JUDGMENT Arun Tandon, J.
1. Heard Sri J. N. Tewari, senior advocate, assisted by Sri Tarun Verma, learned counsel for the petitioner and Sri K. P. Agarwal, senior advocate, assisted by Sri H. N. Shukla learned counsel for the respondent-workman and standing counsel for respondent No. 1.
2. This writ petition has been filed by Canara Bank (hereinafter referred to as the Bank) against the award of Central Government Industrial Tribunal-cum-Labour Court, Kanpur, dated 12.12.2001 passed in Adjudication Case No. 133 of 1988. By means of the said award the labour court has decided .the reference dated 1.8.1988 in favour of the workman, Vijay Kumar Gupta, and has held that the punishment imposed upon the employee, namely Sri Vijay Kumar Gupta, from service is not justified and has directed reinstatement with full back wages.
3. The facts relevant for decision of this case are that Sri Vijay Kumar Gupta who was an employee of the Bank and who was working as Special Assistant in Khairagarh Branch of the Bank, was required to work as Incharge of Demand Draft Department at Khairagarh Branch with effect from 1.7.1980. The Bank Drafts bearing No. 85010 dated 18.6.1980 and No. 850099 dated 4.7.1980 of Rs. 50,000 each were presented for collection at Aligarh Branch of the Bank on 2.7.1980 and at Gwalior Branch of the Bank on 9.7.1980 respectively by the one and the same person, namely Ram Prakash. Both the above mentioned Bank Drafts were issued under the signature of Sri T. C. Agarwal who was working as Accountant in Khairagarh Branch of the Bank upto 19.6.2000 only. Later on it came to the knowledge of the Bank that the said Bank Drafts were forged and were not issued by the Khairagarh Branch of the Bank. The encashment of the aforesaid Bank Drafts resulted in the loss of one lac rupees to the Bank.
4. In respect of the said incident investigation was started and since at the relevant time Sri Vijay Kumar Gupta was responsible for the custody of the Bank Draft Leaves Book containing Leaves Nos. 850001 to 850100, disciplinary proceedings were initiated against Sri Vijay Kumar Gupta.
5. On 12.11.1980, Sri Vijay Kumar Gupta was served with a charge-sheet containing two charges, namely :
(a) Fraudulent preparation of the Bank Drafts referred to above, and
(b) Negligence with the missing of the security papers [draft leaves).
6. Sri Vijay Kumar Gupta filed his reply to the said charge-sheet. Sri S. J. Raman was appointed as Enquiry Officer. Opportunity of being heard was afforded to Sri Vijay Kumar Gupta during the disciplinary proceedings. Report of handwriting expert was also obtained in the matter and the same was accepted during the enquiry proceedings as the workman did not choose to examine the handwriting expert on the ground that the report of the handwriting expert had already been accepted. The workman also stated in his defence, during the disciplinary proceedings that he had no witness to examine and that he would make his submissions in writing. On behalf of the Management, three witnesses were examined, i.e., (1) Sri Radha Krishna, (2) Sri. K. K. Varshney and (3) Sri V. K. Krishnamurthy. The enquiry officer submitted his report after considering the material evidence on record as also having regard to the submissions made on behalf of the management and the workman. The enquiry officer vide his report dated 8.2.1984 found the charges proved against the petitioner. On receipt of the enquiry report a show cause notice dated 9.2.1984, was issued to the workman to show cause as to why the punishment proposed be not imposed upon him. Sri Vijay Kumar Gupta, in response to the aforesaid show cause notice, appeared before the disciplinary authority and was heard. The punishment of dismissal from service was imposed upon Sri Vijay Kumar Gupta by the disciplinary authority vide order dated 14.11.1984.
7. Feeling aggrieved with the aforesaid order of the disciplinary authority Sri Vijay Kumar Gupta filed appeal. The appeal so filed by Sri Gupta was dismissed by the appellate authority vide order dated 20.11.1985.
8. Sri Vijay Kumar Gupta, not being satisfied with the action taken against him, raised an industrial dispute. The Central Government, in exercise of powers Under Section 10 of the Industrial Disputes Act, referred the matter for adjudication to the Central Government Industrial Tribunal- cum-Labour Court, Kanpur vide notification dated 1.8.1988. The dispute was registered as Industrial Dispute No. 133 of 1988. The Industrial Tribunal by means of the award dated 12.12.1991, published under notification dated 9.1.1992. answered the reference in favour of the workman, hence the present writ petition.
9. On behalf of the petitioner- Bank two basic contentions have been raised :
(a) That the labour court having recorded a finding in para 12 of the award that the disciplinary proceedings were free and fair, had no jurisdiction to proceed to re- examine the entire evidence on record and to come to a conclusion contrary to the finding recorded during the disciplinary proceedings.
(b) That even if the labour court had Jurisdiction to re-examine the evidence and to record its own finding in respect of the guilt of the workman concerned, the findings recorded by the labour court are perverse and the labour court has virtually made out a new case in favour of the workman which was neither pleaded nor established during the disciplinary proceedings.
