Delhi High Court
State Bank Of India vs Presiding Officer, Central Government ... on 31 January, 1992
Equivalent citations: 47(1992)DLT324, (1994)IILLJ83DEL
JUDGMENT
C.M. Nayar (1) The present petition is directed against the award dated 7/05/1984, of Presiding Officer, Central Government Industrial Tribunal, New Delhi. The said award held the findings of the Enquiry Officer, to be unjustified and set aside the dismissal of respondent no. 2 from service of the petitioner bank with effect from 14/05/1973. The respondent was ordered to be reinstated in the service of bank with continuity of service and full backwages.
(2) The brief facts of the case are that respondent no. 2, Shri M.L. Kapoor, was appointed as money tester on permanent basis, with effect from 3/01/1968, after having worked for two years on temporary assignment.
(3) On 1/01/1969, he was posted on the payment box along with another cashier Shri P.N. Rastogi and on that day, he 'was given an amount ofRs. 91,25.000.00, by Head Cashier, Shri C.N. Pandey, for distribution amongst Paying Cashiers numbering about 20. During the course of the day, he also took a sum of Rs. 20.000.00 from Shri A.N. Khanna, of the denomination of Rupee I.00 for distribution amongst the paying cashiers and the total cash,received by him for distribution amongst The paying cashiers, came to Rs.91,45,000.00. It was discovered that Rs. 20.000.00 was short in the cash thatday, and the management reported that shortage and filed an Fir with The police, in respect of the shortage and wanted the police to investigate thematter. A civil suit was also filed for recovery of the missing amount against respondent no. 2 and others. The disciplinary proceedings were initiated against Shri M.L. Kapoor and another cashier Shri S.L. Gupta. Respondent was suspended with effect from 10/01/1969 and was served with a charge sheet on 20/05/1970, i.e. after 17 months of suspension. The charges framed against Shri M.L. Kapoor were as follows : "(I)That on the morning of the 1/01/1969 when you were working in the cash department at the Branch you were handed over sums of money amounting to Rs. 86,25,000.00 and Rs.5,00,000.00 by the Head Cashier, Shri C.N. Pandey, as usual for distribution amongst the Paying Cashiers. The same evening there was a shortage of Rs. 20.000.00 in the cash entrusted toyou, which you failed to account for. It is apparent, therefore,that the said amount of Rs. 20,000.00 had been misappropriated by you on account of which the Bank has been put a large financial loss.(ii) That you failed to produce in the evening as usual on the 1/01/1969, the Register commonly known as 'Chaupatia' in which details of the currency notes received by you from the Head Cashier and distributed by you amongst the other Cashiers were recorded."
(4) Shri S.L. Gupta was also served the following charge sheet : "ON the morning of the 1/01/1969, when you were working on the payment counter in the Cash Department at the Branch,you were as usual given cash by M.L. Kapoor, the payment box in charge, for the purpose of making disbursements in the course of theday. The same evening when the days' accounts were prepared, a shortage of Rs. 20,000.00 was found in the general cash balance.When you were asked to deposit your balance, you had failed to furnish the details of the currency notes which you had earlier received from Kapoor, the payment box in charge. You also failed to keep a record of the details of payments made by you in the course of the day as a result of which you failed to render any account of the cash balance in your custody. You were thus grossly negligent in the performance of your duties, which has involved the bank in financial loss amounting to Rs. 20,000.00."
(5) These charges were conducted on enquiry by the bank through one of its officers Shri R.P. Srivastava. As a result of the enquiry, Shri M.L.Kapoor was found guilty and Shri S.L. Gupta was held to be not guilty. It was further held by the Enquiry Officer that Shri S.L. Gupta was careless in not recording the proper details of notes, handed over to a few payees but the total amount involved was only Rs. 4867.20 and carelessness of Mr. Gupta, in notrecording details of notes, handed over to few payees, could not involve the bank in loss of the magnitude of Rs. 20,000.00.
(6) The Enquiry Officer considered various possibilities about the guilty of Shri M.L. Kapoor and it may be relevant to reproduce the following findingNo. V as follows : "(V)Did Shri M.L. Kapoor himself misappropriate the amount and made false entries in the Chaupatia with a view to cover his misdeed and also convince Sri P.N. Rastogi that the balance cash in the box is actually what it should be ?I am sorry to report that this possibility cannot be ruled out.Notwithstanding the fact that Sri M.L. Kapoor and Shri P.N. Rastogi have confirmed that they invariably obtained the receipt of the Cashier in the Chaupatia, this is not confirmed by the evidence produced. A pointed reference is invited to pages 36 to 37 of the proceedings.I, therefore, conclude that the sum of Rs. 20,000.00 was misappropriated by Shri M.L. Kapoor and he removed or caused to be removed the Chaupatia back because it was the only record which could prove the misdeeds of Shri Kapoor. It is worth mentioning that Shri Kapoor was aware of the importance of the Chaupatia, book. Moreover, the responsibility for giving full account of the money received by him from the Head Cashier rested with Shri Kapoor and Shri Kapoor only. How could he afford to neglect the' safe custody of the Chaupatia in which he was keeping record of and receipt for the amounts handed over by him to the variouscashiers."
