G.Anburaja v. The Presiding OfficerCentral Government Industrial Tribunal-cum-Labour CourtBlock No.1

For Petitioner : Mr.R.Kamatchi Sundaresanin W.P.No.15525 of 2004 & for Mr.Balan HaridasR2 in W.P.No.23474 of 2004 For Respondent 2: Mr.K.S.Sundarin W.P.No.15525 of 2004 &Petitioner in W.P.No.23474 of 2004. . . . .C O M M O N O R D E RW.P.No.15525 of 2004 is filed by the employee of the StateBank of India and W.P.No.23474 of 2004 is filed by the StateBank of India challenging the Award dated 11.11.2003 passed bythe Central Government Industrial Tribunal – cum – LabourCourt, Chennai, in I.D.No.338 of 2001. In the operativeportion of the Award impugned in these writ petitions, theTribunal gave the following directions:"In view of the above, I find that thispreliminary issue is to be answered infavour of the petitioner. Therefore, Ifind the order of dismissal passed by theRespondent / Management State Bank of Indiaagainst the petitioner Sri.G.Anburaja is tobe set aside. Ordered accordingly.At the same time, liberty is given to theRespondent / Management State Bank of Indiato proceed with the case against thepetitioner Sri.G.Anburaja in accordancewith law."While the Bank is aggrieved about the finding regarding settingaside of the dismissal order made in favour of the employee,the employee was aggrieved against the liberty given to theBank to proceed with the case against the employee inaccordance with law. Therefore, both the writ petitionswere heard together.2.It is seen from the records that the petitioner inW.P.No.15525 of 2004 (hereinafter referred to as 'thepetitioner employee') was placed under suspension by orderdated 12.10.1992 passed by the petitioner in W.P.No.23474 of2003 (hereinafter referred to as 'the Bank Management') and wasgiven a memo to show cause and an enquiry was conducted inrespect of five charges based upon several transactions.The sum and substance of the allegation against the employeewas that he has falsified the records and made spurious credit https://hcservices.ecourts.gov.in/hcservices/ entries in various SB Accounts and withdrew the amounts in hisfavour and by committing such acts of misappropriation, forgeryand making spurious entries in the Bank's records resulting ina financial loss, he has been prejudicial to the interests ofthe Bank amounting to gross misconduct in terms of paragraphs521 – 4 (j) of the Sastry Award. 3.An enquiry was conducted in respect of the chargesheet dated 26.10.1992 by the Enquiry Officer. Before theEnquiry Officer, the petitioner employee admitted all thecharges. Only in respect of Charge No.3, he has stated thathe did not forge the initials of any of the officials but onlyauthenticated the entries. While the Bank Managementproduced the documentary evidence in respect of thetransaction, since the employee himself admitted the charges,it was held by the Enquiry Officer that the charges need not beproved by any oral evidence. Before the Enquiry Officer, thepetitioner employee had stated the circumstances under which hewas forced to commit the acts for which he was charge sheeted.In the light of the same, the Enquiry Officer found thepetitioner employee guilty of charges 1, 2, 4 and 5. Onlyin respect of charge No.3, he has held that the charge offorgery has not been proved and the Bank Management has nottaken steps to prove the charge of forgery. But he has notinitialed the entries in respect of charge No.3 and, therefore,he is partially guilty of the same for falsification ofrecords but not for forgery. 4.The employee also wrote a letter dated 23.9.1992marked as Ex.P.16 wherein he has disowned having paid theamounts to the Bank Management by way of repayment of the losscaused by him. In further letter dated 07.01.1993 marked asEx.P.18, he had stated that he has already accepted his guiltof withdrawing a sum of Rs.1,10,600/- and since he has alreadymade good the loss, he should be allowed to continue inservice. He has also stated that his father died in a roadaccident during 1981 and he had three brothers and foursisters and since he had to take care of them and his mother,who was affected by heart problems, he stopped his education inthe middle and joined the Bank on 21.9.1983 to shoulder theburden of maintaining the family and for the purpose ofconducting his sister's marriage, he required some additionalamount. He has further stated that considering his strenuousservice, he may be let off without imposing any penalty. Hehad also signed a Power of Attorney dated 30.9.1992, which ismarked as P.Ex.34, giving the power to the Bank to sell hishouse property. He has sent a further letter dated29.9.1992, which is marked as P.Ex.35, creating equitablemortgage in favour of the Bank Management. On the basis ofthe findings given by the Enquiry Officer holding thepetitioner employee guilty of four charges and the other charge https://hcservices.ecourts.gov.in/hcservices/ partially proved, he was supplied with the minutes of theenquiry proceedings by the Bank Management