Bank of Baroda Employees Union v. Bank of Baroda

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.6.2008CORAM:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANWrit Appeal No.382 of 2008Bank of Baroda Employees Union,(Regn.No.2077)28, Rajaji Salai, Chennai-600 001. .. Appellantvs.1. Bank of Baroda, Rep. by its Asst. General Manager, 82, Bank Road, Coimbatore-18.2. The Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, Ist Floor, Shasthri Bhavan, Haddows Road, Chennai-600 006. .. RespondentsWrit Appeal filed U/C 15 of Letters Patent against the order ofthis Court dated 4.1.2008 in W.P.No.14233 of 2003.WP 14233/2003:This W.P.filed U/Art.226 of constitution of India praying to issuea Certiorarified Mandamus calling for the records from the SecondRespondent Industrial Tribunal relating to its Award dt.5.12.2002 inI.D.No.581/2001, quash the same and consequently direct the 1stRespondent Bank to reinstate the petitioner in Service with full backwages after adjusting the amounts paid towards the petitioner Terminalbenefits, continuity of service and other attendant benefits awardcosts.For appellant : Mr.S.VaidyanathanJUDGMENT(The Judgment of the Court was delivered by S.J.MUKHOPADHAYA,J)The delinquent Bank employee was charged by the Bank that he made https://hcservices.ecourts.gov.in/hcservices/ fictitious entries in a term loan account and also savings bank accountand had the benefit of enjoying the Bank fund, which is the money ofvarious constituents of the Bank, to an extent of more thanRs.30,000/-. That apart, he made certain manipulations in the currentaccount of one Tmt.Mangalam in the overdraft balance on one occasionand fictitious credit entry on another occasion. Similar such entrieswere made by the delinquent employee in respect of two other accounts,namely M/s.Sree Vinayaga Traders and M/s.Leelavathy Traders. On thoseoccasions, the amounts were more than Rs.5,000/-. Apart from the above,the delinquent is stated to have borrowed a sum of Rs.44,000/- from oneof the constituents of the Bank with a promise to re-pay the same bytendering two post-dated cheques, which promise was not duly kept bythe delinquent. Altogether, eight charges were levelled against him andon receipt of the show cause notice, he initially admitted charge Nos.1to 5, denied charge Nos.6 and 7 and with regard to charge No.8, whichrelated to borrowal made by him from one of the constituents of theBank, he stated that he would repay the amount, honouring his promise. 2. Being not satisfied, the Bank having initiated proceedings,vide charge memo dated 5.5.1997. The employee requested the Bank totreat the whole matter under paragraph 19.12(e) of the bi-partitesettlement and close the enquiry proceedings. On receipt of such reply,the Bank informed the employee that paragraph 19.12(e) can be invokedonly in cases where all the charges are admitted by the delinquentemployee. In this background, the employee, by subsequently reply, inhis letter dated 31.12.1997, admitted the guilt as was made in all thecharges. In view of the admission of the guilt, the Bank, after hearingthe employee, imposed major punishment of removal from service, whichon appeal, was confirmed.3. On dispute, the matter was referred to the Central GovernmentIndustrial Tribunal-cum-Labour Court, Chennai, which by its award,dated 5.12.2002, made in I.D.No.581 of 2001, affirmed the order ofpunishment. The Writ Petition against the award was also dismissed bythe learned single Judge, vide detailed impugned order dated 4.1.2008in W.P.No.14233 of 2003.4. Learned counsel for the appellant submitted that the admissionof guilt was conditional, as he admitted the guilt under paragraph19.12(e) of the bi-partite settlement. According to him, the punishmentof dismissal from service was uncalled for, in view of the conditionaladmission of the guilt. Learned counsel for the appellant referred tothe following decisions:(i) 2002 (6) SCC 470 (Harijana Thirupala vs. Public Prosecutor);(ii) 2004 (8) SCC 88 (Delhi Transport Corporation. vs. Shyam Lal); https://hcservices.ecourts.gov.in/hcservices/ (iii) 1986 (II) LLJ 443 (V.Radhakrishnan vs. Indian Bank) and(iv) 1985 (II) LLJ 296 (Natavarbhai S.Makwana vs. Union Bank of India & Others). 5. We have heard learned counsel for the appellant and perused therecords.6. In order to appreciate the issue in proper perspective,paragraph 19.12(e) of the bi-partite settlement requires extraction andit reads as follows:"19.12(e). An enquiry need not be held, if-(i) the misconduct is such that even if provedthe bank does not intend to award the punishment ofdischarge or dismissal; and(ii) the bank has issued a show cause noticeto the employee advising him of the misconduct andthe punishment for which he may be liable for suchmisconduct; and(iii) the employee makes a voluntary admissionof his guilt in his reply to the aforesaid showcause notice.However, if the employee concerned requests ahearing regarding the nature of punishment, such ahearing shall be given." 