Orissa High Court
Sri Dharamananda Dalei vs Presiding Officer Labour Court ... on 18 January, 2018
Equivalent citations: AIRONLINE 2018 ORI 219
HIGH COURT OF ORISSA: CUTTACK Applications under Articles 226 and 227 of the Constitution of India. ------------- W.P.(C) No.16513 of 2014 The Management of The Urban Co-operative Bank Ltd., Tinkonia Bagicha, Cuttack. ...... Petitioner -Versus- Presiding Officer, Labour Court, Bhubaneswar and another ...... Opp. Parties For Petitioner : Mr. Sudarshan Nanda For Opp. Parties : Additional Government Advocate (For O.P.-1) M/s. Sidheswar Mallik & Prahalada Chandra Das (For O.P.- 2) ------------- W.P.(C) No.25823 of 2014 Sri Dharamananda Dalei ...... Petitioner -Versus- Presiding Officer, Labour Court, Bhubaneswar and another ...... Opp. Parties For Petitioner : M/s. Sidheswar Mallik & Prahalada Chandra Das For Opposite Parties : Additional Government Advocate (For O.P.-1) Mr. Sudarshan Nanda (For O.P.- 2) -------------------------------------- Date of Judgment : 18.01.2018 -------------------------------------- P R E S E N T: THE HONOURABLE KUMARI JUSTICE S. PANDA AND THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA ------------------------------------------------------------------------------------------------------- 2 K.R. Mohapatra, J.
W.P.(C) No.16513 of 2014 has been filed by the Management of Urban Co-operative Bank Ltd., Cuttack and W.P. (C) No.25823 of 2014 has been filed by the Workman, namely, Dharamanada Dalei assailing the award dated 30.06.2014 passed by Presiding Officer, Labour Court, Bhubaneswar in I.D. Case No.77 of 1988, wherein learned Labour Court awarded a sum of Rs.3.00 lakh as compensation in lieu of reinstatement and back wages in favour of the Workman and directed the Management to pay the said amount to the Workman within a period of one month from the date of publication of the award in the official gazette. As both the writ petitions have been filed assailing the aforesaid award, those are taken up for analogous hearing for the sake of convenience in discussion and adjudication.
2. The facts in nut shell relevant for adjudication of the writ petitions is that the Workman, namely, Dharamananda Dalei was a sub-staff under the Management of the Bank since 1981. While continuing as such, charge-sheet alleging misconduct was served on the Workman on 07.06.1985, on the allegation that he had removed a five rupees denomination bundle amounting to Rs.500/- from the cash. The then Cashier, namely, Sri Girish Kumar Patnaik was also charged with negligence in duty for loss of Rs.4,000/- to the Management of the Bank. Upon submission of explanation by the Workman, an enquiry was held and the Workman was found guilty of 3 the charges. The Workman in his show cause contended that he was not responsible as he had not removed the five rupees denomination bundle amounting to Rs.500/- from the cash and he was no way responsible for any loss to the Management of the Bank. However, upon being found guilty of the charges, the Workman was terminated from service with effect from 11.03.1987. The Workman not being satisfied with the manner of enquiry conducted as well as punishment imposed, moved the labour machinery and on failure of conciliation, the matter was referred to the learned Labour Court, Bhubaneswar by the appropriate Government to adjudicate the following schedule of reference.
"Whether the termination of services of Sri Dalei, ex-sub- staff with effect from 11.03.1987 by the Management of Urban Co-operative Bank Ltd., Cuttack is legal and/or justified? if not, to what relief Sri Dalei is entitled to?"
3. The Workman filed his written statement of claim contending that the enquiry was not conducted by following the principle of natural justice. As he was not in good term with the Cashier, namely, Sri Girish Kumar Patnaik, he had implicated him in the alleged shortage of cash for which Sri Patnaik was solely responsible. He also raised objection to the appointment of Sri Akula 4 Swain as the Enquiring Officer. He further contended in his statement of claim that the enquiry was not fair and proper.
