IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 195 of 1997. Reserved on: 13.4.2007. Decided on: 1.6.2007. Mohan Lal. … … … Petitioner. Versus Himachal Pradesh State Forest Corporation & Others . … … … Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Shrawan Dogra, Advocate. For Respondents No.1 to 3: Mr. N.S. Chandel, Advocate. Rajiv Sharma, Judge: This petition is filed against the judgment of H.P. State Administrative Tribunal in O.A. No.1430 of 1996, dated 11.3.1997. The brief facts necessary for adjudication of this petition are that the petitioner was engaged as Supervisor on daily wages basis with effect from 1st June, 1989. The primary duty of the petitioner was to supervise the work of daily wage labourers Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - working in the Forests whether directly employed by the Corporation or by the contractors. The petitioner was issued a memo on 21.6.1996 alongwith proforma respondents No.4 and 5 who were working as daily wages chowkidars on the two timber lots of the Corporation. The gist of the memo dated 21.6.1996 was that due to the absence of the petitioner the timber of road depot had been stolen on the intervening night of 15th and 16th May, 1996 causing huge loss to the Corporation. The petitioner by way of this memo was directed to explain his position as to why the loss caused due to the theft should not be recovered from him and further why his services be not dispensed with from the work of daily wages basis. The petitioner was granted 5 days time to file reply to memo dated 21.6.1996. The petitioner filed a detailed reply to the memo on 26.6.1996 and submitted there in that he was working as Supervisor and he went to his home in the evening after performing his duties on 14.5.1996 and fell ill due to dysentery and thereafter he could not attend the duties on 15th- 16th May, 1996. The petitioner has explained in his reply that during the night it was duty of chowkidars to look after the timber lots. The petitioner’s services were dispensed with immediate effect vide memo dated 6th July, 1996. The petitioner alongwith proforma respondents No.4 and 5 approached the H.P. State Administrative Tribunal. The petitioner has averred in his original application that his services have been terminated without following the principles of natural justice and it was incumbent - 3 - upon the Corporation to institute regular inquiry to look into the alleged misconduct. The respondent-Corporation in its reply to the original application has stated that after the receipt of information about theft, the Sub Divisional Manager has conducted immediate inquiry. The H.P. State Administrative Tribunal dismissed the original application on 11th March, 1997. Mr. Shrawan Dogra has strenuously argued that the judgment of the learned Tribunal is not sustainable. Mr. N.S. Chandel has supported the judgment of the Tribunal while appearing on behalf of the respondent-Corporation. I have perused the record carefully and heard the parties. The contention of the petitioner is that serious charges had been leveled against him with regard to alleged theft which took place on the intervening night of 15-16th May, 1996 and a regular inquiry was to be instituted after affording reasonable opportunity to the petitioner. The question which needs consideration in this petition is whether a regular inquiry is to be instituted against the daily waged employee charged with the serious misconduct, he admittedly having put in more than 8-9 years service uninterruptedly. The petitioner had been working as Supervisor with the respondent-Corporation for the last 8 to 9 years. Nothing has come on record to show that the petitioner had at any given point of time been directed to look after the timber lots during the night hours. The petitioner was discharging his duties - 4 - from 9.00 A.M to 5.00 P.M. The Tribunal holds that preliminary inquiry was conducted by Sub Divisional Manager after the receipt of complaint of the theft which occurred on the intervening night of 15-16th May, 1996. This inquiry was just a fact finding inquiry to see prima facie whether any misconduct had been committed by an employee or not on the basis of which regular inquiry could be ordered. There is nothing on record to suggest that during the course of preliminary inquiry, the petitioner- workman was ever associated. The barest minimum which was expected from the Corporation was to put the adverse material before the petitioner to enable him to answer the same. The Corporation was to make available every adverse material to the petitioner to have his version. The petitioner without being associated with the preliminary inquiry, the report of which has not been placed on record, has been issued show cause notice vide Annexure P-3 on 21.6.1996. The negligence could be attributed to the petitioner only if there was some entrustment in respect of the timber lots made in writing to the petitioner. The notice does not disclose that any preliminary inquiry has been conducted against the petitioner regarding the charge of alleged theft of timber in the month of May, 1996. The notice Annexure P-3 was vague and not capable of being replied to satisfactorily. There is no mention of the volume of timber which is alleged to have been stolen and it has not been explained how much loss the Corporation has suffered due to theft. The petitioner was granted only 5 days time to file the - 5 - reply to be submitted to the Assistant Manager. In the notice itself, the petitioner has been directed to explain