IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 12107 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- IOC LTD Versus HASHMUKH PANNALAL MAJMUDAR -------------------------------------------------------------- Appearance: MR MANISH R BHATT for the Petitioner. MR SJ SHAH for the Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 23/10/2001 ORAL JUDGEMENT 1. This petition is directed against the Award dated 15.4.2000, passed by the Industrial Tribunal, Vadodara, in Reference (ITC) No.1 of 1992. By the impugned Award, the Tribunal has partly allowed the Reference and the petitioner was directed to reinstate the respondent-workman on his original post, with 25% back wages. 2. The respondent workman was, initially, appointed as a Clerk-cum-Typist in the year 1974 and he was, subsequently, promoted as Senior Clerk in 1978 and in 1983, he was promoted as Office Assistant. As Office Assistant, he was in charge of processing leave applications, leave encashment, L.T.C. applications of the employees, etc. The respondent was subjected to charge-sheet on 13.8.1987 as regards various misconducts committed by him during the period between 1984 and May, 1986. Copy of the charge-sheet is produced at Annexure `1'. As per the said charge-sheet, dated 13th August, 1987, the respondent was subjected to following acts of misconduct :- " ... ... ... 1. You have falsified the leave entries either by erasing and / or overwriting in the service book/leave encashment applications. 2. You have omitted to make necessary entries in the service books of the employees. 3. You have fraudulently misappropriated the monies of the Corporation and / or aided the other employees to misappropriate the monies of the Corporation. 4. You have forged the signature of the officer on the leave encashment application to get the benefit. 5. In two cases encashment was allowed even before the leave became actually due. 6. Either yourself or in connivance and or collusion with the concerned employee, you have acted against the interest of the Corporation. 7. You have gained illegal benefit thus by encashing leave not due to you and accepted illegal gratification for obliging other employees. The facts leading to the aforesaid acts are : (a) Your own service book and leave encashment application. (i) In leave encashment application dated 8.1.1985, the entry in the service book shows 5 days where as you have actually availed encashment of 25 days. You have converted the 5 days on application to 25 resulting in excess encashment of 20 days. (ii) In leave Encashment application dated 11.2.1985 there is encashment of 10 days leave while there is absolutely no entry in the service book. Also it appears that you have forged the signature of officer Shri B.Arunkumar. This reveals that you have drawn encashment for 10 days by forging the signature of the officer. (iii) In leave encashment application dated 10.9.1985 there is encashment of 30 days leave, while there is no entry in the service book. The Officer Shri B. Arunkumar's signature appears to have been forged resulting in the benefit of 30 days encashment. ... ... ...." 3. Subsequently, Enquiry Officer was also appointed for the purpose of conducting departmental enquiry against the respondent-workman. Therafter, by letter dated 16th May, 1988, which is at page 28 in the compilation, the respondent-workman made a voluntary statement, on his own free will, before the Enquiry Officer. In the aforesaid statement, he has admitted the charges levelled against him. He tendered unconditional apology for the acts of misconduct. In his letter, he prayed that a compassionate view may be taken in his case. The relevant part of the aforesaid letter tendered by him to the Enquiry Officer dated 16th May, 1988 is reproduced as under :- " ... ... ... I admit the charges levelled against me vide charge-sheet No.P/I/56451 dated 13.8.87. I, therefore, submit an unconditional apology for the acts of misconduct as detailed in the charge-sheet referred to above. I request to the Enquiry Officer that keeping in view my age, the family circumstances and fact that I have voluntarily admitted my guilt recommended to the disciplinary authority that compassionate view may be taken in my case. For this act of kindness I shall ever remain grateful. I assure that I shall never repeat such acts again and shall work with utmost honesty and sincerity in future. ... ... ...." Therafter, second hearing of enquiry proceedings took place and the Minutes of the same is produced at Annexure `3', page 29. At that time, the respondent-employee was also present. The respondent No.2 has also put his signature on the same. In the said Minutes of the enquiry proceedings, it is clearly stated that the Enquiry Officer enquired from the charge-sheeted employee Shri H.P. Majmudar as to why his co-worker had not turned up for the enquiry and that he explained that the co-worker was not required and he himself will be pleading his case. The enquiry officer read out the charge-sheet to the charge-sheeted employee and asked him whether he accepts the charges or not and on that, he confirmed that he is accepting all the charges mentioned in the charge-sheet dated 13.8.1987 and he has also further stated before the Enquiry Officer that he is accepting the guilt on his own free will without there being any force, threat, intimidation or coercion. Ultimately, the Enquiry Officer submitted his report, which is at Annexure `4', page 31. Therafter, the Disciplinary Authority passed the final order dated 20.12.1988, which is at Annexure `5', page 33. The Disciplinary Authority came to the conclusion that the charges are serious in nature and considering the same, the penalty of dismissal is an adequate penalty under Clause 23 I (e) read with sub-clause III (d) of the Certified Standing Orders. The Disciplinary Authority, accordingly, dismissed the charge-sheeted employee with immediate effect. 