* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO. 13488 OF 1997 % 16.02.2006 # G. Bharadwaj, S/o Satyanarayana Raju, Hindu, aged about 48 years, Ex- Employee, Hindustan Shipyward Ltd., Resident of 48-17-2, Ashoknagar, Ashilmetta Junction, Visakhapatnam. ….. Petitioner Vs. 1. $ Hindustan Shipyard Ltd., rep.,bty its Chairman & Managing Director, Gandhigram, Visakhpatnam. ….Respondents. ! Counsel for the Petitioner: Sri V. Venkataramana ^ Counsel for the Respondents:Sri P. Nageswara Sree, S.C. < Gist: >Head Note ? Citations: AIR 1965 SC 155 2 AIR 1984 SC 289 3 1969(3) SCC 372 4 AIR 1977 SC 1512 5 AIR 1982 SC 673 6 (2000)3 SCC 324 7 (2005)3 SCC 134 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.13488 of 1997 ORDER: This writ petition is filed against the award of the Industrial Tribunal cum Labour Court, Visakapatnam, in I.D.No.17 of 1990, dated 27-08-1996, whereby the application filed by the petitioner-workman under Section 2-A(2) of the Industrial Disputes Act was dismissed holding that the petitioner was not entitled to any relief. Facts, to the extent necessary for this writ petition, are that the petitioner was appointed in the Hindustan Shipyard Limited in the year 1972. In May, 1985, he took charge of the seat dealing with public tenders and while he was working in the said capacity in the purchase department, he was issued charge-sheet on 15-07-1986, wherein three charges were framed and he was suspended from service. The charges levelled against the petitioner is that on 30-06-1986 he sold five demand drafts, submitted by various parties in favour of Hindustan Shipyard Limited, to one Pankaj Mehta, proprietor of M/s.Jyothi Corporation, Madras, to enable him to purchase tender documents from the purchase department of M/s.Hindustan Shipyard Limited. It was alleged that the petitioner had stolen these demands drafts when they were kept under the lock and key of Sri P.James, Purchase Officer and to have submitted them, with a covering letter dated 12-06-1986, to the cash section with the forged initials of Sri P.James. The procedure for submission of tenders is stated to be that the party intending to purchase tender documents should submit a requisition along with demand drafts or postal orders to the purchase officer, who would put his initial and issue directions to the concerned employee to issue the tender form. After tender forms are issued, the demand drafts are to be sent to the Accounts Department. The petitioner submitted his explanation denying the charges. The respondent-Management appointed Sri R.V.Krishna Rao, Personal Officer, as the Enquiry Officer to conduct an enquiry into the charges levelled against the petitioner. According to the petitioner, during the course of the enquiry, on 5.9.1987, he was not given an opportunity to cross-examine Sri Pankaj Mehta. The Enquiry Officer is said to have started the proceedings on that date at 8.30 a.m, to have set the workman ex-parte and to have closed the enquiry. The petitioner and his defence counsel are said to have requested the Enquiry Officer at about 12.00 noon to give them an opportunity to cross-examine the witness, but the same was rejected. Petitioner contends that he never sent any postal orders or demand drafts to the Accounts Department, under covering letter, in his handwriting and that the purchase officer, with the connivance of others, had been obtaining tender documents without submitting demand drafts or postal orders and that he was implicated and made a scapegoat. It is contended that while lesser punishments were imposed on Sri P.James and Sri T.V. Chandrasekhar, against whom serious lapses were found, the petitioner was victimized by removing him from service. It is contended that no police complaint was filed against Sri Pankaj Mehta. On receipt of the report of the enquiry officer dated 24.2.1988, holding the petitioner guilty of the charges, the General Manager (Designs and Material), vide proceedings dated 24.2.1988, dismissed him from service. Aggrieved thereby the petitioner approached the Industrial Tribunal cum Labour Court, Visakhapatnam, filing an application under Section 2-A(2) of the Industrial Disputes Act, 1947, which was numbered as I.D.No.17 of 1990. In his claim statement, the petitioner contended that the domestic enquiry was unfair, unreasonable, in violation of principles of natural justice, that a copy of the enquiry report was not supplied and that the order of dismissal was passed by an incompetent authority. The Tribunal, by order dated 10.8.1994, upheld the validity of the domestic enquiry. Aggrieved thereby the petitioner filed W.P.No.18893/94 which was dismissed by this Court holding that these questions could not be raised during the pendency of the industrial dispute. The Tribunal, in its award dated 27.8.1996, which was published on 22.10.1996, upheld the action of the respondents in dismissing the petitioner from service and held that the petitioner was not entitled to any relief in this regard. Aggrieved thereby, the present writ petition is filed. Sri V.Venkataramana, learned counsel for the petitioner, would contend that the order of the Tribunal upholding the validity of the domestic enquiry was without application of mind, that the burden was on the employer to prove that the domestic enquiry was valid, that the Tribunal had erred in shifting the burden on the workman, that the order of punishment imposed was by an incompetent authority, that the enquiry proceedings were