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Judgment
Heard the learned counsel for the petitioner and the learned counsel for the respondent.
In the present petition, the challenge is to the judgment and order dated 12.02.2020 passed by the Industrial Court No.3, Nagpur in Revision ULP No.73/2019.
The facts of the present petition can be summarized as under :
The respondent is running hospital at Swangi Meghe, Wardha in the name of Acharya Vinoba Bhave Hospital affiliated to Jawaharlal Nehru Medical College on non granted basis. The respondent is the Chief Medical Superintendent, who is appointing authority of petitioner-employee. Undisputedly the petitioner was appointed on 29.09.1993 as a Clerk in the respondent-employment. In the year 2002, for committing certain fraud, the departmental enquiry was conducted against him and his services were dismissed by order dated 06.12.2002. The said dismissal was challenged by the petitioner before the learned Labour Court.
During the pendency of said complaint, in the year 2014, the matter was compromised between the petitioner and the respondent on certain terms and conditions. As a result, the petitioner was reinstated and joined the duties with effect from 08.08.2014. After the reinstatement, the petitioner was asked to render the work in various departments. In the month of August-2017, he was asked to perform the work at cash counter where the patients of the hospital deposits their charges of various tests or other fees.
On 09.08.2017, it is alleged that the petitioner has done the collection of Rs.32,044/- against the fees and treatment charges of patients of Indoor Patient Department and Rs.8,965/- against the patients of Outdoor Patient Department. Out of the same, he has only deposited Rs.32,044/- with the Cashier Shri Rajesh More and showed zero collection against outdoor-patients department. As such, it is alleged that the petitioner has deliberately not deposited the amount of outdoor patients department and showed Rs.zero against the collection of Rs.8,965/-. On this issue, the petitioner was asked about non deposit of amount, on that the petitioner on 11.08.2017 tendered his explanation stating that as there is a computer glitch, the same has shown zero balance and, therefore, he stated that when one Rajesh More has asked to give the correct calculation, he realized that Rs.8,500/- was remain balanced with him. He further stated that there might be mistake on his part while calculating that amount, but same is taken place inadvertantly and if any recovery is to be done, then he is ready to pay the said amount by deducting Rs.1,000/- per month from his salary. The said fact was communicated by Cashier Rajesh More to the present respondent on the same day.
On the basis of this allegation, on 12.08.2017 the services of the petitioner were suspended by the respondent by alleging that there is a misappropriation of amount at his instance and, therefore, departmental action is proposed against him in the matter. After the suspension order issued to the petitioner, the respondent then directly issued the chargesheet dated 14.09.2017 to the petitioner by imposing the charges, such as (i) Moral turpitude; (ii) misappropriation, theft of property of management while rendering the administrative work and (iii) disobedience of the order of superiors. In the same chargesheet, the respondent has also appointed the Enquiry Officer namely, Shri Anant Salwe and directed the petitioner to participate in the enquiry proceeding.
After issuing the chargesheet, the enquiry proceedings were held on 29.09.2017, 04.10.2017 and 14.10.2017. On these dates meetings were adjourned. On 16.10.2017 the present petitioner has moved one application stating that he is not getting the representative amongst the employees, who are working in the hospital and, therefore, he may be permitted to appoint an Advocate on his behalf in the matter. However, that permission was rejected by the Enquiry Officer.
The petitioner, thereafter, appointed one representative and enquiry proceeding then proceeded further. The respondent, in support of the charges, examined one Rahul Raipure before the Enquiry Officer. The said witness was cross-examined by the petitioner on 03.11.2017. So also before the Enquiry Officer, one Rajesh More was also examined and he was cross-examined by the petitioner’s representative. After recording the statement of two witnesses, the respondent-management closed their side.
The present petitioner on 02.12.2017 tender his statement before the Enquiry Officer and in support of his case also examined one Manoj Bhende. Both the witnesses were cross-examined and the proceedings of enquiry were closed.
The Enquiry Officer then directly prepared the report and forwarded to the management on 18.12.2017. The same was challenged by the petitioner before the Labour Court stating that the enquiry report being prepared without giving any show cause notice is not legal and, therefore, seeks interim protection in the matter. However, the said request of the petitioner was rejected by the Labour Court. In the meantime, petitioner received show cause notice on the basis of enquiry report dated 24.01.2018 asking thereby as to why his services should not be dismissed.
The petitioner submitted his reply to the show cause notice on 03.02.2018 and raised all possible grounds pointing out as to how the enquiry was not properly conducted and thereby dismissal is incorrect. The respondent on 05.02.2018 served the order of dismissal against the petitioner. In view of the dismissal order, the petitioner has amended the complaint before the Labour Court and challenged the dismissal which was issued subsequent to the filing of the proceeding before the Labour Court.
