Divisional Controller v. S.T. Karmachari Union - H Rathod [2008] INGJHC 6 (8 January 2008)

Bench: H Rathod

Divisional Controller vs S.T. Karmachari Union on 8/1/2008
JUDGMENT
H.K. Rathod, J.
1. Heard learned advocate Ms.S.K. Mandavia for the petitioner.

1. In the present petition, the petitioner has challenged the award passed by the Industrial Tribunal, Baroda in Reference (IT) No. 95 of 1999 dated 9.4.2003 whereby the Industrial Tribunal has set aside the punishment imposed by the reviewing authority dated 17.6.1995 and maintained the order of punishment imposed by the competent authority dated 31.12.1994.
   
2. Learned advocate Ms.Mandavia submitted that the respondent was working as Driver in the petitioner Corporation. That on 9.6.1993 he was on route from Jamnagar to Mumbai. Before the Boriwali station reach, the bus was stopped in a way and two passengers were taken and therefore, the charge sheet was served to the respondent workman and punishment was imposed of stoppage of one increment without cumulative effect by order dated 31.12.1994. Against which, appeal was preferred wherein the punishment was enhanced by the reviewing authority by order dated 17.6.1995 and five annual increments have been stopped with cumulative effect. She further submitted that the Tribunal has committed gross error in coming to conclusion that reviewing authority has not power to enhance the punishment. She also submitted that recently, the Division Bench of this Court in Reference No. 1 of 2007 has decided that reviewing authority has power to enhance the punishment. Therefore, the award passed by the Tribunal is required interference by this Court. She also submitted that workman has committed misconduct in allowing two passengers in a way and not issued the tickets upto Boriwali which being a serious misconduct and therefore, the punishment was rightly enhanced by the reviewing authority. She also submitted that the appellate authority during the appeal, entitled to review the matter and also enhance the punishment. Therefore, the Tribunal has committed gross error in setting aside the punishment imposed by the reviewing authority.
   
3. I have considered the submissions made by learned advocate Ms.Mandavia on behalf of the petitioner. Before the Industrial Tribunal, the statement of claim was filed by the workman and reply was submitted by the petitioner and vide Exh.12 documentary evidence have been produced by the petitioner before the Industrial Tribunal. Thereafter, the Tribunal has examined the matter on merits and set aside the punishment order. The contention which has been raised by learned advocate Ms.Mandavia that punishment can be enhanced by reviewing authority during the pendency of appeal that contention cannot be accepted in light of decision given by the Apex Court as . The appeal is filed by the workman with

a prayer to reduce the punishment and to have the review show cause notice without result of appeal, why the punishment is not enhanced that procedure itself is contrary to the principles of natural justice. The allegation which has been made against the workman is that two passengers were allowed to enter in the bus on 9.6.1993 because these two passengers were found without any vehicle because they were travelling in a jeep but because of tire of jeep was burst but they were not able to go ahead and due to humanitarian ground, these two passengers were allowed by driver and these two passengers were paid penalty because no fare was collected by the conductor. The checking staff obtained the penalty of 10 times from these two passengers. Therefore, this aspect was rightly appreciated and considered by the competent authority and imposed the punishment of stoppage of one increment without cumulative effect. That was reviewed by the reviewing authority during the pendency of appeal without giving finding to the workman as to why the reviewing authority is deferred with the
competent authority. If the reviewing authority is not agree with the punishment imposed by the competent authority then, he should have to communicate the detailed reason of disagreement with competent authority to the workman. But without giving any reason, straightway, review show cause notice was served and then after personal hearing, punishment was enhanced for stoppage of five increments with cumulative effect. The Industrial Tribunal has rightly appreciated the facts as discussed in Para.7. The Tribunal has come to the conclusion that validity of departmental inquiry was not challenged by the workman but challenged the finding given by competent authority. The reporter was not examined in departmental inquiry. So in absence of report, charge levelled against the workman cannot be found to be proved. The workman has not admitted the charge before the competent authority. The reporter had not remained present in departmental inquiry and then, to ask the question to the workman that do you want to examine the reporter, question does not arise because on that occasion, no reporter remained present. The burden upon the department to prove the charge against the concerned workman. For that, no evidence was led by Corporation in departmental inquiry. The reason given by the workman to allow these two passengers and out of two passengers, one Shri Sikandar was the Guru, who had given the training for driving to the concerned workman. The finding given by competent authority is found to be correct by the Tribunal but, looking to the gravity of misconduct, the punishment imposed by the reviewing authority during the pendency of appeal is considered to be harsh and unjustified. Therefore, the Tribunal has rightly set aside the punishment imposed by reviewing authority while maintaining the original punishment imposed by the competent authority.

