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Bombay High Court
Ravindra R. Tondulkar vs Municipal Corporation Of Greater … on 28 August, 2000
Equivalent citations: 2001 (1) BomCR 744, 2001 (88) FLR 65
Author: D.Y. Chandrachud
Bench: D Chandrachud


JUDGMENT

D.Y. Chandrachud, J

1. Rule, returnable forthwith. Respondents waive service. By consent. Petition taken up for final hearing.

2. The petitioner has been employed with the first respondent since 1979. By this writ petition under Article 226, the petitioner seeks to impugn the findings which have been arrived at in the course of Departmental Enquiry and the order of penalty which has been passed in pursuance thereof. At the material time, the petitioner was working as Store Attendant in the Common Service Department of Godown No. 5-B of the first respondent at Bhandup, Mumbai. The Departmental Enquiry came to be initiated in the present case by a chargesheet dated 24th October, 1996 in respect of certain events which were alleged to have occured almost 10 years earlier, in 1986. In 1986, the petitioner was a Store Attendant at the aforesaid godown of the Municipal Corporation. On 24th October, 1996, as stated above, a chargesheet came to be issued against the petitioner whereby the following allegations came to be levelled against him.

“While working at 5-B, Bhandup Complex, during the period from 23-8-1986 to 26-9-1986, it was your duty to check the cement loaded in lorry and quote the number on transport challans and show the same to your superiors. However, you had accepted 179.3 M.T. cement quota solely against the 21 challans as shown against your name and also failed to hand over the charge of such cement received to Store Supervisor and failed to obtain the signature of the concerned Store Supervisor on the respective challans for having handed over the stock of cement to the supervisor concerned. Therefore, 30. 5 M.T. cement was received short and loss of Rs. 41, 469. 53 to the Municipal Corporation.

The above act amounts to negligence of duties on your part.”

The petitioner was given an opportunity to file his reply and, his attention was drawn to the fact that if the charges were held to be proved, he would be subject to anyone of the five punishments including (i) censure, (ii) fine, (iii) suspension, (iv) recovery from the pay of pecuniary loss, and (v) withholding of increments. Together with the petitioner, various other members of the staff of the Municipal Corporation came to be charge-sheeted. In fact, a fullfledged Departmental Enquiry had been ordered to be held against the Store Supervisors Shri B.R. Karkhanis and Shri B.G. Kulkarni of the Municipal Corporation. As against the petitioner and 4 other employees, a Departmental Enquiry under what is termed as a “summary procedure” came to be held. The manner in which the enquiry under the “summary procedure” was held will be of some significance to the outcome of the present proceedings. The manner in which, according to the Enquiry Officer, the summary Departmental Enquiry was liable to be held, is adverted to in the enquiry report itself. At page 38 of the paper book, the observations of the Enquiry Officer in this regard are as follows :—

“This being a Departmental Enquiry held under summary procedure, no oral evidence on behalf of the Corporation was required to be led and hence was not led. However the copies of below mentioned statement of evidence recorded during P.E. were furnished to the delinquents along with the chargesheet so as to enable them to give reply to the charge levelled against them. The documentary evidence as mentioned above in respect of Shri B.R. Karkhanis then Store Supervisor was also shown and some of the copies of it as per their request were given to them during the course of enquiry proceedings.”

3. The Enquiry Officer has, with reference to each one of the officers who was sought to be proceeded against, recorded the gist of the evidence which was sought to be relied upon. The procedure which was followed during the course of the Departmental Enquiry was that no oral evidence was led on behalf of the Municipal Corporation. However, statements which were made during the preliminary enquiry were relied upon during the course of the Departmental Enquiry. The Enquiry Officer in so far as these witnesses are concerned, did not consider it appropriate to allow to the petitioner an opportunity to cross examine the witnesses. He appears to have proceeded on this basis in view of the fact that what was being held was “a summary Departmental Enquiry”. In so far as the petitioner is concerned, the evidence which was sought to be relied upon thus consisted of the statements which were made in the preliminary enquiry without reference to any opportunity of a cross-examination. Upon the conclusion of the enquiry, the Enquiry Officer came to the conclusion that in so far as the petitioner was concerned, he had put in 16 years of service in the Municipal Corporation and his past record was unblemished. The Enquiry Officer, however, held that the charge against the petitioner was proved and the Enquiry Officer accordingly recommended that the increment of the petitioner be withheld for one year without permanent effect and an amount of Rs. 8,293.80 be recovered from his monthly wages towards his share for loss of cement. There is, it must be mentioned, no allegation of misappropriation or of moral turpitude against the petitioner.

