v^^ .^ / II SHB HI@I GOffIS1 B?F PMDSSH A£ JAMIiPIg* ¥• P. Io. ^8ifo£1995. Abdal Shahid qEiraishl, ag©d3© yesrs, son of @Mri Abdul Sattar Qaraisfai, Braught sman ( CSLvil), (^atral Mne Plaaaiag aad Besiga iBstit-ate Idmited, Miaspyr, resldent Q/©Shri I. P. SMrlvastava, Qaarfcer No« 198, Agyayiaagar, Biiaspxr, (M<P.). ,'f k i E®?ITIOirgBs- .^ ^^ f •n«n-«-:-.-.^««c ^rr^'S^^^:; l»*».^»t<»M»^»^«*»wo.«<«lw ^»»...<^^——.*-^ vsmm s^ l«x Geatrai Mae JPtajming & Besiga lagfcit'ate lAiaited, a Begistered CbmpaiQr of Cbal ladta^ ©ovenameat of ladia iBderfcafciQg, through its ChairmajB/^aagijag B&reefeor, Head- qaarters ©ondwanapaiaee, Kaoke Boad, ^aehi, (Bihar). .^0^ m^^^^ ^r .r 2. fiegioaal Mreotor, Geatral Mne HLaiaaiBg & Eesiga lastitirte MBaited, ^ SegioB^I lastitiate lo. S, M« V. ^rg,^ Hew Bas Staad, BilaspTar. 3. Centzsai Governaent; la^strial TrlbTaiaar, throiagh its Qiairiaan Sfari &• i.wasthy, Amajapiir, Jabaipiir. SSS11IW OTBBB ^ESICS^M S^Q & 227 O^ IHS gQMSSISm'IOI !OF IIIIA* r HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Satish K. Agnihotri, J. WRIT PETITION N0.2584 of 1995 Abdul Shahid Quraishi Versus Central Mine Planning & Design Institute Limited & others A^^ POSTFOR ORDER ON ^ ^ NOVEMBER. 2005 l^. Sd/- Sadsh K. Agnihotri Judge ii<6 -^ < .-•.» ,: . ..,, 41, t^--,. . ^ ^(" <»'". .'• ; • ^ '•/<-' .'<(< y - '^ '•'>'"-<r <' •'•" "T'> "•••^ :': r*-""^' -' ''•' ":*t' ^ » ^^ ^ HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR V. Single Bench : Hon'ble Shri Satish K. Agnihotri, J. WRIT PETITION N0.2584 OF 1995 Abdul Shahid Quraishi Versus Central Mine Planning & Design Institute Limited and Others Present: Mr. K.R. Nair, Advocate for the petitioner. Mr. P.S. Nair. Sr. Advocate with Mr. P.S. Koshy, Advocate, for the respondents 1 and 2. ORDER (Passed on of November, 2005) The present petition filed under Article 226/227 of the Constitution of India jmpugns the award dated 31.03.1995 (Annexure-P/22) passed by the Central Government Industrial Tribunal - cum - Labour Court, Jabalpur (hereinafter referred to as "C.G.I.T.") in case Ref. No.CGIT/LC(R) (38)71994 whereby the C.G.I.T. held that the domestic enquiry was just and proper and the order of termination from service w.e.f. 20.01.1993 was justified on the ground that further the petitioner was found guilty of gross misconduct. 2. The facts of the case, in brief, are that the petitioner was appointed as Assistant Draughtsman (Civil) in the Central Mine Planning & Design Institute Limited, Regional Institute -V, BJIaspur (hereinafter referred to as "CMPDIL") on 11.06.1986. The petitioner continued to work in the same capacity till his service was terminated by respondent No.2 on 20.01.1993. S0 r The petitioner filed an application before the Assistant Labour Commissioner, Bilaspur under the provisions of the Industrial Disputes Act, 1947 for conciliation. On failure of the concjliation, the Assistant Labour Commissioner vide order dated 13.07.1993 referred the matter to the Central Government, Labour Department under Section 10 of the Industrial Disputes Act. The Central Govemment referred the dispute to the Central Government Industrial Tribunal - cum- Labour Court by its Notification No.L-22012/411/93-IR(C-ll), dated 21.04.1994, which is as follows: "Whether the action of the Management of the Regional Director, CMPDIL R-I-V, Bilaspur in dismissing Shri A.S. Quraishi, Draughtsman, from service, w.e.f. 20.01.93 is justified? If not, towhat relief the workman is entitled? " 3. The petitioner submitted his stetement of claim stating that the petitioner was a permanent employee of CMPDIL since 1986 as an Assistant Draughtsman and in the year 1991 he was promoted to the post of Draughtsman. The charge against the petitioner was that Shri N. Ghosh, Shri Jafar Mohammad, Shri D.K. Sahuand the petitioner along with others entered the chamber of Shri K.A. Parit, Additional Chief Mining Engineer on 04.06.1992 to persuade him to withdraw the Circular / letter dated 03.06.1992 issued by Shri K.A. Pant. The said circular provided for abolishment of empanelment of a Chemist and the employees were required to purchase the medicine against cash payment and subsequently submit their claim for reimbursement. It was further stated that Shri K.A. Pant filed a report against Shri N. Ghosh, Shri Jafar Mohammad, Shri D.K. Sahu and the petitjoner stating therein that the above said four persons tried to manhandle him. Accordingly, F.I.R. was ^y ^^ lodged on 06.06.1992 and the petitioner along with three other persons were suspended from the service on 08.06.1992. A charge sheet was served on the petitioner and others separately to the following effect: "To Shri A.S. Qureshi, Draftsman, CMPDI. Ri-V. Bilaspur. CHARGE SHEET fTHROUGH ACG & D) Dear Sir, It has been reported to the undersigned that on 04.06.92 at about 11.30 