Full Judgment Text
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CASE NO.:
Appeal (civil) 5344 of 2005
PETITIONER:
United Bank of India
RESPONDENT:
Tamil Nadu Banks Deposit Collectors Union and Anr
DATE OF JUDGMENT: 05/12/2007
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 5344 OF 2005
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order Passed by a
Division Bench of the Madras High Court allowing the writ
appeal filed by the respondents.
2. Background facts in a nutshell are as follows:
Two persons named Koshi Kottikeran and Liakath Ali
were engaged as Commission agents with the appellant Bank
in its Coimbatore Branch. On 11.10.1984 and 12.12.1984
engagements of Koshi Kottikeran and Liakath Ali came to be
terminated by the appellant-Bank. Respondent No.1-The
Union raised two disputes purported to be an industrial
dispute with regard to alleged termination of the aforesaid two
persons. The matter was referred to the Industrial Tribunal,
Tamil Nadu (in short the ’Tribunal’) I.D. Case Nos.26 and 44 of
1987. Appellant Bank took the stand that these two persons
were not workmen and in any event the dis-engagement was
legal, justified and permissible. The Tribunal passed a
common award answering the reference against the claimant
and in favour of the management.
Aggrieved by the award the respondent No. 1-Union
preferred Civil Writ Petition No. 15538 of 1997 before the
Madras High Court.
Learned Single judge by order dated 15.10.1997
dismissed the writ petition. The Union carried the matter
further in writ appeal. By the impugned order the Division
Bench of the High Court allowed the writ appeal. The High
Court came to hold that a Tiny Deposit Collector was a
workman. Therefore, it is a valid dispute, and the dispute
referred to can be adjudicated by the Tribunal. It referred to
the letters of disengagement and came to hold that the
termination orders disclosed that they were simple orders of
termination. That being so no specific reason for termination
of services was disclosed. They did not refer to any misconduct
and therefore there was no justification for the Tribunal to
permit the appellant-bank to rely upon documents and
materials to justify the orders. It was also held that there was
absolutely no acceptable evidence placed before the Tribunal
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to justify the orders of termination. Accordingly writ appeal
was allowed.
3. Learned counsel for the appellants submitted that it was
permissible for the Tribunal to allow the employer to lead
evidence. The learned Single judge categorically observed that
the evidence led before the Tribunal was to substantiate the
stand of the employer about the misconduct of the two
workmen.
4. There is no appearance on behalf of respondent No.1-
Union in spite of service of notice.
5. Circumstances, when permission can be granted to an
employer to lead evidence to justify its order of termination,
have been highlighted by this Court in several cases.
6. The reference to the Tribunal was as follows:
"ID 26/87 :Whether the action of the
management of the United Bank of India,
Madras, in terminating the services of Shri
Koshy Kottikaran, Tiny Deposit Collector,
United Bank of India, Oppanakkara Street,
Coimbatore from 20.12.1984 is legal? If not to
what relief is workman concerned entitled?"
ID 44/87 : Whether the action of the
Management of the United Bank of India,
Madras, in terminating the services of Shri
Liakath Ali, Tiny Deposit Collector, United
Bank of India, Oppanakkara Street,
Coimbatore from 11.10.1984 is legal? If not to
what relief is the workman concerned
entitled?"
7. The reasons which weighed with the Tribunal for
deciding in favour of the appellant bank read as follows:
"The Dy. General Manager asked the Regional
Manager to give the particulars regarding the
non-engagement of Commission Agent for TSS
is disclosed by Ex. M 10. The commission
Agents decided to demonstrate at 5.00 p.m.
from 28.8.1984 in front of the Bank for one
week and 28t" onwards is revealed by Ex. M.
