BEML Limited vs Gajanand Thawait and Others

I.M. Quddusi, J.—Heard learned Counsel appearing for the appellant as well as learned Counsel for the respondent No. 1.

This writ appeal has been filed against the impugned judgment and order dated 16th August, 2005, passed by the learned Single Judge in W.P. No. 388/1999 Gajanand Thawait v. Bharat Earth Movers Limited and Ors.

At the very outset it is necessary to indicate here that the writ appellant had filed Special Leave to Appeal (Civil) No. 24076/2005 before the Hon''ble Supreme Court which was dismissed as withdrawn vide order dated 29.1.2010 with the observation that in case an appeal against the judgment and order, appealed against the impugned judgment and order, is filed before Division Bench of the Chhattisgarh High Court within one month from today i.e. 29.1.2010, the same will not be dismissed on the ground of limitation alone.

When the SLP was filed before the Hon''ble Supreme Court there was no provision for filing of the writ appeal. For the first time the provision came through the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (Act No. 1 of 2007) w.e.f. 16.1.2007.

Learned Single Judge allowed the writ petition of the respondent No. 1 (Shri Gajanand Thawait) holding that the proceedings of the departmental enquiry for non compliance of the principles of natural justice is vitiated on the ground that some of the witnesses were proposed and examined behind the back of the petitioner, without informing the petitioner, resulting in impugned order of punishment dated 29.9.1992 and the appellate order dated 16.10.1998. The petition was allowed with the direction that the consequence of setting aside of the orders shall follow.

Brief facts of the case are that the respondent No. 1 was employed in the establishment of the writ appellant and was posted as Store Clerk. A charge sheet was submitted against him on 3.6.1992 (Annexure P/4 to the writ petition) for alleged misconduct under Clause 21.20, 21.43, 21.25 and 21.39 of the Companies Certified standing orders for remaining absent, without sanction of leave, on 4th and 5th October, 1991 and act of breach of trust, dishonesty, willful insubordination or disobedience of lawful orders of superiors, gross negligence or neglect of duty and serious misconduct.

In the charge sheet dated 3.6.1992 it was mentioned that the management will rely upon the following documents i.e. First Information Report and Attendance Register and on the evidence of the persons namely Shri Pawan Murthy, Senior Manager (Stores), Shri Umsh Bhat, Assistant Parts Manager, Shri P.K. Rajan, Assistant Manager (Service) and Shri M.S. Manjunath, Junior Stores Assistant.

The F.I.R. was also lodged for the theft and the criminal case was also registered. The respondent was prosecuted and was acquitted from the charges in the year 1997. However, on conclusion of the enquiry proceedings he was removed from service by the impugned order dated 29.9.1992.

After hearing, the short question which is involved in this appeal is that the learned Single Judge has allowed the writ petition on the ground that besides above four witnesses relied upon by the writ appellant and mentioned in the charge sheet, two more witnesses were also examined behind the back of the respondent and thus learned Single Judge has held that the same was violation of the principles of natural justice.

The question for consideration before this Court is that what is the intention to issue charge sheet and call for a reply from the delinquent and to mention in the charge sheet about the evidence of the witnesses to be examined and if the witnesses are to be examined without giving intimation to the delinquent employee, whether the same is not violative of the principles of the natural justice, then why the name of the witnesses and the documents relied upon in the charge sheet or the enquiry proceedings are given to the delinquent and if they are not given the same would be violative of principles of natural justice or not.

It is a set law that no delinquent can be punished without reasonable opportunity to be given to him. On the charge sheet submitted to the enquiry, the reply should be called where the delinquent may submit his proper reply to the same. If he was not known the document relied upon in support of the charge sheet and the witnesses whose statements are to be recorded in support of the charge sheet, the delinquent would not be able to submit proper reply. Sometimes, it is seen that on submission of the reply the enquiry proceedings are dropped on being satisfied with the reply that the delinquent has not committed any misconduct but if the delinquent will not be given adequate opportunity or the material will be concealed from him, it is not expected that the proper reply will come from his side and thus to punish that employee in those circumstances would be clearly violative of the principles of the natural justice.

In the instant matter the respondent No. 1 participated in the enquiry proceedings but when he tried to put a question to a witness named in the charge sheet, he was not allowed then he came out from the proceedings and did not participate therein.

