Ramesh Ranganathan, J.
1. Are Labour Courts/Tribunals empowered to declare disciplinary action taken against a workman ab initio void and, without examining the matter further, set aside the punishment imposed on such a workman by his employer, solely on the ground that a copy of the enquiry report had not been furnished and an opportunity to submit his objections thereto has been denied to the delinquent workman? This is the question which falls for consideration in this writ petition.
2. The facts, to the extent necessary, are that the Government of India, vide proceedings dated 10-7-1991, referred the following dispute between the management of State Bank of India (hereinafter referred to as the 'employer') and their workmen to the Industrial Tribunal, (hereinafter referred to as the Tribunal'), for adjudication:
Whether the action of the management of State Bank of India, Regional Office, Visakhapatnam in imposing the punishment of stoppage of two increments by way of cancellation with cumulative effect on Sri Barnala Sankara Rao, Messenger, in the Srikakulam Branch, vide their order No. (3-0)/DPC/ VSP/RII/139 dated 14-11-1985 was justified? If not, to what relief the said workman is entitled to?
3. Sri Barnala Sankara Rao (hereinafter referred to as the 'workman') was appointed in the State Bank of India, Amadalavalasa Branch, as a Messenger on 1-5-1967. He was transferred on 31-7-1971 to Parvatipuram Branch. By order dated 21-9-1972 the workman was placed under suspension on the allegation that, on 7-9-1971, he had surreptitiously removed one section containing one hundred currency notes of rupees ten. A charge sheet was issued on 19-12-1973 to which the workman submitted his reply denying the charges. The disciplinary authority ordered enquiry and appointed an enquiry officer. Questioning the said action, the workman filed a suit in O.S. No. 33/74 before the Subordinate Judge, Parvatipuram which was dismissed on 31-7-1979. Against the said order, the workman filed A.S. No. 51/79 before the Sub-Judge, Parvathipuram, which was also dismissed on 6-4-1985. Thereafter the domestic enquiry commenced and was held on 15th June, 26th June and 3rd July, 1985. In the domestic enquiry, on behalf of the management, four documents were marked as exhibits and five witnesses were examined. The workman was allowed to be represented by a co-employee as his defence representative. The workman examined himself as a defence witness. The enquiry officer, vide proceedings dated 9-8-1985, held that the charges levelled against the workman had not been proved beyond reasonable doubt. The disciplinary authority, vide proceedings dated 30-9-1985, differed with the conclusion of the enquiry officer and held that the workman was guilty of the charges levelled against him. Since the misconduct was serious and it had been proved that the workman was a person of questionable/doubtful integrity and such a person had no place in financial organizations like banks, the disciplinary authority, vide proceedings dated 30-9-1985, tentatively proposed imposition of punishment of dismissal from service. The workman, while being informed that he was entitled to a personal hearing on the proposed punishment and that he could appear before the disciplinary authority within two weeks, was asked to show cause as to why appropriate punishment should not be imposed for the misconduct. During the course of personal hearing the workman submitted a written statement, on 25-10-1985, which was taken into consideration. While holding that the workman was guilty of the charge levelled against him, that the act of misconduct committed by him was prejudicial to the interests of the Bank, that the workman whose integrity was doubtful had no place in a financial organization like a bank and that he deserved punishment of dismissal from bank service, taking into account his long service in the Bank and to afford him an opportunity to reform himself to give better service in future, the disciplinary authority vide proceedings dated 14-8-1985 took a lenient view of his misconduct and decided to reduce the punishment to stoppage of two increments with cumulative effect. The disciplinary authority also held that there was no case to treat any part of the period spent by the workman under suspension as on duty and that he would not be eligible for receipt of any salary and allowance for that period apart from what had already been paid to him by way of subsistence allowance.
4. Against the order of the disciplinary authority, the workman preferred an appeal on 15-4-1986. The appellate authority, vide proceedings dated 18-8-1986, agreed with the findings, did not find any justification to interfere with the decision and dismissed the appeal confirming the punishment imposed by the disciplinary authority.
5. As referred to above, pursuant to the dispute raised by the State Bank Employees Union, the afore-extracted reference was made to the Tribunal for adjudication. The Tribunal first took up for consideration the question as to whether the domestic enquiry conducted by the management against the workman was in accordance with principles of natural justice. The Tribunal held that it was not a case that the enquiry officer did not permit the workman to examine witnesses, that the workman had received the notice fixing the date of enquiry and also the place where the domestic enquiry was going to be held, most of the copies of documents that were taken into consideration against the workman were supplied, that the workman did not choose to seek copies of other documents, that the workman having received the documents had participated in the enquiry and had cross-examined witnesses and that the workman, in the written statement, had not seriously challenged the validity of the domestic enquiry nor had placed any oral or documentary evidence before the Tribunal to establish that the domestic enquiry was not in accordance with principles of natural justice. On being satisfied that the enquiry officer had conducted the domestic enquiry, against the workman, in accordance with principles of natural justice and it did not see any valid reason to give a finding against the domestic enquiry, the Tribunal, by order in I.D. No. 27 of 1991 dated 18-5-1994, held that the domestic enquiry conducted by the employer was valid.
6. After the domestic enquiry was held to be valid the Tribunal, while examining the justification of the punishment imposed on the workman, held that it was mandatory to enclose along with the show cause notice, the findings of the enquiry officer and the proceedings of the disciplinary authority thereon and failure to do so resulted in the workman being denied the opportunity of knowing the actual findings of the enquiry officer or the reasoning behind the non-acceptance of the enquiry officer's findings by the disciplinary authority and therefore, the workman was denied reasonable opportunity in violation of principles of natural justice.
7. The Tribunal relied on the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakar : (1994)ILLJ162SC and passed the award on 7-6-1994, holding that the disciplinary action against the workman was mala fide, illegal and void ab initio and that the workman was entitled to status quo ante as before the enquiry and for all consequential and incidental benefits including full wages for the period of his suspension. The Tribunal further held that on consideration of the facts and circumstances of the case, punishment of stoppage of two increments with cumulative effect was unsustainable and unjustifiable and that the workman was entitled to have his increments restored. Aggrieved by the award passed by the Tribunal in I.D. No. 27 of 1991 dated 7-6-1994, the Management-State Bank of India, represented by its Regional Manager, Visakhapatnam, has filed the present writ petition.
