IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

 

SUBJECT : SERVICE MATTER

 

WP(C) 3351/1998

 

Reserved on: October 4, 2005

 

Date of decision January 31st , 2006

 

THE MANAGEMENT OF RAM LAL ANAND COLLEGE   ..... Petitioner

                                                                                Through        Mr. S.K. Luthra, Advocate

 

versus

 

THE WORKMAN SH. C.L. YADAV & ANR.      ..... Respondents

Through           Mr. C.L. Yadav, Respondent No.1 in person

 

S.RAVINDRA BHAT, J.

 

1.               The writ petitioner in these proceedings challenges an order dated 21.3.1996 as well as the final award dated 4.3.1998, of the Industrial Tribunal-I.

 

2.               The writ petitioner is the management of Ram Lal Anand College affiliated to the Delhi University (hereafter called “the  college”). The first respondent, (who had raised the industrial dispute and was claimant before the Tribunal is hereafter referred to “''as “the  workman''.)

 

3.               The workman was appointed by the college, on 1.11.1973 as  Superintendent (Accounts).  His services were confirmed on 1.11.1974.  The college issued a memorandum alleging certain objectionable conduct to the workman on 17.1.1976.  He replied to it on 2.2.1976.  By an order, dated 28.6.1976, the college placed the workman under suspension from its services.  The order of suspension was revoked on 23.7.1976. The workman was reinstated to the services and reported for duties. 

 

4.               On 29.11.1976 a charge-sheet was served upon the workman.  He replied to the charges denying them.  An enquiry was constituted into these charges, which were about 18 in number.  After holding departmental enquiry, the management issued an order reducing the workman in rank.  He preferred an appeal, which was rejected.  Thereafter, he filed a civil suit in which initially an injunction was granted; later the temporary injunction was vacated and eventually suit was dismissed.  The management issued another charge-sheet on 5.2.1979 (hereafter called “the second charge-sheet”) containing 13 charges.  An Enquiry Officer was appointed.  In these proceedings, the petitioner participated initially but later refused to attend the hearings.  The proceedings were set down ex-parte.  The enquiry report found the petitioner guilty of several charges.  A copy of the report was served upon the workman and eventually by an order dated 5.10.1980 he was dismissed from the services.

 

5.               The workman raised an industrial dispute, upon being aggrieved by the penalty of reduction in rank as well as the order of the dismissal dated 5.10.1980 after the conciliation proceedings ended in failure, the industrial disputes were referred for adjudication by separate orders issued on 4.2.1982 and 6.2.1982.  The first related to the penalty of reduction in rank and the second pertained to legality and the justification of the order of dismissal of the workman.

 

6.               The terms of reference were eventually amended; the following points were consolidated for adjudication by notification dated 30.8.1983:

  (i) Whether the reduction in rank of Sh. C.L. Yadav from the post of Superintendent (Account) to the post of Senior Assistant is legal or justified and if not, to what relief is he entitled and what directions are necessary in this respect;

 

(ii) Whether the dismissal from service of Sh. C.L. Yadav is legal and/or justified and if not to what relief is he entitled and what directions are necessary in this regard.”

7.The Tribunal by its order dated 24.8.1984 framed 6 issues which included whether the first respondent was a workman within the Industrial Disputes Act; whether the dispute was a industrial dispute; whether and inter alia whether enquiry conducted against the petitioner was illegal and invalid. 

 

8.               The principal objections as to the fairness of the enquiry were that in the first enquiry, the Principal who was allegedly instrumental in getting the workman suspended acted as a Presenting Officer; it was also averred that the workman was not allowed to cross examine witnesses and lead his own evidence in the proceedings. The workman also took the plea that he was not permitted to engage a defense representative and the rules applicable for the conduct of enquiry into charges against non-academic employees of the university were violated thus resulting in prejudice.

 

9.               The college resisted the claim of the workman entirely.  It raised various preliminary objections as to the maintainability of the reference.  It alleged that the enquiries held the workman were valid and legal and that the penalty orders impugned in the reference were justified.  It denied causing prejudice or violating principles of natural justice in regard to the conduct of the proceedings in domestic enquiry, on both the charge-sheets.  The workman had alleged wrongful reduction of House Rent Allowance (HRA) from subsistence allowance which was sought to be justified.

 

10.             The parties had led evidence before the Labour Court.  The entire records, of both the enquiry proceedings were produced by the management, which, in addition, relied upon fresh evidence, permitted to be led.  Accordingly, it relied on the deposition of the 8 witnesses, including those of the two Enquiry Officers who had presided over the proceedings into the first and second charge-sheet, namely, Sh. Y.P. Kohli and Sh. R.N. Mehrotra respectively. 

