A bank workman's dismissal dispute concerned reinstatement and the restriction of back wages to 40%. The Court upheld the Tribunal's award and dismissed both the employer's challenge and the workman's claim for full back wages.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Reserved on : 29.07.2021 Pronounced on : 18.08.2021
OWP No.275/2017
Bashir Ahmad Khan …. Petitioner(s) Through: Mr. Altaf Haqani, Sr. Advocate with Mr. Shakir Haqani, Advocate
Versus
Union of India and others ……Respondent(s) Through: Mr. Satinder Singh, CGSC for R-1 and 2 Mr. Z.A.Shah, Sr. Advocate with Ms. Shiva And Sharma, Advocate for R-3 OWP No.1539/2016
J&K Bank Ltd. and another …. Petitioner(s)
Through: Mr. Z.A.Shah, Sr. Advocate with Ms. Shiva Sharma, Advocate Versus
Presiding Officer, Central Govt. Industrial Tribunal & others …Respondent(s) Through: Mr. Satinder Singh, CGSC for R-1 and 3 Mr. Altaf Haqani, Sr. Advocate with Mr. Shakir Haqani, Advocate for R-2
CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE JUDGMENT
v. Presiding Officer, Central Government Industrial Tribunal-cumLabour Court and others, whereas Bashir Ahmed Khan (hereinafter
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“the workman”) is also aggrieved of the impugned award and has challenge the same to the extent same restricts award of back wages only to 40% and deny him full back wages for the intervening period. The workman is petitioner in OWP No.275/2017 titled Bashir Ahmad Khan v. Union of India and others.
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had processed opening of fake and fictitious saving account in the name of non-existent Hafiz Ali Baba and also committed fraud by making fraudulent insertions/alterations in the credit entry of Rs.1,00,000/- to Rs.7,00,000/- by converting the digit “1” to appear as digit “7”. In this manner the workman raised the balance in the said account from Rs.1,11,100/- to Rs.7,11,100/- on 07.04.1997. It was found that the workman, who was responsible for opening the saving account, had not obtained the photographs of ostensible account holder namely, Hafiz Ali Baba on 25.03.1997. Even the cheque book was found to have been issued without obtaining signatures of ostensible depositor on the cheque book. Even Issue Register did not tally with the Cheque Book Issue Requisition Application. The workman had also not done summations while carrying over balance to the next page to avoid detection of the fraud. There were other evidences that also came to light.
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also charge-sheeted. So far as police investigation is concerned, the investigation resulted in prosecution of three persons i.e. workman, Abdul Ahad Mala and one Manzoor Ahmad Sheikh. Prosecution, however, failed to prove charges against the aforesaid persons beyond shadow of reasonable doubt and the trial court vide its judgment dated 26.02.2013 acquitted all of them. So far as Disciplinary proceedings are concerned, as per the employer, the charges framed against the workman were proved and on the basis of departmental enquiry conducted into the misconduct of the workman, the competent authority vide its order dated 24.07.2001 discharged the workman from service.
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appropriate Government for referring the dispute to the Tribunal for adjudication. The Central Government obliged and referred the dispute for determination to the Tribunal.
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aside the order and directed the Disciplinary Authority to hold fresh enquiry. Even in the fresh enquiry, the workman was found guilty of serious misconduct and was dismissed from service by the competent authority. The appeal and the review preferred by the workman did not succeed forcing the workman to approach the Central Government for making reference of the dispute to the determination of the Tribunal under the provisions of Industrial Disputes Act, 1947. The Central Government considered the request of the workman and vide Notification No.L12012/54/2010-IR(B-1) dated 01.02.2011 referred the following dispute to the Tribunal for adjudication:-
“Whether the action of the management of J&K Bank Limited in terminating the services of Sri Bashir Ahmad Khan, S/o Sri Noor Mohd. Khan w.e.f. 15.01.2008 is legal and justified?
To what relief the workman is entitled?”
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parties on the purport and true import of order dated 18.05.2016 passed by this Court.
