IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.23584, 32583 and 32584 of 2007 and M.P.NOS.1,1 AND 1 OF 2007 The Management, S.267, Attur Pudupet, Primary Agricultural Cooperative Bank Ltd., rep. By Special Officer, Pudupet, Attur Taluk, Salem District. .. Petitioner in all petitions Vs. 1.The Presiding Officer, Labour Court, Salem. .. 1st respondent in
all petitions
2.M.Sugumar .. 2nd Respondent in
W.P.No.23584 of 2007
V.M.Sugumaran .. 2nd respondent in
W.P.No.32583 of 2007
T.Sakthivel .. 2nd respondent in
W.P.No.32584 of 2007
These writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records in I.D.Nos.671, 459 and 501 of 2000, dated 09.12.2005, 20.12.2006 and 15.12.2006 respectively on the file of the first respondent herein and to quash the same.
For Petitioners : Mr.P.S.Sivashanmugasundaram
For Respondents : Mr.Nazarulla
for Mr.K.V.Shanmuganathan for R2
– – – –
COMMON ORDER
In all three writ petitions, the petitioner is the management of Attur Pudupet Primary Agricultural Cooperative Bank represented by its Special Officer. The first writ petition was filed to challenge the Award passed by the first respondent labour court in I.D.No.671 of 2000, dated 09.12.2005. By the impugned Award, the labour court set aside the punishment of dismissal, dated 3.12.1999 made against the second respondent M.Sukumar, employed as a Salesman and directed his reinstatement with backwages, continuity of service and other attendant benefits. The writ petition was admitted on 12.7.2007. Pending the writ petition, this court granted an interim stay. The workman had not taken any steps to vacate the interim order.
2.Thereafter, the petitioner management filed W.P.No.32583 of 2007 challenging the Award passed by the first respondent labour court in I.D.No.459 of 2000, dated 20.12.2006. By the aforesaid Award, the labour court set aside the termination order passed against the second respondent V.M.Sukumaran employed as a Cashier and directed his reinstatement with backwages and continuity of service.
3.With the third writ petition, the management also challenged the Award of the first respondent labour court in I.D.No.501 of 2000, dated 15.12.2006, wherein the labour court set aside the dismissal order passed against the second respondent workman therein i.e. T.Sakthivel, who was employed as a Salesman. Both these writ petitions were admitted on 09.10.2007. Pending the writ petitions, an interim stay was granted in both writ petitions. In those cases also, the workmen have not come out with any plea for vacating the interim orders. Since all these writ petitions related to the same society and the employees of the said society, they were grouped together and a common order is passed.
4.Heard the arguments of Mr.P.S.Sivashanmugasundaram, learned counsel for the petitioner management, Mr.Nazarullah, learned counsel appearing for Mr.K.V.Shanmuganathan for second respondents.
5.In the first writ petition before the labour court, the workman M.Sukumar examined himself as W.W.1 and one P.Jeyaraman was examined as M.W.1. On behalf of the petitioner society, 13 documents were filed and they were marked as Exs.M.1 to M.13. Before the labour court, the enquiry report made under Section 81 of the Tamil Nadu Cooperative Societies Act was filed as Ex.M.5 and statement given by one Sekar was marked as Ex.M.9. The management issued a charge memo on 24.7.1999. The charge memo was based upon the findings given in the enquiry report submitted under Section 81. The workman gave his explanation on 11.8.1999. He was suspended on 27.11.1999 and was dismissed from service on 3.12.1999.
6.In the claim statement made before the labour court, the workman contended that no enquiry was conducted departmentally. The enquiry report was also not furnished to him and there was no justifiable reason for dispensing with the enquiry. In the counter statement, it was contended that a criminal case was registered against the workman and that all records were taken away by the CCIW Police. Hence there was practical difficulty in conducting enquiry. However, in paragraph 10, it was averred as follows:
“10.Hence, the respondent vide their orders dated 3.12.99 has dismissed the petitioner, for the charges enumerated in the charge sheet, with a liberty to prove the misconducts before the court. In the event of the petitioner raising any industrial dispute.”
7.Even in the written argument by the society in paragraph 4, it was stated as follows:
“4.Ex R1 is a charge sheet and Ex R2 is the explanation. The dismissal order issued to the petitioner is Ex R4. Since no enquiry was conducted he was dismissed with the liberty to prove the misconduct before the court. Hence the respondent has let in evidence and has proved the charges before the court.”
8.Before the labour court, the management of the society merely filed the report under Section 81. That report was not proved through documents summoned from the police. Therefore, the charges as levelled in the charge memo were not proved through legal evidence. It was also found that the President of the society had no power to pass the order of dismissal. It was only the Sub Committee which can pass such an order. The labour court found that the petitioner society having failed to prove the charges levelled, the worker was eligible for the relief claimed by him. In the enquiry report filed before the labour court, the officer had only recommended criminal prosecution of the workmen M/s.Sakthivel, M.Sukumar and V.M.Sukumaran.
