IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTEENTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE B.PRAKASH RAO and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 856 of 2005 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 02/12/2004 in WP NO : 25664 OF 1999 on the file of the High Court.) Between: 1 Electronic Corporation of India Limited, rep by its Chairman & Managing Director, ECIL Post, Hyderabad 2 Sri A.P. Gupta, Enquiry Officer, ECIL, Hyderabad. 3 Sri Seetha Rama Rao, Manager, Personnel, ECIL,Hyderabad. ..... APPELLANT(S) AND N. Parmanandam, S/o. T. Nagappa, R/o. Plot No. 25, Road No. 4, Mathura Nagar, Hyderabad. .....RESPONDENT Counsel for the Appellant:MR.K.SRINIVASA MURTHY Counsel for the Respondent No.: . WRIT APPEAL NO : 861 of 2005 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 02/12/2004 in WP NO : 13510 OF 1997 on the file of the High Court.) Between: 1 Electronic Corporation India Ltd., rep.by it's Chairman & Managing Director, ECIL &Post, Hyd-500 062. 2 Sri. A.P.Gupte,SPO,CSG &Enquiry Officer,ECIL, HYD-500 062. 3 Sri Seetha Rama Rao, Manager Personnel ,Ecil, Hyd-500 062. ..... APPELLANT AND N.Paramanandam, S/o. T.Nagappa, R/o. Plot.No.25, Road No.4, Mathura Nagar, R.R.Dist, Hyd. .....RESPONDENT(S) Counsel for the Appellant:MR.K.S.MURTHY Counsel for the Respondent No.: MR.K.SRINIVASA MURTHY WRIT APPEAL NO : 862 of 2005 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 02/12/2004 in WP NO : 13510 OF 1997 on the file of the High Court.) Between: N. Paramanandam S/o T. Nagappa R/o P. No. 35, Road No. 4 Madhuranagar Sainakpuri, Hyderabad Ranga reddy District ..... APPELLANT AND 1 Electronic Corporation of India Ltd., rep by Chairman & Managing Director ECIL & Post, Hyderabad 2 The Station House Officer, PS. Kushaiguda, R Ranga Reddy District 3 Mr. S. Seetha Rama Rao Personnel Manager, Electronic Corporation of India Ltd., ECIL & Post, Hyderabad .....RESPONDENT(S) Counsel for the Appellant:MR.K.S.MURTHY Counsel for the Respondent No.: MR.K.SRINIVASA MURTHY WRIT APPEAL NO : 918 of 2005 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 02/12/2004 in WP NO : 13510 OF 1997 on the file of the High Court.) Between: 1 Electronic Corporation India Limited, repby Chairman & Managing Director ECIL &Post, Hyderabad 2 Sri Seetha Rama Rao Manager Personnel, ECIL Hyderabad ..... APPELLANT(S) AND 1 N. Paramanandam S/o T. Nagappa R/o Plot No. 25, Road No.4, Mathura Nagar, Ranga Reddy District Hyderabad 2 The Station House Officer, PS., Kushaiguda Ranga Reddy District .....RESPONDENT(S) Counsel for the Appellant:MR.K.SRINIVASA MURTHY Counsel for the Respondent No.: MR.K.S.MURTHY The Court made the following : THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.856, 861, 862 AND 918 OF 2005 COMMON JUDGMENT (Per Sri Justice Sanjay Kumar) These four appeals arise out of the order dated 02.12.2004 in Writ Petition Nos.13510 of 1997 and 25664 of 1998. They are therefore amenable to disposal by this common order. The two writ petitions were filed by a Clerk-cum-Typist working in the Electronic Corporation of India Limited (for brevity, ‘the ECIL’). In W.P.No.13510 of 1997, he challenged the proceedings of the ECIL dated 23.05.1992 and 18.02.1997. Under the proceedings dated 23.05.1992 he was imposed with the major penalty of removal from service and the same was confirmed in appeal by the proceedings dated 18.02.1997. In the second writ petition, W.P.No.25664 of 1998, he sought a direction to the ECIL to reinstate him in service taking into account the Judgment dated 30.09.1997 in C.C.No.400 of 1992 on the file of the Judicial Magistrate of First Class, North and East, Ranga Reddy, acquitting him honourably in respect of the charges which formed the basis of the disciplinary action challenged in the first writ petition. By the common order dated 02.12.2004, the learned single Judge allowed both the writ petitions, setting aside the impugned proceedings removing the writ petitioner from service. The learned Judge directed that the period during which the writ petitioner was out of service should be treated as leave without pay, in case no leave was available to his credit, but the writ petitioner was held entitled to all other attendant and consequential benefits. W.A.Nos.856 and 918 of 2005 are filed by the ECIL against the order in W.P.Nos.25664 of 1998 and 13510 of 1997 respectively, while W.A.Nos.861 and 862 of 2005 are filed by the writ petitioner against the order in W.P.Nos.25664 of 1998 and 13510 of 1997 respectively, aggrieved by the denial of back wages. The facts, in brief: The writ petitioner was working as a Despatch Clerk in the Central Despatch Registry of the ECIL at the relevant point of time. Initially, he was subjected to disciplinary proceedings under charge sheet dated 25.05.1990 on the ground that he was absent from duty without leave, that such absence was unauthorized and that there was negligence/neglect of duty on his part. Thereafter, in continuation of this charge sheet, the charge sheet dated 