vide letter dated24.5.1993 asking him to give his explanation. The employee,on receipt of the said findings, submitted an explanation dated09.6.1993. For the first time, the petitioner employee tookthe stand that his voluntary action of making good the amountcannot be held against him and that his acceptance cannotamount to proof of misconduct.5.The Disciplinary Authority issued a show cause noticedated 18.6.1993 to the petitioner employee stating that hedisagreed with the Enquiry Officer with reference to Charge No.3 and he was of the opinion that all the five charges wereproved against him and with a view to inflict the punishment of'Dismissal without notice', he issued show cause notice andalso gave an opportunity for personal hearing on 16.7.1993.Subsequently, the Disciplinary Authority gave a personalhearing on 16.7.1993 and the petitioner employee participatedin the same and gave a written submission dated 16.7.1993. Itwas thereafter, he was dismissed by an order dated 23.8.1993.As against the said order of dismissal, the petitioner employeepreferred an appeal dated 13.10.1993 to the Deputy GeneralManager, State Bank of India, Zonal Office, Madras. Even theAppellate Authority gave a personal hearing on 31.12.1993 andby an order dated 17.01.1994, he independently considered theevidence and rejected the appeal preferred by the employee.6.Aggrieved at the same, the employee raised disputeunder Section 2A of the Industrial Disputes Act 1947(hereinafter referred to as 'the I.D. Act') before theAssistant Labour Commissioner, which culminated in an order ofreference made to the first respondent Tribunal. The CentralGovernment, Ministry of Labour, vide Notification dated07.12.2000 referred the dispute to the Tribunal, viz., CentralGovernment Industrial Tribunal – cum – Labour Court, Madras,for adjudication, which is extracted below:"Whether the dismissal of Shri G.Anburajaby the management of State Bank of India islegal and justified? If not, to whatrelief is the workman entitled?"7.Before the Tribunal, the petitioner employee filed aclaim statement dated 07.3.2001 and the Bank Management filed acounter statement dated 07.8.2002. The Tribunal took thematter in I.D.No.338 of 2001 and after hearing the learnedcounsel for the parties, framed a preliminary issue, which isextracted below:"Whether an opportunity was to be providedin this case by the Disciplinary Authority,when the Disciplinary Authority disagreed https://hcservices.ecourts.gov.in/hcservices/ with the findings recorded by the EnquiryOfficer in respect of charge No.3?"8.Before the Tribunal, both the sides prayed that thepreliminary issue regarding the domestic enquiry conducted bythe Bank can be decided. Therefore, the Tribunal heard theparties on the preliminary issue, viz., whether the employeewas given opportunity by the Disciplinary Authority since hehas disagreed with certain findings of the Enquiry Officer.While the employee relied upon the decision of the SupremeCourt reported in 1998 (7) SCC 84 [PUNJAB NATIONAL BANK vs.KUNJ BEHARI MISRA], the Bank Management contended that since noprejudice was caused to employee, it will not vitiate theproceedings initiated by the Bank. On the basis of thearguments made by the parties, the Tribunal held that since theDisciplinary Authority did not grant opportunity to theemployee, he disagreed with reference to the finding regardingcharge No.3 by the Enquiry Officer and, therefore, held thatthe order passed by the Bank Management must be set aside.Further, the Tribunal also gave liberty to the Bank Managementto proceed with the case against the petitioner employee inaccordance with law. Aggrieved at the said Award passed bythe Tribunal, both the employee and the Bank have come forwardwith the present writ petitions.9.W.P.No.15525 of 2004 was admitted on 08.6.2004 andinterim stay was granted in W.P.M.P.No.18426 of 2004.W.P.No.23474 of 2004 was admitted on 17.8.2004 and interimstay was granted in W.P.M.P.No.23428 of 2004 and a petition inW.V.M.P.No.1369 of 2004 was filed by the petitioner employeefor vacating the stay granted W.P.M.P.No.23428 of 2004.10.When the Miscellaneous Petitions came up for hearing,the main writ petitions themselves were taken up for hearing.I have heard the arguments of Mr.Kamatchi Sundaresan, appearingfor Mr.Balan Haridas, learned counsel for the employee as wellas the arguments of Mr.K.S.Sundar, learned counsel appearingfor the Bank and have also perused the records.11.This is a strange order passed by the Tribunal.What was argued and decided by the Tribunal was only thepreliminary issue regarding the nature of domestic enquiryconducted against the petitioner employee. On the contrary,the Tribunal has passed a final Award without deciding themerits of the case. By virtue of Section 10(4) of the I.D.Act, when the appropriate Government was satisfied with thepoints of dispute for adjudication, the Tribunal shouldconfine its adjudication to those points and the mattersincidental thereto. Section 