IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2007
CORAM
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU
WRIT APPEAL Nos.2579 of 2003 and 2068 of 2004
W.A. No.2579/2003:
~~~~~~~~~~~~~~~~~
Pudukottai Central Co-operative Bank Ltd.
Rep.by its Special Officer
Pudukottai. ... Appellant
Vs
1. The Presiding Officer
Labour Court
Tiruchirapalli.
2. K.Saminathan ... Respondents
W.A. No.2068/2003:
~~~~~~~~~~~~~~~~~
K.Saminathan ... Appellant
Vs
1. The Presiding Officer
Labour Court
Tiruchirapalli.
2. Pudukottai Central Co operative Bank Ltd.
Rep.by its Special Officer
Pudukottai. ... Respondents
Appeals under Clause 15 of the Letters Patent.
==========================================================================
For Appellant in WA.2579/2003 & R.2 in WA.2068/2004 : Mr.R.Parthiban
==========================================================================
For Appellant in WA.2068/2004 & R.2 in WA.2579/2003 : Mr.AR.L.Sundaresan,
Sr. Counsel for
Mrs.A.L.Gandhimathi.
==========================================================================
COMMON JUDGMENT
S.PALANIVELU,J.
These appeals have been filed, one by the management
and the other by the workman, against the order, dated
24.06.2003, made in W.P.No.5544 of 1995, whereby the writ
petitioner/workman was directed to be reinstated in service
with continuity of service, but without back wages.
2. For the sake of convenience, the litigative
status of the parties is referred to as per the Writ
Petition.
3. Petitioner joined the services of the respondent
bank in 1970 as a Junior Supervisor. In 1978, he was
dismissed from service on certain charges. In view of the
settlement arrived at on 29.02.1980, which was the outcome
of conciliation proceedings initiated before the Assistant
Commissioner of Labour, Pudukottai, he was absorbed as a
fresh entrant from 01.03.1980, as a Clerk. Ever since 1977,
he was also the General Secretary of the Pudukottai Central
Co-operative Bank Employees’ Union, which is affiliated to
A.I.B.E.A. Since he had been espousing the cause of labour
community, voicing the service conditions of other
employees, he earned wrath of the management. As he came to
know that the Special Officer made some defamatory remarks
against him in his personal files, he issued a lawyer’s
notice on 05.08.1983, calling upon the Special Officer to
withdraw the remarks. On 16.08.1983, the Special Officer
gave a reply. Petitioner instituted a suit for defamation
against the said Officer. However, on 16.08.1983 itself, a
charge memo came to be issued to the petitioner, alleging
the misconduct of defaming the Special Officer. Petitioner
sent a reply, dated 25.08.1983, denying the imputations. Not
content with the explanation, the respondent management
appointed an Enquiry Officer, to conduct a departmental
enquiry against the petitioner, and a charge sheet was also
served on him. Subsequently, he was suspended from service
with effect from 28.10.1983.
4. On 03.12.1983, the respondent again issued a
second charge sheet to the petitioner, indicating the
lapses, which were allegedly committed by him while he was
in service at Karambakudi Branch, during the year 1981.
Since the petitioner had not been attending the hearings of
enquiry, the enquiry was conducted ex parte. The following
charges were framed against the petitioner in two charge
sheets :
(i) Petitioner was using
abusive language in the communications
addressed to the management, in the
capacity of General Secretary of the
union, and he made false and
unnecessary allegations against the
management, causing disgrace and
injury to its goodwill.
(ii) While the petitioner was
working as a Cashier in Karambakudi
Branch, he disbursed money, without
making proper entries as also prior
sanction from the Branch Manager, and
that there were various lapses with
regard to money transactions with
reference to payments to various
persons irregularly, by means of
which, he caused loss to the
respondent bank.
5. After the enquiry, on 14.01.1984, the Enquiry
Officer submitted a report, stating that the charges framed
against the petitioner were proved, which was served on the
petitioner, who, in turn, submitted his representation. Not
satisfied with that, the respondent management dismissed the
petitioner from service on 24.03.1984 with effect from
28.10.1983, i.e., the date of suspension.
