*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition No.18630 of 2010 %06.09.2011 # B.Satyanarayana ..Petitioner. Vs. $ Central Government Industrial Tribunal-cum-Labour Court, and others. ..Respondents. !Counsel for the petitioner : Sri N.Cheerala Prasad ^Counsel for the Respondents : Sri M.Ravindranath Reddy <Gist : >Head Note: ?Cases Referred: [1] (1988) 3 SCC 600 2 1994 sc 1074 3 (1985) 3 SCC 545 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.18630 of 2010 ORDER: The petitioner was employed as General Workman in the Hindustan Petroleum Corporation Limited, on 24.02.1988. A charge sheet was served upon him, on 23.04.2004, alleging acts of misconduct. The petitioner submitted reply, on 30.04.2004. Not satisfied with that, the Disciplinary Authority i.e. the 4th respondent herein, appointed an Enquiry Officer. A report was submitted on 14.05.2005, holding that the charges against the petitioner are proved. A copy of the report was furnished to the petitioner. He submitted his explanation/remarks on 13.06.2005. Taking the same into account, the 4th respondent passed order, dated 04.11.2005, imposing the punishment of discharge from the service of the Corporation. Feeling aggrieved by the order of discharge, the petitioner approached the Central Government Industrial Tribunal-cum-Labour Court, Hyderabad (for short ‘the Tribunal’), by filing industrial dispute in L.C.I.D.No.71 of 2006, under Section 2-A(2) of the Industrial Disputes Act, 1947. The Tribunal passed an award on 18.03.2010, dismissing the case. Hence, this writ petition. The petitioner contends that the charges framed against him were not proved and conclusions were arrived at on the basis of certain assumptions. He submits that the 4th respondent did not act objectively in appreciating the matter. He further submits that the punishment was imposed against him without following the procedure prescribed under clause 32(4)(b)(4) of the Standing Orders for Marketing Establishments (for short ‘Standing Orders’). On behalf of the respondents, a detailed counter-affidavit is filed. It is stated that the charges are framed against the petitioner and are held proved in the course of domestic enquiry. It is also stated that the petitioner was furnished a copy of the report of the Enquiry Officer and the objections raised by him were taken into account, before the punishment was imposed. He further submits that in view of the amendment to Article 311 of the Constitution of India, it is not mandatory to issue another show cause notice, indicating the proposed punishment. Sri N. Cheerala Prasad, learned counsel for the petitioner, submits that though a detailed enquiry was conducted in the matter, the findings on the charges are not supported by evidence. He contends that the Labour Court did not appreciate the contention of the petitioner that the show cause notice, as contemplated under the Standing Orders, was not issued as regards proposed punishment. Sri M.Ravindranath Reddy, learned Standing Counsel for the respondents, on the other hand, submits that not only a charge sheet was issued and a detailed domestic enquiry providing ample opportunity to the petitioner was conducted, but also the petitioner was given an opportunity to submit his explanation/remarks to the report of the Enquiry Officer. He contends that imposition of punishment is purely in the realm of the disciplinary authority and it is not obligatory to issue another notice, indicating the proposed the punishment. Disciplinary proceedings were initiated against the petitioner alleging certain acts of misconduct. It is not necessary to refer to the charges in detail. Departmental enquiry was conducted, wherein oral and documentary evidence was taken on record. The Enquiry Officer submitted a report holding that the charges framed against the petitioner are proved and a copy thereof was furnished to the petitioner. The explanation/remarks offered by the petitioner to the report were taken into account. Punishment of discharge from service was imposed. The Labour Court has undertaken a detailed discussion on various points urged by the petitioner and the respondents and passed an award upholding the order of punishment. Though extensive arguments are advanced, touching on the purport of the charges and findings thereon, this Court is not inclined to entertain the same. The Labour Court did not find any defect in the departmental enquiry, and the findings on the charges were also affirmed. This Court cannot sit as an appellate authority over the findings arrived at by the Enquiry Officer, acceptance of the same by the disciplinary authority or re-appreciation of the matter or upon the views expressed by the Labour Court. The only area of controversy as to whether the 4th respondent was under obligation to issue a show cause notice indicating the punishment, which he proposed to inflict. Though the service in the 2nd respondent- Corporation cannot be equated to the civil service to which Article 311 of the Constitution of India applies, the principle underlying therein can not only be applied, but also are being followed by the respondents themselves. Before the article came to be amended through 42nd amendment, an obligation was placed upon the Government/employer to issue second show cause notice, after the enquiry is completed. As observed by the Supreme Court in Kailash Chander Asthana v. State of U.P.[1] and various other judgments, the second show cause notice has two purposes to serve. The first is that a copy of the report of the Enquiry Officer must be furnished enabling the employee to offer his remarks and the second is that the proposed punishment is informed to the employee, so that he can submit his explanation about it. With the deletion of the provision that mandates service of second show cause notice, the State and its instrumentalities felt that punishment can straight away be imposed, once the Enquiry Officer submitted his report. Neither the copy of it was furnished to the employees, nor the proposed punishment was indicated. After reviewing the law on this subject, a Constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderavad v. B.Karunakar[2], held that though it may not be obligatory to issue a notice indicating the proposed punishment, furnishing of copy of the report of Enquiry Officer is mandatory. To that extent, the requirement under law can be said to have been satisfied by the respondents, since the copy of the report was furnished and the explanation submitted thereto by the petitioner was taken into account, before the impugned order was