LPA No. 1014 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 1014 of 2011 (O&M) Date of Decision: 19.10.2011 Bank of India, Zonal Office, 579, Model Town, Ludhiana ……… Appellant Versus Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-II, Sector 18, Chandigarh & another ………… Respondents ***** CORAM : Hon’ble the Acting Chief Justice Hon’ble Mr. Justice Rajiv Narain Raina Present: Mr. B.R. Mahajan, Advocate for the appellant. Mr. Pritam Saini, Advocate for respondent No.2. **** 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the digest. RAJIV NARAIN RAINA , J. 1. This is a Letters Patent Appeal under Clause X of the Letters Patent, 1919 against the judgment and order of the learned Single Judge dated 21.4.2011 passed in CWP No. 6820 of 2011 upholding the award of the Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh dated 3.1.2011 answering the reference against the management and in favour of the workman. The order of punishment of dismissal of the respondent from service dated 25.4.2003 (P7) was set aside and reinstatement was ordered with full back wages and continuity of service. 2. The Labour Court in its award has found that the enquiry held against the respondent/workman for the alleged misconduct was not fair and proper. It has also been held, on an examination of the enquiry proceedings that the Enquiry Officer proceeded hastily and there was breach of principles of natural justice LPA No. 1014 of 2011 -2- inasmuch as the workman did not get an effective opportunity to explain the charge / allegations levelled against her. The pith and substance of the charge levelled was that the workman while working as Clerk-cum-Cashier at the Bank's Sito Gunno Branch on 18.01.2003 had fraudulently removed one Demand Draft leaf No. 829738 from the Demand Draft Book of the Bank and handed over that Demand Draft Book to the Officer concerned at the Branch along with the movement pass book of sensitive stationary items after entering the Demand Draft leaf at Sr. No. 829739 onwards instead of from 829738 and that she left the bank hurriedly that day. The gravamen of the charge is that on 22.1.2003 the workman resumed duty and admitted have taken the Demand Draft leaf and that she had issued the same in the name one Kewal Krishan under her signatures and that by this method adopted she got financial benefit from said Kewal Krishan. It is not in dispute that the draft was payable at the Bank's Sito Gunno Branch. It was the case of the workman that she had borrowed money from friends and relatives to defray expenses of her son's marriage and said Kewal Krishan, in whose favour the Demand Draft was issued, was one of the money lenders she had borrowed money from; that he was insisting on furnishing some security for the loan. It was in these circumstances in order to tide over immediate embarrassment and to save her honour that the respondent workman had issued a cheque on a DD leaf, instead from her cheque Book of her OD Account No. 19. She had not the intention to have used the DD leaf as a Demand Draft nor could have been used it as such because a Demand Draft cannot be issued on the same branch. It has to be issued to some other Branch and it has necessarily to been signed by an authorized signatory with his code number and the advice is to be posted to the branch where the money is to be paid. In this transaction she has not caused any financial loss to the bank. It is another matter that Kewal Krishan presented the cheque on DD leaf at Sito Gunno branch but the same was returned by the bank as it was not a valid negotiable instrument. Her admission of the transaction on return has been used against her. 3. The Labour Court has found, as a matter of fact, that the entire enquiry LPA No. 1014 of 2011 -3- proceedings before the Enquiry Officer were concluded in the first sitting itself in a one sided and prejudicial manner. She was not given even an opportunity to file reply to the charges levelled. It is well settled that a defective enquiry is no enquiry in the eyes of law. There is nothing on record that the bank led further evidence or materials on record to substantive the charge during the proceedings before the Labour Court. 4. We have heard Mr. B.R. Mahajan, Learned Counsel for the appellant and Mr. Pritam Saini, Advocate for the respondent workman at length. 