11.08.1990 was issued charging him with the following misconducts: 1) Fraud or dishonesty in connection with the Company’s business or property; 2) Negligence or neglect of duty; 3) Indulging in corrupt practices; 4) Absence from duty without leave or without sufficient cause; and 5) Giving false information concealing the facts. The statement of allegations in support of these charges reads to the effect that three separate cheques were returned undelivered by the Postal Authorities and the writ petitioner had made an entry in the Receipt Register of the Central Despatch Registry evidencing the receipt of these registered covers but the three covers were not received in the Finance Department (FAG). Thereafter, these three cheques were encashed by unauthorized persons and the writ petitioner was alleged to have connived with such parties, thereby committing fraud upon the Company with a mala fide intention. It appears that criminal proceedings were also initiated against the writ petitioner in respect of the very same charges. While the criminal case was pending, the ECIL initiated a regular departmental enquiry into the matter and the Enquiry Officer submitted his report holding that three of the five charges, as detailed hereunder, were proved against the writ petitioner: 1) Fraud or dishonesty in connection with the Company’s business or property; 2) Indulging in corrupt practices; 3) Giving false information concealing the facts. Thereupon, a copy of the enquiry report was made available to the writ petitioner and after considering his representation dated 21.02.1992 in response thereto, the ECIL issued the impugned proceedings dated 23.05.1992 removing him from service. The appeal filed by the writ petitioner was also dismissed by the Board of Directors of the ECIL by order dated 18.02.1997. Assailing these two proceedings, the first writ petition, W.P.No.13510 of 1997, was filed by him. During the pendency of this writ petition, it appears that the criminal case culminated in the honourable acquittal of the writ petitioner. Taking a cue from the same, the second writ petition, W.P.No.25664 of 1998, was filed seeking a direction to the ECIL to re-instate the writ petitioner in service in view of the acquittal orders passed by the Criminal Court. Heard Mr.K.S.Murthy, learned counsel for the writ petitioner and Ms.V.Uma Devi, learned counsel for the ECIL. It is no doubt true that in exercise of jurisdiction under Article 226 of the Constitution, this Court would not sit in appeal over the findings of the disciplinary authority. It is only in cases where such findings are utterly perverse or completely irrational that this Court would be justified in entering into the factual realm and re-appreciating the evidence. In the present case, though the learned Judge did not give any specific finding in this regard, the tone and tenor of the Judgment under appeal suggests that the learned Judge was of the opinion that the findings in the disciplinary proceedings were perverse, given the facts of the case. Be that as it may, the matter is amenable to resolution on the other ground of attack levelled by the writ petitioner against the disciplinary proceedings, which also found favour with the learned single Judge. It was the case of the writ petitioner that after receipt of envelopes in the Central Despatch Registry the same are delivered to the respective Sections. He therefore sought production of the acknowledgement file, which according to him, would have shown that the undelivered registered covers containing the cheques which were received by him were actually delivered to the respective Sections. However, the ECIL failed to produce the said file and the Enquiry Officer surprisingly recorded a finding that this document was not of much relevance. Needless to state, it was for the writ petitioner to prove his innocence and in this endeavour he sought the production of the record available with the Management, which ostensibly would speak in his defence. The case of the writ petitioner was that this acknowledgment file would have shown that the three returned cheques received by the writ petitioner in the Central Despatch Registry were actually delivered to the respective Sections, thereby absolving him of any complicity in their misuse thereafter. The said document, according to the writ petitioner, was a crucial piece of evidence in so far as establishment of his innocence is concerned and therefore the non-production of the same is said to have gravely prejudiced his defence. Precedential law was cited in support of this contention. The learned Judge accepted that denial of relevant documents which were in the custody of the Employer/ Management would amount to violation of principles of natural justice and would vitiate the disciplinary proceedings. The learned Judge was also inclined to accept that the acquittal of the writ petitioner by the Criminal Court upon charges which were identical to those levelled against him in the disciplinary proceedings