G.Annie Christy v. Deputy Chief Mechanical Engineer Personnel Branch Golden Rock Workshop Southern Railway Ponmalai

2.The facts leading to the filing of this appeal are asfollows:(a) The appellant was appointed as a Clerk in SouthernRailway on 08.09.1980 at Trichy under the Physically HandicappedQuota. 29.09.1984 was the salary day for the month of September1984. Being Saturday, the working hours were 10.00 a.m. to 01.30p.m. The appellant, on reaching office, signed the muster roll.Since she was not well due to stomach pain that was due tomenstrual problem, she thought of applying leave. Under suchcircumstances, she wanted to get the salary early. When the cashiercalled the name of one Ms.Arokia Mary Jacintha to pay salary, shewas not there. Since Ms.Arokia Mary Jacintha was not present atthat time, the appellant received the salary of Ms.Arokia MaryJacintha, along with her salary. It was the practice in the officeto receive the salary of co-employee on their behalf. The personreceiving salary of a co-employee, would hand over the same to theconcerned person. After receiving salary, her stomach pain becameacute and she had to change her clothes due to menstrual problem.In those circumstances, the Head Clerk was not available to submitthe leave letter. Hence, she placed the leave letter on the tableof the Superintendent and told him that she was in need of leave.Thereafter, she left to her house, without handing over the salaryamount that was payable to Ms.Arokia Mary Jacintha. Thereafter, atabout 01.30 p.m., she came back to the office to hand over thesalary of Ms.Arokia Mary Jacintha. But, Ms.Arokia Mary Jacinthahad already left the office. Hence, she handed over the salary ofMs.Arokia Mary Jacintha to the Superintendent. According to theappellant, the non-handing over of salary to Ms.Arokia MaryJacintha was only in the aforesaid circumstances. (b) While so, a charge sheet dated 04.10.1984, under Rule9 of the Railway Servants (Discipline and Appeal) Rules, 1968 wasissued to the appellant, making two allegations. Those allegationsare:(i) She was not available in the office on29.09.1984 from 10.15 hours, after signing themuster roll, thereby left the office without anyproper authority from her superiors. (ii) She deliberately received the salary ofMs.Arokia Mary Jacintha, Clerk from the cashierand went away, without informing anybody whichamounts to cheating of a co-employee. Thus, sheviolated the provisions contained in Rule 3(1)(iii) of Railway Services (Conduct) Rules, 1966.(c) The appellant submitted her reply dated 17.10.1984 https://hcservices.ecourts.gov.in/hcservices/ denying the charges. She requested the copies of documents, basedon which, the aforesaid charges were framed, to submit her defencestatement. (d) Not satisfied with her reply, an enquiry was ordered.In the enquiry, 5 witnesses were examined on the side of theappellant. The appellant submitted her defence statement. TheEnquiry Officer found the charges proved. Based on the findings ofthe Enquiry Officer, by an order dated 06.06.1985, the appellantwas removed from service. (e) Against the order of removal, the appellant preferredan appeal dated 19.07.1985 before the appellate authority and theappellate authority rejected the same by an order dated 21.04.1986.(f) The appellant preferred a revision petition dated03.08.1992 before the General Manager. The revisional authorityrejected the revision petition, vide order dated 22.09.1992. (g) The appellant preferred mercy petitions dated08.04.1993 and 09.08.1993 before the General Manager and the samewere also dismissed. (h) Thereafter, the appellant made a representation dated04.11.1999 to the Honourable Minister for Railways, seekingreinstatement. The appellant also made a representation dated22.02.2000 to the Honourable Minister for Social Welfare. She wasadvised to approach the machinery under the Industrial DisputesAct. (i) Accordingly, the appellant filed an application dated12.01.2001 before the Labour Enforcement Officer. This resulted inthe Central Government passing the order dated 11.01.2002, underSection 10 of the Industrial Disputes Act (in short "the Act")referring the following industrial dispute for adjudication by thesecond respondent - Industrial Tribunal. "Whether the action of the Management ofSouthern Railway in dismissing the services ofMrs.G.Annie Christy on the basis of domesticenquiry is justified? If not, what relief theapplicant is entitled?(j) The second respondent – Industrial IndustrialTribunal, took it on file in I.D.No.9/2002. The appellant filedclaim statement before the second respondent – Industrial Tribunal.The first respondent filed counter statement. Enquiry records weremarked as documents Ex.M1 to Ex.M10 on the side of the firstrespondent herein. The second respondent – Industrial Tribunal,exercised its jurisdiction under Section 11-A of the Act, by re-appreciating the evidence adduced in the domestic enquiry and came https://hcservices.ecourts.gov.in/hcservices/ to a different conclusion from that of the Enquiry Officer andrecorded a finding that the charges were not established in theenquiry. The second respondent - Industrial Tribunal passed anaward dated 17.02.2003 in I.D.No.9/2002 holding that the action ofthe first respondent in dismissing the services of the appellant isnot justified and directed the first respondent to reinstate theappellant with continuity of service and backwages and with allother attendant benefits with cost.