IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14/08/2003
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
WRIT PETITION.NO.17336 OF 2000
and
WMP.NO.31099 OF 2001
T.D. Thomson .. Petitioner
-Vs-
1. Indian Overseas Bank,
rep. by Chairman & Managing Director,
763, Mount Road,
Chennai 600 002.
2. J.K. Gupta,
Deputy General Manager,
Appellate Authority,
Indian Overseas Bank.
763, Mount Road,
Chennai 600 002.
3. Rajkumar Moses,
Disciplinary Authority,
Inquiry Cell (PAD),
Indian Overseas Bank,
763, Mount Road,
Chennai 600 002. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus as stated therein.
For Petitioner : Mr.Perumbulavil Radhakrishnan
For Respondents : Mr.A.L. Somayaji,
Senior Counsel for
Mr.P. Chandrasekaran
:J U D G M E N T
The petitioner, an employee of Indian Overseas Bank, has filed
this writ petition for quashing the order of dismissal dated 9.8.1999 passed
by the third respondent which has been confirmed by the second respondent by
order dated 24.2.2000 and has sought for a further direction to reinstate him
with all back wages.
2. The petitioner was working as a clerk under the respondent
bank. On 28.6.1997, charge sheet was issued by the Deputy Chief Officer,
which is as follows :-
. . . CHARGE SHEET:
It is reported that as an employee of the bank, while working as Clerk
at our Mount Road Branch, you have committed certain acts and omissions
constituting misconducts within the purview of clauses 17.5,(d), (e), (f),
(j), 17.7(a), (b), (c), (d) and (j) of the Bi-partite Settlement dated
14.12.66 between the bank and its workmen as amended up to date and para 17(i)
of circular memo ref.7 (f) 131 of 1994-95 dated 16.3.95 on VI Bi-Partite
Settlement and for which you are charge sheeted as follows:
Statement of imputations of misconduct:
1. During the years 1995 and 1996 you were in the habit of coming
late to office and further absenting yourself unauthorisedly from office
during office hours without obtaining prior permission from the competent
authority and thereby failed to discharge your duties and turn out full days
work for many days. To quote a few instances, you have unauthorised absented
yourself from office on the following days, after signing the attendance
register and gone without doing the allotted work/a full days work.
2. During the period 22.7.96 to 30.7.96 you had signed the attendance
register and immediately left the branch without attending to any office work
and consequently branch had to effect wage cut for the above period of
unauthorised absence.
3. Despite counselling, both orally and in writing several time by
branch/Regional Office, Madras (Metro) officials to improve your punctually
and/or in attendance and cautioning, you have not shown any improvement.
But you continued to be wilful in committing the misconduct, again and again.
4. Inspite of the branch advising/explaining to you orally/in writing
vide their letter dated 1.8.96 in clear terms their inability to consider your
request to sanction computer allowance, you entered into protracted and direct
correspondence with the Executives in this regard.
5. When an office order dated 21.4.97 was served by allocating you to
Deposits department w.e.f. 23.4.97 you had asked for one days time to decide
on the matter and further refused to sign the office order. When the said
office order was again served on you on 23.4.97, you made the following
unwarranted/uncalled for remarks in the office order :
accepted subject to and subsequent to payment of computer allowance
arrears vide my claim letter dated 12.4.97 addressed to E.D. and
clarification regarding your letter dated 1.8.96 issued to me in this regard
and did not work in Deposits department but continued to work in the previous
department, which amounts to wilful insubordination and disobedience of the
lawful and reasonable order of the management.
6. You are in the habit of writing letters directly to higher
authorities at Regional Office and top managements at Central Office casting
aspersions on and criticising the officials of the branch, Regional Office and
Central Office and the bank without routing the same through proper channel.
The correspondences initiated by you as above quite frequently are uncalled
for and unwarranted and incompatible with your position in the bank. They are
again found to be irrelevant/ frivolous and vexatious. The tone and tenor of
the letters are inabusive offensive, sarcastic and insinuating language and
bereft of respect regard and politeness but designed to camouflage your above
misconducts. They are observed to be vexatious, villifying and
overbearing/defiant in their nature and in violation of Central Office
circulars.
7. Despite-the bank declining your request for permission to be one
of the co-trustees of St. Josephs Educational Trust you had continued to be
a co-trustee of the aforesaid trust.
3. On receipt of the aforesaid charge sheet, the petitioner
wrote a letter to the Deputy Chief Officer/ the disciplinary authority,
calling for certain documents such as copies of Memo issued to various staff
members regarding punctuality during 1995-96, office order regarding
allocation of work for officials and attendance register between 1989-1993.
