Swapan Kumar Mitra Vs South Bengal State Transport Corporation and Others

D. K. Seth, J.@mdashThis appeal is directed against the judgment and order dated 25th July, 2002 passed in Writ Petition No. 12213 (W) of 1997. The learned Single Judge was pleased to quash the order of removal passed after the conclusion of the enquiry with direction to furnish copies of the documents to the delinquent and after the reply being given, to pass a fresh order of punishment.

2. Mr. L. K. Gupta, learned Counsel for the appellant, points out that the documents on which reliance was placed by the Enquiry Officer and the Disciplinary Authority were not disclosed in the list of documents annexed with the chargesheet. The second ground was that on the self-same allegation, a criminal proceeding was initiated against the delinquent. This proceeding has ended in acquittal. Relying on the decision in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , he contends that the disciplinary proceeding ought to be quashed. Relying on the decision in Kesoram Cotton Mills Ltd. Vs. Gangadhar and Others, , he points out that unless at least two days'' time is given before the enquiry begins, the document cannot be relied upon in the disciplinary proceedings. Relying on the decision in Kuldeep Singh Vs. The Commissioner of Police and Others, , he points out that unless a document is relied upon in the chargesheet, the same cannot be used in the proceedings. He further contended that non-supply of document is fatal to disciplinary proceedings relying on the decision in the case of Pepsu Road Transport Corporation v. Lachhman Dass Gupta and Anr., : (2001)9SCC523 . He had drawn our attention to various materials from the Paper Book to substantiate his contention. We will refer to those materials at appropriate stages.

3. Mr. Bera, learned Counsel for the respondents, on the other hand, had contended that those documents were produced in course of enquiry and the petitioner was given inspection thereof and he never asked for any time. On the other hand, he had raised no objection and had made his submission on the basis of those documents. Therefore, this question would not be fatal. In support, he relied on the decision in Debotosh Pal Choudhary Vs. Punjab National Bank and Others, . Relying on the decision in High Court of Judicature at High Court of Judicature at Bombay through ite Registrar Vs. Udaysingh Nimbalkar and Others, , he contends that the standard of proof in domestic enquiry is different from the criminal proceedings before a Court, in order to distinguish the decision in Captain M. Paul Anthony (supra). He also relied on the decision in State of Haryana Vs. Balwant Singh, , for distinguishing the said decision the ratio decided therein vis-a-vis the present case. According to him, in the present case, the charges are different, the witnesses and the documents relied upon are also different from those relied upon in the criminal case. According to him, there were further materials on which reliance can be placed which, however, was not produced or relied upon before the Criminal Court.

4. Mr. Gupta in reply had contended that the learned Trial Judge had directed continuation of the suspension though there was no fresh order of suspension after the acquittal from the criminal case. He relied on Regulation 35 of the Employees'' Service Regulation now re-christen as South Bengal State Transport Corporation Employees'' Service Regulations, According to him, the order of suspension was issued only on the ground of his detention. Therefore, after the acquittal, unless a fresh order of suspension is issued or a decision to continue the order of suspension is taken, the suspension cannot be continued.

5. We have heard the learned Counsel for the respective parties at length. From the finding of the Enquiry Officer, it appears that much reliance has been placed on the report of the District Magistrate conducted pursuant to an order contained in G.O. No. 3966-VT dated 27th April, 1994. But this report was never disclosed in the list of documents appended to the chargesheet. Mr. Gupta had pointed out from page 49 of the Paper Book being the enquiry proceedings that this report of the District Magistrate was produced on 19th April, 1997. It is mentioned therein that a xerox copy of the report was sent to the authority on 17th November, 1995. It does not appear that the original report was placed. But reliance was placed on this report which, in fact, was a xerox copy of the alleged report and that too was produced at the fag-end of the disciplinary proceeding. It further appears that after the report was produced, no opportunity was given to the delinquent except giving him an inspection. There is nothing to show that he was asked to submit his defence after the report was read by him. On the other hand, in the enquiry report, he mentions that the delinquent was allowed to examine the report before he submitted his defence deposition. But it was in the course of the same proceedings and on the same day, namely, on 19th April, 1997 when he was asked to depose.

