Managershri GSRT Corporation vs D.M. Tandel

H.K. Rathod, J.—Heard learned advocate Ms. Sejal K. Mandavia appearing on behalf of petitioner Corporation.

Rule issued by this Court has already been served to respondent.

In the present petition, petitioner Corporation has challenged the award passed by Industrial Tribunal in Reference (IT) No. 72 of 1996 dated

24th October 2002. The Tribunal has set aside the punishment order imposed by reviewing authority and second appellate authority and granted

the benefit to respondent workman the consequential benefits whichever is available to the workman. The Tribunal has confirmed the order of

punishment dated 6th January 1990 imposed by competent authority of stoppage of five increments with cumulative effect.

Learned advocate Ms. Mandavia submitted that Tribunal has committed gross error in setting aside the order of reviewing authority and also the

order of second appellate board. She also submitted that workman was working as conductor. His bus was checked by checking staff on 13th

October 1989 and misconduct was committed by workman, therefore, charge-sheet was served and after completion of departmental inquiry, the

charge is proved against workman, therefore, competent authority has imposed punishment of stoppage of five increments with cumulative effect

by order dated 6th January 1990, against which, the departmental appeal was filed. During which, the reviewing authority has reviewed the

punishment and issue show cause notice and dismiss the workman from service on 4th May 1991. Against which, second appeal was filed by

workman, therefore appellate authority has set aside the order of review and granted reinstatement of respondent workman in the post of

conductor, but, to put him in minimum time scale of conductor post. Therefore, she submitted that Industrial Tribunal has committed gross error in

setting aside the order passed by reviewing authority and second appellate board. For that, Tribunal has no jurisdiction.

I have considered the submissions made by learned advocate Ms. Mandavia appearing on behalf of petitioner - Corporation and I have perused

the award passed by Industrial Tribunal. The Tribunal has considered the submissions made by both the learned advocates appearing on behalf of

respective parties and on the basis of the record produced by Corporation. The legality and validity of departmental inquiry was not challenged by

workman before the Industrial Tribunal. The Industrial Tribunal has considered the pleadings of both the parties and come to conclusion that

finding recorded by competent authority is legal and valid. The Tribunal has also come to conclusion that looking to the misconduct proved against

the workman, punishment imposed by competent authority is proper and no disproportionate, however, Tribunal has considered that no appeal

was filed by workman, even though, in absence of appeal, review authority has enhanced the punishment without giving any reasons in support of

its conclusion. The reviewing authority has not given any reason that how the conclusion of competent authority is bad or wrong. The reviewing

authority has not given finding that on what basis, the dismissal order is passed. The Tribunal has also come to conclusion that second appellate

board who has set aside the order passed by reviewing authority and reinstatement is granted in favour of respondent workman, but, punishment is

imposed to put him in minimum time scale of conductor category without giving any backwages of interim period. Therefore, Tribunal has

examined the question of penalty as to whether it is proportionate or not imposed by second appellate board. The Tribunal has compared three

punishments imposed by three different authorities; one is competent authority, second is reviewing authority and third is second appellate board.

The Tribunal has considered the gravity of misconduct and come to conclusion that punishment imposed by competent authority is just and proper,

therefore, rest of the punishment imposed by both the authorities have been set aside. The Tribunal has given cogent reason in support of is

conclusion. The Tribunal has jurisdiction u/s 11A of the Industrial Disputes Act, 1947 that in case, when Tribunal is satisfied that punishment

imposed by authority is disproportionate and unjust, then, Tribunal can interfere with such punishment and impose proper punishment.

In this case, similarly, Tribunal is having three different punishment in one misconduct, therefore, considering the gravity of misconduct, according

to Tribunal while keeping in mind the conduct of workman, punishment imposed by competent authority is found to be just and proper, therefore,

Tribunal has rightly set aside the punishment imposed by reviewing authority and appellate authority. For that, Tribunal has not committed any error

which requires interference by this Court.

The reviewing authority has power to enhance punishment as view taken by Division of this Court in Reference No. 1 of 2007, but, before

enhancing the punishment, some legal procedure is to be followed by reviewing authority which has not been followed by reviewing authority,

therefore, Tribunal has rightly set aside the punishment, for that, Tribunal has not committed any error which requires interference by this Court

under Article 227 of the Constitution of India.

The respondent workman raised various contentions against review proceedings including no power to enhance the punishment. The question of

enhancement of punishment is decided by the Division Bench of this Court in Reference No. 1 of 2007. Therefore, rest of the contentions of the

respondent raised before the Court/Tribunal is examined by this Court as matter is old and avoid decision on technical ground. There are basic

error in review proceedings which is considered by this Court.

Therefore, the submissions made by learned advocate Ms. Sejal K. Mandavia cannot be accepted, hence, rejected.

The law on the subject has been examined in identical situation where the inquiry officer exonerated the delinquent and disciplinary authority is

not agree with such finding then, finding of disagreement must have to be communicated to the concerned delinquent. The reasons for disagreement

provided for the first time with the order of punishment which has been held to be violative of principles of natural justice and settled canons of law.

