Delhi High Court
Vijaya Bank vs Ish Kumar Pruthi & Anr. on 14 December, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 8th December, 2017
Pronounced on: 14th December, 2017
+ W.P.(C) 9341/2004 & CM APP Nos.8330/2004, 1972/2005 and
6726/2014
VIJAYA BANK ..... Petitioner
Through: Mr. Rajesh Kumar with Mr.V.
G. Ramanan and Mr.G. K.
Singh, Advs.
versus
ISH KUMAR PRUTHI & ANR. ..... Respondents
Through: Mr.Siddharth Dutta, Mr.Kumar
Dushyant Singh and Mr.Mukul
Lather, Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
%
1 This writ petition challenges an Award, dated 18th March 2004,
passed by the learned Industrial Tribunal-cum-Labour Court, New
Delhi (hereinafter referred to "the learned Tribunal"), whereby and
whereunder the dismissal, by the petitioner-Bank, of the services of
the respondent-workman, has been quashed, and the respondent has
been directed to be reinstated with continuity of service, full back
wages and all other consequential benefits.
2 The respondent, while serving as clerk with the petitioner-Bank,
was issued a charge sheet, dated 1st August, 1992, proposing initiation
of disciplinary action against him, for having allegedly committed
"gross misconduct" within the meaning of clause 19.5 (j) of Chapter
XIX of the Bipartite Settlement, 1966, which, admittedly governed the
relationship between the Bank and its employees, and directing the
respondent to show cause thereagainst. The allegations in the said
charge sheet are reproduced, in extenso as under:-
"It is reported against you that you were in the habit of late reporting
for duty at the branch and leaving the office early without
completing the allotted work, despite being refused permission to do
so by the controlling authority. On such occasions when questioned
by Sri M.K. Haridas, the Branch Manager, you became furious and
behaved in an unruly, unsatisfactory, disorderly and riotous manner
on the premises of the branch. Particulars of such instances are
furnished below:
1) On 3.4.1991, you left the office early i.e. at 4.00 P.M. without
completing the allotted work even though your request for
permission was not considered by the Branch Manager. When the
Branch Manager instructed you to complete the work, you refused
and said that it would be completed next day only and you were
prepared for any action that would be taken on this count.
2) On 10.10.1991 you returned to the office after lunch break at
4 P.M. only. When the Branch Manager questioned about your late
coming, you spoke to him in an insulting manner in the presence of
staff members and also attempted to hit the Branch Manager with
telephone receiver. You also banged on the table with your hands
and also with the books lying on the table and questioned the
authority of the Branch Manager under which he called upon explain
you the reasons for your late coming after lunch recess. Further,
when the Branch Manager addressed a letter dated 12.10.1991
calling for explanation from you for the incident of 10.10.1991 you
refused to accept the letter and stated that it should be withdrawn
otherwise the Branch Manger face dire consequences.
3) On 1.4.1992 when you were about to leave the office at about
4 P.M. without permission and keeping the allotted year end work
pending and when the Branch Manager questioned your action, you
abruptly entered into the Branch Managers cabin in a furious mood
and questioned him saying whether the bank belonged to the
manager‟s father, thereby exhibited audacity and depravity towards
your superior. Thereafter you left the branch at about 4.10 P.M.
despite being refused permission by the Branch Manager.
4) You were also in the habit of remaining absent unauthorisedly
without getting prior permission/obtaining sanction of leave by
submitting leave application in accordance with the leave rules of the
bank, the details of which are given below:
From To
2.4.1992 10.4.1992
18.4.1992 2.5.1992
6.5.1992 29.5.1992
1.6.1992 17.6.1992
When you had reported for duty on 15.6.1992, the Branch Manager
having come to know that you had not submitting leave application
for your absence, called you into the cabin and instructed you to
submit the leave applications for the relevant periods alongwith
necessary medical certificates immediately. But you refused to do so
and stated that it would be done after the lunch break. Thereafter you
left the branch premises at about 2 P.M. and did not return to the
branch for the rest of the day. Therefore, the Branch Manager
addressed a letter dated 19.6.1992 informed you about your absence
and the incident of 25.6.1992. But you refused to accept the said
letter on 20.6.1992.
5) Again on 24.6.1992 you left the branch at about 2 P.M.
without obtaining Branch Manager‟s permission and completing the
allotted work and did not return to the Branch for the rest of the day.
Hence, the Branch Manager addressed a letter dated 24.6.1992
informing you about your unauthorisedly leaving the office at 2 P.M.
You not only refused to accept the said letter on 25.6.92 but also
questioned the authority of the Branch Manager and also started
abusing the Branch Manager in most vulgar, abusive and defamatory
language saying „Kutta, ****** and *******‟ (deleted in the
interests of propriety, being a vulgar expletive). You also called the
Branch manager to come out of his cabin and attempted to hit him,
but you were over powered by Mohinder Singh, the Armed Guard of
the Branch. However, on 25.6.1992, you took the letter dated
24.6.1992 without acknowledging it in the delivery book and later
destroyed it in the presence of Sri Gowda and Sri Mittal, staff of the
branch. In view of your above action, the copies of letters dated
19.6.1992 and 24.6.1992 were displayed on the notice Board. When
you came to know that those letters were displayed on the notice
board, you came out of the cash cabin and removed them from the
notice board unathorisedly.
6) It is alleged against you that on 30.6.1992 you followed Sri
M.K. Haridas the Branch Manager, on your scooter while he was
going home for lunch and kept tracking him till he reached a sub-
lane and attempted to dash him with your scooter and also blocked
the way. Thereafter when Branch Manager came back to the office
after lunch, you rushed into his cabin at about 3 P.M. and occupied
chair in front of the Manager‟s seat on the pretext of telephoning.
When the Branch Manager objected to as permission had not be
obtained, you stated that it was not the property belonging to the
managers father and started abusing; using words like "Kutta,
Harami". Further when the Branch Manger questioned why you had
obstructed his path on the way home, you rose and hit the manager
with the telephone receiver on his head with the result the telephone
receiver was broken. You are started hurling the objects which were
lying on the table, like paper weight, pin box, pen stand, etc.,
towards the Branch Manager. The Branch Manager while trying to
avoid being hit by the objects, you started hitting him by holding his
shirt collar causing injury on the left arm of the Branch Manager. In
the meanwhile, Sri Mohinder Singh, the Armed Guard entered the
cabin and caught hold of you with one hand as he was holding the
gun in the other hand, You even tried to snatch the gun from the
armed guard but was overpowered by him and taken out of the cabin.
