1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.12 OF 2004 IN WRIT PETITION NO.1846 OF 2000 Life Insurance Corporation of .... Appellants India & Ors. (Ori.respondents) Vs. Jitendra Savla .... Respondent (Ori.petitioner) Ms.Snehal Paranjape with Mr.O. Mohandas. i/by M/s Little & Co. for appellants. Respondent & Advocate absent. Coram : J.N. PATEL & SMT.R.P.SONDURBALDOTA, JJ. Judgment reserved on : 24th July 2009 Judgment pronounced on : 11th November 2009 JUDGMENT (Per Smt.R.P. SondurBaldota, J.) : 1. This appeal takes exception to the order dated 28th November 2003 passed by the learned Single Judge, partly allowing the Writ Petition filed by the respondent. The impugned order after setting aside finding of the Central Government Industrial Tribunal (hereinafter referred to as “CGIT), on the second issue in Award No.I dated 3rd August 1999 and the entire Award II dated 16th November 1999 remands the matter to CGIT for fresh hearing. 2. The respondent was employed as “Assistant” with appellant No. 1, Life Insurance Corporation of India (hereinafter referred to as “LIC”). He was charge-sheeted in a domestic enquiry for assaulting 2 and injuring other employees and disturbing peace and tranquility of the department by his behaviour, thereby committing acts prejudicial to the good conduct, in violation of Regulation 21 and 39(i) of LIC of India (Staff Regulations, 1960). As the respondent refused to participate in the enquiry proceedings, the same were conducted exparte. He,however, filed written submissions after recording of evidence. The enquiry officer held that the respondent was guilty of the charges levelled against him and reported accordingly. The disciplinary authority accepted the report and awarded punishment of removal from the service after giving show cause notice to the respondent. The internal appeal filed by the respondent was rejected. Thereafter the Labour Commissioner made a reference to the Industrial Court. 3. On the reference, CGIT passed two awards, Award No.I dated 3rd August 1999 and Award No.II dated 15th November 1999. The issues considered in Award I were (1) Whether the domestic enquiry which was conducted against the workman is against the principles of natural justice? and (2) Whether the findings of the enquiry officer are perverse? The issue considered in Award II was 3)Whether the action of the management of Life Insurance Corporation of India in removing the workman from service w.e.f. 21st May 1995 is legal and justified. CGIT answered issues no. 1 and 2 in the negative and issue No.3 in the affirmative. 3 4. The above findings came to be challenged by the respondent by filing the writ petition herein. By the impugned judgment and order passed on the writ petition, the learned Single Judge upheld finding of CGIT that the domestic enquiry conducted by the appellants against the respondent was as per the principles of natural justice. As regards the findings on the remaining two issues, the learned Judge found fault with the same on three counts. Firstly that framing of the second issue in the proceedings to decide Award-I was itself an error in law. Secondly that the second issue as framed was not proper and thirdly that the learned officer presiding over CGIT had taken a narrow approach under belief that the Tribunal could not go into findings of fact arrived at by the enquiry officer. 5. Ms.Paranjape, the learned counsel for the appellants submits that the learned Single Judge ought not to have permitted the respondent to raise any contentions as regards framing of issue no. 2 in Award I or Award II since he had failed to make out any such ground in the petition. She submits that these contentions were taken up on behalf of the respondent across the bar. She further submits that the learned Single Judge ought to have applied ratio of the judgment of the Apex Court in State Bank of India vs. Tarun Kumar Banerjee and others, reported in (2008) 8 SUPREME COURT CASES, page 12, whereas the Apex Court has held that the tribunal having held that the domestic enquiry was fair and valid, the scope 4 of interference was very limited. In the said decision, the Apex Court referred to with approval its earlier decision in Workmen vs. Firestone Tyre & Rubber Co. of India (P) Limited, reported in AIR (1973) 1, SUPREME COURT CASES, page 813 and stated the law laid down therein as follows : “32. (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the, findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the, merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective 5 enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the evidence placed before-it for the first time in justifications of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his, action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee, and to enable the Tribunal itself to be satisfied about the alleged misconduct, (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to, suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen(1), within’ the judicial decision of a Labour Court or Tribunal. 32-A. The above was the law as laid down by this Court as on 15-12-1971 applicable to all industrial adjudication arising out of orders of dismissal or discharge.” 