1. The defendant Tamil Nadu Electricity Board represented by its Superintending Engineer, Mettur Electricity System, Mettur Dam, in O.S.No.148 of 1981 on the file of the District Munsif, Attur, is the appellant in the second appeal. The suit was filed by the respondent for a declaration that the show cause notice issued by the appellant on 17.10.1980 was null and void and for an injunction on restraining him from giving effect to the same and for costs on the following averments:
The respondent was a Junior Assistant in the Revenue Unit, Attur, and she was working in the same capacity in the Velapady Revenue Unit. The Divisional Electrical Engineer, Operation and Maintenance, Attur, asked the respondent to explain certain lapses by memo dated 12.2.1976. She offered her explanation on 23.2.1976. Though as per the standing orders of ClericalWorks, the Divisional Engineer, Operation and Maintenance, Attur, was not competent to ask the respondent to offer explanation and he could not initiate disciplinary proceedings. The same had been done. There were charges framed against the respondent on 2.4.1976 by the same Officer and this also he was not competent to do. The first of the charges was vague without date and time. An enquiry was conducted by him on 31.7.1976. The charges related to some anonymous petition attributed to the respondent and the tampering of the attendance register, without any enquiry the Divisional Engineer submitted a report to the appellant by observing that the handwriting in the anonymous petition tallied with her handwriting. He did not examine any witnesses and no opportunity was given to the respondent to cross-examine the witnesses. The preliminary inspection report was not also furnished to the respondent. The anonymous petition was attributed to the respondent on the basis of the report of a Document Expert and the report was not furnished to the respondent. The witness Ramasamy had also not deposed against the charges. Except the interested uncorroborated solitary testimony of the Assistant Accounts Officer, no tangible evidence was available. The Enquiry Officers left the file as they were transferred to other stations. But the last Enquiry Officer, who was transferred from Attur to Mettupalayam, got the file from Attur and gave his finding, which was illegal. The respondent was served with a show cause notice dated 17.10.1980. The enquiry officer had not stated anything about the tampering of the attendance register in his findings. Within two years the enquiry was conducted by four different persons and the enquiry was on four days by three different persons.
As per para one of the chargesheet the anonymous petition was written while the respondent was working at Palapady. She was relieved on 9.6.1975 from Valapady Revenue Unit to join Attur. The attendance register was available upto 30.6.1975 and only on 1.7.1975 morning it was found missing. The respondent was due for promotion during December, 1980. Because of the enquiry her promotion was overlooked. This was against the principles of natural justice. The suit was therefore necessitated for the reliefs already mentioned.
2. The suit was resisted by the appellant inter alia as follows:
The Divisional Engineer, Operation and Maintenance, Attur, was duly empowered by the appellant to initiate disciplinary proceedings against his subordinates. The respondent attended the enquiry and took part in the same without any protest and the respondent was therefore estopped from raising such a plea. The departmental proceedings were not initiated on the basis of any written complaint from the' public. There was therefore no question of supplying a copy of the written complaint. The respondent voluntarily admitted the fact of tampering with the attendance register in her deposition before the Enquiry Officer even on 2.2.1978. The handwriting found in the anonymous petition was sent to the Tamil Nadu Forensic Science Laboratory, Madras, for a comparison with the admitted handwriting of the respondent. The Laboratory gave an opinion that the handwriting in the anonymous petition tallied the handwriting of the respondent. The Civil Court had no jurisdiction to entertain the suit. The Divisional Engineer, Operation and Maintenance, Attur, who conducted the enquiry was transferred toMettupalayam and from there he gave his finding. The respondent's promotion was never overlooked.
3. The learned District Munsif, Attur, framed the necessary issues and by her judgment and decree dated 30.10.1982 dismissed the suit holding that the Divisional Engineer, Operation and Maintenance, Attur, had jurisdiction to conduct the enquiry and the Civil Court has no jurisdiction to try the suit, that the principles of natural justice had not been violated and that the respondent was not entitled to the declaration and permanent injunction prayed for by her.
4. However, on appeal in A.S. No.137 of 1983 by the respondent, the learned Second Additional District Judge, Salem, reversed the decision of the trial court and passed the decree declaring that the show cause notice marked as Ex.A.10 in the suit dated 17.10.1980 was null and void and directing the appellant to give promotion to the respondent. Aggrieved, the present second appeal has been filed.
5. At the time of admission the following substantial questions of law were framed for decision in the second appeal:
(1) Whether the Civil Court has jurisdiction to entertain a suit to restrain disciplinary proceedings? (2) Whether the punishing authority himself should conduct the enquiry and whether the enquiry can be delegated to be conducted by an enquiry officer? and (3) Whether the lower Appellate Court has jurisdiction to grant the relief of promotion to the plaintiff, a relief which was not even prayed for in the suit
6. If it is to be found that the enquiry proceedings were null and void, then the jurisdiction of the court to grant consequential reliefs cannot be assailed.
