Vishnu Kaniram Ade vs The Principal, B.N. College Of ...
2017 Latest Caselaw 5745 Bom

   lpa216.08                                                                       1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

              LETTERS PATENT APPEAL NO.  216  OF  2008
                IN WRIT  PETITION NO.  4867  OF  2008


  Vishnu s/o Kaniram Ade,
  aged about 48 years,
  occupation - Nil, r/o Govind
  Nagar, Near Sukhdeo Jangil's
  House, Pusad, Tahsil - Pusad,
  District - Yavatmal.                            ...   APPELLANT.

                    Versus

  1. The Principal,
     B.N. College of Engineering,
     Tahsil - Pusad, District - 
     Yavatmal. 

  2. The President,
     Janta Shikshan Prasarak Mandal,
     Pusad, Tahsil - Pusad,
     District - Yavatmal.                         ...   RESPONDENTS


  Shri D.C.R. Mishra, Advocate for the appellant.
  Shri S.S. Ghate, Advocate for the respondents.
                     .....

                                CORAM :      B.P. DHARMADHIKARI &
                                             ARUN D. UPADHYE, JJ.

AUGUST 08, 2017.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Heard Shri Mishra, learned counsel for the

appellant and Shri Ghate, learned counsel for the respondents.

2. Shri Mishra, learned counsel appearing for the

appellant - employee submits that though the procedure

followed while conducting Departmental Enquiry, may not

have been objected to by the appellant, that does not mean that

the findings recorded by the Enquiry Officer are not perverse.

He is relying upon the judgment delivered by Labour Court and

Industrial Court to submit that the effort was very much made

to show that the findings are perverse. According to him, even

before the learned Single Judge, that effort was made but has

not been looked into appropriately. He submits that reference

to evidence recorded in criminal proceedings was only

incidental and to show inconsistency. He further adds that the

Principal of Respondent No. 2 - College has conducted

preliminary inquiry, unearthed material, submitted report and

then appointed an Advocate as Enquiry Officer. That Advocate

issued charge sheet and during Departmental Enquiry, the very

same Principal acted as Presenting Officer of the employer.

After receipt of Enquiry report, the very same Principal has

proceeded to issue punishment order. He contends that thus an

individual has acted as an Investigator, as a Prosecutor and also

as a Punishing authority. He relies upon the settled principle

that a man cannot be a Judge in his own cause. He submits

that this contention, though specifically raised before the

learned Single Judge in the case of Shri Rattan Lal Sharma vs.

Managing Committee, Dr. Hari Ram (co-education) H.S.S. &

Ors., reported at 1993 (II) CLR 1, it has been brushed aside.

He, therefore, requests this Court to pass appropriate orders.

3. Shri Ghate, learned counsel for the respondents

submits that the appellant filed a pursis in proceedings before

the Labour Court and accepted Departmental Enquiry to be fair

and valid. Labour Court thereafter examined the controversy

as per law and dismissed ULP Complaint. That dismissal was

upheld by the Industrial Court as also by the learned Single

Judge. According to him, in this situation, merely because a

person may have acted in different capacities, that by itself

cannot be fatal and the appellant has to establish prejudice

caused to him in the process. As that has not been done,

present Letters Patent Appeal is liable to be dismissed.

4. Without prejudice, he adds that in case

Departmental Enquiry is held to be vitiated, the respondents

have got a right to prove misconduct by leading evidence

before the Labour Court. Hence, no order of reinstatement can

be passed in present proceedings. He also contends that the

learned Single Judge has dismissed writ petition in motion

hearing, only after hearing the learned counsel for the

appellant - petitioner. Even notices were not issued to the

employer. He, therefore, states that in case this Court finds any

error in consideration of controversy by the learned Single

Judge, until and unless the employer is given an opportunity of

hearing, no relief can be given.

5. The law on the point is well settled. If the

principles of natural justice are found to be violated in

Departmental Enquiry, the employer needs to be given an

opportunity to prove misconduct as held in the case of Cooper

Engineering Ltd. vs. P. P. Mundhe, reported at AIR 1975 SC

1900. The Hon'ble Apex Court has in the case of Bharat Forge

Company Ltd. vs. A.B. Zodge & Anr., reported at 1996 II CLR

345, has also held that when the findings recorded by the

Enquiry Officer are found to be perverse, the employer needs to

be given an opportunity.

6. The appellant before the Labour Court accepted

that there was no procedural violation in Departmental

Enquiry. That by itself may not mean that the findings

recorded by the Enquiry Officer are not perverse.

7. A perusal of judgment delivered by the Labour

Court reveals that the effort of the appellant was to

demonstrate that on the basis of material available on record,

the charges are not proved. Even after adverse judgment of

Labour Court, in Industrial Court, the appellant again has made

similar effort. Various contentions before the learned Single

Judge were with a view to demonstrate that the findings

recorded by the Enquiry Officer were perverse.

8. The appellant has in memo of Writ Petition in

paragraph 11(F) and in grounds in paragraph 12 has

specifically pointed out the active participation of the Principal.

If the said assertions are correct, the Principal has acted as

Reporter, Investigator, Prosecutor and ultimately as Punishing

Authority (Judge) also. In this situation, whether such a role

played by an influential person, occupying top position in the

College, has in any way affected the inquiry, may require a

serious debate.

9. Here, we have to keep in mind the contention of

Shri Ghate, learned counsel that merely because the very same

person has acted in different capacities, an inference of

prejudice cannot be drawn.

10. Again, this aspect need to be reviewed in the

backdrop of the judgment of the Hon'ble Apex Court in the case

of State Bank of Patiala & Ors. vs. S.K. Sharma, reported at AIR

1996 SC 1669.

11. The appellant has, in appeal filed before this Court,

in ground 6(a) has specifically raised a contention that though

he attempted to demonstrate perversity to the learned Single

Judge and relied upon a judgment, that has not been

considered and ignored. This specific ground has not been and

could not have been denied by the respondents before this

Court. The pleadings in writ petition do not contain reference

to the judgment in the case of Shri Rattan Lal Sharma vs.

Managing Committee, Dr. Hari Ram (co-education) H.S.S. &

Ors., (supra), however, the learned Single Judge has, while

mentioning the case laws cited before him, in paragraph 6(1)

mentioned that judgment. This material, therefore, shows that

an effort was made by the appellant to demonstrate to the

learned Single Judge, the erroneous approach of the Enquiry

Officer and perversity in the findings.

12. Writ Petition filed before the learned Single Judge

has been decided on 07.01.2008 in motion hearing. Thus,

without issuing notice to the respondents (employer), writ

petition has been dismissed. The employer, therefore, did not

get an opportunity before the learned Single Judge to rebut the

contentions of the present appellant.

13. We, therefore, find that the interest of justice can be

met with by restoring Writ Petition No. 4867 of 2007 to the file

of the learned Single Judge for its adjudication on merits.

14. Shri Mishra, learned counsel, at this stage submits

that writ petition should be decided expeditiously. We are not

inclined to make any such request to the learned Single Judge.

Writ Petition No. 4867 of 2007 be listed before the learned

Single Judge as per roster assignment. The return, if any, shall

be filed by the respondents by 15.09.2017. The parties can

thereafter request the learned Single Judge for a fixed date of

hearing.

15. Accordingly, the impugned judgment dated

07.01.2008 is set aside. Letters Patent Appeal is thus partly

allowed and disposed of. However, there shall be no order as

to costs.

           JUDGE                                                     JUDGE
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  *GS.