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2015 DIGILAW 143 (JK)

Central Bank of India v. Darshana Rani

2015-04-01

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

body2015
Judgment : N. Paul Vasantha kumar, C.J. 1. This appeal is filed by Central Bank of India against the order made in OWP No.654/2002 dated 09.10.2002. The writ petition was filed by the appellant against the award made by the Industrial Tribunal-cum-Labour Court, Chandigarh in ID No.14/1988 dated 11.04.2002 wherein the husband of the 1st respondent raised a dispute pursuant to the reference made by the Central Government vide Notification No.L-13025/8/2001-I.R(C-ii) dated 20.11.2001 for adjudication (“whether the action of the management of Central Bank of India in discharging from service Shri Baldev Raj Sharma Clerk, and also not paying him salary for the suspension period is justified. If not, to what relief is the workman entitled.”). 2. During the pendency of the I.D, the said workman, namely, Baldev Raj Sharma died in 1993 and the I.D was prosecuted by the 1st respondent who is the widow and legal heir. It was the case of the deceased workman that while he was working in the Bank and on promotion was posted to Srinagar Branch, he was placed under suspension by the Branch Manager on 28.05.1983 followed by a charge memo dated 29.11.1984 and for about sixteen months no further action was taken. A criminal complaint was also filed by the management for same delinquency and ultimately the criminal court acquitted the workman. The inquiry was conducted based on the charges and based on the said inquiry the workman was dismissed from service. The appeal filed before the Bank was also dismissed and thereafter the order of discharge was passed. The I.D was opposed by the appellant-Bank contending that the workman refused to obey the lawful orders of the management and did not perform the allotted duties. The workman entered the cabin of the Branch Manager with a Trishul in his hands, created nuisance and commotion in the branch premises. The Branch Manager suspended the workman on 28.05.1983. The department action was deferred by the management due to hierarchy of authorities who have to act and take decision on merits. The workman was not honorably acquitted by the criminal Court and he was acquitted only on benefit of doubt. The management conducted the inquiry in a fair and proper manner by giving full opportunity to defend himself. The inquiry officer was impartial and he gave a finding that the workman was guilty of misconduct. The workman was not honorably acquitted by the criminal Court and he was acquitted only on benefit of doubt. The management conducted the inquiry in a fair and proper manner by giving full opportunity to defend himself. The inquiry officer was impartial and he gave a finding that the workman was guilty of misconduct. The appellate authority gave the workman hearing and the appeal was dismissed after finding no merit in the appeal. The punishment imposed was commensurate to the charges and the preliminary objection was raised after demise of the workman and the same having been rejected, the Labour Court proceeded to hear the I.D on merits. 3. After going through the entire record, the Labour Court rendered a finding that the inquiry was closed by the Inquiry Officer on 20.08.1985 immediately after the evidence of the management was over and the representative of the workman wanted to confront the witnesses from the judgment passed by the criminal Court acquitting the workman in respect of the same charges and the acquittal recorded by the criminal Court could not have been lightly thrown aside by the management. After noting that the principles of natural justice in giving the opportunity to defend the inquiry and considering the acquittal recorded by the criminal Court, the Labour Court awarded re-instatement with continuity of service till the date of the death of workman and other benefits along with interest on the back wages at the rate of 12% per annum from the date it became due and also assessed a cost of Rs.3000/- to be paid by the management to the legal heirs of the deceased workman. 4. The said award was challenged in the writ petition and based on the factual findings given by the Labour Court and after noticing the fact that no opportunity was given to the deceased workman to disprove the charges, learned Single Judge upheld the award of the labour Court. 5. In this appeal Mr. Sunil Sethi, the learned senior counsel appearing for the appellant argued that before the order of suspension the workman (deceased) was issued with several memos containing nine allegations for which he has not given any reply. 5. In this appeal Mr. Sunil Sethi, the learned senior counsel appearing for the appellant argued that before the order of suspension the workman (deceased) was issued with several memos containing nine allegations for which he has not given any reply. An FIR was also filed under FIR No.56 of 1983 and the same was registered by Police Station Shergarhi under Section 332/452 RPC with regard to the incident dated 30.08.1983 against the workman as he entered the cabin of the Bank manager with one baggage containing cloths and one Trishul in his hand and asked the bank manager to revoke the suspension order and release his salary, tried to attach him with Trishul which was averted with the intervention of staff and in the said incident the bank manager sustained injuries on his right hand. In the criminal case the charge sheet was filed and after trial the workman was acquitted by giving the benefit of doubt vide judgment dated 10.07.1985. The reply given to the charge memo having been found not satisfactory, on 29.11.1984 regular charge memo was issued and charges were framed. The inquiry was conducted in which the workman fully participated and his failure to produce the defence witnesses cannot be a reason to hold that there was violation of principles of natural justice and there is no bar to proceed against the workman as the acquittal was recorded by the criminal Court only on benefit of doubt. The nature of the charges alleged against the workman being serious, the management in its wisdom issued the order of discharge and the Labour Court is not justified in setting aside the order and ordering reinstatement with a direction to pay the back wages till his death and for payment of other benefits to the legal heirs with 12% interest. The learned Single Judge has also not appreciated the facts in proper perspective while affirming the award. The learned counsel also cited the judgment of Hon’ble the Supreme Court reported in (2012) 1 SCC 442 ( Divisional Controller, Karnataka State Road Transport Corporation v. M. G. Vittal Rao) in support of his contention. 