JUDGMENT
V.P. Tipnis, J.
1. The Export-Import Bank of India has filed this petition under Article 226 of the Constitution of India challenging the decision of the learned Presiding Officer of the Central Government Industrial Tribunal, I, at Bombay in a Reference No. GGAT-8 of 1988. The reference was made to the Tribunal under section 10 of the Industrial Disputes Act by the Central Government.
2. One Parmeshwaran was working as a Driver-cum-Messenger with the Export-Import Bank of India at Bombay since about October 1982. M/s. Daulat Automobiles, Bellard Estate, was looking after the repairs and maintenance of the vehicles belonging to the said bank. Parmeshwaran used to take the vehicle belonging to the said bank to the aforesaid garage for repairs since about middle of 1985. On 4.3.1986 the bank received a letter from the management of the garage complaining that the said Parmeshwaran had demanded and was paid a commission by the said garage. Parmeshwaran, the workmen, was issued a chargesheet on 21.3.1986 alleging misconduct on his part of securing illegal gratification from the garage i.e. Rs. 500/- on 2.1.1986 and Rs. 250/- on 13.1.1986 by giving threats that unless the commission is paid be would deliberately engineer mechanical break down of the bank’s cars. The chargesheet mentions that the aforesaid acts of the workmen amount to gross misconduct of taking unlawful commission and being acts prejudicial to the interest of the bank.
3. The Enquiry Officer, who was appointed to enquire into the above matter, completed the inquiry and submitted his finding to the Disciplinary Authority. After hearing the workman and his representative, the disciplinary authority confirmed the finding of the Enquiry Office and dismissed the workman from the services of the Bank by its order dated 18th December 1986.
4. Before the Tribunal, the validity of the inquiry was not challenged. However, it was strenuously contended before the Tribunal that the petitioner had not accepted any money on any occasion from Shri Rajendra Mehta, who is the proprietor of the said garage. He also specifically denied that he had signed either of the two vouchers dated 2.1.1986 and 13.1.1986 as alleged by the bank.
5. Admittedly no evidence was led before the tribunal. The Tribunal after going through the entire inquiry proceedings and hearing the parties held that the finding of the Enquiry Officer about the guilt of the workman is not supported by adequate or reliable evidence. The tribunal therefore set aside the said finding. The Tribunal further held that there is no good reason to withheld reinstatement with full backwages. Accordingly by its judgment and order dated 19th July 1990 the tribunal set aside the dismissal of the workman and directed the bank to reinstate him in service with full back-wages. The learned Presiding Officer of the tribunal was also pleased to direct the bank to pay the costs of the proceedings at Rs. 2500/-. The award was passed in the aforesaid terms.
6. The aforesaid award is challenged by way of this petition.
7. I have heard Shri Rele, learned counsel appearing for the petitioner-bank at some length. I have also heard Shri Gonsalves, learned counsel appearing for the respondent-workman. With the assistance of the learned counsel on both sides I have gone through the entire inquiry proceedings including relevant evidence, report of the Enquiry Officer and the judgment of the learned Presiding Officer of the Industrial Tribunal.
