JUDGMENT
A.S. Oka, J.
1. In this petition rule was issued on 15th December, 2003 and ad interim relief was granted. On 6th February, 2004 the petition came up before me for hearing as to interim relief. While arguing the matter on grant of interim relief, the Counsel appearing for the parties agreed that considering the time required for hearing on question of granting interim relief, the petition itself should be heard and finally decided. Accordingly the writ petition was finally heard on subsequent dates. The hearing was concluded on 17th February, 2004 and the Judgment was reserved.
2. The petitioner No. 1 was employed by the Maharashtra State Road Transport Corporation (hereinafter referred to as “the said Corporation”) as a Conductor. On 28th August, 1994 the petitioner No. 1 was on duty. The bus in which the petitioner No, 1 was doing his duty was checked at Yeoda by the Checking Squad of the said Corporation. The Checking Officer found that the Way Bill of the petitioner No. 1 was not properly filled and hence, statement of the petitioner was recorded and the Way Bill was seized. On the spot a new Way Bill was given to the petitioner No. 1 and was closed as per the tickets in the ticket tray of the petitioner No. 1. Charge-sheet was served on the petitioner No. 1. It was alleged that the petitioner No. 1 was guilty of commuting misconduct covered by Item No. 7(e)’. 7[h) and 12 of the Schedule ‘A’ of the Discipline and Appeal Procedure (hereinafter referred to as “the said Procedure”) of the said Corporation. An enquiry was conducted and the enquiry officer submitted report. On the basis of the said report of the enquiry, a show cause notice dated 24th May, 1995 was issued by the respondent No. 1 to the petitioner No. 1 calling upon the petitioner No. 1 to show cause as to why the petitioner No. 1 should not be dismissed from employment. The petitioner No. 1 was called upon to submit his reply within a period of 72 hours. On 25th May, 1995, the petitioner No. 1, submitted a letter to the respondent No. 1, requesting him to grant further time of 48 hours for submitting the reply. In the said letter the petitioner No. 1 requested the respondent No. 1 to again record evidence of the Depot Manager and Accountant. The petitioner No. 1 prayed for inspection of the record of the Disciplinary Proceedings as he had appointed a new co-worker. The petitioner stated in the said application that he was desirous of examining the Driver as a witness. It appears that on 28th May, 1995 the petitioners filed complaint before the learned Judge of the Labour Court, Akola under Section 28 read with Section 7 as well as Item 1 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as “the said Act of 1971”). In the said complaint the petitioners contended that the enquiry conducted by the enquiry officer is vitiated by various reasons. In the said complaint the petitioner made an application for interim relief under Section 30(2) of the said Act, of 1971. The petitioners prayed in the said application that operation of notice dated 24th May, 1995 should be stayed.
3. The learned Judge of the Labour Court vide Judgment and Order dated 24th October, 2002 allowed the said application and granted interim relief in favour of the petitioner No. 1. The said order of the learned Judge of the Labour Court was challenged by the said Corporation by filing a revision application under Section 44 of the said Act of 1971 before the learned Member of the Industrial Court at Akola. By the Judgment and Order dated 20th October, 2003 the learned member of the Industrial Court, Akola allowed the revision application and the interim order passed by the learned Labour Court was set aside. On the same day the learned Member stayed his own order for a period of one month. This Court on 4th December, 2003 continued the said stay granted by the learned Member of the Industrial Court and thereafter at the stage of issuing rule the order of stay was continued as ad-interim relief, which is operative till today.
