w w w . L a w y e r S e r v i c e s . i n



National Iron and Steel Company (1984) Ltd v/s Ajit Kumar Mukherjee


Company & Directors' Information:- NATIONAL IRON & STEEL COMPANY (1984) LTD. [Active] CIN = U27100WB1986SGC041017

Company & Directors' Information:- NATIONAL IRON AND STEEL CO LTD [Strike Off] CIN = U27103WB1934PLC008101

Company & Directors' Information:- NATIONAL STEEL CORPORATION LTD [Strike Off] CIN = U27100WB1942PLC020862

Company & Directors' Information:- AJIT STEEL PVT LTD [Strike Off] CIN = U24236WB1980PTC032524

    Original Order Appeal No. 194 of 1995

    Decided On, 05 March 2002

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE ASHOK KUMAR MATHUR & THE HONOURABLE MR. JUSTICE SUBHRO KAMAL MUKHERJEE

    For the Appearing Parties: Dipak Kumar Ghosh, Nishanath Mukharji, Ranjan Dev, Advocates.



Judgment Text

S.K. MUKHERJEE, J.


(1) THIS Letters Patent appeal is directed against judgment and order dated February 26, 1990 passed by a learned single Judge of this Court whereby and whereunder the learned Judge allowed an application under Article 226 of the Constitution of India (writ petition in short) and quashed the order of suspension, the chargesheet, the enquiry report, the order of dismissal and all subsequent orders. The petitioner was, also, allowed to resume his duties forthwith and was allowed 50% of the salary, which he would have drawn had he be in service.


(2) THE writ petitioner was a clerk working with the respondent No. 1. The writ petitioner was, also, the General Secretary of the Workers' Union. The erstwhile management of the company could not pay gratuities available to the retired employees thereby compelling them to initiate proceedings before the Deputy Labour Commissioner. That directions were passed for payment of gratuities to the retired employees of the company by the appropriate authority and the amounts were sought to be recovered by initiation of certificate proceedings. One such retired employee of the company was Chhanderdeo Singh. It has been alleged that the writ petitioner obtained authorities from the said Chhanderdeo Singh to receive payment of gratuity and, in fact, drawn the gratuity amount from the office of the Deputy Labour Commissioner by a cheque dated March 16, 1982. On December 2, 1985 the said Chhanderdeo Singh filed a written complaint to the Chief Executive Officer of the company regarding non-receipt of his gratuity money. The company by a letter dated January 14/15, 1986 enquired from the Certificate Officer, Howrah regarding the full facts concerning the non-payment of gratuity money of Shri Chhanderdeo Singh. The Personnel Manager of the company, also, addressed a letter to the Deputy labour Commissioner regarding the same subject. The Deputy Labour Commissioner informed the company that the gratuity money concerning Chhanderdeo Singh has been withdrawn by the writ petitioner on March 26, 1982 by a cheque dated March 16, 1982, but the writ petitioner sought to refund the amount by a bank draft purchased from the Union Bank of India, High Court Branch favouring the Deputy Labour Commissioner. Another retired employee of the company, Jhumak Singh, was, also, entitled to gratuity money. The writ petitioner was, also, obtained authorisation from his and received a sum of Rs. 8115. 31 (Rupees eight thousand one hundred fifteen and paise thirty one) only by three cheques dated March 10, 1981, April 18, 1981 and July 8, 1981. On February 5, 1986 the said Jhumak Singh made a complaint to the Personnel Manager of the company alleging that he has not received any gratuity money. The writ petitioner alleged that he has paid the amount to the said Jhumak Singh, but he could produce no document to establish payment of money to Jhumak Singh. On December 19, 1995 three employees of the company, namely, B. Ohja, Chandra Kishor Jha and Bireswar Mondal demanded the money from the writ petitioner, which was due and payable to Chhanderdeo Singh, but the writ petitioner refused to pay and severely assaulted B. Ojha and threatened other two employees with dire consequences. The three employees lodged complaints to the Personnel Manager of the company. On February 20, 1986 the writ petitioner was placed under suspension pending enquiry and on March, 3, 1986 a chargesheet was issued to the writ petitioner. The writ petitioner submitted his reply to the chargesheet, but the company found his explanations unsatisfactory and proposed to hold an enquiry concerning the charges. Mr. N. K. Mukherjee, Industrial Relations Consultant, was appointed as the Enquiry Officer and the Enquiry Officer submitted his report wherein the Enquiry Officer held that the charges levelled against the petitioner have been proved and established and that the charges established amounted to major misdemeanor. The Chief Executive Office of the company by a letter dated August 31, 1986/september 5, 1986 passed the impugned order of termination of the writ petitioner from the company's service with immediate effect.


