ORDER
A.K. Shrivastava, J.
1. By knocking the door of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the pregnability of the order dated 20.1.2000 passed by Industrial Court Bench at Jabalpur in Appeal No. 457/MPIR/98, copy of which has been placed on record as Annexure P/4.
2. The unfolded facts are that on 21.2.1971 the petitioner was appointed on the post of O.A. Grade III. Later on in November, 1980 he was promoted to the post of O.A. Grade II where he served up to 17.9.1991. On 11.12.1991 he was subjected to the departmental enquiry and charge sheet was issued against him. The charges were in regard to the obtaining the amount of LTC as well as medical reimbursement of his parents though the parents were not dependent on him. After holding the departmental enquiry, vide Annexure P/1 dated 17.9.1991 the petitioner was punished by the order of reversion and he was reverted from O.A. Grade II to O.A. Grade III. Simultaneously it was also ordered to recover the amount of Rs. 19,569/- towards the amount of LTC and the medical reimbursement.
3. Feeling aggrieved by the impugned order of reversion (Annexure P/1), the petitioner submitted an application under Section 31(3) read with Section 61 of the M.P. Industrial Relations Act, 1960 (in short ‘the Act’) before the Labour Court for the quashment of his reversion order Annexure P/1 dated 17.9.1991. In the Labour Court the petitioner challenged the validity of the departmental enquiry on several grounds and also pleaded that the order of the enquiry officer is based on perverse findings.
4. The respondents filed written statement refuting the averments made in the application under Section 31(3) of the Act and submitted that the departmental enquiry was conducted in accordance with the law and in case it is held that the departmental enquiry was defective, an opportunity be provided to prove the misconduct.
5. On the basis of the pleadings of the parties, the Labour Court framed issues which are reproduced in para 3 of the order of the Labour Court Annexure P/2. In the Labour Court the petitioner did not adduce any oral evidence and the documents annexure P/1 to P/10 which were filed by the Management were admitted by him. However, the Management examined Shri B.P. Garg who was the enquiry officer. The Labour Court after scanning the documents Ex.P-1 and P/2 and after considering the evidence of the enquiry officer B.P. Garg came to hold that in the departmental enquiry, the department did not examine any departmental witness in order to demonstrate that the petitioner wrongly obtained the amount of LTC and medical reimbursement of his parents. The Labour Court further came to hold that in Ex.P/9, which is a reply to show cause notice issued to the petitioner, it was clarified by him that the amount of LTC as well as the medical reimbursement amount of his parents was obtained by him because they are totally dependent on him. In the said reply it has also been mentioned that after the partition took place there was no source of income of his parents. The affidavit (Ex.P-32) of the petitioner’s father Harihar Prasad Pandey is there in which it has been mentioned that the partition took place between him and his sons and the agricultural land did not remain in his name nor he is obtaining any benefit from the agricultural produce. He and his wife are living along with the petitioner and are dependent on him. On these premised grounds the Labour Court held that the department utterly failed to prove the misconduct. The Labour Court by exercising powers conferred to it under Section 107-A of the Act quashed the impugned order of reversion dated 17.9.1991 (Annexure P/1) being illegal.
6. The department preferred an appeal under Section 65 of the Act before the Industrial Court which has been allowed by the impugned order Annexure P/4 by upholding reversion order Annexure P/1. Hence this petition has been filed.
7. It has been contended by Shri R.K. Verma, learned Counsel for the petitioner that it is not the case of the department that the amount of LTC which was obtained by the petitioner for his parents and the amount of reimbursement of the medical bills, were not utilized by his parents. According to learned Counsel since under the bonafide belief, the petitioner was under impression that the parents are totally dependent on him, he availed the LTC facility for them and also submitted the medical bills for reimbursement. According to learned Counsel for the petitioner a small piece of agricultural land was earlier in the name of his father Harihar Prasad Pandey but later on a partition took place in the year 1983 and for that there is an affidavit (ExP-32) of his father also in which it has been mentioned that after partition he and his wife are totally dependent on the petitioner and are living with him and if that is the position, the LTC which was availed by the petitioner for his parents as well as the reimbursement amount of the medical bills of his parents, cannot constitute an Act to hold him to be guilty of any charge. It has been then contended by learned Counsel that even if the petitioner’s father was earning some meager amount then the said amount cannot be stretched to the extent in order to hold that the parents were not dependent on him. In this context, he placed heavy reliance on the decision of the Supreme Court in the case of State of Madhya Pradesh and Ors. v. M.P. Ojha and Anr. . On these premised submissions, it has been contended by learned Counsel that the order passed by the Industrial Court be quashed and the order of the Labour Court be restored.