4. The learned Counsel for the petitioners contended that the learned Judge of the Labour Court after examining the merits of the matter recorded prima facie finding that the petitioner No. 1 was not given proper and full opportunity to defend. The learned Counsel further contended that in view of the said finding interim relief was granted. It was further submitted that in limited jurisdiction under Section 44 of the said Act of 1971, the Industrial Court ought not to have interfered. The learned Counsel further contended that no cogent reasons were assigned by the learned member of the Industrial Court for setting aside the order of the learned Labour Court. The learned Counsel submitted that the Way Bill and concise Way Bill Statement were seized from the Depot without panchanama and it is not made clear whether there was overwriting on the Way Bill when the same was seized from the Depot. The learned Counsel for the petitioners submitted that admittedly entries made in the concerned Way Bill Statement were correct. The learned Counsel therefore, submitted that the petitioner No. 1 cannot be held guilty for what was done in the Way Bill by the Checking Squad of the Corporation with a view to victimize the petitioner No. 1. The learned Counsel further contended that after show cause notice was served upon the petitioner No. 1, a request was made to the respondent No. 1 to grant an opportunity to the petitioner No. 1 to lead evidence. The learned Counsel relying upon Sub-rule Nos. (f) and (k) of Rule 5 of the said procedure contended that the petitioner No. 1 had a right to lead evidence even after show cause notice was given to the petitioner No. 1 on the basis of the report of the enquiry officer. The learned Counsel submitted that on plain reading of the said sub-rules, the petitioner No, 1 has a right to lead evidence and therefore, the learned Judge of the Labour Court was right when primafacie finding was recorded that no opportunity was given to the petitioner No. 1 to defend. The learned Counsel, therefore, submitted that the learned Member of the Industrial Court ought not to have disturbed the findings recorded by the learned Judge of the Labour Court. The learned Counsel for the petitioners submitted that the interim relief is operating in favour of the petitioner from 24th October, 2002 and if the said relief is vacated the complaint itself will become infructuous.
5. The learned Counsel appearing for the said Corporation contended that unless a finding of existence of strong prima-facie case was recorded, the petitioner No. 1 was not entitled to any interim relief. The learned Counsel further submitted that the petitioner No. 1 had an opportunity to lead evidence before the enquiry officer and after the enquiry officer submitted his report, the rules in the said procedure do not permit the petitioner No. 1 to lead evidence after issuing show cause notice by the disciplinary authority on the basis of the report of enquiry. The learned Counsel for the said Corporation further submitted that the petitioner No. 1 was guilty of committing major misconduct and the guilt of the petitioner No. 1 is found to be conclusively established by the enquiry officer. He therefore, submitted that the petitioners were not entitled to any interim relief in the complaint.
6. I have carefully considered the submissions made by the Counsel appearing for the parties. The complaint filed by the petitioner No. 1 was for challenging the intended or threatened action of termination of the employment of the petitioner No. 1. The relief prayed for by the petitioners was for intercepting the disciplinary proceedings. The Apex Court in Judgment Hindustan Lever Limited v. Ashok Vishnu Kate and Ors. has considered the scope of such complaint. Such a complaint is held to be maintainable. However, in the said Judgment, the Apex Court has struck a note of caution. The Apex Court has held that considering the fact that an employer has right to take disciplinary action and to hold domestic enquiry against the erring employee, the Labour Court dealing with the complaint should not lightly to interfere with the pending domestic enquiry against the complainant concerned. The Apex Court held that, only when a very strong prima facie case is made out by the complainant, an appropriate interim orders intercepting such domestic enquiry can be passed by the Labour Court. It is held that such orders should not be passed for mere askance by the Labour Courts, otherwise the very purpose of holding domestic enquiries would get frustrated.
7. In the present case the learned Judge of the Labour Court has stated that a strong prima fade case has been made out. However, the said finding is based on the contention that the petitioner No. 1 made an application seeking permission to lead evidence after show cause notice was issued and the said application was not considered. The learned Judge has not really appreciated that there is a distinction between very strong prima facie case and mere existence of a prima. facie case. It is pertinent to note that the learned Judge of the Labour Court granted interim relief only on the ground that the application made by the petitioner No. 1 for seeking permission to lead evidence was not considered and therefore, proper and full opportunity to defend was not granted to the petitioner No. 1.
