Pandyan Grama Bank v. The Presiding Officer, Industrial Tribunal - Tamil Nadu, Chennai.2. S.Senthilnathan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.04.2007CORAM:THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAWrit Petition No.17968 of 1997Pandyan Grama Bank,rep. by its Chairman,71, Kandapuram Street,Virudhunagar-626 001... Petitioner Vs.1. The Presiding Officer, Industrial Tribunal - Tamil Nadu, Chennai.2. S.Senthilnathan.. RespondentsWrit Petition filed under Article 226 of the Constitution, prayingfor the issuance of Writ of Certiorari to call for the records from the 1strespondent Industrial Tribunal and quash the award of the 1st respondent inI.D. No.109/93 dated 4.4.1997 and issue consequential directions andaward costs.For petitioner : Mr.N.G.R.PrasadFor Respondents : Mr.R.Arumugam for R2O R D E RThis writ petition is filed to call for the records from the firstrespondent Industrial Tribunal and quash the award of the first respondentin I.D. No.109/93 and issue consequential directions and award costs.2.The brief facts arising out of this writ petition are as under:-The petitioner is a bank established by the Regional Rural Banks Act,1976. The main object of the bank is to grant loans and advances tofarmers, agricultural labourers who cannot approach the commercial banksin urban areas. The second respondent is the employee of the petitioner.The second respondent was initially working in Paramakudi Branch from22.11.1983 to 21.01.1984 serving as Sweeper-cum-Messenger. He served asSweeper-cum-Messenger in other branches, as follows:-Kamankottai22.01.1984 to 15.02.1987 https://hcservices.ecourts.gov.in/hcservices/ T.Maraiyur16.02.1987 to 16.07.1988Vayali18.07.1988 to 30.08.1989Totally he worked for 5 years and 9 months. While he was working inT.Maraiyur Branch, he was issued Charge Sheet dated 07.07.1988 on thefollowing charges:-a) he was involved in immoral activities and he misbehaved with a lady;b) he had been absenting himself frequently thereby causing inconvenienceto the bank and c) he demanded an illegal gratification from the Sheep Loan Beneficiariesand obtained Rs.40/- from Ponnuswamy Thevar. Departmental Enquiry was held and after enquiry, the Enquiry Officer foundthe second respondent guilty of the first two charges, namely, indulgingin immoral activities and misbehaviour with a lady and frequentlyabsenting himself from duty. The second respondent was exonerated of thethird charge, namely, receiving illegal gratification. On the basis ofthe above finding, the Chairman of the Bank who was the DisciplinaryAuthority, terminated the second respondent from service by order dated30.08.1989. Aggrieved by the order, the second respondent filed an appealto the Board of Directors, the Appellate Authority and the same wasdismissed on 18.05.1990. Aggrieved, the second respondent raised anIndustrial Dispute in I.D. No.109 of 1993, which was referred toadjudication of the Presiding Officer, the above mentioned firstrespondent. After hearing the arguments, the Tribunal passed an awardholding that the action of the Management of the Bank terminating theservices of the second respondent, was not justified and the secondrespondent is entitled for reinstatement, continuity service, backwagesand all other attendant benefits. Aggrieved by the same, the petitionerhas preferred the present writ petition. 3.Learned counsel appearing for the petitioner submitted that theTribunal was wrong in holding that there was no satisfactory evidenceagainst the first Charge. Further the Tribunal was also wrong inmisconstruing the decision of JAMAYAT as having been taken on 17.12.1988whereas it was only an Extract Copy of the letter sent on 17.12.1988 andin that letter the date of the incident was mentioned as 12.05.1988. Onthis basis, the Tribunal had come to an erroneous conclusion that theevidence has been procured after the charge sheet, which is perverse.Further, it is also submitted that the Tribunal was wrong in holding thatthere is no eye witnesses examined in respect of the first charge. TheTribunal failed to see that Ramu, a Senior Asst-cum-Cashier gave evidenceand he stated that he was present at the meeting of the JAMAYAT where thesecond respondent confessed to his misbehaviour with the lady. TheTribunal has overlooked this evidence. In respect of the second charge,the Tribunal had totally misconstrued the charge. Even if the employee hadapplied for medical leave and his leave had been regularised, that does https://hcservices.ecourts.gov.in/hcservices/ not absolve the employee of informing the Bank about his absence, so thatalternative arrangements could immediately be made. It is also furthersubmitted that the Tribunal was wrong in holding that the charges framedare vague and general. Therefore, it is submitted that the award passedby the Tribunal is wrong, illegal, without basis and justification. It isalso alternatively submitted that the second respondent is not entitled tothe backwages as there is no evidence or material furnished that thesecond respondent was not employed during the relevant period. 