Madras High Court
The Assistant General Manager Region I vs The Presiding Officer on 30 August, 2012
Author: D. Hariparanthaman
Bench: D. Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.08.2012 CORAM: THE HON'BLE MR. JUSTICE D. HARIPARANTHAMAN W.P. No.39 of 2012 and M.P. Nos.1 and 2 of 2012 & W.P. No. 2101 of 2012 W.P. No.39 of 2012: The Assistant General Manager Region I State Bank of India 57, 57/1, Kamarajar Salai Madurai 625 009 Petitioner vs. 1 The Presiding Officer Central Government Industrial Tribunal- cum- Labour Court Chennai 2 M. Sivaraman Respondents W.P. No.2101 of 2012: M. Sivaraman Petitioner vs. 1 The Presiding Officer Central Government Industrial Tribunal- cum- Labour Court Chennai 2 The Assistant General Manager Region I State Bank of India 57, 57/1, Kamarajar Salai Madurai 625 009 Respondents Prayer in W.P. No.39 of 2012: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorari calling for the records of the first respondent in I.D. No. 23 of 2008 and quash its award dated 22.06.2011. Prayer in W.P. No.2101 of 2012: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus after calling for the concerned records from the first respondent, quash the award passed by the first respondent in I.D. No.23 of 2008 dated 22.06.2011 insofar as not setting aside the punishment of dismissal imposed by the disciplinary authority of the second respondent bank as confirmed by the appellate authority of the second respondent bank to pay full back-wages from the date of dismissal till the date of superannuation of the petitioner with all attendant benefits, continuity of service and all other terminal benefits. For petitioner in WP No.39/2012 & Mr. Ravindran R2 in WP No.2101/2012 for M/s. T.S. Gopalan & Co. For petitioner in WP No.2101/2012 & Mr. Balan Haridas R2 in WP No.39/2012 COMMON ORDER
Both the writ petitions seek to challenge the award dated 22.06.2011 passed by the Central Government Industrial Tribunal-cum-Labour Court, Chennai, ("the Tribunal" for short) in I.D. No.23 of 2008. Hence, both these writ petitions are decided by this common order.
2 While W.P. No.39 of 2012 is filed by the State Bank of India, W.P. No.2101 of 2012 is filed by one Sivaraman, a workman of the said bank.
3 For the sake of brevity and convenience, the parties herein are referred to as per their rank in W.P. No.39 of 2012.
4 The second respondent joined the services of the petitioner bank on 25.11.1970 as a subordinate staff and on 01.11.1982, he was promoted as a Clerk. On 08.09.1989, while he was working in the Madurai City Branch, he applied for a consumer loan for the purchase of a Videocon Washing Machine.
5 He had already availed a consumer loan prior to this consumer loan. Unless the earlier consumer loan is closed, he would not get a fresh consumer loan. To close the earlier consumer loan, he was in need of a sum of Rs.7,000/-. Hence, he borrowed Rs.7,000/- from a sub staff by name Isaac Paulraj. The said Isaac Paulraj withdrew Rs.7,000/- from his account and paid the said amount to the second respondent. With the money he borrowed from Isaac Paulraj, the second respondent settled the earlier consumer loan.
6 However, the second respondent's loan application for purchase of Videocon Washing Machine was rejected on the ground that already, a deduction of Rs.1,066/- was made pursuant to a Garnishee order for remittance to the credit of one Kothari Silk Stores and that the said attachment constitutes more than 25% of his salary and therefore, he was not eligible for a fresh consumer loan.
7 When his consumer loan was rejected, the second respondent wanted his loan application to be returned and accordingly, the same was also returned to him. Besides, he also wanted the return of Rs.7,000/- which he had remitted to settle the earlier consumer loan and for revival of the said closed consumer loan account. Accordingly, Rs.7,000/- was also returned to him and the earlier consumer loan account also stood revived.
8 On 09.09.1989, the second respondent submitted a letter to the Accounts Manager of the petitioner bank stating that the duties not belonging to the Head Clerk would not be binding on him. Later, he felt that there was a mistake in the said letter and he wanted the said letter to be returned to him for making certain corrections therein. However, the Accounts Manager refused to return the letter to the second respondent, stating that the letter had become the property of the bank and hence, the same could not be returned to him.
9 According to the petitioner bank, the second respondent man-handled the Accounts Manager and caused damage to the letter.