(7) The above said Enquiry Officer, therefore, concluded that the sum of Rs. 20,000.00 was misappropriated by the respondent and that he removed or caused to be removed the Chaupatia book because it was the only book, whichcould prove the misdeeds of the said respondent. The Enquiry Officer further held that the responsibility for giving full account of the money, received byhim, from the Head Cashier rested with the respondent and the defense of the respondent that the procedure followed at Lucknow branch of the bank wasfaulty, which resulted in the misappropriation of the sum of Rs. 20,000.00 wasrejected. The petitioner, vide notice dated 17/01/1973, informed therespondent that it was not expedient to retain him any longer in the bank service but, before a final decision is taken in the matter, the respondent may make further submissions within one week, from the receipt of the saidletter.
(8) The respondent filed a reply to the show-cause notice. The petitioner bank passed the impugned order of dismissal dated 14/05/1973, of therespondent from the service of the bank with immediate effect. Against the order of dismissal dated 14/05/1973, the respondent filed an appeal before the Deputy Secretary and Treasurer on 3/07/1973. The appeal was not entertained as, the same was held to be time barred, in terms of paragraph 521(12) of the Shastry award, as retained vide paragraph 18.23 of the Desai Award.The Union approached the Central Government for reference and Central Government decided not to refer the dispute to the Tribunal on 26/07/1975,on the ground that the same was not fit for reference because the action of the petitioner bank did not appear to be unjustified. However, the worker's Union insisted upon the case being taken up on the ground that there could be threat to the Industrial peace if, no reference was made and thereafter, by an orderdated 10/02/1978, referred the following dispute to the Tribunal : "WHETHER the action of the management of the State Bank of India in dismissing Shri M.L. Kapoor, Cashier in Lucknow branch of the State Bank of India w.e.f. 14.5.73 is justified ? If not, to what relief the workman is entitled to ?"
(9) The Tribunal was pleased to frame the following two issues on 24/01/1980:(i) Whether the dispute has been properly referred ?(ii) As an order of reference.
(10) On 3/04/1980, the following additional issue was framed : "WHETHERthe reference is bad on the grounds in preliminaryobjections".
Thereafter, petitioner filed an application before the Tribunal praying inter-alia,that further preliminary issues may be framed and that the Tribunal be pleaded to first dispose of the preliminary issues. The said application was made on 31/03/1979, and a prayer was made for the following preliminary issues,to be framed: "(I)Whether the domestic enquiry held against the workman is valid and proper.(ii) Whether the workman has right to raise objections about chargesheet and enquiry note taken up in his explanation or during the course of enquiry ?"
(11) After hearing the said application, the Tribunal vide an order dated 12/01/1981, framed the following additional issues : "(I)Whether the enquiry is vitiated as alleged;(ii) Whether the objection regarding invalidity of charge sheet and other defects in the enquiry cannot be taken up by the workman ?'"
The Tribunal passed an order on 12/01/1981, that all these issues be decided together and fixed the case for evidence of petitioner bank in the firstinstance.
(12) The respondent-workman was represented in the proceedings, before the Tribunal, by Shri O.P. Nigam, State President, U.P. Bank EmployeesCongress, as the request of the respondent for being represented through a lawyer was rejected by the Bank and a grouse was made that such rejection was without any justification and the findings of the Enquiry Officer were said to be biased and perverse. It was also pleaded that the bank management was unfair to the respondent because no charge sheet was issued to Shri P.N.Rastogi, who worked on the payment box single handed, as well as, along with Shri Kapoor and who according to the Fir dated 2/01/1969, lodged by the Management, maintained Chaupatia along with Shri Kapoor. The enquiry against Shri Kapoor, held 26 months after the incident, was unfair particularly when the Fir, lodged by the Management, came to nothing. The bank also filed a civil suit in Civil Court, Lucknow where they alleged that the loss ofRs. 20,000.00 was on account of the negligence of three persons, Shri Sohan LalGupta, Shri M.L. Kapoor Cashiers and Shri C.N. Pandey, Head Cashier. The Counsel have informed me that this civil suit has not been finally decided and is still pending. The Management failed to consider the appeal, submitted by ShriKapoor, on the ground, that it was time barred as, there was a delay of onlyone, day and the said delay was said to be in fact, not there when the orders were received on 19/05/1973. The Management reiterated that the action taken against Shri Kapoor was on the basis of proved misconduct, which was proved in a duly conducted domestic enquiry, where every opportunity was given to the workman to prove his innocence. The finding was said to be fair and proper and no interference is called for.
