Workmen of Hindustan Steel Ltd. and Anr. v. Hindustan Steel Ltd. and Ors.

Judgment

The Judgment of the Court was delivered by · · DESAI, J. In exercise of the power conferred by Sec. 10 of the Industrial Disputes Act, 1947, the Government of the State of West Bengal as an appropriate Government referred the following dispute to the Ninth Industrial Tribunal, West Bengal for adjudication. The reference reads as under : "Whether the termination of services of Shri Manas Kumar Mukherjee is jtLStified? To what relief, if any is he entitled ?" Hindustan Steel Ltd. ('Employer' for short) dismissed Manas ff Kqmar Mukherjee('W orkman' for short) without holding any inquiry WORKMEN v. HINDUSTAN STBl!L LTD (D~sat, J.) and without giving any opportunity to the workman to question or correct the allegation of misconduct levelled against him and In violation of principles of natural justice. The employer tried to sustain its action by invoking its powers under Standing Order 32 of the certified Standing Orders of the Hindustan Steel Ltd. S.0. 32 reads as under : "32.

Special Procedure in certain cases. Where a workman has been convicted for a criminal offence in a Court of Law or where to General Manager is satisfied, for reasons to be recorded in writing, that it is inexpedient or against the interests of security to continue to employ the workman, the workman may be removed or dismissed from service without following the procedure laid down in Standing Order 31." S.0. 31 prescribed detailed procedure for dealing with cases of misconduct. Briefly stated, the procedure prescribed in S.O. 31 for imposing major penalty is that the employer has to draw. up a charge-sheet and give an opportunity to the delinquent workman to make his representation within seven days. If the allegations are controverted, an enquiry has to be held by an officer to be nominated by the management and in such an enquiry reasonable opportunity of explaining and defending the alleged misconduct must be given to the workman.

The delinquent workman may also be given the assistance of a fellow employee. The procedure also permits suspension of the delinquent workman pending enquiry. At the end of the enquiry, if the charges are held proved, and it is provisionally decided to impose major penalty, the delinquent workman has to be afforded a further reosonable opportunity to represent why the penalty should not be imposed on him. According to the employer it can dispense with such an enquiry in exercise of the power conferred by S.0. 32. The scope and ambit of S.O. 32, will be presently examined. The Tribunal held that as the employer dispensed with the disciplinary enquiry in exercise of the power conferred by S.O. 32, it cannot be said that dismissal from service was not justified.

The Tribunal observed that even if there were allegations of misconduct, the employer was quite competent to pass an order of removal from service without holding any enquiry in view of the provision con- SUl'l\EMB COURT REPORTS [1985] 2 s.c.a. tain:d in S.O. 32. The Tribunal concluded that the employer accused the workl!lall of committing misconduct and proceeded' to pass the order . of, removal from service without holding any enquiry into the allegations.of.misconduct, it cannoti.be. said· to be -a colourable . exercise of .. power and «the.workman.would not be entitled to any relief. The Tribunal accordingly rejected ··the ·reference. Hence ·this ff appeal by special leave. The only question that mus! engage our attention. is what is the scope and ambit of S.O. 32. It has already been extracted. Upon its trl!e construction, the Standing Order does. not provide· that for reaso~s to bf? recorded in \Vriting, an enquiry into misconduct can be dispensed with. S.O. 32 clearly confers power upon the General Manager that . pn his being satisfied that it is inexpedient or against the interest !Jf security.IQ continue to employ the workman.- ·then for reasons to be recorded. in writing the workman may be ,removed or; dismissed from' service without following the procedure laid down in Standing Order 31.

This archaic standing order reminiscent of the · days of hire and fire is relied upon by a public sector. undertaking to sustain an. utterly upsu>tainal:le order and to justify an action taken in, violation . of the principles of natural jUJtice, an action which has the , effect of: denying livelihood and caning a' stigma.• One can appreci~t~ that in a given situation, and ~nquiry into .. misconduct may, be. counter-productive. Constitution itsdf contemplates such a situation when it enumerates situations in . which. a. punishment of dismssal, rel'.l\ofl!l, or. reductiqn ;in .rank. can be impo~ed without holding'\ disciplinary eµquiry,_ J.et i~ be extracted : · '.'311. '. Dismissal, .. removal. or reduction in rank of ,.persons employed in civil capacities under the Union or .a • State~ ' (1) (2)

No such person as aforesaid/shall be dismissed:. or removed or reduced in rank except after an inquiry in which he has been informed of the charges against.him and ; : given a reasonable opportunity of being heard in respect of , those charges : ~. t It WOR.l(MEN v. HINDUSTAN' STBEL LTD (J)tsat, J.) Provided further that this clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground ~of conduct which has led to his conviction on a criminal charge ; or (b) where the authority empowered to di.miss or remove a person or to reduce him in rank is satisfied that for aome reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry ; or (c) where the President or the Governor as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry."

