K.V. Ramkrishnaiah vs The General Manager (P), The Singareni Collieries Co. Ltd.

The petitioner questions the order of the respondent herein in his Ref. No. PD/MGR/8/1543, dated August 24, 1986, dismissing the petitioner from the services of the company with effect from August 25, 1986.

The petitioner joined the service of the Singareni Collieries Company Ltd., as badli fitter in the year 1982. He was promoted as general mazdoor at Kothagudem in 1984 and he was later transferred to the workshop of the Collieries in November, 1984. The event that led to his dismissal occurred on April 19, 1986. On that day he was required to test the brakes of dumper bearing No. 259. While returning after testing, a fitter by name N. Bala Bhaskara Rao was killed under the said dumper while being driven by the petitioner. The petitioner was issued charge-sheet dated April 22, 1986 stating that while operating the said dumper the petitioner dashed and ran over the deceased N. Bala Bhaskara Rao causing him fatal injuries and leading to his death on the spot and that was because of the rash and negligent driving of the dumper which amounted to gross misconduct under Company''s Standing Order No. 16(6) and also amounted to violation of Mines Regulation No. 190 constituting misconduct under the Company''s Standing Order No. 16(19). He was asked to show cause as to why disciplinary action should not be taken against him. In his reply dated May 8, 1986, the petitioner stated as follows :-

In reply to your charge sheet No. PK. OC. I/8/205 dated April 22, 1986, received by me on May 4, 1986, I most respectfully beg to submit that on April 19, 1986 at about 9.45 a.m. I have returned after trial of LW 50 Dumper No. 259 and entered the workshop premises. While entering, there was nobody in the front way and there was clear way into the workshop. I do not know as to how this unfortunate accident occurred. However, after going over 50''-0 distance into the workshop, one worker shouted at me to stop the vehicle. There-upon the vehicle was immediately stopped.

Hence, the allegation that I had dashed and run over on Shri N. Bala Bhasker Rao, fitter, is far from truth and without any base since the said deceased had not come through that way.

Under the above circumstances, I would request you to kindly look into this matter and set aside the charge sheet framed against me."

Subsequently in Ref. No. Sr. DE/PKOC. 118/264, dated May 20, 1986, the petitioner was directed to attend the enquiry along with his witnesses at the enquiry fixed on May 23, 1986 at 4.30 p.m. After the enquiry, the petitioner was issued the impugned dismissal order dated August 24, 1986 finding that the charges levelled against him were proved and holding that as they were grave and serious in nature, punishment of dismissal was warranted.

The petitioner questions the said order of dismissal; firstly, on the ground that the disciplinary enquiry was held even though a criminal complaint was filed and C. C. No. 253 of 1986 was registered and pending against him; secondly, on the ground that the Enquiry Officer''s report was not furnished to him and that he was not given an opportunity to rebut the findings in the enquiry report; and thirdly, on the ground that before the imposition of punishment of dismissal, he was not given a show cause notice and an opportunity and therefore principles of natural justice were violated.

He also seeks to give a different version as to how the accident on April 19, 1986 occurred. He states in the affidavit in support of the present petition that at the time of the accident, the entire area was filled with dust as another heavy vehicle overtook his vehicle raising a lot of dust; and in his own words he states : "I presume the deceased who was on his bicycle was caught in the dust and came directly under the vehicle T. No. 259. I was careful and even stopped for a while to see that the dust created by the other vehicle cleared. I was not at all rash or negligent." But this new story is neither here nor there because there is no whisper of it in his reply dated May 8, 1986 to the show cause Notice. Even otherwise, it is not for this Court to inquire into that aspect of the matter in this writ proceedings.

Though a ground was raised in the affidavit in support of the writ petition that no Enquiry Officer was appointed even though, in the same breath, stating "the departmental enquiry was conducted parallel to the police case, which is not permissible under law" and "no enquiry report was supplied to me nor was I given an opportunity to rebut the findings", the learned counsel for the petitioner does not advance any arguments on the basis of this allegation - presumably in view of the fact that the typed papers filed along with the writ petition contain notice to the petitioner dated May 20, 1986 adverted to above, requiring the petitioner to attend the enquiry "fixed in the office of the undersigned at 4.30 p.m. of May 23, 1986".