10 In the said circumstances, a charge memo dated 17.11.1989 was issued by the petitioner bank to the second respondent levelling five allegations against him. The crux of those five charges is as under:
i The second respondent did not mention about the attachment of salary for Rs.1,066/- in his application for the fresh consumer loan on 08.09.1989 in order to obtain advantage of sanction of loan by the bank and when confronted, he admitted the same and the fresh consumer loan was refused.
ii The second respondent submitted a letter dated 09.09.1989 to the Accounts Manager which was addressed to the Branch Manager; later, he demanded return of the letter from the Accounts Manager and the Accounts Manager refused to return the same; while so, he manhandled the Accounts Manager and forcibly snatched the latter from the Accounts Manager and tore the same.
iii The second respondent prevailed upon Isaac Paulraj, sub-staff of the bank, to withdraw Rs.7,000/- from A/c No.52/824 even though he was aware of non-availability of funds in the said account and he instigated Isaac Paulraj to withdraw the amount so as to utilise the same to obtain undue advantage of sanction of a new consumer loan.
iv The second respondent did not perform the duties allotted to him after signing the attendance register from 11.09.1989 to 16.09.1989 and that he did not give any convincing explanation for refusing to perform the duties allotted to him in the normal course.
v The second respondent suffered punishment of warning as per the order dated 14.03.1985 and also reduction to the next lower stage upto a maximum period of two years as per the order dated 21.09.1985 and stoppage of special allowance for three years as per order dated 14.12.1987; the punishments did not have any corrective impact on him.
11 In reply to the above said charge memo, the second respondent submitted his explanation denying the charges levelled against him. Not satisfied with his explanation, an enquiry was held by the petitioner bank. In the enquiry, on the side of the petitioner bank, seven witnesses were examined and Exs.P.1 to P.26 were marked. The Enquiry Officer submitted his report dated 31.12.1990 holding that the fifth charge was not proved and the second charge to the extent that the second respondent man-handled the Accounts Manager and caused damage to the letter, was not proved.
12 The Disciplinary Authority sent a letter dated 08.02.1991 to the second respondent, enclosing a copy of the Enquiry Report and proposed the punishment of dismissal from service and in the said letter, he also called upon the second respondent to submit his representation on the said proposal.
13 The second respondent filed O.S. No.457 of 1991 on the file of the District Munsif Court, Madurai, seeking declaration that the proceedings dated 08.02.1991 of the Disciplinary Authority, proposing the punishment of dismissal from service, was null and void and for grant of permanent injunction restraining the petitioner bank from enforcing the proceedings dated 08.02.1991.
14 Though an ex parte order of injunction was passed on 14.03.1991, the same was not extended beyond 01.04.1992. Thereafter, the Disciplinary Authority passed the order dated 28.01.1993, dismissing the second respondent from service.
15 The District Munsif Court, Madurai, dismissed the suit in O.S.No.457 of 1991 on 09.07.2003. Challenging the said judgment, the second respondent filed an appeal in A.S. No.239 of 2003 on the file of the III Additional Sub-Court, Madurai and the said appeal was also dismissed by the said Court on 17.06.2005.
16 While so, the second respondent raised an Industrial Dispute on 23.05.2005, questioning the dismissal order dated 28.01.1993. When the conciliatory efforts proved futile, the Government of India referred the Industrial Dispute regarding non-employment of the second respondent for adjudication by the Tribunal by order dated 14.05.2008. Pursuant thereto, the dispute was taken on file by the Tribunal in I.D. No.23 of 2008. Meanwhile, the second respondent had reached the age of superannuation on 01.03.2005.
17 Before the Tribunal, no oral evidence was let in by both sides. The second respondent produced three documents and those documents were marked as Exs.W.1 to W.3. On the side of the petitioner bank, Exs.M.1 to M.19 were marked.
18 After hearing the arguments, the Tribunal passed an award dated 22.06.2011 in I.D. No.23 of 2008, modifying the punishment of dismissal from service into one of compulsory retirement.
19 Challenging the above said award, the petitioner bank has filed W.P.No.39 of 2012 and the workman has filed W.P. No.2101 of 2012.
20 According to the petitioner bank, the Industrial Dispute should have been rejected by the Tribunal, without granting any relief to the second respondent.
21 On the contrary, according to the second respondent, the Tribunal ought to have granted full wages for the period of non-employment after holding that all the charges were not established.
