Delhi High Court
R.L.Moria vs Chairman-Cum-Managing Director ... on 14 May, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 14.05.2010
+ CWP No.7284/1999
R.L.MORIA ...Petitioner
Through: Mr.R.K. Singh & Ms.Deepa Rai,
Advocates.
Versus
CHAIRMAN-CUM-MANAGING DIRECTOR
IAL & ORS. ...Respondents
Through: Mr.Jayant Nath,Sr. Advocate with
Mr.Upender Thakur,
Mr.Amish Tandon, Advocates.
AND
CWP No.151/2005
R.L.MORIA ...Petitioner
Through: Mr.R.K. Singh & Ms.Deepa Rai,
Advocates.
Versus
CHAIRMAN-CUM-MANAGING DIRECTOR
NATIOIAL AVIATION COMPANY OF INDIA LTD.
...Respondent
Through: Mr.Lalit Bhasin,Ms.Ratna Dhingra
& Ms.Shreya Sharma, Advocates.
AND
CWP No.6576/2005
INDIAN AIRLINES LIMITED ...Petitioner
Through: Mr.Lalit Bhasin,Ms.Ratna Dhingra
& Ms.Shreya Sharma, Advocates.
Versus
UNION OF INDIA & ANR. ...Respondents
Through: Mr.R.K. Singh & Ms.Deepa Rai,
Advocates for R-2.
CWP Nos.7284/1999, 151/2005 & 6576/2005 Page 1 of 23
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. By this common order, I shall dispose of the following
three petitions:-
(i) CWP No.7284/1999 filed by the petitioner R.L.Moria
challenging the order of his dismissal dated 11.8.1999. This
writ petition had been disposed of on the first date of filing i.e.
on 6.12.1999 with direction to respondent to decide the
statutory appeal of the petitioner within eight weeks from the
said date; if the petitioner was aggrieved with the outcome of
the statutory appeal he would be at liberty to approach this
Court for the revival of the petition. Statutory appeal of the
petitioner was dismissed on 13.1.2000. The present writ
petition was revived on his application.
(ii) CWP.151/2005 filed by petitioner R.L.Moria challenging a
part i.e. para no.9 of the order passed by the National Industrial
Tribunal dated 20.8.2004 whereby on the application under
Section 33(2)(b) of the Industrial Disputes Act (hereinafter
referred to as "the said Act") filed by the employer, the National
Industrial Tribunal set aside the finding of the Enquiry Officer
dated 11.8.1999 and at the same time granted liberty to the
department to lead additional evidence.
(iii) CWP No.6576/2005 filed by the petitioner i.e. the Indian
Airlines impugning the order passed by the National Industrial
Tribunal dated 20.8.2004 whereby the findings of the Enquiry
Officer and the Appellate Court had been set aside; thereby
setting aside the order of dismissal of R.L.Moria on the ground
that there has been a violation of principles of natural justice
and the order is perverse. The contention of the petitioner
herein is that the scope of enquiry by the Tribunal under the
provisions of 33(2)(b) of the said Act is limited; it was not an
Appellate Court.
2. The facts of the case are as under:-
(i) Petitioner R.L.Moria had joined Indian Airlines as a
Daftary on 8.7.1963. At the relevant time he was working
in the store and supply department as a superintendent in
Grade 7/8.
(ii) On 10.3.1993 officials of the department of
Enforcement apprehended Sandeep Moria (son of the
petitioner), Anita Moria (daughter-in-law of the
petitioner), Umesh Bhatia and Sonu Shaskar, passengers
travelling on Interline Passage Facility of the company at
the IGI Airport.
(iii) On 19.3.1993 on a prima facie finding of the
involvement of the petitioner, the petitioner was
suspended. This suspension was subsequently revoked on
15.6.1994.
(iv) During this period i.e. between 1993-95 CBI
conducted an enquiry and in the course of the enquiry
interrogated various officials of the Indian Airlines.
