Heard Sri Satish Chaturvedi, learned counsel for the petitioner and Sri Yogesh Kumar Sinha, learned counsel for the respondent no.2.
By means of present writ petition, the petitioner has sought for quashing of award dated 14.9.2006 passed by respondent no. 1 in Industrial Dispute no. 81 of 1992.
By means of the order dated 7.3.1997, the Tribunal had decided preliminary issue as to whether the domestic enquiry conducted by the management was fair and proper in favour of the workman. It was held that the enquiry officer was not validly appointed and the domestic enquiry was not conducted in a fair and reasonable manner as the workman was not awarded full opportunity to defend himself. Vide order dated 28.8.1997 the Tribunal had held that the dismissal of the workman based on charge sheet dated 27.1.1988 was bad and he was entitled for reinstatement with back wages.
Challenging the order dated 7.3.1997 and award dated 28.8.1997, writ petition no. 36051 of 1997 was filed by the petitioner bank which was allowed on 15.7.2003 and the tribunal was directed to decide legality of the dismissal order. It was held that the domestic enquiry was fair and proper but the Tribunal had not considered the evidence and material on record which was before the enquiry officer in the domestic enquiry, while holding that the workman had not committed any misconduct and the charges were not proved.
The tribunal vide award dated 14.9.2006 has held that the action of the management of ANZ Gryndlays Bank Plc. Kanpur(now known as Standard Chartered Bank, Kanpur) in dismissing respondent no.2 R.C. Srivastava from service with effect from 22.8.1991 was neither justified nor legal. The workman was held entitled to be reinstated in service with full back wages, seniority and all consequential benefits attached with the post. Challenging this award, the present writ petition has been filed.
Facts giving rise to the present writ petition in brief are as follows:-
In January, 1988 an unfortunate incident took place in which respondent No.2 workman allegedly manhandled one P.K. Seth, an officer of the bank by hitting him on the face and pulling his tie. According to the petitioner, this incident was preceded by some abusing language used by other employees of the bank. The respondent no. 2 was suspended on 15.1.1988 and a charge sheet dated 27.1.1988 was issued. The relevant portion of the charge sheet is reproduced as under "...The moment Mr. Sharma went out you along with the outsider pulled Mr. Seth's tie from his neck and man-handled and slapped him resulting in his spectacles being broken and he also got a bruise on his left eye.
The above said acts on your part if proved will constitute the following gross misconduct; under paragraph 19.5 of the Bipartite Settlement dated 19.10.66 which reads as under 19.5(c). Drunkenness or riotous or disorderly or indecent behaviour on the premises of the bank and
(d) Doing any act prejudicial to the interest of the bank and you are hereby charged with the above gross acts of misconduct."
The petitioner appointed N.V. Srinivasan, Personnel Training Officer, Office of the General Manager, Eastern India, as the enquiry officer. Before the enquiry officer, both the petitioner and respondent no. 2 produced their witnesses and other documents in respect of their respective claims. A preliminary objection was raised by respondent no. 2 regarding appointment of the enquiry officer on the ground that under paragraph 19.14 of the Bipartite settlement, the Chief Executive Officer of the petitioner bank in India had nominated various officers for holding the departmental enquiry. Office in question is located at Kanpur and it falls within the northern region and any officer of the northern region who has been so nominated, can alone be appointed as the enquiry officer. On merits, respondent no. 2 pleaded that he was not guilty as no such incident took place. The enquriy officer overruled the preliminary objection and proceeded with the enquiry and after examination of the evidences on record held respondent no. 2 guilty of the charges. The disciplinary authority after considering the reply and the enquiry report imposed the punishment of dismissal without notice. It also sought approval of the Central Government Industrial Tribunal at Bombay. Order of dismissal was passed on 22.8.1991. The appeal filed by the petitioner did not meet with any success. The Central Government Industrial Tribunal at Bombay also gave its approval.
On an application filed by respondent no.2, Government of India, Ministry of Labour, New Delhi referred the following dispute to the Central Government Industrial Tribunal for adjudication.
