Central Bank of India Vs. Central Government Industrial Tribunal-cum-labour Court and Shri Jagannath S/O Biharilal Shukla - Court Judgment

1. Rule returnable forthwith. Taken up for finalhearing with the consent of the parties.

2. In the Departmental proceedings, initiatedagainst the Respondent no.2-employee, charges were provedagainst him and the result thereof was issuance of anorder of discharge of the respondent no.2 from service.This order of discharge dated January 2, 1990.

3. An appeal, at the instance of the Respondentno.2, before the Chairman-cum-Managing Director of thePetitioner-bank, resulted into rejection thereof. Thisorder passed by the Appellate authority is dated20.11.1990.

4. After about four years gap, it was for thefirst time, the Respondent no.2 approached the AssistantLabour Commissioner(Central), Nagpur, challenging theorder of Discharge from service. The proceedings beingfor conciliation and the conciliation having been failed,the matter was referred to the Central GovernmentIndustrial Tribunal, Jabalpur, for adjudication.

5. On having been noticed, the Respondent-bankappeared before the learned Presiding Officer of theTribunal and opposed the case of the Respondentno.2-employee on all counts.

6. Before the Tribunal, i.e. Respondent no.1,necessary oral evidence was led on the preliminary issue,i.e. as regards fairness of the Departmental Enquiry.Thereafter, as is clear from the record, as is placedbefore the Court, and which is not disputed by therespondent, on November 5, 2001, the learned PresidingOfficer of the Tribunal fixed the matter on January 11,2002, for filing of Written Notes of Arguments onpreliminary issues.

7. The matter thereafter appeared to have beentransferred to Nagpur. However, instead of deciding thematter on a preliminary issue, the learned PresidingOfficer of the Tribunal, by an order dated September 12,2002, observed that Reference will be decided on merits,as also on the preliminary issue at one and the sametime. The learned Presiding Officer of the Tribunal alsoobserved that the preliminary issue as regards fairnessof the enquiry will not be decided separately orindependently first.

8. A separate application was moved by thepetitioner-bank for framing and hearing of thepreliminary issue about the fairness of the DepartmentalEnquiry. However, the learned Presiding Officer of theTribunal, rejected the same by his order dated September16, 2002. Being aggrieved by the aforesaid two orders,i.e. dated September 12, 2002 and September, 16, 2002,the petitioner-bank has approached this Court, assailingthe same scathingly pointing out that the learnedPresiding officer of the Tribunal committed a grave errorin not deciding the preliminary issue first, and furtherthat not looked into the judgments cited before him inproper perspective.

9. Shri Almelkar, learned counsel for thepetitioner vehemently contended that before the learnedPresiding Officer of the Tribunal, a decision of theSupreme Court, reported in : (1975)IILLJ379SC in thematter of The Cooper Engineering Ltd. v. P.P.Mundhe,was specifically cited, pointing out that the SupremeCourt specifically observed and held that when thedomestic enquiry is challenged on the ground that theprinciples of natural justice are not followed and/or onthe ground that it is not fair and proper, it is the dutyof the Tribunal to frame a preliminary issue as towhether the domestic enquiry is vitiated. Shri Almelkar,further pointed out that a copy of the unreporteddecision of this Court in Writ Petition No.2228 of 2001,in the matter of Pradeepkumar s/o Laxmanprasad Vyas Vs.Ministry of Defence and another, was also placed beforethe learned Presiding Officer of the Tribunal for hisperusal, pointing out that the judicial decisions in theinstant type of matter, it is always necessary to frame apreliminary issue and to decide the same first beforeentering into the merits of the case.