(k) Against the said order of the second respondent –Industrial Industrial Tribunal, the first respondent – Managementfiled a writ petition in W.P.No.19646 of 2003. The learned singleJudge allowed the writ petition and set aside the award passed bythe second respondent – Industrial Tribunal, by an order dated06.11.2008. Hence the appellant has come up with the present appeal. 3.The learned counsel for the appellant submitted thatthe learned single Judge committed grave error in finding faultwith the Industrial Tribunal for re-appreciating the evidenceadduced in the domestic enquiry. The learned counsel furthersubmitted that the learned single Judge mistook the IndustrialTribunal as the Administrative Tribunal established under theAdministrative Tribunals Act. 4.The learned counsel for the appellant has taken usthrough the order of the learned single Judge and pointed out thatthe learned single Judge repeatedly stated at so many places thatthe Industrial Tribunal committed error by re-appreciating theevidence adduced in the domestic enquiry. The learned counselsubmitted that had the learned single Judge taken into account thefact that the Industrial Tribunal has power to re-appreciate theevidence as an appellate Court, as held by the Honourable ApexCourt in THE WORKMEN OF M/S.FIRESTONE TYRE AND RUBBER CO. OF INDIA(PVT.) LTD. VS. THE MANAGEMENT AND OTHERS reported in 1973 (1) SCC813, the learned single Judge would not have committed this error.According to him, the learned single Judge proceeded as if theIndustrial Tribunal has a limited power that was available prior tothe introduction of Section 11-A to the Act. 5.The learned counsel for the appellant submitted thatthe judgments of the Honourable Apex Court in B.C.CHATURVEDI VS.UNION OF INDIA reported in 1995 (6) SCC 749 and GOVERNMENT OF TAMILNADU VS. A.RAJAPANDIAN reported in 1995 (1) SCC 216 relied on bythe learned single Judge pertain to the jurisdiction of High Courtsand Administrative Tribunals in dealing with disciplinary matters.In the aforesaid judgments, the Honourable Apex Court held thatnormally, the High Courts / Administrative Tribunals cannot re- https://hcservices.ecourts.gov.in/hcservices/ appreciate the evidence and interfere with the finding of factrendered in the departmental enquiry. Thus, those judgments are notclearly applicable to this case. The second respondent – IndustrialTribunal exercised its power under Section 11-A of the Act. TheLabour Courts and Industrial Tribunals are vested with power underSection 11-A of the Act to re-appreciate the evidence and to differwith the findings of the Enquiry Officer, on such re-appreciationof evidence. Hence, the learned single Judge was not correct insetting aside the award of the second respondent - IndustrialTribunal. 6.The learned counsel for the appellant further submittedthat the learned single Judge committed error in stating that thesecond respondent - Industrial Tribunal set aside the dismissalorder mainly on the ground that the copy of the enquiry report wasnot furnished to the appellant. According to him, the dismissalorder was set aside not on the ground of non-supply of enquiryreport, but on the categorical findings by the Industrial Tribunalthat the charges were not made out, on re-appreciation of evidence.7.The learned counsel for the appellant also pointed outthat the learned single Judge failed to take into account the factthat the appellant approached the appellate authority andrevisional authority etc. If those facts were taken into account,the learned single Judge could not have come to the conclusion thatthere was a delay of 16 years. He further pointed out that thefirst respondent admitted in their counter statement about theappellant approaching the appellate authority, revisional authorityand the General Manager. Hence, the learned single Judge committederror in recording that there was a delay of 16 years. On theother hand, the appellant approached the authority under the Actafter 7 years. 8.Relying on the decision of the Honourable Apex Court inAJAIB SINGH VS. SIRHIND COOPERATIVE MARKETING – CUM – PROCESSINGSERVICE SOCIETY LTD., reported in 1999 (6) SCC 82, the learnedcounsel for the appellant submitted that the Limitation Act is notapplicable to the industrial disputes and the first respondentcould mould the relief, even if there is some delay in approachingthe Industrial Tribunal. 9.The learned counsel for the appellant also pointed outthat the judgments of the Honourable Apex Court in U.B.GADHE ANDOTHERS VS. G.M.GUJARAT AMBUJA CEMENT PVT. LTD., reported in 2007AIR SCW 6157 and U.P.S.R.T.C. VS. RAM KISHAN ARORA reported in2007 AIR SCW 7237 relied on by the learned single Judge do notapply to this case, since in those judgments, the question ofpunishment was considered on the basis of the proved charges, whilein the present appeal, the second respondent – Industrial Tribunalhas categorically recorded that the charges were not established. https://hcservices.ecourts.gov.in/hcservices/ Hence, those judgments are not applicable to the present appeal. 