Madras High Court
M.Gowrishankar vs The Presiding Officer on 2 June, 2015
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: 23.04.2015 Date of verdict: 2 .06.2015 CORAM THE HONOURABLE MR. JUSTICE R.SUBBIAH Review Application Nos.305 and 308 of 2014 Rev.Appln.No.305 of 2014: M.Gowrishankar ... Petitioner 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-6. 3.The Assistant General Manager, State Bank of India, Mylapore Branch, Chennai-4. ... Respondents Rev.Appln.No.308 of 2014: M.Gowrishankar ... Petitioner vs. 1.The Deputy General Manager (SME), State Bank of India, Local Head Office, Circle Top House, No.16, College Lane, Chennai-6. 2.The Assistant General Manager, State Bank of India, Mylapore Branch, Chennai-4. 3.The Presiding Officer, Central Government Industrial Tribunal cum Labour Court, Chennai. ... Respondents Review application No.305 of 2014 has been filed to review the order dated 17.10.2014 made in W.P.No.2529 of 2013. Review application No.308 of 2014 has been filed to review the order dated 17.10.2014 made in W.P.No.24952 of 2012. For Petitioner : Mr.R.Sankarasubbu, in both the petitions. For Respondents : Mr.G.Masilamani, SC for M/s.T.S.Gopalan & Co. COMMON ORDER
The present review applications have been filed to review the common order dated 17.10.2014 made in W.P.Nos.2529 of 2013 and 24952 of 2012 respectively.
2. W.P.No.24952 of 2012 was filed by the respondent bank / management questioning the award dated 30.4.2012 passed in I.D.No.90 of 2006 by the Presiding Officer, Central Government Industrial Tribunal cum Labour Court, Chennai. Questioning the same award, the workman / petitioner filed W.P.No.2529 of 2013.
3. The short facts which are necessary to decide these review petitions are as follows:-
The petitioner is an employee of the respondent bank. On 21.9.2004, a show cause notice with 11 charges was issued to the petitioner calling upon him to show cause as to why disciplinary action should not be taken against him. To the said show cause notice, the petitioner sent a reply on 4.10.2004. Since the said reply was not satisfactory, an Enquiry Officer was appointed. After conducting enquiry, the Enquiry Officer held that out of 11 charges, charge Nos.1 to 6, 8 and 11 were proved and charge No.7 was partly proved and charge Nos.10 and 11 were not proved. After giving an opportunity to the petitioner to show cause against the finding of the proposed punishment of dismissal, on 2.12.2005, the disciplinary authority viz., Assistant General Manager, Mylapore Branch, Chennai, passed an order dismissing the petitioner from service. Against the punishment of dismissal, the petitioner filed an appeal before the appellate authority viz., Deputy General Manager, SME, Local Head Office, Chennai. In the said appeal, the punishment of dismissal was modified into one of removal from service with superannuation benefits by showing leniency. Challenging the punishment of removal from service, the petitioner raised an Industrial Dispute. By order dated 4.12.2006, the Government of India referred the matter to the Central Government Industrial Tribunal cum Labour Court, Chennai and the same was numbered as I.D.No.90 of 2006. After hearing both sides, on 15.5.2009, the Tribunal passed an award holding that the punishment of removal from service awarded to the petitioner is just and proper and the petitioner is not entitled to any relief. Aggrieved over the same, the petitioner filed a writ petition in W.P.No.21623 of 2009. In the said writ petition, the petitioner contended that the Presiding Officer is not familiar with Tamil and his mother tongue is Malayam and during the enquiry proceedings, the translated copies of the enquiry proceedings were not available before him. Hence, by taking note of the said fact, the learned single Judge of this Court has set aside the award dated 15.5.2009 and remanded the matter to the Tribunal with a direction to dispose of the matter within a time frame. The learned single Judge has also directed the petitioner to make English translation of the enquiry proceedings, which were in Tamil. After remand, the Tribunal has passed an award on 30.4.2012 directing the respondent bank to reinstate the petitioner into service without backwages, but with continuity of service and with all other attendant benefits, by invoking the powers under Section 11A of the Industrial Disputes Act, observing that an employee should be given some chance to correct himself and repent his past thereby enabling him to be a righteous person. Aggrieved over the said award passed by the Tribunal, the respondent bank filed W.P.No.24952 of 2012 and the petitioner filed W.P.No.2529 of 2013. This Court, by a common order dated 17.10.2014, set aside the impugned award passed by the Tribunal and allowed the writ petition filed by the respondent bank and dismissed the writ petition filed by the petitioner. Now, the present review petitions have been filed by the petitioner to review the said common order.
4. Learned counsel appearing for the petitioner submitted that one of the charges levelled against the petitioner is that on 15.7.2004 during office hours, the petitioner with the help of outsiders, hit the nail 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. But, during the enquiry proceedings before the disciplinary authority viz., Assistant General Manager, Mylapore Branch, Chennai, the petitioner as W.W.1 had stated in his evidence that on 15.7.2004, one Jayakumar brought the photo of Dr.Ambedkar in the branch office at 3.00 p.m. and he had further stated in his evidence that he had not seen the person who had hung the photo. But, the Enquiry Officer, without considering the evidence of W.W.1 properly, has come to the conclusion that the petitioner 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. Similarly, learned counsel appearing for the petitioner by inviting the attention of this Court to the finding of the appellate authority and submitted that the appellate authority has come to the conclusion that charge No.7 has not been conclusively proved through oral or documentary evidence, whereas the Enquiry Officer while passing orders in the enquiry proceedings, has observed that charge No.7 was partly proved. This contradiction found in between the findings rendered by the Enquiry Officer and the appellate authority would show that the evidence adduced on the side of the petitioner was not properly considered by the authorities concerned. Similarly, learned counsel appearing for the petitioner by drawing the attention of this Court to the circular dated 1.8.2002 issued by the Personnel and HRD Department, State Bank of India to the Branch Manager, State Bank of India, submitted that the various charges levelled against the petitioner will not fall within the definition of 'gross misconduct' as defined under clause 5 of the Memorandum of Settlement dated 10.4.2002 between the management and their workmen. But, without considering all these aspects, the Enquiry Officer has passed an order of dismissal. Thus, the learned counsel appearing for the petitioner submitted that absolutely there is no evidence as against the petitioner to come to the conclusion that the charges levelled against him are proved. Therefore, the common order passed by this Court is liable to be reviewed by considering the evidence adduced before the Enquiry Officer.