4.Learned counsel appearing for the second respondent submittedthat charges are vague and general. Further it is submitted that thefinding of the Enquiry Officer was totally perverse and the enquiryconducted was not fair and proper. The Tribunal had considered all therelevant materials and the reasons are based on valid materials andevidence and hence the order of the Tribunal is in accordance with law.The issue involved also is a pure question of fact and hence the writpetition itself is liable to be dismissed. 5.Heard the counsel. The second respondent was working asSweeper-cum-Messenger at T.Maraiyur Branch of the petitioner-Bank. On07.07.1988, the Bank gave him a show cause notice-cum-charge on threegrounds. On enquiry the Officer found the second respondent guilty of thefirst two charges only and in respect of the third charge, the secondrespondent was exonerated. The first two charges are as follows:-a) he was involved in immoral activities and he misbehaved with a lady;b) he had been absenting himself frequently thereby causing inconvenienceto the bank and The first charge is that the second respondent was involved in immoralactivities and as a result of which the local Jamad evicted him from thevillage and his overnight stay at T.Maraiyur was prohibited thereby hedamaged the image of the Bank among the public. The Jamath had sent aletter marked as Ex.M.17 on 17.12.88. The charge Ex.M.14 has been framedon 07.07.1988, whereas the complaint was given on 17.12.1988. Hence, itis evident that the complaint had been obtained after framing of thecharge. However, the charge was for indulging in immoral activitieswhereas Ex.M.17 was for quarelling with the inmates of a house afterhaving consumed liquor. Mere quarrelling with the inmates of a housecould not be considered to be an immoral act. Also, there is no findingor evidence produced by the petitioner-Bank that he is addicted to liquorand causes nuisance to the public. Even for the said act of quarrellingwith the inmates of the house after having consumed liquor by the secondrespondent, neither the members nor anybody else who witnessed theoccurrence had been examined before the Enquiry Officer. Hence it isapparent that there are no witnesses. The Enquiry Officer merely relied onthe letter of the Jamath. It is also seen from the finding of theTribunal that originally three witnesses were proposed to be examined onthe side of the petitioner-Management, but however, all the threewitnesses were not examined during the enquiry. The two persons who were https://hcservices.ecourts.gov.in/hcservices/ examined on the side of the petitioner-Management in the enquiry areShri.A.Ramu, Senior Clerk-cum-Cashier and Shri.M.Soundara Nageswaran,Officer-in-charge of T.Maraiyur Branch of the petitioner-Bank. These twowitnesses are only officials of the Bank and they had no personalknowledge of what had happened regarding the first charge framed againstthe second respondent. It is also factually found that the Enquiry Officerhas not even stated the name with whom the second respondent hadquarrelled on that date. Mere drinking and quarrelling with the inmateswill definitely not amount to immoral activities and the counsel also hasnot produced any authority or case law to show that the stray incident ofdrinking and quarrelling with inmates will amount to immoral activities.The word "immoral" is defined in the Chambers Dictionary (New Edition) asfollows:-"inconsistent with accepted moral principles orstandards, wrong; evil, unscrupulous; sexuallyimproper; promiscuous, licentious, dissolute"P.Ramanatha Aiyar's Advanced Law Lexicon, 3rd Edition, 2005 defines theword "immoral" as follows:-"Contrary to public welfare; against public morals;morally wrong or evil; dissolute. 