Guman Mal Lodha, J.
1. 'Enklab Zindabad, CITU Zindabad, RACU Zindabad, Project Allowance Katoti Vapasulo, Kala Adhyadesh Vapasulo' shouting these slogans, the petitioner is alleged to have led a procession & demonstration at not less than prohibited/protected place of Rajasthan Atomic Power Project, Rawatbhata Kota on 11th December, 1974. An inquiry and dismissal followed in the disciplinary proceedings initiated against him.
2. Whether such a dismissal can be sustained is pivot of debate in this writ petition by a workman against bis employer. The equities are well balanced in this equitable jurisdiction. Shri Mridul's claim of fundamental right of a much more of protected workman in an Industry, of protest and agitation against Katoti in wages and allowances by peaceful method of demonstration and procession, in the new era where workers have been assured participation in the management by the enactment of Article 43A in directive principles of Constitution, cannot be brushed aside as frivolous or vexatious. But creating of disturbance in the functioning of Atomic Power Plant by disturbing people working in the different sections and violating the administrative instructions to restrain & refrain from it in prohibited protected area cannot be ruled out as non-actionable, more so, where atomic power project deserves utmost protection in order to keep lacs of productive industrial undertakings running, and providing power to yet another lac of tube well engines both for agriculture as well as drinking purposes in addision to ensure smooth functioning and working of almost all important sections of urbanis-administration, education, public and private sector, projects and urban life. Where a switch off from the atomic power plants results in putting the entire Rajasthan in black out, creating darkness and gloom throughout the length and breadth from Kota to Jaisalmer and Dungarpur to Jhalawar bringing a disasterous halt to all creative, productive, administrative, educative and agricultural activities, the importance of ensuring smooth functioning of such a plant of gigantic importance cannot be undermined.
3. 1 would, therefore, prefer to confine myself to the legal debate and not to enter into the weighing of equities for interpreting law in the present peculiar controversy which I have felt better, could have been considered by an Industrial Tribunal or Labour Court, intereference under the Industrial Disputes Act Unfortunately, the workman has rushed to this Court for invoking Article 226 without realising that this jurisdiction is full of fetters and limitations both constitutional and legal. Neither the management who at one time, at least, was seeking permission thinking that the matter relates to an industrial dispute in an industrial undertaking, thought it better to get it adjudicated rather than to play the gams of hide and seek by moving application and then withdrawing it, nor the workman was made conscious of his legal right to get the reference made to the Labour Court or the Industrial Tribunal so that even the facts alleged and denied about the shouting of the above slogans and quantum of punishment even if it comes to that, can be properly adjudicated. I am, therefore, constrained to observe that both the parties in the present writ petition, have not given just and proper attention for objective consideration for getting a proper, fair and equitable adjudication in a forum created by statute only for such situations.
4 Be that as it may, I must now stop here so far as the preamblary remarks and comments are concerned, and straightaway come to the brass test of the writ petition and the issues involved in it. Memorandum dated the !4th December, 1974 (Annexur- 7) was accompanied by the following charges:
That the said Shri S.N. Singh, T/Man 'D' O & M Section led a procession of employees on 11th December, 1974 at about 12.00 hrs. from near the switch yard to old Administration Block shouting slogans. Shri S.N. Singh is therefore charged for leading a procession and shouting slogans thereby causing disturbance in the working of other sections in the plant site which is a prohibited/protected place.
That the said Shri S.N Singh on 11-12-1974 actively participated in staging demonstration and slogan shouting between Old Administration Building No 1 and 2 from about 12 15 hrs. to 12.45 hrs in defiance of Project Circular No, RAPP/04600/74/S/284 dated 10-12-74. This misconduct becomes grave as the demonstration and slogan shouting was led in the plant site which is a prohibited/protected place. Shri S.N. Singh is therefore charged for actively participating and playing a. leading role in staging demonstration and shouting slogans between Administration Building No. 1 & 2 which not only caused disturbance in the working of other sections but is also highly subversive of discipline.
