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Prabhu Dayal and ors. Vs. Municipal Corporation of Delhi, Etc. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1131 of 1975
Judge
Reported inILR1980Delhi528
ActsDelhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 - Regulation 5
AppellantPrabhu Dayal and ors.
RespondentMunicipal Corporation of Delhi, Etc.
Advocates: Madan Bhatia,; B.K. Paul and; Randhir Jain, Advs
Cases ReferredManagement of State Bank of India v. J. D. Jain
Excerpt:
.....allowing the writ petition with cost.; 1. after the labour court has set aside the findings of the enquiry officer by holding that the verdict of guilty was not based on evidence but on conjectures, a hearsay evidence and suspicion and if the view has been affirmed by the single bench and then letters patent appeal bench of the high court it would be extraordinary that the management is permitted to order a repeated enquiry into the same charges and probably to go on ordering fresh enquiries till the workmen are tired of opposing and litigating against a verdict of guilty and the verdict thereby comes to stay. domestic enquiries into charges of misconduct of employees do not always inspire any great or abiding faith and confidence in their impartiality because employer virtually becomes..........the labour court for adjudication. in this award, the labour court held that the findings of the enquiry officer at domestic enquiry were based on conjectures, hearsay evidence and suspicion and were perverse. he held that the order of removal of the workmen based on such findings was not sustainable directed their reinstatement with continuity of service. the management agitated the matter before the high court in a petition under article 226 of the constitution of india. by judgment dated 7th january, 1972, rajindar sachair j. dismissed the petition as without merit and affirmed the award of the labour court. against the said judgment the municipal corporation of delhi preferred a letters patent appeal. a division bench of this court consisting of v. s. deshpande and s. rangarajan.....
Judgment:

Harish Chandra, J.

(1) In this petition Sarvshri Prabhu Dayal, Jai Narain, Rohtas Singh and Mahavir Singh, employees of the Municipal Corporation of Delhi, have challenged the orders dated 24th June, 1972 by which they were suspended from service and notices dated 22nd June, 1974. instituting a domestic enquiry against H them.

(2) The relevant facts are that the petitioners were working at the S. P. Mukherjee Marg Fire Station of the Delhi Fire Service. On an allegation that they had assaulted the Station Officer of the Fire Station. The petitioners were charge-sheeted and the enquiry was entrusted to the Director of Enquiries. The said Director found that the charges leveled were established and based on this finding the management dismissed the petitioners from service. The petitioners challenged the dismissal and an industrial dispute relating to the same was referred to the Labour Court for adjudication. In this award, the Labour Court held that the findings of the Enquiry Officer at domestic enquiry were based on conjectures, hearsay evidence and suspicion and were perverse. He held that the order of removal of the workmen based on such findings was not sustainable directed their reinstatement with continuity of service. The management agitated the matter before the High Court in a petition under Article 226 of the Constitution of India. By judgment dated 7th January, 1972, Rajindar Sachair J. dismissed the petition as without merit and affirmed the award of the Labour Court. Against the said judgment the Municipal Corporation of Delhi preferred a Letters Patent Appeal. A Division Bench of this court consisting of V. S. Deshpande and S. Rangarajan JJ. dismissed the appeal on merits by judgment dated 9th May. 1972.

(3) The Letters Patent Appeal having been dismissed the respondent- corporation reinstated the petitioners in service with effect from 4th February, 1969 but by the same letter ordering their reinstatement dated 24th June, 1972, the Corporation purported to suspend them from service with effect from 4th February, 1969. This order of 24th June, 1972, referred to the Disciplinary Authority having decided to held a further enquiry against the petitioners on the same allegations and obviously the order of suspension was made in view of the aforesaid decision to hold a further enquiry.

(4) Two years later by a memorandum dated 22nd June. 1974. the Corporation informed the petitioners that it was proposed to proceed against them under Regulation 8 of the Delhi Municipal Corporation Fire Service (Control and Appeal) Regulations, 1959.

(5) The petitioners .have challenged the orders of suspension and institution of a fresh enquiry into the same allegations in this writ petition.

(6) The first question for consideration is whether the respondent- corporation can institute a fresh enquiry against the petitioners on the same charges which were enquired into by the Director of Enquiries resulting in his findings of guilty, which finding was quashed by the Labour Court by its award dated 22nd February, 1974.

(7) It is relevant to recall here that the finding of the Director of Enquiries was quashed not on any preliminary objections based on denial of the audi alteram partem principle but on merits. The Labour Court held:

'............In the instant case as I have stated above the Enquiry Officer recorded his findings on the basis of hearsay evidence though the direct evidence was available. The findings in the present case were based on conjectures and hearsay evidence and on suspicion. The circumstantial evidence also did not connect before concerned workmen with the commission of the offence beyond reasonable doubt..............'