CONSEQUENCES OF NOT FURNISHING A COPY OF THE ENQUIRY REPORT PRIOR TO IMPOSITION OF PUNISHMENT- LAW LAID DOWN IN ECU'S (1 supra)
8. Since the only ground on which the Tribunal passed the award, setting aside the order of punishment, was that the workman had not been furnished a copy of the enquiry report, in accordance with the law laid down by the Supreme Court in ECII's : (1994)ILLJ162SC it is necessary to refer to the judgment of the Supreme Court in Managing Director, ECIL v. Karunakar : (1994)ILLJ162SC . The Hon'ble Supreme Court, after referring to several earlier judgments, held that when the enquiry officer was not the disciplinary authority, the delinquent had the right to receive a copy of the enquiry report before the disciplinary authority arrived at its conclusions on the guilt or innocence of the employee with regard to the charges levelled against him, that this right was a part of the employee's right to defend himself against the charges levelled against him, that denial of the enquiry officer's report before the disciplinary authority took its decision on the charges was a denial of reasonable opportunity to the employee to prove his innocence and was in breach of principles of natural justice, that it would not be proper to consider the employee's failure to ask for the report as a waiver of the right, whether the employee asked for the report or not the enquiry report had to be furnished to him and that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report was an integral part of the opportunity of defence against the charges and it was in breach of principles of natural justice to deny the said right.
9. The Hon'ble Supreme Court held that this principle would apply to employees in establishments, whether Government or non government, public or private and this would be the case whether there were rules governing disciplinary proceedings or not and whether they expressly prohibited furnishing of a copy of the report or were silent on the subject. It was further held that whatever be the nature of punishment, whenever the rules required an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him.
10. The Hon'ble Supreme Court, then examined the question as to what would be the effect, on the order of punishment, when the report of the enquiry officer was not furnished to the employee and held thus:
The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the enquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an 'unnatural expansion of natural justice' which in itself is antithetical to justice.
Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/ Tribunal should not interfere with the order of the punishment. The Court/ Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/ Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/ management to proceed with the inquiry by placing the employee under suspension and continuing the inquiry from the stage of furnishing with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for purpose of holding the fresh inquiry from the stage of furnishing the report no more, where such fresh inquiry is held. That will also be the correct position in law.
11. In several judgments after ECIL's case, the Supreme Court has held that where the employee is not in a position to show as to how prejudice was caused to him on account of non-supply of the Inquiry report, the punishment imposed does not call for interference (S.K. Singh v. Central Bank of India 1997 (1) LLJ 537 (SC), Oriental Insurance Co., Ltd. v. S. Balakrishnan : (2001)IILLJ444SC ; NTC (WBAB & O) Ltd. v. Anjan. K. Saha : (2004)IIILLJ757SC .
12. It is only if prejudice is caused to an employee, on failure to furnish him a copy of the Enquiry report, that Courts/Tribunals would set aside the order of punishment, and not otherwise.
EXERCISE OF POWER OF JUDICIAL REVIEW UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA VIS-A-VIS POWER OF LABOUR COURTS/ TRIBUNALS UNDER THE INDUSTRIAL DISPUTES ACT:
13. The scope and extent of power conferred, on Industrial Tribunals/Labour Courts, under the Industrial Disputes Act, to interfere and set aside orders of punishment, in the context of the disciplinary authority's failure to furnish a copy of the enquiry report to the workman prior to imposition of punishment, did not fall for consideration in ECIL's case.
14. It is therefore necessary to examine the powers conferred on Industrial Tribunals/ Labour Courts under the provisions of the Industrial Disputes Act vis-a-vis exercise of power of judicial review by the High Court under Article 226 of the Constitution of India.
15. The jurisdiction of the High Court to issue a writ of Certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate court. Finding of fact recorded by domestic Tribunals, as a result of appreciation of evidence, cannot be reopened or challenged on the ground of insufficiency or inadequacy of evidence. The adequacy or insufficiency of evidence led on a point and the inference of fact to be drawn therefrom is within the exclusive jurisdiction of domestic tribunals. Finding of fact, recorded by a domestic tribunal, can only be interfered with if it is shown that, in recording the said finding, the enquiry officer had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the said finding. Similarly if a finding of fact is based on no evidence or is perverse it would be regarded as an error of law which could be corrected by a writ of Certiorari (Syed Yakoob v. K.S. Radhakrishnan : [1964]5SCR64 ). It is well settled that the High Court, in exercise of its powers of judicial review, is mainly concerned with the decision making process and not the decision itself. Judicial review essentially deals with the manner in which the decision is made and not review of the decision on merits as a court of appeal. Judicial review is not against the decision as such, but against the decision making process (APSRTC, PALASA Depot, Srikakulam v. Mudidina Krishnamoorth 2003 (1) LLJ 614 (APHC DB)). While examining the decision making process, High Courts are mainly concerned as to whether or not the decision taken is contrary to statutory provisions or in violation of principles of natural justice. Even in cases where the decision is found to be in violation of principles of justice, the said decision is set aside leaving it open to the authority concerned to comply with principles of natural justice and thereafter take a decision afresh. In Canara Bank v. Debasis Das : (2003)IILLJ531SC it was held:
Whenever the order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left open. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.
