S. Gunasekar v. State Bank of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 27.09.2007 CoramThe Honourable Mr. Justice M. CHOCKALINGAMW.P. Nos.10925 and 10926 of 2007andM.P. Nos.1+1 and 2+2 of 2007S. Gunasekar... Petitioner in W.P. No.10925/2007M.V. Thangaswamy... Petitioner in W.P. No.10926/2007.vs..State Bank of India,rep. by its Assistant General Manager (S&S),(Disciplinary Authority)Personnel and Human ResourcesDevelopment SectionChennai Main Branch,No.86, Rajaji Salai,Chennai – 600 001.... Respondent in W.P. No.10925/2007State Bank of India,rep. by its Deputy General Manager,(Disciplinary Authority),Overseas Branch (MID-CORPORATE GROUP)No.86, Rajaji Salai,Chennai – 600 001.... Respondent in W.P. No.10926/2007Petitions under Article 226 of the Constitution of India,praying to issue a writ of of certiorari, after calling for theconcerned records from the respondent, quash the charge memos dated10.3.2007 and 7.3.2007 respectively issued by the respondents. For Petitioner : Ms. R. Kamatchi SundaresanFor Respondents : Mr. Somayajulu, Sr. counsel for Mr. S. Sethuraman https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERThe petitioners have brought forth these writ petitions,seeking to issue a writ of certiorari, to quash the charge memosdated 10.3.2007 and 7.3.2007 respectively issued by the respondentviz. the State Bank of India.2. Affidavits filed in support of the writ petitions andcounter affidavits are perused. The Court heard the learned counselappearing on either side.3. The case of the petitioners seeking the relief in shortis that the petitioner in W.P. No.10925/2007 is working as SpecialAssistant in the respondent-Bank, while the petitioner in W.P.No.10926 of 2007 is working as Deputy Manager. They are members ofState Bank of India Ambedkar Trade Union, which is a registered one.The petitioner in W.P. No.10925 of 2007 is the elected GeneralSecretary of the said Union. Quite often, huge chunk of money weremissing from the currency chest of various branches of therespondent-Bank in Tamil Nadu. Since this was frequently happening,the Union was representing to the respondent-Bank to take effectivesteps in order to curb this and take action against the concernedpersonnel, but resulted in vain. There were specific occasions whenthe amounts were found missing and all those occasions,representations were made. 4. In one particular occasion, there was a missing ofRs.2.0 lakhs from Salem main branch of the respondent-Bank. One Mr.Subramanian, who was the Deputy General Secretary in the saidBranch. Though there was a missing of around Rs.2.0 lakhs, withoutany action, he was transferred to Dharmapuri branch and again he wastransferred to Salem branch within a short time, but no action wastaken and he was allowed to retire. It was also noticed that therewas an excessive borrowings to the tune of Rs.50.0 lakhs, which hewas involved, but no action was taken. 5. Since no appropriate measures were taken, the Union, inorder to bring an end, pasted a poster, which reflected only thereal factual situation. A notice was issued by the respondent-Bankon 19.6.2006, threatening to take proceedings for defamation. Asuitable reply was given on 19.7.2006. A civil suit was filed bythe respondent-Bank in C.S. No.132 of 2007, claiming damages ofRs.11.0 lakhs. Though petition for interim injunction was filed,the same was not granted. Since no interim injunction was granted,being disturbed by the same, the respondent has issued charge memoson the petitioners on 10.3.2007 and 7.3.2007 respectively callingfor their explanations. Under such circumstances, these writ https://hcservices.ecourts.gov.in/hcservices/ petitions have been brought forth by the petitioners before thisCourt.6. Advancing the arguments on behalf of the petitioners,learned counsel would submit that a legal notice was issued on19.6.2006. The same was replied on 19.7.2006. What are all foundin the posters pasted are not only bona fide but also true. It didnot intend to defame anybody and not a defamatory statement.Following the same, a show-cause notice was issued on 19.6.2006 andthe same was replied on 19.7.2006, but the Bank was not satisfiedwith the same and filed a suit in C.S. No.132 of 2007 claimingdamages of Rs.11.0 lakhs. The suit was filed on 12.1.2007 againstthese petitioners and others.7. While the matter stood thus, the respondent-Bank issuedcharge memos, containing four charges, on 10.3.2007 and 7.3.2007respectively to the petitioners. In the charge memos, there is nospecific finding of violation of any particular rule or regulation.Once they have exercised their option of filing a suit for recoveryof damages, it would not be proper for the Bank to proceed with thedisciplinary action.8. Learned counsel would further add that once the contentsof the charge memos are exactly same as the factual averments in thecivil suit, it would not be fit and proper for the respondent-Bankto issue charge memos and calling for explanation and proceed withthe same. Hence both the charge memos have got to be quashed.9. Contrary to the above contentions, learned counsel forthe respondent-Bank would submit that in the instant case, it is anadmitted position that posters were pasted and it is also admittedthat it is the collective act of the union. But one of thesepetitioners was Union Secretary and other petitioner was erstwhilePresident. Originally on 19.6.2006, a legal notice was issued andthe writ petitioners gave untenable reply and a show cause was alsoissued on 30.8.2006 and 20.11.2006 respectively, which brought forthreply on 27.9.2006 and 4.1.2007 respectively. It was not the answerfor the show-cause notice. 