Heard Sri Vivek Ratan, learned counsel for the petitioner-bank and Sumit Rani Gupta, learned counsel for the respondent no.2-workman and the learned Standing Counsel for the respondent no.1.
The petition raises a challenge to the impugned award dated 23rd September, 1997 whereby the domestic inquiry instituted against the respondent-workman has been found to be legally unsustainable on the ground that the disciplinary authority who proceeded to impose the punishment was incompetent to proceed with the disciplinary proceedings and, therefore, the punishment awarded to the respondent-workman was an exercise in futility. Accordingly, the Labour Court has proceeded to deliver the award directing reinstatement with back wages.
The petition was entertained and the operation of the award was stayed whereafter affidavits have been exchanged between the petitioner and the respondent no.2.
The background on which the aforesaid award was delivered is that the respondent-workman who was working as head-cashier was tendered a charge sheet on 9th May, 1987 with a supplementary charge sheet on 7th July, 1987 which included the charge of financial embezzlement. Vide order dated 21st May, 1987 one Mr. O.P. Chopra was appointed as the inquiry officer and also nominated to act as the disciplinary authority.
The said order is annexure-4 to the writ petition and has been issued by one Mr. Ravindra Raj describing his designation as a disciplinary authority. The said letter also enclosed the charge sheet aforesaid with a direction to Mr. O.P. Chopra to take action accordingly.
The inquiry report was submitted on 18.8.1987 and Mr. Chopra himself proceeded to impose the punishment of dismissal on the respondent-workman in the exercise of power as disciplinary authority as indicated in the letter dated 21st May, 1987. The respondent no.2 was dismissed on 28th August, 1987, against which initially the said workman did not file any appeal and raised an industrial dispute under the Industrial Disputes Act, 1947. He, however, filed an appeal subsequently before the appellate authority which was dismissed on 23.10.1991 whereafter he again approached the Assistant Labour Commissioner and a reference was made in relation to the dispute so raised on 31st August 1992 in terms of Section 10 of the Industrial Disputes Act, 1947.
Apart from the other pleas one of the contentions raised on behalf of the workman was that Mr. Ravindra Raj and Mr. O.P. Chopra, both were incompetent to act as disciplinary authority as they did not fall within the rank of superintendent as per the circular dated 28th May, 1981. The adjudication proceeded with and the management came up with a plea that the post of superintendent was re-designated as a Manager under the circular dated 15th April, 1986 and as such Ravindra Raj who was occupying the post of Manager in the Central Office was fully competent to issue the charge sheet and Mr. O.P. Chopra was also occupying the post of a Manager and, therefore, he was fully authorized to act as a disciplinary authority.
The Tribunal came to the conclusion that simply because the designation of Ravindra Raj has not been mentioned at the foot of the charge sheet, the same would not be rendered invalid but while proceeding to deal with the aforesaid contention of the workman the Tribunal came to the conclusion that the circular dated 15th April, 1986 has been issued by the Deputy General Manager and not by the Chief Executive Officer or by any competent authority empowered to change the designation, and as such the said plea of the employer that Ravindra Raj and O.P. Chopra were authorized under the circular dated 28th May, 1981 was not correct. The Tribunal categorically recorded that in the absence of any specific order having been passed by the Chief Executive or any Manager of the Central Office or any competent officer the circular of the Deputy General Manager dated 15.4.1986 would not automatically confer the said officers with authority to act as disciplinary authority.
The Tribunal further held that Mr. O.P. Chopra was a Manager in the inquiry Cell in the Regional Office at New Delhi and the said region does not cover the region of the workman, therefore, he could not have acted as disciplinary authority. It was held that Mr. Ravindra Raj who was acting as disciplinary authority himself could have proceeded to award the punishment and having assumed this authority as disciplinary authority after issuing the charge sheet, he could not have transferred his obligation as disciplinary authority to Sri O.P. Chopra. Accordingly the order of punishment of dismissal was held to be without jurisdiction by the tribunal.
Sri Vivek Ratan submits that this very assumption about the authorities having no jurisdiction is unfounded in as much as the circular dated 15th April, 1986 has not been issued under the authority of the Deputy General Manager but is a communication of the decision taken by the Centeral Managing Committee in its minutes held on 28th March, 1986. A copy of the minutes of the said meeting is annexure-11 to the writ petition. The authorization, therefore, is not by the Deputy General Manager but by a decision of the Apex Body which is authorized to issue such instructions.
