AN ARTICLE ON NATURAL JUSTICE, PART IV

SOME REFLECTIONS IN INDUSTRIAL AND SERVICE JURISPRUDENCE : THE SCOPE AND EXTENT OF THE PRINCIPLES NATURAL JUSTICE : PROVIDING COPY OF THE FINDINGS OF THE ENQUIRY OFFICER TO THE DELINQUENT EMPLOYEE BEFORE IMPOSITION OF PUNISHMENT : HOW HAS THE LAW? EVOLVED SINCE LAST 30 YEARS? ? : PART-IV

AJAYA KUMAR SAMANTARAY,EX-CHIEF LABOUR COMMISSIONER (CENTRAL), e-mail : [email protected]?

PRELUDE :? While working in attached offices of Ministry of Labour and Employment, as Conciliation Officers under Industrial Disputes Act,1947; I and my colleagues used to receive industrial disputes under Section 2-A of the Industrial Disputes wherein workmen get the extreme punishment of dismissal, removal from service and struck off strength of the organisations. The esteemed readers would be surprised to learn that? some premier public sector organisations, who call themselves as Mini Ratna Companies, dismiss the workmen without conducting disciplinary enquiry and in some cases they terminate the services of the workmen though they have been acquitted by the courts from criminal charges. This is a blatant violation of the principles of natural justice. You may be aware of the concept of natural justice but still I think, it is quite apposite to give a glimpse of the term for a clear understanding. In this context I would take the help of Wikipedia wherein the concept has been explained as follows:

Natural justice is a?term of art?that denotes specific procedural rights in the?English legal system?and the systems of other nations based on it. It is similar to the American concepts of?fair procedure?and procedural?due process, the latter having roots that to some degree parallel the origins of natural justice.

Although natural justice has an impressive ancestryand is said to express the close relationship between the?common law?and moral principles,?the use of the term today is not to be confused with the "natural law" of the?Canonists, the mediaeval philosophers' visions of an "ideal pattern of society" or the "natural rights" philosophy of the 18th century. Whilst the term?natural justice?is often retained as a general concept, in jurisdictions such as Australia[6]?and the United Kingdom?it has largely been replaced and extended by the more general "duty to act fairly". Natural justice is identified with the two constituents of a fair hearing,?which are the rule against bias (nemo iudex in causa sua, or "no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem, or "hear the other side").

The requirements of natural justice or a duty to act fairly depend on the context. In?Baker v. Canada (Minister of Citizenship and immigration)?[ 1999 CANL II 699 = [1999] 2 SCR 817] the?Supreme Court of Canada?set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person's?legitimate expectations, and the choice of procedure made by the decision-maker.?Earlier, in?Knight v. Indian Head School Division No. 19??[ 1990 CANL II 138 = [1990] 2 SCR 653]?? the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. Furthermore, preliminary decisions will generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect.?In addition, whether a duty to act fairly applies depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of master and servant, or where the individual holds office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause.?Finally, a right to procedural fairness only exists when an authority's decision is significant and has an important impact on the individual.

?????? Now coming back to the discussion, when the industrial disputes are raised under Section 2A of the Industrial Disputes Act,1947; in almost all the cases the managements do not agree to settle the dispute though they commit patent illegality while punishing the workmen. They even do not give a satisfactory reply due to abject knowledge poverty and professional illiteracy. A debate was going on till 1988 as to whether a delinquent should be provided with the findings of the enquiry officer before imposition of punishment. In the year 1988 a learned Full Bench of the Hon'ble Supreme Court ruled that "there is no need to provide a copy of the findings of the Enquiry Officer to the delinquent" but in 1991 another learned Full Bench ruled to the contrary.

?????? I think, it has now become very much imperative to discuss the proposition as quite a good number of executives of industrial organisations and government officers do not read the case-laws due to which they remain ignorant. The rulings of the Hon'ble Supreme Court of the year 1988 and 1991 came in conflict with each other which culminated in reference of the matter to a Constitution Bench. I intend to discuss all the three case-laws in this sequel article. In the following case, the Hon’ble Apex Court ruled as follows :

THE DELINQUENT NEED NOT BE PROVIDED WITH THE FINDINGS OF THE ENQUIRY OFFICER BEFORE IMPOSITION OF PUNISHMENT.

THE CASE-LAW:

KAILASH CHANDER ASTHANA vrs STATE OF U.P. AND OTHERS [AIR 1988 SC 1338 = 1988 (36) BLJR 574 = JT 1988 (2) SC 291= 1988 - II-LLJ - 219 = 1988 (1) SCALE 884 = (1988) 3 SCC 600 = 1988 (2) UJ 260 SC] DoJ : 5? May, 1988

FACTS OF THE CASE :

