Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 553 (CAL)

Tumpa Dey v. Central Bank of India

2019-04-30

AMRITA SINHA

body2019
JUDGMENT : 1. In order to provide one Safai Karmachari-cum-Sub-Staff in each branch of the Central Bank of India the central office of the bank decided to initiate the recruitment process for appointment of Sub-Staff in the branches where there was no Safai Karmachari-Sub-Staff. The candidates were required to file application in the prescribed form on or before 30th November, 2011. The petitioner applied for being appointed in the said post on 26th November, 2011. In the application form the petitioner declared that her educational qualification was class eight passed. The petitioner has averred that she was appointed as Sub-Staff vide appointment letter issued in her favour on 26th February, 2013. According to the petitioner she was confirmed in the said post subsequently. Vide a memo dated 18th March, 2016 issued by the Chief Manager of the Central Bank of India Regional Office, Kolkata (South) the petitioner was called upon to give written explanation as to why disciplinary action should not be initiated against her under the provision of Memorandum of Settlement on Disciplinary Action and Procedure dated 10th April, 2002 for workmen (MOS for short) for making false declaration of her educational qualification to get employment in the bank. It was mentioned in the said memo that the school leaving certificate relied upon by the petitioner on verification was found not genuine. Thus, the petitioner has defrauded the bank by submitting a fake certificate. The act on the part of the petitioner constitutes gross misconduct as per MOS. The petitioner was directed to submit her explanation within seven days from the date of receipt of the memo. The petitioner replied to the said memo vide her letter dated 25th April, 2016. The reply submitted by the petitioner being found unsatisfactory decision was taken by the bank to initiate appropriate action against her. A charge sheet was issued on the charge of committing gross misconduct under Clause 5(m) of MOS. A list of documents and a list of witnesses were forwarded with the charge sheet. An enquiry officer was appointed to enquire into the matter. A regular departmental enquiry commenced on 26th August, 2016 and the same concluded on 15th December, 2016. The petitioner was given full opportunity to lead evidence both oral and documentary in support of her case. The enquiry officer conducted an enquiry. An enquiry officer was appointed to enquire into the matter. A regular departmental enquiry commenced on 26th August, 2016 and the same concluded on 15th December, 2016. The petitioner was given full opportunity to lead evidence both oral and documentary in support of her case. The enquiry officer conducted an enquiry. The presenting officer produced eleven exhibits and one witness and the defence side i.e. the petitioner produced 42 documents to defend herself. The enquiry officer concluded that the petitioner practised fraud to secure the job in the bank. The certificate produced by the petitioner was fake. From the relevant documents it appeared that the school in question was established in the year 2005 and not in the year 2001. According to the enquiry officer the charge levelled against the petitioner stood proved. The findings of the enquiry officer were forwarded to the petitioner and she was advised to send her submission in respect of the same within three days from the date of receipt of the said report. The petitioner submitted her written explanation vide her letter dated 17th April, 2017. The petitioner informed the bank that the certificate produced by her was genuine and the certificate was duly signed by the then Principal of the school with the rubber stamp of the school. The petitioner claimed that she was innocent. The disciplinary authority passed the final order on 21st April, 2017 and vide an administrative order dated 21st April, 2017 issued by the Chief Manager of the bank the disciplinary authority imposed the punishment of "dismissal without notice" under provision 6(a) of MOS. The petitioner preferred statutory appeal before the appellate authority challenging the order of the disciplinary authority and vide order dated 10th October, 2017 the findings and the final order of the appellate authority were forwarded to the petitioner. The appellate authority concurred with the findings and the penalty imposed upon the petitioner by the disciplinary authority. The petitioner again filed a representation before the appellate authority vide her letter dated 29th October, 2017 and requested the authority to give a relook at the matter. The appellate authority vide a letter dated 20th November, 2017 intimated the petitioner that there is no scope to review the order of the appellate authority by the appellate authority itself in terms of the MOS. The appellate authority vide a letter dated 20th November, 2017 intimated the petitioner that there is no scope to review the order of the appellate authority by the appellate authority itself in terms of the MOS. The petitioner thereafter filed the instant writ application challenging the entire disciplinary proceedings starting from the issuance of the show cause