This intra-Court appeal has been filed against the order dated 20.04.2017 passed by the learned writ Court in W.P.No.8390/2015.
Learned writ Court considering the fact that the disciplinary authority has held the charges established against the respondent is based upon the
preliminary inquiry report but the right of cross examination has been denied to the delinquent and came to the conclusion that there is violation of
principle of natural justice and fair play, therefore, allowed the writ petition by setting aside the order dated 07.02.2014 and the order passed by the
appellate authority dated 29.05.2014. The relevant part of the order dated 20.04.2017 reads as under:
Learned counsel for the petitioner has placed reliance upon the judgment delivered by the Division Bench of this court in the case of Hemar Singh
Parmar Vs. Union of India reported in 2016(3)MPLJ 509, wherein it has been held that the delinquent must be given reasonable opportunity to cross
examine the witnesses if their statements are relied upon by the Inquiry Officer. The Division Bench in the aforesaid case in Paragraphs-13, 14 and
15 held as under :-
“13. That, the Hon'ble Supreme Court in the case ofKuldeep. Commissioner of Police and Others reported in (1999) 2 Supreme Court Page -10.
That in the departmental enquiry the essential component is the reasonable opportunity and principles of natural justice. The delinquent must be given
reasonable opportunity to cross-examine the witnesses if their statements are relied upon by the Inquiry Officer. The disciplinary proceedings are of a
quasi-judicial character, therefore, there has to be a conclusion on the basis of some evidence. If there is no evidence to sustain the charge against the
delinquent, he cannot be held guilty and the findings would be perverse.
Para-27 of the judgment is reproduced below:
27. This rule which lays down the procedure to be followed in the departmental inquiry itself postulates examination of all the witnesses in the
presence of the accused who is also to be given an opportunity to cross examine them. In case, the presence of any witness cannot be procured
without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the conditions that the previous statement
was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by
him, then also it could be brought on record. The further requirement is that the statement either should have been signed by the person concerned,
namely, the person who has made that statement, or it was recorded during an investigation or a judicial inquiry or trial. The Rule further provides that
unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the
statement of the witness whose presence could not be produced.
14. That, in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and Others reported in (2013) 4 Supreme Court Cases Page-465,
the Supreme Court has held the cross examination of witness is one part of the principles of natural justice and requires that the party must be given
an opportunity to adduce the evidence and the opposite party should be taken opportunity to cross-examine the witnesses.
Cross-examination is one part of the principles of natural justice.
24. A constitution Bench of this Court in State o f MP Vs . Chintaman Sadashiva Waishampayan held that the rules of natural justice require that a
party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be
taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said
opportunity to crossexamine the witnesses, would violate the principles of natural justice.
25. In Lakshman Exports Ltd Vs.CCE, this Court while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e.
permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross -examinet
he representatives of the firms concerned to establish that the goods in question had been accounted for in their books of accounts and that excise
duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to crossexamine, would amount to a denial
of the right to be heard i.e. audi alteram partem.
26. In new India Assurance Co. Ltd V. Nusli Neville Wadia, this Court considered a case under the public premises (Eviction of Unauthorized
Occupants) Act, 1971 and held as follows (SCC Page-295, Para-45) a45. If some facts are to be proved by the landlord, indisputably the occupant
should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness.
This may not be provided by under the statute, but it being a part of the principles of natural justice should be held to be indefeasible right.â€.
(emphasis added) In view of the above, we are of the considered opinion that the right of crossexamination is an integral part of the principles of
natural justice.
27. In K.L. Tripathi V. SBI, this Court held that, in order to sustain a complaint of the violation of the principles of natural justice on the ground of
absence of opportunity of crossexamination, it must be established that some prejudiced has been caused to the appellant by the procedure followed.
A party who does want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in
any subsequent grievance raised by him, stating that no opportunity of crossexamination was provided to him, specially when the same was not
requested and there was no dispute regarding the veracity of the statement.
9. “In order to establish that the crossexamination is necessary, the consumer has to make out a case for the same. Merely stating that the
statement of an officer is being utilized for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for
grant of an opportunity to cross-examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the
request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being being concluded, it shall be certainly open
to the customer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to cross-examine
any officialâ€.
