Delhi High Court
Dy. General Manager, Central Bank ... vs The Presiding Officer, C.G.I.T. ... on 1 November, 2006
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 18.11.1997 passed by Cental Government Industrial Tribunal, New Delhi.
2. Briefly, the facts are that the respondent workman was working as a 'daftry' with the petitioner bank. He absented from the job without sanctioned leave for about 686 days prior to December, 1986. He absented for 126 days without sanctioned leave unauthorisedly in the year 1987. A show cause notice was issued to him about his above unauthorised absence on 26.8.1988 to which he gave no reply. Since unauthorised absence constituted minor misconduct under para 19.8(a) of Bipartite settlement, vide order dated 16.11.1988, a penalty of 'censure' was imposed on the respondent. A notice dated 27.8.1988 was issued to the respondent for his unauthorised absence from 5.4.1988 to 14.5.1988 and from 19.5.1988 to 11.7.1988. The respondent did not reply to the show cause notice as well and vide order dated 16.11.1988, a second penalty of 'censure' was imposed upon him. This did not deter the respondent from committing further misconduct of unauthorised absence and respondent absented from duties unauthorisedly from 18.7.1988 to 3.10.1988. He was given a show cause notice dated 16.12.1988 for this unauthorised absence and he was asked to give written explanation. He did not submit written explanation and a third penalty of 'censure' was imposed upon him vide order dated 6th February, 1989.
3. The unauthorised absence as per Bipartite Settlement is a minor misconduct attracting minor penalty. However, repeated and habitual unauthorised absence is a major misconduct. Para 19.5(f) of Bipartite Agreement reads as under:
19.5 By the expressions "gross misconduct" shall be meant any of the following acts and omissions on the part of any employee:
(f) Habitual doing of any act which amounts to 'minor misconduct' as defined below, 'habitual' meaning a course of action taken or persisted in notwithstanding that at least on three previous occasions Censure or Warnings have been administered or an adverse remark has been entered against him.
4. Looking into the fact that repeated notices and penalty of 'censure' had no affect on the respondent and the respondent had already been given the punishment of 'censure' thrice, a charge sheet dated 24.2.1989 was served upon the respondent alleging habitual unauthorised absence. In the charge-sheet details of unauthorised absence and the penalities imposed were mentioned and it was alleged that respondent was in the habit of remaining unauthorisedly absent from the bank. He was again unauthorisedly absent from the bank w.e.f. 3.10.1988 onwards and despite show cause notice no explanation was received from him. It was decided by the petitioner to hold a departmental enquiry into the habitual unauthorised absence which constituted a major misconduct and Mr. S.K. Abbi, Chief Officer was appointed as enquiry officer. Enquiry was conducted by the enquiry officer and he gave his report dated 23.9.1989. A copy of report was furnished to the respondent and a show cause memo dated 5.12.1989 was issued to him proposing the punishment of dismissal from service. The Disciplinary Authority gave a personal hearing to respondent on 29.12.1989 and thereafter, considering his stand being unsatisfactory and looking into his conduct, awarded the punishment of dismissal vide order dated 23.2.1990 without notice. He preferred a departmental appeal against the order before the Appellate Authority. The appeal was dismissed vide order dated 17.11.1990. He thereafter raised an industrial dispute to the following effect:
Whether the action of the management of Central Bank of India in dismissing the services of Shri Sansar Singh, Daftry w.e.f. 23.2.1989 is justified? If not, to what relief the workman is entitled to?
5. The Tribunal came to the conclusion that the bank had violated clause 3II(ii) of Bipartite Settlement which reads as under:
Where an employee is charged with a minor misconduct and an enquiry is not held on two previous occasions, an enquiry shall be held in respect of the third occasion.
6. The Tribunal observed that charge-sheet dated 24.2.1989 referred to three minor misconducts of previous occasions for which the workman was awarded the punishments of 'censure'. All the three punishments of 'censure' were given without an enquiry having been held. Since in terms of above clause an enquiry was to be held in case of third occasion, the charge-sheet itself was invalid and therefore, no enquiry could be held into major misconduct on the basis of invalid charge-sheet and the punishment of dismissal could not be imposed on the basis of invalid charge-sheet and consequent enquiry.
7. The order of Tribunal is challenged on the ground of perversity by the petitioner. It is submitted, that the Tribunal transgressed its jurisdiction. Tribunal was not supposed to decide whether the earlier punishment of 'censure' was a valid punishment or not. The Tribunal was to decide about the legality of the punishment of dismissal considering the fact that respondent was dismissed from service after an enquiry. The validity of charge-sheet was not in issue.
8. It is submitted by the counsel for petitioner that the habitual unauthorised absence of the respondent was writ large on his conduct. The enquiry was conducted into his habitual unauthorised absence since he had been thrice penalised for unauthorised absence. The workman had not replied to the show cause memos asking him to explain his unauthorised absence. The penalty of 'censure' was imposed on the basis of admissions. The Tribunal went wrong in holding that the third penalty of censure could not have been imposed without holding an enquiry. This was not the jurisdiction of the Tribunal nor the terms of reference. The enquiry could not have been held even otherwise, since the respondent had not replied to show cause notice and not refuted his unauthorised absence.
9. On the other hand the Counsel for the respondent has stated that the Tribunal could very well decide whether the charge-sheet was valid and legal in order to decide that the termination was valid or not, charge-sheet was the basis of the enquiry by which respondent was terminated. If the very basis or root was invalid, the enquiry and the dismissal has to be invalid.