The learned Labour Court, in view of the dismissal of the petitioner by conducting the departmental enquiry, has framed the preliminary issue, as to whether, the departmental enquiry conducted by the respondent in the matter was fair and proper by following the principles of natural justice or not. On that preliminary issue, the learned Labour Court, by the order dated 27.02.2019, by holding that the respondent, without issuing any show cause notice to the petitioner, has directly issued the chargesheet which is in violation of Model Standing Officer as well as principles of natural justice and further the petitioner was not given the proper opportunity in the enquiry proceeding has held that enquiry was not conducted by following the principles of natural justice and same is illegal.
Against the order of the Labour Court, the respondent has preferred revision under Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) on the ground that the petitioner-employee failed to establish that due to non-observance of procedure failed to show any prejudice caused to him in the matter and, therefore, the learned Tribunal has committed an error by holding that there is a violation of principles of natural justice and the findings recorded by the Enquiry Officer are incorrect.
The learned Industrial Court, by the impugned judgment dated 12.02.2020, allowed the revision by holding that though there is a non-compliance of provisions of Model Standing Order to the extent of Clause 23(4) of the act, it has not caused prejudice to the petitioner. It is held that the petitioner was given opportunity immediately after the incident took place and, thereafter, the order of suspension and chargesheet was issued to him. Hence, the petitioner caused no prejudice and consequently the enquiry which is held to be not conducted by following the principles of natural justice is incorrect and illegal in the matter.
The petitioner, in the light of above said facts, approached before this court to challenge the order of the Industrial Court dated 12.02.2020 whereby the findings recorded by the Labour Court are reversed and it is held that the enquiry was conducted in a fair and proper manner. As such, the only issue which falls for consideration in the present matter, as to whether, the findings recorded by the Labour Court or of the Industrial Court are justified in the matter.
The Petitioner states that the findings of fact recorded by the Labour Court could not have been set aside by the Industrial Court by considering the fact that under Section 44 of the MRTU & PULP Act, the Industrial Court is having a restricted jurisdiction to verify and only in case of patent illegality on face of record can interfere in the matter. If there is a possible view taken by the Labour Court, then Industrial Court should not substitute the view by re-appreciating the evidence and findings which is a matter of record in the matter.
The learned counsel for the respondent submits that the Industrial Court has considered the matter by taking into consideration the wider aspect which is required to be considered in an enquiry proceeding when entire proceeding is under challenge before the Labour Court. According to the respondent, as per the settled principles of law, if no prejudice is caused to the petitioner, only because of violation of Clause 23(4) of the Model Standing Order, enquiry cannot be vitiated, hence the Industrial Court has rightly appreciated the controversy and reversed the findings of the Labour Court in the matter.
In the light of the submission of both the parties, it would be relevant to note that the legislature has provided the certain procedure which is required to be followed by the employer while taking any action against the workmen working in the institute. The very object of the Model Standing Order is that the person against whom, if any action, if proposed for misconduct then that action must be as per the prescribed procedure. It is necessary to borne in mind that any such action of management is likely to take away bread and butter of employee or any drastic action is proposed by the management, then the provisions of the Model Standing Order are required to be applied strictly in the matter. If this principle is not followed, then the procedure laid down under the statute would be frustrated and the employee would not in a position to challenge the action which is taken by the management against him in the matter. Therefore, in my opinion, severe the punishment, greater care has to be taken to see that all the procedure provided under the rules must scrupulously followed. No employer can be escaped from the compliance of the mandatory provisions which are required to be followed while imposing the major penalty against the employee. In the present case, admittedly there is a non-compliance of Clause 23(4) of the Model Standing Order in the matter. It would be relevant to reproduce Clause 23(4) of the Model Standing Order which is reproduced as under:
"Workman against whom an enquiry is proposed to be held shall be given a charge-sheet, clearly setting forth the circumstances appearing against him and requiring his explanation. He shall be permitted to appear himself for defending him or shall be permitted to be defended by a workman working in the same department as himself or by any office bearer of a trade union of which he is a member. Except for reasons to be recorded in writing by the officer holding the enquiry, the workman shall be permitted to produce witness in his defence and cross-examine any witness on whose evidence the charge rest. A concise summary of the evidenced on either side and the workman's plea shall be recorded....”
In the present matter, from the record, it is clear that for the alleged incident dated 11.08.2017, the services of the petitioner was suspended by issuing the suspension order on the same day and no explanation of any kind thereafter was called from the petitioner. The record further shows that after the suspension order, directly the chargesheet was issued to the petitioner on 14.09.2017 and the charges were levelled against him of moral turpitude/degradation, commit of misappropriation theft and dishonest and disobey of order of superiors. As such, on this charges, there is no show cause notice to the petitioner to explain the same before the employer. As such, there is a violation of Clause 23(4) of the Model Standing Order in the matter.