16. While there are no prescribed limits on the power of judicial review, self-imposed restraints govern the manner of its exercise under Article 226 of the Constitution of India. The power conferred on industrial tribunals/ labour courts, under the Industrial Disputes Act, is far wider than the power exercised by the High Court in its Certiorari jurisdiction, more so, after introduction of Section 11-A of the Industrial Disputes Act. Pursuant to the amendment made to the Industrial Disputes Act, by incorporation of Section 11-A, Labour Courts/Tribunals are now clothed with the power and jurisdiction to re-appreciate the material available on record and substitute its own findings for that of the disciplinary authority. The power exercised by the Labour Court is akin to that of an appellate authority and even in cases where the domestic enquiry is held in accordance with principles of natural justice, Labour Courts /Tribunals are now entitled to interfere with the findings arrived in the domestic enquiry, substitute its own findings on the very same evidence, reach conclusions different from that of the disciplinary authority and even hold that the charge of misconduct is not established. Even in cases where Labour Courts/Tribunals find that the evidence and material available on record justifies the finding of misconduct arrived at by the disciplinary authority, it is still entitled to hold that the order of punishment imposed is not justified under the circumstances and impose a lesser punishment (Divisional Manager, APSRTC v. E. Raja Reddy : 1999(5)ALD735 ).
DISCIPLINARY ACTION AGAINST A WORKMAN - SCOPE OF INTERFERENCE BY LABOUR COURTS/TRIBUNALS PRIOR TO AND AFTER INCORPORATION OF SECTION 11-A:
17. In ECIL's case (1 supra), the Hon'ble Supreme Court has held that failure to furnish a copy of the enquiry report to the employee is in breach of principles of natural justice and this requirement has now been made applicable even to private employers and even in cases where no such provision has been made in the standing orders. Industrial employers are now required to supply a copy of the report of the enquiry officer to the delinquent workman and give him an opportunity to submit a representation against the findings of the enquiry officer before imposition of punishment. Failure to do so would be in violation of principles of natural justice. If Industrial Tribunals were held to be justified in setting aside the order of punishment solely on the ground of failure to furnish a copy of the enquiry report, it would result in the matter being relegated to the employer, continuation of proceedings from that stage, imposition of punishment afresh by the Employer and another dispute being raised by the workman, thereby defeating the very object of the Industrial Disputes Act which is to provide for expeditious disposal of industrial disputes. As held by the Supreme Court, in a slightly different context, in The Cooper Engineering Ltd. v. P.P. Mundhe : (1975)IILLJ379SC ,
Besides, even if the order of dismissal is set aside on the ground of defect of enquiry, a second enquiry after reinstatement is not ruled out nor in all probability a second reference. Where will this lead to? This is neither going to achieve the paramount object of the Act, namely, industrial peace, since the award in that case will not lead to a settlement of the dispute. The dispute, being eclipsed, protempore, as a result of such an award, will be revived and industrial peace will again be ruptured. Again another object of expeditious disposal of an industrial dispute (see Section 15) will be clearly defeated resulting in duplication of proceedings. This position has to be avoided in the interest of labour as well as of the employer and in furtherance of the ultimate aim of the Act to foster industrial peace.
18. In view of the wide powers conferred on the Industrial Tribunal to re-appreciate the evidence on record, substitute its findings for that of the employer, and to determine the appropriate punishment to be imposed even in cases where it comes to the conclusion that the misconduct alleged against the workman is held proved, Labour Courts/ Tribunals, without examining the matter further, would not be justified in setting aside the order of punishment solely on the ground that a copy of the enquiry report has not been furnished prior to imposition of punishment.
19. It is in the light of the provisions of the Industrial Disputes Act and the law laid down by the Supreme Court and High Courts, that the consequence of failure to supply a copy of the enquiry report to the delinquent employee, prior to imposition of punishment by the employer, is required to be examined.
20. The Industrial Disputes Act does not prescribe any procedure either for conducting domestic enquiries or for investigating the misconduct of employees. As laid down in Woodbriar and Sussex Estates v. Their Workers 1960(2) LLJ 673:
In the absence of any statutory provisions relating to the procedure in a domestic enquiry, the only obligation of a person conducting the enquiry is that he will have to act according to the rules of natural justice. The essentials of the rule of natural justice applicable to such cases have been laid down in local Government Board v. Alridge 1915 A.C. 12 at p. 138, Lord Shaw observed:If a statute prescribes the means, it must employ them. If it is left without express guidance, it must still act honestly and by honest means. In regard to these, certain ways and methods of judicial procedure may be very likely to be imitated; and lawyer-like methods may find special favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded.
Lord Parmour at p. 140 observed:
Where, however, the question of the propriety of procedure is raised to a hearing before some tribunal other than a court of law, there is no obligation to adopt the regular forms of legal procedure. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice.
These observations, which were made in regard to a statutory tribunal, would equally apply to the case of a domestic tribunal, where an employer conducts an enquiry in respect of a charge against his employee'.
21. The enquiry conducted by the employer before a domestic tribunal must be just, fair and in bringing home to the workman the charges framed against him, principles of natural justice must be observed.
22. Prior to introduction of Section 11-A of the Industrial Disputes Act, Industrial Tribunals/Labour Courts were not empowered to sit in appeal over the finding recorded in the domestic enquiry. If a proper enquiry was held it was open to the enquiry officer, holding the domestic enquiry, to deal with the matter on merits bona fide and come to his own conclusion. The jurisdiction of the Tribunal, in cases where the domestic enquiry was properly held, was limited to deal with the merits of the punishment imposed. Its interference was limited only to cases when it came to the conclusion either that the domestic enquiry was not validly or properly held or that the finding given by the enquiry officer was vitiated either by reason of their being in breach of principles of natural justice or perverse or contrary to the evidence. (The Management of Ritz Theatre (P) Ltd. v. Its Workmen : (1962)IILLJ498bSC ) and (Tata Engineering and Locomotive Company Ltd. v. Prasad(S.C.) 1969 (2) LLJ 799 (SC)).
23. In Indian Iron and Steel Co. Ltd. v. Their Workmen AIR 1958 SC 130 it was held:-.Undoubtedly, the management of a concern has power to direct its own internal administration and discipline, but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however act as a court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is a want of good faith (ii) when there is victimization or unfair labour practice (iii) when the management has been guilty of a basic error or violation of principles of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse....
24. Even in cases where no domestic enquiry is held or where the domestic enquiry is conducted in violation of principles of natural justice, Industrial Tribunal/Labour Courts are not justified in setting aside the order of punishment and are required to examine the matter further. This position remains unchanged both prior to and after incorporation of Section 11-A. The power of the Industrial tribunal in this regard, prior to incorporation of Section 11-A, has been summarized in Delhi Cloth and General Mills Co. v. Ludh Budh Singh : (1972)ILLJ180SC wherein it was held thus:
(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not reply on it.
