Karnataka High Court
N.R. Dhananjayan vs The Management Of Indian Overseas Bank ... on 10 February, 2006
Equivalent citations: ILR2006KAR1488, 2006(2)KARLJ350, (2006)IIILLJ45KANT, 2006 LAB. I. C. 1701, 2006 (2) AJHAR (NOC) 479 (KAR), 2006 (3) ALL LJ NOC 569, 2006 (3) ABR (NOC) 537 (KAR), 2006 (2) AIR KANT HCR 640, (2006) 109 FACLR 682, (2006) 2 KANT LJ 350, 2006 LABLR 726, (2006) 6 SERVLR 485, (2006) 2 KCCR 921, (2006) 2 CURLR 60
Author: R. Gururajan
Bench: R. Gururajan, C.R. Kumaraswamy
JUDGMENT R. Gururajan, J.
1. Both these appeals are directed against the order of the learned Single Judge dated 30-11-2000 passed in W.P, No. 2781 of 1998.
2. Petitioner-workman in W.P. No. 2781 of 1998 joined the services of the Indian Overseas Bank in 1973. He belonged to clerical cadre. Promotion was due to him during December 1985. But he was not promoted on the alleged ground that disciplinary proceedings were initiated against him. He was issued with a charge-sheet dated 16-11-1985 and an additional charge-sheet was also issued on 18-11-1986. It was alleged in the charge-sheet that the petitioner received on various dates cash from several borrowers of the Branch totalling to Rs. 5,190/- which he had acknowledged in the cards/counterfoils given to the borrowers and that it was never credited to their accounts in the Branch books and thus he misappropriated the said amount. The other allegations made against the petitioner were that on several instances, he received money from various customers and he had acknowledged in the cards given to them but accounted for the same after several days. Enquiry was conducted. According to the petitioner/appellant rules of natural justice was violated in terms of the pleadings. He was denied reasonable opportunity in the matter. Bank completed the enquiry proceedings. Report was obtained. Dismissal order followed. Dismissal was challenged before the Labour Court. Parties entered appearance. Statements were filed. Evidence was recorded. Enquiry was held to be fair and proper. A Writ Petition No. 1736 of 1989 was filed by the petitioner/appellant challenging the D.E. order and this Court rejected the petition leaving open all the contentions to be challenged at a latter date if necessary in terms of an order dated 30-11-2000, Thereafter the matter was heard on merits by the Labour Court and after hearing the Labour Court has chosen to accept dismissal in terms of the award. This award was challenged in W.P. No, 2781 of 1998. Matter was heard by the learned Single Judge. After healing, learned Single Judge has chosen to grant three years salary in terras of the order. Aggrieved by this order, both the management as well as the workman are before this Court by way of these appeals.
3. Heard Sri K. Subba Rao, learned Senior Counsel, appearing for the workman. He would take us through the proceedings to say that the enquiry was conducted in a very hasty manner. He would refer to the material on record to say that the Enquiry Officer has taken not only the role of an adjudicator but also the role of prosecuting agency in terms of his conduct in this case. He would object to the conduct of the Enquiry Officer with regard to examining and cross-examining of the witnesses in terms of the pleadings. He would further elaborate that the learned Single Judge has virtually accepted the plea of the workman regarding defective enquiry and despite accepting the same according to the learned Counsel, learned Judge had committed a serious error of law in granting only three years salary in terms of the findings. He therefore wants an interference in these appeals. Per contra, Mrs. Kasturi, learned Counsel would argue that the workman has virtually admitted the charges and that therefore no further enquiry is necessary. She would support the order and would say that justice has been done to the workmen.
4. After hearing we have carefully perused the material on record.
Material on record would reveal of 12 charges against the appellant. An enquiry was conducted by the management. Appellant denied the charges. Enquiry was held on several sittings. Management, for the reasons best known to it, has not chosen to appoint a presenting officer to conduct its case. The enquiry was conducted in the absence of the presenting officer. The complaint is that the Enquiry Officer has assumed the role of the presenting officer in the case on hand. In the light of this complaint we have once again gone through the proceedings of the enquiry in the matter.
5. From the enquiry proceedings it is seen that on 17-3-1986, a specific question was put by the Enquiry Officer with regard to the charges in the matter. The workman has denied the charges. The Enquiry Officer has called the management witnesses on the said date. He has asked M.W. 1 as to why he had come over to the Branch. M.W. 1 has answered. Thereafter, at page No. 4 enquiry officer says that his examination-in-chief is over. Workman cross-examined M.W. 1. In the course of the proceedings, the defence has sought for the original complaint as the same is marked as M.E. 5. On the same day Enquiry Officer says that he is introducing M.W. 2, While examine M.W. 2, Enquiry Officer has posed the following questions:
(1) Please explain what do you mean by cards?
