State Bank Of India vs Ram Pratap
2011 Latest Caselaw 2020 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 7th April, 2011

+                   W.P.(C) 3532/2005 & CM No.2750/2005 (for stay)

         STATE BANK OF INDIA                                  ..... Petitioner
                     Through:             Mr. Rajiv Kapur, Advocate.

                                       versus
         RAM PRATAP                                        ..... Respondent

                            Through:      Mr. L.K. Garg, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                       No

2.       To be referred to the reporter or not?                No

3.       Whether the judgment should be reported               No
         in the Digest?

RAJIV SAHAI ENDLAW

1. Though writ petitions of prior to the year 2000 are pending

consideration but this writ petition is taken up for hearing out of turn in the

circumstances herein after appearing.

2. The challenge in this petition is to the award dated 1 st October, 2004 of

the Industrial Tribunal on the following reference:-

"Whether the action of the Management of the State Bank of India in dismissing Shri Ram Pratap from service w.e.f. 15.05.1991 was legal and justified? If not, to what relief(s) the workman is entitled to and from what date?"

3. The Industrial Tribunal answered the reference as under:-

"The action of the management of the State Bank of India in dismissing Shri Ram Pratap from service w.e.f. 15.05.1991 was neither legal nor justified. The workman is entitled to be restored to the position prior to the date of the award of punishment. The management may reopen the enquiry and conclude it after giving reasonable opportunity to the workman and following the principles of natural justice."

4. Notice of the petition was issued. Even though a perusal of the order

sheet does not disclose that there was any stay of the operation of the award

but the counsel for the respondent workman nevertheless filed application

under Section 17B of the Industrial Tribunal Act, 1947 and which could be

filed only in case where there was a stay of the award of reinstatement. The

said application was allowed and the counsel for the respondent workman

states that he has been receiving 17B wages.

5. A perusal of the award shows that the only finding returned therein and

on the basis of which the reference has been answered, is of the departmental

inquiry conducted by the petitioner prior to the order of dismissal of the

respondent workman being vitiated. It has as such been enquired from the

counsel for the petitioner whether the petitioner had not sought any

opportunity to prove the alleged misconduct before the Industrial Tribunal.

The counsel for the petitioner invites attention to the reply/written statement

filed before the Industrial Tribunal and in para 3 of the preliminary objections

whereof the petitioner had stated as under:-

"That though the enquiry was conducted free, fair and proper, the Bank reserves its rights to lead any evidence in case this Hon'ble Tribunal comes to the conclusion that the enquiry was not proper in any manner."

6. The counsel for the petitioner contends that notwithstanding the

aforesaid, the Industrial Tribunal after holding departmental inquiry to be

vitiated did not grant any opportunity to the petitioner to prove misconduct

before the Tribunal.

7. It has next been enquired from the counsel for the petitioner whether

the petitioner has taken such ground in the writ petition. The counsel for the

petitioner invites attention to para 6 of the writ petition at page 19 of the

paper book where the ground to the said effect has been taken.

8. Though the respondent workman has filed a reply to the petition but

has not controverted the aforesaid paragraph of the petition.

9. The counsel for the respondent workman however today contends that

if the petitioner was desirous of proving misconduct before the Industrial

Tribunal, the petitioner ought to have got the issue, regarding the inquiry

treated as a preliminary issue and without the petitioner pressing so before the

Industrial Tribunal, the Industrial Tribunal was not required to grant any such

opportunity to the petitioner.

10. The record of the Industrial Tribunal requisitioned in this Court has

been perused. The order sheet does not show that any issue whatsoever was

framed. The Industrial Tribunal after giving an opportunity on 20th

September, 1994 for admission/denial of documents, adjourned the matter

straightway for affidavits by way of evidence. A perusal of the order sheet

however does show that on 22nd October, 2002 the counsel for the petitioner

herein had pointed out to the Industrial Tribunal that the preliminary issue

regarding the fairness and validity of the inquiry had not been framed.

However the Industrial Tribunal observed that since both the parties had

adduced their evidence and the case was at the stage of final arguments, there

was no justification for framing the preliminary issue at that stage.

11. Thus it cannot be said that the matter was not brought to the attention

of the Industrial Tribunal. However the Industrial Tribunal after reserving

orders on the arguments heard on the aspect of validity of the inquiry

proceeded to answer the reference instead of giving an opportunity to the

petitioner to prove misconduct before the Industrial Tribunal.

12. The aforesaid would show that there has been an irregularity in the

procedure before the Industrial Tribunal, sufficient to vitiate the award

impugned in this petition. The petitioner cannot be condemned unheard.

13. The counsel for the respondent workman at this stage states that the

award gives an opportunity to the petitioner to again hold departmental

inquiry and the petitioner ought to have proceeded with the said inquiry.

14. However the right of the petitioner to prove misconduct before the

Industrial Tribunal could not have been taken away by so providing and the

irregularity committed by the Industrial Tribunal cannot be overlooked for

the said reason.

15. The counsel for the respondent workman next contends that after such

long lapse of time it would not be possible to lead evidence.

16. Though there may be some truth in the said submission but a perusal of

the order sheet of the present proceedings also shows that not much anxiety

has been shown by the respondent workman himself. As aforesaid, the

respondent workman, notwithstanding the fact that there was no stay, did not

approach the petitioner for joining duty as directed by the Industrial Tribunal.

The counsel for the respondent workman however states that the respondent

workman could not have joined the duty because he was under suspension

and as per the award would have remained under suspension. Even if that be

so, the petitioner ought to have then claimed suspension allowance and not

17B wages. Moreover, the delay occasioned in the aforesaid circumstances

can be compensated by fixing the time for the Industrial Tribunal to now

conclude the proceedings and by providing that the respondent workman

shall continue to be entitled to 17B wages till the conclusion thereof. To

compensate the respondent workman for the delay, it is further directed that

the respondent workman shall not be required to refund the difference if any

between last drawn wages and minimum wages being paid to him under 17B

order and is relieved of the undertaking filed by him in this Court.

17. The petition is accordingly allowed to the aforesaid extent only. The

matter is remanded to the Industrial Tribunal for granting an opportunity to

the petitioner to lead evidence on misconduct. The parties to appear before

the Industrial Tribunal on 28th April, 2011. The file of the Industrial Tribunal

requisitioned to this Court be sent back forthwith. The Industrial Tribunal to

pass an award on or before 30th September, 2011. Needless to state that if any

party remains aggrieved therefrom, shall have remedies in law. It is further

clarified that the petitioner shall be entitled to impugn the finding of the

Industrial Tribunal regarding inquiry in a fresh challenge if any made to the

award. The petition is disposed of in the aforesaid terms with no order as to

costs.

18. The counsel for the respondent workman at this stage has offered a

settlement proposal to the counsel for the petitioner. It is stated that the

respondent workman is ready for a punishment lesser than that of dismissal.

The counsel for the petitioner states that the business of the Bank being of

trust and the charge against the respondent workman being of fraud, there is

no possibility. Reliance in this regard is placed on the judgment dated 6 th

April, 2011 of the Apex Court in CA No.2957/2011 titled SBI v. Hemant

Kumar.

19. In view of the aforesaid, no purpose would be served in adjourning the

matter for the said reason also.

Dasti.

RAJIV SAHAI ENDLAW (JUDGE) 7th April, 2011 pp