AI Structured Summary
Not yet generated for this judgment
Judgment
Lalit Mohan Sharma, J.—The petitioner was employed as a driver under the State Road Transport Corporation, respondent no. 1, when a disciplinary proceeding was started against him in October, 1975 and after holding an enquiry, he was discharged from service by the orders contained in Ann�xures 1 and 1/1. His appeal was also dismissed by Annexure-5. The matter was taken up unsusccessfully by a Labour Union with the State Government for reference under the Industrial Disputes Act. The petitioner, thereafter, filed the present writ application ohallenging the orders of termination of his service. According to the case made out in the writ application, the petitioner was posted at Muza-ffarpur in 1975 and applied for earned leave for a month with permission to leave the station. Although a formal order sanctioning leave was not passed, he was permitted by the Depot Superintendent to leave the station. Before the period of leave, applied for expired he came to Muzaffarpur office as he was in need of some money. On his request, he was granted interview by the Divisional Manager. respondent no. 4, and at the interview, the respondent no. 4 unjustifiably lost his temper and asked the petitioner to leave his room Later on, when he reported for duty, he was served with a chargesheet (Annexure-3) and was put under suspension. It was alleged in the chargesheet that on 3.10.75 he had abused the Assistant Personnel Officer, respondent no. 6 and given him threats. The petitioner was called upon to explain as to why his services should not be termin ted. He denied the charges. Subsequently, two addition charges were also made against him and he asserts that the supplimentry chargcs wcre not served upon him. It is further averred thut he was not in-formed about the appointment of any Enquiry Officer in time and sometime. in May or on June, 1976 he learnt that as Enquiry Officer was exam�ning certain persons including the respondent no. 5 as wittnesses He appearcd in the enquiry but since he did not get adequate time to prcpare, he could not effectively defend himself.
Mr. Mukherjee appearing in support of the writ petition has strongly urged that (a) as the petitioner was entitled to a second show cause notice wh�ch was denied to him before passing the order of punishment, the same should bc quashed. Hc also pressed the following points:
(b) The entire enquiry was vitiated on account of v�olation of the rules of natural justice:
c) The findings recorded against the petitioncr were illegal in as much as reliance was placed on the materials which are irrelevant to the charger
(d) The chargeshect (Ext. 3) indicates that the authority concerned had already made up his mind to dispense w�th the petitioner service and h�s violated the proceeding; and
(e) The respondent no. 3 who had passed :the order in Annexure 1/1 was biased against the petitioner;
The respondent-Corporation filled two counter affidavits refuting the petitioner''s claim and the parties filed several supplementary affidavits. The allegation made by the petitioner have been denied by respondents and it has been asserted that the Corporation are governed by certain Standing Orders and are not entitled to a second show cause notice.
Before I deal with the first point of Mr. Mukherji which he described as important and crucial in the case. I propose to consider the other grounds. A copy of the chargesheet ser-vtd on the petitioner on 10.3.75 has becn attached to the writ petition as Annexure-S. It mentions an incident, which happencd on the same date at 2.10 P.M. The allegation is that the petitioner went to the office and started talking to the officer in an angry mood on which he was requested to calm down. Instead, the petitioner further flared up and used abusive language to the officer. On protest hc started using more dirty language as detailed in the chargesheet. The officer was cowed down and remained quiet, but the petitioner continued shouting abuses. The chargesheet required the petitioner to submit his show cause as to why he should not be relieved from the service of the Corporation. According to his case the petitioner submitted his show cause denying the allegation. Later, the respondent no. 4 drew up two more supplementary charges, but the petitioner states that since the impugned orders are based on the first charge, it is not necessary to give details of the later charges. The allegation further is that the petitioner was "not informed officially that an Enquiry Officer had been appointed by respondent no. 4 to inquire into the allegations contained in the chargesheet against this petitioner, nor was the petitioner ever informed by lhe Enquiry Officer as to the date fixed by him for the statutory enquiry to be made against this petitioner in respect of charges against him." He learnt in May or June 1976 about the inquiry going on before the respondent no. 6 and he appeared and placed his case but in the circumstances, he could not put up his defence properly. He has also mentioned about a request for permissioa to engage a lawyer, but has added that on account of the lapse of time he did not remember the details. In the first affidavit filed on behalf of the respondent no. 1 on 15.8.1980 the allegations made by the pctitioncr about his innocence and relating to violation of principies of natural justice, were denied, A reply was also attemp�ed with respect to the asserted right of his second show cause notice. The petitioner filed an affidavit in reply on 20.8.1980. The respondent Corporation thereafter filed a detailed counter affidavit on 16.9.80 along with many annexures. The petitioner again filed several affidavits and finally the respondents filed a third counter affidavit and a supplementary counter affidavit with further annexures in March and April 1985. After going through all these affidavits, I have no manner of doubt that the petitioner''s allegations about denial of adcquate and pro-per opportunity to dcfeud himself are wrong. Since the argument was not elaborated before me, I do not consider it necessary to give ali the details, which the respondents have proved in this regard.