had a bearing on the matter. The learned Judge took note of the fact that the Enquiry Officer had accepted that all was not well in the Central Despatch Registry in the light of the depositions of the defence witnesses, highlighting that it was a place accessible to all where several irregularities had occurred earlier with regard to mishandling of the mail received. In the light of the said evidence, the finding of the Enquiry Officer that such deficiencies, defects, lapses etc. in the system would not absolve the writ petitioner of the charges, as nothing specific had been stated by the defence witnesses to show that the writ petitioner was not involved in the tampering of the returned covers, was clearly perverse. The learned Judge also took note of the fact that no evidence had been brought on record to indict the petitioner of any responsibility in the actual misuse of the missing cheques. In the light of the aforestated facts and circumstances, short of declaring the findings in the disciplinary proceedings as perverse, the learned Judge proceeded on the basis of such an opinion and reversed the action of the ECIL in removing the writ petitioner from service. However, as stated supra, we are not required to examine the validity of this enquiry into factual aspects by the learned Judge, though eminently sustainable on facts, in as much as the disciplinary proceedings against the writ petitioner are vitiated by the procedural lapse on the part of the ECIL in not furnishing him the relevant material sought by him. The acknowledgment file, perceived by the writ petitioner to be a crucial piece of evidence in his favour, was not produced during the course of the enquiry and the proceedings of the enquiry held on 26.10.1991 record the fact that the management representative conceded before the Enquiry Officer that the acknowledgment file, being the FAG’s Inward Register, was not available. As pointed out by a Constitution Bench of the Supreme Court in STATE Of M.P. V/s. CHINTAMAN[1], the effective exercise of the right of defence cannot be prevented by the Enquiry Officer by refusing the charged employee relevant documents to which he is entitled. Again in TRILOK NATH V/s. UNION OF INDIA[2], a Constitution Bench of the Supreme Court held that a public servant has to be furnished with copies of all the relevant documents if he requires the same for his defence. The failure to furnish such documents was held to cause prejudice to the employee in making his defence at the enquiry. The same view was reiterated by the Supreme Court in KASHINATH DIKSHITA V/s. UNION OF INDIA[3]. I n STATE OF U.P. V/s. SHATRUGHAN LAL[4], the Supreme Court observed that the principles of natural justice require that a person against whom an action is proposed should be given an opportunity of hearing and such opportunity has to be an effective one and not a mere pretense. In that case, the denial of documents relied upon in the charge sheet was held to vitiate the disciplinary action as no effective opportunity to defend was provided to the employee. Likewise in the present case, the denial of records which should be available with the management, perceived by the charged employee to be of relevance to his defence, equally offends the principles of natural justice in as much as he is denied an effective opportunity of defending himself. In the light of the established legal principle aforestated, the disciplinary proceedings initiated against the writ petitioner which culminated in his removal from service are clearly unsustainable owing to the denial and non-production of the acknowledgment file sought by him to prove his innocence. The finding of the learned Judge based on this principle is therefore unassailable in law. Further, it is not in dispute that the criminal Court honourably acquitted the writ petitioner on the self-same charges which were the subject matter of the disciplinary proceedings i.e. misuse of the returned cheques. It was on the basis of this judgment that the writ petitioner sought reinstatement in service by way of the second writ petition, W.P.No.25664 of 1998. The opinion of the learned single Judge that such acquittal had a bearing on the matter finds full support in the judgment of the Supreme Court in G.M.TANK V/s. STATE OF GUJARAT[5], wherein the Supreme Court held that if the departmental proceedings and the criminal case are based on identical and similar set of facts, the dismissal order on the departmental side would be liable to be set aside in the interest of justice in view of the honourable acquittal of the employee by the competent criminal Court. Therefore, the order under appeal in so far as it interfered with the disciplinary action taken by the ECIL against the writ petitioner, setting aside his removal from service and directing his reinstatement with all attendant benefits, is unassailable. Writ Appeal Nos.856 and 918 of 2005 filed by the ECIL are therefore without merit and are accordingly dismissed. In so far as the other the