Bombay High Court
Bhagwan Sahebrao Sonawane vs The General Manager Best on 31 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:4614
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7192 OF 2023
Bhagwan Sahebrao Sonawane .... Petitioner
Versus
The General Manager BEST .... Respondent
...
Mr. J. P. Kharge, for Petitioner.
Mr. Sagar Shetty, a/w. Ms. Shraddha Nagaonkar & Adv. Rouble Chhabra for
Respondent.
...
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 16 JANUARY 2024.
PRONOUNCED ON : 31 JANUARY 2024.
JUDGMENT:
By this Petition, Petitioner challenges Judgment and Order dated
24 August 2022 passed by the Industrial Court, Mumbai in Appeal (IC)
No.55 of 2018, which was filed by him challenging the Part-I Award dated 07
April 2015 as well as the final Award dated 16 July 2017 passed by the 3 rd
Labour Court, Mumbai in Application No.3 of 2024.
2. Briefly stated, facts of the case are that Petitioner was appointed as
bus driver in Respondent-Undertaking. On 18 May 2013, he was deputed to
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drive bus having Route No. 138. While driving bus, an accident occurred
where the bus dashed against the pedestrian lady at zebra crossing who
injuries, which lead to her death. An FIR was registered against Petitioner on
18 May 2013 for offences punishable under Sections 279 and 304 of the
Indian Penal Code, 1860 and Section 184 of the Motor Vehicles Act, 1988.
3. Petitioner was subjected to disciplinary enquiry by issuance of
charge sheet dated 30 May 2013. In the charge sheet, Petitioner was accused of
misconduct under clause 20(j) and 20(k) of the Regulations. The Inquiry
Officer, after considering the evidence on record, submitted report holding
that the pedestrian was responsible for the accident and therefore it was held
that the charges under clause 20(j) and 20(k) were proved against him. After
considering the evidence on record, the Inquiry Officer proceeded to pass
order dated 12 July 2013 imposing penalty of dismissal from service on the
Petitioner. He preferred First Appeal which came to be rejected by Deputy
Depot Manager. Petitioner thereafter preferred Second Appeal which came to
be rejected by committee of Deputy Chief Manager (Traffic) City and Deputy
Chief Engineer (Depots).
4. The Petitioner approached Labour Court, Mumbai by filing
Application under provisions of Sections 78 and 79 of the Bombay Industrial
Regulations Act 1946 (BIR Act) challenging penalty of dismissal. The
Application was numbered as Application (DIR-M) No.3 of 2014. The Labour
Court framed preliminary issue of fairness in the enquiry and perversity in the
findings recorded by enquiry officer and delivered Part-I Award dated 07 April
2015 holding that the enquiry is fair and proper and that the findings are not
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perverse. The Labour Court thereafter delivered final Judgment and Order
dated 16 June 2017 deciding the further issue of proportionality of the penalty
and proceeded to dismiss the Petitioner's Application.
5. Aggrieved by the Order dated 07 April 2015 on preliminary issue
and 16 June 2017 dismissing the complaint, Petitioner filed Appeal under
Sections 84 and 85 of the BIR Act before Industrial Court. By Judgment and
Order dated 24 August 2022, the Industrial Court has proceeded to dismiss
the Appeal. Petitioner has accordingly filed the present petition challenging
the decision of Labour Court and Industrial Court.
6. I have heard Mr. Kharge, the learned counsel appearing for
Petitioner and Mr. Shetty, the learning counsel appearing for Respondent.
Both the learned counsel have taken me through various findings recorded by
the Labour Court and Industrial Court as well as the evidence produced on
record. However, after perusal of the proceedings of enquiry, certain gross
illegalities are noticed in the manner in which the disciplinary enquiry
proceedings have been conducted. In the present case, the charge sheet dated
30 May 2023 was issued by the Mr. A. S. Bhor, the Deputy Depot Manager.
The enquiry has been conducted by Shri. M. S. Decruz, Senior Traffic Officer.
There is no dispute to the position that the Senior Traffic Officer has acted as
Inquiry Officer, who is lower in rank than Deputy Depot Manager. This is
clear from the fact that Deputy Depot Manager has acted as First Appellate
Authority over the Order passed by the Senior Traffic Officer. The Inquiry
Officer (Senior Traffic Officer) not only conducted enquiry but also passed the
final penalty order of dismissal on the Respondent. The Inquiry Officer is
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supposed to conduct enquiry and prepare report with his findings on each
article of charge and submit the same for consideration to the Disciplinary
Authority which, in the present case, was Deputy Depot Manager. However,
the Inquiry Officer exceeded his role and proceeded to penalize the Petitioner
by Order dated 12 July 2013. The Inquiry Officer did not prepare a separate
report and passed a consolidated Order containing his findings on articles of
charge as well as final penalty on 12 July 2013. Thus, the report of Inquiry
Officer is incorporated in the final penalty order, as the Inquiry Officer himself
acted as if he is the disciplinary authority.
