•K^Ss^WS M IMS.^3^. i£MISZJM^^^y^ j£JASALFUH(M.P.) ^.?. ND._3l^_of 19N'. i§c|3 Petjtjoner:- QftJWM^ THAWArT, Agei about 45 Y^%rs, Son of Dr. D.p. Thawait, &/©Dayalbund, Near Gurudwara-Dayalburad, Tahsil and Dlstrict gilas©urCM.P.) Versus Respondentsi" ,?'!• Bharat £arth iitovers* Ltd<, (A Govt. of Inaia UndertaicinQ) Through its Managin^ Director, Soudha, 23/1, 4th Main, S.R. Na@ar, ^n®alore-56©©27< 2. The Director(Marketin@) Bharat Earth I^>vers Ltd. , Soudha, 23/1, 4th Main, S.R. Na^ar, @aILIalor.e-56©O27. 3. The Mana^lng Director, ^ ' Bnarat Earth-!fcvers Ltd. , Soudna, 23/1, 4th Main, S.R. Ns@=r, Bangalore-560 ©27, .^4» The Re^ional Mana^er, Bharat £arth Movers Ltd., Siriiitti, BIL^^URCM.P .) , Petitioo U/A 226/227 of th e Gonstltution of India fox issuance of feit of Certiorari, Order or Direction in the nature of :it of'Mandamus/Quo »rranto Etc. J^ .4^^ ^r ^\ HIGH COURT OF CHHATTISGARH. ftILASPUR W.P. No.388 of 1999 Gajanand Thawait Vs. Bharat EarfhMovers Limited and others JHDGMBNT Postfor /4.08.2005 Sd/- Sunil Kumar Sinha Judge Afef HIGH COURT OF CHHATTISQARH. BILASPUR W.P. No.388 of 1999 Gajanaad Thawait Vs. Bharat Earth Movers Lunited aad ofhers Shri H.B. Agrawal, Sr. Advocate wifh Ku.Saageeta Mishra, couiisel for fhe petitioner, Shri P.S. Koshy, coiuisel for fhe rcspondents. JUDGMBNT (j (,.8.2005) Sunjl KunuM Sinlia»J^ (1) By way bffhis writ petition, fhe petitioner has chaUenged fhe legality of punishment order dated 29.9.1992 passed by fhe discipUnaxy authority, whereby the petitioner was renioved fromi fhe services under clause 22.2 (iii) of titie standiag orders of the respondent-Coinpariy. He has also chaUenged fhe vatidity of appellate order dated 16.10,1998 passed by the appeUate aufhority on an appeal filed by the petitioner against fhe aforesaid punishment imposed m fhe departmental enquiry. (2) The brief facts are fhat the petitioner was workmg as Store Clerk ia Bharat Earfh Movers Linuted, hereiaafter referred to as fhe BEML, which is a Govemment of India Undertakmg, ia its sendce center at Singitti, Bilaspiir. He was served wifh a charge sheet dated 10.10.1991 aUeging that on 04.10.1991 at about 5 a,m., he was caught by fhe PoUce ia Bilaspur, alongwifh certaia 2- sparc parts belongbig to B.E.M.L. Stores being carried away by him unauthorisedly. It was furfher aUeged fhat due to fhe said act, fhe petitioner was taken into custody until he was released on bail and a cnniinal case was registered agaiast fhe petitioner for fhe charges of theft, The spare parts, carried by the petitioner were identified by the B.E.M.L. ojSScers. It was also aUeged fhat fhe petitioner was haviag no authonty to carry fhese articles nor any pemussion was graated to him to cany fhese spare parts finom B.E.M.L, Stores, Bilaspiir and fhe above act of the petitioner amoiinted to misconduct under Clause 21.39 of the Standiag Order of the Company aad for fhis, a reply was sought fix)m him. (3) The petitioner filed his reply pleadiag his mnocence aiid chattengmg the validity of fhe charge sheet on certsdn groimds. Thereafter, he also chaUenged its validity in M.P.No. 1249/1992 before fhe High Court of Madhya Pradesh, Jabalpur on the grounds that the charge sheet was not issued in prescribed format acid fhe naxnes ofwitnesses who would prove fhe charge ofafleged fheft have not been disclosed, fhe spare parts aUeged to have been stolen are not specified, the period aad time when fhe said fheft took place arc also not inentioned, therefore, fhe charges are vague aad no punishnient on fhe basis of fhe said charges can be awarded to him. The Division Bench of the M.P, High Court disposed of fhe aforesaid petitfon on 16.04,1992 by passing an order fhat fhe Company shall first issue a charge sheet m fhe prescribed format wifh aU necessaiy docuxnents and Ust of -3- witnesses to the petitioner aud fhen shall proceeded wifh fhe euquiiy. (4) Thereafter aaother charge sheet was issued to the petitioner on 03rd ofJiuie 1992. This was a detailed charge sheet containiag 4 charges giving pardculars of iteias niissirig fix>in fhe stores aiid also