Full Text
HIGH COURT OF DELHI
Date of order: 21st May, 2024
PUNJAB NATIONAL BANK ..... Petitioner
Through: Mr.Rajat Arora, Mr.Sourabh Mahla and Mr.Sneh Vardhan, Advocates
Through: Mr.Piyush Sharma, Mr.Shivam Dubey and Mr.Anuj Kumar Sharma, Advocates
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant petition under Articles 226 and 227 of the Constitution of India has been filed on behalf of the petitioner Bank seeking quashing of the impugned award dated 16th November, 2005 passed in Industrial Dispute bearing ID No. 175/1999, by the Presiding Officer, CGIT-II, Delhi.
2. The brief facts relevant for the adjudication of the instant petition are as under: a. It is stated by the petitioner Bank that the respondent workman joined the erstwhile New Bank of India (hereinafter “NBI”) in the year 1975, and was promoted at the post of „Daftry’. b. The workman was levelled with the charges of tampering with the bank records, the attendance register and withdrawing various sums of money from his account without having sufficient balance. Thereafter, on the basis of the report of the Chief Vigilance Officer a chargesheet dated 25th May, 1990 alleging the aforesaid misconduct was issued against him. c. Subsequently, the respondent was issued another chargesheet dated 6th December, 1990, alleging therein that he had opened a current account in the name of a fictitious firm and had overwritten the attendance register and thus acted prejudicial to the interest of the bank. d. Thereafter, a regular departmental enquiry was initiated against the respondent workman, whereby, the Enquiry Officer found the aforesaid charges as proved. The charges against the respondent as per the 6th December chargesheet were also held to be proved. e. Subsequently, vide orders dated 16th January, 1993, a punishment of dismissal was imposed upon the respondent workman in respect of all the chargesheets. f. The respondent assailed the orders of the Disciplinary Authority by preferring an appeal dated 1st September 1993. g. In the meanwhile, the erstwhile NBI was amalgamated with the petitioner bank in the year 1993. h. Thereafter, in the year 1998, the respondent workman raised an objection regarding the pendency of the appeal and eventually the matter was referred to the learned Industrial Tribunal, Delhi vide I.D. No. 175/99. The term of reference was whether the respondent workman was entitled to be reinstated in service in view of failure of management to dispose of his appeal. i. During the pendency of the aforesaid industrial dispute, the appellate authority of the petitioner bank rejected the appeal preferred by the respondent vide orders dated 10th October, 2000. j. After hearing the parties, the learned Presiding Officer passed the impugned award dated 16th November, 2005 holding that the punishment imposed upon the respondent was disproportionate to the charges levelled against him and he was held to be entitled for reinstatement with full back wages after deducting the four increments with cumulative effect. k. Being aggrieved by the same, the petitioner Bank has preferred the instant writ petition.
3. Learned counsel appearing on behalf of the petitioner submitted that the impugned award has been passed erroneously as the dispute had become infructuous when the grievance of the respondent workman about nondisposal of his appeal had been disposed of by the petitioner bank.
4. It is submitted that the dispute with regard to non-disposal of the appeal by the respondent workman has been raised at a very belated stage, i.e., after a gap of about 5 years and thus liable to be rejected in view of the decisions in Nedungadi Bank Ltd. v. K.P.Madhavankutty, AIR 2000 SC 839, Asstt Executive Engineer Karnataka v. Shivilinga, (2002) 2 LLN 19 and Haryana State Co-operative Land Development Bank v. Neelam, AIR 2005 SC 1843 wherein it was held that the question of delay and the claim being stale are relevant factors to be taken into consideration while making an appropriate reference.
5. It is submitted that the findings given by the learned Tribunal that the tampering of attendance record is not a grave misconduct and the respondent being a trade union activist, indulging in union activities would not attend his office as other employees do is untenable and perverse.
6. It is submitted that the learned Tribunal erred in holding that the punishment is disproportionate to the misconduct committed by the respondent workman as it is the discretion of the petitioner Bank to impose punishment since the same is the concerned domestic authority.
7. It is further submitted that once the learned Tribunal had reached the conclusion that the enquiry was just, fair and proper, it could not itself substitute the punishment as awarded to the respondent workman.
