Dismissal for indiscipline was challenged on grounds of bias, refusal to shift the enquiry venue and denial of legal representation. The Court rejected the challenge, finding reasonable opportunities to defend had been provided and no basis to interfere with the Labour Court's decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Judgment-WP-3874-08.doc
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3874 OF 2008
| Shri Ashok Anandrao Mane, | ] | |
|---|---|---|
| Age : 62 years, | ] | |
| Sushilanand, Plot No.18, E Ward, | ] | |
| Shri Datta Co-operative Housing Society, | ] | |
| Near Babar Hospital, Kavala Naka, | ] | |
| Kolhapur. | ] … | . Petitioner |
| Versus | ||
| 1. Managing Director, | ] | |
| Maharashtra State Financial Corporation, | ] | |
| New Excelsior Building, 9 thFloor, |
] | |
| Amrit Keshav Nayak Marg, Fort, | ] | |
| Mumbai – 400 001. | ] ] |
|
| 2. Regional Manager, | ] | |
| Maharashtra State Financial Corporation, | ] | |
| S.P. College Compound, | ] | |
| Tilak Road, Near Post Office, | ] | |
| Pune. | ] … | . Respondents |
Mr. Ram Apte, Senior Advocate, with Mr. Ashutosh Gole, for the Petitioner.
Ms. N.R. Patankar, with Mr. Prabhakar M. Jadhav, for the Respondents.
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CORAM : A.K. MENON, J. RESERVED ON : 7TH MARCH, 2019. PRONOUNCED ON : 2 ND MAY, 2019.
JUDGMENT :
The petitioner was, at all material times, engaged as a Junior Officer in
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the respondent-Corporation. The respondent is the Maharashtra State Financial Corporation, a Statutory Corporation, constituted under the provisions of the Maharashtra State Financial Corporation Act, 1951. It is an 'Industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The petitioner came to be promoted, after his initial appointment as a Junior Assistant on 1st September 1970. He came to be promoted to the post of Junior Officer on 25th April 1978. He was also an office bearer of the Maharashtra Shramik Sena, a registered Trade Union, working in the respondent-Corporation in or around 1988-89. It is believed that the dispute relating to the recognition of the said Union arose and the respondentCorporation allegedly started harassing the petitioner in view of his involvement with union activities. The petitioner has contended that, he was refused casual leave, medical leave etc. On one occasion, he had filed a Complaint (ULP) No.65 of 1989. He was thereafter transferred from Kolhapur to Nagpur on 7th June 1990, but he did not join. According to the petitioner, he did not join at Nagpur, because his father and he himself, both, were ill. Soon thereafter, a charge-sheet came to be filed and the petitioner was convicted and was awarded punishment of reduction by three stages in time scale.
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came to be filed. According to the petitioner, the false and frivolous charges, namely, failure to renew the insurance policies, change in insurance companies, branches, addressing letters to the State Ministers making allegations against the respondents etc. were levelled against him. The petitioner, therefore, filed Complaint (ULP) No.394 of 1992, seeking interim relief against the enquiry proceedings. However, his request was rejected and the enquiries were proceeded with by the respective enquiry officers. One enquiry was conducted by a former Judge of this court. The petitioner contended that he could not travel by train due to fracture to the left leg and despite this position, enquiries in respect of three charge-sheets dated 24 th September 1992, 12th October 1992 and 22nd February 1993 were conducted in Mumbai and the enquiry in relation to the charge-sheet dated 6th July 1993 was conducted in Pune. The petitioner is believed to have attended the enquiry in Pune, which was conducted by different enquiry officer, but he was denied the right to be represented by an Advocate. The reports of the enquiry officer in respect of the three enquiries conducted in Mumbai were submitted on 2nd November 1994 and in respect of the Pune enquiry on 17th November 1994. The petitioner further contended that on 13th March 1995, the impugned order of dismissal came to be passed, whereupon the Reference came to be filed. The Reference confirmed the order of dismissal, as a result of which this petition came to be filed. In support of his case, Mr. Apte, learned Senior Advocate, submitted that the enquiry officer was biased. According to
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him, the enquiries were bad in law for four reasons. Firstly, the venue ought to have been convenient for both the parties, but it was not. Secondly, the enquiry had to be held at the place within which the facts giving rise to the charge-sheet had taken place i.e. the place of the incident. This was not done, since the incidents complained of were at Kolhapur and Pune. Thirdly, he submitted that there was a demand to appoint an Advocate to represent him and that was denied. As a result, there was violation of the rules of natural justice. Lastly, he submitted that refusal to shift the venue from Mumbai by the enquiry officer, despite the fact that the Management had no objection to the same, had resulted in violation of rights / rules of natural justice.