fhe articles said to have been stolen and foiind ia possession of fhe petitioner by fhe poUce on 05.10.1991. The chorge sheet further iacludes the list of fhe docuxnents to be reUed upon by fhe management and fhe Ust of fhe witaesses to be produced for proviag the charges. A reply was jfiled by fhe petitioner aad fhereafter aa enquiiy committee was apjx>mted and fhe petitioner was also asked to take fhe assistaiice ofa co-worker ia fhe enquiry proceedings proposed to be conducted agaiast him. This was conununicated to fhe petitioner vide letter dated 14.7,1992. (5) After receiviag fhe aforesaid comiEiurdcation, fhe ^titioner inoved aa application dated 22.7.1992 (Annexure P-7) demaadiag certaia dociuaents for the piirpose ofhis defence. In addition to it, he also prayed for appoiatinent of one Shri R.P. Singh, Assistaat Grade-I (M), Food Corporation of India, Bilaspiir, as the defence assistaat to assist him ia the departaiental enquiry before fhe Committee. Later on he further gave a remiader dated 29.7,1992 (Annexure P-8), repeating fhe saale prayer for appoiatoEnent ofsaid Shri R.P. Siagh as his defence assistant Theneafter, anofher appUcation dated 29.7.1992 (Annexure P-9) was filed by the petitioner laakiag atlegations fhat siace fhe documents demianded by him were not suppUed to him he woidd not be able to cross '-} 4-. examine fhe inanagemient witnesses, fherefore, the enquiry be adjoumed in fhe interest of justice. However, fhe enquiry coitmienced aad fhe prayer for supply ofthese docuxnents aad also for appoiatoaaent of Shri R.P. Singh of fhe F.C.I. werc dMatlowed. During the course of enquuy, firstly on 29.7.1992, the maaagement exammed Shri P. Pavana Murfhy^ Semor Maaager (Stores) and Shri D, Umiesh Bhatt, Assistaat Maaager. The petitioner atleges fhat dunng the cross examination ofShri Pavana Murthy, fhe petitioner asked certain questions bemg relevaat to the facts io. issue, but fhe questions so asked by the petitioner were disaUowed by fhe Committee in arbitraiy manner. The petitioner submits fhat ia fhe said situation he filed aa appUcation dated 29.7.1992 (Annexure P-10) but the same was also disallowed. Beiag a^rieved wifh fhe aforesaid action of fhie enquiry coianuttee, fhe petitioner fhercafier did not participate ia fhe proceediags ofthe entire enquiry. It appears fhat on 30.7. 1992 when fhe petitioner did not tuni up to the proceedings of the enquiry, he was proceeded ex-parte and ofher two witaesses who were not Usted were proposed, aUowed aad exammed behind fhe back of fhe petitioner and ultimatety fhe enquiry report was submitfeed on 13.8.1992, The petitionerwas held guflty ofcharges ofmisconduct irnder clause 21.39 offhe cerdfied standing order. (6) Concumng wifh the fmdiags rccorded by fhe enquiry coinmittee, fhe disciplfcaaiy aufhority served fhe petitioiier wifh a notice ofproposed piinishnient on 28,8, 1992 which was repUed by fhe petitioner on 15.9.1992. The disciplmary aufhority fhereafiber ^^^ 5 passed fhe im.pugned order of punishiDient on 29.9.1992. Agaiast the aforesaid orders passed by the disciplmary aufhority, fhe petitioner fiiled aii appeal beforc the appellate authonty but when fhe aforesaid appeal was not decided for a long period, a writ petition had tobe filed by the petitioner before fhe M.P. High Court ia which aa order dated 23.3.1998 was passed and a direction was issued to fhe appellate aufhority to take a decision on fhe pendiag appeal of fhe petitioner wifhia aa outer linut of 3 inonfhs finom fhe date of receipt of copy of fhis order. Afiter passiag of the said order, fhe appeUate aufhority decided fhe appeal of the petitioner by aa order dated 16. 