However, again you tried to re-enter the cabin from the other door
but was prevented by Mr. Rajendra Kumar, a neighbouring shop
keeper and other staff members of the branch. Even after that you
attempted to hurl a lunch box lying on the counter towards the
Branch Manager. You also threatened the life of the Branch Manager
and swore that the matter would be taken care outside and the
manager would not be permitted to stay in Rohtak.
Thus, your above acts such as reporting late to the office/leaving the
office early without the permission of the controlling authority,
remaining absent unauthorisedly without obtaining sanction of leave
in terms of leave rules of the bank, refusing to accept the official
communications meant for you, behaving in an unruly, riotous and
disorderly manner on the premises of the bank and hitting the Branch
Manager with telephone receiver thereby causing injury to him
amount to misconduct in terms of provisions of the Bipartite
Settlement, 1966."
3 On receiving the abovementioned charge sheet, the respondent-
workman addressed a representation, dated 12th September 1992, to
the petitioner-Bank, requesting for permission to examine the relevant
records, on the basis of which the charges against him had been
framed and for supply of photocopies thereof to enable him to submit
his statement of defence thereto.
4 The petitioner-Bank responded, vide communication dated 25th
August, 1992, stating that the charge sheet issued to the respondent
clearly set out the incidents, dates, time and place, relating to the
charges levelled against him, and that these were sufficient to make
the respondent understand its basis and to think of his line of his
defence. As such, it was stated that the question of allowing him to
peruse/examine the relevant records and of supply of copies thereof,
at that stage, did not arise. The communication went to state, however,
that copies of the relevant records, on the basis of which the
allegations/charges had been leveled against him, would be made
available to the respondent, and all reasonable opportunities would be
given to him, to examine the same, "at the appropriate time". The
respondent, was, therefore, advised to submit his statement of defence
within three days of receipt of the said communication.
5 The respondent apparently addressed a second representation,
dated 7th September 1992, to the petitioner bank, requesting the
petitioner to reexamine the matter on merits, and allow an opportunity,
to the respondent to peruse/examine the relevant records and
documents and to be supplied copies thereof.
6 Predictably, this second communication, dated 7 th September
1992, also met with the same fate as the earlier representation dated
12th August 1992. Vide a communication dated 29th September 1992,
addressed to the respondent, the Bank reiterated its stand that the
charge sheet issued to the respondent was sufficiently explicit
regarding his lapses and was enough to enable him to "think up a line
of defence." The request for being allowed perusal/examination of the
relevant record and documents, it was reiterated, did not arise at that
stage, but would be made available to him sufficiently in advance of
commencement of a regular departmental enquiry so that he could
prepare his defence effectively.
7 No written statement or defence was, in the circumstances, filed
by the respondent.
8 On 18th November 1992, an Inquiry Officer (hereinafter referred
to as "IO") was appointed to enquire into the charges against the
respondent-workman.
9 The first hearing in the inquiry was fixed on 14th May 1993.
However, as notice had not been served on the respondent for the said
date, the proceedings were adjourned to 26th May, 1993.
10 On 26th May 1993, the respondent presented himself during the
hearing and submitted that he had not been given any copy of the
charge sheet dated 1st August 1992. Accordingly, a copy of the said
charge sheet, along with some other documents, were handed over to
the respondent. The inquiry proceedings were adjourned to 7 th June
1993.
11 The proceedings were, thereafter, adjourned from 7th June 1993
to 7th July 1993, and, thereafter, to 20th July 1993. On 20th July 1993,
as the respondent was not present, the IO deferred the sitting till 1.30
PM on the same day. At 1.30 PM, it was observed that the notice sent
to the respondent-workman through special messenger had been
returned undelivered, as he was not present at his residence. The IO,
thereupon, asked the Presenting Officer (hereinafter referred to as
"PO") to summon his first witness for examination and to tender the
listed documents. Documents were submitted by the PO and exhibited
by the IO. The inquiry proceedings were continued after lunch.
MW-1 Ramlal and MW-2 S.P.Kahtpalia were examined, and the
inquiry was, thereafter, adjourned to 21st July 1993.
12 On 21st July 1993, MW-3 Hari Dass, MW-4 Mahinder Singh,
MW-5 Gajraj Singh and MW-6 Vinod were examined. Thereafter, the
Management‟s evidence (hereinafter referred to as "ME") was closed
and the proceedings were concluded. 15 days time was sought by the
PO to submit his brief, which was allowed by the IO. The proceedings
were adjourned to 5th August, 1993.
13 On a request made by the respondent-workman, the IO, acting
under directions of the disciplinary authority (hereinafter referred to as
"DA") reopened the inquiry proceedings, vide a communication dated
5th August 1993 addressed to the respondent, and allowed the
respondent to cross examine the Management‟s witnesses (hereinafter
referred to as "MWs") and to produce witnesses/documents, if any, in
his defence, on 19th August, 1993 at 11AM .
14 The inquiry proceedings held on 19th August 1993 and 20th
August 1993 are of considerable significance in the present matter.
The respondent was represented in the said proceedings by a Defence
Representative (hereinafter referred to as "DR"). On 19th August 1993,
the DR requested, at the outset, for being provided all exhibited
documents to prepare his defence. The following documents were,
thereupon, handed by the PO to the DR, on instructions of the IO (as
set out in the record of proceedings of that date):
"(i) Investigating report dated 11.7.92 of Sh. A. Vinod Marked as
ME-2.
(ii) Copy of the Charge Sheet No.PER:IRD:CS:67:92 dated
1.8.92 issued to Sh. Ish Kumar Pruthi which was given to the
CSE on 7.6.93 which is marked as ME-1.
(iii) The Statement submitted by Mr. M.K. Haridas the then
Branch Manager to the investigating Officer Marked as ME-3.
(iv) Statement submitted by CSE to the investigating Officer
marked as ME-4.
(v) For numbers Photographs of BH‟s Cabin.
(vi) Copy of the Attendance Register of June and July 92."
15 The DR, thereupon, requested for being provided the Annexures
of ME, which included as many as thirteen statements of various
witnesses cited by the management of the petitioner.
16 It is clear, therefore, that the number of documents handed over,
to the DR of the respondent during the proceedings on 19 th August
1993, were substantial. Even so, the IO initially granted only one
hour‟s time to the DR to go through the said documents and,
thereafter, on the insistence of the DR granted time, to him, till the
next day, fixing the next hearing at 9.30AM on the said date i.e, 20th
August 1993.