10.On the other hand, the learned Government Advocate forthe first respondent submitted that there is no infirmity in theorder of the learned single Judge. The learned Government Advocatefurther submitted that the second respondent – Industrial Tribunalset aside the dismissal order on the ground that the findings ofthe Enquiry Officer was not furnished to the appellant and reliedon the judgment of the Honourable Apex Court in MANAGING DIRECTOR,ECIL HYDERABAD VS, V.KARUNAKAR ETC., AND OTHERS reported in AIR1994 SC 1074, in this regard, wherein the Honourable Apex Courtheld that the decision in UNION OF INDIA AND OTHERS VS. MOHD.RAMZAN KHAN reported in AIR 1991 SC 471 mandating the supply ofreport of the Enquiry Officer before passing the dismissal orderand getting explanation thereon, was held to be prospective andthat therefore, the first respondent could not be found fault fornon-supply of the report of the Enquiry Officer. She furthersubmitted that the learned single Judge has correctly held that thedecision in MOHD. RAMZAN KHAN's case was decided on 20.11.1990 andthe dismissal order was passed much prior to the said judgment andthat therefore, non-supply of the findings of the Enquiry Officer,would not vitiate the dismissal order. Further, the learnedGovernment Advocate submitted that though there was no 16 yearsdelay, there was a delay of 7 years and that therefore, theappellant is not entitled to raise industrial dispute. 11.We have heard the submissions made on either side andperused the materials available on record.12.The appellant was employed as a Clerk in SouthernRailway. A charge sheet dated 04.10.1984 was issued to theappellant under Rule 9 of the Railway Servants (Discipline andAppeal) Rules, 1968, making two allegations and those allegationsare: (i) She was not available in the office on29.09.1984 from 10.15 hours after signing themuster roll, thereby left the office without anyproper authority from her superiors. (ii) She deliberately received the salary ofMs.Arokia Mary Jacintha, Clerk from the cashierand went away, without informing anybody, whichamounts to cheating of a co-employee. Thus, sheviolated the provisions contained in Rule 3(1)(iii) of Railway Services (Conduct) Rules, 1966.Hence, she was dismissed from service, by an order dated06.06.1985, after holding an enquiry. It is an admitted fact thatthe appellant preferred an appeal before the appellate authorityand the same was rejected by an order dated 21.04.1986. The https://hcservices.ecourts.gov.in/hcservices/ appellant preferred a revision petition before the revisionalauthority and the same was also rejected on 03.08.1992. Evenaccording to the first respondent, after the dismissal of therevision petition, the appellant made representations dated08.04.1993 and 09.08.1993 to the General Manager and the same werealso dismissed, holding that no further revision of penalty ispermissible, as per the Railway Servants (Discipline and Appeal)Rules, 1968, as contained in para 15 of the counter statement filedby the first respondent. 13.Thereafter, the Central Government referred theindustrial disputes for adjudication, to the second respondent –Industrial Tribunal. The second respondent – Industrial Tribunalpassed an award dated 17.02.2003 in I.D.No.9/2002 holding that thedismissal of the appellant is not justified. The second respondent– Industrial Tribunal re-appreciated the evidence and came to theconclusion that the charges were not established. This was foundfault by the learned single Judge. The learned single Judge hasheld in paras 12, 13, 14, 15 and 16 in the order under appeal thatthe second respondent ought not to have re-appreciated the evidenceand interfered with the findings in the domestic enquiry. Thelearned single Judge held that the second respondent could not actas a Court of appeal and substitute its own judgment for that ofthe Management. Further, the learned single Judge held that thesecond respondent could not re-appreciate the evidence as anappellate Court and the re-appreciation of evidence is not withinthe domain of Tribunal. In para 12 of the order under appeal, thelearned single Judge held as follows: "12.While considering the Management decisionto dismiss/discharge or terminate the services ofworkman, Tribunal does not act as a Court ofappeal and substitute its own judgment for that ofthe Management."Likewise, in para 15 of the order under appeal, the learned singleJudge held as follows:"15.High Court/Industrial Tribunal is not aCourt of appeal to re-appreciate the evidence.Powers of the Industrial Tribunal to interferewith the cases of dismissal of workman is notunlimited. The Tribunal does not act as a Courtof appeal and substitute its own judgment for thatof the Management....."In para 16 of the order under appeal, the learned single Judge heldas follows: https://hcservices.ecourts.gov.in/hcservices/ "16.Re-appreciation of evidence is not withinthe domain of Tribunal. In the present case, theentire approach of Industrial Tribunal appears tobe to re-appraise the entire evidence. IndustrialTribunal