IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6254 of 1991 (O&M) Date of decision: 20.09.2011 Mohan Lal Verma (since deceased) through his LRs, House No.659, Gurdwara Dera Sahib, Manimajra (UT). ....Petitioner versus The Punjab State Cooperative Milk Producer's Federation Limited, through its Managing Director, SCO 3015-16, Sector 22-D, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ravi Kapur, Advocate, for the petitioner. Mr. Navdeep Sukhna, DAG, Punjab. Mr. Lalit Rishi, Advocate, for Mr. D.S.Patwalia, Advocate, for respondent No.2. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. I. Order of dismissal and grounds of challenge 1. The writ petition challenges the order of dismissal of the first petitioner (since deceased) by the respondent-Management. The action was pursuant to constitution of enquiry for an alleged misconduct of the petitioner during his service. The Enquiry Officer Civil Writ Petition No.6254 of 1991 (O&M) - 2 - had reported that the charges issued against him had been established and the Appointing Authority dismissed him from service. He preferred an appeal to the Managing Director, who had not disposed of the same requiring the petitioner to file a writ petition in CWP No.8462 of 1989. This Court had directed the appeal to be disposed of within a specified time and when it was not complied with, the petitioner had applied to the Court for contempt. The respondent pleaded apology in the contempt proceedings and took permission for disposal of the appeal. The appeal was subsequently disposed of by rejecting the petitioner's claim. The petitioner had filed the writ petition challenging the decision on essentially four grounds: (i) that he had not been given the assistance of a co-worker to defend himself which right he had under the relevant Standing Orders. There was consequently a serious flaw in the procedure of violation of the rules of natural justice; (ii) the Enquiry Officer’s report finding him guilty had not been given to him before the punishment was imposed dismissing him from service. Consequently, the order of dismissal is vitiated; (iii) the order of dismissal makes a reference to his alleged past conduct which had not been put to the petitioner and, therefore, it was an additional ground for rendering the decision as legally untenable; and (iv) the Appellate Authority had not given to him a personal hearing which was an essential facet of natural justice and consequently, the order of the Appellate Authority was against law. Civil Writ Petition No.6254 of 1991 (O&M) - 3 - II. The refutations by the Management and their respective justification 2. All these contentions are refuted by the respondents. It is contended that the petitioner had been afforded an opportunity of obtaining assistance of a co-worker but the petitioner did not secure the presence of such co-worker at his own risk. No error in procedure could, therefore, be pointed out. As regard the contention that the copy of the Enquiry Officer’s report was not given to the petitioner, it is urged that there is no specific requirement under the Regulations for handing them over before the decision was taken. The requirement is merely to giving the copy of the report which was done along with the decision of dismissal. In any event, no prejudice could be said to have been caused by the non-supply of the Enquiry Officer’s report. The reference to the past conduct was only to examine the existence of any extenuating circumstances. It was not used as an aggravating factor for imposing the punishment. The misconduct attributed to the petitioner itself was a serious one to merit a severe punishment of dismissal. As regards the failure of natural justice of not allowing for personal attendance of the petitioner, it is contended that there was no such requirement and the appeal itself was not competent, but the same was decided only as per the orders of this Court. III. Denial of co-worker to assist the defence set up by the employee – appraisal of questions of fact brought through documents Civil Writ Petition No.6254 of 1991 (O&M) - 4 - 3. On the issue whether the petitioner had been denied a right of a co-worker to defend himself, the matter has to be examined from the proof of the essential facts. As regards the provisions in the Standing Order 27(i), it is clearly spelt out that “the concerned employee shall be entitled to be assisted by any other representative of registered/recognized trade union or a co-worker.” The petitioner points out to the fact that he had given a representation for stoppage of enquiry before the Enquiry Officer on 02.05.1987 and had also forwarded the complaint on 21.05.1987 that the Enquiry Officer was proceeding without giving him an opportunity of assistance through a co-worker. The enquiry officer had a pre-judged opinion of guilt against the petitioner and denied to him such a facility. 