Dismissed

Bashir Ahmad Khan v. Union of India and Others (Labour)

J&K HC18 Aug 2021OWP/275/2017

Case brief

AI extract

What is this about?

In a review of an Industrial Tribunal award regarding the reinstatement and back wages of a workman dismissed for fraud, this Court held that while the Tribunal did not hold a fresh enquiry because the prior one was defective, it had no jurisdiction to sit in appeal and must uphold the award against claims of perversity, maintaining the 40% back wage limit.

What did the court decide?

Both writ petitions dismissed; impugned award of 40% back wages and reinstatement upholds.

Bashir Ahmad Khan Vs Union of India and Others… — Labour and Industrial Disputes | J&K HC (2021)

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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

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Reserved on : 29.07.2021 Pronounced on : 18.08.2021

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OWP No.275/2017

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Bashir Ahmad Khan …. Petitioner(s) Through: Mr. Altaf Haqani, Sr. Advocate with Mr. Shakir Haqani, Advocate

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Versus

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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

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J&K Bank Ltd. and another …. Petitioner(s)

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Through: Mr. Z.A.Shah, Sr. Advocate with Ms. Shiva Sharma, Advocate Versus

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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

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CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE JUDGMENT

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Award dated 11.07.2016 passed by the Central Govt. Industrial Tribunal-cum-Labour Court-1, Chandigarh [“the Tribunal”] in case titled Bashir Ahmed Khan v. The Chairman, Jammu & Kashmir Bank Limited and another is subject matter of challenge in these two writ petitions.

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The Jammu and Kashmir Bank Limited (hereinafter “the employer”) has assailed the impugned award in its entirety in OWP No.1539/2016 titled The Jammu and Kashmir Bank Ltd. and another

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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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Before the rival contentions of the parties in support of their respective cases are considered and appreciated, brief reference to the factual antecedents leadings to the filing of these two petitions would be advantageous.

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Way back in the year 1996, the workman was working as Cashier-cum-clerk in one of the branches of the employer situated at Fruit Complex, Srinagar. After the workman was transferred from the said branch and while tallying the balance, discrepancy of Rs.5,79,025/- was found in saving bank account No.2204/23 opened in the name of one Hafiz Ali Baba S/o Mohammad Sidiq Baba R/o Parimpora P.C.Depot, Srinagar. Upon further enquiry, the employer found that some fraudulent insertions had taken place in the said account. During preliminary verification, it surfaced that the said account was actually operated and maintained by the workman till he was posted in Fruit Complex Banch of the Bank. It was further noticed that after the transfer of the workman, withdrawal had taken place in the said account between the period from 19.05.1997 to 24.05.1997. Having noticed the commission of serious offence, the employer lodged an FIR with the concerned Police Station. During the course of investigation, it further surfaced that the workman

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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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In view of these serious misconduct committed by the workman, the employer decided to hold a departmental enquiry to provide an opportunity of being heard to the workman and to fix the responsibility. Charges against the workman were framed on 18.08.1997 and the disciplinary proceedings were ordered against him by the competent authority. Admitted hand writings were sent to the Forensic Science Laboratory at Srinagar and also Forensic Laboratory, Shimla for opinion. Findings of both the laboratories were indefinite and uncertain and, therefore, not relied upon by the employer. As is gatherable from the record, apart from the workman, the other officials of the branch were

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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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Aggrieved, the workman filed an appeal before the appellate authority. The appeal was accepted and the order of discharge of the workman was set aside. The matter was remanded back to the Disciplinary Authority for conducting fresh enquiry. The fresh enquiry was, thus, initiated against the workman and the enquiry officer after culmination of the enquiry submitted his report on 14.10.2004 to the Competent Authority. In the de-novo enquiry again the charges against the workman were found proved and, therefore, order of dismissal was passed by the competent authority on 15.01.2008. The workman again appealed to the appellate authority. This time, the appellate authority rejected the appeal of the workman vide its order dated 29.12.2008. The workman even applied for review before the review authority but his petition for review, too, was rejected. Having failed before the appellate authority and the review authority, the workman approached the

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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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While the proceedings before the Tribunal were going on, an order came to be passed on 10.09.2013 observing that the disciplinary enquiry conducted by the employer against the workman had been conducted in tune with the principles of natural justice. These observations made by the Tribunal in para-11 of the order dated 10.09.2013 were assailed by the workman in SWP No.2287/2013 in which this Court vide its order dated 18.05.2016 set aside the impugned observations and directed the Tribunal to proceed ahead with the reference made to it by the Central Government and conclude the same within four weeks from the date copy of the order was served. Accordingly, the Tribunal proceeded in the matter, recorded the evidence led by both the parties and passed the impugned award.

