Rajendra Babu, J. - (1.) A charge-sheet issued to respondent No. 1 reads that at about 11 a.m. on June 23, 1973 Smt. Parul Rani Chowdhury, a customer of the appellant Bank, handed over to respondent No. 1 a sum of Rs. 3,002.40p. along with two draft applications each for Rs. 1,001.20p.; that even though respondent No. 1 received excess amount of Rs. 1,000/- over Rs. 2,002,40p., he neither refunded the same nor asked the customer as to the manner in which the said amount was to be deposited either by depositing the same in the savings bank account or deposit the same in the Sunday (sic) deposits account; that instead he retained the said money with him with intention of misappropriating the same; that thereafter Smt. Parul Rani Chowhury returned at about 1.30 p.m. on the same day and demanded the said amount of Rs. 1,000/- handed over to respondent No. 1 in excess, which he flatly denied; that on a report being made to the Branch Manager by Smt. Parul Rani Chowdhury he inquired about the matter; that when a preliminary search failed to trace the amount and a physical search of all the employees was being conducted, respondent No. 1 threw away the said amount of Rs. 1,000/- on the floor that thereby he retained the amount with him with a criminal intent to misappropriate the same and thus lowered the image of the appellant-Bank and thus acted in a manner highly prejudicial to the interest of the appellant-Bank. Respondent No. 1 replied to the said charge-sheet by stating that on a memorandum being issued to him directly involving him in an alleged misappropriation of the said sum on June 23, 1973 he was compelled to sign a statement which he was not allowed to go through even. Thereafter, he was placed under suspension. He alleged that he is a victim of serious conspiracy specially while after his recent promotion from Messenger to Cashier he was looking forward for a bright future and he denied all the charges levelled against him and he claimed to be innocent.
(2.) A domestic enquiry was held against him and three witnesses were examined. Respondent No. 1 did not adduce any evidence nor he examined himself. On the basis of the evidence recorded in the domestic enquiry by a report made finding him guilty of charges against him, on January 27, 1976 respondent No. 1 was asked to show cause as to why an appropriate punishment should not be imposed upon him and he was heard in the matter. The Regional Manager thereafter communicated to the respondent No. 1 the decision to dismiss him. On dismissal being made an industrial dispute was raised which was referred to the Central Industrial Tribunal (hereinafter referred to as 'the Tribunal). The Presiding Officer held that the domestic enquiry conducted was just, fair and proper. However, on examination of the material on record the Presiding Officer came to the conclusion that the finding of guilt against the first respondent was not just on the evidence on record and, therefore, he set aside the same. This award was challenged by a writ petition which was allowed by a learned single Judge of the High Court and the award given by the Presiding Officer was quashed. On a further appeal the Division Bench of the High Court held that the learned single Judge could not have interfered with the award made by the Tribunal and set aside the same and restored the award made by the Tribunal. Hence this appeal by special leave.
(3.) The Tribunal having held that the domestic enquiry was fair and valid the scope of interference was very limited. This Court in Workmen of Messrs Firestone Tyre and Rubber Company of India (P) Ltd. v. Management, (1973) 3 SCR 587 stated the law as follows:- "(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer if justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision 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 preverse or the management is guilty of victimisation, unfair labour practice or mala fides. (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, has to give an opportunity to the employer and the 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 stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitola Tea Estate v. Workmen, (1971) 1 SCR 742 within the judicial discretion of a Labour Court or Tribunal. The above was the law as laid down by this Court as on 15-12-1971 applicable to all industrial adjudication arising out of orders of dismissal or discharge." ;