(13) The respondent workman filed his own affidavit and was crossexamined. The management's evidence was also recorded. The following issues were settled on 12/01/1981 : "(A)Whether the enquiry is vitiated as alleged ?(b) Whether the objection regarding invalidity of charge sheet, the objection in the enquiry cannot be taken up by the workman ?(c) Whether the dispute has been properly espoused ?(d) Whether the reference is bad in law in view of preliminary objections of the bank ?(e) As in order of reference."
(14) The Tribunal held that the fault of Shri M.L. Kapoor, about misappropriation of Rs. 20,000.00, had to be proved in enquiry and there was no direct evidence or necessary inference of misappropriation by him. He had already made over the remaining balance with him and with his colleague ShriP.N. Rastogi, the general shortage of Rs. 20,000.00 could not necessarily be attributed to him, and the exercise undertaken by the Enquiry Officer, in these called process of elimination is rather speculative and not based on evidence before him. The Enquiry Officer was wrong when he believed that it was ShriM.L. Kapoor, who did away with the Chaupatia. He was, again on unsure foundation when he held that it was the respondent Shri M.L. Kapoor, who misappropriated the said money when the circumstances and evidence before him were neither compulsive nor overwhelming. The Tribunal further noticed that the Fir, lodged with the police, did not point to Shri M.L. Kapoor as the culprit and the police could not fix liability on him. The management in the civil suit, filed by it, alleged negligence of three persons, Shri M.L.. Kapoor,Shri P.N. Rastogi and Shri C.N. Pandey and not misappropriation by ShriM.L. Kapoor alone. The dismissal of respondent-workman from service of thebank, with effect from 14/05/1973, was held unjustified and the findings of the Enquiry Officer as a consequence were vacated.
(15) Learned Counsel for petitioner has raised the following contentions to assail the impugned order.(a) The Tribunal has exercised jurisdiction, which is not vested in it by law, and the order is liable to be set aside on this ground.Once, an application for leading fresh evidence is made, which has been made in the present case, the Tribunal could not have finally disposed of the matter on merits. It is incumbent that an opportunity ought to have been provided to adduce additional evidence to substantiate the charge of misconduct, by giving specific opportunity, after decision on the preliminary issue,whether the domestic enquiry was at all held, or if held, was defective in favor of the workman.(b) The Tribunal has not at all addressed itself to the question, as contained in the order of reference, made on 10/02/1978, bythe Central Government. There is obvious over-stepping the jurisdiction in this regard also.(c) The Tribunal has no power in law to re-consider and reappraise the evidence. The Enquiry Officer has found as of fact that the charges are proved and the Tribunal cannot interfere with findings as long as, there is some evidence on record and this is nota case of no evidence.(d) There is also non-application of mind, as the Tribunal has not at all considered the case on merits and, whether, it is a case of reinstatement or only compensation. There is obvious error of law and no back wages ought to have been granted and particularly from the period from 26/07/1975, when the reference was refused by the Central Government, in the first instance and 10/02/1978 when the reference was made.(e) Once the bank has lost confidence in employee, who was discharging office of trust, the Tribunal erred in granting the relief of re-instatement, which cannot be a proper relief in the circumstances of the present case.
(16) Learned Counsel for the petitioner has placed strong reliance onthe judgment of the Hon'ble Supreme Court in Cooper Engineering Limited v.Shri P.P. Mundhe, , for the proposition that when a case of dismissal or discharge of an employee is referred for industrial adjudication, the Labour Court should first decide, as a preliminary issue, whether the domestic enquiry has violated the principles of natural justice. When, the matter is in controversy between the parties, that question must be decided as a preliminaryissue. The Supreme Court considered the law, with regard to this propositionand. concluded as follows : "WEare, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice.When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide, whether, it will adduce any evidence before the labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue.We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the finalaward. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."