AM you along wjth S/S N. Ghosh, Jafar Mohd., D.K. Sahu and others entered the chamber of Shri K.A. Pant, Addl. CME and got the room bolted inside by one of your colleagues. You tried to bodily remove Shri Pant from his seat and throw him away. All along you and your colleagues were abusing Shri Pant in filthy languages such as Sala, Motherchod, Bahanchod, etc., and threatened that if he does not withdraw certain office order he would be met with ghastly end. Thus, threatening you left the room at about 12.00 noon. The above amounts to a gross misconduct under para 26.18 & 26.19 of Standing Order applicable to this establishment which read as under: "26.18 Assault, attempt to assault, threatening to assault, abuse, a co-worker or subordinate or super/isor while on duty or otherwise in connection with employment. r ., 26.19 Gherao, coerdon, intimidation, wrongful confinement or use of force for getting one's demand conceded by the Management." You are required to explain within 72 hrs. of the receipt ofthis letter as to why disciplinary action, even amounting to dismissal should not be taken against you. Ifthe reply is not received within stipulated time it will be presumed that you have no explanation to offer and the proceedings will be conducted ex parte. Pending enquiry and decision of the case you are hereby placed under suspension with Jmmediate effect. Yours faithfully, REGIONAL DIRECTOR" The Enquiry Officer was appointed and the first meeting of the enquiry took place on 04.08.1992. It was further stated in the statements of claim filed by the petitioner that Shri Badri Singh, Senior Accounts Clerk, C.D.S., Barkakana, was not available to assist the petitioner in the departmental enquiry. The Second meeting ofthe enquirytook place on 01.09.1992. On that date the petitioner was ill and the case was adjourned to 07.09.1992. The petitioner did not know about the meeting fixed on 07.09.1992, as such he was not available for hearing. The matter was fixed on 08.09.1992. On that day, the petitioner was directed to appear before the Enquiry Officer on 09.09.1992 along with his Defence Assistant. Within such short time the Defence Assistant could not be made available and thepetitioner requested for a dateafter 19.09.1992. The matter was deliberately fixed on 18.09.1992 so that the petitioner could not take advantage of the Defence Assistant. Accordingly, the matter was closed without affording an opportunity of hearing to the petitioner on 18.09.1992. It was further alleged that in the enquiry with regard to the other three persons, the Enquiry Officer Shri L.L. Shrivastava, accommodated the other three persons and gave them the opportunity to defend themselves, as a result, different orders were passed. The other three persons were awarded the punishment of withholding three increments with immediate cumulative effect and the present petitjoner was removed from the service for the same act committed by all the four persons including the petitioner. The Enquiry Officer submitted his report dated 13.10.1992 observing that the petitioner did not appear with his Defence Assistant on the first four sittjngs and on the fifth sitting i.e. on 09.09.1992 the petitioner made an application praying for permission to engage theservices of the new Defence Assistant Shri M.S.V. Chandra, Sr. P.A., Nagpur. The Enquiry Officer granted permission to have the services of the new Defence Assistant on the next date of hearing. It was further observed that in case the said Defence Assistant was not available on the next date of hearing, the petitioner could attend with any other Defence Assistant. On 18.09.1^2 the petitioner appeared with one more applicatjon that the Defence Assistant was not available as such any further date be given. The Enquiry Officer held that further date could be given for appearing with the Defence Assistant only if the petitioner was ready to appear on the next date of hearing without Defence Assistant in absence of non- availability of the Defence Assistant. The petitioner did not agree with the said observation and came out of the room refusing to participate in the enquiry. Accordingly, the enquiry was proceeded ex-parte. 4. The Enquiry Officer came to the conclusion that the petitioner along with 10-15 other employees entered the room of Shri K.A. Pant and bolted the room from inside and abused Shri Pant and caused physical ^ ^. harassment to Shri Pant. The petitioner and others even threatened Shri Pant wjth dire consequences in case certain part of the circular was not removed. The competent authority i.e. respondent No.2 accepted the findings recorded by the Enquiry Officer in its entirety and dismissed the petitioner from the service of CMPDIL with immediate effect by order dated 20.01.1993. 