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PETITIONER: JAI BHAGWAN

       Vs.

RESPONDENT: THE MANAGEMENT OF THE AMBALA CENTRAL COOPERATIVE BANKLIMITED

DATE OF JUDGMENT29/09/1983

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) DESAI, D.A. VARADARAJAN, A. (J)

CITATION:  1984 AIR  286            1984 SCR  (1) 158  1983 SCC  (4) 611        1983 SCALE  (2)528

ACT:      Industrial  Disputes   Act,  1947-Domestic   enquiry-No charge  sheet  or  show  cause  notice  for  termination  of services issued-No  indication of  guilt of  employee in the report-Services     terminated-Enquiry-Whether      violates principles of  natural justice-Failure  to appeal  to higher authority, whether bars tribunal’s jurisdiction.

HEADNOTE:      There was  a complaint  from an  account holder  of the respondent bank  that his account was wrongly debited with a big sum  of money  even though  he had never issued a cheque for  that  sum.  The  appellant,  a  clerk-cum-cashier,  was apparently suspected  to be responsible for the presentation of the  cheque. The  bank lodged a complaint with the police but  the   appellant  was  eventually,  discharged.  In  the meanwhile, the  bank placed him under suspension. An enquiry as to  the  genuineness  of  the  customer’s  complaint  was ordered. The  appellant was  advised to  be present  at  the enquiry but  no charge-sheet  was ever served on him. In his report, the  enquiry officer  stated that  "there  lies  the possibility that  the complaint  of  the  applicant  may  be genuine." But there was no indication in the report that the appellant had  anything to  do with  the presentation of the cheque.  Yet,  on  basis  of  this  report  the  appellant’s services were terminated. Thereafter the appellant raised an industrial dispute.  The Industrial  Tribunal, rejecting the appellant’s contention  that principles  of natural  justice had not been observed upheld the order of termination of his services.      In the  workman’s appeal to this Court it was contended on behalf of the respondent that the appellant ought to have pursued the  remedy of  appealing to the Board of Management against the  order of  termination and  his failure to do so disentitled him from raising any industrial dispute.      Allowing the appeal,      HELD:  The   order  terminating  the  services  of  the appellant  was   wholly  unsustainable.   The  appellant  is entitled to  be reinstated  with continuity  of service from the date of termination of his services. There was total non application of  the mind by the Tribunal. [161 G; 164 D; 162

