High Court · 2012

In the High Court of Judicature at MadrasDated :: 13.08.2012CoramThe Honourable Mr. Justice C.T. SELVAMW.P.No.10172 of 20061.T.Andal2.T.Amudharaj... Petitioners Vs1.Central Government Industrial Tribunal cum Labour Court Rep. by its Presiding Officer Shastri Bhavan, Nungambakkam Chennai.2.Deputy General Manager State Bank of India Zonal Office Tiruchirappalli.3.Assistant General Manager Region II, State Bank of India, Mc.Donalds Road, Tiruchirappali 620 001.... Respondents PRAYER: Writ Petition has been filed under Article 226 of theConstitution of India to issue a writ of certiorarified mandamuscalling for the concerned records from the first respondentIndustrial Tribunal and to quash the award passed by the firstrespondent Industrial Tribunal dated 07.06.2005 in I.D.No.298 of2004 and consequently direct the second and third respondent bank topay full back wages, continuity of service and all other attendantbenefits till the date of death of C.Thanigachalam to the first andsecond petitioner. For Petitioners: Mr. Balan HaridasFor Respondents: Mr.S.Kanniah for R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E RPetitioners are the wife and son of one C.Thanigachalam, nowdeceased, who was employed as Armed Guard/Assistant (A/c) with thesecond respondent. In respect of certain alleged wrong doing of thesaid employee a charge memo dated 03.09.1999 was issued informing asfollows:"i) On 25.06.98, when you were working as Assistant(Accts./Cash) at the Branch, you unauthorisedly withdrew asum of Rs.2,000/- (Rupees Two thousand only) from theSavings Bank Account No.11/2844 of Shri G.George Williamby forging his signature on the withdrawal slip andmisappropriated the amount.You have thus fraudulently withdrawn a sum ofRs.2,000/- from the aforesaid Savings Bank Account byforging the signature of the Account holder on thewithdrawal slip and misappropriated the amount.Your above act of fraudulent withdrawal of a sum ofRs.2,000/- from the SB Account No.11/2844 of Shri G.GeorgeWilliam maintained at the Branch by forging the Accountholder's signature on the relative withdrawal slip andmisappropriation of the said amount, if proved, wouldamount to an act prejudicial to the interest of the Bankand hence a "gross misconduct" in terms of para 521 (4)(j) of Sastry Award read with para 18.28 of Desai Award.ii) Out of the amount of Rs.2,000/- so withdrawn byyou in a fraudulent manner and misappropriated by you asstated supra you remitted back into the SB AccountNo.11/2844 of Shri G.Geroge William a sum of Rs.1,000/-(Rupees One thousand only) on 04.01.99 by preparing therelative credit voucher and signing the same as theremitter of the amount.You have thus misappropriated the said sum ofRs.1,000/- out of the toal sum of Rs.2,000/- (whichlegitimately belonged to Shri G.George William, and waslying in his SB Account No.11/2844 with the Branch) whichwas fraudulently withdrawn by you on 25.06.98 by forgingthe Account holder's signature on the withdrawal slip dt25.06.98, for a total period of 193 days (i.e frin25.06.98 to 03.01.99).Your above act of misappropriating the amount ofRs.1,000/- out of the total sum of Rs.2,000/- fraudulentlywithdrawn by you through forged withdrawal slip dt.25.06.98 from the SB Account No.11/2844 of Sgru G.GeorgeWilliam, customer of the Branch, for a period of 193 days,if proved, would amount to an act prejudicial to theinterest of the Bank and hence a "gross misconduct" interms of para 521 (4) (j) of Sastry Award read with para https://hcservices.ecourts.gov.in/hcservices/