22 Both parties find fault with the Tribunal in its exercise of jurisdiction under Section 11-A of the Industrial Disputes Act.
23 Heard both sides.
24 The learned counsel for the petitioner bank has made the following submissions:
i The Tribunal, having particularly held that the first charge was proved, should not have interfered with the order of dismissal passed by the petitioner bank. According to him, amongst all the charges, the first charge is so grave warranting dismissal from service on its proof alone. Hence, the Tribunal failed to exercise properly, the jurisdiction under Section 11-A of the Industrial Disputes Act.
ii Though Isaac Paulraj, sub-staff, withdrew Rs.7,000/- when there was only a paltry amount in his account, to pay the same to the second respondent, the mis-conduct committed by the said Isaac Paulraj is lesser in degree than the mis-conduct committed by the second respondent, inasmuch as the second respondent instigated Isaac Paulraj to withdraw the amount and hence, the imposition of lesser punishment to Isaac Paulraj could not be faulted.
iii In view of the past record of the second respondent, the dismissal order is perfectly in order.
iv Reliance is placed on the order dated 03.03.1997 passed in W.P. No.3933 of 1988, dismissing the writ petition, wherein, the second respondent questioned the order of imposition of punishment of withdrawal of special allowance for three years.
v There was an inordinate and un-explained delay of 12 years in raising the dispute; hence, the dispute ought to have been rejected by the Tribunal on the ground of laches. In support of this contention, reliance is placed on the Division Bench judgment of this Court reported in 1998 I LLJ 560 (Madras) Chairman cum Managing Director vs. Ranganatha Iyer V.S. and 2009 (2) LLN 90, Panchi Devi vs. State of Rajasthan and others.
vi In any event, even if the Tribunal was correct in modifying the punishment into one of compulsory retirement, the benefit pursuant thereto, should be given from the date of raising the dispute alone.
vii Reliance is also placed on the judgment reported in 2006 1 LLJ 987, Karnataka Bank Ltd. vs. A.L.Mohan Rao in support of the contention that the Tribunal failed to exercise properly the jurisdiction vested under Section 11-A of the Industrial Disputes Act.
25 On the other hand, the learned counsel for the second respondent has made the following submissions:
i The Tribunal ought to have recorded a finding that none of the charges was proved, after re-appreciating evidence, by exercising its powers under Section 11-A of the Industrial Disputes Act, but, the Tribunal failed to discharge the same.
ii In any event, the Tribunal interfered with the punishment after it came to the conclusion that some of the charges were not established and hence, there is no need to interfere with the same.
iii The allegations made in the first charge would not constitute mis-conduct and in any event, when the Tribunal held that some of the charges were not proved, the first charge was one among them; hence, there is no need to interfere with the Award.
iv When it was pleaded by the second respondent, in the claim statement in I.D.No.23 of 2008 before the Tribunal that the petitioner bank did not initiate any disciplinary proceedings against Isaac Paulraj and the Teller, in relation to withdrawal of Rs.7,000/- from the account of Isaac Paulraj, the petitioner bank did not deny the same in the counter statement. Hence, the learned counsel for the petitioner bank, now, is estopped from producing the order of minor punishment imposed on Isaac Paulraj.
v Reliance placed on the past record and the order dated 03.03.1997 in W.P. No.3933 of 1988 have no relevance and more weightage shall be given to the charges made in the charge memo dated 17.11.1989 that led to the passing of the dismissal order.
vi Since the second respondent diligently pursued the matter before the Civil Court to its logical conclusion, the petitioner bank cannot plead that there was a delay, much less, inordinate delay of 12 years in raising the dispute.
vii In support of his contention with regard to interference with the punishment, the learned counsel for the second respondent has relied on the following judgments:
1996 (1) LLN 526, Palghat BPL and PSP Thozhilali Union and BPL India Ltd. and another;
(2010) 3 SCC 637, Krishan Singh vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana);
2011 (1) LLN 77 (DB) (Madras), G. Annie Christy vs. Deputy Chief Mechanical Engineer, Personnel Branch, Golden Rock Workshop, Southern Railway, Ponmalai, Trichy 620 004 and another; and 26 I have considered the above submissions made by the learned counsel on either side.
