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Case Number

D.B Special Appeal (Writ) No. 790 of 1995

Advocates

For Appellant.— Sri Deepak Kumar Khivsara.
Sri M.S Singhvi.

Judges

Mr. V.G. Palshikar
Mr. M.G. Mukherjee

Acts

INDUSTRIAL DISPUTES ACT 1947
S. 68 of the Uttar Pradesh State Universities Act.
S. 10 of the Industrial Disputes Act, 1947,

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This special appeal challenges a judgment and order dated October 30, 1995, of a learned Single Judge in S.B. Civil Writ Petition No. 3310 of 1990. The Single Judge dismissed the writ petition on the ground that an alternative efficacious remedy was available to the writ-petitioner-appellant, relying on a Full Bench decision of the Court in Gopi Lal Teli v. State of Rajasthan [1995 (2) L.L.N 496].

The writ petition had been admitted in 1990 and the Single Judge issued notice; respondents filed a detailed reply, and the writ-petitioner filed a rejoinder. The matter was argued at length (the petitioner argued for three consecutive days and filed written submissions). At final disposal the Single Judge declined to decide the merits and dismissed the petition in limine on the basis of the Full Bench decision.

The substantive controversy concerns the validity of domestic disciplinary proceedings that culminated in the appellant's dismissal. The appellant alleged multiple procedural infirmities and breaches of principles of natural justice in the domestic enquiry and appellate process, and further alleged that the authorities that passed the disciplinary and appellate orders were incompetent to do so.

Legal Issues Presented

Whether the Single Judge was correct in dismissing the writ petition on the sole ground of availability of an alternative remedy in view of the Full Bench decision in Gopi Lal Teli and the facts of this case.
Whether, on the facts pleaded, the disciplinary order and the appellate order were passed without jurisdiction and therefore amounted to nullities amenable to challenge by writ under Article 226.
Whether the domestic enquiry and the appellate process complied with the principles of natural justice (including supply of prosecution statements, opportunity to cross-examine, examination of defence witnesses, recording of the appellant's own statement, and adequacy/speaking quality of the enquiry report and appellate order).
Whether non-payment or delayed payment of suspension allowance and disregarding medical certificates materially affected the fairness of the enquiry and thereby vitiated proceedings.
If the writ petition raises a prima facie case of jurisdictional defect or serious breach of natural justice, whether the High Court should hear the petition on merits despite the availability of alternative remedies.

Arguments of the Parties

Appellant's Arguments (Counsel: Sri Deepak Kumar Khivsara)

The domestic enquiry was not conducted in accordance with law; the appellant was denied adequate opportunity to defend himself and to record his statement or tender defence witnesses.
The enquiry officer considered the appellant's past conduct without adequate notice or communication, and without a second show-cause notice; this extraneous consideration prejudiced the outcome.
The disciplinary authority and the appellate authority were incompetent: the General Manager who appointed the appellant also acted as disciplinary authority and then decided the appeal, rendering both the dismissal and confirmation void for want of jurisdiction.
The appellant was kept under suspension without timely payment of suspension allowance; the delayed payment and illegal deductions (e.g., provident fund) caused financial hardship and undermined his ability to participate effectively in the enquiry, including attending hearings.
Statements of management witnesses recorded in an ex parte portion of the enquiry (September 11, 1989) were not supplied to the appellant; he was thereby denied an effective right of cross-examination.
Defence witnesses who were produced and were available were not examined despite assurances; the enquiry officer closed the enquiry without justifying that refusal.
The enquiry officer failed to record the appellant's own statement in defence despite his presence when the enquiry concluded.
The charges were vague and indefinite (e.g., mere allegation of "abusive language" without specification), and a material prosecution witness (process server/messenger) was not examined by the enquiry despite being available and identified in the chargesheet.
The show-cause notice/charges were issued by an officer (Superintending Engineer (Drilling)) who was not the appointing or disciplinary authority; this raised doubt about the competence of the authority initiating proceedings.
The appellate order was nonspeaking and failed to address the appellant's specific legal and factual points raised in the memo of appeal, contrary to the duty to "consider" under the Model Standing Orders.
Taken together, these allegations established a prima facie case warranting full adjudication on merits by the writ court rather than dismissal on the ground of an alternative remedy.

