Thursday, 19 March 2020

Whether delinquent can be held guilty in departmental inquiry if management fails to adduce evidence?

In the instant case, the Management has not led any evidence and has not proved the reports tendered, as well as, the written script of a purported oral telephonic recorded discussion. The voices in the recorded conversion are not proved and what is placed before the enquiry officer is a written script of the purported discussion.

14. The learned Advocate for the Management submits that the documents which were before the Court of criminal jurisdiction in the form of F.I.R. and the charge-sheet submitted by the police authorities before the concerned Court, were also brought on record in the enquiry as Evidence. I am of the view that if the Management was relying upon the Management's evidence and investigation papers pertaining to the F.I.R. and the criminal case, and no other evidence was being led, then this case would be covered by the law laid down by the Honourable Apex Court in the case of G. M. Tank Vs. State of Gujarat MANU/SC/8156/2006 : (2006) 5 SCC 446. Nevertheless, the two charges pertaining to "Company Droh" and 'seeking bribe from a consumer', have been held to be not proved as per the Enquiry Officer's report.

15. Considering the law pertaining to departmental and domestic enquiries under Article 311 and the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act 1946 and keeping in view the law laid down by the Honourable Apex Court while interpreting the 15th Amendment with the 42nd amendment to the constitution in Union of India and others Vs. Mohd. Ramzan Khan, MANU/SC/0124/1991 : AIR 1991 SC 471 and Managing Director, Electronic Corporation of India Vs. B. Karunakar, MANU/SC/0474/1992 : 1992 (1) SCC 709, I find that the enquiry conducted by the Petitioner is defective. This conclusion is arrived at on account of the defective Regulation 88 from Clause (d) to (g) by which the delinquent is directed to first lead oral and documentary evidence and the Management is left with the choice of not leading any evidence. The enquiry is, therefore, rendered vitiated.

16. I have discussed in the foregoing paragraphs as regards the conclusions, drawn by the Enquiry Officer while holding that charge (1) and charge (4) having been proved. Placing reliance upon newspaper cuttings/news items and on a complaint filed against him by a consumer, which was not proved, cannot be the basis for concluding that an employee deserves to be dismissed from service. In my view, the gravity of such misconduct alleged, would not attract the punishment of dismissal from service.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 11616 of 2018

Decided On: 20.02.2020

Chief Engineer, Latur Zone & Competent Offer, Maharashtra State Electricity Distribution Company Limited
Vs.  Nathuram

Hon'ble Judges/Coram:
R.V. Ghuge, J.




1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. The Petitioner/Management is aggrieved by the judgment and order dated 13/06/2018 delivered by the Industrial Court, Latur, by which, Revision (ULP) No. 14/2017, filed by the employee, has been allowed and the interim order of the Labour Court dated 31/08/2017, refusing interim relief to the Respondent, has been interfered with.

3. I have considered the extensive submissions of the learned Advocates for the respective sides and with their assistance, I have gone through Regulation 88 of the MSEDCL employees service Regulations, 2005.

4. The Petitioner Management noticed that one, Ramkishan Nivrutti Kendre had lodged a complaint before the Anti Corruption Bureau under Section 7 of the Prevention of Corruption Act and a crime bearing No. 3071/2015 was registered against the Respondent. Thereafter, the Petitioner issued a charge-sheet alleging that the Respondent has committed a misconduct. An Enquiry Officer was appointed. The Management did not lead any evidence. The enquiry officer concluded that the Respondent is guilty of Charge Nos. 1 and 4 and Charge Nos. 2 and 3 were not proved. The Petitioner served a show cause notice dated 25/10/2016 proposing the punishment of dismissal from service. The Respondent approached the Labour Court by filing complaint (ULP) No. 93/2016 under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. He has been protected since 29/11/2016 and he is in employment.

5. Before I deal with the factors involved in this case, it would be appropriate to reproduce Regulations 88(b) to 88(g) as under:-

(b) CHARGE SHEET: An employee against whom action is proposed to be taken for any act of misconduct shall be provided with a copy of the charge or charges (Annexure 2) as well as a statement of allegations that have been made against him and over which enquiry is being held.

(C) SUBMISSION OF WRITTEN STATEMENT: The employee charged for an act of misconduct shall be required within 7 days of the receipt of the charge-sheet by him, to put in a written statement of his defense, if any, and to state whether he desires to be heard in person.