5. The charges have been held to be proved and conclusion arrived at by the Erection Superintendent (E) who was enquiry officer, in his report dated 5th September, 1975 is as under:
Hence it is proved that Shri S.N. Singh actively participated in staging the demonstration and slogan shouting and thereby caused disturbance in the working of other sections. However, he was not seen instigating other workers for participation.
6. I would not embark upon a probe about the correctness of finding on the basis of re-appreciation of evidence as the extraordinary jurisdiction under Article 226 of the Constitution cannot be invoked for it.
7. The decks are now, therefore, clear for considering and adjudicating the question of law raised by Shri Mridul. The first and foremost question convassed during the arguments, both oral and written relates to non-compliance of Section 33 of the Industrial Disputes Act (hereinafter referred to as 'the Act'). It is claimed that the petitioner is a protected workman under Section 33(4) of the Act as declared vide Annexure 2. Further, the case of the petitioner is that by Ann. 1, Conciliation Officer called upon the disputing parties i.e. the Union and the Chief Project Engineer of Rajasthan Atomic Power Project to appear before him in relating to the dispute over deduction of lunch hours from over-time wages. Annexure M/a, has been produced to show that the respondent requested the Conciliation Officer to adjourn the matter as the demand of the Union has been referred to Bombay and the same was receiving their active consideration and this request was accepted as the case was adjourned to 19th August, 1976 Again, the parties were called for appearing before the Conciliation Officer on 23rd September, 1976 vide Annexure 6. In support of this, the petitioner further contends that after holding enquiry in disciplinary proceedings and serving a show cause notice and, before passing order of dismissal (Annexure 5), the respondents management moved an application to the Conciliation Officer seeking permission to dismiss him under Section 33(3)(b) of the Industrial Disputes Act on 25th May, 1976. This was followed by application for withdrawing the above application which was rejected by the Conciliation Officer vide Annexure 3. The management persisted on withdrawal and the same was allowed by the Conciliation Officer vide Annexure 4. While permitting so, the Conciliation Officer mentioned in the order that the conciliation proceedings were pending.
8. On the bedrock of the above facts, the petitioner's contention is that dismissal was without jurisdiction, because no permission was obtained from the Conciliation Officer even though the conciliation proceedings were pending.
9. The respondent, both in verbal as well as their written submissions has controverted the above facts. My attention has been drawn to Rule 9 (2) of the Industrial Disputes (Central) Rules, 1957, hereinafter referred to as the 'Rules of 1957' which reads as under:
Where in the conciliation officer receives no notice of a strike or lock out under Rule 71 or Rule 72 but he considers it necessary to intervene in the dispute he may give formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings with effect from such date as may be inserted therein.
10. The contention of Shri Mehta that in view of this Rule, the Conciliation Officer must declare his intention to commence conciliation proceedings in writing, appears to be correct. In Annexure 1, I find that no such intention has been sp;cified. On the other hand, it has been clearly mentioned therein that conciliation proceedings would be commenced only if it was thought necessary. After 30th June, i976 the matter was posted by the officer on 9th July, 1976 and thereafter on 12th July, 1979 but on the said dates no deliberation or discussion took place & therefore the question of the' application of mind by the Conciliation Officer for initiating conciliation proceedings did not arise. Thus, there was no occasion for the initiation of conciliation proceedings in terms of Rule 9(2) of the Rules. Merely because the Conciliation Officer has stated in the subject of his letter about the industrial dispute and merely because in the letter dated the 8th September, 1976 (Ann. 6) he has mentioned that there were conciliation proceedings, it cannot be said that the conciliation proceedings were pending before him. Notice dated the 30th June, 1976 (Ann. No. 1) did not fulfil the requirement of Rule 9 2) of the Rules of 1957. It is correct that it was merely an intimation for join' discussion prior to the initiation of conciliation proceedings With regard to any industrial dispute not relating to a public utility service where a notice under Section 22 of the Act has to be given (as in the instant case) the Conciliation Officer had a discretion vested in him under the statute either to hold conciliation proceedings or not. By the notice (Ann. 1) the Conciliation Officer merely explored possibility of settlement by asking parties for the joint deliberation. These were preliminary to the actual conciliation proceedings which had not commenced at any time in this case. The principles laid down in (1) Pratap Chandra Mohanty v. Union of India 1971 (2) LLJ 196 and (2) East Asiatic and Allied Co. v. Sheik 1961 (1) LLJ 162, no doubt supports the above conclusion.
