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Judgment
Satyabrata Sinha, J.—This appeal is directed against a judgment and order dated March 23, 1989 passed by A.K. Sengupta J. in C.O. No. 3097 (W) of 1984 whereby and where under the said learned Judge allowed the writ application filed by the writ Petitioner/Respondent No. 1 questioning the orders of punishment dated April 8, 1983 issued by the disciplinary authority as also the order, dated November 23, 1983, passed by the appellate authority dismissing the appeal.
The basic fact of the matter is not in dispute.
The writ Petitioner was appointed as Assistant Colliery Manager in the then National Coal Development Corporation on May 1, 1958. Upon coming into force of the Coking Coal Mines (Nationalisation) Act, 1972 and Coal Mines (Nationalisation) Act, 1973, the name of the aforementioned National Coal Development Corporation was changed to Central Coalfields Limited, which became a company subsidiary to Coal India Limited, the Appellant herein. At the material time, the writ Petitioner was working as General Manager of Mugma Area of Eastern Coalfields Limited. Two charge sheets were issued against him, one dated March 14, 1979 (hereinafter referred to as the first charge sheet) and another dated July 10, 1979 (hereinafter referred to as the second charge sheet), which are contained in Annexures ''A'' and ''B'' to the writ application. The Petitioner allegedly submitted a reply denying or disputing the charges. In respect of the first charge sheet, the Respondent No. 6, Sri T.R. Jayaraman, who was the Chief Mining Engineer (C & D), Eastern Coalfields Limited was appointed as an Enquiry Officer, whereas in respect of the second charge sheet, Sm. Jyotsna Diesh, Respondent No. 7 who was the Chief Central Vigilance Commission, New Delhi, was appointed as the Enquiry Officer. It is submitted that the Respondent No. 6 found the Petitioner guilty of the charges levelled against him in respect whereof, he submitted an enquiry report dated March 27, 1982 as contained in Annexure ''E'' to the writ application, finding the Petitioner guilty of the said charges, whereas the Respondent No. 7 in terms of a report dated September 7, 1982, as contained in Annexure ''G'' to the writ application exonerated the Petitioner from the charges. The enquiry report dated September 7, 1982 was placed before the disciplinary authority, being the Chairman-cum-Managing Director of the Appellant company on April 7, 1983, and by a memo dated April 8, 1983 signed on April 7, 1983, he without disagreeing with the said report, and without giving any further opportunity of hearing to the Petitioner, imposed a punishment of reduction to the next lower stage in the existing time scale. However, by reason of another order dated April 8, 1983, the disciplinary authority having agreed with the enquiry report submitted by the Respondent No. 6, imposed a penalty of removal from service with immediate effect. The said memos are contained in Annexures ''F'' and ''H'' to the writ application respectively. By reason of the first charge sheet dated March 14, 1979, the writ Petitioner was charged with the following:
Shri Lakshman Singh, while functioning as General Manager in the Mugma Area of Eastern Coalfields Limited during the period from 11th October 1974 to 17th July 1977 had ordered/sanctioned recruitment of persons as under:
i) 13 persons in Dumka Field either at Chitra or Lalmatia or Dumka Sub-Area.
ii) 10 persons in Gopalpura Township.
iii) 5 persons as General Mazdoors in January 1977 due to damage on account of mines fire at Shampur ''D'' Colliery.
iv) Appointment of 32 truck leaders at Chitra Colliery.
v) Appointment of 15 Civil Overseers at Mugma Area.
vi) Appointment of Watchman and Chowkidars at Mugra Area against the sanction for Rajpura Projects (West Borakar Project).
Shri Lakshman Singh, as General Manager, had no power to order/sanction such recruitments in view of the following circulars.
1) HQ/MD/ED/P&IR/EMP.GEN/10426 dated 23rd November, 1974.
2) HQ/MD/ED/P&IR/E-9/MP/944 dated 20th March, 1975.
3) MD/ED/12/678 dated 25th July, 1975.
In addition to the above circulars vide letter No. HQ/ED/MD/P&IR/CCP/10396 dated 22nd November, 1974 addressed to the General Manager, Mugma Area, Shri A.K. De, Asstt. Chief Personnel Officer, had intimated that vacancy should be filled up by transfer of surplus workers available at the first instance within Mugma Area and then, if required, from other. Areas of Eastern Division.
Vide letter No. HQ/MD/ED/P&IR/E-9/MP-2865 dated 14th June 1975 the Area General Manager, Mugma Area was intimated that no additional man-power had been sanctioned as the existing strength is enough for average production.
Letter No. HQ/MD/ED/P&IR/E. 1313/4279 dated 1st April, 1975 addressed to the Are General Manager, Mugma Area intimated him that recruitment of Civil Overseers made at the level will be irregular.
