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 607 803.2. The Senior Stores Manager/MSS Neyveli Lignite Corporation Ltd., Neyveli 607 803.3. The Chief Engineer/MSS/Mines I Neyveli Lignite Corporation Ltd., Neyveli 607 803.4. 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 ofIndia praying for a Writ of Certiorarifed mandamus, to call forthe records of the 4th respondent relating to the award passed inI.D. No.80/2005 dated 11.12.2006 and the order of removal fromservice passed by the 2nd respondent herein vide his proceedingsdated 27.10.2000 confirmed by the 3rd respondent vide theproceedings dated 08.06.2001 and quash them as illegal,arbitrary, unreasonable being violative of rules and principlesof natural justice and thereby direct the 1st respondent herein topermit the petitioner to retire from service since attained theage of superannuation on 30.06.2003 with all consequentialmonetary 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 workmanchallenging 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 thatthe termination of the petitioner was legally justified and hewas not entitled for any relief.2. The writ petition was admitted on 06.07.2007. Pending thewrit petition, the application for interim stay was dismissed onthe same day. Thereafter, in the application for fixing an earlydate, the writ petition was directed to be heard during the lastweek of July 2008. 3. On notice from this Court, the first respondentManagement of Neyveli Lignite Corporation (for short NLC) hadentered 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 wasappointed as Casual Labour on 01.04.1967. His services wereregularised with effect from 01.08.1971. He was redesignated asindustrial worker with effect from 01.02.1977. While thepetitioner 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 wasfound to be bogus. As per the said certificate, the date ofbirth was recorded as 07.06.1943.5. 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 afterissuing a provisional show cause notice, he was removed fromservice by an order dated 27.10.2000. The petitioner preferredan appeal against the said order to the departmental AppellateAuthority. 6. The petitioner also raised an industrial dispute underSection 2A before the Central Government, Labour Authority. Sincethe Conciliation Officer, as he could not bring about anymedication, 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 terminatingthe services of Shri K.Devaraj, Operator, Grade IVCPF No.22960 is legal and justified? If not, towhat relief the workman is entitled?"7. The said reference was registered as I.D.No.80 of 2005 bythe CGIT and notice was issued to both parties. The workmanfiled a claim statement dated Nil (December 2005). The firstrespondent filed a counter statement dated Nil (February 2006).The petitioner also filed a re-joinder dated 21.03.2006.8. 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 andmarked as Exs.W1 to W16. On the side of the Management, 16documents were filed and marked as Exs.M1 to M16. 9. On an analysis of evidence (both oral and documentary),the CGIT found that the Management's action in conducting de novaenquiry was not invalid as the worker had participated in theenquiry and cross examined the witnesses. On the merits of thecase, it found that the non-examination of the Headmaster of theschool for marking the school certificate will not vitiate theenquiry as the certificate produced by the workman was bogus.Since there was a basic qualification required, it was thepetitioner, who had produced the said certificate, which wasmarked as Ex.W1. Therefore, since the certificate was notgenuine, on the question of penalty, the CGIT was not convincedin interfering with the penalty. The CGIT held that once boguscertificate was produced for obtaining employment and thefindings recorded in the enquiry was not perverse and if thecharges were proved, the question of granting any relief will notarise.10. Before going into the merits of the issue, it has to beseen whether the finding of the CGIT with reference to theconduct of the second enquiry by the Management was legallyjustified and if it is not legally justified, whether the findingof the CGIT that the enquiry was fair and proper can be upheld bythis Court.11. With reference to the conduct of the enquiry, in thecounter affidavit, in paragraphs 2, 4(b)(c), it was averred asfollows:- https://hcservices.ecourts.gov.in/hcservices/ "2. ...Initially a departmental enquiry was heldbut the enquiry was defective in that the enquiryofficer proceeded on a wrong understanding of theprinciples applicable to departmental proceedings.Thereupon a de nova enquiry was ordered by theDisciplinary Authority so that the delinquentemployee was provided with proper and fullopportunity to defend himself. The petitionerparticipated in the de novo enquiry and witnesseswere examined by both sides.4(b). The impugned order of the disciplinaryauthority is not based on the 1st enquiry report.No action against the petitioner has been takenbased on the 1st enquiry report. Therefore, therewas no requirement to notify the petitioner of thereasons 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 defenseand by making a statement, cannot now be heardchallenging the holding of de-novo enquiry. Thepetitioner did not also challenge the 2nd enquiryby any process known to law.4(c) The proceedings of the 1st enquiry having beensuperseded by the 2nd enquiry, there was norequirement or obligation to furnish to thepetitioner any part of the 1st enquiry."12. 