17 On 20th August 1993, the respondent submitted, at the very
commencement of proceedings at 10 AM, that the DR was not in a
position to attend the proceedings, as his child was unwell, and that he
had received the said information, thereof telephonically at about
8.30 PM on the previous day. He submitted that his DR had
nevertheless, assured that he would make all possible arrangements to
be present before the commencement of inquiry proceedings.
Considering these facts, the IO adjourned the session by two hours,
"to provide an opportunity for the DR to come from Rohtak".
18 The proceedings were resumed at 12.30PM. The DR had still
not arrived, and the respondent handed over a letter, written by the DR
intimating his inability to be present in the proceedings. The PO
objected, stating that all the MWs had come and that the respondent
could, if he so chose, just cross-examine them. The IO, thereupon
directed the respondent to cross-examine the MWs, on which the
respondent submitted that he was unaware of the proceedings of cross-
examination. Accordingly, the respondent requested that another date
be fixed, for him to be able to cross-examine the MWs. The IO,
thereupon, stated that if the respondent was unable to cross-examine
the MWs, he could take the assistance of any of his colleagues in the
branch, further stating that no further adjournment would be allowed
for the said purpose. The workman, thereupon, reiterated his request
for an adjournment, pointing out that his DR was unable to come as
his child was unwell. Request and repartee continued, for some time,
in this manner, where-after the workman agreed to change his DR and
requested for another date. The IO refused to accede to the request and
pronounced that, as the respondent was not interested in cross-
examining the MWs, the PO was requested to produce any other
witnesses/ documents. The PO stated that he did not desire to do so,
whereupon the proceedings were concluded and the PO was requested
to submit his brief within 15 days.
19 The IO, thereafter, submitted his inquiry report dated 22nd
November, 1993, containing the following findings.
"(i) Charge No.1 is proved as discussed in Para No.9 which
constitutes minor misconduct under sub-clause (b) of clause
19.7 of chapter XIX of the Bipartite Settlement 1966.
(ii) Charge No.2 is proved as discussed in para 10 in respect of
unauthorised absence from 1/6/92 to 17/6/92. However, no
evidence were produced to prove the unauthorized absence of
the CSE from 2/4/92 to 10/4/92, 18/4/92 to 2/5/92 and 6/5/92
to 29/5/92.
(iii) Charge No.3 in respect of refusal of the CSE to receive
official communications, which amounts to willful
insubordination and disobedience of lawful and reasonable
orders of his official superiors has been proved. But, no
evidence were produced to show that the CSE did not
complete the allotted work vide para 11.
(iv) Charge No.4 is proved as discussed in para 12 which
constitutes gross misconduct under sub-clause (e) of clause
19.5 of Chapter XIX of the Bipartite Settlement 1966.
(v) Charge No.5 is proved as discussed in para 13 which
constitutes gross misconduct under sub-clause (j) of clause
19.5 o Chapter XIX of the Bipartite Settlement 1966."
20 The above findings, of the IO, were accepted by the DA, who
proposed, on the basis thereof, imposition, on the respondent, of the
penalty of dismissal from service with immediate effect and
communicated the said decision, along with the copy of the Inquiry
Report, to the respondent, calling for his response thereto. The
respondent-workman submitted a representation, to the effect that, the
proceedings against him, had been conducted in violation of the
principles of natural justice. He was given a hearing, by the DA, on
23rd August 1994, on which occasion the said submission was
reiterated.
21 Ultimately, the DA imposed, on the respondent, the penalty of
dismissal from service with immediate effect, with an order dated 9th
September 1994.
22 The respondent contested the said punishment, by raising an
industrial dispute, which was referred, by the Central Government
Industrial Tribunal, Chandigarh under Section 10 of the Act which
was subsequently, transferred to the learned Central Government
Tribunal, Delhi (hereinafter referred to as "the learned Tribunal") with
a letter dated 11th/12th August 1997. The term of reference, as drawn
up by the Central Government while referring the matter read thus:
"Whether the action of the management of Vijaya Bank New Delhi
in dismissing Shri Ish Kumar Pruthi, clerk of Vijaya bank, Rohtak
Branch, is legal and justified? If not, to what relief the said Workman
is entitled and from what date?"
23 Statement of Claim was filed by the respondent before the
learned Tribunal, on 8th September, 1997 praying for setting aside of
the order dismissing him from service and, consequently seeking his
reinstatement with back wages. The petitioner filed his written
statement in response thereto. The respondent filed his rejoinder
thereto.
24 On the basis of the pleadings of the parties, the following issues
were framed:
"1. Whether the domestic enquiry conducted against the workman is
fair and proper?
2. As in the term of reference?"
25 After setting out, in detail, the specifics of the inquiry
proceedings that had taken place, the learned Tribunal decided issue
No.1 in favour of the respondent, holding that the inquiry proceedings
were vitiated on account of violation of the principles of natural
justice. The findings of the learned Tribunal, on this issue as contained
in paras 9 and 10 of the impugned Award may be reproduced as
under:
"9. ... Thereafter, the E.O. gave his enquiry report on 22.11.93.
Ultimately the punishment order of dismissal was passed. After
perusal of the enquiry proceedings, I find that the E.O. did not allow
proper and better opportunity to the workman/ CSE to cross-examine
the witness and produce his defence evidence. Documents were also
not provided to him well before time despite repeated requests. The
E.O. did not allow adjournment on the request of the CSE and even
if the proceedings were adjourned it was either for the same day or
the next day. It shows that the E.O. as not acting properly, legally
and in accordance with the principles of natural justice. Although the
E.O. has allowed 15 days and 10 days time twice to the P.O. to
submit his brief but he did not allow such a long time to the E.O. at
any time for the reasons best known to the E.O. It is also worth to be
mentioned that despite directions of the disciplinary authority the
enquiry proceedings were again concluded within 2 days only on
20.8.93 although enquiry report was given on 22.11.93 i.e., after
expiry of more than 3 months from the date of conclusion of the
enquiry. It also shows that despite consuming sufficient time in
giving his enquiry report the enquiry officer did not allow sufficient
time to the CSE to participate in the enquiry, cross-examine the
management‟s witnesses and adduce his own evidence. Copy of the
enquiry report was also not given to the workman.
10. In view of the above discussions, I find that the enquiry
proceedings were not conducted fairly and properly. The E.O. seems
to have been biased from very beginning. He never allowed proper
and sufficient time and opportunity to the CSE to participate in the
enquiry proceedings and for cross-examination of the management‟s
witnesses and adduce his own defence evidence which was clearly
against the principles of natural justice and has resulted into
miscarriage of justice and caused prejudice to the CSE. It has
therefore vitiated the enquiry proceedings. The Disciplinary
Authority and the Appellate Authority did not consider this fact.
