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2017 DIGILAW 536 (GUJ)

Union Bank of India v. Ahmed Valimohammed Notiyar

2017-03-08

SONIA GOKANI

body2017
JUDGMENT : Sonia Gokani, J. 1. Petitioner is a Scheduled Bank where respondent was working as Daftary in Manavadar branch of petitioner bank. For alleged misconduct and insubordination so also the allegation of misbehaviour and negligence, three charge-sheets were issued against the respondent on 3.6.1986, 21.7.1986 and 22.10.1986. Inquiry Officer Mr. K.J. Macwan was appointed to conduct these inquiries. The charges eventually were held as proved. The report also was submitted. The respondent also was superannuated. In all the three, this was common inquiry of three charges and eventually the penalty of dismissal was imposed on 26.5.1987. 2. The respondent filed a Regular Civil Suit No. 403 of 1987 before the Court of learned Civil Judge, Junagadh for declaration and permanent injunction which came to be rejected invoking the provisions of Order VII Rule 11 of the Code of Civil Procedure on 29.1.1996. After rejection of plaint, respondent approached the conciliation officer raising the disputes in relation to his dismissal. The Central Government vide its order dated 7/14.8.1987 made a reference under section 10(1)(d) of the Industrial Disputes Act and the matter was referred to the Central Government Industrial Tribunal, Rajkot ("the Tribunal" for short) for adjudication. The dispute raised is reproduced as under:- "Whether the action of the management of the Union Bank of India, Ahmedabad/Manavadar in dismissing the services of S.H. Ahmed Valimohamed Notiyar, Peon is legal and justified? If not to what relief the said workman is entitled" 3. Thus, the reference was registered as Reference (ITC) No. 38 of 1997. The statement of claim was made by respondent alleging the breach of principles of natural justice and on other grounds. The written statement denying all allegations also was submitted by the petitioner herein. The Reference was transferred in post May, 2004 period from Industrial Tribunal, Ahmedabad. As no notice was served upon the petitioner of such a transfer, the stage of the petitioner bank adducing the evidence was closed at the behest of the respondent. The award came to be passed ex parte on 19.5.2006 allowing partial reference and directing the petitioner to treat the respondent workman in continuous service on his original post from the date of dismissal i.e. 26.5.1987 till his date of retirement i.e. 6.11.1995 with 60% backwages from the date of dismissal till retirement. The award came to be passed ex parte on 19.5.2006 allowing partial reference and directing the petitioner to treat the respondent workman in continuous service on his original post from the date of dismissal i.e. 26.5.1987 till his date of retirement i.e. 6.11.1995 with 60% backwages from the date of dismissal till retirement. The bank came to know about the same when it received communication dated 12.10.2006 from the respondent, after he filed recovery application. 4. Aggrieved bank is before this Court raising various grounds. The principal amongst the same is the challenge to the ex parte award. It is urged that the bank ought to have been served with the notice. It is further the say of the bank that the Tribunal has passed the award on certain incorrect facts which had been presented before it, and therefore, the same also needs to be held perverse. It has also overlooked certain concrete evidence, which had been recorded. Therefore, to grant 60% backwages with continuity of service, particularly, when the reference was preferred after delay of 10 years, are various grounds which could not have been overlooked by the Tribunal. 5. This Court heard learned advocate Mr. Rishin Patel for the petitioner Union Bank of India. He fervently argued that there is no notice issued after once the reference pending before the Tribunal at Rajkot was transferred to the Tribunal at Ahmedabad. Not only that, ordinarily the copy of award also is being sent to the parties and in the instant case, the Bank was also deprived of the same. He has taken this Court through the details of the grounds raised in the petition to emphasis that the award is not tenable. His preliminary submission was of allowing an opportunity to the bank and in the alternative to consider how fallacious the reasons are of the Tribunal. 6. Learned advocate Mr. Das appearing for the respondent has strenuously objected to the entertainment of this petition. According to the learned advocate, every transfer would be with a notice to the parties and it is incorrect to state that the petitioner would not have received the notice. He further has urged that the Tribunal also on merit considered every detail with minute scrutiny. There will be no requirement for this Court to sit in appeal unless there is an apparent error or perversity. He further has urged that the Tribunal also on merit considered every detail with minute scrutiny. There will be no requirement for this Court to sit in appeal unless there is an apparent error or perversity. No interference would be desirable under the jurisdiction of Articles 226 and 227 of the Constitution of India. 7. Having given a thoughtful consideration of the submissions of both the sides, this Court noticed that three departmental proceedings had been initiated against the respondent which were clubbed. All the three charge-sheets were tried by one inquiry officer. After it culminated into the dismissal of the respondent, he challenged such action by way of Regular Civil Suit. The plaint was not entertained and order came to be passed under Order VII of the Civil Procedure Code without entering into that arena. Suffice to say that the respondent approached the conciliation officer and the dispute was referred to Central Government, which had made a reference to the Tribunal. The matter was before the Industrial Tribunal, Rajkot in the year 2000 being Reference ITC No. 38 of 1997. Not only the statement of claim and the written statement had been filed but the evidence of the respondent, who was the applicant before the Tribunal, had begun. There was a transfer of the said reference to the Central Government, Industrial Tribunal, Ahmedabad. It was newly numbered as CGITA No. 1064 of 2004. The notice since was not issued to the Union Bank of India, this Court notices that in the award it is specifically mentioned that the same is passed in the absence of the petitioner herein. The Tribunal noted incorrectly that the proper opportunity was given to the first party and yet, there was no submission of the first party in relation to the legality of the inquiry and justness of the punishment. 8. Learned advocate Mr. Rishin Patel is justified in submitting that when the notice was not issued, the reference ought to result in ex parte award and if there was a presence of the petitioner before the Tribunal at Rajot, there was no reason for it not to appear, had it had the knowledge of such transfer. After adjudication ex parte, the Presiding Officer CGITA declared the award on 19.5.2006. It is not in dispute that the representation of the petitioner bank was missing before the Tribunal. After adjudication ex parte, the Presiding Officer CGITA declared the award on 19.5.2006. It is not in dispute that the representation of the petitioner bank was missing before the Tribunal. It is a much long harped upon fact that there was no notice received by the petitioner Bank. The Court also noticed that some of the documents which were part of defense statement have been overlooked. However this matter is being remanded solely on the ground of non-issuance of the notice, other aspect of merits are not to be gone into. Without relegating the parties to the concerned Tribunal, it would not be feasible to get the adducement of evidence. Again, opportunity to the respondent herein also to challenge and assail the evidence that may be adduced by the petitioner would also be necessary. All in all, when the petitioner has missed an opportunity to present its case after adducing the evidence, the matter is remanded to the Tribunal for it to proceed at the stage from where it was transferred from the Industrial Tribunal, Rajkot. Considering the long period that has gone in the interregnum, both the litigant parties and the Tribunal shall attempt to expeditiously proceed with the matter. 9. Resultantly, the award dated 19.5.2006 is quashed and set aside. The matter is remanded to the Tribunal. The Tribunal shall conduct Industrial Dispute (Reference C.G.I.T.A) No. 1064 of 2004 expeditiously as possible from the stage where it was transferred from Rajkot to Ahmedabad on availing the opportunity to both the sides. 10. Petition stands disposed of accordingly. Disposed off