repeatedly observed that Enquiry Officerexhibited bias and partisan attitude in theenquiry. In my considered view, the IndustrialTribunal erred in re-appreciating the entireevidence and arriving its own conclusion.Industrial Tribunal grossly erred in saying thatthe findings of the Enquiry Officer are not basedon legal and acceptable evidence."14.In para 13 of the order under appeal, the learnedsingle Judge relied on the following passage from the judgment ofthe Honourable Apex Court in B.C.CHATURVEDI VS. UNION OF INDIAreported in 1995 (6) SCC 749 in support of her conclusion that thesecond respondent, cannot go into adequacy or reliability ofevidence and to come to a different conclusion from that of theEnquiry Officer."The disciplinary authority is the sole judgeof facts. Where appeal is presented, the appellateauthority has coextensive power to reappreciatethe evidence or the nature of punishment. In adisciplinary inquiry, the strict proof of legalevidence and findings on that evidence are notrelevant. Adequacy of evidence or reliability ofevidence cannot be permitted to be canvassedbefore the Court/Tribunal...."15.In para 14 of the order under appeal, the learnedsingle Judge relied on the following passage from the decision ofthe Honourable Apex Court in GOVERNMENT OF TAMIL NADU VS.A.RAJAPANDIAN reported in 1995 (1) SCC 216."It has been authoritatively settled bystring of authorities of this Court that theAdministrative Tribunal cannot sit as a court ofappeal over a decision based on the findings ofthe inquiring authority in disciplinaryproceedings. Where there is some relevant materialwhich the disciplinary authority has accepted andwhich material reasonably supports the conclusionreached by the disciplinary authority, it is notthe function of the Administrative Tribunal toreview the same and reach different finding thanthat of the disciplinary authority. TheAdministrative Tribunal, in this case, has foundno fault with the proceedings held by the https://hcservices.ecourts.gov.in/hcservices/ inquiring authority. It has quashed the dismissalorder by reappreciating the evidence and reachinga finding different than that of the inquiringauthority."16.In para 15 of the order under appeal, the learnedsingle Judge held that the Industrial Tribunal would interfere inthe punishment only:- "(a) where there is want of good faith(b) when there is victimisation of unfairlabour / practice(c) when there is Management has been guiltyof the basic error or violation of the principlesof natural justice(d) when on the materials before the findingsis completely baseless or perverse."Thus, the learned single Judge, came to the conclusion that thesecond respondent – Industrial Tribunal has no power to re-appreciate the evidence and to go into adequacy and sufficiency ofevidence and to come to a different conclusion from that of theEnquiry Officer, by re-appreciating the evidence like an appellateCourt. 17.On a thorough perusal of the order of the learnedsingle Judge, we are above to see that the learned single Judgeerroneously proceeded, as if the second respondent is anAdministrative Tribunal, established under the AdministrativeTribunals Act. The judgments of the Honourable Apex Court reportedin 1995 (6) SCC 749 and 1995 (1) SCC 216 relied on by the learnedsingle Judge relates to the jurisdiction of the AdministrativeTribunal and the High Courts, in dealing with the disciplinarymatters. Those judgments are not pursuant to industrial disputes,that come for adjudication by the Industrial Tribunals. TheIndustrial Tribunals are specially constituted Courts under the Actand they are clothed with powers under Section 11-A of the Act tore-appreciate the evidence. 18.Prior to introduction of Section 11-A, the power ofthe Industrial Tribunals to interfere with the dismissal imposed bythe Management was limited, only when (a) there is want of good faith, or(b) if it is a case of victimisation or unfairlabour practice or violation of the principles ofnatural justice, or https://hcservices.ecourts.gov.in/hcservices/ (c) there is basic error of facts, or(d) there has been a perverse finding on thematerials. 19.Thus prior to insertion of Section 11-A, theIndustrial Tribunals did not have power to re-appreciate theevidence and to go into the adequacy or sufficiency of the evidenceand to arrive at a different conclusion from that of the EnquiryOfficer, based on the materials available in the domestic enquiry.Further, the Industrial Tribunals and the Labour Courts did nothave powers to modify the punishment of dismissal or to imposelesser punishment. But, this position was altered by introducingSection 11-A of the Act. Section 11-A of the Industrial DisputesAct is extracted hereunder:“11-A. Powers of Labour Courts, Tribunals andNational Tribunals to give appropriate relief incase of discharge or dismissal of workmen. — Wherean industrial dispute relating to the discharge ordismissal of a workman has been referred to aLabour Court, Tribunal or National Tribunal foradjudication and, in the course of theadjudication proceedings, the Labour Court,Tribunal or National Tribunal, as the case may be,is satisfied that the order of discharge ordismissal was not