11. This scheme was abolished due to
complaints and problems. The object of the
introduction of the Tiny Deposit Scheme is to
create a Saving habit of the weaker section of
the society is proved by Ex. M. 13. The
Manager wrote to the Regional Manager,
Southern Region, regarding the Tiny Deposit
Scheme, one depositor
A. Ali paid Rs. 1,,000/- to the petitioner in
I.D. No. 44/87 and he has not passed any
receipt is disclosed by Ex. M 15. He obtained a
loan from the bank, is established by Ex. M.
16. Rs. 1,000/- was remitted on 15.11.84 is
proved . The Manager sent a letter to the
appellant in I.D. No. 44/87 to submit his
explanation as to why action should not be
taken against him within 24 hours from the
date of receipt of the notice. He submitted his
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explanation. The appellant in I.D. no. 44/87
did not immediately report the missing of the
bag to the bank is made out by Ex. M 21. The
petitioner in I.D. No. 44/87 did not
immediately report the missing of the bag to
the bank is made out by Ex M 21 the
petitioners in I .D. No. 44/87 did not
immediately report the missing of the bag to
the bank, is made out by Ex. M. 21. The
petitioner in I.D. No. 44/87 remitted the
collection of Rs. 455 /- to the bank is
established by Ex. M. 22. The Manager sent a
confidential letter to the Regional Manger,
Southern Region, is supported by Ex.M. 23.
The Bank issued Show Cause Notice to the
Petitioner in I.D. No. 44/87 is proved by Ex.
M. 24. He submitted his explanation is proved
by Ex. M. 25. The bank published the notice in
Tamil News Paper is proved by Ex M 20 The
Petitioners in both the I.D.s demanded coupon
for Rs. 500/- and 1 000/- and signatures of
the Manger in the coupon. The Bank refused
to concede to the demand of the Commission
Agents. Ravi kumar was also a Commission
Agent and he committed several malpractice
and action was taken against him. The
Commission Agents and two staff of the b
demonstrated in front of the bank and
shouting vulgar slogans against the Dy.
General Manager is proved by the Evidence of
M.Ws 1 and 2. Admittedly there is no enmity
between the Commission Agents and M.Ws 1
and 2. The Petitioner in the two I.Ds and Ravi
Kumar, used vulgar words is proved by the
legal evidence of M.Ws 1 and 2, the petitioner
in both the ID were given warning and put on
notice about their misconduct. The petitioners
in both the I.Ds were given opportunities and
warnings to rectify their mistakes. The
termination of the petitioner in both the I.Ds is
legal. Even no enquiry enquiry as conducted, it
will not vitiate the order of dismissal is held in
1973 I LLJ 78 S.C. Workmen of Firestone Tyre
Rubber Co. Vs. Management. Even no enquiry
was conducted and the enquiry conducted is
defective, an opportunity must be given to the
employee to prove the charges and opportunity
must be given to the employee to evidence
control is held in the above cited case. In
these two I.Ds. opportunity was given to the
appellant and respondent to adduce evidence,
to prove the charge in this Tribunal. The
charge is proved by the evidence of M.Ws.
1and 2. There is no evidence contrary."
8. In Workmen of Motipur Sugar Factory (Private) Limited v.
Motipur Sugar Factory [(1965) 3 SCR 588] it was observed as
follows:
"It is now well-settled by a number of decisions
of this Court that where an employer has failed
to make an enquiry before dismissing or
discharging a workman it is open to him to
justify the action before the tribunal by leading
all relevant evidence before it. In such a case
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the employer would not have the benefit which
he had in cases where domestic inquiries have
been held. The entire matter would be open
before the tribunal which will have jurisdiction
not only to go into the limited questions open
to a tribunal where domestic inquiry has been
properly held (see Indian Iron & Steel Co. v.
Their workmen [[1958] S.C.R. 667] but also to
satisfy itself on the facts adduced before it by
the employer whether the dismissal or
discharge was justified. We may in this
connection refer to M/s Sasa Musa Sugar
Works (P) Limited v. Shobrati Khan [[1959]
Supp. S.C.R. 836], Phulbari Tea Estate v. Its
Workmen and Punjab National Bank Limited v.
