Ashim Kumar Banerjee, J.:— Respondent No. 4 was an employee of Life Insurance Corporation of India Ltd. (hereinafter referred to as “LIC”), the appellant abovenamed. He was working at material times at Burdwan Branch Office of the appellant. He was chargesheeted on the ground of embezzlement of fund. Specific charge against the said respondent was that he credited accounts of various policy holders for a long time whereas those policy holders did not in fact pay the premiums for the quarters for which their accounts were credited. He replied to the chargesheet by taking a plea that because of pressure of work there had been wrong entries recorded in the books of accounts. In fact he did not make any illegal gain out of such wrong entries. Relevant extract of his reply is quoted below:
“Irregularities as pointed out in your letter under reply were not deliberately done by me.
..It may be, that due to pressure from my then Sr. Branch Manager for maximum amount of deposit adjustments coupled with my family worries and anxieties…. I might have committed some mistake resulting in the irregularities as mentioned in your letter but I would once again like to state that this was neither done by me deliberately nor did I take money from anybody for personal gains but were the outcome of circumstances beyond my control for which I crave the indulgence to your taking lenient view of the whole matter and excuse me to again prove my worth…”
2. Pertinent to note, as soon as the irregularities surfaced and the said respondent was asked to show cause those unpaid premiums were deposited. The domestic enquiry was held where he was found guilty of the charges levelled against him and he was ultimately dismissed from service with effect from September 28, 1978. He challenged the order of dismissal before this Court. This Court, by an order dated February 5, 1981 set aside the order of dismissal after holding that the proceeding was irregularly conducted. His Lordship, however, directed the enquiry officer to proceed with the enquiry afresh after giving the said respondent an opportunity to disclose evidence afresh.
3. The proceeding was held afresh. The said respondent, however, avoided the enquiry on one plea or the other as contended by LIC. He was again found guilty of the charges. He was given a copy of the enquiry report. He was given a second show-cause notice. He was ultimately dismissed from service as communicated by letter dated December 7, 1981. The said respondent preferred an appeal before the appellate authority. The appellate authority rejected his appeal by order dated April 22, 1981. He then raised an industrial dispute. The Tribunal held that the enquiry was not conducted in accordance with law. According to Tribunal, no witness was examined on behalf of LIC and the Presenting Officer himself acted as witness. The Tribunal ultimately published an award holding that there had been failure on the part of the LIC to prove that the workman committed misconduct. The said award dated July 15, 1998 became the subject-matter of challenge in the writ petition filed by LIC. The learned Single Judge disposed of the writ petition by passing the following order:
“This is an application filed by the petitioner, inter alia, challenging the order dated 11th November, 1995 and an award passed on 15th June, 1998 being Annexure “J” to the writ petition on the ground that the said order passed by the learned Tribunal holding that the domestic enquiry is bad in law is not tenable in view of the fact that the Tribunal failed to appreciate that the original policy bags of the policy holders are always with the policy holders and the LIC retains only copies of the same. The further ground which has been stated in the petition is that the documents placed by the Presiding Officer in the domestic enquiry was marked as exhibits without objection from the respondent No. 4.
However, taking into all this aspect of the matter, I do not think that the Writ Court can pass any order on this application at this stage. As such this application must fail. However, parties shall be at liberty to apply before the Central Government Labour Court and to take all such points before the Tribunal. It is desirable that the steps should be taken and dispose of the same at an early date by the Tribunal.”
4. Both parties applied for clarification before His Lordship. His Lordship considered both the applications for clarification and held that the said order need no clarification and both the applications were dismissed. Both the parties preferred appeal. The appeal of the respondent was disposed of by judgment and order dated March 22, 2000 appearing at pages 441 to 442 of the Paper Book. The Division Bench observed that there should not be any confusion and the parties would be at liberty to apply before the Central Government Labour Court by taking all points which were taken before the Tribunal.
5. The appeal of LIC came up for hearing before us on the abovementioned dates. Apart from merits of the matter arguments were advanced on the maintainability of this appeal. We, therefore, wish to deal with the points of maintainability before we go into the merits of the matter.
6. Mr. Lakshmi Kumar Gupta, learned Counsel appearing for the workman contended on the issue of maintainability as follows:
(i) The instant appeal as against the original order dated March 31, 1999 was barred by law. Appropriate order of condonation was not passed by the Division Bench with regard to the same.
(ii) The order allowing the application under section 5 would depict that the Division Bench considered the subsequent order dismissing the modification application passed on January 11, 2000 and not the earlier order dated March 31, 1999.
(iii) The order dated March 31, 1999 was passed by the learned Single Judge. Both parties applied for clarification. His Lordship dismissed both the applications. The order was again considered by the Division Bench in the appeal filed by the workman which stood disposed of by judgment and order dated March 22, 2000. Hence, this Division Bench being a Co-ordinate Bench was not competent to decide the issue afresh.
6a. Mr. Arijit Chowdhury, learned Counsel appearing for LIC, contended as follows:
(i) The instant appeal was against the order dated March 31, 1999 and January 11, 2000. The appeal was admitted by the Division Bench by condoning the delay. Hence, it could not be said to be barred by limitation at this stage.