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H]      There was  a total  breach of the principles of natural justice: the appellant was never asked to answer any charge; there was no enquiry against him; no 159 notice was  issued to  him to  show cause  why his  services should not  be terminated and even the order terminating his services failed  to mention any reason. The Bank should have led necessary  evidence to  prove  the  charge  against  the appellant. None  of the three witnesses examined by the Bank could either  prove that the cheque was a forgery or that it had been  presented by  the appellant.  The enquiry  was not directed against  the appellant  but was held with a view to find out  whether there  was any  truth  in  the  customer’s complaint.  The   enquiry  officer  did  not  say  that  the appellant  was  guilty  or  had  anything  to  do  with  the presentation of the bogus cheque. The complainant, who would have been  the most  crucial witness, was not examined. [161 F; H; 162 A; C-E]      Notwithstanding all  this,  by  a  curious  process  of reasoning  the  Industrial  Tribunal  upheld  the  order  of termination,  dismissing  the  appellant’s  contention  that principles of  natural justice  had not  been observed.  The Tribunal’s observation  that strict  rules of  evidence were not applicable  to domestic enquiries and that "not too much legalism was  expected in  such  matters  from  the  enquiry officer" was  far from  correct.  In  short,  the  Tribunal, without applying  its mind  to the  facts of  the  case  and without bothering  to peruse  the records,  gave a  findings that the  termination of  his services  was  justified.  The Tribunal’s findings and conclusion were therefore worthless.                                        [162 B-C; H; 163 B-C]      Raising an  industrial dispute is a well-recognised and legitimate mode of redress available to a workman, which has achieved statutory recognition under the Act and there is no reason why  a statute-recognised  mode of  redress should be denied to a workman because of the existence or availability of another  remedy. Nor has an industrial tribunal, to which a dispute  had been  referred for adjudication, the power to refuse to  adjudicate upon it and surrender its jurisdiction to some  other authority.  While the Government may exercise its discretion  to refer  or not  to  refer  a  dispute  for adjudication, once a dispute is referred to it, the Tribunal has no  discretion to  decide whether  to adjudicate or not. The Tribunal has to resolve the dispute. The Tribunal cannot avoid it on the ground that the workman had failed to pursue some other remedy. [163 G-H; 164 A-B]      The  attempt  to  connect  the  order  terminating  the appellant’s services  with his  absence from the bank on two days was  an attempt  made for  the first  time before  this Court. It  cannot be  allowed to  be raised  now. The letter dated 17th  September, 1974  addressed to  the appellant had nothing to  do  with  the  presentation  of  the  cheque  or withdrawal of money, but related to his absence from duty on two days  in August 1974 and his signature said to have been found in the attendance register on those days. [164 B-C;163 A-B]      The workman  has awarded  half back wages from the date of termination  of service  to the date of judgment and full wages thereafter  to the date of reinstatement on the ground that he  raised  the  dispute  after  a  considerable  delay without doing anything in the meanwhile. [164 E]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.  5274 (NL) of 1983. 160      Appeal by  Special leave  from the  Judgment and  Order dated the 4th March, 1982 of the Industrial Tribunal Haryana at Faridabad  in Reference  No. 79/80  published in  Haryana Govt. Gazette dated the 6th June, 1982.                             AND                Civil Appeal No. 5275 of 1983      Appeal by  Special leave  from the  Judgment and  Order dated the 16th day of August, 1982 of the Punjab and Haryana High Court in Writ Petition No. 3475 of 1983.      Ms. Chander  Malhotra &  Mrs.  Indra  Sawhney  for  the Appellant in both the Appeals.      K.B. Rohtagi for the Respondent in both the appeals.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. Shri  Phulel Singh  had a  savings account with the Naraingarh branch of the Ambala Central Co- operative Bank  Limited. A cheque for Rs. 4200 purporting to have been  signed by  Shri Phulel Singh, drawn on the Ambala Central Co-operative Bank was presented through the Punjab & Sind Bank  Limited,  Dhulkot  and  the  proceeds  were  duly remitted to  the latter  bank. The  account of  Shri  Phulel Singh was  debited with  that amount. Later when Shri Phulel Singh presented  his pass  book,  appropriate  entries  were made. Shri  Phulel Singh  objected to  the entry relating to the debit  of Rs.  4200. He alleged that he had never issued the cheque  for Rs.  4200 said to have been issued by him. A complaint was  also lodged  with  the  police.  The  present appellant,  who  was  clerk-cum-cashier  of  the  Naraingarh Branch of  the bank,  and who  was apparently  suspected  in connection with  the presentation  of the  bogus cheque, was interrogated by  the  police  and  his  statement  was  also recorded. A  First Information Report was registered against him, but  the case ended in discharge. In the meanwhile, the Managing Committee  of the  bank placed  the appellant under suspension.  Shri   Hans  Raj,   an  Assistant  Manager  was appointed to  enquire into  the matter in order to ascertain the genuineness  of the  complaint made by the customer. The appellant was advised to be present at the Naraingarh branch of the bank on 161 July 29, 1974 in connection with the enquiry. No chargesheet was ever  issued to  the appellant.  The  statement  of  the appellant was  however recorded  by the  enquiry officer  on July 29,  1974 along  with the  statements of  several other persons. The  enquiry officer submitted his report on August 21,  1974.  The  finding  of  the  enquiry  officer  may  be extracted here. It was as follows:-           "As a  result of  enquiry and  on the basis of the      points given  in the report, there lies the possibility      that the complaint of the applicant may be genuine." The enquiry officer thus indicated that there might be truth in the  complaint of  the customer  that a  bogus cheque was presented and  his account  debited with  the amount.  There was,  however,   no  indication   in  the  report  that  the appellant, Jai Bhagwan was guilty or had anything to do with the presentation of the bogus cheque. Thereafter, on January 31, 1975,  the appellant  was informed that his services had been  terminated   with  immediate  effect.  No  reason  was mentioned in  the order  terminating  the  services  of  the appellant. We  have  no  information  nor  was  his  learned counsel in  a position  to tell us as to any immediate steps taken by  the appellant to question the order of termination