till the final order passed by the appellate authority. The sheet anchor of the submission of the petitioner is that the transfer certificate which was issued in her favour by the principal of Bhartiya Shiksha Bhawan Convent School on 25th November, 2010 was not properly verified by the enquiry officer. It has been submitted that the charge sheet was issued with a pre-determined and closed mindset. The issuing authority of the transfer certificate was not examined. The enquiry conducted by the bank to verify the genuineness of the transfer certificate was an absolute farce. The officer who prepared the enquiry report though named as one of the witnesses did not depose at the time of giving evidence in the disciplinary proceeding. Though the list of documents was forwarded to the petitioner along with the charge sheet but the documents indicated in the said list was not forwarded. The same was handed over to the petitioner only at the time of conducting the enquiry proceeding. The charges mentioned in the charge sheet were not specific, not definite and vague. The issuance of charge sheet and the subsequent proceeding was an empty formality. The bank had already taken a decision to dismiss the petitioner from service. The petitioner submits that the enquiry officer did not come to a specific conclusion that the certificate relied upon by the petitioner was false. Ld. Counsel lay stress on the conclusion arrived at by the enquiry officer which states that on enquiry the transfer certificate "apparently seemed to be false" because as per relevant documents it is established that the school was established in 2005 and not in 2001. The petitioner alleges that there has been violation of the principles of natural justice. The appeal was disposed of without giving an opportunity of hearing to the petitioner. Though the appellate authority intended to extend natural justice to the petitioner by verifying the certificate dated 15th April, 2017 allegedly issued by the school authority in favour of the petitioner but the steps taken by the verifying authority is not maintainable. The appeal was disposed of without giving an opportunity of hearing to the petitioner. Though the appellate authority intended to extend natural justice to the petitioner by verifying the certificate dated 15th April, 2017 allegedly issued by the school authority in favour of the petitioner but the steps taken by the verifying authority is not maintainable. The verifying authority instead of enquiring about the transfer certificate from the school management illegally and arbitrarily collected information from the guard, caretaker, local people and came to an erroneous conclusion that the school was not in operation before 2005 and the school has been closed since last seven years. It has been strenuously submitted that the guard, caretaker of the school are engaged temporarily by the school management and the said persons may not be aware of the actual date of existence of the school. The information supplied by the local people ought not to have been relied upon by the verifying officer. The verifying officer ought to have checked the admission register of the school directly from the principal or the school management and not from any outsider or temporary staff who are no way connected with the functioning of the school. It has been submitted that the hand-written note dated 16th. December 2015 allegedly issued by the principal of the school indicating that the school was not in existence in the year 2001 and that the school started functioning in the year 2005 cannot be relied upon as the principal of the school did not depose as witness. The petitioner relied upon following judgments in support of her case: (1) M.V Bijlani vs Union of India & Ors. reported in (2006) 5 SCC 88 (para 19, 25 and 26) to highlight the issue that the disciplinary proceedings being quasi-criminal in nature there should be some evidence to prove the charge. The enquiry officer cannot take into consideration any irrelevant fact and he cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. The High Court in judicial review can take note of the conduct of the enquiry officer. In the instant case the disciplinary authority did not take any genuine step to disprove the transfer certificate relied upon by the petitioner. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. The High Court in judicial review can take note of the conduct of the enquiry officer. In the instant case the disciplinary authority did not take any genuine step to disprove the transfer certificate relied upon by the petitioner. The appellate authority though enquired the matter but erroneously relied upon the alleged statements of persons (guard, caretaker and local people) who were not related to the school and who may not have the proper information about the genuineness of the transfer certificate. Thus, the verifying authority relied upon irrelevant facts and arrived at a wrong conclusion that the school was not in existence on the date the transfer certificate was issued. 