General Manager, Badarpur ... vs Presiding Officer And Anr.
2006 Latest Caselaw 2298 Del

JUDGMENT

Shiv Narayan Dhingra, J.

Page 0311

1. By this writ petition, the petitioner has challenged the validity of the Award dated 7.10.2004 passed by CGIT-II whereby the reference was answered against the petitioner and the petitioner was directed to reinstate respondent No. 2 with 50% back wages.

2. Briefly the facts are that respondent No. 2 Surender Kaushik was working as Time Keeper with the petitioner. On 30.1.1985, the following charge sheet was issued to Surender Kaushik:

On 19th September, 1984, when there was an accident of the Haryana Roadways Bus on the Mathura Road in front of Gate No. 1, BTPS involving the brother in law and child of Shri S.P. Pathak, Technician, BTPS. You were found from08.25 AM to about 12.30 PM actively involved in inciting and instigating the workers to indulge in riotous and disorderly behavior and were directly involved in Gherao and assault of Shri V. Sunderarajan, General Manager and other officers.

You had also incited workers by standing on the dickey and roof of G.M's Car DHD 467 of the Company and had damaged the same.

During the period, General Manager was trying to clarify to the workers that he had already issued orders for the Bus to start from Temporary Colony, when Shri Subal Sil had jumped on him and torn off his coller, you had joined Shri Subal Sil in beating the General Manager.

The above acts are acts of misconduct as per clause 14(3)(c)(Willful damage to or loss of employer's goods of property), (h) of Model Standing Orders applicable to you.

You are hereby required to explain in writing within 48 hours from the time of receipt of this letter as to why disciplinary action should not be taken against you for the above acts of misconduct alleged to have been committed by you. Please note that if you do not submit your explanation within the time stipulated, it shall be presumed that you do not have any explanation to offer and accept the charges levelled against you, in which case the appropriate disciplinary action as per rules would be taken against you.

Sd/-

(M.K. Sarkar)

Executive Director(NCR)

3. Along with respondent, more employees were issued similar charge sheet for indulging into riotous behavior. The respondent and other nine employees gave reply to the charge sheet dated 30.1.1985 in following manner:

We are the following employees of BTPS has been issued the Charge Sheet on 31.1.1985 in connection with the incidence dt. Page 0312 19.9.1984. In this connection we would like to state that, we fully authorize the 'BADARPUR KARAMCHARI SANYUKT MORCHA' to represent us in the case. As the case is very much complicated, the time of 48 hours is not enough for such case to file the reply. Therefore, we should be given time for one month to file reply.

We hope that you will consider our case favorably in the interest of natural justice.

 

Thanks,
 Signature   Name       Staff No.

1.     Munawar           53862
2.     Beldeve Singh     52773
3.     Surinder Kaushik  52080
4.     Ram Avtar         54085
5.     Subal Sil         54348
6.     Subash Sharma     53132
7.     Kishan Chand      53386
8.     Nak Chand         51708
9.     Inder Singh       51771

 

4. The respondent, however, on 14.2.1985 gave a separate reply to the charge sheet issued to him. He denied the charges and also stated that management has no jurisdiction to issue charge sheet by invoking provisions of Model Standing Orders and instead Model Standing Orders are not applicable to the employees of BTPS. He and other employees were civil servants and had protection of Article 311 of the Constitution of India.

5. Not satisfied with the reply, the petitioner ordered an enquiry into the charges against Surender Kaushik vide order dated 28.2.1985. Liberty was given to Surender Kaushik to participate in the enquiry either in person or take assistance of a representative as per the provisions of standing orders. He was asked to nominate his representative. Similar enquiry order was made in respect of other employees also. After this enquiry order, petitioner received a representation against the order made by NTPC workers Union, BTPP Employees Union, BVKU(DMC), Badarpur Power Engineers Association and NTPC Karamchari Ekta Union. It was submitted in the representation that the charges were leveled against the employees with a motive to punish the employees because of their trade union activities. The holding of enquiry was without jurisdiction. It was also stated that Managing Director and Chairman of the Corporation had decided not to take any action against the employees in relation to incident dated 19.9.1984 so the Executive Director had no direct authority to take action. It was informed to the petitioner that the workmen would not participate in the enquiry. Para 8 of the letter reads as under:

8. We would like to inform you that if any enquiry held, we will boycott the enquiry at all stages and no charge sheeted employees will attend the enquiry, which is initiated only to give the pre-judged punishment on the basis of bias. The order of enquiry is arbitrarily discriminating in order to victimise the employees.

