Madras High Court
G.Annie Christy vs Deputy Chief Mechanical Engineer on 26 November, 2010
Author: D.Hariparanthaman
Bench: Elipe Dharma Rao, D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26 / 11 / 2010 CORAM: THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.A.NO.311 OF 2009 G.Annie Christy ..Appellant VERSUS 1.Deputy Chief Mechanical Engineer Personnel Branch Golden Rock Workshop Southern Railway Ponmalai, Trichy 620 004. 2.The Presiding Officer Central Government Industrial Industrial Tribunal Cum Labour Court Chennai. ..Respondents PRAYER: Writ Appeal filed under Clause 15 of Letters Patent praying for the relief stated therein. For Appellant : Mr.M.Muthappan For Respondent-1 : Mrs.Lita Srinivasan Government Advocate J U D G M E N T
D.HARIPARANTHAMAN, J.
This writ appeal is directed against the order dated 06.11.2008 passed by a learned single Judge of this Court in W.P.No.19646 of 2003.
2.The facts leading to the filing of this appeal are as follows:
(a) The appellant was appointed as a Clerk in Southern Railway on 08.09.1980 at Trichy under the Physically Handicapped Quota. 29.09.1984 was the salary day for the month of September 1984. Being Saturday, the working hours were 10.00 a.m. to 01.30 p.m. The appellant, on reaching office, signed the muster roll. Since she was not well due to stomach pain that was due to menstrual problem, she thought of applying leave. Under such circumstances, she wanted to get the salary early. When the cashier called the name of one Ms.Arokia Mary Jacintha to pay salary, she was not there. Since Ms.Arokia Mary Jacintha was not present at that time, the appellant received the salary of Ms.Arokia Mary Jacintha, along with her salary. It was the practice in the office to receive the salary of co-employee on their behalf. The person receiving salary of a co-employee, would hand over the same to the concerned person. After receiving salary, her stomach pain became acute and she had to change her clothes due to menstrual problem. In those circumstances, the Head Clerk was not available to submit the leave letter. Hence, she placed the leave letter on the table of the Superintendent and told him that she was in need of leave. Thereafter, she left to her house, without handing over the salary amount that was payable to Ms.Arokia Mary Jacintha. Thereafter, at about 01.30 p.m., she came back to the office to hand over the salary of Ms.Arokia Mary Jacintha. But, Ms.Arokia Mary Jacintha had already left the office. Hence, she handed over the salary of Ms.Arokia Mary Jacintha to the Superintendent. According to the appellant, the non-handing over of salary to Ms.Arokia Mary Jacintha was only in the aforesaid circumstances.
(b) While so, a charge sheet dated 04.10.1984, under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 was issued to the appellant, making two allegations. Those allegations are:
(i) She was not available in the office on 29.09.1984 from 10.15 hours, after signing the muster roll, thereby left the office without any proper authority from her superiors.
(ii) She deliberately received the salary of Ms.Arokia Mary Jacintha, Clerk from the cashier and went away, without informing anybody which amounts to cheating of a co-employee. Thus, she violated the provisions contained in Rule 3(1) (iii) of Railway Services (Conduct) Rules, 1966.
(c) The appellant submitted her reply dated 17.10.1984 denying the charges. She requested the copies of documents, based on which, the aforesaid charges were framed, to submit her defence statement.
(d) Not satisfied with her reply, an enquiry was ordered. In the enquiry, 5 witnesses were examined on the side of the appellant. The appellant submitted her defence statement. The Enquiry Officer found the charges proved. Based on the findings of the Enquiry Officer, by an order dated 06.06.1985, the appellant was removed from service.
(e) Against the order of removal, the appellant preferred an appeal dated 19.07.1985 before the appellate authority and the appellate authority rejected the same by an order dated 21.04.1986.
(f) The appellant preferred a revision petition dated 03.08.1992 before the General Manager. The revisional authority rejected the revision petition, vide order dated 22.09.1992.
(g) The appellant preferred mercy petitions dated 08.04.1993 and 09.08.1993 before the General Manager and the same were also dismissed.
(h) Thereafter, the appellant made a representation dated 04.11.1999 to the Honourable Minister for Railways, seeking reinstatement. The appellant also made a representation dated 22.02.2000 to the Honourable Minister for Social Welfare. She was advised to approach the machinery under the Industrial Disputes Act.
