IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION NOS.55121-55122/2015 (L-TER) c/w WRIT PETITION NOS.18832/2015 (L-TER) IN W.P.NOS.55121-55122/2015 BETWEEN SRI K P BHEEMAIAH S/O K G PONACHA AGED ABOUT 45 YEARS STAFF N. 209883 ACCOUNTANT, FINANCE/MIL.COM BHARATH ELECTRONICS LIMITED BANGALORE – 560013 NOW DISMISSED FROM SERVICE & R/AT: 14/1, RAJATHADRI NILAYA, 5TH CROSS, 7TH MAIN, SHARADANAGAR, SRI. MARTHA LAYOUT, BANGALORE – 560013. ... PETITIONER (BY SRI M VEERABHADRAIAH, ADV.) AND 1. M/S BHARATH ELECTRONICS LIMITED (A GOVT. OF INDIA ENTERPRISES, MINISTRY OF DEFENCE) JALAHALLI POST, BANGALORE - 560013 REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.
2. THE GENERAL MANAGER (MIL.COM) BHARATH ELECTRONICS LIMITED, JALAHALLI POST, BANGALORE – 560013.
3. THE GENERAL MANAGER (H.R) BHARATH ELECTRONICS LIMITED, JALAHALLI POST, BANGALORE – 560013.
4. THE DEPUTY GENERAL MANAGER (FIN/MCE) BHARATH ELECTRONICS LIMITED JALAHALLI POST, BANGALORE - 560013 5. SRI SUBRAMANYA RAJA URS AGED ABOUT 53 YEARS, STAFF NO. E214554 THE SENIOR ASO BHARATH ELECTRONICS LIMITED, JALAHALLI POST, BANGALORE - 560013 6. SRI SUDHAKAR CHOWDARY T AGED ABOUT 54 YEARS, STAFF NO. 208952 THE SENIOR D.G.M (HR-NS) & ENQUIRY OFFICER BHARATH ELECTRONICS LIMITED, JALAHALLI POST, BANGALORE – 560013. ... RESPONDENTS (BY SRI ISMAIL M.MUSBA, ADV. FOR R1 TO R4 & R6.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 17.6.2014 PASSED BY THE R-1 VIDE ANN-A.
IN W.P.NO.18832/2015 BETWEEN K.P. BHEEMAIAH S/O K G PONACHA AGED ABOUT 45 YEARS STAFF NO.209833 ACCONTANT, FINANCE/MIL.COM BHARATH ELECTRONICS LTD., BANGALORE NOW DISMISSED FROM SERVICE & RESIDING AT NO.14/1, RAJATHADRI NILAYA, 5TH CROSS, 7TH MAIN SHARADANAGAR, SRI MATHA LAYOUT BANGALORE-560013. ... PETITIONER (BY SRI M VEERABHADRAIAH, ADV.) AND THE GENERAL MANAGER (HR) BHARATH ELECTRONIC LIMITED JALAHALLI POST, BANGALORE-560013. ... RESPONDENT (BY SRI P D VISHWANATH, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DT.13.3.2015 PASSED BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, BENGALURU IN FR NO.26/2014 VIDE ANNX-M AS THE SAID ORDER SUFFERS FROM ERROR APPARENT ON THE FACE OF THE RECORD ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.04.2019, COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Having heard the counsels for both the parties, this court passes the following order. Both the writ petitions are heard together for disposal in view of the order dated 09.03.2016. By the said order both the petitions are directed to be listed together for consideration.
2. In both the writ petitions, the petitioner is the workman and the respondent is the employer.
3. In the first writ petition the petitioner is calling in question the order dated 17.06.2014 passed by the Chairman and Managing Director of M/s. BEL Bangalore (Annexure-A), under which order the Chairman invoking the authority vested in him under Section 15A of the Certified Standing Orders of the Bangalore Complex, was pleased to dispense with the ongoing enquiry and was further pleased to order dismissal of the petitioner with immediate effect.
4. The other relief sought for in the writ petition is for quashing the order titled as Final Order dated 18.06.2014 passed by the General Manager, pursuant to the enquiry report submitted by the Enquiry Officer on 16.06.2014.
5. The enquiry came to be prematurely closed by the enquiry officer on the premise that it is not conducive to continue the enquiry as the Presenting Officer had submitted that he is unable to produce the Management Witnesses in view of the incident dated 08.06.2014 during which incident it is alleged that the petitioner had assaulted a security supervisor one Uthappa.B.K. and had threatened him not to support the management. Hence, by the final order the General Manager once again passed an order dismissing the petitioner from the services of the company with immediate effect and enclosing a cheque for the sum of Rs.40,920/- being one month’s wage and also intimating the filing of the application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short ‘the Act’).
6. The second writ petition is preferred by the workman calling in question the orders of the CGIT & Labour Court in FR No.26/2014, whereby the CGIT & LC was pleased to uphold the office objections raised on the maintainability of the application preferred by the workman under sub- sections (2) & (3) of Section 2A of the Act. By the order impugned, the CGIT & LC has opined that the application under Section 2A of the Act read with sub-sections (2) and (3) is premature in the light of the fact that the approval application preferred by the respondent-employer is still pending consideration and has opined that the papers be returned to the petitioner-workman. Being aggrieved by the same, the petitioner is before this court in the second writ petition.
7. The petitioner is referred to as the workman and the respondent is referred to as the employer for the sake of convenience and brevity.
Facts of the Case:
8. It is the case of the petitioner that he joined the services of the employer as a clerk-cum-typist in the year 1995. That later in the year 2010, he was promoted as an Accountant. That the petitioner was deeply involved in the activities of the Union. That the Unions vide notice dated 25.11.2013 issued a strike notice under Section 22(1)(B) of the Act. That all the various Unions of BEL, joined hands to form a United Action Front and issued the strike notice to strike work on 11.12.2013 in order to press for the consideration of their charter of demands. A copy of the strike notice is produced as Annexure-K. In response, the BEL Officers Association made an appeal to the workman to ignore the strike notice and to attend duty, a copy of which is produced as Annexure-K1. That on 10.12.2013, the United Action Front in response made an appeal to the workman to participate in the strike and ensure its success and not to fall prey to the tactics being adopted by the management, a copy of which is produced as Annexure-L.
9. That on the night of 10.12.2013, that is the night preceding the strike day, the office bearers and active members of the various unions had assembled at the grievance office on the BEL Estate to discuss the modalities for successfully carrying out the strike. That the Chief Security Officer is said to have lodged a complaint to the jurisdictional police station – Jalahalli Police Station with regard to the act of the office bearers and active union members staying on in the grievance office. In the complaint, it was stated that the stay is unauthorized as they are permitted to use the premises only for the day to day functions and cannot be utilized for overnight stay. It is also stated that anti-social elements and rowdies have joined the office bearers and active members in the said grievance office and that the anti-social and rowdy elements are likely to create some nuisance in and around BEL premises. Hence, keeping in view the safety and security of the plant and the nearby residential units, the jurisdictional police was requested to initiate action by evacuating the people in occupation of the grievance office. Lastly, a specific plea was made to the police to take action against anti-social elements in order to curb any untoward incident. A copy of the complaint dated 10.12.2013 lodged at 23:45 hours is produced as Annexure-M. It is relevant to note at this stage that, no rowdy or anti-social element was identified or apprehended by the police nor is any material is available to demonstrate the same.
10. In the interregnum, the Additional General Manager (HR) circulated an appeal to the Trade Unions and the Employees requesting them not to go ahead or participate in the strike as the issues raised are seized off by the Deputy Chief Labour Commissioner (Central) for conciliation purposes. Further, employees were warned that strict action would be initiated if they are found responsible for any untoward incident. A copy of the same is produced as Annexure-M1.
11. That on 11.12.2013, the duty security officer submitted a report regarding the strike by the Trade Unions of BEL, a copy of which is produced as Annexure- M2. The report details the acts of various Office Bearers (OB’s) and staff members who participated in the strike at various places around the factory. In all, it details the acts of the striking workers at five places i.e., i) Kuvempu Circle, ii) BEL Circle, iii) North Gate Area, iv) Factory Main Gate Area and lastly, v) Officers Club Area.