"Whether the action of the management of ANZ Grindlays Bank Plc, Kanpur in dismissing Sri R.C. Srivastava from service with effect from 22 August 1997 is justified? If not, to what relief the workman is entitled?"
Before the Tribunal, once again a preliminary objection was raised by respondent no. 2 regarding validity of the domestic enquiry. The Tribunal vide order dated 12.9.1996 decided the preliminary issue by holding that the finding of the enquiry officer were not in accordance with the Principles of Natural Justice and as such the enquiry was held to be vitiated. The liberty was granted to the management to prove the misconduct on merits.
The aforesaid order was challenged by the petitioner before this Court by filing writ petition no. 33475 of 1996, which was allowed vide judgment and order dated 8.1.1997. Order dated 12.9.1996 was quashed and the tribunal was directed to decide the issue afresh in the light of the observations made in the judgment.
Pursuant to the aforesaid direction, the tribunal once again decided the issues vide order dated 7.3.1997 and came to the conclusion that the appointment of the enquiry officer was not proper as no officer of the eastern region could have been appointed as an enquiry officer of the petitioner bank in India. It was further found that the enquiry was vitiated as the workman was not awarded full opportunity to defend himself.
Challenging order dated 27.3.1997 passed by the Tribunal on the preliminary issue, writ petition no. 10204 of 1997 was filed which was dismissed on 21.3.1997. It was left open to the petitioner to challenge the finding which was passed against it and the petitioner can while doing so also take all pleas which it has taken in the said writ petition The judgment and order dated 21.3.1997 passed by this Court was challenged by the petitioner by filing SLP no. 10305 of 1997, which was dismissed by the Hon'ble Supreme Court vide order dated 8.7.1998 with the following observations:-
"Apart from the fact that parties are stated to have led evidence before the Industrial Court, we might have been tempted to interfere. As it is, the petitioner can raise the pleas taken in this petition on the challenge that it might have to make to the final award.
The SLP is dismissed."
Pursuant to the aforesaid direction, the matter was proceeded before the Tribunal. The Tribunal after consideration of the material on record held that no such incident had happened as alleged in the charge sheet on 12.1.1988 in the bank premises. The dismissal of the workman based on the charge sheet dated 23.1.1998 was held bad in the award dated 28.8.1997 passed by the tribunal and he was held entitled to reinstatement with back wages.
The order dated 7.3.1997 deciding the preliminary issue and award dated 28.8.1997 were challenged in writ petition no. 36051 of 1997. The aforesaid writ petition was allowed on 15.7.2003 and the tribunal was directed to decide afresh on the merits of the misconduct alleged by the petitioner bank. It was held by this Court in the judgment and order dated 15.7.2003 that the order of the tribunal in so far as it held that the enquiry was vitiated for not providing full opportunity to the workman to defend cannot be sustained. No prejudice was caused to the workman by non-production of the attendance/off hours register as the same was inspected by the workman during the course of enquiry and even cross-examination of the management witnesses was done on that basis. The management witnesses had specifically deposed that no attendance/Off hours register was maintained during the period i.e. 27.1.1988 to 12.5.1988, thus there was no question of producing the same either before the enquiry officer or before the tribunal. Non-supply of the enquiry report was not found prejudicial so as to vitiate the entire proceedings. On the question of merits of the misconduct, this Court has held that since the domestic enquiry has been held to be proper and fair, no further evidence could be taken on record. The evidence which were considered by the tribunal were given after the finding that the domestic enquiry was vitiated. It was held that the tribunal could only consider the evidence which was before the enquiry officer in the domestic enquiry. As the enquiry was held fair and proper and the tribunal did not consider the evidence and material on record, it was directed that the tribunal shall decide the case afresh as to whether the workman had committed any misconduct or not. Against judgment and order dated 15.1.2003, SLP(Civil) No.20345 of 2003 was filed by respondent no. 2 which was dismissed on 6.9.2004.