27 It is not in dispute that on 08.09.1989, the second respondent applied for a consumer loan for purchase of one Videocon Washing Machine, when there was already a subsisting loan. Since he was not eligible to seek a fresh loan when there was a subsisting loan, he sought to close the existing loan account. However, his request for a fresh consumer loan was declined on the ground that he suffered deduction from his monthly salary exceeding < of his take home salary, pursuant to a Garnishee order in respect of one Kothari Silk Stores.
28 In such circumstances, the second respondent requested for return of his loan application and he also requested for refund of the amount of Rs.7,000/- remitted by him to close the existing consumer loan account. His request was accepted, his loan application was returned and the remittance of Rs.7,000/- made by him was also returned to him and the earlier consumer loan availed by him was also revived. It is quite pertinent to point out that all these events happened on 08.09.1989. In such circumstances, I am of the considered view that the submission made by the learned counsel for the second respondent that the allegations made with regard to charge no.1 would not constitute mis-conduct, is acceptable to me and I have no hesitation whatsoever to reject the submission made by the learned counsel for the petitioner bank.
29 In my considered view, when the petitioner bank thought to proceed on the alleged assault made by the second respondent on the Accounts Manager on 09.09.1989 and also the alleged damage caused by the second respondent to the letter, the petitioner bank roped in the incident that took place on 08.09.1989 and also the earlier incidents which took place long back that found part of the fifth charge and the same was also held as not proved.
30 In any event, it is admitted that the loan application was not produced in the domestic enquiry. The allegation was that the second respondent failed to disclose about the deduction pursuant to the Garnishee order. But, the relevant document, viz., the loan application was not produced.
31 P.W. 5, one V.A. Jaya Prakash, an officer of the petitioner bank was examined in support of the first charge. P.W.5 is the one who processed the loan application. He did not depose that the second respondent did not mention about the deduction made pursuant to the Garnishee order. When the Enquiry Officer put a question to this witness, he answered that except one item of Court attachment order, he did not remember other items.
32 The following passage from the report of the Enquiry Officer in this regard is extracted hereunder:
"To a specific question put by me to PW 5 he answered that except one item of Court attachment order amounting to thousand and odd rupees, he did not remember other items".
33 Those aspects, viz., non-production of the loan application and the deposition of P.W.5, were not taken into account by the Enquiry Officer while recording a finding that this charge was proved. Not taking into account the aforesaid relevant material, would render the finding perverse.
34 As submitted by the learned counsel for the second respondent, even if the second respondent did not mention about the deduction pursuant to the Garnishee order in his loan application, the same could not be the basis for issuing a charge memo alleging commission of mis-conduct. If the petitioner bank was of the view that the second respondent was not entitled to get the consumer loan, the petitioner bank has every right to reject the same. It also correctly rejected the loan application of the second respondent and the second respondent also accepted the same. Hence, the petitioner bank was not correct in making much out of the said incident.
35 The second respondent has categorically pleaded in the claim statement that no action was taken against Isaac Paulraj for making withdrawal from his account when there was only a very meagre amount in his account. No action was also taken against the person who permitted such withdrawal. The following passage is found in paragraph no.8 of the claim statement:
"8. . . In the first place it is not known as to how the respondent bank has permitted Isaac Paulraj to withdraw Rs.7,000/- when he did not have sufficient funds. Secondly, the cashier who had passed the withdrawals in respect of Rs.7,000/- has not been questioned. It is not the case of the respondent bank that the petitioner even prevailed upon the cashier to make the payment to Isaac Paulraj. When money has been permitted to be withdrawn without sufficient funds, instead of questioning the concerned and proceeded against them, this charge was levelled against the petitioner. . ."
But, the same was not denied in the counter statement.
36 However, during the course of hearing, the learned counsel for the petitioner bank produced a paper showing that Isaac Paulraj was issued a charge sheet dated 08.05.1990 alleging that he had withdrawn Rs.3,000/-, Rs.3,000/- and Rs.1,000/- from his S.B. A/c through Teller counter, when there was a balance of only Rs.373.53 and that he was imposed with the punishment of stoppage of two increments with cumulative effect of postponing future increments vide order dated 25.04.1991 and the appeal preferred by Isaac Paulraj against the said order was rejected by the appellate authority by order dated 09.09.1991.
37 This is objected to by the learned counsel for the second respondent submitting that the petitioner bank neither pleaded before the Tribunal nor produced this order and marked the same as exhibit before the Tribunal and hence, this should be ignored.