4. The respondent denies that the petitioner was not permitted to avail the services of co-worker for defending him. I had caused the production of the original file from the respondent. The respondent has also filed an additional affidavit through the General Manager Balbir Singh to give the details of what the proceedings of the Enquiry Officer reveals from the file. It is seen from the proceedings that had taken place on 20.03.1987 before the Enquiry Officer that at the time of receiving a charge-sheet, the petitioner was specifically asked whether he would seek the assistance of any co-worker. The petitioner has given the name of one Krishan Kumar (Kapoor), who worked in Milk Plant, Chandigarh to assist him in the Civil Writ Petition No.6254 of 1991 (O&M) - 5 - enquiry. It appears from the file that he was granted time and on 22.04.1987, the representative had not come and the petitioner was specifically reported to have been informed that he should bring his co-worker at the next hearing i.e. on 06.05.1987 and if he did not bring him, the enquiry would be started without him. The enquiry file reveals that on 21.05.1987, the Enquiry Officer has recorded that the petitioner had preferred an appeal to the Managing Director against the enquiry proceedings. The petitioner was reported to have been informed that the enquiry would continue and he would not be allowed the assistance to defend. Evidently between 22.04.1987 and 21.05.1987, the petitioner was making complaints to the Managing Director that the Enquiry Officer was prejudiced against him and he was not giving him the opportunity to produce the co-worker to assist him. Actually the copy of the complaint filed as Annexure P-2 reveals that the complaint of the petitioner was not that a co-worker was not being permitted; on the other hand, his complaint was only that he was required to bring a co-worker at his own expense. The actual words are reproduced here:- “………….It is submitted that I am a poor and illiterate worker and I am repeatedly being told and threatened by Shri Ish Kumar, DMA which is Enquiry Officer against me that I should bring my co-worker Sh. K.K.Kapur at my own expense e.g. on leave (sic). Why this injustice to me. On the other side, Sh. K.K.Kapur says that he will Civil Writ Petition No.6254 of 1991 (O&M) - 6 - become my co-worker only if Sh. Ish Kumar will write to General Manager, Milk Plant, Chandigarh……” The grievance was, therefore, that the Enquiry Officer Ish Kumar was not summoning Shri Kapoor to be present to assist the petitioner. This cannot be taken a denial to the petitioner to secure the assistance. If the respondent had directed the petitioner to secure the assistance of a co-worker and would want no part in providing such assistance, I cannot take this to be a denial of a fair procedure. I have already referred to the requirement in the Standing Order that allows for the petitioner to have the assistance of a co-worker. It cannot be understood that such assistance must be provided by the Management. It is only an enabling provision for a worker to protect himself. The learned counsel points out that even in the written statement filed by the respondent, it is admitted that the petitioner was denied the permission to secure the assistance of a co-worker. On the other hand, I find what is stated in the reply is that the co-worker selected by the petitioner was not working in the Ropar Milk Producer's Union and, therefore, the answering respondent could not grant him leave. If the petitioner was to bring a co-worker of his choice and if for one or the other reason, the petitioner’s worker was not available, it was open for the petitioner to choose any other co-worker. The respondent has pointed out that the case was getting adjourned from 20.03.1987, 22.04.1987 and again to 27.04.1987 and 05.06.1987 only to allow the petitioner to secure the Civil Writ Petition No.6254 of 1991 (O&M) - 7 - assistance of a co-worker. I cannot, therefore, find that there had been any error in procedure or a denial of appropriate assistance to the petitioner to vitiate the enquiry. IV. E ffect of non-furnishing of enquiry officer’s report - effect 5. On the objection raised by the petitioner that the Enquiry Officer’s report was not given to him, the learned counsel points out that there was a specific requirement under the Standing Orders 27 (k), which obligated the respondent to supply a copy of the report to the accused employee. As a matter of fact, the case itself was admitted initially before this Court only on his pointing out that the Enquiry Officer’s report had not been supplied to him in terms of the law laid down by the Hon’ble Supreme Court in Union of India Versus Mohd. Ramzan Khan-(1991) 1 SCC 588. The learned counsel