8. It is submitted that in the cases titled as M.P. State Electricity Board vs Jarina Bee, AIR 2003 SC 2657 and Hindustan Motors Ltd. Vs Tapan Kumar Bhattacharya, AIR 2002 SC 267 the Hon‟ble Supreme Court has held that the grant of full back wages is not normal rule and there has to be a reasonable and justifiable ground for grant of such relief. Therefore, the relief of full back wages given to the respondent workman is contrary to the settled legal position.
9. It is submitted that the respondent had remained silent between the period of 1993 to 1999 and never raised any dispute regarding non-disposal of appeal though out the said period. It is further submitted that the delay in the disposal of the appeal preferred by the respondent was due to the fact that the record in respect of the workman were misplaced/not traceable and as such the appeal could be considered only after about 7 years when the records could finally be traced.
10. It is submitted that once the learned Tribunal had come to the conclusion that the enquiry was just and proper, no interference under Section 11A of the Act could be made, therefore, such interference is bad in law.
11. It is further submitted that the charges of tampering with the attendance records and withdrawal of cash without sufficient balance on the basis of the vouchers is itself a serious misconduct which deserved no leniency.
12. It is submitted that the enquiry in respect of the chargesheet dated 25th June, 1990 was held in a just and fair manner, and that the respondent had been granted personal hearing by the Disciplinary Authority as well as the Appellate Authority.
13. It is submitted that the learned Tribunal has not given any findings with regard to delay in making the reference despite the fact that the petitioner bank had specifically raised the objection with regard to the same.
14. It is submitted that the learned Tribunal has mentioned two punishments in the impugned award, namely, “withholding of two increments” at one place and “withholding of four increments” at other which are self-contradictory in nature and thus are liable to be set aside.
15. It is submitted that the findings of the learned Tribunal are based upon conjectures and surmises and not on any cogent evidence.
16. It is submitted that in view of the fact that another chargesheet had been issued against the respondent, no sympathy could have been shown to a person like him.
17. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be allowed and the reliefs be granted as prayed for.
18. Per Contra, the learned counsel appearing on behalf of the respondent workman vehemently opposed the instant petition submitting to the effect that the same is liable to be dismissed being bereft of any merits.
19. It is submitted that the present petition fails to disclose whether or not the requisite permission to challenge the award of learned Tribunal has been taken from the Screening Authority created by the Government of India in furtherance of the objects of maintaining industrial peace and harmony, whereby, seeking permission of a Screening Authority has been made mandatory before an award by an Industrial Tribunal could be challenged.
20. It is submitted that the petitioner bank is bound to dispose of any appeal filed by the workman against the order of the Disciplinary Authority within 45 days from the date of such filing as per the terms of the Bipartite Settlememt and since the appeal was not disposed of until 10th October, 2000, i.e., when the industrial dispute had already been referred, the learned Tribunal was right in passing the impugned award.
21. It is further submitted that the aforesaid appeal was summarily rejected by the Appellate Authority without considering the submissions made by the respondent workman, and non-speaking orders were passed by it in abject violation of principles of natural justice.
22. It is submitted that the Appellate Authority had no legal authority to dispose of the appeal after the dispute had been referred to the learned Tribunal by the Government of India for adjudication.
23. It is further submitted that such disposal of appeal by the Appellate Authority amounts to an illegal, mala fide and mischievous act on the part of the petitioner bank.
24. It is submitted that by altering the service conditions of the respondent workman during the pendency of the matter before the learned Tribunal, the petitioner bank committed an offence by violating the provisions of Section 33 of the Act.
25. It is submitted that under Section 11A of the Act, the Labour Court/Industrial Tribunal is empowered to act as Disciplinary Authority or as an Appellate Authority to meet the ends of justice, and therefore, the learned Tribunal was well within its powers whilst passing the impugned award.
26. It is further submitted that in view of the decision of the Hon‟ble Supreme Court in Tata Iron & Steel Co. Ltd. v. Labour Court, (1996) 11 LLJ 874, the learned Industrial Tribunal is also empowered to substitute the punishment imposed by the Disciplinary Authority in cases where the punishment is disproportionate to the misconduct.
27. It is submitted that the scope under Article 226 of the Constitution of India is very limited and in absence of any perversity committed by the learned Tribunal, or when there is no error apparent on the face of the award, the writ petition filed by the petitioner bank in the nature of appeal cannot be entertained.
