C.W.P. No.16850 of 2001 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.16850 of 2001 (O&M) Date of Decision:10.09.2009 Central Bank of India .....Petitioner Versus The Presiding Officer Central Government, Industrial Tribunal-cum- Labour Court, Chandigarh another. ...Respondents Present: Mr. Girish Agnihotri, Sr. Advocate with Mr. Arvind Singh, Advocate for the petitioner. Mr. D. S. Nalwa, Advocate for Mr. Vivek Sharma, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the Reporters or not ? No. 3. Whether the judgment should be reported in the Digest? No. -.- K. KANNAN J.(ORAL) 1. The writ petition challenges the direction of the Labour Court accepting the reference and favours the workman with a finding that the order of dismissal was unjustified. The lesser punishment has awarded by the Labour Court was witholding of two increments with cumulative effect, while directing reinstatement. 2. The gravanan of charge was that the workman had been entrusted Rs.778.02/- by the Manager of the Bank for payment of telephone bill raised against the branch office Adalat Bazar, Patiala. The workman had undertaken to deposit the sum but did not do so. C.W.P. No.16850 of 2001 (O&M) -2- The telephone connection had been disconnected for a shortwhile, before reconnection on payment of charges by the Bank. A charge- sheet had been issued against the workman and the workman had by that time deposited the amount of Rs.778.02/- to the Bank. In the inquiry, he pleaded that he was admitting the misconduct and also pleaded that he had blemishless service and he could be visited with lesser punishment. He purported to rely on regulation 19.12 sub- clause 'e' which provided that an inquiry need not be held if the employee made a voluntary admission of his guilty in his reply to the show cause notice. The workman was evidently acting on an assumption that in all cases, an inquiry would become unnecessary if voluntary admission of guilt had been made and therefore he pleaded for a lesser punishment. 3. The Inquiry Officer gave a report stating that in view of the admission of the misconduct, the charge against the workman had been taken as true and the management ultimately took a decision to dismiss him from the service on the report of the inquiry officer. 4. The workman had challenged the order of dismissal by seeking a reference before the Labour Court. He sought to prove that the inquiry officer was wrong in assuming that he had admitted to the misconduct himself. The admission was qualified in one sense that the workman did not want the continuance of an inquiry and he was pleading for a lesser punishment due to the fact that an amount of Rs.778.02/- had not been used by him but he had handed over the amount and the bill to his friend for depositing the same but he did not deposit the same. However, the amount had been redeposited by the C.W.P. No.16850 of 2001 (O&M) -3- workman on 11.4.1985, following a letter given to the manager of the bank on the previous day on 10.4.1985. The charge-sheet itself had been issued subsequently on 15.11.1985. The contention of the workman was that an inquiry officer went on wrong assumption that he had admitted the guilt. According to the workman, though the money which had been entrusted to him had not been utilised for payment of the telephone bill by him he was under the belief that his friend to whom the money was entrusted could have paid. Significantly, in this case the inquiry officer did not reject the explanation offered by the workman as false. The Labour Court found that the workman had been actually cross-examined by the representative of the management and that the workman had also admitted of the facts in the cross-examination relating to the misconduct and did not desire the continuation of departmental inquiry. However, the Labour Court reasoned that if the management wanted to punish him with penalty of dismissal, the departmental inquiry must have been held by the management. The Court further observed that facts and gravity of the misconduct committed by the workman was not so grave that required a penalty of dismissal. He invoked powers of the Court under Section 11-A of the Industrial Disputes Act, 1947 and decided to substitute the above mentioned punishment. 5. Learned counsel appearing for the management contends that when there was a clear finding even by the Labour Court that the workman had admitted to the guilt. The misconduct attributed to the workman which was misappropriation, was serious enough to confirm C.W.P. No.16850 of 2001 (O&M) -4- the punishment of dismissal and the Labour Court ought not to have interfered with the punishment. Learned counsel also refers to a decision of the Hon'ble Supreme Court in Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) and others Vs. Secretary, Sahakari Noukarara Sangha and others reported in (2000) 7 Supreme Court Cases 517. The Court held in that case of misappropriation of the value of goods amounting to Rs.24,239.97 and Rs.19,884.06 during the period of 1977-78 were serious enough and the Labour Court's intervention for a lessor punishment by invoking the provision of Section 11-A was misplaced. In case of proved misappropriation, the Hon'ble Supreme Court held that there was no question of considering the past reocrd. It is the discretion of the employer to consider the same in appropriate cases but the Labour Court cannot substitute the penalty imposed by the employer in such cases. 6. In this case, if the inquiry officer had held that the explanation offered by the workman that he had entrusted the money to his friend and that he did not make the payment as he had requested to him was false and that he had retained the money, it could be said that the charge of misappropriation was clearly established. In this case, there was no such finding by the inquiry officer. On the other hand, he was entering a finding of guilt by the so called admission of the workman which was taken in a truncated form by the inquiry officer. It is a fundmental precept of the law of evidence that an admission in order to be binding shall be taken as a whole and shall not taken piecemeal. If the workman had stated that he had entrusted C.W.P. No.16850 of 2001 (O&M) -5- the money to another person and that he had not utilised it for his own purpose, then, if such statement was true at best, it could have been only taken as a negligent act. It was after all open to the inquiry officer to reject such a statement. On the other hand, the inquiry officer accepted the statement but misconstrued it as an admission of misconduct and went ahead to return a finding of guilt and that the charges had been fully established. Learned counsel appearing for the Management wanted to contend that the workman had actually admitted the misconduct and desired lesser punishment. In my view, the admission of misconduct must be understood in the context of how the admission was tendered before the inquiry officer or before the Manager of the Bank. The workman did not go the whole hog and state that the entire misconduct attributed to him was admitted by him. On the other hand, the admission was for a plea for lesser punishment without having to go through the trauma of a trial and laced with a plea that he had given the money to his friend and expected him to make the remittence. At least when a dispute was raised and the proceedings were before the Labour Court, if the management had offered to prove the misconduct and established that the so called entrustment as pleaded by him to be not true, the Labour Court could have examined such evidence. The management did not avail of such an opportunity. It rest contended with producing the inquiry officer's report and the document filed before him. 7. While the Courts intervention in the matter of punsihment even invoking powers under Section 11-A of the Industrial Disputes Act, 1947 are limited to the parameters set under the said section C.W.P. No.16850 of 2001 (O&M) -6- itself, the Labour Court would be justified in an appropriate case to interfere with lesser punishment if it finds that the admission of misconduct was laced with other mitigating factor as well. Here was a case where workman was not completely disowning his lapse. He was aware that he had received the money and he did not himself make the remittence for the telephone bill. He claimed that he had entrusted it to another person who did not make the payment. If that statement must be rejected, it shall be found in the report of the inquiry officer himself. Such a definite finding was not available. The Labour Court was, therefore, justified in interfering with the punishment, that for a person who had been negligent in his conduct ought not to have been visited with the maximum punishment of dismissal from service. The intervention which the Labour Court made, in my view, does not suffer from any vice for being subjected to judicial review under Article 226/227 of the Constitution of India. 8. The award of the Labour Court modifying the punishment in the way it did, in the circumstances, would require no interference. It is confirmed and the writ petition is dismissed. There shall be however no direction as to costs. ( K. KANNAN ) JUDGE September 10, 2009 ashish