IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.3.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.18414 of 2000 The Senior Superintendent of Post Offices Tirunelveli Division Tirunelveli – 627 002. ... Petitioner Vs. 1. The Industrial Tribunal Chennai. 2. R.Pillaiperumal ... Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records relating to the award of the first respondent in its proceedings I.D.No.71 of 1995, dated 22.2.2000 and quash the same. For Petitioner : Mr.V.Parivallal, S.C.G.S.C. For Respondents : Mr.R.Parthiban for Mr.V.Venkatachalam for 2nd respondent ORDER The Senior Superintendent of Post Offices, Tirunelveli Division is the petitioner. The petitioner is aggrieved by the award passed by the first respondent/Industrial Tribunal in I.D.No.71 of 1995, dated 22.2.2000. By the impugned award, the Tribunal held that the action of the petitioner in dismissing the second respondent from service with effect from 16.2.1992 is not justified and that he was entitled to be reinstated with full back- wages. 2. This writ petition was admitted on 1.11.2000 and pending the writ petition, this Court granted interim stay with a direction to deposit the entire back-wages and also to comply with payment of last drawn wages in terms of Section 17B of the Industrial Disputes Act. Subsequently, when the matter came up on 30.11.2000, the amount in deposit was directed to be invested with Indian Bank, High Court Extension counter initially for a period of five years and thereafter to be renewed periodically till the disposal of the writ petition. The second respondent was given permission to withdraw quarterly interest from the said deposit. It was also https://hcservices.ecourts.gov.in/hcservices/ directed that the last drawn wages for the second respondent should be paid from October, 2000 and should be continued to be paid till the disposal of the writ petition. With reference to the arrears for the months of October and November, 2000, it was also directed to be paid before 20.12.2000. Thereafter, the second respondent filed a petition to withdraw the amount lying in deposit. On the said petition, this Court, by order dated 10.2.2003, permitted the second respondent to withdraw Rs.25,000/- and the balance amount was directed to continue to be in deposit. On 11.9.2007, when the second respondent came with another petition to further withdraw the amount, the same was rejected by this Court and the main writ petition was directed to be taken up for final disposal. 3. Heard Mr.Parivallal, learned counsel for the petitioner and Mr.R.Parthiban, learned counsel for the second respondent. 4. The second respondent was engaged as an Extra Departmental Branch Postmaster at Seethaparpanallur Branch Post Office in Tirunelveli from 9.2.1979 to 5.8.1990. When the Assistant Superintendent of Post Offices made a surprise inspection on 6.8.1990, he found that several irregularities were committed by the second respondent and he had defrauded amount to the extent of Rs.32,935.60 and mingled with 27 Saving Bank Accounts and 69 Recurring Deposit Accounts. On such irregularities being found, the wife of the second respondent credited a sum of Rs.33,141.50 as an unclassified receipt. The second respondent was put off duty and thereafter, he was charge-sheeted on 6.2.1991. 5. Four charges were leveled against the second respondent. The second respondent denied the charges and Postmaster of the Head Post Office was appointed as Enquiry Officer. After conducting enquiry, including examination of 5 department witnesses and one witness on the side of the second respondent, a enquiry report dated 4.10.1991 was submitted. The Enquiry Officer held that charges (1) and (4) were neither proved nor disproved and charges (2) and (3) were proved. Charge No.(2) relates to suppression of three deposits and making two withdrawals from the depositors accounts. Charge No.(3) relates to affixing a false stamp on 8.3.1990 in the passbook of a customer, making a false entry and suppressing a deposit of Rs.700/- tendered by the depositor and failing to credit the same in the account. 6. An Adhoc Disciplinary Authority was appointed and the said authority issued a notice on the enquiry report and after the second respondent submitted his representation on 26.11.1991, the Adhoc Disciplinary Authority considered the explanation and issued an order of dismissal of the second respondent on 26.2.1992. The second respondent preferred an appeal on 30.4.1992 to the Director of Postal Services and the Appellate Authority modified the penalty into one of removal from service. A further petition sent to the authority was rejected on 15.10.1993. https://hcservices.ecourts.gov.in/hcservices/ 7. The second respondent, thereafter, raised an industrial dispute before the Labour Enforcement Officer (Central), Tuticorin. Since the conciliation was not successful, a failure report was sent to the Government of India. The Government of India, by exercise of the power under Section 10(1) of the Industrial Disputes Act, referred the issue for adjudication by its order dated 27.10.1995 to the first respondent. In the order of reference, it was stated whether the action of the Senior Superintendent of Post Offices, Tirunelveli Division in dismissing the services of the workman was justified and if not, to what relief he is entitled to. 8. On receipt of the reference, the first respondent/Industrial Tribunal took up the dispute as I.D.No.71 of 1995 and issued notice to the parties. The second respondent filed his claim statement and the petitioner filed a counter statement. Before the Tribunal, the second respondent/workman filed 19 documents and they were marked as Exs.W1 to W19. He also produced a copy of the judgment of the criminal court in C.C.No.143 of 1992, which was marked as Ex.W18. On the side of the petitioner five documents were filed and they were marked as Exs.M1 to M5. 9. It is on the basis of these materials the Tribunal came to the conclusion that in the domestic enquiry, copies of the documents relied on by the department were not furnished to the second respondent and no opportunity was given to him to peruse these documents. The Tribunal also held that the villagers, whose statement were recorded, were not examined in the enquiry and they were not made available for cross-examination, but their statements were allowed to be marked. It was further held that sufficient time was not given to the workman for leading evidence, thereby contravening Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules. It also held that since the disciplinary authority differed from the finding of the Enquiry Officer, an opportunity should have been given to the workman before coming to the conclusion that he is disagreeing with the findings of the Enquiry Officer. It is also noted that since the disciplinary authority did not give an opportunity of hearing to the workman before making a final decision on the findings, it is a clear case of infraction of the principles of natural justice. On the issue raised regarding the amounts being deposited by the wife of the second respondent and his relatives, it was stated that those amounts were adjusted against interest and penal interest payable to the depositors and recovery of such amount either from the workman or from his relatives will amount to a double punishment. It is in this view of the matter, the award came to be passed. 