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1. The employer has assailed the impugned award inter alia on the following grounds:-

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i) That the impugned award suffers from grave perversity, in that, the Tribunal without returning any finding as to the validity or otherwise of the domestic enquiry conducted by the employer has assumed the role of enquiry officer/Disciplinary Authority and returned its own findings.

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ii) That the Tribunal has failed to point out any circumstance which would warrant interference with the punishment awarded by the employer.

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iii) That the Tribunal has not correctly appreciated that in the matter of award of punishment to delinquent workman proportionate to the role played by them in the misconduct, principle of equity envisaged under Article 14 and 16 of the Constitution cannot be invoked. It is best left to the employer to determine as to what punishment should be inflicted on the delinquent workmen depending upon his involvement in the acts and omission, which constitute misconduct.

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iv) That the finding of fact recorded by the Tribunal on the basis of evidence on record are not supported by any evidence and, therefore, perverse.

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v) That much reliance by the Tribunal on the peripheral evidence and ignoring oral evidence and circumstantial evidence has rendered the entire award perverse and liable to be set aside.

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9) Per contra, the workman has supported the award contending that the findings returned by the Tribunal are on the basis of evidence that was brought on record by the parties during the course of proceedings before the Tribunal. The workman, however, finds fault with the impugned award insofar as it holds the workman entitled to back wages only to the extent of 40%. It is submitted that after this Court holds the domestic enquiry conducted by the employer unfair and invalid, the necessity, if any, to declare the said enquiry invalid by the Tribunal was obviated. The Tribunal rightly called upon the employer to prove and substantiate the charges framed against the workman.

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In view of the total failure on part of the employer to prove any of the charges levelled against the workmen, the Tribunal was left with no option but to reject the claim of the employer and hold the order of termination/dismissal of the workman bad in the eye of law. The Tribunal, therefore, rightly passed the award holding the order of discharge/termination bad in the eye of law and correctly directed the employer to reinstate the workman within one month from the date of publication of the award. The Tribunal, however, erred in holding the workman entitled only to 40% of the back wages, whereas in view of his complete exoneration of the charges, he would be entitled to back wages to the extent of 100%. This, in a nutshell, is the case set up by the workman both in his writ petition as also in response to the petition filed by the employer.

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Having heard learned counsel for the parties and perused the record, two questions arise for determination:-

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i) Whether the impugned award is perverse and suffers from jurisdictional error and, therefore, liable to be set aside in its entirety?

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ii) Whether in the facts and circumstances of the case, award of 40% back wages to the workman by the Tribunal is justified?

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Indisputably, the workman was charge-sheeted by the employer along with two others and was found guilty of the charges in the domestic enquiry. Acting upon the findings of the domestic enquiry, the workman was discharged by the employer. On appeal, the appellate authority set

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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:-

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“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?

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To what relief the workman is entitled?”

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This is how the dispute aforesaid landed before the Tribunal for adjudication. As noticed above, initially an interlocutory order was passed by the Tribunal on 10.09.2013 in which the Tribunal in para-11 observed that the domestic enquiry conducted by the employer was fair and properly conducted. Aggrieved by the aforesaid observation, the workman approached this Court by way of SWP No.2287/2013, which was disposed of vide order dated 18.05.2016. This Court accepted the writ petition, set aside the impugned observations and directed the Tribunal to proceed ahead with the reference and conclude the same within four weeks. Much has been argued by the learned counsel appearing for the

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parties on the purport and true import of order dated 18.05.2016 passed by this Court.

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With a view to better appreciate the issue, it is necessary to set out the observations of the Tribunal made in para-11 of the order dated 10.09.2013, which read thus:-

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“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.”

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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,

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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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From the above, it clearly transpires that this Court clearly held that the domestic enquiry conducted by the employer was not proper and fair. Though, the aforesaid observation was made by this Court in the

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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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As is evident from a bare reading of the order of this Court dated 18.05.2016, this Court ultimately set aside the finding recorded in para-11 of order dated 10.09.2013 passed by the Tribunal and directed the Tribunal to proceed ahead with the reference. Whether after passing of the aforesaid order by the High Court, it was open for the Tribunal to permit the employer to substantiate its domestic enquiry or the Tribunal was entitled to hold an independent enquiry into the charges after permitting both the parties to lead their respective evidence is another ticklish question to be answered in these petitions.

