THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.2990 OF 2005 O R D E R Heard both the counsel. 2. Aggrieved by the award dated 23.6.2004 passed by the Industrial Tribunal cum Labour Court, Visakhapatnam in I.D.No.209 of 2001, in confirming the order of dismissal passed by the management, the union which is espousing the cause of workman, filed the present writ petition. 3. The respondent is M/s Nagarjuna Fertilizers and Chemicals Limited, Kakinada, East Godavari District. It is engaged in the business of manufacturing and trading of fertilizers, manures etc. As the operations in the factory premises are hazardous in nature, fire and safety department was establishment. The workman was appointed as fireman in the respondent – company on 16.2.1991 and during the year 1996, he was promoted to the post of leading fireman. 4. While so, he was issued charge sheet on 10.11.1999 for his unauthorized absence from duty from 27.10.1999 till 10.11.1999. The workman submitted his explanation on 19.11.1999. Notice of enquiry was issued on 10.3.2000 and the enquiry was held on 16.3.2000 and report was submitted on 20.3.2000. 5. Subsequently, as the workman was found sleeping on duty i.e., on 28.6.2000, a charge sheet dated 12.7.2000 was issued to him and after receipt of his explanation and not being satisfied with the same, enquiry was conducted and the enquiry officer submitted report on 21.5.2001. 6. Under both the charge sheets dated 10.11.1999 and 12.7.2000, the enquiry officer found the workman guilty of the respective charges. The workman submitted his explanation to the show cause notice and not being satisfied with the same, the respondent – Management, dismissed him from service by proceedings dated 12.7.2001. 7. Challenging the order of dismissal dated 12.7.2001, the union representing the workman, raised I.D.No.209/2001. 8. The case of the workman before the Tribunal was that the management did not take any action immediately after submission of the report by the enquiry officer for the unauthorized absence under the first charge sheet dated 10.11.1999 and only in order to victimize him, as he was founder member of the petitioner – union, foisted false charge that he was sleeping during duty. On the relevant date, the workman did duty in two shifts i.e., from 6-00 a.m. to 2-00 p.m. and again from 2-00 p.m. to 10-00 p.m. and as he was asked to perform two shifts continuously, as he was having back pain, he laid down and took some rest and was not sleeping and without accepting the explanation, the management conducted the enquiry. His case is that as he is a union leader, in order victimize him, the false charge was foisted. The enquiry was also conducted in violation of the principles of natural justice and the enquiry officer found him guilty of the said charge. Therefore, he sought to set aside the findings of the enquiry officer and reinstate him into service with all consequential benefits. 9. The management filed counter and stated that the workman unauthorizedly absented from duty and was also found sleeping during duty and as he being a leading fireman should be vigilant and any amount of negligence on his part, may cost lives of many employees and also would damage the property of the company and under both the charges, the enquiry officer after giving ample opportunity and in compliance of the principles of natural justice, found him guilty and hence, he was removed from service and there are no ground to interfere with the same. 10. Based on the above averments, the Tribunal framed the following issues for consideration: 1. Whether the action of the General Manager (works) Nagarjuna Fertilizers and Chemicals Limited, Kakinada is justified in terminating the services of Sri G.John victor, Leading fireman, vide order dated 12.7.2001? 2. To what relief, the workman is entitled to? 11. Appreciating the entire material evidence on record, the Tribunal concurring with the findings of the enquiry officer, rejected the claim of the workman. Hence, the present writ petition. 12. The learned counsel appearing for the workman submitted that for the first charge sheet of absenting from duty, the workman has submitted his explanation and the management did not take any decision on the report of the enquiry officer and in order to victimize the workman, as he is actively involved in union activities and as he is founder member of the petitioner – union, foisted the 2nd charge that he was sleeping on duty . He stated that on the relevant date, he was directed to perform two shifts on the same day and as he was suffering from back pain, he laid down on the bench and in fact he was not sleeping and without accepting this explanation, the management, only in order to victim him, framed the second charge. He contended that the enquiries were held in violation of the principles of natural justice. Even assuming that the said charges are proved, they are trivial in nature, since the charges are unauthorized absence and sleeping on duty and for which the workman has given reasonable explanation and in the light of the circumstances stated above, imposing the punishment of removal from service, is grossly disproportionate. In support of this contention, he relied on the judgment of the Apex Court reported in INDERJIT vs. PUNJAB AND HARYANA HIGH COURT[1]. 