Bombay High Court
Dhananjay Veduji Jadhav Died ... vs Ahmednagar District Central ... on 4 August, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2764 OF 2016
Dhananjay Veduji Jadhav.
Deceased through legal heirs:-
1 Smt.Indumati W/o Dhananjay Jadhav,
Age : 52 years, Occupation : Household
and Service.
2 Neelam Dhananjay Jadhav,
Age : 23 years, Occupation : Education.
3 Nikhil Dhananjay Jadhav,ig
Age : 19 years, Occupation : Education.
All R/o Sayyam Apartment,
Burudgaon Road, Ahmednagar.
...PETITIONERS
-versus-
Ahmednagar District Central Cooperative
Bank Limited, Station Road, Ahmednagar.
Through its Managing Director.
...RESPONDENT
...
Advocate for Petitioners : Shri Sonwane Mahesh R.
Advocate for Respondent : Shri Dhorde Vikram R.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 04th August, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
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consent of the parties.
2 The Petitioner is aggrieved by the judgment dated 28.07.2015
delivered by the Industrial Court by which Revision (ULP) No.11/2015
filed by the Respondent-Management has been allowed and the part-1
judgment of the Labour Court dated 21.02.2014 on the preliminary points
of fairness of the enquiry and the findings of the Enquiry Officer, has been
set aside.
3 Shri Sonwane, learned Advocate for the Petitioner, has
strenuously canvassed the following issues while criticizing the impugned
judgment of the Industrial Court:-
(a) The Roznama of the enquiry has not been properly noted.
(b) The examination-in-chief of the Management witness
Mr.S.D.Pandit is filed before the Enquiry Officer as a
statement of the witness in writing in lieu of his examination.
(c) The said document which was placed before the Labour Court
Exhibit-18 reveals that it was not verified before the Enquiry
Officer.
(d) Any examination of the witness before the Enquiry Officer has
to be verified in the form of evidence.
(e) Though an opportunity to cross-examine the said witness
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Mr.S.D.Pandit has been given, the Roznama dated 04.11.2009
though discloses that the delinquent-employee declined to
cross-examine this witness, the manner in which the Roznama
is written cannot be accepted.
(f) The charges levelled upon the deceased employee are vague
and ambiguous and because the first charge sheet dated
21.07.2008 was vague, the Management issued the additional
charge sheet dated 25.06.2009 and conducted the enquiry
thereafter from 16.07.2009.
(g) The Enquiry Officer was earlier Advocate of the Management
for sometime.
(h) None of the charges are proved against the deceased
employee.
(i) The findings of the Labour Court that the enquiry is vitiated,
have wrongly been interfered into by the Industrial Court.
(j) The same Industrial Court which allowed the revision petition
of the Respondent/ Employer, has dismissed the Revisions
(ULP) Nos.62/2013 and 03/2014 of two other employees,
namely, Fakkad Maruti Jadhav and Bharat Baburao Shinde.
(k) The widow of the deceased employee is willing to face a de-
novo enquiry.
(l) The Management has reserved it's right to conduct a de-novo
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enquiry before the Labour Court, therefore, there is no harm
if such an enquiry is allowed.
(m) Though the deceased employee is no more, the Petitioner-
widow is willing to face the enquiry and disprove the charges
levelled upon the deceased employee.
4 Shri Dhorde, learned Advocate for the Respondent-Employer,
submits as under:-
(a) If there are missing dates in the Roznama, the enquiry cannot
be set aside merely because the Enquiry Officer has not
properly written the Roznama.
(b) There is no law which mandates that the written examination
by way of evidence of the witness should be verified or there
should be any affidavit supporting it.
(c) The Roznama of the enquiry placed before the Labour Court
was considered by the Court and it concluded that the
Roznama dated 04.11.2009 discloses that the delinquent-
employee declined to cross-examine the witness.
(d) Merely because an Advocate who earlier represented the
Management for sometime, is an Enquiry Officer, would not
mean that the enquiry is vitiated outright.
(e) Whether, the charges are sufficient to support the punishment
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of dismissal, is an issue to be dealt with at the stage of
deciding the proportionality of punishment.
5 I have considered the submissions of the learned Advocates.
6 The deceased employee, whose widow is before this Court as
the Petitioner, was working with the Respondent Bank. The charge sheet
was served upon him on 21.07.2008. The deceased employee replied to
the charge sheet on 05.02.2009 claiming that the charges are vague and
do not contain details. The Management, therefore, issued an additional
charge sheet dated 25.06.2009 and both the charge-sheets were subject
matter of the enquiry. Upon finding the deceased employee guilty of the
misconduct levelled against him, the Management followed the procedure
and dismissed the deceased employee from service w.e.f. 03.12.2009.
