C.W.P. No.17849 of 2004 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.17849 of 2004 Date of Decision: 13.08.2009 UCO Bank .....Petitioner Versus Sh. Naresh Kumar and another ....Respondents Present: Mr. Sudhir Mittal, Advocate for the petitioner. Mr. O.P. Sharma, Advocate for respondent No.1. 2. C.W.P. No.4504 of 2006 Naresh Kumar .....Petitioner Versus The Central Government Industrial Tribunal-cum-Labour Court and another ....Respondents Present: Mr. O.P. Sharma, Advocate for the petitioner. Mr. Sudhir Mittal, 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 ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. C.W.P. No.17849 of 2004 and 4504 of 2006 are against the same award, the former having been filed at the instance of the management and the latter at the instance of the workman. By the C.W.P. No.17849 of 2004 -2- impugned award, the punishment of removal from service had been modified and the Labour Court has substituted it by stoppage of four increments for one year. The Labour Court had also found that the departmental proceedings taken by the management resulted in dismissal at two levels. One, by the Disciplinary Authority and another by the Appellate Authority in the intra-departmental appeal that the proceedings were fair and proper. The management's writ petition is against the reduction of punishment while the workman has filed the writ petition challenging the correctness of the finding of the Labour Court that the proceedings before the domestic Tribunal were fair and proper. 2. The charges against the workman by the management-bank consisted as follows:- “1. That while working at Bhallan Branch on 05.11.1998, you applied for one day's Casual Leave for 06.11.1998 with the reason for sitting on Dharna at Zonal Office, Chandigarh. The leave applied by you was not sanctioned by the Manager and you were informed accordingly. 2. That on 07.11.1998 at 11.00 A.M., you were vide Bhallan Branch's Offic Order No.23/98 dated 07.11.1998 asked to officiate vide Assistant Manager in a Leave Vacancy. You neither accepted nor refused the Offic Order but on the blank space in Office Order itself wrote a long narration questioning the bona fides of the Manager/Office Order and did not perform the C.W.P. No.17849 of 2004 -3- duty(s) as directed by the Manager. 3. That on 04.12.1998 at about 4.00 P.M., Sh. P.S. Saini, Assistant Manager of Bhallan Branch went inside the Strong Room to get some documents from there, you shut the Strong Room door from outside. In spite of his frantic knockings on the door the same was not opened. The door was opened by some one only after 15 minutes when Sh. P.S. Saini was almost on the verge of being suffocated. 4. That on 04.12.1998 itself immediately after the aforementioned incident, Bank's very valued customer, namely Sh. Sarvjit Singh came to the bank to deposit Rs.1,00,000/- in his account and when Sh. P.S. Saini, Assistant Manager was in the midst of counting cash, you snatched the entire cash from him and threw the notes helter-skelter and slapped Sh. P.S. Saini.” 5. In effect, the workman had been imputed with riotous and disorderly behaviour at the premises of the Bank, willful damage to the property of the Bank, willful subordination and disobedience of the orders of the management and for misbehaviour towards customers during the business hours, all of which being misconducts, as per the relevant provisions of the Bipartite Settlement dated 19.10.1966 between the management and the workers' union. 6. On the first charge that the workman had deliberately absented himself from duty on 06.11.1998 and had carried out corrections in the attendance register, the response by the workman C.W.P. No.17849 of 2004 -4- was that he had sought for leave on 05.11.1998 stating that he was required to be absent for participation in a Dharna at Delhi and in the leave letter, it had been endorsed that he shall resume his duty on 07.11.1998. According to him, this meant by implication that his leave on 06.11.1998 had been granted. Referring to the alleged corrections in the attendance register, his contention was that when he reported to duty on 07.11.1998, he had entered the time of arrival against date 06.11.1998 by mistake and when he found the mistake he re-wrote against the date 07.11.1998 marked himself present and entered in the column across the date 06.11.1998 that he had taken casual leave. According to him, the management had subsequently struck off the writings made by him and had written “absent”. It was the management, which had carried out corrections in the attendance register and not himself. 7. Learned counsel appearing for the management would point out that the issue relating to the refusal of leave had been properly dealt with by the Enquiry Officer as well as by the Appellate Authority. The format of application for leave was in a standard printed form and against his application, the leave had been endorsed as denied and produced before the Enquiry Officer. Further in the memo of requisition for leave also, the sanctioning officer had scored out the request for leave on the ground that leave could not be granted for the reason of participating in Dharna. The Appellate Court had reasoned that his leave was not being sanctioned admitted of no doubt that he was not being allowed the leave. Before me, it is argued that even the reference to the date 07.11.1998 as a day when he could join C.W.P. No.17849 of 2004 -5- was not true and that date had been interpolated by the workman himself. It must be noticed that such a contention was not raised before the Enquiry Officer. I, therefore, agree with the contention on behalf of the workman that if in the first sentence, there was a reference to the fact that the sanction for leave was being denied and in the last sentence it should read like that the workman should resume his duty on 07.11.1998, it was possible for the