(i) Accordingly, the appellant filed an application dated 12.01.2001 before the Labour Enforcement Officer. This resulted in the Central Government passing the order dated 11.01.2002, under Section 10 of the Industrial Disputes Act (in short "the Act") referring the following industrial dispute for adjudication by the second respondent - Industrial Tribunal.
"Whether the action of the Management of Southern Railway in dismissing the services of Mrs.G.Annie Christy on the basis of domestic enquiry is justified? If not, what relief the applicant is entitled?
(j) The second respondent Industrial Industrial Tribunal, took it on file in I.D.No.9/2002. The appellant filed claim statement before the second respondent Industrial Tribunal. The first respondent filed counter statement. Enquiry records were marked as documents Ex.M1 to Ex.M10 on the side of the first respondent herein. The second respondent Industrial Tribunal, exercised its jurisdiction under Section 11-A of the Act, by re-appreciating the evidence adduced in the domestic enquiry and came to a different conclusion from that of the Enquiry Officer and recorded a finding that the charges were not established in the enquiry. The second respondent - Industrial Tribunal passed an award dated 17.02.2003 in I.D.No.9/2002 holding that the action of the first respondent in dismissing the services of the appellant is not justified and directed the first respondent to reinstate the appellant with continuity of service and backwages and with all other attendant benefits with cost.
(k) Against the said order of the second respondent Industrial Industrial Tribunal, the first respondent Management filed a writ petition in W.P.No.19646 of 2003. The learned single Judge allowed the writ petition and set aside the award passed by the second respondent Industrial Tribunal, by an order dated 06.11.2008.
Hence the appellant has come up with the present appeal.
3.The learned counsel for the appellant submitted that the learned single Judge committed grave error in finding fault with the Industrial Tribunal for re-appreciating the evidence adduced in the domestic enquiry. The learned counsel further submitted that the learned single Judge mistook the Industrial Tribunal as the Administrative Tribunal established under the Administrative Tribunals Act.
4.The learned counsel for the appellant has taken us through the order of the learned single Judge and pointed out that the learned single Judge repeatedly stated at so many places that the Industrial Tribunal committed error by re-appreciating the evidence adduced in the domestic enquiry. The learned counsel submitted that had the learned single Judge taken into account the fact that the Industrial Tribunal has power to re-appreciate the evidence as an appellate Court, as held by the Honourable Apex Court in THE WORKMEN OF M/S.FIRESTONE TYRE AND RUBBER CO. OF INDIA (PVT.) LTD. VS. THE MANAGEMENT AND OTHERS reported in 1973 (1) SCC 813, the learned single Judge would not have committed this error. According to him, the learned single Judge proceeded as if the Industrial Tribunal has a limited power that was available prior to the introduction of Section 11-A to the Act.
5.The learned counsel for the appellant submitted that the judgments of the Honourable Apex Court in B.C.CHATURVEDI VS. UNION OF INDIA reported in 1995 (6) SCC 749 and GOVERNMENT OF TAMIL NADU VS. A.RAJAPANDIAN reported in 1995 (1) SCC 216 relied on by the learned single Judge pertain to the jurisdiction of High Courts and Administrative Tribunals in dealing with disciplinary matters. In the aforesaid judgments, the Honourable Apex Court held that normally, the High Courts / Administrative Tribunals cannot re-appreciate the evidence and interfere with the finding of fact rendered in the departmental enquiry. Thus, those judgments are not clearly applicable to this case. The second respondent Industrial Tribunal exercised its power under Section 11-A of the Act. The Labour Courts and Industrial Tribunals are vested with power under Section 11-A of the Act to re-appreciate the evidence and to differ with the findings of the Enquiry Officer, on such re-appreciation of evidence. Hence, the learned single Judge was not correct in setting aside the award of the second respondent - Industrial Tribunal.
6.The learned counsel for the appellant further submitted that the learned single Judge committed error in stating that the second respondent - Industrial Tribunal set aside the dismissal order mainly on the ground that the copy of the enquiry report was not furnished to the appellant. According to him, the dismissal order was set aside not on the ground of non-supply of enquiry report, but on the categorical findings by the Industrial Tribunal that the charges were not made out, on re-appreciation of evidence.