(17) Reference may be made to the provisions of Section 11 A, which deals with the powers of the Labour Courts, for adjudication with regard to the disputes, relating to discharge or dismissal of a workman on a reference,made by the Government. The principle of this provision of law has been aptly explained in the judgment of the Supreme Court in The Workmen of M/s Firestone Tyre and Rubber Co .of India (Pvt.) Ltd. v. The Management and Others, . The following passages may be reproduced in this regard: "THE legislature in Section 11-A has made a departure in certain,respects in the law as laid down by this Court. For the first time power has been given to a Tribunal to satisfy itself whether misconduct is proved. This is particularly so, as already pointed out byus, regarding even findings arrived at by an employer in an enquiry properly held. The Tribunal has also been given power, also forthe first time, to interfere with the punishment imposed by anemployer. When such wide powers have been now conferred onTribunals, the legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account Such restrictions are found in the Proviso. The Proviso only emphasises that the Tribunal has to satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workmen only on the basis of the 'materials ion record' beforeit. What those materials comprise of have been mentioned earlier.The Tribunal for the purposes referred to above, cannot call for further or fresh evidence, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body. The 'matter'in the Proviso refers to the order of discharge of dismissal that is being considered by the Tribunal.It is to be noted that an application made by an employer under Section 33(1) for permission or Section 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions. No change has been effected in the Section by the Amendment Act. It has been held by this Court that evenin cases where no enquiry has been held by an employer before passing an order of dismissal or discharge, it is open to him to adduce evidence for the first time before the Tribunal. Though the Tribunal is exercising only a very limited jurisdiction, under this Section nevertheless, it would have applied its mind before giving permission or approval. Section 33 only poses a ban. An order of" dismissal or discharge passed even with the permission or approval of the Tribunal can form the subject of a dispute and as such referred for adjudication. Quite naturally, when the dispute is beingadjudicated, the employer will rely upon the proceedings that were already held before a Tribunal under Section 33. They will form part of the materials on record before the Tribunal. The contention of Mr. Deshmukh, that if no enquiry is held, the order of dismissal will have to be set aside, if accepted, will lead to very incongruousresults. The Tribunal would have allowed an employer to adduce evidence before it in proceedings under Section 33 for the first time,even though no domestic enquiry had been held. If it is held that another Tribunal, which adjudicates the main dispute, has to ignore those proceedings and straight way order reinstatement on the ground that no domestic enquiry had been held by an employer,it will lead to very starting reasults. Therefore, an attempt must be made to construe Section 11-A in a reasonable manner. This is another reason for holding that the right to adduce evidence for the first time recognised in an employer, has not been disturbed by Section11-A".
(18) Reference is made to M/s. Lakshmiratan Cotton Mills Co. Ltd. v. It s Workmen (1975) 2 Supreme Court Cases 761, to support the proposition "that even where it is found that the domestic enquiry held by the employers is due to some omission or deficiency, not valid, the employer can nonetheless support the order of dismissal by producing satisfactory evidence and provingmisconduct, when the dispute arising out of the order of dismissal is referred to industrial adjudication. Reference herein may be made to paragraph 11 ofthe said judgment in this regard, on which strong reliance is placed by learned Counsel for petitioner, which reads as follows : "BUT that does not mean that the workmen are entitled to succeed in the reference. It is now well settled as a result of several decisions of this Court, of which we may mention only two, namely,Oriental Textile Finishing Mills, Amritsar v. Labour Court, Jallundur and Delhi Cloth & General Mills Co. v. Ludh Budh Singh, that even where it is found that the domestic enquiry held by the employer is due to some omission or deficiency, not valid, the employer can nonetheless support the order of dismissal by producing satisfactory evidence and proving misconduct, when the dispute arising out ofthe order of dismissal is referred to industrial adjudication. This Court pointed out in Oriental Textile Finishing Mills, Amritsar v.Labour Court, Jallundur (supra) that in such cases the evidence which is produced to substantiate and justify the action taken against the workmen is not as stringent as that which is required in a Court of law.What is required is "that the evidence should be such as would satisfy theTribunal that the order of termination is proper". It was for this reason that in the present case the appellant made the application dated 12/03/1973 praying that if for any reason the Industrial Tribunal was inclined to take the view that the domestic enquiry held by the appellant was improper or not according to law, the appellant should be given an opportunity to prove its case on merits and for that purpose file and prove additional documents.This was clearly a request to the Industrial Tribunal to try the issue as to the validity of the domestic enquiry as a preliminary issue and if the finding on this preliminary issue was against the appellant, to give an opportunity to the appellant to adduce evidence for the purpose of establishing that the orders ofdismissal were justified. Now, the question as to what is the procedure to be followed by the Industrial Tribunal when such a request is made by theemployer, came up for consideration before this Court in Delhi Cloth & General Mills Co. v. Ludh Budh Singh. (supra). This Court, after discussing the previous on the subject, culled out certain principles which, according to it,emerged from a consideration of these decisions. These principles were formulated in the form of seven propositions and of them, the fourth and fifth propositions are material for our purpose :(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domesticenquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal,, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under suchcircumstances, it is open to the Tribunal to deal in the first instance as a preliminary issue the validity of the domesticinquiry. If its finding on the preliminary issue is in favor ofthe management, then no additional evidence need be cited bythe managment. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give opportunity the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic tribunal being accepted as pirma facie proof of the alleged misconduct.On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that thetribunal should refuse to take evidence and thereby, ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of theTribunal itself being satisfied, on evidence adduced before it,that be was not guilty of the alleged misconduct.(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management before the proceedings are closed,the employer can make no grievances that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether theproceedings have been held properly and the findings recorded there in are also proper."
(19) In State of Haryana and Another v. Rattan Singh, , it has been held that in a domestic inquiry strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. The absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law, apparent on the face of therecord.
