1 WP1733.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1733 OF 2010 WITH NOTICE OF MOTION NO.218 OF 2011 Rani Radhakrishnan ) adult, Indian inhabitant of Mumbai ) having address at D5/24, Green Fields ) Mahakali Caves Road, Andheri (East), ) Mumbai-400 093 )....Petitioner Versus 1 National Aviation Company of India Ltd., ) having its registered office at : 113 ) Gurudwara Rakabganj Road, New Delhi- ) 110 001 and its office at Air India Bldg., ) Nariman Point, Mumbai-400 021 ) 2 Chairman cum Managing Director ) National Aviation Co. of India Ltd., ) having his office at Air India Bldg., ) Nariman Point, Mumbai-400 021 ) 3 Assistant General Manager ) Catering & Cabin Crew, Customer services ) Air India Inflight Services Department ) NITC, Sahar, Mumbai-400 029 )....Respondents ---- Mr.Mohan Bir Singh along with Mr.Rahul Jalan i/by MBS & Co. for the petitioner. Mr.S.K.Talsania, Senior Advocate with S.K.Chari & Ms.Kavita Anchan i/by M.V.Kini & Co.for the respondents. ---- 2 WP1733.10.sxw CORAM : P.B.MAJMUDAR & MRS.MRIDULA BHATKAR,JJ DATE : 1st December 2011. ORAL JUDGMENT :- (PER : P.B.MAJMUDAR,J) 1 By way of this petition, the petitioner has challenged the order dated 15.7.2010 which is at Exhibit-A, passed by the respondent no.2, by which the Chairman and Managing Director of the respondent-Air India while exercising powers under Section 69(A) of the Air India Employees’ Service Regulations, set aside the penalty order imposed by the Disciplinary Authority i.e `severe warning’ issued to the petitioner and substituted the same by awarding Major Penalty of `dismissal without retirement benefits in full’ with immediate effect. The aforesaid order of the Chairman & Managing Director of Air-India is impugned in the present petition. 2 The petitioner was appointed as Air Hostess by the Air India in June-1976. Ultimately, she was promoted as a Manager somewhere in January-1999. At the time when the petitioner was 3 WP1733.10.sxw in service, she was subjected to the charge-sheet which was issued by the Assistant General Manager in connection with the mis- conduct. It is alleged against the petitioner that one person viz. Soman Alappat of North Paravur, Vazhikulangara, had filed a case of cheating against the petitioner before the Court of Judicial Magistrate First Class, North Paravur. The criminal case was registered against the petitioner being MP No.4362/2005. On the basis of the same, FIR was filed under Section 420-A, 34 of IPC against the petitioner and her husband and others. The allegations against the petitioner was that the Complainant Soman Alappat introduced to her husband by their common friend one Mr.Sanjeev Vallattuthara. The complainant was promised that her husband was having job visa to London and they will arrange one visa for the nephew of Mr.Sanjeev Vallattuthara. Thereafter said Mr.Soman Alappat approached the petitioner and her husband for making a job visa to London for his brother-in-law Mr.Salim Divakaran, for which he has also paid Rs.6 lakhs towards the expenditure. It is not necessary to deal with the said complaint in detail. According to the complainant, he was subjected to cheating. Even though 4 WP1733.10.sxw promised by the petitioner’s husband, no visa was obtained in favour of the concerned person. 3 The complainant Mr.Soman Alappat also made a complaint directly to the Director, Internal Flight Service, Sahara International Airport, Mumbai with the copy of the FIR. On the basis of the same, petitioner was subjected to charge-sheet. The petitioner denied the charges levelled against her. The petitioner denied the charges on the ground that she was not aware of what her husband had done and she was not in any manner responsible. 4 In the meanwhile, the original complainant who has filed this FIR withdrew the complaint and the matter therefore, did not proceed further and the police submitted closure report which was accepted by the Magistrate. The report given by the concerned Police Sub Inspector stated that the alleged accused persons had not committed any offence. In the report it is submitted that the dispute has been settled. In paragraph-5 of the report, the 5 WP1733.10.sxw investigating officer stated that it was revealed that the alleged accused persons had no malafide intention to cheat the complainant and others. The delay in arranging job-visa for the complainant’s brother-in-law had occurred in the unexpected special circumstances. He came to the conclusion that misunderstanding happened and the complainant was mistakenly caused to file the complaint before the Court and the alleged accused persons have not committed any offence as alleged in the complaint. 5 This court is not concerned with the said criminal case nor this Court is dealing with the criminal case. Suffice it to say that the Magistrate had accepted the report and criminal case did not proceed further against the petitioner. Subsequently, departmental inquiry was conducted against the petitioner. Departmental inquiry was on two charges. The first charge was in respect of criminal case and the second charge was breach of the service manual. The inquiry officer found that it is proved that the petitioner had visited the residence of Mr.Soman Alappat along with her husband 6 WP1733.10.sxw and that she was aware that Rs.5 lakhs have been deposited in the joint account belonging to her husband and the purpose for which they have received the amount from Mr.Soman. She was also aware about the court case/FIR and the withdrawal of the same by Mr.Soman Alappat. Inquiry officer also found that committee does not find any evidence regarding breach of manual committed by the petitioner. He found that criminal case was settled between the petitioner and her husband on one hand and the complainant on the other hand. It proves that the amount had been returned to the original complainant by the petitioner and her husband. 