Madras High Court
The Deputy General Manager (Sme) vs The Presiding Officer on 17 October, 2014
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 17.10.2014 Coram The Honourable Mr.Justice R.SUBBIAH W.P.No.24952 of 2012 & M.P.Nos.1 to 3 of 2012 and W.P.No.2529 of 2013 W.P.No.24952 of 2012 1.The Deputy General Manager (SME), State Bank of India, Local Head Office, Circle Top House, No.16, College Lane, Chennai-600 006. 2.The Assistant General Manager, State Bank of India, Mylapore Branch, Chennai-600 004. .... Petitioners ..vs.. 1.The Presiding Officer, Central Government Industrial Tribunal- cum-Labour Court, Chennai. 2.M.Gowrishankar .... Respondents Prayer:- Writ petition filed under Article 226 of Constitution of India praying for issuance of a writ of Certiorari to call for the records of the 1st respondent in I.D.No.90 of 2006 and to quash the award dated 30.04.2012. For Petitioners : Mr.G.Masilamani, Senior Counsel for M/s.T.S.Gopalan and Co. For Respondents : Mr.R.Suresh Kumar for M/s.K.M.Vijayan associates (For 2nd respondent) W.P.No.2529 of 2013 M.Gowrishankar .... Petitioners Vs. 1.The Presiding Officer, Central Government Industrial Tribunal- cum-Labour Court, Chennai. 2.The Deputy General Manager (SME), State Bank of India, Local Head Office, Circle Top House, No.16, College Lane, Chennai-600 006. 2.The Assistant General Manager, State Bank of India, Mylapore Branch, Chennai-600 004. .... Respondents Prayer:- Writ petition filed under Article 226 of Constitution of India praying for issuance of a writ of Certiorari to call for the records of the 1st respondent in I.D.No.90 of 2006 and to quash the award dated 30.04.2012 in so far as withholding of back wages as punishment to the petitioner. For Petitioner : Mr.R.Suresh Kumar for M/s.K.M.Vijayan associates For Respondents : Mr.G.Masilamani, Senior Counsel for M/s.T.S.Gopalan and Co. (For R2 & R3) COMMON ORDER
Both these writ petitions have been filed questioning the award dated 30.04.2012 in I.D.No.90 of 2006 passed by the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai. W.P.No.24952 of 2012 has been filed by the Management of State Bank of India, questioning the direction given by the Tribunal to reinstate the 2nd respondent/employee, without backwages, but with continuity of service and all other attendant benefits. W.P.No.2529 of 2012 has been filed by the Workman questioning the same award with regard to withholding of backwages as punishment to him.
2.Since the issues involved in both the above writ petitions are interconnected to each other, they are disposed of by way of this common order. For the sake of convenience, the parties are referred to as Management and Workman.
3.The brief facts, in nutshell, are as follows_ 3(a)It is the case of the Management that the Workman Gowrishankar joined the service of the State Bank of India as Daftry on 09.06.1986. While he was working as sub-staff in the Adyar Branch, on 15.07.2004 during office hours at 02.00 pm, the Employee left the Bank premises without prior permission from his Superior Officer and returned to the Bank along with the outsiders. When he returned to the Bank along with the outsider, the armed guards at the entrance of the Bank Premises viz., one Maheswaran and one Chandran resisted them; but, the Workman shouted at them by saying I have taken permission from Assistant General Manager two days' earlier; who are you to question me? If you want, you go and report to Assistant General Manager. Thereafter, with the help of the outsider, the Employee hit the nails on the wall panel at the entrance hall of the Bank in the ground floor and hung a portrait of Dr.Ambedkar, without prior permission from the Management. Hence, on 16.07.2004 a memo was issued to the Employee by the Management referring to the above said incident and calling upon him to explain as to why action should not be taken against him.
3(b)On 19.07.2004 at about 3.00 pm, he had brought about 25 persons to the Bank premises to show his protest against the issuance of said memo to him. When all of them wanted to enter the bank premises, to avoid any confrontation, two persons of the group viz., one Kumari Arun and another person were permitted to enter into Bank and allowed to meet Assistant General Manager. When they met the Assistant General Manager, they threatened him by saying that 'if you are acting at the behest of the higher officials, name them, whether in Mumbai, Delhi, Calcutta, Bangalore or Chennai, we will ensure that they do not go back home'. The Workman has also instigated SC/ST Employees' Welfare Association and arranged for pasting (Tamil) posters, placing Tamil placards at Adyar Branch as well as many other branches in Chennai, demanding Government of Tamil Nadu to arrest Deputy General Manager of SBI and Assistant General Manager of Adyar Branch, SBI.