28. the meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the government, is that the government
servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government servant
should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He
can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that, the government servant will
be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the
government servant, he will not be able to conduct an effective and useful cross-examination.
29. In Rajiv Arora V. Union of India, this Court held: (SCC P.310, Paras-13-14).
“13........Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were
proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report
should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar
situation........
14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the
appellant by such nonexamination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of
natural justice, the High Court should have exercised its jurisdiction of judicial review.â€
30. The aforesaid discussion makes it evident that, not only should the opportunity of cross examination be made available, but it should be one of
effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held
that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice.
15. The Division Bench of this Court has considered this fact in the case of alwar Vs. Union of India and Others passed in Writ Petition
No.7546/2006 vide order dated 19.10.2011. Para 10 of the order dated 19.10.2011 passed in Writ Petition No.7546/2006 is reproduced below:
Para: 10
On the perusal of the impugned order of the Tribunal, it is noticed that though the petitioner had raised the aforesaid two grounds in respect of placing
of reliance on the statements of Shri Atul Pandey and ignoring the defence documents in the inquiry report and these grounds have also been noted by
the Tribunal in the impugned order, but these grounds have not been examined by the Tribunal, statements of Shri Atul Pandey and Shri S.S. Roy
which were recorded during the course of preliminary inquiry have been relied upon in the inquiry report without giving any opportunity to the
petitioner to cross-examine them which was contrary to the judgments of the Supreme Court.â€
In light of the aforesaid judgment as it is an undisputed fact that petitioner was not granted opportunity of cross examination of all those witnesses,
whose statement have been relied upon by the inquiry officer, the findings of fact arrived at by the inquiry officer are perverse findings and there is
violation of principle of natural justice and fair play.
The aforesaid ground has not been disputed by the learned Government Advocate. His submission is that because those persons are no more alive,
therefore they were not called by the inquiry officer.
This court has earlier passed an order in Writ Petition No. 6101/2003 filed by the petitioner and the same reads as under :-
“It is pertinent to note that earlier also an order was passed by this Court on 1/9/2010 directing reinstatement of the petitioner forthwith as extra
temporary warder, however, backwages were not granted to him and therefore a writ appeal was preferred by the petitioner. The order of the
Division Bench dt. 9/3/2011 passed in WA No. 451/2010 reveals that the petitioner was aggrieved in the matter as no backwages were granted to
him. Backwages cannot be claimed as a matter of right as held by the apex court in the case of P.V.K. Distillery Limited Vs. Mahendra Ram (2009)
5 SCC 705. The apex court in the aforesaid case in para 15, 21, 25 and 27 has held as under :
15. The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and
circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. There
exists an obligation on the part of the High Court to record in the judgment, the reasoning before however denouncing a judgment of an inferior
tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable.
21. In Hindustan Tin Works (P) Ltd. v. Employees this Court has held that:
“9. … The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid.†It, therefore,
does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the
termination of service is invalid in law.
25. In the instant case, the notice had been issued limiting the question to the payment of 50% of the total back wages. This does not mean that the
respondent is not entitled to further relief. The point that his services were terminated in the year 1985 and since then the case is pending for the last
two decades in different courts also has no relevance, since he had approached the court within a reasonable time. It is not his fault that the case is
still pending before the court. These grounds could not be held against him for denying the relief of back wages otherwise he would suffer double
jeopardy of losing back wages and delay in getting the reinstatement for no fault of his. Therefore, it would have been more enlightening, had the High
Court reasoned out as to why the appellant should reinstate the respondent with full employment benefits and should pay full back wages to him for
nothing in return from him in terms of work, production, etc.
27. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full
employment benefits and full back wages.
Keeping in view the judgment delivered by the apex court in the case of P.V.K. Distillery Limited Vs. Mahendra Ram (supra), this Court is of the
considered opinion, that in the peculiar facts and circumstances of the case, the petitioner is not entitled for grant of backwages specially in view of
the fact that he was working as a daily wager.
