S. Madhusoodanan Nair vs Bharat Heavy Electricals Ltd.

K.P. Sivasubramaniam, J.—The petitioner, an employee of the respondents/Bharat Heavy Electricals Ltd., who was holding the post of

Deputy Manager (Assistant Quality Control) seeks to quash the impugned order of dismissal dated 13.09.1993 and also seeks directions to the

respondents to reinstate the petitioner, in service.

According to the petitioner, he had put in more than 26 years of unblemished service. From 15.9.1992 to 17.9.2002 he accompanied his close

friend one Balamurali Krishna, an employee of the first respondent Company and he visited his project at Nagda. According to the petitioner, as

Balamurali Krishna was a close friend, he wanted to help him to put up a lay out for which the petitioner had not received any monetary benefit. At

that time he was on personal leave. However, for reasons best known to the Vigilance Department his visit was enquired into and in fact, before

the Vigilance he also gave a statement regarding purpose of his visit on 23.9.1992. However, on the same date, he was suspended from the post

on the ground that he had colluded with a third party and parted with the secret information of the Company. He was charge sheeted on

4.11.1992 alleging that he had clandestinely passed a design drawing owned by the Bharat Heavy Electricals to Balamurali Krishna and that the

said document was a secret drawing. The said conduct, according to the respondents was violative of Rule 12 of the B.H.E.L. Conduct, Discipline

and Appeal Rules (hereinafter called ""the Rules. Not being satisfied with the explanation, an Enquiry Officer was appointed to enquire into the

charges. The enquiry commenced on 4.2.1993 and after proceeding on several dates finally concluded on 21.7.1993. The petitioner was found

not guilty of some of the charges, but was found guilty that he had enjoyed hospitality provided by Balamurali Krishna and that he unauthorisedly

disclosed the technical know-how which were secrets of the Company. As regards the charge relating to payment of monetary amount, it was held

that the same was not proved. He filed an appeal as provided under the Rules to the first respondent on 29.9.1993. According to the petitioner,

the first respondent without providing any opportunity, dismissed the appeal. Hence the above writ petition.

In the counter filed by the respondents, it is stated that the petitioner was working in the respondent Company. He was assigned the

responsibilities of design, drawing and site work in the department of Air Quality Control Systems. As part of his assignment, he was entrusted

with the Company''s secret information about the company product including design, drawing etc. There are competitors for the second

respondent company in the said business. The petitioner who was assigned onerous responsibilities, colluded with the competitor companies and

acted prejudicial to the interest of the second respondent Company by parting with secret information. He was rendering technical advice to

Balamurali Krishna of M/s. Smrithi Erection & Services pertaining to supply and erection of the said product. The petitioner had also passed on

the design and lay-out drawings which are the secret documents of the company. The petitioner also visited the site of M/s. Grasim Industries at

Nagda. He was absent from his Headquarters from 14.9.1992 to 18.9.1992 without informing the second respondent the real purpose and place

of his visit during such absence. He had merely submitted a leave application without mentioning the purpose of the leave and address of stay.

During his travel and stay, he enjoyed the lavish hospitality, free transport, boarding and lodging facilities from Balamurali Krishna in consideration

of his clandestine association with him which was against the interest of the second respondent and hence violative of the BHEL Rules.

The enquiry proceedings were held by complying with all the requirements and five officials were examined on the side of the management. The

petitioner was present during the examination of the witnesses and had cross-examined two of the five witnesses and did not desire to cross-

examine the other three witnesses. He did not also adduce any oral or documentary evidence. The delinquent was given all the required and

maximum opportunity by the Enquiry Officer to defend his case. A copy of the findings of the Enquiry Officer was furnished to the petitioner along

with the Penalty Advice dated 13.09.2003 and he was also informed that he preferred an appeal to the Appellate Authority. The enquiry was

conducted in a fair and proper manner and the petitioner was also furnished with all opportunities to peruse all the connected records and

allegations to the contrary were without any basis. Though copy of the findings of the Enquiry Officer, was furnished only at a later stage, the

petitioner has not specified or set out in his affidavit any prejudice or any loss or damage suffered by him.

Mr. V. Ramasubramanian, learned counsel for the petitioner contends that the very nature of the charges alleged against the petitioner is an

unusual charge and therefore, it requires precise statement of the content of the charge and strong evidence would be required to establish the

same. The conduct of the petitioner in enjoying hospitality of a friend can never amount to misconduct or betrayal of the interest of the company.