6. As regards the first reason for the finding in the instant case, we feel that the learned Single Judge apparently carried an impression that while adjudicating under Section 11-A of Industrial Disputes Act, the Labour Court is required to pass two awards, 6 preliminary award and final award termed as Award I and Award II respectively. At paragraph no.15 of the impugned judgment, he states that the Apex Court in its judgment in the case of The Cooper Engineering Limited vs. P.P. Mundhe, reported in AIR 1975 Supreme Court, Page 1900 has contemplated the bifurcation of adjudication under Section 11-A of Industrial Disputes Act into two parts leading to Award I and Award II. 7. We have carefully gone through the decision of the Apex Court in Cooper Engineering Limited case and find that the Apex Court nowhere lays down therein that the Award of the Labour Court in adjudication of dispute under Section 11-A of Industrial Disputes Act should be bifurcated into two parts. It only lays down the procedure for hearing of the proceedings. The decision requires that the Labour Court should first decide an issue, as a preliminary issue, whether the domestic enquiry has violated the principles of natural justice. If the issue is answered in the negative, there is no difficulty. However, if the issue is answered in the affirmative, then on the decision being pronounced, it will be for the management to decide whether it will adduce any evidence before the Labour Court. It may or may not choose to lead evidence. In both the situations i.e. the preliminary issue being answered in the negative and the management not deciding to adduce evidence before the Labour Court, where the issue is answered in the affirmative, the Labour Court can straightway proceed to hear 7 the case on merits and decide the same. In that case, there is absolutely no question of there being two awards. In the event, the Labour Court answers the preliminary issue in the affirmative and the management decides to adduce evidence before the Labour Court, there can be a final order of adjudication on merits after recording of evidence. Even in that case, there will be only one award. It is because the first decision decides only the preliminary issue, it does not decide the matter finally. The decision on the preliminary issue herein cannot be treated as a separate Award and termed as Award No.I. This view gets fortified by the clarification in the same decision that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. 8. In the instant case, since the preliminary issue was answered in favour of the management by holding that the domestic enquiry held against the respondent was as per the principles of natural justice, there was no need for the Presiding Officer to postpone final adjudication to any future date. He could have and ought to have decided the matter finally on the same day considering the merits of the case. In the circumstances, the observations of the learned Single Judge that framing of the second issue in the proceedings to decide Award I was an error in law are not correct. 8 9. The learned Single Judge has next found fault with the manner in which the Officer presiding over CGIT formulated issue No.2. After referring to two reported decisions of learned Single Judge, Dhanuka J. of our High Court as he then was in E.Merck (I) Ltd., Bombay vs. V.N. Parulekar & Ors., reported in 1994 III L.L.J. (Suppl.) 546 and Bhavani Metal Works vs. P.R. Sawant & Ors., reported in 1994 III L.L.J. (Suppl.) 771, the impugned order holds that the issue, whether the finding of the charge of misconduct recorded by the enquiry officer was perverse, is not correct and that the issue framed ought to have been whether the charge of misconduct levelled against the workman is proved to the satisfaction of the tribunal by acceptable evidence. According to the learned Single Judge, if the question to be asked is whether the finding is perverse, the approach of the tribunal is bound to be very narrow, whereas the tribunal’s power under Section 11-A of the Industrial Disputes Act are very wide and not limited to the grounds on which it could interfere with the order of dismissal or discharge passed by the management under the preexisting law. Therefore, the tribunal was under a duty to reappraise the evidence and satisfy itself as to whether misconduct alleged against the workman was proved or not. The learned Single Judge has also observed that the learned Officer presiding over CGIT has taken a very narrow approach under the belief that the tribunal could not go into finding of fact arrived at by the enquiry officer. 