10(4) of the I.D. Act reads asfollows: https://hcservices.ecourts.gov.in/hcservices/ "Where in an order referring an industrialdispute to a Labour Court, Tribunal orNational Tribunal under this section or in asubsequent order, the appropriate Governmenthas specified the points of dispute foradjudication, the Labour Court, or theTribunal or the National Tribunal, as thecase may be, shall confine its adjudicationto those points and matters incidentalthereto"By not deciding the issue of dismissal of the petitioneremployee and further relegating the conduct of further enquiryto the Bank, the issue has been kept open further therebyindicating that the Tribunal has not kept the jurisdictionvested on it in mind. 12.In this context, it is relevant to refer to thedecision of the Supreme Court reported in (1973) 1 SCC 813 [THEWORKMEN OF M/S FIRESTONE TYRE AND RUBBER CO. OF INDIA (PVT.)LTD. vs. THE MANAGEMENT AND OTHERS] wherein whileinterpreting Section 11-A of the I.D. Act, the Supreme Courtlaid down certain guidelines to be followed by the adjudicatingauthorities. While interpreting the proviso to Section 11-A, the Court observed as follows:"48-49. We are not inclined to accept theabove contention of Mr Deshmukh. The Provisospecifies matters which the Tribunal shalltake into account as also matters which itshall not. The expression “materials onrecord”, occurring in the Proviso, in ouropinion, cannot be confined only to thematerials which were available at thedomestic enquiry. On the other hand, the“materials on record” in the Proviso must beheld to refer to materials on record beforethe Tribunal. They take in—“(1) the evidence taken by themanagement at the enquiry and theproceedings of the enquiry, or (2) the above evidence and inaddition, any further evidenceled before the Tribunal, or(3) evidence placed before theTribunal for the first time insupport of the action taken by anemployer as well as the evidenceadduced by the workmen contra.” https://hcservices.ecourts.gov.in/hcservices/ The above items by and large should beconsidered to be the “materials on record”as specified in the Proviso. We are notinclined to limit that expression as meaningonly that material that has been placed in adomestic enquiry. The Proviso only confinesthe Tribunal to the materials on recordbefore it as specified above, whenconsidering the justification or otherwiseof the order of discharge or dismissal. Itis only on the basis of these materials thatthe Tribunal is obliged to consider whetherthe misconduct is proved and the furtherquestion whether the proved misconductjustifies the punishment of dismissal ordischarge. It also prohibits the Tribunalfrom taking any fresh evidence either forsatisfying itself regarding the misconductor for altering the punishment. From theProviso it is not certainly possible to cometo the conclusion that when once it is heldthat an enquiry has not been held or isfound to be defective, an order reinstatingthe workman will have to be made by theTribunal. Nor does it follow that theProviso deprives an employer of his right toadduce evidence for the first time beforethe Tribunal."13.While dealing with the contention that in case of noenquiry or defective enquiry, the Tribunal cannot orderdirectly reinstatement without completely answering thereference. The relevant portion in paragraph 32 from theabove said judgment is extracted below:"32. From those decisions, the followingprinciples broadly emerge:............................................................................................(4) Even if no enquiry has been held by anemployer or if the enquiry held by him isfound to be defective, the Tribunal inorder to satisfy itself about the legalityand validity of the order, had to give anopportunity to the employer and employee toadduce evidence before it. It is open tothe employer to adduce evidence for thefirst time justifying his action, and it is https://hcservices.ecourts.gov.in/hcservices/ open to the employee to adduce evidencecontra.(5)The effect of an employer not holding anenquiry is that the Tribunal would not haveto consider only whether there was a primafacie case. On the other hand, the issueabout the merits of the impugned order ofdismissal or discharge is at large beforethe Tribunal and the latter, on theevidence adduced before it, has to decidefor itself whether the misconduct allegedis proved. In such cases, the point aboutthe exercise of managerial functions doesnot arise at all. A case of defectiveenquiry stands on the same footing as noenquiry.(6) The Tribunal gets jurisdiction to considerthe evidence placed before it for the firsttime in justification of the action takenonly, if no enquiry has been held or afterthe enquiry conducted by an employer isfound to be defective.