6. Mr. The learned Single Judge has also not appreciated the facts in proper perspective while affirming the award. The learned counsel also cited the judgment of Hon’ble the Supreme Court reported in (2012) 1 SCC 442 ( Divisional Controller, Karnataka State Road Transport Corporation v. M. G. Vittal Rao) in support of his contention. 6. Mr. Amit Gupta, learned counsel appearing for respondent no.1, who is the widow of the deceased workman, contended that as per the by-parte settlement, if a Bank employee is acquitted in the criminal charge, the departmental proceedings cannot be proceeded and in violation of the by-parte settlement the management proceeded against the workman even after the order of acquittal, and the said procedure adopted is illegal. Learned counsel further submitted that even assuming that Bank has got the jurisdiction to proceed further i.e. to conduct departmental enquiry, the Labour Court having found that the deceased workman was not given chance to produce the defence witnesses and the enquiry proceedings were closed by merely recording the statement of the management, the deceased workman was prevented from proving his innocence and the said fact was appreciated by the Labour Court and the said finding of fact recorded by the Labour Court is normally to be interfered and barring the said principle in mind the learned Single Judge up held the award of the Labour Court. The learned counsel also argued that after the enquiry was found not fair and proper the management should have proved the guilt against the deceased workman by adducing additional evidence before the Labour Court and the said plea having not been raised by the management before the Labour Court, the order of the Labour Court is perfectly legal on the facts and circumstances of the case i.e. the workman died in the year 1993 and there is no scope of granting opportunity to the management to prove the allegations leveled against the workman by remanding the matter to conduct enquiry afresh. In support of his contentions the learned counsel relied upon the judgment of Hon’ble the Supreme Court, reported in AIR 1979 SC 1652 (Shankar Chakravarti v. Britannia Biscuit Co. Ltd and anr), (2008) 12 SCC 522 ( State of Punjab and ors v. Prem Sarup), and (2013) 1 SCC 598 (Deputy Inspector General of Police and anr v. S. Samuthiram). 7. We have considered the rival submissions made by the respective counsels. Ltd and anr), (2008) 12 SCC 522 ( State of Punjab and ors v. Prem Sarup), and (2013) 1 SCC 598 (Deputy Inspector General of Police and anr v. S. Samuthiram). 7. We have considered the rival submissions made by the respective counsels. 8. The following issues arise for consideration in this appeal: (1) Whether the management has proved the allegations against the workman in the departmental enquiry? (2) Whether the management is justified in proceeding with the departmental enquiry after the criminal court has acquitted the workman in the criminal case for very same set of allegations? And Issues No. 1: 9. The findings of the enquiry officer given in the enquiry report dated 09.09.1985 is available in the papers filed by the appellant. The alleged drunkardness of the deceased workman at the time of the incident was not proved as there is no evidence according to the finding of the enquiry officer. The charge was that on 23.05.1983 the workman entered the Cabin of the Branch Manager Srinagar with a Trishul and attacked Mr. Lamba without any reason with bad intention to cause bodily harm, the said charge is very serious. It is not in dispute that after the deposition of the management witnesses, the representative of the workman sought for time to present his case by cross-examining the management witnesses based on the criminal Court judgment/findings and also to produce witnesses in support of the workman. The enquiry proceedings having been closed on the very day deposition recorded on behalf of the management, it is evident that the workman was denied reasonable opportunity to defend his case, particularly to produce his defence witnesses and he was prejudiced in that manner to prove his innocence. The said plea was taken not at the first time before the Labour Court, the said stand was taken before the appellate authority, as has been stated by the appellate authority in his order. In paragraph 6 it has been stated as under:- “That in the course of enquiry, the appellant has not been afforded all reasonable opportunities to prove his innocence. The copies of the arguments submitted by the Bank representative were not made available to the appellant for controverting the allegations. In paragraph 6 it has been stated as under:- “That in the course of enquiry, the appellant has not been afforded all reasonable opportunities to prove his innocence. The copies of the arguments submitted by the Bank representative were not made available to the appellant for controverting the allegations. Though the appellate authority has stated that the conduct of the workman during the course of enquiry was to delay the process, no reason is stated as to why the enquiry proceedings were closed on the date of recording the statement of management witnesses alone. The said fact was appreciated by the Labour Court and it was concluded that enquiry was not conducted in compliance to the principles of natural justice as reasonable and lawful opportunity particularly to defend the case/ extract the truth was not given to the workman. The charge could not have been proved even before the Labour Court as the workman was no more when the case was heard by the Labour Court. Since the Labour Court was left with no option but to set aside the order of punishment and order re-instatement with continuity of service till the death of workman and re-instatement being not possible, back wages and other service benefits were ordered. 