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enquiry, the report has been held to be bad and therefore, he contended that the order of dismissal was based on a composite consideration of all the enquiry reports and even assuming that, the enquiry at Mumbai or at Pune were found to be bad for want of compliance with the rules of natural justice. Moreover, if bias exhibited against the petitioner, it will be fatal to the order of dismissal. He submitted that the petitioner need not succeed in establishing that all the four enquiries were bad and that if one of them were found to be bad, since the same arise from the same set of alleged incidents, all enquiry reports were vulnerable and, therefore, are required to be set aside.
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absenteeism; absence from the work for about an hour could not have been met with such a serious action. Apropos the allegation of misbehaviour with superiors, he submits that the order of dismissal is hugely disproportionate. In this behalf, he drew my attention to the two reports dated 2 nd November 1994 and one report dated 17th November 1994 of the enquiry officer and to the reply in the form of two letters dated 7th December 1994 and one letter dated 6th December 1994.
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1994, wherein the petitioner contended that he has requested the enquiry officer to allow him to be defended through an Advocate on several occasions, but the permission was denied and the enquiry begun on 23 rd April 1993. Petitioner has also filed an application for grant of various reliefs. The matter was adjourned, but, on that day, he was threatened by the Management and it is for this reason that the petitioner has requested the enquiry officer to conduct the enquiry at Pune or Kolhapur.
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and who had contended that the Chief Administrative Officer had summoned the deponent and told him in the presence of the petitioner that it was futile to fight against the corporation and that the petitioner may compromise the matter, admit the faults and close the case.
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December 1994, in respect of the charge-sheet dated 22nd February 1993. In this behalf, it was contended that, Mr. Subhash Shirodkar, a colleague, had also offered to help the petitioner in the case, but despite knowing reason of the medical condition and the threats held out, due to which the petitioner has not been able to attend the enquiry proceedings in Mumbai, he was not granted the facility of utilizing the assistance of Mr. Shirodkar or an Advocate. He contended that the enquiry being ex-parte, was no enquiry at all. As far as the issue of leave is concerned, he contended that employee was sick and, therefore, a necessary certificate of the Doctor had been sent.
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but the petitioner, instead of filing his written submissions, contended that he wished to examine himself by submitting affidavit of examination in chief and offered himself for cross-examination.
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accept the charges in all the three charge-sheets and immediately resign. He further contended that when he appeared before the enquiry officer, he was in a disturbed state of mind, since nobody was willing to represent him. He has approached the enquiry officer seeking permission for engaging an Advocate, which was denied to him. Furthermore, it is contended that, the petitioner was threatened by said Mr. Pawar, who was found standing outside the Managing Director’s cabin, saying that petitioner should give up, otherwise an untoward incident would occur, as described in the letter.
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to the affidavit submitted by Mr. Subhash Shirodkar, who had initially offered to assist the petitioner in the enquiry, dealt with the merits of the allegations made against him and that of the witnesses for the Management, namely, Mr. S.G. Pawar (the then Chief Administrative Officer), Mr. Daflapurkar (Manager - Personnel Administration), Mr. Yadav, (Regional Manager - Public Relations), who had all given evidence for the Management and which evidence was accepted by the enquiry officer.
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petitioner, there were no extenuating circumstances, which will come to the petitioner’s rescue and that the punishment imposed was not shockingly disproportionate. Mr. Apte submitted that the view taken by the Labour Court cannot be sustained on the basis of the enquiry reports.
