Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 436 (GUJ)

Regional Manager, Dena Bank v. Jivabhai S Parmar

2020-03-11

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : ASHUTOSH J. SHASTRI, J. 1. Both these Letters Patent Appeals under Clause 15 of the Letters Patent are filed against the judgment and order dated 31.7.2019 passed by the learned Single Judge in Special Civil Application No.15948 of 2010. 2. The background facts giving rise to the present appeals are that the workman Jivabhai Savabhai Parmar, who was the employee of the appellant – Dena Bank, was faced with a charge of having removed one blank cheque from the cheque book handed over to the Gujarat Finance. Later on, in connivance with one Mr.Nai, opened a fictitious account in Mehsana District Cooperative Bank, Mehsana and withdrawn the amount and shared a sum of Rs.40,000/- by misusing the aforesaid one removed cheque, as indicated above. 2.1 A criminal case was also registered against him on account of such fraudulent act. It is the case of the bank that said delinquent – Jivabhai Parmar confessed said fraudulent act and was suspended vide order dated 15.1.1988. After due inquiry process, he was dismissed from the services vide order dated 26.8.1991. Initially, the workman preferred departmental appeal which came to be dismissed, as a result of which in the year 1994 said delinquent had filed writ petition challenging the order of dismissal. But then, in the said writ petition, he was relegated to the remedy of Industrial Disputes Act. As a result of which, original reference was renumbered as Reference (ITC) No.26 of 2008. Pending the reference proceedings, an order of acquittal came to be passed in the criminal case. But then, since there was a confession in inquiry proceedings and there was a recovery of an amount of Rs.26,000/-, the workman was dismissed from the service. 2.2 With the aforesaid background, the reference proceedings were adjudicated by the Presiding Officer, Industrial Tribunal, in which the delinquent – workman had not challenged the legality and validity of an inquiry but, assailed the conclusion of the Inquiry Officer. Even the finding related to the process of inquiry to be defective was arrived at but, no such issue was framed. Even the finding related to the process of inquiry to be defective was arrived at but, no such issue was framed. But with the aforesaid background, after proper adjudication, the Presiding Officer of the Industrial Tribunal was pleased to allow the reference in part, whereby the order of dismissal came to be held as invalid and the bank was directed to reinstate the workman to its original post with 25% back wages and with a cost of Rs.5000/- and the award came to be published. This award passed by the Industrial Tribunal is made the subject matter of writ petition filed by the bank raising grievance that in a peculiar circumstance of this matter, no order of reinstatement or back wages could have been passed. The said writ petition which was filed in the year 2010 came up for consideration before the learned Single Judge, who, by judgment and order dated 31.7.2019, was pleased to dispose of by remanding the proceedings back to the Industrial Tribunal, with a direction to decide the case a fresh. The operative part of the said judgment and order is reproduced hereinafter : “7. For the foregoing reasons, the petition must partly succeed. Accordingly, the impugned judgment and award is quashed and set aside and the case is restored to the file of Industrial Tribunal, Ahmedabad, with a direction to it to permit the petitioner employer and the respondent workman to adduce their evidences in support/defense of the charges leveled against the workman and then decide the same afresh in accordance with law. Accordingly, the rule is made absolute to the above extent. 8. Considering the fact that the case relates back to the year 1996, it will be desirable to direct the Tribunal to conclude the case with the cooperation of the parties as expeditiously as possible, preferably within five months from the date of receipt of writ of this Court. 9. Petition is disposed of in above terms.” 2.3 This judgment and order passed by the learned Single Judge is challenged both the delinquent – workman as well as by the bank by the aforesaid two Letters Patent Appeals. One which is filed by the delinquent – workman (Jivabhai Savabhai Parmar) is registered as Letters Patent Appeal No.1 of 2020, whereas Dena Bank has filed Letters Patent Appeal No.238 of 2020. One which is filed by the delinquent – workman (Jivabhai Savabhai Parmar) is registered as Letters Patent Appeal No.1 of 2020, whereas Dena Bank has filed Letters Patent Appeal No.238 of 2020. 2.4 With the aforesaid background facts, both the appeals on merits have been heard as per the request of learned counsels appearing for the respective parties. 