of the employee was justified
and that in the conduct of the enquiry proceedings there were no infirmities.
Hence the 2nd Appeal.
Held: As an excuse for not following the
procedure and in order to justify the circumstances that the Enquiry Officer
had chosen to cross examine the employee in the beginning itself, a stand is
taken by the Management to the effect that the employee had admitted his quilt.
The Trial Court as well as the 1st Appellate Court, without going into the
actual contentions raised in the statement made by the employee had chosen to uphold
the stand of the management to the effect that the employee had admitted his
guilt. A perusal of the Statement given by the delinquent which is termed as an
'admission of guilt' by the employee
would show that the delinquent had stated that whatever that had
happened, had happened because of the problems which were created by the
passengers and their quarrel with him and that he had not consciously committed
any mistake. The said observations alone are taken into account by the Tribunal
as well as the 1st Appellate Court completely ignoring the other parts of the
explanation given by the employee. It is upto the Enquiry Officer to believe it
or not to believe the stand taken by the employee but it is not correct to
assume that the employee had admitted his guilt in any manner by merely picking
out a single sentence from the entire explanation. Hence the statement of the
employee would not amount to admission of guilt. (Para 13) Selvaraj P. v. M.D., Kattabomman Transport Corporation Ltd. [1999]
Domestic
Enquiry Principles of Natural Justice and Fair play Role of Enquiry Officer
Enquiry Officer cross examining delinquent employee at beginning of enquiry and
putting searching and adverse questions Answers elicited by Enquiry Officer are
not for purpose of seeking clarifications Employee found guilty based on
answers given in cross examination and no other evidence No witness was
examined to substantiate charges in presence of delinquent employee Two
Checking Inspectors who did not give any statement were asked to be cross
examined by delinquent employee simultaneously
Domestic Enquiry is vitiated Finding of guilt based on such cross
examination of Enquiry Officer are unsustainable Enquiry is in violation of
fair play and principles of Natural Justice.
Held:
The procedure adopted
by the Enquiry Officer is rather unusual to the extent of positively causing
prejudice to the employee. No witnesses are examined in chief to substantiate
the charges in the presence of the delinquent. On the other hand, at the starting
of the enquiry itself, as a first step, the employee was cross examined and
that too, not by any representative of the Management but by the Enquiry
Officer himself. Then at the end of the cross examination of the delinquent, he
is asked whether he wants to cross examine the Checking Inspectors. Strangely,
no evidence in chief of the two Checking Inspectors is recorded but the
delinquent is asked to cross examine both of them at the same time. Naturally,
there being no material on which he could put any questions in cross
examination, the employee puts only 2 questions namely as to whether any ticket
was taken from his bag and whether they enquired him about the dead tickets at
the time of checking for which both the witnesses had answered in the affirmative.
The strange part of the enquiry is that the questions are put to the two
witnesses together at the same time and both of them had given their answers in
unison. That is the end of the enquiry on which the delinquent employee was
found guilty and sufficient to dismiss him from service. (Para 14)
There is no hard and fast rule that the
Enquiry Officer cannot at all cross examine the delinquent and it is not
disputed that an Enquiry Officer is entitled to put questions for the purpose
of clarifying any fact in issue. But the facts of the present case will show
that the cross examination had caused prejudice to the employee. In the present
case the questions put by the Enquiry Officer were not for the purpose of
clarification. The Minutes of the Enquiry itself is described as "Cross
Examination" by the Enquiry Officer himself. Excluding the last question,
namely, as to whether the delinquent wanted to examine or to cross examine any
witness, as many as 23 searching and adverse questions have been put to the
delinquent. A perusal of the Enquiry Report also shows that for finding the
delinquent guilty, reliance is placed upon only from the answers of the
delinquent himself and no other evidence. Findings of the Enquiry Officer are
based only on the answers given by the delinquent in the cross examination and
arbitrariness causing serious prejudice to the interest of the employee. The
procedure adopted by the Enquiry Officer is in total violation of fair play and
principles of natural justice. (Para 15) Selvaraj P. v.
M.D., Kattabomman Transport Corporation Ltd. [1999]
Domestic
Enquiry Dismissal of Conductor of State Road Transport Corporation for
reselling Tickets to Passengers Driver of Bus was present when cash bag was
checked by Checking Inspector Delinquent Conductor wanted Driver to be examined
as witness to domestic enquiry No steps taken to make driver available for
cross examination Enquiry vitiated for not examining driver available in
domestic enquiry.
Held: Inspire of the fact that the delinquent wanted the driver
to be examined as witness, the Management did not take any steps to make the
driver available for cross examination. During enquiry the delinquent was not
asked as to whether he wanted to examine anybody else. He was only asked to
state whether he wanted to examine or cross examine the Checking Inspectors.
Checking was done by the Checking Inspectors in the immediate presence of the
driver and it is not known as to why the driver was not produced in the
domestic enquiry. Apart from the conductor, another person had also witnessed
the act himself. Evidence of the Checking Inspectors are only in the nature of
investigating or prosecuting witness and their evidence has been accepted
without any corroboration. Admittedly, the driver was present when the
employee's cash bag was checked and there is no reason why the Management did
not choose to examine the driver. (Para
16) Selvaraj
P. v. M.D., Kattabomman Transport Corporation Ltd. [1999]