Respondents' Arguments (Counsel: Sri M.S. Singhvi)

In their reply the respondents contended that the appellant had deliberately failed to produce the process server as a defence witness and instead sought to have him summoned; if the appellant truly wished to produce that witness he could have voluntarily produced him.
The respondents asserted that certain prosecution documents (for example a joint complaint) were not produced before the enquiry and that bringing forward such a witness required meaningful notice—implying procedural safeguards or tactical objections to the appellant's attempts to rely on that witness.
The respondents' overall stance in the pleadings included a claim that statements recorded by the enquiry officer would be made available only after conclusion of the enquiry (their procedural explanation for non-supply during the enquiry).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Gopi Lal Teli v. State of Rajasthan [1995 (2) L.L.N 496] (Full Bench)	Full Bench view that availability of alternative remedy is a significant consideration and writ jurisdiction under Art. 226 should be exercised sparingly where such remedies exist; the Full Bench refused to exhaustively list circumstances where HC may still interfere.	The Single Judge relied on this Full Bench decision to dismiss the writ petition. The present court examined the Full Bench reasoning and concluded that in the present facts the Full Bench approach did not preclude hearing on merits because exceptions applied.
Basant Kumar Sarkar v. Eagle Rolling Mills Ltd. [A.I.R. 1964 S.C. 1260]	Supreme Court relegated writ-petitioners to alternative remedies (e.g., S.10, Ss.74/75 of the Industrial Disputes Act) where appropriate.	The Full Bench had been influenced by this case to emphasize alternative remedies; the present court noted this influence while distinguishing the present facts.
Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke [1976 (1) L.L.N 1]	Observation that possibility that Government may not refer an industrial dispute under S.10 is not a relevant consideration to deny writ jurisdiction.	Referenced by the Full Bench and noted by the Court in assessing the relevance of alternative remedies in labour matters.
A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani [A.I.R. 1961 S.C. 1506]	Held that existence of an alternative remedy is not an absolute bar to exercise of Art. 226; identified key exceptions (complete lack of jurisdiction; order passed in violation of principles of natural justice), and observed discretion beyond those exceptions.	The Court relied on this authority to reaffirm that alternative remedies are a discretionary consideration and that the High Court may entertain petitions despite available remedies where exceptions or other discretionary factors exist.
Dr. Smt. Kuntesh Gupta v. Hindu Kanya Mahavidyalaya, Sitapur [1987 (2) L.L.N 922]	When an order is wholly without jurisdiction or nullity, a writ petition should not be dismissed because an alternative remedy exists.	Cited by the appellant and relied upon by the Court to support the proposition that nullity or lack of jurisdiction warrants consideration of the writ despite alternative remedies.
K.S. Joy v. Indian Institute of Management [1993 (7) S.L.R 650 (Gujarat)]	Once a High Court entertains a writ petition and hears it on merits, it is improper to relegate the party to an alternative remedy.	Referred to in support of the view that, after admission and detailed hearing, the appellant should not have been sent back to alternative remedies; the Court relied on this to criticize the Single Judge's late reliance on alternative remedy ground.
Hriday Narain v. I.T. Officer, Mumbai [(1970) 2 SCC 355 : A.I.R. 1971 S.C. 33]	Supreme Court's view cited on scope of High Court writ jurisdiction where alternative remedies exist.	Used in tandem with other authorities (as cited in K.S. Joy) to show that availability of alternative remedy does not oust writ jurisdiction.
Ram and Shyam Company v. State of Haryana [(1985) 3 SCC 267 : A.I.R. 1985 S.C. 1147]	Supreme Court imposed restraint on exercise of Art. 226 where effective and adequate alternative remedy exists, but this restraint does not oust High Court jurisdiction.	Cited to demonstrate the limited and discretionary nature of the alternative-remedy rule; relied on by the Court to support rehearing on merits in appropriate cases.
Ghanshyam Das Shrivastava v. State of Madhya Pradesh [(1973) 1 SCC 656 : A.I.R. 1973 S.C. 1183]	Authority cited in respect of obligations to consider suspension allowance, medical certificates and procedural protections in disciplinary proceedings.	The appellant relied upon it in arguing that delayed payment of suspension allowance and disregard of sickness certificates vitiated the enquiry; the Court noted these submissions as part of the prima facie case.
State Farms Corporation of India Ltd. v. Tarsem Lal Singh [1986 W.L.N (U.C) 516]	Cited in support of propositions about fairness in disciplinary proceedings.	Relied upon by the appellant to demonstrate relevant precedents on enquiry fairness and to bolster the argument for interference by the writ court.
Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg [1977 (1) L.L.N 201]	Principle that disciplinary authority should not act as appellate authority in circumstances where such overlap vitiates proceedings.	Cited by the appellant to argue that the General Manager could not be both disciplinary and appellate authority; the Court treated this as a core jurisdictional complaint.
State of Punjab v. Bhagat Ram [1974 (2) L.L.N 432]	Authority on supply of statements and fair trial/enquiry procedures.	Cited by the appellant to show that non-supply of prosecution statements and denial of cross-examination are serious breaches of natural justice; the Court recorded these submissions.
State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan [A.I.R. 1961 S.C. 1623]	Authority concerning supply of statements and procedural fairness in disciplinary proceedings.	Relied upon by the appellant to support contention of denial of crucial documents and consequent unfairness; noted by the Court.
Amba Lal Sadhu v. State of Rajasthan [1991 (1) L.L.N 897]	Cited on issues of natural justice in disciplinary proceedings.	Used by the appellant to buttress arguments on enquiry irregularities; the Court recorded reliance on the authority.
Kashinath Dikshita v. Union of India [1986 (2) L.L.N 375]	Authority referenced for natural justice and enquiry procedure principles.	Cited by the appellant to support the complaint about non-supply of evidence and unfair enquiry practices; noted in the Court's summary of submissions.
Union of India v. Harcharan Singh [1974 (1) S.L.R 349]	Authority on the right to call and examine defence witnesses in disciplinary enquiries.	Cited by the appellant to show that refusal to examine defence witnesses is a violation of natural justice; the Court considered this in assessing whether a prima facie case existed.
Aral Kumar Mohan v. Labour Court, Jullundur City [1985 (2) L.L.N 579]	Authority addressing situations where an enquiry report is cryptic/one-sided and fails to reflect proper application of mind.	Cited by the appellant to characterise the enquiry report as an order-sheet lacking reasons; the Court noted this allegation when assessing the need for a full hearing.
State of Assam v. Mahendra Kumar Das [1970 S.L.R 445]	Cited on the requirement to produce essential documents/complaints and to allow effective cross-examination.	Relied upon by the appellant in arguing that absence of the joint complaint and non-production of statements prejudiced his defence; recorded by the Court.
State of Punjab v. Mohinder Singh Cheema [1992 (1) S.L.R 137]	Authority cited in context of enquiry irregularities and evidentiary deficiencies.	Cited by the appellant; the Court recorded the reliance as part of the catalogue of grievances supporting rehearing on merits.