Involvement of high officials in the racket of misuse of
free interline tickets was revealed. As per the procedure,
airline employees who are in Grade-17 or above and their
dependents coming within the ambit of „family‟ were
alone entitled to confirmed tickets with the Air India. A
list of such employees was maintained.
(v) Allegations against the petitioner were that he not
being in Grade-17 or above had represented himself as a
finance manager whereas he was only a store
superintendent and had procured interline tickets for his
two daughters-in-law namely Rakhee and Anita who did
not fall within the definition of „family‟.
(vi) On 18.10.1995 charge sheet was issued to the
petitioner. It was alleged that during the period
January,1993 to March 1993 R.L.Moria had through his
friend Mahesh Chandra Sahdev working in the Air India
had got processed four Indian Airlines Interline requests
in favour of Anita Moria and Rakhee Moria shown as his
daughters as also for his two sons Sandeep Kumar and
Vijay Kumar for the Delhi-Singapore-Bombay-Delhi
Sector. Further the petitioner not being in the category
of Grade-17 or above was not entitled to free confirmed
tickets of Air India; Anita Moria and Rakhee Moria were
his daughters-in-law who had been described as his
daughters.
(vii) Enquiry Officer submitted its report dated
18.10.1995. During the course of enquiry six witnesses
were examined by the department which included J.S.
Emanuel, Investigating Officer of the CBI and
M.C.Sahdev, Senior Officer in Air India. Cross-
examination of both these witnesses could not be
concluded. Petitioner was held guilty of misconduct
under Clause 16(3), 6(4) and 16(8) of the Rules &
Standing Orders applicable to him.
(viii) On 13.1.2000, the Appellate Authority endorsed the
findings of the Enquiry Officer and held that the order of
removal of the petitioner did not merit any change.
Appeal was dismissed.
(ix) The respondent filed an application under Section
33(2)(b) of the said Act before the National Industrial
Tribunal, Mumbai seeking approval of the findings of the
Enquiry Officer dated 11.8.1999 removing the petitioner
from service.
(x) The Tribunal vide its judgment dated 20.8.2004 set
aside the report of the Enquiry Officer on the ground of
the violation of principles of natural justice holding that
the findings of Enquiry Officer were perverse. The
company was granted opportunity to lead additional
evidence before the Tribunal.
3. This order of the National Industrial Tribunal dated
20.8.2004 has been assailed both by the employer and the
employee i.e. by the Indian Airlines as also R.L.Moria in two
separate writ petitions i.e.CWP No.6567/2005 filed by the
employer i.e. the Indian Airlines and CWP No.151/2005 filed by
the employee i.e. R.L.Moria.
4. R.L.Moria, the petitioner, (in his first writ petition i.e.
CWP No.7284/1999) had assailed his order of dismissal dated
11.8.1999; it was submitted that the findings of the Enquiry
Officer are violative of his fundamental rights guaranteed under
Articles 14 and 16 of the Constitution. The said disciplinary
proceedings are also vitiated by inordinate delay which was
solely for the purpose to destroy the evidence in the intervening
period in order that the petitioner does not get a fair
opportunity to defend himself; original documents had not been
produced; petitioner had been discriminated as similar
allegations of procuring N1 tickets had been leveled against
various other co-employees but none of them had been charge
sheeted; findings of the Enquiry Officer are perverse.
5. In the second writ petition CWP No.151/2005), petitioner
R.L.Moria had assailed para no.9 of the order of the National
Industrial Tribunal, Mumbai dated 20.8.2004 wherein the
company had been granted opportunity to adduce additional
evidence. It was submitted that the order of the Tribunal was
grossly violative of Articles 14, 16 and 21 of the Constitution.
The well established parameters to consider an application
under Section 33(2)(b) of the said Act had been given a go-by.
Tribunal had failed to consider as to whether the application
made by the management was bonafide or not; additional
evidence, if any, must be led by the management before the
proceedings are concluded under Section 33(2)(b) of the said
Act; claim to lead additional evidence cannot be granted as a
matter of right. The Tribunal had granted such leave to the
management in a mechanical fashion.
6. The management was also aggrieved by the impugned
order dated 20.8.2004 passed by National Industrial Tribunal.