conducted in violation of the principles of natural justice and that the petitioner was denied the opportunity of cross-examining the material witness. Learned counsel would contend that the Tribunal had failed to properly exercise the powers conferred on it under Section 11-A of the Industrial Disputes Act. Learned counsel, would refer to the order of the Tribunal dated 10.8.1994 wherein the Tribunal held that the domestic enquiry was not invalid. Dealing with the question as to whether the petitioner was given sufficient opportunity to cross- examine Sri Pankaj Mehta, the Tribunal, in its order dated 10.08.1994, noted that the witness was examined on 5.9.1987 and on the said day, as per the report of the enquiry officer, the delinquent and his counsel were not present to cross-examine the said witness, even though they were informed of the date and time of examination of the witness. The Tribunal held that since no representation was made before the enquiry officer on that particular date as to why they were not able to be present to cross-examine the witness and when an opportunity was given and it was not availed of, it could not be said that the delinquent was not given opportunity and that he could not at a later stage complain that principles of natural justice were not followed in his case. The Tribunal came to the conclusion that the management had given sufficient opportunity and had observed the principles of natural justice in conducting the domestic enquiry. While holding that it did not find any reason to hold that the domestic enquiry conducted by the management was invalid, the Tribunal held that the effect of not cross-examining Sri Pankaj Mehta, perverse findings, if any, of the enquiry officer and the legality of the same would be considered while disposing of the main I.D. on merits. Learned counsel would refer to the award passed on 27.8.1996 wherein, at paragraph 14, the Tribunal took note of the fact that Sri Pankaj Mehta could not be examined even in chief as both the delinquent and his defence assistant were not present and in their absence the witness could not be examined at all. Learned counsel would contend that failure to examine Sri Pankaj Mehta, (the recipient of the demand drafts, in whose letter marked as Ex.M.19 dated 10.7.1986 it was stated that he had obtained the demand drafts from the petitioner, which formed the basis of the petitioner being found guilty of the charges), must necessarily result in the petitioner being held not guilty of the charges. Learned counsel would contend that failure to examine this material witness vitiates the entire enquiry proceedings. With regards the competence of the General Manager to impose the punishment, Sri V.Venkataramana, learned counsel for the petitioner, would refer to the Service Rules & Regulations for monthly paid staff of Hindustan Shipyard Limited wherein clause 2 (c) defines ‘Manager’ to mean resident representative or any person authorized by the Managing Director of the Company for the time being to act in his place. Under Clause 16(iv), in awarding punishment under the standing orders, the Manager is required take into account the gravity of the misconduct and the previous record, if any, of the employee, and any other extenuating or aggravating circumstances that may exist. Learned counsel would submit that it is only the Manager and not the General Manager, who is competent to impose a punishment under the standing orders and since no other person has been authorized by the Managing Director of the company to act in his place, the punishment imposed by the General Manager (Designs and Material) was without authority of law and must be held to be an order passed by an incompetent authority. Learned counsel would also refer to the delegation of powers in Ex.M.1 wherein clauses 2 and 3 reads as under: “2. In the case of workmen, Disciplinary Authorities/Appellate Authority are spelt in the Schedule-I of the Standing Orders. Accordingly, General Manager (Personnel & Administration) (erstwhile C.M.(P) is the Disciplinary Authority for major penalties and Managers of the respective departments are the Disciplinary Authorities for minor penalties. Chairman and Managing Director is designated as the Appellate Authority for major penalties, for minor penalties the Appellate Authority rests with General Manager (P &A). 3. In the case of staff, the Disciplinary Authority is the Chairman and Managing Director of his nominee. In the delegated capacity, General Manager (P&A) is designated as Appointing and Disciplinary Authority, while the Appellate Authority rests with the Chairman and Managing Director. “ Under para 6 thereof, the disciplinary authority for imposing the penalties of stoppage of increments/reduction in pay/reduction in rank/dismissal, is the Chief Manager/Director/General Manager (Head of Group Division) and the appellate authority is the Chairman & Managing Director. Clause 11 provides that the revised procedure will come into effect from 1.7.1983 on a provisional basis and its continuance will be reviewed after six months. Sri V.Venkataramana, learned counsel for the petitioner, would contend that since Clause 11 provides that the procedure, prescribed in the delegation of powers dated 1.7.1983, was to be reviewed after six months, in the absence of any review, the procedure prescribed under the delegation of powers lapsed on 31.12.1983 and no reliance can be placed thereon to determine the competent authority, for