4. Therafter, the petitioner gave an application to the Executive Director of the Refinery dated 12th January, 1989, which is produced at page 35, Annexure `6' in the compilation. In his petition, which he branded as "Mercy Petition", he had stated that the dismissal order is very harsh and that, it will destroy his family and jeopardise the future of his children without there being any fault on their part. In his said application, he has also stated that he will not indulge in any act in future, which is against the Rules and morally forbidden. In that petition, he prayed for sympathetic consideration of his mercy petition. By order dated 12.6.1989, the Executive Director came to the conclusion that the enquiry was conducted in a fair manner and in consonance with the principles of natural justice. It was found that sufficient opportunity was given to the delinquent employee. It was found that the punishment of dismissal was adequate and reasonable looking to the facts of the case. Accordingly, the aforesaid mercy petition was rejected by the Executive Director. 5. Thereafter, the respondent-workman filed an appeal before the Chairman of the Indian Oil Corporation Limited, New Delhi, by letter dated 22.5.1990. The said appeal was also dismissed. The respondent-workman thereafter took recourse of the provisions of the Industrial Disputes Act by making an application to the Assistant Labour Commissioner (Central), Ahmedabad, which resulted into Failure Report. Therafter, the Government of India, Ministry of Labour, referred the alleged `dispute' for adjudication before the Industrial Tribunal, Vadodara. Initially, the said Reference was made to the Industrial Tribunal, Ahmedabad, and subsequently, it was transferred to the Industrial Tribunal, Baroda, wherein it was numbered as Reference (I.T.C) No.1 of 1992. After considering the evidence of the parties and after hearing the concerned parties, the Industrial Tribunal, Vadodara, by its Award dated 15.4.2000, partly allowed the said Reference. The Tribunal passed an Award of reinstatement in favour of the respondent-workman, with 25% back wages. The aforesaid Award is impugned in the present petition at the instance of the petitioner-Indian Oil Corporation. 6. At the time of hearing of this Special Civil Application, it was argued by Mr.M.R. Bhatt, learned Advocate appearing for the petitioner, that the impugned Award is unsustainable as the Tribunal has failed to take into account the relevant facts and circumstances of the case. It was argued by Mr.Bhatt that the factual statement made in the Award is not correct as the Tribunal has observed that the charge-sheet is given after a period of three years from the date of the incident. He submitted that there is no such delay of three years and that the aforesaid statement in the Award is factually not correct. Mr.Bhatt also further submitted that the concerned workman, on his own free will and volition, admitted the charges levelled against him and once he has pleaded guilty to the charges, no further enquiry was required to be held against him by the Enquiry Officer. It is required to be noted that the Tribunal, while allowing the Reference partly, came to the conclusion that the charge-sheet was given after a period of three years and since no explanation is given for serving the charge-sheet at a late stage, the charge-sheet is required to be quashed and set aside. The Tribunal also came to the conclusion that it cannot be said that the charges against the workman are proved and, on the aforesaid two grounds, i.e, delay in serving charge-sheet as well as on the ground that the charges are not proved, the aforesaid Reference of the workman was partly allowed by passing an Award of reinstatement with 25% back wages. The Tribunal also came to the conclusion, by observing in paragraph 8 of the Award, that the concerned workman has merely stated that he is tendering unconditional apology, but he has never said that he is accepting the charges levelled against him. The Tribunal also came to the conclusion, in paragraph 10 of the Award, that the Enquiry Officer has given his findings only on the basis of the statement of the workman pleading guilty to the charges. The Tribunal came to the conclusion that the Enquiry Officer has not stated in his report as to the charges which are proved against the concerned workman and the Enquiry Officer has found that the charges are proved merely on the basis of the statement of the workman pleading guilty to the charges. The Tribunal, therefore, come to the conclusion that the charges against the workman are not proved in the enquiry. The aforesaid part of the reasoning is in paragraph 10 of the Award. Accordingly, on the ground that the charge-sheet was served after three years from the so-called incident as well as on the ground that since the Enquiry Officer has not given finding that the charges are proved against the concerned employee by giving reasons, the enquiry was vitiated and, ultimately, therefore, the aforesaid Award was passed. 