Union Of India & Ors vs G. Tulsi Das

Dipankar Datta, J

OA 351/00037/2016, being an application under Section 19 of the Administrative Tribunals Act, 1985 (hereafter the AT Act) at the instance of the respondent, succeeded before the Central Administrative Tribunal, Kolkata Bench (Circuit at Port Blair) (hereafter 'the CAT'). The order of penalty dated May 8, 2015 imposed on the respondent by his disciplinary authority and the appellate order dated November 1, 2015 of affirmance thereof were quashed by the CAT by its order dated June 14, 2019 and the respondent held entitled to all consequential benefits. However, the disciplinary authority of the respondent was granted liberty to proceed against the respondent afresh after furnishing him copy of the enquiry report which found him guilty of the charges that were levelled. The said order of the CAT is the subject matter of challenge in this writ petition at the instance of the respondents in the original application (hereafter the petitioners).

Appearing in support of the writ petition, Mr. Mandal, learned Government Pleader questioned the order of the CAT on two grounds:-

(i) The respondent being a workman to whom the provisions of the Industrial Establishments Standing Orders Act, 1946 applied, remedy of the respondent, if at all, was to approach the Central Government Industrial Tribunal and not the CAT. The CAT had no jurisdiction to entertain and try the original application of the respondent and, therefore, the order dated June 14, 2019 is without jurisdiction.

(ii) Assuming that the CAT had the jurisdiction to entertain and try the original application, it erred in the exercise of its jurisdiction in ordering consequential benefits being made over to the respondent. The orders impugned in the original application having been set aside on the technical ground of non-supply of enquiry report, the CAT ought not to have passed an order which, in effect, would result in reinstatement of the respondent with full financial benefits; instead, the disciplinary proceeding initiated against the respondent ought to have been allowed to resume from the stage the infirmity in such proceeding, as noticed by the CAT, occasioned.

Mr. Mandal, accordingly, prayed for appropriate orders.

Responding to our query as to why the enquiry officer's report had not been supplied to the respondent, Mr. Mandal cited the absence of any provision in the standing orders, governing the terms and conditions of service of the respondent, mandating such a course of action as the answer.

Mr. Krishna Rao, learned advocate for the respondent, while supporting the order of the CAT contended that the point of jurisdiction now being raised by Mr. Mandal had not been raised before the CAT. Not only that, there is no pleading in the writ petition with reference to material particulars of the service conditions of the respondent as to why the CAT did not have the jurisdiction to entertain and try the original application. In such view of the matter, the point of jurisdiction should not be allowed to be raised before the writ court only on the basis of the oral argument of Mr. Mandal.

Mr. Rao, however, in his usual fairness did not dispute the second contention of Mr. Mandal.

In reply, Mr. Mandal while admitting that there was no pleading in the writ petition as complained of by Mr. Rao referred to Grounds V and VII urged in support of the prayers in the writ petition reading as follows:-

V. For that the Hon'ble Tribunal did not appreciate the fact that the Petitioner in the O.A. was governed by the Standing Orders applicable to the Industrial Establishment of Saw Mill, Chatham.

VII. For that the applicant of O.A. was dismissed as per the provision of Standing Order after summary enquiry and the provision of Rule 14 of CCS (CCA) Rule is not strictly applied in this case.

According to him, the same were enough to attract the writ jurisdiction of this Court.

The parties have been heard.

The first contention raised by Mr. Mandal, though attractive, need not detain us for too long. Indeed, the necessary pleading in relation to a factual situation supported by documentary evidence is not traceable in the pleadings. What is there are Grounds V and VII, extracted supra. The necessary pleadings with evidence not being on record, that is sufficient for us not to agree with Mr. Mandal's contention. We, however, do not wish to overrule his contention only on the ground of lack of pleadings and evidence.