7. The irregularity in the procedure does not stop here. The Deputy
Depot Manager, who was the disciplinary authority and who had issued charge
sheet to the Petitioner proceeded to act as First Appellate Authority and
decided the First Appeal preferred by the Petitioner by Order dated 31 July
2013.
8. I had an occasion to deal with almost identical case in Balu
Namdevrao Mule Vs. The General Manager, The BEST Undertking , , Writ
Petition No.2096 of 2010 decided on 12th September 2023. The case involved
identical circumstances especially with regard to manner of conduct of enquiry.
It would therefore be apposite to reproduce the relevant paragraphs of the
Judgment as under:
12. As observed above, Respondent-Undertaking has adopted a strange
method of authorising the Enquiry officer not just to conduct the enquiry
but also to impose the punishment. Ordinarily, the Disciplinary Authority is
the appointing authority of an employee. The Disciplinary Authority
nominates an Enquiry Officer to conduct an enquiry and submit findings
before the Disciplinary Authority, who invites representation of the
delinquent employee to the findings recorded by the Enquiry Officer. If
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Enquiry Officer holds the charge to be disproved, such finding is not binding
on the Disciplinary Authority, who is empowered to disagree with the
findings after following the prescribed procedure. If on the other hand, the
charge is held to be proved by the Enquiry Officer, after considering the
representation made by the delinquent employee, the Disciplinary Authority
proceeds to pass final decision in the disciplinary proceedings. In the present
case, however the Memorandum of Chargesheet was issued to Petitioner by
Mr. S.G. Shetye-Assistant Traffic Superintendent, (Colaba). Enquiry is
conducted by Shri. R.V. Shetty-Senior Traffic Officer (Colaba). The said
Enquiry Officer did not prepare any report after conclusion of the enquiry.
The last proceedings of the enquiry was conducted on 21 March 2003 when
statement of Petitioner's defence representative was recorded. Within five
days thereafter, the said Enquiry Officer proceeded to pass order dated 26
March 2003 imposing the penalty of dismissal from service. It must be
observed that this procedure followed by Respondent-Undertaking is rather
strange.
13 Apart from Enquiry officer punishing Petitioner, there is another
glaring error in the manner of conduct of enquiry. The chargesheet was
issued by Shri. S.G. Shetye-Assistant Traffic Superintendent, (Colaba). The
enquiry is however conducted by the lower officer, Shri. R.V. Shetty-Senior
Traffic Officer, Colaba. The penalty is also imposed by the said Enquiry
Officer, Shri. R.V. Shetty-Senior Traffic Officer, Colaba. Thus, though the
disciplinary proceedings are initiated by a higher officer viz. Assistant Traffic
Superintendent, Colaba, the penalty order is imposed by lower officer i.e.
Senior Traffic Officer, Colaba.
14 Mr. Pakale, has attempted to persuade this Court to ignore any
objections to the manner of conduct of enquiry on twin grounds. Firstly, he
has submitted that Petitioner never raised any objection about the procedure
either during conduct of enquiry or during prosecuting the First Appeal and
Second Appeal, as well as before the Labour Court. According to him, the
Labour Court has recorded a specific finding in para-6 of its order that
fairness of enquiry is admitted by the Petitioner. The second ground raised
by Mr. Pakale is that the Sr. Traffic officer has been delegated power of
punishing a driver by the General Manager. He has placed reliance on the
relevant provisions of the Standing Order and Circular dated 1 January 2001
by which powers have been delegated. According to him, even though the
General Manager is empowered to impose punishment on employees, he can
also authorise other officers to exercise such power. As per the Circular dated
1 January 2001, Senior Traffic Officer has been delegated the power to take
disciplinary action against the employees of Traffic Department. It is by
relying on the said Circular dated 1 January 2001, that Mr. Pakale has urged
before me that Senior Traffic Officer was empowered to impose punishment
of dismissal from service.