12. As per the report, pertaining to Kuvempu Circle area, it is stated that on 11.12.2013 the security personnel who were present at Kuvempu Circle at 07:45 hours, have reported that about 30-40 employees led by office bearers gathered near the security boom barrier in order to obstruct movement of factory buses and private vehicles ferrying executives and arriving through Kuvempu Circle. That the team led by security officer Pavan.C.P. [underlining in view of the relevance of the name assumes later in the discussion] and consisting of SASO Manogaran.P., Sr. Sub-Samson Gouder, Jam Hanumathu, Hav Balakeshavalu, Hav Dinesh, Hav Puttaraju, Hav Ganesh and Hav Shashibhushan, asked the workers to maintain 100 metres distance from the factory area. In response, BEWUF Office Bearer (OB) Bheemiah K.P. (petitioner) and two employees Sri Shivaji Rao.K. and Sri Srinivasaiah.H.D. are said to have aggressively approached the staff and in an assaulting mode and shouted and showered them with filthy and vulgar abuses. On the intervention of the police who were present there, they moved a bit further away. That the above said persons shouted abuses and behaved in an unruly manner and threatened the Executives who were entering the factory with dire consequences. That they forced the contract workers/trainees/employees out of the buses by abusing and threatening them. But on the intervention of the police, a few of the passengers stayed on in the bus and entered the factory. This in a nutshell is the allegation against the petitioner.
13. The other area of interest and which has relevance to the case on hand is the officers club area. The report states the CSO, GM(HR) and AGM (HR) with a few security personnel were present in the officers club area. That along with them security supervisor Uthappa.B.K., [underlining as it assumes significance later] Sr.Sub. Venkatesh, Sub. Mahesh, Sub. R. Krishnamurthy, Jam. Reddy (the name is partially not visible), Reddy R. Jam. Rayanavvar, Jam. Masuthi C, and Hav. Prasanna were all present. It is reported that most of the executives who were not allowed entry at the different gates assembled at the officers club premises. The agitating employees, forced the management to accommodate the executives into the buses and other vehicles and sent them into the factory and the said buses and vehicles were escorted by the security personnel and were also provided police escort.
14. That objecting to this step/development, the office bearers [OB’s] Sri M.Krishnappa, Sri Anil Kumar, Sri C.Raju and employee Sri Vijay Kumar.N. along with few other employees sat on the road in order to obstruct the movement of vehicles carrying the executives into the factory premises from the officers club area. That the police personnel cleared the agitating employees and the agitating employees resorted to spitting at the executives who boarded the buses as they chose to ignore their request.
15. That by 08:20 hours, many executives and few contract workers who had gathered in large group were escorted to the factory through heavy vehicle gate by walk. That after the entry of the executives into the factory the striking office bearers (OBs & Employees) assembled at the main gate area and resorted to slogan shouting against the management and after a lot of slogan shouting and address by the OBs the striking employees left the factory area at about 15:00 hrs.
16. This in essence is the report submitted by the duty security officer in respect of the strike called by the various unions. The portions of relevance for this writ petition are the report pertaining to the activities of office bearers and employees in Kuvempu circle and the Officers Club area.
17. Apart from that, another report dated 11.12.2013 was also submitted by the duty officer of the security department on 11.12.2013 by name D.S.Raj Urs, that is with regard to the 10.12.2013 incident narrated in para 9 earlier. On a reading of the same, the report reveals that the security control room received a telephonic message that some people were shouting and creating nuisance in the BEWUF estate grievance office. That the duty security officer rushed to the spot and noticed that the petitioner along with other office bearers and staff numbering around 35 were consuming alcohol and having dinner and they were asked to vacate as it is prohibited for employees to stay overnight in the grievance estate office which request was rudely replied to by the petitioner. That apprehending untoward incidents, the Jalahalli police was requested to assist in evicting the people who were illegally staying in the estate grievance office. That in response to the complaint at 23:15 hours, the Hoysala police reached premises at 23:45 hours. On seeing the duty security officer, the petitioner is alleged to have come out and abused him with vulgar and un-parliamentary words. That even the request of the police fell on deaf ears and in the very presence of the police, the petitioner and one Shivajirao approached the DSO in an assaulting manner and thereby did not allow the DSO to carry out his duties and after long argument, the police and the DSO, the petitioner and others vacated the premises of the grievance estate office at 00:15 hrs.
18. Thereafter, another separate report was submitted by the security duty officer one P.Manoharan of the security department and the subject of the report is unruly behaviour by some striking employees and OBs which is nothing but a replica of the report submitted by the duty security officer. The only additions being the detailing of the abusive and vulgar language used by the petitioner and others therein and it states that on 11.12.2013 the duty officer was at Kuvempu circle to facilitate the smooth entry of executives into the factory and the copies of the said report are perused as Annexure-M3 and M4.
19. It is alleged that on the same day, one staff by name Ashwin.K.J., Deputy Manager in Engineering service, also lodged a complaint with the management stating that while he was on the way to office by auto, four people stopped the auto near Iyyappa park and punched him on the face and abused him for attempting to reach the factory and one of them who punched him is the petitioner. That the other employees present at the scene intervened and prevented further damage to him. That thereafter, he took the bus from Mattikere and went to Gangamma circle and from there he was escorted by security and the said complaint is marked as Annexure-M5.
20. The management on receipt of the above said reports, by order dated 13.12.2013 was pleased to place the petitioner under suspension for the alleged acts of misconduct, by invoking the authority vested in the respondent under Section 15(3)(a) of the Certified Standing Orders (CSO).
21. Immediately or a week thereafter, the BEL Workers Unity Forum submitted their representation to the General Manager (HR) and by the said representation addressed by the General Secretary of the Union, it was stated that the presence of the petitioner is required and that he is one of the senior most office bearers of the union. A separate representation dated 26.12.2013 was also addressed by the petitioner to the General Manager (HR) requesting revocation of the suspension order. Pursuant to the same, by order dated 01.01.2014 the suspension order came to be revoked, the same are marked as Annexures-N1, N2 and N3.
22. Prior to the revocation of suspension, charge sheet came to be issued to the petitioner alleging that the acts committed by the petitioner amounting to misconduct under clauses 15(1)(a)(b)(g)(h)(p) & (v). The copy of the charge sheet is produced as Annexure-D. On perusal of the charge sheet, the charges are nothing but reproduction of the reports submitted by the security departments produced as Annexures-M2, M3, M4 and the separate complaint of assault by a member of the staff produced as Annexure-M5 i.e., of having consumed alcohol along with others in the estate grievance office, using vulgar and un- parliamentary language, approaching the duty officer in an aggressive manner as if he intends to assault having assaulted a member of the staff one Sri. Ashwin.K.J. and having attempted to stop executives who were attempting to reach the factory and threatening them with dire consequences.
23. The petitioner after resumption of duties effected a reply on 20.01.2014. It was contended that a meeting of all the office bearers and executive committee members and active members was organised in the estate office and the petitioner in his capacity as Vice-President had attended the meeting after completion of his shift-work, and that the meeting was called to work out the strategy to control the workers during the proposed strike and that the police arrived at about 11:45 p.m. and informed them that the management had lodged a complaint that a mob is vandalizing the place and after posting two constables the other members of the Hoysala team left immediately. That the Sr. ASO had not visited the estate office at all. Hence, it was denied that the question of using unparliamentary words does not arise. That till they disbursed from the estate office, the two police constables remained with them and no untoward incident took place nor alcohol was consumed as alleged. That he has not assaulted anybody and 5:30 a.m. onwards all office bearers, including the petitioner, were controlling the active workers of the trade union at the main gate.
24. That he reached Kuvempu Circle at 6:10 a.m. only and he has not even noticed the Senior Assistant Officer i.e., Sr. ASO as he was busy controlling workers as it was the task assigned to him by the Union. That he was at Kuvempu circle till 10.00 a.m. and was never in the vicinity of Iyyappa Park at 8.00 a.m. and requested to withdraw the charges. Copy of the reply is produced as Annexure-E.
25. The reply by the petitioner was found not satisfactory and an enquiry was ordered and an officer of the rank of Sr. Deputy General Manager was appointed as Enquiry Officer and was called upon to submit his report within six months. One Jitendra Singh, Dy. Chief Security Officer was appointed as the Presenting Officer by order dated 05.02.2014.