4. The findings and the recommendations of the Enquiry Officer together with the enquiry papers were thereafter placed by the Deputy Chief Officer (enquiry) for consideration by the Deputy Municipal Commissioner (S.E.). The note by which the papers were forwarded, however, contained an endorsement to the effect that (page 70) “Documentary evidence being bulky is retained in this office”. The Disciplinary Authority, in this case the Deputy Municipal Commissioner (S.E.), held that the “findings and the recommendations of the Enquiry Officer are seen and accepted.” On the basis thereof, an order came to be served on the petitioner (Exhibit-D) by which he was informed that the Deputy Municipal Commissioner (S.E.) had held that the charge levelled against him was proved that the petitioner be punished by withholding his next increment for one year without permanent effect and that an amount of Rs. 8,293.80 be recovered from his monthly wages.

5. The petitioner, being aggrieved by the findings which were arrived at in the Departmental Enquiry and the penalty which had been imposed on him, thereafter filed an appeal on 31st January, 1998 before the Municipal Commissioner. By a further communication dated 11th August, 1998 addressed to the Deputy Municipal Commissioner, the petitioner filed written submissions in pursuance of a hearing which had taken place in the appellate proceedings. The petitioner, inter alia, contended that (i) the enquiry which had been initiated in the year 1996 in respect of the events which had taken place in 1986, was belated and was liable to be quashed; (ii) the enquiry had been held in violation of the principles of natural justice and the petitioner had not been given any opportunity to cross-examine the witnesses; and (iii) the report of the Enquiry Officer was not based on facts but was entirely based on presumption. The petitioner also dealt with the merits of his challenge against the report of the Enquiry Officer.

6. By a memo dated 19th July, 1999, the Chief Engineer (C.S.) informed the petitioner that the Deputy Municipal Commissioner (Health) by his order dated 21st May, 1999 had dismissed the appeal preferred by the petitioner and had confirmed the penalty which had been imposed upon him. Aggrieved by the order passed by the appellate authority affirming the findings of misconduct and the penalty which had been imposed on the petitioner, the petitioner has filed these proceedings under Article 226 of the Constitution.

7. In assailing the findings which have been arrived at in the course of the Departmental Enquiry, Mr. Bharucha, learned Senior Counsel appearing on behalf of the petitioner, submitted that the findings of the Enquiry Officer in so far as the petitioner is concerned, are ex facie, those which no reasonable body of persons could have arrived at. The submission on merits will be dealt with by me subsequently. At the present stage, reference may be made to the submission that the Departmental Enquiry had been conducted in a manner which was in violation of the principles of natural justice. The learned Counsel submitted that the petitioner was not given an opportunity to cross-examine any of the witnesses whose evidence was sought to be relied upon by the Enquiry Officer supposedly on the basis that this was a summary Departmental Enquiry. Moreover after the Enquiry Officer submitted his report, the Disciplinary Authority did not apply its mind to the merits of the case and the noting of the Deputy Chief Officer itself shows that the documentary evidence which lay at the foundation of the charge was not submitted to the Disciplinary Authority on the ground that it was bulky. Moreover, before the Disciplinary Authority arrived at its conclusion in regard to the findings of misconduct and the penalty which had been imposed on the petitioner, no opportunity was given to the petitioner to show cause against the proposed finding or the penalty. This breach of principles of natural justice, it was contended, vitiated the enquiry.

8. In considering the tenability of the submissions which had been urged at the Bar, reference may be made to a compilation of the Municipal Corporation entitled “Manual of Departmental Enquiries”. This Manual contains a compilation of Office Circulars, Orders and Instructions for dealing with cases involving disciplinary matters. Paras 23, 24 and 25 of the Manual of Departmental Enquiries are material for the purposes of the present case and provide as follows :—

“23. Where preliminary investigations indicate that the Departmental Enquiry would result in major punishments like Dismissal, Removal or Reduction the procedure mentioned in paragraph No. 25 should be strictly followed.

24. In all other cases, the procedure should be such as will give reasonable opportunity to the Municipal Servant, that is to say, he should be informed in writing and also explained personally of the allegations or charges levelled against him and he should be given an opportunity to submit his explanation in the presence of another person. The explanation so given should be considered before the final order is passed.

