British Bank Of The Middle East v. Marcus S. Lobo — 1999 DIGILAW 431 (BOM)

JUDGMENT : Ranjana Desai, J. The appellant-The British Bank of the Middle East has, in this appeal, challenged the order dated September 22, 1998 passed by the learned Single Judge in Writ Petition No. 1310 of 1998 dismissing the said writ petition filed by it. 2. Briefly stated, the facts, which lead to the filing of Writ Petition No. 1310 of 1998, are as under: Respondent No, 1 was employed as a clerk with the appellant bank in the year 1975. On August 25, 1993 one of the officers of the appellant bank, Ms. Phiroza Garda received by post an envelope addressed to her which contained an undated and unsigned letter addressed to Ms. Dinaz Avari of the Award Staff and two empty covers of condoms. The unsigned and undated letter was written in indecent and vulgar language. Ms. Garda handed over the said letter and the envelope to Ms. Avari. 3. Ms. Avari, after going through the language of the letter and after seeing the handwriting, suspected that, it might have been written by respondent No. 1 as she was familiar with his handwriting. Therefore, with the permission of the bank officer, she handed over the said letter and the envelope to handwriting expert Mr. M.S. Wagh alongwith the specimen signature of respondent No. 1. The handwriting expert Mr. Wagh submitted his report on September 17, 1993 and opined that the handwriting on the unsigned letter and the postal envelope was that of the person whose specimen handwriting was sent to him i.e. respondent No. 1. 4. Ms. Avari complained to the Union. The Union called a meeting for an amicable settlement. However, respondent No. 1 requested the appellant to conduct an enquiry into the matter. The appellant, therefore sought opinion of another hand-writing expert Mr. H.T. Gajjar, who, on October 4, 1993 confirmed that the hand-writing on the envelope and the unsigned letter was that of the same person, whose specimen signatures were sent to him i. e. respondent No. 1. The appellant then served a charge-sheet on respondent No. 1 for gross misconduct under the Bipartite Settlement dated October 19, 1966 and called upon respondent No. 1 to submit his explanation. 5. Respondent No. 1 then requested the appellant to permit him to be represented by an advocate. He also submitted an explanation to the charge-sheet. The appellant then served a charge-sheet on respondent No. 1 for gross misconduct under the Bipartite Settlement dated October 19, 1966 and called upon respondent No. 1 to submit his explanation. 5. Respondent No. 1 then requested the appellant to permit him to be represented by an advocate. He also submitted an explanation to the charge-sheet. As the explanation of respondent No. 1 was found not satisfactory, the appellant instituted an enquiry. The appellant declined the request of respondent No. 1 to be defended by an advocate. Respondent No. 1 was informed that he would be allowed to be represented as per the Bipartite Settlement. The enquiry commenced. Respondent No. 1 refused to sign the proceedings of some dates. Though he was given an opportunity to cross examine all the witnesses, he did not avail of the said opportunity and submitted his written arguments. The enquiry officer submitted his findings holding that respondent No. 1's action was prejudicial to the interest of the bank. He concluded that the charge of gross misconduct u/s 19(5) (j) of the Bipartite Settlement dated October 19, 1966 stood established. On the basis of this finding, the appellant, by its communication dated November 22, 1993, proposed a punishment of dismissal. Respondent No. 1 submitted his written submissions. By order dated December 27, 1993 respondent No. 1 was dismissed. 6. Respondent No. 1 preferred an appeal before the Appellate Authority which was rejected. Thereafter, respondent No. 1 raised an industrial dispute, which was referred for adjudication to the Central Government Industrial Tribunal. The Tribunal, after perusing the reply filed by the appellant and the statement of claim of, respondent No. 1 and documents submitted by both sides, vide Part-I Award dated May 10, 1998 held that the enquiry was vitiated and the findings of the enquiry officer were perverse. The Tribunal came to a conclusion that respondent No. 1 was prejudiced on account of the refusal of the enquiry officer to permit him to engage the services of an advocate in the departmental enquiry. According to the Tribunal, this was against the principles of natural justice. The Tribunal also came to a conclusion that the reliance placed by the enquiry officer on the report of the hand-writing expert Mr. Wagh was not proper because Mr. Wagh was not examined by the management and, respondent No. 1 could not cross examine him. According to the Tribunal, this was against the principles of natural justice. The Tribunal also came to a conclusion that the reliance placed by the enquiry officer on the report of the hand-writing expert Mr. Wagh was not proper because Mr. Wagh was not examined by the management and, respondent No. 1 could not cross examine him. On these two counts, the Tribunal came to a conclusion that the enquiry was held against the principles of natural justice and that the findings of the enquiry officer are perverse. The Tribunal, however, allowed the management to lead evidence to justify its action. 7. This Award of the Tribunal dated May 15, 1998 was challenged in Writ Petition No. 1310 of 1998. The learned Single Judge has, upon consideration of the clauses of the Bipartite Settlement of 1966 and in the light of the judgment of the Supreme Court in the case of Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh Tripathi, (1992) JT 539 Supp, come to the conclusion that the workman's right of representation was regulated by the Bipartite Settlement and that only permitted representation of a delinquent by a lawyer with the permission of the employer bank and if the employer bank declined such request, the workman cannot insist for his representation by an Advocate. The learned Single Judge held that the said part of the order of the Tribunal cannot be sustained. On this aspect, we concur with the learned Single Judge. 