IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE R. DEVDAS WRIT PETITION No.41328 OF 2015 (L-RES) Between:
The Regional Manager, Vijaya Bank, Head Office, 41/2, M.G.Road, Trinity Circle, Bengaluru – 560001.
Represented by Dy. General Manager ... Petitioner (By Sri.Udaya Shankar Pai.P, Advocate) And:
The General Secretary, Vijaya Bank Workers Organization, 37/1, 1st Floor, Car Street, Ulsoor, Bengaluru – 560008.
...Respondent (By Sri.Aravind Reddy.H, AGA) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to call for records on the file of Central Government Industrial Tribunal cum Labour Court, Bengaluru in Cr.No.50/2001 and issue a Writ of Certiorari to set aside the award dated 03.02.2015 passed by the Central Government Industrial Tribunal cum Labour Court, Bengaluru in Cr.No.50/2001 produced at Annexure-H.
This petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER The petitioner-Bank is before this Court challenging the award passed by the Central Government Industrial Tribunal cum Labour Court, Bengaluru in CR.No.50/2001.
2. Disciplinary enquiry was initiated against Sri.N.Shankaregowda, who was working as Special Assistant in a branch of the petitioner-Bank at Doddamage branch, Hassan District. The Enquiry Officer submitted a report after conducting enquiry holding that charges were proved. Consequently, the Disciplinary Authority accepted the report and imposed punishment of dismissal of the said Sri.N.Shankaregowda. The respondent Union took up the matter in reference before the Central Government Industrial Tribunal.
3. Learned counsel for the petitioner submits that the Tribunal held that the enquiry held by the petitioner- Bank is fair and proper. However, on the sole ground that the petitioner-Bank did not examine the complainants who made the complaint regarding discrepancies in their respective accounts, allowed the reference holding that the action of the petitioner-Bank in dismissing Sri.N.Shankeregowda from services is illegal and ordered reinstatement with full back wages, continuity of services and other consequential benefits.
4. Learned counsel for the petitioner, pointing out to the charges framed against Sri.N.Shankeregowda,
found in their respective bank accounts and the involvement of Sri.N.Shankeregowda in causing the deficiency in the bank accounts have been given in great detail. It is therefore, submitted that the delinquent employee knew what the charges against him are and he had all the opportunity to disprove his guilt in this regard. However, the delinquent was not able to dislodge the charge against him and the Enquiry Officer was right in coming to conclusion that the charges leveled against Sri.N.Shankeregowda was proved beyond all doubts.
5. The learned counsel for the petitioner relies on the following judgments:
1. The workmen of M/s. Firestone Tyre and Rubber Co. of India Pvt. Ltd. v/s The Management and others reported in AIR 1973 SC 1227.
2. State of Haryana and another v/s Rattan Singh reported in AIR 1977 SC 1512.
3. State Bank of India v/s Tarun Kumar Banerjee and others reported in AIR 2000 SC 3028.
6. In Firestone Tyre Supra, the Apex Court has exhaustively referred to various decisions of Supreme Court, and has then given a clear picture of the principles governing the jurisdiction of the Tribunal when adjudicating disputes relating to dismissal or discharge. The aforesaid principles laid down in Firestone Tyre, particularly the following two are relevant for decision making in this petition.
1. The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
2. When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimization, unfair labour practice or malafide.
7. The factual situation in State Bank of India v/s Tarun Kumar Banerjee and others is almost identical to the facts and circumstances of this case. In that case the Presiding Officer of the Tribunal held that the domestic enquiry conducted was fair, just and proper. However, on examination of the material on record the Presiding Officer came to the conclusion that the finding of guilt against the first respondent was not just on the evidence on record and, therefore, he set aside the same. The Apex Court, held that prior to the insertion of Section 11-A where a proper domestic enquiry had been held before the passing of the order of punishment, the Tribunal had no power to interfere with its findings on the misconduct recorded in the domestic enquiry unless it was vitiated by one or other infirmities pointed out in Indian Iron and Steel Co. Ltd. (AIR 1958 SC 130). The Apex Court proceeds to hold that the position after insertion of Section 11-A is different. In the course of adjudication proceedings if the Tribunal is satisfied that the order of the discharge or dismissal was not justified, it can reappraise the evidence adduced in the domestic enquiry and satisfy itself whether the evidence relied upon by the employer establishes the misconduct alleged against the workman. The criticism advanced against the award of the Tribunal is that evidence of three witnesses recorded at enquiry being sufficient to record the guilt of respondent No.1, that evidence has been ignored and irrelevant consideration such as non-examination of complainant Smt.Parul Rani Chowdhury, non production of money and non-availability of other evidence not on record is taken note of and, therefore, its award is vitiated. The Apex Court further observed that if we look at the evidence adduced in the present case, it is given by three witnesses who are the officers of the bank. Further the Apex Court has concluded that customer of the bank need not be involved in a domestic enquiry conducted as such a course would not be conducive to proper banker-customer relationship and, therefore, would not be in the interest of the Bank. The Tribunal’s conclusion that non-examination of the complainant is fatal to the case of the management was found to be fallacious.
8. In the instant case on hand, the petitioner-bank had examined five witnesses and have produced about 73 documents before the Enquiry Officer. As said early, the facts and circumstances of the case of Tarun Kumar Banerjee Supra being very similar to the facts and circumstances of this case, this Court is of the opinion that the Tribunal was not justified in allowing the reference on the ground that the bank had not examined the complainant. As a consequence the impugned award deserves to be quashed and set aside. Accordingly, the impugned order is hereby quashed and set aside. The matter is remitted back to the Tribunal for fresh consideration, in the light of the observation made by this Court and the decision of the Hon’ble Apex Court, as stated supra. The petition is accordingly allowed.
No order as to costs.
9. Since the matter arose in the year 1999, and reference was made in the year 2001, the Tribunal is requested to expeditiously dispose of the dispute and at any rate decide the dispute and pass the award within a period of six months from the date of receipt of the certified copy of this order.
SD/- JUDGE NS