10. Mr.V.Parivallal, learned Central Government Standing Counsel submitted that the award of the tribunal suffers from material irregularities and is liable to be interfered with. https://hcservices.ecourts.gov.in/hcservices/ 11. In the present case, a copy of the minutes of the enquiry proceedings and also the relevant Service Rules relating to Extra Departmental Staff were circulated before this Court. But however, a perusal of the counter statement filed by the petitioner shows that there is no averment that in case the enquiry is held to be invalid, they are reserving their right to lead fresh evidence before the Tribunal. In the absence of such a pleading, in case this Court comes to the conclusion that the enquiry was unfair, the matter cannot be remanded back since no such power has been reserved by way of an alternative pleading. The Supreme Court vide judgment in Karnataka State Road Transport Corporation v. Lakshmidevamma, [2001] 5 SCC 433 has held that it is not obligatory on the part of the Tribunal to give any unsolicited advise for leading evidence and if the employer do not seek any permission the matter will have to be decided on the basis of the materials already on record. 12. Therefore, the only question to be considered was whether the enquiry conducted by the petitioner was in accordance with the rules of department and the principles of natural justice. 13. Admittedly, in the present case, the statements recorded by the department from the villagers/depositors were produced in the enquiry without those parties being examined. Therefore, the counsel for the second respondent, Mr.R.Parthiban was right in stating that in the absence of the authors of the reports and they being not made available for cross-examination, their statements cannot be relied upon. In this context, a reference was made to the Division Bench judgment of this Court in Indian Airlines and others v. W.B.Correya, 1978 II LLJ 437. The Division Bench has held that in a department enquiry if statements recorded behind the back of the charged employee are not put to the witness and the charged employee is not given opportunity to deny or affirm the same, then that cannot be said to be the evidence of that witness. Therefore, to this extent the findings of the Tribunal cannot be assailed. 14. The next question whether the action of the disciplinary authority in not giving an opportunity to the workman before he disagreed with the report of the Enquiry Officer is also no longer res integra. The Supreme Court in Punjab National Bank v. Kunj Behari Misra, [1998] 7 SCC 84 held that before disagreement, notice must be given on the enquiry report and not thereafter. Even though an appeal may be provided under the relevant rules, a post-decisional opportunity of hearing has no relevance. The said view of the Supreme Court has been further reiterated in the subsequent judgment in Lav Nigam v. Chairman and Managing Director, ITI Ltd. and another, [2006] 9 SCC 440, wherein it was held as under: "9. Challenging the orders of the respondent authorities the appellant filed a writ petition before the High Court. The appellant specifically raised the issue that the disciplinary authority was obliged to give a separate show-cause notice if the disciplinary authority https://hcservices.ecourts.gov.in/hcservices/ differed with the inquiry officer. The High Court also held that there was no need to give two separate show- cause notices one before the disciplinary authority found against the employee while differing with the view of the inquiry officer, and another against the proposed punishment. It was further held that the two notices could be combined in one. The writ petition was accordingly dismissed. 10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed. 11. In Punjab National Bank v. Kunj Behari Misra, [1998] 7 SCC 84 a Bench of this Court considered Regulation 7 (2) of the Punjab National Bank Officer Employees’ (Discipline and Appeal) Regulations, 1977. The Regulation itself did not provide for the giving of any notice before the disciplinary authority differed with the view of the enquiry officer. This Court held: (SCC p. 97, para 19) “The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” https://hcservices.ecourts.gov.in/hcservices/ 12. This view has been reiterated in Yoginath D. Bagde v. State of Maharashtra, [1999] 7 SCC 739. In this case also Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer. The Court said: (SCC p.758, para 29) “But the requirement of ‘hearing’ in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the ‘TENTATIVE’ reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of ‘not guilty’ already recorded by the enquiring authority was not liable to be interfered with.” (See also State Bank of India v. K.P. Narayanan Kutty, [2003] 2 SCC 449.) 13. We have already quoted the extracts from the show- cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show- cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside. 14. The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the appellant indicating his https://hcservices.ecourts.gov.in/hcservices/ tentative disagreement with the findings of the inquiry officer." 15. In view of the two crucial defects which were pointed out by the Tribunal, the enquiry conducted by the petitioner cannot be said to be fair and proper and the Tribunal's order in this regard cannot be said to be either illegal or contrary to the legal precedents on the said issue. The Tribunal has kept in mind all relevant legal precedents in arriving at such conclusion. Once it is held that the enquiry conducted by the petitioner is not valid, the natural corollary is that in the absence of any further opportunity, it is not for this Court to give any opportunity as held in Karnataka State Road Transport Corporation v. Lakshmidevamma, [2001] 5 SCC 433. Hence, the writ petition stands dismissed and the impugned award is upheld. However, there will be no order as to costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar sasi To: The Industrial Tribunal Chennai. +3 CC to Mr.V.Parivallal Advocate Sr.20109 +1 CC to Mr.V.Venkadasalam Advocate Sr.19911 W.P.No.18414 of 2000 AKR (CO) DRL 01/04/2010 https://hcservices.ecourts.gov.in/hcservices/