IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.7.2009 CORAM: THE HONOURABLE MR. JUSTICE R.SUDHAKAR W.P. No. 12638 of 2000 The Bank of India Staff Union, rep. By its General Secretary, V.N. Seshadri, No.46 Cathedral Road, Chennai.86. : Petitioner Vs. 1.The General Manager, Bank of India, South Zone, 46 Cathedral Road, Chennai.86. 2.The Industrial Tribunal, Tamil Nadu, Chennai.104. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the impugned award of the 2nd respondent Industrial Tribunal dated 2.7.98 passed in ID No. 20 of 1996 and to quash the same. For Petitioner : Mr. P. Premkumar For Respondents : Mr. N. Balakrishnan- R1 ORDER Challenging the Order of the Tribunal dated 2.7.1998 in I.D. No. 20 of 1996, the union has filed this writ petition on behalf of the delinquent employee, a bank cashier, who was dismissed from service on 27.4.1994. 2. The brief facts of the case are as follows:- On 3.3.1993, B. Thangaraj Gunalan was working as a cashier in Anna Nagar Branch, Bank of India, Madurai. There was a surprise verification at the instance of the Regional Office. The cash at the counter was counted in the presence of the Manager and it was found that there was a shortage of cash. The shortage was intimated to the delinquent employee and was asked to make good the shortage. He was also asked to give an explanation within three days. It appears that, on 6.3.1993, an explanation was given and the cash found to be https://hcservices.ecourts.gov.in/hcservices/ in shortage was also paid. Thereafter, on 8.6.1993, charges were framed against the said B. Thangaraj Gunalan for the misappropriation of the amount and an eqnuiry officer was appointed. In the enquiry, One B. Murali was examined as M.W.1 and Mrs. Visalam Seshamani was examined as M.W.2 on the side of the Management. In respect of the delinquent employee, One Boominathan was examined as D.W.1, N. Venkatesan was examined as D.W.2, Sri. Dhamodaran was examined as D.W.3 and Gunalan, charge sheeted employee was examined as D.W.4. On completion of enquiry, the enquiry officer found that the explanation given by the delinquent employee was not satisfactory and observed that there was a shortage of cash since 27.2.1993. The enquiry officer came to the conclusion that the allegations levelled against the charge sheeted employee has been proved and his conduct is prejudicial to the Bank. A show cause notice was issued calling upon the delinquent employee to show cause as to why, he should not be punished by way of dismissal from service. The explanation of the employee was considered and rejected and the order of dismissal came to be passed on 27.4.1993. The appeal filed was also rejected. Thereafter, the delinquent employee through the staff Association raised an industrial dispute in I.D.No. 20 of 1994. Before the Industrial Tribunal several issues were raised on the merits of the charge memo, challenging the findings in the departmental proceedings. 3. It appears that when the Tribunal decided to pass a final order, a memo was filed on 8.1.1998 where, in paragraph 2, it has been stated as follows:- " The petitioner submits that though several legal issues have been raised in the claim statement yet the petitioner would confine to the legal issue of proportionate punishment imposed on the workmen Sri. B.T. Gunalan. The petitioner submits that the punishment imposed on the said B.T. Gunalan is grossly disproportionate and this Court should interfere under Section 11 A of the I.D.Act 1947. It is therefore that the petitioner prays that this Honourable Tribunal may be pleased to permit the petitioner to confine this legal submission regarding the quantum of punishment under Section 11-A of the Industrial Dispute Act, so that justice be done." 4. The memo has been signed by the petitioner and his counsel. The memo has been recorded by the Tribunal in paragraph 8 of the award. It has been further stated in the award that even in the written argument submitted on behalf of the delinquent employee, the only prayer before the Industrial Tribunal was to interfere with the quantum of punishment under Section 11 -A of the Industrial Disputes Act and set aside the order of dismissal from service and to award lesser punishment. https://hcservices.ecourts.gov.in/hcservices/ 5. Section 11-A of the Industrial Disputes Act reads as follows:- " 11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter." 6. The learned counsel for the petitioner relied upon the following two decisions and pleaded that the quantum of punishment should be interfered with and reduced. (i)S. MURUGADASS – Vs. - STATE BANK OF INDIA ( 1997, 2, L.L.N. 1176) and (ii) PURJAB TOURISM DEVELOPMENT CORPORATION LTD., CHANDIGARH – Vs. - LABOUR COURT, AMRISTREAR & ORS. (1997, 1, LLN 462 ). 6. The Tribunal however placing reliance on the decision of the Apex Court reported in GM CN EMPLOYEES' UNION – Vs. - C.M.C. COLLEGE, VELLORE ASSOCIATION (AIR 1988 SC 37) came to the conclusion that in the case on hand, there was no justification for the Industrial Tribunal to interfere with the punishment imposed by the Bank for proved delinquency. In other words, the Tribunal came to the conclusion that the punishment of dismissal imposed is not disproportionate to the degree of guilt of the employee. To arrive at the conclusion, the Tribunal also relied upon the Karnataka High Court's Judgment in D.PADMANABHUDU & ORS. - Vs. - BANK OF INDIA reported in (1994, 85 FJR 277), in which case, the delinquent was also an employee of a Bank in custody of money and the Court felt that once the employer bank has lost trust in the employee and imposed stringent punishment, that should not be casually interfered https://hcservices.ecourts.gov.in/hcservices/ with by the Tribunal or the Courts. 