Gujarat High Court
Manager vs Pradipkumar on 13 May, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/8588/2009 2/ 41 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8588 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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MANAGER
- Petitioner(s)
Versus
PRADIPKUMAR
SHANTILAL SHAH - Respondent(s)
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Appearance
:
MR
SJ SHAH for
Petitioner(s) : 1,MR ND SONGARA for Petitioner(s) : 1,
Mr MS
MANSURI FOR MS HINA DESAI for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 13/05/2010
ORAL
JUDGMENT
1. Heard learned advocate Mr.S.J.Shah for petitioner bank and learned advocate Mr.Mansuri for learned advocate Ms.Hina Desai on behalf of respondent workman.
2. The petitioner Vardhman Co-operative Bank Ltd. has challenged order passed by Labour Court, Baroda in T. Application No.3 of 2002 decided on 29.12.2007 wherein Labour Court has granted reinstatement with 35% back wages of interim period as well as the order passed by Industrial Court, Baroda in Appeal No.2 of 2008 decided on 29.4.2009.
3. The respondent workman was dismissed from service on 18.6.2002 by petitioner Bank. The petitioner bank is governed by the provisions of Bombay Industrial Relations Act, 1946 (for short the Act ). The respondent was working as a Peon since 1985 and his service was terminated on 18.6.2002 because of loss of confidence.
4. Learned advocate Mr.Shah has relied upon order of termination dated 18.6.2002 (Page-14 and 15) where at the time of termination one month's notice pay was paid of Rs.9101/- to the concerned workman. This order of termination dated 18.6.2002 challenged by workman before Labour Court, Baroda in T. Application No.3 of 2002 filed under Sections 78 / 79 of the Act. Against this application, reply was filed by petitioner bank where in Para.8 a specific averments made by petitioner bank before Labour Court for giving permission to petitioner bank to establish misconduct against respondent in case of no enquiry or defective enquiry, the Apex Court has decided that employer is entitled to prove the misconduct before concerned Labour Court. Similar averments made in Para.9 of reply that such opportunity may be given to petitioner to prove the misconduct before Labour Court. Learned advocate Mr.Shah relied upon copy of FIR (Page-25) filed against respondent workman Shri Pradipkumar Shantilal Shah, who is one of the accused out of 14 accused with other persons from public. The offence registered against present respondent under Sections 395, 143, 336, 353, 186 and 188 of IPC and Section 135 of the Arms Act. This FIR is dated 1.5.2002. Relying upon said FIR, Mr.Shah submitted that involvement of the present respondent workman in riots in Baroda city adversely affect the prestige of petitioner bank and therefore, keeping in mind these facts, the bank has lost confidence from respondent and therefore, order of termination was passed on 18.6.2002 on the ground of involvement in criminal offence as well as mis-behaviour with co-employees and customers and also with Directors and for that, number of complaints received by petitioner bank against respondent which amounts to serious misconduct as well as remaining on leave without getting permission in advance, that also considered to be a serious misconduct. Mr.Shah has also relied upon evidence of workman (Page-28) and the finding given by Labour Court is at Page-33 to 59 and thereafter, Labour Court has granted relief in favour of respondent workman. Against which, petitioner preferred an appeal which was dismissed. The copy of order of Industrial Court, Baroda is at Page-66 to 81 and appeal preferred by petitioner is at Page-60. Against both the orders, present petition is filed.
5. At this stage, it is necessary to note that in FIR, which was filed against present respondent, he has been declared acquittal by competent Criminal Court. That judgment is given by FTC-2, Baroda in Sessions Case No.217 of 2004 (Page-86) dated 12.12.2005. But, learned advocate Mr.Shah submitted that FTC-2, Baroda has declared acquittal to present respondent on the ground of benefit of doubt and therefore, it was not a clear acquittal. Therefore, it cannot consider that workman is not at all involved in offence registered against him as per FIR. He has also fairly admitted before this Court that no departmental enquiry was conducted by petitioner before terminating service of respondent. But prayer was made before Labour Court in Para.8 and 9 of written statement to give permission, if order of termination is considered to be based on misconduct. He also submitted that under standing orders, departmental enquiry cannot consider to be a mandatory or must and it depend upon the facts of each case. Therefore, if Labour Court has come to conclusion that order of termination based on misconduct, then opportunity must have to be given to petitioner for proving misconduct against respondent. He submitted that Shri Rajendrabhai Patel, Branch Manager of petitioner bank was examined before Labour Court vide Exh.14. Relying upon Page-42, he submitted that after considering pleadings as well as oral and documentary evidence of parties and rival contentions of both sides, following issues have been framed by Labour Court in Para.8 :
(i) Whether applicant proves that he was dismissed without any kind of reasonable cause without holding departmental enquiry ?
The answer is given in affirmative.
(ii) Whether opponent bank proves that the applicant had committed grave misconduct of criminal offence and as such bank has lost the confidence in applicant ?
The answer is given in negative.
(iii) Whether applicant is entitled to be reinstated at his original post with continuity of service with back wages ?
In affirmative, the employee is reinstated at his original post with continuity of service with 35% back wages.
6. Mr.Shah also submitted that in middle portion of Page-58 of the award, it is observed that wife of respondent was serving in Gelco Sales Corporation and receiving Rs.1500/- and workman also deposed that he is paying LIC premium of Rs.12000/- yearly. Therefore, Mr.Shah submitted that Labour Court has committed an error in granting 35% back wages in favour of respondent when wife of respondent is working as well as considering earning of respondent, otherwise respondent is not able to pay Rs.12000/- premium of LIC. He relied upon following decisions in support of his submissions :
(i) AIR India Corporation, Bombay v. V.A. Rebellow and Anr. reported in 1972(25) FLR319.
