Bombay High Court
Icici Bank Ltd vs Babasaheb Dhanpal Gat (Desai) And ... on 21 June, 2016
Bench: S.C. Gupte
904-wp-3066-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO. 3066 OF 2016
ICICI Bank Ltd. ...Petitioner
V/s.
Babasaheb Dhanpal Gat (Desai) & Ors. ...Respondents
ig WITH
WRIT PETITION STAMP NO. 10310 OF 2016
....
Mr. Ratnakar Pai a/w Mr. Mayur Bhojwani and Ms. Prangana Barua,
i/b. Manilal Kher Ambalal and Co., for the Petitioner in WP No. 3066
of 2016 and Respondent in WP (ST.) No. 10310 of 2016.
Mr. Manoj Patil for Respondent in WP No. 3066 / 2016 and Petitioner
in WP (ST.) No. 10310 / 2016.
.....
CORAM : S.C. GUPTE, J.
DATED : 21st June, 2016
JUDGEMENT :
This writ petition, filed under Articles 226 and 227 of the
Constitution of India, challenges awards passed by the Labour Court at
Kolhapur on 13th February, 2014 ( Part-I Award) and 15th May, 2014
(Final Award). The awards are passed on a reference made under the
Industrial Disputes Act, 1947, in pursuance of a demand notice issued
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by the first respondent workman, complaining of illegal termination
from the services of the petitioner.
2. The respondent workman was employed initially with Sangli
Bank (now merged with the petitioners) at its branch in Tasgaon
District, Sangli, and was working as an Agricultural Assistant. ( Sangli
Bank was merged with the petitioner under a scheme of amalgamation
w.e.f. 19th April, 2007). The Petitioner's case is that on 5th December,
2002, a staff member at the branch, one Dilip Hingmire, arranged a
party, where liqour and food were served. This party was attended by
six colleagues of Hingmire. After this party, except Hingmire and one
peon all others left for their respective residences. Thereafter,
Hingmire and the Peon, one B. N. Khokade, came at Hotel 'Pranav
Garden' where the first respondent workman was present. On the next
day, the first respondent handed over to the bank keys which
Hingmire was supposed to have with him. Hingmire was, thereafter,
not traceable for 2 to 3 days, after which his dead body was found in a
well at village Kawathe Ekand, near about 6 to 7 kilometers from
Tasgaon. Thereafter, on 23rd December, 2002 the first Respondent
was arrested by police in connection with Hingmire's death. A news
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item to that effect was flashed near about in all Marathi newspapers
circulating within Sangli District.
3. Taking note of this fact, which according to the petitioner
tarnished its image and was prejudicial to its interest, the petitioner
suspended Khokade and the first respondent on 7th February, 2003. A
charge sheet was issued against the respondent workman on 11 th
February, 2003, in accordance with the bi-partite settlement between
the petitioner and its employees, alleging two misconducts, namely, (i)
acting prejudicially to the interest of bank, and (ii) tarnishing /
damaging the image of the bank in the eyes of public. The charge
sheet was replied by the respondent workman, denying the fact that
he was in any way involved with the death of Hingmire. An enquiry
was, thereupon, initiated against the respondent workman. The
enquiry officer submitted his report on 7th August, 2003, holding the
respondent guilty of the misconduct complained of. The petitioner
thereupon issued a notice seeking an explanation from the respondent,
which was furnished by the respondent, denying the findings recorded
by the enquiry officer. A show cause notice was thereafter issued by
the petitioner to the respondent, proposing his dismissal from its
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services. By its order dated 30th October, 2003, the petitioner
terminated the services of the respondent. A departmental appeal
preferred by the respondent against the order of termination was
dismissed by the Appellate Authority by its order dated 23rd
September, 2004. In course of time, the Criminal Prosecution initiated
by the State in respect of the death of Late Hingmire, resulted into
acquittal of the respondent workman from the charge of murder. The
Respondent, thereafter, issued a demand notice on 30th October, 2015
requiring the petitioner to reinstate him, which came to be rejected.
The rejection was followed by a conciliation proceeding and on its
failure, the present dispute was referred by the appropriate
government to the Labour Court, under the Industrial Disputes Act,
1947.
4. The Labour Court held in its impugned Part-I Award that the
enquiry conducted against the workman was against the principles of
natural justice and the award was perverse. The petitioner was
granted liberty to justify its action of dismissal before the Court.
During further proceedings of the reference, despite having the
opportunity to justify its action by leading appropriate evidence, the
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petitioner did not produce any evidence. The petitioner and its
advocate, after attending a few dates and applying for adjournments,
did not remain present on the subsequent dates before the Labour
Court. In the premises, by its Final Award dated 15 th May, 2014, the
Labour Court declared the termination of the service of the respondent
workman as illegal and directed the petitioner to reinstate him in his
original post with continuity of service and consequential service
benefits with 30% back wages.
