JUDGMENT
1. This writ petition under Articles 226 and 227 of the Constitution of India impugns an Award of the Central Government Industrial Tribunal No. II, Bombay, dated January 13, 1989, in Reference No. CGIT-2/63 of 1987 under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’).
2. The petitioner is a Nationalised Bank constituted under the provisions of the State Bank of India Act, 1955 carrying on the business of Banking in different Branches all over the country. The Second Respondent is a clerical employee in its service.
3. The Second Respondent joined the service of the Petitioner Bank some time in 1966 as a Clerk. At the material time in 1981 he was working as Head Clerk at Dehu Road Branch of the petitioner Bank and one of his duties consisted of Accepting value payable parcels and receiving them on behalf of the Bank. He was also authorised to sign cheques not in excess of Rs. 1,000/-.
4. The Second Respondent was served with a charge-sheet dated July 6, 1982 alleging that on March 28, 1981, he had discharged a value payable Money Order No. 148 for Rs. 5/-received from the State Bank Mysore, Punt but the proceeds had not been credited to the Branch Commission Account. It was also alleged tliat, during the period February 28, 1981 to June 12, 1981 despite no authority, the Second Respondent passed for payment a number of ‘ cheques in excess of his limits or authority, ranging from Rs. 1,060/- to Rs. 3,000/- and, particularly, that on May 4, 1981 he had passed for cash payment a cheque for Rs. 2,000/-, which was beyond his financial authority limits. The Second Respondent was called upon to give an explanation to the allegations.
5. The Second Respondent by his reply dated August 12, 1982 admitted that it was his job to accept the V.P.P. receipts and that he was required to hand over the cash to the Cash Department and prepare a voucher reflecting the transaction in the records of the Bank. The Second Respondent, however, took up the stand that as soon as voucher was prepared his responsibility ceased and thereafter it was the responsibility of the Cash Department which maintained the V.P.P. Register. As to the second charge, the Second Respondent took up the stand that the cheque for Rs. 2800/- had been passed by him on May 4,198 1, bona fade, because of heavy rush. He contended that, though the relevant cheque and certain ledger sheets pertaining to such transactions were missing from the custody of the Clerk who was supposed to maintain them, he was not in any way concerned with the missing of such documents. He also pointed out that the cheques payment scroll maintained by him had been over-written by some one. Finally, he admitted that though, on occasions, he had passed the cheques for payment beyond his financial limits, he maintained that he had done so bonafide, so as not to inconvenience the customers, since the Officer concerned used to go for lunch. An enquiry was conducted into charges alleged against the Second Respondent on October, 14 and 15, 1982. The Second Respondent attended and participated in the enquiry and was given MI opportunity to defend the charges.
6. By a report dated November 4, 1982, the Enquiry Officer found that the charge with regard. to accepting V.P.P./M.O. No. 148 dated March 28, 1981 without crediting the amount in the account of the Bank had been established. The Enquiry Officer did not accept the defence of the Second Respondent and pointed out that the explanation of the Second Respondent was unacceptable since he was unable to name the person to whom the cash amount of Rs. 5/- was handed over and further that, since, admittedly, the second respondent had worked for 15 years and more he could not plead ignorance about the procedure followed in the Bank as to writing of voucher and taking the signature of the concerned superior Officer thereupon. The Enquiry Officer was of the view that the Second Respondent was not only negligent, but was responsible for misappropriation of the said cash amount and could not he exonerated from the first charge.Turning to the second charge, the Enquiry Officer held that on the appraisal of the evidence before him the only possible conclusion was that the possible culprit for the loss of the cheque for Rs 2800/- could he the Second Respondent and nobody else. Thus the Enquiry Officer held the Second Respondent guilty of gross misconduct” under clauses (d) and (j) of the applicable Regulations settled by the Desai Aware. The said clauses read as under :
“(d) wilful damage or attempt to cause damage to the property of the Bank or any of its customers.
(j) doing any act prejudicial to the interest of the Bank or gross negligence or negligence involving or likely to involve the Bank in serious loss.”
