Dismissed

M/S Beml Limited v. Beml Employees Association

Karnataka HC10 Feb 2021WA/665/2018

Case brief

AI extract

What is this about?

This writ appeal by BEML Limited challenged the Single Judge's dismissal of a writ petition and the Labour Court's award setting aside a reduction of increment. The Court dismissed the appeal, finding no ground for interference as the enquiry officer's finding was perverse due to lack of examination of key witnesses.

What did the court decide?

The writ appeal is dismissed; the judgment of the Single Judge and the Labour Court award are upheld.

M/S Beml Limited Vs Beml Employees Association — Service and Employment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF FEBRUARY, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE SATISH CHANDRA SHARMA

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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WRIT APPEAL NO. 665 OF 2018 (L-RES)

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BETWEEN:

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M/S. BEML LIMITED (FORMERLY BHARAT EARTH MOVERS LIMITED) BEML NAGAR KOLAR GOLD FIELD – 563 115 REPRESENTED BY ITS DEPUTY GENERAL MANAGER SHRI ABENEZER SAMIR KHEES AGED ABOUT 48 YEARS J.C. ROAD BANGALORE - 560 002

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.... APPELLANT

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(BY SRI. NATARAJA BALLAL, ADVOCATE)

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AND:

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BEML EMPLOYEES ASSOCIATION BHARAT EARTH MOVERS LIMITED KGF COMPLEX KOLAR GOLD FIELD – 563 115 REPRESENTED BY ITS PRESIDENT

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SHRI SYED AFSAR C/O M/S BEML LIMITED REGIONAL OFFICE PRESENTLY RESIDING AT #206/D-1

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BHAGIRIATHI (BEHIND NCC CAMPUS) BARIATU ROAD

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RANCHI – 834 009.

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... RESPONDENT

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(BY SRI. VINOD KUMAR C.C. FOR RESPONDENT)

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THIS WRIT APPEAL IS FILED UNDER SECTION-4 OF KARNATAKA HIGH COURT ACT PRAYING, TO SET-ASIDE THE ORDER DATED 14.12.2017 IN WP 40476/2017 (L-RES) AND ALLOW AND ETC.

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THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY, SATISH CHANDRA SHARMA J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The writ appeal arising out of the judgment dated 14.12.2017, in Writ Petition No. 40476/2017, in the case of BEML Limited (Formerly Bharat Earth Movers Limited) vs. BEML Employees Association, passed by the learned Single Judge.

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Facts of the case reveals that respondent – employee before this Court, Sri.Syed Afsar was a Mechanist and he has undergone apprenticeship at the Kolar Gold Fields during the period 05.10.1979 to 04.10.1980. He was subsequently appointed as a Miller, in Wage Group-B and he joined the Kolar Gold Fields on 18.07.1982. He was promoted

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as Senior Technician (Miller) in Wage Group-C, with effect from 07.07.1989.

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The facts further reveal that, a charge-sheet was issued on 16.01.1996 alleging misconduct that the respondent No.2 fabricated certain documents relating to a vehicle, TVS XL moped, bearing registration No.CKP 6263 and also its Insurance Policy and had given the forged documents to another co-worker, namely Mr.S.I.Kumar to enable Mr.S.I. Kumar to avail the vehicle advance of Rs.6,000/from the appellant company i.e., BEML. Respondent did not file reply to the charge-sheet and sought for further extension of time and requested the employer to supply certain documents, which were in possession of the Central Bureau of Investigation (for short ‘CBI’).

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On completion of the enquiry proceedings, the Enquiry Committee found respondent No.2 guilty of the charges and hence issued a second show-cause notice and respondent no.2 did file a reply and by an order dated 01.10.2000, the Disciplinary Authority imposed a punishment

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of reduction of one increment for two years with effect from 01.10.2000.

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Another important aspect is that the CBI had registered a criminal case against respondent No.2 and eight other co-workers alleging similar charges of forging documents and the case was investigated by the CBI. After the investigation, charge-sheet was filed against the respondent No.2 and eight other co-workers. Subsequently, the trial court acquitted all accused persons.

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Respondent No.2 aggrieved by the punishment order dated 01.10.2000, preferred an petition before this Court in Writ Petition No.18053/2006, which was dismissed with liberty to approach the appropriate forum (Labour Court) and thereafter he approached the labour court. The Labour Court initially after taking into account the evidence on record has held that the enquiry was just and fair and has thereafter directed the employer to prove the misconduct before the Labour Court. The employer was not able to establish the misconduct before the labour court and under those circumstances, the award was passed on 20.02.2017.