7.The learned counsel for the appellant also pointed out that the learned single Judge failed to take into account the fact that the appellant approached the appellate authority and revisional authority etc. If those facts were taken into account, the learned single Judge could not have come to the conclusion that there was a delay of 16 years. He further pointed out that the first respondent admitted in their counter statement about the appellant approaching the appellate authority, revisional authority and the General Manager. Hence, the learned single Judge committed error in recording that there was a delay of 16 years. On the other hand, the appellant approached the authority under the Act after 7 years.
8.Relying on the decision of the Honourable Apex Court in AJAIB SINGH VS. SIRHIND COOPERATIVE MARKETING CUM PROCESSING SERVICE SOCIETY LTD., reported in 1999 (6) SCC 82, the learned counsel for the appellant submitted that the Limitation Act is not applicable to the industrial disputes and the first respondent could mould the relief, even if there is some delay in approaching the Industrial Tribunal.
9.The learned counsel for the appellant also pointed out that the judgments of the Honourable Apex Court in U.B.GADHE AND OTHERS VS. G.M.GUJARAT AMBUJA CEMENT PVT. LTD., reported in 2007 AIR SCW 6157 and U.P.S.R.T.C. VS. RAM KISHAN ARORA reported in 2007 AIR SCW 7237 relied on by the learned single Judge do not apply to this case, since in those judgments, the question of punishment was considered on the basis of the proved charges, while in the present appeal, the second respondent Industrial Tribunal has categorically recorded that the charges were not established. Hence, those judgments are not applicable to the present appeal.
10.On the other hand, the learned Government Advocate for the first respondent submitted that there is no infirmity in the order of the learned single Judge. The learned Government Advocate further submitted that the second respondent Industrial Tribunal set aside the dismissal order on the ground that the findings of the Enquiry Officer was not furnished to the appellant and relied on the judgment of the Honourable Apex Court in MANAGING DIRECTOR, ECIL HYDERABAD VS, V.KARUNAKAR ETC., AND OTHERS reported in AIR 1994 SC 1074, in this regard, wherein the Honourable Apex Court held that the decision in UNION OF INDIA AND OTHERS VS. MOHD. RAMZAN KHAN reported in AIR 1991 SC 471 mandating the supply of report of the Enquiry Officer before passing the dismissal order and getting explanation thereon, was held to be prospective and that therefore, the first respondent could not be found fault for non-supply of the report of the Enquiry Officer. She further submitted that the learned single Judge has correctly held that the decision in MOHD. RAMZAN KHAN's case was decided on 20.11.1990 and the dismissal order was passed much prior to the said judgment and that therefore, non-supply of the findings of the Enquiry Officer, would not vitiate the dismissal order. Further, the learned Government Advocate submitted that though there was no 16 years delay, there was a delay of 7 years and that therefore, the appellant is not entitled to raise industrial dispute.
11.We have heard the submissions made on either side and perused the materials available on record.
12.The appellant was employed as a Clerk in Southern Railway. A charge sheet dated 04.10.1984 was issued to the appellant under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968, making two allegations and those allegations are:
(i) She was not available in the office on 29.09.1984 from 10.15 hours after signing the muster roll, thereby left the office without any proper authority from her superiors.
(ii) She deliberately received the salary of Ms.Arokia Mary Jacintha, Clerk from the cashier and went away, without informing anybody, which amounts to cheating of a co-employee. Thus, she violated the provisions contained in Rule 3(1) (iii) of Railway Services (Conduct) Rules, 1966.
Hence, she was dismissed from service, by an order dated 06.06.1985, after holding an enquiry. It is an admitted fact that the appellant preferred an appeal before the appellate authority and the same was rejected by an order dated 21.04.1986. The appellant preferred a revision petition before the revisional authority and the same was also rejected on 03.08.1992. Even according to the first respondent, after the dismissal of the revision petition, the appellant made representations dated 08.04.1993 and 09.08.1993 to the General Manager and the same were also dismissed, holding that no further revision of penalty is permissible, as per the Railway Servants (Discipline and Appeal) Rules, 1968, as contained in para 15 of the counter statement filed by the first respondent.
