The Management of South Indian Bank Limited v. The Deputy Commissioner of Labour & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.6.2009CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAandTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANWrit Appeal No.518 of 2009---1.The Management of South Indian Bank Limited, Head Office, SIB House, Mission Quarters, Thrissur-680 001.

The Management South Indian Bank Limited 40,New Scheme Road, Pollachi, Coimbatore District. Both rep. by General Manager (Planning & Admn.) ... Appellants/PetitionersVs.1.The Deputy Commissioner of Labour (Appeals),Coimbatore.2.R.Visalakshi3.R.Manoranjitham (Minor rep. by (Guardian R.Visalakshi)

Minor R.Janarthanam (rep. by Guardian R.Visalashi). ... Respondents/RespondentsWrit Appeal has been filed under Clause 15 of the Letters Patent against the order of the learned Single Judge of thiscourt made in W.P.No.1726 of 1999 dated 19.01.2009. This W.P.filedunder Article 226 of the Constitution of India praying to issue a'writ of Certiorari' calling for the records of the 1st Respondent inTSE case No.11/95 and quash his order dated 29.9.98. For Appellants : Mr.Ravindran for M/s.T.S.Gopalan & Co https://hcservices.ecourts.gov.in/hcservices/ JUDGEMENTN.KIRUBAKARAN,J.This writ appeal has been filed against the order of the learnedSingle Judge dated 19.01.2009 made in W.P.No.1726 of 1999 confirmingthe order of the first respondent in TSE Case No.11/1995 dated29.9.1998. 2. The facts of the case are as follows: The appellant is the management of South Indian Bank Limitedhaving its head quarters at Thrissur, Kerala State.

Before the first respondent appellate authority, on behalfof the respondents 2 to 4, about 10 documents were marked as ExhibitsA1 to A10 and about 27 documents were marked on behalf of theappellant as Exhibits R1 to R27. After meticulously considering thematter, the first respondent appellate authority set aside the order https://hcservices.ecourts.gov.in/hcservices/ of termination dated 6.3.1995 issued to Rajavelu (the husband of thesecond respondent and father of the respondents 3 and 4) on theground that the charges made against him were to be proved indomestic enquiry, except the charge No.7 and accordingly, themanagement was directed to reinstate the officer back in service withcontinuity of service, full backwages and all other attendantbenefits.

Challenging the order of the first respondent appellateauthority dated 29.9.1998, the writ petition No.1726 of 1999 wasfiled by the management on the ground that the appellate authorityshould not have ordered re-instatement by disagreeing with thefindings given by the enquiry officer, as there was no basis todisagree with the findings of the Enquiry officer. Moreover thecharges made against the officer were very grave and serious innature. Hence the order of the appellate authority should be setaside. Moreover the appellant also alleged that the delinquentofficer was under the influence of alcohol and had threatened some ofthe customers of the bank, which would go against the interest of thebank.

The learned Judge after hearing both parties dismissedthe writ petition finding that the appellate authority had gone intothe evidence and the records and came to the independent conclusionthat the charges were not proved against the officer and there was nonecessity to interfere with the order. The learned Judge also reliedupon a judgement of this court reported in 2007 (2) L.L.N 550(I.K.Lodi v. Appellate Authority under the Tamil Nadu Shops and Establishments Act, Chennai and another).

Challenging the said order of the Single Judge passed on19.1.1999, the above writ appeal has been preferred by the Management. Heard Mr.R.Ravindran, the learned counsel for theappellants and perused the records.

The learned counsel strenuously argued that the evidencerequired in proof of charges in domestic enquiry is one ofpreponderance of probabilities, whereas the appellate authority wentinto the minute details and disagreed with the enquiry officer andhence the appellate authority's order has to be set aside. He furthersubmitted that the findings of the enquiry officer cannot beinterfered with merely because an another view from that enquiryofficer is possible. The findings cannot be set aside unlessotherwise it is perverse. Even for setting aside the findings, cogentfindings have to be given as to why he was reversing the findings ofthe enquiry officer. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel stressed that the appellant being abank, the delinquent officer should have behaved properly with thecustomer, since the service of bank is customer oriented one. Anylenient view in the matter of deviation of normal behaviour of theofficer would tell upon administration of the bank.

No doubt, the enquiry officer's findings cannot be setaside unless it is perverse that is to say no evidence or lack ofevidence. Even as per contention of the bank, the appellate authoritywent into details of the charges meticulously, which is proved byground No.4. The appeal ground No.4 reads as follows: "4. A reading of the impugned order of thefirst respondent clearly disclose that he was looking forclinching evidence, as standard of proof required incriminal proceedings. In other words, the yardstickadapted by the first respondent to determine the proof ofcharges levelled against the delinquent officer is farbeyond proof of preponderance of probability. Hence, theimpugned order of the first respondent instead of beingset aside, it was erroneously upheld by the learnedSingle Judge. "Hence the appellate authority's order is based on facts and evidenceand the same cannot be faulted.

As per Section 41 of Tamil Nadu Shops and Establishments Act 1947, the decision of the appellate authority, shall be final and binding the authorities. A perusal of grounds ofappeal filed by the appellants would demonstrate that the appellateauthority had looked into the oral and documentary evidence in adetailed manner. Moreover the appellate authority has given detailedfindings as to how the first appellate authority disagreed with thefindings of the enquiry officer and gave an independent elaboratecogent reason for setting aside the order of dismissal.

