K.Devaraju v. The Chairman cum Managing Director, Neyveli Lignite Corporation Ltd., Neyveli 607 803

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.01.2012CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.22947 of 2007K.Devaraju... PetitionerVs1.The Chairman cum Managing Director, Neyveli Lignite Corporation Ltd., Neyveli 607 803.

The Senior Stores Manager/MSS Neyveli Lignite Corporation Ltd., Neyveli 607 803.

The Chief Engineer/MSS/Mines I Neyveli Lignite Corporation Ltd., Neyveli 607 803.

The Presiding Officer, Central Government Industrial Tribunal- cum Labour Court, I Floor, 'B' Wing, No.26, Haddows Road, Shastri Bhavan, Chennai 6 ... RespondentsWrit Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarifed mandamus, to call for the records of the 4th respondent relating to the award passed inI.D. No.80/2005 dated 11.12.2006 and the order of removal from service passed by the 2nd respondent herein vide his proceedings dated 27.10.2000 confirmed by the 3rd respondent vide the proceedings dated 08.06.2001 and quash them as illegal, arbitrary, unreasonable being violative of rules and principles of natural justice and thereby direct the 1st respondent herein to permit the petitioner to retire from service since attained the age of superannuation on 30.06.2003 with all consequential monetary and service benefits. For Petitioner : Mr.A.R.Suresh For Respondents : Mr.N.Nithianandam (R1-3) https://hcservices.ecourts.gov.in/hcservices/

O R D E RThe writ petition is filed by the petitioner workman challenging an Award passed by the Central Government IndustrialTribunal-cum-Labour Court (for short CGIT) made in I.D.No.80 of2005 dated 11.12.2006. By the impugned Award, the CGIT held that the termination of the petitioner was legally justified and he was not entitled for any relief.2. The writ petition was admitted on 06.07.2007. Pending the writ petition, the application for interim stay was dismissed on the same day. Thereafter, in the application for fixing an early date, the writ petition was directed to be heard during the last week of July 2008. 3. On notice from this Court, the first respondentManagement of Neyveli Lignite Corporation (for short NLC) had entered appearance and had filed a counter affidavit dated10.04.2008 on behalf of respondents 1 to 3.4. It is seen from the records that the petitioner was appointed as Casual Labour on 01.04.1967. His services were regularised with effect from 01.08.1971. He was redesignated as industrial worker with effect from 01.02.1977. While the petitioner was working as an Operator Grade-IV, in the course ofa vigilance investigation, during 1996, the first respondent NLCfound that the School Certificate produced by the petitioner was found to be bogus. As per the said certificate, the date of birth was recorded as 07.06.1943.

An enquiry was conducted against the petitioner. Subsequently, as it was found that the enquiry was defective, ade novo enquiry was ordered by the Disciplinary Authority. TheEnquiry Officer found the workman guilty of the charges and after issuing a provisional show cause notice, he was removed from service by an order dated 27.10.2000. The petitioner preferred an appeal against the said order to the departmental AppellateAuthority.

The petitioner also raised an industrial dispute under Section 2A before the Central Government, Labour Authority. Sincethe Conciliation Officer, as he could not bring about any medication, a failure report was sent to the Central Government. The Central Government, Ministry of Labour by their order dated17.08.2005 referred the dispute for adjudication by the 4threspondent CGIT. The order of reference reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Whether the action of the management of NeyveliLignite Corporation Ltd., Neyveli in terminating the services of Shri K.Devaraj, Operator, Grade IVCPF No.22960 is legal and justified? If not, to what relief the workman is entitled?"

The said reference was registered as I.D.No.80 of 2005 by the CGIT and notice was issued to both parties. The workman filed a claim statement dated Nil (December 2005). The first respondent filed a counter statement dated Nil (February 2006).The petitioner also filed a re-joinder dated 21.03.2006.

Before the CGIT, the workman examined himself as W.W.1.On the side of the Management, one P.Sankararaj was examined asM.W.1. On behalf of the workman, 16 documents were filed and marked as Exs.W1 to W16. On the side of the Management, 16documents were filed and marked as Exs.M1 to M16.

