Shamsuddin, J.
1.The plaintiff in O.P. No. 104 of 1975 on the file of the Court of the III Additional Subordinate Judge, Ernakulam, is the appellant.
2. The suit was filed for recovery of Rs. 40,000 as damages alleging that the appellant was wrongfully dismissed by the defendant. The appellant was a class IV employee of the defendant, Coir Board, Ernakulam. He was dismissed from service as per order dated 13th April, 1972. The disciplinary proceedings which culminated in his dismissal were taken against him alleging that he contacted M/s. Liberty Sales Agencies, Bangalore, who wanted to purchase coir carpets from the defendant's show room and sales depot in Bangalore and told them that the price of new carpets had gone up considerably and that four pieces of carpets they possessed could very well be repaired and dyed and they could save unnecessary expenses and that for such repair and redyeing, an amount of Rs. 100 was fixed by the appellant and an amount of Rs. 60 was received by him as advance. The Coir Board issued a show-cause notice directing the appellant to explain his conduct. The appellant submitted his explanation and finding that it was not satisfactory, an enquiry was conducted by the show-room manager of the Coir Board and the appellant was found guilty of having violated bye-laws 3, 9 and 15 of the Coir Board Employees' (Conduct) Bye-laws. On the basis of the report of the Enquiry Officer, the Secretary of the Coir Board issued a notice to the appellant to show cause why he should not be dismissed from service and not being satisfied with the explanation, the Secretary passed an order for dismissal of the appellant. Appeal preferred by the appellant to the Chairman of the Coir Board was dismissed. A review petition was filed before the Central Government against the said order, but he did not receive any reply. Thereupon, he issued a notice on 7th January, 1974, to the defendant demanding an amount of Rs. 40,000 as damages for wrongful dismissal from service. To this, the Secretary of the Coir Board sent a reply dated 13th March, 1974, stating that the dismissal was in order and no claim for damages was entertainable. Thereupon, the appellant filed the above suit. In the plaint, the appellant averred that no Presenting Officer was appointed by the disciplinary authority and the Enquiry Officer constituted himself as the Presenting Officer and judge and this has violated the principles of natural justice and also the provisions of the Coir Board Services (Classification, Control and Appeal) Bye-laws, 1969. He also alleged other irregularities in the conduct of the enquiry and stated that the enquiry was illegal and the resultant dismissal also was illegal and, therefore, he was entitled to get an amount of Rs. 40,000 as damages for the loss of service.
3. In the written statement, the respondent admitted that the appellant was a class IV employee of the Coir Board and was dismissed from service on 17th April, 1972, but the respondent contended that the dismissal order was passed after a proper enquiry and on misconduct in violation of bye-laws 3, 9 and 15 of the Coir Board Employees' (Conduct) Bye-laws being proved against the appellant. The other allegations and irregularities were also denied in the written statement. It was also contended that the appellant challenged the order of dismissal before this Court in a writ petition, i.e., O.P.No. 4813 of 1972, which was dismissed by this Court as per exhibit B-8 judgment dated 9th January, 1972, and that would operate as res judicata.
4. On behalf of the appellant, exhibits A-1 to A-21 were marked and P.Ws.Nos. 1 to 3 were examined. On behalf of the respondent, exhibits B-1 to B-8 were marked and DW-1 was examined.
5. The lower court found that there was no illegality in conducting the enquiry, that the failure to appoint the Presenting Officer did not vitiate the enquiry and that the principles of natural justice were not violated. Aggrieved by the judgment and decree of the lower court, the appellant has filed this appeal.
6. While the appeal was pending, the appellant died and his legal representatives were brought on record as additional appellants Nos. 2 to 4.
7. In this appeal also, learned counsel for the appellant raised four contentions, namely, (1) the order of dismissal was passed in violation of the principles of natural justice; (2) no Presenting Officer as contemplated by Sub-clause (c) of clause 5 of bye-law 11 was appointed, and, therefore, the enquiry was vitiated; (3) the charges levelled against him do not fall under any of the categoriesof misconduct mentioned in bye-law 3 of the Coir Coir Board Employees' (Conduct) Bye-laws, and (4) in any event the extreme penalty of dismissal from service is out of proportion to the misconduct alleged and, therefore, the order of dismissal is illegal.
8. The first and second contentions of counsel for the appellant can be considered together. Counsel for the appellant heavily relied on bye-law 11 (5)(c) of the Coir Board Services (Classification, Control and Appeal) Bye-laws, 1969, framed by the Coir Board in exercise of the powers conferred by Sub-section (1)(d) of Section 27 of the CoHI Industry Act, 1953(Act No. 45 of 1953), which reads as under:
'Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Board's employee or a legal practitioner to be known as the 'Presenting Officer' to present on its behalf the case in support of the articles of charge.'
