Central Bank Of India vs Central Government Industrial ...
2003 Latest Caselaw 288 Bom

JUDGMENT

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

2. In the Departmental proceedings, initiated against the Respondent no.2-employee, charges were proved against him and the result thereof was issuance of an order 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 Respondent no.2, before the Chairman-cum-Managing Director of the Petitioner-bank, resulted into rejection thereof. This order passed by the Appellate authority is dated 20.11.1990.

4. After about four yearss gap, it was for the first time, the Respondent no.2 approached the Assistant Labour Commissioner(Central), Nagpur, challenging the order of Discharge from service. The proceedings being for conciliation and the conciliation having been failed, the matter was referred to the Central Government Industrial Tribunal, Jabalpur, for adjudication.

5. On having been noticed, the Respondent-bank appeared before the learned Presiding Officer of the Tribunal and opposed the case of the Respondent no.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 placed before the Court, and which is not disputed by the respondent, on November 5, 2001, the learned Presiding Officer of the Tribunal fixed the matter on January 11, 2002, for filing of Written Notes of Arguments on preliminary issues.

7. The matter thereafter appeared to have been transferred to Nagpur. However, instead of deciding the matter on a preliminary issue, the learned Presiding Officer 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 same time. The learned Presiding Officer of the Tribunal also observed that the preliminary issue as regards fairness of the enquiry will not be decided separately or independently first.

8. A separate application was moved by the petitioner-bank for framing and hearing of the preliminary issue about the fairness of the Departmental Enquiry. However, the learned Presiding Officer of the Tribunal, rejected the same by his order dated September 16, 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, assailing the same scathingly pointing out that the learned Presiding officer of the Tribunal committed a grave error in not deciding the preliminary issue first, and further that not looked into the judgments cited before him in proper perspective.

9. Shri Almelkar, learned counsel for the petitioner vehemently contended that before the learned Presiding Officer of the Tribunal, a decision of the Supreme Court, reported in 1975 (II) LLJ 379 in the matter of The Cooper Engineering Ltd. Vs. P.P.Mundhe, was specifically cited, pointing out that the Supreme Court specifically observed and held that when the domestic enquiry is challenged on the ground that the principles of natural justice are not followed and/or on the ground that it is not fair and proper, it is the duty of the Tribunal to frame a preliminary issue as to whether the domestic enquiry is vitiated. Shri Almelkar, further pointed out that a copy of the unreported decision 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 before the learned Presiding Officer of the Tribunal for his perusal, pointing out that the judicial decisions in the instant type of matter, it is always necessary to frame a preliminary issue and to decide the same first before entering into the merits of the case.

10. Shri Almelkar, learned advocate, further pointed out that the second decision of the learned Single Judge of this court, referred to above, was also against identical point and the order under challenge in that writ petition also happened to have been passed by the very same learned Presiding Officer of the Tribunal. Shri Almelkar, therefore, contended that in spite of the order having been placed before the learned Presiding Officer of the Tribunal, the Presiding Officer did not take cognizance thereof and passed the order rejecting the application and thereby ordering to deal with the matter on merits as well as preliminary issue simultaneously. According to Shri Almelkar, the learned Presiding Officer of the Tribunal should not have lightly brushed aside the decision of the Supreme Court as also the judgment passed by the learned Single Judge of this Court. According to Shri Almelkar, an apprehension is entertained by the litigant that the order passed by the Supreme Court as also by this Court is being looked into at with all disdain. This, according to Shri Almelkar, definitely a matter of serious concern and could be an approach, damaging the whole judicial discipline. Shri Almelkar, argued, and in the opinion of this Court rightly, that the judgment of the High Court is binding on the Central Government Industrial Tribunal, unless and until the said judgment is either modified or reviewed or is otherwise upset by the Apex Court of the country. I do not find that there can be any other view on this point. Even assuming for the sake of arguments that the learned Presiding Officer of the Tribunal did not look into the judgment of the High Court with all that seriousness, it was definitely not open for the learned Presiding officer not to not have considered the judgment of the Supreme Court, reported in the matter of The Cooper Engineering Vs. P.P.Munde, (cited supra).

11. Shri Marpakwar, learned counsel appearing on behalf of the Respondent no.2-employee, in all his good gestures and fairness, accepted the contentions made by the learned counsel for the petitioner, pointing out that the Judgments, referred to above, were no doubt, cited before the learned Presiding Officer of the Tribunal. Shri Marpakwar, further argued that he had also expressed before the Presiding Officer that that though he was representing the respondent no.2, it was difficult for him to not to support these two judgments which were cited, suggesting thereby that in the fitness of things it was incumbent on the part of the learned Presiding Officer of the Tribunal to have followed the judgment of the Supreme Court as also of the High Court, thereby deciding the matter on preliminary issue as regards fairness of the Departmental enquiry.

