Delhi High Court
Madho Singh vs M/S Super Bazar The Co-Operative ... on 23 August, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23.08.2017
+ LPA 604/2016 & CM No.40875/2016
MADHO SINGH ..... Appellant
Through: Mr. Anuj Aggarwal and Ms. Aarushi
Agarwal, Advs.
versus
M/S SUPER BAZAR THE CO-OPERATIVE STORE LTD
..... Respondent
Through: Ms. Monika Garg, Adv.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUNIL GAUR
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The appellant is aggrieved by a judgment of the learned Single Judge
who had rejected his petition under Article 226 of the Constitution of India
and upheld the award of the Labour Court dated 26.10.2015 heard upon a
reference. The decision was preceded by an order dated 07.10.2015, on a
preliminary issue as to whether the inquiry conducted before the appellant's
dismissal was in accordance with the principles of natural justice.
2. The appellant was charge sheeted for a misconduct i.e. allegation of
theft and subsequently found guilty of the charges. His grievance - which
formed the subject matter of the reference in the Labour Court was that the
management did not, before removing him from service vide order dated
06.07.1992, supply him with a copy of the enquiry report that had held the
charges to have been proved. Apparently, the enquiry report and the
removal order were served together upon him. The appellant's complaint of
violation of principles of natural justice was on two accounts i.e. failure to
give sufficient opportunity by way of engaging a defense assistant and the
substantive part of denial of natural justice on account of failure to supply
the enquiry report. It was urged that if the enquiry report had been
furnished, the appellant could have possibly pursued the management either
not to award the penalty of removal, or award a lesser penalty.
3. Both the Labour Court and the learned Single Judge concurrently
have held that the complaint with respect to denial of natural justice is
unfounded.
4. It is argued on behalf of the appellant that the grievance with respect
to omission to supply the copy of the enquiry report had been made from
inception and even taken in the appeal. The learned counsel took the Court
through the contents of the appeal made to the concerned authority of the
Super Bazar where the workman/appellant had clearly complained that
opportunity of representation against the removal order had not been given.
It was urged furthermore that the rulings in Union of India v. Mohd. Ramzan
Khan (1991) 1 SCC 588 and Managing Director, ECIL, Hyderabad & Ors.
v. B. Karunakar & Ors. (1993) 4 SCC 727 are clear that where a domestic
inquiry is held, the delinquent employee has to be furnished with the adverse
report before an adverse disciplinary order is made and that if this procedure
is not followed, the principles of natural justice are deemed to have been
violated. Learned counsel for the Official Liquidator submitted that the
appellant was in the know about the enquiry report as can be inferred from
the appeal where he did not take a clear position about the non-supply of the
report (since the Super Bazar has since been directed to be wound up).
Learned counsel urges that the appellant/workman was in the know about
the contents of the enquiry report as is evident from the appeal itself and that
the latter does not articulate a specific grievance with respect to the
document not being furnished. The judgment in B. Karunakar (supra) states
as follows:
"30. Hence the incidental questions raised above may be
answered as follows:
[i] xxxx xxxx xxxx
[ii] xxxx xxxx xxxx
[iii] xxxx xxxx xxxx
[iv] In the view that we have taken, viz., that the right to make
representation to the disciplinary authority against the findings
recorded in the enquiry report is an integral part of the
opportunity of defence against the charges and is a breach of
principles of natural justice to deny the said right, it is only
appropriate that the law laid down in Mohd. Ramzan case
should apply to employees in all establishments whether
Government or non-Government, public or private. This will
be the case whether there are rules governing the disciplinary
proceeding or not and whether they expressly prohibit the
furnishing of the copy of the report or are silent on the subject.
Whatever the nature of punishment, further, whenever the rules
require an inquiry to be held, for inflicting the punishment in
question, the delinquent employee should have the benefit of the
report of the enquiry officer before the disciplinary authority
records its findings on the charges levelled against him. Hence
question (iv) is answered accordingly."
B. Karunakar (supra) also specifically held, that inquiries and adverse
disciplinary orders made prior to the decision in Mohd. Ramzan Khan
(supra) i.e. on 20.11.1990 were immune from challenge. B. Karunakar
(supra) states as follows:
"43. xxxx xxxx xxxx xxxx
It will, therefore, have to be held that notwithstanding the
decision of the Gujarat High Court in N.N. Prajapati case and
of the Central Administrative Tribunal in Premnath K. Sharma
case and of the other courts and tribunals, the law was in an
unsettled condition till at least November 20, 1990 on which
day the Mohd. Ramzan Khan case was decided. Since the said
decision made the law expressly prospective in operation the
law laid down there will apply only to those orders of
punishment which are passed by the disciplinary authority after
20.11.1990."
5. From the above, it is apparent that in all inquiries concluded after
20.11.1990, the report had to be mandatorily furnished to the delinquent
officer or employee. This was based upon the salutary principle that
regardless of the demand of the employee for access to the report, this
principle was based on public policy that one facing proceedings likely to
adversely impact him should be made aware of the tentative findings to
enable him to impugn them or make his representation. In the present case,
the findings of the enquiry report were reported to the management, on
06.07.1992. It appears that the order of removal was made simultaneously
and both the enquiry report as well as the removal order was supplied to the
delinquent employee i.e. the appellant. Thus, the employee was denied the
opportunity of representing against the management to possibly secure a
lighter penalty. In these circumstances, this Court has no manner of doubt
that the principles of natural justice, recognized as such to be part of the law
of the land were violated.
6. The question then is what relief should be granted having regard to
the circumstances of the case. The original management i.e. Super Bazar
Cooperative Store Ltd., was directed to be wound up in July, 2002. It was
thereafter sought to be revived when a new management was given charge.
Subsequently, that management withdrew from the affairs of the Super
Bazar. In these circumstances, the Store faces liquidation and is represented
by the Liquidator. Having regard to all these circumstances and the passage
of time, it would be appropriate that the appellant's right to entire back
wages may be justified.
7. This Court hereby declares that the appellant is entitled to three years
back wages calculated on the basis of the average annual emoluments that
he would have drawn for the period 1992-2002. In the event of the Super
Bazar being revived in any manner whatsoever, it is open to its management
to take the proceedings further, to the logical extent and pass appropriate
orders in accordance with law after giving notice to the appellant to make
his representation. The impugned order of removal as well as the award of
the Labour Court and the Single Judge are hereby set aside.
The appeal is allowed on the above terms with no order as to costs.
S. RAVINDRA BHAT, J
SUNIL GAUR, J
AUGUST 23, 2017
kks