Thereafter the Tribunal proceeded to examine the evidence led by the parties in the domestic enqiry and to consider how far the management has been able to bring home the guilt of misconduct against the delinquent employee. After appreciation of evidence it concluded that the management bank has miserably failed to establish the charges against the delinquent employee. All the officers of the bank named in the enquiry have roped in the delinquent employee by plotting false case of misconduct with the help of Bacchu Lal Mishra and Than Singh, employees of the bank with a view to victimize him on account of his union activities by adopting exampler exercise of managerial power. It further found that no disciplinary action was taken by the management bank against Bacchu Lal Mishra and Than Singh against whom serious allegations have been levelled in the charge sheet dated 27.1.1988 issued to the delinquent employee.
The tribunal further found that the delinquent employee has been singled out in the matter of award of punishment which was highly discriminatory and the delinquent employee has become the victim of whims of the management. While holding so, it further opined that finding of enquiry are perverse and suffers from infirmity apparent on the face of enquiry proceedings and cannot be made basis for awarding punishment of dismissal from the service to the delinquent employee by the disciplinary authority/management. The reference was answered accordingly.
Heard Sri Satish Chaturvedi, learned counsel for the petitioner and Sri Yogesh Kumar Singh, learned counsel for respondent no. 2 and perused the record.
Sri Satish Chaturvedi, leaned counsel for the petitioner submits that the Tribunal has erred in appreciating the evidence and recording a finding that the workman was not present at the place of occurrence and he has not committed any misconduct, rather he was roped in the incident on account of his union activities. Moreso, in view of the fact that the workman did not appear before the enquiry officer or the tribunal to examine himself to disprove the charges of misconduct. The tribunal has further erred in relying upon oral statement of DW-1 i.e. the peon of the bank ignoring his submission that he was closely associated with the delinquent employee/workman. There was no reason before the tribunal to believe the oral statement of two defence witnesses that no such incident had occurred.
The memorandum of understanding, document M-6 jointly signed by the workman and MW-1 i.e. P.K. Seth has been ignored on irrelevant grounds. By appreciating the evidence the Tribunal had accepted the plea of bias raised by the workman which was not pleaded by him before the enquiry officer. There are reliable evidences to connect the workman with the incident mentioned in the charge sheet. The Tribunal had further erred in holding that MW-2 and MW-3, the two officials of the bank have not corroborated the evidence of MW-1 P.K. Seth i.e. the officer who was manhandled by the workman. The statement of MW-1 P.K. Seth was fully corroborated with the statement of MW-3 Arun Sharma and it was proved by the management beyond doubt that the workman had abused the officer by using filthiest languages and had manhandled P.K. Seth. The statement of MW-3 Arun Sharma has been discarded on irrelevant grounds and the Tribunal has erred in recording that others living in the vicinity did not come out from their residences when the incident took place and did not come forward to substantiate the statement of MW-3 Arun Sharma that when P.K. Seth had raised an alarm saying "Bachao-Bachao". It was not the case of any of the parties that other employees of the bank were also present on the spot or residing in the compound of the bank.
The Tribunal has proceeded with a predetermined mind and examined every evidence in a manner which comes in favour of the workman. It has illegally recorded that the opportunity was not afforded to the workman to defend himself as he was not called upon to submit his explanation before passing the suspension order or prior to issuance of the charge sheet. It has further committed illegality in holding that the workman was not called for before proceeding for the disciplinary enquiry by the management. While recording the said finding the Tribunal has erred in ignoring the enquiry report in which it has been categorically mentioned that the charge sheet as well as the suspension orders were served upon the workman and the workman and his representative admitted before the enquiry officer the fact of receiving of the charge sheet. However, again the charge sheet was read and explained to the delinquent employee by the enquiry officer and he had denied the charges and had pleaded not guilty. He further requested the enquiry officer to proceed with the enquiry.
He submits that the tribunal has exceeded in its jurisdiction in recording a finding that as the enquiry was perverse and suffers from infirmities apparent on the face of enquiry proceedings and cannot be made basis for warranting punishment of dismissal from service.
