C.W.P.No.11606 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.11606 of 2003 Date of Decision:- 19.01.2009 State Bank of Patiala ....Petitioner(s) vs. Central Govt.Industrial Tribunal-cum- Labour Court, Chandigarh & ors. ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.H.N.Mehtani, Advocate for the petitioner. Mr.Arun Palli, Sr.Advocate with Mr.O.P.Nagpal, Advocate Mr.Kanwalvir Singh Kang, Advocate for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) This writ petition has been preferred challenging the award dated 31.3.2003 (Annexure P-18) passed by the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh vide which the order of dismissal of respondent No.2-Workman dated 27.2.1991 was set aside and a direction was issued to reinstate the workman in service with full back wages and other consequential benefits. Counsel for the petitioner had submitted that the Labour Court has proceeded to decide against the Bank on three grounds; firstly that the confessional statement made by the workman was not a voluntary statement and, therefore, the confession not being as per law, the same could not have been taken as admission of the charges by the Management to terminate the C.W.P.No.11606 of 2003 -2- services of the workman; secondly that although the subsistence allowance was paid to the workman and the said amount was deposited in his account but the same were adjusted towards his Provident Fund, Festival Loan, Consumer Loan, Floor Loan, House Loan and other loans and thus, he was not paid even a single penny which would amount to subsistence allowance and thirdly that the workman was not given a personal hearing by the appellate Authority while passing the order in appeal. Counsel submits that as far as the first ground is concerned, i.e. the confession of the workman was not voluntary and without any pressure. A perusal of the proceedings before the Inquiry Officer which have been appended as (Annexures P-6 and P-7) would show that on 23.8.1990, the first date of the enquiry proceedings, the workman had denied the charges. Thereafter, on the second day of hearing i.e. 10.9.1990, initially there was denial of charges, but when subsequently documents were put to him, the precedings say that the workman has categorically, unconditionally and voluntarily admitted the charges contained in the charge sheet dated 12.5.1990 served upon him. Counsel further submits that these proceedings have been signed by him without any protest. However, a perusal thereof shows that apart from this, it has further been recorded that the workman had sought permission of the bank in January 1989 to sell the house, which request was strongly recommended by the Bank Manager. Due to the fact that there was a lack of blocking of the sewerage/rain water in the house which was a low lying area and there were infectious diseases it was essential to take immediate steps for levelling up the floor for which money was needed. In these compelling circumstances, the workman has resorted to sell a portion of the house to meet the huge expenses. It has C.W.P.No.11606 of 2003 -3- further been recorded that it has been submitted by the workman that there was no mala fide on his part and the interest of the bank would be fully safe as the market value of the house is much more than the loan raised by him on that property. Counsel for the petitioner submits that the workman who was a Cashier-cum-Clerk with the bank, raised a demand loan of Rs.1,90,000/- during the year 1987 for constructing a house and deposited with the branch the original title deed of plot No.41, Green Lehal Colony, Patiala, for creating an equitable mortgage of the said plot as collateral security. As per the terms of the loan agreement, vide which the loan was sanctioned to the workman, it was in clause (iv) sub-clause (f) which specifically stated that an undertaking by the employee to the effect that he will keep the property free from all sorts of encumbrances until the bank's dues have been paid in full, was clearly incorporated and further as per clause (xii) it was specifically mentioned that any infringement of the provisions of the scheme and/or instructions issued by the Bank from time to time will render the employee liable for suitable disciplinary action without prejudice to the bank's right to take over the property on such terms and conditions as it may in its absolute discretion consider expedient and deal with the property in such manner as it may consider necessary. Relying upon these provisions, counsel for the petitioner states that the admission of the workman during the enquiry proceedings should be read. On the other hand, counsel for the respondent-workman submits that there is denial of charges by the workman as is apparent from the reply to the charge-sheet dated 25.5.1990 (Annexure P-4). What can at best be termed as an admission is to the extent that he had sold half of the C.W.P.No.11606 of 2003 -4- property which was the collateral security by way of equitable mortgage for the loan raised by him. It can, by no stretch of imagination, be said that the workman had admitted the fact regarding the removal of the sale deed from the bank as has been alleged by the Bank in the charge-sheet. Counsel further submits that as per the conditions which provided for holding of the enquiry vide which the Inquiry Officer was appointed, (which is dated 26.7.1990 Annexure P-5), it has been clearly mentioned therein under para 3 to ensure that the questions put to various witnesses by him, the employee or his representative as the case may be, and their replies may be recorded verbatim in the enquiry proceedings. On this basis, counsel submits that the Inquiry Officer ought to have recorded the statement of the workman as he had made before him but instead of doing so, the Inquiry Officer has merely proceeded with to record that the workman had categorically, unconditionally and voluntarily admitted the charges contained in the charge-sheet dated 12.5.1990 served upon him. This is clear violation of the terms of the appointment of the Inquiry Officer and it further prejudices the right of the workman as there is no admission by him with regard to removal of the sale deed which was deposited with the Bank as