On an analysis of evidence (both oral and documentary),the CGIT found that the Management's action in conducting de nova enquiry was not invalid as the worker had participated in the enquiry and cross examined the witnesses. On the merits of the case, it found that the non-examination of the Headmaster of the school for marking the school certificate will not vitiate the enquiry as the certificate produced by the workman was bogus. Since there was a basic qualification required, it was the petitioner, who had produced the said certificate, which was marked as Ex.W1. Therefore, since the certificate was not genuine, on the question of penalty, the CGIT was not convinced in interfering with the penalty. The CGIT held that once bogus certificate was produced for obtaining employment and the findings recorded in the enquiry was not perverse and if the charges were proved, the question of granting any relief will notarise.

Before going into the merits of the issue, it has to beseen whether the finding of the CGIT with reference to the conduct of the second enquiry by the Management was legally justified and if it is not legally justified, whether the finding of the CGIT that the enquiry was fair and proper can be upheld by this Court.

With reference to the conduct of the enquiry, in the counter affidavit, in paragraphs 2, 4(b)(c), it was averred as follows:- https://hcservices.ecourts.gov.in/hcservices/ "2. ...Initially a departmental enquiry was held but the enquiry was defective in that the enquiry officer proceeded on a wrong understanding of the principles applicable to departmental proceedings. Thereupon a de nova enquiry was ordered by the Disciplinary Authority so that the delinquent employee was provided with proper and full opportunity to defend himself. The petitioner participated in the de novo enquiry and witnesses were examined by both sides.4(b). The impugned order of the disciplinary authority is not based on the 1st enquiry report. No action against the petitioner has been taken based on the 1st enquiry report. Therefore, there was no requirement to notify the petitioner of the reasons for ordering the de-novo enquiry. Thepetitioner having participated in the de-novoenquiry, by cross examining management witnesses, by leading evidences of witnesses in his defense and by making a statement, cannot now be heard challenging the holding of de-novo enquiry. Thepetitioner did not also challenge the 2nd enquiry by any process known to law.4(c) The proceedings of the 1st enquiry having been superseded by the 2nd enquiry, there was no requirement or obligation to furnish to the petitioner any part of the 1st enquiry. "

The report of the first enquiry was marked as Ex.M7dated 10.03.1998. The enquiry was conducted by the MedicalOfficer Dr.M.Shanmugasundaram. In his report, he found as follows:-"Witness II Sri.D.Kuppusamy, who had studied along with Sri. Devaraj and lived along with him during his school days who had also served as an attender in the same school during 1962 (where they both studied) has stated that Sri. Devaraj did study in the school in question during the periodcorraborates the statement of the other witness also Sri.D.Kuppusamy who was the Head Master of the said institution during the period of the study of Sri. Devaraj. The vigilance branch who have initiated the case on receipt of an allegation against the employee have also been asked to bring the witness in support of their claim. Enough time was allowed and no witnesses were able to be produced by them. https://hcservices.ecourts.gov.in/hcservices/ In the circumstances, it is submitted that in asmuch as the statement of the Head Master of the institution at the time of the studies of the charged worker where he had studied had stated that the record sheet produced by the accused worker is issued by the competent person(Sri. Krishnasamy, Head Master at the time of issue of the certificate) during the enquiry and the statement of the other witness are reasonable and could be relied upon. Moreover, Sri.D.Kuppusamys/o Duraikannu, Head Master at the time of the studies of Sri.K.Devaraj, in the school in question has also submitted xerox (later verified with the originals and got attested) copies of hisappointment order and relief order in support of his service in the school. In the above circumstances and with reference to the evidences and proofs produced by the accused workman and taking into account the inability of the prosecution side to produce evidence/witnessin support of their claim, it is submitted that the allegation against the employee is not proved beyond doubt. "

If for some reason, the respondent NLC was not inclined to accept the report, they cannot order for a second enqiry to fish out new information. All that they can do is to disagree with the enquiry report after due notice to the worker and can proceed to pass appropriate orders. Therefore, the finding of the CGIT in this regard that there was no illegality in the second enquiry cannot be accepted. When once enquiry is vitiated, the next question arose is whether the findings recorded in the second enquiry can be accepted by the employer as well as by theCGIT. If the first enquiry is vitiated and the second enquiry is illegal and without jurisdiction, the question of relying upon the finding of the second enquiry will not arise.