In the writ petition CWP No.6576/2005) filed by the
management it was submitted that jurisdiction of the Tribunal
under the aforestated provision of law is narrow; evidence led
before the Enquiry Officer could not have been re-appreciated
and findings of the Enquiry Officer could not have been
substituted by the findings of the Tribunal; Tribunal was not
appellate forum. Tribunal had ignored the evidence led before
the Enquiry Officer i.e. the confessional statement made by
R.L.Moria; the confession has till date had not been retracted;
documentary evidence had also been overlooked; Tribunal had
failed to appreciate that the testimony of PW Emmanuel and PW
Sahdev could not be overlooked as their cross examination
could not be completed because of the fault of R.L. Moria
himself for which he could not take advantage. Vital evidence
had been ignored by the Tribunal in setting aside the order of
the Enquiry Officer.
7. Arguments have been heard in detail and counsel for both
the parties has led this court through the detailed reports i.e.
the report of the Enquiry Officer, the evidence led before him
both oral and documentary.
In his conclusion (on internal page no. 9) he had
concluded as follows:
"CONCLUSION
Based on the foregoing the following gets clearly
established: -
1. Shri R.L.Moria had asked for interline tickets in respect
of self and his two daughter-in-laws Mrs. Anita Moria
and Mrs. Rakhi Moria declaring them as daughters and
not as daughter-in-laws though he knew very well that
Mrs. Anita Moria and Mrs. Rakhi Moria were his
daughter-in-law and not daughters.
2. Shri R.L. Moria was aware that his daughter-in-law Mrs.
Anita Moria wife of Sh. Sandeep Moria was travelling to
Singapore on 10.03.1993 on the interline tickets which
was issued along with the tickets of the defendant and
Mrs. Rakhi Moria has other daughter-in-law.
3. Interline tickets in respect of Sh. Sandeep Kumar, Sh.
Umesh Bhatia, Mrs. Anita Moria and Mrs. Sonu Shahskar
were made on the basis of interline requests signed by
Sh. Baldev Kumar of IAL and approved by Mrs. G. Clair
of Air India after their processing by Shr. M.C. Sahdev of
Air India.
4. Shri Sandeep Kumar definitely give some interline
requests out of the four to Sh. M.C. Sahdev for issuance
of interline tickets.
5. Sh. M.C. Sahdev delivered some interline tickets which
included tickets of Mrs. Anita Moria, Mrs. Rakhi Moria
and Mr. R.L. Moria at the residence of Mr. R.L. Moria.
It could however not be established that
1. Sh. R.L.Moria introduced his son Sh. Sandeep Kumar to
Sh. M.C. Sahdev of Air India.
2. Shri R.L. Moria accompanied Sh. Sandeep Moria and
Anita Moria to the airport on 10.03.1993.
3. Sh. R.L. Moria or Sh. Sandeep Kumar arranged the
tickets of Sh. Umesh Bhatia and Mrs. Sonu Shashkar.
4. Sh. R.L. Moria was aware that the interline tickets were
made on the basis on reciprocal list of which he was not
entitled.
5. Sh. R.L. Moria was given some interline tickets at his
residence by Sh. M.C. Sahdev of Air India.
Shri R.L. Moria, therefore, knowingly obtained interline
tickets in respect of his two daughter-in-laws namely
Mrs. Anita Moria wife of Mr. Sandeep Moria and Mrs.
Rakhi Moria wife of Mr. Vijay Kumar wrongly declaring
them as his daughter. Out of these, Mrs. Anita Moria
tried to utilise the said ticket on 10.03.1993 and Shri
R.L. Moria was aware of this.
Charges levelled against Sh. R. L. Moria, Stores
and Supplies Supdt. Staff No. 277444, IAL, N.R. vide
chargesheet no. DSD/154/1204 dated 18.10.1995 stand
proved only to the extent stated above. Rest of the
changes levelled against him do not stand established."
8. Statutory appeal of the petitioner was dismissed vide
order dated 13.1.2000.