2. State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772 (paras 4, 35, 36 and 39) on the issue that the charges framed shall be specific and clear. It is mandatory that the proposed documentary evidence and the name of the witnesses proposed to prove the charge together with any oral witness to be mentioned in the charge sheet. The Government servant is given an opportunity to put in writing his statement in defence. The Government servant shall indicate whether he desires to cross-examine any witness mentioned in the charge sheet. In the instant case neither the author of the note mentioned in the transfer certificate nor the author of the transfer certificate was included in the list of witnesses. Until and unless the author of the transfer certificate and the note mentioned therein is called upon to depose about the genuineness of the certificate the petitioner did not have any opportunity to cross-examine the said witnesses and accordingly the certificate in question ought to be treated as genuine. 3. Until and unless the author of the transfer certificate and the note mentioned therein is called upon to depose about the genuineness of the certificate the petitioner did not have any opportunity to cross-examine the said witnesses and accordingly the certificate in question ought to be treated as genuine. 3. Central Bank of India, New Delhi vs. Prakash Chand Jain reported in AIR 1969 SC 983 (paras 5, 6, 7 and 8) wherein the constitutional bench of the Hon'ble Supreme Court held that the principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statement made behind the back of the persons charged are not to be treated as substantive evidence is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. It held that it is desirable that all witnesses on whose testimony the management relies in support of its charge against the workmen should be examined in his presence. The court discouraged the idea of recording statement of witnesses ex parte. In the instant case the enquiry officer took no steps to disprove the transfer certificate relied upon by the petitioner. On the contrary the enquiry officer relied upon a hand-written note scribbled on the transfer certificate allegedly by the principal of the school, but unfortunately the said principal was not called upon as witness and accordingly it was not possible for the petitioner to cross-examine the person concerned. 4. An unreported judgment of the Hon'ble Supreme Court of India dated 18th November, 2005 passed in the case of Shiv Kumar Sharma vs. DJM, Central Bank of India & Ors. in case no. Appeal (Civil) 6951 of 2005 arising out of SLP(c) no. 15343 of 2005 wherein the court held that the availability of alternative remedy is not an absolute bar to exercise jurisdiction under Article 226 of the Constitution of India. The court took note of the fact that the long lapse of time since the appellant has been out of job persuaded the court not to drive him to another round of litigation under the Industrial disputes Act, 1947. The court took note of the fact that the long lapse of time since the appellant has been out of job persuaded the court not to drive him to another round of litigation under the Industrial disputes Act, 1947. Interest of justice in the present case demands that the writ petition filed by the appellant be disposed of by the High Court on merits. Though the learned counsel indicated that the said order may be treated to have been passed under Article 142 of the Constitution of India and does not lay down any ratio but even then the reason for not relegating the employee concerned to fight another round of litigation before the Industrial Tribunal and directing the High Court to dispose of the matter on merits can be relied upon. The learned counsel submits that in the instant case the petitioner indeed approached the Labour Commissioner through the employees union for redressal of her grievance in the year 2017 but the matter was kept pending till February, 2019 and no remedy was in sight. As the petitioner was a dismissed employee and not getting any pay she could not afford to spend more time for finalisation of her case before the Labour Commissioner and accordingly by her letter dated 20th January, 2019 the petitioner withdrew her complaint from the Labour Commissioner. The petitioner submits that in view of the settled law that availability of alternative remedy is not an absolute bar she filed the instant writ petition and prays that she may not be relegated once again to the Industrial Disputes Forum and further prays for disposal of her case by the High Court. 5. Agriculture Finance Co. Ltd. Vs Micro and Small Enterprises Felicitation Council reported in 2013 (5) CHN (CAL) 375 (para 12) wherein the court held that when the issue is of gross or palpable violation of the principles of natural justice the availability of an alternative remedy is no bar for the court to exercise its authority under Article 226 of the Constitution if the body rendering the award is amenable to the writ jurisdiction of the court. It has been submitted that in the instant case there is apparent violation of the principles of natural justice as the relevant witnesses have not been summoned and accordingly it was not possible for the petitioner to cross- examine the person concerned. It has been submitted that in the instant case there is apparent violation of the principles of natural justice as the relevant witnesses have not been summoned and accordingly it was not possible for the petitioner to cross- examine the person concerned. In the absence of proper evidence the documents relied upon by the petitioner ought not to be treated as not genuine. 