6. Petitioner preferred an appeal before the
Chairman of the respondent management, which, however,
suffered rejection. Thereafter, he raised an industrial
dispute in I.D.No.303 of 1986 before the Labour Court,
Madurai. On 31.05.1991, the Labour Court, Madurai, held
that the enquiry conducted by the management was not proper
and, as such, it was liable to be set aside, giving the
management an opportunity to let in evidence to prove the
charges against the petitioner. On the basis of the said
finding, proceedings were conducted before the said Court
and, subsequently, the case was transferred to Labour Court,
Trichy, and renumbered as I.D.No.8 of 1992. On 11.07.1994,
an award was passed, dismissing the petition. Thereafter,
the petitioner filed Writ Petition.
7. A learned single Judge, after scanning the entire
materials, set aside the first charge viz., use of abusive
language and false propaganda by the petitioner, and upheld
the petitioner’s guilt of the second charge, directing the
respondent to reinstate the petitioner in service with
continuity of service, but without back wages. Hence, these
appeals by both the parties.
8. As far as the first charge is concerned, it is
the outcry of the petitioner that in order to curtail his
trade union activities, the management has adopted an unfair
labour practice, with a vindictive attitude, to victimise
him and, as per the settled legal principles, bona fide
expression of genuine grievances and legitimate criticism of
the activities of the management would not constitute
misconduct or insubordination. It is further contended by
the petitioner that the way in which he was treated by the
Management would be an example to other employees to desist
them from involving in union activities.
9. With regard to second charge, it is his
contention that verification and checking of entries as
regards payment of money are the responsibilities of the
Branch Manager, which was admitted by one Shanmugam, who
gave evidence on behalf of the management and that omissions
and commissions were already rectified even before issuance
of charge sheet; further, the management issued charge memo
after a lapse of three years; due to the workload, two or
three entries occurred while he was carrying out them in the
account books and, at best, they could be termed to be minor
mistakes, which would, in no way, lead to cause loss to the
bank nor affect the goodwill of the bank in the locality.
10. As for the first charge, this Court has gone
through the communications, emanated from the petitioner in
the capacity of General Secretary of the Employees Union.
Though they appear to have contained some harsh language,
they would not, in any way, lead to pounce upon a conclusion
that it is a misconduct, nor do they constitute a basis for
framing the charges against the petitioner. Hence, the
contention of the petitioner that in the capacity of General
Secretary of the Employees Union, he made the statements is
quite reasonable and acceptable. The discussion with regard
to appreciation of the materials on record by the learned
single Judge is more appropriate and there is no need to
interfere with his finding in this regard.
11. In so far as the charge with regard to the
lapses on the part of the petitioner is concerned, they
pertain to money transactions, which is the vital business
of the bank. If any lapse occurs here and there, it may be
termed to be an inadvertence of the employee concerned. If
such lapses continue to recur in the day-to-day business,
which involve money transactions, certainly, they would
invite financial loss to the bank like that of the
respondent and its goodwill will also get impaired. The
staff, who are responsible for the money transactions, are
expected to be more careful in such affairs and, by their
dereliction in duty, the ultimate sufferers will be the
customers. The learned single Judge has taken much pain in
deciding this issue and come out with a finding, confirming
the proof of second charge.
12. Further, the second charge pertains to 11
occasions of wrong entries with reference to pay-in and pay-
out transactions. The Labour Court, in its award, has
elaborately and meticulously discussed this aspect and
reached a conclusion that the petitioner was responsible for
those wrong entries, which occurred during a period of nine
months. A careful scrutiny of the award of the Labour Court
in this regard shows a classical dereliction of duty on the
part of the petitioner. The corollary of the above
discussion would be, the second charge stands proved against
the petitioner.
13. The grounds, on which the petitioner makes an
inroad, are thus :
(a) The principles of natural justice have been
grossly violated, which are evident from two occasions. The
then Special Officer one M.Swamidoss gave a complaint
against the petitioner, alleging that he was assaulted by
some persons, at the instigation of the petitioner, and he
passed the order of dismissal and also acted as the
appellate authority, by confirming the said order.