As regards the contention of the learned counsel for the petitioner based on the pendency of parallel criminal proceedings because of which disciplinary proceedings could not have been simultaneously proceeded with, the learned counsel for the respondent relies on a Division Bench decision of this Court in A. P. S. R. T. C. v. K. Seshagiri Rao, 1991 (2) AWR 49. In that case also the disciplinary proceedings were concluded pending the criminal proceedings and the order of dismissal was questioned on the ground that subsequently the criminal proceedings ended in acquittal. On the basis of the said acquittal, the order, of dismissal was sought to be questioned. But the appellate authority dismissed the appeal observing that the standards of proof applicable to criminal trial and departmental disciplinary proceedings were different. The Division Bench upheld the view of the appellate authority. The learned counsel for the respondent relies also on the judgment of a learned Single Judge of this Court in Mohd. Shafiuddin Vs. A.P.S.R.T.C., Hyderabad and Others, , wherein it has been held as follows referring to the judgment of the Supreme Court in Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, .

"It was held in Kusheshwar v. M/s. Bharat Coking Coal Ltd. (supra) that, it is desirable, if the facts of a given case warrant, to stay the departmental proceedings. As such, the principle of law, which can be culled out, is that merely because there is a departmental proceeding and also simultaneous criminal proceedings, it is not necessary that per force the departmental proceedings should be stayed pending conclusion of the criminal trial. It depends upon the facts of each case as to whether circumstances warrant the stay of disciplinary proceedings pending conclusion of criminal trial."

In the present case, the petitioner had not sought stay of departmental proceedings pending the criminal proceedings. In fact, he allowed the departmental proceedings to completion and therefore he cannot turn back now and question the same after their culmination. He does not allege or contend that because of the pendency of the criminal proceedings he was prejudiced in any way in the conduct of the departmental proceedings. In the circumstances, I do not find any merit in this contention of the petitioner.

As regards furnishing of the enquiry report, the law is now settled by a decision of the Constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., . The majority of four learned Judges of the Supreme Court in that case held that the decision in Union of India and others Vs. Mohd. Ramzan Khan, , rendered on November 20, 1990 was prospective in effect observing as follows :- (p. 183)

"Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punishment which are passed by the disciplinary authority after November 20, 1990. This is so, notwithstanding the ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The 29 proceedings pending in Courts/Tribunals in respect of orders of punishment passed prior to November 20, 1990, will have to be decided according to the law that prevailed prior to the said date and not according to the law laid in Mohd. Ramzan Khan''s case (supra). This is so notwithstanding the view taken by the different benches of the Central Administrative Tribunal or by the High Courts or by this Court in R.K. Vashisht case, 1993 Supp.(1) SCC 431 ".

In view of this authoritative pronouncement of the Constitution Bench of the Supreme Court, the petitioner cannot have the dismissal order dated August 24, 1986 set aside on the ground that the enquiry report was not furnished to him.

The learned counsel for the petitioner relies on the judgment of Motilal B. Naik, J., in G.L.N. Acharyulu Vs. The Managing Director (Appellate Authority) State Bank of Hyderabad and Others, . The petitioner in that case questioned the order of compulsory retirement passed against him as confirmed by the appellate authority on the ground that the report of the Enquiry Officer and the report of the disciplinary authority recommending his compulsory retirement were not furnished to him and that he was not given an opportunity to place his case before the final authority on the question of the punishment to be imposed on him. The learned Judge referred to the judgment of the Supreme Court in K.L. Tripathi Vs. State Bank of India and Others, , and observed that : Page 13

"The Supreme Court summarised the reasonable opportunity and its violations as under :-

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) An opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence, and finally;

(c) An opportunity to make his representation as to why the proposed punishment should not be inflicted on film, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant;

However, I have to observe that a reading of K. L. Tripathi, case (supra) discloses that in para 36 Sabyasachi Mukharji, J., delivering the judgment of the three judges Bench of the Supreme Court. in fact dealt with the judgment of a Constitution Bench of the Supreme Court in Khem Chand Vs. The Union of India (UOI )and Others, , wherein the requirements of Article 311(2) of the Constitution of India were considered and observed : page. 13 "In that decision, the Court was concerned with the expression reasonable opportunity of showing cause under Article 311(2) of the Constitution. The facts of that case were entirely different from the facts of the instant case. However, Das C.J., dealing with opportunity to show cause explained at pages 1096-97 (of SCR); (at Pp. 306-7 of AIR), of the report the position under the said Article as follows :-"