Letter No. HQ/ED/KD/Eng.(C) dated 7th July, 1975 addressed to the General Manager, Mugma Area had stated that it was not advisable to recruit Civil Overseers at Area Level. It was pointed out to him that at that time there were surplus workmen in other areas of Eastern Coalfields Limited vide letter No. HQ/ED/MD/P&IR/10396 dated 22nd November 1974.
Thus Shri Lakshman Singh by ordering/sanctioning recruitments of the above persons had acted in a manner prejudicial to the interest of the company and has thereby committed misconduct under Sub-rule 5(5) of Conduct, Discipline and Appeal Rules, 1978 of the Company.
Various circulars and letters issued from Head Quarters to the General Managers and Sub-Area Managers of different Areas of Eastern Coalfields Limited in general and the letters issued to Shri Lakshman Singh, General Manager, Mugma Area in particular stated that there was a complete ban on recruitment of persons by the General Managers.
These circulars and letters are listed as under:
i) Circular No. HQ/MD/ED/P&IR/EMP. Gen/10426 dated 23rd November, 1974.
ii) Circular No. HQ/MD/ED/P&IR/E.9/MP/944 dated 20th March, 1975.
iii) Circular No. MD/ED/12/678 dated 25th July, 1975.
iv) Letter No. HQ/ED/MD/P&IR/OCP/10396 dated 22nd November, 1974.
v) Letter No. HQ/MD/ED/P&IR/E-9/MP/2865 dated 14th June 1975.
vi) Letter No. HQ/ED/MD/P&IR/E-1313/4279 dated 14th July, 1975.
vii) Letter No. HQ/MD/ED/Eng. (G) dated 7th July, 1975.
Also as per sanction issued by the CMD, Eastern Coalfields Ltd. recruitment of Civil Overseers was to be done at Hqrs. and Shri Lakshman Singh was requested to send the names of the persons forwarded from the Employment Exchange to Hqr. which was not done, Shri Lakshman'' Singh recruited Civil Overseers himself for his area in violation of the directives.
In the recruitment of persons in other cases normal recruitment procedures as laid down by the Chairman-cum-Managing Director, Eastern Coalfields Limited, in his circular No. HQ/MD/ED/P&IR/Recruit-ments/10426 dated 23rd November, 1974 were not followed. Letters from Sanctoria Head Quarter issued by the Chief of Personnel and other Officers as per approval of the Chairman-cum-Managing Director or in accordance with the accepted policy of the company were violated by Shri Lakshman Singh while acting as General Manager of Mugma Area.
Thus Shri Lakshman Singh, by his above acts, committed misconduct of wilful insubordination, disobedience of lawful and reasonable orders of his superiors and breach of extant rules in terms of Sub-rules 2(6) and 5(27) of Conduct, Discipline and Appeal Rules, 1978 of the company.
So far as the second charge sheet dated July 10, 1979 is concerned, the Petitioner was charged as follows:
Shri Lakshman Singh, while functioning as General Manager, Mugma Area of Eastern Coalfield Ltd. during the period January 1975 to August 1975 had authorities irregular increase of manpower in Dumka Sub-Area under his following letters-
(a) CME/DE/1(C) 5509 dated 28th/30th December, 1974 from Shri Lakshman Singh addressed to Shri. J.P. Singh, Officer-in-charge, Dumka Sub-Area.
(b) CMA/AGM/DCA dated 11th December 1974 from Shri Lakshman Singh addressed to Shri J.P. Singh, Officer-in-charge, Dumka Sub-Area.
As a result, manpower of Dumka Sub-Area had increased from 2308 as stood at the time of take-over of management of the Area to 4129 in June 1975.
Shri Lakshman Singh, as General Manager of Mugma Area had no power to order/sanction such-recruitment without getting his manpower budged approved or without the specific sanction of the Managing Director of the Eastern Coalfields of CMAL as per the delegation of powers issued under Chief Technical Adviser, Eastern Division''s letter No. MC/CTA/7/16398 dated 17th June, 1974.
Shri Lakshman Singh had wilfully disobeyed the above instructions and had thus committed misconduct under Rule 5(6) read with Rule 40.4 and 43 of Conduct, Discipline and Appeal Rules, 1978 of the Company as applicable to him.
Shri Lakshman Singh, while functioning as General Manager of Mugma Area of Eastern Coalfields Ltd. had under his following letter, authorised engagement of additional labour for the purpose of achieving the target of production for the year 1974-75 with the condition that O.M.S. should be maintained at not less than 0.4 in 74-75?