Court's Reasoning and Analysis

The Court first reviewed the Full Bench decision in Gopi Lal Teli and the line of authorities addressing the effect of alternative remedies on Article 226 jurisdiction. It acknowledged the Full Bench's view that although alternative remedies exist, the High Court may in exceptional cases exercise its writ jurisdiction, but that the Full Bench declined to lay down an exhaustive list of those exceptional circumstances.

The Court then analysed A.V. Venkateswaran and other Supreme Court precedents which establish two principal exceptions where alternative remedies normally should not bar writ relief: (1) complete lack of jurisdiction in the authority that acted; and (2) orders passed in violation of principles of natural justice (nullities). The Court noted that these two exceptions are not exhaustive and that discretion remains with the High Court to entertain petitions depending on individual facts.

Turning to the facts of the present case, the Court found that:

The writ petition had been admitted in 1990 and proceeded through pleadings and full hearings; the respondents filed a detailed reply and the appellant filed rejoinder and argued the matter for several days.
Despite that procedural history, the Single Judge at final disposal summarily dismissed the petition by reference to the Full Bench decision without addressing the detailed factual allegations and legal submissions already raised and argued.
The appellant had pleaded a range of serious defects that, if proved, could render the disciplinary and appellate orders nullities or show grave breaches of natural justice. Those pleaded defects included jurisdictional infirmity (same officer acting as disciplinary and appellate authority), denial of right to cross-examine prosecution witnesses through non-supply of their statements, refusal to examine defence witnesses despite their availability, failure to record the appellant's defence statement, vague/unspecific charges, and procedural consequences of non-payment/delayed payment of suspension allowance and ignoring sickness certificates.
Given these allegations and the fact the respondents had engaged with the petition (filed reply) and the case had been heard on the merits, the Court concluded that a prima facie case existed which warranted a contested hearing on the merits rather than summary dismissal on the basis of the availability of alternative remedies.

The Court emphasised that resort to the Full Bench decision as a reason for dismissal after extended hearings — without evaluating whether the pleaded facts brought the case within recognised exceptions or justified exercise of discretion — was inappropriate. Consequently, the Court set aside the Single Judge's order and directed that another Single Judge hear the writ petition on merits after full contested proceedings.

Holding and Implications

Holding: The Court QUASHED AND SET ASIDE the impugned judgment and order of the learned Single Judge dated October 30, 1995, and directed that the writ petition be reheard on merits by another learned Single Judge.

Implications:

Direct effect on the parties: The appellant's writ petition will be re-heard and decided on merits after a contested hearing; the respondents remain defendants and must address the merits in that rehearing.
The Court did not lay down any new legal precedent; it applied existing principles (as reiterated from Supreme Court and other authorities) to the facts and exercised its supervisory discretion to ensure that a prima facie case alleging jurisdictional nullity and breaches of natural justice is adjudicated on merits rather than dismissed in limine because an alternative remedy exists.
No order as to costs was made.

Source constraint: This summary is confined strictly to matters stated in the provided opinion. No facts, arguments or holdings beyond those expressly presented in the opinion have been inferred or added.

