:
1. : R IN THE HIGH COURT OF KARNATAKA DHARWAD BEN CH ON THE16T H DAY OF MARCH2018BEFORE THE H ON’BLE MR. JUSTICE K .N . PHA NEENDRA WRIT PETITION N O.109153/2016 (L-RES) BETWEEN : WEST COAST PAPE RS MILLS LITD., BANGUR NAGAR , D ANDELI, DIST. UTTARA KANNADA, REPRES ENTED BY ITS EXECUTIVE DI RECTOR AND NOW R EPR ES ENTED BY LEGA L MANAGER. …PETITIONE R (BY SRI RAVI HE GDE, ADVOCATE) AND: ADARSHAPPA S .KA DROLLI , R/A NEAR WAT ER TANK, DANDELI, AGE :
38. YEARS , DIST: UTTARA KA NNADA. …RESPONDENT (BY SRI ANANT P.SAVADI, ADV OCAT E) THIS WRIT PETITION IS FILED UND ER ARTICLES226& 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI OR AN Y OTHER WRIT OR ORDER
QUAS HING THE ORDER
PASS ED ON ISSUE NO.1 DATED2807.2016 IN KID NO.60/ 2013 ON THE FILE OF LAB OUR COUR T, BE LAGAVI , VID E ANNEXUR E-J AN D ISSUE ANY OTHER WRIT OR ORDER
OR DIRECTION AS :
2. : THIS HON’BLE COURT MAY DEEM FIT IN THE CIRCUMSTANCES OF THE CASE IN CLUDING AS TO TH E COST OF THIS WRIT PETITION IN THE ENDS OF JUSTICE AND ETC. THIS WRIT PETITION FOR PRELIMINARY HE ARING B GROUP THIS DAY, THE COURT MADE TH E FOLLOWING: COMING ON ORDER
Heard the learned counsel for the petitioner, the respondent and perused the records.
2. The petitioner West Coast Paper Mills limited has called in question the order passed by the Labour Court on a preliminary issue with regard to the validity and legality of the disciplinary enquiry held by the petitioner against the respondent.
3. As could be seen from the orders passed by the Labour Court, a ground has been taken up before the Labour Court that, the domestic enquiry held against the respondent as not fair and proper. The Labour Court has answered the said point in the negative holding that, the domestic enquiry held against the respondent was not fair :
3. : and proper, therefore the enquiry was set aside and consequently permitted the parties to lead their evidence before the Labour Court afresh in order to prove the alleged misconduct of the respondent. Only ground that has been relied upon by the Labour Court in order to come to such conclusion is that, a private person ‘an Advocate’ has been appointed as an enquiry officer who conducted the enquiry, submitted his report to the disciplinary authority and the enquiry conducted by a private person is not permitted under the regulations of the petitioner herein.
4. The Labour Court has relied upon the opinion expressed by this court in RSA No.1104/2008 to come to such a conclusion. This court in RSA No.1104/2008 between the Management of North West Road Transport Corporation, Hubli Vs. Ramachandra Narayan Joshi vide judgment dated 05th day of June 2014 has observed that: “the Management of the Corporation has passed an unanimous resolution authorizing the Corporation :
4. : to appoint any person outside the management as an enquiry officer to conduct enquiry proceedings. As rightly pointed out by the learned counsel for the respondent-plaintiff, the resolution of the Corporation cannot over look the statutory provisions of the Act. Unless the standing orders are suitably amended in accordance with law for appointment of any person outside the management etc.