In this case also, the punishment imposed by competent authority for which reviewing authority is not agree and the reviewing authority wanted

to enhance the punishment during the pendency of appeal filed by workman. The decision of review cannot be taken during the pendency of

appeal. When the reviewing authority is not agree with punishment imposed by the competent authority and the reviewing authority is deferring with

the decision of competent authority then the reviewing authority should have to give reasons that how the competent authority is wrong in imposing

the punishment to the workman. No such reasons are given by reviewing authority. Along with the review show cause notice, no finding is given by

reviewing authority to the workman. The punishment imposed by the competent authority is found inadequate but on what basis and without

disclosing the reason, explanation was called for from the workman. After reply of the review show cause notice and personal hearing of the

workman, no further finding was given and straightway, punishment was enhanced by the reviewing authority. Even the reviewing authority has not

given reason along with the punishment order. Therefore, the order passed by reviewing authority is basically contrary to the principles of natural

justice and also settled law laid down by the Apex Court. The view taken by the Division Bench of the Bombay High Court in case of Food

Corporation of India Employees Association, West Zone and Anr. v. Food Corporation of India and Ors. reported in 2007 III LLJ 385. Relevant

observations made in Para.9 which are quoted as under:

The learned Counsel appearing for the petitioners has relied upon the judgments of the Supreme Court in the cases (i) Punjab National Bank

and Others Vs. Sh. Kunj Behari Misra, and (ii) Yoginath D. Bagde Vs. State of Maharashtra and Another, in support of his contention that the

entire departmental proceedings would stand vitiated on this ground. In the case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra,

In Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., the question arose whether after the 42nd Amendment of the Constitution,

when the enquiry officer was other than a disciplinary authority, was the delinquent employee entitled to a copy of the enquiry report of the enquiry

officer before the disciplinary authority takes decision on the question of guilt of the delinquent. It was sought to be contended that in that case that

as the right to show cause against the penalty proposed to be levied had been taken away by the 42nd Amendment, therefore, there was no

necessity to give to the delinquent a copy of the enquiry report before the disciplinary authority took the final decision as to whether to impose a

penalty or not. Explaining the effect of the 42nd Amendment the Constitution Bench observed that:

All that has happened after the Fortysecond Amendment of the Constitution is to advance the point of time at which the representation of the

employee against the enquiry officer''s report would be considered. Now, the disciplinary authority has to consider the representation of the

employee against the report before it arrives as its conclusion with regard to his guilt or innocence of the charges.

The Court explained that the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its

conclusion on the basis of the evidence, the enquiry officer''s report and the delinquent employee''s reply to it. The second stage begins when the

disciplinary authority decides to impose penalty on the basis of its conclusions. It is the second right which was taken away by the 42nd

Amendment but the right of the charged officer to receive the report of the enquiry officer was an essential part of the first stage itself. This was

expressed by the Court in the following words:

The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage

and also a principle of natural justice is that the findings recorded by the enquiry officer from an important material before the disciplinary authority

which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance to what extent the said

findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The

findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by its. If such

a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee

should have fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair

opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to

reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the

inquiry. It is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the

evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority

which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority,

that would not constitute an additional material before disciplinary authority of which the delinquent employee has no knowledge. However, when

the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are

contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the

disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice,

therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply

to the inquiry officer''s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the

representation of the employee against it.

These observations are clearly in tune with the observations in State of Assam and Another Vs. Bimal Kumar Pandit, quoted earlier and would

be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse

finding to give a hearing to the delinquent officer. It if enquiry officer had given an adverse finding, as per Karunakar (supra) case, the first stage

require an opportunity to be given to an employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to

them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over turned by the

disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has

recorded its finding. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must

give him a hearing. When the enquiry officer holds the charges to be proved, then that report has to be given to the delinquent officer, who can

make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the

present case, the enquiry report is in favour of the delinquent officer but if the disciplinary authority proposes to defer with such conclusions, then

that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned

unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.

Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the

inquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The

disciplinary proceedings stands concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose penalty

and not the enquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the

disciplinary authority defers from the view of the enquiry officer and proposed to come to a different conclusion, there is no reason as to why an

opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charge officer succeed before the enquiry officer,

they are deprived of representing to the disciplinary authority before that authority defers with the enquiry officer''s report and, while recording a

finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent

before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of

the first stage of inquiry as explained in Karunakar (supra).

The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof,

whenever the disciplinary authority disagrees with the enquiry authority or any article of charge, then before it records its own findings on such

charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its

findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to

persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already

observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of

misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of

Institute of Chartered Accountants of India Vs. L.K. Ratna and Others, . While agreeing with the decision in Ram Kishan Vs. Union of India and

others, we are of the opinion that the contrary view expressed in State Bank of India v. S. S. Koshal and State of Rajasthan Vs. M.C. Saxena,

cases do not lay down the correct law.