and extracted a passage from the judgment in Khem Chand''s case (supra). The passage extracted by Motilal B. Naik, J., in his judgment in G. L. N. Acharyulu''s case, (supra) (W. A. No. 308 of 1993 is pending against this judgment) is in fact part of that extracted by Sabyasachi Mukharji, J., from the judgment of S. R. Das, C.J., in Khemchand''s case (supra), summarising "the reasonable opportunity envisaged by the provision under consideration"-the provision under consideration being Article 311(2) of the Constitution. With due respect to the learned Judge, I have to observe that this makes it clear that the said "reasonable opportunity" cannot be divorced from Article 311(2) as it existed prior to the 42nd amendment of the Constitution and cannot be imported into the general principles of natural justice and fair play.

As regards the third contention of the petitioner, the learned counsel for the respondent relies on the judgment of the Supreme Court in Associated Cement Companies Ltd. Vs. T.C. Shrivastava and Others, , and Standing Order No. 16 of the Standing Orders of the Singareni Collieries Company Ltd., which provides inter alia as follows :-

"(a) No order of dismissal shall be made unless the employee concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The approval of the Manager is required in every case of dismissal and when circumstances appear to warrant it that officer shall institute separate independent enquiries before dealing with the charges against an employee.

(b) An order of suspension shall be in writing and may take effect immediately on delivery to the employee, who shall be given an opportunity of explaining the circumstances alleged against him. If on enquiry the order is confirmed or modified, the employee shall be deemed to be absent from duty for the period of suspension and shall not be entitled to any remuneration for such period. If, however, the order is rescinded, the employee shall be deemed to have been on duty during the full period of suspension and shall be entitled to the same wages as he would have received if he had not been suspended.

(c) In awarding punishment under this Standing Order, the Manager shall take into account the gravity of the misconduct, the previous record if any, of the employee and any other extenuating or aggravating circumstances that may exist. A copy of the order passed by the Manager shall be supplied to the employee concerned."

In A. C. C. Ltd. (supra) the Supreme Court considered the effect of a similar Standing Order No. 17 in that case which provided inter alia as follows :-

"All dismissal orders shall be passed by the Manager or Acting Manager who shall do so after giving the accused an opportunity to offer any explanation. Due consideration to the gravity of the misconduct and the previous record of the worker shall be given in awarding the maximum punishment."

The question considered by the Supreme Court in that case was "whether when paragraph 3 of the above S. O. says "all dismissal orders shall be passed by the Manager or Acting Manager who shall do so after giving the accused an opportunity to offer any explanation", it contemplates giving of a second opportunity to the delinquent to show cause against the proposed punishment of dismissal after he has been found guilty or the opportunity spoken of is the opportunity to meet the charges in the domestic enquiry ?". The Supreme Court held as follows on the said question :- (pp 109-110)

"It is thus clear that neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary. This, of course, does not mean that a Standing Order may not provide for it but unless the Standing Order provides for it either expressly or by necessary implication no inquiry which is otherwise fair and valid will be vitiated by non-affording of such second opportunity...... ........ ....... "In other words, different stages in domestic inquiry were never in the contemplation of the farmers of the S. O. That being the position it would be difficult to attribute any intention to the farmers thereof to provide for a second opportunity being given to the delinquent of showing cause against the proposed punishment. The latter part of para 3 merely casts a unilateral obligation on the concerned authority or the officer to give due consideration to the gravity of the misconduct and previous record of the delinquent in awarding the maximum punishment."

The decision of the Supreme Court in A. C. C. Ltd. (supra) was not brought to the notice of the learned Single Judge in G. L. N. Acharyulu''s case, (supra) and therefore the observations and ratio therein regarding second opportunity in respect of the punishment to be imposed in cases not governed by Articles 311 of the Constitution, are per incuriam. Reference has also to be made in this connection to a recent decision of the Supreme Court in State Bank of India v. S. S. Koshal, 1994 Supp (2) SCC 468. In my view, the present Standing Order No. 16 is more clear and unambiguous because it only provides in Clause (a) extracted above, that "no order of dismissal shall be made unless the employee concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him." By no stretch of imagination can this be interpreted as implying a second show cause notice or opportunity after the enquiry, as regard the punishment to be imposed. I therefore do not find any merit in this contention of the petitioner as well.

No other contention is advanced.

In the circumstances, I am not inclined to interfere with the order of dismissal impugned in this writ petition. The writ petition is therefore dismissed. No costs.