15 While Mr. Pakale may not be entirely wrong in submitting that the
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Senior Traffic Officer was empowered under the Circular dated 1 January
2001 to take disciplinary action and punish scheduled and non-scheduled
employees of Traffic Department, his reliance on the said Circular does not
solve the problem of initiation of disciplinary proceedings by higher officer
and imposition of punishment by lower officer. As observed above, the
disciplinary proceedings are initiated by Assistant Traffic Superintendent,
Colaba who is higher in rank than Senior Traffic Officer. True it is that
under Circular dated 1 January 2001, even the Sr. Traffic Officer is also
delegated with the power to initiate disciplinary action and punish
employees in the Traffic Department. However, once the Assistant Traffic
Superintendent decides to exercise the power to initiate disciplinary action,
he cannot thereafter let the lower officer, being Senior Traffic Officer to
impose the punishment. In the present matter, the Assistant Traffic
Superintendent has acted as a Disciplinary Authority and the Senior Traffic
Officer has merely acted as the Enquiry Officer. Once the Assistant Traffic
Superintendent decides to exercise the delegated power of conducting
disciplinary proceedings, it is that very officer who ought to have taken final
decision of punishing Petitioner. Delegation of powers in favour of multiple
hierarchical officers would not mean that the powers in a case can be
simultaneously exercised by all such officers. The Enquiry Officer has clearly
exceeded his role in proceeding to impose penalty on the Petitioner. In my
view, merely because the Enquiry Officer is also empowered under Circular
dated 1 January 2001 to initiate disciplinary action and to punish employee
of Traffic Department, he cannot exercise such delegated powers once the
power is exercised by his higher officer being Assistant Traffic
Superintendent.
16 The strange procedure of the Enquiry Officer acting as a Disciplinary
Authority has led to one more problem in the present case. After the
Petitioner was punished by the Senior Traffic Officer in acting in twin
capacities of Disciplinary Authority and Enquiry Officer, the Appeal was
heard by Assistant Traffic Superintendent, Colaba. As observed above,
Assistant Traffic Superintendent, Colaba had initiated disciplinary
proceedings against Petitioner by issuing chargesheet dated 24 February
2003. The very same authority later exercised the power of the Appellate
Authority and decided Petitioner's First Appeal. Ironically on both the dates
of issuance of chargesheet on 24 February 2003 and the date of decision of
the First Appeal on 21 April 2003, the very same person, Shri. Sadanand
Shetye was occupying the post of Assistant Traffic Superintendent, Colaba.
Thus, in the present case, the authority who initiated the disciplinary
proceedings by issuing chargesheet has acted as the Appellate Authority. This
has essentially resulted in denial of right of Appeal to Petitioner. In service
jurisprudence, it is axiomatic that the Appeal is heard and decided by an
authority higher than the Disciplinary Authority. However, since the
Respondent-Undertaking committed the first folly of allowing the Enquiry
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Officer to pass the order of penalty, the second blunder of the earlier
Disciplinary Authority deciding Petitioner's First Appeal has crept in.
17 The Apex Court in Suman Bala v. Union of India, (2005) 12 SCC
388 has dealt with somewhat similar situation. It held:
4. Counsel for the appellant points out that disciplinary
proceedings were initiated at the instance of the then Commissioner
of Income Tax, Mrs S.K. Aulakh and the appeal preferred by the
appellant was heard by the very same officer and therefore the whole
proceedings are vitiated. We find some force in the contention. In
view of the facts and circumstances, we set aside the orders passed by
the Appellate Tribunal as well as the High Court and direct that the
appeal preferred by the appellant be heard by the present
Commissioner of Income Tax, Jalandhar and dispose of the appeal on
merits in accordance with law.
20 The nature of illegality in conduct of enquiry in the present case,
would go to the root of the matter. Initiation of disciplinary enquiry by
higher officer, imposition of penalty by a lower officer and decision of First
Appeal by the Officer who initiated disciplinary enquiry would completely
vitiate the proceedings. The extent of illegality is so gross that absence of
cause of prejudice to Petitioner cannot be cited for saving the proceedings.
The decision of Appeal by the very same Officer who issued chargesheet
would definitely cause prejudice to the employee, as his very right of Appeal
is being denied. It therefore cannot be said that no prejudice is caused to
Petitioner on account of the irregularities in the disciplinary proceedings.
Therefore even if Petitioner was not to point out these illegalities in the
manner of conduct of inquiry before Labour or Industrial Courts, this Court
would not turn a blind eye to the same as the same go to the root of the
matter.