4. The Management, on the contrary, filed written statement contending that the enquiry was conducted in a fair and proper manner affording ample opportunity to the Workman to defend his case. The Workman had produced the bundle of notes amounting to Rs.500/- and confessed his guilt during enquiry. Sri Patnaik, the then Cashier, had informed the Management of the Bank about the shortage of cash of Rs.4,000/- and implicated the Workman for the incident. Due to his past conduct, the Management of the Bank had lost confidence on the Workman. Hence, the Management of the Bank contended that the punishment of removal from service was just and proper, as his continuance in service would be prejudicial to the interest of the Bank. It was further contended by the Management that reinstatement of the Workman would cause financial loss to the Management of the Bank. As the Management of the Bank had lost confidence in him, the Workman could not be entrusted with any responsible work. Moreover, after his dismissal from service, he was in gainful employment. As such, the payment of back wages would not be proper. Taking into consideration the rival contentions of the parties, learned Labour Court framed the following issues:- 5
"(i) Whether the domestic enquiry conducted against the Workman preceeding termination is fair and proper?
(ii) Whether the termination of service of Dharmananda Dalei, Ex-sub-staff with effect from 11.08.1987 by the Management of Urban Co-
operative Bank Ltd., Cuttack is legal and/or justified?
(iii) To what relief, the Workman is entitled to?"
5. Since the fairness of the domestic enquiry was in question the same was taken up as preliminary issue and the enquiry was held to be not fair and proper. However, learned Labour Court, vide his award dated 20.07.1993 held the termination of the Workman with effect from 11.03.1987 to be legal and justified. Assailing the same, the Workman moved this Court in O.J.C. No. 8562 of 1993, which came to be disposed of on 28.01.2014, setting aside the award dated 20.07.1993 and the matter was remitted to learned Labour Court, Bhubaneswar directing to hear and dispose of Issue Nos. (ii) and (iii) afresh on merit on the basis of evidence already adduced giving opportunity of hearing to the parties concerned. It was also directed by this Court to complete the exercise by end of March, 2014. Accordingly, learned Labour Court heard Issues Nos. (ii) and (iii) afresh on the evidence available on record and passed the impugned award on 30.06.2014.
6
6. Heard learned counsel for the parties. Perused the materials on record as well as the case laws cited at the Bar.
7. Mr. Mallik, learned counsel for the Workman submitted that, as the Workman has attained the age of superannuation in the meantime, it would be futile on his part to pray for a direction for reinstatement although the Workman was entitled to the same. However, the compensation of Rs.3.00 lakh awarded in lieu of reinstatement and back wages is grossly inadequate and the Workman is entitled to the full back wages, as the charges leveled against him could not be proved by the Management. Referring to the evidence on record, Mr. Mallik submitted that learned Labour Court while answering the Issue No.1 against the Management, had afforded opportunity to the Management to lead evidence in support of the charges leveled against the Workman. The Management had examined as many as five witnesses and the second-party Workman examined only himself as a witness. Whereas Sri Akula Swain (M.W.1) was examined at the time of adjudication of the Issue No.(i) as a preliminary issue. M.Ws. 2, 3, 4 and 5 were examined by the Management to prove the charges leveled against the Workman. M.W.2, namely, Sri Girish Kumar Patnaik was the Cashier of the Management of the Bank at the relevant time. He deposed that the Workman was engaged to carry the Ledger from one Section to another Section and for sorting and stitching of the notes. He was 7 also engaged in carrying the cash tray to the safe from the cash counter and vice versa. On 04.03.1985, when he (M.W.2) was counting the cash at 5.00 P.M., Mr. J.N. Tripathy, who was in payment counter, could detect a shortage of cash of Rs.500/-. On enquiry, the Workman admitted to have removed the cash and gave assurance to make good the same on the next day. However, in his