3. Shri Varun K. Patel, learned counsel appearing on behalf of the appellant bank original petitioner has vehemently contended that the learned Single Judge ought not to have remanded the proceedings back to the Tribunal, particularly when the validity of inquiry was not challenged by the workman before the Industrial Tribunal. It has further been contended that the respondent – workman was faced with a serious charge of mishandling of funds with fraudulent intent and by misusing cheque book, opening the fictitious account and withdrawing from the same which was specifically confessed by him during the course of inquiry and the recovery was also effected to the extent of Rs.26,000/from him. Learned counsel has submitted that after considering overall situation, the disciplinary authority was satisfied with the fact that the respondent – workman deserves appropriate penalty and hence, he was dismissed from service. 3.1 Shri Varun Patel, learned counsel has further contended that the Tribunal has also seriously erred in coming to the conclusion that the inquiry was defective, particularly when no issue related to the same was framed for adjudication. Learned counsel has further submitted that the contents of the written statement has been apparently ignored by the Tribunal, the leaned Single Judge ought not to have remanded the proceedings back to the Tribunal. On the contrary, according to Shri Varun Patel, this is a fit case in which the respondent – workman was rightly dismissed from service. 3.2 Shri Varun Patel, learned counsel has further contended that since enough opportunity was given during the disciplinary inquiry initiated against the workman, there was no question of any denial of opportunity. On the contrary, the workman has confessed before the authority about his misdeeds and, therefore, the judgment relied upon by the learned Single Judge is out of place in view of this peculiar background prevailing on record. On the contrary, the workman has confessed before the authority about his misdeeds and, therefore, the judgment relied upon by the learned Single Judge is out of place in view of this peculiar background prevailing on record. It has further been contended that here is a case in which the alleged mis-conducted has taken place years as back as in the year 1988, for which an order of dismissal came to be passed in the year 1991. The original reference submitted in the year 1996 came to be decided in the year 2010 and in a petition of 2010, a remand order is passed for a fresh consideration in the year 2019, which would not be justiciable. On the contrary, since every fact was there before the learned Single Judge, instead of remanding the matter back to the Industrial Tribunal, the petition could have been dealt with on merit after considering all the records and submissions. Keeping in view the proposition of law laid down by one of the decisions of the Apex Court, a contention is raised before us that the petition, one way or the other, ought to have been dealt with on merit, instead of relegating the parties back to the Tribunal after these many years and hence also, the order deserves to be corrected. Learned counsel has submitted that leaving it open for both the sides to raise all possible contentions on merit before the learned Single Judge, the petition deserves to be disposed of in accordance with law by setting aside the impugned order, within some stipulated period which would meet the ends of justice. 4. To contradict the submission made by learned counsel for the appellant – bank, Shri Jigar D. Dave, learned counsel for the delinquent – workman, has submitted that the learned Single Judge has rightly found that the background fact is such that the same controversy deserves to be appropriately adjudicated by the Industrial Tribunal afresh and as such, there is no illegality of any nature. Shri Dave has submitted that the contention which has been made is to be viewed in the facts and circumstances and cannot be treated as ipso facto a solitary circumstance for establishing the guilt. Shri Dave has submitted that the contention which has been made is to be viewed in the facts and circumstances and cannot be treated as ipso facto a solitary circumstance for establishing the guilt. On the contrary, in criminal case which had been filed, the delinquent – workman was acquitted from the charges which are incidental to the main charge, for which the departmental inquiry was conducted against him. As a result of this, Shri Dave has submitted that there is no irregularity of any nature in passing the impugned order. However, learned counsel has further submitted that if ultimately the situation and the circumstance demand that the matter is required to be dealt with on merit in accordance with law at this stage of the writ proceedings itself, then also the rights and contentions of both the side are required to be kept open as the respondent – workman has a meritorious case and after thorough examination by the Industrial Tribunal, an order of reinstatement with 25% back wages came to be awarded. A well reasoned order of the Industrial Tribunal was also a circumstance relevant in nature. However, be that as it may, if ultimately this Court is of the opinion that the writ petition is to be heard afresh on merit and if all objections and contentions are to be kept open then, there may not be any serious objection for the respondent and after submitting such brief stand before us, a request is made to pass appropriate order, in the interest of justice. 