6 The Disciplinary Authority thereafter by its order dated 7.5.2008 considered the aspect about the withdrawal of the criminal case as well as report of the inquiry officer that no service manual has been breached by the petitioner. Considering the same, the Disciplinary Authority passed an order by way of giving strict warning to the petitioner. After the order of Disciplinary Authority, the Criminal Vigilance Department addressed a letter to the Chairman and Managing Director, and on the basis of the 7 WP1733.10.sxw same, the Chairman took the matter in review and passed the impugned order. By the impugned order dated 15.7.2010 the Chairman and Managing Director while exercising powers under Section 69(A) of the Service Regulations, set aside the order of severe warning issued to the petitioner and substituted the same by awarding major award of punishment. The aforesaid order is impugned in this petition. 7 Learned Counsel Mr.Singh for the petitioner submitted that so far as disciplinary proceeding is concerned, the original complainant Mr.Soman Alappat who had filed a criminal case had never appeared before the disciplinary authority to give evidence. On behalf of the department, reliance was placed on the statement made before the Vigilance officer. It is submitted that though Vigilance officer appeared as a witness, the said officer has given evidence on the basis of information given to him by the original complainant and though he was cited as a witness on behalf of the department, the petitioner could not get any opportunity to cross- examine the said witness i.e original complainant. It is submitted 8 WP1733.10.sxw that so far as the report of the Vigilance officer is concerned, it is only hear-say and therefore, it is the case of no evidence. It is further submitted that in any case, the Chairman and Managing Director, before passing the impugned order, has not issued any Show Cause Notice to the petitioner asking the petitioner to show cause as to why penalty should not be enhanced. It is submitted that when the Reviewing Authority has set aside the order of Disciplinary Authority awarding punishment of strict warning, the Chairman was required to at-least issue Show Cause Notice to the petitioner and say of the petitioner was required to be taken into consideration before passing the impugned order. It is therefore, submitted that the impugned order is bad in law as no opportunity was given to the petitioner. 8 Learned Senior Counsel Mr.Talsania for the respondent- department, on the other hand, submits that it is true that before passing the impugned order, no opportunity was given to the petitioner in any manner. However, according to him, Rule 69 is silent in this behalf and therefore, since there is no provision to 9 WP1733.10.sxw give hearing in the rules, the impugned order cannot be said to be bad in law. In the alternative, it is submitted that in any case, if the Court is of the opinion that the impugned order is contrary to law, the same may be set aside and the matter may be sent back to the Reviewing Authority to decide the same afresh after giving opportunity to the petitioner of being heard. It is submitted that Regulation 71(A) provides that disciplinary proceedings, if instituted while the employee was in service whether before his retirement or during his re-employment or on contract, shall, after the final retirement of the employee, be deemed to be proceeding and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service. 9 It is submitted that if the matter is sent back to the Reviewing Authority, this Court may permit the Reviewing Authority to proceed with the matter by treating the petitioner as in continuous service by deeming fiction provided under Regulation 71-A, so that the Reviewing Authority may pass an 10 WP1733.10.sxw appropriate order which may not be possible in case employee is already retired by superannuation. This argument is made in view of the fact that the petitioner has already reached the age of superannuation i.e 31.7.2010 i.e after 15 days since the order passed by the Reviewing Authority. 10 We have heard both the learned Advocates at length and we have gone through the documents forming part of this petition. It is no doubt true that the Disciplinary Authority has taken a very charitable view in favour of the petitioner but at the same time, it is required to be considered that before the Disciplinary Authority, the original complainant had never remained present though he was cited as a witness. The petitioner had no chance to cross- examine this witness. It is true that vigilance officer remained present before the Disciplinary Authority and gave evidence. It is submitted by the learned Counsel for the petitioner that even on the basis of hear-say evidence also, the Disciplinary Authority can take appropriate decision regarding mis-conduct but however, this aspect should not detain us further as the order in question is not 11 WP1733.10.sxw sustainable and the same is passed without giving any opportunity to the petitioner in any manner. In this behalf reference is required to be made to Regulation 69(A), which provides as under :- “Notwithstanding anything contained in these Regulations, the Managing Director may entertain request/appeals for reviewing cases, other than which, is the Disciplinary/Appellate Authority and pass appropriate Order.” 