5. The only question that arises for consideration of this court is that, whether the interpretation given by the Labour Court with reference to standing orders of the petitioner is proper and correct. Before adverting to the other important rulings cited by both the counsel, it is just and necessary for this court to examine the Certified Standing Orders of the petitioner i.e., West Coast Paper Mills, Dandeli which is not in dispute. The particular provision is at Regulation No.21 which refers to misconduct, enquiry, procedure and punishment. The above said provision particularly Regulation No.21(2) is very important for the consideration of this court with :
5. : regard to the appointment of enquiry officer for the purpose of conducting a disciplinary enquiry against the respondent, which reads thus: “21. MISCONDUCT, ENQUIRIES, PROCEDURE (1) (2) AND PUNISHMENT XXXXXXX A workman against whom an enquiry is to be held shall be given a chargesheet clearly setting forth the circumstances appearing against him and requiring explanation. He shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself. Except for reasons to be recorded in writing by the officer holding the enquiry, the workman shall be permitted to produce witnesses in his defence and cross- examine any witness on whose evidence the charge rests. A concise summary of the evidence led on either side and the workman’s plea shall be recorded. (emphasis supplied) :
6. :
6. On plain reading of the above said provision, there is no specification as to, who is to be appointed as an enquiry officer. It all depends upon the interpretation of the words used in the said provision as to, who should be the officer can hold the enquiry. Therefore, in order to have the proper interpretation of the above said provision, it becomes necessary for this court to rely upon the rulings cited by the learned counsel in this regard.
7. As noted above in the earlier proceedings in Regular Second Appeal, this court has taken up a view that unless an amendment is brought to the regulation it cannot be inferred that a third person can be appointed as an enquiry officer. But there is no interpretation which has been made as to how the word ‘enquiry officer’ or ‘officer’ who enquires into the matter as used in the regulation, has to be interpreted. Apart from the above said ruling, rendered in the year 2008, the learned counsel also relied upon another ruling of this court in W.P.No.19764/2000 :
7. : dated 17th day of August, 2005, between M/s Kirloskar Electric Co.Ltd., Vs. Sri S.P.Satyanarayana. This court at paragraph No.5 onwards has come to the conclusion that, “unless an exceptional case is made out, the High Court should not normally interfere with domestic enquiries, if the enquiry is not vitiated by any illegality or prejudice to the parties.” 8. In the above said case, this court has also discussed at paragraph No.8 onwards after relying upon a decision of the Apex Court reported in AIR1984SC153 as to under what circumstances, the High Court can interfere with the proceedings before the Labour Court. It observed that, “only in exceptional cases, the court has to interfere with the proceedings before the Labour Court. It is also observed that, it is always open to the parties to challenge even finding on preliminary issue regarding disciplinary enquiry, raised at the earliest point of time.” (emphasis supplied) :
8. : “Therefore, the court has further observed that it would not be proper for the High Court to go into the matter at length by looking into the preliminary order passed by the Trial Court, because the Trial court has got ample opportunity to go into the matter on merits at length by looking into entire material on record and decide all the issue together between the parties.” 9. On careful understanding of the above observation, of course it is the general principle, which has been laid down in the above said case that, normally the court should not interfere with the orders of the Labour Court or the trial court whenever, the trial court decides a preliminary point in favour of either of the parties, particularly when the proceedings are not terminated, because the parties would get ample opportunity to challenge the said preliminary order also along with the order on merits. But the same judge while heading a Division Bench of this Court in W.A.No.30659/2013 (L- :
9. : TER) between Sri K.B.Doddamani Vs. The Management of NWKRTC has taken a different view. Wherein the similar regulation of the NWKRTC was questioned before the Labour Court and the Labour Court has given specific finding on a preliminary issue with regard to the disciplinary enquiry. In the said case the interpretation of 23(2) of the said regulation was called in question, while interpreting the said provision the Court has extracted the said provision, which in my opinion is necessary to be extracted here also to find the similarities in the regulation considered in the above case pertaining to NWKRTC and the Certified Standing Order pertaining to the Management of petitioners in this case, which reads thus. Regulation 23(3) “Whenever the Disciplinary Authority is of the opinion that, there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a corporation servant it may itself inquire into or appoint under this Regulation an Authority to inquire into the truth thereof.” :
10. : While interpreting the said provision, the Division Bench has said that: “We do not see any substance in the said contention that an outsider cannot be appointed. The word used are unambiguous in the regulation, it is very clear that, the Disciplinary Authority may itself enquire into or appoint under this Regulation, an Authority to enquire into the truth thereof. So appointment should be under this Regulation. But the said provision does not say, the person to be appointed also should be an authority under the Regulation, which was the position in Andhra Pradesh’s case.” 10. Therefore, looking to the above said Division Bench ruling, it is clear that, unless there is a prohibition under the regulation to appoint a third party or an independent person apart from departmental person there cannot be any prohibition by means of any other mode for the purpose of appointing a third party as an enquiry :
11. : officer i.e., the sum and substance which has been interpreted by the Division Bench.
