T.D. Sugla, J.
1. By this petition under Article 226 of the Constitution of India, the Petitioner has challenged the legality and validity of the impugned award part I dated 28th October, 1987 of the 3rd Labour Court, Bombay.
2. The Petitioner joined the services of the 1st Respondent Corporation as Assistant Manager (Technical) on or about 18th November 1980. He was transferred to Goa sometime in the beginning of the year 1984. He challenged the transfer order by filing Writ Petition No. 432 of 1984 in this Court which was dismissed. Appeal there against was also dismissed. Thereafter he joined duty at Goa on 16th May, 1984.
It appears that he developed some kind of renal colic in or about October 1984. He was under the treatment of one Dr. Mrs. Fonseca M.D. in Goa. In the first instance he applied for transfer back to Bombay on health grounds. Failing which he applied for leave with or without pay. However without waiting for the sanction of leave, he remained at Bombay during the period from 26th October 1984 to about March 1985. The ground was that proper facilities for the necessary investigation and treatment were not available at Goa. In March 1985 or near about the management asked him to appear before the medical board of J.J. Group of Hospitals. The medical board, by its report dated 14th March, 1985, declared the Petitioner fit to resume duties. The Petitioner was then called upon to report for duty at Goa regional office on 8th April 1985 by letter dated 2nd April 1985. But the Petitioner did not report for duty at Goa and applied for leave again. Show-cause notice was issued and served on him on 10th April 1985 to which written explanation was filed on or about 18th April 1985. Finding explanation to be not satisfactory, he was chargesheeted by memo dated 22nd May 1985.
The charge sheet contained three charges, namely,
(a) disobedience of lawful and reasonable orders of superiors;
(b) remaining absent from duties without leave for which no satisfactory explanation has been given, violating provisions of Staff Regulation No. 31(2);
(c) committing act of subversive of good behaviour.
The Petitioner's reply to the charge sheet dated 17th June 1985 is Exhibit C. Thereupon the domestic enquiry proceeded. As a sequence the Petitioner's deposition was first recorded on 23rd July 1985 He was examined by the management on 6th August 1985. The management's witness Shri Manjrekar submitted his written statement alongwith 5-6 letters on that day itself. The written statement and the letters were handed over to the Petitioner at the time of the hearing when he was asked to cross-examine Shri Manjrekar. The Petitioner asked one or two questions and the examination was closed on that date itself, i.e., 6th August 1985.
On 19th August 1985 the Petitioner filed his written statement in which he, inter alia , contended that the manner and sequence in which his evidence was recorded and subsequently the management's evidence was allowed to be recorded was improper and unjust and that he was denied the fair and proper opportunity to defend himself and ought to nave been given opportunity to further cross-examine the management's witness
3. The enquiry officer found the Petitioner guilty of all the three charges on the basis of which the Board dismissed him from service by way of punishment.
4. On reference being made to the Labour Court, the Labour Court was called upon to broadly decide three issues, viz., (I) whether the enquiry was vitiated; (ii) whether all and any of the charges were proved; and (iii) whether the punishment awarded was commensurate with the guilt found. However, by its impugned award dated 28th October 1987, the Labour Court addressed itself to the following two issues only - viz.
(i) Whether the enquiry held against the Petitioner was fair and proper; and
(ii) Whether the finding of the enquiry officer was justified by the evidence in the enquiry
For reasons given in the judgment, the Labour Court held that the enquiry was fair and proper and that the finding of the enquiry officer in respect of charges (a) and (b) was justified.
5. It is desirable to mention that the sequence and the manner in which the evidence was recorded by the enquiry officer is as under:
On 23rd July 1985 the deposition of the Petitioner was recorded. Thereafter the proceedings were adjourned to 30th July 1985 for the following purposes:
(1) examination of the Petitioner by the management;
(2) witnesses to be examined on behalf of the management; and
(3) cross-examination of witnesses by the Petitioner.
It appears that the proceedings were not taken up on 30th July 1985 and were adjourned to 6th August 1985. On 6th August 1985 the Petitioner was examined by the management. After his examination was over, Shri Manjrekar on behalf of the management filed his deposition in writing and handed over a copy thereof to the Petitioner. Alongwith the deposition in writing, Shri Manjrekar produced as many as 5 documents 4 of which were obtained by the management behind the back of the Petitioner. The Petitioner was thereupon asked to cross-examine Shri Manjrekar which he did by asking, it appears, only one question as the answer which reads as under suggest;
'I know Dr. (Mrs. Fonseka). Dr. Mrs. Fonseka has taken a loan from M.S.F.C. I do not know whether the loan was sanctioned before Shri Joshi had joined at Goa Regional Office. I do not remember whether at any time Joshi had anything to do with loan application of Dr. Fonseka'.