26. The Enquiry Officer, by communication dated 10.02.2014 intimated the date of hearing as 20.02.2014. The petitioner attended the enquiry on the said date. The record of proceedings and the list of documents and the list of witnesses, the preliminary questions put to the petitioner in the enquiry is produced as Annexure-H. The record of proceedings dated 27.03.2014 is produced as Annexure-H1. On the said date, the petitioner did not attend the enquiry and hence in order to give him a final opportunity, hearing was adjourned to 11.04.2014. On the said date, the petitioner was asked as to whether he admits the charges? The petitioner denied the charges leveled against him and on the said date, the statement of one Subramanya Raj Urs, Sr. ASO was recorded as MW-1. The statement recorded is nothing but a repetition of the report submitted by him on 11.12.2013. After the recording of the statement, the hearing was adjourned to 12.05.2014. On 12.05.2014, hearing was adjourned to 16.05.2014 as there was bereavement in the family of the management witness. The statement of MW-1 and the record of proceedings adjourning the hearing to 16.05.2014 are produced and marked as Annexures-H2 & H3. Annexure-H4 appears to be record of proceedings held on 15.05.2014. There is nothing on record to state as to why the enquiry date was preponed from 16.05.2014 to 15.05.2014. It further reveals that on 15.05.2014 there has been further examination of MW-1. Though on 12.05.2014 it is recorded that the statement of MW-1 has been concluded, hearing was adjourned to 03.06.2014. It is not known as to what happened to the enquiry on 03.06.2014 as the record of proceedings dated 05.06.2014 produced as Annexure-H5 records that enquiry has been adjourned on the request of the petitioner and enquiry was postponed to 12.06.2014. On 12.06.2014, it is recorded that the delinquent officer/petitioner is absent and in order to give an opportunity to cross-examine MW-1, enquiry stood adjourned to 16.06.2014. That as on 16.06.2014, out of the 14 witnesses, only one witness MW-1 had been examined and his statement is recorded and evidence of MW-1 stood concluded and matter was posted for cross examination of MW-1.
27. After the hearing on 05.06.2014 and before the next date of hearing i.e., on 12.06.2014, in the intervening period i.e., on 08.06.2014, an incident is said to have occurred in a function organized to celebrate a function at Sri Igguthappa Kshemabivriddi Sanga, Vidyaranyapura (Kodava Samaja). The said incident has been reported by one Aiyappa S/o B.K. Uthappa and the copy of the complaint is produced as Annexure-P. In the complaint, it is alleged that the petitioner had assaulted his father with a plastic chair and with an empty bottle and on account of the assault, his father was taken to the hospital and thereafter shifted to Ramaiah hospital and requested that the action be taken against the petitioner. The copy of the wound certificate issued by the duty medical officer of the hospital run by the respondent-employer is produced as Annexure-P1. The nature of injury is recorded as 12 cms. linear lacerated wound along the sagittal sutine scalp. The same is said to have been issued on 08.06.2014 at 15:05 hrs. in respect of an assault that took place at 14:30 hrs. Based on the said complaint, the jurisdictional police registered a case for an offence punishable under Section 307 of the Indian Penal Code.
28. Subsequently on 13.06.2014, MW-1 appears to have addressed a statement to the General Manager stating that it has come to his knowledge that the petitioner has made an attempt to murder B.K. Uthappa, one of the staff of the security department and that he has been admitted to hospital and he is lodged in the Incentive Care Unit (ICU). That this information has made him feel threatened as he is MW-1 and he sensed a danger to his life and hence, he has submitted that he will not submit himself for cross- examination. The same is produced as Annexure-Q. This letter is addressed despite the known fact that the petitioner had applied for leave, on the premise that he was leaving to his native to attend to his aged mother. Annexure-Q1 is the statement of one B.K. Uthappa dated 13.06.2014. The said B.K. Uthappa is none other than the one, on whom a murderous assault was allegedly made and who MW-1 by a communication of even date has stated is in the ICU. In the communication addressed by the said B.K.Uthappa to the General Manager, he claimed that he had been to the Sangha premises on the invitation of their colleague one Ayyappa AW. There the petitioner is said to have come over to him and without any reason or provocation is said to have informed him that he is not happy with the fact of the complainant tendering evidence against him in the ongoing enquiry and when the complainant advised him not to speak so, he suddenly mounted a murderous attack with a plastic chair and empty beer bottle and injured him on his head and hand and hence, he requested that he and his family be given security. The said representation/complaint by the said B.K. Uthappa is marked as Annexure-Q1.
29. Annexure-Q2 is the report prepared by the security department on 14.06.2014. In the report, it is stated that the said B.K.Uthappa was threatened by the petitioner with dire consequences for participating as a management witness in the ongoing enquiry and thereafter hit him on his head by using a beer bottle and wooden chair. That he suffered a 12 cms. linear lacerated head injury and that apart from the head, he has also sustained other bodily injuries. That he was brought to BEL Hospital by Pavan.C.P. SSO, who is the eye-witness of the incident. [emphasis by Court]. That the said B.K.Uthappa was rushed to BEL hospital and the duty doctor administered first aid. Thereafter, he was shifted to Mallya Hospital and subsequently referred to Ramaiah hospital for further treatment and further states that the injured who is a security supervisor is apprehending for his safety and security as he is a management witness in all the ongoing enquiries including the one against the petitioner. That the injured B.K.Uthappa is the prime witness and hence the management was requested to take necessary action to protect all the management witnesses as there is an apprehension that the petitioner may try to threaten/influence them by some means. In the same breath, it is also requested that appropriate action be taken against the petitioner.
30. Another report of the security department dated 16.06.2014 is produced as Annexure-Q3 and the report is said to be made on the basis of the complaint that was forwarded to the General Manager and by the said report it is reported that an assault was made by the petitioner with a chair and glass beer bottle. That he was taken to BEL and administered first aid and referred to M.S.Ramaiah. That on account of the assault, the management witnesses are unwilling and apprehensive to depose, fearing for their safety and the Sr. ASO who was already examined as MW1 is refusing to present himself for cross-examination. Further, it is stated that it is not possible for the undersigned to proceed with the enquiry as the petitioner has created an atmosphere of fear and terror and instilled fear in the management witnesses and requested that the enquiry may be concluded and it is signed by the Presenting Officer on 16.06.2014, the date fixed for enquiry.
31. The Enquiry Officer has drawn up proceedings taking note of the developments on 08.06.2014 and concluded that post 08.06.2014 incident, it is not possible for him to continue the enquiry and closed the enquiry. Copy of the proceedings dated 16.06.2014 is produced and marked as Annexure-R. The Enquiry Officer has relied upon certain documents at Sl. Nos.26 to 32 which are said to have been marked as Ex. M32, M33, M34, M35, M36, M37 and M38.
The said exhibits are none other than the letter dated 13.06.2014 addressed by MW1 to the General Manager (Annexure-Q) and the letter dated 13.06.2014 addressed by the said B.K.Uthappa (Annx.Q1) to the GM (HR) and the other documents are at Annx.-Q2, Q3, Annx.-P, P1, P2 and P3 etc. i.e., all the documents except P, P1 and P2 are all after the last date of hearing i.e., on 12.06.2014 on which date the enquiry was posted for cross-examination of MW1 and the record of proceedings is produced as Annexure-H6.
32. Thereafter, it appears that the file was put up to the Chairman & Managing Director and the impugned order at Annexure-A came to be issued.
33. On perusal of the same, it is seen that the documents that have been placed before the CMD of respondent No.1 are the charge sheet dated 18.12.2013, enquiry proceedings and enquiry report dated 16.06.2014 and report of the CSO dated 14.06.2014 i.e., Annexures-M1, S & Q2, respectively. On the basis of the above said documents, the CMD proceeded to arrive at a satisfaction that under the circumstances narrated to him, it is not possible to hold a fair and proper enquiry and hence, invoking Section 15A of the Certified Standing Orders, proceeded to pass the impugned order at Annexure-A by dispensing with the enquiry as mandated under Section 15(5) of the Certified Standing Order. Section 15A reads as under:
“15A. Special procedure in certain cases:
Notwithstanding anything contained in standing order 15 or any other standing order, where a workman has been convicted by a court of law for a criminal offence involving moral turpitude or where the Managing Director is satisfied in extra-ordinary circumstances for reasons to be recorded by him in writing that it is inexpedient or against the interest of security to continue to employ the workman, the workman may be removed or dismissed from service without following the procedure laid down Standing Order 15.”