'IMMORAL' as defined in the Standard Dictionary, ishostile to the welfare of the general public"In the present case, there is no material or factual finding that thesecond respondent had the habit of drinking in public place or during theoffice hours. There is no clear finding whether the incident had takenplace or not, or the second respondent is an addict to liquor. There isno eye witness in respect of the second respondent taking liquor as wellas picking up quarrel with the neighbours. Whether it can be said thatdrinking occasionally or picking up quarrel amounts to immoral activities?The reasons and circumstances in which the quarrel occurred are notavailable on the records. There is also no evidence to show that thesecond respondent perpetually caused nuisance to the public. If thesecond respondent had perpetually caused nuisance to the public andindulged in drinking or taking drugs, then the first respondent would beright in stating that the second respondent had indulged in immoralactivities. In this case, no material or evidence available on record toshow how many incidents of drinking and quarrelling with the neighbourshad occurred, causing public nuisance. Also there is no eye witnesses toany of these incidents. Hence the Tribunal is right in holding that astray incident of drinking or quarrelling does not amount to immoralactivities or moral turpitude. Drinking in a public place or during theoffice hours is morally wrong and evil. If a person drinks at hisresidence and causes no nuisance to neighbours or public, it cannot besaid that he involves in immoral activities. The Tribunal had given afinding that there is no moral turpitude in the present case by relying onthis Court judgment in the case of Management of Tractors & FarmsEquipment Ltd. Vs. First Additional Labour Court, Madras and another,reported in 1982 II L.L.J. 403. In view of the factual finding both onlaw as well as the materials available on record, the Tribunal had come to https://hcservices.ecourts.gov.in/hcservices/ a right conclusion that the first charge is a vague one and also holdingthat mere drinking and picking up quarrelling will not amount to immoralactivities or moral turpitude. 6.The second charge is that the second respondent was habituallyabsenting himself from duty. Ex.M.1 to M.10, M.13, M.15, M.16 and M.18are all documents filed to prove the habitual absence of the secondrespondent. Ex.M.18 pertains to unauthorised absence on various dates bythe second respondent. It is seen from the records that except hisoverstay on 25.04.1988 on all other occasions the second respondent hadsent leave letters and the same have been accepted by the Management.Also it is seen that his medical leave applications have been ratified bythe management. The only grievance of the petitioner is that the secondrespondent had failed to inform his absence well in advance for gettingpermission of the authorities concerned. The medical leave is anexception and one cannot predict as to when one will fall sick. It isalso seen from the records that most of the leave applications submittedby the second respondent were on urgent contingencies and therefore thereason of falling sick cannot be taken as habitual absence. Once the Bankconsidered the leave and the leave was sanctioned by the petitioner-Management, they cannot go back by accusing the employee, the secondrespondent, that he had been habitually absenting himself from duty. Whenthe second respondent applied for medical leave, the same cannot beconsidered as habitual absence and there is bereft of particulars withregard to the second charge also. Hence the Tribunal is right in holdingthat the second charge is not proved. 7.In respect of the alternative argument advanced by the counselfor the petitioner, the petitioner-Bank has to pay backwages for theperiod from 30.08.1989 to 04.04.1997. The said backwages works out toapproximately Rs.95,000/-. The second respondent, for all these years,could not have remained totally unemployed and also no evidence that hewas gainfully employed. The counsel appearing for the second respondentalso is not in a position to give details regarding the non-employmentduring the period. It is also not a matter of right to claim the backwagesespecially when he has not worked during the relevant period. Keeping inview the doctrine of "NO WORK NO PAY" and also in the interest of justice,it would be appropriate to award a consolidated sum of Rs.50,000/- (RupeesFifty Thousand Only) towards backwages to the second respondent.8.In view of the foregoing reasons, the order of award of theTribunal is confirmed in respect of reinstatement, continuity of servicesand all other attendant benefits, except the backwages, which standsmodified as above. https://hcservices.ecourts.gov.in/hcservices/

9.The writ petition is disposed of with the above observations.No costs.kmSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Presiding Officer,Industrial Tribunal - Tamil Nadu,Chennai.+ One cc to Mr. N.G.R. Prasad, Advocate sR 22959MBs (co)sg 21/4/07 W.P.No.17968 of 1997 10.04.2007