WP/6226/1997 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6226 OF 1997 Union of India, Thru’ Divisional Railway Manager, Central Railway, Solapur ... Petitioner V/s. Mukund Narayan Deshmane ... Respondent Mr. Rajiv Patil with Mr. Muzzaffar Baig i/b. Mr. A.N. Samant for the Petitioner. Mr. A.S. Rao for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATE : 7 TH MARCH, 2011. ORAL JUDGEMENT : 1. This Writ Petition filed by the Railways is directed against the Award dated 17th April, 1997 passed by the Industrial Tribunal, Pune in Reference (IT) No.8 of 1996. By this Award, the Industrial Tribunal directed the petitioner to reinstate the respondent-workman in his original post with continuity of service and 50% of the back-wages payable from the date he was terminated from service i.e. 31st May, 1986 till the date of reinstatement. 2. The petitioner, i.e. the Central Railway, had employed the respondent- workman as a “Junior Grade Clerk” from the year 1980. The Railways took note of his absence from duty from 14th February, 1985 on 2nd September, 1985 by issuing a memorandum indicating that a major penalty would be imposed on the WP/6226/1997 2 respondent-workman and that he should submit his explanation for his absence within 10 days. No explanation was furnished by the respondent-workman. Therefore, the Railways decided to initiate disciplinary action against the respondent. An Enquiry Officer was appointed on 16th September, 1985 to conduct an enquiry against the respondent for his long absence from duty. 3. An intimation was sent to the respondent-workman indicating that the first meeting for the enquiry would be held on 4th November, 1985 when he could be present with his defence Counsel. Another notice was issued on 5th November, 1985 to the respondent-workman directing him to attend the enquiry on 18th November, 1985. He was threatened that the enquiry would be conducted ex- parte if he failed to be present at the enquiry. On 7th January, 1986, the enquiry initiated against the respondent-workman was completed. It appears that the respondent-workman continued his absence and, therefore, the Railways called upon him to report for duty. However, a letter was sent by the respondent- workman to the Railways indicating that it was not possible for him to attend duty from 14th February, 1985 to 3rd March, 1986 since his mother had met with an accident and there was nobody else in the house to look after her. He reported for duty on 3rd March, 1986. The Railways directed that he should work as a Telephone Clerk. WP/6226/1997 3 4. It appears that the enquiry commenced against the petitioner on 21st March, 1986. On 25th April, 1986, the respondent appeared at the enquiry and defended himself. After taking into consideration the findings of the Enquiry Officer, the petitioner dismissed the respondent from service. 5. Aggrieved by the decision of the Railways, the respondent-workman preferred an Appeal before the Divisional Manager of the Railway Authority on 10th July, 1986. The Appeal was dismissed on 2nd June, 1987. Soon thereafter, a Revision Petition was filed. The Revision Petition was also dismissed in May, 1995. Thereafter, the respondent-workman obtained a Reference for adjudication of his dispute raised for reinstatement with continuity of service and full back-wages. That dispute was referred to the Industrial Tribunal, Pune in 1986. 6. In his statement of claim, the respondent contended that though he remained absent unauthorizedly for the aforesaid period, his termination from service was illegal. It was further contended by the respondent that a proper enquiry had not been conducted. He, therefore, claimed reinstatement with continuity of service and full back-wages. 7. The Railways in their written statement filed before the Labour Court pleaded that an enquiry was conducted against the respondent in accordance with the principles of natural justice after following the D.A.R. Proceedings. It was further pleaded that the Appeal preferred by the respondent as well as the WP/6226/1997 4 Revision Application had been rejected. In these circumstances, it was contended that the Labour Court should not interfere with the findings arrived at by the Enquiry Officer i.e. the Competent Authority. 