Indian Airlines Limited and Others vs Shiva Anand and Others

Ashim Kumar Banerjee, J.—Respondent No. 1 was an employee of Indian Airlines Limited, the Appellant above-named. At the relevant time he was posted at Calcutta Air Port. In August, 1998 he applied for concessional ticket from the Appellant for visit to Delhi. Accordingly he was granted a ticket. He proceeded for Delhi by Indian Airlines flight on August 22. 1998. On August 28, 1998 he visited Australian High Commission at New Delhi and applied for Visa for visit to Australia. On September 2, 1998 he again visited the Australian High Commission and submitted an employer''s certificate purported to be signed by Sri S. K. Basu, Senior Chief Manager of the Appellant being dated July 31, 1998 wherein it was certified that Sri Anand was granted privilege leave with effect from September 1, 1998 to October 30, 1998. On the same date the office of the Appellant received a telephone call from one Miss Sangita from Australian High Commission, Delhi verifying the employer certificate so given by Sri Basu. Sri Basu denied having been given any such certificate to Anand. On being asked by the Appellant the Australian High Commission faxed the said certificate produced by Anand. On September 7, 1998 the Delhi Office of the Appellant wrote to the Australian High Commission to submit a report on such issue to enable them to take suitable action as against the concerned employee for production of such false certificate. Accordingly the Australian High Commission by their letter dated September 12, 1998 informed the Appellant that Sri Anand applied for visa, to visit Australia. In support of his application he submitted the said certificate. On a verification they came to know that Sri S. K. Basu did not sign the said certificate. On coming to know of the said fact the Commission rejected his application for Visa. At the request of the Appellant the Visa application was sent to the Appellant along with the said purported certificate dated July 13, 1998.

The Appellant issued a charge-sheet upon Sri Anand on October 28, 1998 to the following effect:

That you submitted a false Employer''s certificate to Australian High Commission, New Delhi forging the signature of Sri S.K. Basu, Dy. General Manager (G.S.) and also used a fabricate rubber stamp in the name of Sri S. K. Basu for obtaining visa to visit Australia.

Initially he avoided the charge-sheet being served upon him. Ultimately he received the charge-sheet on January 23, 1999. On January 26, 1999 Sri Anand wrote a letter to the Appellant questioning the maintainability of the charge-sheet. He also contended in the said letter that no document was enclosed with the charge-sheet sent to him and the said charge disclosed a ''pre-medicated mind'' to punish him. He asked for inspection of the documents mentioned in the charge-sheet. It is pertinent to mention that Anand was placed under suspension with effect from September 23, 1998. Such order of suspension was, however, withdrawn with effect from January 28, 1999. The authority by letter dated February 1, 1999 supplied him the copies of document as would appear his letter dated February 16, 1999. He denied having been submitted any certificate from Sri Basu and also contended that he neither utilized any such document for the purpose of his Visa nor used any fabricated rubber stamp in the name of Sri Basu.

The authority proceeded against him departmentally by appointing an Enquiry Officer. Anand demanded legal assistance in the disciplinary proceeding. The authority denied him legal assistance, however, granted him liberty to appoint ''friend'' from amongst the employees of the Appellant to assist him in the disciplinary proceeding. Anand did not attend the enquiry proceeding. He however, received copies of the proceeding. Pertinent to mention that he was attending office during the period when the enquiry was being conducted. This compelled the Enquiry Officer to proceed exparte. The Enquiry Officer ultimately held him guilty in his report dated December 23, 1999 submitted to the Disciplinary Authority appearing at page 490 to 528 of the paper book. Anand was also furnished with a copy of the enquiry report on December 24, 1999 giving him an opportunity to offer his explanation on the same. Anand gave his representation on January 7, 2000 reiterating his stand taken earlier. He contended that the enquiry proceeding was conducted contrary to the service rules. He reiterated having not submitted any such certificate of Sri Basu.

A second show-cause was issued proposing the punishment for dismissal of service. Anand maintained his earlier stand in reply. Ultimately the authority by order dated March 2000 passed a final order dismissing him from service. On the same day Anand moved the learned Single Judge by filling writ petition being W. P. No 663 of 2000 wherein the learned judge passed an interim order to the effect that there would be an order of status quo as regards the status of the Petitioner''s service. It was further clarified that if no final order was passed as on that day the same would not be passed. An application of contempt was moved wherein His Lordship directed the Respondent to report to the court with regard to compliance of the order. An appeal was filed by the Appellant. The order of the learned Single Judge dated March 15, 2000 was stayed by the Division Bench. Anand approached the Supreme Court. The apex Court granted leave to file a departmental appeal again the final order. Pursuant to such liberty Anand filed a departmental appeal which was rejected by the Appellant authority by an order dated January 18, 2001.