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Deepak Kumar Khivsara v. Oil India, Ltd., And Others

Cases referred: Paras. 1. 1995 (2) L.L.N 496 1 2. 1993 (7) S.C.R 650 6 3. 1992 (1) S.L.R 137 21 4. 1991 (1) L.L.N 897 12 5. 1987 (2) L.L.N 922 5 6. 1986 W.L.N (U.C) 516 11 7. 1986 (2) L.L.N 375 12 8. (1985) 3 SCC 267 : A.I.R 1985 S.C 1147 6 9. 1985 (2) L.L.N 579 19 10. 1977 (1) L.L.N 201 10 11. 1976 (1) L.L.N 1 2 12. 1974 (2) L.L.N 432 12 13. 1974 (1) S.L.R 349 13 14. (1973) 1 SCC 656 : A.I.R 1973 S.C 1183 11 15. (1970) 2 SCC 355 : A.I.R 1971 S.C 33 6 16. 1970 (1) S.L.R 445 21 17. A.I.R 1964 S.C 1260 2. 18. A.I.R 1961 S.C 1623 12 19. A.I.R 1961 S.C 1506 5

For Appellant.— Sri Deepak Kumar Khivsara.

For Respondents.— Sri M.S Singhvi.

The Judgment of the Court was delivered by

Mukherji, J.:— The present special appeal is directed against a judgment and order, dated October 30, 1995, passed by a learned Single Judge of our Court in S.B Civil Writ Petition No. 3310 of 1990, whereby the learned Single Judge holding inter alia that the writ-petitioner-appellant has got alternative efficacious remedy before the Labour Court, apparently a Full Bench decision of five learned Judges of this Court in Gopi Lal Teli v. State of Rajasthan [1995 (2) L.L.N 496], dismissed the writ application only on the ground of alternative remedy being available to the writ-petitioner-appellant.

2. We have perused the said Full Bench judgment of this Court minutely. The Full Bench took into consideration the facts that in many judgments, the Supreme Court itself held that alternative remedy is no bar for entertainment of the writ petitions under Art. 226 of the Constitution of India and there may be cases in which Court inspite of the fact that there is an alternative remedy may interfere depending on the facts of the case. The Full Bench refused to lay down the circumstances/grounds exhaustively in which this Court, inspite of availability of alternative remedies, may interfere in the petitions under Art. 226 of the Constitution of India since “it is difficult to lay down conditions/grounds exhaustively as the facts differ from case to case and, as such, conditions/grounds which may be held as sufficient for invoking the extraordinary writ jurisdiction of this Court cannot be confined in a water-tight compartment.” The learned Judges of the Full Bench were very much influenced by the submissions made on behalf of the respondents and even ignored the submission made on behalf of the petitioner that even where the orders were wholly without jurisdiction and were passed in flagrant violation of the principles of natural justice, the writ-petitioner could not be relegated to avail of the remedies provided under the Industrial Disputes Act, 1947. The Full Bench was very much influenced by the observations of the Hon'ble Supreme Court in Basant Kumar Sarkar v. Eagle Rolling Mills, Ltd. [A.I.R 1964 S.C 1260], where the Supreme Court relegated the writ-petitioners to avail of the alternative remedies, where they could ventilate their grievances in respect of the impugned notices and circulars and take recourse to S. 10 of the Industrial Disputes Act, 1947, or seek relief, if possible, under Ss. 74 and 75 of the said Act. The Full Bench was also influenced by the observations of the Apex Court in Premier Automobiles, Ltd. v. Kamlakar Shantaram Wadke [1976 (1) L.L.N 1], and held that even the possibility that the Government may not ultimately refer an industrial dispute under S. 10 on the ground of expedience, is not a relevant consideration in this regard. However, in the penultimate paragraph by way of conclusion while propounding the ratio of the said judgment it observed that even in such cases where the order is without jurisdiction, it was essentially a question of fact and required investigation before reaching a conclusion and normally such investigation or enquiry is beyond the scope of Art. 226 of the Constitution of India and these questions can suitably be agitated and adjudicated upon by the authorities constituted under the Act on the basis of the evidence adduced by the parties. The Full Bench, therefore, reached the opinion that even in such cases, the normal rule for an employee should to be avail remedies provided under the Act and entertainment of writ petition by this Court under Art. 226 of the Constitution of India without exhausting the remedies should be “with great care and caution and in very exceptional cases.” The Full Bench answered the question as referred to by the learned Single Judge to the effect that for violation of the provisions of Chap. V-A of the Industrial Disputes Act, 1947, or violation of the principles of natural justice, the normal course is to pursue the remedy provided under the Act and exercise of power under Art. 226 of the Constitution of India in such cases should be “sparingly made.”

3. The facts of the present case however make out on the sparing exceptions.

4. In A.V Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani [A.I.R 1961 S.C 1506], the Full Bench of five learned Judges went into the question of existence of alternative remedy and how far it was a bar to entertainment of a writ petition. It was held to be not a bar to the exercise of jurisdiction by the High Court to entertain the petition or to deal with it, but it was rather a rule which Courts have laid down for the exercise of their discretion. The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Art. 226 of the Constitution of India was found to be a general rule unless—

(1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned; or

(2) where the order prejudicial to the writ-petitioner has been passed in violation of the principles of natural justice and, therefore, could be treated as void or non est and that in all other cases Courts should not entertain petitions under Art. 226 or in any event, not grant any relief to such petitioners, cannot be accepted.