28. It is submitted that the respondent workman did not remain silent for the period between the period 1993 to 1999 and in fact had sent various correspondences to the petitioner bank with regard to appeals. Despite this, the petitioner did not take any steps to dispose of the appeals.
29. It is submitted that the writ petition falsely claims that the impugned award passed by the learned Tribunal is contradictory in nature in as much as the modified punishment imposed by the learned Tribunal was to withhold two increments for each of the chargesheets against him, coming out to a punishment withholding four increments with cumulative effect.
30. It is submitted that the impugned award passed by the learned Tribunal being in accordance with law, the writ petition preferred by the petitioner bank is totally misconceived, untenable and hence liable to be dismissed.
31. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be dismissed.
32. Heard the learned counsel appearing on behalf of the parties and perused the record.
33. At the outset, it is pertinent to state that the instant writ petition has been pending adjudication before this Court since the year 2006 and as of now almost eighteen years have passed. Further, during the pendency of the instant petition, the respondent workman vide order dated 30th July 2007 has received the relief in terms of Section 17B of the Act. With regard to the same, this Court under its extraordinary writ jurisdiction does not deem it to be expedient to reject the instant petition on the grounds of maintainability as after a lapse of almost eighteen years and interim reliefs having been granted to the parties, it would be unreasonable to hold this writ petition to be non-maintainable. In view of the same, the respondent‟s contention with regard to non-maintainability of the instant petition is rejected.
34. Accordingly, in light of the above observations, this Court finds the instant petition maintainable and the same shall now be decided upon its merits.
35. Now delving into the merits of the instant petition and in order to adjudicate upon the merits, this Court deems it fit to frame the following issue: “Whether the learned Tribunal was right in modifying the punishment of the respondent workman from that of ‘dismissal’ to that of ‘withholding of four increments with cumulative effect’ and ordering his reinstatement with full back wages?”
36. It is the case of the petitioner that the learned Tribunal has wrongly passed the impugned award as it failed to take into account the factum that the dispute before it had itself become infructuous with the grievance of the respondent workman regarding non-disposal of his appeal having been redressed by the Appellate Authority of the petitioner bank. The learned counsel appearing on behalf of the petitioner contended that once the learned Tribunal had decided that the enquiry proceedings were just and proper, no interference under Section 11A of the Act was warranted. It has also been contended that the learned Tribunal erred in holding that the punishment imposed upon the respondent workman as a result of the enquiry were disproportionate to his misconduct, which led to modification of the punishment of dismissal by reducing it to stoppage of increments. Therefore, the impugned order may be set aside.
37. In rival submissions, it has been contended by the learned counsel for the respondent that the impugned award has been passed in accordance with law and thus, it does not suffer from illegality of any kind. Furthermore, it is averred that the learned Tribunal rightly held that the petitioner bank‟s Disciplinary Authority had imposed disproportionate punishment upon the respondent workman. It has also been contended that the learned Tribunal is empowered under Section 11A of the Act to modify the quantum of punishment imposed upon the workman in case it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. Therefore, the instant petition being devoid of any merit may be dismissed.
38. Before delving into the issue, it is important to set out the settled law pertaining to the powers of Labour Courts and Tribunals in order to adjudicate upon an industrial dispute. The provision for the same is provided under Section 11A of the Act, which reads as follows: “11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an Industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.”
39. Perusal of the above stated provision shows that the Industrial Tribunals/Labour Courts are empowered to set aside the punishment of discharge or dismissal of a workman in addition to granting the workman reinstatement, or the punishment may also be converted to a lesser one. The provision further allows the Tribunal to set the terms and conditions as it finds appropriate. For the purpose of the application of Section 11A, the Tribunal has to be satisfied that the order of discharge or dismissal was not justified.
40. Furthermore, the proviso to the afore mentioned Section provides that the Industrial Tribunal shall only rely upon the material already present on record and prohibits it from taking any fresh evidence in relation to the dispute raised before it.