(3) THE writ petitioner being aggrieved challenged the disciplinary proceedings including the order of termination by filing the present writ petition. The writ petitioner alleged that the allegations are all untrue and they were concocted to put him into unnecessary harassments. The writ petitioner admitted that he withdrew the gratuity money of Chhanderdeo Singh, but could not pay him as he left for his native place without disclosing his address. As the money could not be paid, he refunded the money to the Deputy Labour Commissioner. It is, also, alleged that the charge sheet was issued in closed and biased mind and that in the enquiry proceedings he was not allowed to appear and the Enquiry Officer erroneously decided to proceed with the enquiry expert. It was alleged that the enquiry report was biased one and the order of termination passed on the basis thereof was not proper.


(4) THE learned single Judge by the judgment and order dated February 26, 1990 allowed the writ petition. The learned Judge held that from the language of the charge sheet it was clear that when the charge sheet was issued, the disciplinary authority came to the concluded findings regarding the guilt of the writ petitioner. The learned single Judge quoted the charge sheet in the order impugned and held that at the time of issuance of charge sheet the disciplinary authority was biased and made up his mind as to the guilt of the writ petitioner, which vitiated entire disciplinary proceedings. The learned Judge observed that bias on the part of the Enquiry Officer could not be ruled out which, also, vitiated the enquiry. It is observed that the charges levelled against the writ petitioner were grave and criminal proceedings were, also, initiated and as such the writ petitioner should have been allowed assistance of lawyer, but the Enquiry Officer did not allow him to engage lawyer when the manner in which the Presenting Officer proceeded in the domestic enquiry would reveal that the Presenting Officer was legally trained person. The Enquiry Officer unreasonably refused to rely upon the medical certificate submitted by the writ petitioner and refused his prayer for adjournment even on the ground of illness. The Enquiry Officer disbelieved the certificates of medical person, but decided to proceed on the basis of the submission made by the Presenting Officer. It was held that the enquiry proceeding was vitiated because there was no material to bring home the charges levelled against the writ petitioner by cogent evidence. The charges of misappropriation and fraud have not been established in the enquiry. The misconduct of the writ petitioner was not in the performance of his duties. Therefore, the learned Judge set aside and quashed the order of suspension, the charge sheet, the enquiry report, the order of dismissal and all subsequent orders.


(5) BEING aggrieved the company has come up with this appeal.


