IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20/06/2003 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA WRIT PETITION.NO.3692 OF 1996 and WMP.NOs.5920,13579 to 13581 OF 1996 The Regional Manager, Region No.III, State Bank of India, No.43, Moore Street, Madras 600 001. .. Petitioner -Vs- 1. The Presiding Officer, Industrial Tribunal, Madras. 2. P. Venkataraman .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari as stated therein. For Petitioner : Mr.V. Karthick for M/s.T.S. Gopalan & Co. For Respondent-1 : Mr.P.S. Jayakumar Respondent-2 : Mr.K. Chandru Senior Counsel for Mr.R. Thirugnanam :J U D G M E N T
This is a shocking instance of how the discretionary power
conferred under Section 11-A of the Industrial Disputes Act is abused by the
Tribunal to interfere with the order of punishment on the pretext of alleged
disproportionate nature of the punishment.
2. The facts are no longer in dispute. The respondent No.2
was working as a clerk in State Bank of India. The incident took place more
than two decades back on 21.1.1983. The second respondent reported late for
duty and therefore, the acting chance was given to the next senior most
employee. The second respondent, who opposed such routine action, went to the
Branch Managers room and shouted at him and used derisive language. The
Branch Manager tried to pacify the second respondent. When the second
respondent demanded a written explanation from the acting Branch Manager, the
latter cautioned him and the second respondent retorted by saying that Oh!
You had the courage to issue me a memo. I will break your teeth. The acting
Branch Manager proceeded to the Branch Managers room and the second
respondent followed him with a leave letter stating that as a protest he was
going on leave. The acting Branch Manager asked him to place the leave letter
on the table. The acting Branch Manager got a memo typed to be issued to the
second respondent and when he returned to his room, the leave letter was
missing. When the acting Branch Manager sought to serve the memo on the
second respondent , the latter shouted at him as you have guts to issue the
memo. I will beat you in the office itself and I will break your teeth. So
saying, the second respondent tried to destroy the memo by lighting a match
stick. Then the second respondent forcibly snatched the memo from the acting
Branch Manager and tore it. The second respondent also took his chappal in
his hand and raised the same with a view to beat the acting Branch Manager,
but the staff members intervened and led the second respondent away from the
3. Subsequently, the second respondent was served with a
charge memo calling upon to him show cause and after holding a domestic
enquiry, an order of dismissal was passed on 26.4.1983.
4. The second respondent filed W.P.No.8583 of 1983 alleging
that he had not been given sufficient opportunity. On 2.12.1986, the writ
petition was allowed with a direction that the second respondent should be
given reasonable opportunity to file written statement of defence and
thereafter the witnesses examined may be tendered for crossexamination. The
enquiry was thus resumed and 13 out of 15 witnesses were made available for
cross-examination. Thereafter the enquiry officer gave his findings against
the second respondent and after service of second show cause notice and after
giving personal hearing, a fresh order of dismissal was passed on 27.6.1988.
5. The second respondent raised Industrial Dispute. On
consideration of the materials available on record, the Presiding Officer of
the Industrial Tribunal found that there was wordy altercation between the
second respondent and the Branch Manager, the second respondent shouted at the
Branch Manager twice which amounted to a misbehaviour towards a superior, the
memo issued to the second respondent was torn and an attempt was made to burn
it with a match stick, the second respondent assaulted the Branch Manager and
non-examination of two witnesses did not affect the case, the assault on the
Branch Manager had been proved through other witnesses, the second respondent
had been given reasonable opportunity to defend his case, the enquiry officer
was not biased, the charges levelled against the second respondent were proved
by legal evidence and the domestic enquiry was fair and proper, the second
respondent had removed his chappal and attempted to beat the Branch Manager
and that there is no question of victimisation.
6. In spite of all these findings rendered by the Tribunal,
it observed that the second respondent had rendered good service by mobilising
deposits to the tune of Rs.3 lakhs and this should have been taken into
consideration while awarding the punishment and the punishment of dismissal
was shockingly disproportionate to the gravity of the charges. The Tribunal
accordingly held that stoppage of two increments with cumulative effect would
meet the ends of justice and the punishment was accordingly modified. This
award of the Tribunal is being challenged by the Management.
7. After the award was passed, reserving the right to
challenge the award, the petitioner without prejudice to his contentions,
permitted the second respondent to rejoin and after filing the writ petition
had prayed for stay of payment of backwages. At that stage, after hearing the
petitioner as well as the second respondent, an order was passed in
WMP.NOs.5920, 13579 and 1 3582 of 1996 holding that the second respondent was
entitled to basic pay from the date of reinstatement with other attendant
benefits. Since some amount had already been recovered, there was a direction
not to deduct any further amount and to pay back the amount already recovered.
So far as the backwages was concerned, it was observed . . . considering
the charges levelled and which were proved, it will not be justifiable to
direct the bank to pay the entire amount of the backwages to the second
respondent in the writ petition.
8. A counter affidavit has been filed by the second
respondent wherein the second respondent has tried to justify the order passed
by the Tribunal. It has been further stated that :
I state that I have suffered the punishment of the stoppage of the
two increments with cumulative effect. Further I was also promoted to the
post of Senior Assistant on 31.3.2001 with retrospective effect from 1.4.1999
and I was permitted to retire from the post of Senior Assistant under State
Bank of India, Voluntary Retirement Scheme on 31-03-2001. I state that in
pursuance of the award, my service has been treated with continuity of service
and I was paid full salary and other allowances accordingly. The petitioner
has permitted me to retire from the service without imposing any conditions.
Hence the writ petition itself has become infructuous.