6. Susanta Panda vs. Chairman, UCO Bank reported in 2014 (4) CHN (CAL) 400 (para 6) wherein the court relying upon the case of Himangshu Kumar Bose vs. Union of India & Ors. reported in 89 CWN 1167 held that the right to cross-examination of a particular witness on which reliance has been placed by the prosecution is a fundamental principle of natural justice. 7. Unreported judgment and order passed by the learned single judge of this court on 27th November, 2017 in W.P No. 21196 (W) of 2017; Sima Dutta vs. Central Bank of India & Ors. wherein on an absolute similar point the court was pleased to hold that the disciplinary authority had expressed the mind in the charge sheet itself that the transfer certificate submitted by the petitioner has not been found to be genuine during the bank's internal investigation. The closed mind of the disciplinary authority could be inferred from the language used in the charge sheet. The court was pleased to set aside the order of dismissal and the entire disciplinary proceeding without any leave to issue fresh charge sheet on the self-same allegations. The bank was directed to reinstate the petitioner with back wages. The respondent bank heavily relied upon the point of availability of alternative remedy and contended that the petitioner is liable to be relegated to the Industrial Forum. The Labour Tribunal was empowered with the authority to summon witnesses and check evidence and if the petitioner was at all aggrieved for not summoning the author of the transfer certificate and the author of the note scribbled in the transfer certificate the said evidence may be recorded before the Industrial Forum. The Writ Court is not the proper court for recording evidence. It has been argued that the writ petition is liable to be dismissed on the ground of suppression of material fact. The Writ Court is not the proper court for recording evidence. It has been argued that the writ petition is liable to be dismissed on the ground of suppression of material fact. The petitioner did not disclose in the writ petition that she had approached the Labour Commissioner for adjudication of the dispute raised by the union on her behalf. He submits that the petitioner took the risk of approaching two parallel forums at the same time. The instant writ petition was filed in the month of May 2018 when the proceeding before the Labour Commissioner was in full swing. The petitioner withdrew the proceeding before the Labour Tribunal only in the month of February 2019 which means that two parallel proceedings on the self-same cause of action were continuing for nearly eight months which is absolutely not permissible in the eye of law. He further submits that in spite of approaching the Labour Commissioner for conciliation the petitioner could have directly approached the Labour Tribunal for relief. The petitioner ought to have waited for disposal of the proceeding that was initiated before the Labour Commissioner and thereafter approached the High Court, if required. Instead, the petitioner rushed to the High Court during the pendency of the proceeding before the Labour Commissioner, which is not permissible. The learned counsel submits that there are several disputed questions of fact in the instant writ petition which cannot be entertained by the Writ Court. He submits that the transfer certificate that has been relied upon by the petitioner mentions that the school in question follows the ICSE curriculum but in her evidence before the enquiry officer the petitioner has deposed that the convent school was affiliated to the ICSE curriculum in the year 2001 but now it is under CBSE/NIOS Board (New Delhi) under the name and style of Shree Bharatiya Siksha Bhawan which reflects on the board. The learned counsel also placed reliance upon the application form submitted by the petitioner at the time of obtaining appointment in the bank wherein the petitioner has herself disclosed that her educational qualification was class VIII passed from the West Bengal Board. The petitioner has continuously changed her stand regarding her educational qualification. The learned counsel also placed reliance upon the application form submitted by the petitioner at the time of obtaining appointment in the bank wherein the petitioner has herself disclosed that her educational qualification was class VIII passed from the West Bengal Board. The petitioner has continuously changed her stand regarding her educational qualification. The vacillating stand adopted by the petitioner together with the note written by the principal of the school in question proves beyond reasonable doubt that the documents relied upon by the petitioner at the time of obtaining appointment are all false and manufactured. The petitioner has herself declared in the application form that even after appointment she shall be liable to be discharged from service if at any time thereafter it is found that any incorrect or false information has been furnished or any information has been suppressed from the bank. The petitioner has also furnished an affidavit to the same