5. Respondents 1 and 2 filed their reply before the C.G.I.T. The C.G.I.T. after having considered the case of the petitioner as well as the Managementcame to the conclusion that principles of natural justice were not violated during the domestic enquiry and the findings of the learned Enquiry Officer were justified and proper. The C.G.I.T. further held that thepetitioner was guilty of gross misconduct by making criminal trespass in order to force the senior officer of the Management to withdraw the office order. Consequently, the C.G.I.T. found the action of the Regional Director, CMPDIL, RI-V, Bilaspur in dismissing the petitioner from service w.e.f. 20.01.1993 as justified. 6. Mr. K.R. Nair, learned counsel appearing for the petitioner submitted that the enquiry against the petitioner was conducted in a prejudicial manner. The petitioner was not given full opportunity of presenting his case properly by closing the proceedings of enquiry on 18.09.1992 after recording the evidence of the management witness. Learned counsel submitted that in spite of the prayer made by the petitioner for fixing the date after 19.09.1992, the Enquiry Officer fixed the meeting on 18.09.1^2 whereby the petitioner had lostthe opportunity of taking the assistance of his Defence Assistant to present his case properly. Learned counsel submitted that the other three similarly placed persons were awarded the punishment of withholding three increments ^M but the present petitioner was removed from the service for the same act committed by all the four persons including the petitioner. Learned counsel further submitted that nowitness had testified that the petitioner had tried to bodily remove Shri Pant or throw him out, either before the first Enquiry Officer Shn N.D. Kesari or before the second Enquiry OfHcer Shri L.L. Shrivastava and Shri Pant was the only witness before the Enquiry Officer. Learned counsel further submitted that Shri Pant was the complainant in the criminal case and the trial Court had disbelieved the statement of Shri Pant. Learned counsel further submitted that no enquiry or punishment was permissible on the identical set of facts if the criminal Court had come to the conclusion of acquittal on merits. The enquiry was conducted by an officer who was biased and prejudiced against the petitioner and the enquiry was held in violationof the Certified Standing Orders and copy of the enquiry report was not given to the petitioner. Learned counsel submitted that the punishment was awarded on a pick and choose basis in an arbitrary manner which amounted to hostile discrimination affecting the fundamental rights of the petitioner guaranteed under Article 14 and 16 of the Constitution of India. Learned counsel further submitted that the there was no evidence to show that the statement of Shri Pant was recorded jn the presence of the petitioner. Learned counsel further submitted that the petitioner lost the substantial right of appeal because the punishment was imposed with the approval of the CMD which is the appetlate authority. Learned counsel also submitted that the findings of the learned CG1T were perverse and the impugned award was passed without application of mind. Therefore, learned counsel submitted that the impugned award was liable to be set aside and further the petitioner deserved to be reinstated with full back-wages and all consequential benefits. 8 ^ 7. Mr. P.S. Nair, learned Sr. Counsel with Mr. P.S. Koshy, learned counsel appearing for the respondents 1 and 2 submitted that from perusal of the records.it was clear that the petitioner was neitherdenied any of the documents nor deprived of grant of opportunity for his defence. Learned counsel submitted that the petitioner was not co-operating with the Enquiry Officer and on each date of hearing, the petitioner had been adopting the method of obtaining adjournment on various grounds. Learned counsel submitted that in spite of the repeated opportunities, the petitioner did not avail the same and therefore, the contention of the petitioner that he had been deprived of the basic principles of natural justice inasmuch as he was denied proper oppprtunity of hearing and the grounds raised thereof in this petition are baseless. Learned counsel further submitted that the ground with regard to non-supply of the enquiry report to the petitioner, after completion of the enquiry and before issuance of the order of punishment, was never raised by him before CGIT. Learned counsel further submitted that even otherwise the settled principles of law is that the enquiry cannot be said to be illegal only for the reason of non-supply of enquiry report. Learned counsel further submitted that according to the charge sheet of each of the employees, who were charged for the same incident which took place on 04.06.1992. there was difference in the charge sheet of the each of