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The labour court has set-aside the order passed by the disciplinary authority and thereafter the employer has preferred Writ Petition No.40476/2017.

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The learned Single Judge after taking into account the rival contentions of the parties has dismissed the writ petition preferred by the employer. This court has carefully gone through the order passed by the learned single judge as well as the award passed by the labour court. In the present case, the charge against the respondent - employee was that he has forged certain documents and based upon forged documents one Sri.S.I.Kumar was granted loan / financial assistance from the employer in respect of purchase of a moped. The learned Single Judge has come to the conclusion that the said documents were recovered from Sri.S.I.Kumar. He was also an accused because he was the beneficiary. However, for the reasons best known to the employer, he was not produced as a witness before the labour court. Not only this, the Labour court as well as the learned Single Judge has come to the conclusion that it is a case of victimization, since not even a single employee has

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been punished either with stoppage of increments, withholding of promotion or removal from service. It is only respondent No.2 who has been punished with stoppage / reduction of one increment for two years with effect from 01.10.2000.

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The learned Counsel for petitioner at this stage has clarified that out of eight employees, four were inflicted with punishment of stoppage of one increment. However, the fact remains that the beneficiary of the alleged forged documents is one S.I.Kumar who was not awarded any punishment. The learned counsel for the appellant has drawn our attention of this court towards the judgment delivered by the Hon’ble Supreme Court in the case of PRAVIN KUMAR vs. UNION OF INDIA AND OTHERS, reported in (2020) 9 SCC 471. This court has carefully gone through the aforesaid judgment. Para-25 to 39 of the aforesaid judgment reads as follows:

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25. Learned counsel for the appellant spent considerable time taking us through the various evidences on record with the intention of highlighting lacunas and contradictions. We

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feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by Constitutional Courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gain said that judicial review is an evaluation of the decisionmaking process, and not the merits of the decision itself. Judicial Review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.

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26.These principles are succinctly elucidated by a three judge Bench of this Court in BC Chaturvedi v. Union of India in the following extract:“12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.

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When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of

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inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

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13.The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of Indiav.H.C. Goel[(1964) 4 SCR 718 :AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”

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27.These parameters have been consistently reiterated by this Court in a catena of decisions, including:

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(i)State of Tamil Nadu v. S Subramaniam, (1996) 7 SCC 509.

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(ii)Lalit Popli v. Canara Bank, (2003) 3 SCC 583.

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(iii)Himachal Pradesh State Electricity Board Ltd v. MaheshDahiya, (2017) 1 SCC 768.

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28.It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.

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29.The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant’s guilt through documents and statements. It clearly noted that evidence was led, cross-examination was conducted and opportunities of addressing

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arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidences and was detailed and well-reasoned. Furthermore, the High Court didn’t restrict the scope of judicial review, rather adopted a liberal approach, and delved further to come to its own independent conclusion of guilt. Similarly, we have no doubt in our minds that the appellate authority had carefully dealt with each plea raised by the appellant in his appeal and had given detailed responses to all the contentions to satisfy the appellant’s mind. The disciplinary authority too was impeccable and no infirmity can be found in the report of the enquiry officer either.

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30.Even in general parlance, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder.

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II. Appropriateness of procedure and PNJ 31.Significant emphasis has been placed by the appellant on the fact that the enquiry officer put his own questions to the prosecution witness and that he cross examined the witnesses brought forth by the defence. This, it is claimed, amounts to making the prosecutor the judge, in violation of the natural justice principle of “nemo judex in suacausa”. However, such a plea is misplaced. It must be recognized that, under Section 165, Evidence Act, judges have the power to ask any question to any witness or party about any fact, in order to discover or to obtain proper proof of relevant facts. While strict rules of evidence are inapplicable to disciplinary proceedings, enquiry officers often put questions to witnesses in such proceedings in order to discover the truth. Indeed, it may be necessary to do such direct questioning in certain circumstances. Further, learned counsel for the appellant, except for making a bald allegation that the enquiry officer has questioned the witnesses, did not point to any specific question put by the officer that would indicate that he had exceeded his jurisdiction. No specific malice or bias has been alleged

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against the enquiry officer, and even during the enquiry no request had been made to seek are placement; thus, evidencing how these objections are nothing but an after thought.