The final order so emerged in the order of the appellate authority was challenged by Anand by filling a supplementary affidavit in the said writ proceeding. The writ petition was heard by the learned Single Judge and disposed of by judgment and order dated August 2, 2002 appearing at pages 813-827 of the paper book. The learned Single Judge quashed the order of punishment and directed reinstatement of Anand with 50 percent back wages.

Being aggrieved by and dissatisfied with the judgment and order of the learned Single Judge the Appellant preferred the instant appeal.

The Division Bench by an order dated October 10, 2002 Admitted the appeal and passed an order of injunction restraining Anand for joining service coupled with a direction on the Appellant to pay him a sum of Rs. 1 lack without prejudice to their rights and contention in the appeal. It was further made clear that in the event the appeal succeeded and the writ petition failed the Appellant would be at liberty to recover the said sum from Sri Anand.

The appeal was heard by us on the above mentioned dates.

Mr. Pradosh Kumar Mullick, learned Senior Counsel appearing for the Appellant contended as follows:

1) The fact that Anand visited the office of the Australian High Commission at Delhi after availing Concessional Air ticket from the he Appellant and submitted his Visa application on August 28, 1998 was proved in the enquiry. It was also proved that he submitted vague certificate purported to have been signed by Sri S. K. Basu having a forged stamp put on it on September 2, 1998 as would appear from the faxed copy of visa application so forwarded by the Australian High Commission. Hence the charge brought against Anand was proved.

2) Since the charge brought against Anand was proved in enquiry he was given appropriate punishment.

3) In the disciplinary proceeding Anand was given adequate opportunity to defend himself in the said proceeding, he chose not to appear in the enquiry. He also did not deal with the charges specifically in reply to the chargesheet or in the further correspondence. Hence the disciplinary authority was right in passing the final order.

4) Pursuant to "the leave granted by the Apex Court, Anand preferred the departmental appeal which was disposed of by the appellate authority affirming the order of punishment.

5) The offence so committed by Anand deserved punishment of dismissal from service and the learned Single Judge should not have interfered with such order by directing reinstatement with 50 percent back wages.

6) Anand filed the writ petition inter alia challenging the proceeding during the pendency of the writ proceeding. The finial order was then passed which was affirmed by the appellate authority. Hence without amending the writ petition Anand was not entitled to question the final order so merged in the order of the appellate authority.

7) The order of the learned Single Judge being contrary to the well settled principles of law should be set aside.

Mr. Piush Kumar Dutta, learned senior counsel appearing for the Respondent No. 1, Anand contended as follows:

i) The disciplinary proceeding was conducted without affording adequate opportunity to Anand to defend himself in the said proceeding. Hence the proceeding and the final order resulting there from being vitiated by principles of natural justice should be quashed and set aside.

ii) The evidence so deposed in the exparte enquiry did not result in proof of the charge so brought against Anand.

iii) The documents relied on by the Appellant in the charge-sheet were not given to Anand at the appropriate stage.

iv) Important witnesses like Miss Sangita and the handwriting expert were not called at the enquiry to prove the charge.

v) The enquiry report as well as the final order were perverse as the burden of proof to prove the charge that there had been forgery committed by Anand was not properly discharged by the management.

vi) The charge so brought against the Anand was vague and could not be made this basis of the proceeding which resulted the order of dismissal of Anand.

vii) The final order so merged in the order of the appellate authority was liable to be quashed and set aside and the learned Judge was right in doing so. No interference by the Appellate Court was called for.

Elaborating his submissions Mr. Mullick appearing for the Appellant cited two decisions of the Chandigarh Administration Vs. Laxman Roller Flour Mills Pvt. Ltd., and Commissioner, Bangalore Development Authority Vs. S. Vasudeva and Others, .

Citing the aforesaid two Apex Court decisions Mr. Mullick contended that since the final order as well as the appellate order were passed during the pendency of the writ proceeding the Writ Court should not have interfered with the said orders without having the said writ petition amended. Mr. Mullick further contended that all possible opportunities were given to Anand to defend himself in the proceeding. He was attending office regularly when the proceeding was going on. He chose not to attend the enquiry on the plea that he was denied legal assistance. Legal assistance was not contemplated in a domestic proceeding. The authority granted him liberty to appoint a "friend" from amongst his colleagues. He did not do so. The evidence so came out in the enquiry would clearly depict that Anand used that particular certificate for his visa, it was immaterial as to whether he personally forged the signature of Sri S. K. Basu or not. The very fact that he used the said certificate knowing it to be false, amounted to proof of the charge so brought against him. Hence the learned Single Judge should not have interfered with the same by allowing the writ petition and quashing the final order that to with a direction for reinstatement with 50 per cent back wages.