(ii) Sudhir Vishnu Panvalkar v. Bank of India, reported in 1997-SSC-6-271.
(iii) Kamal Kishore Lakshman v. Management of Pan American World Airways Incorporation, reported in 1987-LLN-1-83.
(iv) Karnataka State Road Transport Corporation v. Lakshmidevamma reported in 2001-Lab.I.C.-0-1777.
(v) Ajit Kumar Nag v. General Manager, reported in 2005-SCC-7-764.
(vi) M/s.Lupin Laboratories Ltd. v. Smt. J.P.Gaikwad and Anr. reported in 2008 (119) FLR 293.
(viii) U.P.State Electricity Board v. Laxmi Kant Gupta reported in 2008 (119) FLR 595.
6.1 Relying upon aforesaid decisions, he submitted that Labour Court has committed gross error in not giving permission to petitioner for proving misconduct against respondent. Except that, Mr.Shah has not made any other submissions and relied upon any other decisions.
7. Learned advocate Mr.Mansuri for respondent workman submitted that this matter has been decided by Labour Court under provisions of the Bombay Industrial Relations Act and therefore, principles which have been decided by Apex Court under provisions of I.D.Act,1947 are not applicable. He relied upon Section 40 of the Act where standing orders are binding to employer. If any breach committed by employer of standing orders, then it amounts to offence under Section 107 of the Act. He relied upon Section 42(1) which provides that if any change is required in Item No.3 and 8 of 2nd schedule of the Act, then notice of change is necessary. Otherwise it amounts to illegal change. He also submitted that order of termination (Page-14) itself is based on misconduct and involvement of respondent workman in riots as per FIR, which has been considered by petitioner as well as mis-behaviour is also considered and remaining absent without permission is also considered to be a misconduct and on that basis, order of termination has been passed without holding departmental enquiry. Not only that even no show cause notice was given to workman before terminating service by petitioner. He submitted that Issue No.2 which has been framed by Labour Court suggests that permission was given by Labour Court to petitioner to prove the misconduct against workman but, petitioner is not able to prove misconduct against workman as per reasoning given by Labour Court. Therefore, according to him, contention which has been raised by Mr.Shah that in case when termination order is based on misconduct, then necessary permission is to be given by Labour Court to petitioner, for that Mr.Mansuri submitted that Issue No.2 has been accordingly framed and witness Shri Rajendra Patel, Branch Manager of petitioner bank was examined by petitioner vide Exh.14 but, petitioner bank is failed to establish misconduct against respondent workman. He submitted that in case of no enquiry and order of termination based on misconduct, then it is a duty of employer to lead first evidence for proving the misconduct against workman. But in this case, petitioner has not led first evidence but, workman was first examined and thereafter, said Branch Manager was examined by petitioner. Therefore, Mr.Mansuri submitted that permission was given by Labour Court to petitioner which was availed by petitioner but, petitioner has failed to establish charge against respondent workman even not able to justify misconduct / termination order, therefore, Labour Court has rightly come to conclusion that order of termination is illegal. In response to question of back wages, he submitted that Labour Court has rightly granted 35% back wages. For that, gainful employment is not proved by petitioner by leading proper evidence and he relied upon the decision of Apex Court reported in 2009 II LLJ 9. Except that, Mr.Mansuri has not raised any contentions and not cited any other decision in support of his case.
8. In response to giving reply to the arguments of learned advocate Mr.Mansuri for respondent, Mr.Shah appearing for petitioner bank submitted that principles in respect to domestic enquiry and in case when order of dismissal or termination based on misconduct, then opportunity must have to be given to employer and these principles are applicable in both proceedings governed under the BIR Act and the I.D.Act. Except that, no further re-argument made by Mr.Shah.
9. I have considered submissions made by both learned advocates, also perused the documents which are annexed to petition by petitioner and also perused award passed by Labour Court and the order passed by Industrial Court, Baroda.
10. The order of termination dated 18.6.2002 (Page-14) based on misconduct and involvement of respondent workman in riots case as per FIR (Page-25) in respect to incident occurred on 1.5.2000. In termination order itself, the petitioner has made clear facts that this order of termination has been passed because of serious misconduct committed by workman. But undisputedly or admittedly no departmental enquiry was conducted or initiated before passing termination order against respondent and no show cause notice also served to respondent by petitioner. Before the Labour Court, in T.Application No.3 of 2002 (page-33), a reply was filed vide Exh.6, as referred above. Thereafter, workman was examined vide Exh.10 and certain documents have been produced by workman as referred in Para.3 and petitioner bank has produced oral and documentary evidence before Labour Court as referred in Para.4. Vide Exh.14 one Rajendrabhai Patel, Branch Manager of petitioner bank was examined by petitioner and copy of FIR and resolution passed in meeting of Board of Directors dated 17.6.2002 Exh.7/1 and Exh.9/1 were produced on record by petitioner bank. Thereafter, evidence from both sides were closed. The Labour Court, after considering submissions made by both learned advocates as well as considering oral evidence and documents, framed the issues in Para.8 and answer is given in Para.9. The Issue Nos.1 to 3 have been decided and discussed in Para.10 by Labour Court. Certain undisputed facts as narrated by Labour Court which is in Para.10, which is quoted as under :
10. I have carefully gone through the oral and documentary evidence placed on record. As per the evidence, there is no dispute by and between the parties on the following aspects.
- The applicant was appointed as Peon cum Messenger by the bank on 1.1.1985 vide appointment letter Mark :2/11.
- The employee was dismissed by the bank vide letter dt. 18.6.2002 produced vide Mark :2/1.
- The employee had not been served show cause notice and not initiated departmental enquiry.
- The employee has given request letter dated 19.7.2002 to the opponent bank and in that letter, there was mistake regarding date, therefore, he has again written a request letter, dated 13.8.2003. The same were received to the bank.