imposing punishments, on or after 1.1.1984. Learned counsel would submit that since the punishment of dismissal, imposed on the petitioner, was on 24.2.1988, more than four years after the delegation of powers had lapsed on 31.12.1983, no reliance can be placed on the said delegation of powers and since the order of punishment has not been imposed by the manager, the order of punishment must be held to have been passed by an incompetent authority. Learned counsel would contend that Clause 11 of the delegation of powers must be strictly construed and not liberally interpreted since it is a penal provision and since this penal provision visits the petitioner with civil consequences, the interpretation accorded thereto by the Tribunal ought not be accepted. Learned counsel would further submit that since the value of the amount involved is negligible the punishment, of dismissal, imposed on the petitioner was grossly disproportionate to the charges held proved. Sri P.Nageswara Sree, learned standing counsel for the respondents, would submit that since clause 11 of the delegation of powers merely enables the Chairman and Managing Director to review the procedure and take a decision on its continuance, the mere fact that the said procedure was not reviewed, did not mean that the revised procedure, prescribed in the delegation of powers dated 1.7.1983, ceased to remain in force. According to the learned counsel, the revised procedure of delegation of powers continued to operate in the absence of its being reviewed by the competent authority. Learned counsel would refer to the award of the Tribunal wherein this question has been dealt with by the Tribunal. In paragraph 7 of the award, the Tribunal held thus: “It is elicited in the cross-examination of M.W.1 that there is no revised subsequent instructional order in this respect to his knowledge. But in view of the provision made in clause 11 for reviewing the procedure after 6 months, the same is to be taken as reviewed and accepted even after the expiry of the period mentioned therein by the management by its behaviour on following this procedure even after the said period of six months. In view of the statement of MW1 that Ex.M1 is being followed in all the cases of disciplinary action, it is to be implied that the Chairman and Managing Director reviewed and continued the same procedure and this position is implied unless and until Ex.M.1 is revoked by him by an express and specific order. Thus, I come to the conclusion that Ex.M1 governs the disciplinary action taken against the petitioner herein. In this Ex.M1, the disciplinary authority is stated to be general manager, who is the head of the Group division and where punishment of dismissal is considered ‘appropriate’, he shall consult the general manager (P&A) before imposing the punishment. Even as per the regulation 2(c) under Ex.W1, the Managing Director of the company is empowered to authorize any person to act on his behalf. It is stated in the reply written arguments filed by the management that the Hindusthan Shipyard Ltd is having its Chairman and Managing Director who heads the organization and who functions through several divisional departments and heads in order to have effective control of the working of the organization and powers are delegated to them, and Ex.M1 is one such delegation of powers relating to service matters. It is stated in the written arguments filed by the management that as per Ex.M1 the disciplinary authority is general manager (heads of division) and when the charge sheet was given to the workman in 1986, the divisional head of the purchase department where he was working is general manager (technical) and when the dismissal orders were issued in 1988 the divisional head is general manager (designs and materials). Thus, it is evident that concerned general managers at the relevant time issued charge sheet and dismissal orders respectively and thus, both are competent to issue the same. Further they have not stated to be below the rank of the chief personnel officer of the management company, who issued the appointment order under Ex.M2. Thus, viewed from any point, there is no force in the contention of the petitioner that the authorities, who issued charge sheet and who passed dismissal order against him are not competent to do so” It is well settled that the certiorari jurisdiction of this court, against orders of Tribunals, is supervisory and not appellate. This Court would not, normally, sit in appeal over the findings recorded by Tribunals and quasi judicial authorities unlike an appellate authority and even if this court, while exercising its jurisdiction under Article 226 of the Constitution of India, comes to the conclusion that another view is possible on the issue, so long as the conclusion of the Tribunal is a possible view, it would still not interfere, even if it is satisfied that other view espoused by the party challenging the award is also a possible view. The Tribunal herein has come to the conclusion that until the delegation of power under Ex.M.1 was revoked by an express and specific order, it would continue to remain in force. This conclusion of the Tribunal cannot be said to be a view which could not have been taken at all. The contention that Clause 11 of the delegation of powers is a penal provision and must be strictly constructed does not merit acceptance. The said clause in the order of delegation of powers, has been interpreted by the Tribunal. It