13. He contended that while imposing the punishment of removal from service, the management has taken the past record of the workman into consideration, for which the workman has no knowledge and this has influenced the management in imposing the extreme penalty of removal from service and as the past record was taken into consideration without notice to the workman, it amounts to violation of the principles of natural justice. In support of this contention, he relied on the judgment of the Apex Court reported in STATE OF MYSORE v. MANCHEE GOWDA[2] and the judgments of the High Court of Madras in MGMT. OF EASUN. LTD. v. III ADDL. LAB. COURT & ANR[3] a n d S.RAJULU v. MGMT F AUROFOOD (P.) LTD[4]. 14. He further contended that in the order of dismissal dated 12.7.2001, it is stated that the company has lost confidence in the workman. For this allegation, there is no charge and without charge, coming to the conclusion that the management lost its confidence, amounts to violation of the principles of natural justice and hence the order of dismissal is to be set aside. In support of this contention, he relied on the judgment of the High Court of Madras in SPENCER & CO. LTD. MADRAS v. E.VAJRAVELU & ANR.[5]. 15. With the above contentions, the learned counsel for the petitioner sought to set aside the impugned punishment as confirmed by the Tribunal and reinstate the workman into service with all consequential benefits. 16. On the other the learned counsel appearing of the respondent – management, opposing the above contentions of the counsel for the petitioner and supporting the impugned award, strenuously contended that the charges against the workman are proved in the domestic enquiry and the workman was given sufficient opportunity and after complying with the principles of natural justice, the workman was found guilty and the workman also filed memo accepting the validity of the domestic enquiry before the Tribunal. He contended that the workman was holding the post of a leading fireman, which is very responsible and needs to be vigilant and any negligence on his part would lead to major accident and would cost the lives of many employees and therefore any amount of negligence on his part cannot be condoned and has to be dealt with sternly and no lenient view can be taken. In support of this contention, he relied on the judgments of the Apex Court reported in STATE OF UTTAR PRADESHA vs. RAMAKANTH YADAV[6] and N.MOHANDAS & SOUTHERN INDUSTRIAL POLYMERS PVT. LTD., RANIPET[7]. He contended that as the workman was found guilty of unauthorized absence and sleeping on duty, the Tribunal imposed the punishment of removal from service and the same is proportionate to the charges proved against him and the Tribunal rightly rejected the claim of the workman and the same cannot be interfered with by this court. In support of this contention, he relied on the Division Bench judgment of this court reported in PP.JOHN vs. LIC OF INDIA[8]. He contended that a contention was canvassed on behalf of the workman, that he was victimized for his alleged union activities, but the workman failed to prove the same with any cogent and convincing evidence and hence, the said contention cannot be countenancaed. In support of this contention, he relied on the judgments reported in M/S BHARAT IRON WORKS v. BHAGABHAI BALUBHAI PATEL AND OTHERS[9] and RAMESH G.DURVE AND ANR. VS. GODREJ & BOYCE MFG. CO. LTD. & ORS[10]. Relying on the judgments reported in BURN AND COMPANY LIMITED vs. THEIR WORKMEN AND OTHERS[11] and LAXMI DEVI SUGAR MILLS vs. NAND KISHORE SINGH[12], he contended that on the ground that the workman is a trade union leader, he cannot seek immunity. 17. With regard to management coming to the conclusion of losing confidence on the workman is concerned, he contended that the loss of confidence is the conclusion which the management has drawn based on the proved misconduct and for this, no separate charge is required and in the judgment relied on by the counsel for the workman in this regard, there was no enquiry at all and as the workman therein was removed on that sole ground, without conducting enquiry, the High Court of Madras held that without framing charge, the petitioner therein cannot be terminated. But in the present case, enquiry was conducted and after the charges of the workman were proved and based on the proved charges, the management has come to the conclusion that it lost confidence on the workman and the same was mentioned in the impugned order of dismissal. In support of his contention that no separate charge with regard to loss of confidence needs to be framed, he relied on the judgments reported in SURESH PATHRELLA vs. ORIENTAL BANK OF COMMERNCE[13], STATE BANK OF INDIA AND OTHERS vs. RAMESH DINKAR UNDE[14], DEPOT MANAGER, ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION vs. RAGHUDA SIVA SANKAR PRASAD[15], and P.CHANNABASAVAIAH vs. DIVISIONAL CONTROLLER, KSRTC, BANGALORE[16]. 18. He further contended that the past record of the workman was bad and it was also put to him during the course of enquiry and he did not take any objection and it was within the knowledge of the workman that his past record was being considered. Since it is a proven record and not a new material, the same can be gone into at the time of imposing of punishment . In support of this contention, he relied on the judgment of the High Court of Calcutta reported in ASSEMBLY OF GOD, HOSPITAL AND RESEARCH CENTRE vs. 1ST INDUSTRIAL TRIBUNAL, WEST BENGAL[17]. 