3(c)On 02.08.2004 during office hours, the Workman had in his possession a bunch of pamphlets in Tamil, demanding the arrest of Deputy General Manager of Zonal Office, Chennai and Assistant General Manager of the Branch office, and shown the same to the employees of the Bank.
3(d)A separate register was maintained for recording the timing, when the employees enter and leave the office. From the entries made in the said register, it was noticed that on very many occasions, the Workman left the Office during working hours without the permission of the superiors.
3(e)On 21.09.2004, a show cause notice with 11 charges was issued to the Workman, calling upon him to show cause as to why disciplinary action should not be taken against him. On 04.10.2004, the Workman gave a reply to the said show cause notice. Since it was not satisfactory, an Enquiry Officer was appointed and the Workman was asked to appear for the enquiry. In the enquiry, eight witnesses were examined and 32 documents were produced on the side of the Management and five witnesses were examined and five documents were produced on the side of the Workman. After conducting the enquiry, by his order dated 24.08.2005, the Enquiry Officer held that out of 11 charges, the charge Nos.1 to 6, 8 & 9 were proved and charge No.7 was partly proved and charge Nos.10 & 11 were not proved. An opportunity was given to the Workman to show cause against the findings of the proposed punishment of dismissal. Thereafter, on 02.12.2005, the Disciplinary Authority (Assistant General Manager, Mylapore Branch), passed an order dismissing the Workman from service.
3(f)Against the punishment of dismissal, the Workman filed an appeal before the Appellate Authority viz., Deputy General Manager (SME), Local Head Office, Chennai. In the appeal, the punishment of dismissal was modified into one of removal from service with superannuation benefits by showing leniency.
3(g)But, the Workman raised an Industrial Dispute challenging the punishment of removal from service. By order dated 04.12.2006, the Government of India referred the matter to the Central Government Industrial Tribunal-cum-Labour Court, Chennai (1st respondent herein) and the same was numbered as I.D.No.90 of 2006 on the file of the said Tribunal. Before the Tribunal, the Workman examined himself as W.W.1 and marked 60 documents as Ex.W.1 to 60. On the side of the Management, no evidence was adduced.
3(h)After hearing both sides, on 15.05.2009 the Tribunal passed an award holding that the punishment of removal from service awarded to the Workman is just and proper and the Workman was not entitled to any relief.
3(i)Aggrieved over the same, earlier the Workman had filed a writ petition in W.P.No.21623 of 2009 before this Court. In the said writ petition, the Workman had contended that the Presiding Officer of the Tribunal is not familiar with Tamil and his mother tongue is Malayalam and during the proceedings, the translated copies of the enquiry proceedings were not available before him. Hence, by taking note of this fact, in the said writ petition, the learned Single Judge of this Court had come to the conclusion that the Presiding Officer of the Tribunal could not have applied his mind in the proceedings, which was conducted in Tamil. Thus, the learned Single Judge, by setting aside the award dated 15.05.2009, remanded the matter to the Tribunal with a direction to dispose of the case within a time frame. The learned Single Judge had also directed the Workman to make English translation of the enquiry proceedings, which were in Tamil.
3(j)After remand, the English translation copies of the enquiry proceedings were furnished to the Presiding Officer of the Tribunal. On consideration of all the materials placed before the Tribunal, after having come to the conclusion that the enquiry was conducted in a fair and proper manner and the finding that the Workman is guilty of charge Nos.1 to 6, 8 & 9 is just and proper, the Tribunal has passed an award on 30.04.2012 to reinstate the Workman into service without backwages, but with continuity of service and all other attended benefits, by invoking the powers under Section 11A of the Industrial Disputes Act, observing that the Employee should be given some chance to correct himself and repent his past thereby enabling him to be a righteous person.
3(k)Now, aggrieved over the award passed by the Tribunal, the Management has filed the writ petition in W.P.No.24952 of 2012. Aggrieved over the withholding of backwages, the Workman has also filed the writ petition in W.P.No.2529 of 2013.