The very nature of the charge would imply that positive findings have been recorded only on the basis of the inferences and there are no positive

evidence. There is no direct evidence to bring home the charges and as such the finding of guilt as against the petitioner was not at all warranted.

Learned counsel also raised the following procedural irregularities and alleged violation of principles of natural justice in the conduct of the enquiry.

(i) The Enquiring Authority and the Disciplinary Authority being different, before the order of dismissal was passed, enquiry report ought to have

been furnished to the delinquent. The petitioner should have been provided with an opportunity to state his case as against the findings of the

Enquiry Officer.

(ii) List of witnesses and documents have not been furnished and hence Rule 12(3) was violated.

(iii) After the oral enquiry was closed, as the petitioner did not examine himself, the Enquiring Authority ought to have questioned him on the

circumstances appearing against him for the purpose of enabling the employee to explain the evidence appearing against him. This requirement was

not complied with and hence there was no violation of Rule 25(15).

(iv) In terms of the Rules in the enquiry, the delinquent is entitled to be assisted by a co-employee. The petitioner had positively opted for

assistance by a named co-employee. But the management was not prepared to make the assisting employee available for the enquiry and did not

send intimation to him to be present during the enquiry. This was not done in spite of specific request by the delinquent. Therefore, there is gross

violation of principles of natural justice.

Per contra, Mr. B.T. Seshadri learned counsel appearing for the respondents contends that the charges have been proved clearly and witnesses

had been examined by the management, and the witnesses had clearly spoken to the activities of the delinquent and the damage caused to the

establishment by the clandestine activity of the delinquent. Such conduct on the part of the delinquent had been clearly established beyond any

doubt. The contention that the visit of the petitioner to Nagda and his company with Balamurali Krishna was only friendly and casual, cannot be

sustained in view of the clear evidence which was found to be satisfactory to the Enquiry Officer and the Disciplinary Authority.

As regards the alleged procedural violations, learned counsel contended that it was settled proposition of law that mere failure alone to supply

the enquiry report will not be fatal to the enquiry proceedings. Unless and other wise the petitioner had clearly pleaded and established any

prejudice, non-supply of the enquiry report cannot result in vitiating the enquiry result. There was no such attempt on the part of the delinquent to

allege any prejudice. Reliance was placed on some of the rulings which will be referred to later. As regards the other violations in the process of

enquiry, learned counsel contended that the delinquent had never raised any objection as regards non-compliance of Rule 25(3) and (15).

I have considered the submissions of both sides. As I am inclined to hold that the petitioner is entitled to succeed at least on one of the

allegations raised by him as regards procedural violations regarding denial of fair hearing, it is not necessary to deal with the factual content of the

charges against the petitioner, nor the correctness or otherwise of holding the delinquent guilty of the charges.

As regards non-furnishing of copy of the enquiry report, it is true that the Supreme Court in Managing Director, ECIL, Hyderabad, Vs.

Karunakar, etc. etc., : a Constitution Bench took the view that before an employee was punished in a disciplinary enquiry, a copy of the enquiry

report must be furnished to him. This judgment was however, interpreted by the Supreme Court in a later case and in State Bank of Patiala and

others Vs. S.K. Sharma, : and it was held that violation of any and every procedural provision cannot be said to automatically vitiate the enquiry. If

no prejudice was established to have resulted therefrom due to non-compliance of such request, no interference would be called for. The same

view has been taken in the following cases:-

(i) S.K. Singh Vs. Central Bank of India and Others, .

(ii) S. MUTHUSARAVANAN v. DY. REGISTRAR, CO-OP. SOCIETIES (HOUSING), COIMBATORE 1999 L.I.C. 2633 .

(iii) P. CHOCKALINGAM v. BHARAT HEAVY ELECTRICALS LTD. & OTHERS (W.P. Nos. 20405 of 1993 etc. 19.10.2001)

In this case, I have gone through the affidavit in support of the writ petition. The petitioner apart from having merely raised a ground of non-

compliance of the requirement to furnish a copy of the report, has not raised any contention of any prejudice having been caused to him. Apart

from the absence of any such pleadings in the affidavit in support of the writ petition, a perusal of the grounds of appeal, which was filed by the

petitioner on 29.9.1993 also does not raise any complaint of prejudice having been caused to him as a result of non-furnishing of copy of the

enquiry report. In fact, the appellant did not even raise any objection as regards the absence of the enquiry report. Therefore, I am inclined to hold

that the petitioner''s objection as above cannot be entertained.

