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Makhanlal Ganeshdas Kaul Vs. Municipal Corporation of Greater Bombay - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai High Court
Decided On
Case Number O.S. Appeal No. 117 of 1976
Judge
Reported in(1981)83BOMLR223
AppellantMakhanlal Ganeshdas Kaul
RespondentMunicipal Corporation of Greater Bombay
DispositionAppeal allowed
Excerpt:
.....to lead evidence in rebuttal.;when there is a sheer inability of a delinquent to appear before the enquiry officer on the specified date of holding of the enquiry and he asks for an adjournment on the ground of his sickness and inability to attend, the refusal by the enquiry officer to adjourn the enquiry on the ground that several other employees who were tried alongwith him for the charges against them arising out of the same facts would cause inconvenience to them as well as to the witnesses to be examined, amounts to denial of opportunity to the delinquent to cross-examine the witnesses. consequently, the exparte finding holding the delinquent guilty of the charges recorded by the enquiry officer and relied on by the dismissing authority cannot be binding and the punishment imposed..........the petitioner was suspended from service with a view to hold departmental enquiry against him. charge-sheet was actually served on the petitioner along with the statement of allegations on july 7, 1969- the charge-sheet required the petitioner to submit his explanation within seven days from the receipt of the said charge-sheet. the charge-sheet contained in all six charges..2. by his explanation dated september 1, 1969, the petitioner denied all the allegations against him in this charge-sheet. he, however, admitted that his son was staying with him and was working as sub-contractor in the name and style of m/s. western bombay traders.3. originally, the enquiry was to be held on july 21, 1969. the same was, however, adjourned at the instance of the petitioner to september 8, 1969......
Judgment:

V.S. Deshpande, C.J.

1. The petitioner was working as a supervisor (vigilence) In the City Establishment of the Conservancy Branch of the Municipal Corporation of Greater Bombay, Bombay. The work of removing and transport of refuse in the suburbs for the period from June 1, 1968 to October 31, 1968 was entrusted to the contractors Messers Ismail N. Halai. The contractors appointed Messrs. Western Bombay Traders, as their sub-contractors for this work. It is not in dispute that the petitioner's son Yoginder Kaul was the proprietor of this firm. It appears that the Corporation discovered that Yoginder was only a college going boy aged 20, and the entire contract was carried out by the petitioner himself. It was also found that the petitioner had manoeuvred to obtain sub-contract in the name of his son though he himself conducted the said business. It was also discovered that the petitioner had influenced some officers of the Corporation in different parts connected with removal of this refuse, in getting work for this firm. He even unauthorisedly gave some directions to the supervisory staff of the Conservancy Branch in certain Wards in this connection and also approached M/s. Mahindra and Mahindra and M/s. Bandra Auto Service for getting benefits of their work to the said business. All these activities being in breach of the Service Regulations of the Corporation, by an order dated November 25, 1968, the petitioner was suspended from service with a view to hold departmental enquiry against him. Charge-sheet was actually served on the petitioner along with the statement of allegations on July 7, 1969- The charge-sheet required the petitioner to submit his explanation within seven days from the receipt of the said charge-sheet. The charge-sheet contained in all six charges..

2. By his explanation dated September 1, 1969, the petitioner denied all the allegations against him in this charge-sheet. He, however, admitted that his son was staying with him and was working as sub-contractor in the name and style of M/s. Western Bombay Traders.