(20) In Shankar Chakravarti v. Brittania Biscuit Co. Ltd. & Another , the Hon'ble Supreme court considered the law on thesubject, with regard to the proposition, whether duty was caused on the Industrial Tribunal while adjudicating upon .a penal termination of service ofa workman, either under Section 10 or under Section 22 to called upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminaryissue, whether the domestic enquiry was at all held, or if held, was defective in favor of the workman. It was reiterated in this case that Cooper engineering Limited (supra) case is not an authority for the proposition that every case coming before the Labour Court or Industrial Tribunal, complaining about the punitive termination of service, following a domestic enquiry that the Court orTribunal, as a matter of law, must frame a preliminary issue and proceed to decide the validity or otherwise of the enquiry and then serve a fresh notice onthe employer to adduce further evidence to sustain the charges, if it so chooses to do. Cooper Engineering Limited (supra) case merely specifies stage, at which such an opportunity is to be given, if sought. It is both the right and obligation of the employer, if it so chooses to adduce additional evidence to substantiate the charges of misconduct. Reference may be made to the following conclusions of the Court, in which the entire law has been considered : "IT was contended that this Court has in unambiguous and incontrovertible terms laid down that there is an obligatory duty in law fastened on the Labour Court or the Industrial Tribunal dealing with a case of punitive termination of service either under section 10 or Section 33 of the Act, irrespective of the fact whether there is any such request to that effect or not, to raise a preliminary issue as to whether domestic enquiry alleged to have been held bythe employer is proper or defective and then record a formal finding on it and if the finding is in favor of the workman the employer should be called upon which must demonstrate on record, without waiting for any such request or demand or pleading from theemployer, to adduce further evidence to sustain the charge of misconduct if it so chooses to do. We are afraid that much is being read into the observation of this Court which is not either expressly or by necessary implication stated. There is nothing to suggest that- in Cooper Engineering Limited case this Court specifically overruled the decision in R.K. Jain's case where the Court in terms negatived the contention of the employer that there is an obligatory duty in law on the Labour Court or the Industrial Tribunal to give anopportunity to the employer irrespective of the fact whether it is asked for or not to adduce additional evidence after recording a finding on the preliminary issue that either no domestic enquiry was held or the one held was defective. It would be advantageous to refer to an observation of this Court in Delhi Cloth & General Mills.Co. case at page 53 where after examining the ratio of the decision in R.K. Jain's case this Court held that there was no question of opportunity to adduce evidence having been denied by the Tribunal as the appellant therein had made no such request and that the contention that the Tribunal should have given an opportunity suomotu to adduce evidence was not accepted in the circumstances of that case. This observation in fact rejects the contention that there is any such obligatory duty cast by law on the Labour Court or the Industrial Tribunal to give such an opportunity to theemployer and then leave it to the sweet will of the employer either to avail it or not. This view in R.K. Jain's case was re-affirmed in Delhi Cloth & General Mills Co. case and there is nothing in the.decision in Cooper Engineering Ltd. that case that case overrules the two earlier decisions. It was not possible so to do because the decision in the Management of Ritz Theatre wherein even though the application for adducing additional evidence was given before theTribunal passed its final order, this Court declined to interfere saying that such a request was made at a very late stage and that is the decision of three Judges and the decision in Cooper Engineering Ltd.case is equally a decision of three judges. Further, the decision in Cooper Engineering Ltd. case does not propose to depart from the ratio of the earlier decisions because this Court merely posed a question to itself as to what is the appropriate stage at which the opportunity has to be given to the employer to adduce additionalevidence, if it so chooses to do. Merely the stage is indicated,namely, the stage after decision on the preliminary issue about thevalidity of the enquiry. Cooper Engineering Ltd. case is not an authority for the proposition in every case coming before the LabourCourt or Industrial Tribunal under Section 10 or Section 3 3 of the Act complaining about the punitive termination of service following a domestic enquiry that the Court or Tribunal as a matter of law must first frame a preliminary issue and proceed to decide thevalidity or otherwise of the enquiry and then serve a fresh notice on the employer by calling upon the employer to adduce further evidence to sustain the charges if it so chooses to do. No Section ofthe Act or the Rules framed there under was read to pin point such an obligatory duty in law upon the Labour Court or the IndustrialTribunal. No decision was relied upon to show that such is the duty of the Labour Court or the Industrial Tribunal. No decision was relied upon to show that such is the duty of the Labour Court or theIndustrial Tribunal. This Court merely indicated the stage, where such opportunity should be given meaning thereby if and when it issought. This reading of the decision in Cooper Engineering Ltd.case is consistent with the decision in Ritz Theatre case because there as the application for permission to adduce additionalevidence was made at a late stage the Tribunal rejected it and this Court declined to interfere. Now, if the ratio of the Cooper Engineering Ltd. case is to be read to the effect that in every case as therein indicated it is an obligatory duty of the Industrial Tribunal or the Labour Court to give an opportunity after, recording the finding on the preliminary issue adverse to theemployer to adduce additional evidence it would run counter tothe decision in Ritz Theatre case. Such is not the ratio in CooperEngineering case. When read in the context of the propositions called out in Delhi Cloth & General Mills Co. case and the Firestone Tyre & Rubber Co. of India (P) Ltd. case, the decision in CooperEngineering Ltd. case merely indicates the stage at which an opportunity is to be given but it must not be overlooked that the opportunity has to be asked for. . Earlier clear cut pronouncements of the Court in R.K. Join's case and Delhi Cloth & General A fills Co. case that this right to adduce additional evidence is a right of themanagement or the employer and it is to be availed of by a request at appropriate stage and there is no duty in law cast on the Industrial Tribunal or the Labour Court to give such an opportunity notwithstanding the fact that none was ever asked for are not even departed from. When we examine the matter on principle we would point out that a quasi-judicial Tribunal is under no such obligation to acquaint parties appearing before it about their rights more so in an adversary system which these quasi-judicial Tribunals have adopted. Therefore, it is crystal clear that the rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under section 10 or Section 33 of the Act questioning the legality of the order terminating service must be availed of by the employer bymaking a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take a certain action or seeking approval of the actiontaken by it. If such a request is made in the statement of claim,application or written statement, the Labour Court or the Industrial Tribunal must give such an opportunity, of the request is made before the proceedings are concluded the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduceevidence. But, if no such request is made at any stage of the proceedings, there is no duty in law cast on the Labour Court or theIndustrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings".