38 In my considered view, the above submission of the learned counsel for the second respondent is perfectly correct. Without making a proper pleading and also without establishing the same, the petitioner bank shall not produce materials before this Court in the Writ proceedings.
39 I am not inclined to agree with the submission of the learned counsel for the petitioner bank that the degree of mis-conduct committed by Isaac Paulraj in the withdrawal of Rs.7,000/- from his account is lesser than the degree of mis-conduct committed by the second respondent.
40 There is no iota of evidence to the effect that the second respondent directed Isaac Paulraj to withdraw amount from the latter's account, even though there was only a paltry balance in the said account. The second respondent merely wanted financial assistance from Isaac Paulraj. Only to that extent, there is evidence. It is not the case of the petitioner bank that the second respondent made arrangement with the Teller for withdrawal of the amount. Besides, no action was also taken against the Teller, though Isaac Paulraj was proceeded against and he was imposed with punishment of stoppage of two increments with cumulative effect. But, the second respondent was imposed with the extreme and dis-proportionate punishment of dismissal from service.
41 In my considered view, Isaac Paulraj should be blamed more for withdrawing Rs.7,000/- when he had a paltry amount of Rs.373.53 in his account. Hence, I reject the contention made by the learned counsel for the petitioner bank.
42 It is true that the second respondent suffered three punishments before the issuance of charge memo dated 17.11.1989. To say in detail, he was imposed the punishment of warning by order dated 14.03.1985. Secondly, he was imposed with the punishment of reduction of pay to the next lower stage for a period of two years by order dated 21.09.1985. Thirdly, he was awarded punishment of stoppage of special allowance for three years by order dated 14.12.1987 and the same was also confirmed by the appellate authority in the order dated 10.03.1988. Those past records are only aggravating factors. But, if the grave charges made in the charge memo dated 17.11.1989 are not proved, the past records cannot be relied upon to sustain the dismissal order.
43 As stated above, the first charge has no basis. In my considered view, the second charge is a grave charge. But, the second charge was held as not proved to the extent that the second respondent man-handled the Accounts Manager and caused damage to the letter. In respect of the third charge, the culprit was Isaac Paulraj. I am not able to understand as to how the second respondent could be blamed for the withdrawal made by Isaac Paulraj from his account when there was a paltry balance. The fourth charge is that the second respondent did not discharge his duties from 11.09.1989 to 16.09.1989.
44 There was a claim by the second respondent that though he suffered punishment of withdrawal of special allowance, he could not be denied work relating to special allowance. According to the petitioner bank, the second respondent did not discharge the work of a Clerk from 11.09.1989 to 16.09.1989. This event is subsequent to the event that took place on 09.09.1989.
45 In any event, I am of the considered view that in the facts and circumstances of the case, dismissing the second respondent depriving the terminal benefits of his long years of service, for this action alone, is not warranted and therefore, I do not find any infirmity in the order of the Tribunal modifying the punishment of dismissal from service into one of compulsory retirement.
46 At this juncture, it is relevant to take note of the fact that the Tribunal came to the conclusion that only some of the charges were proved for interfering with the punishment. The following passage in paragraph no.11 of the award of the Tribunal is extracted hereunder:
"11.. . . In the matter of determination of the punishment by the Disciplinary Authority and approval by the Appellate Authority both appear to have been influenced by the cumulative impact of all the charges levelled against the petitioner whereas all the same do not stand proved against him but only some of them are proved."
47 Therefore, the submission made by the learned counsel for the petitioner bank relating to past records of the second respondent lacks merit. Likewise, the order dated 03.03.1997 in W.P. No.3933 of 1988 dismissing the writ petition preferred by the second respondent, questioning the order imposing punishment of withdrawal of special allowance for three years, could not be of any avail to the petitioner bank to sustain the dismissal order.
48 The judgment relied on by the learned counsel for the petitioner bank reported in 2006 1 LLJ 987, Karnataka Bank Ltd. vs. A.L.Mohan Rao, would not render any assistance to the petitioner bank for the reason that in the said case, an Attender of the bank was dismissed on the ground that he was involved in gross mis-conduct by colluding with the Branch Manager and he made entries in the ledger and he also admitted that he had prepared the relevant credit and debit slips and also the withdrawal slip and other documents, for the purpose of a fictitious loan. In such circumstances, the dismissal of the said person was upheld by the Apex Court.
49 The next issue for consideration is as to whether there was inordinate delay on the part of the second respondent in raising the dispute that would be fatal and also whether the Tribunal ought to have rejected the Industrial Dispute on the ground of laches.