11 It is required to be noted that the Reviewing Authority while passing the impugned order had not issued any Show Cause Notice to the petitioner nor any hearing was given and principles of natural justice are not followed by the Reviewing Authority. It is true that the order of Disciplinary Authority of strict warning may create an impression that the Disciplinary Authority has favoured the petitioner as observed by the Reviewing Authority. Yet, the Reviewing Authority is required to follow the principles of natural justice especially when it has set aside the order passed in favour 12 WP1733.10.sxw of the petitioner by the Disciplinary Authority. Reading the rules, one cannot say that principles of natural justice is excluded. In this connection, reference is required to be made to the relevant observations of the Supreme Court in the case of Delhi Transport Corporation Vs. D.T.C Mazdoor Congress reported in 1991 SC 395, which reads as under :- “Thus on a conspectus of the catena of cases decided by this Court the only conclusion follows is that Regulation 9(b) which confers powers on the authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons in the order and without giving any opportunity of hearing to the employee before passing the impugned order is wholly arbitrary, uncanalised and unrestricted violating principles of natural justice as well as Article 14 of the Constitution. It has also been held consistently by this Court that the Government carries on various trades and business activity through the instrumentality of the State such as Government Company or Public Corporations. Such Government Company or Public Corporations being 13 WP1733.10.sxw State instrumentalities are State within the meaning of Article 12 of the Constitution and as such they are subject to the observance of fundamental rights embodied in Part III as well as to conform to the Directive Principles in Part IV of the Constitution. In other words the Service Regulations or Rules framed by them are to be tested by the touchstone of Article 14 of Constitution. Furthermore, the procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. Regulation 9(b), therefore, confers unbridled, uncanalised and arbitrary power on the authority to terminate the services of a permanent employee without recording any reasons and without conforming to the principles of natural justice. There is no guideline in the Regulations or in the Act, as to when or in which cases and circumstances this power of termination by giving notice or pay in lieu of notice can be exercised. It is now well settled that the `audi alteram partem’ rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party- in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do 14 WP1733.10.sxw not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally. Considering from all aspects Regulation 9(b) is illegal and void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. Regulation 9(b) does not expressly exclude the application of the `audi alteram partem’ rule and as such the order of termination of service of a permanent employee cannot be passed by simply issuing a month’s notice under Regulation 9(b) or pay in lieu thereof without recording any reason in the order and without giving any hearing to the employee to controvert the allegation on the basis of which the purported order is made.” 12 Considering the said aspect, since the order in question is in violation of principles of natural justice, there is no other option but to set aside the said order. It is required to be noted that when the authority takes any adverse decision against the delinquent, 15 WP1733.10.sxw such action cannot be taken without giving any opportunity to the delinquent. Since the Reviewing Authority has not followed the principles of natural justice and even show cause notice was not issued before imposing the penalty, the impugned order is required to be set aside on the aforesaid ground. However, considering the facts and circumstances of the case especially when the petitioner has already reached the age of superannuation in 2010, it would not be just and proper to remand the matter back to the reviewing authority. Since, the petitioner had already retired, she will not be entitled to any backwages and by virtue of this order, she will be entitled to all retiral benefits till she reached the age of superannuation, without benefit of any backwages even for a shorter period as she reached the age of superannuation within a few days after the order of the reviewing authority. 13 In view of what is stated above, it is not necessary to examine the argument of the learned counsel for the petitioner that most material witnesses had not remained present and therefore, it is the case of no evidence against the petitioner. 16 WP1733.10.sxw However, in a given case, even on the basis of documentary evidence on record, the disciplinary authority can pass appropriate order of punishment and even hear-say evidence is also permissible in the disciplinary proceedings. It is required to be noted that even though the Reviewing Authority has observed that the Disciplinary Authority has taken a very lenient view and has tried to help the delinquent, yet no action is taken against the disciplinary authority. However, considering the fact that natural justice is not excluded, as pointed out earlier, it is not necessary to examine the validity of Rules 69(A), as in our view, on reading of the said Rules, the requirement of principles of natural justice is already impliedly incorporated and the same was required to be followed at the time of passing the impugned order. The writ petition is accordingly allowed by setting aside the order of the reviewing authority. The respondents are directed to pay whatever retiral dues to the petitioner upto the date on which she attained the age of superannuation and such payment shall be made within a period of three months from today. Rule is accordingly made absolute with no order as to costs. 17 WP1733.10.sxw 14 In view of the disposal of the writ petition, the Notice of Motion does not survive and the same is accordingly disposed of. (MRS.MRIDULA BHATKAR,J) (P.B.MAJMUDAR,J)