 

11.             The Tribunal by its first impugned order dated 21.3.1996 ruled that both the domestic enquiries into the first as well as second charge-sheets, were defective on ground of unfairness.  It found that the denial of proper representation in the first enquiry led resulted in the petitioner's prejudice.  It also held that the participation of the Principal of the College in the first enquiry, as a Presenting Officer, after he had been a party to the decision to suspend the workman and also subsequent conduct in being a witness in the first enquiry, vitiated the proceedings.  In respect of the second enquiry also the Tribunal concluded that denial of right to defense representation led to his prejudice.  It noted that in the first enquiry, he had been called upon to defend 18 charges and in the second occasion he had called upon to defend 13 charges of mis-conduct.  The workman had expressed inability to personally cross-examine the witnesses.  The denial of the right to be represented in the enquiry proceedings, was held to vitiate it.

 

12.             The Tribunal after passing the first impugned order considered the materials on record placed before it by way of additional evidence and cross-examination of the witnesses on behalf of the parties. The additional evidence was by way of affidavits of the 8 witnesses of the college management and also the deposition, upon affidavit of the claimant workman.    All these witnesses were cross-examined.

 

13.             The final award, after analysing the evidence concluded, on the issue of whether the respondent was a “workman”  found that he was required to maintain files and accounts but had no supervisory duties such as the right to sanction leave, impose penalty or take any decision in any matter.  It was also concluded that the workman's function was checked by a Senior Assistant.  Therefore, it was held that the first respondent was a “workman” within the meaning of the expression under Section 2(s) of the Act.

 

14.             The Tribunal considered the merits of the case on the basis of the evidence led and the documents placed before it.  The management had by its note dated 11.9.1997 requested the Tribunal to hold an enquiry into the allegations or appoint anybody to hold the enquiry and on the basis of such report to decide the dispute.  In the final award, the Tribunal held that such a request was alien to established procedure and there was no justification to do so.  It was of the opinion that a finding on the charges leveled against the petitioner had to be recorded by the Tribunal itself on the evidence led before it, particularly, in view of the first order setting aside the enquiry. The relevant part of the finding by the Tribunal in support of its conclusion reads as follows:

“18.   It has been submitted by the Ld. AR for the management that charges of gross inefficiency an misbehaviors and of wrongly claiming house rent allowance had been proved.  Ld. AR for the management however failed to mention in the written or oral arguments before him the relevant evidence in support of the contention.  In respect of the charge of gross inefficiency and misbehavior it has been stated that the workman is behaved with all the three vice Principals (Incharge Evening Shift) during the period he worked in the college and all of them had made complaints against the workman regarding misbehavior and inefficiency.  It was further mentioned that the workman had claimed that the Principals had done so at the instigation of P.S. Relly but Shri. Relly had denied the allegation.  On the other hand the workman has argued that there is no evidence in support of the charges of mis conduct.  Dr. Mandhata Ojha one of the  Vice-Principals had been examined by the management but he said nothing about the alleged inefficiency and misbehavior.  No doubt Sh. P.S. Relly had made a statement in his affidavit about the alleged mis conduct, in view of the fact that Shri Relly had admitted that the workman had put up a note about the non accounting of Rs.24.56 paisa by him and the managements failure to specifically deny that Sh. Relly had subsequently deposited this amount, it appears that there was any animosity between the workman and Sh. Relly.

 

19.             As regards payment of house rent allowance it has been contended that the workman was living in a flat allotted to a Member of Parliament free of charge.  It was further contended that the workman in his cross examination had admitted that he was living free of cost as he does part time job for the M.P.  It was also pointed out that in his affidavit workman has claimed that he was spending money on maintenance of the flat.  As the flats are maintained by CPWD there was no question of workman's spending any money for the maintenance.  The workman has however claimed that the charge in support of the drawl of house rent allowance had been dropped under the orders of the governing party as evident from WW1/60 and WW1/61 and MW5/19.  It was also pleaded that the house rent allowance was paid to the workman after the position had been clarified by the Ministry of Finance.  I find no force in the contention of the management.  Ld. AR for the management has failed to point out any evidence in support of the charge.  Even if it was open to the management to press the same.  The workman's statement that he was not paying any rent was of no help to the management as the workman had added that he was doing part time work for the M.P. And in his affidavit he had also claimed that he was spending money on the maintenance of the flat.  Thus workman's claim that he was not living free but but paid in kind.  The workman had fulfilled the condition of filing the affidavit for claiming the house rent allowance and there is nothing to show that the affidavit was false.  In spite of the accommodation being maintained by CPWD very often occupants of government accommodation has to spend some money on the maintenance of the accommodation from their pockets.

 

20.             Ld. AR for management made no attempt to urge that any other charge made in either of the two charge sheets had been proved by the management in the evidence adduced before this Tribunal.  I do not find it therefore, necessary to go into the details of those charges as also workman's contention in his written arguments that none of those charges has been proved.