10. Thereupon, the respondent-Bank filed a suit in C.S.No.132 of 2007 for recovery of damages. It was only in respect ofthe tortious act committed by the petitioners, but what were issuedare the charge memos containing four charges, which would be theoutcome of the violation of the regulations of the Bank and thus thecivil suit has nothing to do with the present charge memos. Sincethey are independent and separate, action should be taken inaccordance with law. There is no bar or ban either for issuance ofcharge memo or for taking internal action, pursuant to whichconducting of domestic enquiry. Hence, both the writ petitions have https://hcservices.ecourts.gov.in/hcservices/ got to be dismissed.11. The Court paid its anxious consideration on thesubmissions made by either side. After doing so, the Court is ofthe considered opinion that both the writ petitions do not carry anymerit whatsoever. It is not in controversy that certain posterswere pasted alleging that there was missing of money in differentbranches of the respondent-State Bank of India through out theState. According to the respondent-Bank, all these allegations wereintended to impute the reputation of the Bank. According to thepetitioners, they have claimed that they are not responsible for thesame and the posters did not contain any defamatory statement andthe contents in the posters are bona fide and true. 12. Thus, the Court does not want to go into the question,whether these allegations as contended by the respondent-Bank aredefamatory or as contended by the writ petitioners are bona fide andtrue, which can be brought into only by way of appreciation ofevidence in this regard. It is not in controversy that a legalnotice was issued on 19.6.2007 by the respondent-Bank, which broughtforth reply on 19.7.2006. A show cause notice was also issued on30.8.2006 and 20.11.2006 respectively, which resulted in reply on27.9.2006 and 4.1.2007 respectively.13. While the matter stood thus, the respondent-Bank hasfiled a suit in C.S. No.132 of 2007 making a demand of damages ofRs.11.0 lakhs. Apart from this, now the charge memos have beenissued against both the petitioners where the charges are asfollows:-"Shri S. Gunasekar, Special Assistant,Chennai Main Branch, Chennai was reported to havecommitted certain irregularities as per theArticles of Charge detailed below:-Charges(i)Shri S. Gunasekar and others haveunauthorisedly printed and displayed postersdetrimental to the interest of the Bank.(ii)The posters displayed by Shri.S.Gunasekarand others contain defamatory statements whichare prejudicial to the interest of the Bank.(iii)The posters displayed byShri.S.Gunasekar and others contain a false anddefamatory allegations against the entireofficers – staff and management.(iv)Shri S. Gunasekar and others divulged theinternal matters of the Bank with ulterior motiveand malafide intentions during the pendency ofthe investigation/departmental action by the https://hcservices.ecourts.gov.in/hcservices/ Bank, by displaying the said posters and thuscaused damage to the reputation of the Bank.Shri M.V. Thangasamy, Officer, MMGS II,Overseas Main Branch, Chennai was reported tohave committed certain irregularities as per theArticles of Charge detailed below:-Charges(i)Shri M.V. Thangasamy and others haveunauthorisedly printed and displayed postersdetrimental to the interest of the Bank.(ii)The posters displayed by Shri.M.V.Thangasamyand others contain defamatory statements whichare prejudicial to the interest of the Bank.(iii)The posters displayed byShriM.V.Thangasamy and others contain a false anddefamatory allegations against the entireofficers – staff and management.(iv)Shri M.V. Thangasamy and others divulged theinternal matters of the Bank with ulterior motiveand malafide intentions during the pendency ofthe investigation/departmental action by theBank, by displaying the said posters and thuscaused damage to the reputation of the Bank."14. A reading of the charge memos would clearly indicatethat the acts alleged to have been committed by them wasirregularities as per the Articles of Charges. At this juncture,the contention put forth by the learned counsel for the petitionersthat already a civil suit has been filed making a demand of Rs.11.0lakhs as damages and on the same set of facts, the charge memo havebeen issued and hence, once the respondent-Bank exercised its optionby initiating a civil suit for damages against the petitioners itwould not be proper on their part to issue charge memos, thoughattractive, will not stand scrutiny of law for the simple reasonthat there was no ban of bar in law for the alleged act committed bythe employees, though civil suit or criminal case would lie toinitiate proceedings on the departmental side. 15. Further it has got to be made clear that insofar as thecivil suit what is now filed by the respondent-Bank is concerned,the said suit is filed only for recovery of damages for the allegedtortious act committed by the petitioners and others, which was acivil liability. Insofar as charge memos are concerned, accordingto the respondent-Bank, the same were issued for violation of rulesand regulations of the Bank. They are independent. Merely becausecivil suit has been filed by the respondent-Bank for recovery ofdamages, which has to be proved, there is no ban or bar for therespondent-Bank to issue the charge memos as one in question. So https://hcservices.ecourts.gov.in/hcservices/ long as the petitioners are unable to show any ban or power forissuance of charge memos and proceeding with the domestic enquiry,there is no question of quashing the charge memos in question wouldarise. So long as it is established or shown by the petitioners,the Court is unable to agree with the findings of the petitioners orto quash the charge memos. The writ petitions fail and the same aredismissed. Consequently, the connected M.Ps. are also dismissed.No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa.To1. The Assistant General Manager (S&S), State Bank of India, (Disciplinary Authority) Personnel and Human ResourcesDevelopment Section Chennai Main Branch, No.86, Rajaji Salai, Chennai – 600 001.2. The Deputy General Manager,State Bank of India, (Disciplinary Authority), Overseas Branch (MID-CORPORATE GROUP) No.86, Rajaji Salai, Chennai – 600 001.+2ccs to M/s. Balan Haridoss, Advocate Sr 60226 & 60225+1cc to Mr.S.Sethuraman,Advocate Sr 60174PV(COkm/9.10.W.P. Nos.10925 and10926 of 2007 andconnected M.Ps