(d) ORAL STATEMENT: The employee charged shall be given an opportunity to make an oral statement if he so desires in addition to any written statement submitted by him.

(e) INSPECTION OF DOCUMENTS: Copies of the relevant documents, if any, should be supplied to the employee charged, free of cost alongwith the charge-sheet and the statement of allegations as far as practicable. Copies of recorded statement, if any, should also be supplied. If it is not practicable to supply copies, the employee charged may be allowed to take copies or have copies made at his cost and all reasonable facilities shall be given to him enable this to be done. Copies of documents and statements which are not to be used against the employee charged need not be supplied or allowed to be taken. In dealing with request for copies of relevant documents a liberal view as possible should be taken since the employee charged can put forth the plea that he was handicapped in preparing his defense for want of documents.

Note: As far as possible the notice served on an employee should be self contained and should be accompanied by copies of documents which are not confidential and which are considered essential for the person concerned to prepare his explanation. If the employee concerned desires to inspect any proceedings in addition, the Enquiry Officer should decide whether it is really necessary for the employee concerned to inspect them and if so in case copies thereof cannot be supplied to him, the Enquiry Officer should send the relevant papers to the Officer under whom the latter serves to make them available to the employee concerned for inspection under his supervision. In case, the Enquiry Officer finds it inconvenient to send the papers to the other office, he may instruct the employee concerned to come to his office to inspect them. In the latter case, the employee shall be eligible to one fare to and fro of the class to which he is eligible and also one day's Daily Allowance. Before asking the employee to come to his office, in addition to considering whether it is necessary for the employee concerned to inspect the documents, he should also consider whether the employee cannot prepare the explanation without inspecting the paper i.e. whether it is essential for him to inspect the papers and his defense will suffer for want of those papers. In case he is satisfied that it is not essential for the employee to inspect the papers, the employee should be informed that he will have to travel at his own costs.

(f) PRODUCTION OF DOCUMENTS AND OTHER EVIDENCE BY THE EMPLOYEE: An employee will be required to produce his documents if any, alongwith his written statement; but such evidence may not be rejected merely because it is produced late. The Enquiry Officer may admit relevant evidence, documentary or otherwise provided by either side at any stage before the final order is passed.

(g) RECORDING OF ORAL EVIDENCE: (i) Oral evidence may be recorded by the Enquiry Officer if he permits any witness to be produced by either side.

(ii) The evidence of such witness will be recorded in English or in the regional language. After the evidence of the witness is completed, it shall be read out to him and if necessary explained to him in the language in which it was given. It shall be corrected if necessary, and then signed both by the Enquiry Officer and the witness. If the witness denies the correctness of any part of the evidence when it is read out to him, the Enquiry Officer may correct the statement and if the Enquiry Officer does not agree, he may make a Memorandum thereof of the objection taken to it by the witness and may add such remarks as he deems necessary The employee may be allowed to take copies of the statement."

(Emphasis supplied)

6. The learned Advocate for the Management has strenuously defended the above reproduced provisions contending that though the provisions do not indicate the stage at which an Enquiry Officer can be appointed, it is a presumption that he can be appointed at any stage when the Management decides to conduct an enquiry.

7. Insofar as, recording of oral evidence is concerned, he relies upon the Regulations and contends that it is the prerogative of the enquiry officer to permit any party to lead oral evidence. The Regulations prescribe that the worker should first lead evidence and if he so desires, he must seek the permission of the Enquiry Officer. He thereafter adds on the basis of the Regulations that there is no obligation on the employer to lead oral evidence and production of the documents or inspection of the documents would be sufficient compliance of the principles of natural justice.

8. There is no dispute that the Respondent was served with a charge-sheet setting out the allegations. Thereafter, he was directed to submit a written explanation and was granted an opportunity to make an oral statement in addition to the written statement. The Regulations do not indicate as to which authority would give a personal audience/hearing to the delinquent. He was given inspection of the documents in order to prepare his reply. As per Regulation 88(f), he was permitted by the enquiry officer to lead oral evidence through a witness and thereafter, he also submitted his testimony. The Petitioner Management has not led evidence through any witness, barring the Management representative producing certain documents and a script of a purported telephonic conversation which was tape recorded. It is an admitted position that as Regulation 88 does not cast an obligation on the Management to lead evidence first, no evidence was led by the Petitioner Management and the Respondent was directed to lead evidence, before the Management could record its evidence.

