Telangana High Court

S. Venkatachary S/. Rajarajm vs The Karimnagar Addilabad Milk ... on 14 February, 2022

Bench: Satish Chandra Sharma, Abhinand Kumar Shavili

     THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                             AND
          THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                        WRIT APPEAL No.995 OF 2007

JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)

          The present writ appeal is arising out of the order dated

03.10.2007 passed by the learned Single Judge in W.P.No.27472 of

2005.

          The undisputed facts of the case reveal that on account of

misconduct, a departmental enquiry took place against the

appellant. The appellant has approached the Industrial Tribunal

by filing I.D.No.90 of 2003 under Section 2-A(2) of the Industrial

Disputes Act, 1947.              The Industrial Tribunal, as enquiry report

was not furnished to the employee, has passed an award dated

19.07.2005 setting aside the order of punishment and directing

reinstatement without back wages. The respondent No.1 in the

present writ appeal has challenged the aforesaid award by filing

W.P.No.27472 of 2005 before this Court. The learned Single

Judge, keeping in view the judgment delivered by the Hon'ble

Supreme Court in the case of Managing Director, ECIL,

Hyderabad vs. B. Karunakar1, has allowed the writ petition with a

direction to the Tribunal to decide the matter on merits afresh.

The operative portion of the aforesaid order, as contained in

paragraphs 11 and 12, is reproduced as under:-

11. The fallacy in the argument of Sri Jaya Prakash Rao, is exposed by question No.(iv) framed as extracted supra and answered by the Supreme Court in para 30 (iv) of the judgment. It was categorically held that the said ratio would apply to all employees of all establishments whether Government or non- Government, public or private. In the face of this categorical finding of the Constitution Bench there is no room for any argument that the observations made in para 31 of the judgment

(1993) 4 SCC 727

in Managing Director, ECIL, Hyderabad (supra) do not apply to industrial disputes. The judgments relied upon by Sri A.K.Jaya Prakash Rao in Y.Somaiah V. Managing Director, APSRTC, Musheerabad, Hyderabad and others (1998 (4) ALD 2); Delhi Cloth and General Mills Co., Ltd., V. Ludh Budh Singh (1972 (1) LLJ 180); State of Maharashtra V. Bhaishankar Avalram Joshi and another (Air 1969 SC 1302) and State of Gujarat V. R.G.Teredesai and another (AIR 1969 SC 1294) have absolutely no application to the issue involved in the present case. Except first of the referred judgments which is of this Court, all other judgments were rendered prior to the Constitution Bench Judgment of the Supreme Court in Managing Director, ECIL, Hyderabad (supra) and therefore they have no relevance on the issue whether non-supply of enquiry report per se vitiates the order passed against the employee or not. The judgment of this Court in Y.Somaiah (supra) though later in point of time does not help the respondent as this neither fell for consideration nor discussed. Therefore, this contention of the learned counsel for the petitioner is rejected as wholly baseless.

12. For the aforementioned reasons the award under challenge is set aside. The matter is remanded to the Tribunal to follow the procedure laid down in para 31 of the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad (supra) and decide the case afresh on merits. It is open to the petitioner and respondent No.2 to raise respective contentions on the effect of non-supply of enquiry report and the validity or otherwise of the domestic enquiry by adducing necessary evidence. No costs."

This Court has carefully gone through the judgment

delivered in the case of Managing Director, ECIL, Hyderabad

(supra). In the present case, it is certainly true that the enquiry

report was not furnished to the writ appellant/employee. The

Hon'ble Supreme Court in the case of Uttarakhand Transport

Corporation vs. Sukhveer Singh2 has again dealt with similar

controversy and paragraphs 7 to 10 of the aforesaid judgment read

as under:-

"7. The award of the labour court was set aside by the High Court on the sole ground that non-supply of the inquiry report prior to the show cause notice vitiated the disciplinary proceedings. The High Court, in our opinion, committed an error in its interpretation of the judgment in ECIL vs. B. Karunakar (1993) 4 SCC 727). It is no doubt true that this Court in the said judgment held that a delinquent employee has a right to receive the report of the inquiry officer before the disciplinary authority takes a decision regarding his guilt or innocence. Denial of a reasonable opportunity to the employee by not furnishing the inquiry report before such decision on the charges was found to be in violation of principles of natural justice. In the instant case, the disciplinary authority communicated the report of the inquiry officer to the Respondent along with the show cause notice. There is no dispute that the Respondent submitted his reply to the

(2018) 1 SCC 231

show cause notice after receiving the report of the inquiry officer.

On considering the explanation submitted by the Respondent, the disciplinary authority passed an order of dismissal. Though, it was necessary for the Appellants to have supplied the report of the inquiry officer before issuance of the show cause notice proposing penalty, we find no reason to hold that the Respondent was prejudiced by supply of the inquiry officer's report along with the show cause notice. This is not a case where the delinquent was handicapped due to the inquiry officer's report not being furnished to him at all.

8. In ECIL vs. B. Karunakar (supra) this Court, while considering the effect on the order of punishment when the report of the inquiry officer was not furnished to the employee and the relief to which the delinquent employee is entitled, held as under:

"30.... [v] ........When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions.

Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.

9. The question of the relief to be granted in cases where the report of the inquiry officer was not supplied to the delinquent employee came up for consideration of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja ((2008) 9 SCC 31) in which it was held as follows:

"21. From the ratio laid down in B.Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If

he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside. (emphasis in original)"

After a detailed examination of the law on the subject, this Court concluded as follows:

"44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show "prejudice". Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down."

10. It is clear from the above that mere non-supply of the inquiry report does not automatically warrant re-instatement of the delinquent employee. It is incumbent upon on the delinquent employee to plead and prove that he suffered a serious prejudice due to the non-supply of the inquiry report. We have examined the writ petition filed by the Respondent and we find no pleading regarding any prejudice caused to the Respondent by the non- supply of the inquiry report prior to the issuance of the show cause notice. The Respondent had ample opportunity to submit his version after perusing the report of the inquiry officer. The Respondent utilised the opportunity of placing his response to the inquiry report before the disciplinary authority. The High Court committed an error in allowing the writ petition filed by the Respondent without examining whether any prejudice was caused to the delinquent employee by the supply of the inquiry officer's report along with the show cause notice. We are satisfied that there was no prejudice caused to the respondent by the supply of the report of the inquiry officer along with the show cause notice. Hence, no useful purpose will be served by a remand to the court below to examine the point of prejudice."

In the light of the aforesaid judgment, this Court is of the

opinion that the order passed by the learned Single Judge

remanding the matter to the Tribunal does not warrant

interference.

The Tribunal has set aside the punishment order directing

reinstatement of the workman solely on the ground that the

enquiry report was not supplied to the workman. The judgment of

the Apex Court in the aforesaid case makes it very clear that mere

non-supply of enquiry report does not automatically entitle the

workman for reinstatement and the workman has to establish that

serious prejudice is caused on account of non-supply of enquiry

report.