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had been obtained by the petitioner himself and there is no reason for not attending the enquiry at Mumbai and much less due to his medical condition. It was further submitted that, there was no real threat to the petitioner’s life, as sought to be made out, and that no complaint is made by the petitioner against the then Chief Administrative Officer, Mumbai. If there was such a serious threat to his life and limb, surely the petitioner, who was also an active member of the Union, would have instituted a police complaint. No complaint has been filed. Furthermore, the petitioner was paid travelling allowance and daily allowance for attending the enquiry, which was collected by him; yet the petitioner avoided attending the enquiry.
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the petitioner. It is submitted that, all the reasonable opportunities were provided to the petitioner, however, it appears that the petitioner was not interested in attending the enquiry. Reference was made to paragraph No.19 of the impugned award, wherein the Labour Court has observed that no reliance was placed on any specific regulation pertaining to the type of person, who can represent a delinquent-employee in an enquiry and that all the case laws submitted before the Labour Court were in relation to the complicated questions, where assistance was required. Moreover, the Labour Court had found that there was no material before it that would lead the court to conclude that the Management's representative was legally well trained or having vast experience in conducting the enquiries or representing in enquiry. The Labour Court had considered the decision in the case of Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh Tripathi1.
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2006 issued by M/s. Lok Housing and Construction Limited, and presently Mr. Shirodkar is working as a Senior Vice President (Land & Legal). Thus, it is submitted that there is no question of Mr. Shirodkar assisting the petitioner during the aforesaid enquiries. The Labour Court has accepted the plea of the Management that Mr. Shirodkar has left his job with the respondentCorporation not due to harassment, but because he had good career prospects and there was no connection between the complaints of the petitioner and resignation of Mr. Shirodkar. The Labour Court also found that there is no material placed on record to show that the petitioner had attempted to engage any other employee to assist him. The Labour Court, therefore, concluded that there was no specific rule, which permitted the petitioner to defend himself through an Advocate in the domestic enquiry and that in the facts of the case, if the petitioner had been denied that facility, it could not be said to be in violation of the rules of natural justice. In that view of the matter, the Labour Court came to the conclusion that the decision of the Management could not be faulted.
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despite the management having not objected and this was suggested as an example of bias. Although the reason for inability to attend at Mumbai was the petitioner’s health and threat to his life from Mr. Pawar, the then Chief Administrative Officer, in the cross-examination, the petitioner admitted that he had not made any complaint to the police about the threat. Furthermore, the petitioner had been paid travelling allowance and daily allowance to attend the enquiry at Mumbai, which he availed of. Although he denied that the large number of witnesses examined were in Mumbai, the enquiry report and proceedings before the enquiry officer demonstrate that the large number of witnesses are from Mumbai. The enquiry officer had, in the proceedings dated 1st March 1994, observed that the excuses given by the petitioner were palpably false. In that event, if the petitioner wished to hear the matter at Pune, the petitioner would have presented himself before the enquiry officer and made out a case, instead of repeatedly writing letters.
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place of enquiry. If there is any request for change of venue of the enquiry, there must be cogent reason and in the present case, no complaint having been made of threat to his life was sufficient to conclude that there was no substance in the contention of the petitioner. There was also no cogent evidence to show that the petitioner was physically unable to travel, because he had obtained a fitness certificate and had actually resumed the duty during that period. No prejudice has been demonstrated in not having changed the venue of the enquiry. The Labour Court also concluded on the preponderance of the probability that it was unlikely that certain offensive representations attributed to the petitioner were made by his wife and his father and, therefore, he could not be held to be guilty, which this court found unacceptable, holding that the representations could not be made by the family members. Moreover, false and defamatory allegations were made against Mr. V.T. Chari, the enquiry officer, as well and the finding is to the effect that the representations and appeals allegedly made by the petitioner’s wife and father were not made by them, but these were sent by the petitioner himself in the name of his wife and father.
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required in a domestic enquiry is not absolute and a conclusion has to be drawn based on the preponderance of the probabilities in the enquiry before Mr. Chari at Pune. The Management had examined a large number of witnesses and the petitioner had availed of an opportunity to cross-examine them. The enquiry officer had, therefore, considered the evidence led by the petitioner and the evidence led by the Management and found no infirmity or illegality committed by the enquiry officer.