A bare perusal of the situations and contingencies in which a <!isciplinary enquiry affording a reasonable opportunity of being heard before imposing the en um e1ated penalty can be dispensed with will clearly show that the power is not given to dismiss remove or reduce in rank the delinquent worker but the power conferred by the afore-mentioned provision is to dispense with an enquiry before imposing major penalty. Sub-art. (3) of Art. 311 provides that 'if, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2). the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.' Now the three situations contemplated bY the provision are such that holc)ing of an enquiry would be counter-productive.

Where the penalty of dismissal, removal or reduction in rank is to be imposed on'the ground of a conduct which has led to his conviction on a criminal charge, obviously, the enquiry will be superfluous or a repeat performance because a judicial tribunal has held the charges proved. But wbere the authority empowered to impose the penalty is satisfied for reasons to be recorded by it in writing to dispense with an enquiry, the reasons so recorded must ex-facie show that it was not reasonably practicable to hold a disciplinary enquiry. Similarly, where in the interest of the security of the State, the President or the Governor, as the case may be, is satisfied that it is not expedient to hold such enquiry, the same can be dispensed with.

In the last mentioned situation, the highest executive of the country, the President and the highest executive of State the Governor alone is entitled to dispense with the inquiry, if it is s11tisfled tfu\t in the interest of the security of the State, it is 11ot B ,, SVPlllllll! COUl.T REPORTS expedient to hold such ·enquiry. Dispensing with the enquiry in the lint. and third situation does not present a difficulty because in the first situation there is a conviction by.a criminal court and in the third situation, the highest executive in the Centre and the State is empower.ed to dispense with the enquiry. It is in the second fact situation ·that one mnst evaluate the width of discretionary power to .dispense witb enquiry. The appointing authority is invested with power to dispense with enquiry.

And in case of persons belonging to Class IV services, .the appointing authority may be some-one in the lowor administrative hierarchy and such an officer is.invested with such draconian powers. Where such a power is conferred, on an authority entitled to impose penalty of dismissal or removal or reduction in rank, before it can dispense with the inquiry, it must be satisfied' for. reasons to be 'recorded in writing· that it is not reasonably prncticable to hold such an enquiry. Power to dispense .. with enquiry is conferred for a purpose and to effectuate the purpose power can b<> exercised. But power is hedged in with a condition of setting down reasons in writing why power is exercised. Obviously therefore the reasons which would permit exercise of power must be such as would clearly spell out that the inquiry if held would be counter-productive.

The duty to specify by reasons the satisfaction for holding that the inquiry was not reasonably practicable cannot be dispensed with> The reasons must be germane to the issue and would be subject to a limited judicial review. Undoubtedly Sub-art; (3) of Art. 311 provides that the decision of the authority in this' behalf is fin•!l. This only mean tliat the Court cannot inquire into adequacy or sufficiency of reasons. But if the reasons ex-facie are' not germane to· the issue namely of dispensing with enquiry the Court in a petition for a writ of certiorari can always examine reasons ex·facieand if they are not germane to the issue rec:Ord a finding that the pre-requisite for exercise of power having not 'been satisfied, the <:xercis'e of power was bad or without jurisdiction.

If the court is satisfied that the reasons which prompted the concerned autnority to record a finding that it was not reasonably pracl!cable to hold 'the enquiry, obviously the satisfaction would be a veneer to dispense with the \inquiry and the .court may reject the same. What: is obligatory is to specify the reasons for the satisfaction of. the authority thatit was not reasonably practicable to hold such an inquiry. Once the' reasons are specified and are certainly s~bject to limited judicial review as in a writ for certiorari, 'the court would examine whether the reasons were germane to the issue or was merely a cloak, davice or a pretence to dispense with the inquiry WORKMEN v. HINDUSTAN STllBL LTD (Desai, J.) and to impose the penalty.