50 The second respondent filed O.S. No.457 of 1991 before the District Munsif Court, Madurai, questioning the proceedings dated 08.02.1991 of the petitioner bank, imposing punishment of dismissal on the second respondent. The said suit was dismissed only on 09.07.2003, after contest. The second respondent also filed an appeal in A.S. No.239 of 2003 on the file of the III Additional Sub-Court, Madurai. The said appeal was dismissed on 17.06.2005. These factors are relevant to decide as to whether the second respondent slept over for 12 years.
51 In my considered view, since the second respondent diligently pursued his remedies before the Trial Court and also the appellate Court, the Industrial Dispute cannot be thrown out at the threshold.
52 Reliance placed by the learned counsel for the petitioner bank on the judgment of a Division Bench of this Court in 1998 1 LLJ 560 Madras in support of his contention that the Tribunal ought not to have entertained the Industrial Dispute on the ground of laches, could not be applied to the facts of this case for more than one reason. Firstly, that judgment did not arise out of an Industrial Dispute. In that case, a non-workman filed an application in C.P.No.82 of 1978 under Section 33(C)(2) of the Industrial Disputes Act, claiming retrenchment compensation when he was terminated from service by order dated 07.11.1975 passed by Neyveli Lignite Corporation. The claim petition was dismissed by the Labour Court on the ground that he was not a workman under Section 2(s) of the Industrial Disputes Act. Thereafter, again, he moved the Labour Court by filing a claim petition in C.P. No.966 of 1980 under Section 33(C)(2) of the Industrial Disputes Act, claiming retrenchment compensation. The Labour Court dismissed the said petition as well. Thereafter, he filed a writ petition in 1984 questioning the removal order dated 07.11.1975. In such circumstances, the Division Bench of this Court, held that the writ petition shall be rejected on the ground of laches.
53 The other judgment reported in 2009 (2) LLN 90, Panchi Devi vs. State of Rajasthan and others, relied on by the learned counsel for the petitioner bank in support of his contention that the Industrial Dispute ought not have to been entertained since the same is hit by laches, also can be of no avail to the petitioner bank for the reason that in the said case, a widow claimed family pension after 14 years subsequent to the death of her husband in 1978. The provision for family pension came into existence in the Rules only in 1982. In the said circumstances, it was held that she is not entitled to family pension. Additionally, it was held that she had claimed family pension after a period of 14 years by approaching the Court and hence, her claim was hit by laches.
54 Thus, inasmuch as the aforesaid judgments relied on by the learned counsel for the petitioner bank are distinguishable on facts, I am of the considered view that the aforesaid judgments cannot be of any avail to the petitioner bank.
55 On the other hand, in my considered view, the Tribunal exercised its power under Section 11(A) of the Industrial Disputes Act, judiciously and interfered with the punishment of dismissal from service imposed by the petitioner bank by modifying the same into one of compulsory retirement. The Tribunal thought of not to deprive the terminal benefits of the second respondent as he served for long years, in the facts of the case.
56 While exercising its extra-ordinary jurisdiction under Article 226 of the Constitution of India, this Court is not inclined to interfere with award of the Tribunal, particularly, when there is no perversity therein.
57 Since exercised the jurisdiction vested with it under Section 11-A of the Industrial Disputes Act and modified the punishment from dismissal from service into one of compulsory retirement, I am not inclined to interfere with the same. This view of mine is fortified by the judgments cited by the learned counsel for the second respondent and those judgments are dealt with hereunder.
58 A Division Bench of this Court in which I was a member, in the judgment reported in 2011 (1) LLN (DB) (Mad.), G. Annie Christy vs. Deputy Chief Mechanical Engineer, Personnel Branch, Golden Rock Workshop, Southern Railway, Ponmalai, Trichy 620 004 and another, held that the Tribunal has power to re-appreciate evidence and to come to a different conclusion from that of the employer on the mis-conduct and also has power to interfere with the punishment. Paragraph nos.20 and 21 of the said judgment are re-produced hereunder:
"20. The constitutional validity of Section 11-A of the Act was questioned by some employers, on its introduction in 1971. The Honourable Apex Court upheld Section 11-A of the Act in the judgment in THE WORKMEN OF M/S.FIRESTONE TYRE AND RUBBER CO. OF INDIA (PVT.) LTD. VS. THE MANAGEMENT AND OTHERS reported in 1973 (1) SCC 813. The statement of objects and reasons for introducing Section 11-A was stated by the Honourable Apex Court in para 3 of the said judgment. In this regard, para 3 of the judgment reported in 1973 (1) SCC 813 is extracted hereunder:
"3. Regarding Section 11-A, in the statement of objects and reasons it is stated as follows:
"In Indian Iron and Steel Company Limited v. Workmen (AIR 1958 SC 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 on misconduct, the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc., on the part of the management.
