(JUDGMENT OF THE COURT WAS DELIVERED BY S.J.MUKHOPADHAYA, J.) Pursuant to a disciplinary proceeding, the appellant (hereinafter will be referred to as 'the employee') was dismissed from service on 16th April 1991. He preferred an appeal under Clause 2 of Section 41 of the Tamil Nadu Shops and Establishments Act, in May 1991. The appellate authority upheld the order of dismissal by an appellate order, dated 30th November 1992. The writ petition challenging the same also having been dismissed, the present appeal has been preferred under Clause 15 of the Letters Patent.
2. The employee was functioning as Manager (Sales) under the second respondent management and he was suspended when proceeded departmentally. The allegation was that on 30th October 1990, the employee waved his fingers in front of the face of his superior, a lady officer, and raised his hand to hit her, further abused her by saying, ''see what I can do to the Company, I can close it within two months" and addressed her as a 'bitch', 'bastard' and thevediya". The employee submitted his showcause reply on 01st November 1990 and one Parthasarathy, retired Personnel Manager of another company was appointed as an Enquiry Officer. After the enquiry, he, having been found guilty of charge vide the Enquiry Report dated 09th April 1991, was dismissed from service, by an order dated 16.4.1991.
3. Learned counsel appearing on behalf of the appellant employee, submitted that an ex parte enquiry was conducted in violation of the rules of natural justice. The lady officer with a malafide motive made those allegations, which are not based on evidence. It was submitted that the notice of the enquiry was not served on proper time and without giving a reasonable opportunity, the Enquiry Officer held the charges proved.
4. Learned counsel appearing on behalf of the management refuted the allegations and submitted that the enquiry was conducted after giving full opportunity to the charged employee. In fact, the charged employee refused to attend the day-to-day enquiry. Parties also relied on the records placed before the Court including the copy of the order sheet of enquiry recorded by the Enquiry Officer.
5. We have heard the learned counsel for the parties and perused the records.
6. From the records, it appears that the enquiry was conducted since 17th December 1990. On some of the occasions, in spite of notice, the appellant did not choose to attend the enquiry. For example, on 07th January 1991, he did not choose to appear before the Enquiry Officer and later on, he had stated that he was unable to attend the enquiry due to unavoidable reasons. He made a request through telegram to postpone the enquiry to some other date. It further appears that on his request, it was adjourned and subsequently day-to-day enquiry was conducted in January, February and March 1991. On 25th March 1991, the complainant/Management Witness No.1 appeared and made a specific statement that the appellant waved his finger in front of her face, raised his hand to hit her, abused her by saying, ''see what I can do to the Company, I can close the office in two months" and addressed her as ''bitch, bastard and thevediya". From the order sheet of 25th March 1991, it will be evident that the appellant refused to sign the record and did not choose to cross-examine. On 25th March 1991, the next date of hearing was fixed. As the appellant refused to sign the record, where the next date of adjournment was shown, to be on the safe side, the Enquiry Officer sent an additional information through courier stating that 28th March 1991 was the date fixed. Admittedly, the said notice sent through courier has been received by the appellant, though according to him, he received the said notice at 6.45 a.m on 27.3.1991. However, it appears from the record that he still did not choose to appear. On 28th March 1991, the Enquiry Officer had to wait upto 12.00 noon and at 12.15 p.m. he had to close the enquiry. At 12.30 p.m. a letter was given by the appellant stating that he has received the notice on the said date. The entries made in the order sheet not only reflect the attitude of the appellant in delaying the enquiry but also shows that he never wanted to take proper part in the said proceeding and wanted to avoid it. On the basis of the evidence on record, the Enquiry Officer had finally submitted his report on 09th April 1991, based on which, the disciplinary authority passed the order of dismissal on 16th April 1991.
7. So far as the factual aspect is concerned, there is a concurrent finding of fact by the appellate authority under the Shops and Establishments Act as also by the learned Single Judge. We have also looked into the basic factual aspect to find out whether the rules of natural justice were violated while conducting the departmental proceeding. As we are prima facie satisfied that the rules of natural justice were followed and proper opportunity was given to the appellant and that considering the gravity of charge, the order of dismissal cannot be stated to be disproportionate, we find no ground to interfere with the order passed by the appellate authority as well as the order passed by the learned Single Judge.
8. There being no merit, the writ appeal is dismissed, but, however, there shall be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.
js To
1.The Deputy Commissioner of Labour (Appeals), Office of the Commissioner of Labour, Madras-6.
2.The Management of Raab Pipe Work Private Limited, Madras 2