8. On the other hand, it has been submitted by learned Counsel appearing for the department that though no oral evidence was adduced by the department in the departmental enquiry but the delinquent was examined and it was put by the enquiry officer to the petitioner whether his father owes any land and the petitioner replied that though the father owes the land earlier but there was a partition in which the father abandoned the land and became totally dependent upon him. Since in the department there was documentary evidence to hold that the father of the petitioner was having 1938 hectare, therefore it cannot be said that the parents were dependent on him. By inviting my attention to the finding of the Industrial Court it has been submitted by learned Counsel for the department that the power under Section 107-A of the Act has been wrongly exercised by the Labour Court because those powers could be exercised only when there is a dismissal or discharge of an employee. Since the impugned order Annexure P/1 is only a reversion order and neither it is dismissal or discharge, therefore the Industrial Court rightly held that the powers conferred to Labour Court under Section 107-A were wrongly exercised by the said Court. According to learned Counsel for the department this petition sans substance and the same be dismissed.
9. After having heard learned Counsel for the parties, I am of the view that this petition deserves to be allowed.
10. It is no more in dispute that the father of the petitioner is having four sons. It is also no more in dispute that in the departmental enquiry no departmental witness was examined, though the burden of proof was on the department to prove the charges. The charges which were levelled against the petitioner are mentioned in the order of reversion Annexure P/1 dated 17.9.199 and it would be condign to re-write those charges which reads thus:
Charge No. 1
Shri Shobh Nath Pandey, while working as O.A. Gr. II in the office of Sr. Accounts Officer, Rewa claimed medical reimbursement for treatment of his parents Shri Harihar Pd. Pandey & Smt. Siyawati Devi to the extent of Rs. 11,732.34 giving false statement on medical reimbursement from (D-3) that his father has no landed property and income whereas according to Panchshala Khasara, Shri Harihar Pd. Pandey, father of Shri Shobh Nath Pandey, owns landed property at village Raura & Patna. Thus Shri Shobh Nath Pandey committed grave misconduct giving false statement about the landed property owned by his father with a malafide intention to take medical reimbursement to the above extent and therefore, rendered himself liable for disciplinary action.
Charge No. 2.
Shri Shobh Nath Pandey, while working as O.A.Gr. II in the office of Sr. Accounts officer, Rewa claimed encashment of L.T.C. to the extent of Rs. 4,152.00 for the block 1985-88 and 1989-92, declaring his parents fully dependent upon him in Affidavit sworn in before the Public notary on 24.11.1987 and 21.1.1989. but according to the Panchshala Khasara, his father owns landed property at village Raura and Patna and also has income from the Agricultural products from the land. Thus Shri Shobh Nath Pandey cheated the Board and inflicted loss to the extent of Rs. 4,152.00 and therefore rendered himself liable for disciplinary action.
11. since the burden to prove the charges was on the department, it was incumbent upon the department to adduce oral evidence in order to show that the petitioner’s father was having certain small piece of land area 1.938 hectare and in that case an opportunity would have been given to the petitioner to cross examine the departmental witness and confronting with the document of partition that it took place in the year 1983 and after partition the parents of the petitioner became totally dependent upon him. Since no oral evidence was adduced by the department, this fact is not at all proved that the petitioner’s father was having agricultural land of his own after partition. There is an affidavit of the father of the petitioner (Ex.P-32) indicating therein that partition took place long back in the year 1983 and after the partition the father is not having any land with him and he has become totally dependent on his son, the petitioner. The document of the partition is also on record. On one side there is oral evidence of the petitioner in departmental enquiry proceedings that there was a partition in the family and after partition, the parents became dependent on him, and on the other hand there is no oral evidence of department in the departmental enquiry that the father of the petitioner owes any property, though the burden of proof was on the department to prove the charges. Why the evidence of the petitioner in the departmental enquiry should be ignored, there is nothing in the reversion order Annexure P.1.