justified, it may, by its award,set aside the order of discharge or dismissal anddirect reinstatement of the workmen on such termsand conditions, if any, as it thinks fit, or givesuch other relief to the workman including theaward of any lesser punishment in lieu ofdischarge or dismissal as the circumstances of thecase may require:Provided that in any proceeding under thissection the Labour Court, Tribunal or NationalTribunal, as the case may be, shall rely only onthe materials on record and shall not take anyfresh evidence in relation to the matter.”The learned single Judge failed to take into account thelegislative change by introduction of Section 11-A of the Act andthe powers of the Industrial Tribunals to re-appreciate theevidence and to arrive at a different conclusion from that of adisciplinary authority. 20.The constitutional validity of Section 11-A of the Actwas questioned by some employers, on its introduction in 1971. TheHonourable Apex Court upheld Section 11-A of the Act in thejudgment in THE WORKMEN OF M/S.FIRESTONE TYRE AND RUBBER CO. OF https://hcservices.ecourts.gov.in/hcservices/ INDIA (PVT.) LTD. VS. THE MANAGEMENT AND OTHERS reported in 1973(1) SCC 813. The statement of objects and reasons for introducingSection 11-A was stated by the Honourable Apex Court in para 3 ofthe said judgment. In this regard, para 3 of the judgment reportedin 1973 (1) SCC 813 is extracted hereunder:"3. Regarding Section 11-A, in the statementof objects and reasons it is stated as follows:“In Indian Iron and Steel Company Limited v.Workmen (AIR 1958 SC 130 at 138), the SupremeCourt, while considering the Tribunal’s power tointerfere with the management’s decision todismiss, discharge or terminate the services of aworkman, has observed that in case of dismissal onmisconduct, the Tribunal does not act as a Courtof appeal and substitute its own judgment for thatof the management and that the Tribunal willinterfere only when there is want of good faith,victimisation, unfair labour practice, etc., onthe part of the management.The International Labour Organisation, in itsrecommendation (No. 119) concerning termination ofemployment at the initiative to the employer,adopted in June 1963, has recommended that aworker aggrieved by the termination of hisemployment should be entitled to appeal againstthe termination among others, to a neutral bodysuch as an arbitrator, a court, an arbitrationcommittee or a similar body and that the neutralbody concerned should be empowered to examine thereasons given in the termination of employment andthat other circumstances relating to the case andto render a decision on the justification of thetermination. The International Labour Organizationhas further recommended that the neutral bodyshould be empowered (if it finds that thetermination of employment was unjustified) toorder that the worker concerned, unless reinstatedwith unpaid wages, should be paid adequatecompensation or afforded some other relief.In accordance with these recommendations, itis considered that the Tribunal’s power in anadjudication proceeding relating to discharge ordismissal of a workman should not be limited andthat the Tribunal should have the power in caseswherever necessary to set aside the order ofdischarge or dismissal and direct reinstatement of https://hcservices.ecourts.gov.in/hcservices/ the workman on such terms and conditions, if any,as it thinks fit or give such other reliefs to theworkman including the award of any letterpunishment in lieu of discharge or dismissal asthe circumstances of the case may require. Forthis purpose, a new Section 11-A is proposed to beinserted in the Industrial Disputes Act, 1947….”21.The Honourable Apex Court, in the judgment reported in1973 (1) SCC 813, has categorically held that the IndustrialTribunal has power and jurisdiction to re-appreciate the evidenceand to record a different findings. In this regard, para 13 of thesaid judgment is extracted hereunder: "13.The above position has been completelychanged by Section 11-A..........Even in caseswhere a domestic enquiry has been held and findingof misconduct recorded, the Labour Tribunals havenow full power and jurisdiction to reappraise theevidence and to satisfy themselves whether theevidence justifies the finding of misconduct....."Paras 40 and 41 of the judgment reported in 1973 (1) SCC 813 arealso relevant for the purpose of this case and the same areextracted hereunder:"40. Therefore, it will be seen that both inrespect of cases where a domestic enquiry has beenheld as also in cases where the Tribunal considersthe matter on the evidence adduced before it forthe first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workmanconcerned, is that of the Tribunal. It has toconsider the evidence and come to a conclusion oneway or other. Even in cases where an enquiry hasbeen held by an employer and a finding ofmisconduct arrived at, the Tribunal can now differfrom that finding in a proper case and hold thatno misconduct is proved.41. We are not inclined to accept thecontentions advanced on behalf of the employersthat the stage for interference under Section 11-Aby the Tribunal is reached only when it has toconsider the punishment after