I am also unable to sustain the contentions raised by the petitioner as regards the violation of Rules 25(3) and 25(15). Those Rules relate to the

alleged failure to furnish with a list of documents and list of witnesses along with a memo of charge and also not examining the petitioner

immediately on the conclusion of recording of the evidence, on the circumstances appearing against the delinquent in the evidence. A perusal of the

record of the proceedings do not reflect any such objection having been taken by the petitioner; nor even before the Appellate Authority.

Therefore, the petitioner cannot be permitted to raise the said objection only at the stage of the above writ petition.

However, I am inclined to uphold the allegation that he was not properly provided with the assistance at the enquiry, the delinquent has not

been provided with the same in spite of his demand and consequently he has been very much prejudiced by the manner in which the management

had dealt with the said issue.

Rule 25 deals with the procedure for imposing major penalty. Rule 25(6) enables the employee to take the assistance of any other BHEL

employee, but may not engage a legal practitioner for the purpose of enquiry. There is no dispute over the fact that the employee had made a

request to have the assistance of one of his co-employees. It is also true that the respondents had not denied the said right to the petitioner. Yet the

facts disclose that the assisting employee was not made available by the management granting necessary permission for the said assisting employee

to attend the enquiry. This is very clear from some of the correspondence and the notes of the Proceedings of the enquiry. For instance, with

reference to the notice issued by the management to the employee dated 17.7.1993, the petitioner had made an endorsement on 19.7.1993 to the

following effect:

I have already given my choice to my assisting employee. So no question of choosing it now. Getting permission for the assisting employee from

his work centre is beyond my capacity. Please do the needful to get me the assisting employee in time.

A perusal of the enquiry proceedings also reflect that the delinquent had raised the said objection even during the enquiry, but his request went

unheeded by the respondents. As regards the enquiry on 10.6.1993, the witness was examined on that date without previous intimation. The

delinquent had also objected to examine him without previous intimation. However, the management had proceeded with the said witness and the

delinquent was asked whether he wanted to cross-examine, he has stated as follows:-

I am prejudice to cross-examine the witness in the absence of my assisting employee.

Again in the enquiry on 21.7.1993 also, the same situation was repeated. After the chief-examination of the witnesses who was examined on

that particular date was over when he was asked as to whether he wanted to cross-examine, the delinquent had stated as follows:-

I do not want to cross-examine this witness in the absence of my assisting employee.

Therefore, it is clear that as regards at least two witnesses in spite of the delinquent seeking for the management giving necessary permission to

the assisting employee to appear for the enquiry, no such permission was granted and assisting employee consequently, was unable to appear. No

further opportunity was also provided by the management to cross-examine the said witnesses and the management granting proper permission to

assisting employee to enable the delinquent to cross-examine the witness.

In this context, it is also seen that in the affidavit in support of the writ petition, the petitioner has raised a specific ground in the said context

namely, paragraph 8(f), he has alleged that no opportunity was given to the petitioner to cross-examine the witnesses in view of the circumstances

that the person who was to assist the petitioner was not served with notice to attend the enquiry especially in the last two crucial sittings of the

enquiry. Surprisingly this issue which has been specifically raised in the affidavit had not been dealt with in the counter affidavit, beyond a general

denial.

The points thus discussed above, pertain to a very important aspect of compliance of principles of natural justice. As stated earlier, the Rules

entitles the employee to receive the assistance of co-employee. Apart from the fact that the management is assisted by a Presenting Officer, it is

elementary that the minimum requirement of principles of natural justice is to afford equal opportunity to the employee also to have the assistance of

a co-employee, if not assistance by a lawyer. In spite of the fact that the delinquent had requested for such assistance and had also specifically

pleaded for permission to be granted by the management to make the co-employee available during the enquiry was also not complied with by the

management. This had resulted in the failure of the assisting employee appearing in the enquiry and deprivation of the right of the employee to

cross-examine the witnesses. I am therefore, inclined to hold that on that score alone the enquiry proceedings are liable to be set aside on the

ground of non-compliance of principles of natural justice.

In the result, the petitioner is entitled to succeed. However, having regard to the serious nature of the allegations against the petitioner, it is

made clear that the respondents are entitled to keep the petitioner under suspension, if the management is inclined to re-start the enquiry from the

stage at which the mistake had crept in. It is also made clear that the entitlement of the backwages will also depend on the outcome of the

proceedings to be initiated afresh by the management.

In the result the writ petition is allowed as prayed for, subject to the above observation. No costs.