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TMI Blog2015 (4) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... ten apology for his behavior. Although, the petitioner had immediately filed a complaint that his apology was forcibly extracted from him, the same must be discounted. There is no explanation as to why Ms Sunita Jain's husband would come to the branch office to extract an apology from the petitioner. The Tribunal had also taken note of the fact that it takes a certain amount of courage for a lady to come and depose regarding the harassment meted out to her and such testimony should be given due weightage. - Tribunal has appreciated the evidence and arrived at a conclusion. It is well established that this court, while exercising its powers under Article 226 of the Constitution of India, would not interfere with the findings of fact unless the same are perverse or based on no evidence at all. - No infirmity in impugned award - Decided against Petitioner. - W.P.(C) 7414/2010 & CM No. 4431-4432/2013 - - - Dated:- 18-2-2015 - VIBHU BAKHRU, J. For the Petitioner : Ms Harvinder Oberoi and Mr Jawahar Singh For the Respondent : Mr Pramod Kumar JUDGMENT 1. The petitioner has filed the present petition impugning an order dated 12.03.2010 (hereafter the ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days of this incident, you met Smt. Jain at Red Fort. When she reached at Rickshaw Stand after alighting from the Bus, you went close to her on your scooter and asked her to sit on your scooter. You asked Smt. Jain to sit on your scooter again and again despite her refusals. In the end, Smt. Jain asked you to go and I will come at Bank on rickshaw. On her reaching at Bank, you went close to her and started making vulgar talks e.g. Madam, I had no mood today to come at Bank, we should go somewhere else . You did not stop talking despite objection of Smt. Jain and said Madam, you are refusing me again and again and disturbing me . She did not give any reply to your talks. Thereafter, on 3rd July, 1985 you gave her a message Meet outside the Bank . On 4.7.85 again, you again used indecent words with Smt. Jain and asked Madam, why you are not cooperating with me, meet me outside the Bank so that we may talk all which I cannot say here . This was asked by you in the presence of Kumari Jyoti Tomar. On 5.7.85, Smt. Jain felt very bad in coming to the Branch and her eyes were filled with tears, on which, all the lady staff asked Smt. Jain about its reason, on which, Smt. Jain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and initiated disciplinary proceedings. Initially, Mr. J.K. Mahajan was appointed as the enquiry officer and after his transfer, Mr. B.L. Pawar was appointed as the enquiry officer. On 08.12.1987, the enquiry officer held that the charges against the petitioner were proved. After considering the report of the enquiry officer, the respondent bank, on 07.05.1988, terminated the services of the petitioner. An appeal preferred by the petitioner against his dismissal order was also rejected. Thereafter, the petitioner raised an industrial dispute challenging his dismissal and the government referred the dispute to the Tribunal. The terms of reference, as modified on 09.01.1992, read as under:- Whether the action of the State Bank of Indore in terminating the services of Shri Rajinder Singh s/o Murli, Clerk, Chandni Chowk Branch, Delhi w.e.f. 7.5.88 without issuing any notice is legal and justified? If not to what relief the workman concerned is entitled to? 2.6 After considering the pleadings, the following issues were settled by the Tribunal:- 1. Whether the domestic enquiry held against the workman was fair and proper? 2. As in terms of reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with Mr. P.C. Sharma and Ms. Sunita Jain against the petitioner, which is evident from the official travel expenses of Mr. P.C. Joshi. Even otherwise, as per Section 10 of the Indian Evidence Act, 1872 physical presence of the conspirator is not essential. 6. She contended that once the enquiry proceedings are vitiated, the statements or records of the said proceedings would also stand quashed and untenable under the law and cannot be relied upon by the Tribunal for adjudicating the misconduct. Reliance was placed on Neeta Kaplish v. Presiding Officer, Labour Court: (1999) 1 SCC 517 and State Bank of India v. R.K. Jain Ors.: (1972) 4 SCC 304. It was further contended that after holding that the enquiry proceedings were vitiated, the Tribunal should have reinstated the petitioner. Reliance was placed on Vikramaditya Pandey v. Industrial Tribunal: (2001) 2 SCC 423. 7. The learned counsel for the respondent submitted that the Tribunal has passed a reasoned order after considering the evidence adduced by both the parties and therefore, there was no infirmity in the impugned order. Conclusion and Reasoning 8. The issue to be considered is whether the Tribunal had con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chandni Chowk Branch, the same would not have been offered to him. As far as the deduction of amount for subscription from petitioner's salary is concerned, the Tribunal considered the testimony of Ms Sunita Jain and also held that it was done in a routine manner and the same did not benefit Ms Sunita Jain in any manner. In the aforesaid circumstances, the contention that the Tribunal had not considered the facts in the entirety but had only focused its attention on the allegations leveled by Ms Sunita Jain, is bereft of any merit. 