6. In the decision in Kesoram Cotton Mills (supra) (paragraph 15), it was held that in an enquiry a document has to be disclosed giving sufficient opportunity to the delinquent, otherwise it would be a mockery and violative of the principles of natural justice and equity. It is further pointed out that the Court expects where witnesses are not examined form the very beginning of the enquiry in the presence of the person charged, the person charged should be given a copy which are to be used in the enquiry before the enquiry begins and the copy of the statement be made available well in advance, at least two days before the enquiry is to begin. We may beneficially quote the observation made by the Apex Court in paragraph 15 of the judgment:

"15. It is urged on behalf of the appellant that rules of natural justice are the same whether they apply to inquiries under Article 311 or to domestic inquiries by managements relating to misconduct by workmen. It may be accepted that rules of natural justice do not change from Tribunal to Tribunal. Even so the purpose of rules of natural justice is to safeguard the position of the person against whom an inquiry is being conducted so that he is able to meet the charge laid against him properly. Therefore, the nature of the inquiry and status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice. Where, for example, lawyers are permitted before a Tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient : (see New Prakash Transport Co. Ltd. Vs. New Suwarna Transport Co. Ltd., , but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker. Further we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of labour union may not be present to defend them. In such a case to read over a prepared statement, in a few minutes and then ask the workmen to cross-examine would make a mockery of the opportunity that the rules of natural justice, require that the workmen should have to defend themselves. It seems to us therefore that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the witnesses from the beginning to the end in the presence of the workman at the inquiry itself. Oral examination always takes much longer than a mere reading of a prepared statement of the same length and brings home the evidence more dearly to the person against whom the inquiry is being held. Generally speaking therefore we should expect a domestic inquiry by the management to be of this kind. Even so, we recognize the force of the argument on behalf of the appellant that the main principles of natural justice cannot change from Tribunal to Tribunal and therefore it may be possible to have another method of conducting a domestic inquiry (though we again repeat that this should not be the rule but the exception) and that is in the manner laid down in State of Mysore Vs. S.S. Makapur, . The minimum that we shall expect where witnesses are not examined from the very beginning at the inquiry in the presence of the person charged is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the copy of the statements should be given well in advance we mean that it should be given at least two days before the inquiry is to begin, if this is not done and yet the witnesses are not examined-in-chief fully at the inquiry, we do not think that it can be said that principles of natural justice which provide that the person charged should have an adequate opportunity of defending himself are complied with in the case of a domestic inquiry in an industrial matter. In the present case, all that had happened was that the prepared statements were read over to the workmen charged and they were asked then and there to cross-examine the witnesses. They were naturally unable to do so and in the circumstances we agree with the Tribunal--though for different reasons--that the inquiry did not comply with the principles of natural justice. The order of the Tribunal therefore, holding that the inquiries were vitiated by disregard of rules of natural justice is correct. We may add however that in spite of the above finding the Tribunal permitted termination of the service of four of these five workmen and reinstated only one. We shall deal with this aspect of the matter further when considering the appeal of the workmen."

7. In Kuldeep Singh (supra), the Apex Court had observed in paragraph 39 that document if not mentioned in the chargesheet, the same cannot be considered in course of the enquiry. In Pepsu Road Transport Corporation (supra), the principle of audi alteram partem was considered and it was held that no reasonable opportunity can be held to have been afforded to the delinquent when the documents relied upon in the enquiry by the Enquiry Officer has not been supplied and decision results in denial of reasonable opportunity vitiate the order of punishment.

8. On the other hand, Mr. Bera had relied on the decision in Debotosh Pal Choudhury (supra) where in similar circumstances, it was held that the documents can be used in an enquiry where copy is not supplied. But that decision is distinguishable. Inasmuch as there the document was included in the list of documents mentioned in the chargesheet, but a copy of the same was not furnished. In such circumstances, it was held that giving of document would satisfy the norms of reasonable opportunity. Therefore, this decision does not help Mr. Bera. In this case, we find that this document was produced for the first time on 19th April, 1997 in course of disciplinary proceeding. This document had no reference in the chargesheet neither this was included in the list of documents. Thus, it had sprung surprise on the delinquent who got only an opportunity to read the document and make his submission on the same day. This will not satisfy the test of opportunity necessary to save the proceedings from being held vitiated.

9. Whether the delinquent asked for opportunity or not is immaterial. Inasmuch as unless a document is relied upon in the chargesheet and included in the list in terms of Regulation 38(2), the same cannot be used unless sufficient opportunity is given and leave is obtained for relying upon the same. Regulation 38(2) prescribes that along with the chargesheet, a list of documents and a list of witnesses by whom the articles of charges are proposed to be sustained are to be furnished. But that was not complied with. In our view, it is fatal. That apart, this document is a report of the District Magistrate. The District Magistrate was not examined. No one has proved the said document. It was only on the basis of the report of the District Magistrate the finding was arrived at. None of the witnesses alleged to have been examined by the District Magistrate in his report is witness in the disciplinary proceeding. No one is taking the responsibility of the alleged statements relied upon by the District Magistrate. No one has authenticated the statements alleged to have been mentioned in the report of the District Magistrate. Therefore, this report even if produced, could not be relied upon when it is not at all included in the list of documents and there was no opportunity to the delinquent to cross-examine anyone supporting the said document apart from its being inadmissible on the ground of absence of proof or establishment of authenticity and being a xerox copy and not being an original report. Therefore, placing of reliance on this document is wholly illegal and void leading to a perversity.