7. Mr.Shah, appearing for the respondent, however, submitted that the so-called statement of the workman, by which he pleaded guilty, was not by way of free will and, therefore, regular enquiry should have been held against the employee. He further submitted that on behalf of the workman, various other points were raised, but the Tribunal, having accepted the Reference mainly on two grounds, did not deal with the other contentions canvassed on behalf of the workman, such as, not considering the question of penalty by the Disciplinary Authority objectively, as well as not giving copy of the report of the Enquiry Officer before passing the final order, as well as not giving hearing on the question of punishment before passing dismissal order. Mr.Shah also further submitted that, in any case, under Section 11-A of the Industrial Disputes Act, lesser penalty can be inflicted on the delinquent employee. 8. Both the sides cited various judgments to substantiate their say, to which I will refer later on. 9. I have heard both the sides in great detail and I have also gone through the Award of the Tribunal. In passing the aforesaid order, it seems that the Tribunal has taken a casual approach of the whole matter. It is not in dispute that before the Tribunal, a Pursis was given by the workman at Exhibit 53, wherein he has clearly stated that he is not challenging the legality and validity of the enquiry proceedings. It is also required to be noted that the concerned workman has never said at any point of time that he had pleaded guilty of the charges under some coercion or force. In fact, after admitting his guilt before the Enquiry Officer, even at the second stage of the enquiry proceedings, when a specific question was asked by the Enquiry Officer, whether he is pleading guilty voluntarily or not, he had stated that the aforesaid statement of pleading guilty was voluntarily made and that there was no force or coercion. Even the Notings of the second stage of the enquiry proceedings was also signed by him, Minutes of which is produced in the compilation of this petition. Even in his mercy petition, there is not a single word that the aforesaid aspect of pleading guilty was by way of force or coercion. Even in the appeal memo, which the concerned workman preferred, no such grievance was made. In fact, at no point of time, therefore, any such grievance was made by the concerned workman in any manner. Simply because, initially, in reply to the charge-sheet, the respondent has not admitted his guilt is no ground for coming to the conclusion that, subsequently, when he pleaded guilty before the Enquiry Officer, such voluntary statement made by him is not required to be accepted. Once there is a clear cut admission on the part of the concerned workman, in my view, the Enquiry Officer was not required to proceed with the departmental enquiry by examining other witnesses, as it was not required in view of the aforesaid admisison of his guilt on the part of the workman. The Tribunal has, therefore, not considered the aforesaid aspect properly and finding on the same is absolutely a casual one. Once the concerned workman has pleaded guilty to the charges and when there is nothing on record to show that the said statement is not a voluntary statement at all and especially when even subsequently, in his subsequent application, the workman had never complained about the aforesaid aspect about his aforesaid admission, it is difficult to appreciate the reasoning given by the Industrial Tribunal in coming to the conclusion that the Enquiry Officer was still required to proceed with the enquiry and was required to give finding on each of the charges levelled against the concerned workman. The concerned workman had pleaded guilty to the charges which were levelled against him and, therefore, it was not necessary for the Enquiry Officer therafter to give reasons for coming to the conclusion that the charges against the concerned workman are proved. 10. Similarly, the factual statement which finds place in the Award that the charge-sheet was issued after a period of three years from the alleged incident is not factually correct. Even Mr.Shah, the learned Advocate, clearly stated that the said statement recorded in the order is not correct. There were some charges which were related to the year 1985-1986 and the charge-sheet was issued in 1987. The Tribunal should have taken appropriate care before making such sweeping statement in the Award that the charges are levelled after a period of three years. Once a statement of fact is incorporated in the order, care is required to be taken to see that such statement is correct and is based on documentary evidence on record. In the instant case, the Tribunal has come to the conclusion that since the charge-sheet is issued after three years from the alleged incident, the charge-sheet, is required to be quashed and set aside. Before coming to the conclusion, care was required to be taken by the court and the Court should have found that the charges are related to 1985-1986 and the charge-sheet was issued in 1987. Such casual approach on the part of the Tribunal is, therefore, deprecated. It is hoped that, in future, appropriate care will be taken by the Court while incorporating the factual aspect of the dispute in the Award. Even otherwise, once the concerned workman has already accepted the charges by pleading guilty, it is difficult to appreciate the reasoning given by the Tribunal that since the charge-sheet is issued after a period of three years, the same is required to be quashed and set aside. Even such plea was never taken by the concerned workman at any point of time. 11. It is also required to be noted that the concerned workman had given a Pursis at Exhibit 53, by which he has clearly stated that he is not challenging the legality and validity of the enquiry proceedings. In that view of the matter, and in view of what is stated above, the Tribunal has clearly committed an error in coming to the conclusion that the charge-sheet is required to be quashed on the ground of delay as well as on the ground that the enquiry officer, who was required to give finding that the charges are proved against the concerned employee by giving reasons, against each of the charges which were levelled against the concerned workman, did not give such finding. 