(a) CMA/DE/1(C)/5509 dated 28th/30th December 1974 from Shri Lakshman Singh addressed to Shri J.P. Singh, Officer-in-charge, Dumka Sub-Area.
However, the Officer-in-charge of Dumka Sub-Area continued employ additional labours till August 1975 even after the O.M.S. fell below C.4. Shri Lakshman Singh, as the General Manager of Dumka Area had failed to exercise any control and to take any action on the continued employment and on the fall of C.M.S. till April 1975. Thus, Shri Lakshman Singh was negligent in the performance of his duty and committed misconduct under Rules 5(9) read with Rules 40.4 and 43 of the Conduct, Discipline and Appeal Rules, 1978 of Coal India Ltd. as applicable to him.
It is not necessary for us to consider the enquiry proceedings in details in respect of the second charge sheet, as Mr. Sankar Mitra, learned Counsel appearing on behalf of the Appellants could not support the findings of the disciplinary authority as also the appellate authority in view of the fact that despite exoneration from the charges by the Enquiry Officer, the disciplinary authority had imposed punishment upon him without assigning any reason disagreeing with the findings of the Enquiry Officer. Upon receipt of both the charges, the Petitioner by a letter which was received by the Enquiry Officer on March 11, 1979, sought for inspection of 23 items of documents and copies thereof for presenting his defence. The said letter is contained in Annexure ''C'' to the writ application. It appears from an endorsement thereupon that the Enquiry Officer found 22 number of documents, namely, the documents referred to in the said letter, except the item No. 23 thereof as relevant. From Annexure ''D'' to the writ application, it appears that out of the aforementioned 22 documents, only 2 files were submitted, and thus, the Petitioner, by reason of the said letter addressed to the Chairman-cum-Managing Director of Coal India Limited requested him to issue a direction upon the concerned authorities to cause production of the said files, as according to him, the enquiry officer failed to summon the documents/witnesses and is asking him to produce the said documents. He further asked the disciplinary authority for a direction upon the enquiry authority to postpone the hearing on August 24, 1981, as in the absence of the said documents, he would not be in a position to proceed with the said enquiry and thereby he would be deprived of natural justice.
Before the Enquiry Officer, the Petitioner appears to have participated on some occasions, but he did not cross-examine the witnesses, nor examined all his witnesses, inter alia, on the ground that neither any opportunity to cross-examine was given to him, nor any opportunity had been given to examine his own witnesses, the list whereof had been submitted before the Enquiry Officer. The report of the Respondent No. 6 dated March 27, 1982 makes a queer reading. The said report indicates that both the Petitioner and the presenting officer were guilty of serious acts of omissions and commissions, whereas, according to the Enquiry Officer, the Petitioner despite giving several opportunities, did not present himself, he did not hesitate in pointing out:
4.2. Subsequently, when AE and CW attended on 5th February 1980, P.O. was not available. At the next hearing on 11th March 1980, P.O. disagreed to call his witnesses for cross-examination. P.O. also had exchanged correspondence on this with I.A. communicated his final decision that P.O. should bring in his witnesses for cross-examination, P.O. did not co-operate and till the end not only did not bring his witnesses for cross-examination but had seen to it that they did not turn up by themselves too. He insisted that as AE did not participate till then, enquiry should have been deemed to have concluded ex-parte.
4.3. On his side, AE had initially avoided his attendance at the proceedings. As late as in February 1980, he stated for the first time to me that he was not able to see the documents. He called his first witnesses Shri T.B. Sinha and found that he had nothing to say in this case as his department was not concerned with the type of appointments in question. AE then gave a list of his witnesses. This list covered 135 persons and an unspecified number of ''Assistants in Personnel Section of Mugma'' and Union Leaders with whom agreement was signed. This List included eminent personalities such as ex-union Minister (Shri K.C. Pani) Ex-Secretary of Deptt. of Coal, Ex.CME of CIL, CMD. CIL.CMD, FCL and Ex-CMD, ECL. It also covered all the persons whose appointment was subject matter of the charges. In absence of a statement in defence from AE, one could not conclude that the demand for these witnesses and this number of them was genuine. AE did not submit any defence statement when he was called upon to do so in the charge sheet nor later when he was so requested during the proceedings.
4.4. I had before me a situation where P.O. refused to co-operate in bringing in his MW''s for cross-examination. He ought to have gone by my decision on this (that the proceedings were not ex-parte) and brought the M.W.''s. This was matched only by avoidance of enquiry by AE also on his side. Initially he did not submit his statement as demanded in the charge sheet. Later he absented at many proceedings. Thirdly he gave a list of 135 plus witnesses for his side. Finally he persisted in avoiding a statement from his side. If AE had given his statement at any time in his defence, I could have had the occasion to see the relevance of witnesses and I might have also ensured availability of the M.W.''s for cross-examination by asking Chairman, Coal India to direct P.O. towards this.