(2) If a domestic enquiry had been held, it is open to the management to reply upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn, without anything more, that the management has given up the enquiry conducted by it.
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduce evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decided that the domestic enquiry has not been held properly it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it.
25. Section 11-A, which was incorporated by Section 3 of the Industrial Disputes (Amendment) Act, 1971 and came into force from 15-12-1971, reads thus:-
11-A: Power 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, 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 proceedings 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.
26. Since Section 11-A relates only to cases of discharge or dismissal of workmen, in cases where a penalty other than discharge or dismissal is imposed i.e. except in cases where the services of an employee is terminated, the provisions of Section 11-A are not applicable and the law as it stood prior to Section 11-A would alone be required to be followed. (Rajastan State Road Transport Corporation v. Judge, Industrial Tribunal, Bikaner 1995(1) LLJ 357).
27. Prior to introduction of Section 11-A, once the domestic enquiry conducted by an employer was held to be valid, the Tribunal had no power to interfere with the findings recorded in the domestic enquiry except under certain limited circumstances as laid down in Indian Iron and Steel Co. case (13 supra) and the conclusions arrived at by the disciplinary authority regarding the misconduct having been proved and the punishment to be imposed thereupon were all considered to be managerial functions which the Tribunal had no power to interfere with, unless the findings were perverse or the punishment was so harsh as to lead to inference of victimization or unfair labour practice.
28. The position underwent a drastic change subsequent to incorporation of Section 11-A. Pursuant thereto, even incases where the employer has held a proper and valid domestic enquiry, the Tribunal is now at liberty to consider not only whether the findings on misconduct recorded by an employer are correct, but also to differ from the said findings, 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 (The Workmen of Firestone Tyre and Rubber Co. of India P. Ltd. v. The Management : (1973)ILLJ278SC ).
29. Both prior to and after incorporation of Section 11-A in cases where no enquiry has been held by the employer, or the enquiry conducted is held invalid, it was open to the employer, and remains so even now, to adduce evidence for the first time before the Tribunal justifying the order of punishment. On such evidence being adduced by the employer an opportunity is given to the workman to lead evidence contra.
30. When a dispute relating to imposition of punishment on a workman is referred for Industrial adjudication, Tribunals/Labour Courts should first decide as a preliminary issue whether the domestic enquiry has violated principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there is no difficulty. But when the matter is in controversy before the parties, the question must be decided as a preliminary issue (The Cooper Engineering Ltd. v. P.P. Mundhe (9 supra)). If the enquiry is found valid and held in favour of the management, then the employer may not request for additional evidence being cited, If, however, the finding on this issue is against the management, the Tribunal is required to give the employer an opportunity to cite additional evidence justifying its action. This right in the management to sustain its order by adducing independent evidence before the Tribunal, if no enquiry has been held or if the enquiry as held is found to be defective, has received judicial recognition. Judgments of the Supreme Court, after incorporation of Section 11-A, both in respect of cases where the domestic enquiry has been held as also in cases where the Tribunals considered the matter on the evidence adduced before it for the first time, have held that the satisfaction under Section 11-A regarding the guilt or otherwise of the workman concerned is that of the Tribunal which has to consider the evidence and come to the conclusion one way or other. Even in cases where a valid enquiry has been held, and finding of misconduct arrived at, by the employer, the Tribunal is entitled to differ from that finding and hold that no misconduct is proved. While prior to introduction of Section 11-A, the power of the Tribunal to appreciate evidence, was limited to cases where either the domestic enquiry was held to be invalid or no domestic enquiry was held at all and the employer had adduced evidence afresh before the Tribunal, pursuant to Section 11-A, the Tribunal has now been clothed with the power to re-appreciate evidence even in cases where it upholds the validity of the domestic enquiry. (Firestone Tyre and Rubber Co. of India Ltd.- (16 supra)).
31. Even in cases where no enquiry has been held or where the domestic enquiry held is found to be defective one, on the basis of evidence brought on record by reason of it being adduced afresh before the Tribunal, the employer makes out a case justifying the order of punishment, the order passed by the Tribunal relates back to the date of passing the original order of punishment. (P.H. Kalyani v. Air France, Calcutta : (1963)ILLJ679SC ; R. Thiruvirkolam v. Presiding Officer : (1997)ILLJ400SC and Engineering Laghu Udyog Employees Union v. Labour Court : (2004)ILLJ1105SC .
32. Cases where punishment is imposed even without an enquiry being conducted cannot be placed on a better footing than cases where the domestic enquiry conducted is otherwise valid but a copy of the enquiry report has not been furnished to the delinquent employee, prior to imposition of punishment. Since Tribunals, without examining the matter further, are not entitled to set aside the punishment in the former, they cannot do so in the latter cases also.
OPPORTUNITY TO SHOW PREJUDICE CAUSED DUE TO NON-SUPPLY OF ENQUIRY REPORT - STAGE AT WHICH SUCH OPPORTUNITY IS TO BE PROVIDED:
33. While the impugned award setting aside the punishment imposed solely on the ground of failure to comply with the requirement of furnishing a copy of the enquiry report, is liable to be set aside and the matter is required to be remanded to the Tribunal, the further question which arises for consideration is as to what the Tribunal is required to do in cases where the enquiry report has not been furnished prior to imposition of punishment.
34. As held by the Supreme Court in ECII's case (1 supra), in all cases where the enquiry report is not furnished to the delinquent employee, prior to imposition of punishment, courts and tribunals are required to cause a copy of the enquiry report to be furnished to the delinquent, if he has not already acquired it before coming to the Tribunal and give the employee an opportunity to show how his/her case was prejudiced because of non-supply of the report. If after hearing the parties, the Tribunal comes to the conclusion that non-supply of the enquiry report would make no difference to the ultimate findings and the punishment given, the Tribunal should not act mechanically merely on the ground that the report was not furnished. It is only in cases where the Tribunal finds that furnishing of the enquiry report would have a different result, that interference is called for.