The cross-examination was thereafter declared over and the enquiry was closed for evidence. However, at the request of the parties including the Petitioner time was allowed for filing written statement on or about 19th August 1985. The Petitioner, as a fact, filed his written statement on 19th August 1985. As stated earlier, the Petitioner, inter alia , challenged the fairness and impartiality of the enquiry.
6. It is stated by Shri Deshmukh, the learned counsel for the Petitioner, that the manner and the sequence in which the enquiry was conducted amounts to denial of principles of natural justice. In departmental enquiry, according to Shri Deshmukh, the witness of the management should have been examined first so that the charge-sheeted employee could get opportunity to know the case of the management, rebut the evidence and cross-examine the management's witness and produce his own evidence in support of his case. For this purpose, Shri Deshmukh placed reliance on the Supreme Court decision in the case of Central Bank of India Ltd v. Karunamoy Banerjee : (1967)IILLJ739SC . He also pointed out that the manner in which the witness of the management was allowed to submit his deposition in writing and the management was allowed to produce 5 documents 4 of which were obtained behind the back of the Petitioner also amounted to denial of proper opportunity to the Petitioner. In support, he placed reliance on another Supreme Court decision in the case of Kesoram Cotton Mills Ltd v. Gangadhar and Ors. : (1963)IILLJ371SC . He stated that giving an opportunity to cross-examine the management's witness at the stage of hearing in these circumstances amounted to mockery. In any event the Petitioner had objected to the manner and the sequence in which evidence was recorded in the enquiry at the first available opportunity, i.e., in the written statement filed on 18th August 1985. He had also pointed out that the documents procured by the management behind his back about whether facilities for the particular type of investigation and treatment were available at Goa was, to say the least, not proper. The question should have been whether the facilities were available at the time when the Petitioner was to seek treatment and not when the department had written letter to the medical college. He also pointed out that the Petitioner had never disputed that he was fit to resume duties as such. His contention had all along been that he was suffering from a disease which would show up any time and which would require immediate treatment and better investigation facility for, which were available in Bombay. The fitness certificate given by the medical board in March 1985, it was contended, did not thus, adversely affect his case.
7. Shri Sathe, the learned counsel for the Respondent No. 1, on the other hand, stated that the Petitioner was not an ordinary workman. He was educated: He has been intelligent and conscious of his rights as is evident from the fact that this is the fourth writ petition he filed before this Court. First writ petition was filed against the transfer order to Goa. The second writ petition was filed against the order of the Deputy Commissioner refusing to make reference of his claim for compensation of Rs. 1,00,000/-. Third writ petition was filed seeking C.B.I, enquiry against the officers of the corporation which was subsequently withdrawn. This is the fourth writ petition. Referring to the facts stated in the charge sheet and also in the correspondence exchanged before the charge sheet was issued, Shri Sathe urged that the Petitioner was trying to avoid his transfer to Goa on this or that pretext. He had been absent from Goa without leave from 20th October 1984 till the day he was charge-sheeted, i.e., on 22nd May 1985. He, of course, applied for leave for the major portion of the period of absence, but there were periods when he was absent without even applying for leave. There being no dispute that the Petitioner was absent from duties and no leave was granted to him, the Petitioner's case, according to Shri Sathe, clearly fell within the exception carved out by the Supreme Court in the case of Central Bank of India itself relied upon by Shri Deshmukh (supra). Once the Petitioner accepted that he was absent from duty, it was for him to explain that he was absent but the absence did not amount to misconduct. As laid down by the Supreme Court in Central Bank of India's case, no fault could be found with the manner and sequence of evidence taken by the enquiry officer. As regards the submission of written deposition by Shri Manjrekar on behalf of the management alongwith five documents on 6th August 1985, Shri Sathe's contention is that the Petitioner had not asked for time. If he had asked for time to cross-examine Shri Manjrekar and if time was not given to him, one could find fault with the enquiry but not in a case where time was not even asked for. He also referred to the written statement filed by the Petitioner in which again there was no contention that time to cross-examine Shri Manjrekar was asked for but was denied to him. Making allegations in the written statement of general nature, according to Shri Sathe, did not bring the Petitioner's case within the ratio of the Supreme Court decision in the case of Kesoram Cotton Mills (supra). The submission, thus, is that the enquiry is not vitiated and the finding of the Labour Court should be confirmed by this Court.