Later two witnesses namely Shri R.K. Chouhan, Ex Subedar and Shri Laxman Prasad, Security Guard, were examined on the request of the Presenting Officer.

Learned Counsel for the writ appellant cannot dispute that the Presenting Officer moved an application for examination of those two witnesses, who were not named in the charge sheet, which was allowed and the statements of those two witnesses were recorded. This was done on the same day i.e. in one day on 30.7.1992, that too in the absence of the respondent No. 1. To our mind, if the writ appellant wanted to record the statement of those witnesses, who were not shown in the charge sheet, the respondent No. 1 should have been informed in advance as the names of those two witnesses were not mentioned in the charge sheet and it cannot be said that they were the part of the enquiry proceedings. Therefore, the principles of natural justice required that at least at the time of moving an application notice should have been issued to the respondent to file his objection to the application before recording the statement of those two witnesses, which has not been done, rather the action of moving the application, allowing the same and recording of the statements of those two witnesses were done in one day without gaining any further time.

We could not understand as to how those witnesses were summoned on the same very day and as to how they became available. Any how, to our opinion the principles of natural justice were violated, when the application for recording of the statement of two witnesses, who were not shown in the charge sheet, were considered without issuing notice to the respondents and further same was allowed and then the statement of those two witnesses were recorded. Therefore, there is no doubt that the principles of natural justice have been violated in moving the application, considering the same and allowing the witnesses to be examined behind the back of the respondent No. 1, without intimating him.

Learned Counsel for the writ appellant has submitted that after recording the statement of witnesses the intimation was sent to the respondent No. 1 but that is not the substantial compliance of the principles of natural justice. He was not given any opportunity to raise objection before allowing the application for summoning persons as a witnesses who were not the part of the enquiry proceedings and were not relied in support of the charges.

Learned Counsel for the writ appellant has submitted that in view of the decision of Hon''ble Apex Court in the case of Union of India v. Y.S. Sadhu, Ex-Inspector1, instead of reinstating the respondent No. 1, the employer may be given an opportunity to continue with the proceedings from the stage of summoning two witnesses, who were not named in the charge sheet.

In that judgment in Union of India v. Y.S. Sadhu, Ex- Inspector (supra) the Hon''ble Supreme Court while setting aside the order of learned Single Judge, as affirmed by the Division Bench of the Gauhati High Court, directed that the course adopted in Hiran Mayee Bhattacharyya v. S.M. School for Girls2 and ECIL v. B. Karunakar3 is to be followed. There shall not be any reinstatement, but the proceedings shall continue from the stage where it stood before the alleged vulnerability surfaced. In ECIL v. B. Karunakar (supra) it was directed that within a period of four months the enquiry shall be completed by starting from the stage of service of show-cause notice and consideration of the reply, if any, filed in accordance with the standing orders holding the field.

But in the instant case we feel that the respondent No. 1 has been acquitted from the criminal charge and also that the witnesses which were examined later, were not shown in the charge sheet and supplementary charge sheet was also not given. This Court is not inclined to consider that at this stage that whether the application moved for recording of the statement of the witnesses, which were not relied upon in the charge sheet, could be allowed or not and that could only be decided after inviting objection from the respondent No. 1. Therefore, for that reason we do not think it proper to direct, at least, to continue the proceedings even if it is not in accordance with law. Further, the matter is relating to the incident dated 4.10.1991 in which the respondent was acquitted from the criminal charges. It is also to be seen that some of the witnesses from the side of the prosecution in criminal case were the same witnesses, who were examined from the side of the prosecution in the departmental enquiry, who were mentioned in the charge sheet.

For the above reasons we see no ground to interfere with the order of learned Single Judge. However, we feel that the respondent No. 1 has not worked and it is settled law by the Supreme Court that with regard to the payment of wages for the period for which the employee has not worked for in service, full wages should not be allowed. Therefore, we modify the impugned order of the learned Single Judge to the extent that the respondent No. 1 shall be entitled to get only 50% of the due wages.

Further, we also feel that it was not left open to the employer to conclude the enquiry from the stage of moving the application for summoning those two witness, therefore we quash the enquiry proceedings from the stage of moving the application for summoning the witnesses and keep it open to the employer to proceed further with the enquiry from the stage of moving the application for summoning two witnesses after providing opportunity to the respondent No. 1 to participate in the enquiry proceeding and move objection, if any.

Writ appeal is allowed in part. No order as to costs.