The Enquiry Report has been annexed as Annexure ''L'' to the second counter affidavit (page 145 of the records), and it has dealt with the matter in some detail. The various charges levelled againsl the petitioner are mentioned at pages 1 and 2 of the Report and Mr. Mukherji contended that this ought not to have been done as the impugned order is foun-ded on the alleged misbehaviour of the petitioner on 3.10.1975 only. The Report also states that after receiving the first chargesheet the petitioner sent a reply in a most intemperate language using filthy abuses. Mr. Mukherji said that all these are irrelevant and the find�ng is vitiated as they are in the Report. I do not agree with the learned counsel. The Enquiry Officer was perfectly right in giving all the details relevant to the enquiry �ncluding the petitioner''s reply. the explanation of the petitioner that be d�d not remember as to what he had written in his aforcsaid reply has aiso been considerted. 1 do not find any merit in the other argument of Mr. Mukherji either that since the chargesheet called upon the petitioner to show cause all to why he may not be removed from the service, the authority must be deemed to have made up his mind to dispense with the petitioner services, and the proceeding was, therefore, vitiated in law. The case of M.L. Cara v. The Chief Engineer: 1973 (1) S.L.R. 1076, relied on by Mr. Mukherji is clearly dist�nguishable. After detailing a large number of circumstances arising in that case, as mentioned in paragraph 4 of the judgment, the Punjab and Haryana High Court observed that the mention of the proposed puhishment in the show cause notice '' in the circumstances of the present case" was an indication of pre-determined mind. No general rule was laid down applicable to all cases. Similar�y, the observations of the Calcutta High Court in Meena Janah v. Deputy Director of Tourism : 1974 (2) S.L.R. 466 were also made in the background of the facts of that case.
Mr. Mukherji also suggested that the observation made by the respondent no 3, Chief of Administration of the Corporation, in Anncxure 1/1 that in view of the nature of the incident a criminal proceeding against the petitioner could have been initiated indicated that he WLS b�ased against the petitioner. �n view of the high handed act of the petitioner which is fully establishcd by overwhelming evidence in the case, I am not able to persuade myself to disapprove of the said �bservation, The manner in which the petitioner acted (on the findings arrived at the enquiry, which are not proved to be illegal or erroneous) the chief of administration of any institution is bound to feel helpless in maintaining discipline, if such acts are condoned. It has not been suggested before me that the officer was prejudiced against the petitioner from before or that there is any material or circumstance to suggest bias. In the result, 1 do not find any merit in the points mentioned in paragraphs 3 (b) to(c).
On the last point, which has been described as the really important one by Mr. Mukherji, the learned counstl contended that the petitioner wes entitled to a second show cause notice in view of the Rules of the State Government, which are applicable to the Corporation. The reply of the Corporation is that certain Standing Orders cover the case and they do not contemplaint- a second notice- Mr. Mukherji urged that the procedure prescribed by the Industrial Employment (Standing Order) Act, 1946. (hereinafter referred to as "The Standing Orders Act"), were not followed before the said Standing Orders were adopted and, therefore, they cannot be held to apply to the employees under the Corporation.