11. So far as the disputes regarding over recovery of house rent and illegal retrenchment of Shri R.S. Sharma, were concerned, I am inclined to accept the contention of Shri Mehta that in both these disputes the Conciliation Officer had submitted failure reports, and that the said failure reports were received by the Government on June 4, 1976 and 23rd July, 1976, respectively, i.e. before the passing of the impugned order of dismissal. In terms of Section 20(2) of the Industrial Disputes Act, 1974, the conciliation proceedings are deemed to be concluded when failure report is given.
12. In these circumstances, it is not possible to hold that any conciliation proceedings were pending in respect of industrial dispute as defined under Section 2(k) of the Act, in which the petitioner was concerned. The decision in (3) Hindusthan Copper Ltd. v. Central Industrial Tribunal 1979 Lab I.C. 172, amply supports the above view. The resultant position is that the contention of Shri Mridul that the impugned order (Annexure 5) has been passed without complying with the provisions of Section 33(3) of the Act cannot be accepted.
13. It is true that the management was not consistent as would be obvious from the fact that it first applied for permission and then moved application for withdrawal. In all fairness to the enlightenment in the new era where the Directive principles of State policy emphasises workers participation in the management, the management would have exhibited fairness and respect to the Directive principles, if it would have pursued the application for withdrawal and obtained the verdict regarding permission. The game of 'hide and seek' played by the management smacks of unfairness but that would have been a good consideration for Industrial Tribunal to set aside the dismissal or award lesser punishment. However, as I have said in my preamble of this judgment, that cannot permit me in my fettered and restricted jurisdiction to grant relief to the petitioner on this count.
14. The second limb of submission of Shri Mridul is based on violation of Rule 15 (4) (ii) (b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, hereinafter referred to as 'the rules of 1965'. The contention of Shri Mridul in this respect is that the impugned order (Annexure 5) has been made without consideration of representation filed by the petitioner against show cause notice as required by Rule 5 (4) (ii) (b) and while effecting the dismissal of the petitioner, his past record had been taken into consideration without even telling the petitioner that the same is going to be taken into consideration, so as to afford opportunity to have his say in the matter.
15. Shri Mridul has invited my attention to the decision of this Court in (4) Phani Bhushan Thakur's case (S.B.C.W. No. 1894/75 decided on 11th April, 1980 at Jaipur) 1980 WLN (UC)311. It was argued that it was incumbent upon the disciplinary authority to deal with show cause notice and on account of absence of that, inquiry is vitiated.