11. Similar set of facts and circumstances came before this court for consideration in another writ petition in W.P.Nos.63075-78/2010 (L-RES) vide judgment dated 09.03.2017 between M/s Kirloskar Ferrous Industries Ltd., Vs. Sri K.Shivaramappa and others, this court has taken the same view as that of the Division Bench cited supra after in detail considering the relevant regulation holding that, the domestic enquiry even held by a third party and not by an officer of the employer, that will not vitiate the proceeding when there is no specific prohibition to appoint a third person as an enquiry officer. Therefore, looking to the above said facts and circumstances and the interpretation made in the above said case, it is clear that, if there is no specific prohibition to appoint a third party as Enquiry Officer there is no need to read in to that particular prohibition i.e., the ‘Certified Standing Order’ in :
12. : order to interpret the same to the effect that, a departmental person should only be appointed as an enquiry officer.
12. Therefore, it is crystal clear that the corollary to the general Rule is strict literal interpretation, that is to say:- nothing is to be added to or omitted from a statute or rule or regulation unless there are adequate grounds to justify the interference that the law makers had intended that, something is omitted to be expressed. To read words which are not there, into any Act or Rules is a rare circumstance, unless clear reason for it is to be found within the four corners of the Act or Rules itself. An express or implied intention, not available in a statute, shall not be inferred or imagined with. So an Act or Rules or Regulation which authorized a particular words should be understood in a particular manner by applying the principles of Golden Rules of interpretation, the same has to be understood in the same manner. The words should :
13. : be understood according to the general meaning of the said word. Therefore in this case also omission of any word or any sentence in the Certified Standing Order or a prohibition which is not there or that, any positive wordings ought to have been incorporated by the Law Makers cannot be inferred in the absence of any strong circumstances which necessitate the interpretation of the standing order in some other manner. Therefore, it cannot be inferred that an enquiry officer should be appointed, who should belonged to the management alone.
13. Further argument of the learned counsel Sri Anant P Savadi is also very interesting. He submits that, in the ‘Certified Standing Orders’, the words used, in regulation 21, is: ‘the officer holding the enquiry’, needs to be properly interpreted. According to his interpretation ‘the officer’ word used in the said regulation only refers to the ‘officer’ of the employer and not otherwise, according to him it should be interpreted in that context only. :
14. :
14. It is worth to mention here, the said word ‘officer’ is no where defined in the Certified Standing Order. Therefore, the general interpretation has to be given to the particular ward ‘officer’ with reference to the surrounding words which are used along with the word ‘officer’ in the Standing Order. Therefore the entire provision has to be understood from words used surrounding the said word ‘officer’. If, I take the entire ‘Standing Order’ the word ‘officer’ itself cannot be isolated for interpretation but as a whole it should be understood after ascertaining how the said word is coined in the relevant Standing Order particularly in Item No.21 of the said Standing Order. The said regulation in which the word ‘officer’ is used reads as follows :- “Except for reasons to be recorded in writing by ‘the officer holding the enquiry’, the workman shall be permitted to produce witnesses in his defence and cross-examine any witnesses on whose evidence the charge rests.” (emphasis supplied) :
15. :
15. It is to be borne in mind that, the words of a Statute when there is any doubt about their meaning then only they are to be understood in the sense in which they best harmonise with the subject of the enactment. The meaning of the words and their meaning is found not so much in a strictly grammatical or etymological propriety of language nor even in its popular use as in the subject or in the occasion on which they are used and the object to be attained. Grammatically, the words may cover a case but whenever a statute or rule or document is to be construed, it must be construed according to the ordinary meaning of the words as applied to the subject matter with regard to which they are used, unless there is something which renders it necessary to read them in a sense which is not their ordinary sense in the English language as so applied. The words used in a particular Statute has to be understood in such a way to harmonise the entire provision and the intention of such provision introduced by the law :
16. : makers. In this background, the word used in particular Certified Standing Order has to be understood.
