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CASE NO.: Appeal (civil)  7312-7313 of 2002

PETITIONER: Div. Mangr. Plantn. Div. Andaman&Nicobar IS.

RESPONDENT: Munnu Barrick & Ors.

DATE OF JUDGMENT: 17/12/2004

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J  U D G M E N T

S.B. SINHA,  J :

       The Management of Andaman Nicobar Islands Forest and Plantation  Development Corporation situate in the Union Territory of Andaman and  Nicobar Islands is in appeal before us from a judgment and order dated  4.7.2001 passed by a Division Bench of the Calcutta High Court in CAN  No. 28 of 2001 (M.A.T. No. 12 of 2001) whereby and whereunder an  application for condonation of 103 days’ delay in filing an appeal under  Clause 15 of the Letters Patent of the Calcutta High Court was not condoned  as also an order dated 10.10.2001 passed by another Bench of the said High  Court refusing to review the said order.  

       Respondent No. 1 to 8 herein (Respondent Workmen) were workmen  working with the Appellant in their establishment.  On an allegation of  commission of mis-conduct of giving less outturn and instigating other  workmen to slow down work and give less daily outturn, they were placed  under suspension by orders dated 10.10.1994 and 24.10.1994.  Charge  Sheets containing the articles of misbehaviour and in support thereof list of  documents as well as the list of witnesses which were to be brought on  records for sustaining the same were supplied to the workmen.  It appears  that the conditions of services of the workmen are governed by the Rules  framed by the Appellant known as IES Rules.   

       The workmen despite notice did not participate in the domestic  enquiry whereupon an ex-parte enquiry was conducted by the Inquiry  Officer.  He upon completion of the enquiry sent his report to the  disciplinary authority.  The disciplinary authority by an order dated  12.6.1995 directed removal of the workmen from services.  Along with the  orders of removal, a copy of the enquiry report was also enclosed.   

       An industrial dispute was raised by the workmen culminating in a  reference made by the Administrator, Andaman and Nicobar Islands to the  Labour Court, Andaman and Nicobar Islands by a notification dated  13.3.1997.   

       Before the Labour Court, both the parties filed their respective  pleadings and adduced evidences.  By reason of an award dated 10.11.1998,  the learned Presiding Officer, Labour Court, Andaman and Nicobar Islands  in I.D. Case No. 1 of 1994 arrived at a finding that the said orders of  removal passed against the workmen were bad in law as a copy of the  enquiry report was not served upon the workmen with a second show-cause  notice and consequently directed reinstatement of workmen in service with  all back wages and service benefits attached thereto.

       The learned Presiding Officer in his award dated 10.11.1998 held:

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"Here in this case apart from change over of the  position in I.D. Act by introduction  of Section 11- A, there is glaring violation of natural justice as  pointed out earlier, that is to say non compliance  with the mandate of Article 311 (2) of the  Constitution, to be specific, no second show cause  notice was served upon any of the eight workmen  as named before, giving each of them opportunity  to present their defence, if any, before imposition  of punishment or penalty.  The principle of natural  justice, Audi Alterm Partem was clearly violated  and contravened.  The rudimentary and  fundamental principles have been clearly  infringed.  It is also a clear case of discrimination.   The delinquent workmen were denied of their right  to receive the copy of inquiry report as well as the  right of hearing before final order imposing major  penalty."

       The said order came to be questioned by the Appellant herein in a writ  petition filed before the Calcutta High Court.  Before a learned Single Judge  of the said court a contention was raised by the Appellant herein that the it  should be permitted to proceed with the disciplinary proceeding against the  Respondent Workmen from the stage of service of the report of the Inquiry  Officer on them.  The said contention was rejected by the learned Single  Judge by an order dated 20.12.2000 on the premise that the Appellant had  not filed any application for adduction of additional evidence before the  Labour Court.  It was opined:

"Accordingly, I am not in a position to sustain the  contention of the petitioner authority that except  for the service of notice of the enquiry report upon  the respondent \026 workmen all the charges framed  against the respondent-workmen were proved  beyond doubts.  I, therefore, do not incline to  interfere with the impugned award passed by the  Tribunal.  I, accordingly, dismiss this writ  petition."

       A Letters Patent Appeal thereagainst was preferred before the  Division Bench which was barred by limitation, as a delay of 103 days  occurred in filing the same.  As indicated hereinbefore, the delay in filing the  said appeal was not condoned.   Consequently, the appeal was dismissed;  whereafter a review application was filed before the said court and the same  also came to be dismissed.

       Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the  Appellant would submit that the Division Bench of the High Court in the  peculiar facts and circumstances of the case and particularly having regard to  the question of law involved therein should have disposed of the appeal on  merit upon condoning the delay in filing the same.   

       The learned counsel would urge that the Presiding Officer, Labour  Court and consequently the learned Single Judge of the High Court clearly  erred in invoking the principles governing conditions of services of the  employees of the Union of India in the instant case as Article 311 of the  Constitution of India is clearly inapplicable.  In any event, the learned  counsel would contend that non-supply of the enquiry report to the  delinquent workmen in order to enable them to raise contentions as regard  the quantum of punishment would not vitiate the entire enquiry proceedings  inasmuch as the Disciplinary Authority could have considered the matter  afresh on the question of punishment upon service of a copy of the said  enquiry report.  

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       Mr. Gupta would submit that even in Managing Director, ECIL,  Hyderabad, etc. etc. Vs. B. Karunakar, etc. etc. [AIR 1994 SC 1074] the  Court has laid stress on the ’prejudice doctrine’, in terms whereof it was  obligatory on the part of the workmen to show that they had been prejudiced  by reason of non-supply of the enquiry report.  Reliance in this connection  has also been placed on Canara Bank and Others Vs. Debasis Das and  Others [(2003) 4 SCC 557].