(b) The appointment of one Anaiyappan, advocate, who
happened to be the Legal Adviser of the Managemen and who
advised the management in legal matters and drafted the
charges against the petitioner and, further, he appeared
before the Labour Court, representing the management, and
conducted the proceedings, which would vitiate the enquiry
proceedings.
(c) One Rangasamy, the then Manager of Karambakudi
Branch, also committed similar mistakes with reference to
the debit and credit entries and by means of his
carelessness, the bank incurred loss and the funds of the
bank were misused and that he was also suspended from
service, but, after enquiry, he was let off with a flea-bite
penalty of stoppage of increment for one year and,
thereafter, he was reinstated in service.
14. On grounds (a) and (b), it is vehemently
contended by the learned Senior Counsel for the petitioner
that during the domestic enquiry proceedings, the principles
of natural justice were ignored.
15. In this connection, it shall be stated that the
aspect as regards the appointment of one Anaiyappan,
advocate, as the Enquiry Officer, and the dismissal order on
the appeal representation by one Swamidoss, was duly
discussed by the learned single Judge. This aspect was also
taken into consideration at the time of determining the
quantum of punishment. It had been rightly observed by the
learned single Judge that it would be a futile exercise to
remit the matter back to the Labour Court, for deciding the
quantum of punishment. If it is considered that the
principles of natural justice are violated in the conduct of
the domestic enquiry proceedings, it is to be noted that the
parties have adduced evidence before the Labour Court with
regard to the said aspect and, hence, no prejudice has ever
caused to the petitioner in this regard.
16. On ground (c) i.e., with regard to the penalty
imposed on one Rangasamy, who was the then Manager of
Karambakudi Branch, it is contended by the petitioner that
the said Rangasamy also indulged in committing similar
errors with regard to money transactions; as many as five
charges were framed against the said Rangasamy and, though
the charges were proved, only lesser punishment of stoppage
of increment for one year without cumulative effect was
imposed on him, thereby there is discrimination by the
management in awarding penalties to its employees.
17. In this context, learned Senior Counsel for the
petitioner drew attention of this Court to a Division Bench
decision of this Court in M.Rajamanickam v. Bharat Heavy
Electricals Ltd. and another, 1997 (3) L.L.N.550, in which
it was held as follows :
“There is no iota of evidence
which would differentiate the case of
the present appellant from that of the
other employee Meenakshisundaram. This
discrimination is writ large on the
record and the Court cannot overlook
the same. There is no justification in
treating the appellant differently
without pointing out how he was guilty
of more serious misconduct or the
degree of indiscipline in the present
case was higher than compared to that
of Meenakshisundaram. The treatment
meted out to the appellant suffers from
the vice of arbitrariness and Art.14
forbids any arbitrary action which
would tantamount to denial of equality
as guaranteed by Art.14 of the
Constitution of India. The order of
punishment is set aside on the ground
that the penalty imposed on the
appellant is hostile discrimination,
harsh and disproportionate to the
proved misconduct.”
18. On this aspect, if the second show cause notice
issued to the said Rangasamy on 31.12.1987 is subjected to a
perusal, it shows that he was not directly involved in the
wrong entries, but, they were made by the staff, working
under him. The imputation was that in supervisory capacity,
he failed to notice those wrong entries and, hence, the bank
incurred loss. But, the charge against the petitioner is
different. It was stated that he himself made wrong entries.
Hence, the duties of Rangasamy were not akin to those of
the petitioner and, therefore, it cannot be construed that
he is a similarly placed person like the petitioner, so also
the delinquency on the part of the petitioner on par with
that of Rangasamy. Therefore, the said decision is of no
avail to the petitioner.
19. Conversely, learned counsel for the respondent
placed reliance upon a decision of the Honourable Apex Court
in Indian Overseas Bank v. I.O.B.Staff Canteen Workers’
Union and another, 2000 (4) Supreme Court Cases 245, wherein
it was observed as under :
“The single Judge has undertaken an
exercise, impermissible for him in
exercising writ jurisdiction, by
liberally reappreciating the
evidence and drawing conclusions of
his own on pure questions of fact,
unmindful, though aware fully, that
he is not exercising any appellate
jurisdiction over the awards passed
by a tribunal, presided over by a
judicial officer. The findings of
fact recorded by a fact-finding
authority duly constituted for the
purpose and which ordinarily should
be considered to have become final,
cannot be disturbed for the mere
reason of having been based on
materials or evidence not sufficient
or credible in the opinion of the
writ court to warrant those
findings, at any rate, as long as
they are based upon some material,
which are relevant for the purpose
or even on the ground that there is
yet another view which can
reasonably and possibly be taken.”