41. The Hon‟ble Supreme Court has interpreted the above said provision in the judgment of Hindustan Machine Tools v. Mohd. Usman, (1984) 1 SCC 152, wherein, the Hon‟ble Court outlined the objective and scope of the abovesaid provision by highlighting that the provision empowers the Tribunal to check the harshness of misconduct done by the workman and to assess whether the punishment imposed by the management is proportionate with the gravity of misconduct. Relevant extracts of the said judgment are as follows: “…1. In this appeal the only question raised is whether the Labour Court was justified in reducing the punishment awarded by the Management for the misconduct committed by the first respondent. The Management had imposed the punishment of termination of service of the first respondent. The Labour Court in exercise of the power conferred upon it by Section 11-A of the Industrial Disputes Act reduced the punishment by setting aside the punishment of termination of service and in its place imposed the punishment of stoppage of the increments for two years. Section 11-A confers power on the Labour Court to evaluate the severity of misconduct and to assess whether punishment imposed by the employer is commensurate with the gravity of misconduct. This power is specifically conferred on the Labour Court under Section 11-A. If the Labour Court after evaluating the gravity of misconduct held that punishment of termination of service is disproportionately heavy in relation to misconduct and exercised its discretion, this Court in the absence of any important legal principle would not undertake to re-examine the question of adequacy or inadequacy of material for interference by Labour Court. We are, therefore, disinclined to interfere with the order passed by the Labour Court. Accordingly, the appeal fails and is dismissed with costs quantified at Rs 2500…”
42. In Rama Kant Misra v. State of U.P., (1982) 3 SCC 346, the Hon‟ble Supreme Court again discussed the scope and applicability of Section 11A of the Act and highlighted that the Industrial Tribunal must satisfy itself with regard to the harshness and non-justifiability of the discharge/dismissal order before it decides to proceed to set aside or modify it. Relevant extracts of the said judgment are as follows: “..7. It is now crystal clear that the labour court has the jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. And this Court is at present exercising jurisdiction under Article 136 over the decision of the labour court. Therefore, this Court can examine whether the labour court has properly approached the matter for exercising or refusing to exercise its power under Section 11-A. Before we can exercise the discretion conferred by Section 11-A, the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. These words indicate that even though misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive. As stated earlier, it is a well-recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged…”
43. The above said judgments of the Hon‟ble Supreme Court have been followed by a three judge bench decision of the Rajasthan High Court in the reference in case titled Rajasthan State Road Transport Corporation v. Gopal Singh, 1997 SCC OnLine Raj 104 where it considered the scope of the powers of the Industrial Tribunal while modifying or setting aside the order given in a managerial enquiry. The Court further delved into the powers of High Courts under Articles 226 and 227 to interfere with the order passed by the Tribunal under Section 11A of the Act and opined that there should be interference of the High Court only in the such cases where the perversity in the award passed by the Tribunal is apparent on the face of it. The relevant extracts are as follows:
general rule, the High Court will not interfere unless the order of the Labour Court, Tribunal or National Tribunal is perverse or not based on any evidence or grossly illegal or based on a complete misconception of law or it is such that no reasonable man would come to the conclusion about. There is no hard and fast rule that the High Court is always to send the matter back to the Labour Court, Tribunal or National Tribunal for appropriate adjudication and for passing appropriate punishment in accordance with law. [***]
31. In the facts and circumstances of the present case, we have assessed the quantum of punishment that was initially passed to which the Labour Court has made an interference by exercising its discretion under S. 11-A of the Industrial Disputes Act and we do not think that there is any gross illegality done so as to call for our interference as alleged or at all…”
44. Upon perusal of the above judgments, this Court is of the view that the Industrial Tribunal has the requisite jurisdiction to modify or set aside the punishment in the nature of discharge or dismissal of a workman in the aftermath of a managerial enquiry, regardless of whether the charges alleging misconduct have been proved or not. The key touchstone to warrant the exercise of its powers is whether the order of discharge or dismissal was justified or not.
45. Furthermore, as far as interference by a High Court exercising writ jurisdiction under Articles 226 and 227 is concerned, such an intervention is warranted only in exceptional circumstances when there is grave perversity in the award apparent on the face of it, or where it is not based on any evidence or grossly illegal or based on a complete misconception of law.