cross-examination, M.W.2 had admitted that there was a shortage of cash of Rs.4,000/- and the same was recovered from him. He also admitted in his cross-examination that his promotion was withheld and he was reverted. He had also admitted in his cross-examination that he used to bring cash from the safe and there was a net around his seat and no one could enter into his chamber. According to him, he came to know about shortage of cash at about 5.00 P.M. from the Cashier, namely, J.N. Tripathy, who was in payment counter. But, surprisingly Mr. Tripathy was not examined by the Management. Moreover, witnesses, namely, M.Ws. 3, 4 and 5 had no direct knowledge about the incident. Mr. Mallik further submitted that on a close reading of the evidence of M.W.2, it appears that nowhere M.W.2 had deposed that the Workman had admitted to have removed the cash of Rs.500/-. Ext.1, the show cause notice, does not disclose the date of alleged confession of the Workman regarding removal of cash and the name of the person before whom Mr. Dalei had made confession about the alleged removal of cash from the cash of the 8 Bank. Ext.8 is the enquiry report submitted by M.W.1. However, describing Ext. 8 to be the preliminary enquiry report, M.W.1 had fixed the enquiry to 18.03.1986, on which date, he had examined Sri Girish Kumar Patnaik, the then Cashier M.W.2. Mr. Mallik raising objection to the manner of the enquiry conducted by M.W.1 submitted that when M.W.1, the Enquiry Officer had submitted his report vide Ext.8, he had no authority to proceed further to examine further witness. There was no direction from any authority to conduct further enquiry into the matter.
8. The Workman (W.W.1) in his evidence had deposed that he was not intimated about the appointment of M.W.1 as Enquiry Officer. There were also other irregularities in conducting the enquiry. He, accordingly submitted that, learned Labour Court has rightly came to a conclusion that there is no material on record to hold the Workman guilty of charges leveled against him. He relying upon the decision in the case of the Deepali Gundu Surwase -v- Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others, reported in (2013) 10 SCC 324 submitted that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/Workman, the nature of misconduct, if any, found proved 9 against the employee/Workman, the financial condition of the employer and similar other factors. He further submitted that if an employee wants to avoid the payment of full back wages, it has to plead and lead cogent evidence to prove that the employees/Workman was gainfully employed and was getting wages equal to the wages that he/she was drawing prior to termination of service. No such evidence having been adduced by the Management, the Workman is entitled to full back wages instead of a meagre amount of Rs.3.00 lakh as compensation in lieu of reinstatement and back wages.
9. Mr. Nanda, learned counsel for the Management, on the other hand, refuting the submissions of Mr. Mallik, learned counsel for the Workman, contended that the Management in its written statement has taken a plea of loss of confidence and as such the Workman is not entitled to reinstatement in service. In support of his case he relied upon the case of Bharat Heavy Electricals Ltd. -v- M. Chandrasekhar Reddy and others, reported in AIR 2005 SC 2769 submitted that once an employer lose confidence in the employee, the order of punishment must be considered to be immune from challenge, for the reasons that the duties discharged in the office of trust and confidence requires absolute integrity, more particularly in a Bank, which deals with public money and in a case of loss of confidence, reinstatement cannot be directed. He further submitted that in the show cause notice dated 29.04.1985 [Annexure-1 to 10 W.P.(C) No.25823 of 2014] the Management of the Bank clearly described the imputation as under:-
"....at the time of transit from counter to safe you had removed a bundle of five rupee notes amounting to Rs.500/- and on the next day when there was shortage of cash for Rs.500/- you voluntarily confessed to have taken the amount....."
To that the Workman submitted his reply on 30.05.1985 (Annexure-2 to W.P.(C) No. 25823 of 2014) impliedly admitting the same as follows:-
"xx xx xx The cashier has given such false report in order to put me into trouble.