Hence, the enquiry proceedings cannot be justified. Issue No.1 is,
therefore, decided in negative."
26 Even though the issue of the manner in which the inquiry
proceedings had been conducted, were thus decided by the learned
Tribunal, against the petitioner and in favour of the respondent, the
petitioner still had the right to lead evidence, before the learned
Tribunal, to establish that the alleged misconduct had, in fact, been
committed by the respondent-workman, as held in, inter alia,
Karnataka State Road Transport Corporation v Lakshmidevamma,
(2001) 5 SCC 433.
27 The learned Tribunal, however, did not extend, to the petitioner-
Bank, the said opportunity, on the ground that no request had been
made by it, therefor. Para 11 of the impugned Award which, so holds,
is reproduced as under:
"It is worth to be mentioned that no request has been made by the
management to adduce any evidence in support of the charges
leveled against the CSE in case the Issue No.1 is decided in negative.
Therefore, I find no jurisdiction to give any opportunity to the
management to adduce any more evidence to prove charges against
the workman."
28 Proceeding from the above findings, the learned Tribunal held
that the evidence on record, relied upon by the IO who held against the
respondent-workman, could not be relied upon, in view of the fact that
the proceedings against the workman were vitiated for non compliance
of the principles of natural justice. In these circumstances, the learned
Tribunal opined that the findings of the IO were liable to be
categorized as perverse and based on surmises and conjunctures.
Resultantly, it was held that the order of punishment passed against
the respondent-workman, was baseless, not having been preceded by a
valid and proper legal inquiry. The learned Tribunal, therefore,
quashed the said order and directed reinstatement of the respondent
workman in service with continuity of service, full back wages and all
other consequential benefits.
29 The petitioner Bank has filed the present writ petition before
this Court, challenging the impugned Award dated 18th March 2004.
30 I have heard Mr. Rajesh Kumar, learned counsel appearing for
the petitioner-Bank and Mr. Siddharth Dutta, learned counsel
appearing for the respondent-workman, and have bestowed my
anxious consideration to the material on record, and the submissions
advanced at the Bar.
31 Mr. Rajesh Kumar, appearing for the petitioner-Bank, submitted
that the inquiry proceedings, against the respondent, had been
conducted in due compliance with the principles of natural justice and
that more than sufficient opportunity had been given to him. He drew
my attention to the fact that, on 20th August 1993, the respondent had
first sought an adjournment on the ground that his DR‟s child was not
well, stating that he had received information, in this regard, the
previous evening. When, however, the matter was taken up two hours
later, it was pointed out that the respondent had mysteriously produced
a letter, written by his DR, expressing his inability to attend the
proceedings. Mr. Rajesh Kumar seriously questioned the possibility of
such a letter having materialized, within two hours between the first
and second sittings of the IO, and sought to raise a presumption that
the letter was fabricated, and that the entire story of illness of the DR‟s
child was false.
32 He further relied on para E in the counter affidavit filed by the
respondent workman, in which there is an averment to the effect that
the letter of the DR, had been handed over to him, by the DR at 8.30
PM on 19th August 1993. Mr. Rajesh Kumar, submitted that, had the
said letter been received by respondent workmen at 8.30PM on 19 th
August 1993, as stated in the counter affidavit filed before this Court,
there was no explanation as to why he did not produce the said letter
when the proceedings commenced before the IO on 20th August 1993,
and produced it only at 11AM. This, too in his submission, indicates
that the adjournment, on 20th August 1993, had been sought by the
respondent by concealing facts. He, therefore, submits that the IO was
wholly justified in rejecting the said request and in concluding the
proceedings on the said date.
33 Mr. Rajesh Kumar has also sought to submit that, in the counter
affidavit filed before this Court, the respondent was misstating facts
and, in this connection, he draws my attention to the statement, in sub
para (e) of para 4 of the counter affidavit, in which it is stated that
"respondent no.1 requested for a short date for a day or two and also
apprised the inquiry officer that his DR will definitely come within
one or two days". Mr. Rajesh Kumar points out that there was no such
assurance given to the IO, by the respondent, on 20 th August 1993, as
the record of the proceedings held on that date would clearly show. In
fine, on the issue of grant of adequate opportunity to the respondent,
Mr. Rajesh Kumar points out that the respondent had been given six
adjournments in the inquiry proceedings and that, therefore, the IO
was entirely justified in refusing any further adjournment on 20th
August 1993.
34 Without prejudice to the said submission, Mr. Rajesh Kumar
asserts that the learned Tribunal was unjustified in not extending, to
his client, the opportunity to prove the charges against the respondent-
workman, merely for the reason that no request, to that effect, had
been made. He submits that the mandate of law is that, once the
inquiry is held to have been invalidly conducted, the Labour
Court/Industrial Tribunal is required, necessarily to afford an
opportunity to the Management to prove the charges against the
workman by leading evidence, whether the request in that regard, is
made by the Management or not. As such, he submits that the learned
Tribunal erred in not extending the said opportunity to his client
simply because his client may defaulted in making a request to that
effect. Finally, Mr. Rajesh Kumar submits that, charges against the
respondent-workman being undisputedly serious, he shold be allowed,
even at this stage, an opportunity to prove, before the learned Tribunal
the charges against the respondent-workman.
35 Mr. Rajesh Kumar relied on following decisions in support of
his submissions:
Chairman-Cum-Managing Director, Coal India Limited v. Ananta
Saha, (2011) 5 SCC 142, S.C; Girotra v. United Commercial Bank
(Uco Bank), (1995) Supp (3) SCC 212, Tata Oil Mills Co. Ltd. v.
Workmen AIR 1965 SCC 155; Rajender Kumar Dixit v.
Management of Hindustan Times Ltd., Hindistan Times Ltd. v.
Rajender Kumar Dixit, 2013 SCC Online Del 4781; Uttar Pradesh
State Electricity Board v. Laxmi Kant Gupta, (2009) 16 SCC 562.
36 Per-contra, Mr. Siddharth Dutta, learned counsel appearing for
the respondent, submits that the entire inquiry against his client, was
biased. He emphasized the fact that, after handing over to the DR,
voluminous documents on 19th August 1993, the IO gave him only an
hour‟s time to peruse the same and that, on the DR insisting, less than
24 hours time was given, the inquiry being re-fixed for the morning of
the very next date. He submits that the IO signally erred in relying on
the evidence of the MWs without allowing his client a reasonable
opportunity to test the same by cross examination, and that this
illegality vitiates the inquiry proceedings in their entirety. Even on 20th
August 1993, he would submit that the bias of the IO, was apparent as
he adjourned the hearing only by two hours, to enable the DR to arrive
at Rohtak. He points out that it was impossible for anyone to travel
from Delhi to Rohtak in two hours. He also points out that, when,
ultimately, his client agreed to change his DR, the IO directed the DR
to go through all the documents and cross examine the MWs then and
there, which, too, he would submit, is on the face of it, unreasonable.
