1 wp2424.15 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. WRIT PETITION NO.2424 OF 2015 1) Shri [ENTITY], Plot No.114, Adharsh Nagar, Hirapur Road, Opp. Gayake Nagar, Chalisgaon, District Jalgaon. 2) [ENTITY]. PETITIONERS VERSUS 1) General Manager (HRD), Central Bank of India, Chandermukhi, Nariman Point, Churchgate Reclamation, Mumbai-400001. 2) [ENTITY]. 3) [ENTITY]. RESPONDENTS Uploaded on - 20/08/2018 Downloaded on - 22/08/2018 01:27:47 2 wp2424.15 Mrs. [ENTITY], Counsel h/f. Shri [ENTITY], Counsel for the petitioners Shri [ENTITY], Counsel for the respondents. CORAM : ROHIT B. DEO, J. DATED : 16 th AUGUST, 2018 ORAL JUDGMENT :
Exception is taken to the award dated 24-9-2014 rendered by the Presiding Officer, CGIT, Nagpur in [CASE NUMBER], by and under which the dismissal of petitioner 1 from service is held legal and justified.
2. In view of the course which this Court proposes to adopt, and the underlying rational, it would not be necessary to narrate the facts in detail. Suffice it to say, that petitioner 1, who was appointed as a Clerk on 23-4-1984 was charge-sheeted for serious misconduct, to wit withdrawing Rs.3,000/- from the account of a customer and handing over only Rs.1,000/- to the customer. Petitioner 1 was dismissed pursuant to a regular departmental enquiry in which he was held guilty.
3. The reference is answered against petitioner 1 by the 3 wp2424.15 learned Tribunal and the only consideration is to be found in paragraph 8 of the award, which reads thus :
"8. Keeping in view the settled principles as mentioned above, now, the present case in hand is to be considered.
On perusal of the record, it is found that the findings of the enquiry officer are based on the evidence on record of the departmental enquiry. The enquiry officer has analysed the evidence, the evidence on the record of departmental enquiry in a rational manner and has assigned reasons in support of his findings. It is also found that the findings of the enquiry officer are not as such, which cannot be arrived at by a reasonable man on the materials on record of the departmental enquiry. It is not a case of total absence of evidence on record of the enquiry or that the findings of the enquiry officer on totality against the evidence on record. Hence, the findings of the enquiry officer cannot be said to be perverse."
4. Perusal of the award would reveal that although the contentions of the workman and the management are noted, there is absolutely no attempt made to consider or appreciate the contentions muchless to consider the evidence on record. The learned Tribunal appears to be under the impression that the dismissal can be interfered with only when there is want of good faith, victimization, unfair labour practice, etc. since the Tribunal does not act as a Court of appeal and substitute of its own judgment of that of the management. Such, was indeed, the enunciation of law by the Hon'ble Supreme Court in M/s.
4 wp2424.15 [PRECEDENT]. The judgment of the Hon'ble Apex Court in M/s.
[PRECEDENT] persuaded the legislature to incorporate [SECTION] in the [ACT] ("Act" for short) by [SECTION] of the [ACT]. The statement of object and reasons underlying the amendment reads thus :
"3. Regarding [SECTION], in the Statement of objects and reasons it is stated as follows:-
"In [PRECEDENT], the Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of a workman, has observed that in case of dismissal on misconduct, the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management.
The International Labour Organisation, in its recommendation (No.119) concerning termination of. employment at the initiative of a employer, adopted in June 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled, to appeal against the termination among others, to a neutral body such as an arbitrator, a court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case, and to render a decision on the justification of the
5 wp2424.15 termination. The International Labour Organisation has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages, should be paid adequate com- pensation or afforded some other relief.
In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power in cases wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new [SECTION] is proposed to be inserted in the [ACT]."
5. [SECTION] fell for consideration before the Hon'ble Apex Court in [PRECEDENT]. The Hon'ble Apex Court noted the position of law as was existing before the amendment, and in particular the decision in [PRECEDENT]. The legal position obtaining prior to the amendment was that once the Tribunal holds that the domestic enquiry has been conducted properly and the conclusions arrived at are plausible, the Tribunal did not have the jurisdiction to substitute its own judgment for that of the management. The Hon'ble Apex Court then held that the said position 6 wp2424.15 has been completely changed by [SECTION] The Hon'ble Apex Court held, inter alia, that while the right to take disciplinary action and to decide upon the quantum of punishment are essential managerial functions, if the dispute is referred to a Tribunal, the Tribunal has the power to see if the action of the employer is justified. The perversity of the findings recorded, would be an issue, and if the Tribunal comes to a conclusion that the findings arrived at in the enquiry are perverse or the management is guilty of victimization, unfair labour practice or the action is mala fide, the Tribunal would be within its jurisdiction to interfere with the order of dismissal.
6. The principles laid down by the Hon'ble Apex Court are discernible from paragraph 32 of The Workmen of M/s. [PRECEDENT], which reads thus :
"32. From those decisions, the following principles broadly emerge :
(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) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and
7 wp2424.15 principles of natural justice. The enquiry should not be an empty formality.
(3) 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 victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to, adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the, merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction. to consider the evidence placed before it for the first time in justifications of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the 8 wp2424.15 opportunity of adducing evidence for the first time before the Tribunal to justify his, action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee, and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to, suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The [PRECEDENT], within the judicial decision of a Labour Court or Tribunal.
32-A. The above was the law as laid down by this Court as on December 15, 1971, applicable to all industrial adjudication arising out of orders of dismissal or discharge."
7. In paragraph 8, the learned Tribunal does observe that the findings of the enquiry officer cannot be said to be perverse. However, the learned Tribunal, beyond observing that the findings of the enquiry officer are based on evidence on record, does not appear to have made any attempt to even note muchless consider or appreciate the evidence on record in order to satisfy itself that the dismissal is justified.
Paragraph 8, is reproduced supra.
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8. Paragraphs 1 to 7 merely record the facts and the submissions made. The evidence is not even referred to in the entire award.
9. It is difficult to sustain the award impugned. Mere observations in the award impugned that the findings are based on evidence and are not perverse, are not sufficient to satisfy the conscious of the Court exercising judicial review that the learned Tribunal made the observations after applying independent mind to the evidence on record, particularly since the evidence is not even referred to in the award impugned.
10. In this view of the matter, the award impugned is quashed.
11. The matter is remitted to the learned Presiding Officer, CGIT, Nagpur in [CASE NUMBER] for rendering fresh award in accordance with law, after hearing the workman and the management.
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12. Rule is made absolute in the afore stated terms.
JUDGE adgokar