- The employee had not been given notice with regard to his allegation of absenteeism, misbehaviour with the customers, directors and with co-employees. As such bank has lost confident to employee.
11. According to petitioner bank, service of respondent was terminated on 18.6.2002 on following allegations as mentioned in Para.12, which is quoted as under :
12. As per contents of the dismissal letter as well as written statement of the bank the employee was dismissed on the following accusations.
1. The employee was involved in riots, loot activities and there was complaint regarding the same.
2. The employee has lost the confident of customers doing transaction with bank due to criminal complaint.
3. There was complaint regarding mis-behaviour and arrogance attitude with the staff, co-employees, customers and directors.
4. The employee was remained absent without permission as such committed grave misconduct.
12. The respondent workman was declared acquittal (Page-86) by the Fast Track Court No.2, Baroda on 12.12.2005 in respect to FIR which has been alleged against present respondent workman. Both learned advocates have relied upon certain decision which has been referred in Para.14 and 15 by Labour Court respectively.
13. It is necessary to note that it is not the case of petitioner bank that order of acquittal dated 12.12.2005 in criminal case has been challenged by private parties / State Government to higher forum and there is no appeal preferred by either party before the higher forum.
14. The Labour Court has considered the question that according to standing orders, even any employee is required to be dismissed for the misconduct alleged against him, then departmental enquiry is must being a mandatory, and if it is not held, then only on that ground, the order of termination is required to be set aside. The Labour Court has also considered that in respect to criminal case which was mentioned in order of termination in which workman was declared acquittal, then thereafter to give permission to petitioner to hold fresh enquiry in respect to criminal charge, which is not permissible under the law because there is clear acquittal given by competent criminal Court in favour of respondent workman. The Labour Court has considered evidence of witness of petitioner bank vide Exh.14, who was cross-examined by advocate of respondent workman. Relevant discussion made by Labour Court in Para.16 and 17 are quoted as under
:
16. I am carefully gone through the all the citations so far as facts of the present case on hand is concerned, the employee was dismissed, neither served notice nor show cause notice nor initiated departmental enquiry. As per model standing orders applicable to the bank, no employee shall be dismissed unless and until holding enquiry. The charges levelled against the employee for the offence of robbery and rioting and Hon. Sessions Judge under statute is empowered to decide the case. The Hon. Sessions Judge has fully exonerated to the employee on merits. The charges levelled against the employee with regard to his misbehaviour with staff, customers and directors as well as absenteeism and due to criminal case, bank had lost confident in employee, but for such type of allegations, no satisfactory evidence had been produced by the bank. If the employee was doing arrogance nature with directors and staff as well as with customers, then they ought to have been served notice for the same, whereas, the witness of the bank has stated in cross-examination that, he had not made any complaint against employee for the same.
Therefore, allegations of the bank that the nature of employee is arrogant and misconduct and loss of confidence, is not tenable at all. The employee has not stated anything about his unemployment in the petition, but the employee has deposed in Exh.10 with regard to his unemployment. The service of the employee was permanent in nature, the prudent man can believe that, the dismissed employee would not remain idle or jobless and also Court can take judicial note for the same, but it is an admitted fact that he would earn less than what he was earning from his regular permanent employment. Therefore, argument canvassed by the Ld advocate for the opponent bank with regard not to grant back wages as such the opponent bank is financial institution would not bear the financial burden, but this argument is not tenable. Further, the employee was exonerated by the sessions Court on merits, therefore, question does not arise for the probability of pre-preponderance of offence as alleged by the opponent bank. In this case, the bank has dismissed to the employee without holding departmental enquiry, if the bank would not hold the enquiry and court would come to the conclusion that, it is not proper then bank would be given chance, but in this case the bank had not initiated enquiry and it is condition precedent as per model standing orders applicable to the bank. The contention of the Ld. Advocate for the bank that, bank is not precluded when the criminal Court acquitted to the accused, but looking to the facts of this case, the charges levelled against employee had been decided by the Hon. Sessions Judge, then according to my view, question does not arise to hold the employee guilty. Therefore, citation upon which relied by the opponent bank, is not helpful to him, looking to the present facts of the case on hand concerned.
17. The allegations of the bank is that, the applicant is behaving in arrogant nature with co-employees, customers and bank directors by using filthy language. But the bank had not given notice or admonition to the employee with regard to his such act. It is also not the case of bank that they have given notice and warning to employee. That bank has very first time this fact had been mentioned in this dismissal order dated 18.06.2002. The bank had never given any notice for the alleged accusation for the behaviour of the employee prior to dismissal order. The applicant was cross examined by the learned advocate for the opponent bank in detail. By asking, he has denied that prior to six months of incident, dated 1.5.2002, his attitude and behaviour was changed. But the behaviour and attitude had been changed by which manner and which way, has not be brought on record by the bank. Further, as per the case of the bank the behaviour of the employee has been changed since last six months, then, why bank had not served notice to him. If the Directors of the bank and Administrator had felt that the attitude and behaviour of the employee is not satisfactory then they ought to have been given notice and warning for his act. The bank has examined its witness Rajendrabhai Patel vide exh. 14, who has deposed in his Chief Examination that the employee was misbehaving and insulting to staff employees, customers and directors. This witness was cross examination that he has not gone through the case, neither of applicant, nor of written statement of bank, who has deposed that in his affidavit, he has stated that, due to criminal case of the applicant, bank has suffered, but he has no documentary evidence in relation thereto. This witness does not know regarding any notice served or charge-sheet issued to the employee till his dismissal. This witness does not know that departmental inquiry was initiated against the employee prior to dismissal. He has submitted that for the behaviour of the applicant, he has not any complaint to the manager as well as to board of directors. Further he has stated that the applicant was having mental perversity and he was saying because of arrogant attitude with customers, staff and he has having talking loudly. I am carefully gone through the evidence, carefully scrutinize the same, if the attitude and behaviour of the applicant is in arrogance and in insulting manner with customers and co employees as well as with directors who are managing the bank, they have not given oral or written notice and show cause notice to improve alleged behaviour of the employee nor they have sought any kind of explanation regarding attitude as well as absenteeism of the applicant.