having accepted thefinding of guilt recorded by an employer. It hasto be remembered that a Tribunal may hold that the https://hcservices.ecourts.gov.in/hcservices/ punishment is not justified because the misconductalleged and found proved is such that it does notwarrant dismissal or discharge The Tribunal mayalso hold that the order of discharge or dismissalis not justified because the alleged misconductitself is not established by the evidence. To cometo a conclusion either way, the Tribunal will haveto re-appraise the evidence for itself. Ultimatelyit may hold that the misconduct itself is notproved or that the misconduct proved does notwarrant the punishment of dismissal or discharge.That is why, according to us, Section 11-A nowgives full power to the Tribunal to go into theevidence and satisfy itself on both these points.Now the jurisdiction of the Tribunal to reappraisethe evidence and come to its conclusion enures toit when it has to adjudicate upon the disputereferred to it in which an employer relies on thefindings recorded by him in a domestic enquiry.Such a power to appreciate the evidence and cometo its own conclusion about the guilt or otherwisewas always recognised in a Tribunal when it wasdeciding a dispute on the basis of evidenceadduced before it for the first time. Bothcategories are now put on a par by Section 11-A."22.In view of the judgment of the Honourable Apex Courtreported in 1973 (1) SCC 813, we hold that the learned single Judgecommitted error in holding that the second respondent was notcorrect in re-appreciating the evidence and recorded a differentfinding. 23.Further, as rightly contended by the learned counselfor the appellant, the learned single Judge proceeded as if theIndustrial Tribunal set aside the dismissal order mainly on theground that the report of the Enquiry Officer was not furnished.In this regard, the relevant passage in para 17 of the order underappeal is extracted hereunder:"17.The main ground on which the Tribunal hasset aside the dismissal order was that copy ofEnquiry Officer's report was not given to thedelinquent and that there was violation ofprinciples of natural justice. ......" https://hcservices.ecourts.gov.in/hcservices/

24.In our considered view, the dismissal order was notset aside on the main ground that the findings of the EnquiryOfficer was not furnished to the appellant. On the other hand, thesecond respondent – Industrial Tribunal re-appreciated the evidenceand categorically arrived at the conclusion that the charges werenot established. The second respondent, on re-appreciation ofevidence, held that the appellant left the office urgently, due tosevere stomach pain that was caused due to menstrual problem. Therelevant passage from the award of the second respondent –Industrial Tribunal, in this regard, is extracted hereunder:"..... From the perusal of the EnquiryOfficer's discussion on evidence of the witnessesin the enquiry, it is seen that no suggestion hasbeen put to the petitioner, charge sheetedemployee during cross examination that she had notsubmitted to OS Stores any leave form as per herevidence, that she has deposed falsely for thepurpose of this case and the reason she has givenfor leaving the office urgently due to severestomach pain and menses is false....... On theother hand, she has given acceptable reason abouther physical inability to remain further in theoffice on that day, which has not been challengedor stated as false reason given by her for thepurpose of this case."In view of such a finding, the second respondent – IndustrialTribunal held that the first charge was not established. 25.The second charge was that the appellant deliberatelyreceived the salary of one Ms.Arokia Mary Jacintha, Clerk from thecashier and went away, without informing anybody, in order to cheather co-employee. The second respondent – Industrial Tribunalrecorded a finding that the appellant came back to the office onthe same day itself and handed over the salary due to Ms.ArokiaMary Jacintha and thus it was not a deliberate action to cheat herco-employee. The second respondent – Industrial Tribunal also heldthat it was the regular practice in the office to receive thesalary of a co-employee, on their behalf and to hand over the same,to the concerned employee. In this regard, the relevant passage,from para 6 of the award of the second respondent - IndustrialTribunal is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "G.Annie Christy came back to the office onthe same day and handed over the amount due toMs.Arokia Mary Jacintha and it was not adeliberate action of the petitioner to cheat theco-railway servant. From the evidence it is seenthat it is a practice in the office staff toreceive the salary of co-employee on their behalfand to hand over the same to the concernedemployee. The reason given by the petitioner forher leaving the office after getting her pay aswell as Ms.Arokia Mary Jacintha's pay as that ofher physical inability to continue in the officeon that day further cannot be said to be anafterthought invented by the petitioner for thepurpose of this case and to defend the chargelevelled against her......."The second respondent – Industrial Tribunal also