7. Mr.V. Rangabhashyam, learned Counsel for the appellant, contended as follows;
The lower Appellate Court was in serious error in holding that the suit was maintainable. The respondent ought to have exhausted her remedies in the department before knocking at the doors of the Civil Court. The learned Counsel further submitted that the respondent had been given a full and reasonable opportunity to defend herself against the charges framed against her and the suit itself had been instituted by her with a view to delay the matter and avoid a final decision in the disciplinary action. The learned Counsel further submitted that the lower Appellate Court ought to have at least directed a de novo enquiry to be conducted against the respondent even conceding without admitting that the domestic enquiry conducted till then was initiated for some reason or other.
8. Per contra, Mr.G. Venkataraman, learned counsel for the respondent, submitted that the very reading of the enquiry proceedings would substantiate the case of the respondent that she had been more sinned against than sinning and what the lower Appellate Court had done in decreeing the suit was in order. The learned counsel also submitted that the Civil Court had undoubted jurisdiction when there was failure of natural justice.
9. Mr. Rangabhashyam, learned Counsel for the appellant, relied on the following decisions in support of his stand: (1) The Premier Automobiles Ltd., v. Kamlakar Shantaram Wadke and others, : (1975)IILLJ445SC (2) State of Haryana and another v. Rattan Singh, : (1982)ILLJ46SC and (3) Jitendra Nath Biswas v. M/s. Empire of India and Ceylone Tea Co. and another, : (1989)IILLJ572SC .
10. Mr.G. Venkataraman relied on the judgment of this Court in General Secretary. National and Grindlays Bank Employees' Union, Madras v. I. Kannan and others, : (1978)ILLJ453Mad and The Rajasthan State Road Transport Corporation and another v. Krishnan Kant, : (1995)IILLJ728SC .
11. It is seen from Ex.A.8 dated 4.11,1977 which is the preliminary investigation report given to P.W.1 that the Divisional Engineer, Operation and Maintenance, Salem, had on a comparison of the admitted handwriting of the respondent with the handwriting in the anonymous petition attributed to. her, come to the conclusion that both were identienal. Absolutely no reference had been made in Ex.A.8 to the alleged opinion obtained from the Forensic Science Laboratory, Madras. The preliminary investigation report had beenprepared by the Divisional Engineer, Operation and Maintenance, Salem, when admittedly he had no jurisdiction over Attur. This, in the opinion of the learned Additional District Judge, vitiated the entire procedure. This is a part from the fact there was absolutely no reference in Ex.A.8 to the expert's opinion obtained from the Forensic Science Laboratory, Madras. When the very foundation was defective, the further proceedings ought not to have been pursued. Again, in the memo Ex.A.9 dated 8.12.1977 issued by the Divisional Engineer, Operation and Maintenance, Attur, three witnesses, viz., Palanivel, Jayaraman and Chellakannu had been cited. However, no witnesses were examined on 24.12.1977 when the enquiry was conducted and no opportunity was given to the respondent to cross-examine the witnesses cited in Ex.A.9. There was therefore violation of Rule 21 sub-rule (7) (c) of the Board's Standing Orders. The observation by the concerned authority that the respondent did not choose to examine witnesses was clearly wrong. She had definitely asked for the examination of three witnesses, but she was not permitted to examine them. This was also in violation of Rule 21 sub-rule (7) (b) to (e) of the Board's Standing Orders. It is also seen from Ex.A.10 dated 17.10.1980 show cause notice that the respondent and the other six witnesses mentioned in Ex.A/13, the certificate issued by the Divisional Engineer, Operation and Maintenance, Attur, had been examined and that the respondent was given opportunity to cross-examine the first, the second and the third witnesses cited in Ex.A.13 and also examined her own witnesses cited in Ex.A.13. Whateven report the Divisional Engineer Operation and Maintenance, Attur, sent to Superintending Engineer was only his personal opinion without any evidence on record and there was violation of rule 21 sub rule 7 (b) to (e) of the Board's Standing Orders. The alleged proceedings ended in 1978 and the show cause notice Ex.A.10 was issued in October, 1980 after a lapse of two years. This gap had not been explained and this was in violation of principles of natural justice. As had been rightly pointed out bythe learned Counsel for the respondent, action had been taken on the report of the Executive Engineer, Salem, but the said Executive Engineer had not been examined. It is therefore clear that there had been violation of principles of natural justice. The respondent had not been afforded adequate opportunity to meet the charges set up against her. No exception can be taken to the decision of the lower Appellate Court.