9. The National Industrial Tribunal, Mumbai set aside the
findings of the Enquiry Officer. Evidence of PW Emmanuel had been
discarded. On internal page no. 5 of the said judgment, it was inter
alia held as follows:
"It was rightly argued that in case the cross-examination
was not concluded the value of evidence of
J.S.Emmanuel, Inspector (CBI) was of no consequence.
In the opinion of this Tribunal the Enquiry Officer should
have refrained from considering the evidence of this
witness for any purpose. It was further pointed out that
at page 34 of enquiry proceeding on 16.9.1998 observed
as follows:
"I would new request you to proceed with the
cross-examination of Sh.Emmanuel taking the
certified copies as original. If originals are not
produced in the enquiry the same will not be
relied upon by me. You are also requested to
confine your cross-examination of Management
witness to his deposition in this enquiry".
"I once again request you to proceed with the
cross examination taking the certified copies as
originals till originals are shown to you before
conclusion of the enquiry. If however, originals
are not shown before conclusion of the enquiry the
same will not be relied upon. The reciprocal list
has been accepted as Management Exhibit and
marked ME."
Despite the above assertion original were not produced
by the witnesses and the Company. In view of this
matter too there was no effective cross-examination.
This Tribunal is of the view that the entire cross-
examination was of no consequence, as the original were
never produced. In view of this matter the evidence of
J.S.Emmanuel should have been rejected in toto.
However, the enquiry officers not only made in summary
of the evidence in his enquiry report but also considered
it for the purpose of recording the findings. Certainly
the principles of natural justice were violated."
10. The question which now arises for decision is whether the
Tribunal could have re-appreciated and gone into findings of the
Enquiry Officer in the manner in which it had done so in view of
the limited scope of the provisions of Section 33(2)(b) of the
said Act as has been contended by the learned counsel for the
management.
11. Learned counsel for the management has relied upon
Cholan Roadways Ltd. Vs. G. Thirugnanasambandam AIR 2005
SC 570 to substantiate her submission that the jurisdiction of
the Industrial Tribunal under Section 33 (2)(b) of the said Act is
a limited one. Reliance has been placed upon para 13 and para
15 of the said judgments which inter alia reads as follows:-
13. It is neither in doubt nor in dispute that the
jurisdiction of the Industrial Tribunal under Section
33(2)(b) of the Industrial Disputes Act is a limited one.
The jurisdiction of the Industrial Tribunal under Section
33(2)(b) cannot be equated with that of Section 10 of the
Industrial Disputes Act. In this case admittedly an
enquiry has been held wherein the parties examined
their witnesses.
..............................
15. It is now a well-settled principle of law that the
principle of evidence Act have no application in a
domestic enquiry."
It has further been held:
"A prima facie case does not mean a case proved to the
hilt but a case which can be said to be established if the
evidence which is led in support of the same were
believed. While determining whether a prima facie case
had been made out the relevant consideration is whether
on the evidence led it was possible to arrive at the
conclusion in question and not whether that was the only
conclusion which could be arrived at on that evidence. It
may be that the Tribunal considering this question may
itself have arrived at a different conclusion. It has,
however, not to substitute its own judgment for the
judgment in question. It has only got to consider whether
the view taken is a possible view on the evidence on the
record. (See Buckingham & Carnatic Co. Ltd. v. The
Workers of the Company (1952) LAC 490(F)."
12. In Bareilly Electricity Supply Company Ltd. v. The
Workmen and Others, AIR 1972 SC 330 MANU/SC/0501/1971,
it had inter alia been held as follows :
"Now it is no doubt true that the evidence of the Respondent
and his witnesses was not taken in the mode prescribed in the
Evidence Act; but that Act has no application to enquiries
conducted by Tribunal even though they may be judicial in
character. The law requires that such Tribunals should observe
rules of natural justice in the conduct of the enquiry and if they
do so their decision is not liable to be impeached on the ground
that the procedure followed was not in accordance with that
which obtains in a Court of law."