35. The question which would therefore arise for consideration is as to the stage at which the workman is required to be given an opportunity by the Tribunal to show that he was prejudiced on account of non-supply of the copy of the enquiry report. Is this opportunity, to let in evidence with regard to prejudice caused, to be given at the stage where the Tribunal examines the preliminary issue regarding the validity of the domestic enquiry or is it to be given after it has decided the validity or otherwise of the domestic enquiry conducted by the employer.
36. In 'Chela Beedi Workers Industrial Co-operative Society Limited v. K.K. Bharatan and Anr. 1994 (2) LLJ 396 (Kerala), the Kerala High Court held that the expression 'Validity of domestic enquiry' is not confined to the validity based on procedural requirements, but also the validity based on the evidence adduced as well and if the findings are perverse or arbitrary, the enquiry is defective and it can also be said that the same is not a valid enquiry and the employer must be given the opportunity to adduce evidence.
37. The question however remains as to what the words 'domestic enquiry' mean. If a narrow meaning is given thereto, it would be confined only to the proceedings before the enquiry officer. If, on the other hand, a wider meaning is given thereto, it would bring within its fold every stage in the disciplinary proceedings right from issuance of charge sheet till imposition of punishment. If the narrow meaning were to be accepted, examination regarding the validity of the domestic enquiry will have to be confined only to the proceedings before the enquiry officer and therefore the opportunity, to show that prejudice was caused to the workman on his not being furnished with a copy of the enquiry report, has to be given only after this preliminary issue regarding validity of the domestic enquiry has been decided by the Tribunal. If a wider meaning is given to the words 'domestic enquiry', examination by the Tribunal of the validity of the domestic enquiry would bring within its ambit all stages of the disciplinary proceedings from the stage of issuance of charge sheet till the stage of imposition of punishment, in which event this opportunity to show that prejudice is caused would be required to be given at the stage where the Tribunal examines the validity of the domestic enquiry.
38. The consequences which would result if this opportunity, of proving that prejudice has been caused, is given after the preliminary issue regarding the validity or otherwise of the domestic enquiry, has been decided by the Tribunal, shall first be examined.
39. No difficulty would arise in cases where the Tribunal comes to the conclusion that the domestic enquiry, as conducted by the employer, is invalid for reasons other than the one of failure to furnish a copy of the enquiry report. In such cases, it is the employer who is required to adduce evidence afresh to establish the charge of misconduct and the employee is permitted to lead evidence contra before the Tribunal. In such a situation since the entire domestic enquiry proceedings stand obliterated and do not fall for consideration (Neeta Kaplish v. Presiding Officer, Labour Court 1997(1) LLJ 275), failure to furnish a copy of the enquiry report to the employee and the question as to whether the delinquent workman was prejudiced on the employer's failure to furnish a copy of the enquiry report, would no longer remain for consideration.
40. Incases, however, where the domestic enquiry conducted by the employer, is held to be valid, the question which would arise is whether an employee can thereafter be permitted to adduce evidence to establish that prejudice was caused to him for reason of the employer's failure to furnish a copy of the enquiry report before the disciplinary authority arrives at his conclusions.
41. In this context, reference may be made to the proviso to Section 11-A of the Industrial Disputes Act wherein the Labour Court/Tribunal are required to rely on the material on record and are precluded from taking any fresh evidence in relation to the matter. Interpreting the said proviso and the meaning required to be given to the expression 'material on record', the Hon'ble Supreme Court in M/s. Firestone Tyre and Rubber Co. of India Ltd. (16 supra) held:
The Proviso specifies matters which the Tribunal shall take into account as also matters which it shall not. The expression 'materials on record' occurring in the Proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the 'materials on record' in the Proviso must be held to refer to materials on record before the Tribunal. They take in -
(1) the evidence taken by the management at the enquiry and the proceedings of the enquiry, or
(2) the above evidence and in addition, any further evidence led before the Tribunal, or
(3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra.
The above items by and large should be considered to be the 'materials on record' as specified in the Proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry. The Proviso only confines the Tribunal to the materials on record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of these materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment. From the Proviso it is not certainly possible to come to the conclusion that when once it is held that an enquiry has not been held or is found to be defective, an order reinstating the workman will have to be made by the Tribunal. Nor does it follow that the Proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression 'fresh evidence' has to be read in the context in which it appears namely, as distinguished from the expression 'materials on record'. If so read, the Proviso does not present any difficulty at all
42. The expression 'fresh evidence', was held by a Division bench of the Karnataka High Court in Karnataka Electricity Board v. Workmen 1993 (1) LLJ 512 (Karnataka) to mean that the Tribunal may not take evidence in regard to the act that is alleged to be the act of misconduct, the adequacy of the punishment, or the relief to be granted to the workman and that under Section 11-A, however, the Tribunal could take evidence in the context of perverse findings, unfair labour practice, mala fides and the like. Both in Firestone's case (16 supra) and in Karnataka Electricity Board's case 1993 (1) LLJ 512 (Karnataka), the right to adduce evidence, even in cases where the validity of the domestic enquiry has been upheld by the Tribunal, has been recognized.