As against the strictness of attitude to his client, he submits that, the
PO was given a very long rope and was given a further opportunity to
submit additional documents and thereafter two additional documents
were submitted by the PO and were taken into account by the IO while
giving his report. It was, in his submission, entirely impossible for the
IO to rely on the evidence of the MWs, without having been extended
to his client a reasonable opportunity to cross examine them. In order
to emphasize unreasonableness displayed by the petitioner towards his
client, he also drew my attention to the communication dated 25 th
August 1992, from the petitioner to the respondent, wherein the
respondent refused to supply the respondent, the documents on the
basis of which the charges had been framed against him. Mr.
Siddharth Dutta submits that it was entirely unreasonable to except his
client i.e. the respondent-workman to submit any meaningful response
to the charge sheet issued to him without being provided the
documents on the basis of which the charges were framed. The
documents, he points out were ultimately supplied to his client only on
19th August 1993, where further his client was afforded precious little
time to go through the documents and lead his defence. He also
opposed the prayer of the petitioner-Bank to be granted an opportunity
to lead evidence before the learned Tribunal / Labour Court to
establish the charges against the respondent, submitting that, after so
many years, grant of any opportunity would be a travesty of justice.
He finally sought to submit that his client, had, in fact been victimized
as he was a Union Leader.
37 In support of his submissions, Mr. Siddharth Dutta relied on the
following decisions:
Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570;
Pepsu Road Transport Corporation v. Lachhman Dass Gupta,
(2001) 9 SCC 523; State of Uttar Pradesh v. Shatrughan Lal VIII
(1998) SLT 196.
38 Mr. Rajesh Kumar in rejoinder, stated that the law did not
require the documents, on the basis of which the charges had been
framed, to be supplied along with the charge sheet, and required,
rather, the workman to submit his defence at the initial stage. As such,
in his submission there was no illegality for the refusal, on the part of
his client, to accede to the request of the respondent, for being
provided the documents, on the basis of which the charge sheet had
been issued, at the initial stage. Regarding the submissions of the
respondent, that the said documents were ultimately provided to him
only on 19th August 1993, Mr. Rajesh Kumar would urge that they
could not very well have been supplied at any earlier point of time as
the respondent appeared, for the first time on 19th August 1993 and
was repeatedly taking adjournments prior thereto.
Analysis
39 The first issue that arises for consideration, is whether the
learned Tribunal was justified in holding that the inquiry, against the
respondent, as conducted by the IO, infracted the principles of natural
justice, and that adequate opportunity had not been extended, to the
respondent, to defend the case against him.
40 The learned Tribunal has, after setting out the proceedings that
had transpired before the IO, opined that there had been a violation of
the principles of natural justice and fair play, in the matter of grant of
opportunity, to the respondent, to defend the charges against him. The
petitioner has no cavil with the recital, by the learned Tribunal, of the
proceedings that had taken place before the IO. The contention of Mr.
Rajesh Kumar is, rather, that the learned Tribunal erred in holding that
these proceedings did not disclose grant of proper opportunity, to the
respondent, to defend his case, and that they revealed infraction of the
principles of natural justice. He, therefore, would exhort this court to
reverse the finding, of the learned Tribunal, that the respondent had
not been treated fairly, or granted adequate opportunity, in the matter
of defending the charges levelled against him, before the IO.
41 Whether the findings of the learned Tribunal, on this issue,
merit such interference, is the question at the hands of this Court.
42 The scope of interference, by this Court, with Awards passed by
Labour Courts or Industrial Tribunals, has been examined by me in a
recent judgement, dated 21st July 2017, in D.D.A. v Mool Chand,
subsequently reported in MANU/DE/2016/2017. The primal guiding
principle, in this regard, remain the following well-known passages,
on the scope of certiorari, as contained in Syed Yakoob v K.S.
Radhakrishnan, AIR 1964 SC 477:
"7. The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Article 226 has been
frequently considered by this Court and the true legal position in that
behalf is no longer in doubt. A writ of certiorari can be issued for
correcting errors of jurisdiction committed by inferior courts or
tribunals: these are cases where orders are passed by inferior courts
or tribunals without jurisdiction, or is in excess of it, or as a result of
failure to exercise jurisdiction. A writ can similarly be issued where
in exercise of jurisdiction conferred on it, the Court or Tribunal acts
illegally or in properly, as for instance, it decides a question without
giving an opportunity to be heard, to the party affected by the order,
or where the procedure adopted in dealing with the dispute is
opposed to principles of natural justice. There is, however, no doubt
that the jurisdiction to issue a writ of certiorari is a supervisory
jurisdiction and the Court exercising it is not entitled to act as an
Appellate Court. This limitation necessarily means that findings of
fact reached (sic)y the inferior Court or Tribunal as result of the
appreciation of evidence cannot be reopened or questioned in writ
proceedings. An error of law which is apparent on the face of the
record can be corrected by a writ, but not an error of fact, however
grave it may appear to be. In regard to finding of fact recorded by the
Tribunal, a writ of certiorari can be issued if it is shown that in
recording the said finding, the Tribunal had erroneously refused to
admit admissible and material evidence, or had erroneously admitted
inadmissible evidence which has influenced the impugned finding.
Similarly, if a finding of fact is based on no evidence, that would be
regarded as an error of law which can be corrected by a writ of
certiorari. In dealing with this category of cases, however, we must
always bear in mind that a finding of fact recorded by the Tribunal
cannot be challenged in proceedings for a writ of certiorari on the
ground that the relevant and material evidence adduced before the
Tribunal was insufficient or inadequate to sustain the impugned
finding. The adequacy or sufficiency of evidence led on a point and
the inference of fact to be drawn from the said finding are within the
exclusive jurisdiction of the Tribunal, and the said points cannot be
agitated before a writ Court. It is within these limits that the
jurisdiction conferred on the High Courts under Article 226 to issue
a writ of certiorari can be legitimately exercised.