9 10. Undoubtedly the decision of learned Single Judge of this Court holding that the issue to be framed in adjudication under Section 11-A Industrial Disputes Act should be whether the charge of misconduct levelled against the workman is proved to the satisfaction of the Tribunal by acceptable evidence and not whether the finding on the charge is perverse was binding on the CGIT and the due care ought to have been taken by him while framing of the issue. However, it one looks into the decision of CGIT, it becomes clear and obvious that the learned Presiding Officer has not limited himself to the narrow approach, but has in fact satisfied himself that the charge of misconduct levelled against the respondent is proved by acceptable evidence. He has given a specific finding that the findings of the enquiry officer are supported by the evidence before him. 11. The learned Presiding Officer has extensively discussed the evidence led before the enquiry officer of the witnesses, T.C. Nambudri, A.D. Nene, Mrs.K.B.Billimoria, D.A. Bhalekar, J.G. Hande, A.S. Kamble and Shantaram Chavan. The witnesses narrated the incident that took place on 22nd July 1993 at about 11 am. in the central office of respondent no.1. Witness A.D. Nene,the Administrative Officer in the Finance Department had requested the respondent to part with a calculator in his possession, as the same required by another officer. The respondent got angry and assaulted 10 Nene by giving a blow to his face near the nose. Witness A.S. Kamble, the record Clerk in the department who was passing by at the relevant time rushed to intervene, upon which the respondent assaulted Kamble also on his face. Thereafter witness Hande intervened to take the respondent away from the scene. However, the respondent again rushed at Mr.Nene and inflicted further injuries on him. Then some of the staff members went to call witness, Shantaram Chavan, the Trade Union worker. Mr. Chavan came and tried to pacify the respondent. But the unrepentant respondent broke a water bottle on the table of witness Bilimoria and tried to hit Mr.Chavan in the stomach. Then witness Bhalekar, the record Clerk in the department and other staff intervened to save Mr.Chavan from the respondents attack. In the process, both Mr.Bhalekar and Chavan were badly injured with the broken bottle. None of the witnesses have been cross-examined by the respondent. 12. Witness Nene who had sustained injuries had approached Dr.Hiranandani who sits in the same building and obtained certificate from him. The same was produced in the enquiry proceedings. Witness Shantaram and Bhalekar who were also injured in the incident and had got themselves treated by Dr.Hiranandani did not take any medical certificate from him. Mr.Bhalekar had however, lodged a criminal complaint against the respondent which was later compounded. 11 13. The learned Presiding Officer of CGIT did consider the objections raised by the respondent in the written submissions filed by him that there were no details of the extent of injury sustained by the three witnesses and the treatment taken by them. He also took note of the argument that when the Police came, broken peace of bottle were not found and therefore the allegation that he had assaulted with Chavan with broken bottle is false. The learned Officer observed that the domestic enquiry was related to the misconduct on the part of the respondent in assaulting his co- employees and superiors and was not in the nature or extent of assault or the consequential injury caused to them. Therefore, nonproduction of the medical certificates and broken bottle was not material. After discussing the entire evidence, the learned Officer has noted his satisfaction in the Award. It is thus seen that though the learned Presiding Officer formulated issue No.2 in manner he did and though there are observations in the award that the findings of the enquiry officer are not perverse, what he has actually done is, considered the evidence before the enquiry officer witness by witness and recorded his satisfaction over it’s sufficiency. 14. This brings us to Award II which holds that action of the management of LIC in removing the respondent from service w.e.f. 21st January 1995 is legal and justified. The respondent had contended that the action of removing him from the service is 12 disproportionate and is also discriminatory. The respondent alleges that LIC had taken a lenient view against some other employees by imposing penalty of deduction in the basic pay by two stages permanently. This penalty was modified by the appellate authority into mere censure. 15. The learned Presiding Officer has noted that the misconduct which is proved against the respondent is of grave nature. The respondent had assaulted and injured A.D.Nene the immediate Class-I superior officer, assaulted A.S. Kamble who was trying to pacify the respondent, assaulted and injured Shantaram Chavan and D.A. Bhalekar. The respondent had also failed to abide by the instructions of his superiors. He had disturbed peace and tranquility in the Office and committed acts prejudicial to the good conduct. Considering the gravity of misconduct on the part of respondent, no fault can be found with Award No.II. If the misconduct of such type is either condoned or not taken with sufficient seriousness, it would be difficult for the respondent to maintain discipline in the office. In the circumstances, the appeal is allowed. The impugned order dated 28th November 2003 is set aside. The Writ Petition is dismissed. In the facts and circumstances of the case, no order as to costs. (Smt.R.P.SondurBaldota,J) (J.N. Patel, J.) 13