9. The charge-sheet served upon the Respondent employee indicates four charges. The Enquiry Officer has held the Respondent guilty of two charges. Firstly, of being unfaithful to the company and secondly, of being a cause for tarnishing the image of the Petitioner company. The allegations were that the Respondent had asked for a bribe for regularizing the electricity supply of a consumer and had demanded Rs. 500/- (Rs. Five Hundred only) as illegal gratification. The criminal case as regards claim and acceptance of illegal gratification is subjudice. Two charges i.e. being anti-management and demanding a bribe for regularizing disrupted electricity supply, were held to be not proved in the enquiry. The charge of not re-connecting the electricity supply within time, was held to be a dishonest act. As some newspapers carried the news item of a police complaint lodged by the consumer with reference to the demand of a bribe, that the Management formed an opinion that the employee is guilty of being a cause of maligning the image of the Management. The charge of demanding a bribe which was a news item, has not been proved in the enquiry, inasmuch as, the said charge is yet to be proved in the Court of criminal jurisdiction. As such, merely because a news item is published in the newspaper, in my view, would not be sufficient to conclude that the employee deserves the punishment of dismissal from service, which is "Civil Death".

10. I have perused the Enquiry Officer's report, which runs into four pages. 2 and 1/2 pages are devoted to the description of the charges levelled and the manner in which the Enquiry Officer conducted the enquiry. 1 and 1/4 pages are the conclusions in which, the Enquiry Officer has held two charges to be proved without even discussing the evidence. Conclusions are drawn without analysing the evidence.

11. The issue raised by the Respondent employee in this Court is as regards the manner of conducting the enquiry and whether the charges could be proved when the Management has not led any evidence. I find from the record that the Management has produced certain reports and a purported script allegedly being the typed version of the oral tape-recorded discussion between the delinquent and a consumer. Contention of the Petitioner is that if these documents are not denied, the Management does not have any reason to lead evidence.

12. I am unable to accept the said contention for the reason that a departmental enquiry has to be normally conducted in the following manner:-

(a) A charge sheet cum show cause notice has to be served upon the employee, as per the 42nd amendment (Article 311) to the Constitution (refer M.D., ECIL Vs. B. Karunakar, MANU/SC/0474/1992 : 1992 (1) SCC 709.)

(b) After the employee submits his written explanation, the Management has to take a decision as to whether it would initiate a departmental enquiry or not.

(c) After the Enquiry Officer is appointed, the onus and burden is upon the Management to lead evidence and support the charges levelled upon a delinquent.

[ If the Management does not lead evidence and does not prove the contents of any document, the delinquent has to disprove nothing).

(d) The delinquent has the opportunity of cross-examining the Management witnesses, only if they are examined.

(e) The delinquent shall thereafter be permitted to lead oral and documentary evidence.

(f) The delinquent and his witness can be cross-examined by the Management representative, in sequence.

(g) If the rules permit, both the parties can be granted the liberty to tender oral or written submissions.

(h) Thereafter, the Enquiry officer would submit his report.

13. In the instant case, the Management has not led any evidence and has not proved the reports tendered, as well as, the written script of a purported oral telephonic recorded discussion. The voices in the recorded conversion are not proved and what is placed before the enquiry officer is a written script of the purported discussion.

14. The learned Advocate for the Management submits that the documents which were before the Court of criminal jurisdiction in the form of F.I.R. and the charge-sheet submitted by the police authorities before the concerned Court, were also brought on record in the enquiry as Evidence. I am of the view that if the Management was relying upon the Management's evidence and investigation papers pertaining to the F.I.R. and the criminal case, and no other evidence was being led, then this case would be covered by the law laid down by the Honourable Apex Court in the case of G. M. Tank Vs. State of Gujarat MANU/SC/8156/2006 : (2006) 5 SCC 446. Nevertheless, the two charges pertaining to "Company Droh" and 'seeking bribe from a consumer', have been held to be not proved as per the Enquiry Officer's report.

15. Considering the law pertaining to departmental and domestic enquiries under Article 311 and the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act 1946 and keeping in view the law laid down by the Honourable Apex Court while interpreting the 15th Amendment with the 42nd amendment to the constitution in Union of India and others Vs. Mohd. Ramzan Khan, MANU/SC/0124/1991 : AIR 1991 SC 471 and Managing Director, Electronic Corporation of India Vs. B. Karunakar, MANU/SC/0474/1992 : 1992 (1) SCC 709, I find that the enquiry conducted by the Petitioner is defective. This conclusion is arrived at on account of the defective Regulation 88 from Clause (d) to (g) by which the delinquent is directed to first lead oral and documentary evidence and the Management is left with the choice of not leading any evidence. The enquiry is, therefore, rendered vitiated.

