1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1239 OF 2008 Life Insurance Corporation of India and Anr. .. Petitioners Versus Mallikarjun Laxman Manikade and Anr. .. Respondents Mr.V.Y.Sanglikar for petitioners Mr.S.M.Dange for respondents CORAM : S.C.DHARMADHIKARI, J. DATE : 16th June 2008 ORAL JUDGEMENT:- . Rule. Respondent Nos. 1 and 2 waive service. By consent rule is made returnable forthwith. 2. This petition is directed against the Award Part I in Reference No.CGIT-2/241/05. 3. By the impugned order dated 27th 2 September 2007, the Court below has answered three issues, whether the Tribunal has jurisdiction, whether the first respondent is workman and whether the enquiry is fair and proper, so also findings therein perverse. 4. It is not necessary to go into rival contentions as far as jurisdictional aspects including whether respondent Nos.1 is a "workman". No arguments have been heard by me in that behalf. 5. Both sides confined their arguments to issue Nos. 3 and 4. 6. For the purpose of deciding rival contentions brief reference to the facts is necessary. . The statement of claim which was laid before the Tribunal on behalf of the respondent 3 No.2 espousing the cause of respondent No.1 is that the petitioner Corporation is sub-divided into seven zones. The second respondent, Union before me is concerned with the Western Zone comprising as many as 21 Divisional Offices. The reference by respondent Nos. 1 and 2 concerns Mumbai Division - II. The said Division has one of its branches at Chembur. The said branch is under the control of Senior Divisional Manager who is competent authority in terms of Schedule I of Life Insurance Corporation (Staff Regulation) 1960. The services of the first respondent were terminated with effect from 30th December 1997. 7. It was the case of the respondents that the first respondent was appointed as an Assistant in Class III Cadre at Mumbai Division Office - I on 2nd May 1990. He was subsequently promoted as Higher Grade Assistant having regard to the seniority, merit and confidential reports. The case of the first respondent is that he 4 addressed a letter on 10th April 1997 informing his branch office about sickness of his mother. He requested to grant privileged leave (PL) from 7th April 1997. This letter was claimed as not received by the branch. Thereafter a telegram was sent on 24th April 1997 informing the branch office that he could not attend office due to his mother’s sickness. He also informed the branch office that there was nobody to look after his mother than himself and, therefore, PL be granted with effect from 7th April 1997. It was the case of the first respondent that the Chembur branch office had granted PL and the first respondent’s salary was also drawn for that month but he could not collect the same due to his mother’s sickness. Later on, PL was cancelled by the branch office. The workman informed the branch office that he was going to resume duties from 2nd May 1997. 8. Paras 8 and 10 of the statement of claim 5 of first respondent read thus:- "8. It is submitted that the said workman wrote a letter to the Senior Divisional Manager, MDO - II on 21st November 2000 and requested to the competent authority to send him all the letters to his new address at 4/369/4369, Tagore Nagar, Vikhroli (E), Mumbai 83. His said communication was duly received by the Divisional Office. "10. It is submitted that the workman had appealed on 28th September 2001 to the Zonal Manager, Western Zone and the said appeal was rejected by the Zonal Manager as appellate authority." 9. In para 11 of the Statement of claim a reference is made to the representation dated 30th October 2002 addressed to the Chairman of 6 LIC but the same being rejected as time barred. Thereafter, another representation/ letter was addressed by R.P.A.D. on 3rd May 2003 to the Chairman to reconsider his earlier decision. There is correspondence on this issue. 10. In para 15 of the Statement of claim the first respondent being fully aware of the actions has submitted that during his absence on 2nd May 1997, the workman was served with the charge sheet dated 26th April 1997 for his absence from 17th February 1997 to 21st March 1997 was mentioned. Thereafter, a reference is made to a show cause notice received on 6th December 1997, calling upon the first respondent to show cause why he should not be removed from service. Thereafter, a reference is made to the order dated 30th December 1997, whereunder respondent No.1 came to be terminated. In para 16 of the statement of claim reference is made to the absence from 7th April 1997 to 30th December 7 1997. The statement of claim, therefore, proceeds on this basis and thereafter, there is a justification statement. The entire enquiry proceedings have been challenged on the basis that the enquiry officer took an ex parte decision. The enquiry if ever held, was a sham show meant for first respondent’s removal. The justification statement, thereafter proceeds on the basis that the presenting officer had not furnished any documents before the enquiry officer nor was there any presentation of the case. There were no proceedings as such held in terms of the enquiry. The presenting officer did not examine anyone during the enquiry. The E.O. did not bother to know as to what documents were given by the workman to the office and on what basis the management decided to hold enquiry. The justification statement runs into 11 paras and it contains pleas not only with regard to the enquiry but also the past performance. It is on this basis that the reliefs have been sought that 8 the Enquiry is bad in law, unfair and violative of regulation and principles of natural justice. It be, therefore, set aside and subsequent reliefs as prayed including reinstatement be granted. This statement of claim dated 18th May 2005 is signed by the General Secy. of the second respondent. 