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Case Number

Writ Petitions Nos. 2398 and 2712 of 1986

Attorney(S)

Sri J.P Cama, Sri C.U Singh and Sri W. Menezes.
Sri M.A Shringarpure, Sri E.P Bharucha, Sri R. Dayal and Sri Meena Gupta.

Judges

Smt. Sujata Manohar, J.

Acts

Orders) Act of 1946

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

The petitioners, C.D. Fernandes (Writ Petition No. 2398 of 1986) and S.K. Giri (Writ Petition No. 2712 of 1986), were employees of Indian Airlines. On the morning shift of 4 March 1986 they were on duty from 6:00 to 14:00; Giri was on duty on Flight No. 131/132 Bombay–Karachi–Bombay on that day. At about 2:00 a.m. on 5 December 1983, outside their duty hours, both petitioners were apprehended by a security assistant while loading certain imported items into the trunk (dicky) of a taxi outside the New Terminal Building (N.T.B.) transport office.

The second respondent alleged that the petitioners had brought the imported goods from the operational area to the transport office in an Indian Airlines bowser/airstarter without permission. The goods included a JVC Multiplier System, a VHS VCR, a National Snack Toaster, a stereo radio cassette, JVC video cassettes, remote controllers and wiring. The petitioners could not produce any documents relating to the items; statements were recorded by security staff.

Chargesheets were served (dated 9/18 January 1984). An internal enquiry followed, with the petitioners represented by a "next friend" employed in the same organisation. The enquiry officer submitted reports (dated February 1985) finding the charges proved. Show-cause notices were issued, representations considered, and both petitioners were dismissed from service; their appeals were also dismissed. The present writ petitions challenge those dismissals.

Legal Issues Presented

Whether the departmental enquiry findings that the petitioners committed misconduct (including lack of absolute integrity and conduct not conducive to the corporation's interests) are perverse or unsupported by evidence.
Whether conduct occurring outside normal duty hours and (arguably) outside the corporation's premises can amount to misconduct under Indian Airlines' standing orders.
Whether the enquiry officer improperly cast on the petitioners the burden of proving the goods were lawfully imported, thereby vitiating the inquiry.
What, if any, effect the petitioners' acquittal and return of goods in subsequent Customs Act proceedings has on the departmental enquiry under the standing orders.
Whether the petitioners were denied principles of natural justice by being refused permission to engage an external lawyer or representative (and whether Standing Order 29(4) permitting representation only by a workman in the same department is lawful in the circumstances).
Whether the appellate authority's brief order (upholding dismissal without detailed reasons) is legally defective for want of reasons.

Arguments of the Parties

Petitioners' Arguments (Sri Cama, counsel)

The enquiry findings are perverse and unsupported by evidence; there is no conclusive proof the petitioners used an Indian Airlines bowser to move the goods from the operational area to the transport office.
The petitioners were found in the airport area, which cannot be treated as Indian Airlines' premises; therefore charges alleging business/trade within the establishment or conduct subversive of discipline in the premises are not made out.
The principal charge—failure to maintain absolute integrity—was not established by admissible evidence.
The enquiry officer improperly required the petitioners to prove lawful importation of the goods, effectively shifting the burden of proof onto them.
The petitioners were precluded from engaging a lawyer or an external friend to represent them at the enquiry, violating natural justice; Standing Order 29(4) allows representation only by a co-worker.
The petitioners were acquitted in proceedings under the Customs Act and the goods were returned; this undermines the departmental findings.
The appellate order gives no reasons and is therefore bad in law.

