R.N. Gupta vs Hindusthan Steel Works Construction Ltd.

Susanta Chatterji, J.—The present writ petition has been filed challenging the order of dismissal communicated under Memo. No. CVO/26(343)/88-89/963, Hindustan Steel Works Construction Ltd., dated October 5/6, 1989 and for a Writ of Mandamus commanding the Respondents to reinstate the Petitioner with full back-wages.

It is stated that the Petitioner was employed as a Superintending Engineer, Civil and posted at the Branch Office at Vizag. He was served with a charge-sheet by the Respondent No. 1, Hindustan Steel Works Construction Ltd. It was alleged that the Petitioner, while posted and functioning as DE(C), ZQ(C), CSF(C) at Bokaro, Bhilai and Vizag, failed to maintain absolute integrity and devotion to his duty and committed misconduct inasmuch as he acquired the movable/immovable properly in his name or in the name of his family members as a detailed statement was appended to the charge-sheet and it was further alleged that the Petitioner contravened Rules 4(i)(i) and (ii) and 16(1) and (3) of HSCL Conduct Discipline and. Appeal Rules 1978 and committed misconduct. An opportunity to file show-cause was given. The Petitioner participated and an enquiry proceeding started. An ex parte enquiry, however, was made and against the same the Petitioner went to the Appellate Authority and the matter was remanded back. After the matter was further enquired and the Petitioner participated thereto and on the basis of the enquiry report the disciplinary authority passed the order of dismissal and ultimately being aggrieved the Petitioner has come to the writ Court seeking reliefs by way of filing of the writ application.

The main grievance of the writ Petitioner is that the impugned order of dismissal is arbitrary, unreasonable, unfair, unjust and violative of Articles 14 and 16 of the Constitution of India. It is placed on record that the impugned order of dismissal is not based on any evidence and the Petitioner was not afforded any opportunity to defend himself in the departmental enquiry.

The main thrust of the Petitioner''s argument is that the dismissal of the Petitioner is illegal for the reasons that the Petitioner was not given an opportunity to show the fairness of the means by which his family members came in possession of movable and immovable property seized by the C.B.I. Authorities.

The writ petition is opposed by the Respondents by filing an affidavit-in-opposition. It is disclosed, inter alia, that the enquiry officer had to decide to proceed with the ex part enquiry on April 7, 1989, as the Petitioner and his defence assistant did not attend the proceeding, nor prayed for adjournment. As many as five adjournments had previously been allowed on prayer made on behalf ''of the Petitioner. However, on April 7, 1989, no prayer was made for adjournment. Since the matter was getting delayed, the enquiry officer had to start the ex parte enquiry on April 7, 1989. It was submitted that there was a C.B.I., enquiry and it was found out that the Petitioner acquired huge movable and immovable properties in his name, in the name of his wife and joint names of the other members of his family, which were obviously disproportionate to his income and nothing had been satisfactorily explained. The matter went before the Appellate Authority and it was sent back on remand. During further enquiry the Petitioner participated and there was neither any irregularity nor any illegality.

At the time of final hearing, Mr. V.G. Tamaskar, learned Advocate for the writ Petitioner, has argued that admittedly at the time of further enquiry the C.B.I. officers who were previously examined have not been examined and as such, the Petitioner could not get the opportunity of cross-examining. Such a failure vitiates the proceeding and the order of dismissal rests upon such irregularity and illegality and the enquiry report is bad in law and the same is liable to be set aside.

In support of his contention, Mr. Tamaskar has referred to State of Mysore and Ors. v. Shivabasappa Shivappa 1964 L.L.J. 14. The attention of the Court has been drawn to a ratio of the said decision that the Tribunals exercising quasi-judicial functions are not Courts and therefore, they are riot bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources and through all channels, without being fettered by rules and procedure, which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on an information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each, but where such an Opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts. When the evidence is oral normally the examination of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him and admitted in evidence a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and�sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses arc read over to them, marked oh their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them.

By appreciating the said ratio it must be held that in the instant case, the Petitioner was not given an opportunity of cross-examining the C.B.I., officials and the order of dismissal cannot be sustained.

Mr. K.S. Roy, the learned Advocate appearing with Mr. Aloke Chakrabarti, learned Advocate, for the Respondents, has drawn the attention of this Court to the finding of the Enquiry Officer that subsequently when the proceedings were resumed, after remand, the C.B.I., officers were not available to be cross-examined, the charge-sheeted officer has volunteered to forego the opportunity to cross-examine the C.B.I., officials and participated in the proceeding without any reservation thereafter. Besides the observation of the Enquiry Officer, the attention of the Court has been drawn to the petition filed by the delinquent officer who is the Petitioner himself before the Enquiry Officer that, in order to expedite the enquiry, the C.B.I., officials who were subsequently witnesses to prove the documents were not required to be cross-examined by the Petitioner and there was no bar and/or impediment for the Enquiry Officer to proceed. This specific fact is the distinguishing feature inasmuch as non-examination of the C.B.I., officials after the remand is neither fatal nor vitiates the enquiry. The Petitioner himself waived his right of cross-examining the C.B.I., officials and subsequently he cannot come to a writ Court to challenge that the enquiry proceeding is inherently defective and the opportunity was not given. The writ Court is certainly not sitting in appeal upon the decision of the disciplinary authority. The writ Court has to examine the decision making process as found by the Supreme Court in State of U.P. v. Lucknow Development Authority. Besides, the Petitioner having suffered the order of dismissal went in appeal and the Appellate Authority did not find any merit to interfere.

Upon perusal of the materials on record and hearing the application on merit also, this Court does not find that the Enquiry Officer has committed any wrong and/or the order of dismissal suffers from any defect necessitating any interference by the writ Court.

For the foregoing reasons, the writ petition fails and the same is dismissed.

There will be no order as to costs.