5. On the other hand, learned senior counsel appearing for the respondent bank submitted that absolutely there is no error apparent on the face of the order passed by this Court. Therefore, the question of reviewing the order passed by this Court does not arise in this case. Further, the learned senior counsel submitted that the petitioner has not made out any valid legal ground for reviewing the order of this Court. In fact, the Tribunal has come to the conclusion that the enquiry was conducted in a just and proper manner. After having come to such conclusion, the Tribunal has made an interference under Section 11A of the Industrial Disputes Act stating that the petitioner should be given one more chance to correct himself to repent his past. Since the interference made by the Tribunal under Section 11A of the Industrial Disputes Act is not legally sustainable, this Court by correctly considering the dictum laid down by the Hon'ble Supreme Court in various judgments, allowed the writ petition filed by the respondent bank and consequently, dismissed the writ petition filed by the petitioner. Therefore, absolutely, there is no need for reviewing the order passed by this Court in the writ petitions. In this regard, learned senior counsel appearing for the respondent bank has also relied upon the judgment reported in (1997) 8 Supreme Court Cases 715 - Parsion Devi and others v. Sumitri Devi and others and (1999) 9 Supreme Court Cases 596 - Ajit Kumar Rath v. State of Orissa and others.
6. Keeping the submissions made on either side, I have carefully gone through the entire materials available on record.
7. The only question that falls for consideration is, whether the petitioner has made out any ground to review the order of this Court dated 17.10.2014 made in W.P.Nos.2529 of 2013 and 24952 of 2012 respectively.
8. The main submission of the learned counsel appearing for the petitioner is that the Enquiry Officer without considering the evidence adduced on the side of the petitioner properly, passed an order dismissing the petitioner from service. Hence, the Industrial Tribunal had interfered with the order. But, this Court had set aside the order passed by the Tribunal. Hence, by considering the evidence adduced on the side of the petitioner before the Enquiry Officer, the order passed by this Court has to be reviewed. But, in my considered opinion, as contended by the learned senior counsel appearing for the respondent bank, this Court cannot re-appreciate the evidence in these review petitions. In fact, what was questioned before this Court in W.P.Nos.2529 of 2013 and 24952 of 2012 is, as to whether the Tribunal is right in making interference in the punishment imposed by the second respondent by invoking Section 11A of the Industrial Disputes Act. The reason assigned by the Tribunal for interference is that an employee should be given some chance to correct himself and repent his past thereby enabling him to be a righteous person. But, this Court found that only if the punishment imposed by the disciplinary authority / appellate authority is shockingly disproportionate to the charges levelled against him, by recording the reasons, the Tribunal can make an interference with the punishment imposed by the authority concerned. Thus, this Court has come to the conclusion that the reason assigned by the Tribunal for making interference by invoking Section 11A of the Industrial Disputes Act is not legally sustainable. In fact, the Tribunal has come to a specific conclusion that the enquiry was conducted in accordance with the principles of natural justice. After having come to such a conclusion, the Tribunal has erroneously interfered with the punishment imposed by the second respondent. Only if there is an error apparent on the face of the record, this Court can review its own order. But, here, I do not find any error apparent on the face of the record. Under the guise of reviewing the order, this Court cannot re-appreciate the evidence. In this regard, a reference could be place in the judgment reported in (1997) 8 Supreme Court Cases 715 - Parsion Devi and others v. Sumitri Devi and others, wherein, it has held as follows:-
" 7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 C.P.C. In Thungabhadra Industries Ltd. v. Govt. of A.P - AIR 1964 SC 1372 (SCR at p.186) this Court opined:
" What, however, we are now concerned with is whether the statement in the order of September, 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."
9. In yet another decision reported in (1999) 9 Supreme Court Cases 596 - Ajit Kumar Rath v. State of Orissa and others, it has been held as follows:--
" 30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with order 47 C.P.C. The power is not absolute and is hedged in by the restrictions indicated in order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression 'any other sufficient reason' used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule."
A reading of the above judgments would show that the review cannot be claimed or asked for merely for a fresh hearing. The power of review can be exercised only for correction of a patent error of law or fact. In the instant case, I do not find any patent error of law or fact in the common order dated 17.10.2014 passed in W.P.Nos.24952 of 2012 and 2529 of 2013. Therefore, both the review petitions are liable to be dismissed.
10. Accordingly, both the review petitions are dismissed. No costs.
2.06.2015 Index:Yes/No Inernet:Yes/No sbi Note: Issue order copy on 4.6.2015.
1.The Presiding Officer, Central Government Industrial Tribunal cum Labour Court, Chennai.
R.SUBBIAH, J sbi Pre-delivery order in Rev.Apln.Nos.305 and 308 of 2014 DATED: 2 .06.2015