^' "> o ^'v^T^ IN_THE HIGH OOt?RT_OF JUDIC&TaRE_ OaiA'rTISGArai AT BIL&SPUR B.P N0^-o^-g_/2004 PETITIONERi RESJPONDENTS: -^ Sanesh Kuiaar Saha S/o Late Chait Earo sahu aged^Sl years, B/o Beblnd AJLrtel Office Kaiayan chaat Gall sarga Bagidia.Bilaspur ' Chhattlsgaih 8 VEBSUS s 1. Chhattlsgarh Infrastmeture Developmeat Gprporation Ltd. Through: Its Secretaiy Transport Division ^»**» JLA.caUff^v-t.l- ^-TJ-V^OJA/U L^^-::..y--^o:^-- DK S Bhawag, RaiEur{03) >* ******1.\.', ^^ • 2^ Chhat'td.soarb Sta'te Zsdtis ,nW<i ^' NO. ••""^.•,.SA.-'-'-." 2. cKhattisgarii State ladastrla 11 *'- A v.\f cf"^'t'" /-/^A , - '' rf^e6y^^y\ ';., %:.'( ^-^\ •" Oourt, Ralsurto?) ri.'- .-.0 3. Tbe Presidlng Offices, fcabour Gourt ,Bilaspur(CG) PBTXTION CTIDER ARTia<E 226/227 OF THE CONSTITUTIONOP IHDI& 5!g (,• '' HIQH<X)UI^WGHH^I"I1^^ WntPetitioBeMo. 208&of2004 Ftetitknaer RameshKumarSalm Versus Responaents eljLhatti^u^Iafi^tructuref JlcweIoiaalfiDttiorpOFatlbnt^^ ofhers Postibronler on ^ Juty; 2006 Sd/- SatishX Agnihotri Judge 5.7.200p- 1'; S"?I i'% .iii, :^r •.•?'';^ ^n •'t j: (^ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 2088 of 2004 Petitioner Versus Respondents Ramesh Kumar Sahu Chhattisgarh Infr^tructure Development Corporatiou Ltd. & others SIngle Bench; Hoa'ble Mr. Justice Satish K. Agnihotri. Shri P.S. Koshy, Advocate with Shri Vuiod DesliDiulcb, Advocate for the Petitioner. Shri Ashok Das Vaishnav, Advocate for the Respondent No. 1. ORDBR ( & Jvty, 2006) The prescnt petition filed under Ardcle 226/227 ofthe Constitution of India chaUenges the validity of fhe order dated 13.7.2004 (Annexure P/1) passed by the Industrial Court/respondent No. 2 in Appeals No.529/MPIR Act/91 and 569/MPIR Act/91. The iindisputed facts, ia nutsheB, are that fhe petitioner was appoiated as Conductor in fhe erstwhile Madhya Pradesh State Road Transport Corporation on 9.5.1983 aod was posted at BUaspur Depot The petitioner was served with fhe charge-sheet (Aiinexure R/7) for haviag comnutted niisconduct under Scction 12 (1) (B) (D) of fhe Standiag Orders by permitting 40 passengers to travcl without tickets between Sargaon to Bilaspiu- on 12.9.1990. The charge-sheet was issued by the Depot Manager (Enquiiy), Bilasptir. The enquity was conducted by the same of&cer i.e. Depot Manager (Enquiiy), Bilaspiir. Consequendy, by order dated 31.7.1991 (Anaexure R/12), fhe petitioner was dismissed from service by the same pcrson i,e. Depot ^ Manager (Enquiiy), Bilaspur without issuing show cause notice and withoiit supplyiag a copy ofthe enquiry report. Being aggrieved, the petitioner luoved an applicatiou under Section 31 (3) of ftie Madhya-Pradesh Industrial Relations Act, 1960 before the Labour Court. The Labour Court, after having considered aB fhe facts, came to the conclusion that the enquiry was ex-parte and fhe petitioner was hot -given sufficient opportunily of heariug. The petitioner was permitted to examine one of fhe inatiageineiit witaesses and the petitioner was further not peraaitted to lead his evidence ui support of his case. In view of fhat, the Labour Court by order dated 24.9.1991 (Annexure P/2) found fhat fhe order of termiaation was fflegal and ioiproper and accordingfy, directed the respondent No. l to reinstate fhe petittoner on fhe post of ftie Conductor wifhout back wages, The petitioaer being aggrieved, by refusal to grant back wages, filed appeal before the Industrial Court being Appeal No. 529/MPIR Act/91, The respondent No. 1 also filed an appeal agaiast fhe order of reiustatement being Appeal No. 569/MPIR Act/91. The Industrial Court, after having considered the cases of both the parties, by comiuon order dated 13.7.2004 (Annexure P/1) held fhat the petitioner has coUected fhe money to fhe tune of Rs. 160/- fiTQin the passengers aad defalcated fhe saine deHberately. Hence, flie order of the Labour Court dated 24.9.1991 (Annexure P/2) was quashed and the impugned teiinination order dated 13.7.2004 (Anaexiire P/1) was held vaJlid an.dlegal. Shri P.S. Koshy, leamed counsel appearfag for fhe petitioner submits that fhe petitioner was not afforded opportuiuty of hearing aad the euquiry was proceeded ex-parte. Leamed counsel for fhe petitioner further submitted fhat the petitioner was not granted opportunity to ^Jii^i,;;:! 