12. The only thing to be answered is with regard to the jurisdiction of the Civil Court. It is now settled law that when there is failure of principles of natural justice, the Civil Courts could be approached. It has been held by the Supreme Court in The Rajasthan State Transport Corporation's case, : (1995)IILLJ728SC already referred to that,
'any violation of the Standing Orders entitles an employee to appropriaterelief either before the forums created by the Industrial Disputes Act or theCivil Court where recourse of Civil Court is open. The policy of law emergingfrom Industrial Disputes Act and its sister enactments is to provide analternative dispute resolution mechanism to the workmen, a mechanism whichis speedy, inexpensive, informal and un-encumbered by the plethora ofprocedural laws and appeal upon appeals and revisions applicable to CivilCourt. Indeed, the powers of the Courts and Tribunals under the IndustrialDisputes Act are far more extensive in the sense that they can grant such reliefas they think appropriate in the circumstances for putting an end to industrialdispute.'
Though on the facts of that case, it was held that the suit filed by the employees challenging the order of termination based on violation of certified Standing Orders with regard to holding of disciplinary enquiry is not maintainable in law.
13. In The Premier Automobiles' case, : (1975)IILLJ445SC after considering several English and Indian decisions on the subject, the following principles were enunciated by the Supreme Court:
'To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus: (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court. (2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suit or concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either section 33-C or the raising of an industrial dispute, as the case may be.'
In paragraph 24 the Supreme Court observed further as follows:
'We may, however, in relation to principle 2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such aantingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in section 2-A of the Act Will be an industrial dispute even though it may otherwise be an individual dispute. Civil Courts, therefore, will have hardly an occasion to deal with the type of cases falling under principle 2. Cases of industrial disputes by ;and large, almost invariably, are bound to be covered by principle 3 stated above.'
After referring to the above enunciation of the principles the Supreme Court in The Rajasthan State Road Transport Corporation's case, : (1995)IILLJ728SC in paragraph 23 of its judgment observed as follows;
'It is the Principle No.2 and particularly the qualifying statements in para 24, that has given rise to good amount of controversy. According to Principle No.2, if the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Industrial Disputes Act, the jurisdiction of the Civil Court is alternative and it is left to the person concerned either to approach the Civil Court or to have recourse to the machinery provided by Industrial Disputes Act.'
In paragraph 25 the Supreme Court observed as follows:
'This statement cannot be understood as saying that no industrial dispute can ever be entertained by or adjudicated upon by the Civil Courts. Such an understanding would not only make the statement of law in Principle No.2 wholly meaningless, but it would also run counter to the well-established principles on the subject.'
Ultimately, the Supreme Court in paragraph 26 stated as follows:
'Thus a dispute involving the enforcement of the rights and liabilitiescreated by the certified Standing Orders has necessarily got to be adjudicatedonly in the forums created by the Industrial Disputes Act, provided, of course,that such a dispute amounts to an industrial dispute within the meaning ofsections 2(k) and 2-A of the Industrial Disputes Act or such enactment saysthat such dispute shall be either treated as an industrial dispute or shall beadjudionted by any of the forums created by the Industrial Disputes Act. TheCivil Courts have no jurisdiction to entertain such suits. In other words, adispute arising between the employer and the workman/workmen under, or forthe enforcement of the Industrial Employment Standing Orders is an IndustrialDispute, if it satisfies the requirements of section 2(k) and or section 2-A of theIndustrial Disputes Act and must be adjudicated in the forums created by theIndustrial Disputes Act alone. This would be so even if the dispute raised orrelief claimed is based partly Upon certified Standing Orders and partly ongeneral law of contract.'
14. I am satisfied that the problem in the present case arose out of a right under the general or common law and not under the Industrial Disputes Act and the party had a right to choose between, the two forums. The complaint in the present case is with regard to failure of principles of natural justice. The lower Appellate Court has found that the principles of natural justice had been thrown overboard by the appellant in issuing the show cause notice, In my view, having regard to the established legal position, it has to be held that the Civil Courts jurisdiction is not barred. Factually it has been found by the lower Appellate Court that the respondent had not been given adequate opportunity to examine her witnesses and to cross-examine the witnesses onthe side of the appellant. She had not been given the copy of the complaint. She had not been given the copy of the report alleged to have been obtained by the Forensic Science Laboratory. All these aspects had been held to have vitiated the proceedings against her. I have also gone through the enquiry proceedings and I find that the authorities had not acted properly or with a sense of justice.
15. Consequently, the substantial questions of law raised have to be answered against the appellant and the second appeal is dismissed. However, there will be no order as to costs.