1. Rule returnable forthwith. Heard finally with the consent of the learned Counsel for the respective parties.
2. By this petition, the petitioner has that the impugned Award dt.14.2.2014 be quashed and set aside whereby the action of the management of the State Bank of India through its Assistant General Manager, Region VI (Disciplinary Authority) and Deputy General Manager (Appellate Authority) in terminating the services of the workman namely Shri P.C.Mahadole w.e.f. 15.9.2005 was held as illegal and unjustified. The punishment of dismissal from service without notice imposed against the workman was quashed and set aside by the impugned order and the workman was held entitled for reinstatement in service with continuity and also to 25 % backwages from the date of his dismissal from service till the date of his actual reinstatement in service and with all other consequential service benefits. The petitioners were directed to implement the Award within one month from the date of notification of Award in the Official Gazette. The said Award passed by the Presiding Officer, CGIT cum Labour Court, Nagpur is under challenge on the ground that it does not stand scrutiny of law.
3. The facts, briefly stated, are as under:
That the petitioner had served notice upon the workman Mr.P.L.Mahadole alongwith a charge sheet dt.6.12.2002 on the ground that he remained unauthorisedly absent for 1104 days and after conducting enquiry, mild punishment of bringing down his pay by two stages was imposed by order dt.19.8.2004. The workman concerned remained absent again without intimation from 28.9.2004 and another charge sheet was issued on 8.11.2004 against him for remaining absent for more than 30 days and disciplinary inquiry was conducted during the period between 6.12.2004 to 2.2.2005. The Inquiry Officer who concluded the inquiry pursuant to show cause notice dt.30.6.2005 submitted report to the Disciplinary Authority. The Disciplinary Authority agreed with the Inquiry Officer's report regarding proof of charges and passed final order dt.15.9.2005. The Appellate Authority who heard the workman passed the order dt.28.2.2006. Then the matter was referred to the Central Government of Industrial Tribunal with the Statement of Claim filed by the Union, to which Written Statement was filed by the Bank. The said Tribunal passed order dt.21.11.2013 holding that the departmental inquiry held against the workman was legal, proper and in accordance with the principles of natural justice. While when reference was made, respondent no.1/Central Government Industrial Tribunal-cum-Labour Court, Nagpur passed the impugned Award holding that removal of workman was not legal and justified and the workman was directed to be reinstated in service with continuity of service and backwages of 25 %.
4. The contention on behalf of the petitioner is that, before publication of the impugned Award, the petitioner had moved for recalling of Award, but without hearing the petitioner, the Tribunal refused to accept the application of the petitioner so as to pass further order on the ground that the Award was already passed and no such application was maintainable. The contention that the impugned order was not passed offering opportunity of hearing is opposed on behalf of respondent no.2.
5. I have heard the submissions on behalf of the petitioner. It is contended with reference to the ruling in the case of Bharat Forge Company Ltd. vs. A.B.Zodge and Another reported in AIR 1996 SC 1556 that the domestic inquiry may be vitiated either for noncompliance of rules of natural justice or for perversity. The disciplinary action taken on the basis of vitiated inquiry proceedings does not stand on better footing than the disciplinary action without any inquiry.
6. My attention is invited to the ruling in the case of General Secretary, General Kamgar Union vs. Noble Paint and Varnish Co. Pvt. Ltd. and Another reported in 2010 (6) Mh.L.J. 309 to argue that it is necessary for the Tribunal concerned to decide first validity of inquiry and perversity in the findings of Inquiry Officer before arriving at any decision regarding punishment with reference to Section 11A of the Industrial Disputes Act. Thus, it is contended on behalf of the petitioner that the impugned order was passed as a result of total non-application of mind and is arbitrary, irrational, unreasonable and contrary to law and perverse. The impugned order is criticised on the ground that respondent no.1/Tribunal has committed error in considering the view of the Inquiry Committee regarding the purported leave application dt.6.10.2004.