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documents to show that he was an office-bearer of the said Union. However, no document was produced and there was no material whatsoever on record to justify that the petitioner was an office-bearer of the said Union and, therefore, he has been victimized. On this ground also, the award holds against the petitioner.
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reports. The enquiry reports have indicted the petitioner in no uncertain terms, after having considered all the material; although it was not for this court to re-appreciate evidence. What has to be seen is whether the due process had been followed and that the reasonable opportunity was given to the delinquent-employee to present his case. That has been done and I am satisfied that the contentions taken up by the petitioner to challenge the impugned order and the enquiry reports lacks merits; in particular, the allegation made against the enquiry officer in respect of the two enquiries in Mumbai.
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although two enquiry reports in relation to the two charge-sheets were pending, a third charge-sheet dated 22nd February 1993 was also adjourned till the other trials get over. Chances were given to the petitioner crossexamine the Management's witnesses, but the opportunity was not availed of. The enquiry officer has dealt with in detail with the rules and regulations of the respondent-Corporation, in relation to which the petitioner was stated to be in breach. In short, nothing has been shown to lead me to conclude that the petitioner has been denied an appropriate opportunity of being heard.
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Raghavendranath Nadkarni2, in which it observed that if in an enquiry he delinquent officer is pitted against a legally trained mind and if he seeks permission to appear through a legal practitioner, refusal to grant permission would amount to denial of a reasonable request to defend himself and principles of natural justice would be violated.
- I am of the view that the petitioner has failed to make out a case that he
2 (1983) 1 SCC 124
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has been put to a disadvantage. Mere apprehension that he was at disadvantage for want of legal representation, in my view, would not amount to a case of denial of the rules of natural justice. The allegations in the charge-sheets were, admittedly, not of a serious complicated nature, which required a trained legal mind to deal with it. In any event, the law is also loaded against the petitioner in the case of H.C. Sarin Vs. Union of India and Others3, wherein the Supreme Court has held, in no uncertain terms, that the appellant was not entitled, as a matter of right, to have the services of any railway officer stationed in India to assist him in the conduct of his defence. He wanted an officer from India whereas the appellant was given a wide field of choice either to choose any railway official stationed in London or in the continent or some other personnel of the Indian High Commission in London. The accusations made against the appellant were not such that required any expert or special skill. In that view of the matter, it was felt that there is no violation of principles of natural justice in not making available to the appellant services of a person from India to conduct his defence.
3 1976 LAB. I.C. 1128
4 2012 SCC OnLine Bom 1414
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an obligation to obtain consent from the delinquent and hear the management on the application for changing the venue. In that case, the venue was changed from Sadak-Arjuni to Nagpur. No reasons were given. In the present case, I find that number of witnesses being from Mumbai justified the conduct of the enquiry relating to those charge-sheets at Mumbai. Furthermore, the contention of the petitioner that both the parties should be heard prior to taking a decision of change of venue could not survive, since there was no change in the first place. As regards the enquiry conducted at Mumbai, the petitioner attended the said enquiry once and thereafter did not attend the enquiry for the reasons best known to him. The place of instance also loses significance in view of the fact that the charges in the instant case pertain to addressing of numerous letters and correspondence of objectionable nature. They are not necessarily the incidents, which took place in Pune or Kolhapur and the localized impact is on the communication addressed out of the place of residence or work of the petitioner, but in respect of that, the Management had to engage large number of witnesses to be deposed, all of whom were from Mumbai. In that view of the matter, I am of the view that the decision in the case of Wainganga Bahu-Uddeshiya Vikas Sanstha, Nagpur (supra) is of no assistance to Mr. Apte.