8. The submissions made by the learned Counsel for the petitioners on Sub-rules (f) and (k) of Rule 5 of the said Procedure will have to be considered. Sub-rule (f) and Sub-rule (k) of Rule 5 cannot be considered in isolation and the entire scheme of the rule will have to be examined. The learned Counsel for the said Corporation has placed on record a copy of the Procedure. As per Sub-rule (b) of Rule 5, an employee against whom action is proposed to be taken for any act of misconduct is required to be served with a copy of charge-sheet as well as a statement of allegations. Alongwith charge-sheet and statement, an employee is required to be supplied copies of all the documents which may be relied upon in the enquiry. If for any reason it is not possible to supply copies of the documents to the employee concerned, the reasons for non-supply are required to be recorded. Sub-rule (c) requires that time of 15 days should be granted to put in written statement of defence. Sub-rule (d) requires that an employee may be given an opportunity of making an oral statement, in addition to any written statement. For appreciating the submissions made by the learned Counsel for the petitioners, it is necessary to reproduce Sub-rules (f) to (1), which are as under :
(f) An employee charged may be allowed to produce any document in his/her defence at any stage of enquiry till reply to show cause notice is received, but before final decision is taken by competent authority. The enquiry officer/competent authority may admit relevant evidence, documentary or otherwise, provided by either side at any stage before the final orders are passed.
(g) Except for reasons to be recorded in writing by the competent authority/enquiry officer, as the case may be, holding the inquiry, the employee or his/her representative as provided in Sub-clause (i) of Clause 5(h) below for defending his case, shall be entitled to produce witnesses in his/her defence and cross examine any witnesses on whose evidence the charge rests. The oral evidence so tenders shall be recorded.
(h) The evidence of such witness will be recorded in English or Marathi. After the evidence of a witness is completed, it shall be read over to him/ her and, if necessary, explained to him/her in the language in which it was given. It shall be corrected, if necessary, and then signed by the enquiry officer. If the witness denies the correctness of any part of the evidence when the same is read over to him, the enquiry officer may, instead of correcting the evidence, make a memorandum of the objection taken to it by the witness and may add such remarks she/he thinks necessary. If the evidence is given in English and if the person charged is not familiar with that language, it shall be read out and explained in the language which he/ she knows. The employee charged may be allowed to take copies of the statement.
(i) The employee charged shall be entitled to be so represented by a fellow employee to help him/her to defend his/her case :
Provided that in the case of workman, the workmen charged and….
(a) Any other workman of his/her choice; working in the same unit i.e. Divisional/Central Workshops, Regional Office/Central Office etc., where the person charged is posted provided that he/she will not be treated as on duty.
Or
The office-bearer of the union of which he/she is a member shall have the right to be present at such inquiry and such workman, workman of his choice or member of the union shall be entitled to represent his/her case or the case of the workman, as the case may be, at the enquiry.
(“Workman” in Clause 5(i) above means an employee covered by the Industrial Employment (Standing Order) Act, 1946).
(j) 1. The expenses of witnesses called to give evidence against the employee charged shall be borne by the Administration and the expenses of witnesses called by, or at. the instance of, the employee charged shall be borne by him/her :
Provided that the Administrative may bear the whole or part of the cost on account of the witnesses called or at the instance, of the employee charged, if the employee charged is completely exonerated and the competent authority so recommends.
2. The competent authority/enquiry officer shall not normally grant more than three adjournments. Any further adjournments may be granted at the sole discretion of the competent authority/enquiry officer.
(k) After completing the enquiry and giving the employee charged a further opportunity of making a written or oral statement, if desired by the employee charged, the enquiry officer shall record his/her findings on such charges and the reasons for such findings.
(l) The competent authority on the basis of its own findings or on those of the enquiry officer, if any. appointed as provided under Clause 18, will pass such orders as he/she may deem fit provided that before the competent authority passes the final order imposing the penalty of dismissal, removal or reduction, the employee concerned shall be supplied with a copy of the findings of the competent authority or of those of the enquiry officer, as the case may be, and given a notice to show cause why the penalty should not be imposed :
Provided further that, when disciplinary action is contemplated to be taken against a Government servant having a lien in a Government Department and who is on deputation to the Corporation, such Government servant shall be reverted to his parent department for taking appropriate action against him under the Bombay Civil Services Rules.