(7) It has never been recognised that theTribunal should straightaway, withoutanything more, direct reinstatement of adismissed or discharged employee, once itis found that no domestic enquiry has beenheld or the said enquiry is found to bedefective.This aspect has not been kept in mind by the Tribunal whilepassing the Award.14.1.On the contrary, Mr.Kamatchi Sundaresan, learnedcounsel appearing for the employee, contended that since theBank Management had not sought for permission to lead evidenceat the earliest stage, they may not be allowed to let inevidence afresh and hence, the Tribunal was forced to pass theAward impugned in these writ petitions. 14.2.For this purpose, the learned counsel reliedupon the judgment of the Supreme Court reported in (1979) 3SCC 371 [SHANKAR CHAKRAVARTI vs. BRITANNIA BISCUIT CO.LTD.] to contend that the employer Bank had not made anyrequest in his written statement or by way of applicationduring the pendency of the proceedings to lead evidence in casethe enquiry is found to be defective. This judgment hasbeen subsequently considered by the Supreme Court in itsdecision reported in (2001) 5 SCC 433 [KARNATAKA STATE ROADTRANSPORT CORPORATION vs. LAKSHMIDEVAMMA (SMT) AND ANOTHER]where the entire case laws have been summed up. In that https://hcservices.ecourts.gov.in/hcservices/ judgment, the Supreme Court has approved the reasoning found inthe decision reported in (1983) 4 SCC 491 [SHAMBHU NATH GOYALvs. BANK OF BARODA]. As per this judgment, the BankManagement had to exercise its right of leading fresh evidenceat the first available opportunity and not any time during theproceedings before the Tribunal.14.3.Once an enquiry is set aside in its entirety and ifno fresh evidence is let in, then the question whether theManagement is entitled to rely upon the records relating to thedomestic enquiry came up for consideration by the Supreme Courtin its decision reported in (1999) 1 SCC 517 [NEETA KAPLISHvs. PRESIDING OFFICER, LABOUR COURT AND ANOTHER] and theSupreme Court in paragraphs 26 and 27 of the judgment observedas follows:"26. Learned counsel for the appellant (sicrespondent) contended that in spite of thedirection by the Labour Court to therespondent-Management to lead evidence, itwas open to the Management to rely upon thedomestic enquiry proceedings already held bythe Enquiry Officer, including the evidencerecorded by him, and it was under noobligation to lead further evidence,particularly as the Management was of theview that the charges, on the basis of theevidence already led before the EnquiryOfficer, stood proved. It was also contendedthat under Section 11-A, the Labour Courthad to rely on the “materials on record” andsince the enquiry proceedings constituted“material on record”, the same could not beignored. The argument is fallacious.27. The record pertaining to the domesticenquiry would not constitute “freshevidence” as those proceedings have alreadybeen found by the Labour Court to bedefective. Such record would also notconstitute “material on record”, ascontended by the counsel for the respondent,within the meaning of Section 11-A as theenquiry proceedings on being found to bebad, have to be ignored altogether. Theproceedings of the domestic enquiry couldbe, and were in fact, relied upon by theManagement for the limited purpose ofshowing at the preliminary stage that theaction taken against the appellant was justand proper and that a full opportunity ofhearing was given to her in consonance with https://hcservices.ecourts.gov.in/hcservices/ the principles of natural justice. Thiscontention has not been accepted by theLabour Court and the enquiry has been heldto be bad. In view of the nature ofobjections raised by the appellant, therecord of enquiry held by the Managementceased to be “material on record” within themeaning of Section 11-A of the Act and theonly course open to the Management was tojustify its action by leading fresh evidenceas required by the Labour Court. If suchevidence has not been led, the Managementhas to suffer the consequences."14.4.Therefore, the learned counsel for the employeesubmits that under these circumstances, the direction of theTribunal allowing the Bank to conduct fresh enquiry may not beproper and that portion of the Award should be set aside.15.1.Per contra, Mr.K.S.Sundar, learned counselappearing for the Bank Management stated that the finding ofthe Tribunal that the enquiry was vitiated was contrary to thematerials on record and the decisions relied on by the Tribunalin this regard, viz., the judgment of the Supreme Courtreported in (1998) 7 SCC 84 (cited supra) followed by theSupreme Court in its decision reported in (2003) 2 SCC 449[STATE BANK OF INDIA AND OTHERS vs. K.P.NARAYANAN KUTTY]have no application to the facts and circumstances of thepresent case. The learned counsel stated that the judgmentin Punjab National Bank case (cited supra) holding that if theDisciplinary Authority disagreed with the findings of theEnquiry Officer then an opportunity should be given cannot bemechanically applied.15.2.In Punjab National Bank case, while interpretingthe Regulation 6 of the Punjab National Bank Officer Employees'(Discipline and Appeal) Regulations, 