The Tribunal has totally ignored that the incident is in two parts. MW-1 P.K. Seth and MW-3 Arun Sharma specifically pleaded that the delinquent employee alongwith two members of the staff of the bank and one outsider had entered the hall of the bank premises shouting and abusing Mr. Seth as well as the management staff. These persons were not even in a position to walk properly. The delinquent employee was staggering and was trying to walk. He came directly to Mr. Seth when he was standing and was switching off the light and he was surrounded by the delinquent employee and others while abusing him. Strong smell of alcohol was coming from his mouth. P.K. Seth tried to pacify them with Arun Sharma and by this process they were brought outside the bank hall near the portico. Sri Sharma locked the door of the bank and left the place for handing over keys to Mr. Sikka, the Bank Manager at his house situated in the bank compound.
It has also come in evidence that normally the doors were being closed by the Chawkidar who drops the keys at the Assistant Manager's house. However, as Chawkidar had left a little earlier, Mr. Sharma went to drop the keys at Assistant Manager's house, then the delinquent employee held P.K. Seth by tie and dragged him forcibly towards him and hit him from behind. P.K. Seth was pushed towards the cycle stand which is about 50 ft. from the portico door. When Mr. Seth shouted "Bachao-Bachao. In the meantime, Mr. Sharma appeared and saw the delinquent tendering apology to Mr. Seth. DW-1 in his statement submitted that at about 8:45 P.M. he was called to close the door after all the persons left the bank. However, he did not state that he switched off the light of the bank on the fateful day. He simply denied presence of the delinquent employee and also said that he did not see any one fighting. Thus, at the best he could only prove the incident occurred outside the banking hall in the way to portico as he had only denied the incident occurred in the portico. So far as the incident occurred in the bank hall, drunken state of the workman and his act of abusing Mr. Seth, it has not been denied.
Learned counsel for the petitioner drew attention of the Court to Clause 19.5 of the Bipartite settlement dated 19.1.1966 which reads as under:-
"19.5(c). Drunkenness or riotous or disorderly or indecent behaviour on the premises of the bank and
(d) Doing any act prejudicial to the interest of the bank, and you are hereby charged with the above gross acts of misconduct.
An enquiry will be held into the aforesaid alleged acts of gross misconduct. Mr. N.V. Srinivasan, Personal/Training Officer, Office of the General Manager, Eastern Indian has been appointed as the Enquiry Officer for the purpose and he will advise you of the date, time and venue of the Enquiry proceedings."
Lastly, he submits that workman is not entitled for back wages that too full back wages on the Principles of "No work-No pay". Reinstatement with full back wages could not be granted to him in the facts and circumstances of the case.
As per the said settlement, drunkenness or indecent behaviour in the premises of the bank itself is gross act of misconduct and the said charge was proved by the management.
Reliance has been placed upon judgment of the Apex Court in U.P. State Road Transport Corporation vs. Shubhash Chandra Sharma 2000 LawSuit SC 548 to submit that where implication of the delinquent stood proved and was highly gross and serious, the labour court was not justified in interfering with the dismissal order.
With the aid of Supreme Court judgment in Madhya Pradesh Electricity Board vs. Jagdish Chandra Sharma AIR (SC)-2005, 1924 he submits that the labour court has totally misunderstood the nature of jurisdiction vested in it. The charges proved against the employee was serious one affecting the discipline in the entire organization. Abusing or inflicting a gross injury on a senior officer while at work, could not be countenanced by any organization. The interference in the punishment in the circumstances was clearly unjustified.
Placing reliance upon judgment of the Supreme Court in Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. 2005 ACJ 924 he submits that the workman did not appear to depose that no such incident had occurred or he was not present in the bank on the date and time of the incident. Only workman could have a personal knowledge and in case he would have appeared, Mr. Seth would have got an opportunity to examine and cull out the truth. As he did not ever deposed before the enquiry officer or the tribunal, adverse inference is to be drawn against him and the tribunal could not have interfered with the finding recorded by the enquiry officer based upon material on record.