16. Therefore, the words ‘the officer’ cannot be isolated from the other words i.e., ‘holding the enquiry’. Holding the enquiry means, who ever may be the person appointed by the employer to hold an enquiry he will become an officer holding an enquiry, for all practical purposes. Therefore, officer holding an enquiry cannot be in any manner interpreted that, officer should be of the department and he should only hold the enquiry. Therefore, the said arguments of the learned counsel are far reaching and in such manner it cannot be accepted.
17. Further added to that, in view of the Division Bench observations made by this court quoted supra, it clearly goes to show, when there is no specific prohibition by means of negative direction in the regulation or, in the absence of any positive direction in the regulation that, a :
17. : particular person should be appointed as an enquiry officer in such circumstances it should be interpreted in such a harmonious manner that, the employer is having discretion either to enquire the matter himself or he can appoint any other authority for the purpose of enquiring into the matter.
18. Therefore, in that context the above said provision is to be understood, and the words ‘officer holding an enquiry’ used therein clearly indicates that, the discretion vests with the employer to appoint either the officer of its own department or any other person which it feels just and necessary for the purpose of enquiring into the matter with all fairness. Therefore, in my opinion, under the above said facts and circumstances, the officer who has been appointed by the employer though he is a third party, an advocate the appointment itself is not bad in law and the same would not have been interfered by the Labour Court. :
18. :
19. Now the next question arises for consideration is, under what circumstances the enquiry conducted by a competent officer appointed by the employer can be set at rest by the Labour Court. As could be seen from the orders of the Labour Court there is absolutely no allegation of any prejudice being caused to the respondent in any manner except raising a particular plea that, enquiry officer was not competent and the employer should not have been appointed a third party as an enquiry officer. Therefore, no prejudice or any other aspects have been alleged by the employee before the Labour Court. More over it is not shown to this court also that at any point of time during the course of enquiry any illegality or irregularities committed by the enquiry officer, in order to cause prejudice to the petitioner.
20. In this regard it is worth to refer a decision of the Apex court relied on by both the counsel reported in :
19. :
1997. LLR Page 268 between State Bank of Patiala & Ors., and S.K.Sharma.
21. The leaned counsel for the respondent mainly relied upon a particular portion of the judgment, wherein the Supreme Court discussed with reference to principles of natural justice. He argued that principles of natural justice is not a statutory law but it is developed on the basis of judicial pronouncements. There is no doubt so far as that aspect is concerned. But the arguments of the learned counsel is that, appointment of a third party as an enquiry officer without giving opportunity to the petitioner, itself, is against the principles of natural justice. The said argument though attractive but not acceptable. It is not the domain of the employee to ask as to whom the employer is going to appoint as an enquiry officer. It is the exclusive domain of the employer to appoint an enquiry officer to conduct a fair and proper enquiry so far as the employee is concerned. If the fairness is shown on the :
20. : basis of the records itself, the employee cannot question the appointment of the enquiry officer. Therefore, the arguments of the learned counsel for respondent is not accepted.