34. In paragraph 5, the CMD has taken note of the Presenting Officer’s inability to produce management witnesses in the enquiry as the witnesses have expressed their reluctance to tender evidence in view of the incident dated 08.06.2014. In paragraph 6, the CMD has taken note of the alleged threat given by the petitioner to the said B.K.Uthappa threatening him not to be a management witness and not to support the management. The CMD has further taken note of the letter dated 13.06.2014 by Subramanya Raj Urs, Sr. ASO expressing his inability to tender evidence and thereafter in paragraph 7, the CMD has concluded that the incident that occurred on 08.06.2014 is a well calculated move by the petitioner, to deter the management witnesses from attending the enquiry and deposing against him. That, as most of the witnesses are from the security department, the assault on the said B.K.Uthappa was made with the intention of striking fear in the management witnesses. The CMD, proceeding further in paragraph 8 concludes that the act amounts to intimidation of the witnesses, who were to depose against the petitioner and instill in them the fear of reprisal. That the assault carried out after the revocation of the suspension and also the Union’s letter dated 18.12.2013 made him conclude that the atmosphere was not conducive for a fair and proper enquiry and the enquiry must be held in an atmosphere, free of fear and threat, and concluded that the Enquiry Officer has rightly closed the proceedings and the order further takes note of the petitioner having been involved in similar incident of riotous/disorderly behaviour and threatening/intimidating an officer inside the factory premises. In paragraph 10, it is concluded that it is inexpedient to hold or resume the enquiry in respect of the charge sheet dated 18.12.2013 and further presumes it is neither feasible nor practical to attempt to resume or hold an enquiry against the petitioner. It is also concluded that the continuation of the petitioner in employment is not in the interest of the security of the Bangalore Complex and hence, exercising powers under Section 15A dismissed the petitioner from the service of the company with immediate effect and further directed that the decision be intimated to the petitioner. Thus, by the order at Annexure-A, the petitioner stood dismissed from the services of the company with effect from 17.06.2014.
35. After the order of dismissal at Annexure-A, another order titled as final order dated 18.06.2014 came to the issued by the General Manager-respondent No.2 herein. The same is produced at impugned as Annexure-A1. On perusal of the same, it is seen that respondent No.2 has looked into the charge sheet dated 18.12.2013 and the enquiry proceedings and enquiry report dated 16.06.2014 and paragraph 1 of the said final order would reveal that respondent No.2 has looked into the aforesaid documents. Thereafter, paragraph 2 would commence as follows:
“Chairman and Managing Director, Bharat Electronics after going through the records, found that it is a fit case to invoke Clause 15A of the Certified Standing Order of Bangalore Complex and has passed ORDER which reads as follows:”
Proceeding further, he would extract the order in toto at Annexure-A i.e., from paragraphs 1 to 11 at Annexure-A. The respondent No.2 proceeding further in paragraph 3 of his letter, would proceed to order as follows:
“3. You are therefore, hereby DISMISSED from the services of the company with immediate effect.”
Proceeding further, in paragraph 4, he would inform the petitioner that a cheque towards one month wage is enclosed in compliance of Section 33(2)(b) of the ID Act, 1947.
36. The writ petition is stiffly resisted by the respondent by filing statement of objections and additional statement of objections. The additional statement of objections is triggered by an affidavit filed by the General Secretary of Bharat Electronics Workers Unity Forum, an employee of the respondent-Company. The affidavit came to be filed on behalf of the petitioner claiming that the petitioner is an elected office bearer and hence, he is a protected workman and that being a protected workman, the dismissal without compliance of the provisions of the Act vitiates the order impugned. Along with the said affidavit, the said deponent has produced a document, which he claims to have submitted to the office of the Dy.CLC(C), Bangalore, wherein the name of the petitioner is also said to have been forwarded to the authority as protected workman. A copy of the list of elected candidates issued by the returning officer is also produced. One more communication addressed by the General Secretary dated 21.03.2013 to the Dy.CLC(C), Bangalore, listing out the protected workman is also enclosed. Another communication addressed by the General Secretary to the Dy.CLC(C), Bangalore, dated 18.06.2014 requesting the authority not to grant permission to the management for dismissal of the petitioner on the premise that he is a protected workman. One more communication dated 25.03.2015 listing out the protected workman and the position held in the Union and addressed to the authority is also produced. The list of elected candidates in the elections held on 09.09.2013 is also produced.
37. This affidavit has provoked the voluminous additional statement of objections and the same rests on the short ground that the authority, on the clarification sought for by the management, has intimated the management that the seal found on the documents are fabricated and are not of the authority and the documents have not been acknowledged by the authority.
38. The additional statement of objections refers to various writ petitions pending before or disposed off by this Court in respect of action initiated against the said persons on the premise that they are guilty of misconduct for having filed an affidavit into Court and therein falsely claiming that the petitioner is a protected workman and it is contended that as the petitioner has not approached the Court with clean hands, and therefore, the writ petition is liable to be dismissed.
39. It is relevant to note at this stage itself that the issue as to whether the acknowledgement issued is genuine or not, are the subject matter of a different enquiry initiated by the respondent against the said Annadurai and Krishnappa, and which is pending consideration both before the authority and before this Court. Hence, in that view of the matter, this Court does not delve into the said issue. Further, the writ petition has been primarily canvassed and contested by the parties primarily on other grounds and which grounds are sufficient for determination of the issue that has arisen in the instant writ petitions.
40. In sum and substance, the defence adopted by the respondents is that, firstly, the writ petition is not maintainable in view of the alternate remedy available to the petitioner and he be directed to approach the CGIT & LC as the same matter is pending adjudication in CR 41/2011. Secondly, the alleged murderous assault and threatening of the witness with dire consequences and the nuisance on the night of 10.11.2013 i.e., preceding the day of strike, has rendered it difficult to convince the management witnesses to depose against the petitioner as evidenced by the letter dated 13.06.2014 and the letter of the Presenting Officer and the report of the Enquiry Officer dated 16.06.2014 and hence, the order dated 16.06.2014 at Annexure-A is fully justified.
41. That the writ petition is premature in the light of the pending approval application No.1/2014 pending before the CGIT & LC.
42. It is the further case of the respondent that the petitioner had raised a dispute in FR 26/2014 challenging the approval application and the same came to be dismissed by the CGIT by order dated 13.03.2015 and the said order was called in question in W.P.No.18832/2015, which has been heard along with this writ petition.
43. After the pleadings had been completed and before the additional statement of objections were filed on 19.03.2018, the petitioner’s Counsel filed a memo dated 16.02.2017 enclosing therewith copy of the charge sheet issued to one Shivaji Rao and the punishment imposed pursuant to the same, the charge sheet issued against one Palani and the final order passed pursuant to the same, the charge sheet issued against C.Raju and the final order pursuant to the same, the charge sheet issued against one Krishnappa.M. and the final order pursuant to the same, and the wound certificate issued by Ramaiah Hospital in respect of B.K.Uthappa. The documents have been produced as Annexure-Z, Z1, Z2, Z3, Z4, Z5, Z6, Z7 & AA.
44. On perusal of the same, it is seen that the charge sheets are in respect of the occurrences that happened on 11.12.2013 i.e., the day on which the strike was conducted and the punishments imposed are reduction of Basic Pay by three increments in respect of Shivaji Rao, reduction of Basic Pay by two stages in respect of Sri Palani.R., similar punishment is also imposed on C.Raju and M.Krishnappa.
45. On perusal of Annexure-AA, the same records that the patient had suffered a cut and lacerated wound on the scalp over the right fronto parietal region, tenderness over the left elbow and lateral epicondia, thirdly it is recorded that the patient was under the influence of alcohol and the doctor has recorded in his opinion that the injuries suffered are simple in nature [underlining by Court]. The wound certificate is signed and issued by the Resident Medical Officer (RMO), M.S.Ramaiah Hospital, Bangalore-
54. Much reliance is placed on this document, which contentions would be referred to in the following paragraphs. The respondent has also filed into Court a memo dated 17.03.2017 enclosing the final orders passed by it against the various office bearers and staff which are already produced as Annexures-Z to Z7.