43. However, in Bank of Baroda v. G. Sriram 2003 (1) LLJ 905 (A.P.) (D.B.) a Division Bench of this court held that once the domestic enquiry was held to be valid and regular by virtue of the proviso to Section 11-A, Industrial Tribunals had to exercise jurisdiction under that section exclusively only on the basis of the evidence available on record and that it was the clear intendment and purport of the proviso to Section 11-A of the Act that adducing evidence would arise only in the event of the industrial court holding that the domestic enquiry conducted by the employer was invalid for one or other reason. In Bank of Baroda's case (23 supra), an earlier judgment of the Division Bench of this Court in Pandu A.N. v. Management of BHEL : (1998)IIILLJ842AP (D.B.) was relied upon. A contrary view was taken in two earlier judgments of Division Benches of this Court in Smt. Ch. Subba Lakshmi v. Hon'ble Labour Court-III, Hyderabad : 1996(1)ALT699 (D.B.) and Bio-Chemicals and Synthetic Products Limited v. Somaiah : 1996(3)ALT777 (D.B.). In Ch. Subbalakshmi's case : 1996(1)ALT699 (D.B.) it was held that there was no reason to reject the demand of the employee for evidence to show that his defence has been prejudiced in the domestic enquiry only at the stage of the Court/Tribunal considering whether the domestic enquiry was valid or invalid and that the employee could make such a demand at any stage of the proceedings and could bring on record evidence to show that the defence had been prejudiced in recording a finding of guilt in the domestic enquiry as well as imposition of punishment. In Bio-Chemical's case : 1996(3)ALT777 (D.B.), the Division Bench held that there was no stage determined for an employer to come forward and ask for leading evidence before the Court or Tribunal in support of its action, that it is the duty of the Court to see that such opportunity is afforded to the employer and unless the employer consciously waives the right to lead fresh or further evidence in the course of the enquiry by the court, it would not be proper for the court/tribunal to say that it cannot do so.
44. In Karnataka State Road Transport Corporation v. Lakshmi devamma : (2001)IILLJ199SC , the Supreme Court held that no fetters can be placed on the powers of the Tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if, on facts and circumstances of the case, it is deemed just and necessary, in the interest of justice.
45. If the words 'domestic enquiry' are to be restricted as bringing within its fold the actual proceedings conducted by the enquiry officer such as recording of evidence and the like, then all stages thereafter, including the making of the enquiry report, would be posterior thereto. It is well settled that domestic enquiries held against industrial employees should conform to the basic requirements of principles of natural justice. One of the essential requisites thereof is that when the enquiry is over, the officer must consider the evidence and record his conclusions and reasons thereof. The enquiry report is a material document which constitutes material on record and they are closely examined by industrial tribunals/ labour courts when a dispute is brought before it for its adjudication (Powari Tea Estate v. Barkataki (M.K.) 1965(2) LLJ 102 (SC)). Failure of the enquiry officer to make a report at the end of the domestic enquiry itself introduces a serious infirmity in the enquiry and industrial tribunals in such a case are entitled to ignore the domestic enquiry (Samnuggur Jute Factory Company Ltd. v. Their Workmen 1964(1) LLJ 635).
46. The opportunity required to be given to an employee, to submit a representation on the findings of the Enquiry Officer after receipt of a copy of the enquiry report, is after the domestic enquiry is completed and the enquiry officer submits the report to the employer. The enquiry report is submitted after completion of proceedings before the enquiry officer. If the validity of the enquiry report or failure of the enquiry officer to make such a report can be examined by the Tribunal while deciding the validity or otherwise of the domestic enquiry, there is no reason why prejudice caused to a workman, on not being furnished the enquiry report or on not being given an opportunity to show cause as to why the disciplinary authority ought not to disagree with the findings of the enquiry officer, cannot also be examined by the Tribunal as part of its preliminary exercise of deciding the validity of the domestic enquiry.
47. If failure to make the enquiry report as held in Samnuggur Jute Factory's case (29 supra) would result in the Tribunal holding the validity of the domestic enquiry as vitiated, failure to furnish a copy of the enquiry report to the delinquent employee, failure to give him an opportunity to submit his objections thereto and failure to provide the employee an opportunity to show cause why the disciplinary authority should not disagree with the findings of the enquiry officer in cases where the disciplinary authority intends to do so, would also result in the validity of the domestic enquiry being held to be vitiated as all these acts would be in violation of principles of natural justice.
48. A wider meaning is therefore required to be given to the words 'domestic enquiry' so as to include stages, subsequent to the actual enquiry proceedings conducted by the enquiry officer, such as making of the enquiry report, furnishing a copy of the enquiry report to the delinquent workman, giving him an opportunity to submit his objections thereto, as also an opportunity to show cause why the disciplinary authority should not differ from the findings of the enquiry officer, since in Punjab National Bank v. Kunji Behari Misra : (1998)IILLJ809SC ; State Bank of India v. K.P. Narayanan Kutty : (2003)IILLJ1SC ; and J.A. Naiksatam v. Prothonotary and Senior Master, High Court of Bombay : (2005)ILLJ561SC , it has been held that whenever the disciplinary authority disagrees with the enquiring authority on any article of charge, before it records its finding on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent, before it records its findings.
49. The Tribunal/Labour Court, while deciding the validity of the domestic enquiry as a preliminary issue, should therefore examine whether prejudice is caused to the workman, on his not being furnished a copy of the enquiry report before the disciplinary authority arrives at his conclusions, on his being denied the opportunity to submit his objections thereto and on his being denied the opportunity to show cause why the disciplinary authority should not differ with the findings of the enquiry officer. If the Tribunal/Labour Court finds that prejudice was caused, the domestic enquiry would stand vitiated, otherwise not. In cases where the domestic enquiry is held invalid, the employer is required to be given an opportunity to let in evidence, the workman evidence contra and the matter examined on the basis of fresh evidence let in before the Tribunal. If the domestic enquiry is held valid, then the matter is required to be examined under Section 11-A in cases where Section 11-A applies and in other cases in accordance with the law applicable prior to introduction of Section 11-A.
50. The principles culled out from Judgments of the Supreme Court and High Courts, referred to in the aforesaid paragraphs, are summarized hereunder:-
(1) When the Enquiry Officer is not the disciplinary authority, the delinquent employee has the right to receive a copy of the enquiry report before the disciplinary authority arrives at its conclusion with regard to the guilt or innocence of the employee with respect to charges levelled against him.
