JUDGMENT D.P. Singh, J.
1. Pleadings are complete and the counsel for the parties agree that the petition may be finally disposed off under the Rules of the .Court.
2. Heard learned counsel for the parties.
3. This petition is directed against a Labour Court award dated 3.5.1997 reinstating the respondent workman in service with continuity and back wages.
4. The respondent workman was employed as a Special Assistant in the Sandila Branch of the petitioner bank, which is a Public Sector Bank. On the detection of a fraud, he was placed under suspension on 16.4.1988 and after a fact finding enquiry, a full fledged disciplinary proceedings were initiated and a charge sheet dated 28.3.1989 was served on the workman. The substance of the charge was that the workman had managed to get a cheque book issued on 3.8.1987 for a saving account standing in the name of one K.K. Jaiswal on the basis of a forged requisition slip. Using two cheque leaves of the said cheque book and after forging the signature of the customer the workman managed to withdraw Rs. 9,000 and Rs, 17,000 from the said account on 6.8.1987 and in spite of complaint no action was taken by him. The Staff Officer in the Zonal Office was appointed the Enquiry Officer. The management produced 13 witnesses to prove their case while the workman produced 2 witnesses. After due opportunity to the, parties, the Enquiry Officer found first charge to be proved while the second charge was only partly proved and he forwarded the report to the Regional Manager. After furnishing a copy of the report to the workman a show cause notice was issued seeking his explanation and after hearing him an order of termination dated 14.3.1991 was passed. The workman preferred a departmental appeal, which was dismissed vide order dated 9.7.1991 after granting personal hearing to him. Nevertheless, he approached the Conciliation Officer and on a failure report, the Central Government referred the dispute vide order dated 26.3.1993 under Section 10 of Industrial Dispute Act to the Industrial Tribunal which registered it as industrial dispute No. 37 of 1993: The parties filed their respective written statements. The management moved an application dated 30.5.1996 with a prayer that in case it was found that the enquiry was vitiated in any manner, they may be allowed to lead evidence to prove the charge. Though the Tribunal held that the enquiry was vitiated, it refused to grant opportunity to the petitioner bank to prove the charge on the ground that it would be futile and by the impugned award it exonerated the respondent workman.
5. Learned counsel for the petitioner has firstly urged that the Tribunal erred in denying an opportunity to the petitioner Bank to prove the charges before it even though it held that the enquiry was vitiated. He has also urged that the finding that the Enquiry Officer had considered the statements recorded during fact finding enquiry was perverse.
6. The Labour Court while considering the issue as to whether the enquiry was fair and proper recorded the following finding:
"-----------A bare perusal of enquiry proceedings and enquiry report would go to show that the Enquiry Officer had actively referred to the statement of witnesses which were recorded by Investigating Agency. Indeed the Investigating Agency v.S. Gupta has also been examined as MW 6 in domestic enquiry. These materials would go to show that the management had actively relied upon the evidence of Investigating Agency. Hence non supply of these papers would vitiate the enquiry proceedings and consequent report. "
7. After considering the evidence, which was laid before the Enquiry Officer, the Tribunal refused to grant opportunity to the petitioner bank to prove the charges in the following words:
"---------the management has adduced its evidence to the full and the same had been found to be not true. If once again such opportunity is given, it will meet the same fate. Hence, it will be an exercise in futility. In view of this matter, the management is not being given any chance to prove misconduct on charge No. 1 on merits. "
8. I have gone through the entire enquiry report, specially the statement of the Enquiry Officer but have not found any reliance upon statements recorded in the fact finding enquiry. Shri Shashi Nandan, learned Senior Advocate appearing for the respondent workman has fairly conceded that this finding of the Tribunal was palpably incorrect and the Enquiry Officer in fact did not consider any statement recorded during the fact finding enquiry.