The contention is answered relying on the decision of a Full Bench of this Court reported in 2013 (3) CHN (CAL) 407 (Awadhesh Singh vs. Union of India). Considering the provisions of the 1985 Act [sections 14 and 28 read with section 3(q)], as interpreted by the Hon'ble Supreme Court in its decisions reported in (1992) 4 SCC 432 (Union of India and Ors. vs. Deep Chand Pandey) and (2008) 8 SCC 402 (Telecom District Manager and Ors. vs. Keshab Deb), it was ruled by the Full Bench that approach before the CAT or the tribunal constituted under the Industrial Disputes Act, 1947 (hereafter the ID Act) is at the option of the workman seeking regularisation/absorption in service of the Central Government. The Full Bench disposed of the reference before it by dismissing the writ petitions which had been presented before the High Court as the court of first instance, with liberty to the writ petitioners to agitate their claim for regularisation/absorption before the appropriate forum, i.e., the CAT or the forum under the ID Act, in accordance with law.

In Keshab Deb (supra), the Supreme Court held as follows:-

"18. In a case of the present nature where, inter alia, an employee maintains a writ petition not only on the ground of violation of the equality clause enshrined under Article 14 of the Constitution of India but also on the ground of violation of the provisions of the Industrial Disputes Act, 1947, he has an option to choose his own forum. Section 28 does not bar the jurisdiction of the Central Administrative Tribunal. It saves the jurisdiction of the Industrial Tribunal. An employee who claims himself to be a workman, therefore, will have a right of election in the matter of choice of forum. It is, therefore, not correct to contend that the Central Administrative Tribunal had no jurisdiction to pass the impugned judgment. Furthermore the respondent claimed regularisation in services. Such an application was maintainable. As to whether he would be entitled to such a relief or not, however, is a different question.

A tribunal indisputably was entitled to exercise its jurisdiction for enforcement of a fundamental right."

In the present case, the claim of the respondent was that his disciplinary authority had proceeded to inflict penalty on him without supplying him a copy of the enquiry report and this amounted to violation of principles of natural justice. Reliance in this behalf was placed on the decision of Supreme Court reported in (1993) 4 SCC 727 (Managing Director, ECIL vs. B. Karunakar). That the enquiry report had not been supplied to the respondent is not in the dispute. Even though Mr. Mandal has argued that the applicable standing orders did not require supply of enquiry report, B. Karunakar (supra) mandates every employer ~ public or private ~ to supply copy of the enquiry report notwithstanding that the rules governing the terms and conditions of service do not so require. There being a clear breach of natural justice, Article 14 of the Constitution was attracted and, therefore, it was at the option of the respondent to choose his forum for remedy. He approached the CAT, which proceeded to decide the original application bearing in mind the dicta in B. Karunakar (supra). There could, thus, be no error of assumption of jurisdiction by the CAT.

We, therefore, hold the original application to be maintainable and overrule Mr. Mandal's first contention.

In so far as the second contention is concerned, we may refer to the decision of the Supreme Court reported in (2013) 6 SCC 530 (LIC v. A. Masilamani). It has been held there that if a final order of punishment is set aside on the ground that the enquiry preceding such final order stood vitiated by breach of natural justice, the disciplinary authority should be allowed to resume the proceeding from the stage the infirmity occurred. In that view of the matter, we record our inability to be ad idem with that part of the impugned order passed by the CAT observing that the respondent shall be entitled to all consequential benefits. Such observation/order is set aside.

We direct that from the date of this order, the respondent shall be deemed to have been reinstated in service only for the limited purpose of concluding the disciplinary proceeding against him. Upon supply of the enquiry officer's report, the respondent shall deemed to be under suspension till such time the proceeding is concluded by passing a fresh final order. The enquiry report shall be supplied to the respondent within 7 days from date. The respondent shall have 3 weeks' time to represent against the enquiry report.

Upon consideration of the records of enquiry together with the representation that the respondent might submit, the disciplinary authority shall pass a final order as early as possible so as to conclude the proceeding not later than 3 months from date.

During the period spent under suspension, the respondent shall be entitled to subsistence allowance as per law.

If indeed the respondent is exonerated, his disciplinary authority shall pass appropriate order regularizing the period of absence following imposition of penalty by the order dated May 8, 2015 till our decision as well as the period of suspension, as directed hereinabove.

The writ petition stands allowed to the extent mentioned above. There shall be no order as to costs.