a collateral security. Counsel, on this basis, submits that it was not a mala fide intention on the part of the workman but under a bona fide belief that permission would be granted to the workman for selling the property in question and it has not been denied by the petitioner that in January, 1989 such request was strongly recommended by the Branch Manager on 11.1.1989. No mala fide intention, therefore, can be attributed to the act of the workman and, therefore, the punishment which has been imposed upon the workman should not have been proceeded with on the assumption that there is an C.W.P.No.11606 of 2003 -5- admission on the part of the workman on the charges levelled against him. Counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in the case of Delhi Transport Corporation vs. Shyam Lal 2004(5) RSJ 115 to submit that it is a fairly settled position in law that admission is the best piece of evidence against the person making such admission. It is, however, open to the person making the admission to show why the admission is not to be acted upon. He has further relied on a judgment of this Court in Nirmal Kaur vs. Indian Red Cross Society, Punjab and others, 2002 (3) RSJ 377 wherein again it has been held that if there is an admission regarding the alleged forgery or interpolation of the official record, the workman cannot turn around and say that he was not given an appropriate opportunity of being heard. On the basis of these judgments, counsel for the petitioner contends that since there is an admission on the part of the respondent-workman, no further enquiry was required to be held and the petitioner has rightly proceeded with the matter on the admission of the respondent-workman. A perusal of the alleged admission as per the enquiry proceedings would clearly indicate that there is no categoric admission as far as the allegation of removal of the sale deed from the custody of the bank and thereafter selling off the properties is concerned. What has been admitted is only that half of the property was sold by the workman and that too with an explanation as to why he has proceeded to do so. The admission which is stated to have been made by the workman also cannot be said to be an admission qua the charges with regard to removal of the sale deed as the requirements as per letter dated 26.7.1990 have not been complied with, whereby the requirement was regarding of the statement verbatim. Had the C.W.P.No.11606 of 2003 -6- Inquiry Officer proceeded to do the same, there would have been no doubt about this aspect and, therefore, the benefit of doubt needs to be given to the workman, where specific requirements as prescribed in the order of appointment of an Inquiry Officer have been violated. Therefore, in my considered view, the admission as has been taken by the Inquiry Officer to include a complete admission by the workman with regard to the charge as framed against the workman including the allegations of removing the sale deed from the lawful custody of the Bank before selling half the property in question, is incorrect and, therefore, cannot be accepted. The consequence thereof would be that further proceedings on the wrong assumption leading to finding of guilt by the Inquiry Officer in his report and, thereafter the Disciplinary Authority proceeding on such assumed admission and further followed by the Appellate Authority cannot be sustained as this has resulted in failure of justice. As regards the submission of the counsel for the petitioner that the workman was not required to be given a personal hearing at the appellate stage, counsel for the respondent has admitted that the said request was not made in the appeal preferred by the workman nor there is any rule which requires or mandates a personal hearing to be given to the workman as per the statutory rules or the terms governing his service conditions. That being the position, the findings recorded by the Labour Court cannot, thus, be accepted as no grouse as such has been made by the employee nor a request for personal hearing has been made by the workman to the appellate Authority in his appeal. The other contention which has been put forth by the counsel for the petitioner is that the subsistence allowance has been paid to the C.W.P.No.11606 of 2003 -7- workman and therefore the findings recorded by the Labour Court to the effect that he has not been granted the subsistence allowance also cannot be sustained. This argument too carries force. The workman at no stage before the Inquiry Officer or the appellate authority had made a grouse with regard to non-payment of subsistence allowance. Faced with this, counsel for the respondent-workman has pointed out para 6 of Annexure P-10 i.e. reply to the show cause notice wherein it has been so said by the workman that he has not been paid the subsistence allowance. The salary of the workman was being paid by the bank and the same was being deposited to his account and similarly on suspension the subsistence allowance which was to be paid to him was actually credited to his account. The finding to that effect has been recorded by the Labour Court as well what has been stated by the Labour Court is that the same has been adjusted against various allowances and loans which were given to the workman. The question only is whether the said amount has actually been paid to the workman. That being so, this ground that no subsistence allowance was paid to the workman also cannot be sustained as held by the Labour Court. However, in view of the fact that this Court has come to a conclusion that there is no admission with regard to the charge which has been put to the workman in toto, and the proceedings thereafter on the assumption that there is an actual admission on that aspect being not sustainable (as held above) and, therefore, I do not intend to interfere with the award dated 31.3.2003 (Annexure P-18) passed by the Central C.W.P.No.11606 of 2003 -8- Government Industrial Tribunal-cum-Labour Court, Chandigarh. However, it would be open to the petitioner-Bank to take appropriate action in this matter in accordance with law. The writ petition is accordingly dismissed on above terms. January 19, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No