13. In the Martin Burn Ltd. v. R.N. Banerjee AIR 1958 SC 79,
MANU/SC/0081/1957, the Apex Court commenting on the
powers of the Tribunal under Section 33(2)(b) of the said Act
had inter alia held as follows:-
"While exercising jurisdiction under Section 33(2)(b) of
the Act, the Industrial Tribunal is required to see as to
whether a prima facie case has been made out as regards
the validity or otherwise of the domestic enquiry held
against the delinquent; keeping in view the fact that if the
permission or approval is granted, the order of discharge
or dismissal which may be passed against the delinquent
employee would be liable to be challenged in an
appropriate proceeding before the Industrial Tribunal in
terms of the provision of the Industrial Disputes Act."
14. Per contra, counsel for R.L.Moria has relied upon a
judgment of the Supreme Court reported as Karnataka State
Road Transport Corpn. v. Lakshmidevamma (2001) 5 SCC 433,
where the Constitution Bench of the Supreme Court had held
that the procedure laid down in the Shambhu Nath Goyal (1984)
1 SCR 85 is just and fair and requires no variations. It was
further held that the object of providing an opportunity to the
management to adduce evidence before the Tribunal/Labour
Court was an alternate plea for the management and not as an
admission of any illegality in its domestic enquiry; it was also of
advantage to the workmen inasmuch as they would be put to
notice of the fact that the management is likely to adduce fresh
evidence and hence they could keep their rebuttal and other
evidence ready.
It had been observed further :
But this should not be understood as placing fetters on
the powers of the court / tribunal requiring or directing
parties to lead additional evidence including production
of documents at any stage of the proceedings before they
are concluded if on facts and circumstances of the case it
is deemed just and necessary in the interest of justice."
15. Counsel for the petitioner has relied upon this proposition
to advance a submission that it was only till the stage when the
proceedings before the Tribunal were pending, could the
company be permitted to lead evidence and not after the
closure of the proceeding before the Tribunal. Attention has
been drawn to the orders of the Tribunal dated 05.03.2003,
25.04.2003, 13.06.2003, 25.07.2003 and 28.08.2003 wherein
time was sought by the management on all the aforenoted dates
to file their affidavit. On 08.04.2004 the management had made
a statement that they did not wish to lead any oral evidence. It
is submitted that the management having given up their right to
lead any evidence before the Tribunal and the judgment cited
supra also allowing the management to lead additional evidence
only till the time of closure of the proceeding before the
Tribunal, the order of the National Industrial Tribunal
permitting the management to lead additional evidence is illegal
not only in law but also on facts as it was the department itself
who had made a statement that they do not wish to lead any
oral evidence.
16. What necessarily follows is that when the Enquiry
Officer‟s report is a well considered document wherein he had
examined the evidence adduced before him and he has given
reasons in support of his final conclusion; it is not open to the
Industrial Tribunal to sit in appeal over the findings of such an
Enquiry Officer and to re-appreciate the evidence for itself. The
Tribunal cannot withhold its approval merely because it could
have arrived at different conclusion of facts by appreciation of
the same evidence. All that the Tribunal had to see was as to
whether the employer had conducted the enquiry fairly and the
action taken or proposed to be taken was bonafide and not due
to victimization or unfair labour practice. To that extent the
jurisdiction of the Tribunal is limited.