his position as to why loss accrued due to the theft should not be recovered from him and why his services be not dispensed with as daily wages Supervisor. Nothing has been stated about the amount which was to be paid by the petitioner due to the alleged theft. The Corporation was to call for the reply of the petitioner only with regard to the alleged misconduct, but the petitioner has been directed to explain in his reply why his services may not be dispensed with as daily wages worker. A reading of the notice shows that the Corporation has pre-judged the entire issue with regard to- a) loss suffered without quantifying the same; and b) the petitioner was to be terminated and that what was to follow was a mere formality. The petitioner filed reply to the show cause notice and disputed the version of the Respondent-Corporation. Once there was a serious dispute with regard to the nature of the duties performed by the petitioner and his role, it was necessary for the Corporation to institute a regular inquiry in accordance with the principles of natural justice. The petitioner has explained that he was absent on the intervening night of 15th-16th May, 1996 and that there was no written order to the petitioner to be present during night since he was to discharge his duties between 9.00 A.M. to 5.00 P.M. The respondent-Corporation vide memo dated 6.7.1996 terminated the petitioner on the ground of absence from duties - 6 - and also for putting the Forest Corporation to loss of lacs of rupees. The basis for issuance of memo dated 6th July, 1996 is the inquiry by Sub Divisional Manager and his own statement. So far as the inquiry of the Sub Divisional Manager is concerned, nothing has come on record that the petitioner was ever associated during the course of inquiry. The issue with regard to the statement of the petitioner has come only in the reply field by the respondent-Corporation to the original application that applicants No.2 and 3 arrayed therein have given their statements admitting their guilt. It is also not clear from the contents of memo dated 6.7.1996 when the statements of admission were made by proforma respondents No.4 and 5. Were these made during the course of inquiry or independent of it? This Court is of the opinion that once there were complicated questions of facts involved, it was incumbent upon the Corporation to hold a regular inquiry against the petitioner. The mandatory requirement of law was to have a charge sheet issued and a regular inquiry conducted and the requirements of law thereafter to be complied with before any action was taken against him. In the present case, the Corporation has in its show cause notice pre-judged the guilt of the petitioner and unilaterally came to the conclusion that the loss caused was attributable to the petitioners and accordingly, the petitioners services were to be dispensed with. The petitioner has specifically drawn the attention of the Administrative Tribunal to two judgments, i.e. - 7 - Maharashtra General Kamgar Union Vs. A.K. Co-op. Housing Society Ltd. and others, 1994 Labour Industrial Cases 1647 as well as Kuldip Singh Vs. State of H.P. and others, I.L.R. (H.P. Series) 1987, page 629 project that even in the case of daily waged employees, inquiry has to be instituted. The learned Tribunal has failed to take into consideration the ratio laid down in these two judgments. The Tribunal while considering the two judgments has come to the following conclusion:- ”We have no dispute with the principles laid down in the aforesaid cases relied upon by the learned counsel for the applicant. However, the facts and circumstances narrated above pertaining to the instant case does indicate though no regular departmental enquiry was conducted against either of the applicants yet semblance thereof has been carried out inasmuch as that the respondent-Corporation has conducted a preliminary enquiry and thereafter having satisfied itself as to the nature of defaultation committed by the applicants, they had in writing vide Annexure-A informed each one of the applicants of the proposed action, disclosed to each one of them the material to be used against them and they have been afforded opportunity to explain their conduct and submit their view point. It was consequent to the aforesaid explanation sought for from each one of the applicants that their view point was taken into consideration by the Respondent- Corporation and ultimately in view of the grave nature of the offence committed in relation to the mis-conduct of the applicant causing heavy loss - 8 - to the respondents because of the negligence of each one of them that they were disengaged from service.” The learned Tribunal has mis-directed itself on both facts and law while concluding that only semblance of inquiry was sufficient instead of regular inquiry. The mandatory requirement of law is compliance to the conditions stipulated and not a semblance as noticed by the Tribunal. The Tribunal has missed a very vital issue that the petitioner has already put in more than 8 years service with the Corporation and very serious charge has been leveled against him, which could be established by a regular inquiry. The preliminary inquiry held behind the back of the petitioner and issuance of show cause notice cannot be a substitute for regular inquiry or a compliance with Article 14 of the Constitution of India. There is nothing on record to establish such a course of action having been undertaken. Thus, the findings recorded by the Tribunal that it was not necessary to hold regular