13.Thereafter, the Central Government referred the industrial disputes for adjudication, to the second respondent Industrial Tribunal. The second respondent Industrial Tribunal passed an award dated 17.02.2003 in I.D.No.9/2002 holding that the dismissal of the appellant is not justified. The second respondent Industrial Tribunal re-appreciated the evidence and came to the conclusion that the charges were not established. This was found fault by the learned single Judge. The learned single Judge has held in paras 12, 13, 14, 15 and 16 in the order under appeal that the second respondent ought not to have re-appreciated the evidence and interfered with the findings in the domestic enquiry. The learned single Judge held that the second respondent could not act as a Court of appeal and substitute its own judgment for that of the Management. Further, the learned single Judge held that the second respondent could not re-appreciate the evidence as an appellate Court and the re-appreciation of evidence is not within the domain of Tribunal. In para 12 of the order under appeal, the learned single Judge held as follows:
"12.While considering the Management decision to dismiss/discharge or terminate the services of workman, Tribunal does not act as a Court of appeal and substitute its own judgment for that of the Management."
Likewise, in para 15 of the order under appeal, the learned single Judge held as follows:
"15.High Court/Industrial Tribunal is not a Court of appeal to re-appreciate the evidence. Powers of the Industrial Tribunal to interfere with the cases of dismissal of workman is not unlimited. The Tribunal does not act as a Court of appeal and substitute its own judgment for that of the Management....."
In para 16 of the order under appeal, the learned single Judge held as follows:
"16.Re-appreciation of evidence is not within the domain of Tribunal. In the present case, the entire approach of Industrial Tribunal appears to be to re-appraise the entire evidence. Industrial Tribunal repeatedly observed that Enquiry Officer exhibited bias and partisan attitude in the enquiry. In my considered view, the Industrial Tribunal erred in re-appreciating the entire evidence and arriving its own conclusion. Industrial Tribunal grossly erred in saying that the findings of the Enquiry Officer are not based on legal and acceptable evidence."
14.In para 13 of the order under appeal, the learned single Judge relied on the following passage from the judgment of the Honourable Apex Court in B.C.CHATURVEDI VS. UNION OF INDIA reported in 1995 (6) SCC 749 in support of her conclusion that the second respondent, cannot go into adequacy or reliability of evidence and to come to a different conclusion from that of the Enquiry Officer.
"The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal...."
15.In para 14 of the order under appeal, the learned single Judge relied on the following passage from the decision of the Honourable Apex Court in GOVERNMENT OF TAMIL NADU VS. A.RAJAPANDIAN reported in 1995 (1) SCC 216.
"It has been authoritatively settled by string of authorities of this Court that the Administrative Tribunal cannot sit as a court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the inquiring authority. It has quashed the dismissal order by reappreciating the evidence and reaching a finding different than that of the inquiring authority."
16.In para 15 of the order under appeal, the learned single Judge held that the Industrial Tribunal would interfere in the punishment only:-
"(a) where there is want of good faith
(b) when there is victimisation of unfair labour / practice
(c) when there is Management has been guilty of the basic error or violation of the principles of natural justice
(d) when on the materials before the findings is completely baseless or perverse."
Thus, the learned single Judge, came to the conclusion that the second respondent Industrial Tribunal has no power to re-appreciate the evidence and to go into adequacy and sufficiency of evidence and to come to a different conclusion from that of the Enquiry Officer, by re-appreciating the evidence like an appellate Court.
17.On a thorough perusal of the order of the learned single Judge, we are above to see that the learned single Judge erroneously proceeded, as if the second respondent is an Administrative Tribunal, established under the Administrative Tribunals Act. The judgments of the Honourable Apex Court reported in 1995 (6) SCC 749 and 1995 (1) SCC 216 relied on by the learned single Judge relates to the jurisdiction of the Administrative Tribunal and the High Courts, in dealing with the disciplinary matters. Those judgments are not pursuant to industrial disputes, that come for adjudication by the Industrial Tribunals. The Industrial Tribunals are specially constituted Courts under the Act and they are clothed with powers under Section 11-A of the Act to re-appreciate the evidence.
18.Prior to introduction of Section 11-A, the power of the Industrial Tribunals to interfere with the dismissal imposed by the Management was limited, only when
(a) there is want of good faith, or
(b) if it is a case of victimisation or unfair labour practice or violation of the principles of natural justice, or
(c) there is basic error of facts, or
(d) there has been a perverse finding on the materials.
