Neela Arun Mohile and others vs Vijaya Bank, Mumbai

P.B. Majmudar, J.—By this petition, the petitioners seek a direction to the respondent to give them the benefit of increase of five years in their respective qualifying service for fixation of the Pension in terms of Regulation No. 29 of the Vijaya Bank (Employees) Pension Regulations, 1995, hereinafter referred to as "the Pension Regulations, 1995".

It is not in dispute that the petitioners herein had applied for voluntary retirement under the Voluntary Retirement Scheme framed by the said Bank. The petitioners received monetary benefits under the said scheme and subsequently has challenged the decision of the Bank in not giving them benefit of five years under Regulation 29 of the Pension Regulations, 1995. It is required to be noted that the petitioners have been informed by letter dated 30th December, 2000 (a copy of which is annexed at Exhibit-A to the petition), that the applications submitted for voluntary retirement under the Voluntary Retirement Scheme had been accepted by the competent authority and that the petitioners had been relieved from the services of the Bank at the close of office hours today, subject to Clause 11.7.0 of the Vijaya Bank (Employees) Voluntary Retirement Scheme, 2000. This fact was communicated to the petitioners vide H.O. Circular No. 231/2000 dated 23rd November, 2000. The petitioners were also informed that their applications were considered under the Voluntary Retirement Scheme of 2000, and that they are not eligible for addition of five years/remainder of service whichever was lower for the purpose of determining pension as well as described the proceedings of the enquiry officer on various dates. Relying on the said narration, the learned Counsel would submit that despite opportunity given to the second respondent, on many occasions, the second respondent wilfully failed to appear before the enquiry officer despite the warning in writing, dated 26 November, 1996. Therefore, it cannot be stated that the enquiry was not held in a fair and proper manner.

The learned Counsel for the second respondent would contend that the request was made by the second respondent to engage a learned Counsel to assist him during enquiry. The same was declined and permission was not given to him to engage a third party also. Thus, this second respondent was compelled to participate in the enquiry to cross-examine the witnesses though, he was not familiar with domestic enquiries. The learned Counsel would further submitted that the second respondent was not even informed that he would be set ex parte and evidence would be recorded in his absence. The learned Counsel would further submit that being an illiterate man the second respondent did not know about the consequences of being absent and so, the Labour Court has taken a correct view to hold that sufficient opportunity was not given by the enquiry officer and thus, the enquiry was not fair and proper.

I have considered the rival submissions and also perused the records.

At the outset, I have to state that the learned Counsel for the second respondent has hot disputed the narration of the happenings on various hearings made in the report of the enquiry officer. In the absence of any dispute regarding the same, I have to hold that the narration is correct. In the said narration, the following facts are revealed.

The second respondent on receipt of notice from the enquiry officer appeared before the enquiry officer on 12 October, 1996, and participated in the proceedings. But he filed a petition on that date raising certain objections. Rightly, the enquiry officer had furnished a copy of the same to the management and gave liberty to the management to submit its objections. The enquiry was adjourned on 18 November, 1996. On that date, the list of witnesses and the list of documents were furnished to the second respondent. Copies of the documents were also furnished. The second respondent gave another petition raising objection for the enquiry on that day. Further, he requested for engaging an advocate to assist him for re-enquiry. The management was given time to file objections. Enquiry was adjourned to 24 October, 1996. His request for engaging the advocate was rejected by the enquiry officer rightly. Subsequently, he wanted permission to allow one Narayanaswamy to participate in the enquiry. The same was rejected by the enquiry officer on the ground that he is a third party to the management. The enquiry was therefore, adjourned to 1 November, 1996. On the adjourned date, he appeared and asked time for adjournment. Therefore, it was adjourned to 20 November, 1996. On 20 November, 1996, he participated in the enquiry and management filed objection to the petition filed by the second respondent. Thereafter, enquiry was adjourned to 26 November, 1996. On 26 November, 1996 again the second respondent appeared and submitted another petition again requesting to engage a third party. It was again negatived. On that date, it was informed in writing to the second respondent by the enquiry officer that enquiry would be taken up on 30 November, 1996 and if he fails to participate in the enquiry, the inquiry would be conducted ex parte. On 30 November, 1996, the second respondent appeared but he declined to participate in the enquiry though witnesses on the side of the management, were ready to be examined. According to the enquiry officer, the second respondent declared that he did not worry about the outcome of the enquiry find he walked out. Therefore, he was set ex parte and three witnesses were examined on the side of the management. Based on the same, a report has been submitted.

From the above events, it could be seen that the enquiry officer had given enough opportunity to the second respondent, to participate in the enquiry and to cross-examine the witnesses. Even his request to engage a fellow worker, was also allowed. Even then, he did not participate in the enquiry. On the crucial date namely on 30 November, 1996, he appeared before the enquiry officer but declined to participate in the enquiry and he walked out. All these events would go to show that the enquiry officer conducted the enquiry fairly and properly. The findings of the Labour Court that the enquiry officer could have granted few more adjournments to the second respondent is not tenable. The further finding of the Labour Court that the enquiry officer ought to have allowed the second respondent to engage advocate is also not legally sustainable. On these two findings, the Labour Court has held that the enquiry was not held fair and proper. As I have already stated, these two findings are erroneous. Therefore, I have to hold that the findings of the Labour Court on the preliminary issue is perverse. I further hold that the enquiry was held fair and proper and as a result, the impugned order on the preliminary issue is liable to be set aside and the matter needs to be remitted back to the Labour Court, for passing a fresh award on the basis of the available materials as required under law.

Since I am remitting the case back to the Labour Court, on the ground that the enquiry was held fair and proper, I need not answer the other grounds raised assailing the final award. Final award is liable to be set aside consequent on my findings in respect of the preliminary issue.

In view of all the above, the writ petition is allowed. The impugned order of the Labour Court, dated 9 June, 1998 on the preliminary issue in I.D. No. 58 of 1997 is set aside. Consequently, the award, dated 15 December, 1999 is also set aside. Industrial Disputes No. 58 of 1997 is remitted back to the Labour Court for fresh disposal in accordance with law in terms of the above findings. No costs. Consequently, connected miscellaneous petition is closed.

After the order was pronounced, the learned Counsel for the second respondent submitted that there may be a direction to the Labour Court to dispose of I.D. No. 58 of 1997 within a period of four months.

The learned Counsel for the petitioner would submit that the petitioner has no objection for the same.

In view of the above said position and also in view of the fact that the said industrial dispute is pending from the year 1997, the Labour Court is directed to dispose of I.D. No. 58 of 1997 within a period of four months from the date of receipt of a copy of this order.