workman to believe that he was really being accorded the leave on 06.11.1998. The effect of reference that the workman shall resume duty on 07.11.1998 was never considered by the Enquiry Officer or the Appellate Authority. The Labour Court had not also subjected the reasoning of the domestic Tribunal to any serious scrutiny. It is also pointed out by the learned counsel arguing for the workman that in the attendance register, the endorsement "absent" has not been scored out anywhere but only the endorsement made by the workman that he was on casual leave on 06.11.1998 had been scored out. If the word "absent" had already been entered by the management and the workman would be imputed as having made the interpolation or correction, the word absent must have been struck off. On the other hand, it is only the entry of the workman that he was on casual leave which has been scored out. This shows that the workman could not have carried out any interpolation and the explanation given by him as regards the entries in the attendance register gains credibility. The finding, in my view, does not accord with evidence at all and therefore, although the domestic Tribunal and the Labour Court found the charge No.1 to have been proved, I set aside the finding. C.W.P. No.17849 of 2004 -6- 8. As regards the second charge that the workman had refused to officiate in duty as Assistant Manager on a particular day when the officer was on leave, the contention of the workman was that there was an express instruction that he shall not be permitted to officiate in a higher post. Learned counsel appearing for the management points out and in my view correctly that workman's response to the memo for officiation in a higher post was through a memo with an endorsement taking up irrelevant facts, as to how on previous dates the Manager had conducted himself. He had also challenged the duty assigned to him by stating that the Workers Union had already decided not to take up any such higher officiation roles. It was in the context of his refusal to officiate, the management had passed an order that he shall not be permitted to officiate in future for a period of six months. This response from the management was more in the nature of reprisal or an admonishment for an open defiance by the workman that he would not officiate in a higher post. It was a clear case of insubordination and the findings in that regard by the Labour Court are perfectly justified. 9. The third charge was relatively a serious one. The management had charged the workman as having locked up an official, Sh. Saini in the Strong Room and in enquiry it was brought out that he was seen proclaiming that he had taught the officer a lesson and even went out of the Bank shouting to the attention of the public making references upon caste and that all the persons belonging to the caste would require to be properly dealt with. It was also brought out in evidence before the Enquiry Officer that when Mr. C.W.P. No.17849 of 2004 -7- Saini had been later released from the Strong Room, he was given a physical bashing by the workman by landing a fist blow on the nose. The Manager had given evidence that on his return from outside, he saw Mr. Saini totally shaken up and Mr. Saini had himself given evidence that he was beaten and he was bleeding. This incident was found to be true by the Enquiry Officer but the challenge against this finding by learned counsel appearing for the workman was that the Enquiry Officer had failed to examine the evidence of Satpal, a Clerk, who had stated that no such incident took place in the Bank. It is not as if no reference had been made by the Enquiry Officer but he had observed that witness told him later individually that he deliberately concealed the incident to support his comrade. It is strange that the Enquiry Officer must make reference to an alleged private conversation, which is not a part of the record. That portion of the Enquiry Officer's report is unacceptable but still I find that if a Manager of the Bank as well as an official in a bank gave evidence that he was physically assaulted, the evidence cannot be easily brushed aside by the only fact that there was a denial by the workman. Learned counsel appearing for the workman also contended that the Strong Room itself was not accessible and it was not open because the Manager had left at 2.30 P.M. on that day and he had the keys with him. He came back only after the 4 O'clock and therefore, the incident as alleged by the management could not be true. Learned counsel appearing for the management would explain from the finding of the Enquiry officer and as found by the Appellate Authority itself that during the day time it will be open and there will be only key while C.W.P. No.17849 of 2004 -8- only at the time of closing after the banking hours, the second key will also be used. According to him, only the Manager had left the Bank but the Strong Room was still open and therefore, the case as propounded by the workman was not true. This reasoning finds reference in the Enquiry Officer's report as well as in the Appellate Authority's order. The Court shall not reappraise evidence in a case where some evidence had been placed before the Enquiry Officer that was found to be credible enough to uphold the charge. It is not the adequacy of evidence that shall be tested but the total absence thereof which may vitiate a finding. I uphold the finding of the Enquiry Officer and the Labour Court that charge No.3 had been fully established. 