(8) After the Labour Court has set aside the findings of the Enquiry Officer by holding that the verdict of guilty was not based on evidence but on conjectures, hearsay evidence and suspicion and if the view has been affirmed by the Single Bench and then Letters Patent Appeal Bench of the High Court, it would be extra-ordinafry that the management is permitted to order a repeated enquiry into the same charges and probably to go on ordering fresh enquiries till the workmen are tired of opposing and litigating against a verict of guilty and the verdict thereby comes to stay.

(9) 'DOMESTIC enquiries into charges of misconduct of employees do not always inspire any great or abiding faith and confidence in their impartiality because employer virtually becomes a judge in his own cause by appointing his own nominee as the Enquiry Officer. The eroding faith in the domestic enquiry will vanish altogether if an employer can go on repeating enquiries till the ultimate result satisfies him in the style of repeating the mixture till the patient is dead. It is, thereforee, salutary to visit even domestic enquiries with increasing content of fairness and insulating as far as possible their perfunctoriness.

(10) We are, thereforee, of the opinion that the respondent-Corporation was not entitled to order a fresh enquiry against the petitioners in respect of the same charges which had been validly found by the Labour Court not to have been established or proved before the domestic enquiry. In this view we are supported by the judgment of the Supreme Court in K. R. Deb v. The Collector of Central Excise, : (1971)ILLJ427SC . In this case a Constitution Bench of the Supreme Court had occasion to consider Rule 15(1) of the Classification, Control and Appeal Rules which reads as under : 'Without prejudice to the provisions of the public servants (enquiry) Act 1950, no order imposing on a Government servant any of the penalties satisfied in clauses (iv) to (vii) of Rule 13 shall be passed except after an enquiry, held as far as may be, in the manner hereinafter provided'. On page 1449 the court observed:

'ITseems to us that Rule 15, on the face of it really provides for one inquiry but it may be possible if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the disciplinary authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or officers does not appeal to the Disciplinary .Authority. That Disciplinary Authority has enough powers to re-consider the evidence itself and come to its own conclusion under Rule 9.'

The court further observed that the procedure adopted by ordering a fresh enquiry was not only not warranted by the rules but was harassing to the appellants.

(11) The learned counsel for the respondent has relied upon the judgment dated 18-10-1978 of a Division Bench of this court in C.W.P. No. 1292 of 1975, the Management of State Bank of India v. J. D. Jain (5). We have carefully perused the judgment and do not find it at all relevant to the point before us. In this judgment the court considered an award of the Industrial Tribunal setting aside the findings of a Domestic Enquiry Officer on the ground that the Enquiry Officer had relied upon hearsay evidence. After noting the distinction between hearsay evidence and direct evidence and the principles of evidence to be followed by Domestic Tribunals the court came to the conclusion that the Tribunal erred in setting aside the findings of the Enquiry Officer. We are, however, not concerned with the validity of the award of the Labour Court in this case as it has already come to be settled by the judgment of a Division Bench in the Utters Patent Appeal referred to above which judgment has become final and infact accepted and operated upon bytile respondent-Corporation.

(12) If the respondent-corporation could not institute a fresh enquiry, as held by us above, could it invoke Regulation No. 5 to suspend the petitioners. The relevant portion of Regulation 5 is set out hereinbelow. 5(2) 'The appropriate authority may place any municipal officer or other municipal employee under suspension

(A)where a disciplinary proceedings against him is contemplated or is pending; or (b) where a case against him in respect of any criminal offence is under investigation or trial;'

(13) The suspension was ordered as indicated in the letter of 24th June, 1972, pending a further enquiry. The Corporation will have no power to suspend the petitioners if it was not entitled 1,0 institute a fresh domestic enquiry. We have, thereforee, no hesitation in holding that the order of suspension dated 24th June, 1972 is in excess of the authority to suspend conferred by Regulation 5 quoted above and is, thereforee, not sustainable. We need hardly recall that it is settled law that an employer has no inherent right to suspend a contract of service of an employee and that such a right must be found either in contract or in statute. In the absence of such a right an order of suspension merely amounts to the voluntary foregoing of the right to take work from anemployee by the employer and does not absolve him from the liability to pay full salary to the employee.

(14) In the result, that part of the order dated 24th June, 1972, by which the petitioners were placed under suspension and the memorandum dated 22nd June, 1974, are quashed and the respondents are directed to give full effect to their order reinstating the petitioners to service with effect from 4th February, 1969 and consequently to pay them full salaries from the date of suspension i.e., 4-2-1969 after setting off such amounts as may have been paid by way of suspension allowance.

(15) The petition is allowed with costs in the aforesaid terms. Counsel's fee Rs. 300.


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