10.1998. It is agamst fhese onlers of the disciplinary autihiority as weU as fhe appellate aufhority, the petitioner has filed this writ petition. (7( Leanied counsel for fhe petitioner subudts fhat the order of the discipUnary aufhority vitiates as fhe saaie has been passed on fhe basis of an enquiry report ia which fbe petitioner was not afforded due opportunity of hearing and fhe enquiry was conducted ia utmost violation of fundamental principles of natural justice. He xaises fhe foUowing: pomte f (1) The copies ofrelevaat docuiaents demanded by the petitioner were not suppUed to him ; (2) Shri R.P.Singh, of Food Corporation of India, who was proposed to be appoiated as fhe defence assistaat ofthe petitioner was not appoiated by the Conunittee; (3) The various iinportant questions were disallowed by fhe committee whfle cross exammation of fhe witaess namety P,Pavaaa Murthy ; —fi" (4) For aU. fhese reasons fhe petitioner did not participate in fhe further proceediags of fhe enquiry and he could not cross exaimne fhe ofher wittiesses exaDoined by fhe niaxiagexnLent ; (5) Soine ofher witaesses who were not xnentioned ia the charge sheet were aUowed to be exaauned beliind fhe back of fhe petitioner after proceediag ex-parte agaiast Tiim. In addition to above, he also subiaits fhat ahnost on fhe sauie set of evidence, fhe petitioner has been acqiiitted on 23.06.1997 ia crinmial case, therefore, he should also be exonerated ia the departiaental proceediags aad his petition xaay be allowed, (8) On the other haad, learaed counsel for the respondents subniits fhat fhe enquiry was conducted in a fau" aad proper inaaner. The petitioner was gwen fhe copies of relevant docunients on which the charges were frained aad which were relied in fhe cbarge sheet. The dociunents which were fdrther demanded by the petitioner were not the relevant dociiments for the purpose of this enquiiy, therefore, they were righfly refused. The appointnient of Shri R.P. Singh of F.CJ,, as fhe defence assistaat was also righfly refused as a person of different department was not to be appoiated as fhe defence assistant nnder fhe specified staadiag order. So far as fhe questions in cross exainiaation are concemed, tihie petitioner was given fuU opportunity to ask aU relevaat questions froin fhe witaess Shri P.Pavana Murfhy. The objection was baseless aad fhe same was nghfly disnussed. The petitioner reniauied absent finoin enquiry even after due notice to 1him, therefore, he caxinot blame on this coiiat also. Regardiag examinatioH of two additional witnesses r -7 behiad fhe back offhe petitioner after exparte proceediag, learaed counsel subxnits that after their examination fhe petitioner was duly iaformed but he did not tura up to the enquuy. He further submits fhat fhere is no violation of prmciples of natoural justice and fhe grouads raised by fhe petitioner are baseless aad unsustamable. So far as fhe cruninal case is concemed, learaed counsel submits fhat fhe fmdmgs of fhe crimiaal case are not buidiag on fhe proceedings of the doniestic enquuy as bofh the proceedings are of independent nature. The acquittal ia fhe crimmal case will serve no purpose m favour offhe petitioner so far as fhe result offhis departmental enquiry is concemed. (9) I have heard learaed counsel for the pardes at lengfh aad have also perused fhe records offhe writ petition. (10) Pirstly, I am takmg fhe grounds rclatmg to violatiou of naturaljustice. The apex Court in the matter of Swadesfii Cotton MUls -Vs- Union of Jndia cfc.. ete.. AIR 1981 &a 818 has discussed at lengfh fhe nieaaiag of natural justice aad observed fhat athe phrase is not capable ofa static aad precise definition. It caniiot be unprisoned ia fhe strait-jacket of a cast iron formiila. HistoricaUy, "natural justice" has been used ia a way "which iinplies fhe existence of inoral pnnciples of self-evident aad unaiguable trufh", Ndtural JFustlce by Paul Jacksan^ 3Pld EeL^ peige 1. In course of tiine, Judges nurtaired ia fhe traditions of British Jurisprudence, often invoked it ia conjunction with a reference to <tfequi1y and good conscience,^ Legal experts of earUer geueration did not draw any distinction between <<natitral justice" r z- Y aad <xnatural law^. "Natiiral Justice^ was considercd as athiat part ofnatural law which relates to fhe admirdstration ofjustice.