The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy were found by no means exhaustive and it was said that even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of the alternative remedy. The broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern (he proper exercise of the discretion of the Court, and in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be supplied with rigidity in every case which comes up before the Court.

5. In Dr. Smt. Kuntesh Gupta v. Hindu Kanya Mahavidyalaya, Sitapur [1987 (2) L.L.N 922], Supreme Court held that where the order is without jurisdiction or nullity, writ petition should not be dismissed on the ground that alternative remedy was available. In the facts and circumstances of the said case, an order of dismissal passed by the Vice-Chancellor was challenged by the writ-petitioner-appellant and the High Court dismissed the writ petition on the ground of availability of an alternative remedy. The Supreme Court held that the alternative remedy is not an absolute bar to the maintainability of a writ petition and when an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Art. 226 of the Constitution of India on the ground of existence of the alternative remedy. In the facts of the case, it was held that the Vice-Chancellor had no power to review and the exercise of such a power was absolutely without jurisdiction and it was a nullity and such an order could surely be challenged before the High Court by a petition under Art. 226 of the Constitution and the Supreme Court observed inter aha that the High Court was not justified in dismissing the writ application on the ground that an alternative remedy was available to the appellant under S. 68 of the Uttar Pradesh State Universities Act. As the impugned order of the Vice-Chancellor was found to be a nullity, it was taken to be useless formality to send the matter to the High Court for disposal of the writ petition on merits. It was accordingly quashed and the appellant was directed to be reinstated to the post of the Principal by setting aside the judgment of the High Court and by allowing the appeal, even though liberty was given to the respondents to initiate departmental proceedings against the appellant, if they so think fit and proper, on the basis of the allegations as made in the reports of the Joint Director of Higher Education, Uttar Pradesh.

6. Our attention has been drawn to a Division Bench judgment of the Gujarat High Court in K.S Joy v. Indian Institute of Management [1993 (7) S.L.R 650]. On the question of writ-petitioner having not availed of alternative remedy, the Division Bench of the Gujarat High Court comprising of A.P Ravani and J.M Panchal, JJ., held that once the writ petition is entertained by the High Court and is heard on merits, it would not be proper for the High Court to relegate the party to an alternative remedy. This observation was made following the view taken by the Supreme Court in Hriday Narain v. I.T Officer, Mumbai [(1970) 2 SCC 355 : A.I.R 1971 S.C 33]. Their Lordships following the decision in Ram and Shyam Company v. State of Haryana [(1985) 3 SCC 267 : A.I.R 1985 S.C 1147], observed that the Hon'ble Supreme Court imposed a restraint in its own wisdom on exercise of jurisdiction under Art. 226 where the party invoking the jurisdiction has an effective and adequate alternative remedy, but stated clearly that at any rate it does not oust the jurisdiction of the High Court. The Supreme Court further observed that where order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an alternative remedy is available to him because such an alternative remedy cannot be said to provide in all situations a really effective alternative remedy keeping aside the nice distinction between the jurisdiction and merits.

7. In the present writ application, the learned Single Judge failed to appreciate that the writ petition was admitted in the year 1990 and at the time of its admission, the learned Single Judge did not reject the writ application on the ground of availability of alternative remedy, but issued notice to the respondents, which prompted the respondents to file a detailed reply on the merits of the case, to which the writ-petitioner-appellant also filed a rejoinder as and when the writ application was ripe for final arguments, the learned Single Judge, who took up the writ application for final disposal, cryptically made an observation inter alia to the effect that since an alternative remedy was available and a Full Bench decision was there, the writ application stood rejected. This was done after a full-throated hearing of the case when the writ-petitioner-appellant submitted his written arguments and argued the matter for three consecutive days. While one of the learned Single Judges was prompted to decide the writ application on merits and did not refer the writ-petitioner to his alternative remedy, it was rather sad that the learned Single Judge (B.J Shethna, J.), ultimately refused to go into the merits and took resort to the Full Bench decision of this Court and passed such a judgment in a cryptic fashion.

8. The contention of the writ-petitioner-appellant which was sought to be made out in course of his writ application was to the effect that there was no proper enquiry in accordance with law and in utter disregard to the mandatory provisions of a just and proper enquiry and depriving him of an adequate opportunity to defend himself in the domestic enquiry and to record his own statement or tender his own defence witnesses and in utter violation to the provisions of the Standing Orders, the enquiry was completely closed Leading ultimately to the dismissal order being passed by his employer. He was also deprived of an adequate opportunity to make a representation against the proposed punishment according to the Standing Orders and no copy of the enquiry report was supplied to him before the penal order was sought to be imposed on him. It was further contended by the writ-petitioner-appellant that his past conduct was taken into consideration by the enquiry officer without adequate notice to him and without ever communicating to him that those were being taken into consideration against him behind his back. He was not served with any second show-cause notice in this context. It was his humble submission that the enquiry officer was not entitled to take into consideration his previous record of service which seems to be extraneous factor for the purposes of this domestic enquiry, without giving him adequate knowledge that the same could be taken into consideration while recording the complicity of the writ-petitioner-appellant with the allegations given out in the chargesheet.