On the question of back wages, learned counsel for the petitioner has placed reliance upon U.P. State Brassware Corporation Ltd. vs. Udai Narain Pandey (2006) 1 SCC 479 and Kendriya Vidyalaya Sangathan and another vs. S.C. Sharma (2005) 2 SCC 363 and submits that in the facts and circumstances of the present case, the entire back wages could not be awarded to the workman. The tribunal had proceeded to award the back wages casually as if it was a natural consequence of setting aside the termination order.
Sri Yogesh Mishra, learned counsel refuting the contention of learned counsel for the petitioner submits that it was not necessary for the workman to appear in the witness box and record his plea. The charges levelled in the charge sheet have been categorically denied by the workman who had appeared before the enquiry officer and authorized J.D. Mishra as his representative. As the workman has categorically denied his presence and involvement and hence in order to establish the said fact, he had produced two witnesses, who can be the most appropriate witnesses to disbelieve the statement of P.K. Seth and Arun Kumar Sharma who had implicated the workman at the instance of the management. The management has utterly failed to prove the charge of misconduct and the statement of the witnesses of the management was rightly disbelieved. DW-1 had categorically denied the presence of workman in the bank on the alleged date and time of the incident. The Tribunal has been empowered under Section 11-A of the Industrial Disputes Act and has rightly appreciated the evidence in order to ascertain as to whether there was truth in the charges levelled against the workman. After appreciation of the evidence, the finding recorded by the enquiry officer was disbelieved by the tribunal.
In exercise of discretionary power under Article 226 of the Constitution of India, this Court can only exercise jurisdiction which are supervisory and it cannot act as a Court of appeal. The finding of fact recorded by the Tribunal cannot be reopened or questioned in writ proceedings. Insufficiency or inadequacy of evidence is no ground for quashing in writ of certiorari. He placed reliance upon judgment of the Supreme Court in Syed Yakoob vs. K.S. Radhakrishnan AIR 1964 SC 477; Sadhu Ram Vs. Delhi Transport Corporation AIR 1984 SC 1467; Harjinder Singh vs. Punjab State Warehousing Corportion JT2010(1) SC 598. On the issue of jurisdiction of tribunal under Section 11 A of the Industrial Disputes Act he has placed reliance upon the judgment in The Workmen of M/s. Firestone Tyre and Rubber Company of Indian Private Limited vs. The Management and others 1973 SCC(L&S) 341; and K.S. Surendran vs. Industrial Tribunal 1979(38) FLR 228.
He further submits that merely because it was found that the enquiry was fair and proper, it could not be said that the Labour court could not have interfered with the order of termination passed against the workman. He placed reliance upon judgment in Scooters India Ltd. vs. Labour Court 1988(57) FLR 719; Ved Prakash vs. Delton Cables 1984 (48) FLR 417 and Rama kant Mishra vs. State of U.P. 1982(45) FLR 417.
While addressing the issue of back wages he submits that the bank has illegally stopped taking work from the workman. Plea of "No Work, No Pay" could not be attracted as the workman was not at fault. As the termination has been found illegal and the enquiry was vitiated, the Labour court had rightly awarded full back wages while awarding reinstatement. The action of the management in not allowing the workman to work was found illegal and unlawful. He placed reliance upon Brijendra Prakash Kulshrestha vs. Director of Education 2007(1) LBESR 538; Srikantha S.M vs. Bharat Earth Movers Limited 2005(8) SCC 314; Kishore Lal vs. Chairman Board of Directors 2011(4) ADJ 401 and Deepali Gundu Surwase vs. Kranti Junior 2013(12) JT 322.
Having carefully considered rival submissions and perused the record, it is evident that the question as to whether enquiry was fair and proper has been set at rest with the dismissal of the SLP filed against judgment of this Court interse parties.