Let it not be forgotten what is laid down by a catena of decisions that where an order casts a stigma or affects livelihood before making the order, principles of natural justice namely a reasonable opportunity to present one's case and controvert the adverse evidence must have full play. Thus even where the Constitution permits dispensing with the inquiry, a safeguard is introduced that the concerned authority must 1pecify reasons for its decisi11n why it was not reasonably practicable to hold the inquiry. Turning to S.O. 32, it nowhere obligates the General Manager to record reasons for dispensing with the inquiry as prescribed by S.O. 31. On the contrary, the language of S.0. 32 enjoins a duty upon the General Manager to record reasons for his satisfaction why it was inexpedient or against the interest of the security of the State to continue to employ the workman.

Reasons for dispen•ing with the inquiry and reasons for not continuing to employ the workman stand wholly apart from each other. A Standing Order which confers such arbitrary, uncanalised and drastic power to dismiss an employee by merely 1tatin1 that it is inexpedient or aaainst the interest of the security to continue to employ the workman are violative of the basic requirement of natural justice inasmuch as that the General Manager can impose penalty of such a drastic nature as to affect the livelihood and put a stigma on the chai·acter of the workman without recording reasons why disciplinary inquiry is dispensed with and what was the misconduct alleged against the employee. It is time for such a public sector undertaking as Hindustan Steel Ltd. to recast S.O. 32 and to bring it in tune with the philosophy of the Constitution failing which it being other authority and therefore a State under Art. 12 in an appropriate proceeding, the vires of S.O. 32 will have to be examined.

It is not necessary to do so in the present case because even on the terms of S.O. 32, the order made by the General Manager is unsustainable. The view we are taking gets some support from a decision of this Court. In a slightly different situation, this Court in L. Michael & Anr. v. M/s Johnston Pumps India Ltd.(1) observed that discharge simplicitor on the ground of Joss of confidence when questioned before a court of law on the ground that it was a colourable exercise of power or it is a mala fide action, the employer must disclose that he has acted in good faith and for good and objective reasons. Mere ipse dixit of the employer in such a situation is of no signifi. cance. Where a disciplinary enquiry is dispensed with on the specious plea that it was not reasonable practicable to hold one and a penalty (I) [1975) 3 S.C.R.489. i t JI.' 8 stlfREME COUllT RilPOl\tS · il985)

2 S.C.R. of dismissal or removal from service is. imposed, if the sa:ine is 'challenged on the ground that. it was a colourable exercise of power or miila · fide action, the same situation would emerge and' the employer rnustsiiiisfy the Court the good and objective reasons showing' both proof of misconduct and valid and objective reasons for dispensing with the enquiry. IIi our opinion, when the decision of the employer to dispeiise'with enquiry is questioned, the employer must be in a positfon· to satfsfy the· Court that holding of the enquiry will be either couiiter··productive or may cause such ireparable and irreversible ·damage which·• in the facts and circumstances of the case need not be suffered..

This minimum requirement cannot and should not be dispensed with to control wide discretionary power and to guard against the drastic power to inflict such a heavy punishment as denial of livelihood and casting a stigma without giving the slightest opporturtity to the employee to controvert the allegation and even without letting him know what is his misconduct. Tuining to the' facts of the case, a bare perusal of the impug: ned order is botli'instructive and 'provides ample material for po'inting oiithow tlle dr~stic power can be ·arbitrarily exercise,d ~ithout keeping in' view the pre-requisite to be satisfied for exercise 'of tfi.e power". ' The order reads as uilder : _ HINDUSTAN STEEL LIMITED DlJRGAPUR STEEL PLANT Ref. No. Order/PF/MN 1215 24th August; 1970 ORDER Having considered the matter fully, I am satisfied tha't' it is no l~nger.expedient to employ Shri Manas Mukherjee; Assistant, Order Department, Durgapur Steel· Plant any rtltilier.