4.It is the submission of the learned Senior Counsel appearing for the Management that the Tribunal, by wrongly exercising its power under Section 11A of the Industrial Disputes Act, interfered with the punishment imposed on the Workman by the appellate authority. In fact, the Disciplinary Authority had awarded the punishment of dismissal from service; but on appeal, the Appellate Authority, by taking lenient view, modified the punishment of dismissal into one of removal from service with superannuation benefits. It is the submission of the learned senior counsel for the Management that the Tribunal has mechanically interfered with the punishment, without going into the reason, which were weighed by the Disciplinary Authority as well as Appellate Authority, in passing the order of termination of service of the Workman.
5.In this regard, the learned Senior Counsel appearing for the Management submitted that in fact, in the year 2000, the Employee indulged in an indecent and disorderly behaviour against a physically challenged woman-staff by saying that he would pour urine on her face, while holding a bucket with the urine in his hand; on the said charge, he was imposed with a punishment of stoppage of increment for three years by an order dated 07.03.2000; but, the Workman was by temperament prone to defy the authorities, high handed and not amenable to rules and discipline; the reinstatement of the Workman would cause serious hardship and inconvenience to the Management; the order of reinstatement mechanically passed by the Tribunal in the case of this nature is totally against the principles laid down by the Honourable Supreme Court in various judgments; after having come to the conclusion that the Enquiry was conducted in a proper and fair manner, the interference of the Tribunal with the punishment imposed by the Appellate Authority is not legally sustainable.
6.The learned senior counsel appearing for the Management further submitted that only if the findings of the Appellate Authority are perverse or the Management is guilty of victimisation, unfair labour practice or mala fide, then only the Tribunal can make an interfere with the punishment imposed on the Workman. But, in the instant case, the Tribunal has interfered with the punishment imposed by the Appellant Authority, only on a finding that the Workman should be given further chance to correct himself to repent his past, thereby enabling him to be a righteous person; the said findings cannot be a basis to invoke Section 11A of the Industrial Disputes Act to quash the order of termination of service passed by the Appellate Authority.
7.The learned senior counsel appearing for the Management has further submitted that only when the Tribunal feels that the punishment imposed on the delinquent officer is shockingly disproportionate to the charges levelled against him, by recording the reasons it can make an interference with the punishment imposed by the Management; but, that is not the state of affairs in the instant case; only purely on sympathetic consideration, the Tribunal has interfered with the punishment imposed on the Workman by the Appellate Authority; therefore, the same is not legally sustainable.
8.It is further submitted by the learned senior counsel appearing for the Management that in various judgments the Hon'ble Supreme Court has held that the misplaced sympathy, generosity and private benevolence cannot be a ground to interfere with the punishment awarded by the disciplinary authority. In support of his contentions, the learned senior counsel appearing for the Management has relied upon the followings judgments_
1)1973(1) SCC 813 (Workman Vs. Firestone Tyre and Rubber Co.)
2)2006(13) SCC 619 (Kerala Sovent Extractions Ltd. Vs. A.Unnikrishnan)
3) 1996(6) SCC 590 (New Shorrock Mills Vs. Maheshbhai T.Rao)
4) 2000(3) SCC 324 (U.P. State Road Transport Corpn Vs. Subhash Chandra Sharma)
5)2003(4) SCC 364 (Chairman & Managing Director, United Commercial Bank Vs. P.C.Kakkar)
6)2005(10) SCC 84 (Damoh Panna Sagar Rural, regional bank, Munna Lal Jain)
9.Per contra, the learned counsel appearing for the Workman submitted that the Tribunal without properly appreciating the material documents produced by the Workman in the enquiry, has passed the impugned order withholding the backwages as punishment to the Workman. In this regard, the learned counsel appearing for the Workman further submitted that the Workman, as a member of the suppressed class, with a bona fide thought, installed the photo of Dr.Ambedkar, one of the framers of the constitution, in the Adyar Branch Office of SBI, only on the oral permission given by the Assisant General Manager of the Bank; but, in order to victimize the Workman, for no fault on his part, the Management served a memo upon him and started to harass him; the charge-memo was issued as against the Workman mainly on the allegation that the Workman brought the outsiders into the bank premises and hit a nail on the wall of the Bank and hanged a photo of Dr.Ambedkar, without the permission of the superior officers; but, this allegation was split into eleven charges, only with an intention to victimise him.
