THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + Writ Petition No.1108 of 2004 % 20-01-2011 Between: R.S. Sudha Rani …Petitioners And The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Govt. of India, Hyderabad and another …Respondents ! Counsel for Petitioner : Sri G. Vidya Sagar ^ Counsel for Respondents : Sri A. Krishnam Raju, for R-2 < Gist: > Head Note: Citations: AIR 1991 SC 101 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.1108 of 2004 ORDER: The petitioner was appointed as a Clerk in the Syndicate Bank, the 2nd respondent herein, on 11.08.1990. She worked at Alwal Branch of the Bank between 26.12.1991 and 20.06.1998. Thereafter, she was transferred to Sarojini Devi Road branch. The 2nd respondent issued memorandum, dated 29.06.1998, alleging that she committed certain irregularities while she was working at Alwal branch. Few months thereafter, a charge sheet, dated 13.10.1998, was served. The allegation against the petitioner was that she has fraudulently withdrawn sums of Rs.15,000/-, Rs.4,000/- and Rs.2,000/-, from the accounts of different customers, clandestinely. The petitioner submitted her explanation denying the charges. An Enquiry Officer was appointed and domestic enquiry was conducted. Through his report, dated 15.07.1999, the Enquiry Officer held that the charges against the petitioner are proved. Taking the same into account, the 2nd respondent dismissed her from service through proceedings dated 08.10.1999. Appeal preferred to the Appellate Authority was rejected on 03.02.2000. The petitioner filed I.D.No.89 of 2000 before the Central Government Industrial Tribunal-cum-Labour Court, Hyderabad, (for short ‘the Labour Court’), under Section 2-A(2) of the Industrial Disputes Act, 1947. Through award, dated 04.08.2003, the Labour Court dismissed the I.D. Hence, this Writ Petition. The petitioner states that none of the three charges framed against her were proved and still the Enquiry Officer has drawn inferences against her. She contends that no complaint was received from any account- holder, much less any of them were examined in the domestic enquiry. It is also stated that the Officer, who conducted the investigation into the matter was appointed as Management Representative and serious prejudice was caused to the petitioner. The 2nd respondent filed a detailed counter-affidavit. The record of the enquiry is also made available. According to them, the charges against the petitioner were proved and since the charges are very serious in nature, proportionate punishment of dismissal was imposed. It is stated that the Labour Court also held that the domestic enquiry was conducted properly, and that the charges were also held proved. Sri G.Vidya Sagar, learned counsel for the petitioner, submits that none of the account-holders mentioned in the charge sheet have given any complaint against the petitioner, and still the petitioner was proceeded against. He contends that various officers in a branch would handle the accounts of the customers and there was no basis for pointing out acts of misconduct against the petitioner alone. He submits that the Management Representative was prejudiced against the petitioner and hardly anything was elicited from the witnesses to prove the charges. Learned counsel submits that though the Labour Court has taken note of extensive submissions made on behalf of the petitioner hardly any reason was assigned to reject them. He contends that the observations as to misconduct on the part of the petitioner are equivocal. Sri A.Krishnam Raju, learned counsel for the 2nd respondent, on the other hand, submits that the allegations against the petitioner are serious in nature and they were proved by the bank by adducing oral and documentary evidence. He contends that the petitioner is supposed to gain the confidence of the bank and the customers and on account of the acts and omissions, she lost the confidence. Learned counsel further contends that the disciplinary authority, the appellate authority and the Labour Court have furnished cogent reasons in support of their conclusions. He submits that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India cannot sit as an appellate authority and re-appreciate the matter. The petitioner worked in Alwal Branch for about 7½ years. It was about one week after she was transferred from that branch that she was placed under suspension by proceedings, dated 20.06.1998. One charge with three parts therein was framed against the petitioner, four months thereafter. It reads: “That you were working as Clerk at our Alwal branch during the period between 01.12.1993 and 20.06.1998 and while functioning in your position as such, you made debit entries of – a) Rs.15,000/- in SB account 31983 of Smt.Sita Rani Handa and Sri S.C.Handa as on 08.01.1998, b) Rs.4,000/- in SB account 31463 of Smt.Lata Devi as on 27.03.1998, c) Rs.2,000/- in SB account 30154 of Ms.D.L.Archana as on 29.05.1998.” The basis for charges was indicated in the charge itself. The petitioner flatly denied the charges by submitting explanation. A detailed and elaborate domestic enquiry was conducted. The presentation on behalf of the 2nd respondent was made by the Management Representative. MWs.1 to 3 were examined and documents numbering about 100 were marked. The defence on behalf of the petitioner is mostly in the form of cross-examination. The charges were held proved and the 2nd respondent dismissed the petitioner from service. The order of dismissal was upheld by the appellate authority. In I.D.No.89 of 2000 filed by the petitioner, the Labour Court made an observation to the effect that the domestic enquiry did not suffer from any procedural irregularity. Thereafter, it proceeded to decide the matter on merits, and ultimately dismissed the I.D. The first contention advanced on behalf of the