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It is the clear stand of the employer that FSL report, which could not render specific opinion in the matter and on which the workman places reliance to claim innocence was not relied upon by the employer during domestic enquiry and, therefore, no prejudice had been caused to the workman. This argument of Mr.Z.A.Shah is seemingly attractive but when analysed in light of the judgment of this Court dated 18.05.2016 is not well merited. Similar argument was raised before the High Court but the Court on considering the matter concluded that the enquiry conducted

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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

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stage:-

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“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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From a bare reading of the foregoing para, it is abundantly clear that this Court while disposing of SWP No.2287/2013 vide its order dated 18.05.2016, returned a categoric finding with regard to the fairness of the enquiry conducted by the employer. It is true that this Court while returning aforesaid findings was primarily persuaded by the fact that FSL report which had bearing on the culpability or otherwise of the workman had not been provided by the employer during enquiry. Viewed, thus, it is no longer res integra that this Court in its judgment supra declared the enquiry not conducted properly and fairly and this, as rightly contended by Mr. Haqani, learned senior counsel appearing for the workman, obviated the necessity of returning similar findings by the Tribunal.

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In view of the aforesaid position, when the matter came back before the Tribunal, the Tribunal was faced with a situation where there was a termination order of the workman but no enquiry in the eye of law. In such a situation, the Tribunal was well within its powers to direct the employer to lead evidence to substantiate the charges on the basis of which the workman had been terminated from service. With regard to nature of jurisdiction exercised by a Industrial Tribunal when adjudicating a dispute relating to dismissal or discharge of a workman, it was held by Hon‟ble the Supreme Court in the case of Indian Iron Steel Co. Ltd.v.

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Workman, 1958 SCR 667 as under:-

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"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".

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Following the aforesaid decision, the Supreme Court in the case of Punjab National Bank Ltd. v. Its workmen, 1960-1 SCR 806 has held

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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 :

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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".

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The effect of an employer not holding an enquiry has been stated as

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follows

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" 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"

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(emphasis supplied)

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In the case of M /s Bharat Sugar Mills Ltd. v. Jai Singh, (1962) 3 SCR 684 , the question arose before the Supreme Court with regard to the

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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

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cannot allow an employer to adduce evidence before it justifying its action. This contention was rejected by the Supreme Court in the following words:-

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"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".

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The same issue came up for consideration yet again before the Supreme Court in the case of Management of Ritz Theatre (P) Ltd. v. Its Workmen, (1963) 3 SCR 461 . The Supreme Court elaborating on the issue held thus:-

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"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".

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Again regarding the procedure to be adopted when there has been

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no enquiry or when there has been a defective enquiry, it was stated:

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"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".

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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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After considering the entire case law on the subject, the Supreme Court in the case of The Workmen of M/s Firestone Tyre and Rubber Co. of India P. Ltd. v. The Management and others, (1973) 1 SCC 813, in paragraph No.27 of the judgment culled out following principles:-

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“27. From those decisions, the following principles broadly emerge:-

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(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.

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(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.

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(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.

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(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to, adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra.

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(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.

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(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.

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(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.

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(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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(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen, 1971-1 SCC 742, within the judicial decision of a Labour Court or Tribunal.”

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As summed up by the Supreme Court in the case of M/s Firestone Tyre and Rubber Co. (supra), the above was the position of law enunciated by the Supreme Court till Section 11A came to be inserted in the Industrial Disputes Act. The Supreme Court in the aforesaid judgment also discussed the effect of insertion of Section 11A to find out as whether it brought about any change in the adjudication of dispute relating to dismissal or discharge by the Tribunal. In paragraph No.32 of the judgment the Supreme Court concluded thus:-

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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.”

¶109

In view of the aforesaid legal position, it can be fairly held that in the case where the employer has not conducted any enquiry or the enquiry conducted by the employer is held to be defective, it would be open to the employer to adduce evidence for the first time before the Tribunal justifying order of discharge or dismissal. It is, thus, not correct to say that with the insertion of Section 11A in the Industrial Disputes Act, right of the employer to adduce evidence before the Tribunal for the first time, has been taken away. The position after insertion of Section 11A as it emerges is that even now the employer is entitled to adduce evidence for the first time before the Tribunal even if it has held no enquiry or the enquiry held by it has been found to be defective.

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In the instant case, although the employer has conducted an elaborate enquiry against the workman yet in view of the judgment of this Court in SWP No.2287/2013, the enquiry conducted by the employer has been held to be improper and unfair. As held herein above, in view of the aforesaid observations of the High Court, there was no necessity to return similar findings in relation to the enquiry conducted by the employer by the Industrial Tribunal as well. The Tribunal rightly proceeded on the premise that the enquiry conducted by the employer was defective and, therefore, permitted the employer to lead evidence to support its decision to dismiss the workman. This course adopted by the Tribunal was never objected to by the employer rather the employer itself sought permission

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to adduce evidence to support the charges against workman justifying the order of dismissal.