3. Originally, the enquiry was to be held on July 21, 1969. The same was, however, adjourned at the instance of the petitioner to September 8, 1969. The enquiry continued from September 8, 1969 to October 3, 1969. Three/four officers of the Corporation were also charge-sheeted along with the petitioner in the said enquiry. The petitioner had requested for adjournment of the enquiry from September 8, 1969 to October 1969 on account of his illness- The enquiry officer, however, pleaded his inability to adjourn the matter as several other officers were being tried along with the petitioner and number of witnesses going to be examined in the enquiry were reluctant to come again. The Enquiry Officer submitted his report of this ex parte enquiry on October 26, 1969. The petitioner was called upon to show cause why allegations should not be held to have been proved and why he should not be punished in accordance with the service regulations. By his letter dated January 7, 1970, the petitioner protested against holding ex, parte enquiry without giving him any opportunity to cross-examine the witnesses and insisted that the petitioner should be allowed to cross-examine the witnesses to enable him to demonstrate how the statements given by them were lies. The Municipal Commissioner upheld the finding recorded by the Enquiry Officer and imposed penalty in accordance with the rules. He was permanently demoted as senior overseer on Rs. 290 in the grade of Rs. 175-10-185-12-245-EB-15-350. Period of his suspension was also left uncondensed as charges were held to have been proved. Petitioner's appeal against the said order was summarily dismissed by an order dated February 19, 1971. The petitioner challenged validity of this order by invoking the jurisdiction of this Court under Article 226 of the Constitution in Miscelleneous Petition No. 248 of 1971. The learned single Judge of this Court dismissed the said petition by his exhaustive order dated March 23, 1976. The petitioner challenges validity of this order in this appeal.

4. Mr. P. M. Vyas, the learned advocate appearing for the petitioner contends that no opportunity was given to the petitioner to cross-examine the witnesses examined at the enquiry against him, nor any opportunity was given to lead rebuttal evidence in support of his say as indicated in the explanation dated September 1, 1969. The impugned order of punishment, according to Mr. Vyas, is liable to be quashed because of the non-compliance of the principles of natural justice. On careful consideration of the facts of this case, we find it difficult to resist the contention of Mr, Vyas.

5. There is not much dispute about the facts. The petitioner had received charge-sheet dated July 7, 1969 on July 14, 1969. On that day, the petitioner had gone to Shrinagar with leave of the Corporation. The question whether the petitioner overstayed the said permission does not appear to us to be relevant to the grievance of the petitioner in regard to non-compliance with the principles of natural justice. Immediately after receipt of the charge-sheet on July 14, 1969, the petitioner requested the Corporation to supply to him the translated version of certain Marathi and Gujarati documents which were enclosed along with the charge-sheet and statement of allegations dated July 7, 1969. The petitioner demanded translated copies by a letter dated July 16, 1969 immediately after service of the charge-sheet and statement of allegations on him on July 14, 1969. Averment in the letter dated July 16, 1969 that he was not acquainted with Marathi and Gujarati languages in which documents are written, is not disputed either in the correspondence or in the affidavit-in-reply filed by Corporation at the trial of the Miscellaneous Petition, These translated versions were supplied to the petitioner at his Kashmir address on August 26, 1969. Petitioner thereafter submitted his explanation on the charges on September 1, 1969.

6. While submitting his explanation on September 1, 1969, the petitioner requested that he would not be able to attend the hearing fixed on September 8, 1969 as he was suffering from pneumonic pleurisy from August 17, 1969. A certificate of the medical officer who appears to be professor in the colleges at Shrinagar and Jammu was, enclosed along with the said letter. This letter of the petitioner dated September 1, 1969 was admittedly received by the Enquiry Officer on September 5, 1969. The Enquiry Officer did not care to communicate his re-action on the said letter till September 10, 1969 when the petitioner was informed that the enquiry cannot be adjourned any further as several other officers were being tried along with him and number of witnesses required to be examined in support of charge-sheet, were reluctant to come again. Though letter was written . by the Enquiry Officer on September 10, 1969, admittedly, he had already commenced the enquiry from September 8, 1969 itself- The Enquiry Officer does not appear to have doubted the plea of the illness of the petitioner nor does he appear to have any reason to suspect genuineness of the certificate of the doctor enclosed by the petitioner along with his letter dated September 1, 1969. The certificate of the doctor and the contents of the application prima facie do suggest that the petitioner was really not able to move out of Shrinagar, where* he was at that time camping. It is difficult to appreciate in that case how the Enquiry Officer could have ignored this sheer inability of the petitioner to appear before him on September 8, 1969 and how he could have proceeded with the enquiry in the face of the unanswerable difficulty of the petitioner in appearing before him.

