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D.J. Warkari Vs. K.V. Karanjkar - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Application 2861 of 1975
Judge
Reported in(1980)IILLJ270Bom
AppellantD.J. Warkari
RespondentK.V. Karanjkar
Excerpt:
.....search - petitioner contended that bearings were planted - petitioner dismissed from service - enquiry officer appointed by competent authority who was himself witness to search - enquiry officer concluded that charges against petitioner not proved - competent authority disagreed with conclusion of enquiry officer - petitioner entitled to have disciplinary proceedings dealt by unbiased person unconnected with incident - possibility of competent authority having bias against petitioner - decision of competent authority was formality and dismissal order against petitioner cannot be sustained - held, petitioner entitled to reinstatement. - - it is well-known that the scope of the petition under art. now, this report clearly establishes that at the time of the search when the..........of the electricity board, was the chief engineer inquiry into the charges was made by the enquiry officer who was assistant personnel officer of the board. before the enquiry officer, the case of the petitioner was that the bearings were planted in the coat of the petitioner by one her who was a subordinate, when aher managed to send the petitioner out of the workshop to his superior officer, shri sainath. at that time, according to the petitioner, the coat was hung on his chair, and after having planted the bearings in the coat, aher telephoned to another superior officer, mr. bhadabhade informing him of the theft. in short, the petitioner denied that he had committed any theft and his case was that the bearings were planted. it could not be disputed that the bearings wore.....
Judgment:

Chandurkar, J.

1. This petition by an employee of the Maharashtra State Electricity Board is directed against an order of dismissal made by the Chief Engineer-IV dated 22nd September, 1975 holding that the two charges, namely, of theft and act of disloyalty to the Board were proved against him. In the view which we are taking in this petition, it is not necessary for us to go into the details regarding the material on which the charges were framed. Briefly stated, however, in the domestic enquiry the charges against the petitioner were that on 18-12-47 when the petitioner was working as Head Foreman at the Nasik Thermal Power Station and he was searched at the gate, three ball-bearings were recovered from his pocket. Two charges, therefore, came to be framed against him, the first being one of theft and the second being act of disloyalty. The competent authority for the purpose of taking disciplinary proceedings against the Petitioner under the Employees' Service Regulations of the Electricity Board, was the Chief Engineer Inquiry into the charges was made by the enquiry officer who was Assistant Personnel Officer of the Board. Before the enquiry officer, the case of the petitioner was that the bearings were planted in the coat of the petitioner by one Her who was a subordinate, when Aher managed to send the petitioner out of the workshop to his superior officer, Shri Sainath. At that time, according to the petitioner, the coat was hung on his chair, and after having planted the bearings in the coat, Aher telephoned to another superior officer, Mr. Bhadabhade informing him of the theft. In short, the petitioner denied that he had committed any theft and his case was that the bearings were planted. It could not be disputed that the bearings wore recovered from the coat of the petitioner when he was searched.

2. The enquiry officer, on appreciation of the evidence, came to the conclusion that the charge of theft as levelled against the petitioner was not proved and, therefore, charge No. 1 was not proved. He also found that the petitioner has not given any explanation as to how the bearings were found in his pocket. So far as the charge No. 2 is concerned, the enquiry officer seems to have taken the view that the petitioner has not given a satisfactory explanation as to why he had indented those bearings without the knowledge of the superior officer and brought the bearings from the Major Stores, Nasik when the same size and type of bearings. 100 in number, were given to the petitioner by his superior officer, Sainath on 30-9-74. This was considered as an act of disloyalty and charge No. 2 was, therefore, held to be proved.

3. The competent authority did not agree with the findings recorded by the enquiry officer. He independently reached the conclusion that the story of planting had to be discarded and on evidence, the charge of theft was established. If the charge of theft was established, then, according to the competent authority, the charge of disloyalty to the Board could also stand proved as a natural corollary. With his own findings recorded in the show cause notice, the competent authority issued a notice to the petitioner to show-cause as to why the petitioner should not be dismissed. The petitioner replied to the show-cause notice. On 22-9-1975, the competent authority made the order of dismissal stating that the petitioner could not put forward any convincing reason so as to disprove the charges levelled against him. The charges levelled were stated to be grave and serious and according to the competent authority, warranted a punishment of dismissal in respect of each charge. This order of dismissal was challenged by the petitioner in the present petition. However, taking recourse to the remedy by way of an appeal which lay to the Chairman of the Board, it appears that during the pendency of this petition, the petitioner was permitted to file the appeal which came to be decided by the Chairman on 17-6-76. The Chairman by his order which is produced by the Board alongwith the return, has held that he did not see any reason to reverse the decision of the competent authority. The present petition thus challenges not only the original order of dismissal but also the appellate order.