7. It is found that the annexures to the copies of the documents relied upon indicate that the workman concerned was served with show cause notice dt.30.6.2005 on the ground that he remained unauthorisedly absent from duty during the period between 28.9.2004 to 29.11.2004 without any approval from the competent Authority. Thus, the Disciplinary Authority proposed to inflict punishment of removal. The workman was served with the notice of proposed termination on the ground of his unauthorized absence. He faced inquiry and he alleged that he was present on duty on 28th, 29th and 30th of September, 2004. According to the workman, despite making application dt.6.10.2004, it was not accepted as also the medical certificate regarding sickness of the applicant was also not accepted. The workman prayed for sympathy and reinstatement on the ground of he performed his service honestly in the past. The Assistant General Manager/Disciplinary Authority by order dt.15.9.2005 found that the respondent/workman concerned remained absent for 77 days from 8.11.2004 holding that the workman did not deserve leniency and he was directed to undergo punishment.
8. On behalf of the petitioner, it is submitted that the workman used to remain absent habitually and was absent for 1104 days and did not improve his behaviour, and therefore, the workman does not deserve leniency for a long absence. The term of reference before the Central Government Industrial Tribunal-cum-Labour Court, Nagpur was as follows :
âWhether the action of the management of the State Bank of India through its Assistant General Manager, Region VI (Disciplinary Authority), Nagpur and Deputy General Manager (Appellate Authority), Nagpur in terminating the services of workman Mr.P.N.Mahadole w.e.f. 15.9.2005 is legal and justified To what relief is the workman is entitled to?â
9. The workman Mr.P.L.Mahadole was represented by registered Trade Union of employees (respondent no.2). The departmental enquiry was conducted by Inquiry Officer Mr.S.Y.Ingole, Inquiry Officer during the period between 16.12.2004 to 2.2.2005. The workman Mr.Prakash Laxmanrao Mahadole had filed an affidavit in lieu of examination in chief and contended that the inquiry was conducted in English language and no reasonable opportunity to understand complications of the proceedings was granted to the workman and the documents produced were not proved as also the Inquiry Officer did not give opportunity of hearing.
10. It appears that Mr.Prakash Mahadole was cross-examined at length regarding his alleged unauthorized absence. It appears that during the inquiry no oral evidence was adduced by party no.1 i.e. the petitioner. The Central Government Industrial Tribunal, Nagpur concluded that the departmental inquiry held against the workman was legal, proper and in accordance with the principles of natural justice and the misconduct of the workman in remaining unauthorisedly absent for 1104 days was duly proved and the punishment was duly accepted by the workman as imposed by the Award before the CGIT-cum-Labour Court, Nagpur which resulted in passing of impugned order dt.14.2.2014. Plea as to continued unauthorised absence was considered along with the plea for termination of the workman from service. However, in the impugned order, it was observed that, under the shadow of previous disciplinary action against the workman, the charge sheet presented was not proper and valid and the entire inquiry conducted was, therefore, not proper. The inquiry against the workman against whom serious misconduct is alleged needs to be heard when it is pleaded by the workman that departmental inquiry was not in accordance with the principles of natural justice. The jurisdiction of Industrial Tribunal in such cases is limited to see that whether the impugned order was passed mala fide with improper motive or as a result of desire to victimise workman or whether it is arising out of unfair labour practice or whether no witness was examined on behalf of the management in the departmental inquiry in support of the allegations made. Under these circumstances, it was concluded that the action of the management of the State Bank of India, through its Assistant General Manager, Region VI and the action of the Deputy General Manager (Appellate Authority), Nagpur in terminating the services of workman w.e.f. 15.9.2005 was illegal and unjustified. Therefore, the workman was held entitled for reinstatement in service with continuity and 25 % of backwages from the date of his dismissal from service till the date of his actual reinstatement. According to the petitioner, opportunity to prove misconduct of the workman was not allowed. Therefore, departmental inquiry was vitiated as the findings by Inquiry Officer were not based upon evidence. It is argued that the employer has right to prove misconduct of the charge sheeted employee by adducing evidence during the inquiry proceedings. Admittedly, no oral evidence whatsoever was led on behalf of the petitioner and according to the petitioner, no opportunity was given to the petitioner to prove misconduct of the workman and the petitioner was deprived of opportunity to lead valuable evidence.