^ It is said, <(justice beiag substantiaUy on natural ideals aad hunian values, fhe adnuiiistration ofjustice is here freed frod fhe narrow and rcstdcted considerations which are usuaUy associated wifh a fonnulated law inakiag liaguistic technicaUties aad grammatical niceties, Rules of natural justice are not embodied ndes, Beiag meaas to aa end aad not aa end ia fhemselves, it is not possible to make an exhaustive catalogue of such ndes. (11) Regardmg non-supply of fhe documents^ whUe dealmg with fhe matter of Chandrcuna Tewari -Vs- Union aflndte. AIK 1988 S.C. 117, fhe Apex Coiirt held that €SIt is diQS^ciilt to comprehend exhaustively fhe facts and circumstaaces which may lead to violation of prmciples of natural justice or denial of rcasonable opportunity of defence. This question must be determined on the facts aad circuiastaaces of each case. Wliile considering this question it has to be borae ia miad that a delmquent officer is entifled to have copies of material aad relevaiit documents only which may include fhe copy of statement of witnesses rccorded during the iavestigation or preUniiaary enquiiy or tiie copy of aay ofher docuxnent which inay have been reUed ia support of fhe charges. Ifa document has no bearing on the chax^es or if it is not relied by fhe enquiry oflBicer to support fhe chai^es, or if such docuxiient or niaterial was not necessary for fhe cross exaimnation ofwitaesses during £heenquiiy, the ofl5cer cannot insist upon the -7- v'} ) ! t. supply ofcopiesofsuch documents, as the absence ofcopy ofsuch docuinent will not prcjudice the delmquent ofl5cer.w Non supply of the copies of documients which are not relevaat and which have no bearing on chax^es or which are not relied VLpon by fhe enquiry ofl5cer to support fhe charges does not aoaiount to violation ofprinciples ofnaturaljustice. (12( If, on these pnnciples, we exainiae the case of fhe petitioner rcgardiag non supply offhe demanded docuxnents, itwould appear that fhe petitioner filed his application for supply of soine documents on 22.7.1992 vide Annexure P-7. The contents of fhis appUcation would show that fhe petitioner had demanded for Attendaace Register ofthe Security Guard on duty on 03.10.1991 aad 04.10.1991. He had also demaaded Attendaace Register of the labour attached to storc section on 03.10.1991. He had further deinaiided for the Outavard Register inaintaiaed by the seciirity Guard at fhe mam gate for fhe period fnom 01.01.1991 to 05.10,1991 and C.C.Note Register showing fhe date-wise receipt of consignment and its issue ia fhe sparc-parts depot, Bilaspur dmiag the period 01.1.1991 to 07.10.1991. The petitioner had also demanded fhe Rides/Procedure/Instoructions of BEML Head- quarters, Bangalore rcgarduig maiatenaiice of accounts of receipt of consigxunent, its storage aad disposal and fhe Letter/memos issued to him by fhe Assistaiit Maaager and Senior Manager calluig for explaaation for disobedience of their orders aad lasfly fhe instructions of BEML Headquarters/ Baagalore regardiag lodging ofFIR wifh fhe PoUce ia the event oftheft cases. -Ib ^, T - ./ (13| None of fhese docuiaents are part of fhe chorge sheet nor fhey are inentioned as the documents to be reUed upon by fhe maaagement to estabUsh fhe charges leveled agaiast fhe petitioner. Page 3 of fhe cliar^e sheet would show fhat fhe raaaageiaent had relied upon the Firat Information Report (PIR) lodged in fhe PoUce Station aad had also relied upon the attendance register of fhe Store and fhe copies of these documents have been handed over to £hepetitioner. It appeare that fhe petitioner had demanded these dociuiients to show his innocence regarding the shortage of sparc parts ia fhe storc of BEML. It appears fix>ni the charge sheet fhat as per Charge No.3 as inaay as 14 ardcles were found to be ndssiag to which the petitioner had to explain. In his repfy to fhis charge dated 13.6.1992 fhe petitioner had not stated that fhe aUegations of inissiag of fhose ardcles froxn fhe store are false, He himself has made various aUegations agaiast the persons of the department, denyiag fhis charge. Not only this, m rcply to charge no.4, which rclates to fhe above 14 articles found m possession of fhe petitioner by fhe PoUce, fhe petitioner had not specificaUy