5 (1974) 3 SCC 459
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been dealt with. In Parthasarathi reliance was placed on the test of bias in a departmental enquiry and in that respect, the Supreme Court held that, there must be a “real likelihood” viz a substantial possibility of bias. The court will have to judge of the matter as a reasonable man would judge of any matter in the conduct of his own business. In my view, even considering these aspects, the judgment will not come to the assistance of the petitioner, since nothing has been shown to the Labour Court or to me that the petitioner harboured a real apprehension or bias. He may have had a suspicion, but that does not translate to real likelihood or reasonable apprehension of bias. All possible opportunities were granted to the petitioner, as seen from the factual aspects of the case in hand and I am of the view that the judgment in the case of S. Parthasarathi (supra) in no manner strengthens the case of the petitioner.
6 2001 (3) L.L.N. 960
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extract from the Judgment of Lord Denning, Master of the Rolls, in the case of R. v. Secy. of State for the Home Department ex parte Mughal7 in which he
stated thus :-
“The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke 'the rules of natural justice' so as to avoid the consequences.”
so as to require expert legal assistance of a trained Advocate. In the case of National Seeds Corporation Ltd. Vs. K.V. Rama Reddy8, the Supreme Court observed thus in paragraph 4.
7 (1973) 3 ALL ER 796
8 (2006) 11 SCC 645
9 1997 II CLR 16
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complicated and the presenting officer in that case not being a legally trained person, the assistance of an Advocate is not mandatory. The case was simple and the employee himself could have defended it. Denial of assistance in that case, which pertains to sanctioning of a loan for fictitious persons, and the enquiry which resulted did not justify the engagement of an Advocate.
10 2009 (4) L.L.N. 91
11 1993 I CLR 253
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(supra) the court held the right to legal representation through a lawyer or agent of choice may be restricted by a Standing Order also and it would amount to denial of natural justice.
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3 issues framed by the court
Did refusal of legal representation in the domestic enquiries deny the employee a reasonable opportunity to defend himself?
Did refusal to shift the enquiry venue or alleged enquiry-officer bias vitiate the disciplinary proceedings?
Was interference with the dismissal warranted on the proved charges of indiscipline?
Colour shows how this judgement treated each authority
S. Parthasarathi Vs. State of Andhra PradeshDistinguished¶138
S. Parthasarathi Vs. State of Andhra Pradesh, (1974) 3 SCC 459. · Who else cites this
Ramesh Chandra Vs. Delhi University and OthersDistinguished¶118
Ramesh Chandra Vs. Delhi University and Others, (2015) 5 SCC 549. · Who else cites this
Wainganga Bahu-Uddeshiya Vikas Sanstha, Nagpur and Others Vs. Diwakar s/o. Maloji Kamble and OthersDistinguished¶133
Wainganga Bahu-Uddeshiya Vikas Sanstha, Nagpur and Others Vs. Diwakar s/o. Maloji Kamble and Others, (2013) 2 Mah.L.J. 804.
Port of Bombay Vs. Dilipkumar Raghavendranath NadkarniReferred¶118
(1983) 1 SCC 124 · Who else cites this
J.K. Aggarwal Vs. Haryana Seeds Development Corporation LtdReferred¶122
J.K. Aggarwal Vs. Haryana Seeds Development Corporation Ltd
H.C. Sarin Vs. Union of India and OthersRelied on¶127
1976 LAB. I.C. 1128
Bank of Baroda and Another Vs. Virsen Santhram Pradhan and AnotherRelied on¶139
2001 (3) L.L.N. 960
R. v. Secy. of State for the Home Department ex parte MughalRelied on¶144
(1973) 3 ALL ER 796
National Seeds Corporation Ltd. Vs. K.V. Rama ReddyReferred¶148
(2006) 11 SCC 645 · Who else cites this
Harinarayan Srivastav Vs. United Commercial Bank and AnotherRelied on¶150
1997 II CLR 16
Biecco Lawrie Ltd. and Another Vs. State of Weest Bengal and AnotherRelied on¶157
2009 (4) L.L.N. 91
Crescent Dyes & Chemicals Ltd. Vs. Ram Naresh TripathiRelied on¶158
1993 I CLR 253
Shri Ashok Anandrao Mane
Managing Director, Maharashtra State Financial Corporation
Regional Manager, Maharashtra State Financial Corporation
A.K. MENON
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