9.Similarly, in W.P.No.32583 of 2007, the workman V.M.Sukumaran, was examined himself as W.W.1. On the side of the management, one P.Jeyaraman was examined as M.W.1. On the side of the management, 117 documents were filed and they were marked as Exs.M.1 to M.117. The labour court in that case found several charges against the workman were proved. In paragraph 10, it had recorded as follows:
VERNACULAR (TAMIL) PORTION DELETED
10.In paragraph 17, it was recorded as follows:
VERNACULAR (TAMIL) PORTION DELETED
11.After holding those receipts were bogus which was admitted by both sides, the labour court strangely recorded a finding in paragraph 19, which is as follows:
VERNACULAR (TAMIL) PORTION DELETED
12.In that dispute, the workman was a Cashier. When an employee of the bank had prepared bogus receipts, it was unnecessary to further prove that the amounts were misappropriated. The very fact that the employee of the bank had perverted the banking practice and had fabricated documents itself will show that he cannot continue in the employment even though there may not be evidence for the actual misappropriation of amounts committed by the said workman. Therefore, the findings rendered by the labour court in this regard in W.P.No.32583 of 2007 cannot be supported.
13.In W.P.No.32584 of 2007, before the labour court, Sakthivel was examined as W.W.1. On the side of the society, the same Jeyaraman was examined as M.W.1. While the workman filed Ex.W.1, his dismissal order, on the side of the petitioner management, 58 documents were filed and marked as Exs.M.1 to M.58. In that case, the labour court noted that though 58 documents were filed, with those documents itself, the charges cannot be proved and that was also admitted by M.W.1. The labour court noted that the enquiry report was not filed before the labour court. This statement of the labour court may not be correct because documents which are produced are based upon the domestic enquiry conducted against the workman and there was departmental enquiry report given by the enquiry officer. Thereafter, after show cause notice, he was terminated from service. Apart from that, in paragraph 12 of the counter statement, dated 7.12.2000, the management had reserved liberty to lead evidence. The labour court ought to have framed preliminary issue with respect to the domestic enquiry and in case the enquiry was not fair and proper, it should have allowed the workman to lead fresh evidence. In the present case, in all the three writ petitions, the labour court had not framed preliminary issues with respect to the validity of the enquiry. In the first writ petition, no enquiry at all was conducted.
14.In the third writ petition, there was an enquiry, which was not considered by the labour court. The procedure adopted by the labour court was wholly erroneous. The labour court ought not to have made the workman to get into the witness box first. It should have allowed the management to mark their documents through witnesses. The labour court also did not consider the effect of the available documents since according to the management most of the documents were taken away by the CCIW Police. Since the management itself has sought permission to lead fresh evidence, the labour court should have granted an opportunity to the management to lead fresh evidence.
15.In the first writ petition, the petitioner themselves have admitted that there is no enquiry and in the third writ petition, the labour court found that the enquiry was not valid. Therefore, in the light of the above, the Awards passed by the first respondent labour court in I.D.No.671 of 2000, dated 09.12.2005 and I.D.No.501 of 2000, dated 15.12.2006 will stand set aside and both industrial disputes are remanded for fresh disposal. The management must be allowed to lead evidence afresh on the basis of the documents including documents summoned from the custody of the police. Thereafter, if the contesting respondents wanted to lead any defence evidence, they should be permitted to do so. Then on the basis of those materials, the labour court must deal with the merits of the case and render its findings as to whether the two workman were guilty of the misconducts alleged and if it is so, whether the punishment of dismissal was proportionate to the gravity of misconduct proved against them. Hence, W.P.Nos.23584 and 32584 of 2007 will stand allowed to the extent indicated above. In view of the fact that these two disputes are of the year 2000 and also 10 years old, the labour court shall give preference for the hearing of these two industrial disputes and pass an Award within six months from the date of receipt of the copy of this order. Consequently, connected miscellaneous petitions stand closed.
16.In W.P.No.32583 of 2007, this court is satisfied that the Award passed by the labour court is opposed to the materials on record. The charges against the workman V.M.Sukumaran (Cashier) are fully proved. Even the charge that he had created false receipts which was found proved itself is a sufficient ground for dismissing the workman. Therefore, the relief granted by the labour court in the impugned Award is totally erroneous.
17.In this context, it is necessary to refer to the judgment of the Supreme Court in State Bank of India vs. S.N. Goyal, reported in (2008) 8 SCC 92. The following passages found in paragraphs 23 and 41 may be usefully extracted below:
23. Where the enquiry was found to be fair and proper and the finding of guilt in the enquiry in respect of a serious charge was found to be valid, in the absence of any other valid ground of challenge, the courts below ought to have held that the penalty of removal from service did not warrant any interference and dismissed the suit. Be that as it may. We will now consider the matter on merits on the assumption that the averments in the plaint were sufficient to enable the court to consider this issue.
…….
41. At the relevant point of time the respondent was functioning as a Branch Manager. A bank survives on the trust of its clientele and constituents. The position of the Manager of a bank is a matter of great trust. The employees of the bank in particular the Manager are expected to act with absolute integrity and honesty in handling the funds of the customers/borrowers of the bank. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment. When a borrower makes any payment towards a loan, the Manager of the bank receiving such amount is required to credit it immediately to the borrowers account. If the matter is to be viewed lightly or leniently it will encourage other bank employees to indulge in such activities thereby undermining the entire banking system. The request for reducing the punishment is misconceived and rejected.
18.In the light of the above, W.P.No.32583 of 2007 will stand allowed and the impugned award passed in I.D.No.459 of 2000 stands set aside. No costs. Consequently, connected miscellaneous petition stands closed.
vvk
To
The Presiding Officer,
Labour Court,
Salem