9. Thus in Balu Namdevrao Mule, this Court has held that Senior
Traffic Officer, who acted as Inquiry Officer, ought to have restricted his role
only to preparation of his report and reporting his findings on proof on charge
or otherwise to the disciplinary authority. This Court also held that the Senior
Traffic Officer exceeded his jurisdiction in punishing the Petitioner therein.
This Court also held that officer, who issued charge sheet, could not have acted
as First Appellate Authority.
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10. There is yet another factor considered in the case of Balu
Namdevrao Mule which appears to be similar in the present case. In Balu
Namdevrao Mule, the Petitioner therein was punished by taking into
consideration six past penalties. This Court held that, past penalties could not
be taken into consideration without framing a specific charge to that effect.
This court held in paragraph 23 and 24 as under :
23 There is yet another irregularity committed by the Respondent-
Undertaking while punishing Petitioner. Perusal of the punishment order
would indicate that the concerned Authority has taken into consideration six
past penalties for the purpose of choosing the penalty of dismissal from
service. It is well settled law by a Constitution Bench decision in State of
Mysore V/s. K. Manche Gowda, AIR 1964 SC 506 that if past penalties are
to be taken into consideration, a separate charge to that effect must be
framed. The Apex Court held in para-8 and 9 as under :
8. Before we close, it would be necessary to make one point clear. It is
suggested that the past record of a government servant, if it is intended
to be relied upon for imposing a punishment, should be made specific
charge in the first stage of the enquiry itself and, if it is not so done, it
cannot be relied upon after the enquiry is closed and the report is
submitted to the authority entitled to impose the punishment. An
enquiry against a government servant is one continuous process, though
for convenience it is done in two stages. The report submitted by the
Enquiry Officer is only recommendatory in nature and the final
authority which scrutinizes it and imposes punishment is the authority
empowered to impose the same. Whether a particular person has a
reasonable opportunity or not depends, to some extent, upon the nature
of the subject-matter of the enquiry. But it is not necessary in this case to
decide whether such previous record can be made the subject matter of
charge at the first stage of the enquiry. But, nothing in law prevents the
punishing authority from taking that fact into consideration during the
second stage of the enquiry, for essentially it relates more to the domain
of punishment rather than to that of guilt. But what is essential is that
the government servant shall be given a reasonable opportunity to know
that fact and meet the same.
9. In the present case the second show-cause notice does not mention
that the Government intended to take his previous punishments into
consideration in proposing to dismiss him from service. On the contrary,
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the said notice put him on the wrong scent, for it told him that it was
proposed to dismiss him from service as the charges proved against him
were grave. But, a comparison of paras 3 and 4 of the order of dismissal
shows that but for the previous record of the government servant, the
Government might not have imposed the penalty of dismissal on him
and might have accepted the recommendation of the Enquiry Officer
and the Public Service Commission. This order, therefore, indicates that
the show-cause notice did not give the only reason which influenced the
Government to dismiss the respondent from service. This notice clearly
contravened the provisions of Article 311(2) of the Constitution as
interpreted by Court.
24 In the present case, neither a specific charge was framed nor any show
cause notice was issued to him before imposing penalty indicating that the
past penalties would be taken into account. Petitioner therefore did not have
any opportunity before the punishing authority to represent in respect of the
allegation of being punished repeatedly in the past. Mr. Pakale, has
contended that Petitioner was charged with the misconduct under the
Standing Order 20(j) which is "habitual or gross neglect of work or habitual
or gross negligence". He would contend that the Petitioner was thus
specifically made aware in the chargesheet itself that, he was habitual in
committing misconduct. In my view, mere use of the word "habitual" in
Standing Order 20(j) would not fulfill the requirement of framing of a
separate charge as per the judgment of the Constitution Bench in K. Manche
Gowda (supra). This is more so because six instances highlighted in the
penalty order, prima-facie, do not indicate that Petitioner was penalized in all
six incidents. It appears that he has been suspended for one/two days on four
occasions and was given warning on two occasions. Suspension is not a
punishment. Whether warning was issued as a measure of penalty after
conducting disciplinary proceedings is unknown. However, the punishing
authority has erroneously described all six instances as "punishments". If
specific charge was to be framed against the Petitioner alleging punishment
on six occasions in the past, he would have taken a defence that either or
most of the incidents did not amount of punishments. Thus, non-framing of
specific charge of past punishments has clearly caused prejudice to the
Petitioner. Mr. Pakale, has placed reliance on judgment of this Court in
Rajaram Balu More (supra) in support of his contention that the
Respondent-Undertaking is entitled to take into consideration even past
penalties. Firstly, the judgment of the Apex Court in K. Manche Gowda
(supra) was apparently not brought to the notice of this Court. Secondly, the
charge leveled against the Petitioner was relating to unauthorized absence
from duty. It is in that context that this Court took into consideration his
past conduct of absenteeism on five occasions. Therefore the past
punishments imposed for unauthorized absence are taken into consideration
to justify the penalty for habitual unauthorized absence. In the present case,
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it is not the case of the Respondent-Undertaking that all these suspensions /
warnings were for causing accidents. Therefore, reliance of Mr. Pakale on the
judgment of this Court in Rajaram Balu More, would not assist his case.