In reply, Mr. K.P. Verma, representing the Corporation, has contended that the Standing Orders as contained in Annexure ''E'' at page 108 of the brief, adopted by the Rajya Transport Department of ttie State of Bihar, after duly following all the requirements of the Standing Orders Act, apply to the respondent Corporation and since they do not contemplate a second show cause notice, the petitioner''s claim in this regard has no merit. It was urged that in vicw of the observations in paragraph 5 of the judgement in Bihar State Rajya Transport Corporation v. State of Bihar :
1965 B.L.J.R. 947, it should be held that the Corporation is the successor-in-interest of the Rajya Transport and the Standing Orders, therefore, continued to apply to the Corporation. My attention was drawn to the resolution no. 7, as contained in Annexure ''A'' to the connter affidavit at page 67 of the records adopting the aforementioned Standing Orders in express terms, passed witb a view to remove any doubt or uncertainty. Alternatively, Mr. Verma argued that by reason of the provision of section 12-A of the Standing Orders Act, the Model Standing Orders must be deemed to have been adopted in the establishment and they also do not contemplate a second show cause notice. In the circumstances the Service Rules of the State or the Board''s Miscellaneoos Rules cannot be applied to the employees of the Corporation.
Mr. Mukherji relied on resolution no. 1 of Annexure ''A'' whereby it was decided that the rules of the Bihar Service Code and the Discipline and Appeal Rules-
as normatly apply to the Bihar State Government service, shall apply mutatis mutandis to all categories of officers and staff of the Corporation.
The argument further is that the Bihar and Orissa Subordinate Service (Discipline and Appeal) Rules, 1935 are. therefore, applicable and although these rules do not prescribe the requirement of second show cause notice, such a requirement is spelt out by a reference to th: Board''s Miscellaneous Rules which have to be followed as directed by Note I to Rule 2, quoted below :
Note I. For the procedure to be followed before an order of dismissal, removal compulsory retirement or reduction can be passed, see Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. In drawing up proceedings and conducting departmental enquiries, the instructions contained in Rules 166 to 170 of the Bihar and Orissa Board''s Miscellaneous Rules, 1939, are to be followed except where more detailed instructions have been framed by the department concerned.
The learned counsel strongly urged that the Standing Orders adopted by Rajya Transport cannot be held to have continued to apply to the Corporation, which is a separate legal entity. It was argued that, the decision relied on by Mr. Verma does not say that the service condition of the employee shall continue as before, because in that case the employees of the Corporation would be entitled to many other benefits available to State servants including pension. Alternatively, even if this point is decided against the petitioner, it should be further held that the two sets of Rules, namely, State Government''s Rules and Standing Orders both are applicable. In that situation, the rules which are more beneficial to the employees, must be applied to them in view of the observation of the Supreme Court in The State of Orissa v. Dhireadranath Das : AIR 1961 SC 1715. The main question, therefore is whether the relevant provision of Rule 166 of the Board''s Miscellaneous Rules quoted below, which speaks of a second show cause notice, is applicable to the Corporation''s employees :-
Dismissal. removal or reduction In rank.-(ii) After the enquiry against the person charged has been completed and after the authority competent to impose a penally has arrived at a provisional conclusion in regard to the penally to be imposed, the accused officer should be suppl�ed with a copy of the report of the enquiring authority and be called upon to show cause within two weeks against the particular penalty proposed to be inflicted.
So far as the applicability of the Standing Orders is concerned, I assume against the respondents that the Standing Orders adopted by the Rajya Transport did not continue to apply to the Corporation, s urged on behalf of the petitioner. Mr. Mukherji, however, could not suggest any acceptable reason for excluding the Model Standing Orders. Section 12-A of the Standing Orders Act states that not withstanding anything contained in sections 3 to 12 (i.e. the provisions laying down, the conditions and procedure for certification and certain other provisions), the prescribed Model Standing Orders shall be deemed to be adopted in an establishment for the period commencing on the date on which the Act becomes applicable and ending on the date on which the Standing Orders as finally certified under the Act come into operation u/s 7. If the earlier Standing Orders ceased to apply, as suggested by Mr. Mukherji, (and it is stated that some proposed modification in the earlier Standing Orders are pending consideration under the Act) the Model Standing Orders prescribed in the Schedule tecome immediately applicable; and they also do not provide for a second show cause notice. A comparison of the relevant provisions relating to the disciplinary action against the employees, as contained in the earlier Standing Orders (Annexure ''E'') and those in the Model Standing Orders prescribed under the; Act, would show that they are similar and it is, therefore, not material in the present case as to which of these two Standing Orders apply to the Corporation. Can it then be held that in these circumstances, the Board''s Miscellaneous Rules siso apply and further whether the petitioner was entitled to a second show cause, as mentioned therein.