16. Shri Mehta, while controverting the above submission of Shri Mridul argued that the impugned order of dismissal (Ann. 51 has not been made in breach of the principles of natural justice. It also does not violate the provisions of R. I5(4)(ii) (b) of the Rules of 1965. It has been submitted that two charge sheets were issued to the petitioner vide two memorandums dated the 14th December, 974 (Ann. M 6 and M 7 filed with reply) along-with statement of allegations of charges framed against the petitioner for separate misconducts. Two different inquiry officers were appointed and enquiries were separately conducted. The inquiries were conducted in accordance with the Rules of 1965 and in conformity with the principles of natural justice. After considering the entire facts and circumstances of the case, the respective inquiry officers gave detailed enquiry reports & found that the petitioner was guilty of all the charges levelled against him. Thereafter the Disciplinary Authority issued show cause notice to the petitioner vide Memo dated the 15th October, 1975 (Ann. M. 2) wherein the Disciplinary Authority clearly stated that he agreed with the findings of both the above enquiry officers and has come to the conclusion that the charges against the petitioner were proved. It was also stated in the said show cause notice that the Disciplinary Authority provisionally proposed to impose the penalty of dismissal from service, severally & jointly on the charges. Copies of the inquiry reports dated the 5th September, 1975 and 31st May, 1975 were sent along with the said show cause notice. Thereafter the Disciplinary authority passed impugned order of dismissal (Ann 5) dated the 29th July, 1976 after considering the representation made by the petitioner dated the 26th December, 1975 to the show cause notice and also after considering the oral arguments made during the personal hearing granted to the petitioner and his assisting officer on 16th February, 1976. The Disciplinary authority carefully went through the said representation of the petitioner in response to the show cause notice and also carefully considered the oral submissions. After considering the above, the Disciplinary authority came to the conclusion that the charges against the petitioner vide two memorandums as aforesaid were proved. Thereupon, he passed the order of dismissal of the petitioner from service vide Ann. No. 5--Ann. M. 3. It was contended that the Disciplinary Authority entirely agreed with the findings arrived at by the Enquiry Officers and that the representations oral as well as written made by the petitioner in pursuance of the show cause notice were duly considered by the Disciplinary authority before the passing of the impugned order, which is even evident from the impugned order itself. In these circumstances, the allegation of the petitioner that the impugned order violates Rule 15(4) (ii) (b) of the Central Civil Service Rules of 1965 is without any substance. The argument of the petitioner that the impugned order is not a speaking order also does not deserve any merit.
17. I have given a thoughtful consideration to this aspect of the case also. It has been held in (5) State of Madras v. Srinivasan : AIR1966SC1827 , that requirement of recording reasons is applicable only when the disciplinary authority disagreed with the finding of the inquiry officer. The relevant observations are in para 15 which read as under:
In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order imposing a penally on the delinquent officer, it is to be remembered that the disciplinary proceedings against such a delinquent officer begin with an inquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is consulted where necessary. Having regard to the material which is thus made available to the Government and which is made available to the delinquent officer also, it is unreasonable to suggest that the State Government must record its reasons as to why it accepts the findings of the Tribunal. It is conceivable that when the Slate Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer it should give reasons as to why it differs from the conclusions of the Tribunal, though even in such a case it is not necessary that the reasons should be detailed or elaborate.
18. In (6) Tarachand v. Municipal Corporation, Delhi MR 1977 SC 567, the Disciplinary authority rejected the representation of the appellant given in pursuance of the show cause notice and imposed the penalty of dismissal from service. Regulation 8 of the Regulations relevant in that case has been quoted in para 9 of the report. Sub-clause (10) of Regulation 8, is similar to Rule 15 (4) (i) (a) (b) of the Central Civil Service Rules, 1965. Regulation 8 (11) is similar to Rule 15(4) (ii) (b) of the Rules of 1965. After considering the provisions of Regulation 8, the Supreme Court in para No. 16 of the report came to the conclusion that it is not obligatory to record reasons in case the Discplinary authority concurs with the findings of the inquiry officer. In that connection, two earlier decisions of the Supreme Court in (6A) State of Orissa v. Govind Das Panda (Civil Appeal No. 412/58--decided on 10th December, 1962) and (7) State of Assam v. Bimal Kumar : (1963)ILLJ295SC , were relied upon. In para 19 of Tarachand's case it has clearly been held that it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons. While making the said observations the Supreme Court was concerned with the order and not the show cause notice. The Supreme Court relied upon the decisions in State of Madras v. Srinivasan (supra) and, (8) Som Dutt v. Union of India : 1969CriLJ663 , in para No. 19A of the report and in para No. 20 of the report respectively, while arriving at the said conclusion. The above authority clearly covers the present case as Regulation 8 in that case was almost analogous to Rule 15 of the Central Civil Service Rules and after considering the said Regulation, the Supreme Court held that the order of the concurrence of the Disciplinary Authority need not be a speaking order.
