Case: Shambu Nath Goyal Vs. Bank of Baroda and Others

This appeal by special leave is by a workman of the first respondent Bank of India. He was respondent No. 3 in W.P. 1407 of 1979 which was filed by the first respondent Bank for quashing the award dated 18.7.1979 of the Central Government Industrial Tribunal- Cum-Labour Court, Delhi, where by the workman Shambhu Nath Goel was ordered to be reinstated with full back wages to the position held by him when he was suspended on 20.7.1965. On the date of his suspension Shambhu Nath Goel was working as a Clerk in the Civil Lines Branch of the Bank at Jullunder. The Banks Deputy General Manager issued a notice dated 23.7.1965 informing the workman that it has been decided to hold a departmental enquiry against him and one Sen Gupta, Agent of t he Bank at Ludhiana is appointed as the Enquiry Officer and that any appeal arising out of his order can be made to S.M. Majumdar, Chief Agent of the Bank at Delhi, within 45 days of the communication of the order in writing to the workmanThe charges framed against the workman were:(1) Riotous and disorderly behaviour in the premises of the Bank which is gross misconduct under para 521 (4) (c) of the Sastri award; as confirmed by para 18.28 of the Desai award;(2) Causing wilful damage to property of the Bank which is gross misconduct under para 521 (4) (d) of the Sastri award as confirmed by para 18.28 of the Desai award;(3) Doing an act subversive of discipline, prejudicial to the interest of the Bank which is gross misconduct under para 521 (4) (j) of the Sastri award as confirmed by para 18.28 of the Desai award;) Failing to show proper consideration to other employees of the Bank which is a minor misconduct under para 521 (6) (i) of the Sastri award as confirmed by para 18 (2) (8) of the Desai awardThe workman filed his written statement of defence, contending inter alia that the enquiry has been instituted under the pressure of the majority Union from which he broke away due to acute differences of opinion on matters of policy. At the stage of defence evidence after the managements evidence had been recorded two applications were filed by the workman. One of those applications was for the management being directed to produce three letters dated 2.8.1964, 15.3.1965 and 24.5.1965 which were stated to be very material for the workmans defence. It was stated in that application that if the documents were not produced by the management, three named persons may be caused to be produced for being examined as his witnesses at the enquiry. The Enquiry Officer who did not al low that application received written arguments from both sides and on the conclusion of the enquiry recorded his findings holding the workman guilty of all the charges. On 29.12.1965 he proposed to award the punishment of dismissal to the workm an and heard the workman who protested against the punishment and stated that the enquiry was arbitrary, biased and improper. The workman was dismissed on the same day and his appeal was dismissed by the Appellate Authority on 26.11.196 6The Union raised an industrial dispute which was opposed by the management but ultimately a reference was made by the Central Government to the Industrial Tribunal, Chandigarh on 11.5.1970. The management filed a written statement on 12.8.1970 contending inter alia that the dispute was not an industrial dispute. That contention found favour with the Tribunal. The workman came up in appeal by special leave to this Court which allowed the appeal on 2.2.1978 holding tha t it is an industrial dispute and remanded the matter to the Tribunal for expeditious disposal. The matter was subsequently taken up by the Central Government Industrial Tribunal-cum-Labour Court, Delhi at the instance of the Central Government as the Tribunal at Chandigarh had ceased to function meanwhile. The Tribunal framed two issues on the questions as to whether there was a fair and proper enquiry by the Domestic Tribunal and whether the dismissal of the workman was justified. On the first question it was held by the Tribunal that the enquiry was vitiated and not in accordance with the principles of natural justice on the ground that the three letters or the witnesses required by the workman to be produced for proving his defence were not made available to him though they were relevant and vital to prove his defence. The management moved an application on 8.2.1979 for an opportunity being given to it to lead evidence in support of the charges framed against the workman in the event of the Tribunal holding against it on the first question relating to the conduct of the domestic enquiry. The Tribunal held that Sen Gupta had been appointed only as Enquiry Officer and was not entrusted with any authority to award the punishment of dismissal as Disciplinary Authority and that no useful purpose would, therefore, be served by allowing the management to