Its Workmen. There three cases were further
considered by this court in Bharat Sugar Mills
Limited. v. Shri Jai Singh, and reference was
also made to the decision of the Labour
Appellate Tribunal in Shri Ram Swarath Sinha
v. Belaund Sugar Co. [[1954] L.A.C. 697]. It
was pointed out that "the import effect of
commission to hold an enquiry was merely this
: that the tribunal would not have to consider
only whether there was a prima facie case but
would decide for itself on the evidence adduced
whether the charges have really been made
out". It is true that three of these cases, except
Phulbari Tea Estate’s case were on
applications under Section 33 of the Industrial
Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the
tribunal for approval under Section 33 or on a
reference under Section 10 of the Industrial
Disputes Act, 1947. In either case if the
enquiry is defective or if no enquiry has been
held as required by Standing Orders, the entire
case would be open before the tribunal and the
employer would have to justify on facts as well
that its order of dismissal or discharge was
proper. Phulbari Tea Estate’s was on a
reference under s. 10, and the same principle
was applied there also, the only difference
being that in that case, there was an enquiry
though it was defective. A defective enquiry in
our opinion stands on the same footing as no
enquiry and in either case the tribunal would
have jurisdiction to go into the facts and the
employer would have to satisfy the tribunal
that on facts the order of dismissal or
discharge was proper.
9. Again in Delhi Cloth and General Mills Co.Vs. Ludh Budh
Singh [1973(3) SCR 29] this Court held as follows:
"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
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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."
10. In Workmen of Fire Stone Tyre Rubber Company v.
Management [1973(1)LLJ 78] it was inter alia held as follows:
"4. Even if no enquiry has been held by
an employer or if the enquiry held by him is
found to be defective, the Tribunal in order to
satisfy itself about the legality and validity of
the order, had to give an opportunity to the
employer and employee to adduce evidence
before it. It is open to the employer to adduce
evidence for the first time justifying his action,
and it is open to the employee to adduce
evidence contra.
(5) The effect of an employer not holding an
enquiry is that the Tribunal would not have to
consider only whether there was a prima facie
case. On the other hand, the issue about the
merits of the impugned order of dismissal or
discharge is at large before the Tribunal and
the latter, on the evidence adduced before it,
has to decide for itself whether the misconduct
alleged is proved. In such cases, the point
about the exercise of managerial functions
does not arise at all. A case of defective
enquiry stands on the same footing as no
enquiry.
(6) The Tribunal gets jurisdiction to consider
the evidence placed before it for the first time
in justification of the action taken only, if no
enquiry has been held or after the enquiry
conducted by an employer is found to be
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defective.
(7) It has never been recognised that the
Tribunal should straightaway, without
anything more, direct reinstatement of a
dismissed or discharged employee, once it is
found that no domestic enquiry has been held
or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of
the opportunity of adducing evidence for the
first time before the Tribunal to justify his
action, should ask for it at the appropriate
stage. If such an opportunity is asked for, the
Tribunal has no power to refuse. The giving
an opportunity to an employer to adduce
evidence for the first time before the Tribunal
is in the interest of both the management and
the employee and to enable the Tribunal itself
to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in
the enquiry conducted by an employer or by
the evidence placed before a Tribunal for the
first time, punishment imposed cannot be
interfered with by the Tribunal except in cases
where the punishment is so harsh as to
suggest victimization."
11. In view of the aforesaid position in law, the inevitable
conclusion is that the Division Bench of the High Court was
not justified in allowing the writ appeal. A wrong permission
granted to lead evidence and absence of acceptable evidence
are conceptually different. The Division Bench appears to have
been confused between the two concepts. There is no finding
recorded that the permission was wrongly granted. That being
so, the appeal deserves to be allowed, which we direct. No
costs.