It is, therefore, evident from the said report that despite a direction made by the Enquiry Officer, the presenting officer refused to call his witnesses for cross-examination and asked the Enquiry Officer to proceed on the basis that the enquiry was being held ex parte. He even refused to co-operate in bringing the M.W.s for cross-examination and evidently he flouted the direction of the Enquiry Officer. Despite the same, the Enquiry Officer proceeded to observe:
4.5. I had to therefore conclude that AE really did not have anything in defence and this was in keeping with his failure to reply at the first instance to the charge sheet. That was itself an admission of guilt and memorandum itself stated that inquiry was to be on the charges denied by him in his statement.
After the aforementioned punishments were imposed, the writ Petitioner preferred two appeals before the Board of Directors. Both the appeals were dismissed by an order dated December 23, 1983, as contained in Annexure ''J'' to the writ application, whereby the order of the appellate authority was communicated, which is to the following effect:
The Board considered the appeal in detailed on due deliberation did not find any merit in the appeal to modify the order passed by the Chairman vide order Nos. CIL:X/1(E):052501:20(1) 46 & 47 both dated 8th April 1983.
Before the learned trial Judge, an affidavit in opposition was filed on behalf of Coal India Limited duty affirmed by one Kamakshya Charan Mukherji. The learned trial Judge upon considering the submissions made by the learned Counsel for the parties, inter alia, held that (1) the allegations against the Petitioner having not contained any suggestion of oblique motive, the premises on which the charge sheets are based have no factual foundation, (2) the concerned workman was appointed purported to be in terms of Section 14 of the Coal Mines (Nationalisation) Act, 1973, (3) the proceedings before the Enquiry Officer was vitiated by reason of non-compliance of the principles of natural justice as the documents sought for by the Petitioner, were not supplied, nor was he given an opportunity to cross-examine the witnesses as also examination of his own witnesses, (4) No report of the Enquiry Officer having been given to the writ Petitioner, the same is vitiated in law, (5) The departmental proceeding was vitiated by reason of bias on the part of the disciplinary authority Sri R.N. Sharma, who, at the relevant time was the disciplinary authority, (6) The order passed by the appellate authority being not a speaking order, the same is also vitiated in law.
Mr. Sankar Mitra, learned Counsel appearing on behalf of the Appellants made the following submissions.
The learned trial Judge has exceeded his jurisdiction in making enquiry as regards the truth or otherwise of the charges levelled against the writ Petitioner. Reliance in this connection has been placed on the decision of Union of India (UOI) and Others Vs. Upendra Singh, It has been further submitted that the learned trial Judge wrongly proceeded on the basis that there has been any admission on the part of the Appellants. He has further submitted that the charges of bias as against Sri R.N. Sharma are absolutely vague and as no particulars thereof having been pleaded, the same could not have been considered by the learned trial Judge. It has been submitted that the finding of the learned trial Judge to the effect that the disciplinary authority did not consider the materials on record and did not give an opportunity of adducing evidence suffers from total non-application of mind, in as much as, he could not have in exercise of his power of judicial review gone through the records of the enquiry. As regards non-supply of the documents, learned Counsel submits that the Petitioner was only entitled to the documents upon which the Enquiry Officer relied upon and in this connection our attention has been drawn to Rule 29.8 of the Conduct, Discipline and Appeal Rules, as reproduced in para. 11 of the affidavit in opposition. Learned Counsel contends that in view of the fact that the Enquiry Officer did not rely on any document and the relevancy or otherwise of the said documents having not been considered by an appropriate authority, the finding of violation of the principles of natural justice must be held to be vitiated in law as the learned trial Judge has not arrived at any finding that by reason of such purported non-production of documents the Petitioner was prejudiced. Reliance in this connection has been placed on the decision in the case of State Bank of Patiala and others Vs. S.K. Sharma, . Learned Counsel submits that the appellate authority was not required to assign any reason and in support of his aforementioned contention, reliance has been placed on the decision of State Bank of Bikaner and Jaipur and others Vs. Prabhu Dayal Grover, It has been further submitted that keeping in view the fact that the order passed by the disciplinary authority merged with the order passed by the appellate authority, the order of the disciplinary authority cannot be questioned. It has been further submitted that so far as the grant of back wages is concerned it is a matter of discretion of the learned trial Judge and in this view of the matter, this Court should not interfere therewith, Reliance in this connection has been placed on the decision in the case of Central Bank of India v. C. Baruah 1990 (6) S.L.R. 29.