 

21.             Lastly it was contended by Ld. AR for management that in the event of workman's reinstatement he should not be paid full back wages as he had been working part time and had tried to put political pressure on the management.  It has not been disputed that the workman who was an accountant had not got any regular job elsewhere after termination of his service by the management.  The workman has deposed that he was not gainfully employed but in order to meet his day to day expenses he had to do whatever work he get. The workman claimed that no political pressure was exerted.  It is opened to any person to bring to the notice of politicians about the problems faced by him, it is claimed.  The workman had been demoted and subsequently his services were terminated.  Even if he had made attempts to seek justice by the intervention of some politicians this cannot be treated as a reason for denying his full back wages.  The normal rule as laid down by Hon'ble Supreme Court to award full back wages in the event of reinstatement.  No cogent material has been brought on record by the management to deprive the workman benefit of the general rule in the present case.

 

22.             In the light of the forgoing discussion I hold that the reduction in rank of Shri. C.L. Yadav from the post of Superintendent (Account) to the post of Senior Assistant was unjustified and so was his dismissal from service.  The workman shall be entitled to reinstatement to the post of Superintendent(Accounts) now designated as Section Officer (Accounts) from the date he was reduced in rank and ordered dismissing him from service shall stand set aside.”

 

15.On the basis of above reasoning, the Tribunal answered both the points of reference in favour of the workman, and set aside the penalty of reduction in rank as also his termination from services.  It directed the college to reinstate him full back wages and continuity in service.

 

16.             The college filed the present writ proceedings on 17.7.1998 questioning the order dated 21.3.1996 and the final award dated 4.3.1998.  It averred that the first impugned order cannot be sustained in law because the management was justified in refusing the workman the right to be represented in the domestic enquiries. It also claims that there was nothing wrong or illegal in the participation by the Principal as a Presenting Officer and that it did not result any prejudice.

 

17.             The final award is challenged on the ground that the Tribunal ought not to have confined itself to the materials led before it but should have examined the entire record including the enquiry proceedings.

 

18.             The workman had filed an application under Section 17-B of the Industrial Disputes Act upon which an order was passed on 23.5.2000 directing the college to pay an amount equivalent to the wages last drawn by the workman from the date of filing of the writ petition, namely, July 1998 till the date of the order.  The impugned award had been stayed by an order, dated 5.8.1998 which was confirmed on 30.11.2000. 

 

19.             This Court by its order dated 2.8.2002 issued Rule in the proceedings.  It also relied upon a Division Bench ruling in Hindustan Carbide Pvt. Ltd. v. Government of NCT  of Delhi & Ors., 95(2002) DLT 689 which had held that the expression “last drawn wages”  under Section 17(B) of the Act meant the minimum wages payable under the Minimum Wages Act.  Accordingly, a clarificatory order was passed on 2.8.2002 directing that the workman ought to be paid minimum wages for the period between the date of institution of the proceedings till 30.4.2002 since on the latter date he had attained the age of the superannuation.    

 

20.             The clarificatory order had also permitted the workman to withdraw the entire amount constituting a difference between minimum wage and the amount paid to him if he secured it to the extent of 50%.  The workman did so and accordingly withdrew Rs.94,276/- pursuant to the order dated 7.11.2002.

 

21.             Mr. S.K. Luthra, learned counsel for the petitioner college submitted that the first impugned order setting aside both the enquiry proceedings as defective was not tenable.  He submitted that the reasoning of the Industrial Tribunal that the workman was entitled to be represented, and denial of that request resulted in his prejudice was based upon an incorrect depreciation of law.  He relied upon the ruling of the Supreme Court in Cooper Engineering Ltd. v. P.P. Mundhe, AIR 1975 SC 1900 for the submission that the first impugned order was not challenged separately in an earlier writ petition on account of the the law laid down by the Supreme Court in that judgment.  Learned counsel submitted that Regulation 70(8) of the University Non-academic Staff Employees Regulations did not permit a charged employee the right to representation by some defence assistant working outside the college or institution concerned.  He submitted that the workman had initially sought the assistance of lawyer, which was declined and later he sought the assistance of one among three employees working in other institution.   The Governing Body of the college declined the request on the interpretation of Regulation 70 that the delinquent employee could seek the assistance of someone working in the college itself.  It was submitted that this interpretation is in consonance with the decision of the Supreme Court in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi, (1993) 2 SCC 115.

 

22.             Learned counsel submitted that there was nothing improper or illegal in the participation of the Principal of the College in the first enquiry proceedings.  It was submitted that the decision to suspend the petitioner was merely processed by the Principal and communicated by him but was actually ratified by the Governing Body. Learned counsel submitted that so long as Principal did not take part in the decision making process and act as an Enquiry Officer, there was no infirmity or unfairness in the domestic enquiry.

 

23.             Learned counsel submitted that the final award is not tenable in law because Industrial Tribunal did not consider all the materials and analyze the evidence led before it.  Learned counsel's first contention was that even if the order setting aside the enquiries were to be upheld nothing preventing the Tribunal from examining and considering the materials which were part of the enquiry proceedings.  It was claimed that such documents and deposition were constituted “materials on record” under Section 11-A of the Industrial Disputes Act.