Plain reading of the sub-rules show that Sub-rules (f) and (k) apply to the procedure of enquiry conducted by either the enquiry officer or the competent authority. Sub-rule (f) cannot be read in isolation. If Sub-rule (f) is read with Sub-rule (g) and (h) it is very clear that what Rule (f) contemplates is an opportunity to produce any document which is to be granted till final decision is taken by the enquiry officer/competent authority. If Sub-rules (g) to (k) are perused, it is very clear that reference to the final decision in Sub-rule (f) is to the findings on charges and the reasons for such findings to be recorded by the enquiry officer as contemplated by the Sub-rule (k). Sub-rule (g) provides that the competent authority/enquiry officer holding enquiry is required to allow the employee or/his representative to produce witnesses in his/her defence and to cross-examine any witness on whose evidence the charge rests. Reading of Sub-rule (g) shows that the enquiry may be conducted either by the competent authority or by the enquiry officer. Sub-rule (h) deals with the manner in which the evidence shall be recorded. Sub-rule (i) deals with entitlement of the employee to be represented by a fellow employee to help him to defend his case. Sub-rule (]) deals with expenses of witnesses and authority to grant adjournment. Sub-rule (k) provides that after completion of the enquiry and after giving employee charged a further opportunity of making a oral or written statement, if desired by the employee charged, the enquiry officer shall record his/her findings on such charges and the reasons for such findings. Rule (1) empowers the competent authority on the basis of its own findings or on those of enquiry officer to pass such orders as he/she may deem fit. However, if final order imposing penalty of dismissal, removal or reduction is to lie passed, the employee concerned is required to be supplied with copy of finding of the competent authority or of the enquiry officer as the case may be and a notice to show cause why penalty should not be imposed is required to be given to such employee.
9. The language used in Sub-rule (g) and Sub-rule (1) indicates that an enquiry may be made either by the competent authority or by an enquiry officer appointed under Rule 18. Rule 18 provides that as a general rule, the appointing authority or any authority higher than the appointing authority is competent to initiate departmental proceedings and to hold enquiry against the employee concerned and to award punishment. The said rule further provides that the appointing authority or any higher authority than the appointing authority or the competent authority prescribed in Clause 19 may appoint enquiry officer to conduct the enquiry and on the recommendations of the enquiry officer. Appointing authority or the higher authority than the appointing authority or the competent authority prescribed in Rule 19 may award punishment. Therefore, considering the said procedure, in a given case, the competent authority may itself act as an enquiry officer and may issue show cause notice on the basis of his own findings arrived at in his capacity as enquiry officer. Therefore, merely because there is a reference in Sub-rule (f) to the competent authority, it cannot be argued that when the competent authority itself holds an enquiry and records its findings and gives show cause notice as contemplated by Sub-rule (1), the competent authority must give an opportunity to the employee to lead evidence or to once again record evidence of the witnesses already examined in the enquiry. Harmonious reading of various sub-rules in Rule 5 clearly show that an employee has an opportunity of leading oral and documentary evidence only till the competent authority/enquiry officer records his findings on charges as required under Sub-rule (k). Once the show cause notice as contemplated by Sub-rule (1) is given by the competent authority after accepting the findings in the enquiry, only right which employee can get is to give a reply to the show cause notice. Before awarding penalty/ punishment the said reply has to be considered.
10. The Apex Court had occasion to consider the provisions of Article 311 of the Constitution of India in a Judgment in State of Assam and Anr. v. Bimal Kumar Pandit . in paragraph No. 6 of the judgment, the Apex Court has considered the scheme of Article 311. The Apex Court held that a Public Officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities before the disciplinary action is finally taken against him. The first opportunity is in the enquiry. At the enquiry, the Public Officer concerned is entitled to test the evidence adduced against him by cross-examination, where necessary and to lead his own evidence. The Apex Court further held that at this first stage of the proceedings, he is entitled to have an opportunity to defend himself. The Apex Court further held that after the enquiry is over the enquiry officer has to submit his report. Thereafter the dismissing authority/disciplinary authority has to consider the report and decide whether it agrees with conclusions in the report or not. If the findings in the report is against the Public Officer and if the dismissing authority agrees with the said finding, the stage is reached for giving another opportunity to the Public Officer to show why disciplinary action should not be taken against him. Before issuing second notice, the dismissing authority naturally has to come to interim or provisional conclusion about the guilt of the Public Officer as well as about punishment which would meet the requirement of justice. The Apex Court held that in response to such notice, the Public Officer is entitled to show cause not only against the action proposed to be taken against him but also against the validity or correctness of the findings recorded by the enquiry officer and provisionally accepted by the dismissing authority.
