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Judgment
Jayant Patel, J.—The present appeal is directed against the order dated 05.02.2013 passed by learned Single Judge of this Court in Special Civil Application No. 7411 of 2012 whereby the learned Single Judge, for the reasons recorded in the order, has dismissed the petition and not interfered with the order passed by the Industrial Court. We have heard Mr. Raval, learned advocate for the appellant.
The contention raised on behalf of the appellant is that after framing of the chargesheet but before holding of the inquiry, opportunity of hearing has not been given to the appellant and, therefore, there is breach of principles of natural justice. He further submitted that as per the standing order, such opportunity was required to be given and, therefore, it can be said that the initiation of the inquiry and the subsequent proceedings were in contravention of the standing order. In his submission, the aforesaid contention was raised before the Industrial Court and also before learned Single Judge, however, the same has not been appropriately considered and, therefore, this Court may consider it in this appeal.
He also submitted that disciplinary action cannot be taken against the employee for belated action and the bar of delay would operate against the employer for taking action for absenteeism which was spread over so many years prior to initiation of the action and, therefore, also the action could not be sustained and hence, this Court may consider the appeal.
It is hardly required to be stated that as such, the petition before the learned Single Judge was under Article 227 of the Constitution of India, since it was arising from the award of the Industrial Court. The learned Single Judge has found that there is no perversity in the findings recorded by the Industrial Court and, therefore, there were no reasons for interference. But as it has been submitted that the petition was also under Article 226 of the Constitution we may not take strict view on maintainability.
On the aspect of the contention raised for issuance of the chargesheet contrary to the standing order is concerned, learned Single Judge has observed that the petitioner ought to have raised such contention at the very initial stage when the chargesheet was issued against him. On the contrary and after having admitted guilt, the petitioner can not be permitted to raise the ground at the belated stage.
In our view but from the aforesaid observation made by learned Single Judge that even if the contention is considered further, it does not appear that after the initiation of the inquiry when the petitioner remained present before the Inquiry Officer, he has admitted the guilt as alleged in the chargesheet. He has not raised at any point, the aspect that the chargesheet was in contravention of the standing order and even if it is considered for the sake of examination that the standing order provides for issuance of notice or hearing prior to initiation of inquiry after framing of the charge, then also in the present matter no prejudice is caused to the petitioner, inasmuch as, it was the case where the charge was admitted and the guilt was admitted by the petitioner. It is hardly required to be stated that in case where complaint is brought before the Court for alleged breach of principles of natural justice, the Court may decline to entertain the contention for alleged breach of principles of natural justice if the Court is satisfied that there is no prejudice caused to the complaining party because if such contention is examined, no useful purpose would be served. Considering the facts of the present case, we find that when the petitioner admitted the guilt of the alleged charge and did not raise any objection at any point of time, no prejudice would be caused to the petitioner for the alleged breach of principles of natural justice, hence, we find that the said contention cannot be entertained.
On the aspect of absenteeism spread over various years prior to the initiation of the action is concerned, there also no such objection has been raised and guilt is admitted. Therefore, now the contention cannot be entertained from the mouth of the petitioner that employer had no authority to initiate the proceedings on the alleged ground of absenteeism.
The reliance is placed upon the decision of the Apex Court in the case of Union of India (UOI) and Others Vs. Prakash Kumar Tandon, is of no help to the petitioner, inasmuch as in the said decision the Apex Court has observed that prejudice would be inferred if there is no fair procedure adopted. But considering the facts of the present case, we find that when the petitioner had admitted the guilt, such interference may not be attracted as sought to be canvassed. Another decision upon which the reliance is placed by learned advocate for the appellant between Union of India (UOI) Vs. H.C. Goel, is also ill-founded, inasmuch as the petitioner is not having any protection under Article 311 of the Constitution as sought to be canvassed. Since he is not a public servant as the said decision cannot be made applicable to the facts of the present case. In view of the above, we find that even if the lenient view is taken on the aspect of maintainability of the appeal, since the main petition could be said as under Article 227 of the Constitution of India, and even if the contention raised on behalf of the appellant are examined, we do not find that any case is made out for interference to the ultimate decision taken by learned Single Judge for dismissal of the petition. Under the circumstances, the appeal is meritless and, therefore dismissed. No order as to costs.