7 The deceased employee preferred Complaint (ULP)
No.12/2010. By the part-1 judgment dated 21.02.2014, the Labour Court
concluded that the enquiry was vitiated and the findings of the Enquiry
Officer are perverse. Revision (ULP) No.11/2015 filed by the Respondent
under Section 44 of the MRTU & PULP Act, 1971, was allowed by the
Industrial Court and the part-1 judgment of the Labour Court was set
aside thereby, concluding that the enquiry is fair and proper and the
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findings of the Enquiry Officer are not perverse.
8 Shri Sonwane, learned Advocate for the Petitioner, has raised
the following issues for consideration of this Court:-
(a) An erstwhile Advocate of the Respondent Bank was appointed
as an Enquiry Officer and therefore, the enquiry deserves to
be vitiated.
(b) The Roznama of the enquiry was not meticulously written by
the Enquiry Officer and hence, the enquiry is vitiated.
(c) The evidence of the witness of the Bank Shri S.D.Pandit was
not recorded verbatim before the Enquiry Officer. He
prepared his deposition in writing and that was accepted by
the Enquiry Officer without the said statement being
supported by a verification.
(d) The Industrial Court has no jurisdiction to entertain any
revision petition against the part-1 judgment of the Labour
Court in relation to the fairness of the enquiry and the
findings of the Enquiry Officer.
9 Insofar as the argument of the Petitioner that an Advocate of
the Management, being the Enquiry Officer is concerned, though the part-
1 judgment of the Labour Court is in favour of the Petitioner and has set
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aside the enquiry, the issue of Enquiry Officer being Advocate of the
Management (for sometime) was never canvassed. No where does it
appear in the entire part-1 judgment of the Labour Court that the
delinquent-employee raised the issue about the Advocate being the
Enquiry Officer.
10 Nevertheless, it is trite law that merely because an Advocate
who earlier represented the Management for sometime is an Enquiry
Officer, would not ipso-facto render the enquiry vitiated. These
contentions have to be tested on the touchstone of prejudice. This issue is
totally absent in the case of the Petitioner. No prejudice has been voiced,
much less proved. (See Shri Farid Khan vs. Wipro Co.Ltd., 2012 LLR 732 =
2012 FLR (134) 174 and Beico Lawrie vs. State of West Bengal, 2010 (125)
FLR 108 (SC)).
11 Insofar as the contention of the Petitioner that evidence in
written form must carry a verification is concerned, this issue is no longer
res-integra. This Court in the matter of M/s Siddheshwar Urban
Cooperative Bank Limited vs. Ganesh Tejrao Bangale, 2016 (2) Mh.L.J.
880, has settled the issue that evidence of any witness in the enquiry is to
be recorded either by way of a narration or in a concise form of what has
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been stated. It is also held that evidence of any witness can be presented
in writing before the Enquiry Officer and that would, in fact, be beneficial
to both the sides because it would eliminate the possibility of missing any
point and insofar as the cross-examination is concerned, the delinquent-
employee would have a statement of the witness in his custody for
preparation of his cross-examination and conduct the cross-examination
accordingly.
The Standing Orders under the Industrial Employment
Standing Orders Act, 1946 or the Model Standing Orders framed under
the Bombay Industrial Relations Act, 1946, do not require the written
evidence either to be verified or supported by an affidavit. The
presentation of the said document before the Enquiry Officer is sufficient.
There is no dispute that such a statement was filed and the delinquent-
employee was given an opportunity to cross-examine. The statement of
Mr.Pandit was presented on 22.09.2009 and the Enquiry Officer concluded
that the delinquent-employee has declined to cross-examine this witness
on 04.11.2009, which is practically after six weeks of the presentation of
evidence. In the light of the above, the record reveals that the delinquent-
employee has declined to cross-examine the said witness.
13 Insofar as the contention of the Petitioner that the
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punishment awarded to the deceased employee is not commensurate to
the charges levelled upon him is concerned, the said issue will have to be
considered at the stage of deciding the proportionality of punishment. It is
trite law that initially the enquiry has to be tested and if the enquiry is
upheld and the findings are sustained, the issue of proportionality of
punishment and loss of employment leading to continued unemployment,
has to be considered at the last stage of the proceedings. This issue is,
therefore, not required to be considered at this stage.
14 The next contention of the Petitioner is that the first charge
sheet is vague and the Management realized its mistake and therefore,
submitted the additional charge sheet only to ensure that details of the
charges are mentioned. I do not find any fault on this count because the
enquiry had commenced on 16.07.2009 and the charge sheet was issued
on 21.07.2008. After noticing that the charges were somewhat vague, the
Management filed the additional charge sheet on 25.06.2009 and both
charge sheets were subject matter of the same enquiry. In this backdrop,
the enquiry cannot be faulted.
