Kerala High Court
Dy. General Manager, S.B.I. vs Roy Samuel on 11 June, 2004
Equivalent citations: 2004(2)KLT923, (2004)IIILLJ1053KER
Author: M. Ramachandran
Bench: M. Ramachandran
JUDGMENT M. Ramachandran, J.
1. An order passed by the second respondent Industrial Tribunal, Kollam in I.D. No. 15/01, dated 29.9.03, a copy of which is marked as Ext.P8 has been subjected to challenge. Tribunal had entered a preliminary finding upon the legality and validity of the domestic enquiry held by the management Bank. After holding that the enquiry was held properly, in form, the Tribunal was of the opinion that the findings of the enquiry officer cannot be endorsed as one, which was supported by legal evidence to establish the charges alleged against the workman. The Tribunal was of the opinion that key witness and whose evidence would have been material had not stepped into the witness box at the time of domestic enquiry. It had been observed as following:
"No doubt the management has the liberty to examine the witness of their own choice. But here is a case were the defence has to establish the case through this prime witness and due to the non examination of that particular witness prejudice has been caused to the workman. It is also true that the workman had the liberty to cite that witness for examination on his side. But that person had failed to come as a witness even though he was cited as witness on the side of the management to prove the complaint of his wife, Smt. Mary Delarose. So even if the workman attempted to examine that person as a witness on his side, that would not have produced any result. Therefore the management cannot now escape from this laches on the ground that the workman failed to make any attempt to cite or examine Sri. Ancil. In these circumstances it can only be concluded that the management purposely avoided examination of Sri. Ancil in the enquiry because if examined his evidence should have proved against the case of management. The findings of the enquiry officer without the evidence of this key witness can only be said as not supported by valid and legal evidence and hence perverse".
2. The consequence was that even though the enquiry was found in proper form, it became unreliable and the employer was exposed to a situation as if no enquiry had been held against the workman. Coupled with the above position, it was also a case where the management had not sought for leave to adduce fresh evidence in case the enquiry was found as not acceptable, when preliminary findings was entered into. On Ext.P8 being passed, the Bank management is seen to have filed an application as Ext.P9 seeking to examine the additional witness who, in the opinion of the Tribunal, was a relevant witness. But by Ext.P10 order, such request had been rejected by the Tribunal. Thus a position had come Where it would have been possible for the management to raise no objection, against a direction for reinstatement. The Writ Petition had been filed challenging the above two orders and seeking for consequential reliefs.
3. It may be necessary for me to go to some details, since I have formed an opinion that the findings of the Industrial Tribunal about the alleged perversity of the findings of the enquiry, might be uncharitable.
4. Sri. Roy Samuel G.D'Cruz, first respondent had been employed by the petitioner State Bank of India as a regular confirmed employee. He was during the relevant time working as a teller at Thampanoor branch at Trivandrum, The allegation as against him was that in the course of his duty on 15.9.1997, he had received an amount of Rs. 5,000/- from the husband of One Mary Dalarose, to be credited against her loan account. But he had omitted to account the above said sum though records indicated that he had accepted the amount and made endorsements in the pay-in-slip as also in the loan card which has to be retained by the customer. The omission as also the appropriation came to lime light when Smt. Mary Dalarose had approached the Bank for settlement of account in December, 1997. It was found at that time that the payments were not credited
5. According to the Bank, Sri. D'Cruz had not been able to explain the position and he had been charge sheeted. As the explanation submitted by him was found to be not satisfactory, enquiry had been arranged to be held. Ext.P3 is the report of the enquiry officer. On the basis of evidence that had been let in, the enquiry officer came to a finding that the charges had been proved. Proposal to terminate his service by way of dismissal, came in this context.
6. Of course thereafter on appeal dismissal has been converted to discharge, but nevertheless a dispute had been raised by the workman concerned which ultimately had come for adjudication before the Industrial Tribunal. According to the Bank, it was a case of clear misappropriation since the circumstances clearly indicated such a conduct. There was entry in the pay-in-slip, which had been signed by the workman. According to them, the card also had been endorsed, showing the acceptance of the amount and a fellow employee identified the initials of the workman. None of the records and registers indicated credit as brought in, there was no surplus reported on the date concerned or thereafter, and the workman had remitted Rs. 5,000/- when the issue came up as above.
7. This was the back ground when the issue came up for adjudication. According to the Bank, the account holder had been examined and she had spoken about the transactions in detail. There was evidence of co-workers also indicating that the handwriting and signature were that of the delinquent workman and though there was an attempt made to get the husband of the complainant, who had actually remitted the amount, he had not turned up. But nevertheless it was a case where they assert, there was satisfactory evidence to be acted upon.
8. However, before the Tribunal, the workman has projected a case that even though there was attempt for remittance evidenced by Ext.P1 slip, acceptance of payment had not been there and such pay-in-slip belongs to a totally different person and that he had not made the remittance at all and the case put up by the Bank was unbelievable by normal standards. In the statement filed by workman referred to the bias of the branch manager and the following passage from paragraph 13 of the statement (Ext.P6) will more or less disclose the defence.