18.28 of Desai Award.iii) You remitted back, on 17.02.99, a sum ofRs.1,000/- (Rupees One thousand only) into the SB A/c.No.11/2844 of Shri G.George Willaim maintained at theBranch, out of the total sum of Rs.2,000/- fraudulentlywithdrawn by you through forged withdrawal slip dt25.06.98 from the SB Account No.11/2844 of Shri G.GeorgeWilliam as stated above, by preparing the relative creditvoucher for Rs.1,000/- and signing the same as theremitter of the amount.You have thus misappropriated the said sum ofRs.1,000/- out of the total sum of Rs.2,000/- (whichlegitimately belonged to Shri G.George William, and waslying in his SB Account No.11/2844 with the Branch) whichwas fraudulently withdrawn by you on 25.06.98 by forgingthe Account holder's signature on the withdrawal slipdt.25.06.98, for a total period of 237 days (i.e from25.06.98 to 16.02.99).Your above act of misappropriating the amount ofRs.1,000/- out of the total sum of Rs.2,000/- fraudulentlywithdrawn by you through forged withdrawal slip dt.25.06.98 from the SB Account No.11/2844 of Shri G.GeorgeWilliam, customer of the Branch, for a period of 237 days,if proved, would amount to an act prejudicial to theinterest of the Bank and hence a "gross misconduct" interms of para 521 (4) (j) of Sastry Award read with para18.28 of Desau Award.iv) When you were working as Assistant (Accts./Cash)at the Branch, during January 1998, before the pPongalfestival, you failed to account for in the Branch booksthe amount of Rs.1,900/- (Rupees One thousand nine hundredonly) received by you at your cash counter from one ShriA.Pachaiyappan, a customer having Agricultural Gold LoanAccount No.14/379 at the Branch, for credit of his aboveloan account and misappropriated the amount.You have thus failed to account for n the Branchbooks the amount of Rs.1,900/- remitted at your cashcounter by Shri A.Pachaiyappan, a customer of the Branch,for credit of his Agricultural Gold Loan Account No.14/379and misappropriated the amount.Your above act of not accounting for in the Branchbooks the amount remitted by a customer of the Branch asstated above and misappropriating the amount withoutcrediting the same into the AGL A/c No.14/379 of ShriPachaiyappan, if proved, would amount to act prejudicialto the interest of the Bank and hence a "gross misconduct"in terms of para 521 (4) (j) of Sastry Award read wutgoara 18.28 of Desai Award.v) Eventhough you did not credit the amount of https://hcservices.ecourts.gov.in/hcservices/ Rs.1,900/- (Rupees One thousand nine hundred only)remitted at your cash counter during January 1998, beforethe Pongal festival, by Shri A.Pachaiyappan, havingAgricultural Gold Loan a/c No.14/379 at the Branch, forcredit of his above loan account, you made unauthorisedentries in the relative Gold Loan Memo Card as though theamount has been received by the Bank and has beenaccounted for in its books, but without mentioning thereinthe date of remittance of the above mentioned amount.You have thus made the above unauthorised, extraneousentries in the Gold Loan Memo Card pertaining to theAgricultural Gold Loan Account No.14/379 of Shri A.Pachaiyappan, without mentioning therein the actual dateof remittance of the said Rs.1,900/- and thereby causedthe customer to believe that the remittance has been dulyaccounted for in the Bank's books with an intention tomisappropriate the amount without crediting the same intothe loan account of the above borrower.Your above act of making unauthorised, extraneousentries in the Gold Loan Memo Card as stated above with anintention to defraud the Bank as well as the customer andto misappropriate the remittance made by ShriPachaiyappan, if proved, would amount to act prejudicialto the interest of the Bank and hence a "gross misconduct"in terms of para 521(4) (j) of Sastry Award read with para18.28 of Desai Award.vi) You handed over, on 22.01.98, the sum ofRs.1,900/- (which was received by you at your cash counterat the branch during January 1998, before the Pongalfestival, from Shri A. Pachaiyappan, customer of theBranch having Agricultural gold Loan A/c No.14/379, asstated supra) to Shri Pachaiyappan when called at theBranch to close his gold loan account No.14/379You have thus returned to the customer, ShriA.Pachaiyappan, the sum of Rs.1,900/- misappropriated byyou during January 1998, before the Pongal festival, asstated above, only on 22.01.98 when he called at theBranch to close his gold loan account. You have thusmisappropriated the amount of Rs.1,900/- given to you bythe above customer for being credited to his AGL A/c.No.14/379 for a period up to 21.01.98.Your above act of misappropriating the amount ofRs.1,900/- given to you by the above customer for creditof his loan account,before the Pongal festival