9. The question remains whether the Tribunal was justified in refusing to grant opportunity to the petitioner bank to prove the charges before it. It has remained the consistent view of the Apex Court right from the case of Firestone Tyre and Rubber Company of India Private Limited v. The Management and Ors. , that once an enquiry has been held to be improper or unjust, it would tantamount to no enquiry at all and the employer would be well within his rights to seek an opportunity to prove the charges before the Tribunal. This view has been reiterated in The Cooper Engineering Ltd. v. P.P. Mundhi ; Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and Ors. and Shambhu Nath Goyal v. Bank of Baroda and Ors. . Thus, there cannot be two opinions that once the Tribunal had recorded a finding that the enquiry was vitiated, it was bound to grant opportunity to the petitioner to prove the misconduct before the Tribunal itself for which an application had already been made on his behalf.
10. But the award, in the present set of facts, cannot be quashed on this ground alone because subsequently the Tribunal has considered the evidence led before the Enquiry Officer and after its reappraisal, has rendered the award. No doubt the contention of Shri Bhatia, learned counsel for the petitioner, is correct that the Labour Court or the Tribunal does not sit in appeal over the findings recorded by the Enquiry Officer but the Tribunal is empowered to look at the evidence and the conclusions drawn therein and if there is any perversity, or there is no evidence on an issue for which a finding has been rendered, it can substitute its own finding.
11. Learned counsel for the petitioner has then urged that the Tribunal had illegally discarded the evidence of the customer Shri K.K. Jaiswal by holding that his evidence is of a general nature. The argument has tremendous force. Shri Jaiswal had stated before the Enquiry Officer that the workman had contacted him in his village and had asked him to withdraw his complaint ensuring him that he would make good the loss suffered by him and if need be he will also mortgage his residential house in favour of Shri Jaiswal. The testimony of Shri Jaiswal stood the test of rigorous cross-examination but it could not be shaken. The Tribunal has treated this as extra judicial confession and refused to believe him, this approach of the Tribunal was wholly against the law. Firstly, the principle of extra judicial confession is confined to criminal law and not to domestic enquiry. Secondly, this admission of the workman before Jaiswal cannot be termed as extra judicial confession, in fact the workman was seeking to save himself and was apologizing before Jaiswal and also giving him the option of mortgaging his house to secure the loss suffered by him. The Labour Court holds that since the statement was made before some villagers and not in secrecy, it has refused to rely on the statement. Neither in the award there is any other reason given for rejecting his statement nor any has been pointed out by the counsel for the respondent.
12. It is by now well settled that where two views are possible, the Tribunal cannot substitute its own views for that of the enquiry Officer but in this case the reasons given for discarding the statement of Shri Jaiswal are unacceptable.
13. Shri Bhatia is also right in contending that the Tribunal has exceeded its jurisdiction in disbelieving the statements of Babu Lal Daftri and S.A. Hamid without any cogent reason. Shri Babu Lal Daftri had clearly stated that the workman had given him" the requisition slip for the cheque book while Shri Hamid had unequivocally stated that he had given the cheque book to the workman though it is normally given to the counter clerk. Shri Hamid had been posted in the bank very recently and he has explained as to why he handed over the cheque book to the workman because the workman claimed that Shri Jaiswal was his acquaintance. The Tribunal has made a mountain out of a mole and has caused aspersion on Shri Hamid solely on the ground that though the cheque book ought to have been given to the counter clerk why Shri Hamid had given it to the workman specially when Shri Daftri had stated that the cheque book was given to the concerned clerk. The Tribunal was not sitting in appeal and neither it is a case of perversity nor of no evidence at all. To the contrary, there was clinching evidence against the workman together with the attending circumstance that immediately after withdrawing the amount the workman availed his L.F.C. and had gone on a pleasure trip.
14. There is yet another angle to this case. The respondent workman was holding a post of trust in a Bank and immoral assuming that the charge was not proved beyond doubt, there was sufficient evidence to show his involvement in the incident as there was no occasion for him, in case he was not involved, to have approached the customer to withdraw the complaint. In such circumstances, the Enquiry Officer was justified in terminating the service and the Tribunal without taking a holistic view has applied technical arguments to overcome findings of fact recorded on the basis of evidence by the Enquiry Officer. In my opinion, even otherwise also the Tribunal was not justified in setting aside the order of termination.
15. For the reasons given above, this petition succeeds and is allowed and the impugned award dated 3.5.1997 is hereby quashed. No order as to costs.