¶113

This brings me to the question as to whether findings of fact recorded by the Tribunal and the view it has taken, is perverse in law, which can be interfered with in exercise of writ jurisdiction. I am of the considered view that this Court while sitting in its extra ordinary writ jurisdiction under Article 226 or Supervisory jurisdiction under Article 227 does not sit in appeal against the award passed by the Industrial Tribunal and it would be loath to interfere unless the award of the Tribunal suffers from perversity or it suffers from an error apparent on face of the record. The legal position in this regard is succinctly put by the Supreme Court in paragraph No.81 of the judgment in Gujarat Steel

¶114

Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha and others, (1980)

¶115

2 SCC 593 .

¶116

“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

¶117

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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

¶119

23 OWP No.275/2017 & 1539/2016

¶120

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.”

¶121

When the impugned award is examined within the constraints put on the exercise of jurisdiction under Article 226 of the Constitution of India, it is seen that the findings of fact have been returned by the Tribunal on the basis of evidence that was led and the record that was put before it and I do not see any perversity or any error apparent on the record. As a matter of fact, Mr Z.A.Shah, learned Senior Counsel representing the employer did not or could not point out any such error of fact or law which would render the award perverse. Even if, this Court, on re-appreciation and re-evaluation of the evidence and the material on record, takes a different view in the matter, it would not interfere with the impugned award unless it is demonstrated that the view taken by the Tribunal is not a possible view in the face of evidence and material on

¶122

24 OWP No.275/2017 & 1539/2016

¶123

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.

¶124

This brings me to the appeal filed by the workman seeking to challenge the impugned award to the extent it denies the workman full back wages and instead directs payment of only 40% back wages. The Tribunal, as is apparent from the reading of the order, has not given any reason as to why the workman has been held entitled to back wages only to the extent of 40% and not full back wages.

¶125

Placing reliance on a judgment of the Supreme Court in the case of Hindustan Tin Works Pvt. Ltd vs Employees Of Hindustan Tin Works Pvt. Ltd , AIR 1979 SC 75 , Mr. Haqani, learned Senior Counsel representing the workman, would argue that once the Tribunal holds termination bad in law and directs re-instatement of the workman, it should ordinarily direct the payment of full back wages unless of course it is established that the workman during the aforesaid period was gainfully employed or that the financial health of the employer is such as would not justify payment of back wages to the workman, who during the period of his ouster has not rendered any services. He has also relied upon decisions of the Supreme Court rendered in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 and Jasmer Singh vs State Of Haryana & Anr, (2015) 4 SCC 458. 31) Per contra, Mr. Z.A.Shah, learned Senior Counsel, representing the employer, would place reliance upon a judgment of the Supreme Court in

¶126

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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.

¶128

Having heard learned counsel for the parties on this aspect of the matter as well and gone through the case law cited, I am of the view that the discretion exercised by the Tribunal for grant of 40% back wages also deserves to be maintained. This is for the reason that the workman has not been fully exonerated but the Tribunal has in the exercise of powers vested in it under Section 11A of the Industrial Disputes Act reduced the punishment from „dismissal‟ to the punishment of „censure‟. There is nothing brought on record by the workman that during the period he remained ousted from service, he remained idle and was not gainfully employed anywhere. As a matter of fact, this aspect has neither been agitated nor considered by the Tribunal and, perhaps, it was a case made out for remand to the Tribunal, however, looking to the fact that the dispute pertains to the year 2008 and it has taken several years to finally grant relief to the workman, it would be too harsh for either side, particularly, to the workman to, once again, be relegated to the Tribunal. It is because of this reason, this Court has evaluated the material on record to find out the justification for awarding of 40% back wages. I am, thus,

¶129

26 OWP No.275/2017 & 1539/2016

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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.

¶131

For the foregoing reasons, I am not inclined to interfere with the impugned award and, therefore, both these writ petitions, which are devoid of any merit, are dismissed along with connected application(s).

¶132

(Sanjeev Kumar)

¶133

JAMMU

¶134

18.08.2021 Vinod, PS

¶135

Whether the order is speaking: Yes
Whether the order is reportable: Yes

¶136

VINOD KUMAR 2021.08.20 12:53 I attest to the accuracy and integrity of this document

Bashir Ahmad Khan v. Union of India and Others (Labour)

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Bashir Ahmad Khan v. Union of India and Others (Labour)

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