20. However, in the recent judgment delivered by the
Honourable Apex Court in MATHURA PRASAD vs. UNION OF INDIA
[(2007) 1 SCC 437], considering the entire case law on the
subject of judicial review, the Apex Court has categorically
and in no uncertain terms has ruled:
“When an employee, by reason of an alleged act
of misconduct, is sought to be deprived of his
livelihood, the procedures laid down under the
sub-rules are required to be strictly followed.
A judicial review would lie even if there is an
error of law apparent on the face of the
record. If statutory authority uses its power
in a manner not provided for in the statute or
passes an order without application of mind,
judicial review would be maintainable. Even an
error of fact for sufficient reasons may
attract the principles of judicial review.”
21. In the case on hand, the learned single Judge,
exercising the power conferred under Article 226 of the
Constitution of India, has taken pains to discuss the matter
at length, which cannot be branded as without power, in view
of the above judgment of the Honourable Apex Court in
Mathura Prasad case. Therefore, this part of argument
advanced on the part of the Management is rejected.
Moreover, the letters on behalf of the union addressed to
the management appear to have emanated in the years
1981,1982 and 1983 i.e., long prior to the passing of
suspension order on 28.10.1983 and the last letter addressed
by the petitioner to the management being dated 06.07.1983.
Just because the petitioner, as General Secretary of the
union, sent communications to the management with some
unnecessary language, it would not invite framing of charges
nor would it constitute a misconduct. Further, the
management has not attributed any motive on the part of the
petitioner, for using of such language by the petitioner.
In other words, the petitioner had no grudge against his
superiors on the dates of issuing those letters. So, the
finding arrived at by the learned single Judge with regard
first charge, in our view, is proper.
22. Learned counsel for the respondent also garnered
support from a decision of the Apex Court in Suresh
Pathrella v. Oriental Bank of Commerce, 2007 (1) Supreme
Court Cases (L&S) 224, for a proposition of law that even
though there was no proof of mandatory loss to the bank, it
would not form a ground for taking a lenient view, for the
proof of misconduct of a bank officer. The operative
portion of the said decision has been culled out as under :
“22. In the present case, the
appellant acted beyond its authority
in breach of the Bank’s regulation.
Regulation 3 (1) of the Bank’s
Regulations required that every
officer of the Bank at all times takes
all possible steps to protect the
interest of the Bank and discharge his
duties with utmost integrity, honesty,
devotion and diligence and do nothing
which will be unbecoming of a bank
officer. It is a case of loss of
confidence in the officer by the bank.
In such a situation, it would be a
futile exercise of judicial review to
embark upon the decision of the
disciplinary authority removing the
officer from service, preceded by an
enquiry, and to direct the bank to
take back the officer in whom the bank
has lost confidence, unless the
decision to remove the officer is
tainted with mala fides or in
violation of principles of natural
justice and prejudice to the officer
is made out….”
23. For the foregoing discussions and following the
principles laid down in the above said decisions, we are of
the considered opinion that the petitioner who is expected
to maintain complete devotion and diligence, has deviated
from the regulations and, hence, the order of the learned
single Judge, directing reinstatement of the petitioner with
continuity of service, but without back wages, is quite in
order and we find no reason to cause our interference into
such well considered and merited order passed by the learned
single Judge. Accordingly, both these Writ Appeals are
dismissed. No costs. Consequently, the connected
W.A.M.P.No.3983 of 2003 and W.V.M.P.No.6738 of 2003 are
closed. We make it clear that if by this time, the
petitioner/workman has attained the age of superannuation,
he shall be deemed to have retired from service in the usual
course on attaining the age of superannuation, for all other
consequential benefits.
dixit/Rao
To
The Presiding Officer
Labour Court
Tiruchirapalli.