10.In this regard, the learned counsel appearing for the Workman, by inviting the attention of this Court to each of the charges and findings of the Tribunal as well as the findings of the Enquiry Officer, submitted that the Tribunal has wilfully failed to re-appreciate the evidence and the documents produced by the Workman in support his case; the Tribunal verbatim concurred with the findings of the Authorities in respect of all the charges and by invoking Section 11A of the Industrial Disputes Act, directed for reinstatement of the Workman, but without backwages as punishment to him; therefore, the impugned order passed by the Tribunal with regard to the withholding of backwages has to be quashed. In this regard, the learned counsel for the Workman has relied upon the judgment reported in (2007) 9 SCC 748 (Madhya Pradsh Administration Vs. Tribhuban), wherein it has been held that the discretionary jurisdiction exercised by the Industrial Court should have been taken into consideration by the High Court for the determination of the question as to what relief should be granted in the peculiar circumstances of the case. Thus, by relying upon the said Judgment, the learned counsel for the Workman submitted that the discretionary jurisdiction exercised bythe Tribunal need not be interfered with.
11.The learned counsel appearing for the Workman, by inviting the attention of this Court to para 14 of the impugned award passed by the Tribunal, submitted that in para 14 the Tribunal had come to the conclusion that the charges are not proved against the Employee; but after coming to such a conclusion, in the subsequent paragraphs, the Tribunal had taken a different view against the Workman; hence, the award passed by the Tribunal with regard to withholding of backwages has to be quashed.
12.By way of reply, the learned Senior counsel appearing for the Management has submitted that the Chief General Manager of the Bank issued a circular granting permission only to put up photo of Mahata Gandhi, father of the nation; so far as the display of various national leaders are concerned, the Bank does not grant express permission for the same, as the Bank has to ensure that the disrespect should not be shown to the pictures of the national leaders.
13.It is further submission of the learned senior counsel appearing for the Management that in the instant case, the main charge levelled against the Workman is that he brought 15 outsiders into the Bank and without the permission of the Management, he put a nail on the wall and hanged the portrait of Dr.Ambedkar; therefore, it is incorrect to state that the charge-memo was issued for hanging the portrait of Dr.Ambedkar. Further, the learned senior counsel for the Management submitted that unless the findings rendered by the Tribunal is perverse, interference cannot be made with the findings of the Tribunal by the High Court under Article 226 of the Constitution of India. Thus, the learned senior counsel appearing for the Management submitted that the submissions made by the learned counsel for the Workman have to be rejected.
14.In view of the submissions made on either side, the following question fall for consideration_ When the Tribunal has come to the conclusion that the enquiry was conducted in a proper and fair manner, whether the interference made by the Tribunal with the punishment imposed on the Workman by the Appellate Authority, by invoking Section 11A of the Industrial Disputes Act is legally sustainable?
15.It is the case of the Management that on 15.07.2004 at about 02.00 pm, the Workman who was working as sub-staff in the Adyar Branch left the Bank premises without prior permission from the Superior Officer and returned back to the Bank along with the outsiders and hit a nail on the wall and hanged the photo of Dr.Ambedkar without the permission of his superior officer. But, it is the case of the Workman that he brought the outsider into the Bank and hanged the photo of Dr.Ambedkar on the wall, only with the permission of the superior officer.
16.The Management has issued a show cause notice on 21.09.2004 to the Workman containing 11 charges, which are as follows_
1.On 15.07.2004, the Workman had left the bank premises at 02.00 pm without obtaining prior permission from the Manager (Accounts) under whose control he was working and he returned back to the branch only at about 03.00 pm along with outsiders.
2.The Workman returned to the bank's premises along with an outsider. Shri.S.Maheswaran and Shri.M.Chandran, Bank's armed guards, resisted the entry of the outsider into the premises on security reasons, he shouted at them.
3.The Workman with the help of the outsider, arranged hitting of nails on the wall panels at the entrance of the Banking Hall in the ground floor, thereby wilfully caused damage to the Bank's property.
4.The Workman had hung a portrait of Dr.Ambedkar without obtaining prior permission and when the Armed Guards tried to resist the hanging of the portrait, he had made a false statement to them that he had already obtained the prior permission of the Assistant General Manager of the branch.