5. Having heard the learned counsels appearing for the respective parties and having gone through the material on record, prima facie we are of the opinion that here is a case in which the charge for which the delinquent – workman, who was peon in the bank, was proceeded departmentally in the year 1988 and after inquiry, in the year 1991, an order of dismissal came to be passed almost prior to 19 years, ofcourse, the same has generated several proceedings. But then, the fact cannot be unnoticed that the cause is of the year 1991. 6. But then, the fact cannot be unnoticed that the cause is of the year 1991. 6. We have also seen from the record that this reference originally numbered as Reference No.8 of 1996 was renumbered in the year 2004 as Reference No.39 of 2004 and lastly, when this Court relegated the workman to the remedy of the I.D. Act, the same was registered as Reference (ITC) No.26 of 2008 before the Industrial Court and as such, on the issue of some broad opportunity having not been afforded, if this long drawn issue is now allowed to be reagitated, the same would be nothing but denial of justice to the parties at a much belated stage and as such, we are of the opinion that the alternate submissions which have been made by the learned counsels before us that on the basis of prevailing record on the writ petition, the present petition deserves to be adjudicated on merit in accordance with law, ofcourse after allowing both the side to raise their objections and all permissible contentions in accordance with law. 7. We have noticed from the fact that workman had not challenged the legality and validity of the inquiry but, has only assailed the ultimate conclusion arrived at by the Inquiry Officer in the departmental inquiry. We have also found undisputedly that there appears to be a contention of the workman as well. When all these issues were just before the Industrial Tribunal, irrespective of the fact whether the issue was raised or not with regard to the defect in the inquiry, but in view of the fact that both the sides had participated in the adjudicating process of the reference, it is insignificant to see at this stage whether the issue was framed or not. Since both the learned counsels, upon instructions, have broadly agreed before us to go back before the learned Single Judge for dealing with the main writ petition afresh in accordance with law, we deem it proper to set aside the impugned order passed by the learned Single Judge with a consequential direction to decide the writ petition afresh in accordance with law. 8. 8. At this stage, we recollect certain observations made by the Apex Court in the case of Management of Bharat Heavy Electricals Ltd. v. M. Mani, reported in (2018) 1 SCC 285 as well as in the case of Allahabad Bank v. Krishna Narayan Tewari, reported in (2017) 2 SCC 308 , on the issue of remand as to whether peculiar background of this fact would justify the remand for de novo proceedings. 9. This view is not only supported by aforesaid observations made by the Apex Court, but on an independent perusal of the record of the writ petition, the materials relevant to the issue attached with the present proceedings including the documents, relevant inquiry papers and the proceedings which went on before the Industrial Tribunal and we are of the considered opinion that instead of relegating back the matter to the Industrial Tribunal, the original writ petition deserves to be dealt with in accordance with law. 10. Resultantly, the present Letters Patent Appeals are disposed of, with following directions : (1) The impugned order passed by the learned Single Judge is set aside. We request the learned Single Judge to hear and dispose of the main writ petition in accordance with law on its own merit and on the basis of the material available on record. (2) Since the aforesaid exercise is to be undertaken by the learned Single Judge afresh, we have desisted ourselves from expressing any opinion on merit with regard to the controversy involved in the present proceedings and the contentions raised by learned counsels. However, we make it clear that it would be open for both the sides to raise all permissible contentions and the objections and after considering the same, the learned Single Judge may make endeavour to decide the writ petition afresh as expeditiously as possible. 11. With the above observations and directions, we allow the present Letters Patent Appeals to the aforesaid extent. 12. Consequently, connected civil application stands disposed of.