Respondent / Enquiry Officer and Indian Airlines' Position

The enquiry officer found on the evidence that the petitioners used some vehicle (including evidence suggesting use of a bowser) to bring the goods into the N.T.B. transport office area, were present at about 2:20 a.m. on 5 December 1983, were loading imported goods into a taxi, and had no documents for the goods.
The petitioners' explanation that they had purchased the goods from a friend at Chakala was disbelieved; the friend was not called as a witness.
The goods were treated as contraband by the enquiry officer on the basis of material before him; considering that material, the enquiry findings cannot be taken as perverse.
The departmental enquiry and the Customs proceedings are separate; an acquittal in Customs proceedings does not determine the departmental enquiry.
Standing Order 29(4) permits representation by a workman in the same department; the petitioners were allowed such representation and cross-examination occurred; no breach of natural justice is shown.
The show-cause notices expressly referred to the petitioners' past records, so the contention that past service records were not considered is incorrect.
The appellate authority had the entire record and was entitled to uphold the enquiry findings without elaborate reasons in departmental proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Glaxo Laboratories (India) Ltd. v. Labour Court, Meerut [1984 — I L.L.N 57]	Interpretation under the Industrial Employment (Standing Orders) Act, 1946, of the phrase "committed within the premises of the establishment or in the vicinity thereof"; misconduct must have a positive connection with place of work and duty hours (as observed by the Supreme Court in that case).	The court distinguished Glaxo: Indian Airlines' standing order is worded differently and is not confined to enumerated acts; therefore conduct outside the establishment may, in a given case, amount to misconduct under the present standing orders.
Kalra (A.L) v. Project and Equipment Corporation of India, Ltd. [1984 — II L.L.N 200]	Interpretation that conduct could not be treated as misconduct unless it fell within enumerated categories in the applicable rule (as held by the Supreme Court in that case).	The court held this precedent inapplicable because the standing orders before it are worded differently (not confined to enumerated categories); thus the ratio of Kalra did not apply.
Venkatraman Sambamurthy v. Union of India [1986 — II L.L.N 349]	Authority relied upon by petitioners concerning representation/rights in departmental enquiries (as urged by counsel).	The court regarded reliance on Venkatraman as misplaced because the facts in the present case were "totally different" (petitioners were permitted representation by a co-worker under standing orders and cross-examination occurred).

Court's Reasoning and Analysis

The court proceeded by reviewing the enquiry officer's factual findings and legal application of Indian Airlines' standing orders (Standing Order 28). The key steps in the court's analysis are:

Factual findings by the enquiry officer were recited: the petitioners were found at 2:20 a.m. in the airport area outside the N.T.B. transport office loading imported goods into a taxi; they had no documents for the goods; evidence supported use of some vehicle to move the goods into the transport office area. The petitioners' explanation (purchase from a friend at Chakala) was not believed and the friend was not examined.
The court emphasised the wording of Standing Order 28, which describes misconduct broadly ("without prejudice to the generality of the term 'misconduct' it shall be deemed to include the following acts..."). Because misconduct is not limited to the enumerated items, the court accepted that conduct outside the establishment can constitute misconduct depending on circumstances.
Applying the standing order to the inquiry's findings — contraband goods, absence of documents, presence outside duty hours while handling imported goods and an unacceptable explanation — the court found no perversity in the conclusion that the petitioners lacked "absolute integrity" and engaged in conduct not conducive to the corporation's credit and prestige.
On the burden of proof argument, the court noted the enquiry officer considered all evidence before him, including the absence of documents and flight duty of Giri, and concluded the goods were contraband. The court declined to reappraise evidence or substitute its own view where the enquiry's conclusion was supported by material; therefore it rejected the contention that the burden was improperly shifted.
The court held that the petitioners' acquittal in Customs Act proceedings and the return of goods in those proceedings did not affect the departmental enquiry conducted under standing orders; the two processes are distinct.
Regarding representation and natural justice, the court applied Standing Order 29(4) (which permits a workman to be defended by a workman in the same department). The petitioners had applied for permission to appoint an outside friend (original application not annexed), but the enquiry officer permitted representation by an employee of the corporation; that representative cross-examined witnesses. The court found no shown violation of natural justice. The court also noted the presenting officer was not legally qualified or highly experienced, but that fact alone did not establish a breach of natural justice in the circumstances.
On the submission that past records were not considered, the court pointed to express references to past record in the show-cause notices and rejected the submission as inaccurate.
On the appellate order lacking detailed reasons, the court reasoned that where an appellate authority sees no reason to interfere with findings it may uphold the impugned order without elaborate reasons in departmental proceedings; the appellate authority had the entire record including representations.

Holding and Implications

Holding: The writ petitions are DISMISSED. The court upheld the enquiry findings that the charges against the petitioners were proved and sustained the dismissals; there will be no order as to costs.

Implications:

The direct effect is that the departmental dismissal of the petitioners was affirmed and their appeals were not interfered with by this court.
The court treated the wording of Indian Airlines' Standing Order 28 as broad enough to cover misconduct occurring outside the establishment in appropriate circumstances; it distinguished prior authorities that confined misconduct to acts within enumerated categories or premises when the present standing orders are worded differently.
The court confirmed that an acquittal in separate Customs proceedings does not automatically invalidate a departmental enquiry; departmental disciplinary processes are distinct and may yield different results based on their own evidence and standards.
The court found no violation of natural justice in permitting representation by a co-worker under Standing Order 29(4) and in the manner the enquiry was conducted, based on the material before it.
The opinion does not purport to lay down any new broader precedent beyond its application to the facts and the specific wording of the standing orders; it upholds the departmental findings on the evidence presented.