Now, the question which remains to be examined by this Court is as to whether the concerned workman has committed misconduct and the management has been able to prove from the evidences on record, the charges of misconduct levelled against the workman. The record indicates that the delinquent employee appeared before the enquiry officer. He specifically denied the charges after the charge sheet was read and explained to him by the enquiry officer. He had pleaded not guilt and authorized J.D. Mishra as his representative. Two witnesses were produced by the concerned workman to establish that the incident, as alleged, did not occur at all. Chawkidar Shyam Sunder was examined as DW-1. He had denied that the incident took place on 12.1.1988 and categorically stated that he was on duty upto 9:00 P.M. No incident ever took place. The concerned workman and others have not intimidated and assaulted MW-1 P.K. Seth. The bank premises itself was closed at about 8:45 P.M. by him. He closed the door after all the persons left the bank.
DW-1 Shyam Sunder specifically stated that he was called by MW-3 Arun Sharma to lock the bank and thereafter he switched off the light and locked the bank premises. The management has not disputed that this witness was on duty on 12.1.1988. However, his presence at the time of incident has been denied saying that he was allowed to leave the bank at about 8:45 P.M. by MW-3 Arun Sharma and the bank premises was locked later on by Arun Kumar Sharma himself. No independent witness was produced to prove the said statement of the management witness MW-1 P.K. Seth, who was allegedly manhandled by the concerned workman and MW-3 who was present in the bank on 12.1.1988 i.e. the date of incident.
The statement of Chawkidar DW-1 has been corroborated by DW-2 who is an ex-employee of the bank and was residing in the bank compound. He categorically stated that he had seen DW-1 Shyam Sunder locking the main gate while returning after taking the betel. DW-2 further stated that when asked DW-1 confirmed that he had locked the bank premises. DW-2 is the most natural witness as he was residing in the bank compound. His testimony cannot be discarded stating to be a laboured one and merely on the ground that there are some minor variance regarding the time in the statement of DW-1 and DW-2.
Further finding has been recorded by the Tribunal that from the attendance register produced in the enquiry, it is clear that there was specific mention of time in the column meant for signing off the employees. The time against the name of DW-1 has been mentioned as from 1:30 P.M. to 9:00 P.M. This fact has been admitted by MW-3. MW-3 could not give any satisfactory reason as to why he had permitted DW-1 to mark the time as 9:00 P.M. when he had allowed DW-1 to leave the bank premises at about 8:45 P.M.
Thus, from the own evidence of the management, it could not be found that DW-1 Shyam Sunder, Chawkidar was relieved by MW-3 Arun Kumar Sharma early on 12.1.1988 and bank premises was locked by MW-3 himself. Thus, the entire story of the incident having occurred between 8:46 P.M. to 9:00 P.M. appears to be a concocted story. No one has seen the incident except MW-1. According to the statement of MW-3 Arun Kumar Sharma, even he could not establish the presence of the concerned workman in the bank premises between 8:45 P.M. to 9:00 P.M. DW-1 Shyam Sunder, Chawkidar, who was admittedly present on duty till 8:45 P.M. (as per the case of the management) categorically denied that the concerned workman was present in the bank premises.
Thus, the finding recorded by the Tribunal that the concerned workman has been roped in the enquiry by planting a false case of misconduct is nothing but a colourable exercise of managerial power, cannot be said to be perverse or without any evidence on record.
So far as second submission of learned counsel for the petitioner that as the workman did not participate in the enquiry nor he appeared before the Tribunal and thus has failed to deny the incident. Suffice is to say that the workman appeared before the enquiry officer and had categorically denied the incident. He had pleaded not guilty and denied all the charges in the charge sheet. After categorical denial of the incident alleged to have occurred on 12.1.1988, he produced two witnesses DW-1 and DW-2 to support his statement. For the denial of statement recorded before the enquiry officer, it was for the management to prove the alleged charges of misconduct by the workman. This is so because it is settled law that the burden to prove the existence of a particular fact lie on the person who makes an averment about its existence. Once the employee denied his presence in the bank and the incident as alleged, the onus lies on the management to specifically plead and prove that the workman was involved in the incident and has committed the misconduct.