inquiry against the petitioner are contrary to law and are liable to be quashed and set aside. Even the show cause notice issued to the petitioner was not precise and the same was incapable of being replied by the petitioner effectively. The petitioner has been granted only 5 days time to file the reply. Once the petitioner’s reply has been received by the Corporation, the same was required to be considered with due application of mind. There is no reference of the contents of reply filed by the petitioner to the show cause notice. Even the findings of the preliminary inquiry are not - 9 - recorded in the communication dated 6.7.1996. The explanation of the petitioner concerning his absence has not been dealt with as submitted by him in his reply. There is no mention of the amount in the show cause notice issued to the petitioner but in the communication dated 6.7.1996 it has been stated that the Corporation has suffered a loss to the tune of a few lacs. It has come on the record that after the theft was detected; an F.I.R. was also registered on May 16, 1996. What happened to the FIR, were any arrest made, has not been mentioned anywhere in the pleadings. The Corporation should have at least waited till the out-come of the investigation on the basis of FIR dated 16th May, 1996. It is settled law by now that the adverse material which is gathered during the course of inquiry is to be supplied to the delinquent. In the present case, the material collected against the petitioner was not supplied to him thereby seriously prejudicing him. It is also evident that though one of the bases for dispensing with the services of the petitioner is the inquiry report, but the same has not been made available to the petitioner. The authority at the time of issuance of show cause notice has pre-judged the entire issue resulting in serious prejudice to the petitioner and grave violation of the principles of natural justice. The act of calling the petitioner’s explanation why his services should not be dispensed with is actuated with legal malafidies. - 10 - The order whereby the petitioner’s services have been dispensed with also suffers from substantive as well as procedural impropriety. The Divisional Manager has solely relied upon the report of Sub Divisional Manager as well as the statement as mentioned in order dated 6.7.1996 without applying his own mind. It was incumbent upon him to discuss at least the barest minimum contents of the report in the office order dated 6.7.1996. He has mechanically passed the order and has not even cared go through the record as to whether at any given time, the petitioner had made any admission of guilt or the circumstances in which the statement was given. Though it has come in the reply filed by the Corporation before the Tribunal that only proforma respondents No.4 and 5 admitted their guilt. The up-shot of the above discussion is that where serious allegations are leveled against any employee including the workmen appointed on daily wages basis, the same are to be looked into by holding a regular inquiry. During the course of inquiry reasonable opportunity is to be provided to the employee to defend himself effectively. As far as regularly appointed employees are concerned, the inquiry is to be conducted as per their own service Rules governing the discipline, but so far as the workmen appointed on daily wages are concerned, the principles as contained in the disciplinary Rules are to be followed to avoid mis-carriage of justice. This Court is satisfied that the petitioner has not been afforded a - 11 - reasonable opportunity of being heard during the course of the proceedings which culminated into his dismissal. It will be appropriate to extract the relevant portion of the memo (Annexure P-3) dated 21st June, 1996 on the basis of which the petitioner’s explanation was sought. “……. From this it is clear that this theft has taken place due to your negligence and un- responsible work, therefore you should explain your position as to why the loss occurred due to this theft should not be recovered from you and why your services be not dispensed with from the work of daily wager basis. Your reply in this behalf should reach within 5 days in this office through the Assistant Manager failing which further necessary action against you should be taken without any further intimation. The acknowledgement be sent through Asstt. Manager, Nankhari.” In the memo (Annexure P-5) whereby the petitioner’s services have been dispensed with on 6.7.1996, the following reasons are mentioned:- “As per the enquiry of Sub-Divisional Manager and that of your own statement it is clear that the occurrence of theft has been taken place due to your negligence and as a result of which the Forest Corporation has put in loss of lack of rupees. Therefore, on account of your absence from the duties and also to put the Forest Corporation in loss of lac rupees your services are hereby dispensed with immediately.’ - 12 - The allegation with regard to petitioner’s absence was never mentioned in the memo calling for his explanation on 21.6.1996. In Union of India v. T.R. Verma A.I.R. 1957 S.C. 882 the Hon’ble Supreme Court has held that :- “Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.” The expression ‘reasonable opportunity’ has been explained by the Hon’ble Supreme Court in M/s. Fedco (P) Ltd. and another v. S.N. Bilgrami and others AIR 1960 Supreme Court 415 as under:- ”The requirement that a reasonable opportunity of being heard must be given has two elements. The first is that an opportunity to be heard must be given; the second is that this opportunity must be reasonable. Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable. In the present case, a notice to show cause against the proposed order was given; it was stated in the notice that the ground - 13 - on which the cancellation was proposed was that the licences had been obtained fraudulently; and later on a personal hearing was given. It must therefore be held that the requirement that an opportunity to be heard must be given was satisfied. What the petitioners’ Counsel strenuously contends however that is though an opportunity was given that opportunity was not reasonable. In making this argument he had laid special stress on the fact that particulars of the fraud alleged were not given and an opportunity to inspect the papers though repeatedly asked for was not given. It is now necessary to consider all the circumstances in order to arrive at a conclusion whether the omission to given particulars of fraud and inspection of papers deprived the petitioners of a reasonable opportunity to be heard. There can be no invariable standard for “reasonableness” in such matters except that the Court’s conscience must be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent or even if they exit they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the grounds on which the action is proposed, the material on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such - 14 - proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegations and all other matters which help the mind in coming to a fair conclusion on the question.” It has been held in Ram Chandra Chaudhuri v. Secretary to Govt. of West Bengal and others AIR 1964 Calcutta 265 that:- “Point (3). Conscious as I am that a plea of mala fide rarely succeeds I find that in the present case, the circumstances attending the impugned order are glaring enough to substantiate the allegation. It is commonplace to state that mala fides does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes: (i) that the authority making the impugned order did not apply its mind at all to the matter in question (Vide L.J.J. D’Souza v. State of Bombay, (1956) SCR 382 (387): (S) AIR 1956 SC 531 at p.534); or (ii) that the impugned order was made for a purpose or upon a ground other than what is mentioned in the face of the order of Puranlal Lakhanpal v. Union of India AIR 1958 SC 163 (172). These principles have been applied by the Supreme Court in a case of reversion of a Government servant in the case of Sukhbans v. State of Punjab, AIR 1962 SC 1711, to which I shall have occasion to refer more fully hereafter. - 15 - In my opinion, the Petitioner before me has succeeded in establishing both.” The Hon’ble Supreme Court in Calcutta Dock Labour Board and others v. Jaffar Imam & Ors. AIR 1966 Supreme Court 282 has held hat whenever an employer desires to take disciplinary action against his employees on the ground that they being guilty of mis-conduct, it is absolutely essential for the employer to hold a proper inquiry. The Supreme Court has opined as under:- “There can be no doubt that when the appellant purports to exercise its authority to terminate the employment of its employees such as the respondents in the present case, it is exercising authority and power of a quasi-judicial character. In cases where a statutory body or authority is empowered to terminate the employment of its employees, the said authority or body cannot be heard to say that it will exercise its powers without due regard to the principles of natural justice. The nature or the character of the proceedings which such a statutory authority or body must adopt in exercising its disciplinary power for the purpose of terminating the employment of its employees, has been recently considered by this Court in several cases: vide the Associated Cement Companies Ltd;, Bhupendra Cement Works, Surajpur v. P.N. Sharma, Civil Appeal No.44 of 1964, dated 9-12-1964: (AIR 1965 SC 1595) and Bhagwan v. Ram Chand, Civil Appeal No. 764 of 1964, dated 1-3-1965: (AIR 1965 SC 1767), and it has been held that in ascertaining the nature of - 16 - such proceedings with a view to decide whether the principles of natural justice ought to be followed or not, the tests laid down by Lord Reid in Ridge v. Baldwin, 1964 AC 40, are relevant. In view of these decisions, Mr. Sen has not disputed this position and we think, rightly. Even in regard to its employees who may have been detained under the Act, if after their release the appellant wanted to take disciplinary action against them on the ground that they were guilty of misconduct, it was absolutely essential that the appellant should have held a proper enquiry. At this enquiry, reasonable opportunity should have been given to the respondents to show cause and before reaching its conclusion, the appellant was bound to lead evidence against the respondents, give them a reasonable chance to test the said evidence, allow them liberty to lead evidence in defence, and then come to a decision of its own. Such an enquiry is prescribed by the requirements of natural justice and an obligation to hold such an enquiry is also imposed on the appellant by Cl. 36(3) of the Scheme of 1951 and Cl. 45(6) of the Scheme of 1956. It appears that in the present enquiry, the respondents were not given notice of any specific allegations made against them, and the record clearly shows that no evidence was led in the enquiry at all. It is only the detention orders that were apparently produced and it is on the