In fact, I got a bundle of 5 rupees note in the receipt counter at about 5 P.M. on 3.3.85 which was the Sunday when I was going to close the Bank after working of the massons inside the Bank premises. As it was Sunday and no officer of the Bank were present I kept the said bundle of note in the Almirah and locked the Bank premises. On the next day, i.e., on Monday, I handed over the amount to the cashier in the first hour within the knowledge of the staffs of the Bank. Hence there is no scope for alleging that I removed the said bundle of note at the time of transit to counter.
xx xx xx"
Hence, the Cashier has admitted to have retained a bundle of five rupees notes amounting to Rs.500/- and handed of the same to Cashier on the next day.
Mr. Nanda referring to the first enquiry report [Annexure- 5 to W.P.(C) No. 25823 of 2014] submitted that the conduct of the 11 Workman by retaining the amount, he alleged to have found at the cash counter, without handing over the same to either the Secretary/Accountant/President of the Bank, who were residing at Cuttack, speaks volumes of his integrity. As such, the Bank has rightly lost confidence in him, which deals with public money. Mr.Nanda, further submitted that the finding on issue No.1 with regard to fairness of enquiry is also bad in law. The Enquiry Officer after giving ample opportunity of hearing to the parties had submitted the enquiry report. The enquiry report was also communicated to the Workman. Following due procedure of law, the services of the Workman was terminated both on the count of misconduct as well as loss of confidence. The Management had not challenged the finding on Issue No.1 (preliminary issue) as at the first instance, learned Labour Court after giving opportunity of hearing to adduce evidence on the merit of the charges found the termination to be legal and justified. On remand, Learned Labour Court conducted fresh hearing of the matter on the materials available on record and passed the impugned award. In terms of ratio decided in Cooper Engineering Limited vs Shri P. P. Mundhe, AIR 1975 SC 1900, the Management can assail the finding on preliminary issue at any stage, even after final adjudication of the reference. The Management has rightly filed W.P.(C) No.16513 of 2014 assailing the findings on preliminary issue as well as findings of Issue Nos. 2 and 3. Hence, he contended that 12 the termination of the Workman is legal and justified and learned Labour Court had misdirected himself in interfering with the same.
10. In order to ascertain correctness of the arguments made by learned counsel for the parties, we went through the evidence of W.W.1 as well as M.W.2, who are the vital witness on the merit of the charges level against the Workman. On perusal of the evidence of the above-named witnesses, we find that nowhere the Workman had admitted to have removed a bundle of five rupees notes amounting to Rs.500/- from cash. On the other hand, he, in his reply to the show cause notice, had stated that he was looking after the masonry work in the Bank premises on the relevant date, i.e. on 03.03.1985, which was a Sunday. While sweeping the premises at about 5 P.M., he got a bundle of five rupees notes left at the cash counter. As it was a Sunday, he kept it on lock and key in an Almirah and handed over the same to M.W.2 on the next day, i.e. 04.03.1985. As he was not pulling well with Sri Patnaik (M.W.2), he taking advantage of the same, implicated the Workman. We have also perused the evidence of M.W.2. Nowhere in his evidence, he has testified that the Workman had removed a bundle of five rupees notes amounting to Rs.500/-. Be that as it may, learned Labour Court has discussed the evidence in threadbare and came to a finding that the charges levelled against the Workman were not proved. Only because a second view or a different opinion may be possible on re-appreciation of the evidence, this Court 13 in a Certiorari proceeding should not interfere with the findings arrived at by learned Labour Court, unless the same is perverse and based on no evidence. The submission of Mr. Nanda does not make out such a case. Hence, we are not inclined to interfere with the findings of learned Tribunal on issue Nos. 1 and 2.
11. Issue No.(iii) relates to entitlement of the Workman to the relief in consonance of the findings of Issue Nos. (i) and (ii). For convenience of our discussion, we feel it appropriate to quote the relevant portions of the judgment in the case of Deepali Gundu Surwase (supra), which reads as under:-
"38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/Workman, the nature of misconduct, if any, found proved against the employee/Workman, the financial condition of the employer and similar other factors. 38.3. Ordinarily, an employee or Workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/Workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the 14 termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/Workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or Workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or Workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/Workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/Workman and there is no justification to give a premium to the employer 15 of his wrongdoings by relieving him of the burden to pay to the employee/Workman his dues in the form of full back wages."