10. On behalf of respondent- workman it has been contended that the legal position with regard to the jurisdiction of the labour court subsequent to incorporation of Section 11A In the Industrial Disputes Act, 1947 vide Amendment Act 1 of 1971, has been settled by the Hon'ble Supreme Court of India vide judgment in the case of Workmen of M/s. Firestone Tyre and Rubber Co, of India (Pvt.) Ltd. v. Management and Ors., (1973) 1 SCC 813. With regard to the second issue raised on behalf of the petitioner it Is submitted on behalf of the workman-respondent that the labour court has recorded independent finding on the basis of the material available on the record. The finding so recorded cannot be said to be perverse by any stretch of imagination and no Interference under Article 226 of the Constitution of India is called for.
11. So far as first contention raised on behalf of the petitioner is concerned it would be worthwhile to notice the legal position as has been laid down by the Hon'ble Supreme Court in the case of Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. Management and Ors. (supra) wherein in para 36 the Apex Court has held as follows :
"We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded In the domestic enquiry unless one or other infirmities pointed out by this Court In Indian Iron and Steel Co. Ltd. case (supra), existed. The conduct of disciplinary proceedings and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or 'punishment was so harsh as to lead to an inference of victimization or unfair labour practice. This position, in our view, has now been changed by Section 11A. The words "in the course of the adjudication proceedings, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron and Steel Co. Ltd. case (supra), can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct ; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so ; and now it is the satisfaction of the Tribunal that finally decides the matter."
12. The aforesaid legal position has also been reiterated in subsequent judgments of the Apex Court viz., (1998) 4 SCC 410 and (2000) 8 SCC 12.
13. In view of the aforesaid legal position it is not open to the petitioner to contend that the labour court after having recorded a finding that the domestic enquiry was proper and valid, cannot reappraise the entire evidence for recording it own findings for the purposes of satisfying itself whether the evidence relied on by the employer establishes the misconduct alleged against the workman. It has also the power to differ from such finding if proper case Is made out. Thus, the first contention raised on behalf of the petitioner is answered in negative.
14. So far as the second contention raised on behalf of the petitioner is concerned the same has merit. The labour court by means of the impugned award in para 25 onwards has taken upon itself the responsibility of comparing the handwriting and signature in respect of the demand drafts and after referring to various strokes in the written words contained therein has proceeded to record a finding that the demand drafts have been written by Sri K. K. Varshney (referred to in para 26 of the award). In the disciplinary proceedings it was not the case of workman that the documents Ext. M-3, M-5, M-6 and M-7 have been written by Sri K. K. Varshney and in such circumstances the labour court has not only proceeded to act as hand writing expert (the power which the Court does not possess), it has further made out a new case for the workman concerned which was never pleaded nor established during disciplinary proceedings. In the opinion of the Court the authority of the labour court to re-appraise the evidence led by the parties during the disciplinary proceedings and to record its own findings in the light of the judgment of the Hon'ble Supreme Court in the case of Workmen of M/s. Firestone Tyre and Rubber Co. of India (Put.) Ltd. v. Management and Ors. (supra) cannot be to confer an extended power upon the labour court to act as a handwriting expert and to record a finding with regard to the hand writing after referring to various strokes etc. in the written words.
15. It is further worthwhile to notice that before the enquiry proceedings the workman had refused to examine any hand writing expert nor any other witness was produced by the workman. In such circumstances the labour court could not have disbelieved the report of hand writing expert on the basis of its own examination of the hand writing.
16. The labour court has also not referred to the facts noticed in the disciplinary proceedings with regard to the Bank Draft Leaves Book which contained the leaves of the Bank Drafts in question having been handed over in the custody of Sri V. K. Gupta and further that Sri V. K. Gupta had admittedly issued the Demand Drafts bearing Nos. 850099 and 850100. Thus, Sri V. K. Gupta had access to the Demand Drafts in question.
17. Further in paras 30C, 35 and 38 of the writ petition it has been specifically stated that Sri V. K. Gupta had received the Bank Draft Leaves Book containing Leaves Nos. 850001 to 850100 on 18.6.1980 and the register in that regard was signed by him. The aforesaid assertions have been replied by the workman in paras 10, 11 and 12 of the counter-affidavit and the allegations of the writ petition in that regard have not been disputed.
18. It is further worthwhile to notice that the labour court even after referring to the fact that three witnesses were examined on behalf of the Management, has deliberately not taken into consideration the evidence of the aforesaid witnesses while disagreeing with the finding recorded in the disciplinary proceedings.
19. In the facts and circumstances of the case as noticed above it is clear that the labour court has proceeded to make out a new case in favour of the workman and has exercised the jurisdiction of acting as hand-writing expert (which power the labour court does not possess in the opinion of this Court) and has further failed to take into consideration the material evidence on record, namely the evidence of employer's witnesses while passing the impugned award. In such circumstances the award of the labour court cannot be legally sustained and is liable to be set aside.
20. In normal course this Court would have remanded the matter for deciding the dispute afresh before the labour court. However, since the workman has been permitted to work in employment of the Bank under the interim orders of this Court since 1992, i.e., for the last more than 12 years and has either reached the age of retirement or shall reach the same in near future, such exercise would cause undue hardship to the workman, such a direction is not being issued.
21. However, having regard to the fact that under interim orders dated 21.4.1992 passed by this Court the workman continued in the service of the Bank and has also been paid salary for the duty discharged by him, as also having regard to the fact; that the workman must have retired or is due to retire, within a short period, it is provided that the petitioner shall not-be entitled to anything over and above what has been paid to him under the interim orders of .this Court, nor the workman would be liable to refund the salary which he has drawn while working under the interim orders of this Court.
22. The writ petition Is allowed subject to the observations made above.