Therefore, it is presumed that, it was very first time mentioned in the dismissal order. Further, bank has mentioned in its dismissal order that he was remained absent and it was considered as misconduct. But, bank has not even bothered to mention from which period to which period and for how much period he was remained absent, nothing had been mentioned in his dismissal order nor even its written statement. The bank has not initiated any departmental inquiry against the employee. As per model standing order, produced vide mark 22/1 applicable to the opponent bank. The bank has to hold departmental inquiry for the alleged misconduct against the employee i.e. applicant. Therefore, as per model standing order, initiation of the departmental inquiry is imperative and mandatory in nature. It is also important to note that, if the employee held guilty, then he should be called for an explanation. Thereafter, the order of dismissal be passed. In this case, the applicant had neither been given show cause notice nor initiated departmental inquiry. Therefore, as per provision of model standing orders, applicable to the opponent bank, no employee was dismissed, therefore, bank has violated the administrative rules of the model standing orders. The initiation of the inquiry is must and mandatory. The opponent bank has not given any show cause notice prior to dismissing him. Therefore, dismissal order is illegal against the provisions of the model standing order, therefore, dismissal order passed by the bank on 18.6.2002 is illegal and unreasonable. The bank has failed to prove its action of dismissal to the employee, is legal, proper and justifiable. The case of the bank is that, it has lost the confidence in employee, is failed to prove, therefore, dismissal order is illegal and required to be set aside. The employee is entitled to be reinstated at his original post.
15. In view of aforesaid discussion made by Labour Court, the Labour Court has rightly come to conclusion that in respect to criminal allegation, clear acquittal come in the way of petitioner bank to hold fresh enquiry against respondent employee, and in respect to other allegations about mis-behaviour and remaining absent, the witness Shri Rajendra Patel, Branch Manager of petitioner bank is not able to prove remaining misconduct against respondent employee because he has no knowledge or made any complaint against present respondent employee to the Board of Directors. He has not produced any evidence which justify or prove the misconduct of mis-behaviour of employee and remaining absent without prior permission from bank. Therefore, Labour Court has rightly come to conclusion that opportunity was given to petitioner bank to prove the misconduct and for that, Shri Rajendra Patel, Branch Manager of petitioner bank was examined vide Exh.14 but, petitioner bank is failed to prove the misconduct which are mentioned in order of termination dated 18.6.2002 and therefore, Labour Court has come to conclusion that such kind of order passed by petitioner bank based on misconduct and misconduct is not proved before Labour Court, though opportunity was given by Labour Court to petitioner bank and for that, Shri Rajendra Patel, Branch Manager of petitioner bank was examined vide Exh.14 but, on his evidence, misconduct as alleged in termination order dated 18.6.2002 is not proved. Therefore, Labour Court has come to conclusion that petitioner bank has illegally terminated the service of respondent employee without giving any opportunity and Issue No.2 has been decided that the petitioner bank has failed to establish charge against respondent workman. Thereafter, Labour Court has considered evidence of workman for deciding question of back wages and then, come to conclusion that workman remained unemployed and not able to get the job in Gauri and Ambika Saree Center and Charbhuja Medical Store and his family members are five and they are dependent to his brother and wife and his wife is serving prior to his dismissal. These facts have not been disproved by petitioner bank. He was not in employment of Umakant Sureiya, who was Director of bank and he needs Rs.5000/- for maintenance of his family but, he is residing with his brother and he has rented out his house. Therefore, entire evidence as discussed in Para.18, the Labour Court has thought it fit to grant 35% back wages of interim period because such type of order of dismissal or termination all of a sudden has been passed by petitioner bank without giving any opportunity to workman. The petitioner bank has not proved gainful employment of employee and considering evidence of workman, the Labour Court has exercised discretionary powers and awarded 35% back wages of interim period.
16. I have also perused the order passed by the Industrial Court, Baroda. The Industrial Court has also in detailed examined the issue. The petitioner bank has raised similar contentions, as raised before this Court. The Industrial Court has considered certain decisions which have been relied by petitioner bank and also considered certain decisions which have been relied by respondent employee. The Industrial Court has considered important question that merely making averments in written statement in Para.8/9 that in case if Labour Court come to conclusion that order of termination is bad because of misconduct alleged against employee and for that, departmental enquiry was not initiated, then opportunity may be given to petitioner bank by Labour Court. But thereafter when workman was examined initially in support of his case vide Exh.10, who was cross-examined by petitioner bank in detail merits in respect to each misconduct which has been alleged against employee. Thereafter, on behalf of petitioner bank, Shri Rajendra Patel, Branch Manager of petitioner bank was examined, who was cross-examined by advocate of respondent workman. During this period, no separate application was given by petitioner bank that on the basis of evidence if Labour Court comes to the conclusion that order of termination is based on misconduct and departmental enquiry is necessary, then opportunity may be given to petitioner bank. If the order of termination basically based on alleged misconduct; one is involvement in riots case means criminal case and second, mis-behaviour with staff and customers and Board of Directors and third is of remaining absent without prior permission. This order of termination was passed without holding departmental enquiry. In such circumstances, it was a duty of petitioner bank to first examine their witness to prove the misconduct against respondent employee but, petitioner bank has not started first evidence for proving misconduct against respondent employee. On the contrary, workman was examined first vide Exh.10 and he was cross-examined on merits and thereafter, Shri Rajendra Patel, Branch Manager of petitioner bank was examined and subsequently, petitioner bank remained silent and not demanded any opportunity or permission from Labour Court to prove the charge against respondent employee. Therefore, it was an undisputed facts between parties means there is no controversy that service of respondent employee was terminated on the basis of misconduct as alleged and committed by workman but, admittedly, no departmental enquiry was conducted, then in such a case of no enquiry, it is a burden upon petitioner bank to lead first evidence for proving misconduct against concerned employee. But for that, no evidence has been led first by petitioner bank for getting opportunity to prove the misconduct and allowed to workman to lead his oral evidence vide Exh.10 and then, to examine Shri Rajendra Patel, Branch Manager of petitioner bank vide Exh.14. Thereafter, there is no question of giving any further opportunity to petitioner bank by Labour Court is required because it is not a case of defective enquiry which is to be decided by Labour Court. But it is a case of no enquiry and termination based on misconduct, then it is a duty of employer to prove misconduct against employee by leading first evidence, for which petitioner bank has to first establish charge while leading first evidence against employee and thereafter, allow to lead evidence to employee and cross-examine it but, in this case after evidence of respondent, to examine Shri Rajendra Patel, Branch Manager of petitioner bank vide Exh.14 then subsequently, question of giving permission to prove misconduct against employee does not arise.