19. The learned counsel for the respondent – Management contended that the enquiry officer, based on the evidence, has categorically found the workman guilty of the charges. As already stated above, the workman who is a leading fireman, is holding a responsible position and shall be vigilant and no negligence on his part can be condoned. He state that the Tribunal on re-appreciating of the entire evidence available on record, confirmed the punishment imposed by the management and the High court in exercise of the jurisdiction either under Articles 226 or 227 of the Constitution of India, cannot sit as an appellate authority over the findings of the enquiry officer, which are confirmed by the Tribunal and interference with the quantum of punishment, in any manner, would amount to misplaced sympathy, which the company cannot afford. He further contended that the High Court cannot interfere with the decision and it has to examine only the decision making process and unless there is an error apparent on the record, it cannot interfere with the findings of the enquiry officer, as confirmed by the Tribunal and that imposing appropriate punishment is within the realm of employer. In support of these contention, he relied on the judgments reported in U.P.STATE ROAD TRANSPORT CORPORATION vs. VINOD KUMAR[18], DIVISIONAL CONTROLLER, N.E.K.R.T.C. vs. H.AMARESH[19], MANAGEMENT OF SINGARENI COLLIERIES LTD., RAMAKRISHNAPUR DIVN., KALYANIKHANI vs. INDUSTRIAL TRIBUNAL © HYDERABAD[20], PEPSU ROAD TRANSPORT CORPORATION, PATIALA, THROUGH ITS MANAGING DIRECTOR vs. PRESIDING OFFICER, LABOUR COURT, PATIALA AND ANR[21], RACHAPPA vs. MANAGING DIRECTOR, NORTH-EAST KARNATAKA ROAD TRANSPORT CORPORATION, GULBARGA[22], RAMESH KUMAR vs. PUNJAB NATIONAL BANK[23], and S.GOVINDARAJU vs. DIVISIONAL CONTROLLER, BANGALORE METROPOLITAN TRANSPORT CORPORATION[24]. 20. In view of the above rival contention, the point that arises for my consideration is whether there are any grounds to interfere with the impugned award? 21. The charges against the workman under two charge sheets dated 10.11.1999 and 12.7.2000 are that he absented from duty unauthorizedly from 27.10.1999 till 10.11.1999 and that he was found sleeping while performing duty in B shift at 2-50 p.m. on 28.6.2000. 22. The workman accepted the validity of the domestic enquiry and only disputed the findings. 23. With regard to first charge sheet dated 10.11.1999, the workman has admitted his absence, but sought to give explanation, which the management refused to accept. 24. Under the second charge sheet dated 12.7.2000, the case of the workman is that on the relevant date, he was asked to perform two shifts, A and B and that the timings of A shift are from 6-00 a.m. to 2-00 p.m. and the timings of the B shift are from 2-00 p.m. to 10-00 p.m. and as he was suffering from back pain, he was only lying on the bench and that he was not sleeping. 25. To prove that the workman was found sleeping during duty, the management has examined before the enquiry officer M.Ws.1 to 3 ie., R.Govinda Raju, who is working in Fire and Safety, Technical Services Department; R.Satya Murthy, who is working as Junior Engineer (fire) and Mr. G.Ram Mohan, Fire Officer. These three persons, have categorically deposed that the workman was found sleeping during their check. Though the workman has taken a plea that he was not sleeping and was only lying, he failed to prove his plea. In his explanation to the charge sheet, while admitting the arrival of M.Ws.1 to 3, stated that he was having slight back ache and that he laid down on the bench and that on seeing them he got up and that they did not woke him up. To prove his case, the workman examined D.W.1, who deposed that management foisted case against the workman by way of victimization and that the workman was not at all sleeping and that he along with one Mr. Pasha was present along with the workman, when M.Ws.1 to 3 visited the locker room. On perusal of the explanation of the workman to the charge sheet it is found that the workman did not mention about the presence of D.W.1 and Pasha along with him in the locker room. Moreover, the workman himself admitted that he was lying on the bench and whereas the defence witnesses D.W.1 – Solman Raju deposed that at the time when the three officers came, the workman and Mr. Pasha were sitting on the bench and were referring to some books and he further deposed that the workman was leaning on the table. The Tribunal rightly found that the evidence of D.W.1 is contrary to the explanation of the workman under Ex.M-9 to the charge sheet. The enquiry officer further found that, though the workman was given ample opportunity to cross-examine M.Ws.1 and 2, he failed to avail the opportunity and having no other alternative, he closed their evidence. Considering the entire evidence, the enquiry officer found the workman guilty of charge of sleeping while on duty and on re-appreciating the entire evidence, the Tribunal concurred with the findings of the enquiry officer. The findings of fact cannot be interfered with by this court under the writ jurisdiction, in the absence of any perversity. 