cannot be said that the construction placed on Clause 11 by the Tribunal is an interpretation which could not have been arrived at all. The finding of the Tribunal in this regard does not call for interference, by this Court, in exercise of its certiorari jurisdiction under Article 226 of the Constitution of India. The conclusions reached by the Tribunal in holding that the order of punishment was imposed by a competent authority, does not, therefore, call for interference. It is no doubt true that Sri Pankaj Mehta, whose letter was relied upon by the enquiry officer to come to the conclusion that the petitioner was guilty of misconduct, was not examined in the enquiry. As rightly contended by Sri V.Venkataramana, learned counsel for the petitioner, Sri Pankaj Mehta (M.W.5), was not even examined in chief in the enquiry proceedings. The question, however, is whether failure to examine Sri Pankaj Mehta vitiates the enquiry proceedings. It is well settled that the Enquiry Officer, holding a domestic enquiry, cannot take any effective steps to compel attendance of witnesses and consequently cannot be said to have caused any procedural irregularity in not causing production of witnesses.(Tata Oil Mills Company Ltd. v. the Workmen; Shambunath Goyal v. Bank of Baroda). Since the Enquiry Officer has no power as a court to summon witnesses, just as the company produces its witnesses, the workman has to take steps to produce his witnesses. The Enquiry Officer has neither the power to produce nor compel the company to produce witnesses for being cross-examined by the workman (Tata Engineering & Locomotive Company Ltd. v. S.C. Prasad). Nothing prevented the petitioner, from producing Sri Pankaj Mehta as a witness in his defence. The mere fact that Sri Pankaj Mehta was not examined as a witness, cannot automatically lead to the conclusion that the enquiry proceedings are vitiated. It is no doubt true that the letter addressed by Sri Pankaj Mehta was also relied upon by the enquiry officer in holding the petitioner guilty of the charge of misconduct. While it would undoubtedly have been desirable to have Sri Pankaj Mehta examined in this regard, the question is whether non-examination of the said witness vitiates the domestic enquiry. It is well settled that unlike in criminal proceedings, the degree of proof required in domestic enquiries is preponderance of probabilities and not proof beyond reasonable doubt. Hearsay evidence is also permissible in departmental proceedings. In State of Haryana v. Rattan Singh, failure on the part of a conductor of the Haryana State Road Transport Corporation to collect bus fares from 11 passengers and consequent termination of his service was questioned on the ground that none of the passengers had been examined in the domestic enquiry. In this context, the Supreme Court held thus: “It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ‘residuum’ rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record……….” I n J.D.Jain v. The Management of State Bank of India, based on a verbal complaint from a savings bank account holder that, while he had withdrawn Rs.500/- , a debit entry of Rs.1500/- was shown in his pass book, disciplinary proceedings were initiated against the cashier to whom the said customer had given authorisation. On the basis of the verbal complaint of the customer, a charge sheet was issued against the cashier. The customer was not examined in the domestic enquiry. However, the officers to whom the customer had made the complaint were examined. Consequent upon his termination from service, the cashier approached the Industrial Tribunal and the Tribunal recorded a finding that failure to examine the complainant vitiated the enquiry proceedings and that hearsay evidence was not permissible. The Supreme Court held that strict rules of evidence were not applicable to domestic enquires and relying on its earlier judgment in Rattan Singh4 held thus: “The next question is, is the evidence in the domestic enquiry really hearsay, as held by the Tribunal? The word “hearsay” is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else. (see Stephen on Law of Evidence) The Privy Council in the case of Subramaniam v. Public Prosecutor,(1956)1 WLR 965) observed: “Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made.” In the instant case, the alleged misconduct of the appellant was that he forged documents, withdrew Rs 1500 — Rs 1000 in excess of the amount he was authorised to do and misappropriated the excess amount of Rs 1000. With regard to the fact whether the appellant manipulated the documents, withdrew excess amount and misappropriated it, there is, of course, no direct evidence of any eyewitness except the appellant’s ‘confession’ referred to above. The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence, namely, the authority letter containing the admitted interpolations by the appellant in his own handwriting in different ink, and the addition of the digit ‘1’ before 500. The evidence of Kansal would have been primary and material, if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter. But Kansal’s complaint was to the contrary. For the purpose of a departmental enquiry complaint, certainly not frivolous, but substantiated by circumstantial evidence, is enough. What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to the withdrawal of excess money by the appellant in presence of the four witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar, aforesaid,