Mr. Dutta appearing for Anand made elaborate submissions questioning the validity and legality of the charge brought against him as well as the final order of dismissal.

Mr. Dutta contended that the basic principles of Evidence Act were not at all followed in the enquiry. The entire episode culminated from the phone call of Miss Sangita who was not called in the enquiry. Handwriting expert report would show that the document did bear neither the signature of S.K. Bose nor of Anand. Hence the charge of forgery was not proved. The management failed to discharge the onus lying upon them by shifting the burden of proof on Anand which was the basic necessity of the principles of Evidence Act. He also contended that the documents relied upon by the management, were not supplied at the appropriate stage. ME 14 to 18 were served much after submission of charge-sheet. Some of the documents were served even after the enquiry proceeding by enclosing those along with enquiry report. Mr. Dutta handed over a chart showing how the management miserably failed to prove the charge brought against him. It was also evident that the principles of natural justice were violated by not serving the relevant documents at the appropriate time.

On the issue of amendment of the writ petition Mr. Dutta drew our attention to the order of the learned Single Judge which gave Anand liberty to challenge the final order and the appellate order by filling of supplementary affidavit. Such order was not challenged by the Appellant by preferring appeal contemporaneously. Hence it would be too late in the day to contend that order of the learned Single Judge quashing the final order was not valid in absence of an appropriate amendment being brought about in writ proceeding.

Mr. Dutta in support of his contentions relied on the following decisions:

A) Non Supply of document;

i) Committee of Management, Committee of Management, Kisan Degree College Vs. Shambhu Saran Pandey and Others,

ii) Ananthasubramania Padmanabhan @ A Padmanabhan v. Union of India and Ors. (2002) 2 CHN 29

iii) Pepsu Road Transport corporation v. Lachhman Dass Gupta and Anr. (2001) 9 SCC 523

B) Perversity

iv) Anandram Jiandrai Vaswani v. Union of India and Ors. (1983) 1 CLJ 8

v) Collector of Customs, Calcutta and Ors. v. Biswanath Mukherjee (1974) CLJ 251

vi) In the Matter of the Appropriate Authority and Another Vs. Smt. Sudha Patil and Another,

C) Violation of Principles of Natural Justice

vii) Committee of Management, Kisan Degree College and Ors. (Supra)

viii) Between Indian Airlines Limited and Ors. v. Amarnath Haldar and Ors. 1997 (75) F.L.R. 279

ix) Between Bharat Coking Coal Limited and Anr. v. Surendra Pratap Narayan Singh and Ors. 2004 (1) LLJ 498

x) Between Sri Swapan Ray v. Indian Airlines Limited and Ors. 1996 (1) LLJ 1211

xi) Union of India and Another Vs. Tulsiram Patel and Others,

xii) Managing Director, Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc.,

D) Alternative remedy

xiii) State of H.P. and Ors. v. Gujarat Ambuja Cement Ltd. and Anr. (2005) 5 Supp 161.

E) Back wages

xiv) Union of India and another Vs. Babu Ram Lalla,

xv) H.S. Chandra Shekara Chari Vs. The Divisional Controller, KSRTC and Another,

xvi) P.G.I, of Medical Education and Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54

xvii) Between Indian Airlines Limited and Ors. v. Amarnath Haldar and Ors. (Supra)

F) Judicial Review.

xviii) Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others,

G) Vague Charge

xx) The Government of Andhra Pradesh and Others Vs. A. Venkata Rayudu,

On the issue of amendment we feel that Mr. Mullick was not right in contending that the learned Single judge erred in considering the final order of the disciplinary authority as well as the order of the appellate authority. The writ petition was moved at a stage when the final order was not known to the delinquent. As soon as the order was made known he was granted liberty by the learned Judge to challenge the said order was not known tot he delinquent. As soon as the order was made known he was granted liberty by the learned Judge to challenge the said order in the same proceeding. The Apex Court granted him liberty to file departmental appeal. He was unsuccessful there. Hence he brought the order of the appellate authority by filling a supplementary affidavit pursuant to the liberty granted by his Lordship. The Appellant did not challenge such liberty contemporaneously. Hence it is no more open to the Appellant to contend that the learned Judge overstepped while considering the final order so merged the order of the appellate authority. The contention of Mr. Mullick on that score is thus rejected.