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of his  services. But  he did ultimately raise an industrial dispute and by an order dated December 15, 1980 the Governor of Haryana  referred the  following dispute for adjudication to the Industrial Tribunal, Haryana at Faridabad:           "Whether the  termination of  services of Shri Jai      Bhagwan was  justified and  in order  ? If not, to what      relief is he entitled ?"      Even from  the brief  narration of facts, it is obvious that there  was a  total breach of the principles of natural justice.  The  appellant  was  never  asked  to  answer  any charges, there  was no  enquiry against  him, no  notice was issued to  him to  show cause why his services should not be terminated and  even  the  order  terminating  his  services failed to  mention any  reason. The  order  terminating  the services of  the appellant  was  wholly  unsustainable.  If, therefore, the  bank wanted to sustain the order terminating the services of the appellant, it was up to the bank to lead necessary evidence  to prove  such charges  as it desired to establish against  the appellant. The bank made an effort by adducing  the   evidence  of   three   witness   MW-I,   the Establishment Officer, MW-II, Assistant 162 Manager, Karnal  and MW-III,  the Enquiry  Officer, none  of whom could  either prove  that the  cheque was  a forgery or that it  had been  presented by  the appellant.  Shri Phulel Singh, who would have been the most crucial witness, was not examined. In  the absence  of the  evidence of  Shri  Phulel Singh, no  case could possibly be said to have been made out against the  appellant. Yet  by a  very curious  process  of reasoning, the  Industrial  Tribunal  upheld  the  order  of termination of  the appellant’s  services. He  dismissed the contention that  principles of  natural justice had not been observed with  the observation that strict rules of evidence were not  applicable to domestic enquiries and "not too much legalism was  expected in  such  matters  from  the  enquiry Officer." We  are unable  to understand  what the Industrial Tribunal meant.  There was  not the  slightest semblance  of observance of the principles of natural justice. The enquiry made by  the enquiry  officer was  not directed  against the appellant, but  was held  with a  view to  find out  whether there was  any truth  in the  complaint of the customer that somebody had  presented a  bogus cheque  and drawn  Rs. 4200 from his  account. The  report of  the enquiry  officer also contained no  finding against  the appellant. At no time was the appellant  informed of  any charges  against him  or his explanation sought.  Commenting on the report of the enquiry officer, the Industrial Tribunal stated:           "I have gone through the documents produced by the      management and  found that  the  enquiry  officer  took      great pain  in finding out the facts of the case as was      evident from  his report  Ex. M-8  which was dated 21st      August, 1974.  The report  gives minute  details and is      logical. The  enquiry officer reached the conclusion by      going through  the records  of the bank and also of the      drawee branch  of  Punjab  &  Sind  Bank,  Dhulkot  and      ascertaining the person in whose account the sum of Rs.      4200 was  deposited and also the connection of Shri Jai      Bhagwan  concerned  workman  with  that  person.  I  am      convinced  by  reading  the  enquiry  report  that  the      concerned workman  was involved  into  withdrawal  and,      therefore, he was found guilty by the Enquiry Officer." This shows  a total  non-application  of  the  mind  by  the Industrial Tribunal  since the  appellant  was  never  found guilty by  the enquiry officer. The Industrial Tribunal also stated that a final show cause notice had been issued to the