Page 0313

6. Not only the union, all the workmen individually also took the same stand and wrote a letter dated 6.3.1985 to the Chairman and Managing Director of the petitioner, para 8 of which reads as under:

8. With reference to Badarpur Karamchari Sanyukt Morchaa letter No. BKSM/77/85 dt. 5.3.1985, we would like to inform you that if any enquiry held, we will boycott the enquiry at all stages and no charge sheeted employees will attend the enquiry, which is initiated only to give the prejudged punishment discriminating in order to victimize the employees.

7. Enquiry Officer gave a notice dated 19th March, 1985 to the respondent workmen of holding an enquiry. The respondent Surender Kaushik was again asked to nominate his representative and inform the Enquiry Officer. He was informed that enquiry would be held on 30.3.1985 at 10 a.m in the office of Enquiry Officer at NTPC.

8. Despite the information of holding enquiry and request for nominating representative, the respondent did not participate in the enquiry. Another notice dated 30.3.1985 was sent to the respondent Surender Kaushik informing him if he did not participate in the enquiry for which the next date was fixed as 13.4.1985 he would be proceeded ex parte. Another letter dated 20.4.1985 was sent by the Enquiry Officer to the respondent regarding proceedings of previous hearing asking him to participate in the next hearing to be held on 4.5.1985. But attitude of the workman was same. He did not participate in the enquiry. After every date of hearing the Enquiry Officer informed the respondent Surender Kaushik of the previous proceedings, asking him to participate in the proceedings. However, the respondent Surender Kaushik and two of his associates did not participate in the proceedings. After holding enquiry, Enquiry Officer gave report dated 27.5.1985 holding that the three charges of misconduct were proved against the workman Surender Kaushik and others namely (1) Willful damage to or loss of employer's goods or property, (2) doing acts subversive of discipline and (3) neglect of work. An enquiry report dated 27.5.1985 was sent to the respondent and two other workmen. They were asked to file reply and the employees were given chance to explain their own position within 48 hours and show cause as to why they should not be dismissed from service. Surender Kaushik was dismissed from service vide order dated 20.7.1985. He filed a representation dated 8.8.1985 wherein he took a stand that no notice of enquiry was sent to him and no date of enquiry was made available to him. The management committed a gross illegality in not informing him the date of enquiry and by not giving him opportunity to defend his case. It was also alleged that no public witness was examined despite the fact that the incident had taken place at a public place. He took the stand that he was not present on the spot. He also took the stand that he had approached the CMD on date of incident and CMD made a promise to negotiate the matter, to review the situation and to give some compensation to bereaved family. He was authorized on behalf of the employee to participate in the talks initiated by the CMD. It was announced by the CMD that no action shall be taken in the matter. It was submitted that enquiry was perverse and there was no occasion to hold an enquiry.

Page 0314

9. This representation dated 8.8.1985 of the respondent addressed to the Chairman was treated as an appeal and was sent to Director (Finance) NTPC since Managing Director (Personnel) happened to be one of the witnesses in the enquiry. The Director (Finance) wrote a letter to the respondent that his points have been considered. Although the enquiry report with all annexures was sent to him but one copy was being again sent to him and he was given liberty to make additional points if he liked and submit the same by 25.12.1985. It was also decided to give him personal hearing. He was called in the office on 26.12.1985 at 2.30 p.m. The appeal of the respondent/workman was ultimately dismissed. The respondent Surender Kaushik thereafter raised an industrial dispute which was referred to CGIT in the following terms:

Whether the action of the management of BTPS in dismissing the services of Sh. Surinder Kaushik from 9.8.1985 is justified? If no, what relief the workman is entitled to?