5.When memo dated 16.07.2004 calling for explanation was issued by the Chief Manager to the employee, he arranged for sending about 25 persons to the Banks premises on 19.07.2004 around at 03.00 pm, apprehending trouble within the premises, two persons in the group namely, Shri Kumari Arun and another were allowed by Shri.K.L.Easwar, Officer, Adyar Branch to meet the Assistant General Manager. These two persons threatened the AGM. Thus, the employee brought pressure from outsiders to threaten the Assistant General Manager of the branch who was also the Disciplinary Authority, to prevent taking action against him.
6.Workman instigated the SC/ST Employees Welfare Association and arranged for pasting of posters and placing of placard in branches seeking arrest of Officers of the Bank.
7.On 02.08.2004, during the office hours, the Workman had in his possession a bunch of pamphlets demanding the arrest of Deputy General Manager of Zonal Office, Chennai and Assistant General Manager of the branch as issued by Shri.A.K.Gopalasamy and he had showed the same to the employees of the branch.
8.Workman had left the bank earlier than regular working hours without any prior permission on various occasion: 04.08.2004, 05.08.2004, 06.08.2004, 12.08.2004, 13.08.2004, 17.08.2004, 18.08.2004, 19.08.2004, 20.08.2004, 23.08.2004, 25.08.2004, 26.08.2004, 27.08.2004, 30.08.2004.
9.The Manager (Accounts) of the branch marked the Workman leaving the branch earlier than regular hours without obtaining prior permission in the attendance record. The marking in the attendance record was tampered by the Workman by overwriting and making false entries. Dates on which attendance was tampered are_ 04.08.2004, 05.08.2004, 06.08.2004, 12.08.2004, 19.08.2004, 20.08.2004, 23.08.2004, 25.08.2004, 26.08.2004, 27.08.2004.
10.Workman entered the cabin of Manager (Accounts) during the business hours and threatened him about the marking in attendance register regarding early departure from the office hours.
11.Workman arranged for threatening phone calls from Shri.Gunasekaran, Shri.Masilamani and Shri.Arasakumar, Office Bearers of the SC/ST Employees Welfare Association to Manager (Accounts), threatening him with dire consequences for marking attendance register about the early leaving of the Workman.
The Workman has given a reply to the said charge-memo. Since the explanation given by the Workman was not satisfactory, an enquiry was conducted and after enquiry, the Enquiry Officer submitted a report dated 24.08.2005, stating that the charge Nos.1 to 6, 8 & 9, were proved and Charge No.7 was partly proved and Charge Nos.10 & 11 were not proved. Based on the enquiry report, the Disciplinary Authority has passed an order of dismissal on 02.12.2005. The Workman filed an appeal before the Appellate Authority. In the appeal, the Appellate Authority by taking a lenient view has modified the punishment of dismissal into one of removal from service with superannuation benefits, by order dated 03.04.2006. Aggrieved over the same, the Workman raised an industrial dispute. The matter was referred to the Tribunal by the Government and the same was numbered as I.D.No.90 of 2006.
17.Originally on 15.05.2009 the Tribunal has passed an award holding that the punishment imposed on the Workman by the appellate authority is just and proper and the workman is not entitled to any relief in the said ID. Challenging the said award dated 15.05.2009 passed by the Tribunal, the Workman had filed a writ petition in W.P.No.21625 of 2009 before this Court. After hearing both sides in the said Writ Petition, the learned Single Judge of this Court set aside the award dated 15.05.2009 passed by the Tribunal and remanded the matter to the Tribunal for fresh consideration.