 

24.             Learned counsel relied upon the evidence led before the Tribunal by the College to say that the workman had acted in an objectionable manner, by refusing to process the overtime bills of Sh. K.C. Gupta and also using abusing language.  He relied upon the deposition of Sh. K.C. Gupta, Sh. Ralli, Sh. B.L. Kapur and Sh Ojha, MW-8. 

 

25.             Learned counsel lastly submitted that even if the Tribunal was justified in proceeding to direct reinstatement, its exercise of discretion in directing reinstatement and full back wages was erroneous.  He relied upon a few judgments of the Supreme Court, particularly, General Manager, Haryana Roadways vs. Rudhan Singh, 2005(5) SCC 591 to say that there is no thumb rule that in every case where a penalty or dismissal is set aside, the workman has to be granted full back wages.  It was submitted that on the contrary the recent judicial thinking is to curtail back wages. 

 

26.             The workman, Sh. C.L. Yadav who argued himself in these proceedings, leveled allegations of mala-fide on the management. He submitted that he had undergone great deal of harassment and mental agony, which has resulted in ruination of his health.  He claimed that during the pendency of these proceedings, which accordingly to him, got prolonged, he had to undergo angio-plasty and   he is suffering heart ailment.

 

27.             The workman submitted that all actions of the college in proceeding to hold an enquiry and impose penalties, were vitiated because the power to do so did not vest with the Governing Council of the college which is directly administered by virtue of the ordinance XX-C by the University.  It was submitted that emergency power is vested only with the Vice Chancellor and the college has no manner of authority to impose the penalty of dismissal which had to be taken by the Executive Council.

 

28.             The workman submitted that the scope of the proceedings under Article 226 of the Constitution of India while considering challenges to awards of Industrial Tribunal would be limited.  The Court does not exercise appellate powers; it is to consider the legality of the award.  It was submitted that the Court should not examine the evidence and materials before the Labour Court, minutely to find out whether the conclusions and inferences drawn were correct.  It was submitted that the Tribunal was justified relying upon and considering only the additional evidence led before it and not examining the materials placed or adduced in the enquiry proceedings.

 

29.             The workman submitted that the participation of the Principal as Presenting Officer in the first enquiry; denial of documents for the purpose of cross-examination in the second enquiry and also denial of representation in both the enquiries vitiated the proceedings.   Therefore, The Tribunal was justified in setting aside the enquiry in holding the domestic proceedings to be unfair.

 

30.             The petitioner also took me through the evidence and cross-examination of the witnesses relied upon by the college management to say that they were unworthy of acceptance and in any case even on a proper examination of such material, the award of the Tribunal cannot be faulted. 

 

31.             The petitioner relied upon several judgments including the rulings reported as Gammon India Limited vs. Niranjan Dass, (1984) 1 SCC 509 and  Hindustan Carbide Pvt. Ltd. v. Government of NCT  of Delhi & Ors., 95(2002) DLT 689 to say that once the Court sets aside a penalty or a termination order the natural course ought to be direction to reinstate the workman with full back wages.

 

32.             The following points arise for consideration in these proceedings:

 

(i)Whether the first impugned order dated 21.3.1996 setting aside both the domestic enquiry is legal and valid;

(ii)If the answer to Point No.1 is in the affirmative, whether the Tribunal was under a duty to consider evidence led in the enquiry proceedings in addition to the additional evidence produced before it;

(iii)Whether, upon an examination of the materials the conclusions and findings arrived at by the Tribunal are justified and legal;and

(iv)The appropriate relief.

 

Point No.1

 

33.             The petitioner college had contended that the correctness or legality of the first impugned order setting aside both the enquiry proceedings had not been assailed by it in view of the law laid down by the Supreme Court in Cooper Engineering Ltd. v. P.P. Mundhe, AIR 1975 SC 1900.  The Supreme Court had indicated that the soundness of findings on a preliminary issue as to the fairness or otherwise of a domestic enquiry should not be ordinarily questioned in writ proceedings since such a course of action would stall the further progress of adjudication in the main industrial dispute which would not be conducive to the interests of both the parties.  Therefore, I am of the opinion that the explanation by the petitioner management that it chose not to assail the findings in the first impugned order in 1996 itself, cannot be faulted. 

 

34.             The first and perhaps most important ground on which both the enquiries held to have been vitiated was the refusal by the college, to permit the respondent workman assistance a defense representative.  The first impugned order could show that the workman had in respect of the first charge sheet claimed assistance of a legal practitioner, which was denied.  He then sought permission to seek the assistance of one among three employees.  These employees were working in other institutions of the university or affiliated to the university but were not employees of the petitioner college.  The request was rejected.  Likewise, the request of the workman for assistance by an employee of another college, in the second enquiry proceedings was also rejected.  The rationale of denying, both the requests for representation was that the workman ought to have confined his request for assistance from amongst the employees/workmen in the institution itself.