12. Both the sides have relied on the decision of the Apex Court in The Central Bank of India Ltd. v. Karunamoy Banerjee, AIR 1968 SC 266. Reference is required to be made to paragraph 19 of the said judgment :- " ... ... ... 19. We must, however, emphasize that the rules of natural justice, as laid down by this Court, will have to be observed, in the conduct of a domestic enquiry against a workman. If the allegations are denied by the workman, it is needless to state that the burden of proving the truth of those allegations will be on the management and the witnesses called by the management, must be allowed to be cross-examined, by the workman, and the latter must also be given an opportunity to examine himself and adduce any other evidence that he might choose, in support of his plea. But, if the workman admits his guilt, to insist upon the management to let in evidence about the allegations, will, in our opinion, only be an empty formality. In such a case, it will be open to the management to examine the workman himself, even in the first instance, so as to enable him to offer any explanation for his conduct, or to place before the management any circumstances which will go to mitigate the gravity of the offence. But, even then, the examination of the workman, under such circumstances, should not savour of an inquisition. If, after the examination of the workman, the management chooses to examine any witnesses, the workman must be given a reasonable opportunity to cross-examine those witnesses and also to adduce any other evidence that he may choose. ... ... ...." 13. Mr.Bhatt has also relied upon the decision of the Apex Court in Additional District Magistrate (City) Agra v. Prabhakar Chaturvedi and another, (1996) 2 SCC 12. It has been observed by the Honourable Supreme Court as under :- " ... ... ... 4. Having considered the rival contentions and also having gone through the written submissions filed on behalf of respondent 1 we find that the order of the High Court cannot be sustained. So far as non-supply of Enquiry Officer's report is concerned it has to be kept in view that no such contention was raised in the writ petition before the High Court. The High Court has noted this aspect. Nothing could be pointed out to us by learned counsel for the respondents to controvert this observation of the High Court. Whether the pleadings in the writ petition should be treated as pleadings in a suit or not is not relevant for deciding this question. Reliance placed in the written submission on R. v. Barnsley Metropolitan Borough Council also is of no avail to respondent 1. The said decision cannot support the contention canvassed on behalf of respondent 1 that even if there is no grievance made in the writ petition the High Court is bound to consider the said grievance. So far as the grievance about the non-examination of witnesses and non-supply of documents is concerned, in our view, the High Court has erred in ignoring the salient features of the case, namely, that respondent 1 himself by his statement dated 14.12.1984 admitted to have received an amount of Rs.21,000 and odd and which could not be deposited by him along with his associate on account of their carelessness and fault. It is difficult to appreciate how the said statement could be said to have been brought about by any coercion as tried to be submitted on behalf of respondent 1. But even apart from that the order sheet of the Enquiry Officer clearly shows that respondent 1 Prabhakar as well as Sajan Kumar had submitted that they have not to give any documentary or oral evidence and that is how their evidence was closed. Under these circumstances the subsequent request by respondent 1 to examine four more witnesses was rightly considered by the Enquiry Officer to be an afterthought and accordingly such request was rightly rejected. In fact on account of the clear admisison contained in writing given by respondent 1 on 14.12.1984 the charge against him stood proved on admission and the only question that remained to be considered was about the nature of punishment to be imposed on him. When respondent 1 was guilty of misappropriation of such a large amount of Rs.21,000 and odd for couple of months it could not be said that the punishment of dismissal as imposed on him was in any way uncalled for or was grossly disproportionate to the nature of the misconduct proved against respondent 1. For all these reasons the order of the High Court cannot be sustained and is, therefore, quashed and set aside. The writ petition filed in the High Court will stand dismissed. However, in the facts and circumstances of the case there will be no order as to costs. ... ... ...." 14. Reference is also required to be made to the decision of the Apex Court in Aligarh Muslim University and others v. Mansoor Ali Khan, 2000 AIR SCW 2976, wherein the Honourable Supreme Court has held as under :- " ... ... ... 20. As pointed out recently in M.C. Mehta v. Union of India, (1999) 6 SCC 237 : 1999 AIR SCW 2754 : (AIR 1999 SC 2583), there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Government of Andhra Pradesh, (1965) 2 SCR 172 : (AIR 1966 SC 828), it is not necessary to quash the order merely because of violation of principles of natural justice. 21. In M.C. Mehta it was pointed out that at one time, it was held in Ridge v. Baldwin (1964) AC 40, that breach of principles of natural justice was in itself