Resultantly, the writ petition is allowed with the following direction :
(a) The respondents are directed to reinstate the petitioner forthwith from the date of receipt of certified copy of this order as an extra temporary
warder.
(b) The respondents are further directed to conclude the Departmental Enquiry positively within a period of 6 months from the date of receipt of
certified copy of this order.
(c ) The respondents shall consider the case of the petitioner afresh for regularisation by holding a Screening Committee keeping in view the
observations made in paragraph 2 of order dated 17/2/94 wherein the MP State Administrative Tribunal, Indore has held the complaint of the
Superintendent of Distt. Jail, Barwani to be a false complaint and it is the same complaint on the basis of which he was not found fit for regularisation.
Screening Committee shall consider the case of the petitioner from the date of his juniors were considered and were found fit for regularisation ie.,
w.e.f. 28/6/90, and in case the petitioner is found fit for regularisation he shall be entitled for all consequential benefits except backwages.
Writ petition is allowed.â€
The aforesaid order was subjected to judicial scrutiny and the Division Bench of this court in Writ Appeal No. 200/2012 dated 16-04-2013 has passed
the following order :-
“Heard.
This intra court appeal under Section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is filed by
the appellant / writ petitioner challenged the part of the order dated 27.04.2011 pased by the learned Single Judge of this Court in Writ Petition (s)
No.6101/2003 (Original Application No.1515/1998) as also the order dated 30.03.2012 pased in Review Petition No.229/2011, by which the petitioner
has been denied back wages.
The petitioner had filed the aforesaid writ petition challenging his discontinuation from service and also seeking regularization. The petitioner was
appointed on the post of Extra Temporary Warder on 19.08.1987. His services were terminated on 22.03.1990 on the ground that his services are no
longer required. The said order was challenged by him in OA No.2011/1990 before the MP State Administrative Tribunal, Indore (for short, the
Tribunal). The said OA was allowed and the termination order dated 22.03.1990 was set aside by the Tribunal vide it's order dated 17.02.1994,
directing the respondents to reinstate the petitioner with back wages. After his reinstatement, the petitioner claimed regularization. However, on
04.10.1996, his services were put to an end. Aggrieved by the said termination order dated 04.10.1996, he submitted a representation and after
considering the representation, he was reinstated on 27.03.1997. Thereafter, he was placed under suspension, which was revoked on 09.12.1997 by
ordering for continuation of the departmental enquiry against him. However, according to the petitioner, he was not permitted to join as Extra
Temporary Warder. In the circumstances, he had filed OA No.1515/1998. On abolition of the Tribunal, the matter was transferred to this Court and
was registered as Writ Petition (s) No.6101/2003.
Learned Single Judge examined the various other orders which were pased in the case of petitioner himself and after placing reliance on the judgment
pased by the Supreme Court in the case of PVK Distillery Limited v. Mahendra Ram (2009) 5 SCC 705, pased the following order: -
“Keeping in view the judgment delivered by the apex court in the case of PVK Distillery Limited v. Mahendra Ram (supra), this Court is of the
considered opinion, that in the peculiar facts and circumstances of the case, the petitioner is not entitled for grant of back wages specially in view of
the fact that he was working as a daily wager.
Resultantly, the writ petition is allowed with the following direction: -
(a) The respondents are directed to reinstate the petitioner forthwith from the date of receipt of certified copy of this order as an extra temporary
warder.
(b) The respondents are further directed to conclude the Departmental Enquiry positively within a period of 6 months from the date of receipt of
certified copy of this order.
(c) The respondents shall consider the case of the petitioner afresh for regularization by holding a Screening Committee keeping in view the
observations made in paragraph 2 of order dated 17.02.1994 wherein the MP State Administrative Tribunal, Indore has held the complaint of the
Superintendent of District Jail, Barwani to be a false complaint and it is the same complaint on the basis of which he was not found fit for
regularization. Screening Committee shall consider the case of the petitioner from the date of his juniors were considered and were found fit for
regularization i.e. w.e.f. 28.06.1990, and if case the petitioner is found fit for regularization he shall be entitled for all consequential benefits except
back wages.