of 1998without crediting the same to the said loan account on thesame day and returning it to the customer only on 22.01.98when he called at the Branch to close his agriculturalgold loan account thus misappropriating the amount for aperiod up to 21.01.98, if proved, would amount to an act https://hcservices.ecourts.gov.in/hcservices/ prejudicial to the interest of the Bank and hence a "grossmisconduct" in terms of para 521 (4) (j) of Sastry Awardread with para 18.28 of Desai Award.Vii) you made unauthorised, extraneous entries in theGold Loan Memo Card pertaining to the Agricultural GoldLoan A/c No.14/415 of Shri M.Puitharaj at the Branch,without mentioning therein the date of remittance, asthough an amount of Rs.1,000/- has been remitted to thecredit of the above loan account eventhough no suchremittance has been accounted for in the Branch books.You have thus acted in a negligent manner and havemade the above unauthoriesd, extraneous entries in theMemo Card pertaining to the AGL A/c. No.14/415 withoutmentioning therein the date of remittance and withoutverifying whether the amount has been accounted for in theBranch books and thereby failed to protect the interest ofthe Bank.Your above act of making the unauthorised, extraneousentries as stated supra and your negligence in notverifying (before making the above entries) whether therewas actual remittance of the said amount into the Bank ornot and thereby failing to protect the Bank's interest,if proved, would amount to an act of "gross misconduct" interms of para 521 (4) (j) of Sastry Award read with para18.28 of Desai Award.Viii) you made unauthorised, extraneous entries inthe Gold Loan Memo Card pertaining to the AgriculturalGold Loan A/c No.14/416 of Smt P. Malliga at the Branch,without mentioning therein the date of remittance, asthough an amount of Rs.1,000/- has ben remitted to thecredit of the above loan account eventhough no suchremittance has been accounted for in the Branch books.You have thus acted in a negligent manner and havemade the above unauthorised, extraneous entries in theMemo Card pertaining to the AGL A/c No.14/416 withoutmentioning therein the date of remittance and withoutverifying whether the amount has been accounted for in theBranch books and thereby failed to protect the interest ofthe Bank.Your above act of making the unauthorised, extraneousentries as stated supra and your negligence in notverifying (before making the above entries) whether therewas actual remittance of the said amount into the Bank ornot and thereby failing to protect the Bank's interest, ifproved, would amount to an act of gross negligenceinvolving the Bank in serious loss and hence a "grossmisconduct" in terms of para 521 (4) (j) of Sastry Awardread with para 18.28 of Desai Award.2. You are advised to submit your explanation in https://hcservices.ecourts.gov.in/hcservices/ writing for the above charges within 15 (fifteen) daysfrom the date of receipt of this letter failing which itwill be construed that you have no explanation to offerand the matter will be proceeded with accordingly.3.Please acknowledge with date the receipt of thisletter on the duplicate thereof."Thanigachalam did not offer any explanation in answer to theshow cause notice. An enquiry officer was appointed to probe intothe charges framed against him and enquiry proceedings were dulyconducted. The enquiry officer held that the charges i to iii and vwere proved and the other charges were not. Concurring with thefinding of the Enquiry officer the disciplinary authority imposed apunishment of penalty of discharge from service by an order dated05.07.2001. The said Thanigachalam preferred an appeal on13.08.2001, before the Appellate Authority and the same wasdismissed by an order dated 12.08.2002. There against Thanigachalammoved the Industrial Tribunal in I.D. No.298/2004 which confirmedthe finding of the Appellate Authority. During the pendency of thedispute before the Industrial Tribunal, Thanigachalam died and thepetitioners before us were impleaded as parties. On dismissal of theI.D.No.298 of 2004, under orders dated 07.06.2005 the petitionersare before us by way the present writ petition.2. Heard the learned counsel for the petitioner and the learnedcounsel for the respondents. 