Maharashtra State Road Transport ... vs Rajendra Bhagwan Gandhi
2001 Latest Caselaw 956 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. The respondent was a conductor in the services of the petitioner and was appointed as such in December, 1994. The services of the respondent came to be terminated by an order dated 9th June, 1995. Prior thereto, a charge-sheet was issued on 2nd March, 1995 alleging that while proceeding from Madangad to Pevekond as a conductor on scheduled duty, the respondent had failed to issue a ticket despite the recovery of the fare from the passenger. Consequently, the respondent was charged with fraud, dishonesty or misappropriation in connection with the business or property of the undertaking.

2. A disciplinary enquiry was held after which a show cause notice dated 2nd June, 1995 was issued to the respondent together with the enquiry report. The show cause notice called upon the respondent to submit his reply within a period of 72 hours, in accordance with the Discipline and Appeal Regulations of the Corporation. The respondent who was posted at the Depot at Dapodi furnished his reply at 12.00 noon on 9th June, 1995. The respondent was dismissed from service by an order also dated 9th June, 1995. There is no dispute about the fact that the reply submitted by the respondent had not reached the competent authority at Ratnagiri before the order of dismissal came to be passed.

3. The respondent challenged the order of dismissal before the Labour Court at Kolhapur in Complaint (U.L.P.) No. 164 of 1995 under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Holding that there was a breach of the principles of natural justice, the Labour Court came to the conclusion that an unfair labour practice had been committed by the employer. The petitioner was directed to reinstate the respondent with continuity of service and full back wages. The order of the Labour Court was affirmed in revision by the Industrial Court.

4. In the present case, there is no dispute about the fact that the report of the enquiry was furnished to the respondent together with the show cause notice calling upon him to explain why the report should not be accepted and the penalty as proposed should not be imposed. From the letter of the respondent dated 9th June, 1995, a copy whereof is at Exhibit B to the writ proceedings, it would be apparent that the respondent had received the show cause notice. In reply to the show cause notice, the respondent merely reiterated his earlier reply dated 29th May, 1995 and vaguely contended that the charges had been framed with a mala fide intention and that he had not committed any act of misappropriation or negligence. The respondent then pleaded that the punishment proposed would have very serious consequences and requested the authority to exonerate him of the charge of misconduct.

5. The learned Counsel for the petitioner submitted that even if there was a breach of the principles of natural justice as found by the Labour Court in that the reply which was furnished by the respondent was not duly considered by the authority before passing the impugned order of termination, an order of reinstatement with full backwages ought not to have been passed as a matter of course. The learned Counsel relied upon a judgment of a Constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar, 1994(I) L.L.J. page 162. The learned Counsel submitted that a perusal of the reply submitted by the respondent on 9th June, 1995 will show that no prejudice has in fact been caused to the respondent, since there was nothing new that was said in the said reply apart from reiterating the contents of the earlier reply to the charge-sheet. In the ECIL case (supra), the Supreme Court inter alia dealt with the consequence of not providing the charge-sheeted employee with a copy of the report of the Enquiry Officer and of a failure to provide the employee with an opportunity of submitting his reply or objections to the enquiry report and to the proposed penalty. The Supreme Court held in paragraph 30(v) of its order that where the disciplinary enquiry is set aside because the report is not furnished to the employee, in some cases the non furnishing of the report may cause grave prejudice while in others it may make no difference to the ultimate punishment that is awarded. Consequently, the Supreme Court observed that "to direct reinstatement of the employee with backwages in all cases is to reduce the Rules of justice to a mechanical ritual." In each individual case, the facts and circumstances have to be considered to determine as to whether any prejudice is caused to the employee as a result of the denial of the report:

"Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."

The following observations in paragraph 31 of the judgment also lay down as to what consequence is to follow in the event that a copy of the report is found not to have been furnished to the employee:

"31. Hence in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Courts/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to shortcuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law."

6. In the present case, there is no dispute about the fact that the report was furnished to the respondent. The breach of the principles of natural justice occurred at a subsequent stage, in that the reply which was submitted by the employee to the notice to show cause was not considered by the employer before the services were terminated. There is some merit in the submission which was urged on behalf of the petitioner that the reply dated 9th June, 1995 (Exhibit B) would not indicate that the respondent had sought to advance any specific contention in regard to the findings which were arrived at by the Enquiry Officer. The respondent did not choose to controvert any specific finding, but rested content with a statement that he reiterated what he had set out in his earlier letter dated 29th May, 1995. He then stated that the charges had been framed with a mala fide intention and denied that he had committed any misappropriation.

7. In the facts and circumstances of this case, it will be appropriate and proper to direct that the reply which had been filed by the petitioner to the report and to the show cause notice should be placed before the competent disciplinary authority of the petitioner and the disciplinary enquiry should thereafter proceed from that stage so as to enable the authority to pass a fresh order after considering the reply that has been submitted by the respondent. In the present case, it would be difficult for this Court to arrive at a finding as to whether the reply which had been submitted by the respondent could have made any difference to the final outcome of the case, though as already noted above the reply was rather brief. Unfortunately, on the record as it stands neither the Labour Court nor the Industrial Court have really dealt with the merits of the charge against the respondent and there is no discussion in either of the judgments below of the nature of the evidence or the nature of the proof in support of the charge of misconduct. That being the position, it would be appropriate and proper to direct that a fresh decision should be arrived at by the disciplinary authority after considering the reply submitted by the respondent.

8. In so far as the question of backwages is concerned, the Supreme Court has held in its judgment in the ECIL case that the question as to whether the employee should be entitled to backwages and to the other benefits from the date of reinstatement, if ultimately ordered, should invariably be left to be decided by the authority concerned depending upon the final outcome of the proceedings. If the employee is reinstated the authority would have to decide how the period from the date of dismissal till reinstatement should be treated and to what benefits the employee will be entitled. In these circumstances, this petition can be disposed of and is accordingly disposed of with the following directions:

(i) The impugned judgment and order of the Industrial Court dated 12th February, 2001 and the order of the Labour Court dated 18th August, 1999 are quashed and set aside.

(ii) The reply dated 9th June, 1995 submitted by the respondent shall be placed before the competent disciplinary authority of the petitioner which shall after taking into account the reply, the report of the enquiry and all relevant material on the record of the disciplinary proceedings as well as the past record of the respondent arrive at a final decision in the disciplinary proceedings. The final decision shall be arrived at within a period of 12 weeks from today.

(iii) In order to facilitate the passing of a fresh order, as aforesaid, after considering the reply and other relevant material, the order of termination dated 9th June, 1995 is quashed and set aside.

(iv) In so far as the question of back wages is concerned, the disciplinary authority shall after concluding the disciplinary proceedings take a final decision on whether the respondent would be entitled to payment of back wages from the date of the order of dismissal on 9th June, 1995 until the final order is passed by the disciplinary authority. The disciplinary authority shall also arrive at a suitable decision on the manner in which the interim period between the date of dismissal and the date of passing of the final order shall be treated.

(v) In the event of an adverse order being passed against the respondent, the rights and contentions of the respondent are kept open to be adjudicated in an appropriate forum.

The writ petition is accordingly disposed of. No costs.

Parties to act on a copy of this order duly authenticated by the Sheristedar of this Court.