4. Several contentions have been raised by Mr. Dharap, appearing on behalf of the petitioner. However, the contention raised that the domestic enquiry is vitiated by violation of the principles of natural justice being in our view, sufficient to set aside the order of dismissal, it is not necessary for us to deal with the other contentions in detail. Another contention raised was that in respect of the second charge, no allegation was disclosed by the charge-sheet supplied to the petitioner and, therefore, the petitioner could not be punished for the second charge. The second charge related to the act of disloyalty. No independent allegation for such a charge were necessary because, it was a mere corollary of the charge of theft. The charge-sheet showed that the main charge against the petitioner was one of theft and if that charge was proved, there was not much difficulty in the necessary conclusion which would have followed that the act of the petitioner in stealing the Board's property, whatever may be its value, would amount to act of disloyalty.

5. An argument was advanced that there was no express regulation permitting the competent authority which was the disciplinary authority to reach a conclusion different from the one reached by the enquiry officer and therefore, according to the learned counsel, the competent authority could not have issued a notice to show-cause against the proposed punishment of dismissal when the enquiry officer had held that the charge of theft was not proved. Reference was made to Regulation 88(i) and (j) which deals with the findings of the enquiry officer and the issue of the show-cause notice by the competent authority. Regulation 88(j), no doubt, provides that after the inquiry is completed, the competent authority shall serve a notice on the employee communicating to him its findings and asking him to show cause within a specified time as to why the contemplated punishment involving dismissal, removal or reduction or withholding of increment, should not be inflicted on him. It also requires that the employee may be supplied with a copy of the findings of the competent authority or of those of the enquiry officer, as the case may be, or, he should be given an opportunity to take a copy of such findings. Relying on this part of Regulation No. 88, it was contended that the competent authority has merely to forward the report of the enquiry officer which implied that he was to accept the report of the enquiry officer as it is, and since there is no express power in the Regulation to differ from the finding of the enquiry officer, the competent authority could not have independently reached a conclusion different from the one reached by the enquiry officer. The argument in our view is entirely misconceived. When an enquiry officer is appointed by a disciplinary authority, the said authority is not bound to accept the findings recorded by the enquiry officer. It is implicit in the disciplinary authority by virtue of its status as disciplinary authority and the functions which it has to perform as a disciplinary authority that it must independently apply its mind to the report made by the enquiry officer. Independent application of mind to the report of the enquiry officer contemplates a process by which the competent authority has to decide whether it accepts the report and if it does so, the competent authority has merely to issue a notice to show cause against the proposed punishment. But, if it does not accept the report of the enquiry officer or the recommendations made by the enquiry officer in the matter of punishment, there is inherent power in the disciplinary authority to reach its own conclusion not only with regard to the guilt of the delinquent but also with regard to the punishment which it would propose to inflict on the delinquent. There is, therefore, no substance in the contention that in the absence of any Regulation giving power to the disciplinary authority to reach a different conclusion than the one reached by the enquiry officer, the notice to show cause against the proposed dismissal issued by the said authority, was itself illegal.

6. Mr. Dharap, the learned counsel then wanted to take us through the evidence of the witnesses who were examined before the enquiry officer with a view to establish that the defence of the delinquent that the bearings were planted in his coat, was sufficiently established on the evidence of the various witnesses examined by the Board itself. It is well-known that the scope of the petition under Art. 226 of the Constitution of India in a matter arising out of domestic enquiry and exercise of disciplinary jurisdiction is extremely limited and does not extend to re-appreciation of the evidence recorded by the domestic Tribunal. It is not open to this Court sitting under Art. 226 to re-appreciate the evidence and in any case, merely because on appreciation of evidence, this Court could have come to a different conclusion, that is no ground for interfering with the findings recorded by the disciplinary authority.