46. It is contended by the learned Counsel for the petitioner that the writ petition was entertained as the Central Government Industrial Tribunal (CGIT) was non- functional. That matter was also taken up and heard on various occasions brushing aside the objection raised by the respondent with regard to maintainability in view of the fact that CGIT was non-functional and in view of the extraordinary circumstances the impugned order came to be passed by terminating the pending enquiry.
47. He would contend that the petition having been heard and entertained on merits, the subsequent development of filling up of the office of the CGIT would not deprive this Court of its authority to exercise jurisdiction under Article 226. He would contend that the mere availability of alternate remedy would not in any manner curb the authority of this Court to exercise its jurisdiction under Article 226. He would contend that there has been a serious infringement of the petitioner’s right to livelihood by wholly unwarranted resort, to the draconian provision of Section 15A of the Standing Orders. That the action impugned has resulted in violation of the principles of natural justice as the respondent has dispensed with the enquiry as mandated under Section 15 of the Standing Orders without there being any justifiable cause. That the dispensation of the enquiry is on the strength of fabricated and concocted documents.
48. He would invite the attention of the Court to the Medical Certificate issued by the Hospital run by the Management (Annexure-P1). He would contend that it is to be construed as a concocted and fabricated document as the doctor has merely noted the injury on the head and has not recorded his opinion as to the nature of the injury. He would contend that it was incumbent upon the doctor to have recorded his opinion and the failure can only be on account of some extraneous influence and that extraneous influence can be inferred from the fact that the patient has been referred to Mallya Hospital for further treatment when the wound could have been very well treated at the Hospital itself. He would contend that the said document could not have been relied upon by the Management to draw a conclusion that the petitioner had mounted a murderous attack. In view of the failure of the examining doctor to furnish his opinion and in the light of Annexure- AA - wound certificate issued by Ramaiah Hospital, he would contend that the case made out by the Presenting Officer and the consequent report of the Enquiry Officer must necessarily fail and consequently, the impugned order at Annexure-A which has placed reliance on the inchoate document also stands vitiated.
49. He would contend that the action is motivated and that the said fact can be inferred from the failure of the Presenting Officer to place on record the hospital records or atleast the treatment given to the alleged injured workman. He would contend that the screening of such vital material by the Presenting Officer and the Enquiry Officer in collusion with the other officials is a material irregularity vitiating the invocation of the provisions of Section 15A of the Standing Orders. He would contend that the said documents have been screened and not placed before the CMD only with the intention of obtaining a desired result and the non-consideration of this material taints the satisfaction arrived at by the CMD to dispense with the enquiry and thereby deny the procedure as established by law and made available to the petitioner under the provisions of Section 15. He would contend that by invoking Section 15A without taking into consideration the wound certificate or the medical records of Ramaiah Hospital has resulted in a serious breach of principles of natural justice and hence, he would contend that the writ petition is maintainable. In this regard, the learned Counsel for the petitioner would place reliance on the following rulings of the Hon’ble Apex Court. He places reliance on the observations and conclusions of the Apex Court in paragraph numbers mentioned against each ruling.
(i) WHIRLPOOL CORPORATION VS REGISTRAR OF TRADEMARKS, MUMBAI & ORS. – (1998)8 SCC 1 (Paragraphs 14 to 21);
(ii) SYED MAQBOOL ALI VS STATE OF U.P. & ANOTHER – (2011)15 SCC 383 (Paragraphs 10 & 11);
(iii) M/S. TEJAS NETWORKS LTD. VS THE DY. COMMISSIONER OF INCOME TAX, BENGALURU & ANOTHER – ILR 2015 KAR 4143;
(iv) UNION OF INDIA VS TULASIRAM PATEL – (1985)3 SCC 398;
(v) M.D., TAMIL NADU STATE TRANSPORTATION CORPORATION VS NEETHIVILANGAN KUMBAKONAM – AIR 2001 SC 2309.
50. Per contra, learned Counsel for the respondent would place reliance on the ruling of the Hon’ble Apex Court in the case of TANSINGH NATHMAL & ORS. VS A.MAZID, SUPERINTENDENT OF TAXES – (1964)6 SCR 654 and would invite the attention of the Court to the unnumbered paragraph at page 661 which reads as under:
“………The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court of tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Art. 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up.”
51. He would contend that in the light of the above observations, the instant writ petition is not maintainable. He would contend that the claim of the petitioner and the reliance placed on the wound certificate issued are all matters that require evidence and trial and such facts cannot be adjudicated by this Court. In furtherance of this contention, he would place reliance on the ruling in the case of STATE OF U.P. & ANOTHER VS LABH CHAND – 1993(2) SCC 495 and would invite the attention of the Court to paragraph 9. On reading of paragraph 9, it is apparent that the Apex Court has placed reliance on its own ruling noted supra. He would place further reliance on the ruling of the Apex Court reported in the case of STATE OF U.P. & ANOTHER VS RAJYA KHANIJ VIKAS NIGAM S.S. & OTHERS - 2008 AIR SCW 6086, to contend that merely because writ petition has been entertained, it will not in any manner constrict the power of the High Court to reject the same on the ground of availability of alternate remedy.
52. From a reading of the above citations, it is apparent that the law as laid down by the Apex Court is that the existence of alternate statutory remedy is not a statutory or constitutional bar for the High Court to refuse to exercise of jurisdiction under Article 226. That in the event of alternate remedy being unduly onerous and does not provide an equally efficacious remedy, it would certainly be open to the High Court to exercise its jurisdiction.
53. In the instant case, the writ petition was preferred at the time when the CGIT was dysfunctional for quite sometime with no Presiding Officer having been appointed and the petitioner who was facing an enquiry was suddenly deprived of the opportunity to defend himself on account of the impugned order at Annexure-A which resulted in denial of the process as provided by law under Section 15 of the SO whereby the petitioner stood deprived of his right to livelihood and by dispensing with an enquiry on the strength of certain documents whose conclusiveness with regard to the fact appears to be suspect in the light of the documents placed before this Court in the form of the wound certificate issued by the very Hospital in which the said B.K.Uthappa was said to have admitted and taken treatment. The mere fact that such vital documents have been screened and not placed before the CMD, in the opinion of this Court, cannot but be held to have vitiated the satisfaction arrived at by the CMD to conclude that it is no more possible to conduct an enquiry.
54. This Court is further constrained to presume so in the light of the improvements made in the reports. In the complaint by the son, it is stated that the said B.K.Uthappa was assaulted with a plastic chair and empty bottle. The complaint nowhere states that the assailant had tried to murder the complainant’s father. Despite the absence of any categorical statement in the complaint and also in the absence of any medical opinion as to the nature of injury, MW-1 in his letter addressed to the General Manager, would venture to state that the assault was an attempt to murder and that he senses danger to his life and concludes that he will not present himself for cross- examination. Interestingly, this charge of murder attempt has not even been pursued by the police who have now filed a charge sheet for the offence punishable under Section 324 IPC. It is even more interesting to note that the very victim has also in his communication to the General Manager dated 13.06.2014 has alleged that the petitioner has mounted a murderous assault, but he carefully omits to narrate the nature of injuries suffered or the opinion of the doctor as recorded in the wound certificate or the treatment undergone by him. There is not even a whisper about these aspects.
55. These contradictions notwithstanding MW-1 would compound it further by stating that the witness is in ICU and interestingly the alleged victim B.K.Uthappa has addressed a letter to the same officer and on the same date. It is hard to believe that a wound which required suturing as a treatment, would have inspired any medical professional to recommend his admission to ICU. That the injury suffered is a simple injury is corroborated by the charge sheet which is filed and to state that a simple injury has warranted admission to ICU would only go to show that there is something more to it than meets the eye. The fact that the said B.K.Uthappa was drunk is also suppressed and not placed before the CMD who passed the impugned order. The fact that the said B.K.Uthappa was not one of the witnesses who was required to depose against the petitioner is also not placed before the CMD.