passed. The matter, however, does not rest at that. In case there do not exist any independent service rules or regulations for an organisation and the disciplinary matter is dealt with strictly on the touchstone of Article 311 of the Constitution of India, the necessity to issue a notice indicating the punishment, does not arise. That would be so where the rules are framed and they are silent on this aspect. Where, however, the rules independently provide for issuance of a notice proposing punishment, the employer cannot avoid its liability to comply with the same, by taking the plea under amendment to Article 311 of the Constitution of India. In the instant case, the Standing Orders issued by the 2nd respondent prescribe a detailed procedure to be followed in the disciplinary proceedings. Clause 32 thereof deals with the manner in which punishment can be imposed for the acts of misconduct. It is necessary to extract relevant paragraphs of Clause 32: “(4) If on the conclusion of the inquiry, or, as the case may be, of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered after giving the workman concerned a reasonable opportunity of making representation on the penalty proposed, that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice; disciplinary authority shall pass an order accordingly. (5) If on the conclusion of the inquiry, or las the case may be, of the criminal proceedings, the workman has been found to be not guilty of any of the charges framed against him, he shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been placed under suspension after deducting the subsistence allowance paid to him for such period. (6) In awarding punishment under this Standing Order, disciplinary authority shall take into account gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist. A copy of order passed by the disciplinary authority shall be supplied to the workman concerned. ” From this, it is clear that an obligation is imposed upon the Corporation to give a reasonable opportunity to an employee to make a representation on the “penalty proposed”. It is only after giving such opportunity, that the punishment, which the employer feels appropriate, can be imposed. The purpose underlying this cannot be achieved with a simple act of furnishing of copy of the Enquiry Officer’s report. The obligation is created under the rule, which is independent of the act of furnishing copy of the report. When the corporation has recognised such an obligation for itself, it cannot avoid. As observed earlier, in the absence of this provision, the petitioner could not have compelled the respondents to provide him an opportunity to explain on the “penalty proposed”. Though Article 311 of the Constitution of India, as it stands now, does not require an employer to provide an opportunity of this nature, it does not prohibit an employer, if he voluntaries to provide the same. The clause providing for an opportunity to an employee against the proposed punishment, has its own purpose to serve. That is made clear in para 6 of the Clause. Once the charges are held proved and the employee is not able to demonstrate that the findings of the Enquiry Officer are not perverse, the stage shifts to the one of imposing the punishment. It hardly needs emphasis that the punishment can be imposed against an employee must be commensurate with the acts of misconduct found against him. If a punishment of very serious nature is proposed, for a proven act of misconduct, it is not so serious, the employee may be able to convince the disciplinary authority that even if the misconduct is proved, the disproportionate punishment cannot be imposed. It is here that the statements of fairness, reasonableness and non-arbitrariness play role. Further, if the conduct of the petitioner throughout his service was clean, if not meritorious, he may plead that as extenuating circumstance. In a given case that may appeal to the employer also and he may strike a decent balance between the necessity to impose punishment, and the need to reciprocate for the past conduct of the employee. All this will be possible, if only an opportunity is given to explain duly indicating the proposed punishment. At the cost of repetition, it is to be noted that this requirement cannot be insisted independently, but only when a provision exists therefor. Since such a provision exists in the standing orders of the respondents, they are under obligation to follow it. Admittedly, the respondents did not inform the petitioner about the proposed punishment, much less an opportunity was given to him. Therefore, the impugned order is in violation of Clause 32 of the Standing Orders. It is true that in Karunakar’s case, (2 supra), the Hon’ble Supreme Court held that it is only when prejudice is found to have been caused to an employee on account of non-furnishing of report of the Enquiry Officer, that the order of punishment can be set aide and that in such an event, the proceedings must be resumed from the stage of furnishing of the report. In the instant case, the ground on which the order is liable to be set aside is that the petitioner was not given opportunity about the proposed punishment. The necessity to examine whether any prejudice was caused to him does not arise. The reason is that the requirement under the rule is mandatory and the Court need not examine whether the petitioner could have any plausible explanation, in case opportunity was given to explain about the proposed punishment. In Olga Tellis v. Bombay Municipal Corporation[3], the Supreme Court held that the fact that the recipient of a show cause notice may not have any plausible explanation cannot be a ground to deny the notice. The next question is as to the nature of relief granted to the petitioner. The impugned order no doubt, is liable to be set aside. That, however, must not result in drawal of curtain on the entire issue. Following the decision in Karunakar’s case (2 supra), the proceedings must be resumed from the stage of issuance of notice proposing punishment. Therefore, the writ petition is allowed and the impugned order is set aside. The 4th respondent is directed to issue a notice to the petitioner indicating the proposed punishment and give him an opportunity to submit his explanation and pass orders thereafter. This exercise shall be completed within a period of two months from today and till then, the petitioner shall be deemed to be under suspension. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:06.09.2011 L.R. copy to be marked. GJ [1] (1988) 3 SCC 600 [2] 1994 sc 1074 [3] (1985) 3 SCC 545