ORDER
A.R. Lakshmanan, J.
1. This Writ Appeal is filed against the order of a learned single Judge of this Court dismissing the writ petition filed by the appellant herein 5 with a direction to approach the Labour Court by raising an industrial dispute against the order of dismissal from service.
2. The short facts are as follows :
The appellant/writ petitioner was an employee working as clerk-cum-typist of the Bank in its Coonoor Branch. In respect of certain acts of gross misconduct which he was reported to have committed, a charge-sheet dated July 4, 1984 was issued to him by the disciplinary authority. The charge against the appellant was that he obtained payment of a sum of Rs. 2,728/- by way of reimbursement in respect of journeys under leave fare concession allegedly performed by him partly by bus and partly by taxi, producing in support of his claim a trip sheet in respect of taxi No. TMV 5444 covering the period December 2, 1983 to December 11, 1983, which trip sheet was reported as a fabricated one. In other words, the charge against the appellant was that he received taxi fare from the bank in respect of journeys which he had not actually performed by Taxi on the strength of a false and fabricated trip sheet and that if proved would be an act of gross misconduct in terms of paragraph 521 (4)(f) of the Sastry Award (i.e., doing any act prejudicial to the interests of the bank).
3. The appellant submitted an explanation in answer to the said charge sheet. As the disciplinary authority was not satisfied with the petitioner’s explanation, he ordered a domestic enquiry to be conducted in respect of the said charge. The appellant participated in the enquiry where evidence was recorded and the appellant was afforded a full and fair opportunity to defend. The Enquiry Officer recorded a finding that the appellant was guilty of charges framed against him. The disciplinary authority after going through the report of the enquiry and on proper consideration of the evidence and the facts and circumstances of the case concurred with the finding recorded by the Enquiry Officer that the appellant was guilty of having committed the act of misconduct covered by the charge sheet, proposed to impose the punishment of dismissal from service without notice and issued notice to the appellant as to why the said punishment be not imposed on him. After affording the appellant an opportunity of hearing as regards the punishment of dismissal without notice, the second respondent imposed the said punishment by the order DIS/CON : 786 dated September 16, 1985, the validity of which is challenged by the appellant in this writ petition.
4. The appellant submitted an appeal against the above order to the Appellate Authority who also rejected the appeal by his order DIS/CON : 986 dated November 20, 1985. Aggrieved by the above orders, the appellant has filed the writ petition to call for the records relating to the order of the second respondent made in Letter No. DIS/CON : 768 dated September 16, 1985 as confirmed by the order of the first respondent vide his proceedings in DIS/CON : 987 dated December 14, 1985 and to quash the same and s direct the respondents to reinstate the appellant with all the attendant benefits.
5. The writ petition was resisted by the management by filing a detailed counter affidavit. The writ petition was dismissed by the learned single Judge of this Court and a grieved the said order, the above writ appeal has been filed.
6. We have heard Mr. D. Murugesan, teamed counsel for the appellant and Mr. G. Masilamani, learned Addi. Solicitor General Mr. R. Krishnamachari. Mr. D. Murugesan, learned counsel for the appellant raised the following contentions :
a) the writ petition could have been allowed on the sole round that the order of the termination does not contain any reasons whatsoever and the same is non-speaking.
b) the Appellate Authority did not give any opportunity of personal hearing to the appellant as contemplated in para 521(12) of Sastry Award.
c) The direction given by the learned single Judge to raise an industrial dispute would result in serious prejudice to the writ petitioner/appellant after a period of nearly ten years.
d) The punishment of termination is disproportionate to the charges levelled against the writ petitioner/appellant.
e) the report of the Enquiry Officer is not in conformity with die evidence available on record and consequently ought to have allowed the writ petition. f) the disciplinary authority did not follow the conditions prescribed under paragraph 521 (10A) and paragraph 521 (9) of the Sastry Award.