11. The facts in Balu Namdevrao Mule about manner of conduct of
enquiry are exactly identical to the present case. In Balu Namdevrao Mule this
Court set aside the Orders passed by the Labour Court and Industrial Court as
well as dismissal order of Petitioner therein and remanded proceedings to the
Inquiry Officer for preparation of report. The operative portion of the order in
Balu Namdevrao Mule reads thus :-
(i) The judgment and order dated 27 August 2007 passed by the
Industrial Court, Mumbai in Appeal (IC) No. 100/2006 as well as
judgment and order dated 12 January 2006 passed by the Labour
Court Mumbai in Application BIR/MIC No.58/2002 are set aside.
(ii) The order of dismissal dated 26 March 2003 as well as the orders of
the First and Second Appellate Authority are also set aside.
(iii) The proceedings of the enquiry are remanded to the Enquiry Officer
for preparing a report based on evidence on record and for recording
his finding on proof of charge. The Report of Enquiry Officer, if
adverse to Petitioner, shall be supplied to him and his representation
be called thereon. After considering the report of the enquiry officer
and Petitioner's representation, the Assistant Traffic Superintendent-
Colaba shall pass final Order in the proceedings. While doing so the
Disciplinary Authority shall not take into consideration any past
penalties in absence of a specific charge to that effect.
(iv) Petitioner shall be reinstated in service and shall be treated as in
deemed suspension from the date of dismissal till reinstatement. He
shall be paid subsistence allowance as per Rules.
12. In the present case, no doubt the irregularities committed by
Inquiry Officer in penalizing the Petitioner or disciplinary authority acting as
First Appellate Authority are not specifically raised. However, it appears that
the Petitioner had questioned fairness of the enquiry before the Labour Court.
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The findings of the Labour Court on fairness of the enquiry were challenged
before the Industrial Court. Therefore, it cannot be stated that Petitioner has
not raised the issue of fairness of enquiry. Furthermore, since this Court has
taken a view in the case of Balu Namdevrao Mule that Inquiry Officer cannot
penalize the delinquent employee and that disciplinary authority cannot act as
Appellate Authority, same view needs to be followed in the present case as
well. In my view, therefore, in the present case also proceedings of the Inquiry
are required to be remanded before the Inquiry Officer for preparation of
report and for placement of such report before disciplinary authority for taking
appropriate decision.
13. Both the learned counsel have pressed submissions on merits of
charges, proportionality of penalty, etc. However, since the proceedings are
being remanded before the Inquiry Officer, it is not necessary for this Court to
record any finding on those contentions.
14. I accordingly proceed to pass following order :
i) Order dated 07 May 2015 and 16 July 2017 passed by
Labour Court in Application (BIR-M) No.3 of 2014 as well as
Judgment and Order dated 24 August 2022 passed by the
Industrial Court in Appeal (IC) No.55 of 2018 are set aside.
ii) The Order of punishment of dismissal from service dated
12 July 2013 as well as Order of the First Appellate Authority
dated 31 July 2013 and of Second Appellate Authority dated 10
September 2013 are also set aside.
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iii) The proceedings of the enquiry are remanded to the
Inquiry Officer for preparing a report based on evidence on
record and for recording his findings on proof of charge. The
Report of Inquiry Officer, if adverse to Petitioner, shall be
supplied to him and his representation be called thereon. After
considering the report of the Inquiry Officer and Petitioner's
representation, the Deputy Depot Manager shall pass final
Order in the proceedings. While doing so the Disciplinary
Authority shall not take into consideration any past penalties in
absence of a specific charge to that effect.
iv) Petitioner shall be reinstated in service and shall be treated
as under deemed suspension from the date of dismissal till
reinstatement. He shall be paid subsistence allowance as per
Rules.
15. Writ Petition is accordingly disposed of.
SANDEEP V. MARNE, J.
KISHOR VISHNU
VISHNU Date:
KAMBLE 2024.01.31
18:01:33
+0530