10. Clause 19.5 of Bipartite Settlement dated 19th October, 1966 defines the gross misconduct, sub Clause (f) of the settlement is again reproduced for convenience:
Habitual doing of any act, which amounts to "Minor misconduct', as defined below, "Habitual" meaning a course of action taken or persisted in notwithstanding that at least on three previous occasions censure or warnings have been administered or an adverse remarks has been entered against him.
11. A perusal of above clause would show that in case of habitual misconduct, it is to be seen that the minor misconduct persisted at least on three occasions and 'censure' or 'warning' have been administered or an adverse remarks has been entered against him. If this condition is satisfied the charge-sheet could not have been said to be invalid. In fact the charge sheet was given to the respondent at the fourth instance of misconduct of unauthorised absence. The third incidence of misconduct was in respect of unauthorised absence from 18.7.88 up to 3.10.88 about which notice was served on 16.12.88. The charge-sheet further stated that the respondent remained unauthorisedly absent from office even after 3.10.1988 till the service of charge-sheet i.e. till 24.2.1989 and the misconduct was continuing at the time when the charge-sheet was served. Thus, there is no doubt that the respondent in terms of Bipartite Settlement had committed habitual misconduct of unauthorised absence and because of this habitual misconduct a charge sheet was served and an enquiry was conducted and the respondent was dismissed.
12. The industrial dispute raised by the respondent was about his dismissal after conducting enquiry in the charges of habitual unauthorised absence. He had not challenged the earlier punishments of 'censure' awarded to him vide orders dated 16.11.1988 and 6.2.1989. He challenged his dismissal order on 23.2.1990. The Tribunal instead of considering whether the principles of natural justice were violated or not and whether the enquiry was conducted in a fair manner or not went on to decide the issue whether the censure awarded to the respondent vide order dated 6.2.1989 was a valid 'censure' or not. I consider Tribunal grossly transgressed its jurisdiction and decided issue which was not referred to the Tribunal. In State Bank of Bikaner and Jaipur v. O.P.Sharma JT 2006 (11) SC 286, Supreme Court observed as under:
The respondent herein was a casual workman. He had worked with the appellant bank from 6.8.1994 till 17.11.1994. His services were terminated. An industrial dispute was raised by him culminating in a reference made by the appropriate Government to the Industrial Tribunal which reads as under:
Whether the action of the management of SBBJ, Jaipur in terminating the services of Workman Shri Om Prakash Sharma S/o Shri Sita Ram Sharma w.e.f. 19/11/1994 and employing another junior workman Shri Vijay Kumar in his place without giving any opportunity of employment in violation of Section 25H of ID Act, 1947? If not, what relief the workman is entitled?
Before the Labour Court, a contention was raised as to whether the provisions of Section 25H of the Industrial Disputes Act, 1947 ('the Act' for short) and Rules 77 of the Industrial Disputes (Central) Rules, 1957 (ID Rules) have been violated, as one Vijay Kumar was said to be junior to him and was said to have been appointed in his place. A finding of fact as arrived at that the respondent failed to prove that after his termination of services Vijay Kumar was employed in his place in violation of Section 25H of the Act or otherwise. A finding, however, was arrived at that, no seniority record was maintained, as is required under the Rules. The appellant was, thus, found to have violated Rule 77 of the ID Rules. A further finding was arrived at that Rule 77 being mandatory in nature, the respondent was entitled to be reinstated in service with 50% of back wages.
The Industrial Court, it is well settled, derives its jurisdiction from the reference. {See Mukand Ltd. v. Mukand Staff & Officers' Association JT 2004(3) SC 479}. The reference made to the CGIT specifically refers to only one question, i.e., "Whether any illegality was committed by the management in giving appointment to one Vijay Kumar in place of the respondent in violation of Section 25H of ID Act, 1947?" Non-maintenance of nay register in terms of Rule 77 of the ID Rules was, thus, not in issue. Before the Industrial Court, the parties adduced evidence. An attempt was made by the respondent herein to show that one Vijay Singh was appointed, although the name of one Vijay Kumar appeared in the reference. An attempt was also made by the respondent to show that Vijay Kumar and Vijay Singh are one and the same person. In fact, one voucher was produced which was allegedly issued in the name of one Vijay Sharma. The said contentions of the respondent are denied and disputed by the appellant herein.
13. Supreme Court set aside the judgment of High Court and the award and allowed the SLP. There is another aspect of the matter. An enquiry can be held only when a show cause notice is served upon an employee about misconduct and he disputes or gives an explanation, which in the eyes of management is not satisfactory. Where a person does not dispute the misconduct and gives no reply to the show cause notice and gives no explanation about unauthorised absence, rather continues his unauthorised absence, no enquiry can be held in such a case. I consider that where there is admission of facts, direct or indirect, and the misconduct is not disputed by the delinquent, the enquiry is not necessary and the punishment can be awarded.
14. It was submitted by the counsel for respondent that if this Court comes to a conclusion that the award was bad since the Tribunal had transgressed its jurisdiction, the matter should be remanded back to the Tribunal for deciding the validity of enquiry and the legality of punishment imposed on the respondent.
15. I hereby set aside the award and the case is remanded back to the Tribunal. The Tribunal is directed to consider the matter afresh keeping in view the decision of this Court. Parties to appear before the Tribunal on 21st November, 2006. Writ petition stands disposed of accordingly.
