AI Structured Summary
Not yet generated for this judgment
Judgment
A.S. Bopanna, J.—The petitioner is before this Court assailing the award dated 23.08.2008 passed in C.R. No. 31/2003.
The Central Government Industrial Tribunal-cum-Labour Court ("CGIT" for short) by its award dated 23.01.2008 has set aside the action initiated by the petitioner - Management and has directed them to reinstate the first party workman into service with 50% of back wages from the date of punishment.
The respondent - workman has died during the pendency of this petition and his legal representatives have been brought on record who are defending the instant petition. In that view, at this juncture the question of reinstatement of the respondent - workman would not arise. But if the respondent succeed, the benefit accrued would become payable to the respondents. In that light, the matter is taken note for consideration.
The learned counsel for the petitioner while assailing the award passed by the CGIT would contend that the Tribunal at the first instance, by its order dated 23.06.2005 has held that the domestic enquiry held by the petitioner to be fair and proper. In that view, it is contended that the CGIT having done so ought not to have in the present circumstance re-appreciated the evidence available on record and thereafter come to a different conclusion. It is further contended that the CGIT even while appreciating the evidence has arrived at a wrong conclusion that the complainant-Smt. Akka Tai Patil had not been examined. It is his contention that the other evidence available on record is sufficient and the workman also has a duty to examine the witness and in any event, the strict rule of evidence contained in the Evidence Act to domestic enquiry would not be applicable and therefore, the Labour Court ought to have considered this aspect of the matter.
The learned counsel for the respondent would however seek to sustain the award passed by the Court below. It is contended that by the order dated 23.06.2005 all that had been done was to consider the fairness of the enquiry and even in such circumstance, the Labour Court is entitled to arrive at a conclusion as to whether there is perversity in the finding rendered by the Enquiry Officer and it is in the said process, the CGIT has taken into consideration the evidence which was available before the Enquiry Officer to render its finding as to whether the Enquiry Officer based on such evidence could have arrived at the conclusion to hold the respondent to be guilty of the charge. Therefore, the Labour Court has rightly appreciated the matter on merits to arrive at its conclusion, which does not call for interference.
In the light of the contentions urged by the learned counsel for the parties, I have perused the writ papers including the award passed by the Labour Court and the records received therefrom.
While considering the award passed by the Labour Court, re-appreciating the evidence as in the case of an appeal would not be permissible. Therefore, the interference to be made by this Court is limited. All that is permissible to be examined in a writ proceeding is as to whether there is any perversity in the conclusion reached by the Labour Court, while passing its award. Therefore, in that light, a perusal of the reasons assigned by the CGIT would indicate that though at the first instance it had held the domestic enquiry to be fair and proper, has thereafter taken note of the very evidence which had been tendered before the Enquiry Officer to come to a conclusion as to whether the finding ultimately rendered by the Enquiry Officer is justified in law or as to whether the same calls for interference?
In a circumstance where by the order dated 23.06.2005, only the validity of the domestic enquiry was considered, certainly, the Labour Court would be justified in referring to the evidence which was available before the Enquiry Officer as it remains to be a part of the record and it could be referred to find out as to whether there is perversity. Hence, the contrary contention to the said effect by the learned counsel for the petitioner cannot be accepted.
In the light of the above, a perusal of the award passed by the Labour Court would indicate that in para 9, the Labour Court has formulated the question that would arise for consideration and the very fact it has framed a question to come to a conclusion as to whether the enquiry finding suffered from perversity and also to consider with regard to proportionality of the punishment would indicate that the Labour Court has kept in perspective the question that was required to be considered and thereafter the evidence had been looked into. In the instant case, it is no doubt true that the allegation of misappropriation of the amount was made against the respondent. The misappropriation of the amount as alleged is not with regard to the funds of the bank. The allegation is that one Smt. Akka Tai Patil who had S.B. Account No. 1950 was granted a loan and with regard to the same the amount released which was to be credited had not been done so as per her allegation. It is in that view when recovery was sought to be made from her with regard to the loan, she has contended that the entire amount had not been received by her. A complaint is said to have been made by her, which was sought to be relied in the enquiry as Ex. ME5. It is based on such complaint, the enquiry was initiated against the respondent-workman. Taking note of this aspect, the CGIT has made detailed reference to the evidence that had been tendered before the Enquiry Officer to take note of the document at Ex. ME5 and the author of the said complaint Smt. Akka Tai Patil not being examined in the enquiry. Though, the petitioner-bank contends that the entire action initiated against the respondent workman was based on her complaint that the amount released to her had not been received by her and had been misappropriated by the respondent, in a matter of the present nature where she was seeking to justify her nonpayment of the loan on that basis, the CGIT was justified in its conclusion that in the absence of the examination of the complainant, the same would become fatal.
Further the Labour Court has also referred to the subsequent letter dated 11.09.2001, whereunder the said complainant is said to have disowned the earlier complaint. Therefore, in a circumstance where it was contended by the respondent that the complainant is related to him and it is only to maintain the relationship and also since it had been indicated that if the amount is paid to her account, the matter would be closed, he has credited a sum of Rs. 71,000/- to the account, the mere deposit of the amount alone was not sufficient. The only other reason which has been noticed by the Enquiry Officer to come to a conclusion that the charge alleged against the respondent is proved is due to the action of the respondent having repaid the amount which is not justified in the present facts. The CGIT while appreciating these aspects of the matter has not only referred to the said document, but has also taken note of the evidence tendered through MW2 and also the documents that were marked at Exs. M11 and M12 before the Enquiry Officer and on discussing the same and having found that the basis for the very action against the respondent had not been established by examining the complainant based on which the action has been initiated, has arrived at the conclusion that the finding rendered by the Enquiry Officer suffered from perversity as the relevant evidence was not available before the Enquiry Officer yet a finding of guilt is recorded. Though, the author not being available, the document at Ex. ME5 has been relied to come to a conclusion that the respondent was guilty of the charge. Further, only the other document which was also taken into consideration was the credit slip which would not be conclusive.
Therefore, in such a circumstance, when the Labour Court has referred to the evidence which was available on record and has recorded a finding that the conclusion reached by the Enquiry Officer is perverse and in that view has set aside the action against the respondent, it cannot be said that the CGIT has committed any error nor can the award passed by the CGIT be termed as perverse so as to call for interference.
One other aspect which also is to be taken into consideration is that the CGIT while awarding the backwages, has made a specific consideration of that aspect of the matter and on taking note of the fact that the petitioner management had not shown that the respondent was gainfully employed, has arrived at the conclusion that the ends of justice would be met if 50% of the backwages is awarded. Even on that aspect, I see no error committed by the CGIT so as to call for interference. Hence, I see no reason to interfere with the award impugned herein.
Accordingly, the petition stands disposed of.