J.B.Pardiwala, J
1 Since the issues raised in all the captioned appeals are the same and the challenge in both the appeals is also to the selfsame judgement and order
passed by the learned Single Judge, those were heard analogously and are being disposed of by this common judgement and order.
2 For the sake of convenience, the Letters Patent Appeal No.410 of 2020 is treated as the lead appeal.
3 This appeal under Clause 15 of the Letters Patent Act is at the instance of the original writ applicant of a writ application and is directed against the
judgement and order passed by a learned Single Judge of this Court dated 17th July 2019 in the Special Civil Application No.6960 of 2012 with the
Special Civil Application No.14601 of 2011, by which the learned Single Judge quashed and set aside the award passed by the Tribunal and remitted
the matter to the Central Government Industrial Tribunal for fresh consideration. The Special Civil Application No.6960 of 2012 has been filed by the
workmen, whereas the Special Civil Application No.14601 of 2011 has been filed by the State Bank of India. The present appeal arises from the
judgement and order passed by the learned Single Judge in the Special Civil Application No.6960 of 2012. The impugned order passed by the learned
Single Judge reads thus:
“1. Judgement and order dated 10.06.2011 rendered in Reference CGITA No. 636 of 2004 renumbered from Reference (ITC) No. 50 of
1995 by Central Government Industrial Tribunal cum Labour Court, Ahmedabad is sought to be assailed by the employer in Special Civil
Application No. 14601 of 2011 and by the workman in Special Civil Application No. 6960 of 2012 to an extent of denial of certain benefits
after modifying the punishment imposed upon the workman under Section 11A of the Industrial Disputes Act, 1947 ( for short
‘I.D.Act’).
2. The facts of the case are in narrow compass: The workman was a Head Cashier in State Bank of Saurashtra, Amreli, Agriculture
Development Branch during the incident in question which took place on 30.10.1986. The workman was found to have temporarily
misappropriated the cash of Rs. 35,000/- upto 12.30 hours of 04.11.1986 from 30.10.1986. The misappropriation was detected during the
verification made by Verifying Officer Mr. K. B. Mehta on 04.11.1986 before 12.30 hours.
3. On the above charge, the workman was suspended on 11.11.1986; however it came to be revoked under the orders from Head Office on
02.03.1987.
4. It would be appropriate to note at this stage certain admitted facts being [1] that the workman was a Head Cashier and was also
discharging his duties as Clerk receiving the cash; [2] there was strong room to be operated with the key in possession of Head Cashier
and joint custodian; [3] within the strong room there was safe, which also could be operated with two keys one with the Head Cashier and
the other with the joint custodian; [4] within the safe, the cash box used by the cash receiving Clerk to be operated only with a single key
with the Head Cashier, would be placed; [5] that 30.10.1986 was last working day before Diwali Holidays and the Bank reopened on
04.11.1986; [6] that Mr. K. B. Mehta Verifying Officer visited the bank for cash verification on 04.11.1986; [7] that cash verification took
place in presence of the workman ; [8] that the delinquent was in charge of the duties as Head Cashier upto 11.11.1986; [9] that the
proprietary concerning Investwell is owned by one Ila Dave who is wife of the delinquent employee; that from that account a sum of Rs.
35000/on 04.11.1986 was withdrawn; [10] that for the purpose of withdrawal, one of the signature overleaf the withdrawing cheque is that
of the delinquent; [11] that Mr.B.M. Vyas was the employee of Investwell and overleaf the withdrawing cheque, he had also signed and
received the cash of Rs.35000/- from the main branch of State Bank of Saurashtra; [12] before withdrawal of Rs. 35000/on 04.11.1986 by
cheque from Investwell, a cash in the sum of Rs. 35000/was deposited in its account on the very date and the balance before such deposit in
the said account was Rs. 1549.40; [13] the Verifying Officer Mr. K. B. Mehta had no enmity with the workman and he had never seen the
delinquent before the incident in question.
5. The disputed facts are [1] that there was no shortfall of cash on verification on 30.10.1986; [2] Mr. J.M. Lakhani the joint custodian
physically counted the cash on 30.10.1986 ; [3] that an attempt was made by delinquent employee urging the Verifying Officer to adjust the
shortfall against the cheque received late I.e beyond the office hours of 30.10.1986; [4] that cash in the sum of Rs. 35000/was deposited
before 12.30 hours by delinquent; [5] that the endorsement as to shortfall of Rs. 35,000/- was put in the C2 register on 04.11.1986; [6] that
the shortfall of the cash in the sum of Rs. 35000/- found by Mr. K.B. Mehta on 04.11.1986 was noted in C2 register on the same day but the
delinquent refused to acknowledge the same; [7] that the delinquent had acknowledged the shortfall of Rs. 35000/- in presence of
Mr.Lakhani by subscribing to the endorsement in C2 register, to that effect on 04.11.1986.