16.1 The law on this subject is very settled that it depends upon the facts of each case. In case of no enquiry and termination based on misconduct, the employer must have to lead first evidence because in case of no enquiry, the Labour Court is not required to examine the question as to whether the enquiry is vitiated or not, because undisputedly order of termination is issued on the basis of misconduct without holding enquiry. Therefore, when order of termination based on misconduct, then it is a burden upon employer petitioner bank to prove the misconduct against concerned employee by leading first evidence which the petitioner bank failed to do, then subsequently even by oral evidence of Shri Rajendra Patel, Branch Manager of petitioner bank vide Exh.14, no allegations have been proved against employee. Thereafter, question of giving permission to petitioner bank does not arise. That view has rightly been taken by Industrial Court while dismissing appeal and for that, Industrial Court has not committed any error. The role of employer, in case of no enquiry and in case of defective enquiry, is altogether different because in case of enquiry conducted by employer and challenged by employee that it is bad or contrary to principles of natural justice, then first evidence is to be led by employee for establishing the facts that enquiry conducted by employer is contrary to principles of natural justice. In such circumstances, Labour Court must have to examine first issue whether enquiry is bad or not. But in case of undisputed facts and in case of no enquiry, Labour Court is not required to examine as to whether in such circumstances, enquiry is vitiated or not. In such circumstances, being an undisputed facts that termination order based on misconduct, question of permission to be given by Labour Court to employer does not arise because it is a duty of employer to start with evidence before Labour Court after accepting the facts that order of termination is not simplicitor but based on misconduct and then to prove misconduct which are alleged in termination order by leading proper evidence before Labour Court. That opportunity was available to the petitioner bank from very beginning but, that opportunity was not availed because in such circumstances, there is no permission is required from Labour Court because it is a case of no enquiry. So Labour Court has considered this aspect being an undisputed facts in Para.10 being an undisputed position between parties and accordingly, without issuing show cause notice and conducting enquiry, order of termination was passed on 18.6.2002 against employee based on misconduct. Therefore, it is a case of no enquiry while terminating service of employee based on misconduct, then question of permission not necessary from Labour Court to prove misconduct but, petitioner bank has to first start evidence for proving allegations as mentioned in termination order by leading proper evidence. That opportunity though available not availed by petitioner bank and therefore, contentions raised by Mr.Shah that Labour Court has committed gross error in not giving opportunity or permission to lead evidence for proving misconduct, cannot be accepted.
17. Learned advocate Mr.S.J.Shah has relied upon decisions as referred above. I have considered the same. In this case, question is that order of termination is based on misconduct or not. While reading the order dated 18.6.2002 which is based on misconduct as alleged in order of termination and also due to misconduct, defence of lost of confidence has been taken by petitioner bank. Therefore, it is a clear case of no enquiry. Before passing order of termination dated 18.6.2002, no departmental enquiry was conducted as required under the provisions of the standing orders. Therefore, it is a duty of employer to establish charge mentioned in termination order or to establish misconduct as alleged against concerned workman in order of termination and for that purpose, employer has to lead first evidence for proving charge against workman and also for justifying termination order or action taken by employer. In written statement filed by petitioner (Annexure-C, Page-21) where in Para.8 it was admitted by petitioner that order of termination passed by petitioner bank because of misconduct committed by respondent workman. So as per averments made in Para.8, petitioner establishment made a request to Labour Court to permit the petitioner to give opportunity to establish misconduct against respondent workman. It is not the case of defective enquiry or dismissal order passed after conducting departmental enquiry. Therefore, in such circumstances, Labour Court has not to decide preliminary point whether enquiry is conducted by employer is proper or not. But it is a case of no enquiry and order of dismissal or termination based on misconduct as accepted by petitioner, therefore, Labour Court is not required to examine preliminary point whether enquiry is conducted by employer is defective or not. So when order of termination passed by employer admittedly based on misconduct and no enquiry was conducted before passing order of termination, then Labour Court is not required to examine such issue on preliminary point. In such circumstances, evidence is to be started by employer for establishing misconduct as alleged in order of termination by leading proper evidence before Labour Court. But such opportunity which was available to petitioner bank to lead first evidence and proved the charge against workman. But that opportunity not refused by Labour Court and not availed by petitioner bank. Before Labour Court petitioner has not made request that petitioner wants to lead first evidence for establishing misconduct against workman. Therefore, question of denying permission as prayed in written statement does not arise. In case of no enquiry and admitted by employer then question of giving permission to establish misconduct against workman does not arise. But such permission must have to be availed by petitioner bank while giving application to Labour Court to permit the petitioner to lead first point of time evidence before Labour Court. But in facts of present case, no such application was given by petitioner for establishing misconduct against workman to lead first evidence before Labour Court. But on the contrary, permit workman or allow to workman to lead first evidence and thereafter, cross-examining the workman on merits in respect to misconduct and after completion of evidence of workman, one witness Shri Rajendra Patel was examined vide Exh.14 before Labour Court subsequent to the evidence of workman, who was cross-examined by advocate of workman on 2.5.2006. Therefore, on the basis of evidence of witness of petitioner bank, now question arises a to whether misconduct as alleged against the workman is established by petitioner bank or not. That question has been examined by Labour Court in detailed and come to the conclusion that misconduct which has been alleged against workman is not proved by petitioner bank in leading proper evidence. In such circumstances, the contention which has been raised by Mr.Shah that Labour Court has not granted permission or gave opportunity to employer to prove the misconduct before Labour