11. LIC - petitioner before me filed its written statement and specifically urged that there is no substance in the claim of the concerned workman. A reference was made to Chapter III of the Staff Regulations and it was contended that it is a self contained code. The case of the management on merits is that the workman concerned remained absent continuously and without permission from 7th April 1997. More than 17 days after remaining unauthorisedly absent, he sent telegram dated 4th April 1997 informing about the alleged sickness of his mother. The letter dated 25th April 1997 was 9 received on 30th April 1997 promising to resume duties on 2nd May 1997. The concerned workman, did not resume duties on 2nd May 1997 nor sent any intimation regarding his continuous absence thereafter. After waiting for a month for the employee to resume his duty, the petitioner addressed a registered letter letter dated 3rd June 1997 advising him to resume his duties. This letter was returned by the Postal Authorities with a remark "not claimed". In view of the above conduct and continued unauthorised absence, charge sheet was issued to the employee on 2nd July 1997. Even the charge sheet was sent by registered post which was also returned by the postal authorities with the remark "not claimed". Hence, the charge sheet was displayed on notice board of both Divisional and branch offices, the latter being the office where the first respondent was posted, before his unauthorised absence. 10 12. Thereafter, the enquiry commenced. The E.O. issued three notices dated 3rd October 1997, 7th November 1997 and 18th November 1997 at all the three addresses of the employee i.e. at Airoli, Nerul (Navi Mumbai) and Akkalkot in Solapur Dist. All three notices were returned undelivered by the postal authorities with the remark left, not claimed and not known. Similar pattern was followed with regard to displaying of the notices. Hearings were scheduled on 22nd October 1997, 18th November 1997 and 28th November 1997. The first respondent did not attend the hearing. He was specifically informed that in case he fails to attend the proceedings on 28th November 1997, the enquiry will proceed ex parte. Thereafter, the enquiry proceeded ex parte. Upon submission of the findings, a show cause notice was issued to the employee on 6th December 1997 proposing imposition of penalty of Removal from 11 service. The notice in that behalf also was sent in similar manner and displayed as above. Since, there was no reply within 15 days stipulated period, disciplinary authority passed the order imposing penalty of removal from service and treating his absence as dies non on 30th December 1997. The final orders were also sent on the above three addresses and the postal remark was identical even in respect of the same. The final order was also displayed as stated above. 13. It is stated that nearly four years after he was removed from service, an appeal was preferred on 28th September 2001 which was considered and rejected on 29th December 2001. A second appeal was also made again a year later on 30th October 2002 which was not considered being belated. 14. After highlighting past conduct of this employee and imposition of the penalty for 12 censure for the unauthorised absence and raising preliminary objections to the maintainability of reference, complete parawise reply has been given by the petitioner to the statement of claim. It is denied that the employee was absent because of any sickness much less his mother’ sickness. For all these reasons, it was prayed in the written statement dated 23rd August 2005 that the claim be rejected. 15. The Tribunal thus had before it the entire version on behalf of the workman/Union and the management. The Tribunal then framed necessary issues and directed leading of oral evidence, if any, by parties. Needless to mention here that the record of the enquiry and all documents relevant and germane thereto were filed before the Tribunal. The petitioner management examined one Mohan Govind Tare, Manager (Personal and Industrial Relations) Division II of Mumbai Office of LIC. His 13 evidence was on affidavit. The witness reiterates the version of the management in the written statement. He refers to the correspondence and the compilation tendered by the witness. There are letters which have been addressed dated 9th May 1997, 14th May 1997, 29th May 1997 and 3rd June 1997 pointing out and highlighting the conduct of the concerned workman. Thus, it was a specific case of continued unauthorised absence, habitual , disregarding of office instructions and causing prejudice to the petitioner Corporation. Thereafter, the witness points out as to how the charge sheet came to be served and displayed on notice board on 19th July 1997 at 12.00 noon in the presence of two witnesses who have signed below the same. The report of this pasting and the endorsement of the witnesses has also been tendered on record. Thereafter, the enquiry officer’s appointment is referred and a communication by the petitioner to the first 14 respondent regarding the same. The notices which have been referred to in the written statement and the manner in which they were communicated and displayed along with postal covers bearing remarks have been tendered. The enquiry report is also tendered so also the show cause notice with regard to the proposed punishment. Thus, the witness has spoken at length with regard to the conduct of the enquiry. 16. This witness was cross examined by the respondent Nos. 1 and 2 before the Tribunal and the record of cross examination dated 20th March 2007 would show that the only admission is with regard to a medical certificate submitted by the workman of treatment taken at the clinic of Dr.Kumawat for the period 7th April 1997 to 30th April 1997. The suggestion that there were further medical certificates has been specifically denied. The witness also admits that no oral evidence was recorded by the enquiry 15 officer considering the documents submitted by the management. This is the only cross examination. The cross examination in two paras thus concludes and there is no re-examination. 