10. The workman took the stand that no copy of enquiry report was furnished to him. He was in jail from 16.7.1985 to 24.7.1985 and when he went to resume his duty on 25.7.1985, security guard did not permit him to enter into the premises of power station and handed him over the dismissal order dated 20.7.1985. Preliminary issue regarding fairness of the enquiry was not pressed before the Tribunal and the Tribunal recorded the evidence of both the sides. The Tribunal noted that the enquiry report was served upon the respondent through Superintendent Jail along with a show cause notice. Later on enquiry report was sent to him by post. The Tribunal further observed that an accident had taken place on 19.9.84 at about 6.40 a.m for which FIR No. 231/1984 was lodged. The accused workman was acquitted by the Magistrate vide his judgment dated 31.10.1994.

11. A perusal of the order of the Tribunal would show that the Tribunal considered that the substantial question was whether acquittal of the respondent was clear cut or a benefit of doubt was given to him. In case the acquittal was on technical ground, the department could proceed with the enquiry. If the acquittal was on the basis of benefit of doubt then in that case also department could hold an enquiry. The Tribunal viewed that the order of the Magistrate showed that the complainant did not depose before the criminal court and the two witnesses who appeared before the court, did not support the case of the prosecution. So the Court of Magistrate acquitted the respondent in absence of incriminating evidence on the record. Tribunal relied upon the judgment Capt. M. Pal Anthony v. Bharat Gold Mines JT 1999 (2) SC page 456 and observed that since departmental proceedings and the criminal court proceedings were on identical facts and same witnesses were examined in the criminal court and criminal court found that the charges are not proved, it would be unjust, unfair to allow the findings recorded at ex parte departmental proceedings to stay. The Tribunal held that the serving Page 0315 of notice was not barely a matter of form but of substance. The person accused of misconduct should be given opportunity to show cause but such opportunity must be reasonable one. The enquiry was concluded within 4-5 days and no opportunity was afforded to the employee and the principles of natural justice were not followed. The entire enquiry was conducted while the charge sheeted workman was in Jail. It was a case of failure of justice and enquiry was vitiated. The Tribunal answered the reference holding that the action of the management in dismissing the services of Surender Kaushik on 9.8.1985 was unjust and directed reinstatement of Surender Kaushik with 50% back wages.

12. The Award has been challenged by the petitioner inter alia on the ground that Tribunal's Award was perverse and a result of non application of mind. It suffers from patent error apparent on the face of the Award. The findings are neither based on the evidence nor on the correct principles of law. The findings are arbitrary and invalid. The Tribunal ignored the material undisputed irrefutable documentary evidence in relation to issuance of service of notices during holding of enquiry and the evidence which was recorded by the Enquiry Officer. The enquiry was not even conducted while workman was in Jail, as observed by the Tribunal and this observation was contrary to the record and the evidence. The enquiry started from 30.1.1985 and was concluded in a period of 4/5 months and all along during this period, the respondent/workman was a free bird and was not in jail.

13. It is apparent from the order of Tribunal that the Tribunal did not consider the facts showing that the workman Surender Kaushik along with other workmen deliberately refused to participate in the enquiry by writing letters. The observation of the Tribunal that fair opportunity was not given was contrary to the record. It was a conscious decision of the workman not to participate in the enquiry and boycott the same. No fault can be found with the management for holding ex parte enquiry. In Appointing Authority, GBP Spl. S.I. and Anr. v. R.K. Singh 2005(10) SCC 131, the Supreme Court justified act of petitioner in proceeding ex parte against workman in enquiry proceedings when it was proved that workman himself chose not to participate in enquiry proceedings. The enquiry concluded on 7.5.1985 by submission of the report by enquiry officer while the respondent Surender Kaushik was in Jail from 16.7.1985 to 24.7.1985 in respect of another unconnected separate incident of ESMA. During 16.7.1985 to 24.7.1985 only a notice dated 16.7.1985 along with copy of enquiry report was issued by the disciplinary authority, proposing the punishment of dismissal of services. The service of this notice was effected in Jail because accused Surender Kaushik was in Jail and it was not known to the petitioner as to how long he would remain in Jail. Even in jail Surender Kaushik received notice but refused to give receipt of the same. No reply to the notice was sent deliberately. Moreover Badarpur Karamchari Sanyukt Morcha had espoused the cause of respondent No. 2 and this Morcha had categorically written that the respondent Surender Kaushik and other workmen would boycott the enquiry. Serving of notice in jail, therefore, caused no prejudice. After coming out from the jail, the respondent No. 2 was given opportunity to be Page 0316 heard by appellate authority. At all steps respondent Surender Kaushik has been refusing to participate in the enquiry and all this was evident from the documentary evidence placed on record.