19. I am also inclined to accept the contention of Shri Mehta that in Some Dutt v. Union of India (supra) the above view has been fully enunciated and it has been held that when the orders are of concurrence, there is no obligation to give reasons. In that case, after considering Sections 164 and 165 of the Army Act. which inter-alia provided for the making of representation by the aggrieved person before the Authority empowered to confirm the finding arrived at by the Court Martial & the consideration by such representation by such authority, the Supreme Court came to the conclusion that there was no express obligation imposed by the said sections on the confirming authority to give reasons in support of its decision to confirm the proceedings of the Court Martial. It also held that it cannot be said that there is any general principle or any rule of natural justice that statutory tribunal should always and in every case give reasons in support of decision. Such order cannot, therefore; be held to be illegal for not giving any reasons for confirming the order of the Court Martial.
20. In our court, the same view has been taken in (9) Heeralal v. State of Rajasthan 1977 WLN (UC) 432, wherein reliance was placed on the decisions of the Supreme Court in Tarachand v. Mun. Corporation Delhi (supra). The submission of Shri Mehta that the situation in the present case is similar to the above case, is not without force.
21. It may be noted that in that case even from the impugned order it was not apparent that the reply to the show cause notice was duly considered and therefore, the court had to observe that the order of the Disciplinary authority should show that he had considered the representation. In the instant case, in para No. 13(v) (b) of the reply at page 12, it has been clearly mentioned that the representation of the petitioner and oral submissions made at personal hearing were duly considered by the Disciplinary authority. Not only this even in the impugned order Annexure 5, it has been clearly mentioned that the representation as well as the oral submissions were duly considered'. In the case of the above averment in the reply and the order, there is no room for any argument that the impuged order is invalid as the same is not a speaking order. Shri Mehta has rightly placed reliance on the decision of this Court in (10) Guru Charan Singh v. State of Rajasthan 1975 WLN (UC) 299, wherein after placing reliance on the decision of the Supreme Court in State of Madras v. Srinivasan (supra), it was held that the order of the Disciplinary authority in such a situation need not give reasons. Precisely, the same view was taken in (11) Satay Narain v. State of Rajasthan 1975 WLN (UC) 320. Shri Mehta has also invited attention to some of my observations made in (12) Surya Parakash v. State of Rajasthan 1980 WLN 542 which are as under:
9. It would thus be seen that when the Disciplinary Authority agrees with the finding of the Inquiry Officer or the Inquiring Authority, as the case may be, it is not necessary that any separate finding should be recorded giving reasons for agreement. It is enough if it says that he is in agreement with the finding of the inquiring authority. The case, of course, be different if the Disciplinary Authority disagrees, in which case the detailed reasons for disagreement are to be recorded.
22. In (13) Divisional Personnel Officer Southern Railway v. T.R. Challappan : (1976)ILLJ68SC , it was held that the word, consider as used in Rule 15(4) (ii) (b) of the Rules of 1965 merely connotes that there should be application of mind by the Disciplinary Authority on the representation. Relevant rule in that case was slightly different to the one which we have got. Only requirement in our case is that of application of mind by the Disciplinary Authority to the representation. In the instant case, apart from opportunity to give representation, oral hearing was also given and therefore, there is no violation of principles of natural justice
23. Shri Mridul placed reliance upon (14) Kuldeepsingh's decision 1974 RLW 171. It was rightly pointed out by Shri Mehta that the above decision of this Court was considered in para 21 of the Supreme Court judgment in Div. Personnel Officer v. T R. Challappan (supra) and the Supreme Court observed as under:
We feel that we are not in a position to go to the extreme limit to which the Rajasthan High Court has gone.