??????? One, Shri KailashChanderAsthana [petitioner in Writ Petition No. 817 of 1980] was initially appointed as a Munsif? Magistrate in Uttar Pradesh in 1969 and was promoted in 1974 as a Civil Judge. In 1975 an application for transfer of a case pending before him was made by the plaintiffs in the case inter alia on the ground that the writ petitioner had demanded bribe from plaintiff No. 2 Krishna Murari who had refused to oblige. The Allahabad High Court directed the Vigilance Bureau, which is under its control, to make a preliminary inquiry. After receipt of a report by the Bureau, the Administrative Committee of the High Court considered the matter and decided to get a full-fledged disciplinary inquiry to be made, on three charges, the Charge No. 3 being the demand of illegal gratification from Krishna Murari. The High Court also decided that the petitioner should be placed under suspension, and on receipt of a recommendation to that effect an order dated 23rd March 1978 by the Governor was placed. In accordance with the direction of the High Court the inquiry was conducted by an Administrative Tribunal framed under the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 (hereinafter referred to as the Rules) and the evidence of the witnesses examined was recorded. After completion of the inquiry the entire matter was placed before the High Court and it was considered by the Full Court of the High Court, which approved the findings of the Administrative Tribunal, holding the writ petitioner to be guilty of the third charge. The High Court, thereafter vide its letter dated 18th December 1979 requested the Governor to remove the petitioner from service and the impugned order terminating the services of the writ petitioner was accordingly passed. The petitioner challenged the order under?Article 32?of the Constitution by Writ Petition No. 817 of 1980. Mr. R.K. Garg, learned Counsel for the petitioner stated that in view of certain observations of the Hon'ble Supreme? Court the writ petitioner also filed an application under?Article 226?of the Constitution before the Allahabad High Court, which was dismissed in limine on 14th August 1981. The order was challenged by Shri Asthana in Civil Appeal No. 2523 of 1981.

?????? One, Shri? Ami Chand, petitioner in Writ Petition No. 3782 of 1981, was also a Judicial Officer in Uttar Pradesh and had directly challenged the order dated 5th November 1980 reducing him in rank. A disciplinary proceeding was started against the petitioner.

??????? In Writ Petition No. 8253 of 1981 one, Shri Ram Kumar Prajapati, Munsif Magistrate in Uttar Pradesh, was proceeded against departmentally on two charges, namely, those of bigamy and of forging and making use of a document with a view to support his false defence of separation from his first wife. The charges were found to be correct. On the first charge the petitioner was punished with stoppage of three increments for five years and on the second charge his services were? terminated, vide order dated 13th October 1981.

SUBMISSION ON BEHALF OF SHRI KAILASH CHANDRA ASTHANA:

??????? Mr. Garg, learned Counsel for petitioner KailashChanderAsthana, contended as follows:

(i)? that the finding recorded on the third charge is erroneous and should, therefore, be set aside.

(ii) that the finding is based on the evidence of three witnesses, namely, Krishna MurariPlantiff No. 2, Prakash Chandra Pandey, who is running a cloth shop by the side of the electric shop of Krishna Murari, and Vishwanath Prasad, Krishna Murari's uncle. Krishna Murari has in his evidence supported the allegations and has given the details with regard to the illegal demand. Prakash Chandra Pandey stated that the officer, Sri KailashChanderAsthana went to the shop when he (the witness) was talking to Krishna Murari and the two went inside the shop. Later, on inquiry the witness was informed about the incident. Vishwanath Prasad claimed that Krishna Murari had mentioned about the demand of bribery to him.

(iii) that all the three witnesses were cross-examined by the petitioner and the counter affidavit indicates that the matter was considered thoroughly on merits by the High Court before the impugned order was passed.

On the above submissions, the Hon'ble Supreme Court stated that the scope of writ petitions here as well as before the High Court is limited and therefore, it did not agree with the request of Mr. Garg to re-assess the evidence.

(iv)?? that a copy of the report of the Administrative Tribunal was not made available to the petitioner and this must be held to have vitiated the subsequent proceeding including the impugned order of punishment. A reference was made to the Explanation to Sub-rule (3) of Rule 9 of the Rules, stating that a copy of the recommendation of the Tribunal as to the penalty should be furnished to the charged Government servant.

THE SUBMISSIONS OF THE RESPONDENT (STATE OF U P) :

??????? It was been pointed out by the learned Counsel for the respondents that after the amendment of?Article 311?of the Constitution by the 42nd Amendment, the Explanation was dropped. The question of service of copy of the report arose on account of a right of a second show cause notice to the Government servant before the 42nd Amendment, and since present disciplinary proceeding was held later, the petitioner can not legitimately demand a second opportunity. That being the position, non-service of a copy of the report is immaterial.

APPRECIATION OF THE CONTENTIONS OF THE PARTIES:

??????? Although many questions were? raised in the writ application in W.P. No. 817 of 1981, they were not pressed before the Hon'ble Supreme Court during the hearing of the case, and it was not necessary, therefore, to examine the same. It was however, faintly suggested by Mr. Garg at one stage that in view of?Article 235?of the Constitution the inquiry by the Administrative Tribunal is vitiated in law and has to be annulled. The point was been discussed in great detail in the counter affidavit indicating that the relevant provisions of the Rules do not in any way militate against the control of the High Court over the subordinate courts and all the steps against the petitioner were taken at the instance of the High Court. The Hon'ble Supreme Court said that it does not, in the circumstances, consider it necessary to discuss this aspect in any detail.

??????? In the other two cases, namely, Writ Petition No. 3782 of 1981 Writ Petition No. 8253 of 1981, also the High Court was satisfied that on the evidence led in the proceedings the charges mentioned earlier were fully established.

??????? In the result, the Hon'ble Apex Court did not find any merit in these cases which were dismissed but without costs.

AN