8. Shri Rele, learned counsel for the petitioner-back submitted that the learned Presiding Officer of the Industrial Tribunal has exceeded his jurisdiction in completely reappreciating the evidence. Shri Rele submitted that two handwriting experts were examined during the enquiry. One examined on behalf of the management gave evidence to the effect that the signatures on two vouchers are in the hand writing of the workman Parmeshwaran whereas the handwriting expert examined on behalf of the workman submitted that the signatures on the vouchers and the admitted signature of the workman are not by one and the same person. The Enquiry Officer after close analysis of the evidence of the two handwriting experts, accepted the evidence of the handwriting expert supporting the case of the management. The Enquiry Officer also accepted the evidence of the owner of the garage Shri Rajendra Mehta. As such the Enquiry Officer had cogent evidence before him to come to the conclusion that the workman had accepted those amounts under two vouchers. Shri Rele submitted that by no stretch of imagination the finding of the Enquiry Officer could be termed as perverse or not possible on the basis of the evidence on record. Shri Rele submitted that the Tribunal erred in just discarding the evidence of both the handwriting experts without itself coming to the conclusion one way of the other. He criticised the award of the tribunal and the observations in the judgment that there is nothing on record to show that the Enquiry Officer himself is expert in handwriting. In this behalf Shri Rele heavily relied upon the judgment of the Apex Court reported in AIR 1980 SC 531. Shri Rele also read the evidence of witness Shri Rajendra Mehta on behalf of the management and submitted that Shri Mehta has asserted that the payments were made in his presence and the workman had signed the vouchers in his presence. Shri Rele, therefore, submitted that there is hardly any justification for finding fault with the finding recorded by the Enquiry Officer. Shri Rele urged that in the facts and circumstances of the case the Industrial Tribunal erred in interfering with the finding recorded by the Enquiry Officer.
9. Shri Gonsalves, learned counsel for the respondent-workman, on the other hand, submitted that the tribunal was absolutely justified in holding that the charge against the workman is not at all proved. He referred to several aspects of the matter and also to the material on record to show that not only the charge is not proved but the management appears to have fabricated evidence only to silence the workman who had established a union of the workmen in the bank.
10. After having considered the entire material in the light of the rival submission, I am of the opinion that it is not at all necessary to investigate as to whether the two vouchers are fabricated as alleged by the workman. What is really material to decide is whether the finding that the workman is guilty of the misconduct is alleged, is justified or not. After having gone through the very lengthy report of the Enquiry Officer and especially reading paragraphs 24, 25, 27, 28, 35, 36, 37 and 28 thereof, I find that the submission of Shri Gonsalves to the effect that the approach of the Enquiry Officer to the matter is erroneous, is justified. It is relevant to notice that the allegation is that under two vouchers on two different dates the amount of Rs. 500/- and Rs. 250/- were paid to the workman and the workman signed the said vouchers. The workman had totally denied this allegation. The name of the workman is Parmeshwaran, whereas the signature on the voucher is Rameshwar. In the particulars recorded in the vouchers the entry is cash paid to Mr. Rameshwar of Exim Bank of India, MMH 933, on account of commission. Rajendra Mehta, owner of the garage has stated that his complaint is about asking for commission payment. When questioned why did he have to pay the commission to the workman, if he had not paid the commission what would happened, Shri Mehta replied fearing and tampering with cars which he repairs. Mr. Mehta also deposed what whenever any cash payment is made a voucher has to be made out by the Accountant, taken signature of the person concerned and endorsed by him. Mr. Mehta has stated that Mr. Parmeshwaran has signed on the stamp on the receipts. When pointed out that in both the receipts name mentioned is Rameshwaran, Mr. Mehta replied as under.
“Normally whatever has to be paid I tell my Accountant to pay. So he must have told him Rameshwaran. I just told my accountant across the table that this gentleman has to be paid and so he makes payment”.
Mr. Mehta also stated that Parmeshwaran signed in front of him. When questioned that both vouchers seem to have been sanctioned and authenticated by Mehta and when asked to explain the discrepancies in the name, Mr. Mehta replied as under :
“Mr. Parmeshwaran might have given a different name to the Accountant and while endorsing on the voucher, I only ensure to ascertain the figures. No cash payment is made without my endorsement”.
Mr. Mehta also stated that as soon as the vouchers were made he endorses and then the actual payment could be made and it was made in front of him and then the gap between two payments was so near. This was in reply to the question to how he exactly remember that his cashier paid the money amounting to Rs. 750/- to Parmeshwaran only and to no other person.