5. Both the petitioner and the respondent workman are in
challenge from that order. The petitioner challenges both the Part-I
Award and the Final Award in the present petition, whilst the
respondent challenges the refusal of the Labour Court to grant him full
back wages in the Final Award.
6. It is submitted by Mr. Pai, learned counsel for Petitioner, that the
impugned Part-I Award is perverse inasmuch as it did not consider the
fact that the respondent workman had failed to discharge the burden
of proof by examining himself and showing that the enquiry held
against him by the petitioner was not fair or proper. Learned counsel,
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relying upon the decision of Allahabad High Court in the case of "V.K.
Raj Industries Vs. First Labour Court, Kanpur, and Ors. reported in
II-LLN Page No. 498" and the decision of our court in the case of
"Narang Latex and Dispersions Pvt. Ltd. Vs. S.D. Suvarna (Mrs.) &
Anr. reported in 1194 II-CLR 51" following that decision, submits
that the respondent workman has to discharge the burden of proof
that his termination was not proper and it would be for him to show
that the domestic enquiry was not fair or proper and therefore, the
order of dismissal was wrongful. There is no quarrel with this
proposition. That, however, does not mean that in every case, the
aggrieved workman must lead evidence before the court in
justification of his case that the domestic enquiry was not fair or
proper or that the findings of the enquiry officer were perverse and
therefore, the order of dismissal was wrongful. It is quite possible, in a
given case, on the basis of materials which are on record and which
are not disputed by the employer, that the enquiry may be shown to
be demonstrably unfair and improper, and / or that the finding of the
enquiry officer may be assailed as perverse, rendering the order of
dismissal wrongful.
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7. The Labour Court, in the present case, has come to the finding of
an unfair and improper enquiry and perversity of the findings of the
enquiry officer on the basis of material on record, which was not
disputed by the parties. In the first place, the Labour Court has noted
that the charge sheet was not issued to the respondent workman for
his involvement in the murder of late Hingmire, and yet the enquiry
officer placed heavy reliance on the evidence of the petitioner's
witnesses seeking to connect the respondent workman to the offence
of murder. The Labour Court, in the second place, has noted that
though the respondent workman offered himself for cross-
examination, treating his statement in reply as his defence, he was not
cross-examined by the petitioner and yet his unchallenged evidence
was not considered by the enquiry officer. The Labour Court has
further noted that the charges of misconduct levelled against the
respondent were not regarded as "gross misconduct" under the
applicable bi-partite agreement. Neither tarnishing of the bank's image
nor acting prejudicially to the interest of the bank in itself was a
misconduct which could sustain a major penalty of dismissal. Whereas
tarnishing of the bank's image was not a serious misconduct at all,
acting prejudicially so as to qualify as a gross misconduct ought to
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result into, or involve the bank in, a serious loss, implying thereby
that the alleged act of the delinquent employee must be related to the
day to day transactions of the bank and cause serious loss to the bank
and not to an incident which happens outside the bank's premises and
is unconnected with the duties of the employee. The enquiry officer, in
the premises, has observed that the charges levelled against the
delinquent employee were outside the purview of the bi-partite
agreement and could not sustain the action of termination of service of
the respondent by the petitioner. In the premises, the Labour Court
has held that the enquiry was not fair or proper and the findings
recorded by the enquiry officer were perverse. The impugned award of
the Labour Court can be said to be based on a reasonably possible
view on the basis of uncontested material on record. It cannot be
termed as unsustainable or assailed on the ground that no evidence in
support of his case of an unfair or improper enquiry or perverse
findings, was led by the workman before the Court.
8. Secondly, it is submitted by Mr. Pai that Part-I Award declared
by the Labour Court was not published as required by section 17 of the
Industrial Disputes Act, 1947. It is submitted that an interim award
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comes within the definition of 'award' under section 2(b) of the
Industrial Disputes Act, 1947. Learned counsel relies on a judgment of
the Supreme Court in the case of "Management of Hotel Imperial,
New Delhi and Ors Vs. Hotel Worker's Union, AIR 1959 SC 1342".
In this case, the Supreme Court held that even an interim
determination of any question relating to the industrial dispute by way
of an interim award would have to be published as required under
Section 17 of the Act. Learned Counsel also relies on the judgment of
the Supreme Court in the case of "Sirsilk Limited Vs. Government of
Andhra Pardesh, AIR 1964 SC 160" in support of his submission that
the provisions of Section 17 are mandatory in nature.