7. This brings us to the main and substantial contention which is advanced by Mr. Dharap. The contention is that the competent authority was himself a witness to the search of the petitioner when the three bearings where found in his coat. According to the learned counsel, for the purposes of criminal prosecution which has been instituted against the petitioner, a statement of the competent authority has been recorded by the Police. That statement has been filed on record and it is dated 21st December, 1974. That statement shown that the competent authority was called to the gate by Aher by making a telephone call and when the said authority, that is, the Chief Engineer went to the gate, he found that the petitioner, Sainath and Aher were near the Security office. On being told by Aher that the petitioner had committed theft, the Chief Engineer asked the petitioner whether he had to say anything. That statement further records that the petitioner having been frightened, the Chief Engineer gave him some water and after he calmed down, he asked the petitioner to allow his search to be taken. He admits that the search was taken by the Security Officer Kadam and Head Watchman Chavan in his presence and they took out one bearing duly wrapped in a paper from a pocket of petitioner's coat, on seeing which, according to the Chief Engineer, he was terribly surprised. He has further stated that he told the Deputy Security Officer Patil to make a report at the Police Station. Now, this report clearly establishes that at the time of the search when the bearings were found in the pocket of the petitioner, the Chief Engineer himself was present. In a sense, he is, therefore, a witness to the finding of the bearings at the time of the search of the petitioner. Now, the question is whether such a person when he deals with the domestic enquiry, can be said to be acting in violation of the principles of natural justice so as to vitiate the entire domestic enquiry. It can hardly be disputed that the petitioner is entitled to have disciplinary proceedings dealt with by an un-biased person who is wholly unconnected with the incident in question. It is only then that it would be possible to take a dispassionate view of the findings recorded by the enquiry officer, more so, when the enquiry officer has found that the charge of theft has not been established against the petitioner, at all. It is difficult to get away with the impression that when the finding that the petitioner is not guilty of theft is considered by a person who has himself seen the bearings being recovered from him, will not be affected by that fact in appreciating the material collected in the course of the domestic enquiry. The Chief Engineer having himself seen the beatings being recovered from the coat of the petitioner, that fact is bound to weigh in the mind of the Chief Engineer when he considers the evidence of the witnesses of the Board and finds out whether the story of planting as alleged by the petitioner, should be accepted. There can hardly be another case of bias against the petitioner than the one we have before us. There can, therefore, be no doubt that there is a clear possibility of bias in the mind of the competent authority against the petitioner. It would have been proper for the Chief Engineer not to deal with the matter, being himself a witness whose statement was recorded in the course of investigation of the alleged theft, for the purposes of the criminal prosecution which, we are told, is still pending. Apart from the fact that, on principle, we see no difficulty in accepting the contention of the learned counsel for the petitioner, in our view, the case is also covered clearly by the decision of the Supreme Court in Associated Cement Cos. v. Their Workmen. : (1963)IILLJ396SC . One of the contentions raised in that case, while challenging the dismissal order after a domestic enquiry was, that the enquiry suffered from the fact that the three enquiry officers who had dealt with the matter, claimed that they themselves had witnessed the alleged misconduct of the delinquent. It was contended on behalf of the employer that the fact that the manager and the other officers had seen the employee committing the act of misconduct would not disqualify them from holding the domestic enquiry. Negativing this contention, the Supreme Court observed as follows :

'In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct of Malak Ram. Mr. Kolah contends that if the manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye-witness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide, with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness, steps should be taken to see that the task of holding an enquiry is assigned to some other offices. How the knowledge 'claimed by the enquiry officer can vitiate the entire proceedings of the enquiry, is illustrated by the present enquiry itself.'

As pointed out earlier, the fact that the Chief Engineer had himself seen the bearings being recovered from the possession of the petitioner whose positive case is that the bearings were planted by Aher, was bound to be affected by the fact that the competent authority had seen the bearings being recovered. In a sense, the decision of the competent authority was really an empty formality and it would, therefore, not be possible to sustain the dismissal order passed against the petitioner.

8. Consequently, the dismissal order passed against the petitioner as well as the appellate order made by the Chairman of the Board upholding the dismissal order, are quashed. The petition is thus allowed. The petitioner will be entitled to reinstatement with continuity of service and all other incidental benefits including all such pay and allowances, as may be admissible to him under law. We, however, make it clear that if the petitioner is convicted of the alleged theft by the Criminal Court in the prosecution which is now pending, it will be open to the Board to take appropriate action against the petitioner, following such convictions. The Rule is made absolute.


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