made much emphasis on the fact that when there was a specific requirement even under the Standing Orders and the failure to supply the Enquiry Officer’s report definitely prejudiced the ultimate decision taken for dismissal. Although the counsel for the respondent contended that the decision in Mohd. Ramzan Khan was to operate prospectively and the dismissal order had been issued prior to the dispensation in Mohd. Ramzan Khan, he qualified the same later to say that even if there was such requirement, the employee had to show how he has prejudiced by the non-supply of the report. The learned counsel would refer to the decision of the Hon'ble Supreme Court in the Constitutional Bench in Managing Civil Writ Petition No.6254 of 1991 (O&M) - 8 - Director, ECIL, Hyderabad and others Versus B. Karunakar and others-(1993) 4 Supreme Court Cases 727, that laid down that prejudice cannot be shown. The learned counsel for the petitioner would refer me to the decision in B. Karunakar itself which stated that the operative principle of prospective application to Mohd. Ramzan Khan was explained by the Hon'ble Supreme Court as inapplicable in cases where the relevant rules themselves provided for supply of Enquiry Officer’s report, as spelt out in the judgment itself with the following words:- “The only exception to this was where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employee.” 6. This aspect was also considered by the Hon'ble Supreme Court in a recent judgment in Punjab National Bank and others Versus K.K.Verma-2011(1) RSJ 427. The Hon'ble Supreme Court, while referring to the relevant rules and the exception to the prospective application of Ramzan Khan's case, had found the enquiry to be vitiated and remitted the matter before the authority to afford an opportunity to explain his position with reply to the charges and prove his innocence. There is no difficulty in accepting the contention of the petitioner in so far as to say that the prospective application of Mohd. Ramzan Khan will not operate and his case would come within the exception as carved out in Civil Writ Petition No.6254 of 1991 (O&M) - 9 - B. Karunakar. This would only mean that the employee was entitled to be served with a copy of the Enquiry Officer’s report by virtue of the specific requirement under the Standing Orders. 7. The next point that would have to be examined is by the fact that the mandatory requirement was not followed, would it ipso facto mean that the petitioner is entitled to have the dismissal order set aside? This question was specifically raised in B. Karunakar and the Hon'ble Supreme Court, even while holding that it was imperative that the Enquiry Officer’s report was supplied, answered the question in this fashion: “The answer to the question what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have Civil Writ Petition No.6254 of 1991 (O&M) - 10 - been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.” The Hon'ble Supreme Court, therefore, cautioned that while it could be an essential facet of natural justice to supply a copy of the Enquiry Officer’s report especially in a case where the Rules or Standing Orders also require the same, it would amount to unnatural expansion of the concept if it should be understood that a violation would mean a right of reinstatement. The Hon'ble Supreme Court, therefore, went on to add, “Hence, in all cases where the enquiry officer's report is Civil Writ Petition No.6254 of 1991 (O&M) - 11 - not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the Civil Writ Petition No.6254 of 1991 (O&M) - 12 - case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no Civil Writ Petition No.6254 of 1991 (O&M) - 13 - more, where such fresh inquiry is held. That will also be the correct position in law.” (underlined mine) 8. The point, therefore, that has to be addressed immediately is whether the petitioner was in any way prejudiced by the non-supply of the Enquiry Officer's report. The charge against the petitioner was clearly serious and not merely a small incident as the counsel for the petitioner was trying to make out. The charge was that on 12.11.1986, when he was informed that he was transferred from Engineering Section to the Production Section, he shouted at the Deputy Manager (Administration) and used filthy language against him. When he was advised to mind his language, he did not stop but broke the table glass with his fist. He made a further scene when other officers in that place advised him to keep restraint. 