effect that furnishing of false information or suppression of any factual information was likely to render her candidature unfit in the bank and if the same is detected at any time during her service career her service will be liable to be terminated. The service of the petitioner has rightly been terminated by the bank due to the false and incorrect statement made by the petitioner at the time of getting appointment in the bank. It has been contended that the petitioner was given enough opportunity to cross-examine the witnesses as mentioned in the list of witness that was forwarded to the petitioner as a part of her charge sheet. The visit report was prepared by the Branch Manager of the bank in presence of the senior internal auditor of the bank and the principal of the school in question. In the report it was specifically mentioned that the bank officials visited the school and had a discussion with the principal of the school. The principal verified the certificate and mentioned in the certificate that the school was not in existence in the year 2001 that is the date on which the petitioner claims to have left the school. Though the principal was not named as one of the witnesses but one of the persons who prepared the report was a witness and duly deposed before the enquiry officer. Though the principal was not named as one of the witnesses but one of the persons who prepared the report was a witness and duly deposed before the enquiry officer. The defence representative duly cross-examined the witness who was one of the members who prepared the visit report. The witness categorically stated in the cross-examination that the visit report was signed by the principal of the school by affixing the seal of the school. It has been submitted that it is not necessary that all the witnesses who are mentioned in the list of witness have to depose as the witness. One of the witnesses mentioned in the list of witness who has been examined and cross- examined during internal enquiry has put forward such convincing evidence that the evidence of the second witness was no longer required. Moreover in the charge sheet it was specifically indicated that for enquiry the management had the right to delete witnesses as and when required. In the instant case the second witness was not required and the evidence given by the first witness was enough to drive home the charge that was brought against the petitioner. As regards the certificate dated 15th April, 2017 allegedly issued by the authority of the convent school which was not taken into consideration by the enquiry officer it has been submitted that the enquiry proceeding came to an end and the findings of the enquiry officer was forwarded to the petitioner by a letter dated 18th January, 2017. Any document that arose subsequent to the completion of the enquiry proceeding is not required to be looked into. The enquiry proceeding should come to an end at one stage and could not have continued for an indefinite period. He submits that even though the said certificate was not taken into consideration by the disciplinary authority but the same was considered and verified by the appellate authority. The appellate authority after verification of the said certificate came to a conclusion that the same was false. It has been pointed out that the certificate dated 15th April, 2017 does not indicate the designation of the person issuing the same. It has been stated that when a certificate is issued by a school and/or any authority the designation of the person who issues the certificate is required to be mentioned therein. It has been pointed out that the certificate dated 15th April, 2017 does not indicate the designation of the person issuing the same. It has been stated that when a certificate is issued by a school and/or any authority the designation of the person who issues the certificate is required to be mentioned therein. In the instant case apart from a rubber seal and a signature the designation of the person concerned is conspicuously absent. He submits that at the face of it the certificate appears to be a manufactured one. It has been contended that in a domestic enquiry the provisions of the Evidence Act is not required to be followed stricto sensu. There is always preponderance of probability. The Writ Court ought not to interfere and exercise its power of judicial review until and unless there is flagrant violation of the principles of natural justice or there is any infirmity in the proceeding itself. The learned counsel relies upon the following judgments in support of his case: 1. The Workmen of Fire Stone Tire and Rubber Co. Vs. The Management & Ors. reported in 1973 FLR SC 359 (para 33, 35, 40 and 41) on the issue of dismissal of the writ petition on the ground of availability of alternative remedy. The Hon'ble Supreme Court held that the Industrial Tribunal is at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out. It is open for the tribunal to deal with the validity of the domestic enquiry. 