It has not been suggested by Mr. Mukherji that the Rules applicable to the employees of the State Government apply to the petitioner for any reason other than the decision in resolut�on uo. 2 in Annexure ''A''. Great stress was laid on the wide mearung of the expression "staff" used therein as including all the employees of the Corporation. The learned counsel referred to the shorter Oxford Dictionary defining the term "staff" as body of persons employed in an establishment. However, I do not think that the expression as used in Annexure ''A'' can be understood in that wide sense. As has been argued by Mr. Verma, a distinction has been made by the Corporation between "workmen" and "staff" which is apparent from resolution no. 7, stating that the conditions at service as la�d down in the Standing Orders as adopted by the Rajya Transport would continue to apply to the workmen of the Corporation, but not to the officers and office staff. The petitioner, being a driver, has been rightly suggebled by Mr. Verma to be covered by the expression "workmen" specially in view of the provisions of the Motors Transport Workers Act, 1961. The intention of the Corporation is evident that the drivers who are workmen would be covered by the old Standing Orders and the officers add other members of the stuff by the Bihar Governments rules, Even if in the eye of law, the resolution no. 7 applying the old Standing Orders to the workmen be held not to be effe-ctive (as I have assumed) and, instead, the Model Standing Order be deemed to be applicable, the resolution no. 7 would still be relevant for getting the intention of the Corporation and for interpret�ng the; resolution no. 2. My conclusion is that the term "Staff" used therein must be interpreted in the restricted sense as not including the petitioner. I, there-fore,hold that the State Government''s rules do not apply to the present case.
There is a second reason for coming to the same conclusion. Note I to Rule 2 of the 1935 Rules relied upon on behalf of the petitioner, as quoted in paragraph 10 above, states that Rules 166 to 170 of the Board''s Miscellaneous Rules shall not be followed where more detailed instruct�ons have been framed, Since the Standing Orders have prescribed detaiied instruct�ons with respect to the disclplinary proceedings, the Board''s Miscellaneous Rules must be held not to be applicable.
Mr. Verma has attempted still another argument in reply to Mr. Mukherji''s point. It has been contended that the provision relating to second show cause notice is not of such a character as to attract the principle laid down by the Supreme Court in The State of Orissa v. Dhirendranath Das: AIR 1961 SC 1715 . Reliance has been placed on the following observations of the Supreme Court in paragraph 18 of the judgment in Management Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. Vs. S.S. Railway Workers'' Union, :
As regards the modification requiring a second show cause notice, neither the ordinary law of the land nor the industrial law requires an employer to give such a notice. In name of the decisions g�ven by Courts or the tribunais, such a second show cause notice in case of removal has ever been demanded or considered necessary. The only class of cases where such a notice has been held to be necessary are those arising under Article 311. Even that has now been removed by the recent amendment of that Article. To import such a requirement from Article 311 in industrial matters does not appear to be either necessary or proper and would be equating industrial employees with civil servant. In our view, there is no justification on any principle for such equation. Besides, such a requirement would unnecessar�ly prolong disciplinary enquiries which in the interest of industrial peace should be disposed of in as short a time as poss�ble. In our v�ew it is not possible to consider this modification as justifiable, either on the ground of reasonableness or fairness and should, therefore be set aside.
Mr. Verma also urged that there has been substantial compliance of calling upon the pet�tioner to show cause against the proposed punishment by express language used in An-nexure-3 containing the chargesheet. I do not consider �t necessary to decide these questions in the present case as the petitioner is not entitled to any relief in view of my findings recorded earlier.
In the result, the writ application fails and is dismissed, but in the circumstances, without costs.