6. The Tribunal rested its finding on the aforementioned admitted facts, the testimony of Mr. K. B. Mehta and Mr. JM Lakhani as also that
of the delinquent and the documentary evidence on record. The case of the employer Bank was that arithmetic entry in the relevant C2
register indicated the cash in the sum of Rs. 1,30,653.22 whereas in fact the amount was short by Rs. 35000/. Thus except the physical
removal of cash from the cash box or retention of the said amount by the responsible person, there would be no documentary evidence
evidencing the outgoing of the cash from the cash box and the only piece of evidence to be principally relied upon in such circumstances
would be the oral statement in evidence.
7. The document namely the relevant extract of C2 register came to be relied upon by both the parties; the workman contended that the said
document was concocted later on I.e. after 07.11.1986 or 08.11.1986. According to him, he obtained the extract of relevant C2 register
produced by him at Exh. 95 wherein no endorsement acknowledging the shortfall as claimed by Mr. K. B. Mehta and Mr. J. M. Lakhani was
ever made on 04.11.1986; on the other hand reliance was placed on Exh. 34 by the employer to contend that such endorsement was made
but the delinquent refused to countersign it.
8. It appears that while examination-in-chief of two management witnesses (supra) was extensively considered, when it came to cross-
examination, it was observed by the Tribunal that “both the management witness were cross- examined at length on behalf of the second
party workman, but nothing could have been gained to discredit their testimony†in the impugned award.
9. In the light of the rival submissions, it needs to be examined whether the relevant materials on record were considered. Three witnesses
were examined during the proceedings, two by the management Mr. K.B. Mehta Verifying officer and Mr. JM Lakhani and one by the
delinquent as also the delinquent himself. In their respective cross-examination crucial facts bearing on the outgoing and incoming of the
cash and other facts relevant connected there with were revealed by the two departmental witnesses. The Tribunal has rejected the facts in
the cross-examination of the two witnesses only in one line quoted above. In absence of considering the relevant facts touching the base of
controversy, it cannot be said that relevant material was considered for reaching the conclusion as above by the Tribunal. The impugned
judgement and award therefore cannot be sustained. It is required to be quashed and set aside and Reference CGITA No. 636 of 2004
renumbered from Reference (ITC) No. 50 of 1995 is required to be restored on the file of the Tribunal for re-appreciation of the evidence
including the cross-examination of the witnesses and for deciding the matter afresh. Accordingly impugned judgement and award is
quashed and set aside and the matter shall stand restored to the file of the Central Government Industrial Tribunal for its reconsideration as
above. It is clarified that no fresh evidence would be recorded.
10. Needless to say that the Tribunal will decide the case on merits without being influenced by any of the observations made by this Court.
In above terms petitions are disposed of.
11. Endevour shall be made by the Tribunal to decide the matter within four months from the date of receipt of writ of this court.â€
4 Mr. D.G. Shukla, the learned counsel assisted by Mr. Vaibhav Vyas, the learned counsel appearing for the appellant herein and Mr. Rituraj Meena,
the learned counsel appearing for the State Bank of India jointly submitted that the learned Single Judge committed a serious error in remitting the
matter to the Tribunal. Both the learned counsel would submit that there is sufficient material on record on the basis of which the learned Single Judge
could have decided the matter on merits one way or the other. It is submitted that there was no need to remit the matter to the Tribunal for fresh
consideration. In such circumstances, both the learned counsel humbly urged that the impugned judgement and order passed by the learned Single
Judge be quashed and set aside and the matter may be sent back to the learned Single Judge for being decided on its own merits on the basis of the
materials on record.
5 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our
consideration is whether the learned Single Judge committed any error in remitting the matter to the Tribunal.
6 We take notice of the fact that the workman was serving as a Cashier-cum-Clerk with the Bank. After putting in 17 years of service with the Bank,
he came to be suspended from service vide the suspension order dated 11th November 1986 for the alleged misconduct.
7 The suspension order, later, came to be revoked by the Bank vide order dated 2nd April 1987.
8 It seems that thereafter, a departmental inquiry was conducted against the workman and he was ordered to be discharged from service of the Bank
vide the dismissal order dated 16th August 1991.
9 The workman being dissatisfied with the dismissal order dated 16th August 1991 preferred an appeal with the appellate authority of the Bank.
10 It appears that thereafter, the workman raised an industrial dispute before the competent authority. After the failure of conciliation, the dispute was
referred to the Industrial Tribunal, Rajkot, which was numbered as the Reference ITC No.50 of 1995.
11 Thereafter, upon constitution of the Central Government Industrial Tribunal (CGIT), the matter was transferred to Ahmedabad in the year 2004
and the said Reference was renumbered as the Reference CGITA No.636 of 2004.
12 In the Reference, the Tribunal vide its order dated 30th May 2006 held that the departmental inquiry conducted against the workman was illegal
and the findings recorded by the Inquiry Officer was perverse.
13 The Bank preferred an application for review of the order dated 30th May 2006 passed by the Tribunal. The review application came to be
rejected vide order dated 13th September 2007.
14 The Bank being dissatisfied with the aforesaid two orders passed by the Tribunal came to this Court by filing the Special Civil Application No.510
of 2008. This Court partly allowed the petition vide order dated 4th March 2008 and remitted the matter to the Tribunal for hearing.