2. B.C. Tribedi vs. Union of India & Ors. reported in (1995) 6 SCC 749 (para 12 and 13) on the scope of judicial review by the High Court. In the said case a three-judge bench of the Hon'ble Supreme Court held that whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold enquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. The finding must be based on some evidence. Neither the technical rules of Evidence Act nor proof of fact or evidence apply to disciplinary proceedings. When the authority accepts that evidence and the conclusion received support there from, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The finding must be based on some evidence. Neither the technical rules of Evidence Act nor proof of fact or evidence apply to disciplinary proceedings. When the authority accepts that evidence and the conclusion received support there from, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The court in its power of judicial review does not act as appellate authority to re-appreciate evidence. The disciplinary authority is the sole judge of facts and the appellate authority has given extensive power to re-appreciate the evidence or the nature of punishment. In the instant case the disciplinary authority verified the genuineness of the transfer certificate relied upon by the petitioner on the basis of the visit report prepared at the time of visiting the school by the officers of the bank in presence of the principal of the school. The appellate authority also independently verified the second certificate dated 15th April, 2017 relied upon by the petitioner and came to the conclusion that the certificate was not genuine. It has been submitted that the defence representative cross-examined the witness who was present at the time of visiting the school and the evidence of the said authority was very categoric that the transfer certificate was not genuine. 3. Lolit Popli vs. Canara Bank & Ors. reported in (2003) 3 SCC 583 to highlight the point that while exercising jurisdiction under Article 226 of the Constitution, the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some materials on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct. In the instant case upon verification of the materials on record the disciplinary authority has come to a conclusion that the petitioner relied upon false documents to obtain her job and accordingly the Writ Court in judicial review ought not to interfere with the punishment imposed upon the petitioner. 4. Damoh Panna Sagar Rural Regional Bank & Anr. Vs. In the instant case upon verification of the materials on record the disciplinary authority has come to a conclusion that the petitioner relied upon false documents to obtain her job and accordingly the Writ Court in judicial review ought not to interfere with the punishment imposed upon the petitioner. 4. Damoh Panna Sagar Rural Regional Bank & Anr. Vs. Munna Lal Jain reported in (2005) 10 SCC 84 (para 14) wherein the court held that the scope of judicial review is limited to the deficiency in the decision making process and not the decision. The court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or so shocking to the conscience of the court in the sense that it was in defiance of logic or moral standards. In the instant case there is no deficiency in the decision making process. The principles of natural justice have been strictly followed. All opportunity was given to the petitioner to cross-examine the witness. The court should not interfere with the punishment imposed. 5. An unreported judgment dated 20th November, 1997 delivered by an Hon'ble Division Bench of this court in Appeal No. 410 of 1996 arising out of APO/T/526/96 in the matter of Eastern Coal Fields Ltd. Vs. Susil Bouri & Ors. wherein the court held that it is true that in certain circumstances remedy by way of writ application get availed of despite existence of an alternative remedy but when a statute provides for an alternative remedy the court normally ask the party to avail that remedy so that the statutory remedy available may not be bye passed. 6. An unreported judgment of the Hon'ble Division Bench of this court dated 8th November, 2006 in APO No. 13 of 2005 arising out of W.P No. 2076 (W) of 2002 in the matter of Messrs. Eastern Coal Fields Ltd. Vs Jutan Kora on the point of dismissal of writ petition on the ground of suppression of material facts. 7. An unreported judgment delivered by the Hon'ble Division Bench of this court on December 21, 2004 in FMA No. 1512 of 2000/ MAT No. 2210 of 1998 in the matter of Webel Video Devices Ltd. Vs Prasanta Kumar Das & Ors. on the issue of not exercising writ jurisdiction in case of the availability of an alternative remedy. 8. 7. An unreported judgment delivered by the Hon'ble Division Bench of this court on December 21, 2004 in FMA No. 1512 of 2000/ MAT No. 2210 of 1998 in the matter of Webel Video Devices Ltd. Vs Prasanta Kumar Das & Ors. on the issue of not exercising writ jurisdiction in case of the availability of an alternative remedy. 