Mr. Samir Ghosh, learned Counsel appearing on behalf of the writ Petitioner/Respondent No. 1, on the other hand, has submitted that the question as to whether violation of the principles of natural justice has taken place or not, must be viewed from the facts involved in each and every case. Learned Counsel submits that the disciplinary authority having delegated his power of making an enquiry to the Enquiry Officer, he had no jurisdiction to withhold the documents sought to be relied upon by the Petitioner in support of his defence, despite an order made by him in this regard. Learned Counsel has drawn our attention to the fact that the Enquiry Officer having agreed to a particular procedure being adopted, the presenting officer or any other person representing the department, could not have made any departure therefrom. It has been pointed out that whereas in the first charge sheet the period involved is October 11, 1974 to July 17, 1977, in the second charge sheet the period involved is January 1975 to August 1975, and thus, one charge overlaps the other. It has been submitted that the orders passed by the disciplinary authority suffer from total non-application of mind, in as much as, in his orders dated April 8, 1988 as regards second charge sheet, he had mentioned employment of 1800 workers in respect whereof no charge was framed. It has been further submitted that non-application of mind on the part of the disciplinary authority would also be evident from the fact that although according to the disciplinary authority the Petitioner was guilty of the charges levelled against him, despite the finding of exoneration by the Enquiry Officer in respect of the second charge sheet, he had imposed different punishments against him. Learned Counsel submits that in absence of the documents which were sought for by the Petitioner, he could not have proceeded, and thus, there has been a violation of the principles of natural justice. As regards requirement to assign reasons by the appellate authority, learned Counsel submits that the decision of the Supreme Court in Ram Chander Vs. Union of India (UOI) and Others, should prevail, in as much as, therein the Supreme Court has considered all aspects of the matter. In this connection our attention has also been drawn to the duties of the appellate authority while disposing of the appeal in terms of Clause 36.1 of the Conduct, Discipline and Appeal Rules. Mr. Ghosh submits that keeping in view the fact that in the latter case, particularly in the decision of S.N. Mukherjee Vs. Union of India, the decision of Ram Chander''s case was not considered, the earlier judgment should prevail. Learned Counsel also submits that keeping in view the fact that the learned trial Judge has held that the entire disciplinary proceedings as against the Petitioner was vitiated by non-compliance with the principles of natural justice, the Petitioner, as a matter of right, was entitled to the entire back wages.
This is one of those cases which depict a sorry state of affair in the matter of conduct of disciplinary proceeding. Having considered the entire matter, we are of the opinion that it is a case where both the Appellants as well as the writ Petitioner/Respondent No. 1 were guilty of various acts of omissions and commissions. It is really a matter of surprise that the presenting officer did not comply with the orders passed by the Enquiry Officer, whereas the writ Petitioner also cannot be said to be free from blemish, as would be evident from the observation of the Enquiry Officer to the effect that at each and every stage he had been making all attempts to obstruct smooth progress of the disciplinary proceeding. However, the question as to whether there has been a violation of the principles of natural justice, or not, will have to be considered from the materials on record. The Appellants, despite our order, have not produced the records of the disciplinary proceeding although the same appear to have been produced before the learned trial Judge. The writ Petitioner, in sum and substance, was charged for appointing persons without any authority in law and despite a ban on recruitment of persons by the General Manager. The defence of the Petitioner appears to be that he was so empowered. The issue involved in the disciplinary proceeding although was very narrow, it appears, that it took more than 2 years to complete the disciplinary proceeding, and that too without cross-examination of the witnesses examined on behalf of the Appellants and the defence witnesses sought to be examined by the writ Petitioner/Respondent No. 1. It is not in dispute that in terms of his letter as contained in Annexure ''C'' to the writ petition, the Petitioner wanted various documents for the purpose of his defence. In Annexure ''C there are 2 endorsements, one stating: ''Not relevant'', and the other stating: ''Files/documents considered relevant except No. 23 above''. It is, however, evident from the materials on record that the Enquiry Officer considered the files and- documents sought for by the Petitioner and found them relevant except item No. 23 of the said letter. This is evident from the Petitioner''s letter addressed to the disciplinary authority as contained in Annexure ''D'' to the writ application. Furthermore, the Petitioner in both the appeals made the aforementioned statement, but the appellate authority in their order did not contradict the same. To crown it all, the said statements were made by the Petitioner in para. 10 of the writ application, which is to the following effect:
Your Petitioner states that your Petitioner asked for certain documents for the purpose of effectively defending his case. But the authorities concerned denied the reasonable opportunity of supplying those copies as required under the rules though the fact remains that the Inquiring Officer also ordered for the same in consideration of the relevancy shown by your Petitioner in respect of the nature of the charges.