The learned Single Judge also disagreed withappellant's case and dismissed the writ petition relying upon theaforesaid judgement viz. 2007 (2) L.L.N 55 which is extracted asfollows: "We have already pointed out that Sub Sec. (3) of S.41 of the Act makes it clear that the decision ofthe appellate authority shall be final and binding on boththe parties. Further, it is not the case of the bank thatthe appellate authority has not looked into the oral anddocumentary evidence, on the other hand, the authorityconsidered each charge with reference to the oral anddocumentary evidence let in by both sides and on proper https://hcservices.ecourts.gov.in/hcservices/ appreciation of the materials, arrived at a specificconclusion, in such circumstances, as observed in thedecision reported in 1999(2) L.L.M.74 (vide supra) it isnot a case of no evidence or perverse finding forinterference by the learned Judge, exercising jurisdictionunder art.226 of the Constitution of India. "

Under Article 226 of the Constitution of India, the question of fact cannot be determined as stated above. Thequestion of fact was already decided by the appellate authority andthe same was confirmed by the learned single judge. Hence there cannot be any interference by this court in appeal. The law has alreadybeen laid down by the Supreme Court with regard to exercise of powerunder Articles 226 and 227 of the Constitution of India.

The Hon'ble Supreme Court in the matter of Rahimal(Dead) by LRs and another versus Deputy Director of Consolidation andothers reported in (2002) 10 SCC 94 has held that the findingrecorded and affirmed by the High Court is the finding of fact and itcannot be assailed in the appeal. Similarly, in this case, thefindings given by the appellate authority and confirmed by thelearned Single Judge of this court, is a finding of fact and cannotbe interfered with by this court in Appeal.

In Ranjeet Singh vs. Ravi Prakash reported in (2004) 3SCC 682, it has been held by the Supreme Court that the High Courtcannot act like an appellate court and re-appreciate or re-evaluatethe evidence while exercising Certiorari or Supervisory jurisdiction. This court cannot act as an appellate forum over the judgement of thelower authority under Article 226 of the Constitution of India.

The Apex Court in the case reported in ShamshadAhmad and others vs. Thilak Raj Bajaj (Deceased) through LRs reportedin (2008) 9 SCC has held as follows: "38. Though powers of a High Court under Article226 and 227 are very wide and extensive over all courts and Tribunals throughout the territories in relation to which itexercises jurisdiction, such powers must be exercised withinthe limits of law. The power is supervisory in nature. TheHigh Court does not act as a court of appeal or a court oferror. It can neither review nor re-appreciate, nor re-weighthe evidence upon which determination of a subordinate Courtor inferior tribunal purports to be based or to correcterrors of fact or even of law and to substitute its owndecision for that of the inferior court or Tribunal. Thepowers are required to be exercised most sparingly and onlyin appropriate cases in order to keep the subordinate courtsand inferior tribunals within the limits of law. " https://hcservices.ecourts.gov.in/hcservices/

In D.N.Bonerji vs. P.R.Mukherjee reported in AIR 1953SC 58, the Hon'ble Supreme Court laid down that unless there wasmiscarriage of justice or flagrant violation of law calling forintervention, it was not for the High Court under Article 226 & 227of the Constitution to interfere. The above principle of law wasrelied on and approved by the Supreme Court in Chandavarkar SitaRatna Rao vs. Ashalata S.Guram reported in (1986) 4 SCC 447 (Page 460para 20):"It is true that in exercise of jurisdiction under Article 227 of the Constitution, the High Court would gointo the question of fact or look into the evidence ifjustice so requires it, if there is any misdirection in lawor a view of fact taken in the teeth of preponderance ofevidence. But the High Court also should decline toexercise its jurisdiction under Article 226 and 227 of the Constitution to look into the fact in the absence of clearand cut down reasons where the question depends upon theappreciation of evidence. The High Court should notinterfere with finding within the jurisdiction of theinferior tribunal except where the findings were perverseand not based on any material evidence or it resulted inmanifest injustice. "

The appellant has to make out an extraordinary casebefore this court to interfere with the findings of the facts bydemonstrating through evidence, both oral and documentary, as to howthe appellate authority and learned single judge have not consideredadmissible evidence and considered inadmissible evidence andappreciated the facts properly so as to warrant interference by thiscourt. The appellant has to make out a case with concrete materialsthat the findings reached by the first respondent appellate authorityis perverse and based on no evidence. As stated above, Judicialscrutiny/Judicial review under Article 226 is very limited and itshould be exercised only when the situation/facts warrant, whereasin this case, the appellant has not made out any ground to interferewith the findings of the learned judge, affirming the order of theappellate authority to reinstate the officer.

Apart from the above reasonings, the delinquentofficer passed away during pendency of the appeal before the firstrespondent and the appellant has been fighting against the legalrepresentatives of the deceased officer. In those circumstances, as amagnanimous employer, the mighty Bank should, on its own, have comeforward to settle the matter with the LRs of deceased employeeliberally, which is expected of a fair and reasonable Bankmanagement. We hope the bank would act in the manner assuggested above. https://hcservices.ecourts.gov.in/hcservices/

In the light of the above, the writ appeal isdismissed. However there will be no order as to the costs. Consequently connected M.P.No.1 of 2009 is also dismissed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vkToThe Deputy Commissioner of Labour(Appeals),Coimbatore.+ 1 CC To Mr.T.S.Gopalan, Advocate SR NO.16924 Judgment inW.A.No.518 of 2009CK {CO}TP/23.6.2009.