1977, the Supreme Court,in paragraphs 18 and 19 of the judgment, observed as follows:"18. Under Regulation 6, the enquiryproceedings can be conducted either by anenquiry officer or by the disciplinaryauthority itself. When the enquiry isconducted by the enquiry officer, hisreport is not final or conclusive and thedisciplinary proceedings do not standconcluded. The disciplinary proceedingsstand concluded with the decision of thedisciplinary authority. It is thedisciplinary authority which can impose thepenalty and not the enquiry officer. Wherethe disciplinary authority itself holds anenquiry, an opportunity of hearing has to https://hcservices.ecourts.gov.in/hcservices/ be granted by him. When the disciplinaryauthority differs with the view of theenquiry officer and proposes to come to adifferent conclusion, there is no reason asto why an opportunity of hearing should notbe granted. It will be most unfair andiniquitous that where the charged officerssucceed before the enquiry officer, theyare deprived of representing to thedisciplinary authority before thatauthority differs with the enquiryofficer’s report and, while recording afinding of guilt, imposes punishment on theofficer. In our opinion, in any suchsituation, the charged officer must have anopportunity to represent before thedisciplinary authority before finalfindings on the charges are recorded andpunishment imposed. This is required to bedone as a part of the first stage ofenquiry as explained in Karunakar case4.19. The result of the aforesaid discussionwould be that the principles of naturaljustice have to be read into Regulation 7(2). As a result thereof, whenever thedisciplinary authority disagrees with theenquiry authority on any article of charge,then before it records its own findings onsuch charge, it must record its tentativereasons for such disagreement and give tothe delinquent officer an opportunity torepresent before it records its findings.The report of the enquiry officercontaining its findings will have to beconveyed and the delinquent officer willhave an opportunity to persuade thedisciplinary authority to accept thefavourable conclusion of the enquiryofficer. The principles of natural justice,as we have already observed, require theauthority which has to take a finaldecision and can impose a penalty, to givean opportunity to the officer charged ofmisconduct to file a representation beforethe disciplinary authority records itsfindings on the charges framed against theofficer." https://hcservices.ecourts.gov.in/hcservices/

15.3.According to the learned counsel, this wasfollowed in the subsequent judgment of the Supreme Courtreported in the State Bank of India’s case (cited supra) andalso referred to by the Tribunal in the impugned Award moreparticularly, in paragraph 6, it was observed as follows:"It was also contended on behalf of the appellants thatthe High Court committed an error in setting aside the order ofdismissal when it was not shown that any prejudice was causedto the respondent by not giving an opportunity to him by thedisciplinary authority. In this regard the learned counselcited a decision of this Court in Union Bank of Inida v. VishwaMohan (1998 (3) L.L.N. 90). As already noticed above, beforethe High Court both the parties concentrated only on one point,namely, the effect of not providing an opportunity by thedisciplinary authority. When the disciplinary authoritydisagreed with some findings of the enquiry officer. It wasalso not shown by the appellants before the High Court that noprejudice was caused to the respondent in the absence ofproviding any opportunity by the disciplinary authority. Theaforementioned case of Vishwa Mohan is of no help to theappellants. The learned counsel invited our attention to Para9 of the said judgment. As is evident from the said paragraphthis Court having regard to the facts of that case, taking noteof the various acts of serious misconduct, found that noprejudice was caused to the delinquent officer. In para 19 ofthe judgment in Punjab National Bank Case, extracted above,when it is clearly stated that the principles of naturaljustice have to be read into regulation 7(2) (rule 50(3) (ii)of State Bank of India (Supervising Staff) Service Rules, isidentical in terms applicable to the present case) and thedelinquent officer will have to be given an opportunity topersuade the disciplinary authority to accept the favourableconclusion of the enquiry officer, we find it difficult toaccept the contention advanced on behalf of the appellants thatunless it is shown that some prejudice was caused to therespondent, the order of dismissal could not be set aside bythe High Court."15.4.However, once again, the matter came to beconsidered by the Supreme Court in its decision reported in(2003) 4 SCC 557 [CANARA BANK AND OTHERS v. DEBASIS DAS ANDOTHERS]. In the said judgment the Supreme Court while agreedwith the conclusions made in the Punjab National Bank case(cited supra), "useless formality theory" was