petitioner is that the Management Representative is an Officer, who himself conducted the investigation into the matter and as such he ought not to have acted as Management Representative. It is true that there is no hard and fast rule, which dictates as to who can be appointed as Representative of the management in the disciplinary proceedings. Natural justice and fair play demand that it is only an Officer, who is not associated with the investigation or enquiry, is appointed as representative of the management. In the course of domestic enquiry it was established that the Management Representative has not only conducted investigation, but also submitted a detailed report; and that the same constituted the basis for disciplinary proceedings. In spite of repeated demands made by the petitioner, the said report was not made part of record. It was however admitted that the Management Representative conducted the investigation and submitted the report. The Enquiry Officer has overruled the objection raised by the petitioner vis-à-vis the Management Representative. This Court is of the view that the objection raised by the petitioner was formidable and it ought not to have been overruled. The Labour Court no doubt held that the domestic enquiry was conducted properly. However, the manner in which it has addressed the individual charges does not accord with the principles of adjudication of such matters. It has taken note of the elaborate contention made on behalf of the petitioner with reference to each and every charge. Once the contentions are taken note of, the Labour Court was under obligation to assign reasons for not accepting them. Mere recording of contentions and expression of views, that too not in clear terms would not be in consonance with the adjudicatory process. Bereft of reasons the award does not carry the matter any further. On behalf of the petitioner, arguments were advanced with reference to every charge. As regards the first charge, it was pleaded that the charge of forgery of withdrawal slip pertaining to account No.31983 was not proved, since not even an attempt was made to obtain the signature of the account-holder. It was also pleaded that the hand writing expert-MW.2 was not furnished any identified specimen signatures and report was submitted by him according to his ipsi dixit. Similar contentions were advanced as to charges 2 and 3. The discussion undertaken by the Labour Court was not with reference t[1]o any specific contention. In the words of Tribunal itself: “No doubt due to the torn in and missing of the documents and further it is not very clear as to who recouped the alleged amount and how the loss was compensated yet although it may not be technically beyond reasonable doubt as stated in a criminal case but mere fact that how the amount was paid and who paid. It does not mean that the petitioner is not guilty. More over in view of the evidence of MW 2 t s established that it was her fault.” The discussion then shifted to the application of principle laid down by the Supreme Court in Delhi Transport Corporation v. DTCM Congress (Supreme Court). The judgment rendered by the Supreme Court pertained to the confidence, which an employer must have in the employee. The observation made by the Laour Court cannot be equated to a specific finding that the charges against the petitioner are proved. Here itself, it needs to be mentioned that MW.2 is an Expert handwriting and the reference to him was made by the management on its own accord. In case the 2nd respondent wanted to invite the opinion of an expert, the basic requirement was that, a) he should seek permission from the Enquiry Officer; b) the documents containing the disputed signature and the signature of the person who is supposed to have made it, must be sent. The question of comparing the signatures of handwriting of a person other than the one in whose name the disputed signature exists, does not arise that too without undertaking the comparison of the signatures of the very person in whose name it was made. In all the above aspects, the steps taken by the management, were defective. The Enquiry Officer as well as the Labour Court rested their findings on the said report. The fundamental defect, namely that there was no complaint from the concerned account-holders and their signatures were not sent for comparison by the Expert, was not taken note of. It is true that this Court cannot sit as an appellate authority upon the findings recorded by the disciplinary authority or the Labour Court on questions of fact. However, when the findings are based on no evidence, and are perverse on the face of it, the Court cannot remain oblivious. The petitioner could have been found guilty, if only the actual account-holders complained of irregularities pertaining to their accounts and in the course of investigation, any complicity on the part of the petitioner came to light. Clearly, allegation made against the petitioner is without any basis. The career of an employee cannot be given such a kind of treatment. It was not even alleged that the petitioner had misappropriated any amount or has diverted funds to her account. Such a conclusion would have been possible, if only the specific allegation was made by the account-holders. For the foregoing reasons, the Writ Petition is allowed and the impugned order is set aside. Since there was no occasion to verify as to whether the petitioner was gainfully employed elsewhere, when she is out of service, it is felt that she can be awarded back wages to the extent of 50%, with attendant benefits. Accordingly, she shall be reinstated into service with 50% of back wages and attendant benefits. There shall be no order as costs. _____________________ L. NARASIMHA REDDY, J. Dt.20.01.2011. Note: L.R copy to be marked. (B/O) GJ [1] AIR 1991 SC 101