17. On this touchstone, the report of the Enquiry Officer has
to be viewed. Perusal of this report and order of the Tribunal
shows that the Tribunal had in fact exceeded its jurisdiction
while passing the impugned order dated 20.8.2004. The
Enquiry Officer has after giving a brief about the deposition of
the six prosecution witnesses and the three witnesses of the
defence, gone on to examine their testimony in the light of the
rival submissions made by the contending parties. No doubt the
cross-examination of J.S.Emmanuel, Investigating Officer of the
CBI and M.C.Sahdev, the Assistant Officer of Air India could not
be concluded in spite of several dates of examination. PW
J.S.Emmanuel had produced the record wherein in the course of
his investigation as the Investigating Officer of the CBI he had
recorded the statements of various witnesses. Material brought
out on record by him was unchallenged and not disputed by
R.L.Moria which only to that extent had been read and relied
upon by the Enquiry Officer. M.C.Sahdev had deposed before
the Enquiry Officer that the disputed four interline requests had
been brought to him by Sandeep Kumar (son of the petitioner);
further Sandeep Moria was well known to him. The petitioner
has also admitted that M.C.Sahdev was well known to him. This
fact had been disclosed by the petitioner in his disclosure
statement recorded on 15.4.1993 by PW S.L.Khanna, the
Vigilance Officer. The Enquiry Officer had also relied upon the
deposition of PW V.S.Nagar, PW Baldev Kumar to substantiate
the allegation that the petitioner at the relevant time was not in
Grade-17 or above entitling him to confirmed tickets on Air
India. Relevancy of each witness had been examined in detail
by the Enquiry Officer before he had given his concluded
findings on the last but one page of his enquiry report. The
boarding cards of flight A 1404 dated 10.3.1993 in respect of
Sandeep Kumar, Anita Moria and two other person Umesh
Bhatia and Sonu Shaskar had been proved as also the interline
register of Air India for the period 4.1.1993 to 12.3.1993. It
was also never disputed by the petitioner that his son Sandeep
Kumar and daughter-in-law Anita Moria were travelling on
these interline request tickets on 10.3.1993 to Singapore when
they were detained by the officers of the Enforcement
Directorate at the IGI Airport. Enquiry Officer had concluded
that Sandeep Kumar, Anita Moria, Umesh Bhatia and Sony
Shaskar had been issued tickets on the interline requests signed
by Baldev Kumar. Baldev Kumar had been examined as PW-5.
He had admitted his signatures on the four interline
authorizations. His version had been relied upon by Enquiry
Officer to that extent. Findings of the Enquiry Officer wherein
the five circumstances detailed therein stood established were
based on the evidence adduced before him both oral and
documentary and which he had examined in intrinsic and deep
detail.
18. The National Industrial Tribunal has also recorded a clear
finding that the workman had admittedly been given full
opportunity to cross-examine his witnesses before the Enquiry
Officer. The Tribunal had upset the findings of the Enquiry
Officer primarily premised on the ground that since the cross-
examination of J.S.Emmanuel had not been concluded it could
not be relied upon. The Apex Court has time and again held
that the strict rules of evidence are not applicable to enquiry
proceedings. Reliance by Enquiry Officer on the material
produced by PW J.S.Emmanuel was fair as it was not the case of
R.L.Moria that the materials on which the Enquiry Officer had
placed reliance were not genuine documents; his only grievance
being that only certified copies of the same had been produced
and not the originals. Certified copies of documents are also
admissible under the Evidence Act; merely because an
application for leading secondary evidence to prove certified
copies was not filed would not take away the genuineness of the
documents especially in view of the fact these documents were
in fact admitted documents and never disputed by the
petitioner. In these circumstances, the findings of the Tribunal
that since the original documents were not produced it
amounted to a violation of principles of natural justice is an
illegality and was an unwarranted and unjustifiable inference in
the findings of the Enquiry Officer. That apart the Enquiry
Officer had based his findings not only on the version of
J.S.Emmanuel but five other PWs who had also been examined
and cross-examined in depth and detail. In arriving at his
conclusion Enquiry Officer had relied upon the unrebutted
version of M.C.Sahdev which was to the effect that both the
petitioner namely R.L.Moria and his son Sandeep Moria were
well known to him. After processing the four interline letters on
the telephonic requests of R.L.Moria, these tickets were handed
over by him to R.L.Moria at his residence. The processing of
these tickets at the Air India level were done by PW Baldev
Kumar. Version of Baldev Kumar has also been relied upon by
Enquiry Officer to this extent. He had admitted his signature
on the interline request in respect of Sandeep Moria. It was
also an undisputed fact that Anita Moria was the daughter-in-
law of the petitioner and did not fit into the definition of „family‟
entitling her to free ticket; she had been described as a
daughter. She had admittedly been stopped on 10.3.1993 at the
IGI Airport by Enforcement Directorate when she along her
husband Sandeep Moria were boarding the flight from Delhi to
Singapore on the free interline requests. Baldev Kumar and
M.C. Sahdev working in the Air India and Indian Airlines were
colleagues of R.L.Moria; they had direct linkage of relationship
with Sandeep Moria. Who was the ultimate beneficiary of these
interline request tickets which had been issued to Sandeep
Moria and Anita Moria on which they had proceeded to travel
on 10.3.1993? It was R.L.Moria and his „family‟.