8. It is, of course, not easy to define or adequately describe what
an error of law apparent on the face of the record means. What can
be corrected by a writ has to be an error of law; it must be such an
error of law as can be regarded as one which is apparent on the face
of the record. Where it is manifest or clear that the conclusion of law
recorded by an inferior Court or Tribunal is based on an obvious
misinterpretation of the relevant statutory provision, or sometimes in
ignorance of it, or may be, even in disregard of it, or is expressly
founded on reasons which are wrong in law, the said conclusion can
be corrected by a writ of certiorari. In all these cases, the impugned
conclusion should be so plainly inconsistent with the relevant
statutory provision that no difficulty is experienced by the High
Court in holding that the said error of law is apparent on the face of
the record. It may also be that in some cases, the impugned error of
law may not be obvious or patent on the face of the record as such
and the Court may need an argument to discover the said error; but
there can be no doubt that what can be corrected by a writ of
certiorari is an error of law and the said error must, on the whole, be
of such a character as would satisfy the test that it is an error of law
apparent on the face of the record. If a statutory provision is
reasonably capable of two constructions and one construction has
been adopted by the inferior Court or Tribunal, its conclusion may
not necessarily or always be open to correction by a writ of
certiorari. In our opinion, it neither possible nor desirable to attempt
either to define or to describe adequately all cases of errors which
can be appropriately described as errors of law apparent on the face
of the record. Whether or not an impugned error is an error of law
and an error of law which is apparent on the face of the record, must
always depend upon the facts and circumstances of each case and
upon the nature and scope of the legal provision which is alleged to
have been misconducted or contravened."
43 Following thereupon, paras 28 to 30 of the report in Mool
Chand (supra) read thus:
"28. Relying on the principles enunciated in the above decision, a
catena of pronouncements of the Supreme Court, including
Management of Madurantakam Cooperative Sugar Mills Ltd. v. S.
Viswanathan, (2005), 3 SCC 193, P.G.I of Medical Education and
Research, Chandigarh v. Raj Kumar, (2001) 2 SCC 54 and M.P
State Electricity Board v. Jarina Bee, (2003) 6 SCC 141, followed,
which may be regarded as having laid down, authoritatively, the
following principles:
„(i) The Labour Court/Industrial Tribunal is the final fact
finding authority.
(ii) The High Court, in exercise of its powers under Article
226/227, would not interfere with the findings of fact
recorded by the Labour Court, unless the said findings
are perverse, based on no evidence or based on
illegal/unacceptable evidence.
(iii) In the event that, for any of these reasons, the High
Court feels that a case for interference is made out, it is
mandatory for the High Court to record reasons for
interfering with the findings of fact of the Labour
Courts/Industrial Tribunal, before proceeding to do so.
(iv) Adequacy of evidence cannot be looked into, while
examining, in writ jurisdiction, the evidence of the
Labour Court.
(v) Neither would interference, by the writ court, with the
findings of fact of the Labour Court, be justified on the
ground that a different view might possibly be taken on
the said facts."
29. "Perversity", for its part, is attributed to a judicial/quasi
judicial decision if the decision ignores/excludes relevant
material, considers irrelevant/inadmissible material, is against
the weight of evidence, or so outrageously defies logic as to
suffer from irrationality [Damodar Lal v. Sohan Devi, (2016)
3 SCC 78; S R Tiwari v. Union of India, (2013) 6 SCC 602;
Rajinder Kumar Kindra v. Delhi Administration, (1984) 4
SCC 635; Kuldeep Singh v. Commissioner of Police, (1999)
2 SCC 10; Gamini Bala Koteswara Rao v. State of AP,
(2009) 10 SCC 636; Babu v. State of Kerala, (2010) 9 SCC
189; Dr. Sunil Kumar Sambhudayal Gupta v. State of
Maharashtra, (2010) 13 SCC 657].
30. Damodar Lal (Supra) further postulates that in examining
whether a decision is, or is not, perverse, the classic test, of
the reasonable man's conclusion on the facts before the
authority concerned would apply. The same decision also
reiterates the trite position that inadequacy of evidence, or the
possibility of reading the evidence in a different manner,
would not amount to perversity."
44 Guided by the above principles, I am of the view that, insofar as
the finding, of the learned Tribunal, that the respondent had not been
given sufficient opportunity to defend his case, or cross-examine the
MWs, is concerned, the petitioner has not been able to make out a case
for interference, by me, therewith, in exercise of my jurisdiction under
Article 227 of the Constitution of India. Mr. Rajesh Kumar has
emphasised the fact that several adjournments, prior to 19th August
1993, had been taken by the respondent, and sought to contend, on the
basis thereof, that the decision of the learned IO, to not grant a further
adjournment on 20th August 1993, was justified. This submission,
while attractive at first blush, cannot sustain, in view of the following
statement of the law, contained in S.B.I. v Chandra Govindji, (2000)
8 SCC 532 (as contained in para 7 of the report):
"In ascertaining whether a party had reasonable opportunity to put
forward his case or not, one should not ordinarily go beyond the date
on which adjournment is sought for. The earlier adjournment, if any,
granted would certainly be for reasonable grounds and that aspect
need not be once again examined if on the date on which
adjournment is sought for the party concerned has a reasonable
ground. The mere fact that in the past adjournments had been sought
for would not be of any materiality. If the adjournment had been
sought for on flimsy grounds the same would have been rejected.
Therefore, in our view, the High Court as well as the learned District
Judge and the Rent Controller have all missed the essence of the
matter." (Emphasis supplied)
45 Even on facts, the submission of Mr. Rajesh Kumar cannot
merit acceptance. There is no dispute about the fact that the
documents, on the basis of which the chargesheet had been drawn up
against the respondent, as also the evidence of various MWs, was
given, to the respondent, for the first time, on 19 th August 1993. It was
imperative, therefore, for the IO to, thereafter, afford the respondent a
meaningful opportunity to study the said documents, responded
thereto, and test the evidence presented by the petitioner. The attitude
of the IO, in my view, has rightly been criticised by the learned
counsel for the respondent. After having handed over, to the DR,
appearing on behalf of the respondent, voluminous documents, on 19th
August 1993 for the first time, the IO was willing only to grant one
hour‟s time, to the DR, to study the same. On the DR insisting, the IO
condescended to grant time till the next morning, which, again, would
be less than 24 hours. If this was not reflective enough of the unfair
manner in which the IO was proceeding, it is seen that, even on 20th
August 1993, the IO did not agree to adjourn the matter, despite the
respondent‟s submission that the DR‟s child was not well.