7. exanune his witnesses and to cross examine one of the witnesses of fhe inanageinent. Leamed coiunsel next subinitted fhat fhe pctitioner was present fhroughout in the enquiry proceedings which started on 17.10.1990, except on few occasions on the ground of unavoidable circumstaaces, The petitioner was .present on 4.7.1991 whea the enqiuiy ofScer fixed the matter on 19.7.1991 for evidence. On 19.7.1991, the petitioner could not make himself available due to unavoidable circunistances. The euqiiiiy officer proceeded ejc-parte, decluung fhe opportunity of hearing to fhe petitiouer aad closed tfae enquiry for orders. Action of the enquiiy officer to proceed ex-parte under such circuiiistances ainounts to denial of fair-play in action. It was next contended fhat the Disciplinaiy Aufhority, Depot Manager (Enquuyj hiinself was fhe charge-sheetmg officer, enquiriug officer, presentiag of&cer and disciplinaiy authority. The enquiring'officer couM not have acted as presenting officer. It aiaoiints to violation of principks of natural justice and causes prejudices agamst the petitioner. The prosecutor cannot be a judge. The conduct of the discipUnaiy authority by peribmung all the duties huuself as charge- sheeting ofBcer, enquuing officer, presenting officer and discipluiaiy authorily clearly indicates that fhcre was a peraonal animosity against the petitioner. Shri Ashok Das Vaishnav, learued counsel appearing for the respondent No. 1, per contra, submits that the petitioner was given sufi&cient opportunily of hearing. The petitioner remained absent on 19.7.1991, so'the proceedings against the petitioner was just and valid. It is aduutted by leamed counsel for fhe isspondent No. 1 fliat out of two witnesses, examined by fhe inanageinent, one was cross examined by the petitioner. The petitioner could not be given opportttnily to cross exainine the second witness and to examine his 4 . :3<liiii rSBl'aw 9. witness in support of his case on 19.7.1991, as the petitioner remaiaed absent from the pioceedfaigs. The petitioner is estopped from raising the issue of violation of priuciples of natural justice as the petitioner absented hitnself on fhe date fixed for evidence. It was next contended fhat fhe disciplinaiy authority was competent to act as a charge-sheeting ofEcer, euquirmg officer, presentmg oflBcer as well as the disciptinary authority and this does not prejudice the case of the petitioner, pardcularly, in view of fhe fact that the petitioner was caught red hauded. The petitioner permitted 40 passengers traveUng without tickets fiom. Sargaon to Bilaspur for about 10 kUoiuetera. Ttiis ainounts to breach of trust. The said conduct of the petitioner falls withia the purview of gross inisconduct under Section 12 (1) (B) (D) of the Sfetndiug Orders. Hence, fhe punistunent of disinissal fiioni service is just and proper. I have heard learaed counsel for the pardes aad perused the records appended to £he petition and retum. It is evident fhat the petitioner was present ia the course ofthe enqtiity on 4.7.1991. The inatterwas adjoumed and fixed for further evidence on 19.7.1991 when the petitioner could not make himself avaUable for the enquiry. The enqiuring of5cer proceeded ex-parte without graating even one adjouniment eiiabling the petitioner to participate ia further enquiiy for cross examiuation of the manageineiit witness and for adduciag his evidence. It is further established fhat the charge-sheeting officer, enquiriag ofEcer, presenting