However, the Chief Manager gave a reply that those documents cannot be made
available as they are not required for the purpose of the enquiry. Even
though the petitioner did not submit any reply, the disciplinary authority
considered necessary to inquire into the truth of the allegations. Enquiry
was held and the Enquiry Officer found the petitioner guilty of all the
charges. Subsequently, an order of dismissal was passed by the third
respondent which has been confirmed in appeal by the second respondent.
4. The aforesaid order of dismissal has been challenged in
the writ petition by raising the following main contentions :-
(i) The documents called for by the petitioner having not furnished,
he could not give a reply. The petitioner had to remain absent to attend from
the enquiry. After 20 months of initiation of enquiry proceedings, list of
documents/witnesses was forwarded.
(ii) The person who was listed as witness No.3 was subsequently
appointed as enquiry officer on transfer of the previous enquiry officer.
Appointment of a witness as enquiry officer is against the principles of
natural justice.
(iii) The second show cause notice was not served on the petitioner.
(iv) Even assuming that the allegations have been established, the
punishment of dismissal is grossly disproportionate to the nature of
misconduct and cannot be sustained.
(v) The permission required under Section 33(2)(b) of the Industrial
Disputes Act having not been obtained, the order of dismissal is illegal.
5. A counter affidavit has been filed on behalf of the
respondents refuting the allegations. It has been stated that the documents
called for by the petitioner are not relevant for the purpose of the enquiry
and therefore, not supplied. Appointment of a person cited as a witness is
not ipso facto illegal and since such a person was not examined as witness, it
cannot be said that principles of natural justice have been violated. It has
been further stated that the second show cause notice has been sent by
registered post and the same was returned unserved. The other legal
contentions have also been refuted.
6. The documents which had been called for by the petitioner
have already been listed earlier. The decision refusing to supply the
documents emanated from the Chief Manager and not from the enquiry officer.
Whether the documents are relevant or not was to be decided by the enquiry
officer and not by any other officer of the bank. Some of the allegations
relate to absenteeism of the petitioner and if the petitioner wanted similar
documents in respect of other employees including the officials, it cannot be
said that the documents were not necessary for the purpose of the disciplinary
proceedings. Possibly, the petitioner wanted to show as to how other
employees have been treated for similar irregularities.
7. It is not disputed that Shri Rajkumar Moses, who has been
subsequently appointed as enquiry officer in the transfer of previous enquiry
officer, has been listed as a witness in the list of witnesses furnished by
the bank. Even though such a person may not be having actual bias against the
delinquent, legal bias has to be inferred. Appointment of a cited witness as
an enquiry officer must be taken to be illegal which vitiated the enquiry.
8. It is not disputed that the second show cause notice has
not been served. However, it is the plea of the respondents that second show
cause notice has been issued by registered post and had returned undelivered
as the addressee was absent. The materials on record, particularly letter
dated 22.8.1997, clearly indicate that the petitioner had intimated about the
change of address. Issuing second show cause notice in the previous address
cannot be held to be valid. It is not the case of the bank that the
petitioner had deliberately refused to accept the letter. It was returned as
un-served due to the absence of the petitioner. Therefore, in law, it must be
taken that the second show cause notice has not been served.
9. For these defects, which obviously have prejudiced the
petitioner, the disciplinary action taken against the petitioner cannot be
sustained and is liable to be quashed. It would be open to the respondents to
appoint a fresh enquiry officer to hold the enquiry. The question relating to
supplying of copies of the documents called for by the petitioner should be
examined by the enquiry officer and a de novo enquiry should be held.
10. In view of the above conclusion, it is unnecessary to
deal with the other two contentions namely, relating to the
disproportionateness of the punishment and relating to applicability of
Section 33(2)(b) of the Industrial Disputes Act.
11. Subject to the aforesaid observations, the writ petition
is allowed. No costs. Consequently, the connected miscellaneous petition is
closed.
Index : Yes
Internet : Yes
dpk/ksr
To
1. Indian Overseas Bank,
rep. by Chairman & Managing Director,
763, Mount Road,
Chennai 600 002.
2. J.K. Gupta,
Deputy General Manager,
Appellate Authority,
Indian Overseas Bank.
763, Mount Road,
Chennai 600 002.
3. Rajkumar Moses,
Disciplinary Authority,
Inquiry Cell (PAD),
Indian Overseas Bank,
763, Mount Road,
Chennai 600 002.