19.Thus prior to insertion of Section 11-A, the Industrial Tribunals did not have power to re-appreciate the evidence and to go into the adequacy or sufficiency of the evidence and to arrive at a different conclusion from that of the Enquiry Officer, based on the materials available in the domestic enquiry. Further, the Industrial Tribunals and the Labour Courts did not have powers to modify the punishment of dismissal or to impose lesser punishment. But, this position was altered by introducing Section 11-A of the Act. Section 11-A of the Industrial Disputes Act is extracted hereunder:
11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. The learned single Judge failed to take into account the legislative change by introduction of Section 11-A of the Act and the powers of the Industrial Tribunals to re-appreciate the evidence and to arrive at a different conclusion from that of a disciplinary authority.
20.The constitutional validity of Section 11-A of the Act was questioned by some employers, on its introduction in 1971. The Honourable Apex Court upheld Section 11-A of the Act in the judgment in THE WORKMEN OF M/S.FIRESTONE TYRE AND RUBBER CO. OF INDIA (PVT.) LTD. VS. THE MANAGEMENT AND OTHERS reported in 1973 (1) SCC 813. The statement of objects and reasons for introducing Section 11-A was stated by the Honourable Apex Court in para 3 of the said judgment. In this regard, para 3 of the judgment reported in 1973 (1) SCC 813 is extracted hereunder:
"3. Regarding Section 11-A, in the statement of objects and reasons it is stated as follows:
In Indian Iron and Steel Company Limited v. Workmen (AIR 1958 SC 130 at 138), the Supreme Court, while considering the Tribunals power to interfere with the managements decision to dismiss, discharge or terminate the services of a workman, has observed that in case of dismissal on misconduct, the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc., on the part of the management.
The International Labour Organisation, in its recommendation (No. 119) concerning termination of employment at the initiative to the employer, adopted in June 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination among others, to a neutral body such as an arbitrator, a court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and that other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organization has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief.
In accordance with these recommendations, it is considered that the Tribunals power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power in cases wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other reliefs to the workman including the award of any letter punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new Section 11-A is proposed to be inserted in the Industrial Disputes Act, 1947.
21.The Honourable Apex Court, in the judgment reported in 1973 (1) SCC 813, has categorically held that the Industrial Tribunal has power and jurisdiction to re-appreciate the evidence and to record a different findings. In this regard, para 13 of the said judgment is extracted hereunder:
"13.The above position has been completely changed by Section 11-A..........Even in cases where a domestic enquiry has been held and finding of misconduct recorded, the Labour Tribunals have now full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct....."
Paras 40 and 41 of the judgment reported in 1973 (1) SCC 813 are also relevant for the purpose of this case and the same are extracted hereunder:
"40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A."
22.In view of the judgment of the Honourable Apex Court reported in 1973 (1) SCC 813, we hold that the learned single Judge committed error in holding that the second respondent was not correct in re-appreciating the evidence and recorded a different finding.
23.Further, as rightly contended by the learned counsel for the appellant, the learned single Judge proceeded as if the Industrial Tribunal set aside the dismissal order mainly on the ground that the report of the Enquiry Officer was not furnished. In this regard, the relevant passage in para 17 of the order under appeal is extracted hereunder:
"17.The main ground on which the Tribunal has set aside the dismissal order was that copy of Enquiry Officer's report was not given to the delinquent and that there was violation of principles of natural justice. ......"
24.In our considered view, the dismissal order was not set aside on the main ground that the findings of the Enquiry Officer was not furnished to the appellant. On the other hand, the second respondent Industrial Tribunal re-appreciated the evidence and categorically arrived at the conclusion that the charges were not established. The second respondent, on re-appreciation of evidence, held that the appellant left the office urgently, due to severe stomach pain that was caused due to menstrual problem. The relevant passage from the award of the second respondent Industrial Tribunal, in this regard, is extracted hereunder:
"..... From the perusal of the Enquiry Officer's discussion on evidence of the witnesses in the enquiry, it is seen that no suggestion has been put to the petitioner, charge sheeted employee during cross examination that she had not submitted to OS Stores any leave form as per her evidence, that she has deposed falsely for the purpose of this case and the reason she has given for leaving the office urgently due to severe stomach pain and menses is false....... On the other hand, she has given acceptable reason about her physical inability to remain further in the office on that day, which has not been challenged or stated as false reason given by her for the purpose of this case."