(ii) The appellant being the writ petitioner was entitled to raise their grievance before the higher forum being the Division Bench independently against the order of the learned Single Judge dismissing the writ petition filed by the appellant.
(iii) This, being an independent appeal the Division Bench was competent to deal with the same. The points taken in this appeal were neither decided nor discussed in the order dated March 22, 2000 by the Division Bench in the other appeal.
7. We have considered the rival contentions on the issue of maintainability. We have also perused the records. It appears that the appeal as against the order dated March 31, 1999 was barred by 1636 days whereas the appeal against the order dates January 11, 2000 was delayed by 1 day. While allowing the application for condonation the Division Bench considered both the aspects and Ultimately came to a finding that the appeal was delayed by 1 day. In any event once the Division Bench condoned the delay and admitted the appeal the first plea of Mr. Gupta, in our view, is not tenable and as such is rejected.
8. We are also not convinced with the second plea taken by Mr. Gupta. A litigant is having every right to challenge an order to the higher forum if he is dissatisfied with the same. In this combined appeal we find that the main attack of the appellant was on the order dated March 31, 1999. Order dated January 11, 2000 was nothing but a consequential one. The appeal of the workman was only against the order dated January 11, 2000 and as such the Division Bench did not have any opportunity to consider the validity and/or propriety of the order dated March 31, 1999 which is the subject matter of the present appeal. Hence, we are of the view that there is no impediment for us to hear the appeal on merits. The second plea of Mr. Gupta is thus rejected.
9. Let us now decide the appeal on merits.
10. On perusal of the award we find that the principal reasons on which the order of dismissal was quashed, are as follows:
(i) The workman was denied particulars and addresses of various policy holders whose premiums were wrongly credited by the workman.
(ii) The original policy bags were not produced for inspection although asked for.
(iii) Prosecution did not produce any witness to prove their case.
(iv) The Presenting Officer himself deposed in favour of the prosecution which was not permissible.
11. Mr Chowdhury in support of the appeal on merits contended as follows:
(i) The addresses of the concerned policy holders were all known to the workman as would appear upon perusal of the records.
(ii) Assuming that those addresses were not given by LIC and assuming that the policy bags were not produced for inspection no complain was ever made by the workman during enquiry.
(iii) The workman failed to prove that prejudice had caused to him because of non-supply of those particulars and/or non-production of the original policy bags.
(iv) On perusal of the reply to the show-cause and/or chargesheet it would appear that the facts were admitted by the concerned workman who prayed for mercy of the employer. Hence, this belated plea was not tenable.
(v) In any event, the Tribunal was not right in granting back wages when the concerned workman did not work and he was accordingly paid appropriate suspension allowance while on suspension.
12. In support of his contention Mr. Chowdhury cited following decisions:
(i) All India Reporter 1958 Supreme Court Page 86 (State of U.P v. Mohammad Nooh).
(ii) All India Reporter, 1969, Supreme Court, Page 236 (Employers of Firestone Tyre & Rubber Co. Pvt. Ltd. v. Workmen)
(iii) AIR, 1968, Calcutta, Page 174 (Sovachand Mulchand v. Collector of Central Excise & Land Customs)
(iv) 1975, Volume II, Labour Law Journal, Page 379 (Cooper Engineering Limited v. Shri P.P Mundhe. Mundhe)
(v) AIR, 1982, SC, Page 673 (J.D Jain v. Management of State Bank of India)
(vi) AIR, 1984, SC, Page 153 (D.P Maheshwari v. Delhi Administration)
(vii) 1988, Volume-I, CLT, Page 431 (Sarajit Coomer Mazumder v. Calcutta Dock Labour Board)
(viii) 1995, Volume-II, SCC, Page 474 (Surjit Ghosh v. Chairman & Managing Director, United Commercial Bank)
(ix) 1997, Volume-IV, SCC, Page 565 (Tarachand Vyas v. Chairman & Disciplinary Authority)
(x) AIR, 2000, SC, Page 2783 (Aligarh Muslim University v. Mansoor Ali Khan)
(xi) 2005, Volume-V, SCC, Page 591 (General Manager, Haryana Roadways v. Rudhan Singh)
(xii) 2005, Volume-V, SCC, Page 124 (Allahabad Jal Sansthan v. Daya Shankar Rai)
(xiii) Volume 55, Factory Law Report, Page 821 (Kumar Ram Nandan v. Fluid Power (P) Ltd.)
13. Mr. Gupta appearing for the workman while opposing the appeal on merits contended as follows:
(i) The Court could not go beyond the domestic enquiry. The domestic enquiry was considered by the Tribunal being the fact finding forum. Hence, the Writ Court was not entitled to sit on appeal over such decision.
(ii) Admittedly no evidence was laid on behalf of the employer and on that ground alone the proceeding was bound to fail and the Tribunal was right in quashing the order of dismissal.
(iii) The Presenting Officer was not entitled to adduce evidence on behalf of the employer.