56. The further report of the security department (Annexure-Q2) only strengthens and corroborates the inference drawn by this Court that this is a well orchestrated attempt by certain officials mostly of the security department to take advantage of the situation and ensure the petitioner’s removal from service. The report (Annexure-Q2) by the Chief Security Officer proceeds to improve on the complaint by reporting that the assault was with a wooden chair, blatantly ignoring the statement of the complainant that a plastic chair was used to assault. Though the report refers to treatment at Ramaiah Hospital, it does not state as to why Mallya Hospital refused treatment or as to why the patient who was referred to Mallya Hospital and was shifted to Mallya Hospital was again shifted to Ramaiah Hospital. The report is also ominously silent with regard to the wound certificate issued by the Ramaiah Hospital, which admittedly would have been available with the hospital authorities. If not the wound certificate, the nature of the injury suffered and the treatment prescribed and given to the injured, would be very much available in the “Case Sheet” maintained by the treating hospital. The fact that the said B.K.Uthappa (incidentally working in the security department) was drunk is also not disclosed. The reasons for suppressing the said fact are also not explained. More importantly, the authenticity of the wound certificate is also not disputed before this Court.
57. It is also interesting to note the contents of Annexure- Q3 signed by the Presenting Officer dated 16.06.2014. It states that the other witnesses (12 in number) have orally expressed their unwillingness to depose in the enquiry fearing for their safety in life. The said document commences with the heading ‘Security Department’, but is signed by the Presenting Officer. Though it states that the other witnesses have orally expressed their unwillingness, the Presenting Officer has nowhere detailed as to when or where the witnesses expressed their apprehension. It is also perplexing to note that the Presenting Officer has affixed his signature to the document which appears to have been prepared by the Security Department.
58. The report of the Security Department (Annexure-Q2) is dated 14.06.2014. The document signed by the Presenting Officer is dated 16.06.2014. The date of enquiry is 16.06.2014 and the report of the Presenting Officer is also placed before the Enquiry Officer on 16.06.2014. Apparently, copy is not furnished to the petitioner nor did the Enquiry Officer deem it necessary to afford an opportunity to the petitioner to have his say on the alleged letter submitted by the Presenting Officer and proceeded to prepare his report on the same day and has also submitted it to the Management on the same day, that is on 16.06.2014 and the impugned order (Annexure-A) came to be passed on the very next day i.e., on 17.06.2014.
59. On perusal of the report and the impugned order, it can be seen that there is absolutely no justification for the tearing hurry, with which, the enquiry proceedings have been wound-up leading to the CMD invoking the provisions of Section 15A. The say of the Presenting Officer, that he is not in a position to produce witnesses has been accepted at face value and acted upon as if it is the gospel truth. The Enquiry Officer ought to have called upon the Presenting Officer to obtain the refusal to testify in writing or ought to have called upon the Presiding Officer to substantiate his statement. This Court is constrained to think along these lines and infer accordingly keeping in view the nature of injury reported. It is apparent that the Presenting Officer who is also a member of the Security Department has clearly acted in a biased manner. Even if the same is pardonable, the tearing hurry by the Enquiry Officer to conclude the enquiry and submit the report even without ascertaining as to whether the 12 other witnesses were reluctant to depose is flabbergasting. Admittedly, the venue of the enquiry was behind the high walls and iron gates of the company premises. It is not in dispute that the gates are well guarded by the security department. It is also not in dispute that the petitioner/delinquent was not present during the enquiry on 16.06.2014. If this be the scenario, the least the Enquiry Officer could have done is insist and call upon the Presenting Officer to produce the witnesses for the purposes of recording the statement that they are not willing to depose fearing reprisal or he could have atleast insisted that the Presenting Officer place written affirmation of the said fact before the Enquiry Officer.
60. The other astounding fact is the reliance placed by the Enquiry Officer on records and material which have not been brought on record or introduced into the enquiry and marked through any witnesses. The only witness who had been examined was MW-1 whose examination-in-chief had been concluded and matter was adjourned for the purpose of cross-examination of MW-1 i.e., on 12.06.2014. Apparently on the said date, proceedings were not carried forward as the petitioner did not appear on the said date and it is apparent that the petitioner who was arrayed as an accused and was evading arrest, did not appear before the enquiry and in fact had sought leave on the ground that he needs to attend to his sick mother in his native village. It is not that the Enquiry Officer was unaware of the complaint or the legal consequences to follow. Despite being well aware that the petitioner was facing a serious threat of arrest and detention by the police has proceeded with the enquiry. Even more alarming is the fact that the enquiry officer has proceeded to place reliance on documents more particularly with the document detailed at Sl. No.26 to 32 which admittedly came into existence after 08.06.2014 and which documents have not been spoken about by any witness. Even without the said documents being brought on record in the manner known to law, the enquiry officer has proceeded to treat them as unimpeachable material evidence and has proceeded to submit a report. In this regard, the settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. The said principle is no more res integra. In this regard, this Court places reliance on the ruling of the Apex Court rendered in the case of DHANAJAYA REDDY VS STATE OF KARNATAKA – (2001)4 SCC 9, wherein at paragraph 23, the Apex Court has been pleased to reiterate the principle as follows.
23. It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. This Court in State of U.P. vs. Singhara Singh: (AIR p. 361, para 8) held “A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down.”
In this regard, reliance is also placed on the observation of the Full Bench of the Apex Court in the case of CAPTAIN SUBE SINGH & OTHERS VS LT. GOVERNOR OF DELHI & OTHERS – (2004)6 SCC 440, wherein at paragraph 29, it is observed as under:
“29. In Anjum M.H. Ghaswala, a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka.) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof.”
61. Even the alleged victim B.K.Uthappa has also not been examined by the Enquiry Officer, but his letters, written by the said B.K.Uthappa and the statement of MW-
1 have been taken on record even without ascertaining the authenticity.
62. With regard to the fairness of procedure and the applicability of the doctrine of natural justice applicable to administrative bodies, gainful reference could be made to the dictum of the Apex Court in the case of MANAGEMENT OF M/S. M.S.NALLY BHARAT ENGINEERING CO. LTD. VS STATE OF BIHAR & OTHERS – (1990)2 SCC 48. The Apex Court tracing the advent of the concept of applicability of doctrine of natural justice has placed reliance on its own ruling and has observed as under:
“12. After the leading English case of Ridge v. Baldwin and an equally important case of this Court in A.K. Kraipak v. Union of India there was a turning point in the development of doctrine of natural justice as applicable to administrative bodies. Both the authorities laid down that for application of rules of natural justice the classification of functions as ‘judicial’ or ‘administrative’ is no`t necessary. Lord Reid in Ridge case explained: ‘that the duty to act judicially may arise from the very nature of the function intended to be performed and it need not be shown to be superadded’. Hegde, J., in Kraipak case said that under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.
13. What is thus important in the modern administration is the fairness of procedure with elimination of element of arbitrariness. The State functionaries must act fairly and reasonably. That is, however, not the same thing to state that they must act judicially or quasi-judicially. In Keshav Mills Co. Ltd. v. Union of India, Mukherjea, J. said (SCC p. 387, para 8: SCR p. 30) “The administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly.”
Proceeding further, the Apex Court examining the term ‘fairness of procedure’, ‘fair play of action’, ‘duty to act fairly’, has observed in paragraphs 19 & 20 as under:
“19. It may be noted that the terms ‘fairness of procedure’, ‘fair play in action’, ‘duty to act fairly’ are perhaps used as alternatives to “natural justice” without drawing any distinction. But Prof. Paul Jackson points out that ‘Such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the contrary, to refer to a standard of behaviour which, increasingly, the courts require to be followed even in circumstances where the duty to observe natural jus∼ tice is inapplicable” (“Natural Justice” by Paul Jackson, 2nd edn., p. 11).
20. We share the view expressed by Professor Jackson. Fairness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase “that justice should not only be done but be seen to be done” is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good administration. It has no set form or procedure. It depends upon the facts of each case. As Lord Pearson said in Pearlberg v. Varty [(1972) 1 WLR 534, 547 : (1972) 2 All ELR 6] (at p. 547), fairness does not necessarily require a plurality of hearings or representations and counter- representations. Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly.”
63. It is relevant to note the observations of the Apex Court that the authority is not misguided by extraneous or irrelevant considerations. In the instant case, as observed, the authority which passed the orders at Annexures-A & A1 have certainly entrapped themselves by placing reliance on self-serving statements of certain officials of the Security Department, who in all probability might have got carried away on account of the alleged brawl between the petitioner and the said B.K.Uthappa and the said brawl appears to have motivated them to act in a partial manner. As held by the Apex Court, it would not suffice that if justice is not only done but it must be seem to have been done and as held by the Apex Court with fairness as the prime test, the narration above clearly dispels any doubt that the petitioner has not been treated fairly nor has been afforded a fair opportunity.