9. No doubt as held by the Supreme Court in this case, the
provisions of section 17 are mandatory. The question, however, is
what is the effect of non publication of a Part-I Award. Are further
proceedings in the reference for determination of the Final Award
thereby rendered illegal? It is submitted that Sections 17 and 17-A of
the Industrial Disputes Act,1947 provide that if the award is not
published, it cannot be enforced. Firstly, when the Labour Court
considers the reference further, after declaring Part-I Award, it cannot
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be said to be thereby enforcing Part-I Award. Secondly, and in any
event, the petitioner not only had an adequate notice of the award but
did actually participate in further proceedings of the reference without
raising any objection concerning non-publication of Part-I Award. It is
too late in the day for the petitioner to challenge the Final Award on
the basis that Part-I Award, which preceded it, was not published
under Section 17 of the Industrial Disputes Act, 1947. The objection
appears to be a clear afterthought and not a bonafide plea. There is no
merit, thus, in the contention of Mr. Pai.
10. The judgment of the Supreme Court in the case of "Grindlays
Bank Ltd. Vs. Central Government Industrial Tribunal and Ors.
reported in SCC 1980 page no. 420" has no bearing on the facts of
our case. In the case before the Supreme Court, the question was,
whether under section 17-A of the Industrial Disputes Act, the award
had become enforceable. The court held that the proceedings with
regard to a reference under Section 10 of the Act were deemed to be
concluded only after expiry of 30 days from the publication of the
award. Till then, the tribunal continued to retain jurisdiction over the
dispute referred to it. This observation has really no bearing on the
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facts of our case. The question here is not whether the tribunal retains
jurisdiction or has powers to entertain any application, which was the
context in which the Supreme Court considered the question of
publication of an award and its enforceability after the expiry of 30
days from such publication under Section 17-A in Grindlays Bank case
(Supra). The question here is, whether the Labour Court could have
gone ahead with further inquiry in the reference post Part-I Award and
rendered its Final Award. As I have observed above, this the Labour
Court could certainly have done in the facts of the case.
11. Mr. Pai further submits that assuming without admitting that the
Labour Court could proceed with further inquiry in the reference
without publication of Part-I Award, the Final Award passed by the
Labour Court is in violation of Rule 10-B (9) read with Rule 22 of the
Industrial Disputes (Central) Rules, 1957. The submission is that these
Rules require the Labour Court or the State or National Industrial
Tribunal, as the case may be, to be first satisfied that the absence of
the party was not on justified grounds, before proceeding ex-parte
against it. It is submitted that without considering the question of
sufficient cause for the absence of the party, the Labour Court cannot
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proceed ex-parte. It is submitted that in any event, there must be an
order recording the court's decision to proceed ex-parte, before
actually proceedings to hear the matter ex-parte. Learned counsel
relies on the judgment of the Supreme Court of "Anil Sood Vs.
Presiding Officer, (Labour Court II) reported in (2001) 10 SCC
Page No. 534", in this behalf. In the present case, as the Roznama of
the proceedings before the Labour Court, as also the relevant pursis
and the order passed thereon indicates, after Part-I Award was
declared by the Labour Court, the petitioner and its advocate were
absent on two dates, i.e. on 13th February, 2014 and 28th February,
2014; On the next date, i.e. 15th March, 2014, the petitioner applied
for time to lead evidence to justify the order of dismissal; On this
request, the Labour Court was pleased to grant time as a last chance;
Once again, on 10th April, 2014, the petitioner further sought time;
That application was rejected by the Court and the matter was posted
on 24th April, 2014, for evidence of the petitioner. On that date, the
petitioner and its advocate were absent. It is in these circumstances
that the Labour Court passed an order closing the evidence of the
petitioner and posted the matter for evidence of the respondent. The
Respondent chose not to lead any further evidence and instead made
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his submissions. The matter was before the Labour Court on 2 nd May,
2014, 8th May, 2014, 13th May, 2014 and 15th May, 2014, on all of
which dates the petitioner and its advocate remained absent. On 15 th
May, 2014, the Court declared its Final Award. On these facts, it
cannot possibly be suggested that the petitioner did not have adequate
opportunity to present its case before the Labour Court post Part-I
Award. There is no case at all of any sufficient cause for the absence of
the petitioner and its advocate. It cannot be suggested that this is a
case where the petitioner is visited with an award without notice and
that the award is a nullity for that reason, which was the case in "Anil
Sood Vs. Presiding Officer, (Labour Court-II) reported in (2001) 10
SCC Page No. 534". There is no merit in the contention that the
Labour Court, in all cases, is bound to first consider the matter of
sufficiency of reasons for the absence of a party and proceed ex-parte
only after passing an order declaring its intent to proceed ex-parte.
