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Judgment
A.N. Venugopala Gowda, J.—WP 27240/2005 is by the workman and WP 24687/2005 is by the Management, questioning an award dated 14.06.2005 passed in I.D 18/1998 by the III Addl. Labour Court, Bangalore, which has set-aside an order dated 08.01.1998 passed by the Management imposing punishment of compulsory retirement on the workman and directed the reinstatement of the workman with continuity of service and 50% backwages, also imposing punishment of stoppage of two increments with cumulative effect on the workman.
Brief facts, which are required to be noticed to decide these two writ petitions are the following:
D.R. Ranganath/workman was appointed as a laboratory technician on 03.10.1989 by the Management of Sevakshetra Hospital, Bangalore-70. Noticing that the workman has indulged in certain grave acts of misconduct while on duty, the Management issued a charge memo dated 17.07.1997, to which the workman submitted his explanation, which having been found to be not acceptable, a domestic enquiry was ordered. The Enquiry Officer after conducting the enquiry, submitted the findings on 07.10.1997, in which it was held that, the workman was guilty of major misconduct within the meaning of Chapter 35 Clause (b) (XIX) and Chapter 35 Clause XIV of Sevakshetra Hospital, The Enquiry Officer held that, the workman is not guilty of actually conducting HBsAg/HIV tests and exonerated the workman. Copy of the said report was sent by the Management to the workman along with a notice dated 18.10.1997, to which the workman submitted his explanation on 24.10.1997. Differing with the findings of the Enquiry Officer insofar as the charge, which he had exonerated the workman, the Disciplinary Authority passed an order dated 05.11.1997, dismissing the workman from service. The workman filed an appeal before the Executive Committee on 13.11.1997. The Appellate Authority modified the punishment of dismissal to one of compulsory retirement by its order dated 08.01.1998.
Aggrieved, the workman filed a petition/dispute u/s 10(4-A) of Industrial Disputes Act, 1947, in the III Addl. Labour Court, Bangalore. The Management filed counter statement and opposed the claim of the workman. Issues were framed. Workman filed a memo dated 20.09.2003 conceding the fairness of domestic enquiry held against him by the Management. Issue No. 1 was answered in the affirmative. The workman deposed as WW-1 and Exs. W-1 to W-6 were marked. Noticing that the Enquiry Officer had not held that all the charges are proved and that the Disciplinary Authority found the workman guilty of charges without issuing show cause notice and without assigning any reasons while disagreeing with the findings recorded by the Enquiry Officer, the punishment was imposed, the approach of the Disciplinary Authority in awarding the punishment was held to be opposed to law and principles of natural justice.
However, finding that the charge relating to unauthorised absence and misuse of office stationary is backed by ample evidence and even if those charges are accepted on their face value, the punishment of compulsory retirement imposed, having been found to be shockingly disproportionate, the claim was allowed in part and the award as noticed supra was passed.
The workman has filed the writ petition questioning the imposition of punishment of stoppage of two increments with cumulative effect and denial of full backwages. The Management has questioned the award and has sought dismissal of the claim petition and restoration of order passed by the Executive Committee/Appellate Authority on 08.01.1998, imposing the punishment of compulsory retirement on the workman.
Sri Somashekar, learned Counsel appearing for the Management, firstly contended that, merely because the notice issued by the Disciplinary Authority on 18.10.1997 did not contain the reasons for disagreement with the findings of the Enquiry Officer in respect of Charge No. 3, there being specific reasons recorded while imposing punishment of dismissal by an order dated 05.11.1997 and the workman having preferred an appeal to the Executive Committee, which gave a persona-hearing to the workman and thereafter passed the order dated 08.01.1998, there being compliance of principles of natural justice before imposition of punishment i.e., compulsory retirement and the workman having not established any prejudice having been caused to him, the contra finding recorded by the Labour Court is wholly erroneous and illegal. Secondly, the Labour Court has erred in invoking Section 11-A of the Act, since the punishment imposed is neither a case of discharge nor dismissal. It was submitted that, the Labour Court by interfering with the punishment imposed by the Management for the grave misconduct committed by the workman, has shown misplaced sympathy and the interference with the quantum of punishment being illegal, interference is called for.
