1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.2008 OF 2009 S.N. Khatri ..Petitioner. Vs. The Regional Manager, Indian Tourism Development Corporation Limited and others ..Respondents. .... Mr. Vivek V. Salunke for the Petitioner. Mr. Saikumar Ramamurthy i/b Mr. Ramesh Ramamurthy for Respondents 1 and 2. .... CORAM: DR. D.Y. CHANDRACHUD, J. 14th December, 2009. P.C. : 1. The Petitioner who was employed as a senior accountant with the First Respondent was served with a charge sheet on 19th July, 1995. It is alleged that the Petitioner applied for the post of Assistant Registrar at IIT Kanpur by an application dated 21st November, 1991 in which there was a suppression of the fact that he 2 was employed with ITDC. The Petitioner was selected as an Assistant Registrar at IIT, Kanpur on 2nd June, 1992 and joined duty on 18th August, 1992. The Petitioner had obtained voluntary retirement from ITDC and was relieved on 30th June, 1992. However, on his request for the withdrawal of voluntary retirement, he was taken back in service by ITDC on 30th November, 1992. Thereafter between the period of 10th December, 1992 and 4th May, 1993, he had proceeded on leave from time to time. From 30th November, 1992 when he was taken back on duty by ITDC until 23rd June, 1993 the Petitioner was in employment both with IIT, Kanpur and ITDC. 2. A disciplinary enquiry was convened. The enquiry officer by his report came to the conclusion that the charges were proved. The Petitioner was subjected to the penalty of a stoppage of eight annual increments together with the recovery of the salary paid by ITDC during the period when he was in service with IIT, Kanpur. The Petitioner sought a reference to adjudication under Section 10 of the Industrial Disputes Act, 1947. The Industrial Tribunal dismissed the 3 reference holding that the Petitioner was not a workman. However, in order to render a full, final and complete determination, the Industrial Tribunal also came to the conclusion that the enquiry was fair and proper and that even on merits no case for interference had been made out with the disciplinary penalty. 3. Counsel appearing on behalf of the Petitioner submitted that the reasons which weighed with the Tribunal in holding that he was not a workman are specious. Learned counsel urged that evidence was adduced on behalf of the Petitioner in support of his plea that he was a workman within the meaning of Section 2(s) and that the Tribunal ignored both the evidence adduced on his behalf as well as the material admissions that were contained in the evidence of the management’s witness. On the merits of the findings, it has been urged that the Petitioner had raised a specific ground questioning the impartiality of the enquiry officer. According to the Petitioner, the enquiry officer was biased since on 12th February, 1997 he had addressed a communication to the Director (Commercial and 4 Marketing) in regard to the convening of a disciplinary enquiry against the Petitioner. Secondly, it was urged that it was the case of the Petitioner that he had submitted his resignation to IIT, Kanpur after he was allowed to join duty by ITDC and that he had not drawn his salary from IIT, Kanpur. 4. Counsel appearing on behalf of the management urged that the question as to whether the Petitioner is a workman may not assume much significance because even on the assumption that he is a workman, the Tribunal was justified in holding that the enquiry was fair and proper and that the charge of misconduct was established. 4A. For the purposes of these proceedings, it would be appropriate for the Court to proceed on the basis that the Petitioner was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Even so, the question would still remain as to whether there is any material to indicate that the enquiry was not fair and proper and whether the finding regard to the charge of misconduct suffers from any perversity. The admitted facts before the Court are that on 28th 5 May, 1992 the Petitioner had submitted an application for voluntary retirement to ITDC which was his then employer. The application was withdrawn on 15th June, 1992. The Petitioner had applied to IIT, Kanpur on 21st November, 1991 and was selected for the post of Assistant Registrar on 2nd June, 1992. He joined duty at IIT, Kanpur on 18th August, 1992. The request made by the Petitioner for withdrawal of his voluntary retirement was allowed by ITDC and on his request he was taken back in service with effect from 30th November, 1992. The charge of misconduct was that between 30th November, 1992 and 23rd June, 1993 he remained in employment both with ITDC and IIT, Kanpur. The report of the enquiry officer contained a careful discussion of the evidence on the record. The enquiry officer noted that the documentary evidence at Exhibit M-10, corroborated by MW-1 establishes that the Petitioner was in employment with IIT during the period from 30th November, 1992 to 26th March, 1993. The case of the Petitioner was that he had submitted his resignation to IIT, Kanpur. MW-1, however, deposed that the alleged letter of resignation was never received by IIT, 6 Kanpur and the Petitioner was as a matter of fact terminated from service by IIT, Kanpur on 26th March, 1993. MW-1, it may be noted, was the administrative officer at IIT, Kanpur. Insofar as the receipt of salary at IIT, Kanpur is concerned, the enquiry officer noted that Exhibit M-24 indicated that the salary during that period was deposited in the bank by IIT, Kanpur. Exhibit M-11 furnished details of the salary paid to the Petitioner from August 1992 to March 1993. MW-1 also corroborated that the salary of the Petitioner was drawn and paid to him by IIT, Kanpur. Though according to the Petitioner he had not drawn his salary from IIT, Kanpur, he did not produce any documentary evidence in the form of his bank passbook to indicate that the salary which had been deposited had not been withdrawn. In fact the Petitioner stated that he was not aware as to whether his bank passbook was available. In these circumstances, the management proved on the basis of cogent evidence including the evidence of the witness from IIT, Kanpur that the Petitioner had during the relevant period been in employment both with ITDC and IIT, Kanpur and that he had drawn his salary from both the 7 employments. 5. The contention of the Petitioner that there was a bias on the part of the enquiry officer is lacking in substance. The charge sheet in the present case was issued on 19th July, 1995. The allegation of bias is on the basis of communication addressed on 12th February, 1997 by the enquiry officer to the Director (Commercial and Marketing) by which he forwarded a memo dated 28th January, 1997 of the Executive Director (Vigilance). The Executive Director had in his memo pointed that action had not been taken on the reply submitted by the Petitioner to the charge sheet and that the Vigilance Department had received a complaint in that regard. A note was put up to the Director (Commercial and Marketing) to the effect that he may consider taking further action in the matter of the disciplinary case against the Petitioner in accordance with the recommendation of the Executive Director (Vigilance). The communication by the enquiry officer dated 12th February, 1997 would therefore demonstrate that he was merely forwarding a copy of the 8 communication that was received from the Executive Director taking exception to the inaction upon the reply submitted by the Petitioner to the charge sheet. The communication of the Executive Director was forwarded to the Director for necessary action in accordance with the recommendation of the Executive Director. The Petitioner has not exercised any personal volition nor is there any indication of a reasonable likelihood of bias. 6. For all these reasons, it is evident that the charge of misconduct that is alleged against the Petitioner was duly established in the disciplinary proceedings. The penalty that was imposed was, to say the least relatively lenient. The Petitioner was only deprived of eight annual increments and there was a direction for the recovery of pay during the period when he had worked for both the organizations. In that view of the matter, it is not necessary for this Court to enter into the question as to whether the Tribunal was correct in holding that the Petitioner was not a workman. Even on the assumption that the Petitioner was a workman under Section 2(s) 9 of the Industrial Disputes Act, 1947, the finding in regard to the fairness of the enquiry and the findings therein are entirely justified and correct. In that view of the matter, no case for interference is made out. The Petition stands dismissed. *****