Now dealing with the next submission of learned counsel for the petitioner that even though it is assumed that the incident of mishandling of MW-1 P.K. Seth by the concerned workman could not be proved as no independent witness was present. However, at least the act of workman's entering in the bank premises in the state of intoxication has been proved. Drunkenness of the workman in the premises of the bank itself is a misconduct under Clause 19.5(c) of Bipartite settlement dated 19.10.1966.
As the concerned workman committed gross misconduct by entering in the bank premises in the state of drunkenness, the act of misconduct has been proved by the management. Hence the punishment awarded by the management of termination of services of the workman cannot be said to be shockingly disproportionate. The Tribunal ought not to have interfered in the punishment awarded to the workman. Reliance has been placed upon judgment of the Apex Court in U.P. State Road Transport Corporation vs. Subhash Chandra Sharma 2000 LawSuit(SC) 548 and Madhya Pradesh Electricity Board vs. Jagdish Chandra Sharma AIR (SC) 2005, 924(supra).
Dealing with the said submission, it may be noted that from the above discussion it is found that the management has miserably failed to prove the presence of concerned workman with Bacchu Lal Mishra and Than Singh and others in the bank premises on 12.1.1988. It is further relevant to note that no enquiry whatsoever has been initiated against the workman Bacchu Lal and Than Singh. According to statement of MW-3 Arun Kumar Sharma and MW-1 P.K. Seth four persons i.e. concerned workman alongwith Bacchu Lal and Than Singh with an outsider entered in the bank premises in the state of intoxication. They were under the influence of alcohol so much so that they were not able to walk even. They were shouting and abusing the management staff. If the said statement of management witnesses MW-1 and MW-3 is accepted for a moment, it cannot be presumed, in the facts and circumstances of the case, that the act of misconduct under clause 19.5(c) of the Bipartite settlement dated 19.10.1966 could not be proved but against other two employees namely Bacchu Lal and Than Singh, admittedly no action has been taken. There is no explanation as to why the management has not proceeded against these two employees who were alleged to be involved in a serious misconduct of abusing the management staff and entering the bank premises in the state of drunkenness.
In this view of the matter, the contention of learned counsel for the petitioner that the act of entering in the bank premises in the state of intoxication by the concerned workman stood proved on the basis of management evidence, has no force. The Tribunal has rightly held that the management has indulged in unfair labour practice in removing the respondent workman and allowed the others to retire from service without any disciplinary action. The Tribunal has recorded further that it appears that the management had used Bacchu Lal and Than Singh to plant a concocted and false case against the concerned workman. The finding recorded by the Tribunal is clear, just and proper in the facts and circumstances of the case.
So far as the memorandum i.e. M.W-6 is concerned, the Tribunal has rightly discarded the same as a forged document as the concerned employee had categorically denied the signature over the same and the management has failed to prove the said document during the course of the enquiry.
The legal position about the limitation of jurisdiction of High Court in issuing a writ of certiorari under Article 226 of the Constitution of India is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by lower courts or Tribunals; where the orders passed in the cases by the lower courts or Tribunals are without jurisdiction, or is in excess of it, or as a result of failure to exercise the jurisdiction. Similarly, a writ can be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or arbitrary, as for instance, it decides the question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with the dispute is against the Principles of Natural Justice. There is, however no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate court. This means that finding of fact arrived at by the inferior court or Tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of record can be corrected in a writ, but not an error of fact, whatever grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit the admissible and material evidence, or by erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be recorded as an error of law which can be corrected in writ of certiorari. In dealing with such cases, the court has to keep in mind that the finding of fact recorded by the Tribunal cannot be challenged in proceedings of writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned findings The adequacy or sufficiency of evidence led on a point makes an inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal and the said point cannot be agitated before the writ court.
Time and again, Apex Court has issued orders to the High Court not to substitute its judgment over that of the Labour court while dealing with the finding of the Labour court. In case the Tribunal has examined the evidences placed in the departmental enquiry by the parties and recorded a finding that the charge of misconduct is not proved, no interference is required under Article 226 of the Constitution of India.
