Air India Ltd. vs D.G. Patil
2004 Latest Caselaw 355 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition takes exception to the Judgment and order passed by the National Industrial Tribunal, Mumbai, dated March 3, 1999, in Approval Application No. NTB/42/1995. Briefly stated, respondent No. 1 was working as senior master technician in Equipment Facility Department. He was transferred by order dated 7th February, 1992 from Cabin Repair section (Sahar Side) to fabrication section (Santa Cruz Side) within the same airport in Mumbai. Respondent No. 1 did not comply with the said transfer order; instead, absented himself from service. Since respondent No. 1 had to his credit privilege leave, his absence from 7th February, 1992 till 25th July, 1992 was regularised by the petitioner by adjusting the said privilege leave. In other words, respondent No. 1 remained on unauthorised leave from 26th July, 1992. It is the case of the petitioner that since 26th July, 1992, respondent No. 1 did not attend work and was unauthorisedly absent. However, according to respondent No. 1, he had applied for leave on medical grounds to the concerned authority, which application has not been considered. Suffice it to observe that the petitioner decided to take disciplinary action against respondent No. 1 for unauthorised absence, for which Disciplinary Committee was constituted and charge-sheet came to be issued to respondent No. 1 dated 6th July, 1993. It is the case of the petitioner that respondent No. 1 did not participate in the enquiry proceedings, inspite of reminders sent to respondent No. 1 on different dates. Eventually, the enquiry officer concluded the enquiry ex parte against respondent No. 1 and recommended dismissal of respondent No. 1 from service. As is required by virtue of Section 33(2)(b) of the Industrial Disputes Act, the petitioner made a formal application for approval of this order of dismissal. That application has been rejected by the impugned judgment and order.

2. The Industrial Tribunal has found as of fact that the charge-sheet has not been served upon respondent No. 1 as was contended by respondent No. 1. In view of that finding, the Industrial Court rejected the application for approval and, instead, directed the petitioner to serve charge-sheet on respondent No. 1 and hold enquiry afresh by observing necessary legal formalities. This decision is subject matter of challenge in the present writ petition.

3. According to the Counsel for the petitioner, the finding recorded by the Industrial Tribunal on the factum of service of charge-sheet is perverse. He further submits that, in any case, the documents on record establish that respondent No. 1 had complete knowledge about the nature of charge against him, as was clearly stated in the letter sent by the convenor of the Enquiry Committee dated 1st December, 1993 to respondent No. 1, as well as another letter dated 16th December, 1993. It is, therefore, contended that if respondent No. 1 had knowledge about the nature of charge and, in any case, about the pendency of enquiry, it was obligatory on respondent No. 1 to appear before the enquiry officer and ask for all the documents, so as to enable him to effectively defend his case, if so advised; and having failed to do so, no fault can be found with the enquiry officer having proceeded ex parte in the matter against respondent No. 1. It is lastly contended that assuming that the finding recorded by the Industrial Tribunal about the factum of service of charge-sheet was correct, even in that situation, the Industrial Tribunal could not have directed the petitioner to serve the charge-sheet and conduct enquiry afresh, but in that case, the Industrial Tribunal itself ought to have allowed the petitioner to lead evidence so as to justify the action taken against respondent No. 1. That stand was taken by the petitioner at the threshold in the application as filed, which can be discerned from paragraph 8 of the application. In support of this proposition, reliance is placed on the decision of the Constitution Bench of the Apex Court in the case of Karnataka State Road Transport Corporation v. Lakshmidevamma (Smt) and Anr., (2001) 5 SCC 433 : AIR 2001 SC 2090 : 2001 Lab. I.C. 1777 : 2001 (3) Bom. C.R. 623.