“11. In the present case workman participated in the departmental enquiry. After perusing the record, the workman failed to point out that any infirmity in the enquiry and there is nothing to show that enquiry was not conducted in a fair and proper manner. Thus it is held that the enquiry was conducted in accordance with the principle of natural justice.”
It is these observations made in order dated 10.09.2013, which were subject matter of challenge in SWP No.2287/2013. This Court after considering the matter and hearing learned counsel for the parties,
held that failure of the employer to provide copy of the FSL report to the workman had the effect of depriving the workman of his right to defend in the enquiry and, therefore, it cannot be said that the enquiry has been conducted properly and fairly. The Court appears to be persuaded to make these observations having regard to the assertion of the workman that FSL report proved his innocence, which assertion of the workman had not been denied by the employer.
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context of failure of the employer to provide copy of FSL report to the workman, which had not connected the workman with the insertions/ interpolations made in the account. In this backdrop, the argument of learned counsel for the employer that this Court did not hold the entire domestic enquiry void ab initio but held that the enquiry was not fair and proper for the reason that the workman had not been provided with copy of the FSL report, thus, depriving the workman of putting up his defence effectively during enquiry, is required to be appreciated.
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by the employer was not fair and proper. The observations made by this Court in paragraph No.8 of the judgment deserves to be noticed at this
stage:-
“8/ The respondent-Bank initiated a departmental enquiry and had referred the matter to FSL. It being a fact, the bank was duty bound to provide copy of FSL report to the petitioner. Whether bank relied upon the FSL report or not, in passing the dismissal order, is inconsequential because the petitioner has been deprived by the act of respondent- Bank to defend himself in the enquiry. The enquiry in these circumstances has not been conducted properly and fairly, moreso, when assertion of the petitioner that the FSL report proved him innocent, has not been denied by the bank.”
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Workman, 1958 SCR 667 as under:-
"Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination, of service of a workman is justified to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is want of good faith; (ii) when there is victimisation or unfair Labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural Justice. and (iv) when on the materials the finding is completely baseless or perverse".
thus:-
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"In cases where an industrial dispute, is raised on the ground of dismissal and it is referred to the, tribunal for adjudication, the Tribunal naturally wants to know whether the impugned dismissal was preceded by a pro- per enquiry or not. Where such a proper enquiry has been held in accordance with the provisions of the relevant standing orders and it does not appear that the employer was guilty of victimisation or any unfair labour practice, that tribunal is generally reluctant to interfere with the impugned orders". It was further emphasised that :
There is another principle which has to be borne in mind when the tribunal deals with an industrial dispute arising from the dismissal of an employee. We have already pointed out that before an employer can dismiss his employee be, has to hold a proper enquiry into the alleged misconduct of the employee and that such an enquiry must always begin with the supply of a specific charge-sheet to the employee".
The effect of an employer not holding an enquiry has been stated as
follows
" But it follows that if no enquiry has in fact been held by the employer, the issue about the merits of the impugned order of dismissal is at large before the tribunal and, on the evidence adduced before it, the tribunal has to decide for itself whether the misconduct alleged is proved, and if yes, what would be proper order to make. In such a case the point about the exercise of managerial functions does not arise at all"
(emphasis supplied)
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powers of an Industrial Tribunal to permit an employer to adduce evidence before it justifying its action after the domestic enquiry was held to be defective. It was argued on behalf of the workman that once the Tribunal found the domestic enquiry to be defective, it had no option but to dismiss the application filed by an employer for approval and that it
cannot allow an employer to adduce evidence before it justifying its action. This contention was rejected by the Supreme Court in the following words:-
"When an application for permission for dismissal is made on the allegation that the workman has been guilty of some misconduct for which the management considers dismissal the appropriate punishment the Tribunal has to satisfy itself that there is a prima facie case for such dismissal. Where there has been a proper enquiry by the management itself the Tribunal, it has been settled by a number of decisions of this Court has to accept the finding arrived at in that enquiry unless it is perverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. But the mere fact that no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the work-man has been guilty of the alleged misconduct has been made, out. The proper way of performing this duty where there has not been a proper enquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct. When such evidence is adduced before the Tribunal the
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management is deprived of the benefit of having the findings of the domestic tribunal being accepted as prima facie proof of the alleged misconduct unless the finding is perverse and to prove to the satisfaction of the Tribunal itself that the workman was guilty of the alleged misconduct. We do not think it either just to the management or indeed even fair to the workman himself that in such a case the Industrial Tribunal should refuse to take evidence and thereby drive the management to make a further application for Permission after holding a proper enquiry and dePrive the workman of the benefit of the Tribunal itself being satisfied on evidence adduced before it that he was guilty of the alleged misconduct".