(6) MR. Dipak Kumar Ghosh, the learned Advocate, appearing in support of the appeal, argued that the charge sheet was never issued on closed and biased mind. It is submitted that the charge sheet was prepared not by professionally trained person and the learned Judge ought not to have found fault with the language of the charge sheet. Mr. Ghosh in this connection cited the cases of the Collector of Customs, Calcutta and Others v. Biswanath Mukherjee reported in AIR 1972 Calcutta 401 and Doom Dooma Tea Company Limited v. Assam Chah Karmachari Sangha and another reported in 1960 (II) LLJ 56. Mr. Ghosh argued that the learned judge found that the respondents were biased against the writ petitioner although there was no specific pleading in support of such allegations. It is submitted that the learned Judge ought not to have accepted the case of the writ petitioner concerning bias in the absence of specific allegation. Mr. Ghosh in this connection relied upon the decisions in the cases of E. P. Royappa v. State of Tamilnadu and Others reported in (1974) 4 SCC 3 and State of Bihar and Another v. P. P. Sharma and Another reported in 1992 supp (1) SCC 222. Mr. Ghosh argued that the learned Judge was, therefore, wrong in permitting the writ petitioner to agitate points, which had no basis in the writ petition. Mr. Ghosh drew out attention to the writ petition and argued emphatically that there was no specific allegation of bias and malafide against the respondents. Mr. Ghosh in this behalf cited the cases of Bharat Singh and Others v. State of Haryana and Others reported in AIR 1988 SC 2181 and Additional District Magistrate (City) Agra v. Prabhakar Chaturvedi and Another reported in (1996) 2 SCC 12. Mr. Ghosh argued that the learned Judge erroneously proceeded on the basis that the Enquiry Officer did not allow the writ petitioner to be represented by lawyer inasmuch as the Enquiry Officer granted liberty to the writ petitioner to take assistance from any lawyer/advocate of his choice in the enquiry. Mr. Ghosh argued, in fact, the writ petitioner was permitted to take help of an Advocate by the Enquiry Officer although he had no legal right to demand to take assistance of an Advocate in the domestic enquiry. Reference has been made to the case of Bharat Petroleum Corporation Limited v. Maharashtra General Kamgar Union and Others reported in JT 1998 (8) SC 487. Mr. Ghosh challenged the findings of the learned Judge that sufficient opportunities were not granted to the writ petitioner to defend himself in the enquiry proceedings. Mr. Ghosh argued that natural justice was not violated, but the writ petitioner declined to appear in the enquiry. He went on taking adjourments and finally failed to appear in the enquiry compelling the Enquiry Officer to proceed exparte. Mr. Ghosh drew our attention to the records of the disciplinary proceedings and submitted that the Enquiry Officer granted reasonable opportunities to the writ petitioner. Mr. Ghosh cited the cases of Major U. R. Bhatt v. Union of India reported in AIR 1962 SC 1344 and Tata Oil Mills Co. Limited v. Its Workmen reported in 1964 (II) LLJ 113. Mr. Ghosh argued that, in the facts and circumstances of the case the learned Judge erroneously proceeded that in the present disciplinary proceedings natural justice was violated causing prejudice to the writ petitioner. Mr. Ghosh in this behalf cited the decision in the case of Aligarh Muslim University and Others. v. Mansoor Ali Khan reported in (2000) 7 SCC 529. Mr. Ghosh argued that it was not open to the learned Judge to interfere with the findings of fact arrived at by the Enquiry Officer in the domestic enquiry. The writ petitioner has failed to establish a case of malafide or perversity and as such there was no scope to interfere with the findings of fact arrived at in the domestic enquiry by re-appreciating the evidence on record. On the question of the scope of the interference against the disciplinary proceedings Mr. Ghosh cited the following decisions : (a) U. P. S. R. T. C. and Others v. Har Narain Singh and Others reported in 1999 0 AIR (SCW) 4782. (b) Bank of India and Another v. Degala Suryanarayana reported in (1999) 5 SCC 762. (c) Apparel Export Promotion Council v. A. K. Chopra reported in JT 1999 (1) SC 61. (d)U. P. State Road Transport Corporation and Others. v. Musai Ram and Others reported in JT 1999 (6) SC 6. (e) The High Court of Judicature at Bombay, through its Registrar v. Shashikant S. Patil and another reported in JT 1999 (8) SC 493. (f) State Bank of India v. Tarun Kumar Banerjee and Others reported in JT 2000 (10) SC 571.


(7) MR. Ghosh submitted that it has been proved beyond any reasonable doubt that the writ petitioner, who was, also, the General Secretary of the Trade Union, gained confidence in the illiterate retired employees of the company and defrauded them. The said employees entrusted the writ petitioner to collect their gratuity monies and, in fact, the writ petitioner withdrew the gratuity monies from the authorities concerned and only refunded part of the amount to the Deputy Labour Commissioner after about four years when it was surfaced that he has not paid the monies to the employees concerned. Mr. Ghosh argued that the temporary defalcation is, also, a serious offence and in support of his contentions relied upon the following cases : (a) Additional District Magistrate (City) Agra (supra) (b) State Bank of India v. Tarun Kumar Banerjee and Others (supra). (c) Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Ltd.) v. The Secretary, sahakari Nukarara Sangha reported in JT 2000 (10) SC 589.


(8) MR. Ghosh argued that the Enquiry Officer found that the workman concerned was guilty of the charges levelled against him and the disciplinary authority decided to terminate his service considering the grave nature of charges. The learned Judge, it is submitted by Mr. Ghosh, ought not to have interfered with such decision of the disciplinary authority as the scope to interfere with the order of punishment passed by the appropriate authority is very little and it is settled law that there should not be any interference unless it is proved that the punishment is shockingly disproportionate. The reference has been made to the following decisions: (a)State of U. P. and Others. v. Nand Kishore Shukla and Another reported in AIR 1996 SC 1561 (b)N. Raharathinam v. State of Tamilnadu and Another reported in JT 1996 (8) SC 447 (c)Indian Oil Corporation Ltd. and another v. Ashok Kumar Arora reported in (1997) 3 SCC 72 (d)U. P. State Road Transport Corporation and Others. v. A. K. Parul reported in JT 1998 (7) 203.


