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2005 DIGILAW 929 (ALL)

INDIAN OVERSEAS BANK, LUCKNOW v. S. P. TRIPATHI

2005-05-11

ARUN TANDON

body2005
ARUN TANDON, J. ( 1 ) PER Heard Sri A. B. Saran, senior advocate, assisted by Sri Parmatma Rai advocate on behalf of the petitioner and Sri K. P. Agarwal, senior advocate, assisted by Sumati Rani Gupta advocate on behalf of respondents. ( 2 ) INDIAN Overseas Bank through its authorised signatory has filed this writ petition against the award of the Labour Court Kanpur dated September 2, 2004 passed in Industrial dispute No. 51 of 2000. Under the award the workman, Sri S. P. Tripathi, has been directed to be reinstated in service, with back wages from the date the reference was so made with continuity of service. The facts giving rise to the present petition are as follows. ( 3 ) SRI. S. P. Tripathi, respondent No. 1, was appointed to work as Bill Collector in the respondent-bank at Kanpur Branch. Sri S. P. Tripathi was required to collect the instalments from the small borrowers from the place of their business/residence and to make entries in their pass books after collecting the money and to deposit the same in their respective accounts with the Bank. Sri S. P. Tripathi was served with a charge-sheet dated February 23, 1993 for committing certain acts of commission and omission. Broadly stated the main allegation was that Sri S. P. Tripathi had collected a sum of Rs. 500/- on December 30, 1987 from one loanee Smt. Shyama Gaur. He also made entries in her pass book but he deposited only rs. 200/- on January 1, 1988 and misappropriated the balance of Rs. 300/ -. One sri K. P. Sadhasivan was appointed as Enquiry officer. The enquiry officer is said to have conducted a detailed enquiry and submitted his report. The disciplinary authority after receipt of the said enquiry report is said to have issued a show cause notice to the workman to show cause as to why the punishment of dismissal from service be not imposed. The disciplinary authority ultimately on December 18, 1995 passed the order of punishment, whereby the workman was awarded penalty of dismissal from service with immediate effect. Against the order of punishment the workman filed an appeal before the appellate authority which was dismissed. Against the said order the petitioner-workman filed Civil Misc. The disciplinary authority ultimately on December 18, 1995 passed the order of punishment, whereby the workman was awarded penalty of dismissal from service with immediate effect. Against the order of punishment the workman filed an appeal before the appellate authority which was dismissed. Against the said order the petitioner-workman filed Civil Misc. Writ petition No. 19576 of 1998 which was dismissed by this Court vide order dated August 18, 1998 on the ground of availability of alternative remedy before the Industrial tribunal. The workman filed Special Appeal no. 445 of 1998 (Defective ). The appeal was allowed, the appellate order was set aside and the matter was remanded to the appellate authority to pass fresh order. The appellate authority, thereafter passed a fresh order dated February 12, 1999 and dismissed the appeal again. The workman thereafter raised an industrial dispute. The dispute was referred under the Central Government notification dated August 7, 2000 for adjudication to the Industrial Tribunal under section 10-A of the Industrial Disputes Act. The Labour Court framed a preliminary issue, namely whether the domestic enquiry conducted was fair and proper? The aforesaid issue was decided under order of the presiding Officer dated March 27, 2002 and it was held that the enquiry proceedings stood vitiated being in violation of principles of natural justice as also being based on inadmissible evidence. Thereafter the Labour court afforded opportunity to the management to lead evidence for bringing home the charge against the workman. The labour Court by means of impugned award dated September 2, 2004 held that the management has failed to establish the guilt of the employee in respect of the charge levelled and therefore the impugned action of the management was illegal, the workman was entitled to be reinstated in the service of the bank. It was provided that the workman shall be paid wages from the date of reference only the intervening period between dismissal and the date of reference shall be treated as the period of no pay no work. The workman has also been held entitled for continuity of service. It is this order against which the present writ petition has been filed. The workman has also been held entitled for continuity of service. It is this order against which the present writ petition has been filed. ( 4 ) ON behalf of the petitioner it is contended that after the Labour Court has held that the disciplinary proceedings against the workman initiated by the bank were not fair and proper and thereafter opportunity was given to the employer to lead evidence before the labour Court to bring home the charge. The employer produced the entire evidence which was on record in the enquiry and also produced sri Vipin Tyagi who had submitted the preliminary enquiry report for the purposes of establishing the guilt of the workman. The labour Court has wrongly held in the impugned award that the