Court, cannot be accepted because it is not the case before Labour Court that workman was dismissed or terminated after conducting departmental enquiry. So in both type of cases, procedure is altogether different required to follow because in case of no enquiry, question of deciding preliminary issue of enquiry does not arise. But, straightway, if employer admits that termination order is based on misconduct as admitted in facts of present case by petitioner, then it is a duty of petitioner to start with evidence first before Labour Court in establishing misconduct against workman. Therefore, in facts of this case, opportunity was available from very beginning with petitioner to start first with evidence before Labour Court and not to allow the workman to lead evidence first before Labour Court. Therefore, contention raised by Mr.Shah cannot be accepted that Labour Court has committed gross error in not giving opportunity to employer for proving misconduct against workman. The law on this point has been discussed by Apex Court in case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. And Anr. reported in AIR 1979 SC 1652. Relevant observations of aforesaid decision are in Para.18, 19, 23, 25 to 27, which is quoted as under :
18. In Workmen of Motipur Sugar Factory (Pvt.) Ltd. v. Motipur Sugar Factory, (1965) 3 SCR 588 : (AIR 1965 SC 1803), the workmen contended before this Court that as respondent employer held no enquiry as required by the Standing Orders before dispensing with the services of the appellants by way of discharge on the ground that the appellants had resorted to 'go slow' in the Sugar Factory, the Tribunal in a reference under S. 10 of the Act was in error in holding that the appellants had in fact resorted to 'go slow' tactics and the respondent was justified in discharging them from service. The specific contention raised was that where no domestic enquiry is held before terminating services of workman as required by the Standing Orders all that the Tribunal was concerned with was to decide whether the discharge of the workman was justified or not and that it was no part of the duty of the Tribunal to decide that there was go slow which would justify the order of discharge. Negativing this contention, the Court held as under (at p. 1808 of AIR):-
"It is now well-settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held (see Indian Iron and Steel Co. v. Their Workmen, (1958) SCR 667: (AIR 1958 SC 130)), but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s. Sasa Musa Sugar Works (P.) Ltd. v. Shobrati Khan, (1959) Supp SCR 836: (AIR 1959 SC 923); Phulbari Tea Estate v. Its Workmen, (1960) 1 SCR 32: (AIR 1959 SC 1111); and the Punjab National Bank Ltd. v. Its Workmen, (1960) 1 SCR 806: (AIR 1960 SC 160). These three cases were further considered by this Court in Bharat Sugar Mills Ltd. v. Shri Jai Singh, (1962) 3 SCR 684, and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha v. Belaund Sugar Co., (1954) Lab AC 697. It was pointed out that 'the important effect of commission to hold an enquiry was merely this: that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out.' It is true that three of these cases, except Phulbari Tea Estate's case, were on applications under S. 33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under S. 33 or on a reference under S.10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's case was on a reference under S. 10, and the same principle was applied there also, the only difference being that in that case, there was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper."
19. The Court rejected the contention that as there was no enquiry in this case it was not open to the respondent company to justify the discharge before the Tribunal. It may be noted that in the situation as was disclosed in this case there was no question of deciding a preliminary issue and then giving an opportunity to the employer to adduce additional evidence justifying the punitive action on merits. This Court went into the allegations of go-slow tactics resorted by the workmen as canvassed on behalf of the employer and agreed with the finding of the Tribunal that allegations were proved and accordingly upheld the order of discharge and affirmed the Award.
23. In Delhi Cloth and General Mills Co. v. Ludh Budh Singh, (1972) 3 SCR 29, (1972 Lab. IC 573), the appellant company questioned the correctness of the decision of the Industrial Tribunal refusing permission to dismiss the respondent as he was held guilty of misconduct in domestic enquiry conducted by the appellant. The question of seeking permission arose because S. 33 was attracted as an industrial dispute between the appellant company and its workmen was then pending before the Industrial Tribunal. Before the Tribunal pronounced its order rejecting the application for permission under S. 33, an application was made on the day next after the date on which the respondent filed his written statement before the Tribunal requesting in clear and unambiguous terms the Tribunal that in case the Tribunal held that the enquiry conducted by it was defective, it should be given an opportunity to adduce evidence before the Tribunal to justify the action proposed to be taken against the respondent. Neither party examined any witness before the Tribunal. The appellant merely produced the papers of enquiry. The Tribunal reached the conclusion that the enquiry proceedings had not been conducted against the respondent in accordance with the principles of natural justice and that the findings recorded by the enquiry officer were not in accordance with the evidence adduced before him. In accordance with these findings the Tribunal concluded that the appellant had not made out a case for permission for dismissing the respondent and the application was rejected. It may be noticed that there was no reference to the application made by the appellant for adducing additional evidence in the order rejecting permission and no order appears to have been made on the application whether it was granted or rejected. Before this Court the appellant contented that the Tribunal was in error in law in not permitting the appellant to adduce the evidence before it, to justify the action proposed to be taken against the respondent. After an exhaustive review of the decisions bearing on the question and affirming the ratio in R. K. Jain's case (1972 Lab. IC 13) this Court extracted the emerging principles from the review of decisions. Propositions 4, 5 and 6 would be relevant for the present discussion. They are as under (at pp. 589-590 of Lab. IC):-
"(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 domestic enquiry 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 such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give 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 prima 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 workmen that the Tribunal 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 the Tribunal itself being satisfied, on evidence adduced before it, that he was or 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 grievance 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 the proceedings have been held properly and the findings recorded therein are also proper.