15 The Industrial Court while dealing with the order of the
Labour Court dated 21.02.2014 has concluded that the testimony of the
witness Mr.Pandit cannot be discarded only because there was no
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verification. Insofar as the sanctioned leave is concerned, the Industrial
Court has concluded that though other charges are proved, the charge of
absence from 01.12.2008 to 30.12.2008 has not been proved before the
Enquiry Officer. This conclusion has not been challenged by the
Management. This conclusion is in favour of the deceased employee.
16 As such, while deciding the proportionality of the
punishment, the Labour Court would be better assisted by these
observations of the Industrial Court found in the paragraph found on
internal page 9 of it's judgment. This conclusion will, therefore, have to be
taken into account by the Labour Court while considering as to whether,
the punishment awarded to the delinquent-employee was proportionate or
not.
17 The Honourable Supreme Court in the case of the State Bank
of Patiala v/s S.K.Sharma, AIR 1996 SC 1669, has distinguished between
the procedural rights and substantive rights of the delinquent who is
subjected to disciplinary proceedings. The Apex Court has concluded that
unless substantive rights flowing from the Service Law are not violated, an
enquiry is not to be set aside only if there are procedural flaws. In the face
of the contention that material rights of the delinquent are infringed, the
Honourable Apex Court has laid down that these contentions have to be
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tested on the touchstone of prejudice and the onus and burden lies on the
delinquent to establish the prejudice.
18 Paragraph 32 of the State Bank of Patiala judgment (supra)
reads as under:-
"32. We may summarize the principles emerging from the
above discussion. (These are by no means intended to
be exhaustive and are evolved keeping in view the
context of disciplinary enquiries and orders of
punishment imposed by an employer upon the
employee):
"(1) An order passed imposing a punishment on an
employee consequent upon a disciplinary/
departmental enquiry in violation of the rules/
regulations/ statutory provisions governing such
enquiries should not be set aside automatically. The
Court or the Tribunal should enquire whether (a) the
provision violated is of a substantive nature or (b)
whether it is procedural in character.
(2) A substantive provision has normally to be
complied with as explained hereinbefore and the
theory of substantial compliance or the test of
prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural
provision, the position is this: procedural provisions
are generally meant for affording a reasonable and
adequate opportunity to the delinquent
officer/employee. They are, generally speaking,
conceived in his interest. Violation of any and every
procedural provision cannot be said to automatically
vitiate the enquiry held or order passed. Except cases
falling under 'no notice', 'no opportunity' and 'no
hearing' categories, the complaint of violation of
procedural provision should be examined from the
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point of view of prejudice, viz., whether such violation
has prejudiced the delinquent officer/employee in
defending himself properly and effectively. If it is
found that he has been so prejudiced, appropriate
orders have to be made to repair and remedy the
prejudice including setting aside the enquiry and/or
the order of punishment. If no prejudice is established
to have resulted therefrom, it is obvious, no
interference is called for. In this connection, it may be
remembered that there may be certain procedural
provisions which are of a fundamental character,
whose violation is by itself proof of The Court may not
insist on proof of prejudice in such cases. As explained
in the body of the judgment, take a case where there is
a provision g expressly providing that after the
evidence of the employer/government is over, the
employee shall be given an opportunity to lead defence
in his evidence, and in a given case, the enquiry officer
does not give that opportunity inspite of the
delinquent officer/employee asking for it. The
prejudice is self- evident. No proof of prejudice as such
need be called for in such a case. To repeat, the test is
one of prejudice, i.e., whether the person has received
a fair hearing considering all things. Now, this very
aspect can also be looked at from the point of view of
directory and mandatory provisions, if one is so
inclined. The principle stated under (4) hereinbelow is
only another way of looking at the same aspect as is
dealt with herein and not a different or distinct
principle.
(4)(a) In the case of a procedural provision
which is not of a mandatory characters the complaint
of violation has to be examined from the standpoint of
substantial compliance. Be that as it mays the order
passed in violation of such a provision can be set aside
only where such violation has occasioned prejudice to
the delinquent employee.
(b) In the case of violation of a procedural
provisional which is of a mandatory character, it has
to be ascertained whether the provision is conceived in
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the interest of the person proceeded against or in
public interest. If it is found to be the former, then it
must be seen whether the delinquent officer has
waived the said requirements either expressly or by his
conduct. If he is found to have waived its then the
order of punishment cannot be set aside on the
ground of said violation. If, on the other hand, it is
found that the delinquent officer/employee has not it
or that the provision could no be waived by him, then
the Court or Tribunal should make appropriate
directions [include the setting aside of the order of
punishment], keeping in mind the approach adopted
by the Constitution Bench in B.Karunkar, (1994 AIR
SCW 1050). The ultimate test is always the same viz.,
test of prejudice or the test of fair hearing, as it may
be called.