9. That apart, he took up before the appellate authority this aspect of the matter about his past conduct being taken into consideration, but then the respondents proceeded on the hypothesis that he was not prejudicially affected thereby, inasmuch as, while dealing with the question of punishment this was not taken into consideration. However, since the punishment was imposed on the basis of the findings as recorded by the enquiry officer and the appellate authority duly affirmed such findings of the disciplinary authority, it was the ultimate conclusion of the writ-petitioner-appellant that these were looked into while holding not only the complicity of the writ-petitioner-appellant, but also in awarding the punishment on him.

10. The third and most important submission as made by the writ-petitioner-appellant was that both the order of dismissal as well as the appellate order were passed by incompetent authorities, who lacked the jurisdiction to pass such orders in accordance with law. The writ-petitioner-appellant was appointed in the service by an order the General Manager, who was his appointing authority. The enquiry officer was appointed by Sri B.B Sharma, General Manager, vide his letter, dated July 28, 1989. Here in the present case, the enquiry officer sent his findings to General Manager which went a long way to establish that the General Manager was both his appointing authority as well as disciplinary authority. However, the appeal was decided by the General Manager, who functioned as appellate authority. When the enquiry officer sent his findings to the General Manager, obviously, the General Manager as the disciplinary authority was disentitled to dispose of the appeal. The original order of dismissal was as such without jurisdiction and void and inoperative having been passed by the General Manager. It was a basic principle of service jurisprudence that the disciplinary authority could not be appellate authority under any circumstances and in support of this proposition, the writ-petitioner-appellant cited the decision in Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg. [1977 (1) L.L.N 201].

11. The fourth contention as sought to be made out by the writ-petitioner-appellant was that the proceedings in the domestic enquiry were held from September 11, 1989, to September 14, 1989, without paying him suspension allowance and without considering sickness certificate, which really caused a violation of the principles of natural justice. He was put under suspension on July 6, 1989, and as per the Model Standing Orders, he could not be kept under suspension for more than four days at a time and should have been paid full wages during the suspension period after the expiry of four days. In his case however the order of pay and allowance by way of suspension allowance was issued to him only after the conclusion of the enquiry on September 15, 1989 (Exhibit 17), even though the enquiry was started on September 11, 1989, and concluded on September 14, 1989, as per Exhibit. 19. He pleaded his inability to attend the enquiry on account of financial stringency due to non-payment of suspension allowance as would be evident from Exhibits 10, 15 and 16, but neither the disciplinary authority nor the enquiry officer did give out any sympathetic consideration in this regard and turned deaf ear to the genuine and legal requirements. His further contention was that if the payment of suspension allowance was not effected or deliberately delayed, not only it did amount to temporary cessation of relations of master and servant but during such a condition an enquiry should not and could not be forced upon the worker as it amounts to not only a negation of justice, but also a severe irregularity and a cruel harassment. The writ-petitioner-appellant had no funds to maintain himself though the persistently reminded the employer about the conditions of service while the enquiry was carried on without giving him the pittance of the subsistence allowance. According to the writ-petitioner-appellant, this was an uncurable defect, which could not be cured after a delayed payment of the subsistence allowance to him. The provident fund was also illegally deducted from the suspension allowance to put him to further financial harassment. Even though the writ-petitioner-appellant was physically suffering and was under ailment and it was obligatory on the part of the enquiry officer to consider his medical certificate (Exhibits 13 and 15), he was directed to participate in the enquiry and even the appellate authority failed to consider this aspect of the matter while the appeal stood out for disposal as per Exhibit 31. In support of this proposition, he cited the decisions in Ghanshyam Das Shrivastava v. State Of Madhya Pradesh [(1973) 1 SCC 656 : A.I.R 1973 S.C 1183], State Farms Corporation of India, Ltd. v. Tarsem Lal Singh [1986 W.L.N (U.C) 516].