Writ petition is allowed. No order as to costs.â€
Feeling aggrieved by the part of the aforesaid order, by which the petitioner is held to be not entitled for grant of back wages as observed in the above
extracted order and also in Clause (c) of the direction pertaining to denial of back wages, the petitioner has filed this appeal.
According to the learned counsel for the appellant / petitioner, when the departmental enquiry is in contemplation and is directed to be concluded
within a specified time and when the case of the petitioner for regularization has been directed to be considered, afresh, observation and direction, that
the petitioner shall not be entitled for back wages, as he was working as daily wager and if he is found fit for regularization, he shall be entitled for all
consequential benefits except back wages, is unwarranted. He submits that the question about grant of back wages to the petitioner ought to have
been kept open by the learned Single Judge.
On the other hand, learned Panel Lawyer appearing for the respondents supported the impugned orders pased by the learned Single Judge.
Having considered the submisions made by the learned counsel for the parties, we are of the view that the orders passed by the learned Single Judge
so far as it relates to rejecting the petitioner's claim for back wages deserves to be modified and the question about grant of back wages is required to
be kept open for being decided by the respondents at the time of taking appropriate decision in regard to the final outcome of the departmental enquiry
and while taking decision for regularization, as directed in Clause (c) of the order pased by the learned Single Judge.
We accordingly modify the order pased by the learned Single Judge by setting aside the part of the order to the extent that the petitioner is held not to
be entitled for grant of back wages with liberty to the respondents to take a decision regarding petitioner's entitlement to back wages at the time of
taking final decision in the matter of departmental enquiry and in regard to the petitioner's prayer for regularization. Needles to say that while taking
appropriate decision about back wages, the orders passed by the learned Single Judge would not come in the way of the parties, and the respondents
shall be free to take appropriate decision, in accordance with law.
Let both the directions, as isued by the learned Single Judge regarding conclusion of the departmental enquiry and consideration of the petitioner's case
afresh for regularization be complied with within a period of six months from the date of receipt of copy of this order and decision about his
entitlement for back wages, as aforesaid, be also taken simultaneously. The petitioner shall cooperate the respondents for completion of the process,
as aforesaid, within the time frame fixed. With the aforesaid modification in the order passed by the learned Single Judge, the writ appeal is disposed
of with no order as to costs. â€
In light of the aforesaid judgment delivered by the Division Bench, the issue of backwages was to be decided by the Disciplinary Authority after
conclusion of the inquiry and now the Disciplinary Authority has inflicted the punishment.
The inquiry report makes it very clear that based upon the preliminary inquiry report, the disciplinary authority has held the charges established and the
right of cross examination has been denied to the delinquent Government. There is violation of principle of natural justice and fair play. The findings of
the disciplinary authority in respect of denial of right to cross examinations are certainly a denial of natural justice and fair play. Charges could not
have been proved on the basis of preliminary enquriy report alone and in all fairness witnesses who were examined during preliminary enquiry should
have been called before the regular inquiry and in case they were not available, other witnesses in support of the alleged misconduct should have been
examined during regular inquiry and the same has not been done.
In light of the aforesaid, the respondents have certainly violated the principle of natural justice and fair play. The net result is that the impugned order
passed by the respondents dated 07-02- 2014 and the order passed by the appellate authority dated 29-05-2014 are hereby quashed as this court has
quashed the punishment orders, the petitioner is certainly entitled for backwages.
Resultantly, the writ petition stands allowed. The respondents are directed to grant back wages to the petitioner within a period of three months from
the date of receipt of certified copy of this order. The respondents are also directed to comply the remaining part of the judgment delivered in Writ
Appeal No. 200/2012 dated 08-03-2013, within a period of six months from the date of receipt of certified copy of this corder.
With the aforesaid the writ petition stands allowed.
During the course of arguments no material has been produced by the appellant/State to point out to this Court that during departmental enquiry,
opportunity of cross examination of the witnesses have been given to the respondent/delinquent.
Considering the aforesaid so also the reason assigned by the learned writ Court, we are of the considered view that learned writ Court did not commit
any error in passing the impugned order. No case is made out to interfere with the impunged order. Accordingly, the writ petition being devoid of merit
is hereby dismissed.