1. The respondent workman raised various contentions against the review proceedings including there is no power to enhance the punishment. The question of enhancement of punishment is decided by the Division Bench of this Court in Reference No. 1 of 2007. Therefore, rest of the contentions of the respondent raised before the Court / Tribunal is examined by this Court as matter is old and to avoid the decision on technical ground. There are basic error in review proceedings which is considered by this Court.
   
2. I have considered the award passed by the Tribunal and the reasoning given by the Tribunal is perfectly justified. For that, the Tribunal has not committed any error which requires interference by this Court. The reviewing authority has not given reason along with review show cause notice and even after hearing the workman, before passing the order of punishment, no reasoning is given and even along with the punishment order, no reason is disclosed by the reviewing authority. Therefore, unreasoned order by administrative authority is also contrary to the settled principles of natural justice. That aspect has been rightly and properly appreciated by the Industrial Tribunal. For that, the Tribunal has not committed any error which requires interference by this Court.
   
3. The law on the subject has been examined in identical situation where the inquiry officer exonerated the delinquent and disciplinary authority is not agree with such finding then, finding of disagreement must have to be communicated to the concerned delinquent. The reasons for disagreement provided for the first time with the order of punishment which has been held to be violative of principles of natural justice and settled canons of law.
   
4. In this case also, the punishment imposed by competent authority for which reviewing authority is not agree and the reviewing authority wanted to enhance the punishment during the pendency of appeal filed by workman. The decision of review cannot be taken during the pendency of appeal. When the reviewing authority is not agree with punishment imposed by the competent authority and the reviewing authority is deferring with the decision of competent authority then the reviewing authority should have to give reasons that how the competent authority is wrong in imposing the punishment to the workman. No such reasons are given by reviewing authority. Along with the review show cause notice, no finding is given by reviewing authority to the workman. The punishment imposed

by the competent authority is found inadequate but on what basis and without disclosing the reason, explanation was called for from the workman. After reply of the review show cause notice and personal hearing of the workman, no further finding was given and straightway, punishment was enhanced by the reviewing authority. Even the reviewing authority has not given reason along with the punishment order. Therefore, the order passed by reviewing authority is basically contrary to the principles of natural justice and also settled law laid down by the Apex Court. The view taken by the Division Bench of the Bombay High Court in case of Food Corporation of India Employees Association, West Zone and Anr. v. Food Corporation of India and Ors. reported in 2007 III LLJ 385. Relevant observations made in Para.9 which are quoted as under:
9. The learned Counsel appearing for the petitioners has relied upon the judgments of the Supreme Court in the cases (i) Punjab National Bank and Ors. v. Kunj Behari Mishra and (ii)
Yoginath d. Gagde v. State of Maharashtra and Ors. in support of his contention that the entire departmental proceedings would stand vitiated on this ground. In the case of Punjab National Bank and Ors. v. Kunj Behari Mishra (supra), the Court held as under 1998−II−LLJ−809 at pp.817, 818 & 819:
16. In Karunakar case the question arose whether after the 42nd Amendment of the Constitution, when the enquiry officer was other than a disciplinary authority, was the delinquent employee entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes decision on the question of guilt of the delinquent. It was sought to be contended that in that case that as the right to show cause against the penalty proposed to be levied had been taken away by the 42nd Amendment, therefore, there was no necessity to give to the delinquent a copy of the enquiry report before the disciplinary authority took the final decision as to whether to impose a penalty or not. Explaining the effect of the 42nd Amendment the Constitution Bench observed that:
All that has happened after the Fortysecond Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives as its conclusion with regard to his guilt or innocence of the charges.
The Court explained that the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusion on the basis of the evidence, the enquiry officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. It is the second right which was taken away by the 42nd Amendment but the right of the charged officer to receive the report of the enquiry officer was an essential part of the first stage itself. This was expressed by the Court in the following words:
The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer from an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by its. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have fair opportunity to meet,
explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry. It is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute an additional material before disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the inquiry officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.

1. These observations are clearly in tune with the observations in Bimal Kumar Pandit IR 1963 SC 612 : 1963−I−LLJ−295 quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. It if enquiry officer had given an adverse finding, as per Karunakar (supra) case, the first stage require an opportunity to be given to an employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its finding. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiry officer holds the charges to be proved, then that report has to be given to the delinquent officer, who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but if the disciplinary authority proposes to defer with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.
   
   1. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stands concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose penalty and not the enquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority defers from the view of the enquiry officer and proposed to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charge officer succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority defers with the enquiry officer’s report and,
      
   2. while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar (supra).
2. 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 or 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.
   
3. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants .

While agreeing with the decision in Ram Kishan case we are of the opinion that the contrary view
expressed in S.S.Koshal 1994 Supp. (2) SCC 468 and M.C. Saxena (State of Rajasthan v. M.C. Saxena cases do not
lay down the correct law.
8. The effect of non−application of mind and non−reasoned order passed by the administrative authority which has been discussed by the Apex Court in case of Cyril Lasrado (Dead) by Lrs. and Ors. v. Juliana Maria Lasrado and Anr. . Relevant Para.11 and 12
are quoted as under:

1. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court’s judgment not sustainable.
   
2. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed : (All ER p.1154h) "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Cabtree it was observed : "Failure to give seasons amounts to denial of justice. Reasons are live links between the mind of the decision−taker tot he controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of the sphinx" is ordinarily incongruous

with a judicial or quasi−judicial performance.
9. In view of the law as discussed above, the Industrial Tribunal has rightly examined the matter on merits and is perfectly justified while exercising the power under Section 11A of the I.D.Act,1947 to set aside the punishment order. Therefore, the Industrial Tribunal has not committed any error while granting the relief in favour of respondent workman. Learned advocate Ms.Mandavia is not able to point out any infirmity in the award. This Court is having very limited jurisdiction to interfere with award while exercising the power under Article 227 of the Constitution of India. The view taken by the Delhi High Court in case of Sushila Sharma v. Pawan Sharma reported in 2007 II LLJ 865. Relevant observations are made in Para.11 and 12 which are quoted as under:
11. The settled position of law in respect of interference by the writ courts under Article 226 of the Constitution of India in matters of this nature is that a writ court exercises its powers of judicial review well within certain parameters. A series of judgments have been rendered by the Supreme Court in this context, as mentioned below:
(i) Sadhu Ram v. Delhi Transport Corporation Learned AGP Mrs.Pathak requests for some time. Therefore, matter is adjourned to 3.12.2007. Ad−interim relief granted earlier to continue till then. 1984 Learned advocate Mr...has filed leave note / sick note. Therefore, matter is adjourned to 24.7.2007. 1967.
(ii) Harbans Lal v. Jag Mohan .
(iii) Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors. 1988 (supp.) SCC 768.

(iv)

Ramniklal N.Butta and Anr. v. State of Maharashtra and Ors. .

(v)

Indian Overseas Bank v. I.O.B.Staff Canteen Workers Union and Anr.

(vi) Master Marine Services (P) Ltd. v. Metcalfe and Hodgkinson (P) Ltd. and Anr. (.
12. All the above judgments, if read collectively, clearly indicate that the High Courts should not interfere with the awards of the Industrial Tribunal or the Labour Court on mere technicalities. Interference is permissible only if the order of the Subordinate Court suffers from an error of jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Reappraisal of evidence without sufficient reason in law to arrive at a finding of fact contrary to those arrived at by the Subordinate Court is not the intent of exercising judicial review. It is only in cases where overwhelming public interest requires interference and cases of the nature where there is an error of jurisdiction or law as referred to hereinabove, should the court interfere, particularly in view of the fact that the object of enacting Industrial Disputes Act and of making a provision therein to refer disputes to tribunals for settlement, is to bring about industrial peace and in all such cases, an attempt should be made by the courts in exercise of their powers of judicial review, to sustain as far as possible, the awards made by the Industrial Tribunals and Labour Courts, instead of picking holes in the awards on rival points and frustrating the entire adjudication process.
10. Recently, in Special Civil Application No. 888 of 2004 filed by GSRTC v. Maganbhai L. Makwana, decided by this Court on 14.12.2007 and in Special Civil Application No. 1648 of 2004 decided on 24.12.2007, similar question was examined by this Court after considering the following decisions and after considering the decisions, said petition was dismissed by this Court. 2005 II CLR 449 Cal in case of Babban Ram v. UCO Bank and Ors. 2006 AIR SCW 2177 Ranjit Singh v. Union of India in case of S. Goparam v. Inspector General Central Industrial Security Force, South West Sector Mumbai and Ors. 2006 SCC L/S 1835,
in case of Lav Nigam v. Chairman & MD ITI Ltd. and Anr. 2006 AIR SCW 6277 in case of Mathura Prasad v. Union of India and Ors. 2007 I CLR 880 in case of Suresh C. Shah v. Food Corporation of India 2005 (9) GHJ 659 in case of BJ Jadav
v. State of Gujarat. in case of Canara Bank and Ors. v. Swapan Kumar Pani and Anr. in case of State Bank of India and Ors. v. K.P.
Narayanan Kutty.
11. Therefore, considering the law as discussed by this Court in the aforesaid petition and also in view of the facts of the present case, there is no substance in this petition and same is required to be dismissed. Accordingly, present petition is dismissed.