Delhi State Co-Operative Bank ... vs R.C. Yaduvanshi And Anr.
1987 Latest Caselaw 515 Del

JUDGMENT

P.K. Bahri, J.

(1) A writ of certiorari has been sought by the petitioner for quashing the order dated 6/12/1986, passed by Shri R.C. Yaduvanshi, Presiding Officer, Labour Court, by which he had granted an interim relief requiring the petitioner to pay to the Workman, namely, Mehar Singh respondent No. 2 the full wages with effect from the date of the application i.e. 10/10/1985, till the final adjudication of the reference pending before him.

(2) Facts, in brief, are that on 24/1/1975, respondent No. 2 was appointed as a temporary clerk when his services were terminated on 15/7/1976 and on 11/5/1977, he was re-appointed as a temporary clerk. On the basis of certain allegations of misconduct a committee was formed by the Management of the petitioner and the said committee submitted its report to the Establishment Committee of the petitioner-Bank which then appointed one Shri C.L. Sehgal, an Inquiry Officer. A charge sheet was issued and on the basis of the report of the Inquiry Officer, respondent No. 2 was dismissed. An appeal was filed which was also dismissed. On 10/8/1982, a reference was made to the Labour Court to determine the legality or otherwise-of the dismissal of the Workman. The proceedings are still pending before the Labour Court and some evidence has been already recorded. On 10/10/1985, the Workman moved an application for grant of interim relief which was opposed by the petitioner and vide the impugned order the Labour Court has given prima facie conclusion that the inquiry held against the Workman was vitiated as admittedly the witnesses have been examined by the Inquiry Officer in the absence of the Workman. The Labour Court has also given certain views regarding the power of the Establishment Committee to institute the disciplinary proceedings inasmuch as certain directors of the petitioner-Bank have been found to be not legally entitled to continue as directors. Elaborate arguments have been addressed by the learned counsel for the petitioner to show that the opinion of the Labour Court that out of the 16 directors of the Management 12 have been disqualified and thus the Establishment Committee had no power to institute disciplinary proceedings, is not correct. He has argued that even if there was some illegality in the appointment of certain directors even then by virtue of doctrine of defacto, any act done by the said directors would be valid in the proceedings of the nature being gone into by the Labour Court. The Labour Court has to yet give the final findings with regard to the reference which is still pending before it. So it would not be useful to go into detailed arguments advanced before me as to whether the disciplinary proceedings had been validly instituted against the Workman and inquiry proceedings are valid and the punishment proposed is justified or not. The fact remains that prima facie the Labour Court, in my opinion, has rightly come to the conclusion that the inquiry proceedings were vitiated for the simple reason that there was breach of rules of natural justice inasmuch as admittedly the witnesses were examined by the Inquiry Officer in the absence of the delinquent Workman, The matter, however, does not end with this prima facie view of the inquiry proceedings because the petitioner is not debarred in law from proving as a fact before the Labour Court that the Workman was guilty of misconduct and he deserved the penalty of dismissal. Counsel for the petitioner has rightly pointed out that if there has been no inquiry at all then the Labour Court could go into the question whether the Workman was guilty of misconduct and in that case if the Labour Court comes to the conclusion that the penalty of dismissal is to be imposed and then the said penalty can be imposed from the date of such finding of the Labour Court but if the disciplinary inquiry is held to be defective and the Labour Court comes to the conclusion on merits from the evidence to be led before the Inquiry Officer that the Workman is guilty of misconduct and deserves to be dismissed, then the said dismissal could relate back to the date when the Workman was actually dismissed by the Management. As a matter of fact, these legal propositions enunciated by the learned counsel for the petitioner were not challenged by the learned counsel for the respondent.