The International Labour Organisation, in its recommendation (No.119) concerning termination of employment at the initiative to the 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 that other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organization has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) 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 that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the 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 reliefs to the workman including the award of any letter 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. . . "
21. The Honourable Apex Court, in the judgment reported in 1973 (1) SCC 813, has categorically held that the Industrial Tribunal has power and jurisdiction to re-appreciate the evidence and to record a different findings. In this regard, para 13 of the said judgment is extracted hereunder:
"13.The above position has been completely changed by Section 11-A..........Even in cases where a domestic enquiry has been held and finding of misconduct recorded, the Labour Tribunals have now full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct....."
Paras 40 and 41 of the judgment reported in 1973 (1) SCC 813 are also relevant for the purpose of this case and the same are extracted hereunder:
"40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A."
59 The Apex Court, in the judgment reported in (2010) 3 SCC 637, Krishan Singh vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), has restored the award of the Tribunal when the Tribunal interfered with the punishment under Section 11(A) of the Industrial Disputes Act when the High Court of Haryana reversed the same. Paragraph no.17 of the said judgment is extracted hereunder:
"17. Wide discretion is, therefore, vested in the Labour Court while adjudicating an industrial dispute relating to the discharge or dismissal of a workman and if the Labour Court has exercised its jurisdiction in the facts and circumstances of the case to direct reinstatement of a workman with 50% back-wages taking into consideration the pleadings of the parties and the evidence on record, the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India will not interfere with the same, except on well-settled principles laid down by this Court for a writ of certiorari against an order passed by a Court or a Tribunal."
60 The Apex Court, in the judgment reported in 1996 (1) LLN 526, Palghat BPL and PSP Thozhilali Union vs. BPL India Ltd. and another, has restored the award of the Labour Court when the Labour Court interfered with the punishment of dismissal under Section 11-A of the Industrial Disputes Act when the High Court reversed the same. Paragraph no.6 of the said judgment reads as under:
"6. In this case, the finding recorded by the High Court and the Labour Court is that stones were thrown and the officers were attacked which resulted in grievous injuries to the officers. But, it is seen that the appellants alone were not members of the assembly of the workmen standing at BPL bus stop. The Labour Court had discretion under S.11-A of the Industrial Disputes Act to consider the quantum of misconduct and the punishment. In view of the surging circumstances, viz., the workmen were agitating by their collective bargain for acceptance of their demands, and when the strike was on the settlement during conciliation proceedings, though initially agreed to, was resiled later on. They appear to have attacked the officers when they were going to the factory. Under these circumstances, the Labour Court was well justified in taking a lenient view and in setting aside the order of dismissal and giving direction to reinstate the workmen with a cut of 75 per cent of the backwages up to the date of the award. In our considered view the discretion exercised by the Labour Court is proper and justified in the above facts and circumstances. The High Court had not adverted to these aspects of the matter. If merely had gone into the question whether the act complained of is a misconduct."
D. HARIPARANTHAMAN, J.
cad 61 Therefore, I am of the considered view that there is no infirmity whatsoever in the award of the Tribunal and hence, both the writ petitions have to suffer dismissal.
62 Further, at thus juncture, I would like to take note of one other important factor that the petitioner bank is to be totally blamed for not producing any of the exhibits marked in the enquiry before the Industrial Tribunal, particularly, when the petitioner bank sought to sustain the dismissal order based on the enquiry. It is a different matter altogether if the bank wanted to give up the domestic enquiry and the findings thereon and to let in fresh evidence. In fact, that may lead to the very root of the matter. However, the second respondent did not take advantage of the grave omission committed on the part of the petitioner bank.
In the result, for all the aforesaid reasons, both the writ petitions are dismissed. No costs. Connected Miscellaneous Petition is closed.
30.08.2012 cad Index:Yes Internet:Yes W.P. Nos.39 and 2101 of 2012