Let us now examine the challenge to the disciplinary proceeding and the final order so merged in the order of the appellate authority. The Appellant brought a charge against Anand that he used a fake certificate for the purpose of obtaining visa. Such charge was brought against him after receiving appropriate information from the Australian High Commission and after verifying the fact from Mr. S. K. Basu that he did not issue any such certificate to Anand. It is true that the handwriting expert observed in his report that it was neither signed by Basu nor by Anand. Such report was accepted by all. Hence we do not find any necessity to call the said expert in the enquiry and the contention of Mr. Dutta on that score is thus rejected. If we look at the charge it would appear that Anand was charged for submitting a false employer''s certificate forging the signature of Basu by using a fake rubber stamp. On subsequent investigation it came out that Anand did not put his signature. What was required to be proved was whether he did use the said certificate for his visa application. From the documents so exhibited in the enquiry and from the evidence it was clear that such certificate was produced by Anand to support his visa application. It is immaterial to find out who actually forged the signature of Basu and/or used the fake rubber stamp. It is true that Miss Sangita was not called to adduce evidence. We are unmindful as to the degree of proof required for a disciplinary proceeding. In a disciplinary proceeding preponderance of probability is sufficient to implicate the delinquent. The authority relied on the report of the High Commission. They got the original visa application as well as the original certificate so submitted by Anand from the Australian High Commission. That was sufficient to implicate him. Even if Sangita was called she would have said the same thing as would be appearing from their report submitted contemporaneously to the Appellant. Even if we assume that in absence of Sangita it was not proved that Anand submitted personally the said certificate on September 2, 1998 the very fact that such certificate was submitted in support of his visa application was apparent from the original papers so forwarded by the Australian High Commission and exhibited in the enquiry. Hence we do not find any perversity or lack of evidence in this regard and the contention of Mr. Dutta on that score is rejected.

Let us now come tot he issue of violation of principles of natural Justice. Mr. Dutta cited as many as six decisions on this score. We, however, feel it necessary to refer tot he case of Swapan Ray v. Indian Airlines (Supra) In the said case the learned Single Judge of this Court on examination of facts came to the conclusion that the enquired officer lacked basic knowledge as to how to conduct domestic enquiry in a disciplinary proceeding and the enquiry proceeding therein was turned out to be a mockery of the principles of natural Justice. While observing as such in paragraph 27 of the said decision His Lordship observed that it was not possible to lay down any right rules as to which principle of natural Justice is to be applied. There is no such thing as technical natural justice. The requirement of natural justice depends upon the facts and circumstances of the case, the nature of enquiry, rules under which the tribunal was acting, the subject matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties.

In the instant case the authority at every stage asked him to cooperate. He was granted liberty to appoint a "friend" in the enquiry as per the service rules. He did not do so. He was regularly attending office during enquiry. He, however, did not participate in the enquiry. The authority from time to time served copy of the proceeding contemporaneously as would appear from the records. He was served with a copy of the enquiry report so that he could offer his explanation. He was served with a second show cause notice proposing a punishment. Thereafter the final order was passed. He preferred a departmental appeal after leave being obtained from the Apex Court. The appellate authority disposed of the appeal by a reasoned order. What more was required to be followed in accordance with the principles of natural justice in these facts and circumstances, is not known to us. We are unable to appreciate the submission of Mr. Dutta on this score. With due regard and respect to Mr. Dutta we are unable to accept his contentions on this score and the same is thus rejected.

We are of the view that the proceeding was conducted in a manner as required therefore. He was afforded adequate opportunity to defend himself in the proceeding. He consciously avoided the enquiry. His explanations to charges were duly dealt with by the authorities. We do not find any illegality in the proceeding.

The charge so brought against Anand and the evidence so came out in the enquiry deserved appropriate punishment being the order of dismissal. The authority passed the said order and we find no illegality therewith.

We are not sitting on appeal over the order of the disciplinary authority. We are only to see as to whether fair play was conducted in having the proceeding disposed of. Since we are satisfied on that score final order was no more available for judicial review. The learned Judge in our view erred in interfering with the same.

The appeal thus succeeds. The order of the learned Single Judge is set aside. The writ petition is dismissed. The payment of Rs. 1 lakh in terms of the order of the appellate Court would be adjusted against the dues of the Respondent No. 1, if any. The Appellant is granted liberty to initiate appropriate recovery proceeding for the balance amount, if any, in accordance with law.

Before parting with we wish to highlight one issue. When the appeal was pending with the appellate authority the Accounts Department of the Appellant gave two letters to Anand appearing at page 802 and 803 of the paper book wherefrom it appears that the Appellant asked the delinquent to collect his provident fund dues. Those two letters were perhaps issued due to communication gap. The Appellant, in our view, should have been more careful in this regard. While the appeal of the Respondent No. 1 was pending with the Appellant authority the Accounts Department should not have issued those two letters. We deprecate such action of the Appellant.

The appeal is disposed of accordingly without any order as to costs.

Urgent Xerox certified copy would be given to the parties, if applied for.

Tapan Mukherjee, J.

I Agree