"It is well-settled that if in employer serve the relevant charge or charges on his employee and holds a proper and fair enquiry, it would be open to him to act upon the report submitted to him by the Enquiry Officer and to dismiss the employee concerned. If the enquiry has been properly held, the order of dismissal passed against the employee as a result of such an enquiry can be, challenged if it is shown that the conclusions reached at the, departmental enquiry were perverse or the impugned dismissal is vindictive or mala fide, and amounts to an unfair labour practice. In such an enquiry before the Tribunal, it is. not open to the Tribunal to sit in appeal over the findings recorded at the domestic enquiry. This Court has held that when an proper enquiry has been held, it would be open to the Enquiry Officer holding the, domestic enquiry to deal
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with the matter on the merits bona fide and come to his own conclusion".
Again regarding the procedure to be adopted when there has been
no enquiry or when there has been a defective enquiry, it was stated:
"It has also been held that if it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the employee to meet the charge, or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all. In other words, where the Tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry has been held or the enquiry which has been held is not proper or fair or that the findings recorded by the Enquiry Officer are perverse, the whole issue; is at large before the Tribunal. This position also is wellsettled".
It was further held that it is only where a tribunal is satisfied that a proper enquiry has, not been held or that the, enquiry having been held properly the finding recorded is perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute, when permission has to be given to an employer to adduce additional evidence
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“27. From those decisions, the following principles broadly emerge:-
(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the, findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the, merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction. to consider the evidence placed before-it for the first time in justifications of the action taken only, if no enquiry has
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been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his, action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee, and to enable the Tribunal itself to be satisfied about the alleged misconduct, (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to, suggest victimisation.
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“32. We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd.(1) existed. The conduct of disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has now been changed by section 11A. The words "in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified" clearly indicates that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer, establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by ,lie Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Ltd. 1958 SCR 667, case can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is 'correct; but also to differ from the said finding if a proper case is made out. What was once largely in the
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realm of the satisfaction of the employer, has ceased to be so: and now it is the satisfaction of the Tribunal that finally decides the matter.”
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to adduce evidence to support the charges against workman justifying the order of dismissal.
Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha and others, (1980)
2 SCC 593 .
“81. The second limb of the argument was that a writ of certiorari could not be issued to correct errors of facts. In this connection after affirming the ratio in Engineering Mazdoor Sabha v. Hind Cycle Ltd., 1963 Supp (1) SCR 625 this Court observes that what is important is a question of law arising on the face of the facts found and its resolution ex facie or sub silentio. The Arbitrator may not state the law as such; even then such acute silence confers no greater or subtler immunity on the award than plain speech. We do not dilate on this part of the argument as we are satisfied that be the test the deeply embedded rules to issue certiorari or the traditional grounds to set aside an arbitration award 'thin partition do their bounds
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divide' on the facts and circumstances of the present case. Broadly stated, the principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasijudicial tribunals or administrative bodies exercising the quasi-judicial powers within the leading strings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can he no ground for interference. The power of judicial supervision of the High Court under Article 227 of the Constitution (as it then stood) is not greater than those under Article 226 and it must be limited to seeing that a tribunal functions within the limits of its authority [see Nagendra Nath Bora & Anr. v. The Commissioner of Hills Division & Appeals, Assam & ors, 1958 SCR 1240]. This led to a proposition that in exercising jurisdiction under Article 226 the High Court is not constituted a Court of appeal over the decision of authorities, administrative or quasi-judicial. Adequacy or sufficiency of evidence is not its meat. It is not the function of a High Court in a petition for a writ under Art 226 to review the evidence and to arrive at an independent finding on the evidence. [See State of Andhra Pradesh v. S. Shree Rama Rao (1964) 3 SCR 25 at p.33. A constitution Bench of this Court in P. H. Kalyani v. M/s Air France, Calcutta, (1964) 2 SCR 104 succinctly set out the limits of the jurisdiction of the High Court in dealing with a writ petition. It was said that in order to justify a writ of certiorari it must
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be shown that an order suffers from an error apparent on the face of the record. It was further pointed out that in the finding of fact is made by the impugned order and it is shown that it success from an error of law and not of fact, a writ under Article 226 would issue, and, while so saying, the decision in Nagendra Nath Bora's case was affirmed. Following the aforementioned decision, the Gujarat High Court in Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd., (1978) 19 guj LR 108 at p.140 observed that the amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to the conclusion to which the Arbitrator has arrived.”