The aforementioned assertions on the part of the Petitioner were traversed by the Appellants in para. 11 of the affidavit in opposition, but the said assertions were not specifically denied or disputed. It is now a well settled principle of law that if allegations made in the writ petition are not traversed, the same would be deemed to be admitted. Reference in this connection may be made to the decision of Smt. Naseem Bano Vs. State of U.P. and others, In this view of the matter, we have no other option but to hold that the learned trial Judge is correct in his finding that the documents sought to be inspected by the Petitioner although were found relevant by the Enquiry Officer had not been produced. In fact, Mr. Mitra appearing on behalf of the Appellants did not seriously question the aforementioned finding. On the other hand, as noticed hereinbefore, his only argument was that the said documents were not relevant, nor were the same relied upon by the Enquiry Officer. It is now well known that the principle of natural justice has two basic pillars: (a) Nobody shall be condemned unheard; (b) Nobody shall be a judge of his own cause. Reference in this connection may be made to the case of Shri Swapan Ray v. Indian Airlines Limited 1996 (1) C.H.N. 147. It is also well known that in a disciplinary proceeding reasonableness and fairness in the conduct of the enquiry is a part of the principles of natural justice. Where the procedures for conducting a disciplinary proceeding are not governed by any statute or statutory rules or rules framed by the employer, the basic principles of natural justice are required to be complied with. Rule 29.8 of the Conduct, Discipline and Appeal Rules, 1978 governs the conditions of service framed by Coal India Limited. The said Rules reads thus:
29.8 If the employee does not plead guilty, the Inquiring Authority shall adjourn the case to a later date not exceeding thirty days, after recording an order that the employee may, for the purpose of preparing his/her defence:
(i) inspect the documents listed with the charge sheet;
(ii) submit a list of additional documents and witnesses that he/she wants to examine; and
(iii) be supplied with the copies of the statements of witnesses, if any, listed in the charge sheet.
In the instant case, the Petitioner, in terms of Clause (ii) of Rule 29.8 submitted a list of additional documents, which is wanted to examine. The note appended to the said Rule provides that the relevancy of the additional documents and the witnesses referred to in Sub-rule 29.8 above, will have to be given by the employee concerned and the documents and the witnesses will be summoned if the Inquiring Authority is satisfied about their relevance to the charges under inquiry.
In the instant case, as indicated hereinbefore, the Enquiry Officer was satisfied about the relevance of 22 items of documents sought to be inspected by the Petitioner. It is, therefore, in our opinion, obligatory on the part of the presenting officer to produce the said documents/files for inspection of the Petitioner. Clause 29.9 requires the inquiring authority to make an enquiry as to the custody or possession of such documents for production thereof, whereas Clauses 29.10 imposes an obligation on the part of the authority in whose custody or possession the requisitioned documents are, to arrange to produce the same before the inquiring authority on the date, place and time specified in the requisition notice. In the instant case, the concerned authority in whose possession or power the said documents were, did not claim any privilege. Non-furnishing of the documents itself violates the principles of natural justice. In Chandrama Tewari Vs. Union of India (UOI) (through General Manager, Eastern Railways), upon which strong reliance was placed by Mr. Mitra it has been held that non-supply of copy of documents having no bearing on charges or which is not relied by the Inquiry Officer to support charges would not amount to violation of the principles of natural justice. The said decision, therefore, has no application to the facts and circumstances of the present case. As indicated hereinbefore, the said documents were found relevant by the Enquiry Officer. The disciplinary authority having appointed an Enquiry Officer was bound to follow his-order. In fact, as indicated hereinbefore, all the authorities who were in custody or possession of such documents under the rules framed by the Appellant itself, were bound to follow the procedures laid down therein, which admittedly they have failed and/or neglected to do. The Enquiry Officer having found the documents sought to be relied upon by the writ Petitioner to be relevant, no exception thereto could have been taken as the satisfaction in that regard was to be that of the Enquiry Officer and nobody else. The presenting officer, or for that matter, the disciplinary authority or any other authority had absolutely no jurisdiction or power to disobey the said direction of the Enquiry Officer, but evidently they did so with impugnity. In the case of State Bank of Patiala v. S.K. Sharma Supra, upon which also strong reliance has been placed, has no application to the facts of this case, in the said decision in terms of Rule 68(b)(iii) of State Bank of Patiala (Officers'') Service Regulations, the delinquent was entitled to supply of statements of witnesses and documents. Instead of supplying such documents and statements of witnesses, the delinquent was allowed to inspect the same; such inspection having taken place 3 days prior to the commencement of hearing. On the facts of the case, the Apex Court held that there has been a substantial compliance with the aforementioned provisions, and the delinquent officer has waived his right even if such a provision is held to be mandatory. Jeevan Reddy, J. upon considering various decisions summarised the principles as regards implementation of the principle of audi alteram partem in para. 33 of the judgment.