held as follows:"...... On the other hand, there aresufficient and acceptable evidence available asmaterials as both oral and documentary before theEnquiry Officer to come to the conclusion that theguilt of the accused as spoken to in the chargememo has not been proved before the EnquiryOfficer...."26.In fact, the Enquiry Officer also held that threewitnesses viz., Ms.Arokia Mary Jacintha, Mr.Joseph Sekar andMiss.T.Subbulakshmi have accepted that it was the practice in theoffice to receive the salary of a co-employee, if the concernedemployee was not present at the time of calling by the cashier andto hand over the same to the concerned employee later. In fact, theEnquiry Officer also noted that when the appellant received thesalary of Ms.Arokia Mary Jacintha from the cashier,Miss.T.Subbulakshmi, who also received her salary at that time,asked the appellant to hand over the amount to her and she couldhand over the same to Ms.Arokia Mary Jacintha. Further, Mr.JosephSekar himself deposed that he offered to receive the salary ofMs.Arokia Mary Jacintha, when her name was called by the cashierand at that time, the appellant who was also at the cash counter,received the salary. That is, Mr.Joseph Sekar, one of thewitnesses, admitted that he also offered to receive the salary ofMs.Arokia Mary Jacintha. But the Enquiry Officer held that thepractice cannot attain the status of rules and regulations andhence that the appellant cannot claim a defensive cover quoting the"practice is in vogue". In this regard, the relevant passage from https://hcservices.ecourts.gov.in/hcservices/ the findings of the Enquiry Officer is extracted hereunder:"Even Miss.Jacintha, Mr.Joseph Sekar andMiss.T.Subbulakshmi have accepted that thepractice is in vogue. But practices – conventions – customs – eventhey are age old – and even if followed by lots ofpeople – cannot at any time on any account attainthe status of rules and regulations. As such any-body receiving the payment ofanother staff without property official authorityis at fault and such person exposeshimself/herself for punishment under the rules andregulations. Hence in this case Miss.AnnieChristy cannot claim a defensive cover quoting the"practice in vogue"."But, this view of the Enquiry Officer was not acceptable to thesecond respondent. 27.It is also an admitted fact that the appellant cameback on the same day and returned the salary payable to Ms.ArokiaMary Jacintha to the Superintendent. Hence, we do not find anyerror in the findings of the second respondent - IndustrialTribunal that the act of the appellant could not be characterisedas a "deliberate act" in receiving the salary of Ms.Arokia MaryJacintha with an intention to cheat her. 28.In paras 24 and 25 of the order under appeal, thelearned single Judge relied on the judgments of the Honourable ApexCourt in U.B.GADHE & OTHERS VS. G.M. GUJARAT AMBUJA CEMENT PVT.LTD., reported in 2007 AIR SCW 6157 and U.P.S.R.T.C. VS. RAM KISHANARORA reported in 2007 AIR SCW 7237 with respect to quantum ofpunishment. In those cases, the Tribunal came to the conclusionthat the charges were proved and interfered with the punishment ofdismissal by exercising its power under Section 11-A of the Act.The Honourable Apex Court held that the charges that were held tobe proved by the Tribunal were grave in nature and therefore, theTribunal ought not to have modified the punishment of dismissal byexercising its power under Section 11-A of the Act. It was heldthat the Tribunal should exercise the power under Section 11-Ajudiciously, while interfering with the punishment. Thosejudgments do not apply to this case, as the Tribunal herein came tothe conclusion that the charges were not established on re-appreciation of evidence. The question of punishment would ariseonly if the Tribunal came to the conclusion that the charges wereproved. https://hcservices.ecourts.gov.in/hcservices/

29.For all the aforesaid reasons, we are inclined to setaside the order of the learned single Judge. Accordingly, the orderdated 06.11.2008 passed by the learned single Judge in W.P.No.19646of 2003 is set aside. However, we are not inclined to confirm theaward dated 17.02.2003 passed in I.D.No.9/2002 by the secondrespondent – Industrial Tribunal, as such. As stated above, theappellant was dismissed by an order dated 06.06.1985. Her appealwas dismissed by an order dated 21.04.1986. Her revision was alsorejected vide order dated 22.09.1992. According to the appellant,she made mercy petitions dated 08.04.1993 and 09.08.1993 to theGeneral Manager. In para 15 of the counter statement filed onbehalf of the Management before the second respondent - IndustrialTribunal, it is stated as follows:"Again on 9.8.1993 the petitioner madeanother representation to the General Manager,Southern Railway which was dismissed by theGeneral Manager holding that no further revisionof penalty is permissible as per the RailwayServants (D&A) Rules, 1968."Thereafter, the appellant approached the authority under the Act on12.01.2001. Hence, there was about 7 years delay in approaching theauthority. Thus, the learned single Judge is not correct instating that the appellant approached the authority after 16 years.Even the counter statement filed by the Management admits about theorder of the appellate authority, the order of the revisionalauthority as well as the mercy petitions preferred by theappellant. Even the learned Government Advocate for the firstrespondent admitted that there was a delay of seven years inapproaching the authority. 