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 asfollows:-"Witness II Sri.D.Kuppusamy, who had studied alongwith Sri.Devaraj and lived along with him duringhis school days who had also served as an attenderin the same school during 1962 (where they bothstudied) has stated that Sri.Devaraj did study inthe school in question during the periodcorraborates the statement of the other witnessalso Sri.D.Kuppusamy who was the Head Master ofthe said institution during the period of thestudy of Sri.Devaraj.The vigilance branch who have initiated the caseon receipt of an allegation against the employeehave also been asked to bring the witness insupport of their claim. Enough time was allowedand 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 theinstitution at the time of the studies of thecharged worker where he had studied had statedthat the record sheet produced by the accusedworker is issued by the competent person(Sri.Krishnasamy, Head Master at the time of issueof the certificate) during the enquiry and thestatement of the other witness are reasonable andcould be relied upon. Moreover, Sri.D.Kuppusamys/o Duraikannu, Head Master at the time of thestudies of Sri.K.Devaraj, in the school inquestion has also submitted xerox (later verifiedwith the originals and got attested) copies of hisappointment order and relief order in support ofhis service in the school.In the above circumstances and with reference tothe evidences and proofs produced by the accusedworkman and taking into account the inability ofthe prosecution side to produce evidence/witnessin support of their claim, it is submitted thatthe allegation against the employee is not provedbeyond doubt."13. If for some reason, the respondent NLC was not inclinedto accept the report, they cannot order for a second enqiry tofish out new information. All that they can do is to disagreewith the enquiry report after due notice to the worker and canproceed to pass appropriate orders. Therefore, the finding ofthe CGIT in this regard that there was no illegality in thesecond enquiry cannot be accepted. When once enquiry is vitiated,the next question arose is whether the findings recorded in thesecond enquiry can be accepted by the employer as well as by theCGIT. If the first enquiry is vitiated and the second enquiry isillegal and without jurisdiction, the question of relying uponthe finding of the second enquiry will not arise. 14. The first respondent Management in recording the enquirypassed the following order dated 28.09.1998, which was marked asEx.W5 reads as follows:-"The file related to Disciplinary Proceedings withreference to the Memo cited has been carefullygone through by the undersigned.The Disciplinary Authority finds reasonablegrounds to differ with the findings of theEnquiry. https://hcservices.ecourts.gov.in/hcservices/ Hence Disciplinary Authority orders that theEnquiry 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 theenquiry and findings may be transmitted to theundersigned early."15. In this context, it is necessary to refer to thejudgment 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) ofthe 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 faceof it, really provides for one inquiry but it may bepossible if in a particular case there has been noproper enquiry because some serious defect has creptinto the inquiry or some important witnesses werenot available at the time of the inquiry or were notexamined for some other reason, the DisciplinaryAuthority may ask the Inquiry Officer to recordfurther evidence. But there is no provision in Rule15 for completely setting aside previous inquirieson the ground that the report of the InquiringOfficer or Officers does not appeal to theDisciplinary Authority. The Disciplinary Authorityhas enough powers to reconsider the evidence itselfand come to its own conclusion under Rule 9.Para 13:In our view the rules do not contemplatean action such as was taken by the Collector onFebruary 13, 1962. It seems to us that theCollector, instead of taking responsibility himself,was determined to get some officer to report againstthe appellant. The procedure adopted was not onlynot warranted by the rules but was harassing to theappellant. Para 14:Before the Judicial Commissioner the pointwas put slightly differently and it was urged thatthe proceedings showed that the DisciplinaryAuthority had made up its mind to dismiss theappellant. The Judicial Commissioner held that onthe 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 wasdetermined to get some Inquiry Officer to reportagainst the appellant."16. 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 thefollowing passage found in paragraph 8 of the said judgment maybe usefully extracted:-Para 8:"A careful reading of this passage willmake it clear that this Court notices thatif in a particular case where there has beenno proper enquiry because of some serious defecthaving crept into the enquiry or some importantwitnesses were not available at the time of theenquiry or were not examined, the disciplinaryauthority may ask the enquiry officer to recordfurther evidence but that provision would notenable the disciplinary authority to set aside theprevious enquiries on the ground that the reportof the enquiry officer does not appeal to thedisciplinary authority. In the present case, thebasis upon which the disciplinary authority setaside the enquiry is that the procedure adopted bythe enquiry officer was contrary to the relevantrules and affects the rights of the parties andnot that the report does not appeal to him. Whenimportant evidence, either to be relied upon bythe Department or by the delinquent official, isshut out, this would not result in any advancementof any justice but on the other hand, result in amiscarriage thereof. Therefore we are of the viewthat Rule 27(c) enables the disciplinary authorityto record his findings on the report and to passan appropriate order including ordering a de novoenquiry in a case of the present nature."