12. The fifth submission of the writ-petitioner-appellant was that the enquiry was not held in accordance with the principles of natural justice. The statements of management's witnesses as recorded by the enquiry officer on September 11, 1989, in the ex parte enquiry were not supplied to him even though, the findings of the enquiry officer were fully based on the statements of such witnesses so recorded on September 11, 1989. Even though he craved leave to have a copy of the documents which formed part of the records of the proceedings on the September 11, 1989, in order to efficaciously defend himself, the proceedings were simply read out to him on October 13, 1989, when he was asked to cross-examine the witnesses and the writ-petitioner-appellant also submitted a representation in this regard Exhibit 20. The enquiry officer gave out that the said documents could not be supplied to him as the findings of the enquiry have not been concluded till that point of time and the stand of the enquiry officer was recorded at page 33 of the enquiry proceedings as per Annexure 35 Para. 60. Ultimately, the respondents took a stand in reply to the writ petition that the statements of witnesses which were recorded by the enquiry officer during the enquiry proceedings were to be given to him after the conclusion of the enquiry. Thus there was some force in the contention of the writ-petitioner-appellant that he was not supplied with the copy of examination-in-chief of the witnesses as recorded by the enquiry officer on September 11, 1989. The writ-petitioner-appellant was apparently feeling a denial of an appropriate and adequate right of cross-examination in respect of such witnesses even though the enquiry officer remarked that since the writ-petitioner-appellant did not ask any relevant questions to the witnesses out of the statements recorded on September 11, 1989, such witnesses were allowed to be discharged from the enquiry. In support of his contention, the writ-petitioner-appellant cited the decisions in State of Punjab v. Bhagat Ram [1974 (2) L.L.N 432], State Of Madhya Pradesh v. Chintaman Sadashiva Waishampayan [A.I.R 1961 S.C 1623], Amba Lal Sadhu v. State of Rajasthan [1991 (1) L.L.N 897] and Kashinath Dikshita v. Union of India [1986 (2) L.L.N 375].

13. The sixth submission of the writ-petitioner-appellant was that the defence witnesses were not allowed to be examined even though they were readily available for examination and they were brought by the writ-petitioner-appellant so as to depose before the enquiry proceedings. The writ-petitioner-appellant submitted a list of his defence witnesses on October 13, 1989, before the enquiry officer, In Exhibit 5, a commitment and assurance was given out that the defence witnesses would be examined, but ultimately, the enquiry officer refused to examine the defence witnesses present on the day of the enquiry, even though the enquiry proceedings were concluded as would be evident from Exhibit 41. The enquiry officer did not give any reason for not examining such defence witnesses. The enquiry officer arbitrarily wrote at page 61 of the proceedings that at that stage he had nothing more to record and he thereby closed the enquiry. In this context, the writ-petitioner-appellant resorted to case law in Union of India v. Harcharan Singh [1974 (1) S.L.R 349].

14. The seventh contention of the writ-petitioner-appellant was that the enquiry officer failed to record the statement of the writ-petitioner-appellant in his own defence, even though he was present at the time when the enquiry was concluded. He was not afforded an opportunity to give his own statement in his defence. It was obligatory for the enquiry officer to record the statement of the writ-petitioner-appellant.

15. The eighth contention of the writ-petitioner-appellant was that the changes which were framed against him were vague and unworthy of making any representation against. They were not substantiated by a conscious reasoning based on evaluation of the prosecution witnesses. It was merely given out that the writ-petitioner-appellant used abusive language, but what that specific language was and what were the exact words used were not given out in the chargesheet and they were as vague and indefinite as anything.

16. The petitioner by way of elaboration of this point contended that in the purported chargesheet, dated My 6, 1989, it was given out that the writ-petitioner-appellant came to the Accounts Department along with a messenger of the Court to deliver notices to Y.K Mishra, de facto complainant and he shouted and used abusive language. The messenger was thus an independent eye witness and his testimony ought to have been a vital one so far as the adjudication of the guilt of the writ-petitioner-appellant is concerned. The enquiry officer has not recorded his statement even though the writ-petitioner-appellant insisted to call him as he was mentioned as a prosecution witness in the purported chargesheet. As and when the management failed to arrange for his presence by way of examination in the enquiry, the writ-petitioner-appellant brought him for examination in the conference room as a defence witness (Exhibit 41), but the enquiry officer arbitrarily and abruptly in course of the proceedings observed inter alia that he had nothing more to record and abruptly dosed the enquiry.

17. The respondents, however, in Para. (h) of the reply have given out that the writ-petitioner-appellant had deliberately failed to produce the process server as a defence witness and adopted the method of asking to summon him and if he would have wanted to produce the said process server, he could have voluntarily produced him in the enquiry. The management apprehended that the prosecution would fail if such a procedure was adopted and this required a meaningful manoeuvre by the management. It was however obligatory on the part of the enquiry officer to examine him when he was readily available for examination.

18. The respondents gave out in para. (h) of the reply to the writ application that for bringing such a witness it meant a meaningful and serious notice. However, there was Exhibit 3 which was the affidavit of the process server himself and in this context he prayed that Exhibits 20 and 41 of the writ application were enough evidence in this regard.

19. The tenth contention of the writ-petitioner-appellant was that the report of the enquiry officer was one sided and a cryptic one and minimum expectations of requirement of natural justice were not adhered to. The enquiry officer's report is practically an order-sheet which merely produces the stage through which the enquiry passed. The enquiry officer did not apply his mind on the evidence on record and he did not assign any reason as to why the evidence produced by the writ-petitioner-appellant did not appeal to him and as to why he did not record the version as sought to be given out by the defence witnesses. In this context, the writ-petitioner-appellant cited the decision in Aral Kumar Mohan v. Labour Court, Jullundur City [1985 (2) L.L.N 579].