Learned counsel invited our attention to a decision of the Supreme Court in B.S.Minhas v. Indian Statistical Institute, (1984-I-LLJ-67) where the Supreme Court took the view that an administrative authority is bound to adhere to the procedural standards fixed by it to avoid arbitrariness, failing which the action taken by it would be invalid.
9. On the other hand, learned counsel for the respondent contended that the expression used in Sub-clause (c) of Clause 5 of bye-law 11 is 'may' and that, therefore, the said provision is not mandatory. He also invited our attention to Clause (1) of bye-law 11 which states that no order imposing any of the penalties specified in Clauses (v) to (ix) of bye-law 8 shall be made except after an enquiry held, as far as may be, in the manner hereinafter provided. He also placed reliance on clauses 16 and 19 of bye-law 11, in support of his contention that the appointment of a Presenting Officer is not mandatory. Clauses 16 and 19 of bye-law 11 read as follows:
'(16) When the case for the disciplinary authority is closed, the Board's employee shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Board's employee shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(19) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed and the Board's employee or permit them to file written briefs of their respective case, if they so desire.'
10. In our view, the contention of learned counsel for the respondent is well-founded. The expression used 'as far as may be' in Clause (1) of bye-law 11 and the expression 'Presenting Officer, if any,' used in clauses 16 and 19 clearly indicate that the appointment of a Presenting Officer is not mandatory. In the circumstances, it cannot be said that the failure to appoint a Presenting Officer will vitiate the proceedings and render the inquiry illegal and void. Learned counsel for the appellant has a wider contention that, in any event, the failure to appoint a Presenting Officer will violate the provisions of the principles of natural justice in as much as, by this omission, the enquiry officer was constituted both as a judge and prosecutor. The failure to appoint a Presenting Officer cannot be considered as ipso facto violating the principles of natural justice unless it is established that the enquiry officer was biased or that the delinquent was prejudiced by the failure to appoint a Presenting Officer. In Workmen of Buckingham and Carnatic Mills v. Buckingham and Carnatic Mills, Madras, (1970-I-LLJ-26), the Supreme Court had occasion to consider the validity of a domestic enquiry where no separate Presenting Officer was appointed. In that case, the Supreme Court found that in the domestic enquiry, the management was not representated by any officer separately and that the questions to the workmen and the witnesses were put by the enquiry officer himself. The Court, however, held that this did not vitiate thedomestic enquiry and that the enquiry officer, in the circumstances, could not be said to have acted as the prosecutor and the judge. In the instant case, it is not shown that the appellant has, during the enquiry, ever complained about the failure to appoint a Presenting Officer or requested for appointment of a Presenting Officer. It has also not been shown that the enquiry officer had any bias against the appellant or that the appellant was in any way prejudiced by the failure of the defendant to appoint a Presenting Officer. Once it is found on the interpretation of the bye-laws that requirement to appoint a Presenting Officer is not a mandatory provision, the appellant cannot succeed unless he established that the enquiry officer was exposed to bias or that he was prejudiced by the failure to appoint a Presenting Officer.
11. Learned counsel also pointed out that no officer of the Coir Board was appointed to assist the defence. In the instant case, the appellant was specifically asked whether he required assistance of any other employee to present the case on his behalf, but the appellant did not make use of this offer. In these circumstances, he cannot complain that the enquiry is bad on the ground of failure to appoint an employee of the Coir Board to assist him. Full opportunity was given to the appellant to cross-examine the witnesses and to peruse the documents relied on by the management and, in the circumstances, we do not find any justificationto agree with the contention of the appellant that the enquiry was violative of the principles of natural justice.
12. The next contention raised by learned counsel for the appellant is that the charges levelled against the appellant do not fall under any misconduct mentioned in bye-law 3 of the Coir Board Employees' (Conduct) Bye-laws, 1968. We are unable to agree with this contention of learned counsel. The charges against the appellant would definitely fall under clauses 1, 2 and 3 of bye- law, 3 of the aforesaid Bye-laws.
13. It was finally argued by learned counsel for the appellant that the punishment awarded is totally out of proportion to the misconduct alleged and the charges proved. The bone of the charges against the appellant was that he dissuaded the customer of the respondent from purchasing new carpets from the Coir Board show-room and volunteered to repair the old carpets and received an advance of Rs. 60 for the repairs. This, in our view, is a serious misconduct and, therefore, the above contention of the appellant based on the Supreme Court decision in Ranjit Thakur v. Union of India (1988-I-LLJ-256), is also unsustainable.
14. In the result, the appeal fails and it is accordingly dismissed. In the circumstances of the case, there will be no order as to costs.