25. The following are the main essentials to be observed in a Departmental Enquiry before an order of Dismissal, Removal or Reduction is passed upon —

a) he shall be informed in writing of the grounds on which it is proposed to take action against him;

b) these grounds shall be reduced to the form of a definite charge or charges and the same shall be communicated to him together with a statement of the allegations on which each charge is based and any other circumstances which it is proposed to consider in passing the final order shall also be communicated to the Municipal Servant concerned;

c) the person chargesheeted shall be required to submit written statement of defence within a reasonable time. He shall also state whether he desires to be heard in person.

d) if the Municipal Servant so desires an oral enquiry shall be held. At the oral enquiry, oral as well as documentary evidence shall be allowed to be led in respect of such of the allegations as are not admitted. The person charged shall be allowed to cross examine the witnesses, to give evidence in person and to have such witnesses called and such documents produced in his defence as he may wish, provided that the Enquiry Officer may for reasons to be recorded in writing refuse to call all or any of the witnesses so named or to have all or any of the documents produced. The oral evidence so recorded shall not be on oath.

e) the Enquiry Officer shall maintain a regular day-to-day record of the proceedings.

f) the proceedings of the Enquiry Officer shall contain a sufficient record of the evidence and a statement of the findings and the grounds therefor.”

Para 26 of the Manual of Departmental Enquiries is relevant, in that it provides that the procedure which has been laid down in para 25 need not be observed where the order of punishment is based on facts which have led to the conviction of the Municipal Servant in a Court of law or where an employee charged has absconded or where it is impracticable to hold an enquiry. Chapter VIII of the Manual of Departmental Enquiries is entitled ‘Hearing’. Paras 36 and 37(1) of the said Manual which fall under Chapter VIII provide as follows.

“At the oral enquiry, evidence should be heard as to such of the allegations as are not admitted. The oral evidence shall not be on oath. All evidence should be recorded in the presence of the Enquiry Officer and the person charged, and the evidence in support of the allegation against the person charged should be recorded first. He should be allowed to give evidence in person and also to cross- examine the witnesses examined against him. The person charged is also entitled to have called at the enquiry such witnesses as he may wish. The right is, however, subject to the power of the Enquiry Officer to refuse to call a witness for special and sufficient reasons which must be recorded by him in writing. Though it is in the discretion of the Enquiry Officer to decide what would be special and sufficient reasons for refusing to call a particular witness, the discretion must not be exercised capriciously to the prejudice of the person charged. When, however, it appears that the request to call a particular person to give evidence is vexatious or is made with a view unnecessarily to delaying or prolonging the enquiry, such request may be refused, e.g., when the request is to call an officer who has absolutely no knowledge of the facts relating to any of the charges, and the request is made merely to trouble, or cause inconvenience to that officer.

37(1) Statements if any, previously made by witnesses (e.g. in the Preliminary Enquiry) should merely be read out in their presence and if they admit them should be brought on record. In such cases, it is not necessary for them to tender evidence afresh except to the extent they may wish to make further statements to supplement or modify their earlier statements. After the witnesses submit their statements, the person charged should be given an opportunity to cross-examine them.”

Chapter XI deals with what is to take place after the Enquiry Officer submits his report to the competent authority. Para 44 provides that the competent authority shall then consider the report, come to its conclusion and decide on the action which is proposed against the person charged. Para 46 provides that where the competent authority on a perusal of the report of the Enquiry Officer to the conclusion that the penalty to be imposed upon the delinquent should be either Dismissal, Removal, Reduction in emoluments or Reversion to a lower post, a further opportunity should be given to the person charged to show cause against the action which is proposed to be taken against him.