11. Shri Gonsalves also brought to my notice that the car No. MMH 933 is mentioned on the vouchers. During the enquiry one Mr. Naik, officer on behalf of the management admitted that there is a roster of drivers as also cars. However neither of these rosters was produced for inspection at any time. The Accountant who is alleged to have made the payment is admittedly not examined. In the inquiry report the Enquiry Officer observes that the witness Naik on behalf of the management had seen the entries in some register maintained by the garage which was sufficient for the said witness to get satisfied prima facie. However, it is an admitted position that no such record is produced at the time of the enquiry.
12. In the facts and circumstances of the case, all these matters do assume great significance. The learned Presiding Officer of the Tribunal found great force in the submission on behalf of the workman that the Accountant who actually made two payments had not been examined although available. His evidence was vital on the question of identity of the person to whom the amount the paid and the signature on the two receipts. The learned Presiding Officer of the Tribunal also found great substance in the submission on behalf of the workman that the delay of about 7 weeks in making the complaint to the bank by Mr. Mehta and the absence of material evidence like account books of the garage etc., are the factors going long way to show that there is no substance in the charge.
13. On the aforesaid material the learned Presiding Officer held that although Mr. Mehta insists that the two payments were made in his immediate presence, his evidence read in between the lines belies this claim. The tribunal has observed that the practice as stated by Mr. Mehta is that Mehta instructs his Accountant to prepare, voucher, Accountant prepares it, obtain payee’s signature on it and then puts the voucher before Mehta for his counter signature. After Mehta’s counter signature on the voucher, the Accountant pays the money to the payee. The learned Presiding Officer felt that it appears that the actual acts of Accountant’s taking signature of the payee and finally paying the money to him had not taken place in the immediate presence of Mr. Mehta and if that is so the evidence of the Accountant would have been of prime importance. The bank has not given any explanation whatever for their failure to examine him. The Learned Presiding Officer also felt that as Mr. Mehta was knowing the name of the workman as Parmeshwaran and if indeed vouchers were prepared in Mehta’s presence, showing his name as Rameshwar, the discrepency in the name and the signature of the payee would not have missed his attention. The Presiding Officer has pointedly referred to the fact that when cross-examined Mr. Mehta said that the workman might have given his name as Rameshwar to the Accountant. This explanation implies that the preparation of the voucher, Accountant writing the name of the payee, payee signing the voucher and the actual payment did not take place in the immediate presence of Mr. Mehta. The Presiding Officer also referred to the fact that assuming that Mr. Mehta may not have any assuming animosity towards are workman, the fact that he did not make any grievance to the management for more than 7 weeks, even after the second payment, is not explained by Mehta, and his alleged explanation is not satisfactory. The Presiding Officer found it hard to swallow the contention of Mr. Mehta that he made payment because he feared that the workman will tamper with the cars. The Presiding Officer felt that if Mr. Mehta is really scared of the workman he would have at once rushed to the Bank. The Presiding Officer felt that examination of the Accountant and production of other account books of the garage in the circumstances were absolutely relevant. Referring to the handwriting experts evidence the learned Presiding Officer has observed that he would refuse to accept the opinion of either of handwriting expert. Thus the entire case rested on the solitary word of Mehta and the Presiding Officer felt it would be hazardous to base the finding to the workman’s guilt on the aforesaid evidence.
14. After carefully having gone through the record and after having heard the submissions of both the learned counsel, I am of the clear opinion that the finding recorded by the learned Presiding Officer of the Industrial Tribunal appear to me, not only a possible view but eminently correct finding, justifying no interference in the exercise of the powers of this Court under Article 226 of the Constitution of India.
15. In the result petition fails and the Rule is discharged with costs.
16. At this juncture, Shri Rele, learned counsel appearing for the petitioner, prays that the order of reinstatement may be stayed for a period of four weeks. The prayer is granted and only the order of reinstatement is stayed upto 3rd October 1994 on condition that the management continued to pay the wages, in accordance with law. Shri Rele also prays for stay of payment of back wages. The direction regarding payment of back wages is stayed on condition that the amount already deposited is payable to the workman forthwith.
Certified copy expedited.
16. Prothonotary and Senior Master to act by the minutes of this order.