Significantly, the proceedings of 20th August 1993, as drawn up by the
IO, do not reflect any doubt having been entertained, by the IO,
regarding the genuineness of the submission that the DR‟s child was
unwell, or regarding the letter handed over by the respondent to the IO
on that date. The proceedings of 20th August 1993 stand reproduced,
hereinunder, in extenso, and a reading thereof does not disclose any
doubt, having been entertained, by the IO, regarding the truth of the
submission that the child of the DR was unwell. Rather, the only basis,
for refusing the request, of the respondent, for an adjournment on the
said date, appears to be that the matter was coming up before him for
the sixth time.
46 The reference, to the proceedings on 20th August 1993, as
contained in the Inquiry Report submitted by the I/O, for its part, read
thus:
"On 20th August 1993, that Defence Representative did not turn up in
time at the appointed time i.e. 10 AM. I had joined the proceedings
after 12 noon and waited for the Defence Representative. At 12:30
PM, the CSE produced a letter written by the Defence
Representative intimating his inability to attend the Inquiry due to
personal reasons. Since enough chances and time were already given
to the chargesheeted employee, I did not agree to further
adjournments as all the witnesses were present. I requested Mr I K
Pruthi to Cross-examine witnesses, but he did not agree for the same.
He was also asked to seek the services of any other person who
would defend his case, but he only sought for a further adjournments
without any reasonable ground. The proceedings were then
conducted at 2:15 PM." (Emphasis supplied)
One is forced to comment, on reading the manner in which the IO has
chosen to refer to the proceedings of 20th August 1993, that he has
been less than economical with the truth. There is no reference,
whatsoever, to the submission, of the respondent, that the child of the
DR was unwell, and that adjournment had been sought, on 20 th August
1993, on that ground. Rather, the reference, of the IO, in the above
extracted paras from the Inquiry Report, to the adjournment, on 20th
August 1993, having been sought by the DR "on personal reasons",
and the finding that the respondent had sought for an adjournment
"without any reasonable ground", appear to be consciously
misleading. Without any further comment on the conduct of the IO in
this regard, I am constrained to observe that, even in law, the IO erred
in relying on the fact that adjournments had been granted earlier.
Once, on the request of the respondent, the IO had been directed to
proceed with the enquiry de novo, the spectre of the proceedings that
had taken place prior thereto, stood exorcised. After the matter had,
thus, been taken up, de novo, by the IO, there is no dispute that only
two dates of hearing had been fixed, i.e. 19th August 1993 and 20th
August 1993. The adjournments which might have been taken prior to
the matter being, as it were, remanded to the IO, and proceeded de
novo, could, therefore, have had no bearing on the exercise of
discretion, by the IO, regarding the request for adjournment, made by
the respondent, on 20th August 1993. That apart, even applying the
principle laid down by the Supreme Court in Chandra Govindji
(supra), the legitimacy of the request, for an adjournment, made on
20th August 1993, could not be tested on the basis of the number of
adjournments taken earlier. The request for an adjournment, on 20th
August 1993, was undoubtedly on valid grounds, i.e. the illness of the
child of the DR. The DR was, effectively, the counsel for the
respondent before the IO, and a refusal, to grant a single adjournment,
even when the ground was illness of the child of the counsel, has
necessarily to be characterised as perverse, and reflective of undue
haste to conclude the proceedings.
47 That the principles of natural justice and fair play are not
straitjacketed, is a well-known and well accepted truism. The
solemnity of the proceedings, and the seriousness of the consequences
that would ensue, where opportunity, as sought for, not granted, are
considerations which have necessarily to inform the dispassionate
adjudicator, while adjudicating on such a request. In the present case,
manifest travesty of justice has resulted, by the refusal, of the I/O, to
grant a single adjournment on 20th August 1993, as prayed for by the
respondent, resulting in the enquiry report opining against him, relying
on the very evidence of the MWs, whose cross examination was
denied to the respondent. It has resulted in the respondent being
thrown out of his job, depriving him of the only source of livelihood.
The repercussions of dismissing a low paid workman from service is
an aspect which, I find, in case after case, is not appreciated by the
employer concerned. While it is true that the continuance, in service,
of an employee whose conduct his subversive of the discipline of the
institution, or who is guilty of corrupt practices, irrespective of the
degree thereof, is obviously not advisable, the decision to remove such
an employee from service has necessarily to be taken only after
rigorous compliance with the principles of natural justice and fair
play. Such a decision results in civil death of the workman, and has
the perilous potentiality of casting his entire family on the roads.
There can be no halfway house in such cases. Any let-up, in grant of
full opportunity, to the workman, to defend his case, would be fatal to
the proceedings. Inquiry officers and disciplinary authorities, deciding
such cases, are obliged, in morality as much as in law, to be alive to
the fact that, by a single stroke of the pen, they could be pulverizing
the sole source of sustenance of an entire family.
48 Without further pontificating on the issue, suffice it to state that,
in the present instance, compliance with the principles of natural
justice and fair play required the IO to accede to the request, of the
respondent, for one adjournment of the hearing fixed for 20th August
1993, and in refusing the said request, the IO, as the learned counsel
for the respondent correctly submits, acted in blatant violation of the
principles of natural justice.
49 Chandra Govindji (supra), it may be noted here, was followed,
by this court, while dealing with a case of disciplinary proceedings
against a chartered accountant, in Naresh Tharad v Institute of
Chartered Accountants, (2015) 148 DRJ 293 wherein it has been
observed as under (in para 16 of the report):
"The learned counsel for the respondent has stated that there was no
violation of principles of natural justice and the request of the
petitioner for adjournment of the hearing scheduled on 25.11.2011
was only for the purpose of delaying the proceedings. It is quite
possible that the intention of the petitioner may have been to delay
the proceedings. However, as the disciplinary proceedings may have
a serious adverse consequence on the concerned member, it would
be appropriate to err on the side of granting an opportunity to the
concerned member rather than to deprive him of a fair hearing."
(Emphasis supplied)
Applying the same test, given the seriousness of the consequences that
have resulted, as an outcome of the refusal, by the IO, to grant
adjournment on 20th August 1993, it has to be held that at least one
opportunity ought to have been granted, to the respondent, as prayed
for, by him, on the said date.
50 The decisions relied upon, by Mr. Rajesh Kumar, to support his
proposition that sufficient opportunity had been extended, to the
respondent, to defend the charges against him, do not deal with a
situation in which, on the request of the charged officer/workman, the
DA directed the IO to continue the proceedings after granting an
opportunity to him. That single fact, as already noted hereinabove,
makes a world of difference. Once the decision of the IO to close the
proceedings had effectively been set aside, by the DA, by directing the
IO to extend a further opportunity to the respondent, the IO was duty
bound, while doing so, to strictly adhere to the principles of natural
justice and fair play. He has not done so; ergo, the proceedings before
him stand vitiated.
