Delhi High Court
The Kangra Co-Operative Bank Ltd. vs Ms. Seema Sharma on 17 January, 2018
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 17.01.2018
+ W.P. (C) 10740/2017 & CM Nos.43996-97/2017
THE KANGRA CO-OPERATIVE BANK LTD...... Petitioner
Through: Mr. Jagat Arora & Mr. Rajat
Arora, Advs.
versus
MS. SEEMA SHARMA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (ORAL)
1. Feeling aggrieved by the decision of the learned Presiding
Officer, Labour Court-X Karkardooma Courts, Delhi
(hereinafter referred to as "Industrial Adjudicator") deciding the
preliminary issue "whether management had conducted a fair
and proper inquiry against the workman?" against them, the
petitioner has invoked the writ jurisdiction of this Court under
Article 226/227 of the Constitution of India for issuance of a
writ of certiorari for setting aside/quashing the order dated
05.08.2017.
2. The respondent was appointed as an Office Assistant with the
petitioner bank vide office memorandum dated 16.04.1996 and
later on she was posted as Senior Assistant at Govindpuri
Branch of the petitioner-bank. On 03.01.2007 a charge sheet
was issued against her to the effect that she had misused her ID
and wrongfully fed four entries in the month of July and
August, 2006 in the bank computer. The respondent was
suspended on 08.10.2006. Thereafter, one B.M. Malhotra was
appointed as an Enquiry Officer to enquire into the charges
levelled against the respondent. Since the enquiry was
conducted in total violation of principles of natural justice and
no procedure of domestic enquiry was explained to the
workman at the start of enquiry and the Enquiry Officer
behaved rudely and used indecent language against the
workman, a representation was given by the respondent on
28.04.2007 to the General Manager of the petitioner. She also
sent a reminder dated 27.08.2007. Vide letter dated 16.10.2007
Mr. Amrit Pal Singh was appointed as new Enquiry Officer in
place of Mr. B.M. Malhotra. The respondent was issued another
charge sheet on 10.12.2007 after 14 months of her suspension.
The respondent replied to the charge-sheet on 19.01.2008
denying the charges. On 05.12.2008, the said Enquiry Officer
gave his findings holding the respondent guilty of charges
levelled against her. On 25.02.2009, Disciplinary Authority of
the petitioner-bank had imposed the punishment of her
dismissal from service.
3. Grieved of the dismissal order, the respondent approached the
Industrial Adjudicator and filed her claim.
4. The petitioner filed its written statement denying each and every
allegations of the respondent before the Industrial Adjudicator.
The respondent filed rejoinder to the written statement of the
petitioner and controverted the allegations mentioned therein
and reaffirmed the allegations mentioned in her statement of
claim.
5. On the pleadings of the parties, on 19.07.2010 the Industrial
Adjudicator had framed the following issues:-
(i). Whether the management had conducted a
fair and proper enquiry against the workman?
(ii). Whether the workman is terminated illegally
or unjustifiably by the management?
(iii). Relief.
6. However, issue No.1 was treated as preliminary issue and
parties were asked to adduce their respective evidence on the
preliminary issue. After hearing the parties the Industrial
Adjudicator found that MW1- H.R. Thakur who has been
Presenting Officer during the enquiry proceedings and
represented the petitioner during the enquiry proceedings
against the respondent, has appeared as a witness in the Court
against the respondent to prove the enquiry. The Industrial
Adjudicator held that since he has been Presenting Officer and
represented the petitioner, he cannot be an independent witness
and must be interested in the success of the enquiry during the
enquiry proceedings. The Industrial Adjudicator further
observed that he cannot be said to be a witness free from bias
which is in violation of principles of natural justice and it is just
like a case where Public Prosecutor appears as a witness in a
criminal case against the accused. The Industrial Adjudicator
found that enquiry proceedings and enquiry report against the
respondent have not been proved and decided the preliminary
issue No.1 against the petitioner.
7. Learned counsel for the petitioner submits that it was for the
petitioner to decide which witness to be examined by them and
which is an important and proper witness. He submits that the
enquiry proceedings and report have been proved by MW1 and
there was no occasion to reject his deposition.
8. It is admitted by learned counsel for the petitioner that MW1-
Mr. H.R. Thakur has been the Presenting Officer and
represented the petitioner throughout during the enquiry
proceedings against the respondent.
9. The petitioner has not examined the Enquiry Officer or any of
its employee as a witness in the Court to prove the enquiry
proceedings and report and only chose to examine MW1 H.R.
Thakur, Presenting Officer to prove the same. Mr. H.R. Thakur,
MW1 was not an independent witness to appear in the Court
and to prove the enquiry proceedings against the respondent.
The Presiding Officer is not expected to become a persecutor.
He is a biased witness. Therefore, the Industrial Adjudicator
has rightly adjudicated the issue that the petitioner has failed to
prove the enquiry proceedings and Enquiry Report against the
respondent.
10. Moreover, the petitioner is not to be prejudiced by the finding of
the Industrial Adjudicator on the said issue. In its written
statement, the petitioner had prayed that in case the court found
that enquiry proceedings are vitiated, they sought an opportunity
to prove the charges against the respondent. The Industrial
Adjudicator has given an opportunity to the petitioner to prove
the charges against the respondent in the court and for that
purpose the case has been listed for its evidence.
11. The petitioner has failed to prove that a fair and proper enquiry
was conducted against the workman/respondent and the
Industrial Adjudicator has rightly set aside the Enquiry Report.
The petitioner is not entitled to any relief.
12. The petition is dismissed with no order as to costs. In view of
the dismissal of the petition all pending applications are
dismissed.
(VINOD GOEL)
JUDGE
JANUARY 17, 2018
"sandeep"