9. In the present case, the Enquiry Officer proceeded on the basis that it was sufficient for him to merely rely on the statements which had been arrived at in the preliminary enquiry without furnishing an opportunity to the petitioner of testing the credibility of the witnesses or the veracity of the statements which had been made by them by permitting a cross examination. In fact, a large number of witnesses whose statements were relied upon were persons who were co-delinquents in the Departmental Enquiry itself. The Manual of Departmental Enquiries which has been compiled by the Municipal Corporation is no more than a compilation of relevant Circulars, Orders and instructions. The Manual of Departmental Enquiries thus provides precepts of general guidance. But a reading of paras 23, 24 and 25 of the Manual does not suggest that in an enquiry which is initiated otherwise than for leading to a major punishment like dismissal, removal or reduction in rank, the basic principles of natural justice are not required to be complied with. Indeed, that cannot be the position for the simple reason that the first respondent is an authority which is amenable to the jurisdiction of this Court under Article 226 being a local authority established by a statute, the Bombay Municipal Corporation Act, 1888. The requirement of complying with the principles of natural justice is a mandate of Article 14 of the Constitution. Natural justice is not a matter of concession granted by Departmental Circulars but is a part of Constitutional doctrine. Para 23 of the Manual merely provides that where a preliminary investigation indicates that the Departmental Enquiry would result in a major punishment like dismissal, removal, or reduction in rank, the procedure prescribed in para 25 should be strictly followed. In other cases, the procedure should be such as will give a reasonable opportunity to the Municipal Servant. Such a procedure inter alia would warrant furnishing of an opportunity of being heard to the Municipal Servant. Para 37 of the Manual makes it abundantly clear that while it is permissible to rely upon a statement previously made by witnesses in the preliminary enquiry, after the statement is submitted, the person charged should be given an opportunity to cross-examine the makers of the statement. If these statements which are made in the Preliminary Enquiry are sought to be relied upon in the Departmental Enquiry, it would be a travesty of fair play to hold that the officer who is charged should not be permitted to cross-examine those witnesses, because what is taking place is not a fullfledged Departmental Enquiry but a summary enquiry. Whether the enquiry is a fullfledged enquiry or a summary enquiry is a matter of terminology and in either case the enquiry has to comply with the basic principles of natural justice. The word “Summary” in the context of Departmental Enquiries is a misnomer. At the highest it can indicate an enquiry into a charge which is admitted or a simple charge where no evidence of witnesses involving a factual determination is required. Otherwise, there is nothing summary about Departmental Enquiries. A finding of misconduct involves consequences which affect the career of the employee. In fact, the Manual of Departmental Enquiries does not use the expression “Summary Enquiry” at all. In the present case, reliance was, however, sought to be placed on another compilation of the Municipal Corporation of Greater Bombay which is entitled “Preliminary and Departmental Enquiry Procedures”. The compilation has its origin in a department which is or was known as the ‘Productivity Unit’ of the Corporation. Para 7 of the compilation as aforesaid enunciates the procedure to be followed in a ‘Summary Departmental Enquiry’. Clause (i) and Clause (iv) at pages 12 and 13 of the Manual provide as follows :

“(i) Charge-sheet: to be prepared by Enquiry Officer in ‘B’ Form. This charge-sheet is to be in details as no separate statement of allegation or statement of evidence is to be given. Only copies of statements relied upon as evidence for framing charges are to be given along with the charge-sheet.

(iv) Opportunity to give oral statement (deposition). No examination of witnesses, no cross examination, no examination of defence witness and no final written statement of defence (no co-worker).”

In my view, this Departmental Manual is in the teeth of well settled service jurisprudence and in any event has no statutory or legal force. The said Manual cannot be utilised to deny the chargesheeted employee an opportunity to cross-examine witnesses where essential facts as in the present case are in dispute. Where in a Departmental Enquiry statements made in the preliminary enquiry as relied upon, it is contrary to basic principles of fair play to deny an opportunity to the chargesheeted employee to cross-examine the witnesses. To deny cross examination on the supposed ground that the enquiry was only a “Summary Enquiry” is to create a manifest failure of justice. That is what happened in the present case.

10. Apart from the failure to furnish an opportunity to cross-examine the witnesses to the petitioner, the procedure of enquiry was flawed because upon the report which was submitted by the Enquiry Officer, no opportunity was given to the petitioner of furnishing his representation against the proposed findings of misconduct and penalty. The Manual of Departmental Enquiries seems to proceed on the basis that such an opportunity should be granted only in a case where the employee is sought to be dismissed, removed or reduced in rank. This again is not consistent with the well established legal principles since in a case where the Enquiring Officer is not the Disciplinary Authority, the end of the first stage is not reached until the Disciplinary Authority applies its mind to the report. The Disciplinary Authority must furnish an opportunity to the employee of representing against the proposed findings and the penalty tentatively sought to be imposed. The order of penalty in the present case of stoppage on increment for one year and the recovery of loss caused to the Corporation has serious consequences to the employee concerned. In fact the penalty or withholding of an increment and the recovery of the loss from the pay of the charge-sheeted employee is expressly referred to in para (45), Clauses (v) & (vii), of the Manual of Departmental Enquiries. That being the position the petitioner ought to have been given an opportunity before the Disciplinary Authority arrived at its conclusion. This was evidently not done.