(2) Who issues these cards?
(3) What is the authority for issuing the cards in the branch i.e., whether there is any control for the issue of cards? (4) Have you obtained cards of the borrower your name above if so please present the same? (5) Please state the name of the officer who issued the cards? (6) Can you tell me the name of the person who has written these cards and vouchers?
6. He goes on putting several questions and ultimately he says at page 13 that his examination-in-chief is over. He was cross-examined by the workman. Thereafter, the Enquiry Officer shows M.E. 6 and asks him in whose handwriting it is. Similarly he posed three other questions and ultimately he says that his clarification is over.
7. On 18-3-1986 Enquiry Officer says that he introduces M.W. 3. He was cross-examined by the workman. On 22-9-1986, Enquiry Officer introduces M.W. 4, M.W. 5, M.W. 6, M.W. 7, M.W. 8, M.W. 9, M.W. 10 to M.W. 15. These witnesses were cross-examined by the workman. From a reading of the entire proceedings what is clear to us is that the Enquiry Officer seemed to be under the impression that he was representing the management as is evident from these proceedings. The way in which the proceedings were conducted by the Enquiry Officer and the way in which the questions were posed by him, witnesses were examined prove in unmistakable terms that the Enquiry Officer has assumed the role of a prosecutor and a Judge in the case on hand. Law is fairly well-settled that the Enquiry Officer can only seek clarification. Clarification has to be a real clarification in the real sense but not examination-in-Chief/cross-examination etc., as is done in the present case.
8. Unfortunately, the Labour Court has not chosen to consider this aspect of the matter in a manner known to law. Learned Single Judge after referring to these material facts and several case-laws has come to a categorical conclusion that the enquiry in question thus stand vitiated in terms of his finding in para 4 of the impugned order. We are satisfied that the order of the learned Single Judge with regard to vitiation of enquiry proceedings has to be accepted in this appeal on the facts of this case.
9. Having come to this conclusion, we have to see as to whether the learned Single Judge is justified in only granting three years salary in terms of his finding in para 9 of the impugned order. Law is fairly well-settled that once the enquiry is found to be defective, the management can prove its case by leading evidence subject to a request in this regard. In fact in the case on hand, fortunately the management has chosen to plead in the written statement itself in terms of its contention in para 25 of the counter-statement.
10. Learned Judge having coming to the conclusion has chosen to say that the record contained almost tacit admission in terms of his findings in para 5 of the judgment. In fact the very first day, the workman has denied the charges. Even for the sake of arguments if it is accepted that there is tacit admission, with reference to the pleadings, evidence and the material on record, it is not the case of the management that the dismissal is on account of admission on the part of the workman. As a matter of fact, the management in the light of denial of charges has chosen to examine 12 witnesses in support of its stand in the matter.
11. Even before us learned Counsel for the management is unable to show from the records that there is any admission as held by the learned Judge. In these circumstances, we are satisfied that the learned Judge having come to a conclusion that the enquiry has been vitiated could not have granted only compensation in the case on hand on the ground of the tacit admission. Any dismissal order of the workman would virtually amount to economic death and if the workman is really guilty he has to be shown the door and at the same time if he is not guilty, he is entitled for all the benefits in the light of the dismissal being bad in law in terms of the findings of the learned Counsel. Labour Court however can mould the relief in terms of the power conferred under Section 11-A of the Act. Writ Court can mould the relief in terms of its constitutional power but that has to be with reference to the pleadings, evidence and the acceptable material as otherwise, the workman is deprived of his rightful share for no fault of his. In the case on hand, in the light of the defective enquiry and in the absence of any admission as such we are inclined to accept the appeal filed by the workman in the case on hand and reject the appeal filed by the management. In fact this Court adjourned the matter for some time hoping that the parties would come to a settlement in the light of the long delay involved in the case on hand. Unfortunately, the parties for the reason best known to them, could not settle the matter amicably, compelling us to pass this order in the case on hand. Management as we mentioned earlier has chosen to take a plea of leading evidence on merits. In these circumstances, the matter has to go back to the Labour Court for leading evidence on merits in the light of our finding with regard to defence enquiry in this appeal. In the result, the W.A. No. 3091 of 2001 filed by the workman is accepted and W.A. No. 1884 of 2001 filed by the management is rejected.
12. The order of the learned Single Judge insofar as vitiation of enquiry is accepted and the order of the learned Single Judge insofar as it relates to granting three years salary is set aside. Matter is remitted back to Labour Court for redecision on merits. Parties are to appear without waiting for any notice on 21-3-2006 before the Labour Court. The Labour Court is directed to complete the proceedings within six months in the light of the age of the case without in any way being influenced by the earlier award/order of the learned Single Judge or this order.
Ordered accordingly. No costs.