12. It is not the case of the department that the LTC facility was not availed by the parents of the petitioner nor it is the case of the department that the medicines were not administered to the parents for which the reimbursement was sought and was paid to the petitioner. The case of the department is that the father of the petitioner was not dependent on him. Since no oral evidence was led in the departmental enquiry by the department in that regard, it is difficult to hold that the father was not dependent on the petitioner. Apart from this the enquiry officer beyond his jurisdiction, cross-examined the petitioner in regard to the land of which his father was the owner for which the petitioner said that his father was having agricultural land area 1.938 hectare but the same was partitioned in the year 1983 and thereafter the parents became dependent upon him. Though the enquiry officer beyond its jurisdiction cross examined like a Presenting Officer but I am not taking much significance of it because it has come in the answer of the delinquent that partition took place and after the partition the parents became dependent on him. Thus, the record of the departmental enquiry reflects that there was a partition in the family and after the partition the parents of the petitioner became totally dependent on him and if that is the position, the view of this Court is that the finding of the enquiry officer as well as the disciplinary authority is perverse and the Labour Court did not err in holding so. Even if it is assumed that the father of the petitioner was having small area of the agricultural land and he was earning some amount from the agricultural produce, it cannot be stretched to the extent that he was not dependent on the petitioner. In the record of the departmental enquiry it has come that the parents are living since long with the petitioner.
13. The Supreme Court in the case of M.P. Ojha (supra) in para 14 has taken into consideration this aspect of the matter and it would be germane to quote that para which reads thus:
14. The expression “wholly dependent” is not a term of art. It has to be given its due meaning with reference to the Rules in which it appears. Wee need not make any attempt to define the expression “wholly dependent” to be applicable to all cases in all circumstances. We also need not look into other provisions of law where such expression is defined. That would likely to lead to results which the relevant Rules would not have contemplated. The expression “wholly dependent” has to be understood in the context in which it is used keeping in view the object of the particular Rules where it is contained. We cannot curtail the meaning of “wholly dependent” by reading into this the definition as given in SR 8 which has been reproduced above. Further, the expression “wholly dependent” as appearing in the definition of ‘family’ as given in Medical Rules cannot be confined to mere financial dependence. Ordinarily dependence means financial dependence but for a member of family it would mean other support, may be physical, as well. To be “wholly dependent” would therefore include both financial and physical dependence. If support required is physical and a member of the family is otherwise financially sound he may not necessarily be wholly dependent. Here the father was 70 years of age and was sick and it could not be said that he was not wholly dependent on his son. Son has to look after him in his old age. Even otherwise by getting a pension of Rs. 44/-per month which by any standard is a paltry amount it could not be said that the father was not “wholly dependent” on his son. That the father had a separate capacity of being a retired Government servant is immaterial if his case falls within the Medical Rules being a member of the family of his son and wholly dependent on him. A flexible approach has to be adopted in interpreting and applying the Rules in a case like the present one. There is no dispute that the son took his father to Bombay for treatment for his serious ailment after getting due permission from the competent authority. It was submitted before us that the father being a retired government servant could himself get sanction for treatment outside the State as a special case from the competent authority. It is not necessary for us to look into this aspect of the matter as we are satisfied that under the relevant Medical Rules, the father was member of the family of his son and was wholly dependent on him and the 2nd respondent was thus fully entitled to reimbursement for the expenses incurred on the treatment of his father and other travelling expenses.
Thus; even if it is held that some meager amount was being earned by the father of the petitioner, though in the present case the situation is otherwise on account of partition, it cannot be said that the parents were not dependent on the petitioner. If the petitioner under the bona fide belief that the parents are dependent on him availed the LTC facility to them and also submitted the reimbursement of their medical bills, his act cannot be stretched to the extent of roping him for the charges levelled against him.
14. Thus, even if the Labour Court wrongly exercised the jurisdiction under Section 107-A of the Act, since the finding arrived at by the enquiry officer and the disciplinary authority is perverse, the impugned order of reversion annexure P/1 dated 17.9.1991 cannot be allowed to remain stand and the same is hereby quashed. Eventually the order of Industrial Court is also quashed. However, looking to the facts and circumstances, the petitioner is hereby directed to deposit the amount of Rs. 19569/- in the department if already not deposited.
15. This petition is accordingly allowed to the extent as indicated hereinabove with no order as to costs.