IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.6.2008
CORAM:
THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR.JUSTICE V.DHANAPALAN
Writ Appeal No.382 of 2008
Bank of Baroda Employees Union,
(Regn.No.2077)
28, Rajaji Salai, Chennai-600 001. .. Appellant
vs.
1. Bank of Baroda,
Rep. by its Asst. General Manager,
82, Bank Road, Coimbatore-18.
2. The Presiding Officer,
Central Government Industrial Tribunal-cum-
Labour Court, Ist Floor, Shasthri Bhavan,
Haddows Road, Chennai-600 006. .. Respondents
Writ Appeal against the order of this Court dated 4.1.2008 in W.P.No.14233 of 2003.
For appellant : Mr.S.Vaidyanathan
JUDGMENT
(The Judgment of the Court was delivered by S.J.MUKHOPADHAYA,J)
The delinquent Bank employee was charged by the Bank that he made fictitious entries in a term loan account and also savings bank account and had the benefit of enjoying the Bank fund, which is the money of various constituents of the Bank, to an extent of more than Rs.30,000/-. That apart, he made certain manipulations in the current account of one Tmt.Mangalam in the overdraft balance on one occasion and fictitious credit entry on another occasion. Similar such entries were made by the delinquent employee in respect of two other accounts, namely M/s.Sree Vinayaga Traders and M/s.Leelavathy Traders. On those occasions, the amounts were more than Rs.5,000/-. Apart from the above, the delinquent is stated to have borrowed a sum of Rs.44,000/- from one of the constituents of the Bank with a promise to re-pay the same by tendering two post-dated cheques, which promise was not duly kept by the delinquent. Altogether, eight charges were levelled against him and on receipt of the show cause notice, he initially admitted charge Nos.1 to 5, denied charge Nos.6 and 7 and with regard to charge No.8, which related to borrowal made by him from one of the constituents of the Bank, he stated that he would repay the amount, honouring his promise.
2. Being not satisfied, the Bank having initiated proceedings, vide charge memo dated 5.5.1997. The employee requested the Bank to treat the whole matter under paragraph 19.12(e) of the bi-partite settlement and close the enquiry proceedings. On receipt of such reply, the Bank informed the employee that paragraph 19.12(e) can be invoked only in cases where all the charges are admitted by the delinquent employee. In this background, the employee, by subsequently reply, in his letter dated 31.12.1997, admitted the guilt as was made in all the charges. In view of the admission of the guilt, the Bank, after hearing the employee, imposed major punishment of removal from service, which on appeal, was confirmed.
3. On dispute, the matter was referred to the Central Government Industrial Tribunal-cum-Labour Court, Chennai, which by its award, dated 5.12.2002, made in I.D.No.581 of 2001, affirmed the order of punishment. The Writ Petition against the award was also dismissed by the learned single Judge, vide detailed impugned order dated 4.1.2008 in W.P.No.14233 of 2003.
4. Learned counsel for the appellant submitted that the admission of guilt was conditional, as he admitted the guilt under paragraph 19.12(e) of the bi-partite settlement. According to him, the punishment of dismissal from service was uncalled for, in view of the conditional admission of the guilt. Learned counsel for the appellant referred to the following decisions:
(i) 2002 (6) SCC 470
(Harijana Thirupala vs. Public Prosecutor);
(ii) 2004 (8) SCC 88
(Delhi Transport Corporation. vs. Shyam Lal);
(iii) 1986 (II) LLJ 443
(V.Radhakrishnan vs. Indian Bank) and
(iv) 1985 (II) LLJ 296
(Natavarbhai S.Makwana vs.
Union Bank of India & Others).
5. We have heard learned counsel for the appellant and perused the records.
6. In order to appreciate the issue in proper perspective, paragraph 19.12(e) of the bi-partite settlement requires extraction and it reads as follows:
“19.12(e). An enquiry need not be held, if-
(i) the misconduct is such that even if proved the bank does not intend to award the punishment of discharge or dismissal; and
(ii) the bank has issued a show cause notice to the employee advising him of the misconduct and the punishment for which he may be liable for such misconduct; and
(iii) the employee makes a voluntary admission of his guilt in his reply to the aforesaid show cause notice.
However, if the employee concerned requests a hearing regarding the nature of punishment, such a hearing shall be given.”
