1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. SECOND APPEAL NO.419/2007 Smt.Leela Vitthal Sutar. ..Appellant -VERSUS- Pune Zilla Parishad, Pune. ..Respondent ......... Mr.Mahesh Subramaniam, Advocate h/f Mr.S.V.Pitre, Advocate for the appellant. Mr.S.V.Marne, Advocate for the respondent. .......... CORAM : A.P.DESHPANDE, J. DATED : 23rd MARCH, 2009. P.C. : 1. The appeal filed by the dismissed employee of the Zilla Parishad, Pune in the year 2004 came up for admission and by consent of the parties, the appeal is finally heard and is being disposed of by this judgment. 2. Few relevant facts, that give rise to the substantial question of law referred herein after, are narrated herein below:- (a) The appellant was appointed as Assistant Teacher in one of the schools administered and managed by the respondent Zilla Parishad in the year 1966. The appellant had put in unblemished and 2 satisfactory service till the year 1989 i.e. for a period of about 23 years. In the year 1989, the appellant was working as Assistant Teacher in a school at Narayangaon and by an order dated 07.09.1988, she came to be transferred to Rajguru Nagar and this transfer order gave rise to the dispute and consequent litigation. (b) It is the case of the respondent that the appellant did not join at the transferred place and did not obey the order and instead proceeded on medical leave. She availed medical leave till 23.09.1989 and thereafter, went to the school at Narayangaon (from where she was transferred). However, the Headmaster informed her to resume the duties at the transferred place. It appears that, thereafter, the appellant did not resume the duties at the transferred place and went on making representations. It will not be out of place, at this juncture, to mention that the appellant and her husband both were in the employment of the Zilla Parishad and came to be transferred by about the same time from Narayangaon to different places. It was this reason which promoted the appellant and so also her husband not to resume the duties at the transferred places. Ultimately, the disciplinary proceedings were initiated against both, appellant and her husband, which culminated in passing of order of dismissal from service. Aggrieved by the order of dismissal, the appellant instituted a civil suit calling in question the legality and validity of the order of dismissal dated 20.06.1994 and also claimed reinstatement with continuity of service together with back wages. 3 (c) The Trial Court decreed the suit by recording a categorical finding that the inquiry proceedings were in breach of the principles of natural justice and thus, the order of punishment is unsustainable in law. Violation of rule of audi altram partem as noticed by the Trial Court pertains to denial of opportunity to the appellant to lead the evidence. Aggrieved by the judgment and decree passed by the Trial Court, the respondent Zilla Parishad filed first appeal before the District Court. The first Appellate Court has concluded that as the appellant has not kept her witness present on the date on which the evidence of the Presenting Officer was recorded, there is no breach of principles of natural justice. Truly speaking, the first Appellate Court has not addressed itself to the contentions raised by the appellant about the inquiry being in breach of the principles of natural justice. The first Appellate Court has mainly gone by the conduct of the appellant on the date on which the evidence of the Presenting Officer was recorded and after completion of his evidence when the appellant was asked as to whether she would like to cross-examine the witness? She declined to cross-examine. Thereafter, the appellant was asked by the Inquiry Officer as to whether she would like to examine the witnesses on her behalf in support of her case? She answered that she would examine them at appropriate stage. Possibly the appellant being unaware of the fact that the Inquiry Officer would close the evidence on that very date. Recording of the statement of the appellant was concluded by about 5:45 pm in the evening and then she was asked as 4 to whether she intends to examine the witnesses. From the record it is not clear as to whether the Inquiry Officer explained the appellant that he proposes to wind up the inquiry or otherwise. The fact remains that though the appellant had made a statement that she wants to examine the witnesses, no opportunity was granted to her and the proceedings were concluded by about 5:45 pm on the date on which one witness was examined on behalf of the respondent/employer and it' s evidence was closed. 3. In the above referred fact situation, the learned counsel for the appellant has raised the following substantial question of law:- “Whether, the conduct of inquiry which resulted in denying an opportunity to the appellant to examine her witnesses in support of her case, has resulted in violation of the substantive provision of law which would vitiate the inquiry and the punishment or the violation is of procedural provision requiring further proof of prejudice caused to the appellant and if prejudice is caused to the appellant, what order?” 4. Before I proceed to deal with the question, I deem it appropriate to refer to the development in the case of husband of the appellant. The appellant's husband who was also an employee of the respondent Zilla Parishad was transferred to some other place by about the same time when the appellant was transferred. He having failed to join at the transferred place, the disciplinary proceedings were initiated which culminated in passing the order of dismissal from 5 service. Aggrieved thereby, the husband instituted a suit challenging the order of dismissal and claiming reinstatement with back wages and continuity of service. The said suit came to be dismissed. The first appeal filed by the husband was also dismissed and he filed the Second Appeal before this Court. I am informed at bar that the second appeal filed by the husband has been dismissed on account of absence of counsel when the matter was called out. 5. With this background, the learned counsel for the appellant, who is also appearing for the husband of the appellant in the connected second appeal, submits that the Second Appeal filed by the husband will not be prosecuted if and in case the limited prayer made by the appellant, which is in the nature of alteration of punishment from that of dismissal to compulsory retirement, is granted. It is submitted that the appellant has put in 23 years of unblemished service before the dispute cropped up on account of her transfer. It is submitted that if the punishment of dismissal is converted into the punishment of compulsory retirement which punishment is also a major punishment, the appellant would get some retiral/pensionary benefits which the appellant would otherwise loose in the event if the punishment of dismissal is maintained. 