(21) Reference is made to the application, made by the petitioner on 31/03/1979, before the Industrial Tribunal, where it was prayed that the following preliminary issues may also be framed, in addition to otherssues: "(I)Whether the domestic enquiry held against the workman is valid and proper.(ii) Whether the workman has right to raise objections about charge sheet and enquiry note taken up in his explanation or duringthe course of enquiry."
(22) It is also reiterated that the specific opportunity was asked for, by moving the further application on 27/08/1983. It was prayed in the said application that the Hon'ble Court may kindly decide the preliminary issue, asto the validity of the enquiry, held against the workman. In case, the enquiry was found to be defective, an opportunity may kindly be awarded to the Bank management to lead evidence and prove the charges. It is contended that once such a prayer is made, it is mandatory requirement of law that such an application must be disposed of and failure to do so in the present case. has resulted in the exercise of jurisdiction by the Tribunal, which is not vested in law.
(23) Learned Counsel for the respondent has argued that the first application, made by the petitioner Bank, was neither on record nor the same waspressed. The second application, made as late as 1983, was also not pressed and it was not incumbent and obligatory on the Tribunal to decide such applications which were not pressed. Reliance is placed on the judgment of the Supreme Court in Shankar Chakravarti's case (supra) where the Supreme Court has held that if, the request is made before the proceedings are concluded, the LabourCourt or the Industrial Tribunal should ordinarily grant opportunity to adduceevidence but, if no such request is made at any stage of the proceedings, there is no duty in law cast on the Labour Court to give such an opportunity and the failure to give any such opportunity cannot and would not vitiate the proceedings. The Counsel has referred to the fact that the petitioner Bank, in anycase, was provided with number of opportunities but it did not avail of such an opportunity. On the application of the petitioner, theTribunal passed an order on 21/01/1984, to the effect that it would be appropriate to decide all these issues together and, therefore, let the case be put up for evidence of bank in the first instance to produce the inquiry report and proceedings to come up on 3.3.1981 at Varanasi.
(24) The petitioner Bank was, therefore, fully aware that all the issues were to be decided together and there was no occasion to first decide the case on the basis of the preliminary issue, which has now been sought to be raised in the present case. In Sambhunath Goyal v. Bank of Baroda and Others, 1983volume 16 Labour & Industrial Cases, page 1697, the Supreme Court held thatthe application of the management to seek the permission of the Labour or Industrial Tribunal, for availing the right to adduce further evidence, to substantiate the charge or charges framed against the workman, is the application.which may be filed by the management during the pendency of its application,made before the Labour Court or Industrial Tribunal, seeking its permission under Section 33 of the Industrial Disputes Act, to take a certain action or to grant approval of the action taken by it. If the management chooses to exercise its right, it must make up its mind at the earlier stage and file the application for that purpose without any unreasonable delay. In the present case, the first application was alleged to be made on 31/03/1979, which only indicated the framing of the preliminary issues and no specific prayer was made for anopportunity to adduce additional evidence. The second application is dated 27/08/1983, which for the first time, prayed that in case, the enquiry was found to be defective, an opportunity may kindly be awarded to the BankManagement to lead evidence and prove the charges before the Court. The incident took place on 1/01/1969, and the petitioner initiated disciplinary proceedings by serving charge sheet on the respondent on 20/05/1970,and as a consequence of the enquiry report, the petitioner was dismissed from service on 14/05/1973. The substantive application was made on 27/08/1983. nearly 10 years after the workman had been dismissed from service and after more than 5 years of the reference of the disputes to the. IndustrialTribunal. There is another point that even assuming, the application was made within a reasonable time, would it not be the duty of the management to pursue the said application and" invite decision on the same. The management took no objection of Tribunal's disposing of all the issues together and for fixing the date for evidence of the Bank in this regard.