The effect of non-application of mind and non-reasoned order passed by the administrative authority which has been discussed by the Apex

Court in case of Cyril Lasrado (dead) by Lrs. and Others Vs. Juliana Maria Lasrado and Another, . Relevant Para.11 and 12 are quoted as under:

11 Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief,

in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons

has rendered the High Court''s judgment not sustainable.

Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed All ER p.1154h ""The giving of

reasons is one of the fundamentals of good administration.

In Alexander Machinery (Dudley) Ltd. v. Cabtree it was observed:

Failure to give seasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker tot he controversy in question

and the decision or conclusion arrived at."" Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision

reveals the ""inscrutable face of the sphinx"", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or

exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system,

reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why

the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a

speaking out. The ""inscrutable face of the sphinx"" is ordinarily incongruous with a judicial or quasi-judicial performance.

In view of the law as discussed above, the Industrial Tribunal has rightly examined the matter on merits and is perfectly justified while exercising

the power u/s 11A of the I.D. Act, 1947 to set aside the punishment order. The Industrial Tribunal has rightly granted the back wages of interim

period. Therefore, the Industrial Tribunal has not committed any error while granting the relief in favour of respondent workman. Learned advocate

Ms. Mandavia is not able to point out any infirmity in the award. This Court is having very limited jurisdiction to interfere with award while

exercising the power under Article 227 of the Constitution of India. The view taken by the Delhi High Court in case of Sushila Sharma v. Pawan

Sharma reported in 2007 II LLJ 865. Relevant observations are made in Para.11 and 12 which are quoted as under:

The settled position of law in respect of interference by the writ courts under Article 226 of the Constitution of India in matters of this nature is

that a writ court exercises its powers of judicial review well within certain parameters. A series of judgments have been rendered by the Supreme

Court in this context, as mentioned below:

(i) Sadhu Ram v. Delhi Transport Corporation Learned AGP Mrs. Pathak requests for some time. Therefore, matter is adjourned to 3.12.2007.

Ad-interim relief granted earlier to continue till then. 1984 Learned advocate Mr...has filed leave note / sick note. Therefore, matter is adjourned to

24.7.2007. 1967.

(ii) Harbans Lal Vs. Jagmohan Saran,

(iii) Calcutta Port Shramik Union Vs. Calcutta River Transport Association and Others,

(iv) Ramniklal N. Bhutta and another Vs. State of Maharashtra and others,

(v) Indian Overseas Bank v. I.O.B. Staff Canteen Workers"" Union and Anr.

(vi) Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. and Another,

All the above judgments, if read collectively, clearly indicate that the High Courts should not interfere with the awards of the Industrial Tribunal

or the Labour Court on mere technicalities. Interference is permissible only if the order of the Subordinate Court suffers from an error of

jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Reappraisal of evidence without sufficient

reason in law to arrive at a finding of fact contrary to those arrived at by the Subordinate Court is not the intent of exercising judicial review. It is

only in cases where overwhelming public interest requires interference and cases of the nature where there is an error of jurisdiction or law as

referred to hereinabove, should the court interfere, particularly in view of the fact that the object of enacting Industrial Disputes Act and of making

a provision therein to refer disputes to tribunals for settlement, is to bring about industrial peace and in all such cases, an attempt should be made

by the courts in exercise of their powers of judicial review, to sustain as far as possible, the awards made by the Industrial Tribunals and Labour

Courts, instead of picking holes in the awards on rival points and frustrating the entire adjudication process.

Recently, in Special Civil Application No. 888 of 2004 filed by GSRTC v. Maganbhai L. Makwana, decided by this Court on 14.12.2007

and in Special Civil Application No. 1648 of 2004 decided on 24.12.2007, similar question was examined by this Court after considering the

following decisions and after considering the decisions, said petition was dismissed by this Court. 2005 II CLR 449 Cal in case of Babban Ram v.

UCO Bank and Ors. 2006 AIR SCW 2177 S. Goparam Vs. The Inspector General, Central Industrial Security Force, The Deputy Inspector

General, Central Industrial Security Force and The Commandant, CISF Unit, NLC, in case of S. Goparam v. Inspector General Central Industrial

Security Force, South West Sector Mumbai and Ors. 2006 SCC LS 1835, in case of Lav Nigam v. Chairman & MD ITI Ltd. and Anr. 2006

AIR SCW 6277 in case of Mathura Prasad v. Union of India and Ors. 2007 I CLR 880 in case of Suresh C. Shah v. Food Corporation of India

2005 (9) GHJ 659 in case of Canara Bank and Others Vs. Swapan Kumar Pani and Another, in case of State Bank of India and Others Vs. K.P.

Narayanan Kutty, in case of State Bank of India and Ors. v. KP Narayanan Kutty.

Therefore, considering the law as discussed by this Court in the aforesaid petition and also in view of the facts of the present case, there is no

substance in the present petition. Accordingly, present petition stands dismissed. Rule stands discharged. Interim relief, if any, stands vacated.