denied fhat these ardcles were not found ia his possession or he was not canyiag fhe saine. He has only stated ftiat iinder a pre- conceived plaa in collaboration wifh fhe vested interests tfae Chakrabhata PoUce has falsely implicated him and registered a case u/s 380 aad 457 IPC- The petitioner had stated in his own words fhat ^sinoe ihe oaseis stillpending in the Court ofLawIhave nothing to sayfor the present in the matte^. He had fiirther stated fhat ia coxinection wifh fhis charge, fhe niaaagenient has proposed to rely upon only two docuiaents Usted ia Chai^e sheet dated -11- ^ ^ y Y \ 03.6.1992, therefore, he was mcliaed to believe fhat no additional document will be used m fhis case and if other dociiments are used it shoiild be disctosed as per fhe orders of fhe Higb Coiut. It appears fnom fhis reply that fhe documents demanded by fhe petitioner vide his application dated 22.7.1992 are ofno relevance in fhe miatter. The inaiii charges leveled agaiast the petitioner were fhe chai^es of theft which were on the groimd offindiag him in possession of 14 ardcles of the Coiapany by the PoUce which were specified in fhe Cborge Sheet aad for denyiag the same or for disowniag fhe possession fhercof how fhese documents are relevaat were not disclosed by fhe petitioner, The ofher documents demanded by him werc fhe vadous iastructions or fhe letters or fhe rules of the BEML, which are also not inentioned ia fhe charge sheet nor the same were proposed to be used agaiast the petitioner. If the docuiaents are not used agam.st the petitioner, the groiiad of violation of principles of natural justice is not attracted, In the m.atter ofnon-supply ofdocunients, titie violation of principles of natural justice is attracted only when a docuxnent demanded is used or proposed to be used ia recording the fiiiding of guilty agaiast him. On fhe basis of fhe aufhority referrcd to above, it would be clear fhat fhe appUcation to supply fhe copies of docunients is confiined only to ^siateriar and arelevanf> docuinents aad the enquity would be vitiated onty if fhe non-supply of niaterial aad relevant docuinents, when demanded, inay have caused prcjudice to the employee. The petitioner may plan to set up aay defence to defend his charges beforc fhe discipUnaiy authority, but he may not be pennitted to make a demand for the /2- !v } sake of its denial aiid say that it has prcjudiced his case. If the docuzuent is not a "xnateriaT or "relevant^ docunient aad fhe saine has not been used agaiast the petitioner, it cannot be said fhat fhe refiisal to supply copies of those documents has vitiated fhe enquiry. In fhe appUcation (Annexure P-7) none of the documents are relevaat or material documents as per fhe defence of fhe petitioner, fherefore, fhe denial of suppty of copies of fhese documents does not violate the principles of natural justice. The enqiiiry committee has also dealt with this aspect m fhe note sheet dated 29.7.1992 (P&ge 45 of the Paper Book) by consMering fhat fhe dociunents reqiured by fhe petitioner are not iadicated ia fhe charge sheet dated 13.6.1992 and as and when fhe evidence is recorded dunag fhe proceediags aad fhe prosecution submits aay docunient beforc fhe enquuy conimittee, tfae copies wiU be given to the petitioner to enable him to defend his case. (14) Now I shaU. take fhe ground regardiag refiisal to appoiat Shri R.P. Siagh, Assistaat Grade-I, ofthe Food Corporation oflndia as fhe Defence Assistant ia this case. The petitioner vide Annexure P- 7 in its latter part, has requested that after fhe best efforts, he could not fiad a single person in BEML, Bilaspur who could assist him ia fhis enquiry aad for fhis reason he has proposed fhe nam.e of Shri R.R Singh who was aa employee of Food Corporation of India, This prayer has been rejected by the disciplinary conunittee on 29.7.1992, It has been explaiaed fhat accordiag to the standing order appUcable in case offhe petitioner, he caa only take fhe assistance of a workmaa or an oJBSce bearer of 13- V B.E.M.L/B.E.M.L S.A., fhercfore, assistance Scom an. exnployee of the