(2) Denial of the enquiry officer's report, before the disciplinary authority takes its decision, is denial of reasonable opportunity and is in breach of principles of natural justice;
(3) This principle would apply to employees in establishments, whether government or non government; public or private, whether the standing orders made a provision or are silent in this regard;
(4) It is only if prejudice is caused to an employee, on failure of the employer to furnish him a copy of the enquiry report, that the question of setting aside the order of punishment would arise for consideration;
(5) Section 11-A of the Industrial Disputes Act has no application in cases where the punishment imposed by the employer does not result in the services of the workman being terminated;
(6) The power conferred on the Industrial Tribunals/Labour Courts, under Section 11-A of the Industrial Disputes Act, is akin to that of an appellate authority;
(7) In cases where Section 11-A applies, Labour Courts/Tribunals are empowered to re-appreciate the material on record, substitute its findings for that of the disciplinary authority on the very same evidence, reach conclusions different from that of the disciplinary authority and even hold the charge of misconduct as not established.
(8) Even in cases where the Labour Court/Tribunal finds that the evidence and material on record justifies the findings of misconduct arrived at by the disciplinary authority, it is still entitled to hold that the order of punishment imposed is not justified under the circumstances andean impose a lesser punishment;
(9) In cases where Section 11-A does not apply, the Tribunal/labour Court would neither act as a court of appeal nor would it substitute its judgment for that of the management and would interfere only when there is;
(i) want of good faith;
(ii) victimization;
(iii) unfair labour practice;
(iv) when the management has been guilty of basic error or violation of principles of natural justice; and
(v) when on the material on record, the finding is completely baseless or perverse;
(10) The opportunity required to be given to the workman to establish that prejudice was caused, on failure to be supplied with a copy of the enquiry report before the disciplinary authority arrived at its conclusions, would be at the preliminary stage when the Tribunal examines the validity of domestic enquiry;
(11) If the Tribunal is of the view that no prejudice is caused to the employee in this regard and that the enquiry has otherwise been conducted in compliance with principles of natural justice, the validity of the domestic enquiry has to be upheld; if on the other hand, the Tribunal is of the view that prejudice has been caused to the workman, then the domestic enquiry would be declared invalid;
(12) In cases where the validity of the domestic enquiry is upheld, the Tribunal will have to examine the matter under Section 11-A both with regard to the proof of misconduct and with regard to the quantum of punishment;
(13) In cases where Section 11-A has no application, and the domestic enquiry is held to be valid, then the scope of interference by the Tribunal is limited to the factors referred at point No. 9 above.
(14) Both in cases where Section 11-A applies and in cases where it does not, once the domestic enquiry is held to be vitiated, the employer should be given an opportunity to adduce evidence to justify the punishment imposed. On the basis of such evidence adduced afresh by the employer before it, and the evidence let in by the workman contra, the Tribunal, has to appreciate the evidence on record and examine the matter as to whether the charge of misconduct has been established and, if so, the appropriate punishment to be imposed;
(15) If on examining the fresh evidence adduced before it, the Tribunal comes to the conclusion that the charge of misconduct is established and the punishment imposed by the employer is justified, the punishment imposed by the Tribunal will relate back to the date of passing the original order of punishment.
RELIEFTOBEGRANTEDINTHECASE ON HAND
51. Now coming to the facts of the present case. In the claim statement filed before the Tribunal by the State Bank of India Employees' Union (hereinafter referred to as 'the union') at paragraph 2.11 and 2.12, it is stated thus:
2.11 The disciplinary authority, however, did not furnish to the workman, copies of the Enquiry Record, the findings of the Enquiry Officer and the Proceedings of the Disciplinary Authority, along with the Second Show Cause notice.
2.12. Thus, the workman had only the version of the Disciplinary Authority as to the findings of the Enquiry Officer of the charges not being proved beyond reasonable doubts and his analysis of the evidence. The workman was thus denied the reasonable opportunity of rebutting the contentions of the Disciplinary Authority
The claim statement also refers to the fact that in reply thereto, the disciplinary authority, vide proceedings dated 14-11-1985, informed that the workman was afforded every reasonable opportunity to defend himself, a copy of the proceedings of the enquiry together with the findings of the enquiry officer and the proceedings of the disciplinary authority had been made available with the Branch Manager, Srikakulam, which could have been perused/copies obtained, on application, by the workman. Again at paragraph 3.8 of the claim statement it is stated that the record of enquiry, the findings of the enquiry officer and the proceedings of the disciplinary authority were, for the first time, made available during the course of conciliation proceedings initiated by the Assistant Labour Commissioner (C), Visakhapatnam, when the union had raised industrial dispute before the said authority. It is also stated that the record was passed on to the Manager, Srikakulam only after the disciplinary authority had passed the order dated 14-11-1985 and in any case the workman was not made aware of the same. The Union contended that in the absence of the enquiry record, the findings of the enquiry officer and the proceedings of the disciplinary authority, the charge sheeted workman had no material before him to make his submissions, other than the version of the disciplinary authority and that the workman was denied the opportunity of taking them into consideration in effectively putting his case against the punishment proposed and the hearing offered had thus become an empty formality.
52. From the claim statement it is clear that the workman was given a copy of the enquiry officer's report and the findings of the disciplinary authority during the course of conciliation proceedings before the Assistant Commissioner of Labour (Central) i.e., prior to the reference made by the Government to the Tribunal. The said documents were available with the workman when the Union filed its claim statement on his behalf before the Tribunal. However, no plea was taken in the claim statement that prejudice was caused to the workman as a result of his not being furnished a copy of the enquiry report. In the written arguments filed on behalf of the union, in I.D. No. 27/91, the issue of furnishing a copy of the enquiry report was dealt with in detail and, for convenience, the relevant paragraphs are extracted hereunder-
Enquiry report and disciplinary authority's proceedings not furnished:
Even though it is mandatory that along with the second show cause notice the enquiry records, the findings of the Enquiry Officer, and the proceedings of the disciplinary authority thereon should be furnished, but with the second show cause notice they were not furnished to the workman. Thus the workman was disabled from or rather denied the opportunity of knowing the actual findings of the Enquiry Officer and the reasoning behind the non-acceptance of the Enquiry Officer's findings by the disciplinary authority. Thus, he was denied reasonable opportunity in violation of the principles of natural justice and it is violative of the latest Supreme Court's dictum dated 1-10-1993 in Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. vide 1993 SCC (L&S;) 1184. According to this decision denial of right to a copy of the enquiry report amounts to denial of reasonable opportunity and violation of Articles 14 and 21 of the Constitution of India as well as principles of natural justice. It was held further that this rule extends to all establishments -Government, non-government, public private sector undertakings and THAT IT OPERATES IRRESPECTIVE OF WHETHER STATUTE PROVIDES FOR IT OR DELINQUENT ASKS FOR SAME OR NOT. The Supreme Court held further that the service rules/ standing orders denying supply of enquiry report to the delinquent employee for imposing major punishment are invalid and where punishment imposable is other than the major punishment of dismissal, removal and reduction in rank; and the rules contemplate enquiry and the enquiry officer is not the disciplinary authority, THEN ALSO ENQUIRY REPORT IS TO BE SUPPLIED. Further, it was held that failure of employee to ask for the report cannot be construed as waiver. In view of the same, the disciplinary action against the workman is vitiated abinitio, illegal, null and void. Therefore, this Hon'ble Tribunal may be pleased to declare that the disciplinary action against the workman is mala fide, illegal and void ab initio and that the workman is entitled to status quo ante as before the enquiry and for all consequential and incidental benefits including full wages for the period of his suspension.