19. The statement made by the petitioner on 15.4.1994 and
recorded by PW S.L.Khanna wherein all these facts had been
admitted by the petitioner was also relied upon by the Enquiry
Officer. Submission of the counsel for R.L.Moria that this
statement was given under duress and pressure was considered
and rejected by the Enquiry Officer. This was the entire gamut
of the evidence considered and relied upon by the Enquiry
Officer. Enquiry Officer had considered all these aspects before
arriving at a finding of guilt holding the petitioner guilty of
misconduct. The findings of the Enquiry Officer could not be
said to be perverse; there was sufficient evidence both oral and
documentary before the Enquiry Officer to arrive at the
conclusion at which he had arrived. Tribunal has picked up
pieces of the evidence adduced before the Enquiry Officer to
arrive at an opposite finding which it could not have done so not
being an appellate forum. Well established principles and
guidelines that unless there has been a violation of principles of
natural justice and the findings of the Enquiry Officer are based
on no evidence or a basic manifest error resulting in a
perversity, the Tribunal should not substitute its own finding
had not been adhered to. Merely because two views are
possible, would be no ground to arrive at a contrary finding.
The Tribunal is not an appellate forum. The Tribunal could not
in these circumstances have acted as a court of appeal to
review and substitute its own judgment for that of the
management. It was also not the case where in these
circumstances no other reasonable man could have arrived at
the impugned finding.
20. Finding of the Tribunal in para no.9 granting opportunity
to the management to adduce additional evidence after its
closure is also erroneous conclusion. On 08.4.2004 a
categorical statement was made that the management does not
wish to lead any oral evidence. In these circumstances, the
Tribunal had greatly erred in granting such an opportunity to
the management.
21. In Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. &
Anr. AIR 1979 SC 1652 it was held that there is no such
obligatory duty of the Industrial Tribunal to call upon the
employer to adduce additional evidence. In this case
opportunities having been given to the management to adduce
such evidence which the management had categorically refused
the Tribunal could not have after closure of the case again
granted such an opportunity to the department. The order of
the Tribunal is faulty in this regard as well.
22. With regard to the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution the observations of the
Apex Court in the judgment reported as Sayed Yakoob v. K.S.
Radhakrishnan and Ors. AIR 1964 SC 477 are relevant, which
reads as under:
"In regard to a finding of fact recorded by the Tribunal a
writ of certiorari can be issued if it is shown that in
recording the said finding the Tribunal had erroneously
refused to admit admissible and material evidence or had
erroneously admitted inadmissible evidence which has
influenced the impugned finding."
23. The result of the aforestated discussion is that the writ
petition filed by the management CWP No.6576/2005 is
allowed; the impugned order of the National Tribunal dated
20.8.2004 is set aside.
24. CWP No.151/2005 filed by R.L.Moria challenging para
no.9 of the order dated 20.8.2004 of the National Industrial
Tribunal permitting the management to lead additional
evidence as a necessary corollary is also set aside.
25. CWP No.7284/1999 has been filed by R.L.Moria
challenging the order of dismissal dated 11.8.1999. This is the
only prayer made in this petition. While allowing the afore two
writ petitions and setting aside the order of the Tribunal dated
20.8.2004 the necessary corollary which flows is that the order
of dismissal of the petitioner dated 11.8.1999 passed by the
Enquiry Officer is restored; this order of dismissal had in fact
merged with the order of the Tribunal. 30. Counsel for the
petitioner has vehemently argued that in his grounds of appeal
he had challenged the order of dismissal as being
discriminatory; this finds mention in ground A. In para no.2 of
the petition, it is stated that the enquiry initiated against the
petitioner is an example of the victimization of an employee as
other similarly placed co-employees have been let off.
