JUDGMENT
Madan B. Lokur, J.
1. The Petitioner is aggrieved by an Award dated 16th August, 1984 passed by the leaned Central Government Industrial Tribunal (CGIT) in ID No. 51/78.
2. The dispute referred for adjudication to the learned CGIT was as under:-
“Whether the action of the management of State Bank of India, New Delhi, in dismissing Shri J.R. Surma, Typist Clerk, in the State Bank of India, New Delhi with effect from 30th April, 1977 is justified? If not to what relief is the workman entitled?”
3. Briefly, the facts are that Respondent No. 1 the Workman joined the services of the Petitioner on 8th June, 1970 as a Typist/Clerk. On 31st December, 1975 he was issued a charge sheet in which he was alleged to have prepared four fictitious credit vouchers favoring National Trading Co. These forged vouchers were then passed under the forged signatures of M.R. Lamba, Head Clerk in the concerned department. Thereafter, payment vouchers were issued in favor of National Trading Co. on the basis of the forged vouchers. It was alleged that a sheet of paper was found in the drawer of the Workman’s table. In this sheet of paper, the Workman had allegedly worked out the amounts receivable under the fictitious vouchers. On these facts, it appeared that the intention of the Workman was to defraud the Petitioner and he was charged accordingly.
4. A departmental enquiry was then held against the Workman in which he was found guilty. Consequently, he was dismissed from service with effect from 30th April 1977. The Workman then raised an industrial dispute, which came to be referred for adjudication.
5. In the impugned Award, the learned CGIT found in favor of the Workman that the departmental enquiry had been conducted in a manner which caused material prejudice to the Workman. Essentially, the learned CGIT held that the Inquiry Officer had found the Workman guilty on the basis of the opinion of a handwriting expert that the documents in question were forged by the Workman. But, the report of the handwriting expert was not given to the Workman. The handwriting expert was not called to give evidence nor was the subjected to cross-examination. On the other hand, the request of the Workman for sending the documents to another independent expert for an opinion was not acceded to by the Inquiry Officer/
6. The learned CGIT declined to permit the Petitioner to lead evidence to prove the guilt of the Workman since the request was made at the fag end of the proceedings.
7. Learned counsel for the parties made their submissions on 26th and 27th August, 2002 when judgment was reserved.
8. In so far as the question of not being permitted to lead evidence before the learned CGIT is concerned, learned counsel for the Petitioner did not challenge the correctness of the decision taken by the learned CGIT declining the request. Indeed, in view of several decisions of the Supreme Court, the request of the Petitioner, made belatedly, could highly not be acceded to.
9. On the question of appreciating the evidence led by the Petitioner before the Inquiry Officer, learned counsel for the Petitioner cited several decisions to indicate the duty of this Court under Article 226 of the Constitution as well as the duty of the learned CGIT.
10. In J.D. Jain v. The Management of State Bank of India and Anr. , , it was said by the Supreme Court in paragraph 9 of the Report that “The law is well settled that the strict rules of evidence are not applicable in a domestic inquiry.” The Supreme Court quoted a passage from State of Haryana v. Rattan Singh , (at page 1513) where it was said that:
“It is well-settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.”
11. Rattan Singh was even otherwise cited by learned counsel for the Petitioner to submit that what is required to be seen by the learned CGIT is whether there was some evidence or there was no evidence against the Workman. The passage relied on (paragraph 4 of the Report) reads as under:
“The simple point is, was there some evidence or was there no evidence – not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record.”
12. State Bank of India v. Tarun Kumar Banerjee and Ors. , (2000) 8 SCC 12 was relied upon for the following proposition of law which was stated in Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. , :-
“When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.”
13. Reliance was placed by learned counsel for the Petitioner on a passage appearing in paragraph 3 of the decision of the Supreme Court in Tara Chand Vyas v. Chairman & Disciplinary Authority and Ors. , to the following effect:-
“The thrust of the imputation of charges was that he had not discharged his duty as a responsible officer to safeguard the interest of the Bank by securing adequate security before the grant of the loans to the dealers, and had not ensured supply of goods to the loanees. It is based upon the documentary evidence which has already been part of the record and copies thereof had been supplied to the petitioner. Under those circumstances, we do not think that there is any manifest error apparent on the face of the record warranting interference.”
14. Learned counsel for the Petitioner relied upon State Bank of Patiala and Ors. v. S.K. Sharma , to contend that the Supreme Court has accepted the test of prejudice (or the test of fair hearing), that is, "whether the person has received a fair hearing considering all things." of the Report). 15. On the other hand, learned counsel for the Workman relied upon Bareilly Electircity Supply Co. Ltd. v. The Workman and Ors. , , more particularly the following statement of law appearing in paragraph 14 of the Report:-
“But the principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are it contents and are the statements contained therein true…..If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal is basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced.”