(9) MR. Nishanath Mukherjee, learned Advocate, appearing on behalf of the respondent-workmen, however, supported the judgment of the learned single Judge and submitted that the learned trial Judge exercise his discretion in judicial manner, which is not required to be interfered by the Appeal Court. Mr. Mukherjee argued that the company was not competent to initiate disciplinary proceedings against an employees, on the /gation of fraud committed against the former employees as as alleged acts of the writ petitioner were not committed in course of his employment. It is submitted that the writ petitioner's intention was not dishonest and he refunded the amount when he could not trace out the employee concerned.


(10) THE learned single Judge quoted the charge sheet and upheld the contentions of the writ petitioner that at the time when the charge sheet was issued, the disciplinary authority came to concluded findings regarding guilt of the petitioner and, accordingly, there was bias and the said bias had vitiated their entire proceedings. The learned judge noted the expressions appearing in the charge sheet and found that the disciplinary authority had bias and made up his mind as to the guilt of the petitioner. It appears that the charge sheet was issued under the signature of the Deputy Chief Executive Officer of the Company. An independent person, not connected with the company, held the enquiry. Finally, the Chief Executive Officer of the Company issued the order of punishment. It is pertinent to mention here that the person who had issued the charge sheet was not the person who had finally passed the order of termination. A Division Bench of this Court in the case of The Collector of Customs v. Giswanath Mukherjee (Supra) held that the proper way of interpreting charge sheet in disciplinary proceedings is not to be technically and legalistically strict as in the case of a charge sheet in criminal proceedings. It should be fairly and reasonably interpreted in a common sense way to see that there is a plain statement of thing complained of as wrong so that the party complained against may be put on his defence to meet the allegation. We have ourselves perused the charge sheet and in our view the expressions made in the said charge sheet were not enough by themselves, in the facts and in the peculiar circumstances of the case, to make the charge sheet in this case in limine bad and void on the ground of violation of the principles of the natural justice.


(11) THE learned single judge held that in his view bias on the part of the Enquiry Officer could not be ruled out and that the same had vitiated the enquiry. Although there was longish argument alleging bias at the hearing of the case, there was virtually no basis of such allegation in the writ petition itself. We have invited the learned Advocate appearing for the employee to point out the specific allegation of bias, but our attention has only been drawn to ground No. V of the writ petition. It is alleged in the said ground that the impugned acts and/or actions of the respondents were bias and done without any application of mind. It is further, alleged that it transpired that the letter dated June 30, 1986 was posted on July 1, 1986, which reached the petitioner on July 3, 1986 and as such the entire proceedings of domestic enquiry was palpably bad inasmuch as not maintainable in accordance with law. In the background of aforesaid vague allegation, the learned judge was not justified in setting aside the entire disciplinary proceedings, including the final order of termination, inter alia, on the ground of bias. The apex Court in the cases of State of Bihar v. P. P. Sharma (supra) and Bharat Singh (supra) observed that mere assertion or a vague or bald statement was not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. Therefore, in the absence of any material in support of the allegation of the bias, the writ petitioner ought not to have been permitted to argue the point at the hearing of the writ petition. It was for the writ petitioner to specifically plead his case and to prove his case by evidence, which must appear in the writ petition. When the facts were not pleaded nor the evidence in support of such fact was annexed to the writ petition, the learned single judge ought not to have entertained the said point.


