IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.9.2011
CORAM:
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.21625 of 2009
M.Gowrishankar .. Petitioner
Vs.
1. The Presiding Officer
Central Government Industrial Tribunal
cum Labour Court, Sasthri Bhavan
Chennai 600 008.
2. The Deputy General Manager
State Bank of India
Local Head Office
Circletop House
16, College Lane
Chennai 600 006.
3. The Assistant General Manager
State Bank of India
Mylapore Branch
Chennai 600 004. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the entire records from the first respondent, quash the award passed by the first respondent dated 15.5.2009 in I.D.No.90 of 2006 and consequently direct the 2nd and 3rd respondent bank to reinstate the petitioner with full back-wages, continuity of service and all other attendant benefits.
For Petitioner : Mr.Balan Haridas
For Respondents : Mr.G.Masilamani, Sr.Counsel
for M/s.K.S.Sundar
ORDER
Heard Mr.Balan Haridas, learned counsel for the petitioner and Mr.G.Masilamani, learned Senior Counsel leading Mr.K.S.Sundar, counsel for respondents 2 and 3.
2. The writ petitioner challenges an award passed by the first respondent/Central Government Industrial Tribunal-cum-Labour Court, Chennai (for short, "the CGIT") made in I.D.No.90 of 2006, dated 15.5.2009. By the impugned award, the Labour Court declined to grant any relief to the petitioner/workman and rejected the reference.
3. The writ petition was admitted on 23.10.2009. On notice from this Court, respondents 2 and 3 have entered appeared and are represented through counsel.
4. It is seen from the records that as against the dismissal order dated 2.12.2005, the petitioner raised an industrial dispute before the Assistant Labour Commissioner (Central). The Conciliation Officer after notice to the respondent/Bank, as he could not bring about any mediation, sent a failure report to the Government of India. The Government of India, Ministry of Labour, vide their order dated 4.12.2006, referred the issue for adjudication. The reference made to the CGIT reads as follows:
"Whether the action of the Management of State Bank of India in imposing the punishment of removal from the services of Sri M.Gowrishankar with effect from 3.4.2006 for the charges leveled against him is just and proper? If not to what relief is the applicant entitled to?"
5. After the receipt of the reference, the CGIT took up the dispute as I.D.No.90 of 2006 and issued notice to the parties. The petitioner/ workman filed a claim statement on 25.1.2007 and the second respondent/Management filed a counter statement on 5.4.2007. The petitioner filed a reply statement on 24.4.2007. Before the Labour Court, the petitioner examined himself as W.W.1 and on the side of the management, there was no oral evidence. The petitioner filed 60 documents which were marked as Exx.W1 to W60. On the side of the management, they did not file any documents.
6. The Labour Court on the basis of these materials came to the conclusion that the enquiry held against the petitioner was fair and proper. Even though the documents filed by the workman runs into more than 520 pages, unfortunately, the CGIT did not refer to any of the records, but made a generalized conclusion, namely that the findings recorded in the enquiry are valid and legal, and then took upon the task of finding as to whether the penalty imposed on the workman was disproportionate. Thereafter, the CGIT held that since the management had lost confidence in the petitioner/workman and the misconduct alleged is grave in nature, it does not call for any interference under Section 11A of the Industrial Disputes Act and in that view of the matter, the CGIT dismissed the reference.
7. But it is rather unfortunate that out of the 15 pages of the award, three pages cover the list of exhibits and 13 pages was summarizing the pleadings of the parties. It is only in three sentences the Labour Court summarized the entire issue by stating that the findings rendered against the petitioner in the enquiry are not perverse and are legal and proper.
8. The Supreme Court has clearly held that after the introduction of Section 11A of the Industrial Disputes Act with effect from 15.12.1971, the Labour Court has the power of an Appellate Court and it can also re-appreciate the evidence and come to different conclusion if the situation so warrants. The earlier judgment of the Supreme Court in Indian Iron and Steel Company Limited and another v. Workmen, AIR 1958 SC 130 was specifically held to be not holding the field in view of the introduction of Section 11A of the Industrial Disputes Act. The scope of Section 11A of the Industrial Disputes Act came to be explained by the Supreme Court in Workmen of Firestone Tyre and Rubber Co. v. Management, [1973] 1 SCC 813 : 1973 I LLJ 278. The Supreme Court in the said judgment has observed as follows:
".. The words in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Ltd. case, can no longer be invoked by an employer. The Tribunal is now 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. What was once largely in the realm of the satisfaction of the employer, has ceased to be so, and now it is the satisfaction of the Tribunal that finally decides the matter.
....
To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge.
.....
In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11-A."