In view of such a finding, the second respondent Industrial Tribunal held that the first charge was not established.
25.The second charge was that the appellant deliberately received the salary of one Ms.Arokia Mary Jacintha, Clerk from the cashier and went away, without informing anybody, in order to cheat her co-employee. The second respondent Industrial Tribunal recorded a finding that the appellant came back to the office on the same day itself and handed over the salary due to Ms.Arokia Mary Jacintha and thus it was not a deliberate action to cheat her co-employee. The second respondent Industrial Tribunal also held that it was the regular practice in the office to receive the salary of a co-employee, on their behalf and to hand over the same, to the concerned employee. In this regard, the relevant passage, from para 6 of the award of the second respondent - Industrial Tribunal is extracted hereunder:
"G.Annie Christy came back to the office on the same day and handed over the amount due to Ms.Arokia Mary Jacintha and it was not a deliberate action of the petitioner to cheat the co-railway servant. From the evidence it is seen that it is a practice in the office staff to receive the salary of co-employee on their behalf and to hand over the same to the concerned employee. The reason given by the petitioner for her leaving the office after getting her pay as well as Ms.Arokia Mary Jacintha's pay as that of her physical inability to continue in the office on that day further cannot be said to be an afterthought invented by the petitioner for the purpose of this case and to defend the charge levelled against her......."
The second respondent Industrial Tribunal also held as follows:
"...... On the other hand, there are sufficient and acceptable evidence available as materials as both oral and documentary before the Enquiry Officer to come to the conclusion that the guilt of the accused as spoken to in the charge memo has not been proved before the Enquiry Officer...."
26.In fact, the Enquiry Officer also held that three witnesses viz., Ms.Arokia Mary Jacintha, Mr.Joseph Sekar and Miss.T.Subbulakshmi have accepted that it was the practice in the office to receive the salary of a co-employee, if the concerned employee was not present at the time of calling by the cashier and to hand over the same to the concerned employee later. In fact, the Enquiry Officer also noted that when the appellant received the salary of Ms.Arokia Mary Jacintha from the cashier, Miss.T.Subbulakshmi, who also received her salary at that time, asked the appellant to hand over the amount to her and she could hand over the same to Ms.Arokia Mary Jacintha. Further, Mr.Joseph Sekar himself deposed that he offered to receive the salary of Ms.Arokia Mary Jacintha, when her name was called by the cashier and at that time, the appellant who was also at the cash counter, received the salary. That is, Mr.Joseph Sekar, one of the witnesses, admitted that he also offered to receive the salary of Ms.Arokia Mary Jacintha. But the Enquiry Officer held that the practice cannot attain the status of rules and regulations and hence that the appellant cannot claim a defensive cover quoting the "practice is in vogue". In this regard, the relevant passage from the findings of the Enquiry Officer is extracted hereunder:
"Even Miss.Jacintha, Mr.Joseph Sekar and Miss.T.Subbulakshmi have accepted that the practice is in vogue.
But practices conventions customs even they are age old and even if followed by lots of people cannot at any time on any account attain the status of rules and regulations.
As such any-body receiving the payment of another staff without property official authority is at fault and such person exposes himself/herself for punishment under the rules and regulations. Hence in this case Miss.Annie Christy cannot claim a defensive cover quoting the "practice in vogue"."
But, this view of the Enquiry Officer was not acceptable to the second respondent.
27.It is also an admitted fact that the appellant came back on the same day and returned the salary payable to Ms.Arokia Mary Jacintha to the Superintendent. Hence, we do not find any error in the findings of the second respondent - Industrial Tribunal that the act of the appellant could not be characterised as a "deliberate act" in receiving the salary of Ms.Arokia Mary Jacintha with an intention to cheat her.