22. The next question is also answered by the Apex Court as to under what circumstances the enquiry conducted by the Enquiry Officer can be set at rest as unfair. It is worth to refer paragraph No.32 and 33 in the said judgment. “32. Now, coming back to the illustration given by us in the preceeding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interest of justice or would it be its negation?. In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interest of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice and not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be :
21. : prevented to achieve the very opposite end. That would be a counter productive exercise.
33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquires and orders of punishment imposed by an employer upon the employee) (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations /statutory provisions governing such enquires should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature of (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. :
22. : (3) in the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under “no notice” “no opportunity” and “no hearing” categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom. It is obvious no interference is called for. In this connection it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not :
23. : insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case whether there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self evidence. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principles stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
23. On careful perusal of the dictum of the Apex Court, in the above said decision, it is clear that prejudice can be attributable with reference to the non adhering to :
24. : the principles of natural justice to either of the parties during the course of enquiry. If there is any opportunity denied to the employee during the course of enquiry which amounts to prejudice and if that opportunity would have been given to him, he would have succeeded in the enquiry, if that opportunity has not been given, then it would amounts to prejudice. Whatever may be the remoteness of the opportunity, but the court has to consider whether such opportunity is vital in a particular case and ought to had been given by the enquiry officer. If the entire records disclose that, sufficient opportunity has been provided to both the parties in order to put forth their cases and thereafter the enquiry officer has fairly concluded the enquiry and submitted the report, normally such enquiry should not be interfered by the Labour Court or any other authorities dealing with such matters.
24. In view of the facts and circumstances, in each case the court has to consider whether the trial Courts are :
25. : right in passing such an order. It should also be borne in mind that a wrong order, interfering with the enquiry conducted by the department, by the Courts can also be questioned, in order to set at rest such illegalities committed by the trial courts.
25. Therefore, this court has to see whether any prejudice has been occurred to the respondent herein so as to nullify the effect of the entire enquiry conducted by the Disciplinary Authority. As I have already quoted neither before this court nor before the Labour Court, that question has been raised. The only question that has been raised and answered by the Labour Court is with regard to the legality of appointment of the enquiry officer.
26. On the other hand the learned counsel for the petitioner brought to the notice of this court that, fair enquiry has been conducted by the enquiry officer by providing the charge sheet papers, all the materials to the :
26. : delinquent employee, providing opportunity to him to file his objections, to cross examine the witnesses, also to lead his evidence and argue his case. All procedures have been zealously taken care of by enquiry officer. Those opportunities, in fact, have been best utilized by the employee by cross examining the witnesses and also leading his evidence on his side and thereafter argued the matter allowing the enquiry officer to conclude the enquiry by submitting his report.
27. The above said factual aspects clearly discloses that, at no point of time, right from the date of providing the charge sheet to the employee, he raised any of his little finger against the enquiry officer, regarding his appointment, jurisdiction and the proceedings, before the enquiry officer. Therefore, it clearly discloses that, there is absolutely no prejudice occurred to the employee in order to snub the enquiry report or enquiry proceedings, as done by the Labour Court. :
27. :
28. Under the above said facts and circumstances, I find sufficient force in the arguments of the learned counsel for the petitioner and I am of the opinion that, the Labour Court has committed a serious mistake in holding that, the enquiry was unfair only on the technical ground that, the enquiry officer was not legally appointed by the employer. The said observation of the Labour Court is against to the principles laid down in the above said decision already quoted. Hence, the said order deserves to be quashed, hence the following ; ORDER
1 Petition is allowed.
2) The order passed by the Labour Court dated 28.07.2016 in KID No.60/2013 is hereby quashed.
3) The Labour Court is hereby directed to continue with the proceedings in accordance :
28. : with law so far as the 2nd point formulated by it.
4) In view of the matter is of the year 2013, nearly 5 years have already been elapsed, therefore, the Labour Court is hereby directed to expedite the proceedings and dispose of the matter by giving finding on the second point in accordance with law within 6 months from the date of receipt of a copy of this order. E M / - SD/- JUDGE