20. The eleventh point as contended by the writ-petitioner-appellant was that extraneous factors were considered by the enquiry officer and the presenting officer also took such steps which vitiated the entire proceedings. The findings of the enquiry officer at Exhibit 36, page 9 Para. (d), showed that he laid highest stress on the statement of one Sri S.N Bhora that the writ-petitioner-appellant shouted at him in such a language that he was devilish as he allegedly gave out that he had a powerful personality behind his back and he had in his pocket five Members of Parliament. We need not however go into the details of the submission as made out by the writ-petitioner-appellant by way of elaboration of this point.

21. The further contention was that the presenting officer submitted the documents to the enquiry officer which were not annexed to the show-cause notice. One of them being a joint complaint from M.K Bhatt, V.C Mathur, Y.K Mishra, M.K Chatterjee, AN. Asopa and K.C Bhati were not produced before the enquiry and their joint report was neither shown nor supplied at any stage. Their statements were never recorded on September 11, 1989, in the so-called ex parte enquiry. The said complaint in its original shape was very much necessary and an essential document so as to give the writ-petitioner-appellant an opportunity to effectively cross examine the witnesses of the management in this regard, which he was seriously deprived of. He thus contended that the enquiry officer proceeded in a biased manner. He cited in this context the decisions in State of Assam v. Mahendra Kumar Das [1970 S.L.R 445] and State of Punjab v. Mohinder Singh Cheema [1992 (1) S.L.R 137].

22. The twelveth point as agitated by the writ-petitioner-appellant was that the enquiry was held on the basis of a show-cause notice which was neither a chargesheet nor a prosecution report. The show-cause notice was issued by the Superintending Engineer (Drilling), who was not the appointing authority or the disciplinary authority of the writ-petitioner-appellant. The assertion that the appropriate disciplinary authority appointed the enquiry officer shows in reality that such enquiry officer was appointed by Sri B.B Sharma, General Manager (RP). If the said General Manager is to be taken as the disciplinary authority, such a disciplinary authority could not be the appellate authority as well in the ultimate proceedings against the penal order imposed in the disciplinary proceedings. However, in this case, the disciplinary authority did not issue and sign the so-called chargesheet. The confusion was worst confounded when it was revealed that all the officers conspired against the writ-petitioner-appellant and supported and corroborated each other in making out a case against him which was not specific and was of a vague and general nature.

23. The thirteenth point referred to by the writ-petitioner-appellant was that the appellate order was not a speaking order and the appellate authority failed to consider crucial questions of law and fact. The writ-petitioner-appellant in the memo of appeal (Exhibit 31) raised several points, none of which was taken into consideration by the appellate authority. The point as to whether the charges were established beyond doubt on the evidence recorded during the course of enquiry, was unfortunately not gone into by the appellate authority in the context of the requirements of law as to whether the findings of the disciplinary authority were warranted by the evidence on record. The appeal has been disposed of against the specific provisions of the law and the tenets of natural justice, especially running contrary to the provisions of S. 14(4)C of the Model Standing Orders in which the word “consider” has clearly been mentioned. It was the bounden duty of the disciplinary authority to see whether the findings of the enquiry officer are in consonance with the proceedings of the enquiry. His main contentions in the writ application were that the proceedings have been initiated and finalised against all the norms and principles of natural justice and there was a flagrant violation of the principles of fair play in action. The hurried manner in which the enquiry has been started and finalised made out a case of departmental malice against him.

24. All the points as stated above might not have been substantiated at the trial before the learned Single Judge so as to vitiate the order of dismissal from service, but then if any of the points could be driven home by way of effective adjudication at the trial, it might have made out a case for interference by the writ Court so as to quash the disciplinary proceedings or even the appellate order which was passed confirming the order of punishment on the writ-petitioner-appellant. The writ-petitioner-appellant has really made out a prima facie case for trial which warranted a full-throated hearing in a contested proceeding. Since the respondents have not only appeared but have also filed the reply and the writ-petitioner-appellant has filed a rejoinder to the same and there were several attempts by the various learned Single Judges to hear out the writ application in all finality, the learned Single Judge, who ultimately rejected the writ application, ought to have taken pains to go through the averments in their true perspective and ought not to have shirked the responsibility by resorting to the Full Bench decision of this Court by way of dismissing the writ application in limine after it was taken up and admitted six years before.

25. We accordingly set aside the judgment and order of the learned Single Judge and direct some other learned Single Judge to hear out the writ application on merits after a contested hearing.

26. The special appeal stands disposed of to the extent indicated above. The impugned judgment and order of the learned Single Judge is quashed and set aside with a direction to have the matter reheard by another learned Single Judge. There will be no order as to costs

Deepak Kumar Khivsara v. Oil India, Ltd., And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Counsel: Sri Deepak Kumar Khivsara)

Respondents' Arguments (Counsel: Sri M.S. Singhvi)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Deepak Kumar Khivsara v. Oil India, Ltd., And Others

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