(iv) Once the order of dismissal was found to be bad payment of back wages was a consequential relief being an automatic feature.
14. In support of his contention Mr. Gupta cited the following decisions:
(i) AIR, 1956, SC, Page 593 (Nagubai Ammal & Others v. B. Shama Rao & Others)
(ii) AIR, 1962, SC, Page 1334 (Shyamapada Chakrabertty v. Controller of Insurance Govt. of India, Simla)
(iii) 2000, Volume-IV, SCC, Page 245 (Indian Overseas Bank v. I.O.B Staff Canteen Workers' Union)
(iv) 2005, Volume-III SCC, Page 193 (Management of Management Of Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan,)
(v) 2007, Volume-IV, SCC, Page 720.
15. We have considered the rival contentions of the parties. We have also perused the decisions cited by the parties. On perusal of the order impugned we are of the view that the learned Judge was not right in granting liberty to the parties to take their plea before the Labour Court after dismissing the writ petition. The Labour Court is an Executing Court. Once the Tribunal held that the proceeding was bad and the order of dismissal was set aside by the Tribunal the Labour Court was only to execute the said award so that the employee could be reinstated with all back wages. Hence, the plea taken in the writ petition challenging the order of the Tribunal could not be re-agitated by the employer before the Labour Court. Hence, on that score the learned Judge was not correct.
16. On the merits we find on perusal of the reply of the workman quoted (supra) that the facts were admitted by the delinquent. He prayed for mercy. We are also not inclined to accept the plea of the workman. On perusal of the records it would appear that such recording of entries went for a considerable time moreover. Moreover as soon as those irregularities surfaced there was an attempt to make the loss suffered by LIC good by depositing the premiums. These aspects were never considered by the Tribunal. The Tribunal proceeded on procedural irregularity.
17. Let us consider whether “irregularities” pointed out by the Tribunal were irregularities at all or not. The plea of non-furnishing of the addresses was nothing but an attempt to confuse the issue. The order quashing the first order of dismissal by the learned Single Judge by judgment and order dated February 5, 1981 is appearing at pages 34-36 of the Paper Book. In the said case it was contended on behalf of the delinquent that he was prevented from calling the policy holders as his witness even after production of their letters. Those letters were produced by the delinquent himself. Hence, the addresses were obviously known to him.
18. With regard to the policy bags it would appear on perusal of the pleadings that policy bags were produced for inspection at the initial stage. The grievance of the delinquent is that those policy bags contained address of those policy holders. Once the addresses were known to the delinquent such plea, in our view, is not at all tenable.
19. Let us now consider the prejudice, if any, caused due to non-production of the original policy bags for inspection or non-disclosure of addresses of the concerned policy holders.
20. Those policy holders admittedly did not pay any premium during the period when it was recorded by the delinquent as paid. This aspect was admitted by the delinquent in his reply. His defence was that such mistake was caused due to pressure of work. We unable to find out any reason as to what development could there be if those policy holders were called as witness. It is an admitted fact that those policy holders did not pay the premium contemporaneously. It is also an admitted fact that they were credited as such despite non-payment. We do, not know what more is required to be proved. We do not find any prejudice caused to the delinquent by such alleged irregularities. The Tribunal was wrong in approaching the instant problem on this score.
21. Let us now come to the third objection raised by the delinquent and accepted by the Tribunal with regard to the evidence laid by the presenting officer.
22. Employer herein, being a corporate entity was to act through individuals. The Presenting Officer deposed before the Enquiry Officer. The delinquent had an opportunity to cross-examine him. We are unable to find out any law by which the Presenting Officer was precluded from giving any evidence. In the instant case the Presenting Officer was an employee of the appellant. He was representing the appellant before the Enquiry Officer. Hence, he was entitled to examine himself. We do not find anything wrong on that score.
23. In our considered view the Tribunal was wrong in interfering with the order of dismissal. Similarly the learned Single Judge erred in not interfering on that score.
24. The Apex Court decisions in the case of Indian Overseas Bank (supra) and Management of Madaurantakam Co-operative Sugar Mills Ltd. (supra) were cited by Mr. Gupta in support of the contention that the Tribunal being a fact finding body was entitled to reappraise the evidence. The Writ Court however was not entitled to sit on appeal over such fact finding by the Tribunal unless it was shown as perverse or based on no evidence. In the instant case we have already discussed as to how the Tribunal went wrong in appraisal of the evidence alleging procedural infirmity. Such finding in our view was perverse as discussed above. Hence, these two decisions could not in any way help Mr. Gupta to support his contention.
25. The appeal thus succeeds and is allowed. The order of the learned Single Judge is set aside. The writ petition is allowed. The award of the Tribunal is set aside.
26. Since we have quashed the order of the Tribunal we are not dealing with the issue of back wages as the same is irrelevant in view of our foregoing judgment.
27. The appeal is disposed of accordingly without any order as to costs.
28. Urgent xerox certified copy would be given to the parties, if applied for.
Tapas Kumar Giri, J: I agree.
Appeal allowed.
S.K.P