This summary is prepared strictly from the contents of the provided opinion and does not add information beyond what the opinion expressly states.

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Fernandas (C.D) And Another v. Union Of India And Others

1. The petitioner C.D Fernandes in Writ Petition No. 2398 of 1986 and the petitioner S.K Giri in Writ Petition No. 2712 of 1986 were at all material times employees of the Indian Airlines. On 4 March 1986, the petitioners were on duty in the morning shift from 6 hours to 14 hours. Giri was on duty on Flight No. 131/132 Bombay-Karachi-Bombay on that day. At about 2 A.M on the morning of 5 December 1983, and outside their duty hours both the petitioners were apprehended by S.K Kamble, Security Assistant, outside the new terminal building transport office, while they were loading certain imported items in a taxi.

2. According to the second respondent these items were brought by the petitioners from the operational area to the new transport office in an Indian Airlines bowser/airstarter, without any authority or permission from the superiors. The goods were being loaded in the dicky of the taxi when the petitioners were apprehended. The goods so found were all imported goods. These were:

(i) JVC Multiplier System M.R 7600.Ms VHS VCR.

(ii) JVC Model No. H/R 7650 EG Serial No. 137 E 0339.

(iii) National Snack Toaster, Model NT/6012E (made in Japan).

(iv) Stereo Radio Cassette RC 555 W (B.).

(v) 2 JVC Video Cassettes, E. 30.

(vi) 2 Remote Controller JVC (R. M)/P76E.

(vii) 2 black wires.

The petitioners were unable to produce any documents pertaining to these items. They were questioned by the security staff and their statements were recorded.

3. The petitioners were served with chargesheets, dated 9/18 January 1984. Thereafter an enquiry was held at which the petitioners were represented by a next friend from the same organisation. Evidence was led. The enquiry officer gave his report and findings, dated 18 February, 1985 (in the case of Fernandes) and 12 February, 1985 (in the case of Giri). The petitioners were thereafter served with a show-cause notice in respect of these findings and the proposed punishment. After considering the representations of the petitioners both the petitioners have been dismissed from service. The appeals of the petitioners were also dismissed. The present petitions challenged these orders of dismissal.

4. Indian Airlines Corporation has framed standing orders for its workmen. Standing order 28 deals with Rules of Discipline. The relevant parts of the standing order are as follows:

“Rules of discipline. — Without prejudice to the generality of the term ‘misconduct’ it shall be deemed to include the following acts of omission and commission:

6. Entering or leaving the company's premises except by the gate or gates appointed for the purpose.

11. Theft, fraud and dishonesty in connection with business or property of the corporation.

17. Engaging in any business or trade within the premises of the establishment.

20. Commission of any act subversive of discipline or of good behaviour in the premises of the establishment.”

The petitioners were charged with breach of the above standing orders.

“They were also charged with a failure to maintain absolute integrity and conduct themselves in a manner conducive to the best interests, credit and prestige of the corporation.”

5. These charges have been held proved. The enquiry officer has held on facts that the petitioners had used some vehicle to bring the goods to the N.T.B transport office area, that outside their duty hours they were found at 2.20 A.M on 5 December, 1983 in the airport area outside the N.T.B transport office, that they were found loading imported goods into the dicky of the taxi and that they had no documents pertaining to these imported goods. He has disbelieved the explanation of the petitioners to the effect that the petitioners had purchased these goods from a friend at Chakala and were taking these goods home in a taxi. According to the petitioners this taxi refused to go beyond the airport. They were, therefore, required to unload these goods from the taxi and to put them in another taxi which was hired by Fernandes from the Centaur Hotel. The petitioners did not examine this friend from whom they claimed to have purchased these goods. The enquiry officer, after considering the evidence led before him, disbelieved the petitioners and accepted the version of the second respondent. The enquiry officer has thereupon held the charges proved.

6. It is the contention of Sri Cama, learned counsel for the petitioners, that these findings are perverse because there is no evidence to prove any of these charges. He has submitted that it is not conclusively established that the petitioners used an Indian Airlines bowser from the operational area in order to transport the goods outside the N.T.B transport office. He has also submitted that the petitioners were found in the airport area. This cannot be considered as the premises belonging to Indian Airlines. The petitioners, therefore, did not indulge in any business or trade within the premises of the establishment nor did they commit any act subversive of discipline or good behaviour in the premises of the establishment.

7. The main charge however, against the petitioners was that they had failed to maintain absolute integrity and conduct themselves in a manner conducive to the best interests, credit and prestige of the corporation.