Sri K. Prabhakar Rao, learned Counsel appearing for the workman, on the other hand, firstly contended that, the Labour Court having held that the Respondent while differing the findings of the Enquiry-Officer has come to the different conclusion without assigning any valid reasons in the show cause memo dated 18.10.1997 issued to the workman, ought to have set-aside the Disciplinary Action taken against the workman. Secondly, the Labour Court having found the mitigating circumstances of rendering timely help by saving life of a person, who was in danger, ought not to have imposed the punishment of two increments of the workman being stopped with cumulative effect and also denied 50% of backwages. According to the learned Counsel, the Management kept away the workman from duty though he was prepared to attend to duty at the hospital and that the workman has not been gainfully employed and is entitled to full wages. learned Counsel contended that, there was an act of victimization by the Management, which is clear from Exs. W-1 to W-6 and the award passed by the Labour Court to the extent it is prejudicial to the workman may be quashed and consequential benefits extended.
I have perused the record.
The first question is:
Whether the workman was entitled to a notice from the Disciplinary Authority to show cause against the tentative decision of the Disciplinary Authority to differ with the finding of the Enquiry Officer?
By issuing the charge sheet Ex. M-1, the workman was charged of the following misconducts:
You were on 7.7.97 on duty from 12 noon to 8 p.m. You had on the said date around 6 p.m. donated blood in Rashtrothana Voluntary Blood Bank. You had at the time of donating blood produced a lab report dated/purported to have been issued by our Hospital for HbsAg and H.I.V. test, as Negative. You had in the report mentioned patient''s name as D.R. Ranganath and in the column Ref. By Doctor as "SELF". You have further signed the lab report as medical officer under the seal of the Hospital. The Blood donated by you to Rashtrothana Blood Bank was brought to the Hospital without any I.P. No. and the same was given to the patient, on 8.7.97 at 11 A.M.
A scrutiny of the Hospital records reveal that no such HIV and HbsAg test was done in our hospital on the 7th of July 1997 as mentioned in the lab report.
By your action in leaving the Hospital early, you have committed a major misconduct within the meaning of Chapter 35 Clause (b) (iii) of the Sevakshetra Hospital Service Rules.
By your action in signing the report in the capacity of the medical officer, you have unauthorisedly used the stationery of the hospital and submitted a false report and committed a major misconduct within the meaning of Chapter 35 Clause (b) (XIX) of Sevakshetra Hospital Service Rules.
By your action in issuing a report without conducting any test which is prejudicial to the interest and reputation of the Hospital, you have committed a major misconduct within the meaning of Chapter 35 Clause XIV of Sevakshetra Hospital Service Rules.
The allegations in the Articles of charge was denied by the workman by submitting the reply as at Ex. M-3, Domestic enquiry having been ordered, the Enquiry Officer found the workman guilty of charge of unauthorised absenteeism and misuse of hospital stationary. However, the Enquiry Officer found that, the workman has acted in good motive with no intention of causing damage to the hospital or reputation of the institution. Part of the findings in the enquiry report are in favour of the workman. The copy of the enquiry report was forwarded on 18.10.1997 and the workman was notified that, if he has any say in the matter, he may submit the same in writing within 7 days. The workman submitted his reply on 24.10.1997. The Disciplinary Authority by his proceedings/order dated 05.11.1997, noticing the findings of the Enquiry Officer with regard to the third charge giving benefit of doubt, has recorded as follows:
While accepting the findings of the E.O. regarding the two charges given under (1) above. I do not agree with the E.O''s findings under (2) on basis of evidence and Enquiry proceedings. The confirmation in writing dated 11.7.97 and the deposition on 1.9.97, before the E.O. by the Pathologist of the Laboratory Dr. lima Devi and the records of the Laboratory clearly establish beyond doubt that no tests for HBsAg and HIV were done in the Lab between 1.7.97 and 7.7.97, both days inclusive, the last test kit available in the lab was used up on 26.6.97, whereafter the new test kit indented was opened and used only on 8.7.97. Thus, one can conclude beyond doubt that there was no test for HBsAg and HIV done in the Hospital lab from 1.7.97 to 7.7.97 both days inclusive, and that there was no possibility of conducting such test between 27.6.97 and 7.7.97 as no test kit was available in the lab during this period. Hence this charge under (2) above also is established.
Holding that all the charges contained in the charge sheet against the workman has having been proved and holding the workman as guilty of all the charges, was dismissed from service of the hospital. Indisputedly, the Disciplinary Authority did not give a separate show cause notice differing with the findings of the Enquiry Officer. Merely because an appeal was filed by the workman challenging the order of dismissal and the Executive Committee/Appellate Authority gave personal hearing, would not meet the principles of natural justice. It is only after notifying the workman the reasons for disagreement with the findings of the Enquiry Authority and considering the reply/explanation, Disciplinary Authority can arrive at a final finding and not in the manner it has been done by passing the order dated 05.11.1997.
In Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, the Apex Court while considering the Regulation 7(2) of the Punjab National Bank Officer Employees'' (Discipline and Appeal) Regulations, 1977, which did not provide for giving of any notice before the Disciplinary Authority differed with the view of the Enquiry Officer, has held as follows
The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.
In Yoginath D. Bagde Vs. State of Maharashtra and Another, , Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, which did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer was considered and the Apex Court has held as follows
But the requirement of ''hearing'' in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that, he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the ''Tentative'' reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of ''not guilty'' already recorded by the enquiring authority was not liable to be interfered with.
It is dear from the communication dated 18.10.1997 of the Disciplinary Authority that, no notice at all was given by the Disciplinary Authority regarding its final conclusion differing with the finding of fact of the Enquiry Officer. The said communication is only forwarding a copy of the enquiry report and notifying the workman of having his say in the matter. It is not even a show cause notice. In view of the decisions of the Apex Court noticed supra and also the decision in the case of Tukaram S. Vernekar Vs. Karnataka Electricity Board, Bangalore and Others, , the view taken and the finding recorded by the Labour Court that there is violation of principles of natural justice by the Disciplinary Authority is well-founded and the contra contention advanced by Sri. Somashekar appearing for the Management is unacceptable.
The second question is:
Whether the Labour Court is justified in holding that the enquiry authority findings are not perverse?
The workman was found guilty of the charge of unauthorised absenteeism and misuse of hospital stationary by the Enquiry Officer. In the reply submitted to the show cause notice, there is no specific denial with regard to the charge relating to unauthorised absenteeism and misuse of hospital stationary. The Labour Court on reconsideration of the record has held that, there is ample evidence to show that the workman is guilty of the charge of unauthorised absenteeism and misuse of hospital stationary. The first party has left the work spot unauthorisedly and has used the stationary of the hospital for the purpose other than the duty assigned to him, which as per Service Rules of the Hospital is a misconduct. Finding that the findings of the Enquiry Officer with regard to said acts are concerned, are backed by evidence and there is no perversity, the Labour Court has concurred with the finding. The Labour Court can interfere only when there is violation of principles of natural justice and there is perverse finding by the Enquiring Authority/Disciplinary Authority and not otherwise. The findings of the Enquiry Authority having been examined and having found to be not perverse insofar as first two charges are concerned, the Labour Court is justified in holding that, there is misconduct of unauthorised absenteeism and using the stationary of the hospital for the purpose other than the duty assigned to him.
The third point for consideration is:
Whether the Labour Court was justified in exercising power u/s 11-A of the Act and in modifying the punishment?
The Labour Court having examined the proportionality of the punishment imposed, has interfered with the order of compulsory retirement passed against the workman. The order passed by the Management against the workman being termination from service of the hospital, certainly fails within Section 11-A of the Act, which gives power to the Labour Court to grant appropriate relief in exceptional circumstances. The charges levelled against the Appellant and held as proved in the domestic enquiry are not so serious to lead to total loss of confidence of the management in the workman. Indisputably, there was no previous adverse remark against the workman. Keeping in view the fact that the workman has acted with an intention to save a life and there being no ill motive, the action being bonafide, the Labour Court after appreciating the facts and evidence on record, has rightly held that, the punishment imposed by the Management is disproportionate and harsh, since a responsible employer, that too, the management of the hospital would ever impose in the like circumstances, the extreme punishment on the workman, who has not got any personal benefit, but with bona fide intention, attempted to save a life, which factors have been taken note of by the enquiry officer while exonerating the workman from the allegations made at Charge No. 3. The victimisation, in the circumstances would well be inferred from the conduct of the Management in imposing the extreme punishment without taking into consideration that the workman had no past history. However, out of three charges, two charges having been held to be proved, the Labour Court was justified in setting-aside the order of compulsory retirement and imposing the punishment of denial of two increments with cumulative effect and 50% backwages.
In Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and Another, , the Apex Court has held that:
Section 11-A is couched in wade and comprehensive terms, vesting a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered.
The Labour Court having considered the circumstance of the case, has denied 50% backwages on account of the substituted punishment ordered. Grant of full wages is not automatic The claim made by the workman in the writ petition filed is devoid of merit, in the face of two charges, which have been held as proved in the domestic enquiry and also by the Labour Court.
In the result, both the writ petitions being devoid of merit shall stand dismissed.
The parties are directed to bear their respective costs.