Mr. D. Murugesan, learned counsel for the appellant at the time of hearing has also invited, our attention to the pleadings and the documents filed before the Enquiry Officer and other connected records and also of the impugned orders in the writ petition and also of the learned single Judge.
7. Mr. G. Masilamani, learned Addl. Solicitor General, arguing in contra contended that this Court exercising writ jurisdiction will not reappreciate and reassess the findings recorded by the Enquiry Officer and or reconsider the correctness of the conclusion arrived at by is both the respondents. According to the learned Addl. Solicitor General, the order of punishment of the 2nd respondent as confirmed by the first respondent in an appeal filed by the appellant has become final and conclusive and is binding on him and that the appellant is bound by law to raise an industrial dispute and in view of the availability of alternative remedy, the Writ petition is liable to be dismissed as not maintainable. The learned Addl. Solicitor General as has also submitted that there are discrepancies in the evidence recorded by the Enquiry Officer or in the appreciation of the evidence tendered as alleged and that the Enquiry Officer recorded the finding only after considering the entire evidence. Likewise, the disciplinary authority considered the evidence and it was only after due appreciation thereof that he concurred with the finding recorded by the Enquiry Officer. Therefore, this Court will not reassess the evidence and reconsider the matter decided by the respondents.
8. While replying to the arguments of Mr. D. Murugesan that the order passed by the appellate authority has not been served on him, Mr. G. Masilamani submitted the following. According to him, the appeal was duly and properly considered by the first respondent as the appellate authority who thereafter confirmed the punishment and rejected the appeal. and that the question of giving opportunity personal hearing to the appellant would arise=W only in case of dismissal from Bank’s service and the employee desired to have such a personar hearing. It is stated that the appellant did not in his appeal or by any subsequent letter, desired to have any personal hearing. Learned Addl. Solicitor General has also denied that the appellant approached the first respondent with a letter dated October 10, 1985 requesting for personal hearing. Further, the appellant did not place any proof before the authorities concerned or even before this Court for sending such a letter dated October 10, 1985 requesting for a personal hearing. In fact he refused to receive the order of the appellate authority rejecting his appeal since the appellate authority has not afforded an opportunity of personal hearing as requested by him. In fact, he had also made an endorsement stating “refused for reasons that personal hearing was not afforded to me as per 15 my request”. At the tine of hearing, learned Addl. Solicitor General invited our attention to the registered letter sent by the management under acknoweldgement due to the appellant under reference RM 11. 12 dated December 4, 1985 enclosing the copy of the final order passed by the appellate authority. The original employee was opened in the presence of both parties and their advocates in the open Court. In the envelope there is an endorsement “Addressee not found in several beat days ic., 6/12, 7/12, 9/12, 10/12, 11/12, 12/12 and on 13/12. Hence it was returned to the sender. “We have also perused the order of the appellate authority sent alongwith the said letter. The appellate authority has considered the case of the appellant on merits and in depth and confirmed the findings of, the disciplinary authority. There is also no merit in the contention of the learned counsel for the appellant that the order of the appellate authority has not been served on him. As already noticed earlier, when he was asked to come and receive the order of the appellate authority at the Coonoor branch, he refused to receive the same, on the ground that he was not afforded an opportunity of personal hearing as requested by him before the appellate authority. It is settled law that a person refused to receive any order, that itself will amount to sufficient service of the said order to him. In the absence of any acceptable proof that the appellant made a request for a personal hearing, the appellant now cannot say that he was not afforded an opportunity for personal hearing which in our opinion has not been substantiated by any material worth noticing. In the absence of any request, we are of the view that the appellate authority is not under any obligation to afford a personal hearing to the appellant in respect of this appeal.