(25) Reference may also be made to the judgment of Division Bench of this Court in Management of Delhi Transport Corporation New Delhi v.Ram Kumar and Another, 1982 Labour Industrial Cases, 1378, which reiterated the position of law that the Management must ask for an opportunity to adduce additional evidence before the Labour Court seeking to justify the order of discharge or dismissal. There is no obligation or duty cast on the labourCourt suomotu to call upon the management to adduce additional evidence, to substantiate the charge. Therefore, if no pleading to adduce additional evidence is put forth at the initial 'stage or during the pendency of the proceedings,failure of the Labour Court to give such an opportunity will not vitiate theproceedings.
(26) There is nothing on record to indicate that a specific pleading ora specific request was made by the petitioner bank for grant of opportunity to lead additional evidence and in any case, such a request was not made duringthe pendency of the proceedings and a bare application, which is now sought to be relied upon was made, as far late as in August, 1983, and there is "no indication to suggest that this application was ever pressed before the Tribunal despite the fact that the petitioner Bank was duly represented during- the proceedings.
(27) The Counsel for the respondent has further argued that in anycase, the opportunity was granted to the petitioner and detailed affidavit of Shri S.A. Farooqi, Officer-in-charge, State Bank of India, Disciplinary cases cell,Kanpur Local Head Office, was placed before the Industrial Tribunal and formed part of the record of the case. Further-more, the respondent was cross-examined and it was not necessary to grant any further opportunity and there has been proper compliance of law. There is force in this contention of theCounsel as, admittedly the said affidavit was filed and the respondent was 'cross-examined. It was not necessary to grant further opportunity to the petitioner Bank and the matter was unduly delayed and the respondent had been dismissed from the service of the bank as far back as 14/05/1973.
(28) The Tribunal proceeded to dispose of the matter in-the presence..:..of the parties and their representatives. There is no indication even in the impugned award of 7/05/1984, that the above said application was pressed and even argued.
(29) The second contention that the Tribunal has not at all addressed itself to the question, as formulated in the order of reference. The finding thatthere is no direct evidence of misappropriation has been assailed on the ground that there cannot be any direct evidence. The Enquiry Officer has found as offact, that charge is proved and as long as there is some evidence on record, theTribunal cannot interfere with the findings, as recorded by the Enquiry Officer.Reference is made to the judgment of the Supreme Court in Union of India v. Sardar Bahadur (1972) 4 Supreme Court Cases 618, wherein it has been reiterated that a disciplinary proceeding is not' a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. Learned Counsel for respondent has sought reliance from the specific provisions of Section 11A of the Industrial Disputes Act and has argued thatthe Labour Court can sit as an appellate Court and come to the conclusion .,.whether, the charges against the workman are proved or not. This provision of" law amply gives such powers to the Tribunal.
(30) Reference is made to the following paragraphs in the judgment ofthe Supreme Court in The Workmen of Firestone Tyre & Rubber Co. of India(Pvt.) Ltd. v. The Management and Others, 1973 Vol. 1 L.L.J. 278 : "REGARDING Section 11A, in the statement of objects and reasons it is stated as follows :"In Indian Iron and Steel Company Limited and Another v. Their , (1958 (1) Llj 260) Air 1958 S.C. 130 at 138, the Supreme Court, While considering the Tribunal's Power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, has observed that in case of dismissal onmisconduct, the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and 'hat the ' 'Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of themanagement.The International Labour Organisation, in its recommendation(No. 119) concerning termination of employment at the initiative ofthe 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 the other circumstances relating to the cause and to render a decision on the justification of the termination. The International Labour Organisation has further recommended that the neutral body should be empowered (if it finds that the termination of employment wasunjustified) 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 thatthe Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and thatthe 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 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. For this purpose, a new Section 11 A is proposed to be inserted in the Industrial Disputes Act, 1947..." "WE will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one orother infirmities pointed out by this Court in Indian Iron & Steel Co.,Ltd. (supra) existed. The conduct of disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has now been changed by Section 11 A. The words "in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicates that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by theTribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron& Steel Co. Ltd. case (supra) can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so, and now it is the satisfaction of the. Tribunal that finally decides the matter".
(31) The facts of the present case would clearly establish that theTribunal has given sound reasons to interfere with the findings of the Enquiry Officer and has acted within jurisdiction. The Enquiry Officer arrived at the findings against the respondents by process of elimination and no cogent mate- r- trial was placed on record, which would justify non-interference by the Tribunal.The Tribunal further noted that the Enquiry Officer strongly relied upon the duty of the respondent no. 2, in respect of safe custody of the Choupatia, inwhich he kept record of receipt of the amounts, handed over by him to the various Cashiers. It was be noted that the balance amount with him had already been given to the Head Cashier and the Choupatia, shown to the Head Cashier,and it was only thereafter that general shortage of the amount was detected. Itwas also in evidence that Choupatia remained at a place, where it was accessible to others also and there was no instructions or Rules about the safeguarding ofChoupatia, as a valuable document. The inference drawn against the respondent, therefore, had to be proved and there was no direct evidence of misappropriation by him.