8. The Labour Court, after considering the arguments of the parties, allowed the Reference and directed the petitioner to reinstate the respondent with continuity of service and back-wages. The Labour Court has observed that although the respondent had examined himself before the Labour Court, the petitioner had chosen not to lead any oral evidence and relied mainly on the enquiry proceedings and report of the Enquiry Officer. The Labour Court further held that the enquiry proceedings and the findings had not been proved by leading oral evidence in Court. Only photocopies of the proceedings were produced. The Labour Court, therefore, observed that the Enquiry Officer had not followed the procedure required by law. No reasonable opportunity had been afforded to the respondent to defend himself at the enquiry, according to the Labour Court. It was the contention of the respondent that he was not afforded an opportunity to show cause as to why the punishment proposed by the petitioner should not be imposed on him. In these circumstances, the Labour Court found that the enquiry was illegal and vitiated. The Labour Court found that since the enquiry held against the respondent was totally defected, the punishment inflicted on the workman of dismissal was shockingly disproportionate. WP/6226/1997 5 9. The main thrust of the argument of Mr. Patil, the learned Advocate appearing for the petitioner, is that the Labour Court has erred in concluding that the Railways have not afforded a reasonable and proper opportunity to the respondent-workman to prefer an Appeal before the Railways. He further submitted that the respondent had admitted his guilt of remaining absent from duty between 14th February, 1985 to 3rd March, 1986. Therefore, there was, in fact, no need to conduct an enquiry. He pointed out that the respondent had not attended the enquiry on any day except 3rd March, 1986 and, therefore, it was not open for him to contend that the principles of natural justice have not been followed. 10. Mr. Rao, the learned Advocate for the respondent, submitted that the Railways have not cared to furnish the report of the Enquiry officer to the delinquent workman. He relied on the two judgements of the Supreme Court indicating that before any punitive order is passed against a delinquent workman, he must be furnished a copy of the report of the Enquiry Officer and must be granted an opportunity to show cause why punitive action should not be taken against him. Mr. Rao submits that severe prejudice has been caused to the workman as he was unable to defend himself at the enquiry. He placed reliance on the judgement of the Supreme Court in the case of Union of India and Ors. vs. Mohd. Ramzan Khan, reported in AIR 1991 SC 471, and on the judgement of the Constitution Bench of the Supreme Court in the case of Managing Director, WP/6226/1997 6 ECIL, Hyderabad, etc. vs. B. Karunakar, etc., reported in AIR 1994 SC 1074. According to Mr. Rao, the failure to furnish the report has resulted in grave miscarriage of justice to the respondent as he was unable to prosecute the departmental appeal effectively. 11. In the case of Union of India and Ors. vs. Mohd. Ramzan Khan (supra), the Supreme Court, while considering the provisions of Article 311 of the Constitution of India, observed that the report of the disciplinary enquiry must be furnished to a delinquent employee. This is because he is entitled to contend that the charges have not been proved against him and the proposed punishment should not be inflicted on him. In the case of Managing Director, ECIL, Hyderabad, etc. vs. B. Karunaka (supra), a Constitution Bench of the Apex Court considered the judgement in the case of Union of India and Ors. vs. Mohd. Ramzan Khan (supra) and held that the judgement was applicable prospectively. The Constitution Bench held that whether in fact prejudice has been caused to the employee or not on account of the denial of the report to him has to be considered in the facts and circumstances of each case. 12. In the present case the Industrial Tribunal has held that the non furnishing of the report was contrary to the provisions of the Disciplinary and Appeal Rules applicable to the Railway Service. The Industrial Tribunal further held that the petitioner had not cared to prove the enquiry proceedings before the Court by examining any witness and, in these circumstances, the Court concluded that the WP/6226/1997 7 respondent was entitled to reinstatement. Apart from this, on the question of the report not been furnished, the Industrial Tribunal has held that the respondent was severely prejudiced as he was unable to file a proper Appeal to the Divisional Manager. Furthermore, it has held that the Revision Petition was dismissed because the respondent was unable to explain why the order of the Enquiry Officer was incorrect because the report was not served on him. 13. In my opinion, there is no need to interfere with the Award dated 17th April, 1997 passed by the Industrial Tribunal, Pune in Reference (IT) No.8 of 1996, granting reinstatement with continuity of service and 50% of the back-wages to the respondent. A possible view has been taken by the Industrial Tribunal which need not be disturbed under Article 227. 14. Accordingly, the Writ Petition is dismissed. 15. Rule discharged. No order as to costs.