 

35.             The Tribunal held that denial of the request to be represented by an employee of his choice resulted in unfairness.  This finding was in view of the fact that the workman had to defend about 18 charges in the first enquiry and 13 charges in the second enquiry; he was pitted against the Principal who had been appointed as the Presenting Officer in the first enquiry and also that the concerned rule did not prohibit the participation of an employee of another institution.  The Tribunal had rejected the submission of the college that only by virtue of subsequent amendment of 1982 were outside employees permitted to defend charged officers of a college.

 

36.             Regulation 70(8) read as follows:

“(8) The employees may take the assistance of any other employee present the case on his behalf who may not engage a legal practitioner for the purpose. ''

 

37.             After its amendment in 1982, the provision reads as follows:

“The employee may take the assistance of any other employee either of the University of any college to present the case on his behalf but may not engage a legal practitioner for this purpose.

Provided that no employee shall be permitted to assist at a time more than one disciplinary proceedings initiated by the University and/or any College.”

 

38.             The right to be represented in an enquiry proceeding is not an unqualified one. In  the judgments of the Supreme Court, reported as N. Kalindi v. Tata Locomotive & Engg. Co. Ltd AIR 1960 SC 914 and Dunlop Rubber Co. (India) Ltd. v. Workmen  AIR 1965 SC 1392, it was held that though in inquiry proceedings, it would be desirable that a charged employee should be given the benefit of such representation, yet, unless there is a condition in the contract of employment, or rules, or standing orders, the denial of such representation does not lead to an automatic inference of failure of principles of natural justice.

 

39.             The matter was examined in the judgment reported as Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi, (1993) 2 SCC 115, where the Supreme Court ruled, inter alia, that:

"It is, therefore, clear from the above case-law that the right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent’s right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the instant case the delinquent’s right of representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer, staff-member or a member of the union, albeit on being authorised by the State Government. The object and purpose of such provisions is to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is, therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts with the principles of natural justice."

 

40.             The law was again reviewed in Indian Overseas Bank v. Indian Overseas Bank Officers' Assn.,  (2001) 9 SCC 540, where the Supreme Court held as follows:

 

"The issue ought to have been considered on the basis of the nature and character or the extent of rights, if any, of an officer-employee to have, in a domestic disciplinary enquiry, the assistance of someone else to represent him for his defence in contesting the charges of misconduct. This aspect has been the subject-matter of consideration by this Court on several occasions and it has been categorically held that the law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognise such a right and provide for such representation. (N. Kalindi v. Tata Locomotive & Engg. Co. Ltd AIR 1960 SC 914 , Dunlop Rubber Co. (India) Ltd. v. Workmen  AIR 1965 SC 1392 , Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi(1993) 2 SCC 115  and Bharat Petroleum Corpn. Ltd. v. Maharashtra General Kamgar Union  (1999) 1 SCC 626)"

(emphasis supplied)

 

41.             In this case, there is a provision, namely Regulation 70(8) enabling the employee to be represented by another employee. The question is whether the reference to "employee" has to be interpreted restrictively, as the College management did, to confine the zone to co-employees of the workman, in the College. The college  is administered by the University. The latter part of the regulation disentitles representtion by a lawyer, or legally trained person. These two factors give a clue that the intention was to treat the expression "employee" in an expansive manner, rather than a restritictive manner.

 

42.             The facts also disclose that the workman was charged with several incidents, and had to undertake cross examination where at least in one inquiry, he was pitted against the Principal, who was arrayed as the Presenting Officer. The isolated request and its rejection, for representation, by itself might have not pointed out to prejudice. However, these factors, and the workman's consistent stand that it would be difficult for him to undertake cross examination, unless defence representation of his choice were permitted, led the Tribunal to conclude that the workman was prejudiced by the rejection of this request. There is no dispute that the employees requested by the workman, were employees of the University, or some other institution. Unlike in the decided cases of the Supreme Court, the regulation does not confine the right to be represented by a member of the Union recognized by the College, or operating for employees of the institution.

 

43.             The submission of the College that the amendment of 1982 could not be given effect to, in this case, and that would be the result, if the Tribunal's interpretation were to be accepted, in my opinion, is not merited. The amendment of 1982 did not remove any prohibition or bar which existed, preventing the management of a college from permitting employees of other institutions from acting as defense representatives; it merely clarified the intention of an existing regulation. The reason for this could be myriad; though it is idle to speculate, one possibility that can be taken into consideration is that the employee charged would, in certain given situations, be likely to face a hostile environment, where co-employees would be unwilling to step forward and defend him.

 

44.             I am therefore, not persuaded to accept the contention of the petitioner that the Tribunal erred in holding that the domestic enquiry into both charges were wrongly set aside, on the ground of un-aivailability of a defense assistant.

 

45.             The second reason why the enquiry into the first charge sheet was set aside, was that the Principal of the College, who participated in the decision making process to suspend the workman, and also was present in the first enquiry, as a witness, acted as a presenting officer, in respect of the first charge sheet. This ground relates to the fairness of the first charge sheet. In normal circumstances, the presence of a complainant or informant, in the proceeding, would not by itself result in failure of principles of natural justice. (See Motor Industries Ltd -vs- Shaikh Mohammed  1978 Lab IC 1355;  Vijaya Mohini Mills -vs- Industrial Tribunal  1993 (1) LLJ 162).

