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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 ..... Delhi. Thereafter, one Mr. P.C. Joshi, Regional Manager of the respondent bank at Indore again issued an appointment letter dated 05.09.1983 to the petitioner for joining branch office at Dabra, Madhya Pradesh. The petitioner protested against his posting at Dabra branch and also made representations to the higher authorities for posting him to Delhi branch. Thereafter, the respondent bank issued an appointment letter dated 28.12.1983 to the petitioner for joining as a clerk/typist at Chandni Chowk branch, Delhi. 2.2 Ms. Sunita Jain, who was also working at Chandni Chowk branch, filed a complaint dated 10.07.1985 with the General Manager of the respondent bank complaining about a letter written by the petitioner to her in September/October 1984 containing objectionable language. She also complained that after she returned from her maternity leave, the petitioner again misbehaved with her. Although the petitioner had tendered a written apology on 06.07.1985 for his indecent behaviour, he again misbehaved with her on 09.07.1985. 2.3 Subsequently, the respondent bank issued a charge sheet dated 23.09.1985 to the petitioner alleging gross misconduct for misbehaving and using lewd lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sorry." On 6.7.85, Smt. Jain's husband, Shri Rakesh Kumar Jain and other members of her family namely Shri Suresh Chander Jain, Shri Khem Chander Jain came in the Branch and talked with the Branch Manager in connection with the incidents occurred with Smt. Sunita Jain (At that time, Shri R.K. Bhargava was also in the cabin of the Branch. Manager) All of them asked to the Branch Manager that he will ask sorry in writing instead of orally. On this, on saying by Shri R.K. Bhargava that if any such incident has occurred, it will be right to say sorry, you were called in the cabin, on which, you asked sorry in writing from the relatives of Smt. Jain, in which, you mentioned that:- To, Bhai Rakesh Kumar Ji Sir, "I ask sorry for the indecent talks, I did with your wife Smt. Sunita Jain. I assure you that I will not commit any such mistake in future." Rajinder Singh 6.7.1985. You wrote this apology letter outside the cabin of the Branch Manager and gave to the relatives of Smt. Jain. But after this on 9.7.85, you threatened and tried to frighten Smt. Jain. You said that I am from Scheduled Caste and my name is Rajinder Singh. You cannot do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f being unfair, unjust and violative of principles of natural justice. The Tribunal also set aside the punishment of dismissal awarded to the petitioner by the Disciplinary authority of the respondent bank. 2.9 Thereafter, the petitioner examined himself to disprove the charges of misconduct and Ms. Sunita Jain and Mr Arun Verma were examined on behalf of the respondent bank. By the impugned award, the Tribunal relied on the sole testimony of Ms. Sunita Jain and held that the charges of misconduct, within the meaning of paragraph 19.5(c) and (j) of the Bipartite Settlement dated 19.10.1966, were proved against the petitioner and awarded the punishment of dismissal. Submissions 3. The learned counsel for the petitioner contended that the Tribunal had failed to consider the facts in its totality and had segregated the facts of sexual molestation and considered them in isolation from other facts, which is impermissible in law. The Tribunal failed to consider that the actions of the respondent bank were vindictive, retaliatory and revengeful. Reliance was placed on State of Haryana v. Rajindra Sareen: (1972) 1 SCC 267 and Jai Krishna Mandal & Anr. v. State of Jharkhand: (2010) 14 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank. When the petitioner received his salary, he became aware that charges for subscription of the trade union were deducted from his salary without his consent even though he was not a member of the Trade Union. The petitioner protested against the said deduction and also filed an application to the Labour Court under Section 33C(2) of the Industrial Disputes Act, 1947 to this effect. The respondent bank, thereafter, refunded the amount deducted from his salary. 11. According to the petitioner, a false complaint was made by Ms Sunita Jain in view of the disputes raised by him with regard to deduction of amount for subscription of the trade union. The petitioner also pointed out certain inconsistencies and improvements made by Ms Sunita Jain in her testimony. The petitioner's contentions were considered by the Tribunal and the Tribunal had evaluated the testimony of Ms Sunita Jain as well the evidence led by the petitioner. 12. The Tribunal also considered the petitioner's contention that the. Regional Manager had conspired with Ms Sunita Jain to remove the petitioner from the services of the respondent bank. The petitioner contended that the Regional Manager wanted to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed, will be so serious to lead to an inference of mala fides. But, in certain cases each individual allegation, treated separately, may not lead to an inference of mala fides; but when all the allegations are taken together and found to be established, then the inference to be drawn from those established facts may lead to the conclusion that an order has been passed mala fide, out of personal ill will or malice. The incidents, referred to by the respondent, due to which the Chief Minister is alleged to have acted mala fide, in passing the impugned order, in our opinion, taken individually or collectively, cannot lead to the conclusion that the order has been passed out of malice or ill will. Even accepting that the incidents took place in the manner alleged by him, it is not possible to hold that the Chief Minister has acted with malice when passing the impugned order. The allegations made by the respondent, as well as the denial of those allegations by the Chief Minister and the third appellant are dealt with by us in the later part of the judgment." 