"In the instant case the workman who was at the teller counter happened to receive the pay-in-slip and affix the seal and initial without verifying the A/C to which the remittance was to be made, because of the heavy rush of transactions. He subsequently on finding the soiled notes and verifying the A/C to which the remittance was to be made instructed the remitter to go over to the concerned counter after substituting the soiled notes. The person concerned left the Teller counter but did not go to the other counter to make remittance as instructed. Later on he had handed over the original of the counterfoil to Mrs. Mary Dalarose (PW1 in the enquiry) as if remittance had been made. Mrs. Mary Dalarose might have thought that remittance might have been made in the loan a/c. Remittance having been not made, no credit was given to in respect of her GL a/c. But later on when PW1 went over to the bank for closing the a/c and for redeeming the ornament pledged, then non-remittance of Rs. 5,000/- in the bank was noticed. But on the basis of the counterfoil (Ext.E6) she informed Branch Manager (PW5 in the enquiry) that she effected the remittance as per Ext.P6 and therefore she should be given credit to this remittance for the purpose of closing her gold loan a/c with the bank. This situation provided ample opportunity to PW5 to wreak-vengeance against the workman and he initiated action against the workman. After securing remittance of Rs. 5,000/- by compelling and threatening the workman, the Branch Manager fabricated a set of allegations on this matter along with a few other matters and at the instance of the Branch Manager the charges were framed by the disciplinary authority".
It was while considering these aspects, during the preliminary enquiry, that the Tribunal has held that the findings are perverse.
9. It appears that the Tribunal was of the view that evidence has to come from the person who actually made the remittance and when this was not there, no other materials which had been placed would have been sufficient enough. This is the reason for the enquiry report to be discarded as one which is perverse.
10. Sri. Surendranath appearing for the petitioner submits that as an adjudicator, the Tribunal had a duty to enquire into the intrinsic value of each piece of evidence, circumstance and material placed before it. To allege that there was laches, he submits, was uncharitable. According to him, no reason is stated as to why the available evidence was not commented upon. The criticism appears to be well justified.
11. It was submitted that it is not as if the Bank had not attempted to get Mr. Ancil, the concerned person as witness, but since they were not having powers for compelling his attendance, they were at a disadvantageous position and had opted for the next best. It was as if the entire matter rested on the testimony of a star witness. Though a proper enquiry has been held in conformity with the principles of natural justice for imaginary reasons, the findings are declared as perverse, which was not expected to from the part of an experienced adjudicator and the order has to be set aside as the Bank is put to grave prejudice.
12. Learned counsel for the workman, however, had raised a preliminary objection that the Writ Petition is not maintainable at this stage. According to him, this was only a preliminary finding. The Courts were consistent that if any management is aggrieved by such orders, they were to await for the final award to come. There was no justification for attempting to stop or stall the proceedings by compelling piece meal adjudication. He had referred to a decision of the Madras High Court reported in Gurumurthy v. Second Addl. Labour Court, Madras, 1995 (1) LLN 1022. The findings recorded by the Labour Court, according to the Madras High Court are not to be interfered with, by the High Court since there is a duty cast on the Tribunal to pass an award, normally within a period of three months. Therefore, if findings in the preliminary stages are subjected to attack, that will be interfering with the adjudication. The matter could be subjected to examination if ultimately the management is aggrieved about the outcome of the reference.
13. Proceeding further, he submits that there may not be any dispute for the proposition that preliminary orders passed by the Labour Court are not liable to be subjected to attack. The Writ Petition therefore is misconceived and in any case premature. On the merits of the contentions also, the workman is sure that the Tribunal has not committed any error while coming to the conclusion that the findings are perverse. It was a case according to him where it would have been possible for the Bank to get the best evidence since he had developed a case that there was no transactions at all as had been claimed by the customer. There was independent evidence forthcoming from his side in the domestic enquiry which indicated that there was no incident as had been claimed, of remittance or handing over any amounts.
14. I do not think it is necessary at this juncture for me to go to the merits of the contentions as above, but will have to deal with the preliminary objection that the Writ Petition is not maintainable. The principle is not absolute that a preliminary order is beyond the purview of challenge. In a later decision, another Division Bench of the Madras High Court, themselves, referring to the decision of the Supreme Court in Cooper Engineering Ltd. v. P.P. Mundhe, AIR 1975 SC 1900, had held as following:
"There can be no doubt that the proposition of law canvassed by the learned counsel for the Appellant and we make it clear that it is open to the appellant to question the award of the Labour Court on the question of preliminary issue decided by it."