9. From the aforesaid assertion, it is apparent that in the
meantime the second respondent after being reinstated has been allowed to
retire from the post of Senior Assistant under the State Bank of India,
Voluntary Retirement Scheme on 31.3.2001.
10. Learned counsel for the second respondent has submitted
that in view of the subsequent events, the writ petition has become
infructuous and has to be dismissed accordingly.
11. Learned counsel for the petitioner has submitted that it
cannot be said that the writ petition has become infructuous as the question
of payment of backwages is inter-linked with the fate of the writ petition.
In case the writ petition is dismissed, in view of the earlier order of the
High Court, the bank will be forced to pay the entire backwages.
12. Submission of the learned counsel for the second
respondent that the writ petition has become infructuous is not well founded.
If ultimately the order of tribunal would be sustained, it is obvious that all
consequential benefits such as payment of backwages are to be given.
Therefore, the award of the Tribunal has to be considered on merit
notwithstanding the subsequent events.
13. Learned counsel appearing for the petitioner has
submitted that in view of gross misconduct which has been found by the enquiry
officer and confirmed by the Tribunal, there is no scope in treating the
second respondent with leniency as has been done by the Tribunal.
14. Learned counsel for the petitioner has relied upon a
decision of the Supreme Court reported in 2000(4) L.L.N. 562 (MAHENDRA NISSAN
ALLWYNS, LTD. v. M.P. SIDDAPPA AND ANOTHER). It is profitable to extract
the relevant portion from the aforesaid decision:
. . . 3. The High Court found no fault with the finding that the
charges had been proved. It found that the charges were not serious in nature
and the punishment that was imposed was disproportionate.
4. We do not agree with the High Court. The charges are of a serious
nature. The first respondent was found to have led out workmen from the
factory premises regardless of the challenge by the security guard. Along
with these workmen the first respondent entered the administrative building of
the appellant and the room of the Deputy General Manager. The Deputy General
Manager and Manager (Personnel) were abused in filthy language and threatened,
examples of which have been given. Misbehavior was also proved against the
first respondent in his conduct with five executives of the appellants. If
these are not serious charges against a workman worthy of his dismissal from
service, we do not know what can be. The High Court was quite wrong in the
conclusion that it reached and in the order that it passed. The punishment
imposed against the respondent must remain unaltered.
15. On the other hand the learned counsel appearing for the
second respondent has relied upon several other decisions of the Supreme Court
and other High Courts. Most of those decisions as well as the decision relied
upon by the petitioner had been considered by the learned single Judge of this
Court reported in 2002(3) L.L.N. 314 ( DAMODARAN v. PRESIDING OFFICER,
SECOND ADDITIONAL LABOUR COURT, MADRAS AND ANOTHER) wherein ultimately it was
decided that the order of dismissal imposed upon the delinquent, a Secretary
of the Labour Union, for using abusive words was grossly disproportionate and
should be modified.
16. A perusal of various decisions referred to in the
aforesaid decision including the decisions relied upon by both the parties
would show that question as to whether punishment is grossly disproportionate
or not would obviously depend upon the facts and circumstances of each case
and no inexorable principle can be laid down. No doubt there are several
cases where the Supreme Court and this Court have held that punishment of
dismissal for mere use of abusive words without any thing more would be
grossly disproportionate. However, in my humble opinion the ratio of the said
decision would not be applicable to the facts of the facts of the present
case. It is already noticed that apart from using the abusive words, the
delinquent in the present case had torn the charge memo prepared by the
superior officer and had threatened to assault him and also shown his chappal
with threatening gesture. Obviously such an action cannot be equated with
mere use of abusive words as was the case in the matter decided by this Court
and in the decision of the Supreme Court relied upon by this Court. To say
the least, the action in the p resent case showed disrespect for the lawful
authority accompanied with threatening gestures including showing of chappal.
To borrow the words of the Supreme Court in 20 00(4) LLN 562 (cited supra)
If these are not serious charges against a workman worthy of his dismissal
from service, we do not know what can be. From the record it is apparent
that the acting Branch Manager was saved from the assault with the chappal by
an inferior employee only with the timely intervention of the co-employees.
To encourage such action by exercising jurisdiction under Section 11-A of the
Industrial Disputes Act, obviously is a case of misplaced sympathy. It is
true that the delinquent has mobilised some deposits to the bank. The
delinquent was reinstated by the Management, obviously with a view to avoid
payment of amount under Section 17B. The delinquent has also been allowed to
retire. But, these aspects are not sufficient to come to a conclusion that
the award passed by the Tribunal directing reinstatement and imposing
punishment of stoppage of two increments was justified. Punishment of
dismissal from service imposed by the disciplinary authority was apt and the
punishment suggested by the Tribunal would be in fact grossly inadequate
keeping in view the nature of misdemeanor. The Tribunal has obviously far
exceeded its jurisdiction in reducing the punishment without any apparent
17. The next question is as to what would be the order to be
passed in view of the subsequent events. It has been already noted that the
delinquent was reinstated in service and was subsequently given the benefit of
voluntary retirement scheme. There is no question of recalling all these
subsequent actions. However, it would be most unjust to allow the second
respondent to have the benefit of any of the backwages. Therefore, while
setting aside the award passed by the Tribunal, the writ petition is disposed
of with an observation that the second respondent would not be entitled to any
other amount towards backwages and the order of retirement under voluntary
retirement scheme is allowed to stand.
18. Subject to the aforesaid observation, the writ petition
is disposed of. No costs. Consequently, the connected miscellaneous
petitions are closed.
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The Presiding Officer,