two Writ Appeals are concerned, the writ petitioner, being the appellant therein, seeks back wages for the period that he remained out of service. The learned Judge directed that the period during which the writ petitioner was out of service should be treated as on leave without pay, in the event no leave was available to his credit. The learned Judge however granted the writ petitioner the relief of all other attendant and consequential benefits. Therefore, the period during which the writ petitioner remained out of service would be treated as on duty for all other purposes, including pensionary benefits. The only issue that remains is whether the writ petitioner is entitled to seek back wages for the said period. It appears that the learned Judge keeping in mind the fact that the writ petitioner had not been on duty during the relevant period exercised his discretion by directing the ECIL to treat the period that he remained out of service as leave without pay. It is stated that the writ petitioner has since attained the age of superannuation. During the pendency of these appeals, as per the interim orders of this Court, he was paid the wages last drawn by him prior to his removal from service i.e. Rs.2,800/- per month. However, as the removal of the writ petitioner from service was tainted with a procedural lapse resulting in violation of the principles of natural justice, the same was illegal per se and accordingly, his entitlement to back wages cannot be denied in its entirety. It is relevant to note that in his affidavit dated 01.09.2004 filed in support of the petition seeking early disposal of the case, the writ petitioner had stated that he was without any proper job, the inference being that he was employed but not in a ‘proper employment’. Therefore, it cannot be held that the writ petitioner was not ‘gainfully’ employed during the period that he was kept out of service by his illegal removal from service by the ECIL. I n U.P.STATE BRASSWARE CORPORATION LIMITED V/s. UDAY NARAIN PANDEY[6], the Supreme Court observed that a person would not be entitled to get something only because it would be lawful to do so. The Court stated that no precise formula could be laid down as to when entire back wages should be allowed and it would depend upon the facts and circumstances of each case. The Court however cautioned that it would not be correct to contend that it is automatic. In G.M., HARYANA ROADWAYS V/s. RUDHAN SINGH[7], the Supreme Court stated that a host of factors should be weighed and balanced in taking a decision regarding award of back wages. One important factor, according to the Court, is the length of service rendered by the employee. Another is the nature of employment – a regular service of permanent character cannot be compared to short or intermittent daily – wage employment. In J.K.SYNTHETICS LIMITED V/s. K.P.AGRAWAL[8], the Supreme Court observed that the factum of gainful employment of the employee during the period that he was out of service would be relevant in deciding the quantum of back wages. In the present case, the writ petitioner was appointed in March, 1972 and therefore completed over 20 years of regular service by the time he was removed from service in May, 1992. Further, there is no evidence placed on record by the ECIL that the writ petitioner was employed in an equivalent job during the period that he was kept out of service. As pointed out by the Supreme Court in J.K.SYNTHETICS, there is no obligation on the terminated employee to search for or secure alternate employment. In the light of the aforestated legal position and on the facts obtaining in this case, we are of the opinion that the interest of justice would be sufficiently served by awarding 50% of the back wages payable to the writ petitioner from the date of his illegal removal from service upto the date of the order of the learned single Judge. As the ECIL itself chose not to reinstate the writ petitioner in service thereafter and paid him a consolidated amount of Rs.2,800/- per month during the pendency of these appeals, it is legally bound to treat the writ petitioner as being in service for the said period and he would be entitled to full salary and other benefits for the period commencing from the date of the order of the learned Judge till the date he attained the age of superannuation. The ECIL shall accordingly remit the amounts due, as indicated above, to the writ petitioner within a period of two months from the date of receipt of a copy of this order. Writ Appeal Nos.861 and 862 of 2005 filed by the writ petitioner are therefore allowed in part to the extent indicated above. In the circumstances of the case, there shall be no order as to costs in these appeals. ---------------------------- B.PRAKASH RAO,J ---------------------------- SANJAY KUMAR, J. __________ OCTOBER, 2009 VGSR/PGS [1] AIR 1961 SC 1623 [2] 1967(1) SLR 759 [3] (1986) 3 SCC 229 [4] (1998) 6 SCC 651 [5] (2006) 5 SCC 446 [6] (2006) 1 SCC 479 [7] (2005) 5 SCC 591 [8] (2007) 2 SCC 433