lead fresh evidence in the enquiry before it. The dismi ssal was held to be not justified and was set aside by the Tribunal and the workman was ordered to be reinstated with full back wages to the position held by him on the date of his suspension as mentioned above by the award dated 18.7.1979 .The management sought the quashing of the Tribunals award by the Delhi High Court in the Writ Petition filed on several grounds. The first ground was that the transfer of the dispute to the Tribunal at Delhi after the matter was remanded by this Court to the Tribunal at Chandigarh was not valid and that the only course open to the Central Government was to act under s.8 of the Industrial Disputes Act, and no resort could be had to s.33 of that Act. The High Court had no difficulty in rightly rejecting this contention in view of the provisions of s. 33 B(1) of the Act which reads, thus:"33B. (i) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred:Provided that where a proceeding under s. 33 or s. 33A is p ending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court."The Industrial Tribunal, Chandigarh ceased to exist before the matter could be taken up after the remand by this Court and, therefore, there was no question of the Central Government taking action under s.8 of the Industrial Disputes Act for filling up any vacancy. There is no need to say anything more about this objection which was not rightly raised before us by the l earned counsel for the managementThe second contention urged before the learned Judge of the High Court was that the Tribunals finding that Sen Gupta was not competent to dismiss the workman as Disciplinary Authority is unsustainab le. Before the High Court it was admitted by both parties that the conditions of service of the employees of the Bank are mainly and largely governed by the Desai award, para 18.20 (12) whereof states that it is necessary that a bank should decide which officer shall be empowered to take disciplinary action in the case of each office or establishment and that it should also make provision for appeals against orders passed in disciplinary matters to an officer or body not lower in status than the manager. In the notice of enquiry dated 23.7.1965 referred to above Sen Gupta had been named as the Enquiry officer and it was stated that any appeal against the order of that Enquiry Officer can be made to Majumdar, Chief Agent, Delhi. The High Court held that the order referred to in that notice of enquiry could be the final order imposing penalty at the conclusion of the domestic enquiry and that the workman understood that Sen Gupta was also Disciplinary Authority when he pro tested against the proposed punishment without questioning the jurisdiction of Sen Gupta to award it to him and that the Tribunals view that Sen Gupta was not the Disciplinary Authority is not correct. Relying upon this Courts decision in Tat a Oil Mills Company Ltd. v. The Workman, the learned Judge of the High Court held that the Enquiry Officer holding a domestic enquiry cannot take any effective steps to compel the attendance of witnesses and consequently the Enquiry Officer i n the present case could not be stated to have committed any procedural irregularity in not causing the production of the three witnesses required by the workman to be examined as his witnesses at the enquiry. This position was not disputed by the learned counsel for the workman before the learned Judge of the High Court. The workmans application for production of the three documents which were in the custody of one or the other branch of the Bank could have been allowed as they were considered by the workman to be necessary to prove his case that the charge-sheet had been issued to him under the pressure of the majority Union from which he broke away. They were not caused to be produced before the Enquiry Officer in spite of the workmans application dated 29.11.1965. They were not produced even before the Appellate Authority though the workman applied for their production once again by a letter dated 3.8.1966. The learned Judge of the High Court found t hat though the three documents may or may not have supported the stand taken by the workman that the charge-sheet was issued to him under the pressure of the rival majority Union there was material on record to show that those documents were relevant and he observed that the non-production of those documents has caused prejudice to the workman. In this view the learned Judge agreed with the Tribunal that the domestic enquiry was vitiated because of the non-production of those documents. Having held so the learned Judge adverted to the managements application dated 8.2.1979 made before the Tribunal by which an opportunity to lead evidence in support of the charges in the event of the Tribunal holding that the domestic enquiry was defective for any reason whatsoever was prayed for. The Tribunal