(Cater Pillar India (P) Ltd. v. Presiding Officer, Labour Court, 2004 (1) LLJ 984.) The Counsel submits that this challenge itself can be only after the final award. I cannot agree. The Supreme Court had only pointed out the restrictive practices which might develop. If the order was worthy of challenge, it was to be challenged, and it could have been entertained. The edifice of an award was to be built not on shaky foundations. If error was committed, it should have been got rectified at the earliest point of time. Possible hardships could not have been avoided only for the sake of convenience and advantage to one party to the proceedings. Otherwise it would have only contributed to vagaries of litigation, inflicted without reason, and not to be recognised or upheld as a sound practice.
15. This appears to be a case where interference is called for at this juncture since the risk that is faced by one of the parties in this case is that, even though there was an enquiry held in consonance with the principles of natural justice, the Tribunal has declared the findings unacceptable. The result is that there is no enquiry at all. Extreme consequences are likely to arise therefrom. Since procedural formalities are completed it is to be presumed that there cannot be any further evidence that could be let in. Thus, the management will be forced to await final award to be passed which necessarily have to be adverse to them. In other words, even if it is prima facie possible for this Court to find that the said findings deserves nonetheless to be vacated, the Labour Court is to be permitted to continue with the adjudication and to pass award and such award has to be so awaited and then subjected to challenge. This circuitous process cannot be recommended acceptable as an expedient measure. The Supreme Court has in Cooper Engineering Ltd. v. P.P. Mundhe crystalised the law governing the circumstance by using a single adjective. If the cause is 'worthy' challenge is indeed possible. I respectfully follow the dictum.
16. Mr. Kishore submits that if the procedure suggested by him is the procedure followed, it may be advantageous to the weaker section, viz., the worker. There is likely to be a direction for reinstatement and if award is challenged, there can be claim for wages as envisaged under Section 17B of the I.D.Act. I think the submission is too far fetched to be noticed, though he has an authority of a Division Bench of another High Court for the proposition. The benefit of Section 17B has been envisaged for a totally different purpose. As the Supreme Court in a number of occasion held, nothing prevents a person from engaging himself in a profitable pursuit during the pendency of the adjudication and gaining livelihood. Section 17B is an enabling provision, and not an end in itself. If as a matter of fact the findings of Tribunal are perverse, ultimately this Court will have to interfere with the award and by the time, substantial sums will have to be paid as per Section 17B which normally would not have been possible for the workman concerned to claim, if in final verdict it would have been found that the management is not at fault.
17. This is a case of disciplinary action. As a matter of fact, the allegations if proved against the workman would constitute grave misconduct as it involves falsification and manipulation of records and misappropriation of sums which normally cannot be tolerated especially in a financial institution. The question therefore is whether the order could be supported by the evidence on record without adopting a hyper technical stand. In the domestic enquiry a relaxed standard of proof alone is insisted, as there is no rigour of Evidence Act involved. The principles have been laid down by the Supreme Court, as early as in 1964 (See State of Mysore v. Siva Basappa, 1964 (1) LLJ 24, as well as State of Assam v. Mahendra Kumar, AIR 1970 SC 1255. The Court had laid down the basic principles to be looked into. The necessity of enquiry held by the employer as against a charge sheeted workman, was as to whether or not he had acted on information gathered, unless it is put to the party against whom it is used, and given him a fair opportunity to explain it. It is also relevant to refer to the observation of the Hon'ble Supreme Court made in the case High Court of Judicature, Bombay v. Udaysingh, 1997 (5) SCC 129, that unlike in criminal proceedings, in a domestic enquiry, preponderance of probabilities and conclusions drawn as a reasonable man from evidence on record, is sufficient as far as such an enquiry officer is concerned.
18. Tribunal has a duty to examine and then accept or reject the evidence for appropriate reasons. He is not expected to wait for the best evidence. An enquiry officer is entitled to come to conclusions of his own. It is precisely for this purpose that law requires an enquiry to be held. Due credit has to be given to the findings. The circumstance that the Tribunal would not have come to the self same conclusion is no reason to dubb a finding as perverse or even discard it.
19. The Tribunal should concede that at least rudimentary intelligence and power of comprehension might be there with lesser mortals as well. The Supreme Court has spoken about preponderance of probability; so as to explain the situation. Only for the reason that the husband of the customer had not been examined will not by itself constitute a situation of defect to ignore the rest of the evidence placed before the enquiry officer. The assessment has to be from the totality of materials available in the files. Therefore I set aside the order of the Tribunal in Ext.P8 to the extent it has held that there is a perverse finding.
20. Taking notice of the observations made as above, the Tribunal is directed to come to a decision de novo on the basis of evidence on record already. Consequent to Ext.P8 orders the management had been constrained to file Ext.P9 objections seeking for permission to let in evidence which has been rejected by Ext.P10 order. As Ext.P8 is quashed, Ext.P9 has become superfluous. Consequently Ext.P10 also will stand set aside.
The Writ Petition is allowed as above. The Tribunal should strive to expedite the adjudication proceedings.