[Emphasis added]17. 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 saidjudgment may be extracted below:-"Para 3:"The proceedings were initiated againstRespondent 1 in respect of six charges. The inquiryauthority in the report made, held that none of thecharges 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 sixcharges could be substantially proved beyond doubtwith the available documentary evidence and,thereafter, remitted the matter for further inquiryas 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 disputeraised by him. The Tribunal as well as the HighCourt are of the view that on the same material afresh opinion has been furnished and it was not acase of further inquiry. Indeed, it was not noticedby the disciplinary authority that the inquiry heldearlier was bad or that the management or theestablishment did not have the proper opportunityto lead evidence or the findings were perverse. Inthe absence of the same, it was held that there wasno justification on the part of the disciplinaryauthority to commence fresh inquiry on the same setof charges.Para 5:Learned counsel for the appellantcontended that in this case the Board had examinedthe material on record and come to the conclusionthat four of the six charges could be proved on theavailable material, which had not been properlyexamined in the earlier inquiry. In fact from theorder made by the Railway Board as well as fromthat part of the file where the inquiry report madeearlier is discussed, it is clear that specificfindings have been given in respect of each of thecharges after discussing the matter and, if that isso, we fail to understand as to how there couldhave been a remit to the inquiry authority forfurther inquiry. Indeed this resulted in secondinquiry and not in a further inquiry on the sameset of charges and the material on record. If thisprocess is allowed the inquiries can go onperpetually until the view of the inquiry authorityis in accord with that of the disciplinaryauthority and it would be abuse of the process oflaw. In that view of the matter we think that theorder made by the High Court affirming the order ofthe Tribunal is just and proper and, therefore, wedecline to interfere with the same. The appeal isdismissed accordingly." https://hcservices.ecourts.gov.in/hcservices/

18. 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 inparagraph 6 may be usefully extracted below:-Para 6:"The question as to whether a punishment ofconfinement to Civil Lines could have been directed ornot should not detain us as we agree with thecontention raised by learned counsel for the appellantthat the purported order dated 5.4.1995 of thedisciplinary 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 proceedinghas been initiated, the same must be brought to itslogical end meaning thereby a finding is required tobe arrived at as to whether the delinquent officer isguilty of charges levelled against him or not. In agiven situation further evidences may be directed tobe adduced but the same would not mean that despiteholding a delinquent officer to be partially guilty ofthe charges levelled against him another inquiry wouldbe directed to be initiated on the self same chargeswhich could not be proved in the first inquiry."19. 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 leadfresh evidence. In this case, in the counter affidavit filed bythe NLC in paragraph 10, they have reserved their right to leadfresh evidence in support of their action in the event of CGITcoming to the conclusion that the department's disciplinaryaction is vitiated.20. 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 isremitted back to the 4th respondent CGIT for fresh disposal inaccordance with law. It is open to the first respondent NLC tolead evidence in support of their action initiated against thepetitioner and the petitioner will also have his right to leadrebuttal evidence. 21. The writ petition stands allowed to the extent indicatedabove. Since the dispute is of the year 2005 and more than 7years have elapsed, the CGIT shall give preference to thedisposal of the dispute and in any event, shall dispose of the https://hcservices.ecourts.gov.in/hcservices/ dispute within a period of six months from the date of receipt ofa copy of this order, after due notice to the parties. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.svkiTo1.The Chairman cum Managing Director, Neyveli Lignite Corporation Ltd., Neyveli 607 803.2. The Senior Stores Manager/MSS Neyveli Lignite Corporation Ltd., Neyveli 607 803.3. The Chief Engineer/MSS/Mines I Neyveli Lignite Corporation Ltd., Neyveli 607 803.4. The Presiding Officer, Central Government Industrial Tribunal- cum Labour Court, I Floor, 'B' Wing, No.26, Haddows Road, Shastri Bhavan, Chennai 61 cc to Mr.A.R. Suresh, Advocate, Sr. 14661 cc to Mr.NAK. Sarma, Advocate, Sr. 1898W.P.No.22947 of 2007GR (CO)kk 7/6