11. The learned Counsel appearing on behalf of the petitioner submitted that the findings which had been arrived at in so far as the petitioner is concerned, are directly contrary to the findings of the Enquiry Officer in the earlier part of the Enquiry Report. While discussing the charges against the supervisor Shri B.R. Karkhanis, the Enquiry Officer expressly came to the conclusion that the other members of the staff including the Stores Attendant had duly signed the challans for the cement which had been received and had handed over the challans to Shri Karkhanis, the Store Supervisor. However, while accepting the cement, the Store Supervisor had failed to sign the challans which had been furnished inter alia by the Store Attendant, the petitioner to him. The relevant finding in this regard is extracted from pages 56 and 57 of the petition and reads as under :—

“However, it has come on record that whatever cement was received by other staff, i.e. Store Attd/clerk etc. the challans were signed by them have received the cement and they handed over the cement with challans to Shri Karkhanis, Store Supervisor he being their superior. However, while accepting the cement received by Store Attendant/clerk, he failed to sign the challans given to him by them ……. …..

Likewise, he was Store Supervisor, i.e. in-charge of store staff such as clerk, Store Asstt. etc. who were helping him in receiving the cement. Hence, it was necessary for him to sign the challans having received the cement by other staff members.”

However, while arriving at the finding of misconduct in so far as the petitioner is concerned, the Enquiry Officer held as follows :—

“During the period from 23-8-86 to 26-9-86 he had received the cement against the challans when Shri Karkhanis, Store Supervisor was also there as his immediate superior. He was therefore supposed to hand over the charge of the cement received by him to Shri Karkhanis, store supervisor by obtaining his signature on the challans. But he failed to do so. Likewise shortage of cement was detected after transfer of Shri Karkhanis but after appointment of Shri Kulkarni, store supervisor in place of Karkhanis, when also Shri Tondulkar Store Attendant was working in the said store under Store Supervisor Shri Kulkarni. Therefore, there is a possibility that the shortage of cement either must have occurred at the time of receipt of cement in the period Shri Karkhanis, Store Supervisor or at the time of issue of cement i.e. in the period of Shri Kulkarni, Store Supervisor when at both the time Shri Tondulkar Store Attendant was there in the said store as Store Attendant and was doing the work of receipt of cement and issue of cement. I, therefore, hold the charge against Shri Tondulkar as proved against him.”

12. The learned Counsel submitted that since it has come on record that the petitioner had signed the challans and handed them over to Shri Karkhanis who, in turn, had failed to sign the challans which were submitted to him, the finding which has been arrived at subsequently that the petitioner had failed to do so, is contradictory. In fact, the finding of the Enquiry Officer suggests that in so far as the petitioner is concerned, the entire case turned purely on the basis of a mere possibility that the shortage of cement must have occured either at the time of receipt of the cement or at the time of its issuance. Though prima facie there is substance in the submission urged by the learned Counsel, in the view that I have taken of the enquiry being vitiated by the principles of natural justice, it is not necessary to consider this issue any further.

13. Finally, while concluding reference may be made to the fact that there was a delay of nearly ten years in the convening of the Departmental Enquiry. The chargesheet in the present case came to be issued on 24th October, 1996 in respect of events which had taken place in August & September, 1986. The learned Counsel appearing on behalf of the petitioner relied on a judgment of the Supreme Court in State of A.P. v. N. Radhakishan, in which the question of delay has been dealt with as follows :—

“In considering whether the delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occured. If the delay is unexplained prejudice to the delinquent employee is writ large on the fact of it. It could also be seen as to how much the Disciplinary Authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.”

In the circumstances of this case, the delay in holding the Departmental Enquiry is unexplained.

14. In the premises, the petitioner is entitled to succeed. The impugned order passed by the Chief Engineer (CS) dated 23rd September, 1997 (Exhibit-D) and the order dated 21st May,1999 passed in appeal by the Deputy Municipal Commissioner (Health) are quashed and set aside. In the circumstances, however, there shall be no order as to costs.

It is made clear that the present order deals with only the case of the petitioner and the case of the other chargesheeted employees has not been dealt with or considered.

An ordinary copy of this order duly authenticated by the Personal Secretary may be made available to the parties.


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