53. It is clear that even in the written arguments filed by the Union before the Tribunal neither the workman nor the union raised the plea that any prejudice was caused to the workman due to his not being supplied a copy of the enquiry report and the findings of the disciplinary authority differing with the conclusion of the enquiry officer. Not only was there no plea that prejudice was caused, reliance was placed on the judgment of this Court in Sri Ahmed Mohiddin v. The State Bank of Hyderabad : 1994(1)ALT609 in support of the contention that the delinquent employee need not establish whether prejudice was caused on account of his not being furnished with a copy of the enquiry report.
54. A Counter affidavit was filed by the workman in the present writ petition referring to the judgment in ECIL's case (1 supra), wherein it is stated that the disciplinary authority owes a duty to furnish a copy of the enquiry report to the employee and give him an opportunity to represent against the same. Even in the counter affidavit filed before this Court, no plea is taken that any prejudice was caused to the workman, on account of non-supply of a copy of the enquiry report or the findings of the disciplinary authority.
55. It is thus clear that even after receiving a copy of the enquiry report and the findings of the disciplinary authority, both before the Industrial Tribunal and before this Court, there is no plea that prejudice was caused to the workman on account of non-supply of the enquiry report and on his not being furnished with a copy of the findings of the disciplinary authority disagreeing with the findings of the enquiry officer.
56. It is well settled that a contention, to substantiate which evidence is necessary, is to be pleaded. If there is no pleading raising a contention, there is no question of substantiating such a non-existing contention by evidence. An allegation which is not pleaded, even if there is evidence in support of it, ought not to be examined. (Shankar Chakravarti v. Britannia Biscuit Co. Ltd. : (1979)IILLJ194SC and Management of Glaxo India Ltd., Madras v. Presiding Officer, Labour Court 1993(1) LLJ 626).
57. During the course of examining the validity of the domestic enquiry by the Tribunal, documents were marked with consent and the workman did not adduce any evidence with regard to prejudice caused to him. Thus, in the absence of any plea or in the absence of evidence being adduced to show that prejudice has been caused, the workman cannot now claim that he should be given an opportunity of adducing evidence in this regard, more so, when the Tribunal has, by order dated 18-5-1994, upheld the validity of the domestic enquiry. In Ahmed Mohidin's case (33 supra), a single judge of this Court held that where the punishment is other than the one of dismissal, removal or discharge from service, the employee is not required to show that prejudice has been caused and that the judgment in EClL's case (1 supra) applies only to cases where the services of an employee were terminated as a measure of punishment. Accepting the conclusions in Ahmed Mohiddin's case (33 supra) would result in an anomalous situation. While a person, whose services have been terminated as a measure of punishment would be required to establish that prejudice has been caused to him, before the punishment imposed on him is set aside, an employee who has received lesser punishment would not, and even if no prejudice is caused on account of his not being furnished a copy of the enquiry report, would be entitled to have the order of punishment set aside. The judgment of the Supreme Court in ECIL's case (1 supra) can neither be read in such a manner nor can the law laid down therein be so restricted. In any event, in view of the subsequent judgments of the Supreme Court in S.K. Singh (2 supra), Oriental Insurance Co. (3 supra) and Anjan K. Saha (4 supra), which require an employee to show that prejudice was caused to him on account of non-supply of the enquiry report before the punishment imposed calls for interference, Ahmed Mohiddin's case (33 supra) is no longer good law.
58. Since the workman has failed to plead or let in evidence to establish that prejudice has been caused on account of non-supply of a copy of the enquiry report and a copy of the findings of the disciplinary authority, even after copies thereof were given to him, and since the validity of the domestic enquiry has been upheld by the Tribunal by order dated 18-5-1994,1 see no reason to now direct the Tribunal to re-examine the validity of the domestic enquiry by giving an opportunity to the workman to adduce evidence to establish that prejudice was caused to him in this' regard.
59. While admitting the present writ petition, this Court by order in W.P.M. P. 25477 of 1994 dated 22-11-1999 directed that the Tribunal shall not initiate any prosecution proceedings against the petitioner until further orders. As a result of the said order passed by this Court, I am informed, that the petitioner has not implemented the award passed in I.D. No. 27 of 1991. Since the domestic enquiry has already been held to be valid by the Tribunal, the punishment imposed on the workman is other than dismissal or discharge, and Section 11-A does not therefore apply, the Tribunal, on the evidence available on record, shall examine the matter in accordance with paragraph - 50 (9), supra, with regard to proof of misconduct and the quantum of punishment. The order of punishment of stoppage of two increments with cumulative effect was imposed on the workman nearly two decades ago on 14-11-1985 and the dispute in I.D.27/1991 was referred for adjudication of the Tribunal 14 years ago. It is therefore necessary that the Tribunal re-examines the matter and passes the Award as expeditiously as possible, in any case not later than a period of three months from the date of receipt of a copy of this order.
60. The writ petition is accordingly disposed of. No costs.