The second Respondent was served with a notice dated October 14, 1983 by the Regional Manager (II), State Bank of India, Pune informing him as under :
“From the enquiry roceedings, I observe that the Enquiry Officer has come to the conclusion that the charge No. 1 has been, proved against you clusively during the course of the enquiry. Taking into account the gravity of your misconduct I have tentatively decided to dismiss you from the service.
By the said notice the Second Respondent was called upon to make his submissions as to why he should not be dismissed from service.
7. The Second Respondent made a represensation dated October 16, 1983, pleading that he was guilty of not having credited Rs. 5/- in the account of the Bank, that the amount was too petty and it would cause great hardship to him 5and his family if he was dismissed. The representation made by the Second Respondent was rejected by the Disciplinary Authority dated December 5, 1983 saying :
“I observe that you have not advanced any cogent reasons for Countermanding the proposed penalty as advised in the memorandum referred to above. Your contentions are, therefore, not acceptable to us.
Taking into account the gravity of your misconduct, I have decided to dismiss you from the bank’s service ……”
A formal order of dismissal was also passed on December 5, 1983 in which it is stated :
“Taking into account the gravity of misconduct on the part of Shri A. H. G. Gazekhan, the undersigned as the Disciplinary Authority haddecided to dismiss him from Bank’s Service ….
Shri Gazekhan has not advanced any cogent reasons in his reply dated October 16, 1983 to our memo referred to above for countermanding the proposed penalty.”
8. The Second Respondent raised an industrial dispute for reinstatement with back wages and continuity which came to be referred to the Central Government Industrial Tribunal, Bombay, vide Reference No. CGIT-2/63 of 1987. The Tribunal tried the reference and raised the following issues and answered them as under :
“ISSUES
1) Whether the inquheld against the workman Shri A. H. G. Gazekhan by the Inquiry Officer was not held properly, and the rules of natural justice were not followed ?
2) Whether the show cause noticelchargesheet issued against him was bad in law, and had not contained the specific particulars of die charge against him ?
3) Whether the claim of the worker deserves to he dismissed summarily, as he did not file his statement of claim within two weeks from the date of the reference notice, and further, as he did not produce the basic documents of the case along with the statement of claim ?
4) whether the action of the management of State Bank of India, Pune in dismissing Shri A. H. G. Gazekhan, Head Clerk from Bank’s service is justified ?
5) If not, to what relief is the workman entitled ?
6) What Award ?
FINDINGS :
1) The enquiry against the workman was held properly and the rules of natural justice were followed.
2) No. It contained specific allegations.
3) No.
4) No.
5) As per award.
6) As per order”.
9. Though the Tribunal came to the conclusion that the Second Respondent was rightly held by the Enquiry Officer to be guilty or misconduct alleged against him, the Tribunal felt that the case called for interference under Section 11-A of the Act for good reason. The reason which weighed with the Tribunal was. that the Second Respondent had put in about 17 years’ of service which, in the absence of any material 4, to the contrary, had to be assumed to be blemishiess. The Tribunal took note of the fact that, while inflicting punishment on the workman, though the Disciplinary Authority was required to take note of his past record and other miti ating circumstances, the said facts were not taken into consideration while awarding the punishment of dismissal. The Tribunal was of tue view that the punishment imposed called for interference since due weightage has not been given to Second Respondent’s 17 years’ unblemished service.
10. Mr. Naik, learned counsel, appearing for the Petitioner Bank, strongly urged, that, though the Tribunal had the power of interfering with the punishment under Section 11-A of the Act, this was a case where the said power has been used injudiciously.
11. Mr. Naik referred to the judgment in Christian Medical College Hospital Employees’ Union & Anr. v. Christian Medical College, Vellore Association & Ors. (1988-I-LLJ-263) (SC) and contended that this judgment lays down the principle that Section 11-A does not invest arbitrary power in the Industrial Tribunal and this power has to be exercised judicially and the Industrial Tribunal is expected to interfere with the decision of the Management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned. I do not think that this judgment lays down any law beyond restating the terms of the Section itself.