17. The first respondent workman also filed his affidavit before the CGIT. He admits that he was absent from office from 7th April 1997 and the office claims to have served a letter dated 3rd June 1997 asking him to resume duty. His affidavit in lieu of examination in chief proceeds on the basis that the order passed by the management is without any enquiry or giving him any opportunity though statutorily required. Therefore, he submits that the enquiry is unfair, unjustified, illegal and in breach of rules and regulations and against the principles of natural justice. There is complete silence in this affidavit with regard to the correspondence. The workman was cross examined by the management in paras 17. The cross examination is on the basis 16 that his application for employment dated 2nd May 1990 is written by him and he admits the address written on it. He was staying at the address set out in the letter dated 31st December 1993 is also his admission. He also admits that he has written a letter dated 28th February 1997 from Airoli. His version is that he was not allowed entry from 7th April 1997. He refers to the telegram dated 24th April 1997 and the letter dated 2nd May 1997. He admits that no written communication was made thereafter by him. He admits that earlier disciplinary action was taken against him in 1993 on the point of absentism. He admits that on two occasions, disciplinary action was taken. 18. Both sides filed written arguments and that is how the above issues were considered by the learned Presiding Officer. In the Award part I, the issue Nos. 3 and 4 which pertain to the enquiry being fair and proper and findings being 17 perverse or not have been answered in two paras. It would be convenient to reproduce these paras:- "12. As far as the enquiry and its findings are concerned, it is matter of record that, concerned workman did not participate in the enquiry. It is matter of record that, the attempts of service of charge sheet, intimation of enquiry and other correspondences are concerned, were not served on concerned workman and all returned "not claimed" or "unserved". It is also matter of record that, concerned workman did not participate in the enquiry. No evidence is recorded by Inquiry Officer of concerned workman. It is matter of record that, enquiry was ex parte." 13. The record proceedings reveal that, concerned workman did not get 18 opportunity to make out his case. Even the pleading of the concerned workman refers that, his mother was sick and then he became mentally sick and unable to point out the same to first party. Even he made out case that, by number of correspondence he tried to intimate first party. But record and proceedings reveal that it is not considered by Inquiry Officer or by the first party. So one has to conclude that, concerned workman did not get an opporttunity to make out his case as well as explain about his absenteeism. It is matter of record that, mere absentism is the cause behind removing concerned workman from the employment. However, concerned workman did not get an opportunity to explain it. So I conclude that, there was no fair enquiry and Inquiry Officer was not having reasons to observe concerned 19 workman absent without any reason. In this scenario I conclude that enquiry was not fair and findings perverse." 19. Although, it is a part I award, Mr.Sanglikar for petitioner relying upon the decisions of the Supreme Court and this Court and contends that if the award part I is totally perverse and is vitiated by serious errors apparent on the face of the record, then, it is liable to be interfered with. He submits that such findings as are rendered by the court below have serious consequences inasmuch as de novo enquiry will have to be held before the tribunal and the entire process will have to be gone into over again. The prejudice that is caused to the petitioner is that there is no reference to any materials much less the same reproduced by this Court hereinabove. He submits that as to why the enquiry proceedings are unfair and improper has not been demonstrated by the Presiding Officer at 20 all. The learned Presiding Officer has been influenced to a great extent by the fact that the enquiry was conducted in the absence of the workman and he did not participate therein. Mr.Sanglikar criticises the award and by contending that the learned Presiding Officer failed to apply his mind to the aspect that the enquiry officer had before him the entire correspondence on the issue. The correspondence and the postal remarks clearly demonstrate that the letters have been received with remarks "Not claimed" as well. Mr.Sanglikar submits that not claimed is a postal remark which is entered into after a packet in the name of the addressee has been received in the concerned post office. The postman deputed for delivery attempts to make delivery or goes and tries to effect the delivery but the delivery is not accepted. Thereafter, the postal authority with the report from postman sends an intimation to the addressee that a packet has been received in his name and which 21 will be lying with the concerned post office for a period specified in the intimation within which he must collect it failing which it would be reported by the postal authority that he has not claimed the same. Such a procedure when followed is good service, according to Mr.Sanglikar. Further, the presiding officer also had this entire material before him including displaying of the charge sheets and other orders on the notice board. It is