(6)If the employer relies on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it."
25. Rererence was next made to Workmen of Firestone Tyre and Rubber Co. of India (P.) Ltd. v. Management (1973) 3 SCR 587: (1973 Lab IC 851). Contention raised therein was that by the introduction of S. 11A with its proviso in the Act the legislature has once and for ever put its final seal upon the controversy whether the employer who has failed to hold proper, legal and valid domestic enquiry before taking punitive action, was entitled to adduce fresh evidence when the matter is brought before the Labour Court or the Industrial Tribunal either under S. 10 or under S. 33 of the Act. The proviso to S. 11A provides that the Labour Court or the Industrial Tribunal in a proceeding under S. 11A shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. This contention was in terms negatived by this Court observing that at the time of introducting S. 11A in the Act the legislature must have been aware of the long line of decisions of this Court enunciating several principles bearing on the subject and therefore it is difficult to accept that by a single stroke of pen by the expression used in the proviso to S. 11A all the these principles were set at naught. This Court then exhaustively reviewed all the previous decisions bearing on the subject and formulated the principles emerging therefrom. The relevant principles are 4, 6, 7 and 8. They read as under:
"(4) Even if no enquiry has been held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and (5) xx xx xx (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry conducted by an employer is found to be defective.(7)
It has never been recognised that the Tribunal should straightway, without any thing more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8)An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduced evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct."
26. The noticeble feature of principle 8 is that an employer who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action should ask for it at the appropriate stage. If any such opportunity has been asked for the Tribunal has no power refuse. But it is not for a moment suggested that there is some duty or obligation as a matter of law cast upon the Tribunal to call upon the employer to adduce additional evidence even if no such opportunity is sought by the employer. At page 610 the Court has observed that the stage at which the employer has to ask for such an opportunity has been pointed out by the Court in Delhi Cloth and General Mills Co. case (1972 Lab IC 573) (SC) and the ratio of the decision was affirmed.
27. In the quest of the principle bearing on the subject we come to the last decision relying on which the Division Bench of the Calcutta High Court in Letters Patent Appeal allowed a contention to be raised for the first time and remanded the matter back to the Industrial Tribunal. It was said that the point decided by the Division Bench of the Calcutta High Court is no more res integra and is concluded by the decision in Cooper Engineering Ltd. case (1975 Lab IC 1441) (SC). In that case the workman was dismissed by the employer and industrial dispute arising out of the termination of service was referred to the Labour Court. The Labour Court found that the domestic enquiry was defective and directed reinstatement of the workman. In appeal by the employer company it was contended that the Labour Court failed to give an opportunity to the employer to adduce additional evidence to sustain the charge after recording the finding that the domestic enquiry held by the employer was defective. This Court referred to proposition Nos.4, 5 and 6 in the Delhi Cloth and General Mills Co. case (1972 Lab IC 573) (SC) and propositions Nos. 4, 6, 7 and 8 in the case of Workmen Firestone Tyre and Rubber Co. of India (P.) Ltd. case (1973 Lab IC 851) (SC) and posed to itself a question as to what is the appropriate stage, specifically adverted to in the Delhi Cloth and General Mills Co. case when the Court is now required to seriously consider that the opportunity should be given to the employer to adduce evidence. The Court then recorded its opinion as under:
"We are, 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 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 proceedings to raise the issue."
17.1 In view of above observations made by Apex Court, the petitioner has not given application before Labour Court after pleadings were over that petitioner wants to establish or prove the misconduct as mentioned in termination order. Therefore, permit the petitioner to lead first evidence. No such application is given by petitioner before Labour Court at the time of starting evidence after completion of pleadings and therefore, in case of no enquiry, question of deciding preliminary point does not arise and it is a duty of employer to establish misconduct or prove the misconduct and also has right to justify action or order of termination. For that, petitioner has not led first evidence. Thereafter question of giving permission after the evidence of workman does not arise. The evidence of witness of employer vide Exh.14 considering cross-examination, he was not aware about facts of misconduct which was alleged in termination order by employer and on the basis of first evidence, misconduct is not proved against respondent workman. Therefore, according to my opinion, Labour Court has not committed any error which requires interference by this Court.