       Nobody has appeared for the Respondents despite service of notice.

       Domestic enquiry in an industrial establishment is governed by the  Standing Orders applicable thereto.  The employer, if it is a government  company, or a society registered under the Societies Registration Act can  also frame its rules and regulations governing the conditions of service of its  employees.  A domestic enquiry is required to be conducted in terms of such  rules and regulations.   

       From a perusal of the award passed by the Presiding Officer, Labour  Court, it does not appear that the workmen had raised any contention as  regards violation of any mandatory provision of such rules laying down the  procedure for conducing departmental proceedings.  Indisputably, however,  the principles of natural justice in such a proceeding are required to be  complied with.

       In law, the concerned workmen do not enjoy any status as they are not  the employees of Union of India and furthermore, their conditions of service,  were not governed by any rule made under Article 309 of the Constitution.   Services of the workmen were also not protected under Article 311 thereof.   It has been contended before us that in terms of the extant rules governing  the conditions of service of the workmen, a departmental appeal was  maintainable against an order of the Disciplinary Authority.  Presumably,  such a remedy was provided with a view to enable the workmen to prefer an  effective departmental appeal and only in that view of the matter, a copy of  the enquiry report was supplied by the Appellant along with the order of the  dismissal.

       The workmen evidently did not avail the benefit of filing any  departmental appeal.  In such an appeal they could have shown as to how  and in what manner and to what extent they were prejudiced by non-supply  of a copy of the enquiry report.  Had the workmen filed such an appeal, they  could have furthermore demonstrated before the Appellate Authority that in  terms of the rules and regulations governing their conditions of service, they  were, as a matter of right, entitled to a copy of the enquiry report before an  order of punishment is imposed upon them.

       The principles of natural justice cannot be put in a strait-jacket  formula.  It must be viewed with flexibility.  In a given case, where a   deviation takes place as regard compliance of the principles of natural  justice, the Court may insist upon proof of prejudice before setting aside the  order impugned before it. [See Bar Council of India Vs. High Court of  Kerala, (2004) 6 SCC 311]

       The Presiding Officer, Labour Court, as noticed hereinbefore,  committed a manifest error in invoking Article 311 of the Constitution of  India in the instant case.   

       In Karunakar (supra), this Court has clearly held that the employee  must show sufferance of prejudice by non-obtaining a copy of the enquiry  report.

       This Court in Canara Bank (supra) while following Karunakar (supra)  held:

"19. Concept of natural justice has undergone a  great deal of change in recent years. Rules of

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natural justice are not rules embodied always  expressly in a statute or in rules framed thereunder.  They may be implied from the nature of the duty to  be performed under a statute. What particular rule  of natural justice should be implied and what its  context should be in a given case must depend to a  great extent on the fact and circumstances of that  case, the frame-work of the statute under which the  enquiry is held. The old distinction between a  judicial act and an administrative act has withered  away. Even an administrative order which involves  civil consequences must be consistent with the  rules of natural justice. The expression "civil  consequences" encompasses infraction of not  merely property or personal rights but of civil  liberties, material deprivations, and non-pecuniary  damages. In its wide umbrella comes everything  that affects a citizen in his civil life."

       Referring to a large number of decisions, it was observed that a court  will refrain from interfering with an order, having regard to ’useless  formality theory’, in a given case.  It was opined:

"27. It is to be noted that at no stage the employee  pleaded prejudice. Both learned Single Judge and  the Division Bench proceeded on the basis that  there was no compliance of the requirement of  Regulation 6(18) and, therefore, prejudice was  caused. In view of the finding recorded supra that  Regulation 6(18) has not been correctly  interpreted, the conclusions regarding prejudice are  indefensible."

       The learned Single Judge of the High Court, therefore, in our opinion,  seriously erred in not considering the matter from the aforementioned angle.   Furthermore, in view of the submissions made on behalf of the Appellant  herein, the court should have given an opportunity to complete the  disciplinary proceeding from the stage of supplying a copy of the enquiry  report to the workmen so as to enable them to raise a contention as regard  correctness of the findings of the Inquiry Officer contained in the report as  also on the quantum of punishment proposed to be imposed by the Appellant  while issuing a second show cause notice.   

       In a case of this nature where serious questions of law were raised by  the Appellant, in our opinion, the Division Bench of the High Court should  have taken a liberal view on the application for condonation of delay filed by  the Appellant wherefor the Respondents workmen could have been  adequately compensated on monetary terms.

       Ordinarily, we have remitted the matter back to the Division Bench  for consideration of the matter on merit but as we are satisfied that the  learned Single Judge of the High Court as well as the Presiding Officer,  Labour Court have seriously erred in passing the impugned award and  judgments, with a view to do complete justice to the parties we are of the  view that all the impugned judgments and orders should be set aside and the  matter remitted to the Presiding Officer, Labour Court for consideration of  the matter afresh.  However, as the matter is pending for a long time, we  direct the Appellant to pay a sum of Rs. 10,000/- to the workmen by way of  costs.  Such costs should be deposited before the Labour Court within six  weeks from date.   

       The impugned order dated 4.7.2001 passed by the Division Bench of  the High Court, dated 20.12.2000 passed by the Single Judge of the High

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Court as also the award dated 10.11.1998 passed by the Presiding Officer,  Labour Court, Andaman and Nicobar Islands are accordingly set aside.

       This Appeal is allowed and the matter is remitted to the Court of the  Presiding Officer, Labour Court, Andaman and Nicobar Islands with the  aforementioned directions.  As the Respondents have not appeared, there  shall be no order as to costs.