16. I have discussed in the foregoing paragraphs as regards the conclusions, drawn by the Enquiry Officer while holding that charge (1) and charge (4) having been proved. Placing reliance upon newspaper cuttings/news items and on a complaint filed against him by a consumer, which was not proved, cannot be the basis for concluding that an employee deserves to be dismissed from service. In my view, the gravity of such misconduct alleged, would not attract the punishment of dismissal from service.

17. The learned Advocate for the Petitioner Management has placed reliance upon a judgment delivered by this Court in the matter of Dhanraj Bhaurao Gaikwad Vs. The Divisional Controller and Anr., MSRTC, dated 08/11/2019 in Writ Petition No. 13454/2019 (Aurangabad), to support the contention that the Labour Court should have framed the following two issues before dealing with the matter:-

(a) Whether the complainant proves that the enquiry conducted against him is vitiated for non compliance of the principles of the natural justice or procedure?

(b) Whether the findings of the Enquiry Officer are rendered perverse?

He submits that the Labour Court needs to be directed to frame the above stated issues.

18. The learned Advocate for the Respondent employee submits that these submissions were never canvassed before the Labour Court or the Industrial Court. Nevertheless, he would not oppose the said request as such a request is in the light of settled law over 50 years in view of the judgments delivered by the Honourable Apex Court in the matters of Workmen of the Motipur Sugar Factory Private Ltd., Vs. The Motipur Sugar Factory Private Ltd., [MANU/SC/0238/1965 : AIR 1965 SCC 18031, Delhi Cloth and General Mills Company Limited Vs. Ludh Budh Singh-[MANU/SC/0423/1972 : 1972 (1) SCC 595 : AIR 1972 SC 1031], The Workmen of M/s. Fire Stone Tyre and Rubber of India Private Ltd., Vs. The Management and others [MANU/SC/0305/1973 : AIR 1973 SC 1227 : 1973(1) SCC 813], Bharat Forge Company Ltd., Vs. A.B. Zodge and another [MANU/SC/0399/1996 : AIR 1996 SC 1556].

19. The learned Advocate for the Petitioners/Management submits that the Respondent would be retiring on 30th June 2020 and if he is continued in employment, he would be eligible for all retiral benefits. Subsequently, if he is convicted by the Court of criminal jurisdiction in the pending criminal case, it would be difficult for the Management to recover the retiral benefits. In my view, this amounts to speculation.

20. I have dealt with the contentions of the parties in the light of their pleadings before the Industrial Court and I have concluded that the enquiry is vitiated and the findings of the Enquiry Officer are perverse. No purpose would now be served by directing the Labour Court to frame the two issues which have already been dealt with by the Industrial Court, as well as, by this Court. If the law laid down in Karnataka State Road Transport Corporation Vs. Laxmidevamma & another [2001 (II) CLR 640 permits, the Management may have the liberty to conduct a denovo enquiry before the Labour Court. The Labour Court would now have to decide whether the employer could be legally permitted to conduct a denovo enquiry and the fate of the ULP complaint would then depend upon the conclusion of the Labour Court. The employee who is in employment, owing to Court orders, cannot be dismissed today in the facts of this case, only because he is retiring on 30/06/2020.

21. This petition, being devoid of merit is, therefore, dismissed.

22. The parties are at liberty to request the learned Court in Special Criminal Case (ACB) No. 4/2015 for an expeditious disposal and it would be desirable that the learned Court at Ahmedpur would decide the case as expeditiously as possible and preferably, on or before 15/06/2020. All the litigating parties shall co-operate with the expeditious trial of the said case. Insofar as complaint (ULP) No. 93/2016 is concerned, the learned Labour Court, Latur shall endeavour to decide the said complaint as expeditiously as possible and preferably, on or before 31/12/2020.

23. Before I part with this matter, I deem it appropriate to bring it to the notice of the Petitioner, through their learned Advocate, to advise the Petitioner to have a re-look at Regulation 88(b) to (g) and ensure that it is in tune with the crystallized position of law as is discussed in this judgment. Since the entire procedure prescribed is defective and appears to be against the crystallized procedure of conducting departmental enquiries, it would be in the interest of justice, that the petitioner organization would amend and re-draft the said regulations.


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