Singareni Collieries Co. Ltd. Vs. Industrial Tribunal I, Hyderabad and anr. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - the disciplinary authority directed dismissal from company's service with effect from april 4, 1989 conciliatory talks before the assistant labour commissioner failed and the central government referred the matter for adjudication by the 1st respondent-tribunal. the very fact that the management failed to produce the steel rod before the domestic enquiry officer clearly indicates that the rod was not in existence during the course of domestic enquiry and when once the very rod is not in existence, the tribunal can safely conclude that the very theory of the management that she beat the superintendent with a steel rod cannot be accepted. 6. the contentions are well founded. the tribunal has failed in its duty to properly appreciate the evidence and material on record.1. the petitioner has impugned the award of the industrial tribunal in i.d. no. 28 of 1990 which was passed on a reference made under secs. 10(1)(d) and 2-a of the industrial disputes act, 1947. the question referred to the tribunal for its decision was as to whether the action of the management of the petitioner company in dismissing respondent no. 2 herein-staff nurse from service is justified. 2. the 2nd respondent-staff nurse was charge sheeted for the alleged misconduct viz that on september 28, 1988 she entered the office room of the superintendent, main hospital, stood behind the curtain and when he entered the room and sat in his chair, she assaulted him from behind on his head several times with an iron rod which resulted in multiple injuries to him. enquiry officer was appointed. evidence was recorded and in his report, the enquiry officer held that the charge stands established and the conduct of the delinquent-staff nurse constitutes misconduct under companies standing order 16(5) and is in violation of sub-rule (ii) of rule 3 of company's code of conduct of discipline rules. the disciplinary authority directed dismissal from company's service with effect from april 4, 1989 conciliatory talks before the assistant labour commissioner failed and the central government referred the matter for adjudication by the 1st respondent-tribunal. when the matter was taken up before the tribunal, a preliminary issue was framed as to whether domestic enquiry conducted is valid. the same was answered in favour of the management and the domestic enquiry was found to be valid and in accordance with the principles of natural justice. the enquiry officer was examined as m.w. 1 and exs. m-1 to m-8 were marked. 3. a perusal of the award shows that the tribunal by the impugned orders has merely considered one aspect and that is, with regard to the nature of weapon the delinquent staff nurse beat the superintendent seshagiri rao and when the steel rod was sought to be marked as an exhibit before the tribunal, it was objected to by the advocate for workman. the tribunal then concluded thus : 'if really that material object was there during the course of domestic enquiry naturally the management should have certainly produced them before the domestic enquiry. the very fact that the management failed to produce the steel rod before the domestic enquiry officer clearly indicates that the rod was not in existence during the course of domestic enquiry and when once the very rod is not in existence, the tribunal can safely conclude that the very theory of the management that she beat the superintendent with a steel rod cannot be accepted. moreover the management is silent with regard to seizure of the steel rod, at what point of time the steel rod was seized, from whom it was seized and in fact if really the steel rod was seized subsequently either from the possession of the delinquent edna or from some other place there should be panchanama and mediator to that effect. there is no record to show that the material object was recovered from the possession of the delinquent edna or from other person or place.' in so far as appreciation of evidence is concerned the tribunal by the impugned order merely considered the evidence on the aspect relating to the rod and observed that c.w. 2 narayana in his evidence did not state as to with which weapon the delinquent beat and under what part of the body superintendent was beat and that the said witness did not state as to whether the rod was iron rod, steel rod or copper rod. the tribunal thus concluded that the charge against the workman cannot be held proved. 4. the tribunal also observed that the evidence of the delinquent was to the effect that the superintendent had got hold of the delinquent's hand and that the superintendent had angrily shouted at the delinquent. the tribunal felt that it was highly objectionable to hold a lady's hand by a male person. 5. learned counsel for the petitioner management contended that there has been no appreciation of evidence by the tribunal. as many as six witnesses have been examined on behalf of the management and four injuries were recorded on the superintendent who was hit by the rod and the tribunal had not considered the evidence of any of the said witnesses including that of the eye witness except on the ground as to the nature of the rod used, it is contended. 6. the contentions are well founded. evidence for the purposes of disciplinary enquiry is not strictly the evidence as understood in the context of a civil or criminal proceeding in a court of law. it is just taken as equivalent to materials exhibiting the conduct of the delinquent officer. the standard of proof required is that of preponderance of probability and not prove beyond reasonable doubt. whether the incident with which the delinquent officer was charged did or did not happen and whether the testimony of the witnesses on that aspect of the matter the misconduct alleged against the delinquent officer stands established or not are questions which have to be considered. in the instant case, the same have not even been adverted to by the industrial tribunal as already noticed above. the only cause for interfering with the findings of the enquiry officer was the non production of the rod used by the delinquent officer and based on that solitary aspect as to the nature of the rod and non-production thereof before the enquiry officer, the order of dismissal passed on the enquiry officer's finding has been reversed. there has thus been no appreciation of evidence and material on record. in the circumstances, it has to be held that the impugned award suffers from the vice of perversity. it is not as though there is no evidence or material on record based on which the enquiry officer came to the conclusion that the delinquent officer was guilty of the charge levelled against her. it was therefore the duty of the industrial tribunal to consider whether the evidence and material on record could be taken into consideration and based thereon whether the misconduct alleged stands established. the tribunal has failed in its duty to properly appreciate the evidence and material on record. 7. if the material and evidence on record are not taken into consideration and the evidence is not properly appreciated by the labour court, the iapse on the part of the tribunal is liable to be, corrected by this court in exercise of its jurisdiction under art. 226 of the constitution of india. 8. this court, however, cannot sit in appeal over the decision of the industrial tribunal and re-appreciate for itself the evidence or materials on record. a division bench of this court in the depot manager, apsrtc, cuddapah v. p. gangarajulu & anr. : 1996(1)alt322 (d.b.) considered the scope and jurisdiction of this court in the following terms : 'this court cannot substitute its own opinion and arrive at a finding after going into the evidence. the only proper course would be to direct the labour court to consider all the material available on record and appreciate the evidence properly and in accordance with law.' 9. in the light of the above, the impugned award is set aside and the matter is remitted back to the tribunal for consideration afresh as per law after giving an opportunity of being heard to both the parties and in the light of the material already on record. the tribunal is further directed to dispose of the matter within a period of four months from the date of receipt of a copy of this order. 10. the above writ petition is ordered accordingly. but in the circumstances without costs.