18. In respect to FIR which is annexed with present petition (Page-25), that facts also narrated in Para.2 of termination order dated 18.6.2002. So whatever offence registered against workman in FIR which has been relied by petitioner in terminating service of workman. Except that there is no independent evidence relied by petitioner for terminating service of workman. Therefore, in criminal case lodged against the workman on the basis of FIR being Sessions Case No.217 of 2004 (Page-86) wherein FTC No.2, Baroda vide Exh.60 declared clear acquittal to the workman by judgment and order dated 12.12.2005. The respondent workman has been declared acquittal because prosecution has failed to establish offence against respondent workman. The benefit of doubt as contended by Mr.Shah cannot be considered to be judgment of acquittal nullify. Against acquittal of workman, no appeal is preferred by State of Gujarat or any other private party. In such circumstances, whether departmental enquiry can be held or misconduct can be proved after acquittal in criminal case, the Apex Court has, in case of G.M.Tank v. State of Gujarat and Anr. Reported in 2006 (2) GLH 533, relying upon the decision of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. reported in JT 1999 (2) SC 456, held in Para.14, 28 and 29 as under :
14. Learned senior counsel made the following submissions:
a) that there is no evidence to hold the appellant guilty or delinquent for the charges framed against him in the departmental enquiry;
b) that the acquittal of the appellant in the special case is a relevant factor, as the appellant has been acquitted on merits and the acquittal is clean and not based on benefit of doubt or any Technical proposition. The same evidence was led in the departmental enquiry and, therefore, the dismissal order is bad in law.
c) that the Enquiry Officer has given finding of fact in favour of the appellant and despite that the Enquiry Officer has found the appellant guilty of the charges;
d) the additional fact was also brought to the notice of the Division Bench that the special Court has honourably acquitted the appellant of the same charge on 30.1.2002 but the Bench has not considered the same.
The Division Bench failed to note the difference between an exoneration and acquittal by giving benefit of doubt. It routinely held that the writ court does not re-appreciate or re-examine the evidence led before the Enquiry Officer and that unlike in criminal trial, the degree of proof in the domestic enquiry is restricted to preponderance of probability and not beyond reasonable doubt. The L.P.A. Was accordingly dismissed and the order of the learned single Judge was affirmed.
(e) Since the appellant has been exonerated of the charge, the appellant is entitled to reinstatement with full salary, allowance and subsequent promotions. In support of his contention, Mr. L.N. Rao relied on the following judgments:
1. Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. , (1999) 3 SCC 679 (two Judges)
2. Union of India vs. Jaipal Singh, (2004) 1 SCC 121 (two Judges)
3. Commissioner of Police, New Delhi vs. Narender Singh, 2006(4) Scale 161= 2006(4)JT 328 (two Judges)
4. R.P. Kapur vs. Union of India & Anr. AIR 1964 SC 787 (five Judges)
5. Corporation of the City of Nagpur, Civil Lines, Nagpur & anr. Vs. V. Ramachandra G. Modak & Ors., AIR 1984 SC 626 (three Judges)
28. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant s residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
29. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony s case (supra) will apply.
We, therefore, hold that the appeal filed by the appellant deserves to be allowed.
18.1 The law laid down in Capt. M. Paul Anthony (supra) remains unshaken as decided by Apex Court in case of Managing Director, State Bank of Hyderabad and Anr. v. P. Kata Rao reported in 2008 II CLR 876.
18.2 In view of aforesaid decision given by Apex Court in respect to same charge, same set of facts, same witness, after acquittal no departmental action is permissible and therefore, in respect to criminal offence as alleged in FIR mentioned in order of termination, now cannot be permitted to employer to be proved against respondent workman. Therefore, according to my opinion, charge which has been referred in order of termination on the basis of FIR, no further evidence required to be permitted or to be allowed to employer against respondent workman because workman has been declared acquittal.
19. In this case decisions which have been relied by Mr.Shah are not applicable to the facts of present case because most of the decisions are in case of vitiating departmental enquiry, permission is to be given to the employer for proving misconduct. But in none of the case question has not been examined that in case of no enquiry termination based on misconduct, then question of deciding preliminary issues does not arise, then further question to give permission to employer to prove the misconduct is required. But in such circumstances, it is a duty of employer to start with the evidence for proving misconduct in the case of no enquiry when order of termination based on misconduct. Therefore, contention raised by Mr.Shah based on decisions as relied by him, cannot be accepted as are not applicable to facts of present case.
19.1 In this case, both the Courts below having concurrent finding. The petition which has been filed by employer which has been considered by this Court under Article 227 of the Constitution of India. The finding of fact examined and decided by Labour Court, this Court cannot interfere or disturb such finding of fact while exercising powers under Article 227 of the Constitution of India. Recently, the Apex Court has examined aforesaid aspect in case of State of Haryana & Ors. v. Manoj Kumar reported in 2010 AIR SCW 1990. Relevant observations are in Para.22 to 29 are quoted as under :
22.
The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the courts below work within the bounds of their authority.
23. More than half a century ago, the Constitution Bench of this court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
24. This court placed reliance on Nagendra Nath s case in a subsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895. The court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority.
25. This court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 . The court observed as under:-
The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority, and not to correct an error apparent on the face of the record, much less an error of law. For this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.
26. This court again clearly reiterated the legal position in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The court again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
27. A three-Judge Bench of this court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
28. In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 this court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits.
29. This court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merit.
20. The Apex Court has, in case of Roshan Deen v. Preeti Lal reported in 2002 I CLR 4, observed in Para.12 as under :
12. We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned Single Judge in a case, where judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by is cruel destiny. The High Court, non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again, this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it. (vide State of Uttar Pradesh v. District Judge, Unnao and Ors (AIR 1984 SC 1401)). The very purpose of such constitutional powers being conferred on the High Court is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law, the High Court is not expected to erase such justice in the name of correcting the error of law.
21. In view of above observations made by Apex Court in exercise of powers under Article 227 of the Constitution of India and after considering entire matters perusing both the orders passed by Labour Court as well as appellate Court as well as considering the submissions made by both learned advocates, according to my opinion, contentions raised by learned advocate Mr.Shah cannot be accepted. Therefore, view taken by Labour Court and confirmed by Industrial Court is perfectly justified and no interference is required by this Court while exercising powers under Article 227 of the Constitution of India. Hence, there is no substance in present petition. Accordingly, present petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated.
22. Let the petitioner bank implement the order of the Labour Court as early as possible within a period of one month from date of receiving copy of present order.
(H.K.RATHOD,J.) (vipul) Top