64. It is also relevant to note that no finding has been rendered by either of the authorities, holding that, not affording an opportunity to the petitioner, to answer the allegations set out against him, would not cause any prejudice to him. The biased statements of the Security Department personnel has been accepted at face value and acted upon as if it is the gospel truth. It is also relevant to note that the Presenting Officer who is also from the Security Department has fearlessly appeared and participated in the enquiry. But the witnesses who are his colleagues are said to be scared to death, to participate in the very same enquiry. In the light of this fact, the claim of the Management that the witnesses are mortally afraid to depose has a ring of falsity to it. In all probability, the tearing hurry to terminate the ongoing enquiry and pass the order of dismissal was to take advantage of the situation and present a fait accomplice before the truth i.e., the nature of injury suffered got divulged. In all probability, opportunity was denied to the petitioner only to prevent him from bringing on record any material which would deprive the management of an opportunity to terminate the ongoing enquiry and invoke Section 15A of the Standing Orders. The fact that the said B.K.Uthappa had consumed alcohol has been deliberately concealed to make him appear like an angel and vilify the petitioner. The Hon’ble Apex Court in the case of DHARAMPAL SATYAPAL LIMITED VS DEPUTY COMMISSIONER OF CENTRAL EXCISE, GAUHATI & OTHERS – (2015)8 SCC 519, has been pleased to hold as follows in paragraph 42.
42. So far so good. However, an important question posed by Mr. Sorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority. This was so held by the English Court way back in the year 1943 in General Medical Council v. Spackman. This Court also spoke in the same language in Board of High School and Intermediate Education v. Chitra Srivastava, as is apparent from the following words: (SCC p. 123, para 7) “7. The learned counsel for the appellant, Mr. C.B.Agarwala, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show-cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show- cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show-cause notice before inflicting a penalty does not depend on the authority’s satisfaction that the person to be penalized has no defence but on the nature of the order proposed to be passed.”
65. Though fear of reprisal is made as a ground to accept and conclude that the witnesses are unwilling to depose, but some how the fear of reprisal has not prevented them from being listed as witnesses in the criminal case. In the charge sheet, one C.P.Pavan has been listed as a witness. The said C.P.Pavan has also been arrayed as a witness in the enquiry against the Petitioner. The version of the management is that the witnesses are mortally afraid of deposing as they fear reprisals which includes the said C.P.Pavan, but perusal of the charge sheet would reveal that the said C.P.Pavan has identified himself as a witness to the incident and accordingly, he has been listed as an eye-witness. A person who is listed as a witness, expresses apprehension of reprisal and refuses to depose in the domestic enquiry, but is ready and willing to depose in the criminal case. This singular fact not only creates a suspicion in the mind of this Court, but also goes on to corroborate the inference drawn by this Court that the entire exercise to abandone the enquiry and prejudice the mind of the CMD to pass adverse orders appears to be a well orchestrated action by the Security Department. The tearing hurry was probably aimed at achieving the objective, before the real nature of the “injury suffered” became public, and the objective has been successfully achieved. Though the injured was taken to Mallya Hospital, no records of Mallya hospital are produced, as to the treatment given or the reason why it refused to admit the patient or why he was forwarded to Ramaiah hospital.
66. It is interesting to note that MW-1 and the Chief Security Officer who had submitted their say to the General Manager never claim to be the witnesses to the incident that occurred on 08.06.2014, but in their representation and report had stated that the petitioner attempted to murder the said B.K.Uthappa.
67. The conclusion drawn by the Management that the assault was made with the intention of deterring witnesses to depose against the petitioner appears to be farfetched and baseless as the said Uthappa was never a witness, to any of the activities that occurred on the strike day as the presence of both the petitioner and the said B.K.Uthappa were at different places. While the petitioner was admittedly at, Kuvempu Circle area, the said B.K.Uthappa was posted at the Officers Club area. Hence, there was no question of the said B.K.Uthappa, ever being a witness of any consequence against the petitioner. If at all, the petitioner intended to adopt violence as the measure to deter the witnesses, the natural consequence would have been to target one of the persons listed as a witness against him. If that be the logical approach, then the petitioner would have very well assaulted the said C.P.Pavan, who is listed as a witness against him and was also present during the function at the Samaj held on 08.06.2014. There is not even a whisper as to why he did not choose to attack the said C.P.Pavan. There is no whisper that even an oral threat was given to the said C.P.Pavan during the course of his alleged assault on the said B.K.Uthappa. The lack of explanations to the inherent contradictions does not inspire confidence in this Court and renders the version of the Management, to not only to dispense with the enquiry but also terminate the pending enquiry, as an improbable version. Further, the action against the petitioner appears to be borne out of malice and the petitioner appears to be targeted by the Security Department for some special attention.
68. The version that the witnesses are mortally afraid of deposing stands belied by the very fact of the complaint by one K.P.Ashwin who alleged physical assault by the petitioner at about 9.00 a.m. near Ayyappa Park. The said complaint in the considered opinion of this Court stands falsified by the report of the Security Department dated 11.12.2013. The presence of the petitioner between 7.45 a.m. and 3.00 p.m. stands affirmed by the said report. If that be so, then the allegation by the said K.P.Ashwin that he was assaulted at a different place during the said time, prima facie appears to be false. The report specifically records the time when the petitioner along with others was noticed in Kuvempu Circle area and concludes that the OBs (Office Bearers) and other striking employees left the factory area at about 1500 hours only. If the report is to be taken as true then the corollary that would follow is that the complaint is false. The presence of the petitioner is recorded in the report by name and incidentally he is described as office bear of BEWUF and the way the report is made out it becomes apparent that the petitioner was leading the agitation at Kuvempu Circle and he was under the lens of the Security Department officials who were there to facilitate the movement of the employees who did not partake in the strike. If he was leading the trade union activities and if he had thereafter left, his absence would have been certainly noted. But that not being the case, the complaint by the said K.J.Ashwin appears to be motivated or at the instigation of unseen hands.
69. In the light of the above discussion, this Court is constrained to conclude that there has been a deliberate attempt to take undue advantage of an unfortunate situation and wreak vengeance. The glaring act of suppression and omission to place vital material like the wound certificate and treatment records before the CMD leading to the passing of the impugned order vitiates the impugned order. The consequential termination of the enquiry, certainly amounts to a breach of and is in the teeth of the principles of natural justice. The denial of opportunity to which the petitioner was legitimately entitled to, can be by no stretch of imagination brushed aside as otherwise it would constitute an infringement to the right of his livelihood.
70. In the light of the above discussion and material available on record, this Court holds that the orchestrated action is a motivated action thereby resulting in the violation of principles of natural justice. The act of denial of opportunity to the petitioner and also keeping in view the fact that the proceedings have been terminated despite the request for adjournment can certainly be construed as acts in breach of the principles of natural justice and in breach of the principles of audi alteram partem.
71. The above discussion if appreciated in conjunction with the fact that the alternate redressal forum was non- functional, then this Court has no hesitation in holding that the writ petition is maintainable.
72. It is relevant to note that Annexure-A1 which is titled as a final order was referred to as a communication by the learned Counsel for the respondent, but the said contention stands contraverted by the show cause notice dated 23.07.2014 issued by the General Manager to show cause as to why the gratuity amount should not be forfeited. Paragraph 5 of the said show cause refers to this final order as the order of dismissal and does not refer to the order of CMD i.e., Annexure-A. If that be the case, then the said final order based on an incomplete enquiry has no legs to stand and has necessarily be held to be in contravention of Section 15 of the respondent Standing Orders which reads as under:
“15. Disciplinary action for misconduct:
(1) The following shall constitute misconduct for purposes of this Standing Order:-
(a) xxxx (b) Striking work or inciting others to strike work in contravention of the provisions of any law or rule having the force of law or deliberate slowing down of work either singly or in combination with others.
(c) xxxxx Xxxxxxx (2) An employee guilty of misconduct may be:
i) Warned or consured, ii) Increments withheld, iii) Demoted to junior post or lower grade, iv) Suspended without pay for a period not existing four days at a time, v) Dismissed without notice or any compensation in lieu of notice.