food corporation of India was not penidtted, In fhe opiaion of fhis Court if fhe relevaat rules / standiag order appUcable ia fhis case does not pennit for appointnient of defence assistaat froin aaother departnient, fhen refusal ofsuch request of fhe petitioner by fhe discipUnaiy committee was justified. This wiU also not violate fhe principles of natural justice and the disciplinaiy coiiunittee seexns to have taken a corrcct view in this miatter. (15) Now takmg iato consideration about not allowing fhe important questions during fhe cross exainiaation of Shri P, Pavaaa Murfhy, it would appear fhat Shri Pawaaa Murtfay was cross examiaed at length by fhe petitioner aad after fixushing his cross examination it is mentioned in fhe deposition sheet as under: Shn Gajanand Thawait has stated that he has nothing more to ask to Shri RPcwana Murthy, Senior Manager in cross exanunaiion* Afiter recording this statement, re-examination WBS agaia done which was inarked as tfNiT aad fhereafter it was rcad over, traiislated ia Hiadi and marked as "admitted to be correct^. This deposition sheet bears fhe sigaature of Shn Gajaaand Thawait (Ple^e see Page 48 of the Paper Book). On fhe face of fhis docuxnent, which has been filed by fhe petitioner hmiself in this court, I am of fhe opmion fhat the enquiry Cominittee has righfly rejected fhe aforesaid objection contained ia Annexure P-10 filed by the petitioner after conipletion of cross examiaation of fhis wita^ess. The decision of the Committee on this application has been recorded at Page No.8 of the continuation sheet of fhe -/^- ^- ^ proceedings which is filed at Pa1ge No.52 of the paper book. It appears to me fhat this application was a crcatiire of aa after fhought aad was filed for the sake of objection to show fhat fuU opportunity of cross examiaation was not given in this niatter. Ofherwise, therc was no reason with fhe petitioner to inake such statenient after coxnpletion offhe cross exaniuiation ofShri Pavaaa Murthy aad to put his sj^iature on fhe deposition sheet of that day xnaking such a declaration. I am not iaclined to accept this ai^itment advanced by learaed counsel for the petitioner that rejection of application amount to violation of prmciples of natural justice because it is not established on rccord fhat such questions were put aad were arbitrarily rejected by fhe enquiry coinmittee. (16) Now next poiat I am taking about non pardcipation of the petitioner ia fhe departoaiental enquiry. If we exaxiune the proceedings of 29th July 1992» it would appear fhat after finishing fhe cross exaaimation of Shri Pavaaa Murthy aiid after conipletion of fhe exaimnation-m-chief of Shn D.Umesh Bhatt, the aforesaid objection of fhe petitioner was disposed of and fhe proceedmgs of the Committee was adjoumed for 30.7.1992 at 9.00 a.m. This proceeding bears fhe sigaature ofall the conceraed persons except the petitioner. Then it was agaia recorded fhat Gajaaand Thawait refused to s^n the proceediags aad walked out of fhe enquiiy conunittee ineeting. Thereafter aiiofher set of signature of aU the members are fhere. This goes to show fhat the petitioner was haviag full knowledge of the date aiid time of the adjoumed proceedings and he was requircd to appear before the enquixy -fs- cominittee on 30.7.1992 at 9 a.xa. It appears fhat on fhe said date fhe petitioner did not appear and fhe enquiry was coinpleted ia his absence. Nowr fhe question arises as to whether the absence offhe ^titioner on the subsequent date of enquixy was justified or not ? If the petitioner was haviag the kaowledge of fhe adjouraed date aad tmie of fhe enquiiy by pardcipatmg in fhe enquiry of 29.7.1992, ia aU fairaess fhe petitioner was required to appear on the subsequent date and to participate in fhe proceedmgs. If fhe petitioner was unable to attend the pioceedings for aay suflfcient cause beyond his control, he would have iaformed the same to fhe enquiry committee aad should have prayed for an adjoumment. This aU has not been done by the petitioner. On fhe conteaiy, he rcfused to sign fhe last order sheet dated