Last argument of the learned counsel for the petitioner is with regard to the back wages awarded by the Labour court. Placing reliance on various judgments of the Apex Court, it is submitted by the learned counsel for the petitioner that the back wages is not automatic and cannot be treated to be a natural consequence. For entitlement, the employee has to show that he was not in a gainful employment. As the said fact has neither been pleaded nor any material has been placed before the Tribunal, therefore, the Tribunal has erred in awarding full back wages to the workman while directing reinstatement as held by the Apex Court in U.P. State Brassware Corporation Limited Vs. Udai Narain Pandey (supra) and Kendriya Vidyalaya Sangathan vs. S.C. Sharma (supra).
In the instant case, the concerned workman has been dismissed from service with effect from 22.8.1991 and the workman has raised dispute and the matter was referred by the Central Government, Ministry of Labour, New Delhi vide order dated 30.6.1992.The workman is litigating with the bank since then. The matter has travelled upto Apex Court twice. It was found by the Apex Court that the enquiry held against the workman was fair and proper.
It is found by the Tribunal that the alleged charge of misconduct against the workman has not been proved, the management has indulged in unfair labour practice and has implicated the workman in a false case. The said finding recorded by the Tribunal has been found correct based on evidence on record. Thus, it is clear that the termination of the services of workman with effect from 22.8.1991 was illegal. On account of the act of the management, the workman had suffered a lot. He has been deprived of work on account of illegal act of the employer. Denial of the back wages to an employee who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the erring employer by relieving him to pay back wages including emoluments. A somehow similar issue came up for consideration before three Judges Bench in M/s. Hindustan Tin Works Pvt. Ltd. vs. The Employee of Hindustan Tin Works Pvt. Ltd. (1979) 2 SCC, 80 It was held in paragraph 9 and 11 of the said judgment as under:-
"9.It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived deprived workman of his earnings. if thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore. a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigating activity of the employer. If the D employer terminates the service illegally and the termination is motivated as in this case, viz ., to resist the workman's demand for revision of wages. the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed(l with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it the were forced to litigation upto the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workman were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them."
"11.In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on of the face of. the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice? according to law and not humor. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharm v.Workfield(4)."
In U.P. State Brassware Corporation Ltd. vs. Udai Narain Pandey(supra), two Judges Bench observed in paragraph 22 as follows:-
"22.No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act."
In Kendriya Vidyalaya(supra) the Apex Court has found that there was ample justification to deny the back wages to the employee, moreso because he had discarded duty for a long period of two years.
In a recent judgment of Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others (2013) 10 SCC 324 after consideration of several earlier judgments including Hindustan Tin Works( supra) U.P. State Brassware(supra), Kendriya (supra) and J.K. Synthetic Ltd. vs. K.P. Agarwal 2007(2) SCC 433 it has been held in paragraph 37, 38, 38.1 to 38.7 as follows:-
"37. After noticing several precedents to which reference has been made hereinabove, the two Judge Bench observed: (J.K. Synthetics Case in para 17 to 21).
17.There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed....
18.Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.
19.But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is not a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.
20.But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination.
21. In this case, the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all."
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 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 averments 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 fullback 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 concerned Court or Tribunal 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 be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
Observations made in J.K. Synthetic vs. K.P.Agarwal (supra) has been held perincurium on the point of back wages. The legal position settled is that where the termination is found illegal then the Tribunal is justified in awarding full back wages.
In view of above discussion, this Court finds that the tribunal has rightly awarded full back wages as the charges levelled against the workman were found frivolous.
It is, further, directed that while calculating the arrears of back wages, the amount paid to the petitioner in accordance with Section 17-B of the Industrial Disputes Act shall be adjusted.
In the result, the award dated 14.9.2006 passed by the Tribunal respondent No.1 is upheld. The writ petition is dismissed.
Order Date :- 21.11.2014 P.P.