30.As rightly contended by the learned counsel for theappellant, the Honourable Apex Court in AJAIB SINGH VS. SIRHINDCOOPERATIVE MARKETING – CUM – PROCESSING SERVICE SOCIETY LTD.,reported in 1999 (6) SCC 82 has categorically held that theLimitation Act, as such, is not applicable to the IndustrialDisputes Act and it is for the Industrial Tribunal to mould therelief, taking into account the facts and circumstances of thecase, even if there is a delay. In the said judgment, theHonourable Apex Court declared that the judgment of the Full Benchof the Punjab and Haryana High Court, prescribing 5 years period oflimitation, is not a good law. In this regard, para 10 of thejudgment of the Honourable Apex Court reported in 1999 (6) SCC 82is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "10. It follows, therefore, that theprovisions of Article 137 of the Schedule to theLimitation Act, 1963 are not applicable to theproceedings under the Act and that the reliefunder it cannot be denied to the workman merely onthe ground of delay. The plea of delay if raisedby the employer is required to be proved as amatter of fact by showing the real prejudice andnot as a merely hypothetical defence. No referenceto the Labour Court can be generally questioned onthe ground of delay alone. Even in a case wherethe delay is shown to be existing, the tribunal,labour court or board, dealing with the case canappropriately mould the relief by declining togrant back wages to the workman till the date heraised the demand regarding his illegalretrenchment/termination or dismissal. The courtmay also in appropriate cases direct the paymentof part of the back wages instead of full backwages. Reliance of the learned counsel for therespondent management on the Full Bench judgmentof the Punjab and Haryana High Court in RamChander Morya v. State of Haryana is also of nohelp to him. In that case the High Court nowhereheld that the provisions of Article 137 of theLimitation Act were applicable in the proceedingsunder the Act. The Court specifically held“neither any limitation has been provided nor anyguidelines to determine as to what shall be theperiod of limitation in such cases”. However, itwent on further to say that“reasonable time in the cases oflabour for demand of reference or disputeby appropriate Government to labourtribunals will be five years after whichthe Government can refuse to make areference on the ground of delay andlaches if there is no explanation to thedelay”.We are of the opinion that the Punjab andHaryana High Court was not justified inprescribing the limitation for getting thereference made or an application under Section 33-C of the Act to be adjudicated. It is not the https://hcservices.ecourts.gov.in/hcservices/ function of the court to prescribe the limitationwhere the legislature in its wisdom had thought itfit not to prescribe any period. The courtsadmittedly interpret law and do not make laws.Personal views of the Judges presiding over theCourt cannot be stretched to authorise them tointerpret law in such a manner which would amountto legislation intentionally left over by thelegislature. The judgment of the Full Bench of thePunjab and Haryana High Court has completelyignored the object of the Act and variouspronouncements of this Court as noted hereinaboveand thus is not a good law on the point of theapplicability of the period of limitation for thepurposes of invoking the jurisdiction of thecourts/boards and tribunal under the Act.31.Now, 25 years have lapsed. Hence, applying theaforesaid judgment, we are of the view that the second respondent -Industrial Tribunal was not justified in granting full backwages tothe appellant. Therefore, we are inclined to deprive the backwagesawarded by the second respondent – Industrial Tribunal and theaward is confirmed in all other respect. 32.In fine, while setting aside the order dated06.11.2008 of the learned single Judge in W.P.No.19646 of 2003, wemodify the award dated 17.02.2003 passed in I.D.No.9/2002 by thesecond respondent – Industrial Tribunal into reinstatement,without backwages, but with continuity of service and withattendant benefits. The first respondent is directed to reinstatethe appellant in service and to pay wages from the date of theaward passed by the second respondent - Industrial Tribunal tillher reinstatement, within a period of eight weeks from the date ofreceipt of a copy of this order. 33.This writ appeal is ordered accordingly. No costs. TKSd/-Deputy Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Deputy Chief Mechanical Engineer Personnel Branch Golden Rock Workshop Southern Railway Ponmalai, Trichy – 620 004.2.The Presiding Officer Central Government Industrial Tribunal Cum Labour Court Chennai. + 1 cc to Mr. M. Muthappan, Advocate SR No.84531+ 1 cc to Mrs. Lita Srinivasan, Advocate SR No.84595PKB(CO)SR/2.12.2010 JUDGMENT MADEIN W.A.NO.311 OF 2009