24. In view of the above observations, it will have to be accepted that the view of this Court has not been confirmed to the full extent by the Supreme Court in this respect. Shri Mridul referred to the decision of this Court in Phani Bhushan Thakur's case (supra) though relevant cannot clinch the issue as that case was decided on the peculiar facts and there is no analogy between the two. In the instant case, agreement with the finding of the Inquiry Officer was indicated in the show cause notice (Annexure 2). It was further mentioned in Annexure 5 that the representation and oral submissions were considered, therefore, the present case was not a case of passing of dismissal order without complying with the requirement of the Rules.
25. The second sub-limb of this submission of Shri Mridul relates to taking into consideration of the past record On a careful perusal of the impugned order, it is clear that this past record was not taken into consideration for any other purpose except to find out facts for mitigating circumstance if any for reducing punishment. A reading of Annexure 5 has convinced me that the use of 'has also perused the past record' was for finding out the mitigating circumstances and, therefore, the decisions relied upon by Shri Mirdul, in (15) State of Mysore v. Manche Gowde : 4SCR540 , in (16) Ramanandvs. Div Mech. Engineer N. Rly ILR 1962 (17) Raj 302 and Phool Chand v. State (Supra) cannot help and assist the petitioner in getting the writ petition accepted on this last limb of the submissions. In those cases, past record was taken into consideration for imposing punishment without giving any opportunity. In(l7) Tata Engineering and Locomotive Co v. Prasad 1969 (2) LJJ 799, the same view has been taken and the view taken in (18) Kallindi v. Tata Loco and Engg. Co. Ltd. 1960(2) LLJ 228, and (19) Calcutta Jute Manufacturing Co. v. Calcutta Jute Manufacturing Worker's Union 1961 (2) LLJ 686, has been followed.
26. If the punishment would have been determined not only on basis of charges but on past record, then certainly the government servant should have been given reasonable opportunity to show cause but that is not a case here. On the contrary, as mentioned above, past record has been used only for finding out whether the sentence should be reduced and there are any mitigating circumstances. This can always be done and is permissible in law.
27. Shri Mehta also raised preliminary objections about the maintainability of the writ petition on the ground that the statutory appeal lies against the order of dismissal under Rule 23 of the Central Civil Service Rules. I am not inclined to oust and throw out a workman on this technical plea, more so when the management was busy in playing the game of hide and seek by moving application for permission to dismiss him and then withdrawing it and insisting on withdrawal, even though first application for withdrawal was rejected.
28. Again, for the same reasons, I am not inclined to dimiss the writ petition on the ground that the petitioner could have availed the remedy of reference under Section 10 of the Act.
29. Similarly, the preliminary objection that the writ petition deserves to be dismissed on account of disputed questions of fact, deserves to be mentioned only to be rejected. In all fairness, the management should not have raised all these preliminary objections against their own workman in the new era where the workmen are entitled to have participation in the management according to directive principles of Constitution. They should not be treated as untouchables or class II citizens, because the management should never forget that it is only contended satisfied workmen who can give full production by their labour and prespiration The atomic power plant in order to have a smooth running should have contended satisfied bend of workmen and that end in view, the drastic punishment of dismissal for slogan shouting against the reduction of wages should have been avoided.
30. This Court has got no powers like Section 11 of the Industrial Disputes Act for reducing the punishment and therefore, I am helpless to grant any relief to the petitioner. However, it is desired that the management would give second thought to the quantum of punishment and if the workman has behaved well during the pendency of the writ petition, the management would consider his continuance in service with least punishment sympathetically.
31. The result is that this writ petition is dismissed with the above observations but without any order as to costs because in my opinion, the management is not free from responsibility for creating a situation where the litigation becomes inevitable.