10. Shri Almelkar, learned advocate, furtherpointed out that the second decision of the learnedSingle Judge of this court, referred to above, was alsoagainst identical point and the order under challenge inthat writ petition also happened to have been passed bythe very same learned Presiding Officer of the Tribunal.Shri Almelkar, therefore, contended that in spite of theorder having been placed before the learned PresidingOfficer of the Tribunal, the Presiding Officer did nottake cognizance thereof and passed the order rejectingthe application and thereby ordering to deal with thematter on merits as well as preliminary issuesimultaneously. According to Shri Almelkar, the learnedPresiding Officer of the Tribunal should not have lightlybrushed aside the decision of the Supreme Court as alsothe judgment passed by the learned Single Judge of thisCourt. According to Shri Almelkar, an apprehension isentertained by the litigant that the order passed by theSupreme Court as also by this Court is being looked intoat with all disdain. This, according to Shri Almelkar,definitely a matter of serious concern and could be anapproach, damaging the whole judicial discipline. ShriAlmelkar, argued, and in the opinion of this Courtrightly, that the judgment of the High Court is bindingon the Central Government Industrial Tribunal, unless anduntil the said judgment is either modified or reviewed oris otherwise upset by the Apex Court of the country. Ido not find that there can be any other view on thispoint. Even assuming for the sake of arguments that thelearned Presiding Officer of the Tribunal did not lookinto the judgment of the High Court with all thatseriousness, it was definitely not open for the learnedPresiding officer not to not have considered the judgmentof the Supreme Court, reported in the matter of TheCooper Engineering v. P.P.Munde, (cited supra).

11. Shri Marpakwar, learned counsel appearing onbehalf of the Respondent no.2-employee, in all his goodgestures and fairness, accepted the contentions made bythe learned counsel for the petitioner, pointing out thatthe Judgments, referred to above, were no doubt, citedbefore the learned Presiding Officer of the Tribunal.Shri Marpakwar, further argued that he had also expressedbefore the Presiding Officer that that though he wasrepresenting the respondent no.2, it was difficult forhim to not to support these two judgments which werecited, suggesting thereby that in the fitness of thingsit was incumbent on the part of the learned PresidingOfficer of the Tribunal to have followed the judgment ofthe Supreme Court as also of the High Court, therebydeciding the matter on preliminary issue as regardsfairness of the Departmental enquiry.

12. It will not be out of place to mention herethat the learned Presiding Officer of the Tribunal forrejecting the application of deciding the preliminaryissue first, tried to rest his reasoning on the decisionreported in 1996 (2) CLR 234 in the matter of NationalCouncil for Cement and Building Materials v. State ofHaryana & Ors., as also on the decision of D.P.MaheshwariVs. Delhi Administration and Ors, reported in 1983 L. I.C. 1629. After having gone through the abovesaid twojudgments, this Court has to form the opinion that thelearned Presiding Officer of the tribunal, did not readthe judgments in appropriate perspective, rather inproper perspective. As argued by Shri Almelkar, theabove said two judgments could not be said to be of anyhelp for the decision on the point of preliminary issuein the present matter. It would be appropriate toobserve here that so far as regards D.P.Maheshwari Vs.Delhi Administrations case is concerned, the pointinvolved therein was as regards : as to whether thepetitioner therein was a workman or not; and in thesecond matter, i.e. in the matter of National Councilfor Cement and Building Materials v. State of Haryana &Ors;, (cited supra), the point was : whether the NationalCouncil could be said to be an industry ?. In theopinion of this Court, in fact, the above said judgmentscould not be said to be apt for the decision on the pointinvolved in the matter in hand.

13. It would have been appropriate for the learnedPresiding Officer of the Tribunal to have seen that thepoint in the matter in hand was as regards : as towhether the Departmental Enquiry was fair and proper?The learned Presiding Officer should have kept in mindthat if the point as regards fairness of the enquiry isheld against the employer holding that the enquiry couldnot be said to be fair and proper and it vitiated on thatcount, then in that case it was yet open for thepetitioner/employer to have proved the charges in theCourt or before the Tribunal against the employeeconcerned, but definitely with the leave from the Courtor the Tribunal. It is for that purpose also necessaryfor the employer to have sought for such permission whileput in its defence at the first opportunity. Needless itis to mention that such a permission is already soughtfor through the defence put by the petitioner-bank in theinstant matter. In paragraph 31 of the Written Statementfiled on behalf of the petitioner-bank, a specificrequest in precise words is made by thepetitioner-employer. Keeping in view the provisions oflaw in that respect, the learned Presiding Officer of theTribunal should have seen that in case the point ofpreliminary issue is held against the employer, it is yetopen for the employer to prove the charges before theCourt/Tribunal by adducing appropriate relevant evidence.It is, therefore, necessary for the judicial authority aswell as quasi-judicial authority to be alert and cautiouson the point while passing the orders that any hastydecision by the judicial authority or quasi-judicialauthority whether was likely to prejudicially affect thecase of a party or likely to have its adverse effect onthe very decision of the case.