51 That takes us to the next limb of the case, i.e., the decision, of
the learned Tribunal, not to grant any opportunity, to the petitioner, to
prove the charges, against the respondent, before it, by leading
evidence, in view of the fact that no request, to that effect, had been
made by the petitioner. The issue of whether, in the absence of a
request, by the Management-employer, to lead additional evidence
before the Labour Court/Industrial Tribunal, to prove the charges
against the workman, even if the enquiry had been held not to be
validly conducted, fell for consideration before a Constitution Bench
of the Supreme Court, in Karnataka State Road Transport
Corporation v Lakshmidevamma, (2001) 5 SCC 433, consequent
upon differing opinions, on the point, being expressed by two Division
Benches, in Shambu Nath Goyal v. Bank of Baroda, (1983) 4 SCC
491 and Rajinder Jha v. Presiding Officer, Labour Court, 1984 Supp
SCC 520. While Y.K.Sabharwal, J. (as his Lordship then was)
rendered the dissenting judgement, in favour of the Management,
separate opinions, in favour of the workman, were delivered by N.
Santosh Hegde, J [for himself and S.P.Bharucha, J. (as his Lordship
then was)] and Shivraj Patil, J [for himself and V.N.Khare, J. (as is
Lordship then was)]. While Santosh Hegde, J held that, if no request
for being permitted an opportunity to lead additional evidence, before
the Labour Court/Industrial Tribunal, to prove the charges against the
workman, was contained in the written statement filed by the
Management, the Management could not, at any later stage, make
such a request, Shivraj Patil, J preferred a more moderate approach,
holding that, in an appropriate case, the Labour Court/Industrial
Tribunal could allow the Management to lead additional evidence,
supporting the case against the workman, even if no request, to that
effect, was contained in the written statement filed in response to the
workman‟s Statement of Claim, but was made at some later stage.
This slight difference, between the views expressed by Santosh
Hegde, J and Shivraj Patil, J, does not really affect the present case, as,
viewed either way, the contention, of Mr. Rajesh Kumar, that the
learned Tribunal necessarily had to afford an opportunity, to his client,
to prove the charges against the respondent, even where no such
request was contained, either in the written statement filed by the
petitioner before the learned Tribunal, or in any separate application
filed for the said purpose, after rendition of the order on the
preliminary issue regarding validity of the enquiry, is obviously
misconceived. In the absence of any request, made at any stage, by the
petitioner, to the learned Tribunal, to be permitted to lead additional
evidence to prove the charges against the respondent, no-fault,
whatsoever, can be found with the decision, of the learned Tribunal,
not to grant such an opportunity to the petitioner.
52 On this aspect of the matter, too, therefore, the impugned
Award of the learned Tribunal is unexceptionable.
53 In view of the law laid down in Lakshmidevamma (supra), I
am of the opinion that, at this stage, it is not open for me to allow the
petitioner any opportunity to lead evidence before the learned
Tribunal. The submission, of learned counsel for the petitioner, that
the charges against the respondent were serious and, if true, would
have justified his expunction from service, is undoubtedly well taken.
Even so, I cannot close my eyes to the fact that 23 years have passed,
since the dismissal of the respondent. Aberrations in character, even if
existing, are bound to metamorphose, over nearly two and a half
decades, and it would be unrealistic, at this point of time, to
unfavourably view the respondent, merely on the basis of the charges
that had been levelled against him a quarter of a century ago.
54 Having said that, is equally unrealistic to maintain the direction,
by the learned Tribunal, to reinstate the respondent in service with
back wages. The law has metamorphosed, over a period of time, and
has run the gamut from the theory of reinstatement to that of awarding
lump-sum compensation. [Refer Senior Superintendent Telegraph
(Traffic) v Santosh Kumar Seal, (2010) 6 SCC 773]
55 The question, then, arises as to the quantum of "lump-sum
compensation" that should be awarded to the respondent. Given the
fact that the respondent has not been serving the petitioner, since the
date of his dismissal from service, I am of the view that the interests of
justice would be subserved if the respondent were awarded 75% of the
back wages to which he would be entitled, till the date of his
superannuation (which, I am informed, is 2 years hence). The wages
payable to employees of the petitioner-Bank are governed by the
Bipartite Settlements, arrived at, from time to time, between the Bank
and the employees. In working out the back wages that would have
been payable to the respondent - and, consequently, 75% thereof -
periodical revisions of the wages payable, on the basis of Bipartite
Settlements arrived at from time to time, would be taken into account.
At the same time, pursuant to interim orders passed by this court under
Section 17-B of the Act, a certain monthly amount has been paid to
the respondent, by the petitioner. Though the respondent has
expressed his dissatisfaction therewith, in various interlocutory
applications that have been filed by him from time to time, it is not
necessary to enter into the said applications now, in view of the order
that is being passed today. Suffice it to state that the payment to be
made to the respondent, as per this judgement, would be so made after
deducting the amounts paid to the respondent under Section 17-B of
the Act. Further, in case the petitioner is able to establish that the
respondent has, at any point of time after his dismissal from service by
the petitioner, been in gainful employment, the amount earned by the
respondent in the course of such employment would also be
deductible, while making payment to him in terms of this judgement.
56 No further amount (including retiral benefits) would be payable
to the respondent, apart from the above.
57 I am of the opinion that the amount that would be payable to the
respondent, in accordance with para 52 (supra), should appropriately
be worked out by the jurisdictional Tribunal/Labour Court. Given the
period for which these proceedings have remained pending before this
court, this exercise should appropriately be done in a time bound
manner.
58 Accordingly, this writ petition is disposed of by maintaining the
findings contained in the impugned Award, dated 18 th March 2004,
but modifying the relief, granted therein, to payment in accordance
with para 52 (supra). Solely for working out the amount that would be
payable on that basis, the matter is remanded to the jurisdictional
Labour Court/Industrial Tribunal, which shall make every endeavour
to arrive at a decision, thereon, as expeditiously as possible and, at any
rate, within a period of six months from the presentation, before it, of
a certified copy of this judgement, by either party. Needless to say, the
petitioner and the respondent shall have a right to be represented,
before the Labour Court/Industrial Tribunal in the said proceedings.
Payment, as computed by the learned Labour Court/Industrial
Tribunal, shall be made within a period of 4 weeks from the date of its
decision.
59 There shall be no order as to costs.
60 Pending interlocutory applications, if any, stand disposed of, as
they do not survive for consideration.
C. HARI SHANKAR
(JUDGE)
DECEMBER 14, 2017
Gayatri