(3) I may refer to the case law on this point as cited before me. In Ranjit Singh Tomar v. Mis. Hindustan Export & Import etc. ILR(1983) I Delhi 802, it has been held by Avadh Behari, J. that it is now settled by a series of decisions that the employer can justify its action of terminating services of his employee by leading evidence before the Tribunal. This applies equally to cases of total absence of inquiry and defective inquiry. It was also laid down in this very judgment that the principle of doctrine of relation back is that where the employer passes an order of termination whether without holding an enquiry or after holding an enquiry which is found to be defective, the order of termination would be effective from the date it was passed by the employer if it is held to be justified by the Tribunal on the evidence before it. The observations of the learned Judge that the orders of termination, which may be justified before the Labour Court by leading independent evidence, would relate back even in cases where no inquiry had been held, have been vehemently challenged by the learned counsel for the respondent. In P.H. Kalyani v. M/s Air France, Calcutta, , the doctrine of relating back was discussed and it has been laid down by the Hon'ble Supreme Court that if the inquiry is defective for any reason the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made. The observations made in M/s Sasa Musa Sugar Works (P) Ltd. Shobrali Khan, (1959)Supp 2SC.R.836,were explained by the Supreme Court with the remarks that in the cited case the Management had held no inquiry acd thus the dismissal of the employee approved by the Tribunal could have taken effect from the date of the award. So the observations made by Avadh Behari, J. that even if no inquiry had been made and still if the Management is able to prove before the Labour Court that the Workman is guilty of misconduct and deserves dismissal and the Labour Court approves the same and even then the dismissal would relate back to the original order of dismissal passed by the Management, appears to have been too broadly stated. However, I need not consider this aspect of the case in any large detail because the question which arises in this matter is very short one ; whether the Workman was entitled to have an interim relief during the pendency of the reference before the Labour Court ? It is not disputed before I me that Labour Court had the jurisdiction to grant interim relief, in case the Labour Court was to come to a prima facie conclusion that perhaps the Workman did not deserve punishment of dismissal in view of the facts disclosed before the Labour Court alleging misconduct against the Workman, and that the inquiry held against the Workman was prima facie defective. On this aspect of the case, the Labour Court was right in coming to the conclusion prima facie that the inquiry was defective. The Management is yet to lead evidence before the inquiry Officer to prove that the Workman was guilty of misconduct. I have gone through the charge sheet and I find that even if those charges are proved before the Labour Court by leading evidence even then prima facie these charges may not persuade the Lab our Court to approve the extreme penalty of dismissal of the Workman. So, in the facts and circumstances, the Workman was entitled to have the interim relief.

(4) The remaining question which is to be decided by me is whether the Labour Court was justified in granting full wages to the Workman when Workman is not rendering any services to the Management. In such like cases 50% of the wages ought to have been granted as is the norm. In Hotel imperial, New Delhi & Others and Hotel Workers' Union, (1959) 2 Llj 544,it was observed by the highest court that ordinarily the interim relief should not be the whole relief that the Workmen would get if they succeed finally. The Supreme Court granted half the amount. Similar was the view expressed by the Supreme Court in Delhi Cloth & General Mills Co. Ltd. v. Rameshwar Dayal & Another, (1960-61) 19 F.J.R. 315. But in this case the Tribunal had passed the order of reinstatement or payment of full wages as interim relief. It was held by the Supreme Court that till the matter is finally decided the Workman should not be directed to be reinstated as an interim relief because that would amount to giving the Workman at the outset the relief to which he would be entitled only if the employer failed in the proceedings.

(5) Counsel for the petitioner has also drawn my attention to the order made by a Division Bench of this Court in Civil Writ No. 2686/86, Delhi State Co-operative Bank Ltd. & Others v. Jagdish Singh, made on 24/2/1987, in which again 50% of the wages plus allowances have been allowed as the interim relief. Counsel for the respondent has, however, argued that if 50% of the wages are to be allowed as interim relief then the Workman should be allowed in addition full allowances as are available to Workman who is suspended. He has drawn my attention to Delhi State Co-operative Bank Limited (Service Rules) which lays down in Rule 18 Sub-clause (viii) that during the period of suspension an employee shall be paid suspension allowance equal to 50% of his salary Along with full usual allowances. The Workman in the present case cannot be deemed to be under suspension. So, the aforesaid rule is not applicable. In the case of Delhi State Coop. Bank Ltd. (supra) 50% of the salary plus allowances have been granted as interim relief, so full allowances cannot be granted to the Workman as an interim relief, I, hence, allow the writ petition partly and modify the impugned order to the extent that the Workman shall be entitled to have 50% of the salary and allowances during the pendency of the reference before the Labour Court. The arrears shall be paid to the Workman within one month from today. The parties arc left to bear their own costs in this writ petition.