the employees and it was the petitioner who had assaulted the complainant Shri Pant and used filthy language and, therefore, the act of the petitioner was apparently more severe than the act which was committed by the other persons. Therefore, the petitioner's submission that the charges levelled against him were identicat to that of the other three employees was not correct. Learned counsel further submitted that in the criminal case the tearned T' trial Court had acquitted the petitioner on technical ground of delay in lodging the F1R and had granted the benefit of doubt to him in the criminal case. Learned counsel also submitted that the law in regard to the fact that acquittal from a criminal case would not be of any advantage to an employee whose sen/ices have been terminated after holding the departmental enquiry is well settled and moreover in the present case the termination of the employee took place even prior to the acquittal from the criminal case. The law is well settled that in the case of indjscipline e.g. assault of superiors, using of filthy languages on superiors and act of violence at theworkingplace etc., the punishment of dismissal cannot be said to be disproportionate and there is no scope for interference in such cases. Learned counsel further submitted that the law is also well settled that fresh grounds cannot be permitted to be taken in a petition filed under Article 226/227 of the Constitution of India, which were never raised before the Court below. Learned counsel finally submitted that no prejudice was caused to the petitioner and the enquiry conducted by the Enquiry Officer was just and proper and an award which was passed on finding of fact cannot be challenged in a petition under Article 226/227 of the Constitution of India. Therefore, learned counsel submitted that no case for interference in the jmpugned award was made out and prayed for dismissal ofthe petition. 8. Having heard learned counsel for the parties and after having perused the documents of the case, it is found that the petitioner along with three other persons namely Shri N. Ghosh, Shri Jafar Mohammad, Shri D.K. Sahu and others entered into the Chamber of Shri Pant, Additional Chief Mining Engineer on 04.06.1992 to persuade hjm to withdraw the circular dated 03.06.1992. The petitioner along with others 10 used filthy language and threatened Shri Pant with ghastly end if Shri Pant did not withdraw the said circular. The petitioner further tried to bodily remove Shri Pant from his seat and throw him away. The charge sheets were issued to all the four persons on 08.06.1992. In the charge sheet of the petitioner it was specifically alleged that the petitioner tried to bodily remove Shri Pant from his seat and throw him away. In the other charge sheets it was stated that the petitioners tried to remove Shri Pant from his seat. As such, the submission of the petitioner that the charge sheets are identical is not correct and the submission of the petitioner to that effect is rejected. 9. With regard to the next submission that the petitioner was not given proper opportunity of hearing, it was found that the petitioner did not participate effectively and all the times prayed for adjournment on the ground that the petitioner wanted to engage the services of the Defence Assistant. On 18.09.1992 the petitioner appeared and again requested for adjournment to appear with his Defence Assistant. The Enquiry Officer agreed to grant time, however with the condition that on the next date of hearing if the petitioner was not in position to appear with the Defence Assistant the petitioner would be ready to appear in the matter. The petitioner refused to accept the sajd condition and walked away from the hearing. 10. I have perused the records and l found that the Enquiry Officer has considered all the aspects of the matter and examined all the records before coming to the conclusion that the petitioner was guilty of gross mis- conduct. The submission of learned counsel for the petitioner that the petitioner was not afforded proper opportunity of hearing in the departmental enquiry is untenable and deserves to be rejected. Even 11 ^ otherwise, there is no perversity or irregularity in the finding of facts and conclusion recorded by the Enquiry OfRcer on the basis of which the Regional Director dismissed the services of the petitioner with immediate effect by order dated 20.01.1993 (Annexure-P/2). 11. The submission of learned counsel for the petitioner that the petitioner was acquitted from the criminal Court for the same charges, as such the service of the petitioner could not be terminated on the same set of facts, is without any basis as the petitioner was acquitted on the technical ground that the F.I.R. was lodged belatedly and not on merit by order dated 27.04.1993 and the service of the petitioner, after holding proper enquiry was dismissed before the disposal of the criminal case on 20.01.1993. 