has stated as follows in its award in regard to that request of they I would have been inclined to hold enquiry myself but in the circumstances of the ca se I do not think much purpose would be served by holding of enquiry by this Tribunal in view of the fact that order of termination is not sustainable on the face of it, having been passed by a person not competent to pass it . In this behalf I would like to refer to the order of appointment of the Enquiry Officer. From the perusal of the said order I find that the Enquiry Officer had been appointed only to enquire into the charges and report ...... ...The order appointing the Enquiry Officer does not travel beyond that. It does not empower Sen Gupta to award the punishment as well. It is not that Sen Gupta is the Appointing Authority and as such can also constit ute himself as the Punishing Authority ............. The order of appointment of Enquiry Officer cannot be held to impliedly contain the power of punishment ................ The order of punishment is patently without an y authority and jurisdiction and as such cannot be sustained .. ....It is for this reason that I Shall not consider it proper for myself to hold a fresh enquiry because the enquiry would be of no avail since the order of punishment itself is not passed by any competent authority"The learned Judge of the High Court appears to have disagreed with this view of the Tribunal in view of his conclusion that Sen Gupta was also the Disciplinary Authority as per the notice of enquiry dated 23.7.1965 read with para 18.20 (12) of the Desai award, which is word for word para 521(12) of the Sastri award. This is one of the reasons for the learned Judge to quash the Tribunals award dated 18.7.1979 and rem it the enquiry to the Tribunal for affording an opportunity to the management asked for by the application dated 8.2.1979 for letting in further evidence to support the charges before the Tribunal. The workman had claimed before the Tribunal in addition to reinstatement full back wages and other benefits from the date of his suspension. The management contended in its written statement of defence before the Tribunal that it is a well established rule that the workman should do his best for minimizing the damages by seeking service elsewhere and that there is nothing in the workmans claim statement to suggest that he remained unemployed during the intervening period and, therefore the workmans demand for back wages can not be considered by the Tribunal. The learned Judge of the High Court held that the Tribunal should have framed an issue on that question and allowed the parties opportunity to establish their respective cases and he gave the necessary direction. This is the second reason for the learned Judge to remit the matter to the Tribunal for further enquiry. The workman has filed this appeal by special leave, feeling aggrieved by the order of the learned Judge of the High Court.

Reasoning:
It is true that in the present case an application way made by the management on 8.2.1979 when the matter was before the Tribunal for the second time after it had been remanded by this Court on 2.2.1978 after rejecting the managements contention that the dispute is not an industrial dispute. That was done by the management nearly 14 years after the workman had been suspended on 20.7.1965 and nearly 13 years after the workman had been found guilty in the domestic enquiry and dismissed from service on 28.12.1965. The management took the preliminary objection which found favour with the Tribunal in the first instance on 25.10.1970 that the dispute is not an industrial dispute. That objection, which was upheld by the Tribunal, forced the workman to seek his remedy in this Court which rejected the objection on 2.2.1978. It is only thereafter that the management filed the application dated 8.2.1979 for the first time seeking further opportunity to lead evidence before the Tribunal for substantiating the charges framed in 1965. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to make up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman w as gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated 8.2.1979 in an industrial dispute which arose to early as in 1965.For the reasons stated above we are of the opinion that the order of the High Court could not be sustained under the facts and circumstances of the case. The appeal is accordingly allowed with costs of the workman quantified at Rs. 5, 000. The High Courts judgment is set aside and the Tribunals award directing reinstatement of the workman with full back wages and other benefits from the date of his suspension, is restored. The amounts paid to the workman under this Courts orders dated 20.2.1980, 8.4.1980 and 27.10.1980 shall be taken into account in computing the workmans claim for full back wages and other benefits from the date of suspension to the date of his reinstatement.