In the instant case, we are satisfied that the provisions required to be followed is of a substantive nature, and in any event, there has been no compliance, far less, any substantial compliance of Clauses 29.8, 29.9 and 29.10 of the said Regulation. As the Petitioner even was not permitted to take inspection of the said documents, there cannot be any doubt whatsoever that he was prejudiced because the said documents, as would be evident from Annexure ''C'' to the writ application, was sought for by him in support of his defence.
Furthermore, it is now well settled that a wrongful deprivation of an employment attracts Article 21 of the Constitution of India See D.K. Yadav Vs. J.M.A. Industries Ltd., It is true that it is not possible to lay down any rigid rules of the principles of natural justice which depends upon the facts and circumstances of each case, but we have no doubt in our mind that the concept of fair play in action is the basis.
The action on the part of the disciplinary authority further, in our opinion, clearly demonstrates a total non-application of mind. Although the period of charges were overlapping, one of the Enquiry Officer (Respondent No. 7) having found the Petitioner to be not guilty of the charges levelled against him, the disciplinary authority could not have imposed a punishment as has been sought to be done.
Furthermore, in the instant case admittedly the witnesses were not produced for cross-examination.
An enquiry officer is entitled to fix the procedure for conducting the enquiry.
According to the enquiry officer, the proceedings were not being held ex parte. As indicated hereinbefore, the enquiry officer directed production of the witnesses by the presenting officer. In the said premises, it was incumbent upon the presenting officer to produce the said witnesses for cross-examination. It is relevant to note that the delinquent officer did not pray for recalling the witnesses nor raised any contention that they should be examined afresh in his presence. As the said witnesses were examined by the presenting officer in his absence, he merely wanted to cross-examine them. It was for the Enquiry Officer to allow the said prayer or refuse the same; but despite direction by the enquiry officer, the presenting officer, not only refused to examine the same but also saw to it that the said witnesses do not attend the enquiry proceedings on their own. Such high handed and arbitrary action is not expected of a presenting officer.
In a domestic enquiry the presenting officer should also act without any bias but in the instant case, evidently he worked with bias. It was in this situation obligatory on the part of the Enquiry Officer to act firmly but he failed to do so. The Enquiry Officer, therefore, in our considered opinion failed to act in an unbiased manner. He admittedly surrendered to the wishes/dictations of the presenting officer. It is now well known that justice is not only to be done but manifestly must seem to be done.
The aforementioned findings in our opinion, are sufficient to set aside the orders of punishment. It has been submitted that the order passed by the Disciplinary authority marged with the order passed by the Appellate authority. This may be so, but that does not mean that the order of the Disciplinary authority cannot be challenged at all. In S.S. Rathore v. State of M.P. AIR 1994 S.C. 10, upon which strong reliance has been placed by Mr. Mitra, the Apex Court was considering the question of limitation. In that situation it was observed that in view of the applicability of the doctrine of marger the period of limitation in terms of the provision of the Limitation Act for filing a suit would start from the date of communication of the order passed by the Appellate authority. The aforementioned decision, therefore, has no application in the instant case. In any event, the submission of Mr. Mitra is self-contradictory in as much as he has categorically submitted that the appellate authority is not bound to pass a reasoned order. If the appellate authority was not bound to pass a reasoned order, there cannot be any doubt whatsoever that it had accepted the reasons, if any, assigned by the disciplinary authority and in that situation, the grounds upon which the order of the disciplinary authority can be questioned on the self-same grounds the order of the appellate authority can also be questioned.
The only question which now arises for consideration is as to whether the appellate authority was bound to assign reasons in support of its order.
In Ramchandra v. Union of India Supra a Division Bench was interpreting the provisions of Rule 22(2) of the Railway Servant Rules which required the appellate authority to consider the factors laid down therein. In Ramchandra''s case it self the apex court held:
In the absence of a requirement in the Statute or the Rules, there is no duty casts on an appellate authority to give reasons where the order is one of affirmance.