 

46.             The circumstances of the particular case however, have to be cumulatively taken together. The Award, and the first impugned order would show that the management did not dispute that the Principal, who was also the presenting officer, deposed in the proceedings; the witnesses who gave evidence against the workman were all employees of the College, which was headed by him. Taken together, these factors were held to have injected sufficient unfairness in the proceedings, to vitiate it. Given these facts, I am not inclined to take a view different from what was found by the tribunal, on this issue.

 

 

Point No. 2

 

47.             The Supreme Court in Indian Iron & Steel Co. Ltd. v. Workmen AIR 1958 SC 130, had held that in cases of dismissal, the Industrial Tribunal could not assume the role of a court of appeal; it lacked competence to substitute the view of the management, on the issue of penalty. It could step in when there was want of good faith, victimisation or unfair labour practice by the management. This was followed in Punjab National Bank Ltd. v. Workmen  AIR 1960 SC 160.  In Bharat Sugar Mills Ltd. v. Jai Singh (1962) 3 SCR 684 the question of allowing an employer to lead evidence before the Tribunal to justify its action (after the domestic enquiry was found to be defective) was considered. The court ruled that in it would be appropriate to allow the parties to lead evidence so that the Tribunal could satisfy itself about the misconduct alleged against the workman. This decision was affirmed in Ritz Theatre (P) Ltd. v. Workmen  AIR 1963 SC 295, Khardah Co. Ltd. v. Workmen AIR 1964 SC 719 Workmen v. Motipur Sugar Factory AIR 1965 SC 1803 and State Bank of India v. R.K. Jain  (1972) 4 SCC 304.   Delhi Cloth & General Mills Co. v. Ludh Budh Singh (1972) 1 SCC 595 was a case where the Supreme Court held that where an employer failed to hold an enquiry before dismissing a workman, it could produce relevant evidence before the Tribunal to show that the action was justified.

 

48.             Section 11-A was introduced in the Industrial Disputes Act, amended on the recommendation of the International Labour Organization. It empowered the Tribunal not only to set aside the order of dismissal and direct reinstatement of the workman, but also to award lesser punishment. The proviso to Section 11-A, however, provided that the Tribunal would rely only on the material already on record and shall not take any fresh evidence. This legislative interlude threw up a question in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd.  AIR 1973 SC 1227 about jurisdiction of the Tribunal to permit evidence to decide the merit of the charges and it was laid down that in spite of the prohibition contained in the proviso to Section 11-A the Tribunal, in order to satisfy itself as to the guilt of the person charged, had the jurisdiction to take the evidence and that the law in that regard had not undergone any change. It was held that if the domestic enquiry had been held by the employer, the Tribunal would examine the merits of that enquiry and would confine itself to the evidence already on record. Where, however, the enquiry was defective, the Tribunal could take fresh evidence to decide the merits of the charges. Firestone was later approved and followed in a number of cases, including East India Hotels v. Workmen AIR 1974 SC 696; Cooper Engineering Ltd. v. P.P. Mundhe AIR 1975 SC 1900; Ruston & Hornsby (I) Ltd. v. T.B. Kadam AIR 1975 SC 2025, and Bharat Forge Co. Ltd. v. A.B. Zodge  1996 (4) SCC 374.  In United Planters Assn. of Southern India v. K.G. Sangameswaran, (1997) 4 SCC 741, the Supreme Court reiterated that the parties have the right to adduce evidence before the Tribunal and the Tribunal can, on the basis of such evidence, come to its own conclusion as to the guilt of the employee.

 

49.             The correct approach to be adopted by the Tribunal, where the enquiry is set aside, and the management leads additional evidence to justify its action, was considered, specifically in the context of a contention that the evidence led in the domestic enquiry too could be considered as materials on record, in Neeta Kaplish v. Presiding Officer, Labour Court, (1999) 1 SCC 517. The court rejected the contention and held that it was neither "material on record" nor "fresh evidence", stating as follows:

 

“The record pertaining to the domestic enquiry would not constitute “fresh evidence” as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute “material on record”, as contended by the counsel for the respondent, within the meaning of Section 11-A as the enquiry proceedings on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and were in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that a full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be “material on record” within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequences.”

 

 

50.             More recently, in  Rajasthan State Road Transport Corpn. v. Bhik Nath,(2005) 2 SCC 369, the Supreme Court had occasion to consider a somewhat similar issue; the only difference was that the management had consented to the procedure adopted by the Labour Court, where the parties had agreed to consideration of the material on record, confined to records of the enquiry. The court upheld the procedure, and declined to interfere with the award of the Labour court, directing reinstatement.