expounded and therelevant portions in paragraphs 23 and 24 are extracted below:"23. As was observed by this Court we neednot go into “useless formality theory” indetail; in view of the fact that noprejudice has been shown. As is rightlypointed out by learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ appellants, unless failure of justice isoccasioned or that it would not be in publicinterest to dismiss a petition on the factsituation of a case, this Court may refuseto exercise the said jurisdiction (see GaddeVenkateswara Rao v. Govt. of A.P.). It is tobe noted that legal formulations cannot bedivorced from the fact situation of thecase. Personal hearing was granted by theAppellate Authority, though not statutorilyprescribed. In a given case post-decisionalhearing can obliterate the proceduraldeficiency of a pre-decisional hearing. (SeeCharan Lal Sahu v. Union of India.)24. Additionally, there was no materialplaced by the employee to show as to how hehas been prejudiced. Though in all cases thepost-decisional hearing cannot be asubstitute for pre-decisional hearing, inthe case at hand the position is different.". . .15.5.Further, the Supreme Court in the judgmentreported in (1998) 4 SCC 310 [UNION BANK OF INDIA vs.VISHWA MOHAN] dealt with a similar question at page 314 inparagraph 9, which is extracted below:"9. We are totally in disagreement with theabove-quoted reasoning of the High Court.The distinction sought to be drawn by theHigh Court that the first charge-sheetserved on the respondent related to theperiod when he was a clerk whereas theother three charge-sheets related to theperiod when he was promoted as a bankofficer. In the present case, we arerequired to see the findings of the enquiryauthority, the order of the DisciplinaryAuthority as well as the order of theAppellate Authority since the High Courtfelt that the charges levelled against therespondent after he was promoted as anofficer were not of a serious nature. Abare look at these charges wouldunmistakably indicate that they relate tomisconduct of a serious nature. The HighCourt also committed an error when itassumed that when the respondent waspromoted as a bank officer, he must behaving a good report otherwise he would nothave been promoted. This finding is totally https://hcservices.ecourts.gov.in/hcservices/ unsustainable because the various acts ofmisconduct came to the knowledge of theBank in the year 1989 and thereafter thefirst charge-sheet was issued on 17-2-1989.The respondent was promoted as a bankofficer sometime in the year 1988. At thattime, no such adverse material relating tothe misconduct of the respondent wasnoticed by the Bank on which his promotioncould have been withheld. We are againunable to accept the reasoning of the HighCourt that in the facts and circumstancesof the case “it is difficult to apply theprinciple of severability as the chargesare so inextricably mixed up”. If one readsthe four charge-sheets, they all relate tothe serious misconduct which includestaking bribe, failure to protect theinterests of Bank, failure to performduties with utmost devotion, diligence,integrity and honesty, acting in a mannerunbecoming of a bank officer etc. In ourconsidered view, on the facts of this case,this principle has no application butassuming that it applies yet the High Courthas erred in holding that the principle ofseverability cannot be applied in thepresent case. The finding in this behalf isunsustainable. As stated earlier, theappellant had in his possession the enquiryreport/findings when he filed the statutoryappeal as well as the writ petition in theHigh Court. The High Court was required toapply its judicial mind to all thecircumstances and then form its opinionwhether non-furnishing of the report wouldhave made any difference to the result inthe case and thereupon pass an appropriateorder."15.6.However, in the judgment reported in (2004) 8SCC 653 [J.A.NAIKSATAM vs. PROTHONOTARY & SENIOR MASTER,HIGH COURT OF BOMBAY AND OTHERS], the Supreme Court once againreiterated the principle laid down in Punjab National Bank casein the context of the Bombay High Court (Discipline and Appeal)Rules more particularly, Rule No.8 (4)(i)(a), the SupremeCourt, approving the decision of the Punjab National Bank caseon the fact situation, held in paragraphs 6 and 7 as follows: https://hcservices.ecourts.gov.in/hcservices/