8. However, the learned Single Judge has found fault with the Tribunal in not examining the hand-writing expert Shri Wagh. He has come to a conclusion that since Shri Wagh was not examined by the appellant before the enquiry officer, no reliance could have been placed on the report submitted by him because the said report was not proved. Findings of the enquiry officer based on the said report are, therefore, perverse. He has also observed that since the appellant had been given opportunity to lead evidence to establish the misconduct of respondent No. 1, no prejudice could be said to have been caused to it and no case for interference was made but under Article 226 of the Constitution of India. He has also observed that since the appellant had been given opportunity to lead evidence to establish the misconduct of respondent No. 1, no prejudice could be said to have been caused to it and no case for interference was made but under Article 226 of the Constitution of India. The appellant has impugned the said judgment of the learned Single Judge to the extent to which, it declares the findings of the enquiry officer perverse on account of non-examination of hand-writing expert Shri Wagh. 9. We have heard at some length the learned counsel appearing for both sides. We have been taken through the entire record. The short question, with which this Court is concerned, is, whether the learned Single Judge was right in holding that the Tribunal was right in observing that it was not proper on the part of the enquiry officer to place reliance on the report submitted by Shri Wagh because Shri Wagh was not examined. 10. Admittedly, the opinion of hand-writing expert Shri Wagh was obtained by Ms. Avari to whom the unsigned hand-written letter and envelope in question were addressed. Apart from this, the management on its own decided to obtain second opinion. The matter was referred to Mr. H.T. Gajjar, another hand-writing expert, who also confirmed that the disputed hand-writing was of respondent No. 1. Mr. Gajjar was examined by the enquiry officer. The minutes dated February 15, 1994 of the enquiry show that, the hand-writing expert was asked several questions by the enquiry officer. We have carefully perused the said minutes, Mr. Gajjar. has stated before the enquiry officer that, he has experience of about 34 years. He is a consultant of various nationalised banks as well as Government departments. Mr. Gajjar compared 8 admitted samples of respondent No. 1's hand-writing with the questioned documents. The 8 admitted samples, in fact, included the 4 that were sent to Mr. Wagh by Ms. Avari. Mr. Gajjar then confirmed in unqualified terms that, respondent No. 1, who was the author of the writings on the 8 samples, had written the disputed writings on the anonymous letter and the postal envelope. Mr. Gajjar has given convincing reasons for his conclusion and the enquiry officer has quoted the said reasons. Since the opinion of Mr. Wagh and Mr. Gajjar are on similar lines, we don't see how non-examination of Mr. Mr. Gajjar has given convincing reasons for his conclusion and the enquiry officer has quoted the said reasons. Since the opinion of Mr. Wagh and Mr. Gajjar are on similar lines, we don't see how non-examination of Mr. Wagh would cause any prejudice to respondent No. 1. It is significant to note that the enquiry officer has placed complete reliance on the opinion of Mr. Gajjar and there is a mere passing reference to the opinion of Mr. Wagh. In fact, the enquiry officer could have passed his order leaving out of his consideration Mr. Wagh's opinion. In our opinion, the order could be sustained only on the evidence and opinion of Mr. Gajjar. 11. We may also mention another significant aspect of the matter. The minutes of the enquiry dated February 15, 1994 indicate that the enquiry officer had asked respondent No. 1 whether he wanted to question Mr. Gajjar with regard to what had been stated by him in the enquiry or with regard to his written opinion. However, respondent No. 1 replied that he had no questions to ask and that he did not want to participate in the enquiry. To another question namely, whether he would like to cross examine Mr. Gajjar, respondent No. 1 replied that he did not want to participate in the enquiry and that he did not want to cross examine Mr. Gajjar. If the grievance of respondent No. I was genuine, he would have cross-examined Mr. Gajjar. That, he refused to do so indicates that his intentions were not bona fide. In our opinion, the contention of the appellant, that the findings of the enquiry officer are perverse because Mr. Wagh was not examined, is clearly an after-thought. We have carefully gone through the opinion of Mr. Gajjar and the proceedings of the enquiry. In our opinion, the statement of Mr. Gajjar recorded by the enquiry officer and his opinion inspire implicit confidence and are worthy of credence. We have no manner of doubt that the enquiry officer has, on the basis of the said report, come to a correct finding that respondent No. 1 was guilty of gross misconduct u/s 19(5)(j) of the Bipartite Settlement dated October 19, 1966. We find no infirmity in the findings of the enquiry officer. We have no manner of doubt that the enquiry officer has, on the basis of the said report, come to a correct finding that respondent No. 1 was guilty of gross misconduct u/s 19(5)(j) of the Bipartite Settlement dated October 19, 1966. We find no infirmity in the findings of the enquiry officer. In our opinion, the learned Single Judge was not right when he concurred with the Tribunal that the findings of the enquiry officer were perverse because Mr. Wagh was not examined. We are also of the opinion, that the learned Judge erred in coming to the conclusion, that no case for interference under Article 226 of the Constitution of India was made out by the appellant. In our view, the conclusion of the Tribunal, that the findings of the enquiry officer were perverse because Mr, Wagh was not examined is totally unsustainable and contrary to the record and, therefore, a case was indeed made out for interference under Article 226 of the Constitution of India. 12. In the result, the appeal is allowed. We set aside the impugned judgment and order dated September 22, 1998 to the extent to which it confirms the order of the Tribunal dated May 15, 1998 in Reference No. CGIT-2/48 of 1997 holding that the finding of the enquiry officer was perverse because hand-writing expert Shri Wagh was not examined as a witness. Consequently the findings of the enquiry officer dated October 4, 1994 leading to dismissal of respondent No. 1 are hereby confirmed. Appeal is disposed of in the above terms. Needless to say that the Industrial Tribunal will now proceed with the matter to deliver Part II award.