7. It is true that some other officers of the Corporation were also being tried for the charges against them arising out of the same facts, in the same departmental enquiry. Adjournment could possibly have caused some inconvenience to them. Mr. Shah drew our attention to certain papers which indicate as if about thirty-three witnesses were going to be examined in the said proceedings. Adjournment would necessarily have involved some inconvenience to the witnesses also and some of the witnesses could have been reluctant to come again. But, even so, no enquiry could have been proceeded as far as petitioner's right in taking part in the said proceedings is concerned unless he was enabled to remain present and also cross-examine the witnesses effectively. Refusal to ignore his inability to take part in the proceedings amounts to denial of opportunity to him to cross-examine the witnesses and demonstrate that what the witnesses were saying were all lies and was not true- This could only have been ignored on the hypothesis that plea of his illness raised by the petitioner was, not true and was just an excuse to avoid enquiry and get the enquiry adjourned on some pretext or the other without any basis whatsoever. But, that is not what the Enquiry Officer had reason to believe and that is not even the Enquiry Officer suspected at the relevant time. Resultantly, the petitioner has been disabled from taking part in the proceedings and cross-examining the witnesses for no fault of his. The finding recorded by the Enquiry Officer and relied on by the dismissing authority cannot be said to be binding in these circumstances,

8. Mr. Shah, the learned advocate for the Corporation, contends, that the petitioner had left Bombay without prior permission and stayed in Kashmir at Shrinagar beyond the period of ten days for which permission to leave the headquarters was given to him. As stated earlier, petitioner could have committed some irregularities and also breach of some rules in leaving headquarters without prior permission and also overstaying in Shrinagar beyond the period for which he was permitted to stay there. This default on his part cannot cure illegality committed by the Enquiry Officer in the course of the trial in departmental proceedings. The petitioner may be liable for some punishment because of the alleged breaches in the matter of leaving headquarters and overstaying in Shrinagar without required permission. This cannot, however, make enquiry legal if otherwise the same is illegal.

9. Mr. Shah contends that at any rate, the petitioner knew fully that enquiry was to be held on September 8, 1969, as earlier the same was adjourned from July 21, 1969 to September 8, 1969, at his own request. It was the duty of the petitioner to leave Shrinagar in advance and not to choose to stay at Shrinagar when enquiry was likely to be proceeded with by the Enquiry Officer from September 8, 1969- Mr. Vyas, the learned advocate appearing for the petitioner, however, contends that the preliminaries for proceeding with the enquiry themselves were not complete, till, at any rate August 26, 1969 as translation of the documents relied on by the Corporation and enclosed with the charge-sheet were supplied to him on August 26, 1969. Mr. Vyas contends that there was no reason for the petitioner to assume that the enquiry could have been proceeded on September 8, 1969 till at any rate, required translations were served on him on August 26, 1969. The medical certificate of the doctor shows that the petitioner fell ill on August 17, 1969. On the date on which the petitioner received translations petitioner was sick, and could not have left Shrinagar. This contention of Mr. Vyas appears to us to be unanswerable. Petitioner applied for translation of the documents enclosed with the charge-sheet dated July 7, 1969 on the ground that he did not know Marathi and Gujarati in which languages documents were written. It is not suggested at any stage that this ignorance of Marathi and Gujarat! was just a pretence and not true. It is also not suggested that the documents were not important as Enquiry Officer himself declared that he was going to rely on the same in support of the charges. That could only be the object of enclosing the same along with charge-sheet. Service of charge-sheet cannot be said to be complete till translation of the documents were supplied to him. As indicated earlier, charge-sheet was served on the petitioner on July 14, 1969 and he had applied for translation on July 16, 1969 itself. The period from July 16, 1969 to August 26, 1969 if not from July 7, 1969 to August 26, 1969 cannot operate in any manner against the petitioner. If it is true that the petitioner's illness commenced long before August 26, 1969 as we must hold that it had so commenced in the absence of the plea challenging it. The petitioner cannot be blamed if he did not leave Shrinagar before August 26, 1969- It is unfortunate that these irregularities committed by his agency have not struck the Enquiry Officer nor far-reaching implication thereof.