 

51.             In the present case, the enquiry was set aside as unfair. In the discussion on Point No. 1 I have found that the first impugned order is not susceptible to interference. The College led additional evidence, and relied upon the deposition of eight witnesses, who filed affidavits, and were cross-examined. Curiously thereafter, it made a demand to the Tribunal that a fresh inquiry ought to be conducted by some one else; the Tribunal could hardly be faulted for refusing to "outsource" its power, so to say, after it had recorded the additional evidence. The approach of the Tribunal, therefore, in confining its scope of examination of the issues referred to it, on the basis of the additional evidence led before it, cannot therefore be termed as illegal or irregular; it confirms to the law declared by the Supreme Court.

 

Point No. 3

 

52.             It has been noticed, in the preceding paragraphs, that the tribunal held that the materials led could not have justified imposition of the penalties by the management. The question is what is the correct approach, in examining the final award.

 

53.The jurisdiction of the High Court in industrial matters is not appellate; it is of judicial review over the findings of a tribunal. The scope of jurisdiction under Article 226 in appreciating the merits of an award were spelt out in H.S. Chandra Shekara Chari v. Divisional Controller, KSRTC, (1999) 4 SCC 611, where the Supreme Court held as follows:

“''Once the Tribunal had found that the charges against the appellant were not established, it was not open to the learned Single Judge, who had rightly refused to reappraise the evidence, to say that with better proof the charges could have been established. The learned Single Judge had no jurisdiction, not even under Section 11-A of the Industrial Disputes Act, 1947, to enter into the question whether the charges could have been established by better or further evidence. That is not the function of the court or any quasi-judicial authority.”

 

In the judgment reported as P.G.I. of Medical Education & Research v. Raj Kumar, (2001) 2 SCC 54,  the position was reiterated, in the following manner, by the Supreme Court:

“It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect. In the event, however the finding of fact is based on any mis-appreciation of evidence, that would be deemed to be an error of law which can be corrected by a writ of certiorari. The law is well settled to the effect that finding of the Labour Court cannot be challenged in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate though, however, perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the decision of this Court in Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477.”

 

This approach was endorsed in the decision reported as Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan, (2005) 3 SCC 193, where it was held as follows:

“Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere has he come to the conclusion that the finding of the Labour Court was either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court.”

 

54.             An examination of the evidence, and materials adduced before the Tribunal, would necessarily, have to be in keeping in perspective, the settled legal position indicated above. MW-1, Shri K. C. Gupta, the first management witness, in his affidavit, deposed to the he was promoted to the position held by the workman, after he was reduced in rank, further to the first enquiry. In his affidavit, this witness had deposed that the employee had refused to clear his claim for overtime wages, in spite of repeated reminders. He narrated about the incident where he complained to Mr.Ojha, the Vice Principal, about withholding of such amounts, and the incident oof 26-6-1976, where an  almirah was searched, despite the employees' protests, leading to the discovery of the overtime bills. He also deposed about the incident of misbehavior of the employee on that occasion; and his stand that he would receive the salary, but not sign on the register. Shri. Gupta also deposed, in the course of his cross-examination that the workman always took his salary after signing on the attendance register, and that he never refused to sign the register. He denied any knowledge of the two charge-sheets. This witness denied any personal knowledge about the  contents of his affidavit.  He stated, in cross examination, that his knowledge was based on the contents of the charge sheet.  Thus, the principal basis of the change, i.e. misbehaviour, was denied.

 

55.             The second important witness, Prem Sagar Relli, deposed about the incident in an affidavit, whereby the overtime Bills of  Shri KC Gupta were searched by Dr. Ojha, the Vice- Principal, and found in an almirah, despite the employees' protestations. He also deposed, in his affidavit in the industrial proceedings, about the threatening conduct of  the employee, towards Shri Gupta.. In his cross-examination, this witness admitted that he had been asked lo return some amounts which had been wrongly not refunded by him, by the respondent workman. It has come on record, during his deposition, that the workman, objected to the transfer of Rs. 80,000/- from the evening college, a separate and independent institution, maintaining different accounts. This was also corroborated during the evidence of Dr. Krishna Bal, the principal, who deposed as MW-6 before the Tribunal. The workman had sought to enforce the rules, by insisting that inter-college transfers were contrary to procedure.

 

56.             Dr. Mandhata Ojha, who also deposed before the Tribunal, did not mention anything about the allegations of misbehaviour, or malingering by the petitioner, in relation to his duties.

 

57.             The Tribunal, on the basis of the evidence, and materials, concluded that the action by the management in first reducing the petitioner in rank, and then in dismissing him, after the second enquiry, was not justified. I have been taken through the affidavits and depositions of the witnesses. The appreciation of the materials, by the Tribunal might, in regard to certain instances, warrant interference in appellate jurisdiction, since it could be possible to take a different view. Nevertheless, the approach, or the findings are neither unsupported by materials, nor based upon a perverse or unreasonable failure to exercise jurisdiction, warranting exercise of discretion under Article 226 of the Constitution.  I do not see any reason to hold that the findings of fact were upon misappreciation of evidence, or overlooking of material evidence.  The workman had urged that his functioning, particularly raising objections about accounting practices, and transferring funds irregularly by the authorities, was inconvenient, and he has been made to suffer.  There is material to that effect, but in the absence of a finding on that issue by the Tribunal, it would be improper exercise of discretion to return positive findings in writ proceedings, in the management's writ petition.