9. Notwithstanding the fact that the CGIT held the enquiry was fair and proper, it is incumbent upon the CGIT to look into the evidence and come to the conclusion as to the charges levelled against the petitioner are proved or not. In the present case, eleven charges were levelled against the petitioner vide charge memo dated 21.9.2004. Subsequent to the charge memo, the workman had given his explanation. Thereafter, an elaborate enquiry was conducted. The enquiry proceedings were recorded in Tamil and it runs into 277 pages. The Enquiry report submitted by the Enquiry Officer found that charge Nos.1 to 6 and 8 and 9 were proved, charge No.7 was partly proved and charge Nos.10 and 11 were not proved. During the enquiry, the Enquiry Officer examined not only the witnesses of the management, but there were also four defence witnesses.
10. But, in the present case, it is not clear as to how the CGIT did not even refer to any of the deposition of the either side witnesses and did not even refer to documents which were marked. Therefore, it appears that the CGIT did not even look into the documents. May be the enquiry report and other final orders were not in English, but that is not an excuse for the CGIT for not looking into the evidence recorded in the enquiry, especially when the CGIT is held to be an Appellate Court having power to re-appreciate the evidence.
11. The learned Senior Counsel appearing for the respondent/Bank is unable to explain as to why the CGIT did not refer to the materials recorded in the enquiry. On this short ground, the impugned award is liable to be set aside and remitted for fresh disposal.
12. At this stage, Mr.Balan Haridas, learned counsel for the petitioner submitted that the Presiding Officer of the CGIT was not familiar with Tamil and his mother tongue was Malayalam and even during the proceedings the substance of the evidence was stated before him but the translated copies of the enquiry proceedings were not available before him. Mr.K.S.Sundar, learned counsel for the respondent/Bank is unable to controvert the said submission. Therefore, this single fact is enough to set aside the impugned award. When the Tribunals are constituted with specific statutory power to go into the evidence on record, the Tribunal should have called for translated copies of the documents before satisfying itself with reference to the legality of the evidence. In the light of the above, this Court has no hesitation to set aside the impugned award.
13. Mr.Balan Haridas, learned counsel appearing for the petitioner submitted that instead of remitting the matter for another round of litigation, this Court can itself go into the evidence and render a finding. For this purpose, the learned counsel relied upon a judgment of the Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha, 1980 I LLJ 137. Reliance was placed upon the following passage found in paragraphs [79] and [80], which are as follows:
"79. Dual jurisdictional issues arise here which have been argued at some length before us. The position taken up by Sri Sen was that the High Court could not, under Article 226, direct reinstatement, and even if it felt that the arbitrator had gone wrong in refusing reinstatement, the court could only demolish the order and direct the arbitrator to reconsider the issue. What belonged, as a discretionary power, to a tribunal or other adjudicatory body, could not be wrested by the writ court. To put it pithily, regarding the relief of reinstatement, the arbitrator could but would not and the High Court would but could not. (We will deal later with the point that the arbitrator had himself no power under Section 11-A of the Act but did have it in view of the vide terms of reference.)
80. The basis of this submission, as we conceive it, is the traditional limitations woven around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Article 226 has been inspired by the royal writs its sweep and scope exceed hide-bound British processes of yore. We are what we are because our Constitution-framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring nor custom constrict where the language used is wisely wide. The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power."
14. But, in the present case, this Court is not inclined to accept the said submission because the CGIT never recorded any finding on the specific misconduct alleged against the workman. In case the CGIT has discharged its duty to some extent, the question of reconsidering or looking into other evidence omitted by the CGIT is possible, but for the first time to plead the entire issue on merits and going into the satisfaction of the materials would amount to this Court usurping the powers of the CGIT and hence, this Court is not inclined to accept the stand of the counsel for the workman.
15. In view of the above, having left with no other option, the impugned award stands set aside and the matter is remitted to the first respondent/CGIT for fresh consideration. Mr.Balan Hardias, learned counsel for the petitioner stated that the petitioner being a Class IV employee, the management may be directed to supply the translated copies of the evidence as it is their primary duty to submit the enquiry report. Though Mr.G.Masilamani, learned Senior Counsel tried to contend that the Tribunal itself can call for translation from official translator, that will only further delay the disposal of the dispute. Since the management is a bank having sufficient means and it is also their duty to specify the nature of evidence recorded by them, it is incumbent upon them to supply the translated copies and such exercise should be done within two months from the date of receipt of a copy of this order and once the records are ready, the Tribunal after due notice to both sides, shall complete the hearing and dispose of the matter within three months thereafter and in any event, complete the entire process within six months from today and submit its final award for publication in the Gazette of India.
The writ petition is allowed to the extent indicated above. However, the parties are allowed to bear their own costs.
sasi
To:
The Presiding Officer
Central Government Industrial Tribunal
cum Labour Court, Sasthri Bhavan
Chennai 600 008