8. Unreported order dated 13th September, 2018 delivered by a learned single judge of this court in W.P No. 10485 (W) of 2017 in the matter of Chotelal Kahar vs. Central Bank of India & Ors. wherein the court dismissed the writ petition on the ground of availability of alternative remedy. After hearing the submission made on behalf of both the parties it appears that the petitioner being aware of the fact that she is a "workman" as per the provisions of the Industrial Disputes Act, 1947 rightly approached the Labour Commissioner for redressal of her grievances. The petitioner in the affidavit in reply has mentioned that her cause was taken up by the union before the appropriate authority against the management to achieve its object of collective bargaining and the petitioner could not stand in the way but thereafter when the petitioner found that she was not likely to get minimum relief out of the proceeding initiated by the union the petitioner decided to approach the Writ Court as per the advice of her learned advocate. The petitioner requested the secretary of the union not to proceed any further with the conciliation proceeding and finally the petitioner withdrew the said proceeding on 20th February, 2019. In fact the Deputy Regional Manager of the bank vide letter dated 30th. January 2018 informed the Assistant Labour Commissioner to nullify the application of the workmen/general secretary as 'a Case of Failure of Conciliation', but the Assistant Labour Commissioner vide order dated 31st. January 2018 requested the Bank Management to reconsider the case of the petitioner. Nothing fruitful happened thereafter. It is an admitted fact that on the date the writ petition was filed before this court a proceeding before the conciliation officer in accordance with the Industrial Disputes Act was pending. The petitioner under no circumstances could have approached the Writ Court during the pendency of the said proceeding. Two separate parallel proceedings challenging the self-same cause of action is not maintainable in law. The petitioner under no circumstances could have approached the Writ Court during the pendency of the said proceeding. Two separate parallel proceedings challenging the self-same cause of action is not maintainable in law. The petitioner ought to have disclosed the fact of approaching the Labour Commissioner and the pendency of the proceeding before the said forum in the writ petition filed by her. At the same time it cannot be lost sight of the fact that the petitioner was dismissed from service in April 2017. Though the union took up her cause but till 2019 the proceeding before the said forum moved at a snail's pace and the petitioner was not able to get any relief from the same. Realising that the said proceeding will continue for a considerable period of time the petitioner approached the Writ Court. Taking note of the fact that the petitioner did not approach the Labour Commissioner independently but was represented by the union and also the fact that considerable period of time elapsed from the date of her dismissal and that the bank made a request for treating the case as a failure case I intend not to relegate the petitioner once again to the alternative forum available and propose to dispose of the writ petition on merits. The decisions relied upon by the parties on the proposition that the jurisdiction of the Writ Court is not ousted on account of availability of an alternative forum is well settled. Considering the facts of the case in hand and the balance of convenience and inconvenience of the parties I feel that the correct approach would be to decide the matter on merits so that the party is not made to knock the doors of justice from one forum to the other. The sheet anchor of the petitioner's case is a transfer certificate allegedly issued by the principal of the school on 25th. November, 2010 where the petitioner claims to have studied till class VIII and a further certificate dated 15th April, 2017 allegedly issued by the same school mentioning that the transfer certificate issued in favour of the petitioner is correct according to the school record. As the certificate dated 15th April, 2017 was procured by the petitioner after the completion of the enquiry proceeding the disciplinary authority rightly did not take the same into consideration. As the certificate dated 15th April, 2017 was procured by the petitioner after the completion of the enquiry proceeding the disciplinary authority rightly did not take the same into consideration. The appellate authority exercised its discretion and to provide justice to the petitioner verified the said certificate from the school authority and came to the conclusion that it was not genuine. To arrive at the conclusion the appellate authority engaged a responsible officer of the bank to verify the school certificate dated 15th April, 2017. The verifying officer in the rank of Manager visited the school and submitted report wherein it was indicated that the verifying officer visited the school repeatedly on three days and had conversation with the guard, caretaker and some local people wherefrom he could gather the information that the school was not operative before 2005 and the same has been closed since the last seven years. The verifying officer specifically mentions that there was no existence of any teacher or student in the school. The condition of the school was damaged. It is true that in the absence of any teacher it was not possible for the verifying officer to verify the authenticity of the certificate from the school records. If the conclusion of the verifying officer in 2017 that the school was closed since the last seven years is to be relied upon then the hand-written note of the principal of the school dated 16th December, 