10. Even if we hold that the management should have produced more evidence to substantiate the charges, the management has not prayed before the Labour Court asking for opportunity to lead evidence to prove the charges as held by the Supreme Court in Shankar Chakravarti’s case (supra). In the absence of such plea made by the Management, it is not open to plead that the Labour Court is not right in granting relief in terms of Section 11A of the Industrial Disputes Act, 1947. 11. In the award the Labour Court has imposed the interest at the rate of 12% per annum on the said back wages and other benefits payable. The said award of interest by the Labour Court in its award dated 22.03.2002 is not justified once the Labour Court gave finding to the effect that the discharge was illegal only on the said date and the discharge order was set aside only on technical grounds. However, the Labour Court was justified in awarding the cost of Rs. 3000/-. Hence the first issue raised in this appeal is answered against the management. Issue No. 2 12. However, the Labour Court was justified in awarding the cost of Rs. 3000/-. Hence the first issue raised in this appeal is answered against the management. Issue No. 2 12. Insofar as the 2nd issue as to whether the management was justified to proceed with the departmental enquiry once the workman was acquitted in the criminal case, we have perused the judgment of the criminal Court dated 11.07.1985. The criminal Court acquitted the workman by holding that the prosecution has not proved the case beyond any reasonable doubt, therefore, the accused (workman) was acquitted for the charge under Section 332 RPC. This is a well settled proposition of law that acquittal in the criminal case is on benefit of doubt and not by honour. It is always for the management to proceed against the workman departmentally and impose appropriate punishment. As the proof required in a departmental proceeding is on probabilities and not beyond reasonable doubt, thus the management was justified in proceeding against the workman even if he was acquitted by the criminal Court by giving the benefit of doubt. (a) In (1996) 6 SCC 455 (State of Karnataka and anr v. T. Venkataramanappa) the Hon’ble Supreme Court held that acquittal in criminal case cannot be held to be a bar to hold departmental enquiry for the same misconduct, which was reiterated in (2005) 7 SCC 764 (Ajit Kumar Nag v. General Manager (PJ) Indian Oil Corporation Ltd. Haldia and ors). (b) In (2006) 4 SCC 265 (Commissioner of Police v. Narender Singh), the issue as to whether departmental proceedings can be proceeded after acquittal in criminal case was considered and in paragraphs 12 and 13 held thus:- “12. It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose (See. Kamaladevi Agrawal v. State of W.B. (2002) 1 SCC 555 ). 13. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose (See. Kamaladevi Agrawal v. State of W.B. (2002) 1 SCC 555 ). 13. It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.” (c) In (2012) 1 CC 442 (Karnataka SRTC v. M.G.Vittal Rao), the Honourable Supreme Court held that if the dismissal from service was passed by the criminal Court on conviction and if no independent enquiry is conducted on acquittal, the workman may be justified in seeking reinstatement based on the acquittal. (d) The said proposition is reiterated in (2013) 1 SCC 598 (Inspector General of Police v. S.Samuthiram) and in paragraphs 23 and 26 the Supreme Court held thus:- “23. We are of the view that the mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceedings initiated by the Department. The respondent, it may be noted, is a member of a disciplined force and non-examination of two key witnesses before the criminal Court that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the prosecution. Considering the facts and circumstances of the case, the possibility of winning over PWs 1 and 2 in the criminal case cannot be rules out. We fail to see, why the prosecution had not examined Head Constable Adiyodi ( No. 1368) and Peter ( No. 1079) of Tenkasi Police Station. It was these two Head Constables who took the respondent from the scene of occurrence along with PWs 1 and 2, husband and wife, to Tenkasi Police Station and it is in their presence that the complaint was registered. In fact, the criminal court has also opined that the signature of PW1 (complainant husband) is found in Ext.P-1 complaint. Further, the Doctor P.W.8 has also clearly stated before the Enquiry Officer that the respondent was under the influence of liquor and that he had refused to undergo blood and urine tests. In fact, the criminal court has also opined that the signature of PW1 (complainant husband) is found in Ext.P-1 complaint. Further, the Doctor P.W.8 has also clearly stated before the Enquiry Officer that the respondent was under the influence of liquor and that he had refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined. 26. the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In view of the above, the second issue is answered in favour of the management. 13. In fine, this LP Appeal is partly allowed by modifying the award of the Labour Court insofar as award of interest at the rate of 12% per annum on back wages and other service benefits till the date of award of the Labour Court i.e. 11.04.2002. Having regard to the fact that instead of complying with the award of the Labour Court, the same was challenged by the Management before the learned Single Judge and before the Division Bench and thus payment of benefits are delayed for over 13 years, 9% of interest is ordered to be paid by the Management to the 1st respondent from the date of award of the Labour Court till the date of payment of benefits. The appellant is directed to calculate the salary and other benefits payable to the workman and pay the same to the 1st respondent, as ordered above, within a period of six weeks from the date of receipt of copy of this order. No costs.