16. On the scope of judicial review, reliance was placed by learned counsel for the Workman on Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors. , 1988 (Supp) SCC 768 , where in paragraph 10 of the Report, it was held that:-
“The object of enacting the Industrial Disputes Act, 1947 and of making provision therein to refer disputes to tribunals for settlement is to bring about industrial peace. Whenever a reference is made by a government to an Industrial Tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by adjudication. In all such cases an attempt should be made by courts exercising powers of judicial review to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the tribunals by striking down awards on hypertechnical grounds.”
17. On the basis of the law laid down by the Supreme Court, what has now to be seen is whether the learned CGIT erred in its conclusions and if so, whether the error was of such import as to warrant interference under Article 226 of the Constitution.
18. The case of the Petitioner against the Workman rested on the report of the handwriting expert. Admittedly, this expert did not file any affidavit or make any statement that the report was made by him. It is not as if the expert was not available for filing an affidavit or making a statement before the Enquiry Officer. In view of this, the failure of the Petitioner to produce the handwriting expert before the Enquiry Officer or to file his affidavit must lead to the conclusion that his report does not deserve to be relied upon. This is all the more so considering the statement of the Workman made before the Enquiry Officer on 23rd August, 1976. This is what the Workman said:-
“Further consequent upon the production of the report of the handwriting expert alognwith other documents I observe that the Handwriting Expert who made his report dated the 26th October 1975 was appointed by the Bank, paid by the Bank and therefore, his report is biased and should not be relied upon by the learned Enquiry Officer. Moreover the said handwriting expert does not work under any Government Laboratory or institution as such no reliance should be made upon it.
I would therefore, request the Enquiry Officer to get the disputed documents tested and verified through some Government laboratories whose reports are most independent opinions, so that an opportunity may be accorded to me to prove my innocence having prepared the fictitious vouchers marked Ex. B-1 to B-5 and Clearing Slips Ex. B-13 and B-14 and to compare the report of Handwriting Expert hired by the Bank.”
19. Under the circumstances, the least that the Petitioner ought to have done, if it could not produce the handwriting expert or his affidavit, is to have sent the dispute documents to an independent Government expert. This was not done. The learned CGIT was, therefore, right in concluding that a fair enquiry was not conducted, to the prejudice of the Workman.
20. Learned counsel for the Petitioner submitted that the Workman did not ask for cross-examination of the handwriting expert or for a copy of his report. Quite clearly, the Workman could have asked for cross-examination of the handwriting expert only if he had been produced for examination or if his affidavit was filed. Since neither event took place, there could have been no question of the Workman asking for cross-examination of the handwriting expert. There was also no occasion to ask for the report of the handwriting expert since it was not a document which had any evidentiary value.
21. It was submitted that even otherwise, the Workman was guilty of the misconduct alleged. I do not think that this conclusion can straightaway flow from the material on record. The entire basis of the allegations against the Workman was one of forgery. This could have been proved only if the Workman admitted the forgery alleged or if it was proved by a handwriting expert. Admittedly, there was no confession made by the Workman, and, no handwriting expert was produced to prove the forgery. Therefore, I fail to see how the guilt of the Workman was established. It is not as if there was some evidence to prove the guilt of the Workman – in fact, there was no evidence to this effect.
22. Under the circumstances, the impugned Award does not call for any interference in this regard.
Relief
23. Learned counsel for the Petitioner contended that on the facts and in the circumstances of the case, the Workman is not entitled to the relief of reinstatement with full back wages. Reliance was placed on two decisions of the Supreme Court.
24. However, before considering these decisions of the Supreme Court, it is necessary to bear in mind that there is no allegation of victimization of the Workman or any allegation that the Petitioner has resorted to any unfair labour practice. It is also necessary to bear in mind that the Petitioner is a bank and the custodian of the hard earned money of its customers. It must have full faith and confidence in its employees. If it has some suspicion that any one of its employees is likely to misappropriate any amount belonging to any of its customers, the Petitioner is entitled to take whatever action is necessary to protect the interests of its account holders.
25. In the present case, the Petitioner obviously believes that the Workman has committed some acts with an intent to fraudulently withdraw some amounts. That the Workman has not been found guilty of the allegations made against him is another matter. The fact still remains that the Petitioner does not trust the Workman. If the Petitioner does not trust the Workman, there seems to be no reason to thrust the services of the Workman on the Petitioner by an order of reinstatement.
26. It does not appear to me that the Petitioner is expressing a lack of faith in the Workman only for the sake of saying it. The Petitioner could have taken the Workman back in service without prejudice to its right and contentions in the writ petition, but it chose not to do so. Instead, the Petitioner decided to pay the wages to the Workman, without utilizing his services. And, it is not as if the Petitioner has paid wages to the Workman for a few months or so – it has paid wages for as long as 25 years. Quite clearly, the Petitioner did not want the Workman to again set foot in the bank as its employee.