4. On the other hand, Counsel for respondent No. 1 has adopted the reasons recorded by the Industrial Tribunal. According to him, no fault can be found with the finding and the conclusion reached by the Industrial Tribunal, inasmuch as no evidence has been adduced on behalf of the petitioner to support the factum of service of charge-sheet on respondent No. 1. Besides, respondent No. 1 has categorically denied receipt of any charge-sheet at all and that stand is not only taken in reply filed before the Industrial Tribunal, but also mentioned in the letter sent by respondent No. 1 to the petitioner on 6th November, 1993, when the inquiry was still in progress. Besides, respondent No. 1 entered the witness box and has maintained the stand that charge-sheet has not been served upon him at all. Learned Counsel has placed reliance on the decision of the Apex Court in the case of Union of India and Ors. v. Dinanath Shantaram Karekar and Ors., 1998 (II) C.L.R. 849 : 1998 (80) F.L.R. 446 : 1998 (4) L.L.N. 14. In paragraph 10 of the said decision, it is observed that disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. The decision further observes that the fact of actual service of the charge-sheet has to be proved and established and theory of communication cannot be invoked against the employee concerned. Learned Counsel further submits that reliance placed on letter dated 1st December, 1993 at the instance of the petitioner is also of no avail because no evidence has been adduced to prove and establish the fact of service even of that letter on respondent No. 1. If such is the state of evidence, contends learned Counsel, the matter cannot proceed on the assumption that respondent No. 1 had knowledge about the nature of charge or the proceedings. He further submits that even if respondent No. 1 had knowledge of the enquiry, that cannot be the basis to hold enquiry against the employee concerned, because service of charge-sheet is the quintessence for proceeding with the enquiry against the delinquent employee. Insofar as the last submission canvassed on behalf of the petitioner, relying on the decision of the Constitution Bench of the Supreme Court in K.S.R.T.C.'s case (supra), the learned Counsel for respondent No. 1 fairly submits that, that is the settled legal position and for which reason, the parties will have to be relegated before the Industrial Tribunal to provide opportunity to the concerned parties to adduce evidence regarding justification of the order of dismissal passed against respondent No. 1 by the petitioner. He, however, submits that since the Industrial Tribunal has already rejected the request for approval, even if this Court was to set aside the impugned order, respondent No. 1 would be entitled to claim benefit for the relevant period.

5. Having considered the rival submissions, the first aspect that needs to be addressed is whether the finding of fact recorded by the Industrial Tribunal regarding the factum of service of charge-sheet can be said to be perverse, as is contended on behalf of the petitioner. I have no hesitation in straightaway answering this argument against the petitioner. The Tribunal has adverted to several circumstances to support its conclusion on the factum of service of the charge-sheet on respondent No. 1. What is relevant to note is that the petitioner has not examined any witness. No evidence is forthcoming so as to establish the fact of service of the charge-sheet on respondent No. 1. Reliance is, however, placed on subsequent letters issued by the petitioner and on that basis, it is contended that it should be assumed that respondent No. 1 was fully aware about the charge-sheet and, in any case, about the pendency of enquiry against him. If this is the state of evidence, to my mind, it is not possible to overturn the finding of fact returned by the Industrial Tribunal, because no evidence has been adduced to establish the fact that charge-sheet has been duly served upon respondent No. 1.

6. To get over this difficulty, the learned Counsel for the petitioner would contend that the charge-sheet was sent by three different modes, namely, by registered post A.D., under certificate of posting and by ordinary post. He submits that insofar as the despatch by registered post A. D. is concerned, the endorsement on the acknowledgment would indicate that the service was not claimed or unclaimed. However, the concerned, acknowledgment is not produced before me. Assuming that such endorsement has been made on the acknowledgment, it was necessary for the petitioner to examine the witness to prove the contents of the endorsement on the said acknowledgment. That has not been done in the present case. On the other hand, respondent No. 1 has been consistently denying the fact of service of charge-sheet on him at any point of time. The stand is not only taken in the reply filed while opposing the approval application, but much earlier to that. Even in the present proceedings, respondent No. 1 has reiterated that stand on oath. In the circumstances, it is not possible to reverse the finding of fact returned by the Industrial Tribunal on the factum of service of the charge-sheet in exercise of writ jurisdiction. If it is so, in view of the decision of the Apex Court in the case of Union of India and Ors. (supra), relied upon by respondent No. 1, it will have to be held that the entire proceedings vitiate for non-service of the charge-sheet on respondent No. 1.