management has not adduced evidence in support of the charges against the workman and, therefore, the award of the Labour Court is unsustainable in the eye of law and the matter is liable to be remanded to the Labour Court with regard to the guilt of the employee. ( 5 ) ON behalf of the workman it is contended that the employers, except for producing the entire record of enquiry which has already been held to be unfair and unjust on the ground of being in violation of the principles of natural justice as well as being based on inadmissible evidence, did not lead any evidence worth its name to establish the charge against the workman and, therefore, the labour Court has rightly held that the guilt of the workman has not been established and the workman was entitled to be reinstated with benefits. ( 6 ) I have heard learned counsel for the parties and gone through the records of the writ petition. It is not in dispute between the parties that the Presiding Officer of the Labour Court by means of reasoned speaking order dated june 7, 2002 while deciding the preliminary issue recorded a finding that the domestic enquiry held against the workman was in violation of the principles of natural justice and was also based on inadmissible evidence. Therefore it was declared that the said enquiry was neither fair nor proper. The employers have not challenged the aforesaid finding of the labour Court in the present Writ petition. Therefore it was declared that the said enquiry was neither fair nor proper. The employers have not challenged the aforesaid finding of the labour Court in the present Writ petition. The employers have confined their case to the action taken by the management subsequent to the decision of the preliminary issue, namely whether from the evidence led by the employers before the Labour Court the guilt of the workman has been established or not? before the Labour Court the employers had produced the entire disciplinary proceedings and had produced one witness, namely Sri vipin Tyagi, who conducted the preliminary enquiry. After taking into consideration the aforesaid record the Labour Court recorded a categorical finding that the employers having not conducted the enquiry in accordance with the principles of natural justice and having relied upon inadmissible evidence the enquiry conducted by the employers was neither fair nor proper. The employers cannot call back upon the same enquiry proceedings before the labour Court for bringing home the charge. Moreover, the employers, except producing sri Vipin Tyagi, who had conducted the preliminary enquiry, did not produce any evidence to establish that the employee was guilty of the charge which was levelled against him. ( 7 ) THE contention of the petitioner is that the workman was working as Collector of money and had admitted that he had realized a sum of Rs. 500/- from the loanee, it was obligatory upon the workman to establish by cogent evidence that the said money had been deposited in the account of the respective loanee. His defence that he had paid the money to the Cashier of the Bank was only an explanation which was not established by cogent evidence and, therefore, the charge against the workman stood proved. On behalf of the workman the aforesaid assertion is countered by stating that it was for the. employers to have established by necessary evidence that the money had not been tendered by the workman to the Cashier, by producing cashier and by producing other relevant records of the Bank to establish that as and when the money is paid to the Cashier he always issues a receipt in respect thereto and makes endorsement in a particular register. employers to have established by necessary evidence that the money had not been tendered by the workman to the Cashier, by producing cashier and by producing other relevant records of the Bank to establish that as and when the money is paid to the Cashier he always issues a receipt in respect thereto and makes endorsement in a particular register. It is contended that the workman had produced himself as witness before the Labour Court and had stated that the money was in fact paid to the Cashier who had failed to make necessary entries in the relevant register. The Cashier was himself involved in embezzlement of funds of the Bank and had ultimately been dismissed on the said charge. No evidence was produced by the employers in rebuttal of the aforesaid contention. In such circumstances the Labour court after considering the evidence on record held that the employers had failed to lead evidence for the purpose of bringing home the charge against the workman. ( 8 ) THE legal position with regard to obligation of the employer to bring home charge has been settled by the Honble Supreme court in the case reported in AIR 1976 SC 1227 wherein it has been held that once the domestic enquiry is held to be invalid, the employers have to lead evidence de novo before the labour Court to establish the charge. ( 9 ) IN view of the aforesaid legal position the finding recorded by the Labour Court in the face of evidence on record cannot be said to be perverse so as to call for interference under article 226 of the Constitution of India. ( 10 ) THE writ petition as such is devoid of merit and is accordingly dismissed. Petition dismissed .