1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH WRIT PETITION NO. 20 OF 2008 Zilla Parishad, through its Chief Executive Officer, Wardha. ... PETITIONER Versus 1. Trambak Tanba Chaware, aged 68 years, occupation - Retired, r/o Mata Mandir, Ward No.6, Hinganghat, District – Wardha. 2. Shankar Ramaji Pahune, aged 65 years, occupation - Retired, r/o Bhuman Khadi, P.O. Waigaon Gond, Tahsil – Samudrapur, District – Wardha. ... RESPONDENTS Shri P.D. Meghe, Advocate for the petitioner. Shri R.R. Deshpande, Advocate for the respondents. ..... CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 05, 2009. ORAL JUDGMENT : 2 Heard Shri Meghe, learned counsel for the petitioner and Shri Deshpande, learned counsel for the respondents. 2. Shri Meghe, learned counsel points out that a minor penalty of recovery of losses sustained on account of negligence of both the respondents was inflicted upon them after completing enquiry as per Rule 7 of Maharashtra Zilla Parishad District Services (Discipline and Appeal) Rules, 1964, (hereinafter referred to as Discipline and Appeal Rules). That punishment has been set aside by impugned order dated 09.12.2005 by the learned Member of Industrial Court. According to him, as punishment inflicted was of minor nature, detailed enquiry was not necessary and necessary principles of natural justice have been complied with. In the alternative, he argues that as losses caused to public revenue have come on record, the learned Member of Industrial Court ought to have permitted the petitioner to conduct fresh enquiry against the respondents. 3 3, Shri Deshpande, learned counsel for the respondents contends that the alleged losses to public revenue have been presumed on the basis of a valuation report and that valuation report was not prepared in the presence of respondents. The learned Member of Industrial Court, therefore, has found the exercise of enquiry to be vitiated. He further states that no reply was filed in ULP Complaint filed by Respondent No.1 and in reply filed in ULP Complaint of Respondent No.2, no leave was sought to prove misconduct before the Industrial Court. He states that as requirements of Rule 7 of Discipline & Appeal Rules are not satisfied in present matter, the learned Member of Industrial Court has rightly found unfair labour practice and the orders have been set aside. 4. To substantiate his contention, he invites attention to orders of punishment dated 30.03.2001 and to respective explanation furnished by the respondents in response to show cause notice. The perusal of Discipline and Appeal rules mentioned above shows that Rule 4 prescribes penalties which 4 can be inflicted by the petitioner upon the respondents. Clause (iii) states recovery from pay of whole or part of pecuniary loss caused to Zilla Parishad by negligence or breach of orders to be penalty. Rule 6 which prescribes procedure for imposing major penalties shows that that penalties specified in clause (iv) to (vi) of Rule 4 are major penalties and Rule 7 which deals with procedure for imposing minor penalties classify penalties in clause (i) to (iii) and clause (viii) of Rule 4 as minor penalties. Thus, recovery from pay (retirement wages) of Respondents No. 1 & 2 vide orders dated 30.06.2001 and 30.03.2001 respectively is a minor penalty. 5. The perusal of rule 7 shows that the order imposing such penalty cannot be passed till the employee is informed in writing of the proposal to take action against him and the allegations on which such action is proposed. He is to be given an opportunity to make representation against it and such representation is to be taken into consideration by the Disciplinary authority. Under rub-rule (2), the record of such 5 proceedings must include the copy of intimation of proposal sent to employee, copy of statement of allegations communicated to him, his representation against it and the orders on it together with reasons therefor. Thus, Rule 7 expressly requires reasons to be recorded by Disciplinary authority before inflicting minor punishment. It also requires said authority to consider the representation made by such employee against the proposal and allegations communicated to him. 6. In present matter both the respondents had denied the allegations and have contended that they are innocent. Their respective representations dated 23.04.2001 and 31.04.2001 show that they had raised some points in defence. In this background, when both the orders of punishment are perused, the orders only mention facts leading to issuance of show cause notice i.e. communication of proposal and allegations and then filing of reply thereto by respective respondents. It mentions that the respondents appeared in person and were also heard. However, their defence has not at all been mentioned anywhere 6 in the orders of punishment. In other words, only the events which transpired have been mentioned and on the basis of that, a conclusion of recovery has been reached and order of punishment has been passed. How the grounds disclosed in defence by respective respondents were erroneous or irrelevant, has not been considered at all. Thus, the Disciplinary authority has violated requirement of Rule 7(1)(b) and also of Rule (2) (iv) of Discipline and Appeal Rules. The representation has not been taken into consideration at all and no reasons are recorded for imposing the punishment. In the scheme of Rule 7, it is apparent that imposing punishment itself is not sufficient and reasons as to why employee is found guilty or involved in misconduct must also be disclosed. The orders of punishment passed against the respondents do not disclose what was their defence and what they have urged orally. 7. The application of mind by the learned Member of Industrial Court need to be looked into in this background. The recovery is on account of excess expenditure on civil 7 construction. The computation of such excess expenditure is on the basis of valuation report which the petitioner has obtained. Thus, according to the petitioner, its records disclosed particular amount as spent on that construction while the construction on spot was not worth that amount. The difference in amount shown to have been spent and value of construction completed was sought to be recovered from respective respondents. The learned Member of Industrial Court has found that this valuation report was not binding on respondents as it was not prepared in their presence. It is apparent that if such valuation report was to be prepared or was already prepared and it was to be used to implicate the employees, they ought to have been given an opportunity even in that respect and they could have been asked to remain present for the purposes of said exercise. The reasons given by the Industrial Court, therefore, cannot be said to be either erroneous or perverse. No case is, therefore, made out warranting any interference in exercise of writ jurisdiction. 8. Shri Meghe, learned counsel for the petitioner has 8 urged that the employer should be permitted to reissue the statement of allegations and proposal to respondents. However, ULP complaints filed in Industrial Court were in relation to punishment orders in the year 2001. The period of misconduct is even prior to that. Representation of Respondent No.1 is dated 23.4.2001. It appears that Respondent No.1 had retired on 31.12.1997 and he has made grievance that valuation of works done since 1989 till 1997 was obtained after his retirement without any notice to him. From representation or statement of Respondent No.2, the period of alleged misconduct is not apparent. However, he has mentioned that period of more than four years had expired after the completion of said works. Thus, the effort to punish the respondents was for misconducts which were allegedly committed by them long before i.e. more than four years back before their retirement. In view of this position and particularly the objection to valuation report raised by both the respondents, it is clear that even if such liberty is given to the petitioner at this stage, nothing material would come out of it. The position could have been different had petitioner reserved 9 right to prove misconduct before the Industrial Court while filing their reply or written statement. Unfortunately that has not been done. Hence, in view of the judgment of the Constitution Bench of the Hon’ble Apex Court in the case of Karnataka State Road Transport Corporation vs. Laxmidevamma, reported at AIR 2001 SC 2090, the petitioner cannot be permitted to prove misconduct. 9. In the circumstances, writ petition is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE ******* *GS.