26. Before this court, the learned counsel appearing for the workman contended that the workman being a union leader was victimized by foisting false case. The workman did not raise the plea of victimization in the explanation to the charge memo under Ex.M-9 and he also failed to prove the same by adducing any cogent evidence and hence this contention is not available to him and as laid down by the judgments of the Apex court referred to BURN AND COMPANY LIMITED vs. THEIR WORKMEN AND OTHERS (11 supra) and LAXMI DEVI SUGAR MILLS vs. NAND KISHORE SINGH (12 supra), and hence he cannot claim any immunity from departmental action on the ground that he is a union leader. 27. The other contention of the counsel for the petitioner is that in the impugned order of dismissal dated 12.7.2001 the respondent – management has stated that the company has lost confidence in the workman. To this allegation, no charge has been framed. Therefore, the conclusion that the company lost confidence on the workman, amounts to making allegations without enquiry and this amounts to violation of the principles of natural justice. In support of this contention he relied on the judgment of the High Court of Madras in SPENCER & CO. LTD. MADRAS v. E.VAJRAVELU & ANR (5 supra). 28. The above contention cannot be countenanced for the reason that the charges against the workman are with regard to unauthorized absence and sleeping while on duty. The case of the management is that the workman is a leading fireman and his duties are that he should keeping himself fit and alert and ready to face any eventuality of fire accident and the emergencies that may arise on account of fire accident. The charge against him with regard to sleeping while on duty is proved and the workman is working in an industry which is categorized as hazardous. Further the charge against the workman with regard to unauthorized absence is also proved. In these facts and circumstances, the view of the management that it lost confidence on the workman, is the consequence of the proved misconducts and that no separate charge needs to be framed. In the judgment relied on the counsel for the petitioner (5 supra), the management terminated the workman on the ground of loss of confidence, without conducting any enquiry and in those circumstances, it was held that without framing the charge of loss of confidence, the workman cannot be terminated. No exception can be taken to this judgment, but the same is not applicable to the facts of the present case. 29. The vehement contention of the counsel for the petitioner is that while imposing the punishment of dismissal from service, the management has taken into consideration, the past record and the same is not made part of the charge and hence this has influenced the management in imposing the extreme penalty of removal from service and therefore, taking the past record into account without notice, amounts to violation of the principles of natural justice. The contention of the counsel for the respondent – management is that the past record is the proved misconduct and no facts are introduced and this is within the knowledge of the workman and moreover, he was cross-examined during the course of domestic enquiry about his past conduct and he did not raise any objection and further he also did not raise this ground before the Tribunal and further his past conduct was considered to see whether there are any extenuating circumstances, for taking lenient view. In support of his contentions, he relied on the judgment of the Apex Court reported in RASHTRADOOT v. RAJASTHAN W.J. UNION[25]. 30. It is to be noticed that the workman raised the legal plea that his past conduct was taken into consideration, without notice, while imposing the punishment of dismissal from service and this court has to examine whether this amounts to violation of the principles of natural justice. In the judgment of the Apex Court in Rashtradoot case (25 supra), the facts reveal that a new fact was sought to be introduced in the appeal and therefore, the apex rightly held that such a course is not open to the management therein. In the present case, as noticed above, the workman raised a legal contention contending that there is violation of the principles of natural justice and the same has to be examine in the light of the law laid down by the Apex Court in STATE OF MYSORE v. MANCHE GOWDA (2 supra), wherein the Apex Court held as under: 7. Under Article 311(2) of the Constitution, as interpreted by this Court, a government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam v. Bimal Kumar Pandit (Civil Appeal No.882/1962 dated 12.2.1963). If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the government servant. It would be no answer to suggest that every government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of “presumptive knowledge” or that of “purposeless enquiry”, as their acceptance will be subversive of the principle of “reasonable opportunity”. We, therefore, hold that it is incumbent upon the authority to give the government servant at the second stage reasonable opportunity to show-cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be