It would be relevant to refer the judgment relied by the petitioner in the case of Vinod Pralhadrao Farkade .vs. Ceekay Daikin Limited, Aurangabad, reported in 2017 (4) MH.L.J. 178, wherein the coordinate bench has held, when an enquiry is proposed to be held against workman requiring his explanation, the Management is required to take a decision after receiving reply from workman and undue haste needs to be avoided. In this regard, the findings which are recorded by coordinate bench in para 8, 9, and 11 which are relevant in the matter, the same are reads as under :
8.Standing Order 25(4) under Schedule-I of the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 reads as under :-
"25(4) A workman against whom an inquiry is proposed to be held shall be given a charge-sheet clearly setting forth the circumstances appearing against him and requiring his explanation. He shall be permitted to appear himself for defending him or shall be permitted to be defended by a workman working in the same department as himself or by any office bearer of a trade union of which he is a member. Except for reasons to be recorded in writing by the officer holding the inquiry, the workman shall be permitted to produce witness in his defence and cross-examine any witness on whose evidence the charge rest. A concise summary of the evidence led on either side and the workman's plea shall be recorded.
All proceedings of the inquiry shall be conducted in English, Hindi or Marathi according to the choice of the workman concerned and the person defending him. The inquiry shall be completed within a period of three months:
Provided that the period of three months may, for reasons to be recorded in writing, be extended to such further period as may be deemed necessary by the enquiry officer."
9.It is apparent that the Standing Order mandates that the charge-sheet must clearly set forth the circumstances appearing against the workman against whom the enquiry is proposed to be held requiring his explanation.
11.In the matter of Om Prakash Yadav vs. Union of India and others. 2009(121) FLR 151, it is concluded that unless the reply of the charge-sheeted employee is not received within the time frame, the Management cannot conclude that an enquiry deserves to be conducted. After receiving the reply and considering the explanation of the employee, the Management is required to take a decision as to whether, an enquiry needs to be conducted or whether, such an enquiry could be dropped as the explanation put forth by the employee could be accepted. The conduct of the respondent in this case indicates that it was determined to conduct an enquiry, before issuing the charge-sheet.”
The respondent has heavily relied upon the judgment of Hon’ble Supreme Court of India in the case of Managing Director, ECIL, Hyderabad and others .vs. B. Karunakar and others, reported in (1993) 4 SCC 727, whereby it is held that the employee has to point out the prejudice which he caused while conducting the departmental enquiry and if he failed to demonstrate the same, then for not compliance of the provisions, would not vitiate the departmental enquiry. In the said judgment, the Hon’ble Supreme Court has dealt with the different issues and the issues which is involved is altogether different. This fact would be clear from para 2 of this judgment which reads as under :
The basic question of law which arises in these matters is whether the report of the enquiry officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. This question in turn gives rise to the following incidental questions:
Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it.?
Whether the report of the enquiry officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank.?
Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise.?
Whether the law laid down in Mohd. Ramzan Khan case will apply to all establishments-Government and non-Government, Public and Private Sector undertaking?
What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases?
From what date the law requiring furnishing of the report, should come into operation?
Since the decision in Mohd. Ramzan Khan case has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after November 20, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to November 20, 1990?
Therefore, in my opinion, the view expressed by the coordinate bench in the case of Vinod Farkade (supra) is more relevant and applicable in the present matter.
In the present case, the respondent has also admitted the fact that there is non-compliance of Clause 23(4) of the Model Standing Order, so also the Industrial Court has also accepted the fact that there is a non-compliance of Clause 23(4), if this is the factual aspect, in my opinion, considering the provisions of Model Standing Order, enquiry was not conducted in a manner prescribed, therefore, Labour Court was correct to hold that enquiry was not conducted in a fair and legal manner.
It would be relevant to refer the judgment of Hon’ble Supreme Court of India in the case of State Bank of Patilia others .vs. K. Sharma, reported in AIR 1996 SC 1669 wherein the Hon’ble Supreme Court has laid down the principles which requires to be followed in cases of disciplinary enquiry and order of punishment imposed by employer upon employee. According to this judgment, a substantive provision is normally required to be complied with and the test of prejudice would not be applicable in such cases. The Hon’ble Supreme Court has specifically summarized the principles emerging from the discussion made in the judgment and observed in Para 32 which reads as under :
32.We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
1)An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2)A substantive provision has normally to be complied with as expalined hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3)In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b)In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5)Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice-or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/ action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing and "no fair hearing." (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem).
(b)But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand-point of prejudice, in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)
(6)While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7)There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.”
From the above said legal position, in my considered opinion, if there is a certain procedural provision is incorporated under the rules or statute which are of fundamental character, whose violation is by itself is a proof of prejudice. The court cannot insist proof of prejudice in such cases. As such, considering this view, which is expressed by the Hon’ble Supreme Court, in my considered opinion, non-granting opportunity to petitioner before issuing chargesheet in the present matter is itself a prejudice caused to him.
Hence, for the aforesaid reasons, the impugned judgment passed by the Industrial Court dated 12.02.2020 needs to be interfered with by this court and accordingly the following order is passed in the matter.
O R D E R
The writ petition is allowed.
The impugned judgment and order passed by the Industrial Court No.3, Nagpur dated 12.02.2020 in Revision ULP No.73/2019 is hereby quashed and set aside.
The order passed by the Labour Court, Wardha in Complaint ULP NO.6/2018 on preliminary issue dated 27.02.2019 is hereby restored. No costs.