The first respondent Management in recording the enquiry passed the following order dated 28.09.1998, which was marked asEx.W5 reads as follows:-"The file related to Disciplinary Proceedings with reference to the Memo cited has been carefully gone through by the undersigned. The Disciplinary Authority finds reasonable grounds to differ with the findings of the Enquiry. https://hcservices.ecourts.gov.in/hcservices/ Hence Disciplinary Authority orders that the Enquiry be conducted "Denova".Shri S.Gurusamynathan, Personnel Manager TPS-II isappointed as Enquiry Officer to conduct the"Denova Enquiry".The Enquiry Officer is requested to conduct the enquiry and findings may be transmitted to the undersigned early. "

In this context, it is necessary to refer to the judgment of a Constitution Bench of the Supreme Court in K.R.Debv. Collector of Central Excise, Shillong [1971 (2) SCC 102]wherein the Supreme Court dealt with the scope of Rule 15(1) of the CCS (CCA) Rules. The relevant passages found in paragraphs12 to 14 of the said judgment may be usefully extracted below:-Para 12:"It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the DisciplinaryAuthority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule15 for completely setting aside previous inquiries on the ground that the report of the InquiringOfficer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authorityhas enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. Para 13:In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. Para 14:Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the DisciplinaryAuthority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the DisciplinaryAuthority was prejudiced against the appellant. But https://hcservices.ecourts.gov.in/hcservices/ it seems to us that on the material on record asuspicion does arise that the Collector was determined to get some Inquiry Officer to report against the appellant. "

Subsequently, this judgment came to be considered by atwo Judges' Bench of the Supreme Court in Union of India v.P. Thayagarajan [1999 (1) SCC 733] and after referring toK.R.Deb's case (cited supra), it was distinguished and the following passage found in paragraph 8 of the said judgment maybe usefully extracted:-Para 8:"A careful reading of this passage will make it clear that this Court notices that if in a particular case where there has been no proper enquiry because of some serious defect having crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined, the disciplinary authority may ask the enquiry officer to record further evidence but that provision would not enable the disciplinary authority to set aside the previous enquiries on the ground that the report of the enquiry officer does not appeal to the disciplinary authority. In the present case, the basis upon which the disciplinary authority setaside the enquiry is that the procedure adopted by the enquiry officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. Whenimportant evidence, either to be relied upon by the Department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand, result in amiscarriage thereof. Therefore we are of the view that Rule 27(c) enables the disciplinary authority to record his findings on the report and to pass an appropriate order including ordering a de novoenquiry in a case of the present nature. "[Emphasis added]

Without reference to these decisions, the Supreme Courtonce again considered a similar issue in Union of India v. K.D.Pandey [2002 (10 SCC 471]. Paragraphs 3 to 5 of the said judgment may be extracted below:-"Para 3:"The proceedings were initiated against Respondent 1 in respect of six charges. The inquiry authority in the report made, held that none of the charges stood proved. Thereafter, the Railway Board https://hcservices.ecourts.gov.in/hcservices/ in exercise of powers under Rule 25 of the RailwayServants (Discipline and Appeal) Rules, 1968examined the matter and found that four of the six charges could be substantially proved beyond doubt with the available documentary evidence and, thereafter, remitted the matter for further inquiry as contemplated under Rule 25(1)(c) of the Rules. Para 4:On remit the inquiry officer made areport finding Respondent 1 guilty of four charges. Based on that report, the Railway Board dismissedRespondent 1, which was challenged in the dispute raised by him.

The Supreme Court further considered K.R. Deb's case(cited supra) and relied on the same in Kanailal Bera v. Unionof India [2007 (11) SCC 517]. The following passage found in paragraph 6 may be usefully extracted below:-Para 6:"The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 5.4.1995 of the disciplinary authority was unsustainable in law. Rule27 of the Central Reserve Police Force Rules 1955,inter alia, lays down the procedure for conducting adepartmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required tobe arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In agiven situation further evidences may be directed tobe adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the self same charges which could not be proved in the first inquiry. "

Therefore, the impugned Award of the CGIT is liable tobe set aside. When once enquiry is set aside as it is vitiated, then the question is whether the CGIT can direct parties to lead fresh evidence. In this case, in the counter affidavit filed by the NLC in paragraph 10, they have reserved their right to lead fresh evidence in support of their action in the event of CGITcoming to the conclusion that the department's disciplinary action is vitiated.

In view of the same, the impugned Award dated 11.12.2006made in I.D.No.80 of 2005 stands set aside and the matter is remitted back to the 4th respondent CGIT for fresh disposal in accordance with law. It is open to the first respondent NLC to lead evidence in support of their action initiated against the petitioner and the petitioner will also have his right to lead rebuttal evidence.