18.After remand, the Tribunal after re-appreciating the evidence has passed the impugned award dated 30.04.2012 holding that the enquiry conducted by the enquiry officer was just and proper; however, on a sympathetic consideration, the Tribunal has made an interference with the punishment imposed on the Workman, by directing the Management to reinstatement of the workman into the service with continuation of service, but without backwages. The relevant portion of the impugned award passed by the Tribunal runs as follows_ 27.On an enlightened and more refined perceptions on the matter of punishment, taking a departure from the punishment earlier imposed by me in the impugned and set aside award, clothed with power and gaining strength from the directions in the remand order and decisions brought to my notice as discussed above, I feel that the petitioner deserves to be given a modified lesser punishment than the termination from service by way of dismissal modified to removal with superannuation benefits. The punishment order of the management is seen to be detaching the workman from the disqualification of eligibility for future employment. Though the management has a case that it has lost confidence in him and he is being severed from service, the said fact is actually not substantiated by the bank though pleaded, but which is lacking in details. The said aspect also shall stand actually proved by the Management but not so done. The ground loss of confidence for termination from service requires to be cogently proved. The said aspect now falling for consideration is to be examined on wider views in the context of the decisions relied on by the petitioner and discussed by me supra. As argued by the learned counsel for the petitioner the workman is not charged of a heinous misconduct. He is only to be given a further chance by reinstating and repent his past thereby enabling him to be a righteous person. The punishments are generally meant to mend the persons and not to strangulate them. Herein by the impugned punishment the workman has been put to economic death. It is well to remember that no man is born criminal. But, only circumstances may make him culpable. When one is inherently or intrinsically with some inborn traits of characters of blameworthy nature, regard having had to that such persons if proved to have committed a misconduct, unless given some change to correct himself and repent for the past a capital punishment, if imposed will be totally miscarriage of justice which is not the purpose of law and justice. Idiosyncrasies could be read in men varying from person to person and different persons react differently in a particular situation or incident. The conduct of the workman amounting to misconduct towards the superiors and the related acts moving with or motivating the Association causing irritation and nuisance to the conducive atmosphere and working of the bank, while has to be strongly deprecated, yet he is to be visited with the sanction of law by a lesser punishment than the one imposed on him, so as to give him an opportunity of mending himself by pocketing the sufferings already undergone by being deprived of his employment for quite a long time. Let his clamour for a reinstatement be approved by the management with magnanimous approach with fond hope of he being corrected to serve himself and the institution thereafter. The punishment on an overall reconsideration and review, discernibly falls under the category of a punishment disproportionate to the gravity of the misconduct. A reading of above portion of the impugned award passed by the Tribunal would show that the Tribunal has interfered with the punishment imposed on the Workman by the Appellate Authority, only on a benevolent consideration. Therefore, now, it has to be seen as to whether the interference with the punishment imposed on the workman made by the Tribunal under Section 11A of the Industrial Disputes Act on benevolent consideration is sustainable or not.
19.In this regard, it would be appropriate to see some of the decision of the Hon'ble Supreme Court. In 1973(1) SCC 813 (Workman Vs. Firestone Tyre and Rubber Co.) the Hon'ble Supreme Court has observed as follows_
26.The powers of the Tribunal when a proper enquiry has been held by an employer as well as the procedure to be adopted when no enquiry at all has been held or an enquiry held was found to be defective, again came up for consideration in Management of Ritz Theatre (P) Ltd Vs. Its Workmen [AIR 1963 SC 295 : (1962) 2 Lab LJ 498]. Regarding the powers of a Tribunal when there has been a proper and fair enquiry, it was held:
It is well settled that if an employer serves the relevant charge or charges on his employee and holds a proper and fair enquiry, it would be open to him to act upon the report submitted to him by the enquiry officer and to dismiss the employee concerned. If the enquiry has been properly held, the order of dismissal passed against the employee as a result of such an enquiry can be challenged if it is shown that the conclusions reached at the departmental enquiry were perverse or the impugned dismissal is vindicative or male fide, and amounts to an unfair labour practice. In such an enquiry before the Tribunal, it is not open to the Tribunal to sit in appeal over the findings recorded at the domestic enquiry. This Court has held that when a proper enquiry has been held, it would be open to the enquiry officer holding the domestic enquiry to deal with the matter on the merits bona fide and come to his own conclusion.
............
32. From those decisions, the following principles broadly emerge:
(1)The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2)Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens [(1971) 1 SCC 742] within the judicial decision of a Labour Court or Tribunal. In (2006) 13 SCC 619 [Keral Sovent Extractions Ltd. Vs. A.Unnikrishnan], it has been held as follows_ 10.We are inclined to agree with these submissions. In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusion. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. In (2003) 4 SCC 364 [Chairman & Managing Director, United Commercial Bank Vs. P.C.Kakkar], it has been held as follows_ A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik (1996 (9) SCC 69), it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond ones authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.