7. That takes us to the next submission canvassed on behalf of the petitioner that respondent No. 1 had knowledge about the nature of charge as was disclosed in the letter dated 1st December, 1993 sent to respondent No. 1. However, once again, there is no evidence produced by the petitioner to establish the factum of service of even this letter on respondent No. 1. Respondent No. 1, on the other hand, has denied receipt of any such letter. In any case, service of this letter on respondent No. 1 cannot be the basis to hold that the charge-sheet has been duly served upon respondent No. 1, which is the quintessence for proceeding with the enquiry. In the circumstances, even if respondent No. 1 had knowledge about the proceedings, or the nature of the charge, that cannot be the basis for validating the enquiry, which was proceeded ex parte against respondent No. 1. Once again, it will be useful to advert to the dictum of the Apex Court in paragraph 10 in the case of Union of India and Ors., (supra). Accordingly, this contention does not commend to me.

8. That takes me to the last submission canvassed on behalf of the petitioner that assuming that the finding and conclusion reached by the Industrial Tribunal on the issue of service of charge-sheet cannot be interfered with, even in that case, the Tribunal was obliged to allow the petitioner to adduce evidence in justification of the order of dismissal; and, for that purpose, ought to have held full-fledged trial. This contention is supported by the decision of the Constitution Bench of the Supreme Court in the case of K.S.R.T.C. (supra). The Apex Court in para 8 of the said decision has adverted to the decision in Workmen v. Motipur, Sugar Factory (P) Ltd., AIR 1965 SC 1803 : 1965 (3) S.C.R. 588 : 1965 (2) L.L.J. 162 : 1965 (11) F.L.R. 112, which has taken a view that if the employer is given an opportunity to justify the impugned dismissal on the merits, the employee has the advantage of having the merits of his case being considered by the Tribunal for itself and that clearly would be to the benefit of the employee. This dictum has been approved by the Constitution Bench in the recent decision as referred to above. As mentioned earlier, Counsel for respondent No. 1 has fairly accepted that this is the settled legal position and the appropriate course for the Tribunal would have been to permit the parties to adduce further evidence for that purpose. To that extent, the final order passed by the Industrial Tribunal, which is subject matter of challenge in this petition, cannot be sustained. The final order could have been passed on the subject application for approval of the proposed action against the respondent No. 1 only after such further trial was to be conducted and only upon the conclusion reached against the petitioner. On the other hand, at the end of the trial, if the stand taken by the petitioner was to be accepted by the Tribunal, the approval application will have to be granted in favour of the petitioner.

9. The last argument canvassed on behalf of respondent No. 1 is that since the Industrial Tribunal had rejected the approval application filed by the petitioner, it would necessarily follow that respondent No. 1 would be entitled for commensurate benefit for the relevant period. The question as to whether respondent No. 1 would be entitled to any benefit will have to be examined only if the Tribunal was to answer the issue of legality and propriety of dismissal order against the petitioner. For the present, the final order passed by the Tribunal, which is subject matter of challenge in this petition, deserves to be set aside and the matter is restored to the file of the Industrial Tribunal for proceeding further in accordance with law on the basis of the observations of the Apex Court in the case of K.S.R.T.C. (supra).

10. Petition allowed on the above terms. Rule absolute accordingly. No order as to costs.

11. In view of this order, no orders on the Notice of Motion. Notice of Motion is also disposed of with no order as to costs.

12. All concerned to act on the copy of this order duly authenticated by the Court Stenographer of this Court.