2015 becomes contradictory. The two statements run contrary to each other. Both the statements cannot go together at the same time. If the school was closed for the last seven years then it could not have been possible for the officers of the bank to meet the principal of the school and prepare the visit report on 16th December, 2015. The visit report allegedly containing the signature of the principal becomes doubtful. In the visit report dated 16th December, 2015 prepared by the senior internal auditor and the branch Manager of the bank in the presence of the principal of the school it was mentioned that the officers of the bank had a discussion with the principal of the school and on verification it was found that the transfer certificate relied upon by the petitioner was false. Had the school been non-operational for the last seven years then there is hardly any scope for discussion with the principal. Had the school been non-operational for the last seven years then there is hardly any scope for discussion with the principal. The verifying officer engaged by the appellate authority took into consideration irrelevant facts while arriving at a conclusion that the school was not in existence and that the certificate was not genuine. The Hon'ble Supreme Court in M.V. Bijlani (supra) categorically held that to prove the charges on the basis of materials on record the enquiry officer cannot take into consideration any irrelevant fact. Accordingly the report of the verifying officer deputed by the appellate authority cannot be relied upon. Though it is a settled law that the scope of judicial review by the High Court under Article 226 of the Constitution is extremely limited and the technical rules of Evidence Act does not apply but in a given case when the facts relied upon by the authority appear to be erroneous on the face of it, it is well within the jurisdiction of the Writ Court to interfere in the decision and set right the wrong that has been committed by the authority. The Writ Court will be failing in its duties if an employee is made to suffer injustice due to wrong appreciation of facts. It would have been a different matter had the appellate authority not considered the certificate which was procured by the petitioner after the conclusion of the proceeding by the disciplinary authority. But since the appellate authority with a view to extend the principle of natural justice have allowed the petitioner to place the said certificate the said authority ought to have verified the same properly and not in a cavalier manner. The employee concerned should not go back with the feeling that she was punished unheard. The employee should be given an opportunity to prove her case. Justice should seem to have been done. In a domestic enquiry where documents are relied upon it is not always necessary that the prosecution has to prove the case. In case the prosecution fails to disprove the said document relied upon by the employee it does not necessarily mean that the documents stood proved. Since it was the employee who was relying upon the document concerned it was upon her to take the responsibility to prove the same. The burden to prove the document was upon the person relying upon the same. Since it was the employee who was relying upon the document concerned it was upon her to take the responsibility to prove the same. The burden to prove the document was upon the person relying upon the same. The employee ought to have taken steps to adduce evidence to prove that the certificate was genuine. Moreover the conclusion of the enquiry officer that the certificate produced by the petitioner "apparently seems to be false" indicates that the enquiry officer was not able to come to a definite finding that the certificate was false. In such a situation when the petitioner has relied upon a further certificate mentioning that the transfer certificate issued in her name is correct according to the school record the said latter certificate ought to have been properly verified before passing the order of dismissal of the employee concerned. When an authority takes the extreme step of dismissing an employee from service it ought to be extremely cautious to ensure that all the relevant evidence are taken into consideration to come to a conclusion to prove the misconduct of the employee. It should be kept in mind that upon dismissal the employee will lose her source of living. The employee and her family may pass through severe financial crisis due to loss of employment. The employer should not act in a casual manner and dismiss an employee from service based upon irrelevant consideration. In my opinion, justice would be sub-served if the matter is relegated back to the disciplinary authority to take steps to verify whether the certificate dated 15th April, 2017 was at all issued by the school or not. Such steps shall be taken by the bank at the earliest and definitely within eight weeks from the date of communication of a copy of this order. Both the parties will be entitled to rely upon evidence and witnesses to prove their case. With the aforesaid observation the instant writ petition stands disposed of. W.P No. 231 of 2018 is disposed of. No order as to costs. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.