15.It needs no emphasis that when a Court feels that the punishment is shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. But as noted above, the proceedings commenced in 1981. The employee was placed under suspension from 1983 to 1988 and has superannuated in 2002. Acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon facts of each case and even that cannot have universal application. In (2005) 10 SCC 84 [Damoh Panna Sagar Rural Regional Bank Vs. Munna Lal Jain], 14.The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Associated Provincial Picture Houses Vs. Wednesbury Corpn (1948) 1 KB 223 : (1947) 2 All ER 680 (CA), the Court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. A reading of the dictums laid down in the above said judgments would show that only if the punishment imposed by the Disciplinary Authority/Appellate Authority is shockingly disproportionate to the charges, then by recording the reasons, the Tribunal can make an interference with the punishment. But, in the instant case, it is not the finding of the Tribunal that the punishment imposed on the workman by the Appellate Authority is shockingly disproportionate to the charges levelled against the workman; on the other hand, only on a sympathetic consideration, the Tribunal has made an interference with the punishment imposed by the appellate authority, stating that the workman can be given one more chance to repent his past in order to enable him to be a righteous person. But, it is well settled legal position that misplaced sympathy, generosity and private benevolence cannot be a ground to interfere with the punishment imposed by the Appellate Authority. The fact that the enquiry was conducted in accordance with the principles of natural justice was not disputed by the Workman. Even according to the Tribunal, the enquiry was conducted in just and proper manner. When the enquiry was conducted in just and proper manner, the Tribunal cannot interfere with the punishment imposed by the Appellate Authority. Only if the findings of the disciplinary authority/appellate authority are perverse or the Management is guilty of vitimisation, unfair labour practice or mala fide, then only the Tribunal can make an interfere with the punishment imposed on the Workman. Therefore, the reason assigned by the Tribunal for making interference in the punishment imposted by the Management is not sustainable in law and as such, the interference made by the Tribunal by invoking the provisions under Section 11A of the Industrial Disputes Act is not legally sustainable. Hence, the impugned award passed by the Tribunal is liable to be set aside.
20.Further, the learned counsel for the Workman has made a detailed argument, by inviting the attention of this Court to each of the charges and findings of the Tribunal and contended that the Tribunal while directing the Management to reinstate the Workman, ordered for withholding of the backwages; hence, by re-appreciating the evidence the order for withholding the backwages passed by the Tribunal has to be set aside. But, it is well settled legal principle that this Court while dealing the matter under Section 226 of the Constitution of India cannot re-appreciate the evidence, to set aside the findings rendered by the Tribunal. Only if the finding of the Tribunal is perverse, this Court can make an interference under Article 226 of the Constitution of India. But, it is not the case of the Workman that findings of the Tribunal is perverse. On the other hand, it is the submission of the learned counsel for the Worman that the Tribunal without properly appreciating the evidence confirmed the findings of the Management.
21.It is another submission of the learned counsel appearing for the Workman submitted that in para 14 of the impugned award, the Tribunal had come to the conclusion that the charges are not proved against the Workman; but after coming to such a conclusion, in the subsequent paragraphs, the Tribunal had taken a different view as against the Workman, which would show that the Tribunal has ordered for withholding the backwages without proper appreciation of evidence and non-application of mind; hence, the impugned award passed by the Tribunal with regard to withholding of backwages has to be quashed. But, on perusal of para 14 of the impugned award, I find that the Tribunal has only recorded the submissions of the learned counsel for the Workman in the said para and it is not the finding of the Tribunal. Therefore, I am not inclined to accept the submission made by the learned counsel for the Workman in this regard.
22.For the foregoing reasons, I am of the opinion that the impugned award passed by the Tribunal is liable to be set aside.
23.In the result, the writ petition filed by the Management viz., W.P.No.24952 of 2012 is allowed as prayed for and the impugned award passed by the Tribunal is set aside. Consequently, the writ petition filed by the workman viz., W.P.No.2529 of 2013 is dismissed. Connected Miscellaneous Petitions are closed. No costs.
17.10.2014 Internet : Yes / No Index : Yes / No ssv To
1.The Presiding Officer, Central Government Industrial Tribunal-
cum-Labour Court, Chennai.
2.The Deputy General Manager (SME), State Bank of India, Local Head Office, Circle Top House, No.16, College Lane, Chennai-600 006.
2.The Assistant General Manager, State Bank of India, Mylapore Branch, Chennai-600 004.
R.SUBBIAH, J., ssv Pre-delivery common in W.P.No.24952 of 2012 & M.P.Nos.1 to 3 of 2012 and W.P.No.2529 of 2013 17.10.2014