(12) IT appears to us that the writ petitioner was not interested to defend himself before the Enquiry Officer, but his intention was to avoid the enquiry. Several opportunities were granted to the writ petitioner, but he failed to avail himself of the opportunity to defend himself before the Enquiry Officer. The learned single Judge observed that the charges levelled against the writ petitioner were grave in nature and as such the Enquiry Officer ought to have allowed him to engage a lawyer. It seems that the attention of the learned Judge was not drawn to the letter dated June 11, 1986 of the Enquiry Officer. The Enquiry Officer in the said letter granted express liberty to the writ petitioner to take assistance from any one of his fellow workmen or from any one of the office bearers of the Trade Union functioning in the company of which the writ petitioner was a member or from any lawyer/advocate of his choice to defend himself before the Enquiry Officer. Liberty was granted to the writ petitioner to bring his witnesses for examination before the Enquiry Officer in support of his defence. Therefore, the factual basis was wrong. Moreover, the Supreme Court in the case of Bharat Petroleum Corporation Limited v. Maharshtra General Kamgar Union (supra) observed that a delinquent employee has no right to be represented in the departmental proceedings by a lawyer unless the facts involved in the disciplinary proceedings were of complex nature in which case the assistance of a lawyer could be permitted. In out view, the charges involved in the present disciplinary proceedings were not of a complex nature and, moreover, the writ petitioner was permitted by the Enquiry Officer himself to take assistance of a lawyer of his choice. The learned Judge held that it would be evident from the enquiry proceedings that the proceedings were held ex-parte and the request for adjournment even on the ground of illness was rejected. We ourselves have perused the records of the enquiry proceedings. It appears that several opportunities were granted to the writ petitioner to enable him to defend his case before the Enquiry Officer. We are of the firm opinion that he was not interested to defend his case, but he was only interested to drag the proceedings. As the writ petitioner refused to avail himself of the opportunity to defend his case before the Enquiry Officer, the findings arrived at by the learned Single Judge that natural justice was violated and the Enquiry Officer erroneoulsy proceeded ex-parte cannot be sustained. The Supreme Court of India in the case of Major U. R. Bhatt v. Union of India (supra) held that when the delinquent employee declined to take part in the proceedings and failed to remain present, it was open to the Enquiry Officer to proceed on the materials, which are placed before him. It is admitted by the writ petitioner that he has received the letter dated June 11, 1986 and as such the question of violation of principles of natural justice does not arise when the petitioner chose not to appear before the Enquiry Officer. The Enquiry Officer recorded the evidence of the witnesses and prepared the enquiry report on the basis of the materials placed before him. It has been proved that the writ petitioner, who was the General Secretary of the Workers' Union, misutilised the confidence reposed upon him by the illiterate mazdoors. The writ petitioner was authorised by the retired mazdoors to receive the gratuity amounts and although the writ petitioner withdrew the gratuity amounts from the officer of the competent authority, the writ petitioner did not pay the amounts to the legitimate claimants. On the contrary, when the retired employees and some existing employees of the company approached him for payment of the amounts, he became furious and even mercilessly assaulted Shri B. Ojha, an employee of the company. Assaulting an employee of the company in the vicinity of the factory premises is a major misdemeanor. The said case put forward in the charge sheet has been proved during the enquiry and the disciplinary authority upon consideration of the report of the Enquiry Officer decided to terminate the service of the writ petitioner. The Supreme Court in the case of Apparel Sport Promotion Council v. A. K. Chopra (supra) held that the High Court normally would not interfere in the findings of the disciplinary authority or in the penalty imposed unless the findings are perverse or based on no evidence or the punishment was impermissible. It is not open to the High Court to re-appreciate and re-examine the evidence led by the disciplinary authority. The apex Court in the case of Bank of India and Another v. Degala Suryanarayana (supra) held that strict rules of evidence are not applicable

Please Login To View The Full Judgment!

to departmental enquiry proceedings. The only requirement of law is that the allegations against the delinquent employee must be established by such evidence acting upon which a reasonable person acting reasonably and with objective may arrive at a finding upholding the gravamen of the charge against the delinquent employee. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala rides or perversity, that is, where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon re-appreciating the evidence or weighing the same like an appellate authority. (13) IN the present case, the disciplinary authority issued a chargesheet on specific allegations. Since the show cause of the writ petitioner was not satisfactory, the disciplinary authority decided to hold an enquiry through an independent agency, that is, by an industrial relations consultant. The Enquiry Officer, so appointed, held the enquiry and submitted his report to the disciplinary authority on the basis of the materials placed before him. Opportunities were granted to the writ petitioner to defend himself before the Enquiry Officer, but he was only interested to drag the proceedings. The findings and the reasons recorded by the Enquiry Officer were neither perverse not mala fide. The allegations of bias had not basis in the writ petition. The disciplinary authority accepted the report of the Enquiry Officer and applied his independent mind to the same and, thereafter, passed the order of termination. In the facts and in the peculiar circumstances of the case, it was not open to interfere with the order of termination within the limited scope of judicial review available to the Court. Considering the grave nature of charges established against the writ petitioner, the disciplinary authority rightly decided to terminate the service of the writ petitioner and the punishment imposed was not shockingly disproportionate. In our view, the learned single Judge committed jurisdictional error while interfering with the order of punishment. Accordingly, the order impugned is set aside and the writ petition is dismissed. The appeal is, thus, allowed. There will be no order as to costs. Let xerox certified copy of this order, if applied for, be supplied to the parties on urgent basis. A. K. Mathur, CJ.- I agree. Appeal allowed
O R