7. Admittedly, the present case does not fall under Clause (i) of paragraph 19.12(e) of the bi-partite settlement, as the Bank never intended to award lesser punishment than discharge or dismissal from service. From the show cause notice issued by the Bank to the delinquent employee, it will be evident that the Bank never intimated that it will impose a particular punishment which is lesser than discharge or dismissal from service and thereby, the present case does not also fall under Clause (ii) of paragraph 19.12(e). So far as the present case is concerned, it falls under Clause (iii) of paragraph 19.12(e), underwhich, if the employee makes a voluntary admission of his guilt in his reply to the show cause notice, in such a case, no enquiry need be held and only after giving hearing to the concerned employee regarding the nature of the punishment, such punishment can be imposed.
8. From the admission of guilt as was made by the employee, it would be evident that the admission is not conditional. He admitted the charges. What he actually made conditional was that the enquiry need not be held, as he wanted to derive the advantage of paragraph 19.12(e). Therefore, the only condition was that no enquiry was required to be held. In spite of the same, if enquiry officer held any enquiry, that will not render the order of punishment illegal, as it is always open to the disciplinary authority to punish the delinquent employee if guilt is admitted, without taking into consideration the enquiry report.
9. So far as the judgments as referred to by the learned counsel for the appellant are concerned, none of them are applicable to the present case. The case of “Harijana Thirupala vs. Public Prosecutor”, reported in 2002 (6) SCC 470, relates to criminal trial. Therein, any finding given with regard to the evidence cannot be applied to a case under service jurisprudence.
10. So far as the case of “Delhi Transport Corporation vs. Shyam Lal” reported in 2004 (8) SCC 88, is concerned, the Supreme Court observed that the settled position of law is that admission is the best piece of evidence against the person making the admission. However, it is open to the person making the admission to show why the admission is not to be acted upon. In the present case, no case has been made out on behalf of the employee as to why his admission is not to be acted upon.
11. The other decision is the judgment of this Court rendered by a learned single Judge in the case of “V.Radhakrishnan vs. Indian Bank” reported in 1986 (II) LLJ 443. That was a case in which the learned single Judge held that even if the employee had admitted the charges, still, as per paragraph 19.12(e) of the bi-partite settlement arrived at between the Bank and its employees, an enquiry has to be held on those charges as the alleged admission has not been made after knowing the nature of punishment to be imposed on those charges.
It would be evident from paragraph 19.12(e) of the bi-partite settlement that the said provision is specific which stipulates the condition in which no enquiry need be held. Therefore, the question of holding enquiry under paragraph 19.12(e) does not arise. If one or other charge is not admitted by the charge-employee, then in that case, paragraph 19.12(e)(iii) of the bi-partite settlement cannot be invoked. It is only when the guilt in respect of all the charges are admitted by the employee, the said provision can be invoked.
We accordingly hold that the judgment rendered by the learned single Judge in the decision reported in 1986 (II) LLJ 443 (cited supra) does not hold good in the eye of law.
This apart, after knowing the nature of punishment, as the employee never denied the allegations and intended for an enquiry under the law, the employee cannot derive the benefit of the said judgment.
12. Learned counsel for the appellant also relied on a judgment of the learned single Judge of Gujarat High Court in the case of “Natavarbhai S.Makwana vs. Union Bank of India and others” reported in 1985 (II) LLJ 296, wherein, the learned single Judge observed as follows:
“22. …. it is always necessary that the factum of misconduct be established. Moreover disciplinary proceedings by the department are in the nature of quasi-criminal proceedings-much more so from the view point of consequences of such proceedings. An employee may be visited with the penalty of removal or dismissal from service which would be almost equivalent to economic death sentence. Therefore, proof of the facts constituting misconduct has got to be emphasised. Ordinarily, admission alone of the delinquent officer cannot be regarded as sufficient proof of misconduct as well as the facts constituting misconduct.”
However, we are not inclined to accept such proposition of law, as it is settled law that in cases of admission of the guilt, it is always open for the disciplinary authority not to hold enquiry, apart from the fact that paragraph 19.12(e)(iii) of the bi-partite settlement is specific in this regard.
13. So far as the quantum of punishment is concerned, the Industrial Tribunal as well as the learned single Judge have looked into the matter and came to the definite conclusion that the quantum of punishment is proportionate to the gravity of the charges. We are also of the same view.
14. We find no merits in the Writ Appeal, which is accordingly dismissed. No costs.
(S.J.M.J) (V.D.P.J)
13.6.2008
Index: Yes
Internet: Yes
cs
To
The Presiding Officer,
Central Government Industrial Tribunal-cum-
Labour Court, Ist Floor, Shasthri Bhavan,
Haddows Road, Chennai-600 006.
S.J.MUKHOPADHAYA,J
AND
V.DHANAPALAN,J
cs
W.A.No.382 of 2008
13.6.2008