So far as the power of the appellate authority under the said Rules is concerned, the same is contained in Clause 36.1, in terms whereof the appellate authority was only required to consider whether the findings are justified and whether penalty is excessive or inadequate. There cannot be any doubt whatsoever that although the appellate authority need not pass a detailed order, it is required to show that it had applied its mind as regards compliance of his obligation under the said Rules. However, in our opinion, it is not necessary to state a very detailed reason or to comply with the principle of natural justice, in as much as such contingency is not contemplated in the said Rules. The aspect of the matter has been considered by the Supreme Court in S.N. Mukherjee v. Union of India Supra, State Bank of Bikaner and Jaipur v. P.D. Grover Supra and H.R. Nagendra Rao v. Indian Bank, Chairman-cum-Managing Director 1996 Lab. I.C. 505. In Ram Chandra''s case Supra the concerned employee was an employee of the railways. His service were, therefore, protected under Article 311 of the Constitution of India. The Hon''ble Supreme Court, therefore, was interpreting Rule 22.2 with reference to the constitutional mandates. However, the Petitioner in the instant case does not have any such protection. Coal India Limited is a State within the meaning of Article 12 of the Constitution of India. A writ-petition would, therefore, be maintainable at the instance of an employee only in the event he can show violation of any provision of Part III or Part IV of the constitution of India and not otherwise inasmuch as his services are not protected, under Article 311 of the Constitution of India. However, we do not agree with the findings of the learned Trial Judge to the effect that the department had not been able to prove the allegations against the writ-Petitioner. While exercising a power of judicial review, this Court exercises a limited power. In terms of its power of judicial review, this Court cannot sit as a Court of Appeal nor can it delve deep into the evidences to find out as to whether the delinquent officer was guilty of the charges or not. The jurisdiction of this Court is confined to observance of the decision making process and not with the merit of the decision. This aspect of the matter has been dealt with by the Apex Court in Union of India v. Upendra Singh Supra.
Having regard to the pleading in the writ application and further in view of the fact that although R.N. Sharma was impleaded as a party to the writ application, as at the relevant time he had already retired but despite the same service was sought to be effected upon him through the Chairman of the Appellant, it is possible that no notice had been served on him. In any event, it is now well known that he who pleads bias must prove the same. Having considered the statement made in the writ application, we are of the opinion that no particular malice having been alleged against Shri Sharma, the allegation of bias has not been proved. We also do not agree with the learned Trial Judge that the Petitioner was entitled to a copy of the enquiry report. The Hon''ble Supreme Court in its decision in Md. Ramjan v. Union of India AIR 1990 S.C. 491, has categorically held that the said decision would operate prospectively. The disciplinary authority had taken a decision prior to rendition of the said judgment. Moreover, the Petitioner himself, has annexed a copy of the report with his writ application, which is indicative of the fact that he had received a copy thereof. Moreover, the Hon''ble Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., categorically held that proceedes must show prejudice by reason of alleged non-supply of a copy of the enquiry report. The writ Petitioner has failed to do so in this case. Even he has not plaeded such prejudice in the writ application.
Coming to the cross appeal filed by the Respondent, suffice it to say that the learned Trial Judge has used his discretion. It has not been contended that the discretion has been used by the learned Trial Judge arbitrarily or capriciously. In Central Bank of India v. C. Baruah Supra, the Supreme Court granted fifty per cent of the consequential benefit and not all consequential benefit. Similar direction was made by the Supreme Court in A.L. Kalra v. Project and Equipment Limited AIR 1984 S.C. 1631. In M/s. Orissa Cement Ltd. and Others Vs. State of Orissa and others, the Apex Court observed:
It will be appreciated that it is not always possible in all situations to give a logical and complete effect to a finding. Many situations of this type arise in actual practice. For instance, there are cases where a Court comes to the conclusion that the termination of the services of an employee is invalid, yet it refrains from giving him the benefit of ''reinstatement'' (i.e. continuity in service) or ''back wages''. In such cases, the direction of the Court does, result in a person being denied the benefits that should flow to him as a logical consequence of a declaration in his favour.
The aforementioned decision, has been followed by the Hon''ble Supreme Court in Managing Director, ECIL v. B. Karunakar Supra and by this Court in Swapan Roy v. Indian Airlines Limited Supra. We are further of the view that the conduct of the writ-Petitioner also bring not above board and he having constantly been obstructing in the smooth conduct of the disciplinary proceeding was not entitled to full back wages. We may, however, make it clear that if during the period of suspension the writ-Petitioner has received any subsistance allowance, the said amount may be adjusted from the amount payable to him in terms of the judgment passed by the learned Trial Judge which is being affirmed by us. We may, however, notice that during the pendency of this appeal, the Appellant has paid a sum of Rs. 1,50,000.00 (Rupees one lac fifty thousand) to the writ Petitioner and then the said amount also be adjusted from the salary and/or other retiral benefits payable to the writ-Petitioner, if any, in terms of the service rules as we are informed that after the judgment was delivered the writ-Petitioner has retired.
For the reasons aforementioned, both the appeal and the cross-appeal are dismissed; but in facts and circumstances of this case, there will be no order as to costs.
Satya Narayan Chakrabarty, J.
I agree.