6. Turning to the judgment of the Trial Court which concluded that there has occasioned breach of the principles of natural justice rendering the inquiry and punishment unsustainable in law, it is to be noticed that the respondent had defended the action by 6 placing reliance on rule-6(6) of the Maharashtra Zilla Parishads District Service (Discipline and Appeal) Rules, 1964 which empowers the Inquiry Officer to decline permission to examine any witness on the ground that his evidence is not relevant. Thus, the stand of the respondent before the Trial Court as is revealed from the judgment is that the respondent claimed denial of permission to examine the witnesses by the appellant as a considered action of the Inquiry Officer under Rule 6(6) of the Rules of 1964. It is also relevant to note that the respondent did not contend that an opportunity was afforded to the appellant and she failed to avail of the same. In this context, the Trial Court has re-produced the last question put to the appellant and her answer to the same. If the question and answer is freely translated, the same reads thus:- “Question:- You are granted an opportunity to examine the witnesses in defence, so also you are permitted to cross-examine the Presenting Officer and if you wish to proceed with the same today, you are free to do so. Please answer the query. Answer:- I have not brought the witnesses today though I have received the notice to that effect. I will bring the witnesses at appropriate time. I do not want to cross-examine the Presenting Officer.” 7. After recording the answer extracted herein above, the evidence was closed. The evidence of the Presenting Officer was recorded till 5:45 pm on 17.01.1994 and thereafter, without 7 adjourning the case for recording of the evidence of witnesses of the appellant, the matter was proceeded further. There is absolutely nothing on record to indicate that the Inquiry Officer was aware of the nature of evidence which the proposed witnesses for the appellant would have deposed. Unless and until the Inquiry Officer had knowledge of the fact in relation to the aspect on which the proposed witnesses would have deposed, he could not have taken recourse to Rule 6(6). The Inquiry Officer could no doubt decline permission to examine any witness, however, such a decision has to be taken on being satisfied that the evidence so led would not be relevant. There is also further requirement in law when the Inquiry Officer refuses to grant permission to examine the witnesses to the delinquent employee and the same is that he must assign the reasons while declining permission to examine the witnesses. In the present case, no such reasons are recorded, is an admitted fact. Proceeding on this analogy, the Trial Court recorded a finding about the inquiry being in breach of the principles of natural justice and directed relief of reinstatement which finding came to be reversed by the first Appellate Court without dealing with the issue in greater details. Touching this aspect, the judgment of the first Appellate Court is very cryptic. The first Appellate Court has not considered that the respondent tried to make out a case before the Trial Court that the Inquiry Officer was justified in refusing permission to the appellant to examine witnesses and the case before the Trial Court was not that the appellant failed to avail 8 an opportunity to examine the witnesses. However, in an appeal, a finding is recorded that the appellant has failed to avail the opportunity to examine the witnesses. 8. Be that as it may, the learned counsel for the appellant has submitted that had the appellant been permitted to examine the witnesses, she would have been in a position to bring on record the circumstances to justify that awarding of punishment of dismissal would not be justified and would be shockingly disproportionate to the misconduct complained of. 9. I am of the view that the finding recorded by the Trial Court about the conduct of inquiry being in breach of the principles of natural justice by itself is sustainable. However, in the facts of the present case no serious prejudice could be said to have been caused to the appellant and whatever little prejudice is caused could be adequately compensated by altering the punishment from that of dismissal to one of compulsory retirement. Thus, I conclude that there has been breach of the principles of natural justice but the provision breached is procedural one. The appellant has succeeded in establishing that some prejudice is caused to her on account of denial of an opportunity to examine the witnesses. However, the said prejudice is capable of being redressed by altering the punishment from dismissal to that of compulsory retirement. The appellant cannot justify her continued absence after her transfer. Transfer being incident of service the appellant was obliged to join at the transferred 9 place. Having failed to join, the appellant is guilty of misconduct. 10. Thus, the appeal is partly allowed. The punishment of dismissal from service is quashed and set aside and at it' s place the punishment of compulsory retirement shall be deemed to have been imposed by the respondent. The appellant to bear her own costs. 11. The statement made by the counsel for the appellant in Second Appeal St. No.3088/2002 that the appellant will not prosecute the Second Appeal St. No.3088/2002 is accepted. A copy of this judgment be placed in the record of Second Appeal St. No.3088/2002. JUDGE