Div. Mangr. Plantn. Div.
Andaman & Nicobar Is. Vs. Munnu Barrick & Ors  Insc 772 (17 December 2004)
N. Santosh Hegde & S.B.
Sinha Judgments.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
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
The learned Presiding Officer in his award dated 10.11.1998 held:
"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 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
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.
Mr. Gupta would submit that even in Managing Director, ECIL, 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 Others [(2003) 4
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
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 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
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 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
"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
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 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.