6....................................................................................... the counsel for the appellants contendedthat after the receipt of the report fromthe enquiry officer, the disciplinaryauthority should have given notices to theappellants with its tentative conclusionand an opportunity be given to thedelinquent before the report of the enquiryofficer is reversed by the disciplinaryauthority. It was also argued that theappellants should have been heard by thedisciplinary authority before such adecision was rendered. Even though therule as such does not contemplate giving anopportunity to the appellant delinquentsbefore the disciplinary authority takes afinal decision to disagree with the reasonsgiven by the enquiry officer, such aprovision could be read into the rule buteven then the appellants cannot be heardto say that there shall be a personalhearing by the disciplinary authority. Inthe instant case, the appellants were givena copy of the tentative decision of thedisciplinary authority and the appellantsfurnished detailed explanation and we areof the view that the principles of naturaljustice have been fully complied with andwe do not find any infraction of rules orinfirmity in the said decision.7.The counsel further contended thatfrom the tentative decision it could bespelt out that the disciplinary authorityhad already taken a final decision in themater and the details have been giventherein and the opportunity which was givento the appellants was only an exercise infutility. We are not inclined to acceptthis contention. It is true that thedisciplinary authority gave its reasons fordisagreement with the report of the enquiryofficer and the appellants had given theirfull-fledged explanation and if at all thedisciplinary authority gave detailedtentative decision before seeking https://hcservices.ecourts.gov.in/hcservices/ explanation from the appellants, it enabledthem to give an effective representationand the principles of natural justice werefully complied with and it cannot be saidthat the appellants were not being heard inthe matter."16.Now in the light of the aforesaid decisions, if onelooks into the materials placed before the Tribunal, it is veryclear that the petitioner employee accepted the charges andalso made good the loss suffered by the Bank Management and hasalso given a letter as well as Power of Attorney creatingequitable mortgage in favour of the Bank. He raised aprotest only in the tail end. Even the DisciplinaryAuthority, who disagreed with the findings of the EnquiryOfficer, gave an opportunity of hearing to the petitioneremployee to appear before him on 16.7.1993. It wasthereafter the order imposing punishment of dismissal waspassed against him. Further, the employee preferred anappeal in terms of paragraph 521 – 10(a) of the Sastry Awardbefore the Appellate Authority. Even though he raised aground of non-furnishing the Enquiry Report before disagreeingwith the finding of the Enquiry Officer, the appellateauthority also granted opportunity of personal hearing to thepetitioner on 31.12.1993. Therefore, as can be seen fromthe records, even before the Disciplinary Authority acceptedthe findings of the Enquiry Officer, the Enquiry Report wasgiven to him by a covering letter dated 24.5.1993.Therefore, every principle of natural justice has been followedand the provisions of the Sastry Award and Desai Award havebeen kept in mind. 17.The only grievance raised by the petitioner washighly legalistic, viz., that the Disciplinary Authority,while accepting the findings of the Enquiry Officer, disagreedwith the finding with regard to charge No.3 and held that alsoto be proved. It must be stated here that the EnquiryOfficer himself found the employee guilty of charge Nos.1, 2, 4and 5 and even in respect of charge No.3, he had merelyindicated that the charge of forgery was not proved. But atthe same time, the initials made by the petitioner employee inthe document was found proved. If at all the petitioneremployee can have a grievance, it can only be in respect ofcharge No.3 where also the petitioner employee cannot have anydefence in the context of his not raising any objection in theenquiry. Therefore, this is a fit case where the "emptyformality theory" as mentioned in the Vishwa Mohan's Case canhave full operation. In any event, the petitioneremployee had the luxury of having personal hearing before theDisciplinary Authority and another personal hearing before theAppellate Authority when his appeal was heard. It wasthereafter he has approached the Tribunal and the Tribunal, https://hcservices.ecourts.gov.in/hcservices/ without reference to all these decisions, was simply carriedaway by the submission made by the learned counsel for theemployee and solely relied upon the judgment of the PunjabNational Bank case without considering the legal issue in thebackdrop of the present case. The petitioner employeecannot have the luxury of appeal and personal hearings and yetcame before the Tribunal to contend that he was seriouslyprejudiced by the action of the Disciplinary Authority on thesole ground that he disagreed with the findings of the EnquiryOfficer in respect of charge No.3 alone. Even otherwise, theimpugned Award of the Tribunal cannot be sustained because inthe present case, the Tribunal has set aside the entire enquiryonly on the plea that the Disciplinary Authority disagreed withthe findings of the Enquiry Officer in respect of charge No.3alone. In which case, the Tribunal should have held theenquiry fair and proper and should have held that it would notgo into the issue relating to