officer and disciplmaiy aufhority was one the depot manager (enquiiy), Bilaspur. The question for consideratioa is whether the ex-parte proceedings of the enqiuiy on 19.7.1991 m absence of the deliaquent employee petitioner amount to violatioa of principles of natural justice and denial offair-play in action. It is the case ofthe respondents/employer ^^i¥;:K^ fhat fhe enquiry report was prepared by two uispectora on fhe basis of spot inspection of the bus on 12.9.1990, wherein 40 passengers were fouad wifhout holdiug proper tickets. Explanation of fhe petitfoner that the petitioner was in the process of issuing tickets aad he couM not issue tickets to 40 passengers, though fhe bus had already traveUed for about 10 kilonieters. However, in the facts and circuinstances of fhe 'case, when the petrdoner was not affordcd proper opportunity of heariag, the enquiiy report and thereafter the termination orderdated 31.7.1991 (Annexure R/12) cannotbe held as legal and just. 10. Be tliat as it m.ay, siace fh.e petitioner was not given sufficient opportunily of hearing aad fhe right of fhe petitioner to fcad the evidence was closed, whea ftie petitioner remained abseat on fhe next date ofhearing i.e. 19.7.1991. It fhe circuinstances, it is a clear case of violation of prmciples of natural justice and as such it is unnecessary to go into the nierits ofofher contentions raised. 11. The Supreiae Court ia the case ofTown Area Coniiaittee, Jalalabad Vs. J^dish Prasad aad others (AIR 1978 Supreme Court 1407) observed in para 1, as i.mder : "1. ...............It niay not havc been necessaiy to apply the provisions of Art. 311 of the Constitution strictly, nevertheless the principle of audi alteram partem had to be compUed wifh. A reasonable opportunily is a term. ofweU known legal signi&caace and includes an opportunity given to fhe eiaployee to cross examine fhe witaesses examiaed against him and to lead defence in support ofhis version............" 12. In fhe case of Kuldeep Singh Vs. Commissioner of PoUce aad others {(1999) 2 Supreme Court Cases 10), the Supreme Court iu para 32 held, aa under:- t,^,,, TW 1.3. 14. "32. Apart froin ffae above, Rule 16(3) has to be considered in fhe light of fhe provisions contained ia Article 311(2) of the Constitution. to find out whether it purports to provide reasonable opportunily ofhearing to tlie deUnquent. Reasonable opportunity conteniplated by Article 311(2) mefflas "hearing" iu accordance wifh the principles of natural justice under which oae of fhe basic requireinents is that all the witnesses in the departinental enquiry shaU be examiaed ui the presence of fhe deliaquent who shall be given an opportunity to cross-exanune fhem.. Where a statement previously inade by a witness, eifher diuing the course of prelunuiary enquay or investigation, is proposed to be brought on record in the departineiital proceedings, fhe law as laid down by this Court is fhat a copy ofthat stateinent should firsf be suppUed to the deUnqueQt who should thereafter be given an opportunity to cross-examine that witaiess. In view of aforementioned reasons and dicte laid down by fhe Supreme Coiirt, fhe impugned termmation order dated 31.7.1991 (Annexure R/12) is set aside and the respondents are granted liberty to hold a fresh enquiry. In view of fhe fact that the unpugned termination order has been set aside on the ground of violation of prmciples of natural justice, no ainount of back wages is directed to be paid. Accorduigly, fhe order dated 24.9.1991 (Annexure P/2) offhe Labour Court to fhe extent of reuistateiaeiit wifhout back wages is confirmed and the uapugned order dated 13.7.2004 (Annexure P/1) passed by the Industrial Court/respondent No. 2 in Appeals No-529/MPIR Act/91 and 569/MPIR Act/91 is set aside and fhe writ petition is atlowed. No ori.er as to costs. Sd/- Satish K. Agnlhotri Judge ^•^. ""•'"ss