15 The Tribunal decided the matter a fresh and vide order dated 12th January 2009 held that the inquiry was legal.
16 The workman being dissatisfied with the order of the Tribunal dated 12th January 2009 came before this Court by filing the Special Civil
Application No.8324 of 2009, which came to be allowed by this Court vide order dated 6th October 2009, whereby the impugned order of the Tribunal
dated 12th January 2009 was quashed and set aside and the matter was remitted to the Tribunal a fresh decision.
17 The Tribunal, thereafter, passed an order dated 11th March 2010 holding that the inquiry conducted against the workman was illegal and the finding
of the Inquiry Officer could be termed as perverse.
18 The Bank once again came before this Court by filing the Special Civil Application No.4428 of 2010. Pending the said petition, this Court vide order
dated 3rd August 2010 directed the Tribunal to decide the Reference on merits.
19 After leading additional evidence, the Reference came to be decided on merits by the Tribunal vide the judgement and award dated 10th June 2011,
whereby the Tribunal modified the punishment of discharge to stoppage of two increments and the Bank was ordered to reinstate the workman in
service with 50% backwages and continuity of service.
20 Against the above referred award passed by the Tribunal, the workman preferred a writ petition before this High Court and the Bank also came
before this High Court by filing the Special Civil Application No.14601 of 2011.
21 From the aforesaid list of dates and events, it is evident that this litigation is pending since 1995 i.e. the year the dispute was referred to the
Industrial Tribunal, Rajkot. Since 1995, on various occasions, the matters have been remitted by this Court on one ground or the other. Almost 25
years have elapsed, but, unfortunately, the litigation has not come to an end. It is hightime that this litigation is given a quietus. In such circumstances,
we are of the view that the learned Single Judge ought not to have remitted the matter once again to the Tribunal. The last remand vide the impugned
judgement and order is perhaps the 5th remand.
22 The Supreme Court in the case of Ashwinkumar K. Patel vs. Upendra J. Patel reported in (1999) 3 SCC 16,1 at page 161, made the following
observations in para 8:
“In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it
considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause
prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way
or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the
order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and
decided about the prima-facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an
agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the
view that the remand by the High Court was not necessary.â€
23 The Supreme Court in the case of P. Purushottam Reddy vs. Pratap Steels reported in (2002) 2 SCC 686 ,at page 694, made the following
observations in para 10:
“The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of
Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand
by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a
preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the
appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the
opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25
is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the
evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court.
However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent
jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre- eminently necessary ex debito justitiae,
though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the
event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be
produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and
send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing
an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in
appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand
under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of
the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because as held in
Mahendra v. Sushila (AIR 1965 SC 365 at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the
absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand de hors the
Rules 23 and 23A. To wit the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the
manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same
and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be
circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order
of remand gives the litigation an undeserved lease of life and, therefore must be avoided.â€
24 The Supreme Court in the case of Indian Bank vs. K. S. Govindan Nair reported in (2004) 13 SCC 697, at page 697, made the following
observations in para 4:
“The High Court considered the evidence but did not give its finding thereon. On the ground that the evidence on record had not been
properly considered by the trial court, the matter was remanded back to the trial court as we have already stated. We are of the view that
once the materials was on record, it was for the Division Bench to have decided the matter on the basis of the material available in
whichever way the Division Bench thought fit after an appreciation of such evidence. There was no question of remand. The decision of the
High Court is accordingly set aside. The appeal is allowed and the matter is remanded back to the Division bench of the High Court for
disposing of the appeal on merits. The High Court is requested to conclude the hearing, if possible, within six months.â€
25 The principles of law explained in the above referred decisions can be made applicable in the present proceedings. We are at one with both the
learned counsel appearing for the respective parties that ordinarily, the High Court should not remand a case to the Lower Court / authority merely
because it considers that the reasoning of the Court / authority in some respects is lacking or was wrong. Such remand orders lead to unnecessary
delays and cause prejudice to the parties to the case. When the material is available before the Court, it should decide the matter one way or the
other.
26 It appears on plain reading of the impugned order that the learned Single Judge posed a question as is evident from para 9, which reads “in the
light of the rival submissions, it needs to be examined whether the relevant materials on record were consideredâ€. The learned Single further
observed that “the Tribunal has rejected the facts in the cross- examination of the two witnesses only in one line quoted aboveâ€. We are of the
view that if the Tribunal fails to take into consideration the relevant materials, the very same materials could have been considered by the learned
Single Judge instead of remitting the matter to the Tribunal.
27 In view of the aforesaid discussion, we have reached to the conclusion that we should quash and set aside the order passed by the learned Single
Judge and send the matter once again to the learned Single Judge for being considered a fresh on its own merit on the basis of the materials on record.
28 In the result, all the appeals partly succeed and are hereby allowed. The impugned judgement and order passed by the learned Single Judge is
hereby quashed and set aside. The Special Civil Application No.6960 of 2012 and the Special Civil Application No.14601 of 2011 is sent back to the
learned Single Judge for being heard a fresh on their own merits.
29 In view of final disposal of the main appeals, the connected civil applications also stand disposed of.
