S.S. Sudhalkar, J.@mdashBy this writ petition, the employer is challenging the award of the Labour Court dated 26.7.2000, copy Annexure P/7, vide which respondent No. 2 was ordered to be reinstated in service with full back wages.
2. The respondent was working as Secretary of the petitioner-Bank. The petitioner found Rs. 66601/- to be recoverable from the respondent. The contention of the petitioner is that the amount was embezzled by the respondent. Therefore, a letter annexure P/l was issued against the respondent. The letter is dated 29.9.1993, which the petitioner wants to be treated as a charge sheet. The Labour Court held that the said letter could not be treated as a charge sheet. It will be appropriate, therefore, to quote the text of the letter, annexure P/l, which is as under.
"subject: Regarding the embezzlement committed by Shri Tiwari Lal; As the Secretary of Loan and Service Society Likhi Ltd. has given in writing that you have committed an embezzlement of Rs. 66,681/- during your service tenure, the details of which are given as under-
Cash Balance 1991-92 : Rs. 190.00
Bogus L.P.O. Kind : Rs. 1818.00
Cash Balance : Rs. 10278.00
Embezzlement of Stock : Rs. 1646.00
of Medicine
From Fertilizer : Rs. 52759.00
------------
Rs. 66681.00
-----------
Thus, you are ordered to deposit the above mentioned amount within 7 days of the receipt of this letter, otherwise, you will yourself be responsible for strict departmental proceedings initiated by the higher authorities."
3. The Labour Court has held that the perusal of letter showed that it was written by the Branch Manager of the concerned bank to the respondent regarding deposit of the amount and it cannot be said that the document was a charge sheet. The Labour Court further held that no list of witnesses was relied upon by the petitioner in the enquiry. Therefore, there was nothing on record to show that the copies of documents, relied upon by the petitioner in the enquiry, were issued to the respondent.
4. After reading the letter, annexure P/l, I agree with the Labour Court that it cannot be treated as a charge sheet. What was required to be done by the letter was that the respondent should have deposited the amount otherwise, the departmental proceedings were to be initiated against the respondent. The departmental proceedings start with the charge sheet and when the departmental proceedings were still to be initiated when the letter, annexure P/l was issued, the letter annexure P/l cannot be said to be a charge sheet. Moreover, it does not mention as to what punishment was proposed against the respondent and what was the evidence to be relied upon (which were the witnesses and documents, that were to be relied upon).
5. Moreover, Ihe Labour Court has observed that the reading of the documents, produced in the case showed that during the course of alleged enquiry, the Enquiry officer has not recorded the statement of any witnesses. None of the documents were admitted by the respondent. It is further held that in order to prove his signatures on the documents, the petitioner could have examined any Hand Writing expert or a finger print expert during the enquiry proceedings. It has also noted that during the course of trial, the respondent had denied his signatures on the documents, Ex. M-5 to M-7 which are the copies of the enquiry proceedings and petitioner was required to get the signatures of the respondent compared by the hand writing expert and finger print expert, during the course of trial but this was not done.
6. Of course, the application annexure P/8 for recalling the record and the respondent for cross-examination was rejected by Labour Court on 7.6.2000, it is not shown that the petitioner was not allowed to get the signatures of the respondent verified from the hand writing expert. Therefore, considering all these aspects, I do not find any reason to disagree with the Labour Court in holding that no charge sheet was issued to the respondent and no enquiry was conducted against him and in the so called enquiry, the evidence fed against OK respondent was not sufficient to hold that he was guilty of embezzlement.
7. The next argument of the learned counsel for the petitioner is that the respondent had filed an appeal as provided under the Cooperative Societies act against the petitioner for challenging the termination and he had not succeeded in the same and therefore, proceedings in the Labour Court were barred by the principle of res judicata.