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record. Such being the extent of writ jurisdiction, I do not wish to interfere with the impugned award insofar as it holds the order of dismissal of the workman dated 15.01.2008 illegal and unjustified and directs the re-instatement of the petitioner in service.
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the case of Hindustan Motor Limited v. Tapan Kumar Bhattacharya and another, (2002) 6 SCC 41 and contend that Section 11A of the Industrial Disputes Act vests wide discretion in the Industrial Tribunal in the matter of awarding proper punishment and also in the matter of terms and conditions on which reinstatement of the workman can be ordered. However, it is fairly conceded by the learned senior counsel that there could be no straight jacket formula for awarding back wages and it turns on facts and circumstances of each case.
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of the considered view that even if the case is remanded to be adjudicated again on this aspect, the workman may not be entitled to wages more than 40%, as awarded by the Tribunal in terms of the impugned award.
JAMMU
18.08.2021 Vinod, PS
Whether the order is speaking: Yes
Whether the order is reportable: Yes
VINOD KUMAR 2021.08.20 12:53 I attest to the accuracy and integrity of this document
3 issues framed by the court
Was the reinstatement award vitiated by jurisdictional error or perversity?
Could the Tribunal receive fresh evidence without separately declaring the domestic enquiry defective after the High Court had already held it unfair?
Was the award of only 40% back wages justified?
Colour shows how this judgement treated each authority
SWP No.2287/2013Explained¶61
Indian Iron Steel Co. Ltd.v. WorkmanReferred¶63
1958 SCR 667 · Who else cites this
Punjab National Bank Ltd. v. Its workmenRelied on¶66
Punjab National Bank Ltd. v. Its workmen, 1960-1 SCR 806 · Who else cites this
M/s Bharat Sugar Mills Ltd. v. Jai SinghRelied on¶75
(1962) 3 SCR 684 · Who else cites this
Management of Ritz Theatre (P) Ltd. v. Its WorkmenRelied on¶82
Management of Ritz Theatre (P) Ltd. v. Its Workmen, (1963) 3 SCR 461 · Who else cites this
Hindustan Tin Works Pvt. Ltd vs Employees Of Hindustan Tin Works Pvt. LtdReferred¶125
AIR 1979 SC 75 · Who else cites this
Deepali Gundu Surwase v. Kranti Junior Adhyapak MahavidyalayaReferred¶125
Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 · Who else cites this
Jasmer Singh vs State Of Haryana & AnrReferred¶125
(2015) 4 SCC 458 · Who else cites this
Hindustan Motor Limited v. Tapan Kumar Bhattacharya and anotherReferred¶127
Hindustan Motor Limited v. Tapan Kumar Bhattacharya and another, (2002) 6 SCC 41 · Who else cites this
3 provisions across 2 enactments
Bashir Ahmad Khan
Union of India
J&K Bank Ltd.
Presiding Officer, Central Govt. Industrial Tribunal
Sanjeev Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