14. The Tribunal's observation that acquittal in the criminal proceedings should result into the discharge of Surender Kaushik from the disciplinary proceedings was contrary to the settled preposition of law. Order of dismissal due to the misconduct of the respondent was passed on 22.7.1985 whereas the criminal proceedings prolonged till 1994. The material witnesses were not served with summons to appear before the criminal court and were, therefore, not examined. On many occasion witnesses appeared before the criminal court for deposition but were discharged without recording evidence. Under these circumstances criminal court, closed the evidence of the prosecution and acquitted the accused. The Criminal Court's acquittal of respondent No. 2, therefore, was on technical ground, in view of the default of the prosecution in producing witness. Acquittal was not based on merits. No positive finding was given that the incident had not taken place or the accused was falsely implicated.

15. The other plea of the petitioner is that the incident, subsequent to the reference were irrelevant. The Tribunal was not supposed to decide the reference on the basis of acquittal of Surender Kaushik by the criminal court in 1994. The Tribunal was supposed to consider the enquiry and finding of the enquiry officer. Nature and purpose of criminal proceedings are altogether different from the departmental proceedings.

16. The respondent in the counter affidavit supported the Award and took the stand that Director (Personnel) had entered into an agreement with the workmen which was signed by the workmen and Director (Personnel). It was agreed that service to one family member of expired person would be given by the management. Transfer of B.P. Thakur and N.S. Chauhan will be done. Welfare cause meetings would be held regularly and no action against workmen will be taken. School bus will go to township and a sum of Rs. 50,000/- as compensation will be paid to the children of deceased. Since this agreement had been arrived at, no action could be taken by the management against the workmen and the enquiry was therefore bad.

17. The respondent also took the plea that the workman was arrested on 16.7.1985 and remained in jail up to 22.7.1985. Same day he was issued a show cause notice and within four or five days the enquiry was concluded by the petitioner and the respondent No. 2 was dismissed from service. The petitioner did not follow the principles of natural justice. When the respondent No. 2 went to resume duty on 25.7.1985, he was not permitted by the security guard to enter and the security guard handed him over the show cause notice, enquiry report and dismissal order. It is further submitted that the respondent No. 2 was acquitted by the criminal court due to lack of evidence after 11 years of trial. Mr. V. Sunderrajan, the prosecution witness, had submitted before the criminal court that the case related to an incident of 1984 and he did not remember the details after lapse of such a long time. Persons who were being prosecuted were the employees, ex employees and some of them had expressed regrets in their Page 0317 personal capacity and he had forgiven them. No useful purpose would be served in examining him as a witness. He submitted that since the departmental enquiry was based on same facts and same witnesses were examined in criminal court, the verdict given by the criminal court that no offence was made out against the accused/respondent No. 2, was final and the enquiry officer could not have held the respondent No. 2 guilty of misconduct. The reliance was placed on JT(I) 1999 SC 456. It was submitted that the order of the Tribunal was good and valid order. There was no infirmity.

18. I shall first consider if there was any settlement between the parties. A perusal of the alleged settlement would show that on a piece of paper following points were scribed:

1. Brother in Law of S.P. Pathak. Tec Grade-I one son injured Hospitalized one son expired.

2. Service one family member of the Expired.

3. Transfer of B.P. Thakur and N.S. Chaudhary and we will enquire there conduct.

4. Welfare cause meeting once a month.

5.A. No action against any employees

5.B. School Bus will go to temporary town ship.