11. As in case of Article 311, the procedure prescribed by the said Corporation also provides for giving opportunity of being heard to an employee at two stages before the disciplinary action is finally taken. As indicated earlier in the first opportunity is before the enquiry officer. The employee can cross-examine the witnesses examined in support of the charge and can lead his own evidence and examine his witnesses. Thereafter the enquiry officer/competent authority is required to record his findings and reasons for the findings. If the competent authority which is empowered to inflict penalty agrees with the findings recorded in the enquiry, a show cause notice has to be given to the employee calling upon him to show cause as to why penalty specified in the said notice should not be imposed. At this second stage the employee can give reply to the show cause notice. He can give reply not only against the action proposed to be taken against him but also against the validity or correctness of the findings recorded by the enquiry officer. Thus, after the show cause notice is given on the basis of the findings in the enquiry, the opportunity to be given to I he employee is confined to giving reply against the proposed action as well as against the findings or validity in the enquiry. At this stage, there is no scope for the employee to request the competent authority to permit him to lead evidence. Merely because in a given case the competent authority and an enquiry officer is the same person, the employee cannot pray that evidence be recorded. The scope of opportunity to be given to the employee in the two stages of disciplinary proceedings is totally different. Therefore, in view of the provisions of the Discipline and Appeal Procedure an employee is not entitled to seek an opportunity to lead evidence as a matter of right after the show cause notice as contemplated by Sub-rule (1) is given.
12. In the circumstances, no fault can be found if after the petitioner No. 1 was served with show cause notice dated 24th May, 1995 an opportunity was not given to the employee to lead further evidence. It is not the case of the petitioner No. 1 that opportunity to lead evidence was not given to him during the course of enquiry. Merely because the petitioner No. 1 changed his representative after enquiry was concluded, the petitioner No. 1 cannot seek a fresh opportunity to lead evidence. Therefore, in my opinion, there is no substance in the contentions raised by the learned Counsel for the petitioners that proper opportunity of defending was not given to the petitioners.
13. Perusal of the report of the enquiry shows that the charges of major misconduct have been conclusively established against the petitioner No. 1. One of the allegations against the petitioner No. 1 is of misappropriation. The allegations are held to be established by the enquiry officer on the basis of evidence on record. The learned Judge of the Labour Court had come to erroneous conclusion as regards the existence of strong prima facie case.
14. The learned Counsel for the petitioners submitted that if interim relief is not granted in the complaint filed for challenging the intended dismissal from service, the complaint will become infructuous. However, that cannot be the ground to grant interim relief in the face of law laid down by the Apex Court that no interim relief can be granted unless a strong prima facie case has been made out. In the present case, the learned member of the Industrial Court held that, the petitioners failed to establish that there was a strong prima-facie case. I find no reason to interfere with the Judgment and Order by the learned Member of the Industrial Court. I have come to the conclusion that the petitioners failed to prove existence of strong prima facie case.
Hence, the petition is rejected with no order as to costs. Rule is discharged. However, it will be open to the petitioner No. 1 to file reply to the show cause notice within a period of three weeks from today. The respondent will not pass final order for a period of three weeks from today on the basis of the show cause notice. The authority will independently consider the reply, if any, filed by the petitioner.
It is made clear that the observations made in paragraph No. 13 are made only for limited purpose of considering the prayer for grant of interim relief in the complaint.
Ad interim relief granted earlier stands vacated.