14. So far as regards the present case isconcerned, it is to be observe that this Court, whiledeciding the Writ Petition No.2228 of 2001, in the matterof Pradeepkumar Vyas v. Ministry of Defence and Anr,has set aside the order of the very same PresidingOfficer of the Tribunal, wherein the very same oridentical point was the subject matter for consideration.This Court, while setting aside the order of the learnedPresiding Officer of the Tribunal, in that matter,specifically remanded the matter back to the learnedPresiding Officer of the Tribunal, directing to frame apreliminary issue and thereafter to decide the same. Itis really surprising that the learned Presiding Officerof the Tribunal in spite of having been made aware aboutthe order passed by this Court on the same point,appeared to have not given due weightage to the orderpassed by this Court, which, in the opinion of thisCourt, is definitely objectionable and against the normsof judicial discipline. In fact, it is a matter whichwill have to be looked into very seriously by theconcerned Department of the Government.

15. Taking into consideration the approach of thelearned Presiding officer of the Tribunal, in brushingaside the judgments of the Supreme Court as also of thisCourt, and rejecting the application for framing anddeciding the preliminary issue, in the opinion of thisCourt, is definitely not only harmful, but causing damageto the harmony in judicial hierarchy. The learnedPresiding Officer, in fact, should have seen that so longas the judgment of the High Court is not either overruledor set aside, it is binding on all the judicial and quasijudicial subordinate to the High Court. They have noliberty, whatsoever, either to neglect it, if brought tothe notice, or to act against the same, that too even inslightest manner. Any deviation therein it would notonly amount to insubordination, but in a given case couldeven amount to contempt of Court, which have to be lookedat with all seriousness.

16. Since both the judgments were brought to thenotice of the learned Presiding Officer of the Tribunal,and in spite of that, since no appropriate care is takento follow the same, the conduct on the part of thelearned Presiding Officer of the Tribunal, cannot be saidto be an inadvertent mistake on his part or ignoranceabout the judgments, but it could be looked at as anintentional attempt not to take cognizance of thejudgments either of the High Court or of the SupremeCourt. In the opinion of this Court, this is one of theserious acts of judicial indiscipline. If the learnedPresiding Officer would have tried to differentiate thejudgments in a crouches manner, and language, then therewould not have been scope for this Court to make theabove said observations. If at all in the opinion of thePresiding Officer of the Tribunal, the judgments citedbefore him were not applicable, but when the point hasbeen fully covered, there was hardly any scope for thelearned Presiding Officer of the Tribunal to deviatetherefrom. The approach and way of conduct of the matterby the learned Presiding Officer of the Tribunal, in theopinion of this Court, therefore, is not only against thewell-known judicial norms of judicial discipline, but mayproject a situation, which ultimately may result intochaos. It is the responsibility of all the judicial andquash judicial officers to respect and to follow thejudgments of the superior courts fully.

17. In view of what is observed above, and in theopinion of this Court, the learned Presiding Officer ofthe Tribunal committed an error in rejecting theapplication moved by the petitioner-bank for framing apreliminary issue and deciding the same.

18. In the circumstances, and relying on thejudgment of the Supreme Court cited supra as also thejudgment of the brother Judge, V.M.Kanade, J. (citedsupra), this Court quash and set aside the impugnedorders dated 12.09.2002, as also the order dated16.09.2002, and the matter is remanded back to thelearned Presiding Officer of the tribunal with adirection to frame an appropriate preliminary issue anddecide the same at the earliest possible, as per theconvenience of the learned Presiding Officer of theTribunal.

19. In this view of the matter, the petition isallowed. Rule is made absolute in the above said termswith no orders as to costs.

20. Registry of this Court is directed to forwarda copy of this Judgment to the concerned Ministry of theCentral Government.