28.In paras 24 and 25 of the order under appeal, the learned single Judge relied on the judgments of the Honourable Apex Court in U.B.GADHE & OTHERS VS. G.M. GUJARAT AMBUJA CEMENT PVT. LTD., reported in 2007 AIR SCW 6157 and U.P.S.R.T.C. VS. RAM KISHAN ARORA reported in 2007 AIR SCW 7237 with respect to quantum of punishment. In those cases, the Tribunal came to the conclusion that the charges were proved and interfered with the punishment of dismissal by exercising its power under Section 11-A of the Act. The Honourable Apex Court held that the charges that were held to be proved by the Tribunal were grave in nature and therefore, the Tribunal ought not to have modified the punishment of dismissal by exercising its power under Section 11-A of the Act. It was held that the Tribunal should exercise the power under Section 11-A judiciously, while interfering with the punishment. Those judgments do not apply to this case, as the Tribunal herein came to the conclusion that the charges were not established on re-appreciation of evidence. The question of punishment would arise only if the Tribunal came to the conclusion that the charges were proved.
29.For all the aforesaid reasons, we are inclined to set aside the order of the learned single Judge. Accordingly, the order dated 06.11.2008 passed by the learned single Judge in W.P.No.19646 of 2003 is set aside. However, we are not inclined to confirm the award dated 17.02.2003 passed in I.D.No.9/2002 by the second respondent Industrial Tribunal, as such. As stated above, the appellant was dismissed by an order dated 06.06.1985. Her appeal was dismissed by an order dated 21.04.1986. Her revision was also rejected vide order dated 22.09.1992. According to the appellant, she made mercy petitions dated 08.04.1993 and 09.08.1993 to the General Manager. In para 15 of the counter statement filed on behalf of the Management before the second respondent - Industrial Tribunal, it is stated as follows:
"Again on 9.8.1993 the petitioner made another representation to the General Manager, Southern Railway which was dismissed by the General Manager holding that no further revision of penalty is permissible as per the Railway Servants (D&A) Rules, 1968."
Thereafter, the appellant approached the authority under the Act on 12.01.2001. Hence, there was about 7 years delay in approaching the authority. Thus, the learned single Judge is not correct in stating that the appellant approached the authority after 16 years. Even the counter statement filed by the Management admits about the order of the appellate authority, the order of the revisional authority as well as the mercy petitions preferred by the appellant. Even the learned Government Advocate for the first respondent admitted that there was a delay of seven years in approaching the authority.
30.As rightly contended by the learned counsel for the appellant, the Honourable Apex Court in AJAIB SINGH VS. SIRHIND COOPERATIVE MARKETING CUM PROCESSING SERVICE SOCIETY LTD., reported in 1999 (6) SCC 82 has categorically held that the Limitation Act, as such, is not applicable to the Industrial Disputes Act and it is for the Industrial Tribunal to mould the relief, taking into account the facts and circumstances of the case, even if there is a delay. In the said judgment, the Honourable Apex Court declared that the judgment of the Full Bench of the Punjab and Haryana High Court, prescribing 5 years period of limitation, is not a good law. In this regard, para 10 of the judgment of the Honourable Apex Court reported in 1999 (6) SCC 82 is extracted hereunder:
"10. It follows, therefore, that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. Reliance of the learned counsel for the respondent management on the Full Bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held neither any limitation has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases. However, it went on further to say that reasonable time in the cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after which the Government can refuse to make a reference on the ground of delay and laches if there is no explanation to the delay.
We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 33-C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act.
31.Now, 25 years have lapsed. Hence, applying the aforesaid judgment, we are of the view that the second respondent - Industrial Tribunal was not justified in granting full backwages to the appellant. Therefore, we are inclined to deprive the backwages awarded by the second respondent Industrial Tribunal and the award is confirmed in all other respect.
32.In fine, while setting aside the order dated 06.11.2008 of the learned single Judge in W.P.No.19646 of 2003, we modify the award dated 17.02.2003 passed in I.D.No.9/2002 by the second respondent Industrial Tribunal into reinstatement, without backwages, but with continuity of service and with attendant benefits. The first respondent is directed to reinstate the appellant in service and to pay wages from the date of the award passed by the second respondent - Industrial Tribunal till her reinstatement, within a period of eight weeks from the date of receipt of a copy of this order.
33.This writ appeal is ordered accordingly. No costs.
TK To
1.Deputy Chief Mechanical Engineer Personnel Branch Golden Rock Workshop Southern Railway Ponmalai, Trichy 620 004.
2.The Presiding Officer Central Government Industrial Industrial Tribunal Cum Labour Court Chennai