9. Mr. D. Murugesan has not also seriously argued the case on merits. However he pleaded for change in the punishment. According to him, the punishment imposed was not only disproportionate, but also very harsh and excessive taking into consideration of the offence said to have been committed by the appellant. Furthermore, Mr. G. Masialinani, learned Addl. Solicitor General was very serious in replaying to the said argument. According to him, the authorities in imposing the punishment of dismissal, has taken into account the circumstances namely the gravity and serious nature of the misconduct making false monetary claims based on false and fabricated vouchers and documents in a financial institution where atmost integrity on the part of its employee is to be expected. He further submitted that the amount involved though a nominal one, cannot be a 2s ground for altering the punishment already imposed by the authorities concerned. We are unable to accept the said contention of the learned Addi. Solicitor General, while agreeing with the other contentions and submissions of the 30 learned Addl. Solicitor General. We are of the view that the punishment imposed is not only harsh, excessive but also disproportionate to the charges made against the appellant. In fact, the Supreme Court in the case. reported in 35 B. C. Chaturvedi v. Union of India (1996-I-LLJ-1231) held that the disciplinary authority and on appeal the appellate authority are invested the discretion to impose appropriate punishment keeping in view the magnitude orgravity of the misconduct, and that the High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It is further stated that the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/ Tribunal it would appropriately mould the relief, either directing the sciplinary appellate authority to reconsider the penalty imsoposed, or to shorten the litigation , it may irsey, m exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. Thus, strengthened by the above observation of the Supreme Court, we now proceed to consider as to whether the punishment of dismissal imposed by the authorities concerned : is disproportionate as alleged or just and reasonable as contended by the management.
The Charge against the appellant was that he obtained payment of Rs. 2,728/- by way of reimbursement in respect of journeys allegedly but and partly by red by him partly by taxi by producing in support of his claim a trip sheet in respect of taxi No. TMV. 5444 covering a period December 2, 1983 to December 11, 1983 which trip sheet was reported as a fabricated one. It is also not in dispute that the said sum of Rs. 2728/- has also been recovered from the appellant. Though an explanation was made by the appellant that though in fact he performed the journey, his explanation was not accepted by the disciplinary and appellate authorities. Past record of service of the appellant has nothing to indicate either way. The appellant is also aged about 32 when he filed The writ petition in the year 1986. The appellant was appointed in the bank as a clerk-cum-typist on October 12, 1978 and the impugned order of dismissal was passed by the second respondent by his order dated September 16, 1985. The bank also did not place before the Court any other record to show that his service was with any blemish except for the charges in question.
Both the appellant and the bank management had spent about 12 years as on date in fighting the litigation in one forum or the other. The appellant has got another about 13 to 14 years of service, in the bank. The appellant has not played with any customer’s account amount and the only charge was that he claimed reimbursement of some amount alleged to have been spent by him. We are of the view, for the misconduct committed by him, such deterrent punishment of dismissal is not called for. It is also pointed out on behalf of the appellant that in respect of other employees who committed acts of misconduct similar in nature as committed by him, only minor punishment was imposed. But such contention of the appellant was brushed aside by the management simply on the ground that the acts committed by the appellant are not comparable with that of the others. We are of the view that the imposition of such an extreme and harsh punishment would once for all ruin the career of the employee. Therefore, we feel is that the appellant should be made to forego the entire salary for the period from the date of issuing charge memo till today. Such a punishment, in our opinion would meet the ends of justice. The management also should feel happy that for 20 wrongly claiming a sum of Rs. 2,728/- the appellant is made to forego his entire salary for the period mentioned above. The appellant also will not repeat such a mistake since he had been made to forego the salary for the period in question, and at the same time spending for his litigation by borrowing monies from other sources, and also for the maintenance expenses of the family. As rightly pointed out by the learned Addl. Solicitor General, absolute integrity is essential from persons who are working in banking sector. Therefore, the proper punishment in our opinion, would be reinstatement in service with continuity of service but without backwages for the period in question. We make 35 it clear that the punishment imposed by the authorities below has been modified as indicated above on the basis of the facts and circumstances of this case. Therefore, this judgment cannot be quoted as a precedent by others working in the same bank.
10. For all the foregoing reasons, the writ appeal is ordered in the above terms. No costs.