6. Rs. 50,000/-(Fifty thousand) compensation in death to children.

Sd/-

R.D. Gupta

Director General

19. The piece of paper did not bear the signatures of anyone else except of Mr. R.D. Gupta, Director Personnel. It is not having signatures of the workman or any AR of the union. Scribing of some points on a piece of paper cannot be a settlement in the eyes of law. To arrive at a binding settlement, the procedure as prescribed under Industrial Disputes Act, has to be followed. In 1969(3) SCC 302 Workmen of Delhi Cloth and General Mills Ltd. v. Management of Delhi Cloth and General Mills Ltd., Supreme Court observed that though a settlement should not be brushed aside on technical grounds but in order to see whether the settlement is valid or not, the pre-requisite has to be satisfied that it is a settlement as contemplated by the statute and the Rules framed therefore. A settlement which is not strictly in accordance with the statutory rules and does not come under the definition of settlement given in Section 2(p) of the Industrial Disputes Act and shall not bind the parties under Section 18(1) of the Industrial Disputes Act. In 2004 LLR 40 Keltron Controls v. Workmen of Keltron Controls and Ors. Kerala High Court observed that in order to be a 'settlement' as defined under Section 2(p) of the Industrial Disputes Act, the settlement otherwise during conciliation proceedings should have been in Form H and a copy of the same should have been sent to the Government Page 0318 and the conciliation officer, jointly by the employer and the employees. The non-compliance of the statutory requirements would render such settlement unenforceable by law.

20. I consider that giving recognition to a settlement as relied upon by the respondent, is fraught with dangers. If such a settlement is recognized then the management can enter into such settlement by catching hold of any four employees and state the terms agreed on a piece of paper and same are signed by one of the managers or Directors of the management and announce it as a binding settlement arrived at between the workman and the management, irrespective of the fact that the settlement involved the future of a large number of workmen. In order to protect the interest of the workmen, the law has laid down a procedure to be followed for making a settlement binding. I consider unless the provisions of the Act and rules are not followed and copies of the settlement arrived at between the representatives of the union and the management are not forwarded to conciliation officer and the appropriate Government, a settlement cannot be binding on either of the parties. The settlement relied upon by the respondent/workman, is no settlement in the eyes of law.

21. The Tribunal in its award observed that the entire enquiry in this case was concluded, while the charge sheeted workman was in jail and no opportunity was afforded to them. Therefore, the enquiry was vitiated. The second ground on which the Tribunal held that the enquiry was vitiated is that the workman was acquitted by the criminal court for lack of evidence. Both the grounds, on which the Tribunal has held the enquiry 'vitiated', were not available to the Tribunal. The first observation is factually incorrect and perverse. The sequence of dates reproduced above, the letters written by the respondent to the enquiry officer and other authorities would show that the Tribunal had not cared to look into either the enquiry report or the evidence produced during the enquiry or the documents placed on record and passed an award blindly. The enquiry, in this case started, as already observed, on 28th February, 1985 when the notices were served upon the respondent for participating in the enquiry and the enquiry officer apprised the respondents of the procedure that shall be followed during the enquiry and told the respondent to nominate representatives before the enquiry officer and notified that in case workmen did not participate on the next fixed date, he shall be proceeded ex parte. On 19th March, 1985, the enquiry officer served another notice and again requested the respondent to participate in the enquiry, appoint his defense assistant and fixed the date as 30th March, 1985. Despite letters written by the enquiry officer, the consistent stand of the respondent was that he would not participate in the enquiry. Vide letter dated 23.3.1985, the enquiry officer was told by the Secretary of the union that the enquiry officer had no jurisdiction to initiate the disciplinary proceedings. No employee would attend the enquiry and enquiry would be boycotted at all stages. He also told the enquiry officer not to serve any notice of enquiry again and again to harass the employees and no notice should be issued further. Still the enquiry officer sent a detailed letter dated 30th March, 1985 to the respondent, giving another opportunity to the respondent to participate in the enquiry, informing him Page 0319 that the next date in the enquiry was 30th April, 1985. The respondent refused to receive this letter after reading it. The letter was sent by post. The enquiry was conducted on 13.4.1985 and statement of management witnesses were recorded. The enquiry officer wrote letter to the respondent dated 20.4.1985 informing him all the proceedings which had taken place on 13.4.1985 and also informing him next date of hearing being 4.5.1985. He was informed that this would be final hearing in the case. He still gave opportunity to the respondent to examine the documents and the statements of witnesses recorded. The respondent/workman refused to receive this letter as well. Thereafter, the enquiry officer completed the enquiry and gave his report on 27.5.1985. All the documents and the enquiry report were before the Tribunal and despite the entire correspondence, the Tribunal's observation that the enquiry was completed during the period between 16.7.1985 to 24.7.1985 are unfortunate being contrary to record and contrary to the evidence. The order of the Tribunal is perverse per se.