3. The contention of learned counsel for the petitioner is thatthere absolutely is no material in support of the charges. Thecomplainant by name G.George William relating to whose account thealleged irregularities are said to have been committed had not beenexamined in the course of the domestic enquiry. No opinion of aforensic expert had been obtained regarding the forging thesignature of the said G.George William. Though PEX-15 was a allegedconfessional statement tendered by Thanigachalam, it had been deniedby Thanigachalam as having been obtained under coercion and duress.In the circumstances of the case, the Enquiry Officer had acceptedsuch contention and it is so seen from his finding regards chargeNo.vi wherein he had observed as follows:"Findings – Charge No vi.The presenting officer has not properly substantiatedthe date of incident. The delinquent employee has advisedin PEX-15 that the bas misappropriated Rs.1,900/- beforepongal festival. However, he has countered the same at thetime of enquiry. Therefore, I come to the conclusion thatthere is not proof of misappropriation and consider thatthe charge is not proved."Perusal of the enquiry report would show that the EnquiryOfficer had not relied on exhibit PEX-15 in support of any of the https://hcservices.ecourts.gov.in/hcservices/ charges. The Disciplinary Authority had confirmed the finding of theEnquiry Officer. While so, the Appellate Authority fell into graveerror in placing his conclusions and dismissing the appeal of thepetitioner primarily on acceptance of PEX-15. The same error hadbeen carried over by the Tribunal.4. As regards charge no V it is contended by learned counselthat the same cannot stand when charges iv and vi which deal withthe Gold Loan Memo Card have not been held proved. Charge V merelywas consequential to charges iv and vi and when such charges havebeen held not to have been proved, charge V would fall. It iscontended that the order of the Tribunal cannot be sustained. It isinformed that since Thanigachalam is no more the petitioners, in theevent of this court holding in their favour, would be entitled toback wages and pensionary benefits. 5. Decision of the Apex court in Commissioner of Police, Delhiand Others v. Jai Bhagwan, 2011 6 SCC 376 was relied upon to submitthat non examination of the complainant during the departmentalproceeding has denied the employee his right of cross examinationand that in the absence of definite/clear proof as could be affordedby the complainant, it would be erroneous to arrive at a finding ofguilt. Placing reliance on Roop Singh Negi vs. Punjab National Bankand Ors, (2009) 2 SCC 570, submission was made that mere productionof documents in the departmental enquiry is not sufficient and thatit is necessary to prove contents of the documentary evidence byexamining witnesses. The said decision also was relied upon toinform that the confession contained in PEX-15 had not been provedand infact it had not been relied upon by the Enquiry Officer andtherefore some evidence must have been brought on record which wouldestablish that the employee had indulged in wrong doing. Submittingthat Charge V was incidental to charges iv and vi and that when suchcharges fell so would charge V, learned counsel relied on thedecision of this Court in W.P.No.5484 of 1999 dated 13.02.2002wherein it had been observed as follows: 9. As rightly contended by the learned counsel forthe petitioner, when charge No.2, relating to connivancewith the plumbers in effecting connections in dwellingunits was held not proved, on the same set of facts andfindings, more particularly, on the fact that there wereonly three dwelling units when the petitioner inspectedthe premises, the said finding is equally applicable tocharge No.1 also and in view of the said finding, ChargeNo.1 shall be also held as not proved."One other submission of learned counsel is that it was not thecase of the petitioner that the domestic enquiry was not validly andproperly conducted. He would submit that PEX-15 the allegedconfession