7. In UNION BANK OF INDIA – Vs. - VISHWA MOHAN (AIR 1998, 3, SC 2311), the importance of absolute integrity in banking service was emphasised and the Apex Court refused to interfere with the order of dismissal and the relevant portion reads as follows:- " It needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice of account of non-furnishing of the inquiry report/findings to him." 8. The tribunal in this case, relying on the aforesaid decisions came to the conclusion that when the delinquent himself has accepted his guilt and has pleaded reduction only with regard to the quantum of punishment imposed. The Tribunal considering the nature of the work done by the delinquent viz., cashier in a bank and in view of the finding of guilt with regard to the charge of misappropriation of funds as a cashier, came to hold that there was no scope for reducing the punishment imposed. The Tribunal accepted the management's view that it had lost its confidence in the delinquent employee as the banking business is run on trustworthiness and integrity of the employees. Challenging this finding of the Tribunal, the present writ petition has been filed. 9. At the outset, the learned counsel for the petitioner relied upon the recent decision of the Apex Court reported in Bangaigaon Refinery & Petrochemicals Ltd. & Others – Vs. - Girish Chandra Sarma (2007) (7) S.C.C. 206) and stated that the High Court can re-appreciate the evidence and also interfere with the quantum of punishment. 10. The Apex Court decision cited above by the counsel for the petitioner (2007)(7) SCC 206) is a case, where one of the members of the price negotiation committee was charged with certain irregularities and on enquiry in accordance with the procedure prescribed, was imposed with the punishment of reversion and the same was challenged before the Singe Judge of Gauhati High Court, who dismissed the writ petition and the Division Bench allowed the writ appeal and quashed the order of disciplinary authority. The Apex Court, in that case, was of the clear view that the entire allegation in the charge sheet was only against the delinquent officer, whereas the entire transaction proceeded only on the basis https://hcservices.ecourts.gov.in/hcservices/ of the technical committee's approval and further approval at various level and by the Board of Directors. The Apex Court clearly held that the respondent/ delinquent employee alone cannot be held responsible when the final decision was taken by the committee and held that one person should not be singled out. On this premise, the Apex Court found that the Division Bench of the High Court was justified in re-appreciating the evidence and dismissed the appeal of the employer. The Apex Court in paragraph 21 of the decision clearly emphasized the fact that the Courts do not normally re-appreciate the evidence and sit as an appellate authority over the domestic enquiry. 11. In this case, the delinquency has been accepted by the employee by filing a memo and reaffirmed it in the written arguments. Therefore, the question of going into the merits of the case does not arise. There can be no re-appreciation of evidence. The Tribunal is the final authority, which deals on the factual aspects of the case. Even before the Tribunal, the only plea taken by the petitioner is with regard to the quantum of punishment and for modification/reduction under Section 11-A of the Industrial Disputes Act. Hence, the Apex Court decision relied upon will not apply to the facts of this case. 12. In Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Limited) Etc. - Vs. - The Secretary, Sahakari Noukarara Sangha Etc. (J.T. 2000, 10, S.C.C. 589), the Labour Court after holding that the charges of breach of trust and misappropriation by the employee as proved, in exercise of its discretionary power under Section 11-A of the Act ordered re- instatement with 25% back wages and other relief. The matter went upto the Apex Court, the Apex Court in paragraphs 7 and 8 of the above said decision held as follows:- " In view of the aforesaid settled legal position, the High Cofurt materially erred in confirming the directions given by the Labour Court in reinstating the respondent-workmen with 25% back wages. For giving the aforesaid direction, the Labour Court considered that there is no evidence regarding past misconduct by the employees and, therefore, it can be observed that they have rendered several years of service without any blemish and to some extent, there was lapse on the part of the Management. In case of proved misappropriation, in our view, there is no question of considering the past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases." 13. The Apex Court set aside the order of the High Court https://hcservices.ecourts.gov.in/hcservices/ and that of the Labour Court and restored the punishment of dismissal. In the present case, the employer in this case has lost confidence in the delinquent employee, who has been found guilty of misappropriation and breach of trust while working as a cashier in the Bank. The plea before the Labour Court was only with regard to the quantum of punishment, the Industrial Tribunal has rightly refused to exercise its discretion under Section 11-A of the Act to interfere with the quantum of punishment imposed. While doing so, the Tribunal has relied upon the decision of the Karnataka High Court and the Apex Court which case also relates to the dismissal of a bank employee, against whom charges of delinquency has been proved and the punishment of dismissal was imposed. In this case also, for the proved charges, the bank finding that the employee is wanting in integrity and having lost trust in the delinquent, imposed punishment of dismissal. The petitioner has accepted the guilt and his plea was only with regard to the quantum of punishment. There is therefore, no scope for this Court to interfere. No material has been placed before this Court to state as to why the order of the Tribunal confirming the order of dismissal should be interfered with or reduced. Finding no merits, this writ petition is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To 1. The General Manager, Bank of India, South Zone, 46 Cathedral Road, Chennai.86. 2. The Industrial Tribunal, Tamil Nadu, Chennai.104. 1 cc To Mr. P. Premkumar, Advocate, SR.34921 1 cc To Mr.N. Balakrishnan , Advocate, SR.34537 WP No. 12638 of 2000 sai(co) pmk.11.8.2009. https://hcservices.ecourts.gov.in/hcservices/