2005 Supreme(SC) 1287

2005(6) Supreme 612
Supreme Court of India
(From Allahabad High Court)
Arijit Pasayat & H.K. Sema, JJ.
U.P. State Textile Corporation Ltd. —Appellant
versus
P.C. Chaturvedi and Ors. —Respondents
Civil Appeal Nos. 7240-7241 of 2003
Decided on 3-10-2005
Counsel for the Parties :
For the Appellant : M.N. Rao, Sr. Advocate, Chandrakant Nayak, Santosh Kumar and Rakesh K. Sharma, Advocates.
For the Respondents : Jagat Arora and Rajiv Nanda, Advocates.Important point
Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate proceedings in every case.

Headnote:Labour Law—Order of dismissal of respondent from service pursuant to disciplinary proceedings—Six charges all of which related to alleged misconduct and financial irregularities involving several crores of rupees were framed—Enquiry Officer held that all six charges except No.5 were proved—High Court in writ jurisdiction held that departmental proceedings were non-est on two grounds i.e. in gross violation of principles of natural justice as request of respondent for copies of documents was not heeded to and non-payment of subsistence allowance also vitiated departmental proceedings—Appeal—Record revealed that copies of large number of documents were supplied—Stand of respondent that additional documents had been entertained was wrongly accepted by High Court as no additional, document was brought on record—High Courts view on question of violation of principle of natural justice was untenable—As regards non-payment of subsistence allowance it would be ultimately a question of prejudice—No grievance of non-payment of subsistence allowance was made at any time during pendency of proceedings that employee was being prejudiced on that account—Request for payment of allowance was made only after completion of enquiry—Under Disciplinary Rules, employee was to record his attendance in register during suspension period and respondent failed mark his attendance—High Court was not justified in its conclusion that non-signing was not consequential or bona fide lapse—Impugned order could not be sustained—High Court since did not take up other grounds of challenge, matter needed to be remanded.

       Held : Records reveal that copies of large number of documents were supplied to the respondent No.1. Whether they were adequate for the purpose of taking a view in the disciplinary proceedings is another matter, but to say the relevant documents were not supplied is not correct. The High Court had attached great importance to the alleged admission of documents for the purpose of adjudication on 8.10.1992. Though this ground was urged with great vehemence before the High Court, it is not disputed that what was accepted by the Enquiry Officer on 8.10.1992 was not any document but list of documents/books of accounts in the possession of respondent No.1-employee. It has not been shown as to how the non-supply of this list caused any prejudice. The stand of the respondent was that additional documents had been entertained which plea the High Court had wrongly accepted. As noted above no additional document was brought on record, and it was the list. On that score, the High Court’s view is clearly untenable. (Para 10)

       So far as the effect of not paying the subsistence allowance is concerned, before the authorities no stand was taken by the respondent No.1-employee that because of non-payment of subsistence allowance, he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceedings was caused to him. He did not plead or substantiate also that the non-payment was either deliberate or to spite him. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as an absolute position in law that non-payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings. The above position was highlighted in Indra Bhanu Gaur v. Committee, Management of M.M. Degree College and Others, (2004 (1) SCC 281). It is to be noted that no grievance was made at any time during the pendency of the proceedings that the respondent No.1-employee was being prejudiced on account of non-payment of subsistence allowance. In fact, for the first time the request was made for payment of subsistence allowance on 5.1.1993 i.e. after completion of the enquiry. The ratio in Indrabhanu’s case (supra) is clearly applicable to the facts of the present case. (Paras 12 to 14)

       Rule 41 provides that the subsistence allowance is payable only when the employee, if required, presents himself every day at the place of work. Obviously, for establishing that the employee had presented himself at the place of work, the authorities had clearly stipulated a condition that the attendance register was to be signed. No explanation was offered by the respondent No.1-employee as to why he did not sign the register. It cannot be lightly brushed aside as technical and/or inconsequential. As admittedly, the respondent No.1-employee had not signed the attendance register even though specifically required in the order of suspension the High Court was not justified in coming to a conclusion that the non signing was not consequential or a bona fide lapse. It is also to be noted that at various point of time the employer informed the respondent No.1-employee about the consequences of his not signing the attendance register as stipulated in the order of suspension. (Para 16)