9. The text of the charge would require to be reproduced to examine the seriousness of the allegations:- “That on 12.11.1986 at about 10.00 A.M. you entered the office of Dy. Manager (Admn.), Milk Plant, Mohali and started shouting because you were not being allowed to work in Engineering Section. When told that you stood transferred to Production Section, you get furious and started using filthy language against the aforesaid officer and officials of the Admn. Section. On being told to behave properly, you did not stop and Civil Writ Petition No.6254 of 1991 (O&M) - 14 - broken the table glass with your fist. When again told to behave properly by S/Sh. Piara Singh and Parkash Chand Duplicating Operator, you tried to grapple with them. Thereafter, you immediately left the Section and went out of the Plant. Your Section as above constitute act subversive of discipline and disorderly behaviour which are actionable under the Model standing orders applicable to the Plant.” 10. The charge against him was a serious issue of insubordination and violent conduct and the Enquiry Officer had also made a reference to the evidence given by the Deputy Manager Shri D.R. Sharma and two witnesses, namely, Piara Singh and Parkash Chand, who had spoken about the incident. There surely contained a valid basis for the decision. If the manner of appraisal of their evidence was erroneous and it contained a patent error, the first occasion presented itself to the petitioner when he was preferring an appeal to the Managing Director. At the time when he preferred the appeal, it is clearly seen that the petitioner had the benefit of the Enquiry Officer's report and he had himself stated that the Enquiry Officer has not properly appreciated the evidence of the witnesses and failed to note the important contradiction in the version of the Management witnesses. The type of prejudice which B. Karunakar contemplates and what K.K.Verma refers to, should be such prejudice that employee, who had no clue how the Enquiry Officer Civil Writ Petition No.6254 of 1991 (O&M) - 15 - has found him guilty and he is blinded by inability to canvass against the correctness of the decision. It shall be such prejudice that the disciplinary authority would have altered the decision if the copy had been supplied to the employee and he presented valid objections to the report. It could be also an instance where the Enquiry Officer was taking a decision which was not based on any evidence or a clear mis-appreciation of what was brought as evidence. 11. I have gone through the Enquiry Officer's report and the Enquiry Officer clearly makes reference to the statement of the Management witnesses. I have also seen the statements of the witnesses themselves. There is no contradiction on any important aspect. On the other hand, the petitioner was trying to make out a case in the cross-examination which he has undertaken to do by saying that he was not present in office in the morning at the time and place suggested. He wanted to plead that he was unwell and was taking treatment at the ESI Hospital. At the enquiry, he also produced a certificate from the doctor about his treatment, but the petitioner himself admitted in the cross-examination by the Enquiry Officer that the certificate had been obtained in the evening from the doctor and not even at the time when he allegedly took treatment with the doctor. The Enquiry Officer had, therefore, come to a definite conclusion that the particular line of defence taken by way of alibi was not true and he was present at the place in the manner spoken to by the witnesses. In K.K.Verma (supra), the Hon'ble Civil Writ Petition No.6254 of 1991 (O&M) - 16 - Supreme Court was actually setting the clock back by directing the Enquiry Officer's report to be served to the petitioner to enable him to prove his innocence. In this case, there is not even such a need, for, the petitioner had been served with the copy of the Enquiry Officer's report along with the order of punishment. The order of punishment set out the fact that he was acting on the Enquiry Officer's report. While preferring the appeal, the petitioner did not even mention anywhere in the grounds that he was prejudiced by the Enquiry Officer's report by being not supplied to him, prior to the decision of dismissal. On the other hand, he was trying to show that the Enquiry Officer's finding was not proper and there were contradictions in the statements of the witnesses. I cannot see any prejudice to the petitioner for the Enquiry Officer's report was available in his hand and the Enquiry Officer's decision was based on evidence brought before him and the petitioner had to support his case only by showing serious errors in procedure. I find no such error in the manner of inference drawn or in the manner of how the petitioner could defend himself before the Enquiry Officer. I find, under the circumstances, no reason to hold that the petitioner was in any way prejudiced for not being served with the copy of the Enquiry Officer's report. V. Irrelevance of past conduct when it was not used for punishment but examined if it contained any extenuating