10. In the order of removal, the disciplinary authority has relied upon a final report by the Motor Vehicles Inspector. This report was never disclosed in the course of the proceedings nor it was even intended to be relied upon by the disciplinary authority neither it was mentioned or included in the list of documents appended to the chargesheet. There is nothing on record to show that this was relied upon by the disciplinary authority in course of the proceedings, or that the delinquent was confronted by this document, or that he was ever shown or informed of the same. This document does not seem to be a part of the proceedings. This indicates the extent of bias on the part of the disciplinary authority.

11. The charges were of rash and negligent driving resulting in loss of lives and property. The chargesheet was drawn up on the basis of the First Information Report (FIR) (at page 34) which does not mention about rash and negligent driving. Mr. Gupta has drawn our attention to the facts and circumstances of the present case leading to the FIR. The Depot Manager has not said anything about rash and negligent driving in his evidence. He has admitted that such accident can occur due to technical defect or fault. From page 45, it appears that the Depot Manager while deposing, has not specifically stated that there was no defect in the steering. On the other hand, he had pointed out that it cannot be understood on the apparent position of the vehicle but, however, the two tyres were included towards left. He also contended that he could not remember whether the steering was repaired or not. The Conductor of the bus was also examined. He also could not enlighten as to whether the accident occurred due to technical defect. On the other hand, he pointed out that the bus was moving at normal speed.

12. Mr. Bera had pointed out that in the report of the District Magistrate, it was mentioned that the driver has made a statement that he was driving the bus at a speed of 35 K.M. per hour whereas the normal speed on the barrage was 30 K.M. per hour. That statement was not produced in the proceedings. He was not confronted with that statement. The alleged statement has not been proved. On the other hand, in the reply, the delinquent said that the bus was moving at a speed of 30 K.M. per hour (page 35 of the Paper Book). Therefore, there is no ingredient except the statement of one constable, who deposed in the criminal case. But this constable was not examined in the disciplinary proceeding. Thus, there is no material to hold that the bus was running at a high speed. On the other hand, at page 51 of the Paper Book the delinquent himself has stated that when he had turned left to avoid a truck on the barrage, the steering was locked and he could not make the vehicle straight and that he had applied break since there was heavy rain, the vehicle skidded and there was a slip.

13. Thus, it appears that the finding of the Enquiry, Officer was wholly perverse. Therefore, no utility can be served even if the copies of those documents, namely, the report of the District Magistrate or the report of the Motor Vehicles Inspector, are furnished to the delinquent. None of these documents can be relied upon in view of the discussion made above.

14. Having regard to the ratio decided in Captain M. Paul Anthony (supra), we are of the view that in this case charge was identical--rash and negligent driving. Though there may be different witnesses and different materials, still then, the principles laid down in Captain M. Paul Anthony (supra) cannot be avoided. Inasmuch as the document sought to be relied upon having been held to be non est, cannot be said that there was any fresh material. At the same time, the witnesses examined in the proceeding may be different from those examined in the criminal proceeding, but none of these witnesses had made any statement which could improve upon the prosecution case disbelieved by the Court. However, even before the Court there was one constable, who had deposed that the bus was moving at a high speed, There was no such evidence in the disciplinary proceedings. Therefore, the question of application of principle of Captain M. Paul Anthony (supra) is no more relevant and we refrain from making any observation with regard thereto. However, Mr. Bera relied upon the case of High Court of Judicature at Bombay v. Udaysingh (supra). The principle laid down therein is an accepted proposition of law and there is no quarrel with the same in the present case, we have already found that there is no material to come to the conclusion that had been arrived at by the Enquiry Officer. On the basis of the materials, such a conclusion could not be arrived at by any reasonable man. The finding is wholly perverse.

15. In the result, the appeal succeeds and is allowed. The decision of the learned Single Judge so far as it directs furnishing of copies of the document and passing of fresh order, is hereby set aside. The writ petition stands allowed. The order removing the petitioner is hereby quashed. The petitioner shall be deemed to be under suspension till the date of criminal case was finally disposed of, namely, till the criminal revision was decided. The petitioner shall be reinstated in his service and shall be entitled to full wages from the date of disposal of the criminal revision against the acquittal and suspension allowance till the date of disposal of the criminal revision. The payment of arrears is to be made to the petitioner within a period of six months from the date of communication of this order. The petitioner shall be reinstated in his service within a period of three months from date. He will be entitled to current pay from the date he joins together with all service benefits including increments etc., as if he were in service for the entire period excepting the period spent under suspension. on account of the criminal proceeding in which he was acquitted in absence of evidence. The chargesheet and finding of the disciplinary proceedings is hereby quashed and the petitioner shall be deemed to be in service throughout subject to above observation.

16. There will be no order as to costs.

Rajendra Nath Sinha, J.

17. I agree.