(32) The Fir, lodged with the police, did not point out to the respect as the sole culprit. The police could not 'fix liability on him and the management in the civil suit, filed by it, alleged negligence of three per sons, respondent Shri M.L. Kapoor,ShriP.N. Rastogi and Shri C.N. Pandey and not mis appropriation by Shri M.L. Kapoor alone. The impugned inquiry was initiated against the respondent and another Cashier Shri S.L. Gupta, and the respondent was the only employee who was dismissed. The petitioner has not given any reasons for not proceeding against .the other persons. The Civil Suit remains pending, as stated by the Counsel.
(33) The Tribunal has given sound reasons to interfere with the findings of the Enquiry Officer and has acted within jurisdiction and there is no scope for interference under Article 226 of the Constitution of India.
(34) The next contention, which is sought to be raised by the petitioner Bank is that once the Bank lost confidence in employee, who was discharging,official trust, there was no question of his reinstatement The Tribunal hastherefore, not considered, whether the reinstatement of the respondent will be aproper relief. It has further been reiterated that no back wages ought to have been granted and particularly from the period 26/07/1975. when the referencewas refused by the Central Government to 10/02/1978, when the reference was actually made.
(35) Learned Counsel for the respondent, on the other hand, has argued that the plea of loss of confidence has to be specifically pleaded and there must be evidence on record in this regard.
(36) In M/s. Tulsidas Paul v. The Second Labour Court, W.B. and Others, 1971 Vol. I Labour Law Journal 526, the Supreme Court held that in exercise of its jurisdiction under Article 226, the ! High Court does not sit asa Court of Appeal over the orders of Industrial Tribunals. Its jurisdiction is supervisory and, therefore, it interferes if, the jurisdiction conferred on suchTribunals, is exercised improperly or non compliance of well established principles, or for any such other reason. The Court further considered the discretion of the Industrial Tribunals to award compensation in lieu of his reinstatement.The following paragraph may be quoted in this context : "INM/s. Hindustan Steel Ltd. v. Roy, (1969) 3 S.C. cases 513,we recently held, after considering the previous case law, that though the normal rule, in cases where dismissal or removal from service is found to be unjustified is reinstatement, industrial tribunals have the discretion to award compensation in unusual or exceptional circumstances where the Tribunal consider, on consideration of the conflicting claims of the employer on the one hand and of the workmen on the other, reinstatement is inexpedient or not desirable. We also held that no hard and fast rule as to which circumstances would constitute an exception to the general rule can be laid down as thetribunal in each case must, in a spirit of fairness and justice and in keeping with the objectives of industrial adjudication, decide whether it should, in the interest of justice, depart from the general rule".
(37) In Management of Delhi Transport Corporation, New Delhi (supra),the Division Bench of this Court dealt with a precise question that, whether even after setting aside the order of dismissal, the relief of reinstatement should not have been allowed. The following passage was also quoted with approval from the judgment of the Supreme Court in Hindustan Tin Works v. Its Employees, : "IT is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine and contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt this branch of law. The relief of reinstatement with continuty of service can be granted where termination of service is found to be invalid."
The Division Bench of the Court held that the ipse dixit of the management that it has lost confidence in the workman is not a mantra or charm.that it can be used at management's pleasure to deny the normal relief ofreinstatement to a workman, even when the dismissal is found to be unjustified.The plea of loss of confidence must have some rational relations to a fact that employee had misused its position of trust and rendered it undesirable to retain him in service. The facts of this case clearly indicate that the charges of misappropriation against the respondent have been sought to be proved on the conjectural basis and by process of elimination, as held by the Tribunal. The First Information Report was lodged against other persons, as well as, a civil suit was filed against them and the respondent has been singled out for the present treatment by the petitioner Bank, for the reasons best known to it.
(38) In Surendra Kumar Verma and Others v. Central Government Industrial Tribunal, New Delhi l981 V ol. 1 Labour Law Journal 386 the SupremeCourt held .as follows: "PLAIN common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement in the services of the workman. It is as if the order has never been and so it must ordinarily lead to back wages also. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and the workman to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workman concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make consequential orders".
The discretion certainly is vested with the employer that exceptionalcircumstances exist, which make it impossible for the employer to reinstate the employee with full back wages. The said plea has, however, not been specifically taken or urged before the Tribunal. Therefore, the plea cannot be used at this belated stage to deny the workman the normal relief of reinstatement with full back wages and particularly in the absence of any finding in this regard.
(39) The writ petition, as a consequence, is dismissed and the Rule isdischarged. There shall be no order as to costs.