Attention have been drawn to the enquiry initiated by the CBI
and the major penalties recommended against other co-
employees also; it is submitted that the petitioner alone could
not have been picked up, discriminated and punished when
other persons who had also committed similar offences had
been let off. The department by charging the petitioner alone
has infringed the fundamental right of the petitioner under
Article 14.
26. This arguments has to be noted only to be rejected.
Reliance by the counsel for the petitioner on the judgment
reported as T.V.Choudhary with E.S. Reddi Vs. Chief Secretary,
Government of A.P. & Anr. (1987) 3SCC 258 is misplaced on its
facts. In that case sanction for prosecution had been sought
under Section 6(1)(a) of the Prevention of Corruption Act, 1947
against two persons; it had been argued that similarly placed
co-employees had not sought to be prosecuted; matter had been
adjourned; on the next date it had been informed that the co-
employees had also been suspended. Since that was the only
prayer sought in that writ petition it had been disposed of; there
was no finding by the Court that there have been any selective
suspensions or violation of Article 14. The second judgment
relied upon by the petitioner in Union of India Vs. Tejvir Singh
2002(TLS) 127133 is also distinct on its facts. In the said case a
joint enquiry had been held against six persons and all were
found guilty; the punishment by the disciplinary authority
against the petitioner in the said case was of removal from
service whereas other co-employees had only been imposed a
punishment of reduction of rank. The ratio of the said judgment
is inapplicable to the facts of the instant case.
27. Counsel for the petitioner has in the alternate also raised
a plea that the doctrine of desuetude is applicable to the facts of
the instant case. In Municipal Corporation for City of Pune &
Anr. Vs. Bharat Forge Co. Ltd. & Ors. (1995) 3 SCC 434, the
Supreme Court had held that this doctrine which necessarily
envisages that where a statute has been in disuse for a long
duration and instead a contrary practice has been put to use it
becomes a „dead letter‟; the fundamental right guaranteed
under Article 14 of the Constitution protects the prosecution
and punishment for the violation of a law which has become
such a „dead letter‟.
28. On behalf of R.L.Moria, it is submitted that in the instant
case the definition of „family‟ as has been engrafted in the
resolution of 1980 which had excluded a daughter-in-law had
become a dead letter; it has not been in use; a contrary practice
has been in use; all employees of the department had in fact
been using free interline request tickets for their daughters-in-
law; even though they did not come within the ambit of
definition of „family‟; the contrary practice had thus come into
operation; this doctrine protects prosecution and punishment of
the petitioner. It is pointed out that the CBI in its enquiry had
prima facie noted these irregularities. On a specific query put
to the counsel for the petitioner as to for how long this contrary
practice has been prevailing, he had no answer. Admittedly, this
offence had occurred in the year 1993. Enquiry had been
initiated and conducted by the CBI in the intervening period
between 1993 to 1995. What was the long duration and long
period of time when this definition of „family‟ came to be
expanded and started including a daughter-in-law could not be
answered or explained by the counsel.
29. This arguments has also to be noted only to be rejected.
30. Lord Mackay‟s views in Brown v. Magistrate of Edinburgh
1931 SLT 456,458 had held as follows:
"I hold it clear in law that desuetude requires for its
operation a very considerable period, not merely of
neglect, but of contrary usage of such a character as
practically to infer such completely established habit of
the community as to set up a counter law or establish a
quasi-repeal."
31. End result is that the order of dismissal dated 11.8.1999
qua the petitioner stands revived. Order of the Tribunal dated
20.8.2004 is set aside in toto. CWP No.7284/1999 is dismissed;
CWP No.151/2005 is allowed. CWP No.6576/1995 is allowed.
The aforestated petitions are disposed of in the above terms.
No order as to cost.
(INDERMEET KAUR)
JUDGE
MAY 14, 2010
nandan
