State Bank of India v. Francis Forgiamorais and The Central Government Industrial Tribunal Cum Labour Court, Ernakulam

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE23[RD]DAYOFFEBRUARY2023/4THPHALGUNA,1944 OP(LC)NO.290OF2013 ``` ``` AGAINSTTHEORDER/JUDGMENTINIDNO.31/2009OF LABOURCOURT,ERNAKULAM ``` ``` PETITIONER: ``` ``` STATEBANKOFINDIA, LOCALHEADOFFICE,SSKOVILROAD, THAMPANOOR,TRIVANDRUM695001, REPRESENTEDBYITSASSISTANTGENERALMANAGER(HR). BYADVS. SRI.P.V.SURENDRANATH SRI.B.S.SYAMANTHAK PRATAPABRAHAMVARGHESE SRI.P.RAMAKRISHNAN,SC,STATEBANKOF TRAVANCORE(SC-2005) ``` ``` RESPONDENT: ``` ``` 1SRI.FRANCISFORGIAMORAIS TCNO.71/252,VARUVILAKAMPURAYIDAM, VALIATHURA,TRIVANDRUMPIN695001. 2THECENTRALGOVERNMENTINDUSTRIALTRIBUNAL CUMLABOURCOURT ERNAKULAM682031. BYADVS. SRI.K.S.HARIDAS SRI.P.PARAMESWARANNAIR,ASGOFINDIA SMT.MERCIAMMAMATHEW SRI.V.RENJITHKUMAR SRI.THOMASABRAHAM SMTDEEPAVGP ``` O.P.(LC) No. 290 of 2013 2 ``` THISOP(LABOURCOURT)HAVINGCOMEUPFORADMISSIONON 23.02.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` O.P.(LC) No. 290 of 2013 3 ## **JUDGMENT** The petitioner herein is the management in ID No. 31/2009 on the file of the Central Government Industrial Tribunal Cum Labour Court, Ernakulam. This original petition is filed challenging Ext.P12 preliminary order dated 24/08/2012 issued by the 2nd respondent. 2. The records made available before this Court would reveal that a reference was made under Section 10 of the Industrial Disputes Act, 1947, relating to a dispute raised by the workman challenging the justifiability of the imposition of penalty of discharging him from service. 3. The order impugned would reveal that disciplinary proceedings were initiated against the petitioner levelling various charges, and he was placed under suspension. To the show cause notice, an explanation was submitted, and as it was found unacceptable, a departmental enquiry was ordered on 05.03.1999. It appears that the 1st respondent, as well as his representative failed to appear before the Enquiry Officer and after setting them ex-parte, the enquiry was proceeded with. A report was submitted O.P.(LC) No. 290 of 2013 4 before the disciplinary authority finding that the charges against the workman stands proved. The disciplinary authority, however, after examining the records, was of the view that the principles of natural justice has been violated, and de novo enquiry was ordered with a view to granting adequate opportunity to the workman to defend his case. 4. The workman appeared before the enquiry officer, and a preliminary objection was raised that the disciplinary authority was not invested with any plenary powers to order a de novo enquiry and that they could only accept or reject the enquiry report. According to the workman, he was waiting for orders to be passed on the objection raised by him, and he did not participate in the enquiry that was being conducted. The workman was set ex-parte yet again, and a report was submitted stating that the charges have been proved. This was the subject matter of challenge before the Labour Court. 5. The Labour Court permitted parties to file their response and examined the Enquiry Officer as MW1 and the disciplinary authority as MW2. The records were marked as Exts.M1 to M6 series. The Labour Court took note that the challenge as to the validity of the enquiry was raised mainly on O.P.(LC) No. 290 of 2013 5 the justifiability of the order to conduct a de novo enquiry by the disciplinary authority without accepting or setting aside the findings of the enquiry officer. After considering the materials and the precedents cited before, the said authority took the view that the disciplinary authority, on receipt of the enquiry report, is either to accept the findings of the enquiry officer or to alter or modify the same after considering the evidence. It is noticed that it was carrying out the above exercise that de novo enquiry was ordered. The Tribunal also observed, based on precedents cited by the parties, that fresh enquiry can be ordered by the disciplinary authority only when there is investiture of powers on him by any Statute, Rules, Regulations, award or settlement. Holding so, it was found that the disciplinary authority has no power to order de novo enquiry and proceeded to hold that the enquiry is invalid. 6. Sri. P. Ramakrishnan, the learned counsel appearing for the petitioner, submitted that the order issued by the 2nd respondent could not be sustained under the law. According to the learned counsel, a prohibition of fresh enquiry is only in cases where a delinquent employee is absolved of the charges levelled against him in the first enquiry. If, on the facts, the materials suggested that the enquiry was bad for violation of the principles of O.P.