22. The enquiry in respect of the incident of misconduct of August, 1984 concluded in May, 1985. However, the criminal trial lingered on up to 1994. The accused/respondent No. 2 was acquitted because one of the main witnesses, who was manhandled, told the court that the incident was quite old, he did not remember the details and in his personal capacity he had forgiven the accused who expressed regrets and no useful purpose would be served by recording his evidence. The acquittal of the respondent was based on non production of evidence and on the basis of witness's failure in his memory or pardoning the accused. It is not an acquittal on merits. Such an acquittal came after 9 years of the conclusion of enquiry and cannot be a ground to hold that the departmental enquiry was vitiated. In the present case, in departmental enquiry, 15 witnesses were examined including the witness who was manhandled. The enquiry officer also examined other witnesses namely security guards, security inspector etc. The Tribunal's observation that the enquiry was vitiated because the accused was acquitted by the criminal court for lack of evidence, is perverse, since the acquittal was not on merit, neither it was an hon'ble acquittal or holding that the accused was not involved in the incident or that he was falsely implicated.

23. In 2006 1 LLJ 826 Chairman-cum-M.D. T.N.C.S Corporation Ltd. and Ors. v. K. Meerabai, Supreme Court held:

Similarly, the learned single judge was patently misconceived in reaching the conclusion that the acquittal of the respondent by the Court of C.J.M clinched issue before the departmental inquiry, while losing sight of the well settled law that the scope of criminal proceedings in the Court of Criminal Law and the scope of disciplinary proceedings in a departmental inquiry are quite distinct and exclusive and independent. (Para 21)

The learned single Judge has also failed to appreciate that the standard of proof required in the criminal proceedings and the departmental disciplinary actions are not the same. (para 22).

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24. In Cholan Roadways v. G. Thirugnansambandam 2005 1(LLJ) 569, Supreme Court observed as under:

It is further trite that the standard of proof required in a domestic inquiry vis-a-vis a criminal trial is absolutely different. Whereas in the former 'preponderance of probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is imperative.

25. In Commissioner of Police, New Delhi v. Narender Singh (2006) 4 SCC 265, the Supreme Court held:

It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceedings against him or to drop the same in the event an order of acquittal is passed.

26. Another argument which has been advanced by learned Counsel for the respondent is that the enquiry report given by the enquiry officer, does not give any reasoning and no effort was made to link any part of the evidence with the alleged misconduct. The report does not disclose analysis of the evidence and the findings. The findings of the enquiry officer were, therefore, perverse. The respondent relied upon 2004(102) FLR 154(Bombay) Association of Engineering v. Hindustan Motor and 1964(3) SCR 506 Khardah Co. Ltd. v. Their Workmen, wherein the Supreme Court observed that it is the duty of an enquiry officer in an industrial enquiry to record clearly and precisely his conclusions and briefly to indicate reasons therefore.