Rule 10-B(9) read with Rule 22 does not suggest any such legal need.
12. Lastly, it is submitted by Mr. Pai that the Final Award passed by
the Labour Court is liable to be set aside even on merits. It is
submitted that the scope of scrutiny of a domestic enquiry before the
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Labour Court is limited. The court has to merely see whether there is
some evidence to support the finding; whether the evidence is such as
a prudent and reasonable man would accept; whether the approach of
the enquiry officer is judicious; and whether the rules of natural justice
have been followed. If these tests are satisfied, it is submitted, there
can be no interference with the subjective opinion of the enquiry
officer at the hands of the Labour Court. Learned counsel, in this
behalf, relies on a decision in the case of "Suryabhan Maruti Avhad
Vs. Mahindra & Mahindra Limited reported in 2011-III-LLJ-339
(Bom)".
13. As noted above, the enquiry officer's report cannot be sustained
as a possible conclusion supported by evidence on record. The material
cannot support the charge of either tarnishing the bank's image or
acting prejudicially to its interest. Besides, the charges, even if proved,
are not capable of sustaining the punishment meted out by the
petitioner to the respondent. The domestic enquiry, which was held in
pursuance of the bi-partite agreement between the parties, does not
permit treatment of the alleged charges as gross misconduct.
Considering that the domestic inquiry did not involve the question as
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to whether or not the delinquent employee was guilty of any criminal
charge and, in any event, the respondent having been acquitted of the
criminal charges by a competent court of law, it cannot be suggested
that merely because news in connection with an alleged offence
(which cannot be said to have been committed by the respondent) was
flashed in the newspapers, the bank's image can be said to be
tarnished in the eyes of public or that the respondent's act is in any
way prejudicial to the interest of the bank. The respondent's case is
that he did not commit any offence and accordingly, did secure an
acquittal from the Court. The respondent has no control over any news
published in newspapers and cannot be held responsible for such
news. In any view of the matter, thus, the finding of the enquiry officer
and the action of the petitioner based thereon cannot be sustained.
14. There is, accordingly, no interference called for with the
impugned awards of the Labour Court. The petition is, accordingly,
dismissed. There shall be no order as to costs.
15. In the companion petition, the respondent workman has
challenged the Final Award of the Labour Court to the extent that it
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denies 70% of back wages to him. The Labour Court has come to the
conclusion that the respondent did not initially plead in his statement
of claim that he was unemployed during the period of his termination;
this fact was pleaded for the time by way of an amendment effected in
the year 2013. The Labour Court has further noticed that the workman
did not even depose to the fact of his unemployment on oath before
the Court. Considering, however, the circumstances (i) that there was
no denial from the other side about the want of his gainful
employment or a case that he had sufficient income to run his family
and (ii) that he was illegally terminated alleging his involvement in
the murder of a colleague, the Labour Court held the respondent to be
entitled to receive 30% of back wages. The initial burden of proof that
the workman remained unemployed is on the workman, keeping in
mind the provisions of Section 106 of the Evidence Act, 1872 (see
"Novartis India Limited Vs. State of West Bengal and others
reported in (2009) 3 SCC"). Learned counsel for the workman relies
on the judgment of the Supreme Court in the case of "Jasmer Sing Vs.
State of Haryana & Anr. reported in 2015 Legal Eagle (SC) 24" to
contend otherwise. The Supreme Court has held in that case that if
the employer wants to deny back wages to the employee or contest his
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entitlement to get consequential benefits, it is for him to specifically
plead and prove that during the intervening period, the employee was
gainfully employed and was getting the same emoluments. Denial of
back wages to an employee, who has suffered due to an illegal act of
the employer, would amount to indirectly punishing the concerned
employee and rewarding the employer by relieving him of the
obligation to pay back wages. It is true that the workman cannot be
expected to bear the legal burden of proving that he was not gainfully
employed during the relevant period. That would be putting a burden
to prove a negative fact on him. At the same time, the initial onus
must be discharged by him about his not having been gainfully
employed by pleading and stating on oath that he had no other
employment to sustain him and his family. Once such initial onus is
discharged by him, the onus would shift onto the employer to prove
the factum of the workman's gainful employment elsewhere. No
infirmity can be found, thus, with the approach of the Labour Court in
this behalf. As for the assessment of the quantum of back wages
awarded, namely, 30%, the same cannot be said to be unreasonable or
absurd.
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16. In the premises, there is no merit in the companion petition and
the same is also dismissed. There shall be no order as to costs.
( S.C. GUPTE ,J. )
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