(LC) No. 290 of 2013 6 natural justice or a failure to grant an opportunity to the workman to establish his innocence, the disciplinary authority is well vested with the powers to order fresh enquiry. The learned counsel would rely on the judgment of the Apex Court in **Union of India and Others v. M.B. Patnaik and others** [1981 (2) SCC 159], and it is argued that fresh adjudicatory proceedings may be justified under the law when an order is struck down as invalid being in violation of the principles of natural justice. 7. Countering the submissions of the learned counsel appearing for the petitioner, the learned counsel appearing for the workman would refer to the law laid down by this Court in **Chelamattom Sree Krishna Swami Devaswom Trust v. State of Kerala** [2022 (4) KLT 90], and it is argued that interference in the exercise of discretionary powers under Article 226 of the Constitution of India is not warranted when interlocutory orders are challenged before this Court. 8. In response, it is submitted by Sri. Ramakrishnan that a Division Bench of this Court in **St.Thomas Mission Hospital v. State of Kerala and another** [2007 (2)KLT 415] had occasion to hold that if the finding of the Labour Court is found to be perverse, interference can be made under Article 226 of the Constitution of India. O.P.(LC) No. 290 of 2013 7 9. I have considered the submissions. In the case on hand, the Labour Court relying on the law laid down in **Bishnu Prasad Mohidar and Gopinath Mohanda v. Chief General Manager, SBI** [1993) 1 LLJ 1081] and **Awadesh Rai v. Regional Manager, UPSRTC and Another** [1993 (II) LLJ 460] had held that the disciplinary authority would have no power to order a fresh enquiry unless and until the disciplinary authority is empowered to do so as per the provisions of any statute, Rules, Award or any settlement. Even before this Court, there is no case for the petitioner that the disciplinary authority is conferred with any such power. 10. In **Chelamattom,** a Division Bench of this Court lamented that writ petitions continued to be entertained by this Court, leading to avoidable procrastination of the main proceedings before the Labour Court/Industrial Tribunals. It was observed that parties who challenge the preliminary orders ought to be relegated to the Labour Court for culmination of the proceedings before that court and with liberty to challenge the preliminary order, if required, along with the final award. Of course, in **St.Thomas Mission Hospital** (supra), an earlier Division Bench had occasion to observe that if the findings of the Labour Court is perverse, this Court will be justified in interfering with the said order. In the said case, this Court, after considering O.P.(LC) No. 290 of 2013 8 the materials on record, had come to the conclusion that on various grounds, the order passed by the Labour Court was perverse, being against the settled legal position and on various other grounds. The same is not the position here. I am of the considered opinion that the petitioner has not been able to show that the order passed by the Labour Court suffers from a patent perversity or has resulted in a severe and evident failure of justice. In view of the discussion above, I am not inclined to interfere with the preliminary order passed by the Labour Court, which is impugned in this writ petition. Reserving the right of the petitioner to challenge the preliminary order along with the final order as laid down in **Chelamattom** (supra), this petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** ``` APA ``` O.P.(LC) No. 290 of 2013 9 ## **APPENDIX OF OP(LEARNED COUNSEL) NO. 290 OF 2013** ## **PETITIONER’S EXHIBITS** - EXHIBIT P1 TRUE COPY OF THE PUNISHMENT ORDER DATED 16.9.2002 PASSED BY THE DISCIPLINARY AUTHORITY - EXHIBIT P2 A TRUE COPY OF THE CHARGE SHEET ISSUED AGAINST THE 1ST RESPONDENT DATED 12.11.1998 - EXHIBIT P3 A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE 1ST RESPONDENT - EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION DATED 5.3.1999 - EXHIBIT P5 TRUE COPY OF THE ENQUIRY PROCEEDINGS OF THE ENQUIRY OFFICER SRI.JACOB VARGHESE - EXHIBIT P6 A TRUE COPY OF THE REPORT DATED 20.4.2000 BEFORE THE DISCIPLINARY AUTHORITY - EXHIBIT P7 TRUE COPY OF THE ORDER DATED 17.8.2001 ISSUED BY THE DISCIPLINARY AUTHORITY ORDERING FRESH ENQUIRY AND APPOINTING AN ENQUIRY OFFICER DATED 17.8.2001 - EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION DATED 17.8.2001 - EXHIBIT P9 TRUE COPY OF THE REPORT OF THE ENQUIRY OFFICER DATED 18.3.2002 - EXHIBIT P10 TRUE COPY OF THE CLAIM STATEMENT FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT - EXHIBIT P11 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER MANAGEMENT IN ID NO.31/2009 BEFORE THE 2ND RESPONDENT - EXHIBIT P12 A TRUE COPY OF THE PRELIMINARY ORDER DATED 24.8.2012 PASSED BY THE 2ND RESPONDENT