12. It will not be out of place to mention here that the learned Presiding Officer of the Tribunal for rejecting the application of deciding the preliminary issue first, tried to rest his reasoning on the decision reported in 1996 (2) CLR, 234 in the matter of National Council for Cement and Building Materials Vs. State of Haryana & Ors., as also on the decision of D.P.Maheshwari Vs. Delhi Administration and Ors, reported in 1983 LAB. I.C. 1629. After having gone through the abovesaid two judgments, this Court has to form the opinion that the learned Presiding Officer of the tribunal, did not read the judgments in appropriate perspective, rather in proper perspective. As argued by Shri Almelkar, the above said two judgments could not be said to be of any help for the decision on the point of preliminary issue in the present matter. It would be appropriate to observe here that so far as regards D.P.Maheshwari Vs. Delhi Administrations case is concerned, the point involved therein was as regards : as to whether the petitioner therein was a workman or not; and in the second matter, i.e. in the matter of National Council for Cement and Building Materials Vs. State of Haryana & Ors, (cited supra), the point was : whether the National Council could be said to be an industry ?. In the opinion of this Court, in fact, the above said judgments could not be said to be apt for the decision on the point involved in the matter in hand.

13. It would have been appropriate for the learned Presiding Officer of the Tribunal to have seen that the point in the matter in hand was as regards : as to whether the Departmental Enquiry was fair and proper? The learned Presiding Officer should have kept in mind that if the point as regards fairness of the enquiry is held against the employer holding that the enquiry could not be said to be fair and proper and it vitiated on that count, then in that case it was yet open for the petitioner/employer to have proved the charges in the Court or before the Tribunal against the employee concerned, but definitely with the leave from the Court or the Tribunal. It is for that purpose also necessary for the employer to have sought for such permission while put in its defence at the first opportunity. Needless it is to mention that such a permission is already sought for through the defence put by the petitioner-bank in the instant matter. In paragraph 31 of the Written Statement filed on behalf of the petitioner-bank, a specific request in precise words is made by the petitioner-employer. Keeping in view the provisions of law in that respect, the learned Presiding Officer of the Tribunal should have seen that in case the point of preliminary issue is held against the employer, it is yet open for the employer to prove the charges before the Court/Tribunal by adducing appropriate relevant evidence. It is, therefore, necessary for the judicial authority as well as quasi-judicial authority to be alert and cautious on the point while passing the orders that any hasty decision by the judicial authority or quasi-judicial authority whether was likely to prejudicially affect the case of a party or likely to have its adverse effect on the very decision of the case.

14. So far as regards the present case is concerned, it is to be observe that this Court, while deciding the Writ Petition No.2228 of 2001, in the matter of Pradeepkumar Vyas Vs. Ministry of Defence and Anr, has set aside the order of the very same Presiding Officer of the Tribunal, wherein the very same or identical point was the subject matter for consideration. This Court, while setting aside the order of the learned Presiding Officer of the Tribunal, in that matter, specifically remanded the matter back to the learned Presiding Officer of the Tribunal, directing to frame a preliminary issue and thereafter to decide the same. It is really surprising that the learned Presiding Officer of the Tribunal in spite of having been made aware about the order passed by this Court on the same point, appeared to have not given due weightage to the order passed by this Court, which, in the opinion of this Court, is definitely objectionable and against the norms of judicial discipline. In fact, it is a matter which will have to be looked into very seriously by the concerned Department of the Government.

15. Taking into consideration the approach of the learned Presiding officer of the Tribunal, in brushing aside the judgments of the Supreme Court as also of this Court, and rejecting the application for framing and deciding the preliminary issue, in the opinion of this Court, is definitely not only harmful, but causing damage to the harmony in judicial hierarchy. The learned Presiding Officer, in fact, should have seen that so long as the judgment of the High Court is not either overruled or set aside, it is binding on all the judicial and quasi judicial subordinate to the High Court. They have no liberty, whatsoever, either to neglect it, if brought to the notice, or to act against the same, that too even in slightest manner. Any deviation therein it would not only amount to insubordination, but in a given case could even amount to contempt of Court, which have to be looked at with all seriousness.

16. Since both the judgments were brought to the notice of the learned Presiding Officer of the Tribunal, and in spite of that, since no appropriate care is taken to follow the same, the conduct on the part of the learned Presiding Officer of the Tribunal, cannot be said to be an inadvertent mistake on his part or ignorance about the judgments, but it could be looked at as an intentional attempt not to take cognizance of the judgments either of the High Court or of the Supreme Court. In the opinion of this Court, this is one of the serious acts of judicial indiscipline. If the learned Presiding Officer would have tried to differentiate the judgments in a crouches manner, and language, then there would not have been scope for this Court to make the above said observations. If at all in the opinion of the Presiding Officer of the Tribunal, the judgments cited before him were not applicable, but when the point has been fully covered, there was hardly any scope for the learned Presiding Officer of the Tribunal to deviate therefrom. The approach and way of conduct of the matter by the learned Presiding Officer of the Tribunal, in the opinion of this Court, therefore, is not only against the well-known judicial norms of judicial discipline, but may project a situation, which ultimately may result into chaos. It is the responsibility of all the judicial and quash judicial officers to respect and to follow the judgments of the superior courts fully.

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

18. In the circumstances, and relying on the judgment of the Supreme Court cited supra as also the judgment of the brother Judge, V.M.Kanade, J. (cited supra), this Court quash and set aside the impugned orders dated 12.09.2002, as also the order dated 16.09.2002, and the matter is remanded back to the learned Presiding Officer of the tribunal with a direction to frame an appropriate preliminary issue and decide the same at the earliest possible, as per the convenience of the learned Presiding Officer of the Tribunal.

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

20. Registry of this Court is directed to forward a copy of this Judgment to the concerned Ministry of the Central Government.