5. Mr. Mahajan has relied upon Clause 12 of the Memorandum of Settlement dated 12.4.2002 of the appellant Bank which lays down the statutory procedure for holding enquiries. Learned counsel for the appellant has also drawn our attention to Clause 5 (j) of the Memorandum of Settlement which defines 'gross misconduct' to contend that the present case fell within its ambit. Clause 5 (j) reads as follows :- “(j) doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss.” 6. Though not pressed at the hearing but in the Memorandum of Appeal Mr. Mahajan has relied upon the judgments of the Hon'ble Supreme Court in the following cases: Union Bank of India vs. Vishwa Mohan 1998(2) SCT 382 : (1998) 4 SCC 310, Chairman and Managing Director, United Commercial Bank and Ors. vs. P.C. Kakkar, 2003(1) SCT 1033 : (2003) 4 SCC 364 and State Bank of India vs. Ramesh Dinakar, 2006 SCT 61 SC. These cases are distinguishable on facts. There can be no dispute with the law settled therein that a bank employee must exercise high standards of honesty and integrity when he deals with money of the depositors and the customers and where such defalcations are proved, employee must be dealt with an iron hand. 7. Mr. Pritam Saini, on the other hand, appearing for the respondent has supported the award of the Labour Court and the judgment and order of the learned Single Judge affirming it. He has argued that there is nothing in Clause 12 of the Memorandum of Settlement which could save the enquiry proceedings LPA No. 1014 of 2011 -4- from the fatal defects apparent on the face of record. Even the procedure laid down in the Memorandum of Settlement in the present case was not adhered to. He further submitted that even the act of the workman complained of could not be said to be prejudicial to the interest of the Bank or gross negligence or a negligence of the kind likely to involve the bank in serious loss. The expression 'gross misconduct' by definition in Bank's rules itself does not come into play in the present case as no prejudice was caused to the bank or any loss to it, much less serious or negligence sufficient to embarrass its reputation. The learned Single Judge found that the cheque issued by the respondent-workman was cleared from her account and the bank was not put to any loss, and merely because one particular document has been used in a way in which it is not indicated to be used ought to have been treated as a mere irregularity for which the punishment of dismissal was disproportionate. On the failure of the enquiry proceedings to meet the standards demanded of a fair and proper enquiry the entire proceedings deserve to be nullified. The result would be that there is no proof of charge of alleged misconduct and the award of reinstatement would be just and proper. It is well settled that a defective enquiry falls in the category of 'no enquiry'. We uphold the reasoning of the Labour Court and hold that the conclusion is just and proper and based on a fair evaluation of evidence and the facts and circumstances of the case. The appellant relied solely on the enquiry held by it and did not make a request before the Labour Court for permission to lead further evidence in support of the charges and convert the labour Court as an enquiry officer itself and call upon it to exercise powers under Section 11-A and interfere with quantum of punishment. Therefore, there was no occasion for the labour court to have examined the matter further after faulting the enquiry even though it made a passing reference in the award to the effect that “The workman may be guilty of a minor misconduct and could have been punished for the same if the memorandum of settlement or any other rules provided for the same”. We have travelled to this point only to examine the ramifications of the aforesaid observation of the Labour Court even though its effect has not been pleaded or raised while assailing the award either before the Learned Single LPA No. 1014 of 2011 -5- Judge or before us. It is another matter that it would have been impermissible to raise it in writ and in appeal. We are satisfied that the observation should not detain us. It is at best in the nature of obiter or ipse dixit. 8. The scope of interference by the High Court in exercise of its certiorari jurisdiction against the findings of fact recorded by labour Courts and industrial tribunals as a result of appreciation of evidence are well defined in the celebrated case; Syed Yakoob v. K.S.Radhakrishnan, AIR 1964 SC 477 that such findings “cannot be reopened or questioned in writ proceedings.” . The High Court's jurisdiction is merely supervisory. 9. Learned Counsel for the appellant has not been able to persuade us to take a view different from that taken by the learned Single Judge or that of the Labour Court. We, therefore, uphold the impugned judgment and dismiss the appeal. 10. We find that the respondent has been kept out of service since 2003 by an unlawful and vindictive order and that too for wrong reasons. That is long enough to break the back of anyone including patience itself. We would not like to leave the matter now to the litigative stamina of the appellant Bank, or to its red tape, or for it to await representation for reinstatement with folded hands and therefore, direct the appellant to implement the award within two months from the date of receipt of a certified copy of this order so that the respondent rehabilitates herself and her family without further delay. (M.M. KUMAR) (RAJIV NARAIN RAINA) ACTING CHIEF JUSTICE JUDGE 19.10.2011 ‘sp’