58.             On the above conspectus of facts, I see no reason to interfere with the Tribunal's findidngs.

Point No.4

 

59.             The Industrial Tribunal, in this case, directed reinstatement, after setting aside the penalty of removal and also the penalty of dismissal from service. The facts show that the workman was out of employment, from 15th October 1980. He had worked for seven years, before that. The industrial dispute, raised by him was referred for adjudication in 1982. The final award was made in 1998. This court directed payment of minimum wages, further to the application under Section 17-B of the Act, after the writ petition was entertained. The workman attained the age of superannuation on 30th April, 2002; after that date, the payment of amounts, as per Section 17-B, ceased.

 

60.             The logical consequence of setting aside a penalty of dismissal would be a direction to pay full backwages, on the premise that the court  restitutes him, to as nearly a position, as existing if the dismissal had not taken place. Other than such a direction, the workman has recourse to no other legal remedy, and any employment obtained by him during the interregnum period, would be for subsistence. A restitutionary order is the logical consequence if an aggrieved party approaches and successfully establishes legal injury by the defendant; such orders, whether by way of compensation, damages, or direction to pay interest, can be seen in all branches of law.

 

61.             In the case of industrial disputes, where the Tribunal holds that a penalty was imposed unjustifiably, this logical consequence is not an invariable thumb rule. The Supreme Court has emphasized the need to balance the equities, particularly in view of the long pendancy of disputes, and likely adverse financial impact if full backwages are directed.

 

62.             In Haryana State Coop. Land Development Bank v. Neelam,(2005) 5 SCC 91, the position was explained as follows:

“The Industrial Courts like any other court must be held to have some discretion in the matter of grant of relief. There is no proposition of law that once an order of termination is held to be bad in law, irrespective of any other consideration the Labour Court would be bound to grant relief to the workman. The Industrial Disputes Act does not contain any provision, which mandates the Industrial Court to grant relief in every case to the workman. The extent to which a relief can be moulded will inevitably depend upon the facts and circumstances obtaining in each case. In the absence of any express provision contained in the statute in this behalf, it is not for the court to lay down a law which will have a universal application.”

 

In an earlier judgment, reported as M.P. SEB v. Jarina Bee,(2003) 6 SCC 141 the Supreme Court held as follows :

“7. In P.G.I. of Medical Education and Research v. Raj Kumar1 this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus: (SCC p. 57, para 9)

“9. The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect.”

Again at para 12, this Court observed: (SCC p. 58)

“12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no strait-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.”

8. The position was reiterated in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya2 and Indian Rly. Construction Co. Ltd. v. Ajay Kumar3.

9. Applying the legal principles, the inevitable conclusion is that the High Court committed an error in holding that the award of full back wages was the natural consequence.”

 

63.             In a case, where the direction to reinstate was upheld, but the management was in acute financial crisis, and the workman had attained the age of superannuation, the Supreme Court upheld the findings on facts, but directed 50% backwages, with gratuity, and all other consequential retrial benefits, in Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan,(2005) 3 SCC 193 in the following terms:

“We have anxiously considered the argument addressed by both sides in regard to the quantum of back wages to be paid to the workman. It is an undisputed fact that the workman had since attained the age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court be reduced to 50% of the back wages. In addition the respondent workman will also be entitled to all other retiral benefits as if he was in service throughout the period when his services were discharged.”

 

64.             In view of the facts of this case, and having regard to relevant circumstances, including the service of the workman, the pendancy of the industrial dispute, I am of the opinion that direction to pay full back-wages was not a proper or sound exercise of discretion. The impugned final award requires to be modified to that certain extent.

 

65.             In view of the above findings, the following directions are issued:

 

1)The findings in the first impugned order, dated 21.3.1996 as well as the final award dated 4.3.1998, of the Industrial Tribunal-I are upheld;

2)The direction to pay full back-wages, contained in the final award dated 4-3-1998 is hereby modified, to the extent, that instead of 100% back-wages, the respondent workman shall be entitled to 60% back-wages, for the period 1-12-1980 to 30-4-2002.

3)The directions contained in the final award regarding continuity and consequential benefits are left undisturbed;

4)The respondent-workman shall be entitled to payment of gratuity and provident fund, on the basis of the above directions; he shall also be entitled to pension, on the basis of such pay-fixation;

5)All the amounts payable to the respondent workman, as per this judgment shall be disbursed to him, within six weeks from today.

 

66.The writ petition, and all pending applications are allowed, in terms of the above directions; Rule made absolute in these terms. No costs.               

 

                                                                               

January 31st, 2006                                                                                                                                                                            S. RAVINDRA BHAT, J.