14. However, it is relevant to note that the Supreme Court considered all the incidents and held that although the incidents ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e attention of this Court to various inconsistencies/improvements in the testimony of Ms Sunita Jain. Ms Sunita Jain had filed a complaint on 10.07.1985 with the General Manager of the respondent bank. The summary of her complaint is that the petitioner harassed her in September/October 1984. It was alleged that the petitioner had given a letter in writing which used objectionable language; she had returned the letter and requested that he should not have such thoughts in future. Despite the same, a few days later, the petitioner had once again pursued her and insisted to give her a lift on his two wheeler. Ms Sunita Jain rebuffed the petitioner's overtures and declined to accompany the petitioner on his two wheeler. She complained that at the office, he had once again made vulgar comments/suggestions. Ms Sunita Jain stated that this behavior was not reported by her as she was to proceed on maternity leave. She alleged that on resuming her duties after her maternity leave, the petitioner had repeatedly misbehaved with her. And, this led Ms Sunita Jain to approach the General Manager along with other family members. On 06.07.1985, the petitioner's husband had also come to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. I find no infirmity with this approach. 19. The judgments Suresh N. Bhusare (supra), Vimal Suresh Kamble (supra) and Prashant Bharti (supra) relied upon by the petitioner are not applicable to the facts of the present case. First and foremost, the said decisions relate to criminal proceedings for offences under the Indian Penal Code. There is no dispute that in the proceedings before the Labour Court/ Industrial Tribunal, strict rules of evidence are not applicable. It is also well settled that the standard of proof, required in criminal proceedings and those before the Labour Court/Industrial Tribunal, are different. Before the Labour Court/Industrial Tribunal, the standard of proof is not that the misconduct must be proved beyond reasonable doubt but whether on preponderance of probability, it could be concluded that the employee is guilty as charged. 20. Secondly, the aforesaid decisions of the Supreme Court have been rendered in a completely different set of facts and are thus wholly ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision 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. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require or permit the parties to lead additional evidence was not fettered. The relevant extract of the said judgment reads as under:- "8. The appellant has challenged this decision of the High Court before us. We are of the view that the order of the High Court dated 2-12-2002 as clarified on 3-3-2003 does not need any interference. It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in its written statement but, as held by this Court in Karnataka SRTC v. Laxmidevamma [(2001) 5 SCC 433] this did not place a fetter on the powers of the Court/Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the enquiry was non est, the facts of the case warranted that the Labour Court should have given one opportunity to the respondent to establish the charges before passing an award in favour of the workman." 24. Reliance placed by the petitioner on the decision of the Supreme Court in Vikramaditya Pandey (supra) is clearly misplaced. In that case, the workman challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kaplish (supra) and State Bank of India v. R.K. Jain (supra) as relied upon by the counsel for the petitioner are also not applicable in the facts of the present case. 26. In Neeta Kaplish (supra), the Labour Court, after holding that the domestic enquiry was vitiated, called upon the management to adduce fresh evidence; however, the management failed to adduce fresh evidence and as a consequence thereof, the workman also did not adduce fresh evidence. Thereafter, the Labour Court upheld the termination order as the workman failed to adduce any fresh evidence. On appeal, the Supreme Court set aside the termination order and observed that since the management failed to adduce the fresh evidence after the domestic enquiry was declared as vitiated, the management has to suffer the consequences. This is not the case here; the management has led evidence to make good the charges leveled against the petitioner and the Tribunal passed the impugned award after considering the evidence of both the parties. 27. In State Bank of India v. R.K. Jain (supra), the management abandoned the first enquiry without any fault of the workman. In the second enquiry initiated by the management, the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that the finding of the Labour Court was either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court." 30. In Sadhu Ram v. Delhi Transport Corporation: (1983) 4 SCC 156, a three judge bench of the Supreme Court had stated the above principle in the following words:- "3. ... The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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