*[(3)(a) Where a disciplinary proceeding against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are under investigation or trial or till such time as the permission for dismissal is obtained under the Industrial Disputes Act, 1947, if required, and the employer is satisfied that it is necessary or desirable to place the workman under suspension he may, by order in writing, suspend him with effect from such date as may be specified in the order. A statement setting out in detail the reasons for such suspension shall be supplied to the workman within a week from the date of suspension.
(b) A workman who is placed under suspension, shall be paid subsistence allowance in accordance with the provisions of Sec.10-A of the Industrial Employment (Standing orders) Act, 1946.
(c) The proceedings of the enquiry shall be recorded in English or Kannada, whichever is preferred by the workman.
(d) The proceedings of the inquiry shall be completed within a period of three months;
Provided that the period of three months may, for reasons to be recorded in writing, be extended by such further period as may be deemed necessary by the inquiry officer.] (4) The order of suspension pending enquiry shall be in writing and shall take immediate effect from the date of the order. Such order shall set out the alleged misconduct and the worker shall be given an opportunity of explaining the circumstances alleged against him. If on enquiry the order is confirmed, the worker shall be deemed to be absent from duty for the period of suspension and shall not be entitled to any remuneration for such period. If a prima facie case is made out, he may be dismissed from the date of suspension. If, however, the order is rescinded, the worker shall be entitled to the same remuneration as he would have received if he had not been suspended.
During the period of suspension, the worker shall not leave the station except with the written permission of the Manager.
*[(4)(a): Wearing of uniforms:
(i) Workmen shall not be admitted into the factory premises or the offices, as the case may be, unless they come for work wearing the full set of uniforms provided to them. All workmen shall wear the full set of uniforms while on duty, be it inside or outside the factory premises/offices (ii) In the event of the workman not wearing the full set of uniform while reporting for duty they will be stopped at the entrance itself and will not be permitted to enter the factory/offices and will be treated as absent from duty.
(iii) If the workmen are found not wearing full set of uniforms while on duty, they will be treated as absent from duty for the day and sent out of the factory/offices.] (5) No order of dismissal shall be valid-
(i) Unless the worker concerned (a) is informed in writing of the alleged misconduct and (b) is given an opportunity to explain in writing the circumstances alleged against him, and (ii) Unless an enquiry is held in conformity with the principle of natural justice.
In awarding punishment under this Standing order, account should be taken of the gravity of the misconduct, the previous record of the workman and any other extenuating or aggravating circumstances that may exist.
(6) The worker concerned will be allowed at his request either verbally or in writing, a co- worker or a Union office bearer to assist him at the enquiry.
(7) The worker concerned will be supplied with copies of the statements that are recorded in his presence at the enquiry.
(8) A copy of the order shall be delivered to the worker concerned or dispatched to his last known address by Registered Post with Acknowledgement Due.
(9) The approval of the Manager of the Establishment is required in every case of dismissal and, when circumstances warrant, the Manager shall institute independent enquiries before dealing with the charges against the workman.
(10) Mode of serving charge sheet and enquiry notices etc., is by Registered Post with Acknowledgement Due/Despatch Rider if the employee is not attending factory/suspended. If Registered Post with Acknowledgement Due letter is returned, by displaying on the notice board.”
73. In that view, the conclusion of the enquiry not being in accordance with Section 15, the final order has no legs to stand and stands vitiated on the short ground of being violative of the principles of natural justice. Hence, the said final order also warrants interference.
74. This Court would not have endeavoured to delve deep into the factual aspects, but for the reason that it became apparent even during the hearing that the petitioner had not received fair treatment at the hands of the respondents, more importantly, the wound certificate issued by M/s. Ramaiah Hospital produced by the petitioner and pertaining to the said B.K.Uthappa has not been denied. The wound certificate speaks volumes. More over, despite the lengthy hearing, no attempt was ever made to place on record the medical records pertaining to the treatment given to the said B.K.Uthappa to even prima facie justify the allegation of attempt to murder. This Court has traversed great lengths to discern the truth in the light of the law laid down by the Apex Court in the case of A.SHANMUGAM VS ARIYA KSHATRIYA RAJAKULA VAMSATHU MADALAYA NANDHAVANA PARIPALANAI SANGAM, REPRESENTED BY ITS PRESIDENT & OTHERS – (2012)6 SCC 430. The Apex Court placing reliance on its own ruling in the case of MARIA MARGARIDA SEQUERIA FERNANDES VS ERASMO JACK DE SEQUERIA – (2012)5 SCC 370, has extracted the observations in paragraph 25 and there after has laid down certain principles in paragraph 43, which reads as under:
“43. On the facts of the present case, the following principles emerge:
43.1. It is the bounden duty of the court to uphold the truth and do justice.
43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.
43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.
43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process.
75. In the light of the principles laid down by the Apex Court, every court is mandated to discern the truth and to uphold the truth and do justice. Every litigant is expected to state the truth and the courts must ensure that there is no incentive for the wrongdoer in the temple of justice.
76. As regards the contention of the respondents which was strenuously put across that this Court should not enter into the domain of adjudicating the factual aspects of the case, this Court places reliance on the ruling of the Apex Court rendered in the case of SYED MAQBOOL ALI VS STATE OF UTTAR PRADESH & ANOTHER – (2011)15 SCC 383. The Apex Court at paragraph 11 was pleased to hold as under:
“11. When a writ petitioner makes out a case for invoking the extraordinary jurisdiction under Article 226 of the Constitution, the High Court would not relegate him to the alternative remedy of a civil court, merely because the matter may involve an incidental examination of disputed questions of facts. The question that will ultimately weigh with the High Court is this: whether the person is seeking remedy in a matter which is primarily a civil dispute to be decided by a civil court, or whether the matter relates to a dispute having a public law element or violation of any fundamental right or to any arbitrary and high- handed action. (See the decisions of this Court in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. and Kisan Sahkari Chini Mills Ltd. v. Vardan Linkers.”
77. In this regard, it is also relevant to note that the so- called factual aspects are borne out by the records before the Court and this Court has relied on undisputed facts to arrive at the conclusion to entertain the writ petition and hold the same as maintainable despite the availability of an alternate remedy which admittedly at the time the writ petition was entertained was not an efficacious one as the Tribunal was not functioning. Hence, the objection regarding maintainability requires to be rejected and is accordingly rejected.
78. This Court also places reliance on the ruling of the Apex Court in the case of KRISHI UTPADAN MANDI SAMITI, ALLAHABAD VS BAIDYANATH AYURVED BHAWAN PRIVATE LIMITED & ANOTHER – (2011)12 SCC 277, wherein the Apex Court after taking note of the long lapse of time, held that in the circumstances it is not desirable to entertain the issue of alternate remedy and the matter requires to be considered on merits on account of the long lapse of eight years. In the instant case, petitioner has been out of employment since 2014 and has been denied his rights in a manner which does not inspire confidence. As narrated above, there has been a gross violation of his rights and a gross breach of principles of natural justice which factors emphasized this Court to delve into the details to discern the truth.
79. In the light of the above discussion, the orders impugned at Annexures-A & A1 are set aside. W.P.Nos.55121-122/2015 are partly allowed. The setting aside of the impugned orders will not come in the way of the respondent-Company in continuing with the enquiry if it so deems fit. The respondent shall forthwith reinstate the petitioner-workman with all consequential benefits. Though other contentions are urged, the adjudication of the same is unnecessary in the light of the finding rendered by this Court on the issue of maintainability and the conclusions drawn by the Court based on the records made available by the parties during the hearing. Hence, other contentions which are not adjudicated in this order are left open. The application for impleading preferred by the respondent to bring on record the deponent in the affidavit dated 16.03.2018 does not merit consideration as the said persons are neither necessary nor proper parties to the proceedings. The issue of protected workman is also not gone into. But the fact remains that the respondent themselves in their report have recognized the petitioner as an office bearer.
80. In the light of the lead writ petition being allowed in part, the connected petition i.e., W.P.No.18832/2015 challenging the order passed on the application raising a dispute under Section 2A (2) & (3) of the Act does not survive for consideration and is accordingly disposed off.
Sd/- JUDGE CHS/KK CT-HR