27. I have perused the enquiry report. A perusal of the enquiry report shows that the enquiry officer had recorded the entire sequence in which the enquiry was held and the witnesses were examined and the procedure which was followed by the enquiry officer. He also recorded the non cooperation of the delinquent employee and their representatives. After recording the details as to how enquiry was conducted, he observed that he had carefully examined the evidence and the statements recorded by him and after carefully going through the evidence, he found that the employees charged were involved directly in the incident of the assault. Although they were not directly involved in damage of the company car. This fact has been corroborated by the statements of witnesses and the statement of General Manager who was assaulted. He observed that even if the statement of General Manager was ignored, the statements of other witnesses namely Mr. B B. Kathuria, Mr. R. Thiruvanaswami and Mr. Kapoor, have corroborated the fact of assaulting the General Manager.

28. Although the enquiry officer had not reproduced the statements of witnesses in the enquiry report but the enquiry report shows that he had analyzed the statements of witnesses and arrived at a conclusion after Page 0321 analyzing the statements of witnesses and gave finding that there was sufficient corroboration of the incident by other witnesses. It has to be kept in mind that the enquiry officer is not a judicial officer who is well-versed in judgment writing. The enquiry officer was a layman as far as judgment writing is concerned and the enquiry officer gave report in his own way and a pattern of judgment writing was not followed. What is required is that the enquiry officer, should give his report on the basis of the evidence and the facts brought on record, after analyzing the evidence. A perusal of the enquiry report shows that the enquiry officer had found corroborative evidence as well as direct evidence given by the person who was assaulted, sufficient to prove the charge against the workmen. His not reproducing the statements of witnesses in his report or not writing the report in a manner in which the judgment is written, will not vitiate the enquiry.

29. It is settled law that the decision arrived at in a disciplinary enquiry may not be same as arrived by the criminal court. The burden of proof required to establish the guilt in a criminal court, is not the same as required in disciplinary proceedings. The conclusion of the Labour Court was, therefore, perverse.

30. It is abundantly clear from the letters written by the respondent to the enquiry officer and to the management that the respondent was not interested in appearing before the enquiry officer. He had gone to the extent of writing to the enquiry officer that no further notices be written as the respondent was being represented by the workmen's union secretary and the secretary had been writing letters on behalf of the respondent as well as other workmen to the enquiry officer that they have boycotted the enquiry. In view of this boycott of the enquiry, the plea taken by the respondent that he had no opportunity to defend or that the proceedings were conducted in violation of principles of natural justice, is baseless. The refusal of the respondent to participate in the hearing of the proceedings, showed the intention of the respondent. Despite persistent refusal of the respondent, the enquiry officer had been writing letters to the respondent/workmen and in response to these letters, the only reply given to the enquiry officer was that he should not write such letters. Despite this, the enquiry officer's report was sent to the workmen/respondent, irrespective of the fact that he was confined to jail. It was served upon the respondent through Jail Suptd. The record shows that even in jail, the respondent refused to sign the acknowledgement of receiving the enquiry report. Such was the conduct of the respondent.

31. The counsel for the respondent has stated that there was no necessity of serving report on the respondent in jail. The respondent was handicapped in filing any reply from jail and serving the respondent in jail does not amount to grant of an opportunity to the respondent.

32. It was not known to the petitioner as to till what time the respondent was going to be in jail since the respondent was arrested in a case of ESMA. The respondent could have remained in jail for months together. There was no magic wand with the petitioner to know in advance that the respondent was going to be released on 24.7.1985. No fault can be Page 0322 found with the petitioner in serving a copy of the enquiry report on the respondent in jail and giving opportunity to the respondent to reply. However, the respondent has failed to show what prejudice was caused to the respondent in not serving report. The respondent, in any case, had boycotted the enquiry proceedings and the entire proceedings were ex parte because of the boycott of the respondent. The report was based on the findings recorded by the enquiry officer during this boycott. No prejudice was caused to the respondent serving the report in jail because the respondent's stand was categorical that he would not participate in the enquiry. I consider that supplying of a copy of the enquiry report by the enquiry officer to the respondent, who was in jail, does not amount to violation of principles of natural justice, nor it caused a prejudice to the respondent in defending himself.

33. In view of my above discussion, the award passed by the Tribunal is held perverse and liable to be set aside. I, therefore, set aside the award. The writ petition is allowed. No orders as to costs.