11. In the case of Bharat Forge Company Ltd., the Hon'ble Supreme Court has observed in para 7 as under:
âA domestic enquiry may be vitiated either for noncompliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well recognized. In this connection, reference may be made to the decisions of this Court in Workmen of Motipur Sugar Factory (P) Ltd. v. Motipur Sugar Factory (P) Ltd., (1965) 2 Lab L.J 162 : (AIR 1965 SC 1803), State Bank of India vs. R.K. Jain (1971) 2 Lab LJ 599 : (AIR 1972 SC 136), Delhi Cloth and General Mills Co. Ltd. vs. Ludh Budh Singh (1972) 1 Lab LJ 180 : (AIR 1972 SC 1031) and Firestone Tyre Co's case (AIR 1973 SC 1227) (supra). The stage at which the employer should ask for permission to adduce additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Mill's case (supra). In Shankar Chakrabarty's case (AIR 1979 SC 1652) (supra), the contention that in every case of disciplinary action coming before the tribunal, the Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling him to adduce further evidence to sustain the charges, if the employer chooses to do so. By relying on the decision of this Court in the case of Cooper Engineering Ltd. (1975) 2 Lab LJ 379 : (AIR 1975 SC 1900), has not been accepted. The view expressed in Delhi Cloth Mill's case (supra) that before the proceedings are closed, an opportunity to adduce evidence would be given if a suitable request for such opportunity is made by the employer to the Tribunal, has been reiterated in Sankar Chakrabarty's case after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Cooper Engineering Ltd. has not overruled the decision of this Court in Delhi's Cloth Mill's case. There is no dispute in the present case that before the closure of the proceedings before the Tribunal, prayer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified. â
12. Thus, denial of opportunity to the employer to lead evidence is nonobservance tantamount to nonobservance to the principles of natural justice.
13. Reference is made to the ruling in the case of Neeta Kapish vs. Presiding Officer, Labour Court and Anotherreported in AIR 1999 SC 698 to argue that the Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show fresh evidence that the termination or dismissal order was proper. Permission for bringing fresh evidence on the ground that there was denial of opportunity for the employer to lead evidence may be granted in the larger interest of justice to ensure that departmental inquiry is fair, just and proper upon examination of evidence on record led by the rival parties.
14. In the ruling in the case of The Cooper Engineering Ltd. vs. P.P.Mundhereported in AIR 1975 SC 1900, it was concluded that the Labour Court should first decide as to whether domestic inquiry has violated the principles of natural justice. The Management need to decide whether it will adduce evidence before the Labour Court. The Management is entitled to request the Tribunal to deal with the issue of validity of domestic inquiry as preliminary issue and ask for opportunity to adduce evidence before the Tribunal if the finding of preliminary issue is against the Management. It is open for the Tribunal to deal with the request made to the Tribunal and to hear as preliminary issue as to whether domestic inquiry varies if the finding is in favour of the Management. No additional evidence needs to be cited by the Management, but if finding on preliminary issue is against the Management, the Tribunal will give employer an opportunity to furnish additional evidence and also give similar opportunity to the employee to lead
evidence.
15. Admittedly, since in the present case, no oral evidence was led by the party no.1 i.e. the petitioner, the procedure as contemplated in the Labour Court suffers from breach of principles of natural justice. That being so, it would be necessary for the Tribunal or the Labour Court below that it should pass the order to first deal with the preliminary issue as to whether the inquiry was conducted in compliance with the principles of natural justice. If the findings of preliminary issue is in favour of the Management/employer then the Tribunal below shall give opportunity to employer to prove the misconduct of the workman before the Tribunal.
16. That being so, in view of the rulings referred to above, in my opinion, it is necessary that an opportunity be given to the petitioner to agitate preliminary issue as contemplated above and if so necessary, adduce evidence to prove misconduct of the workman. After offering such opportunity to the petitioner, the Tribunal shall decide the question of validity of the departmental inquiry on the basis of evidence adduced by the rival parties with reference to the issues framed for this purpose. In the circumstances, the impugned Award is set aside. The parties shall appear before the Tribunal on 10.11.2014 and the Tribunal shall complete the inquiry and pass the Award within a period of six months.