(5) Where the enquiry is not governed by any
rules/regulations/statutory provisions and the only
obligation is to observe the principles of natural
justice - or, for that matter, wherever such principles
are held to be implied by the very nature and impact
of the order/action the Court or the Tribunal should
make a distinction between a total violation of
natural justice [rule of audi alteram] and violation of
a facet of the said rule, as explained in the body of the
judgment. In other words, a distinction must be made
between no opportunity" and no adequate
opportunity, i.e., between "no notice"/"no hearing" "no
fair hearing". (a) In the case of former, the order
passed would undoubtedly be invalid [one may call it
"void" or a nullity if one chooses to]. In such cases,
normally, liberty will be reserved for the Authority to
take proceedings afresh according to law, i.e., in
accordance with the said rule [audi alteram partem ].
(b) But in the latter case, the effect of violation [of a
facet of the rule of audi alteram partem] has to be
examined from the standpoint of prejudice; in other
word in other words, what the Court or Tribunal has
to see is whether in the totality of the circumstances,
the delinquent officer/employee did or did not have a
fair hearing and the orders to be made shall depend
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upon the answer to the said query. [It is made clear
that this principle [No.5] does not apply in the case of
rule against bias, the test in which behalf are laid
down elsewhere.]
(6) While applying the rule of audi alteram partem
[the primary principle of natural justice] the Court/
Tribunal/Authority must always bear in mind the
ultimate and over-riding objective underlying the said
rule, viz., to ensure a fair hearing and to ensure that
there is no failure of justice. It is this objective which
should guide them in applying the rule to varying
situations that arise before them.
(7) There may be situations where the interests of
state or public interest may call for a curtailing of the
rule of audi alteram partem. In such situations, the
Court may have to balance public/State interest with
the requirement of natural justice and arrive at an
appropriate decision."
19 Considering the judgment of the Honourable Apex Court in
the case of the State Bank of Patiala (supra), I do not find that the
misconceived contention that the statement of evidence of a witness
should be supported by verification or affidavit, would render the enquiry
unfair. So also, there is no contention about an erstwhile advocate of the
Management being the Enquiry Officer. Without having canvassed that
point, this Court in it's supervisory jurisdiction cannot deal with the record
and proceedings of the enquiry threadbare. An enquiry, therefore, cannot
be vitiated on trivial grounds.
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20 The strenuous contention of Shri Sonwane is that the same
Industrial Court has concluded in two matters that the revision petitions
filed by the employees against upholding of the enquiry, have been
rejected and in the case of this Petitioner, the revision is allowed. I do not
find that this Court can enter into such an enquiry and consider whether,
the judgment of the Industrial Court in Revision (ULP) No.62/2013 and
Revision (ULP) No.3/2014 was a fair judgment or not, when these matters
are not before this Court. I do not find it appropriate, therefore, to
entertain the submission of Shri Sonwane that because two revision
petitions were dismissed by the same Court in other matters, it should
have dismissed the revision petition of the Respondent herein as well.
21 Nevertheless, the learned Division Bench of this Court, in
Ramchandra Joshi vs. Bank of Baroda, 2010 LLR 1255 and Suryabhan M.
Avhad vs. Mahindra and Mahindra, 2011 (I) CLR 454, has concluded that
the scope of scrutiny in a domestic enquiry is limited and if an interim
order passed by the Labour or Industrial Court is perverse, same can be
challenged.
22 In the light of the above, this Writ Petition being devoid of
merit is, therefore, dismissed. Rule is discharged.
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23 Shri Dhorde has submitted the statement dated 01.08.2016
issued by the Respondent Bank and addressed to him, contending that the
Petitioner-widow has been paid the provident fund amount of
Rs.4,61,226/- on 15.09.2010, gratuity amount of Rs.3,21,819/- on
18.09.2010 and leave encashment for an amount of Rs.1,23,960/- on
07.09.2010. However, it cannot be ignored that Petitioner No.1 is the
widow of the deceased employee and is about 52 years old. Petitioner
Nos.2 and 3 are daughter and son of the deceased employee. Considering
this aspect, I deem it proper to direct the Labour Court to decide the
remaining issues in the matter and especially with regard to the
proportionality of punishment awarded to the deceased employee, as
expeditiously as possible and preferably on or before 30.12.2016.
kps (RAVINDRA V. GHUGE, J.)