8. Under rule 28 misconduct is not limited merely to the items which are enumerated. The rule expressly/lays down that without prejudice to the generality of the term “misconduct” it shall be deemed to include the enumerated acts of omission and commission. The enquiry officer has found that the goods were contraband goods. The petitioners were found loading these goods in a taxi at 2 A.M in the morning, far beyond their normal duty hours for that day. Their explanation as to how they acquired these goods was found unacceptable by the enquiry officer. In these circumstances if he has come to a conclusion that the charges against the petitioners were proved and that they were guilty of conduct which showed lack of integrity and in any case it was such as would not be conducive to the best interests, credit and prestige of the corporation, such a finding cannot be considered perverse.

9. Sri Cama has cited the case of Glaxo Laboratories, (India), Ltd. v. Labour Court, Meerut [1984 — I L.L.N 57]. In that case the Supreme Court was considering Industrial Employment (Standing Orders) Act of 1946 and the connotation of the words “committed within the premises of the establishment or in the vicinity thereof” in S. 13-A. The Court observed that misconduct must have positive connotation with the place of work and with duty hours. The standing order in the present case is worded differently. Misconduct is not confined to the enumerated items. Hence, even conduct outside the establishment may, in a given case amount to misconduct.

10. Similarly in the case of Kalra (A.L) v. Project and Equipment Corporation of India, Ltd. [1984 — II L.L.N 200], the Supreme Court was considering the relevant rules of the respondents therein. Once again the Supreme Court held, while interpreting rule 5 of those rules that the conduct of the petitioners could not be considered as misconduct unless conduct fell in any of the enumerated categories in rule 5. The present rules are worded differently. The ratio of the judgment, therefore, has no application.

11. It was next contended that the enquity officer wrongly cast the burden of proving that the goods were legally imported on the petitioners. Hence his finding is vitiated. The enquiry officer has examined the entire evidence led before him. He has emphasised the absence of any documents pertaining to these goods. He also relies upon the fact that Giri was on flight Bombay/Karachi/Bombay on 4 December. After considering the evidence he has come to a conclusion that the goods were contraband goods. It is not for me to reappraise the evidence before the enquiry officer or arrive at fresh conclusions. Looking to the material before the enquiry officer his findings cannot be considered as perverse.

12. It was also submitted that in the proceedings held under the Customs Act the petitioners were ultimately acquitted and the goods were returned to the petitioners. This has no bearing on the departmental enquiry which was conducted under the standing orders.

13. It was submitted by Sri Cama that the enquiry was vitiated because the petitioners were, not allowed to engage a lawyer to represent them. In this connection standing order 29(4) provides, inter alia, as follows:

“A workman against whom an inquiry has to be held shall be permitted to be defended by a workman working in the same department as himself.”

It seems that the petitioners had applied for permission to appoint a friend from outside the organisation to assist them in the enquiry. The original application is not annexed to the petition. The enquiry officer has permitted the petitioners to be represented by an employee of the corporation. The petitioners accordingly engaged an employee of the corporation to represent them. The next friend has participated in the enquiry and has cross-examined witnesses. There is nothing to show that any principle of natural justice has been violated in this connection. The presenting officer on behalf of the second respondent was not a lawyer. Nor was he highly experienced in conducting such enquiries. The presenting officer has himself filed an affidavit in this petition in which he has stated that he had acted as a presenting officer only in 2 or 3 earlier cases. Nor was he legally qualified. In these circumstances no principle of natural justice has been violated. The reliance of Sri Cama on the case of Venkatraman Sambamurthy v. Union of India [1986 — II L.L.N 349], is misplaced. The facts in the present case are totally different.

14. It was next submitted that the past record of the petitioners was not considered by the second respondents before awarding punishment. This submission is also not borne out from the documents. In the show-cause notices which have been issued regarding the quantum of punishment there is an express reference to the past record of the petitioners.

15. Sri Cama has also submitted that no reasons have been given in the appellate order. Hence the order is bad in law. Appellate order, however, upholds the impugned order. If the appellate authority has seen no reason to interfere with the findings it cannot be expected to give any elaborate reasons. These are, after all, departmental proceedings. The entire record including the representations of the petitioners was before the appellate authority. I do not see any reason to set aside the appellate order.

16. In the premises the petitions are dismissed. In the circumstances of the ease there will be no order as to costs.

Fernandas (C.D) And Another v. Union Of India And Others

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (Sri Cama, counsel)

Respondent / Enquiry Officer and Indian Airlines' Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Fernandas (C.D) And Another v. Union Of India And Others

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