Transport Manager, Pune ... vs Asif Mehmood Kadri
2001 Latest Caselaw 775 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. The respondent was engaged as a badli or substitute daily rated driver by the Pune Municipal Transport Undertaking. On 1st February, 1990 the respondent was involved in an accident while plying Bus No. 561 on Route No. 74/5. It is alleged that the bus which was being driven by the respondent dashed against a scooterist causing injuries to the latter, as well as to the pillion rider. One of the two persons on the scooter succumbed to the injuries sustained during the course of the accident and expired, On 8th February, 1990, the respondent was charge-sheeted under Standing Orders 25(g), 25(y) and 25(a) and a departmental inquiry was convened. The respondent submitted his Statement of defence. The Inquiry Officer in his Report exonerated the respondent. In para 5 of the petition, it has been averred by the Undertaking that the Inquiry Officer had closed the inquiry and the cross-examination of the complainant, which was incomplete, on the ground that the Presenting Officer was not present on a particular date of hearing. He that as it may, the Inquiry Officer submitted his Report exonerating the respondent. The Report of the Inquiry Officer was placed before the Traffic Manager as the Departmental Head and Competent Disciplinary Authority and on 23rd May, 1991 the Traffic Manager recorded reasons as to why. according to him, the findings of the Inquiry Officer were not sustainable. A Notice to show-cause dated 30th May, 1991 was issued to the respondent by which the Competent Authority called upon the respondent to show cause as to why he should not be dismissed from service. It would appear, and about this there is no dispute, that a copy of the reasons on the basis of which the Disciplinary Authority purported to differ with the findings of the Inquiry Officer was not furnished to the respondent.

2. The respondent filed a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 complaining that the petitioner was acting in breach of Item 9 of Schedule IV of the Act. The Industrial Court was of the view that since the reasons on the basis of which the Disciplinary Authority had differed with the findings of the Inquiry were not furnished to the respondent, the petitioner was guilty of an unfair labour practice. In fact, as would appear from the show-cause notice, which was issued by the Traffic Manager, there is no reference to the reasons or the conclusions which were arrived at by him. Having said this, the Industrial Court was of the view that the respondent ought to have been heard by the Traffic Manager even before the show-cause Notice came to be issued to him. The Industrial Court, however, left it open to the petitioner to take action in the matter after hearing the respondent on the basis of the fresh conclusions and findings drawn by the Traffic Manager on 23rd May, 1991. The Industrial Court was of the view that the petitioner was liable to pay the subsistence allowance to the respondent during the period of suspension and the non-payment thereof constituted an unfair labour practice. In its operative order, the Industrial Court directed that the respondent be reinstated with full back wages.

3. Having heard the learned Counsel appearing for the parties, it is difficult to appreciate the direction of the Industrial Court to the effect that the respondent be reinstated with full back wages. No question of reinstatement really arose before the Industrial Court since no order of dismissal had been passed as against the respondent. All that the Notice dated 30th May, 1991 directed was that the respondent should furnish his explanation as to why he should not be removed from service. Having said this, it would be necessary to advert to the fact that the show-cause notice which was issued by the Traffic Manager admittedly did not contain the tentative reasons on the basis of which he proposed to differ with the finding arrived by the Inquiry Officer or to impose upon the respondent the penalty for dismissal or removal from service. In these matters, it is now well-settled that the Disciplinary Authority is not bound by the findings which arc arrived at by the Inquiry Officer and it is open to the Disciplinary Authority to differ with those findings. However, the reasons on the basis of which the Disciplinary Authority differs with the Inquiry Officer must be furnished to the employee so that he has an opportunity of meeting those tentative reasons. In other words, the employee must have the opportunity of dealing with both, the reasons of the Disciplinary Authority for differing with the Inquiry Officer, as also the penalty which is proposed to be imposed. The Industrial Court has in the present case held that even before a show-cause Notice was issued by the Disciplinary Authority to the respondent as a charge-sheeted employee, he ought to have been heard. This view is clearly erroneous, because law does not require that the Disciplinary Authority should furnish an opportunity of being heard to the charge-sheeted employee even before it arrives at the tentative reasons on the basis of which it proposes to differ with the reasons of the Inquiry Officer. The question of giving an opportunity of being heard to the employee arises after the Disciplinary Authority forms its tentative view and furnishes a show-cause Notice together with the reasons of differing with the Inquiry Officer. In the present case, it would appear that the reasons on the basis of which the Disciplinary Authority proposed to differ with the Inquiry Officer were placed on record of the Industrial Court and were marked Exhibit C-28. A reference to this fact is contained in Para 12 of the impugned Order. Having regard to the aforesaid situation, the learned Counsel appearing on behalf of the petitioners has fairly stated, and this concession is in consonance with law, that it would now be open to the respondent to furnish within a period of 4 weeks from today his explanation in respect of the reasons on the basis of which the Traffic Manager proposes to differ with the Report of the Inquiry Officer. The respondent would be at liberty to make his representation, both on the proposed reasons, as well as on the penalty proposed to be imposed. The Disciplinary Authority will thereupon proceed to pass a final order on the facts of the case.

4. Having regard to the aforesaid situation, the direction of the Industrial Court for reinstatement with full backwages shall stand substituted by the present Order.

5. Insofar as the question of subsistence allowance is concerned, by an interim order dated I5th February, 1995 an interim stay of the impugned order of the Industrial Court was granted only insofar as it related to the payment of subsistence allowance on condition of deposit of the same before the Industrial Court within a period of 4 weeks. Liberty was granted to the respondent workman to withdraw the same on furnishing security to the satisfaction of the Industrial Court. Having regard to the fact that the aforesaid order has been passed as far back as in February 1995, and having regard to the totality of the facts and circumstances of the matter, I do not consider it appropriate in the present case to determine the question as to whether a badli workman is entitled to the payment of subsistence allowance. At the request of the learned Advocate appearing on behalf of the petitioners it is, however, clarified that the issue is kept open to be urged in appropriate proceedings in any other matter. The learned Counsel appearing on behalf of the petitioners has fairly left it to the Court to pass a suitable order with regard to the subsistence allowance of the workman so long as the issue is not concluded in the facts of the present case and is kept open to be urged in appropriate proceedings in some other case. The stand taken by the learned Counsel for the petitioners is reasonable and the issue is kept open while permitting the respondent workman to retain the subsistence allowance which has been deposited in the Industrial Court in pursuance of the interim order dated 15th February, 1995.

6. In the aforesaid circumstances, the impugned order of the Industrial Court dated 23rd December, 1994 is quashed and set aside. The respondent shall, within a period of 4 weeks from today, file his representation to the show-cause notice issued by the Traffic Manager and submit his grounds of objection to the reasons, on the basis of which the Disciplinary Authority proposes to differ with the findings of the Inquiry officer and to the penalty proposed. It is clarified that the show-cause Notice shall be treated and regarded only as a proposed basis for differing with the findings of the Inquiry Officer and a final decision would be arrived at after the respondent has filed his representation, if it is so filed, within 4 weeks from today. The Writ Petition is accordingly allowed in the aforesaid terms. There shall be no order as to cost

7. Issuance of certified copy expedited.