In the light of the aforesaid decision, we have to analyze the contentions raised by learned counsel for the parties. There is no dispute to the fact that the Workman was engaged in the Bank as a sub-staff (Peon) in the year 1981, vide his appointment order dated 16.03.1981 and continued as such till 11.03.1987, when he was terminated from service. There is also no quarrel over the fact that on the allegation of charges of misconduct, the Workman had to face a domestic enquiry, which was of course found to be not fair and proper by learned labour Court, vide its order dated 30.05.1991. The said order was never challenged by the Management of the Bank at the relevant point of time. However, at the first instance, learned Labour Court vide its award dated 20.07.1993 held the termination of the Workman to be legal and justified. Assailing the same, the Workman had filed O.J.C. No. 8562 of 1993, which was disposed of only on 28.01.2014 by this Court remitting the matter to learned Labour Court for fresh adjudication on the available materials on record. Accordingly, the impugned award has been passed. In the meantime, the Workman has already attained the age of superannuation. As such, the question of consideration of his reinstatement in service does not arise. The only question that remains to be adjudicated is 16 with regard to the back wages/compensation. Learned counsel for the Workman submitted that the Workman is entitled to the full back wages. He referring to his written note of submission, contended that the Workman was getting a gross salary of Rs.942.65 (Basic:Rs.637/- +D.A. Rs.159.25+ Medical Allowance Rs.50/-+ Washing Allowance Rs 20/-). As such, he would be entitled to Rs.11,00,311.80 towards full back wages. On perusal of the materials on record, we find no material with regard to the salary component of the Workman. Thus, it is very difficult to rely upon the statement made by the Workman in his written note of submission, that too in a Certiorari proceeding.
12. Learned counsel for the Management alleges loss of confidence on the Workman looking at his conduct. In fact, an employee of a Bank is required to exercise higher standard of honesty and integrity as the employees of a Bank deals with money of the depositors and customers. Every employee of a Bank is required to take all possible steps to protect interest of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence. He should do nothing, which is unbecoming on the part of an employee of the Bank. Good conduct and discipline are inseparable from the functioning of a Bank. Accepting the version of the Workman made out in his reply to the show cause notice, he was required to be more diligent in informing the officials of the Bank promptly, when he detected a bundle of five rupees notes amounting to Rs.500/-lying at 17 the cash counter. Keeping it in his custody without informing the authority till the next day, is something not expected from a diligent and honest employee of the Bank. A cursory reading of the case of State Bank Of India and anr. -vs- Bela Bagchi and Ors. , reported in AIR 2005 SC 3272, may be relevant for our discussion:
"11. xx xx xx A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, [1996] 9 SCC 68, it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependent upon of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charge against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance.
xx xx xx"
Mr. Nanda, learned counsel for the Management of the Bank submitted that the Bank is reeling under the severe financial crunch.
At the same time, he could not produce any material to support his 18 contention that the Workman was gainfully employed during all these periods.
Thus, while assessing the compensation/back wages, we have to strike a balance between the nature and length of the job of the Workman as well as the conduct/demeanour of the Workman vis-
à-vis the institution in which he was working at the one hand and the financial condition of the Management-Bank to pay the Workman on the other.
13. Summing up the discussions made above, we hold that the compensation awarded by learned Labour Court is inadequate. Accordingly, the Management-Bank is directed to pay the Workman a compensation of Rs.5,00,000/- (Rupees five lakh only) in lieu of reinstatement and back wages, within a period of six weeks from today.
14. With the above modification in the impugned award, both the Writ Petitions are disposed of accordingly.
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S. Panda, J. K.R. Mohapatra, J. Orissa High Court, Cuttack Dated the 18th January, 2018/bct/ss