in such circumstances that the enquiry proceeding ex parte should not have influenced the Presiding Officer’s decision. With regard to the version of the workman that his mother was sick and then, he became mentally sick and unable to point out the same, has been referred to, according to Mr.Sanglikar, without adverting to any materials. He submits that the finding that the workman made out a case by number of correspondence and intimations is vague. According to Mr.Sanglikar, the record and proceedings including oral depositions speak 22 otherwise. Therefore, the finding that the concerned workman did not get an opportunity to make out his case as well as explain his absentism could not have been recorded. Therefore, the findings with regard to fairness of the enquiry and perversity of the findings of the enquiry, perversity of the conclusion of the enquiry officer are rendered without any reference to the oral and documentary evidence is the sum and substance of the contention. 20. Mr.Dange appearing for the workman has tried to support the impugned award. In his submission, this is a part I award. No prejudice is likely to be caused to the management and it will get an opportunity to prove the charges once again before the presiding officer. On the other hand, if this Court interferes with this finding then, prejudice will be caused to the workman. He submits that this is not a court of Appeals which can to re-appreciate and re-appraise the 23 materials and interfere with findings of fact in writ jurisdiction. In such circumstances, this petition should not be entertained. 21. Mr.Dange has invited my attention to a letter addressed by the workman and the statement of claim. He submits that specific pleas were raised and considered and that is how this Court should not interfere at this stage. 22. With the assistance of the learned Counsel for parties I have perused the award including the relevant documents and depositions. My attention was also invited to the report of the enquiry officer dated 24th October 1997. The same is admittedly on the record of the Tribunal. The enquiry officer has referred to, in details, with regard to the opportunities which have been afforded to the concerned workman. Each and every letter, its manner of delivery and displaying has also been referred to in report. 24 The notices of enquiry are also being referred. The report of the enquiry officer states that the charge sheet has been perused, records have been assessed so also the evidence. The enquiry officer has gone through the entire correspondence, medical certificate thoroughly. The workman had admitted remained absent unauthorisedly for 33 days from 17th February 1997 to 21st March 1997. There is no prior intimation. Many incidents have been referred to by the enquiry officer including punishment of censure in the past. It is not as if the enquiry officer has not adverted to the absence of medical grounds. 23. The deposition of the workman before the Tribunal also should have been considered by the Tribunal before recording any findings. The deposition has been perused by me. In my view, neither the statement of claim, nor the specific case of the petitioner so also oral and 25 documentary evidence has been perused by the Tribunal. With a view not to cause prejudice to both sides, I had indicated to them that the cryptic and virtually unreasoned finding can be set aside by consent and matter can be remanded for fresh decision to the Tribunal. 24. After the arguments were heard on the earlier occasion, today, Mr.Dange on instructions made a statement that the workman is not agreeable to this course of action. In my view, instead of this Court interfering with the findings of fact, by adverting to each and every material placed before the Tribunal, interest of justice would be sub-served by remanding the matter back to the Tribunal for a decision on Issue Nos. III and IV. The tribunal can proceed on the basis that findings on Issue Nos. I and II are not interfered with. They are not under challenge either. However, with regard to fairness of enquiry and the findings being 26 perverse or not, the Tribunal must examine each of the above materials and the rival contentions in that behalf. I find much substance in the criticism of Mr.Sanglikar that when the workman and Union espousing his cause comes out with a specific case which has been dealt with and denied as well by the management, then, the Tribunal should have referred to all these aspects in some details. The Tribunal has not at all adverted to the oral depositions. It had failed to apply its mind to relevant and germane materials. It is not clear to me as to how non-consideration of the representation and memos by the workman, after the enquiry and punishment, would straight away vitiate the Enquiry. I leave the matter here and comment nothing more. It has failed to consider as to whether the enquiry officer had given opportunity to the workman to defend himself and he failed to avail of the same or not. This was a vital aspect of the matter. This goes to the root of the same as well. 27 Enquiries, merely because they are ex parte cannot be brushed aside and a conclusion recorded straight away that the workman had no opportunity. A finding is recorded that the enquiry is unfair because it is ex-parte. Everything depends upon facts and circumstances of each case and no general rule is laid down. In the peculiar facts of this case whether the workman failed to avail of the opportunity or not is a crucial and relevant issue. Further, whether the workman has during the course of the deposition before the Tribunal placed before it the documents proving his illness and that of his mother, whether the workman is relying upon some stray admission or statements in the oral evidence or whether he has any independent material to support his pleas,