It is therefore ordered that Shri Manas Mukherjee be removed from the service of the Company with effect from 24; 8. 1970. . He' _is·. allo'.wed/three months' salary which he may c(lle~t' ftolli'' th'cf' cash section of the Finance Department by"21>:" 8.' 1970: Sd/- Maj. Gen. Director' 1riGlilir8e. WORKMEN v. ll!NDVSTAN STEllL LTD (Desai, J.) The expression 'no longer expedient' as used in the order clearly spells out the fact that some enquiry was·starled. What prompted the General Manager to close the enquiry, one cannot gather from the order. But our attention was invited 10 Ann. R-2 which according to the respondents specifies the reasons recorded in writing for dispensing with the enquiry. Briefly, in Ann. R-2, . it is stated that the authority concerned has looked into the secret report sent to him by Shri P S. Rao Naidu, Planning & Ptogress Officer, Order Dept!. and the comments of DGM thereon. He ·has also stated that he has looked into the report received from Sr.

AO (E) and the copy of the complaint lodged by Smt. Gita Majumdar, wife of an employee in the plant with the police. These recitals heve been considered sufficient to dispense with tho enquiry. If Smt. Gita Majumdar did file a report with the police making accusation against the appellant, she would have to be examined in the criminal case. She could have been more conveniently called before the enquiry officer, and the secret reports remain secret. The reasons for dispensing with the enquiry do not spell out what was the natur~ of the miscondllct alle,etl to llave been c01maitted by th.• appellant and what prompted the General Manager to dispense with the enquiry. It is difficult to hold that the recitals of the order spell out some objective reasons and the reasons were germane to the question of dispensing with the enquiry. Frankly speaking, we arc not satisfied in this case that for valid, objective and relevant reasons, the en<1uiry was dispensed with.

An attempt was made to urge that some annexures to the counter-affidavit would show certain comrlaints received against the appellant. Wo decline to look into them as they were not given to the appellant in the course of enquiry to meet or explain the same. We consider them irrelevant at this stage. Once we hold that there was no justification for dispensiug with the enquiry, imposition of penalty of dismissal without disciplinary enquiry as contemplated by S. 0. 31 would be illegal and invalid. Two options are thereupon open to us. One would be lo permit the General Manager, if he is so minded to hold the discipli- 8 nary enquiry and come to his own dec;sion and the second would 0 be to remit the matter to the Labour Court to permit the respondent-employer if it is entitled in law to substantiate the charges of misconduct before the Tribunal. The order removing the appellant from service was passed way back on August 24, 1970. More than 14 years have rolled by. r;

438 " 'i SUPIWD ·couRT REPORTS ' {19851 2 s.c.a. In such a situation, to startthe wh'?le thing de. nevo wouldmeither .be 1.of a.ny help, to the appellant nor would be conducive.to.the maintenance of .1discipline in the plant. Undoubtedly, once, a workman is removed from setrvice a stigma attaches to him, and. if • the order is held to be not, in consonance with the provisions of the relevant standing,orders at any rate, the stigma has to be removed. . . Haveing givSJ1. the Jll!lt!e~ our anxious consideration, we dispose of the appeal as und~r. , The respondent shall recall and cancel the order dated August 24, · 1970 reniovirig the appellant from service and reinstate him and «in .the same' day the appellant shall tender resignation of his post which shall be accepted by the responoent.

The respondent shall pay as and by way of back' wages and future \iiages, a sum of Rs 1,50,000 to ; the appellant w,ithin 2 months from today to be spread over from year to year commencing from the date of removal from service. 'We give '<ine more 'opportunity to the respondent to recast its'Stiinding Order32 within a period of two weeks'to be brought at best in conformitf'wlth tlie second proviso to sub'art. (2) of Art. 311 failing whicli'lts validity will be re-examined by this C:>urt. The allllount OfRs I, 50,000 directed to be paid to ·the appellant by the respondent comprises' backwages, and all other allowc ances admissible to him from year to year from 1970 upto the end of 1984. 111e amount shall be spread ove~ from year to year. If because of the lump .. sum payment as directed herein the respondent is required to deduct income-tax as enjoined by Sec. 192 of the Jllcollle-tax Act, i96 I, th~ appellant shall be entitled to reliefu'llder Sec: 89 of the lncoaie Tax Act, 1961.

For this purpose, the 'a'ppellant , shall make an•application as required by Sec. 89 read with Rule 21A to the appropriate authority, who would consider granting of relief to . the •appellant ·under Sec. 89. of the Income-tax Act. The proceeding. in this behalf shall be disposed of withi11 a period of six months. :fh11 appeal is disposed of in these terms with no.,ord~r.as to costs. N. v:K. Appeal allowed. \.-, .:r; 1'j ..1·'" .\ .i'·' ".:'