10. In the face of the sheer inability of the petitioner to leave Shrinagar and appear before the Enquiry Officer on September 8, 1969, the inconvenience caused to the other delinquents or the witnesses sought to be examined cannot really be matters of any significance. The affidavit filed on behalf of the respondent-Corporation before the learned trial Judge in reply to the averments, in the petition, does not indicate what was the extent of such inconvenience and why adjournment could not have been granted without some serious consequences to the other delinquents or why attendance of the witnesses could not have been enforced on the adjourned date. The mere statement that some other officers also were being tried along with the petitioner in the departmental proceedings or otherwise were reluctant to come again, or that the witnesses were not under the control of the department is neither here nor there and does not shed any light as to what precise difficulty the Enquiry Officer was supposed to have.

11. Even in the affidavit filed before the trial Judge, the averment in the petition about the illness of the petitioner from August 17, 1969 till October 1969 is not disputed, nor any attempt is made on behalf of the respondents to challenge the genuineness of the certificate enclosed along with his letter dated September 1, 1969 and another letter dated September 13, 1969. Emphasis in the judgment of the trial Judge is on the mere possible inconvenience to the department and other delinquents and the witnesses. The judgment of the learned trial Judge does not indicate how petitioner could have appeared before the Enquiry Officer on September 8, 1969 if in fact, he was suffering from pneumonic pleurisy and was bed-ridden. We are unable to overemphasise mere inconvenience to the delinquents and the witnesses, when refusal to adjourn, in the circumstances of the case, involves denial of opportunity to the petitioner to take part in the proceedings and cross-examine witnesses and lead such rebuttal evidence as he could have produced to meet the charges against him.

12. As soon as petitioner came to Bombay in the first week of October, the petitioner did write to the Enquiry Officer for enabling him to cross-examine the witnesses. This really involved giving up of the advantage available to the petitioner when the witnesses were examined in his: absence and cross-examined in his absence by other delinquents. Neither record nor affidavit-in-reply indicate what difficulty there was in complying with the request of the petitioner to' cross-examine witnesses, who deposed to against him. The record does show that the Enquiry Officer was on deputation till October 25, 1969 and that he was repatriated to his own department after October 25, 1969. That still does not explain why the Enquiry Officer could not have summoned the witnesses to enable the petitioner to cross-examine them before actually he left charge of his office on September 25, 1969.

13. In view of this factual unfairness, we are unable to uphold the finding recorded by the Enquiry Officer and relied on by the dismissing authority. The charges no doubt, are very serious. The fact that sub-contract of the contract entrusted by the Corporation was carried out by a 20 years old son of the petitioner, who, admittedly was staying with him, raises grave doubts about breach by the petitioner, of Rule 19 and other Service Regulations. These circumstances do create high degree of probabilities of the petitioner having been guilty of the charges with which he was charged. Rule of law, however, requires that no charges should be held to have been proved unless an opportunity is given to the delinquent to meet such charges by cross-examining witnesses on whom the Corporation wanted to rely and also permitting him to lead such evidence in rebuttal. Reluctantly, we have to hold in the facts and circumstances of this case that such opportunity was not given to the petitioner, The punishment imposed, therefore, cannot but be quashed. It will still be open for the Corporation to proceed against the petitioner, if in their opinion it is justified.

14. The result is that appeal is allowed. Rule made absolute in the petition to the extent indicated above. The order of the learned trial Judge is set aside. The order of the Municipal Commissioner dated October 3, 1970 is hereby quashed, leaving it open to the Commissioner to proceed against the petitioner after giving him an adequate opportunity to defend.

15. In the circumstances of the case, there will be no order as to casts.


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