13. The decisions of the Supreme Court in Rajindra Sareen (supra) and Jai Krishna Mandal (supra) do not support the petitioner in any manner. In Rajindra Sareen (supra), the respondent (therein) had contended that the order, terminating his services, was malafide and had also referred to various incidents where he had come into conflict with the Chief Minister against whom the allegation of malafide had been leveled. The High Court examined each incident and concluded that none of the incidents could establish the respondent's plea of malafides. It is, in this context, that the Supreme Court held as under:- 49. Why we are saying tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of prosecutrix and the appellants therein on account of a dispute over a piece of land. The prosecutrix had alleged that she had been raped by the appellants and one other person. The medical report and the evidence of the doctor did not support the prosecution and the doctor had deposed that there was no evidence of rape or injury on the prosecutrix. In those circumstances, the Supreme Court set aside the appellant's conviction. In the present case, there is no evidence of any deep enmity between the petitioner and Ms Sunita Jain or any other official of the respondent bank. The fact that Ms Sunita Jain had been preparing the salary bill of the petitioner along with other employees and had been deducting union subscription which was objected to by the petitioner, cannot possibly lead to the conclusion that there was any deep enmity between the petitioner and Ms Sunita Jain. It is also not possible to accept that there was any animosity between the petitioner and the Regional Manager, which would prompt the officials and Ms Sunita Jain to hatch a conspiracy for petitioner's removal. The Tribunal had found that there was no evidence that Mr P.C. Joshi (Regional Manager, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve. Apart from the above, Ms. Sunita Jain also stated that as she was pregnant in those days, she had become disturbed and had narrated these facts to her husband who had come to the branch office along with some family members. And, at that juncture, the petitioner had tendered an apology in writing. 18. As is apparent from the above, there is inconsistency in the above testimony and Ms Sunita Jain's earlier complaint. In her complaint dated 10.07.1985, Ms Sunita Jain had referred to a written apology tendered by the petitioner on 06.07.1985. This is after she had resumed her duties on returning from her maternity leave. However she testified that the petitioner had tendered the written apology, when she was pregnant. Further, her complaint did not mention that the petitioner had called her to his cabin through a peon; no such allegation had been made by Ms Sunita Jain earlier. According to the petitioner, the above improvements and inconsistencies render Ms Sunita Jain's testimony completely untrustworthy and unreliable. The Tribunal noted that Ms Sunita Jain could not recollect the exact dates of the incidents and held that she was not expected to do so after a long t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... workman. 22. In Amrit Vanaspati Co. Ltd. v. Khem Chand: (2006) 6 SCC 325, a similar contention was rejected by the Supreme Court. In that case, it was contended that once the Labour Court had held the domestic inquiry to be irregular or illegal, the Court ought not to have permitted the management to produce additional evidence for proving the charges. The Supreme Court rejected the aforesaid contention and reiterated the settled principles for the exercise of jurisdiction by the Tribunal, by referring to an earlier decision in Workmen v. Firestone Tyre Rubber Co. of India (P) Ltd.: (1973) 1 SCC 813. The relevant extract of the judgment in Amrit Vanaspati (supra) is quoted as under:- 8. ..... This Court in a judgment in Workmen v. Firestone Tyre Rubber Co. of India (P) Ltd. (1973) 1 SCC 813 exhaustively referred to various decisions of this Court and gave a clear picture of the principles governing the jurisdiction of the Tribunals when adjudicating disputes relating to dismissal or discharge. Para 32 of the said judgment is reproduced here: (SCC pp. 827-29) 32. From those decisions, the following principles broadly emerge: (1) The right to take disciplinary act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (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 Panitole Tea Estate v. Workmen [(1971) 1 SCC 742] within the judicial decision of a Labour Court or Tribunal. This Court in the above judgment held that even if no inquiry has been held by the employer or the inquiry held i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and, therefore, the workman could not be reinstated. However, the Tribunal granted the benefits of retrenchment with 12% interest. The said award was not challenged by the management but was assailed by the workman before the High Court. The High Court concurred with the finding recorded by the Tribunal that it was a case of retrenchment but did not interfere with the award in view of the U.P. Cooperative Society Employees Services Regulation, 1975. The workman carried the matter before the Supreme Court. The Supreme Court held that once an employee's termination had been held to be illegal, the normal relief of reinstatement with back wages would be available to the employee. It was held that the management could show special circumstances why such relief ought not to be granted but in that case no such special circumstances were pleaded. The Supreme Court set aside the decision of the Tribunal and the High Court that the workman could not be reinstated, in view of the aforementioned regulations. Clearly, the issues involved in the present case are completely different from the ones considered in that case. In that case, the employer had accepted that the termination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground of violation of principles of natural justice. In the present case, the principles of natural justice have been adhered to and there is no procedural infirmity in the decision making process. 28. In cases where no domestic enquiry is held or if so held has been held to be vitiated, it is necessary that the Tribunal evaluates the evidence adduced before it. The Tribunal has to rule out the possibility that the allegations have been leveled against the workman with ulterior motives or are mala fide. Further the Tribunal needs to ensure that the proceedings are not the result of victimisation or an unfair labour practice. 29. In the present case, the Tribunal has appreciated the evidence and arrived at a conclusion. It is well established that this court, while exercising its powers under Article 226 of the Constitution of India, would not interfere with the findings of fact unless the same are perverse or based on no evidence at all. The Supreme Court in Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan: (2005) 3 SCC 193 held as under:- 12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types ..... X X X X Extracts X X X X X X X X Extracts X X X X
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