12. Even applying the test laid down by the Supreme Court, it does not appear to me that the exercise of power by the Tribunal in the industrial case was arbitrary or injudicious. The Tribunal has given the reason-which reason in my view is a very material reason viz., that due weightage to the Second Respondent’s 17 years blameless service had not been accorded by the Punishing Authority. I invited Mr. Naik to show me from the record whether there was advertence of mind by the Disciplinary Authority to the undeniable mitigating factor of the Second Respondent’s 17 years blameless service. Mr. Naik candidly conceded that it does not appear from the record that there war, specific advertence of mind to this factor. In fact, it is admitted by both sides that there are Service Regulations which bind both parties under so which the Disciplinary Authority is required to consider all mitigating circumstances including the past service record of the delinquent employee before imposing the punishment. In the face of these circumstances, if the Tribunal below considers that the order of dismissal was not justified and chooses to exercise the power vested in it under Section 11-A of the Act, I am unable to see how the exercise of such jurisdiction of the Tribunal can be characterized as arbitrary or injudicious. In my view, the Tribunal’s power has been exercised judicially and for a justifiable reason.
13. Mr. Naik then brought to my attention the judgment of Supreme Court in State of Punjab & Ors v. Ram Singh, Ex. Constable (1993-I-LLJ-218) and the judgment of the Division Bench of the Gujarat High Court in Gujarat State Road Transport Corporation v. Kachraji Motiji Parmar, 1993 I CLR 894. The former was a case of a Police Constable roaming around in a market area in a drunken condition carrying a service revolver and the latter, a case of a bus conductor of a Transport Company misappropriating the amount given to him by the passengers for the tickets. It is true that in the facts and circumstances of the said cases the Court did take the view that the punishment imposed on the delinquent employee ought not to have been interfered with. It is also true that the case before the Division Bench of the Gujarat High Court was one arising under Section 11-A of the Act. M. Y. Naik highlighted the observations of the Supreme Court relied upon in paragraph of the Gujarat judgment. The said judgment of the Supreme Court referred to therein is the case of State of Punjab & Ors. v. Ram Singh Ex. Constable (supra) in which the Supreme Court emphasised, that, merely because the employee had long blemishless service, that per se did not prevent the Employer from taking appropriate disciplinary action against the employee, if in the last year of service the employee was found indulging in a serious misconduct which by itself warranted such punishment. In my view, neither these observations nor the observations made in the judgment of the Gujarat High Court are of any assistance to the Petitioner Bank. As I have pointed out earlier, this is a case where the Disciplinary Authority had completely failed to advert its mind to the relevant factor, viz., the blameless service of 17 years which the Second Respondent had to his credit. The authority appears to have condisered only half the issue, namely, that the Second Respondent had committed a, misconduct. May be, if the Competent Authority had considered the issue in its entire perspective and decided that, despite his long and blameless service the misconduct committed in the year 1981 warranted imposition of punishment of dismissal the Tribunal might not have persuaded to interfere. There is no such advertence of mind; there is no balancing of the factors in favour of the Second Respondent as against those against him. In my view, this was st,0 a eircum ance which justified the Tribunal’s exercise of jurisdiction under Section 11A of the Act. I am of the opinion that the Tribunal has judicially exercised its jurisdiction under Section 11-A of the Act. The order of dismissal !5 against the Second Respondent has been substituted by an order of reversion to a lower post and the Second Respondent has been totally denied the back wages. In my view this does sub-stantial justice to the parties and I am not satisfied that there is any need to interfere with the order of the Industrial Tribunal in the extraordinary writ jurisdiction.
14. In the result, the writ petition is dismissed. Rule discharged with no order as to costs.
15. Mr. Naik applied for an order of status quo. Whatever that means, I am not satisfied go that any such order needs to be made. The Second respondent has been posted to work on the post of lower cadre and he is entitled to work there only. Application rejected.
16. Certified copy expedited