12. The petitioner has not raised the issue of non-supply of the enquiry report before the Tribunal as such no finding could be recorded on the issue as to whether the enquiry report was supplied to the petitioner or whether the petitioner was prejudiced by non-supply of the enquiry report. At this stage, when the finding ofthe enquiry report is unambiguous, clear and the petitioner is in possession of the enquiry report, the order of the CGIT cannot be set aside on this ground alone. 13. The Supreme Court in catena of decisions has laid down that the power of judicial review is available to the High Court under the Constitution in case of the domestic enquiry and it can interfere with the conclusions reached therein if there was no evidence to support the flnding or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were per/erse or made at the dictates of the superior authority (Para-6 in Kuldeep Sinah ^ 12 Vs. Commissioner of Police and others - f19991 2 SCC -10) dted by the petitioner. In the present case, there is no perversity in the enquiry report. 14. The next submission of learned counsel for the petitioner is that the dismissal order was approved by the appellate authority j.e. Chairman cum Managing Director, CMPDIL, Ranchi, as such the petitioner had been deprived of the remedy of appeal which is a substantive right provided under the Standing Orders of the respondent - company. The petitioner relied on the decision of the Supreme Court in the case of Suriit Ghosh Vs. Chairman & Manaaina Director. United Commercial Bank and others - AIR 1995 S.C. 1053. 15. Learned counsel for the respondents submitted that this ground has been taken for the first time in the rejoinder submitted by the petitioner and the petitioner had not taken this ground either in the main petition or before the CGIT, as such no finding could be recorded by the Tribunal. Admittedly, this ground has been taken for the first time in the rejoinder which cannot be permitted. Even otherwise, the petitioner had sufficient opportunity to agitate his case before the CGIT and the CGIT had granted full opportunity to both the parties, as such the question of not providing for appeal will not prejudice the case of the petitioner. Accordingly, the dismissal order does not suffer from any inherent defect. The decision of the Supreme Court relied on by the petitioner in the case of Caot. M. Paul Anthonv Vs. Bharat Gold Mines Ltd. & another - (199913 SCC -679, for the purpose that the petitioner was acquitted in a criminal case on the same set of facts as such the findings recorded at the ex-parte departmental proceedings cannot stand, is not applicable to the facts of the present case. In the present case, the petitioner has not been 13 r\ •<- acquitted honourably, but on the ground of technical defect by not lodging the F.I.R. in time. The petitioner was acquitted on the ground of benefit of doubt. In the departmental enquiry the Enquiry OfRcer had gone into all the evidence, perused the records before recording the findings, as such the findings recorded in the departmental proceedings cannot be rejected on the ground that the petitioner was acquitted in crimjnal case on the ground oftechnical defect. 16. The Supreme Court in the case of Indra Bhanu Gaur Vs. Committee, Manaaement of M.M. Dearee Collaeae and others (2004) 1 S.C.C. 281. held in para 7 as under : "From the judgment of the High Court, in the writ petition it appears that there is no reference to the alleged infirmity on account of subsistence allowance having not been paid. There was also no specific finding recorded for the question of bias as alleged presently. We find that there was total lack of cooperation from the appellant as the factual background highlighted above would go to show. Ample opportunity was granted to the appellant to place his case. He did not choose to do so. It is only a perspn who is ready and willing to avail of the opportunity given, who can make a grievance about denial of any opportunity and not a person like the appellant who despite repeated opportunities given and indulgence shown exhibited defiance and total indifference to extending cooperation. Therefore, on that score the appellant cannot have any grievance. So far as the effect of not paying the subsistence allowance is concerned, before the authorities no standwas taken that because pf non-payment of subsistence allowance, he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. The appellant could not plead or substantiate also that the non-payment was either deliberate or to spite him and not due to his own fault. It is ultimately a ^) 14 <•• question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way