8. Learned counsel for the petitioner has relied on the Division Bench judgment of this Court in the case of Punjab Slate Cooperative Bank Limited, Chandigarh and Anr. v. Presiding Officer, Labour Court, U.T. Chandigarh 1992(2) SCT 442. It has been held in that case that when the workman chose to file a writ petition and failed on merits, she was debarred from approaching the Labour Court again on the same cause of action.
9. Learned counsel for the petitioner has cited the case of Balwinder Singh v. The Nawanshahr Central Coop. Bank Ltd., Nawanshahar 1995(3) SCT 272. In that case, the petitioner had approached the Civil Court for the reliefs, which he sought in the writ petition but had failed and therefore, it was held that he had no right to invoke the writ jurisdiction for the same relief again. This judgment will not be applicable to the facts of the present case. The civil suit decides the right of the parties, and in many cases, rights inter-se are decided. When rights are decided, the principle of res-judicata come in and the same dispute, therefore, cannot be agitated in the writ petition which is an extra ordinary and efficacious remedy. For getting the reliefs which, in some cases, can be otherwise also obtained from the Civil court and when the Civil court decides the rights or the decision of the Civil court becomes final, no writ can lie. Here, in this case, the contention of the petitioner is that because the respondent had availed of his remedy of appeal under the Cooperative Societies act, the writ petition is not maintainable. The principle laid down in the case of Balwinder Singh (supra) cannot, therefore, be said to be applicable to the facts of this case.
10. Learned counsel for the respondent has cited the case of
11. The next argument advanced by the learned counsel for the petitioner is that when the Labour Court held that enquiry was not held against the respondent in accordance with law, the Labour Court should have given a chance to the petitioner to lead evidence before it to prove the guilt of the respondent. He has referred to the case of
12. Learned counsel for the respondent argued that in the present case, the petitioner never sought any opportunity for leading evidence and it did not make any request to the Labour Court for the same.
13. Learned counsel for the respondent produced a copy of the written statement given by the petitioner before the Labour Court during the arguments of this case. It is not contended in the written statement filed before the Labour Court by the petitioner that the petitioner be given opportunity for leading evidence. Therefore, the judgment in the case of Netta Kaplish (supra) will not be applicable to the facts of this case.
14. Moreover, counsel for the respondent has cited the case of Karnataka State Road Transport Corporation v. Lakshmidevamma 2001(2) SCT 1041. It is a judgment of five Judges bench of the Supreme Court. Their lordships in the said judgment, have considered the judgment of the Supreme Court in the case of Shambhu Nath Goyal v. Bank of Baroda 1984(1) SCC 544, in which it has been held as under.
"The rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either u/s 10 or Section 33 of the Industrial Disputes act questioning the legality of the order terminating the service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action taken by it."
15. Hon''ble Santosh Hegde,J. observed in his judgment as under:-
" Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this court in Shambhu Nath Goyal''a case need not be varied being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic inquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence they can keep their rebuttal or other''evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambhu Nath Goyal''s case is just and fair."
16. Hon''ble Shivaraj v. Patil, J. observed in his judgment as under:-
"It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before Labour Court/Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts/Tribunals have power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the court/Tribunal in the written statement itself to lead additional evidence to support Us action in the alternative and without prejudice to its rights and contentions. But this should not be understood as fetters on the powers of the court Tribunal/requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on fact and circumstances of the case, it is deemed just and necessary in the interests of justice."
17. Though Hon''ble Y.K. Sabharwal, J. has dissented in his judgment, the majority view upholds the decision laid down in Shambhu Nath Goyal''s case (supra) and the observations by their Lordships go to show that it is for the employer, at any stage during the proceedings before the Labour Court, to make a request for leading evidence. Obviously, this is not done in the present case. Therefore, no question of finding fault with the Labour Court in not giving opportunity to the petitioner can arise, (the Petitioner had not asked for any evidence to be led except for an application for recalling the record and respondent for cross-examination).
18. In view of the above reasons, I do not find any reason to interfere with the award of the Labour Court,
19. This writ petition is, therefore, dismissed.