He further contends that this is not the case of further delegation of authority or transfer of power by Mr. Ravindra Raj to Mr. O.P. Chopra but it is a mere nomination which is permissible in as much as Mr. O.P. Chopra was also a manager as per the designation under the circular dated 15th April, 1966 and was authorized to act as a disciplinary authority read with the circular dated 28th May, 1981. Sri Vivek Ratan relies on the Apex Court's decision in the case of Shambhu Nath Goyal Vs. Bank of Baroda AIR 1984 S.C. Page 297 paragraph 14.
He further contends that such a situation had arisen in the case of Bramha Pal Singh Vs. Disciplinary Authority Senior Manager Union Bank of India and a learned Single Judge had taken the same view as expressed by the Tribunal which is reported in 2005 (107) FLR Page 882 Paragraph 11. The said view of the learned Single Judge was reversed by the Division Bench of this Court in the case of Union of India Vs. Bramha Pal Singh reported in 2006 (108) FLR Page 409. The said judgment has been placed before the Court. The sum and substance of the contention, therefore, is that both the officers namely Ravindra Raj and O.P. Chopra were fully authorized and competent to act as disciplinary authority in view of the aforesaid submissions. He, therefore, contends that the award is based on assumption of wrong facts and law and, therefore, the same deserves to be set aside.
Replying to the aforesaid submissions, learned counsel for the respondent no.2-workman states that the minutes of the meeting dated 28th March, 1986 were not placed before the Tribunal and, therefore, the reliance placed by the petitioner on the said proceedings for the first time before this Court cannot be made the basis for setting aside the award. She further submits that even assuming for the sake of argument that Ravindra Raj had been authorized to function as the disciplinary authority, the further designation or transfer of authority to Mr. O.P. Chopra was impermissible and hence the award does not require any interference.
I have heard learned counsel for the parties.
There does not appear to be either any challenge or defence by the respondent-workman on the merits of the charges which was clearly to the effect that the workman was guilty of financial embezzlement. The award, therefore, has proceeded only on the aforesaid issue relating to the jurisdiction of the officers to proceed to conduct the disciplinary inquiry and impose a punishment. The petitioner employer in paragraph 22 of the writ petition has clearly indicated that the circular dated 15th April, 1986 is based on the decision taken by the Central Management Committee in the meeting held on 28th March, 1986 and, therefore, the change of designation and nomenclature of Superintendent to Manager is authorized in law. This paragraph 22 of the writ petition has not been denied in paragraph 7 of the counter affidavit filed on behalf of the respondent-workman. It is, therefore, clear that the authority under which the said designation was altered remains unchallenged and as such even if the minutes of the meeting dated 28th March, 1986 were not produced before the Tribunal the same would not alter the legal position nor would it alter the status of the circular which is based on the said minutes.
The post of superintendent having been redesignated as Manager was, therefore, fully authorized in law and as such Mr. Ravindra Raj and Mr. O.P. Chopra who were undisputedly holding the post of Manager were entitled to act as disciplinary authority.
So far as the issue of disciplinary authority appointing another officer is concerned, the judgment of the learned Single Judge in the case of Braham Pal Singh (supra) has already been reversed by the Division Bench by clearly holding that such a course was permissible and accordingly the nomination of Mr. O.P. Chopra by Mr. Ravindra Raj cannot be faulted with. The issue of nomination or designation also stands concluded in view of the ratio of the judgment in the case of Shambhu Nath Goyal Vs. Bank of Baroda (supra) wherein in para 14 the Apex Court has categorically held what is required is that the names of the officers or the body competent to pass the original order or hear the appeal should be published on the bank's notice board. It was held that there was no contention on behalf of the workman that such a circular or notice was not notified. In the instant case as well the workman has not taken any such stand that there was no such notification. The only stand taken is that the authorization was not in accordance with the circulars which argument has been found hereinabove to be without any basis.
Accordingly, the impugned award passed by the Industrial Tribunal is unsustainable and the writ petition deserves to be allowed. The award dated 23.9.1997 is quashed. The writ petition is allowed.
Order Date :- 3.4.2012 Manish