46. Now delving into the merits of the instant petition.
47. In the impugned award, the learned Tribunal held the punishment of dismissal imposed upon the respondent by the Disciplinary Authority of the petitioner bank to be disproportionate. Accordingly, the learned Tribunal modified the punishment of dismissal to „stoppage of four increments‟ and the reinstatement of the respondent workman with full back wages. The relevant extracts of the impugned award are reproduced herein below: “..It was submitted from the side of the workman applicant that the charges leveled against the workman applicant are for tampering with the attendance register on two days and withdrawing, payment' without having sufficient balance in his account. So far as tampering, with attendance register is concerned it is not a grave misconduct. The workman applicant may come a bit late c and he may put his initials on the attendance register. He was admittedly a union activist and he was indulging in union activities so it is but natural that he would not attend his office as the employees do. So far as withdrawing excess amount from the bank is concerned it was done after the approval of the Branch Manager. The workman was employee of the bank so the Branch Manager permitted him to withdraw excess amount. It is no fault of the workman applicant as the same has been sanctioned by the Branch Manager. The Branch Manager is to be held responsible for sanctioning the withdrawal of amount without sufficient balance in the account. The only charge that stands established if the entire version of the management is taken to be true is that the workman has tampered with his attendance register on two dates. The inquiry Officer found the tampering, of the other dates not crystal clear and ambiguous. in such circumstances the award of the extreme penalty i.e. dismissal without notice is quite unjust and harsh and disproportionate to the misconduct committed by the workman applicant. The workman has not done anything, prejudicial to the interest of the bank. At the worst the management should have treated him absent On the two dates in which tampering, the attendance register was found. There is no report of the inquiry expert to lead to the inevitable conclusion that the tampering, have been made by the workman applicant. in the facts and circumstances of the case it becomes quite obvious and crystal clear that the penalty inflicted on the workman applicant are vindictive/ unjust and they indicate of malafide and vicious attitude of the respondents in order to take revenge for his trade union activities. The punishment is shockingly disproportionate and it is not sustainable. In the present facts and circumstances of the case withholding, of two increments with cumulative effect is sufficient punishment in case the entire enquiry proceedings are considered fair and just. The law cited by the management is not applicable in the facts and circumstances of the case. The reference is replied thus: Shri Kartar Singh./, Ex—Daftry in the NBI/ Krishna Nagar Branch/ Delhi-51 is reinstated w.e.f. 16-1-1993,. i.e., the date of his dismissal without notice with stoppage of four increments with cumulative effect. The management/ respondents will withheld four increments with cumulative effect and reinstate the workman applicant with full back wages and pay him the arrears of wages less the amount resulting, by withholding, four increments with cumulative effect within two months from the publication of award. Award is given accordingly…”
48. Upon perusal of the above extracts of the impugned award, it is observed that the petitioner bank had questioned the authority of the learned Tribunal in adjudging that the misconduct of the respondent was not grave so as to merit a punishment of dismissal. Further, the petitioner had objected to the fact that after holding the proceedings to be just and proper, the learned Tribunal was not right in modifying the punishment imposed in such proceedings.
49. The learned Tribunal held that the petitioner‟s conduct of enquiry and delay in disposing of the appeal, coupled with the extreme punishment met out to the respondent workman are indicative of vindictive and vengeful attitude of the former towards the latter.
50. This Court is of the view that the jurisdiction of the learned Tribunal under section 11A of the Act is of a wide ambit, and could cover cases of the kind being dealt with presently.
51. Applying the above discussed principles of law, this Court is of the considered view that after holding that the punishment of dismissal imposed upon the respondent was not justified, the learned Tribunal rightly modified and reduced the punishment so as to make it commensurate with the misconduct by the respondent workman.
52. Furthermore, under the exercise of writ jurisdiction, it is neither proper nor intended by this Court to re-examine the evidence on record or to adjudicate upon the dispute involving quantum of punishment, in a bid to find faults in the findings of the learned Tribunal.
53. Considering the above, this Court does not find any merit in the proposition put forth by the petitioner as the impugned award has been passed after taking into consideration the entire facts and circumstances as well as the settled principles of law. Perusal of the preceding paragraphs makes it evident that the learned Tribunal had exercised its powers in accordance with the jurisdiction conferred upon it and there is no illegality of any kind thereto. In light of the same, the instant writ petition being bereft of any merit is liable to be dismissed.
54. In view of the foregoing discussions, the impugned award dated 16th November, 2005 passed in Industrial Dispute bearing ID No. 175/1999, by the learned Presiding Officer, CGIT-II, Delhi is upheld.
55. Accordingly, the instant petition stands dismissed alongwith pending application if any.
56. The order be uploaded on the website forthwith.