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workman on September 17, 1974 in 163 which the  findings of  the  enquiry  officer  were  briefly given.  This  is  another  indication  that  the  Industrial Tribunal never  applied his  mind to  the issues before him. The letter  dated September 17, 1974 had nothing whatever to do with  the presentation of the cheque or the withdrawal of the  money.  It  was  concerned  with  the  absence  of  the appellant from  duty on  August 13  and  14,  1974  and  the signatures  said  to  have  been  found  in  the  attendance register against the dates August 13 and 14, 1974. Thus, the Industrial Tribunal, apparently without applying his mind to the facts  of the  case and without bothering even to peruse the records,  gave a  finding that  the termination  of  the services of  the workman were justified and in order. We are constrained to reject the findings and the conclusion of the Industrial Tribunal  as entirely  worthless.  The  appellant filed a writ petition in the High Court of Punjab & Haryana, but the  writ petition was unfortunately summarily rejected. The workman  has filed  these two  appeals under Art. 136 of the Constitution, one against the decision of the Industrial Tribunal and  the other against the summary dismissal of the writ petition by the High Court. Both the appeals have to be allowed in the circumstances mentioned by us.      Shri Rohatgi,  learned counsel for the Respondent-Bank, was  unable   to  contend  that  there  was  even  a  remote compliance with  the principles  of natural  justice. He was also unable  to urge  that the Industrial Tribunal had truly applied his  mind to  the case. He, however, argued that the appellant had  a remedy  against the order of termination of services by  way of an appeal to the Board of Management and that his  failure to  pursue that  remedy  barred  him  from raising any Industrial dispute. He also attempted to connect the order of termination of services with the absence of the workman from  the bank  on August  13 and  14, 1974, on days when his  signature was found in the attendance register. We see no  substance in  either of  the submissions. Raising an industrial dispute  is a well recognised and legitimate mode of redress  available  to  a  workman,  which  has  achieved statutory recognition  under the Industrial Disputes Act and we fail  to see  why the  statute-recognised mode of redress should be  denied to  a workman  because of the existence or availability  of   another  remedy.   Nor  are  we  able  to understand how  an Industrial Tribunal to whom a dispute has been referred for adjudication can refuse to adjudicate upon it and  surrender jurisdiction  which it  undoubtedly has to some other  authority. While  the  Government  may  exercise their discretion in 164 deciding whether  to refer  or not  to refer  a dispute  for adjudication, the  Tribunal to  whom the  dispute  has  been referred has  no discretion  to decide whether to adjudicate or not.  Once a  reference has  been  properly  made  to  an Industrial Tribunal,  the dispute has to be duly resolved by the Industrial Tribunal. Resolution of the dispute cannot be avoided by  the Tribunal  on the ground that the workman had failed to  pursue some  other remedy.  The attempt  of  Shri Rohatgi to  connect the  order terminating  the  appellant’s services with his absence from the bank on August 13 and 14, 1974 is  an attempt made before us for the first time. At no earlier stage  was the  order  of  termination  of  services sought to  be sustained  on the  basis of the absence of the workman from  the bank  on August 13 and 14, 1974. It cannot be done now.      The appellant  is, therefore, entitled to be reinstated

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in service with continuity of service from the date on which his  services   were  terminated.   Having  regard   to  the circumstance that  the workman  raised an Industrial dispute after considerable  delay  without  doing  anything  in  the meanwhile to question the termination of his services, we do not think  that we  will be  justified in awarding full back wages. We  think that  award of half the back wages from the date of  termination of  service until to day and full wages from this  day until  reinstatement will  meet the  ends  of justice. The  appellant will  be entitled to his costs which we quantified at Rs. 5,000. P.B.R.    Appeal allowed. 165