7. Admittedly, the present case does not fall under Clause (i) ofparagraph 19.12(e) of the bi-partite settlement, as the Bank neverintended to award lesser punishment than discharge or dismissal fromservice. From the show cause notice issued by the Bank to thedelinquent employee, it will be evident that the Bank never intimatedthat it will impose a particular punishment which is lesser thandischarge or dismissal from service and thereby, the present case doesnot also fall under Clause (ii) of paragraph 19.12(e). So far as thepresent case is concerned, it falls under Clause (iii) of paragraph19.12(e), underwhich, if the employee makes a voluntary admission ofhis guilt in his reply to the show cause notice, in such a case, noenquiry need be held and only after giving hearing to the concernedemployee regarding the nature of the punishment, such punishment can beimposed.8. From the admission of guilt as was made by the employee, itwould be evident that the admission is not conditional. He admitted thecharges. What he actually made conditional was that the enquiry neednot be held, as he wanted to derive the advantage of paragraph 19.12 https://hcservices.ecourts.gov.in/hcservices/ (e). Therefore, the only condition was that no enquiry was required tobe held. In spite of the same, if enquiry officer held any enquiry,that will not render the order of punishment illegal, as it is alwaysopen to the disciplinary authority to punish the delinquent employee ifguilt is admitted, without taking into consideration the enquiryreport. 9. So far as the judgments as referred to by the learned counselfor the appellant are concerned, none of them are applicable to thepresent case. The case of "Harijana Thirupala vs. Public Prosecutor",reported in 2002 (6) SCC 470, relates to criminal trial. Therein, anyfinding given with regard to the evidence cannot be applied to a caseunder service jurisprudence. 10. So far as the case of "Delhi Transport Corporation vs. ShyamLal" reported in 2004 (8) SCC 88, is concerned, the Supreme Courtobserved that the settled position of law is that admission is the bestpiece of evidence against the person making the admission. However, itis open to the person making the admission to show why the admission isnot to be acted upon. In the present case, no case has been made out onbehalf of the employee as to why his admission is not to be acted upon.11. The other decision is the judgment of this Court rendered by alearned single Judge in the case of "V.Radhakrishnan vs. Indian Bank"reported in 1986 (II) LLJ 443. That was a case in which the learnedsingle Judge held that even if the employee had admitted the charges,still, as per paragraph 19.12(e) of the bi-partite settlement arrivedat between the Bank and its employees, an enquiry has to be held onthose charges as the alleged admission has not been made after knowingthe nature of punishment to be imposed on those charges. It would be evident from paragraph 19.12(e) of the bi-partitesettlement that the said provision is specific which stipulates thecondition in which no enquiry need be held. Therefore, the question ofholding enquiry under paragraph 19.12(e) does not arise. If one orother charge is not admitted by the charge-employee, then in that case,paragraph 19.12(e)(iii) of the bi-partite settlement cannot be invoked.It is only when the guilt in respect of all the charges are admitted bythe employee, the said provision can be invoked. We accordingly hold that the judgment rendered by the learnedsingle Judge in the decision reported in 1986 (II) LLJ 443 (citedsupra) does not hold good in the eye of law.This apart, after knowing the nature of punishment, as theemployee never denied the allegations and intended for an enquiry underthe law, the employee cannot derive the benefit of the said judgment.12. Learned counsel for the appellant also relied on a judgment https://hcservices.ecourts.gov.in/hcservices/ of the learned single Judge of Gujarat High Court in the case of"Natavarbhai S.Makwana vs. Union Bank of India and others" reported in1985 (II) LLJ 296, wherein, the learned single Judge observed asfollows:"22. .... it is always necessary that thefactum of misconduct be established. Moreoverdisciplinary proceedings by the department are inthe nature of quasi-criminal proceedings-much moreso from the view point of consequences of suchproceedings. An employee may be visited with thepenalty of removal or dismissal from service whichwould be almost equivalent to economic deathsentence. Therefore, proof of the factsconstituting misconduct has got to be emphasised.Ordinarily, admission alone of the delinquentofficer cannot be regarded as sufficient proof ofmisconduct as well as the facts constitutingmisconduct."However, we are not inclined to accept such proposition of law, as itis settled law that in cases of admission of the guilt, it is alwaysopen for the disciplinary authority not to hold enquiry, apart from thefact that paragraph 19.12(e)(iii) of the bi-partite settlement isspecific in this regard.13. So far as the quantum of punishment is concerned, theIndustrial Tribunal as well as the learned single Judge have lookedinto the matter and came to the definite conclusion that the quantum ofpunishment is proportionate to the gravity of the charges. We are alsoof the same view.14. We find no merits in the Writ Appeal, which is accordinglydismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarcs https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding Officer,Central Government Industrial Tribunal-cum- Labour Court, Ist Floor, Shasthri Bhavan,Haddows Road, Chennai-600 006. +1cc to Mr.S.Vaidyanathan, Advocate Sr 29005CK (CO)km/20.6.W.A.No.382 of 2008