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32. Rather it appears that the delinquent person received a fair trial, which can illustratively be determined by analyzing whether he received an opportunity of adducing evidence, cross-examining witnesses and whether depositions were recorded in his presence.5The record clearly elucidates that all these essentials had been duly observed in the present proceedings. Opportunity to seek assistance of another officer was accorded, right of making representation was granted before each authority, multiple opportunities were granted to lead evidence, cross-examine witnesses, and raise objections. The appellant exercised most of these options, though some were given up despite reminders. Minor delays on part of the appellant were ignored and each concern of his had been addressed through detailed reasons.

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III. Effect of criminal enquiry on disciplinary proceedings :

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33.The incident of 28.02.1999 raised serious questions of criminality under the Indian Penal Code and the Prevention of Corruption Act, as well as of violation of Service Regulations and administrative misconduct. Thus, in addition to appointment of enquiry officer, the authorities also registered a criminal complaint with the CBI. After investigation, the CBI though did not find adequate material to launch criminal prosecution against the appellant but through its self speaking report dated 07.03.2000, the CBI recommended major disciplinary action against the appellant and a few others.

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34.It is beyond debate that criminal proceedings are distinct from civil proceedings. It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to takeaway his liberty under our criminal law jurisprudence. Such distinction between standards of proof amongst civil and criminal litigation is deliberate, given the differences in stakes, the power imbalance between the parties and the social costs of an

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erroneous decision. Thus, in a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances.

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35.Thus, the appellant’s contention that he should be exonerated in the present proceedings as no criminal chargesheet was filed by the CBI after enquiry, is liable to be discarded. The employer always retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding. Furthermore, the CBI report dated 07.03.2000 does recommend major disciplinary action against the appellant. The said report also buttresses the respondent’s case.

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IV. Punishment and plea of leniency

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36.In our considered opinion, the appellant’s contention that the punishment of dismissal was disproportionate to the allegation of corruption, is without merit. It is a settled legal proposition that the Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such

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requirements emanate from Article 14 itself, which prohibits State authorities from treating varying degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent, but must also factor the financial effect and societal implication of such misconduct. But unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked. Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the later category, and ought to be dealt with strictly.

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37.Applying these guidelines to the facts of the case in hand, it is clear that the punishment of dismissal from service is far from disproportionate to the charges of

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corruption, fabrication and intimidation which have unanimously been proven against the appellant. Taking any other view would be an anathema to service jurisprudence. If we were to hold that systematic corruption and its blatant cover-up are inadequate to attract dismissal from service, then the purpose behind having such major penalties, which are explicitly provided for under Article 311 of the Constitution, would be obliterated.

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38.Still further, the appellant’s actions would most probably have caused huge consequential losses to BPCL and lowered the reputation of the CISF amongst members of the public. Given the paramilitary nature of the appellant’s force, a sense of integrity, commitment, discipline, and camaraderie is paramount. This expectation is only heightened in the case of the appellant given how he was specifically asked with weeding out corruption and conducting surprise raids. Once shattered through acts of intimidation, forgery, and corruption; only the severest penalty ought to be imposed.

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CONCLUSION

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39.In light of the above discussion, we do not find any merit in this appeal which is accordingly dismissed

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It is certainly true that the High Court does not have power to reappreciate the evidence and judicial review is permissible in an evaluation of the decision making process, and not the merits of the decision itself.

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This court has carefully gone through the aforesaid judgment and the fact remains that in the present case, keeping in view the evidence, the findings of the Enquiring Officer are perverse. The facts of the case establishes that the allegation against respondent No.2 is that he has forged documents in favour of one S.I.Kumar. However, S.I. Kumar was not examined before the Enquiring Officer, neither any handwriting expert was examined nor any forensic expert was

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examined. Based upon the statement of some other witness the employee was held guilty and therefore, the labour court has rightly interfered with the matter. This court in the light of the findings arrived by the labour court and in the light of the judgment of the learned single judge and also the judgment of the Hon’ble Supreme Court is of the opinion that no case for interference is made out in the matter. Resultantly, the appeal is dismissed.

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Sd/JUDGE

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Sd/JUDGE

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M/S Beml Limited v. Beml Employees Association

Case brief

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M/S Beml Limited v. Beml Employees Association

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