27. In M/s Hindustan Steels Ltd., Rourkela v. A.K. Roy and Ors. , , the Supreme Court noted that:- "The problem confronting industrial adjudication is to promote its two objectives, the security of employment and protection against wrongful discharge or dismissal on the one hand and industrial peace and harmony on the other, both leading ultimately to the goal of maximum possible production." 28. Thereafter, in paragraph 10 of the Report, it was held that:-
“As exceptions to the general rule of reinstatement, there have been cases where reinstatement has not been considered as either desirable or expedient. These were the cases where there had been strained relations between the employer and the employee, where the post held by the aggrieved employee had been one of trust and confidence or where, though dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive of or prejudicial to the interests of the industry……No hard and fast rule as to which circumstances would in a given case constitute an exception to the general rule can possibly be laid down as the Tribunal in each case, keeping the objectives of industrial adjudication in mind, must in a spirit of fairness and justice confront the question whether the circumstances of the case require that an exception should be made and compensation would meet the ends of justice.”
29. Subsequently, in paragraph 14 of the Report, the Supreme Court said:-
“The question, however, still is whether the Tribunal was, in the circumstances of the case justified in directing reinstatement. It is true that some of the decisions of this Court have laid down that where the discharge or dismissal of a workman is not legal or justified, the relief which would ordinarily follow would be reinstatement. The Tribunal, however, has the discretion to award compensation instead of reinstatement if the circumstances of a particular case are unusual or exceptional so as to make reinstatement inexpedient or improper. The Tribunal has therefore, to exercise its discretion judicially and in accordance with well recognised principles in that regard and has to examine carefully the circumstances of each case and decide whether such a case is one of those exceptions to the general rule. If the Tribunal were to exercise its discretion in disregard of such circumstances or the principles laid down by this Court it would be a case either of no exercise of discretion or of one not legally exercised. In either case the High Court in exercise of its writ jurisdiction can interfere and cannot be content by simply saying that since the Tribunal has exercised its discretion it will not examine the circumstances of the case to ascertain whether or not such exercise was properly and in accordance with the well settled principles made. If the High Court were to do so, it would be a refusal on its part to exercise jurisdiction.
30. Then, in paragraph 16 of the Report, the Supreme Court expressed the following view:-
“But, if the management truly believed that it was not possible to retain workman in the company’s service on grounds of security and consequently could not place confidence in him any longer, the present case would be one of those exceptional cases where the general rule as to reinstatement could not properly be applied. This of course does not mean that in every case where the employer says that he has lost confidence in the workman, and therefore, has terminated his service that reinstatement cannot be granted and the Tribunal has to award compensation. On the other hand, if on an examination of all the circumstances of the case, the Tribunal comes to the conclusion that the apprehensions of the employer were genuine and the employer truly felt that, it was hazardous or prejudicial to the interests of the industry to retain the workman in his service on grounds of security, the case would be properly one where compensation would meet the ends of justice.”
31. Eventually, on the fats of the case before it, the Supreme Court concluded that that case was one where compensation was required to be granted in lien of reinstatement. Relying upon three earlier decisions of the Supreme Court, it proceeded to award compensation equivalent to the last drawn salary of the workman for a period of two years.
32. In Anil Kumar Chakraborty and Anr v. Saraswatipur Tea Co. Ltd. , , the Supreme Court proceeded on the basis that the order of dismissal passed against the workman was unsustainable. It held that the case was one of loss of confidence in the employee and that compensation would be the appropriate relief to grant. The Supreme Court then proceeded to award Rs. 50,000/- as compensation. How this figure was arrived at is not clear except that it was based on the facts of the case and lapse of time.
33. In any event, it now seems settled, at least as far as this Court is concerned, that compensation can be awarded to a workman in lieu of reinstatement (see Delhi Transport Corporation v. Presiding Officer and Anr. , 1999 VI AD (DELHI) 723). As mentioned above, the Petitioner truly does not want the Workman to set foot in the bank as its employee. Consequently, reinstatement cannot be granted to the Workman – he can only be entitled to compensation.
34. In the absence of any empirical evidence for quantifying the amount of compensation to be granted, the appropriate course would be to follow the precedent set by the Supreme Court in Hindustan Steels Ltd. and award to the employee an amount equivalent to two years wages at the rate last drawn in lieu of reinstatement. In case the Workman reaches the age of superannuation within this period of two years, he will, of course, be entitled to the wages last drawn up to the age of superannuation. In other words, he will be entitled to the last drawn wages for a period of two years from today or till superannuation, whichever is earlier. It is ordered accordingly.
35. The writ petition is disposed of in the above terms. No costs.