10. As regards the charge that a customer had come to deposit some cash and the Manager had also informed the workman that he had prior information that a customer might arrive late and he had so informed the workman when the manager was leaving the bank at 2.30 P.M. The customer did come a little late after the customer banking hours, at the time when he was assaulting Mr. Saini and even the currency which he had held in his hands had flown out of his hands in the melee. The customer had gathered the cash and left without depositing the money. Learned counsel appearing for the workman would show that apart from alleged written statement of the customer in writing narrating the incident, there was no other evidence before the Enquiry Officer. The non-examination of the customer himself was, according to him, material. If the incident has been spoken by another witness and the fact that there was a written complaint itself C.W.P. No.17849 of 2004 -9- was sufficient for the Enquiry Officer to state that the incident was true and the charge had been proved. It is not as if there was no material at all for the Enquiry Officer or the Labour Court to come to the conclusion that the charge had been proved. 11. The findings of the Enquiry Officer and the Appellate Authority are fairly elaborate. The Labour Court had not dealt with each charge but had made a general observation that it found that all the procedural formalities attending on the enquiry, such as, opportunity to the delinquent, the defence examination of witnesses etc. had all been properly followed and that the proceedings had been fair and proper. Since the learned counsel for the workman sought my attention to each one of the charges and argued at considerable length, I have addressed them charge-wise only to satisfy myself that even the general observation of the Labour Court had a concrete basis. Except the first charge, I am convinced that every other charge had been clearly and substantially established. 12. As regards the punishment, the Labour Court found that the punishment of removal from service was harsh and disproportionate to the alleged misconduct especially when there were no charges of fraud etc. As bad and serious as a charge of fraud is the charge of insubordination and physical violence on a superior officer. The intervention, which the Labour Court had made for the nature of charges, which I have outlined could clearly show that it was not simply a case where the Labour Court could have been interfered as regards punishment. This is all the more so when the Labour Court found that the enquiry before the Enquiry Officer had been proper and C.W.P. No.17849 of 2004 -10- fair and it found that all other charges had been established. The nature of charges were definitely not being incidents of minor misconducts. They were grave and serious and if the charges were found to have been established, there is simply no scope for interference. 13. Learned counsel appearing for the workman refers to the decision of the Hon'ble Supreme Court in Jitendra Singh Rathor Vs. Shri Baidyanath Ayurved Bhawan Ltd. and another AIR 1984 SC 976 that the interference by the High Cout in exercise of powers of superintendence under Article 227 of the Constitution, they shall not be exercised as a superior court of appeal. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of appeal where it lies to it. He also relied on a decision of a Division Bench of this Hon'ble Court in PGI Chandigarh Vs. The Presiding Officer, Labour Court, U.T., Chandigarh 1996 (6) SLR 757 where Labour Court had modified the punishment by stoppage of four annual increments and directed reinstatement. The High Court did not treat it as perverse and did not interfere with the judgment. As against this, the judgments cited by the learned counsel for the management refers to decision of the Hon'ble Supreme Court in West Bokaro Colliery (Tisco Ltd.) Vs. Ram Pravesh Singh (2008) 3 SCC 729 where the Hon'ble Supreme Court held the sanctity of findings of the Tribunal where there had been unequivoval evidence of misbehaviour towards the superiors, such evidence rendered before the Tribunal could not be discarded by the Labour Court or the Industrial Tribunal. The C.W.P. No.17849 of 2004 -11- decision of The Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and others (1973) 1 SCC 813 was perhaps the first major decision of the Hon'ble Supreme Court that dealt with the extent of discretion under Section 11-A of the Industrial Disputes Act and how it shall be exercised. It reminded the Courts of the power of an Industrial Tribunal to interfere even in case where the enquiry before the domestic Tribunal was found to be not fair and proper and how the Labour Court itself could direct the parties to adduce evidence regarding the facts that were required to be proved before the Tribunal. The judgment also is an authority on the aspect that a Tribunal would have the power at all times to reappraise the whole evidence and satisfy itself whether the evidence establishes the misconduct. It reminds the Tribunals also that if a proper enquiry is made then the Tribunal will have to give cogent reasons for not accepting the view of the employer and the employer will also escape the charge of having acted arbitrarily or mala fide and it would conduce to harmonious and healthy relationship betwen the employer and the workman. In this case, I have no doubt in my mind that the misconduct attributed against the workman and that stood proved were very serious and if the management had decided to terminate his services, it could not have been merely interfered on a subjective finding that it was too harsh and disproportionate. It was harsh, it had to be, since the misconduct was just as well deprecatory. 14. The award of the Labour Court, in so far as it reduces the punishment is set aside. The writ petition filed by the workman in C.W.P. No.4504 of 2006 is dismissed. The writ petition filed by the C.W.P. No.17849 of 2004 -12- management in C.W.P. No.17849 of 2004 challenging the reduction of punishment from one of dismissal is allowed and the award of punishment of dismissal made by the Disciplinary Authority is restored. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE August 13 , 2009 Pankaj*