which had formed the basis of the Tribunal's finding ofmisconduct on the part of the petitioner was not in the nature of https://hcservices.ecourts.gov.in/hcservices/ further evidence placed before the Tribunal for the first time insupport of the action taken by the employer. The same was before theEnquiry Officer in the domestic enquiry and therein it was notconsidered appropriate to rely there upon. 6. In this regard learned counsel relied on the decision of theApex court Neeta Kaplish v Labour Court, 1999 (1) L.L.N.7, whereinit had been informed that some propositions had been laid down inDelhi Cloth and General Mills Company, Ltd v. Ludh Budh Singh, AIR1972 SC 1031, one of them being '(3) When the management relies on the enquiryconductedby it, and also simultaneously adduces evidencebefore the Tribunal, without prejudice it is plea that theenquiry proceedings are proper, it is the duty of theTribunal, in the first instance, to consider whether theenquiry proceedings conducted by the management are validand proper. If the Tribunal is satisfied that the enquiryproceedings have been held properly and are valid, thequestion of considering the evidence adduced before it onmerits no longer survives. It is only when the Tribunalholds that the enquiry proceedings have not been properlyheld, that it derives jurisdiction to deal with the meritsof the dispute and in such a case it has to consider theevidence adduced before it by the management and decidethe matter on the basis of such evidence. '7. Learned counsel for the respondent submitted that due andproper enquiry stands conducted in the matter and the petitioner hasnot disputed such fact. The disciplinary authority has arrived at areasoned finding which stands confirmed both by the AppellateAuthority as also the Tribunal. Therefore, it is not open to thiscourt to interfere. The charges against the employee were grave innature and the fact that he was employed in a bank made the sameonly more so. He would seek dismissal of the petition.8. On perusal of papers, consideration of the rival submissionsand the decision cited before us, we would state that the present isa case wherein neither the delinquent nor the management haddisputed the validity of the disciplinary proceedings. Therefore,the Tribunal in the absence of any finding that the enquiryproceedings had not been properly held, could not have consideredthe merits of the evidence adduced before it. The Tribunal's findingflow from PEX-15, which when read alone, would inform of admissionof delinquency by the employee. As rightly contended, PEX-15 was notin the nature of further evidence but had been before the Enquiryofficer. A perusal of the Enquiry officer's report informs that thesame has not been relied upon by him in support of any of hisfindings. In fact from the finding on charge no vi, it is apparentthat he had decided not to place reliance there upon. The https://hcservices.ecourts.gov.in/hcservices/ Disciplinary Authority had concurred with such finding. It is onlythe Appellate Authority who has based is finding on PEX-15 as hasbeen done by the Tribunal. In considering the appeal, the AppellateAuthority could not have fallen back on PEX-15 to support isconclusion, particularly where the enquiry officer has notconsidered it appropriate to rely thereupon. De hors PEX-15, thecharge against the employee would have to be held to have nosupport. The complainant in the case has not been examined insupport of the charges nor have the relevant documents beensubjected to forensic examination. In such circumstances, this writpetition shall stand allowed as prayed for. No costs. KprSd/-Asst. Registrar(Crl Side)//True Copy//Sub Asst. RegistrarTo1.The Presiding Officer Central Government Industrial Tribunal cum Labour Court Shastri Bhavan, Nungambakkam Chennai.2.The Deputy General Manager State Bank of India Zonal Office, Tiruchirappalli.3.The Assistant General Manager Region II, State Bank of India, Mc.Donalds Road, Tiruchirappali - 620 001.+ 1 cc to M/s. Balan Haridas, Advocate SR No.48585+ 1 cc to Mr. S. Kanniah, Advocate SR No.48619SAI(CO)SR/13.8.2012.orderinW.P.No.10172 of 2006