8. In order to appreciate rival contentions, it is desirable to refer to the Supreme Court decision in the case of Central Bank of India (supra) in somewhat detail. The Labour Court had, in that case, referred to the observations of an earlier decision of the Supreme Court in Associated Cement Companies Ltd. v. Their Workmen : (1963)IILLJ396SC to the effect-
'It seems to us that it is not fair in domestic enquiries against industrial employees that, at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him,'
and concluded therefrom that under no circumstances should a workman, whose conduct is the subject of disciplinary proceedings, by a domestic tribunal, should be examined in the first instance. In the case of Central Bank of India the Supreme Court held that the inference drawn by the Labour Court was not correct as there could be some cases in which the examination of the workman in the first instance might be justified. Referring then to the fact in that case, namely, that the workman had categorically admitted that be had committed a mistake in permitting the constituents concerned to overdraw without obtaining the sanction of the appropriate authorities, the Supreme Court held that examination of the workman in the first instance in that case was justified.
9. Reverting to the facts in this case, it is seen that the Petitioner has not admitted, far less categorically, that he was guilty of misconduct. His case has been that he had applied for leave on good grounds and the management has failed in its duties in granting him leave. This case, thus, cannot be compared with that of the Central Bank of India before the Supreme Court. Accordingly, in my judgment, the Petitioner should not have been examined in the first instance.
10. As regards the second contention also, I consider it desirable to refer to the Supreme Court observations at pages 379-380 in Kesoram Cotton Mills (supra). It has been held-
'It may be accepted that rules of natural justice do not change from tribunal to tribunal. Even so the purpose of rules of natural justice is to safeguard the position of the person against whom an enquiry is being conducted so that he is able to meet the charge laid against him properly. Therefore, the nature of the inquiry and status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice. Where, for example, lawyers are permitted before a tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer, it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient-see ......but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker.'
'It seems to us therefore that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the witness from the beginning to the end in the presence of the workman at the inquiry itself. Oral examination always takes much longer than a mere reading o'f a prepared statement of the same length and brings home the evidence more clearly to the person against whom the inquiry is being held. Generally speaking, therefore, we should expect a domestic inquiry by the management to be of this kind. Even so, we recognize the force of the argument on behalf of the appellant that the main principles of natural justice cannot change from tribunal to tribunal and therefore it may be possible to have another method of conducting a domestic inquiry (though we again repeat that this should not be the rule but the exception) and that is in the matter laid down in Shivbasappa case : (1964)ILLJ24SC (vide supra). The minimum that we shall expect where witnesses are not examined from the very beginning at the enquiry in the presence of the person charged is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the copy of the statements should be given well in advance we mean that it should be given atleast two days before the enquiry is to begin. If this is not done and vet the witnesses are not examined-in-chief fully at the inquiry, we do not think that it can be said that principles of natural justice which provide that the person charged should have an adequate opportunity of defending himself are complied with in the case of a domestic inquiry in an industrial matter.'
In my judgment, this decision squarely applies to the facts in the present case. It is immaterial whether the Petitioner asked for time or not. What is material is whether the enquiry officer conducted himself in a manner required of him. Having regard to the ratio of the decision, I have no hesitation in holding that the enquiry officer has not conducted himself fairly and properly. It may not be out of place to mention that Shri Sathe has placed reliance on a Supreme Court decision in the case of State of Maharashtra v Ramdas Shrinivas Nayak and Anr. : 1982CriLJ1581 . In particular, he had relied on the observations in that case to the effect that the Judge's record was conclusive, neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else. The Court could not launch into enquiry as to what transpired in the High Court. In the present case Shri Deshmukh has not made any allegation that time was asked for and was not allowed or that the enquiry officer has recorded any fact wrongly. What he states is that the facts as recorded clearly show denial of justice and fair play. That apart, High Court Judges' record cannot certainly be equated with the record of the enquiry officer. No amount of reasoning given by the Labour Court will make an enquiry fair which is otherwise unfair.
11. In the above view of the matter, the finding of the Labour Court on the first issue is set aside. In the result, the award stands set aside The matter is remanded back to the Labour Court to be proceeded in accordance with the law. Rule is made absolute in terms of prayer (a).
No order as to costs.