charge No.3 solely on the basisof the conclusions reached by the Disciplinary Authority or theEnquiry Officer, but will look into the evidence uninfluencedby the findings given by the Officers of the Bank. 18.In fact, the Tribunal in the present case isadjudicating the issue in terms of Section 11-A of the I.D.Act and Section 11-A has been amply explained by the SupremeCourt in the Firestone Case (cited supra). In paragraph 36 ofthe judgment, the Court held as follows:"36. We will first consider cases where anemployer has held a proper and validdomestic enquiry before passing the order ofpunishment. Previously the Tribunal had nopower to interfere with its finding ofmisconduct recorded in the domestic enquiryunless one or other infirmities pointed outby this Court in Indian Iron & Steel Co.Ltd. case existed. The conduct ofdisciplinary proceedings and the punishmentto be imposed were all considered to be amanagerial function with which the Tribunalhad no power to interfere unless the findingwas perverse or the punishment was so harshas to lead to an inference of victimisationof unfair labour practice. This position, inour view, has now been changed by Section11-A. The words “in the course of theadjudication proceeding, the Tribunal issatisfied that the order of discharge ordismissal was not justified” clearlyindicate that the Tribunal is now clothedwith the power to reappraise the evidence in https://hcservices.ecourts.gov.in/hcservices/ the domestic enquiry and satisfy itselfwhether the said evidence relied on by anemployer establishes the misconduct allegedagainst a workman. What was originally aplausible conclusion that could be drawn byan employer from the evidence, has now givenplace to a satisfaction being arrived at bythe Tribunal that the finding of misconductis correct. The limitations imposed on thepowers of the Tribunal by the decision inIndian Iron & Steel Co. Ltd. case, can nolonger be invoked by an employer. TheTribunal is now at liberty to consider notonly whether the finding of misconductrecorded by an employer is correct; but alsoto differ from the said finding if a propercase is made out. What was once largely inthe realm of the satisfaction of theemployer, has ceased to be so; and now it isthe satisfaction of the Tribunal thatfinally decides the matter."19.At the maximum, the Tribunal should have held that itwill not accept the findings of the Disciplinary Authority inrespect of charge No. 3 but should have proceeded to considerthe case in respect of the materials placed before it by theBank Management and there is no attack by the petitioneremployee in respect of the procedural aspect of conducting ofenquiry as well as the findings of the Enquiry Officer inrespect of charge Nos.1, 2, 4 and 5. However, this Courtfeels that even the question of the Disciplinary Authoritydisagreeing with the findings of the Enquiry Officer, cannot beheld to be a vitiating factor solely on the basis of thejudgment of the Punjab National Bank case. The said judgmenthas been explained in two decisions of the Supreme Courtsubsequently which are referred to above.20.Further, in the present case, the petitioner employeehad the luxury of two personal hearings, one before theDisciplinary Authority and the second before the AppellateAuthority and, therefore, the findings of the Tribunal inrespect of the preliminary issue cannot be upheld. TheTribunal ought to have allowed the parties to argue on themerits of the case and should have come to the conclusion onthe charges held to have been proved against the petitioneremployee. Instead of discharging its jurisdiction conferredupon it under Section 10(4) of the I.D. Act, the Tribunalabdicated its power and remanded the matter to the BankManagement to deal with further, which has resulted in theTribunal not having determined the issue thereby making theissue to reach a final conclusion. https://hcservices.ecourts.gov.in/hcservices/

21.In the light of the above discussion, both the writpetitions are allowed and the impugned Award dated 11.11.2003made in I.D.No.338 of 2001 is quashed. In the light of theconclusion reached above, the Tribunal is directed to restoreI.D.No. 338 of 2001 on its file and proceed to decide the issueof dismissal of the petitioner employee on merits and inaccordance with law within a period of three months from thedate of receipt of a copy of this order after givingopportunity to both the parties. Consequently,W.P.M.P.No.18426 of 2004 and W.P.M.P.Nos.28428 of 2004, 23217of 2005 and 1369 of 2005 in W.P.No.23474 of 2004 shall standclosed. However, the parties are directed to bear their owncosts.griSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Presiding Officer,Central Government Industrial Tribunalcum Labour Court, Shastri BhavanChennai2. The Assistant GeneralRegistrar IV, SBI43 Moore Street,Chennai+ one cc to Mr. K.S. Sundar, Advocate sr no. 52181+ one cc to Balan Haridoss, Advocate sr no. 52172KSJ(CO)NM(23.11.2006)W.P. Nos.15525 and 23474 of 2004