IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.12.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.10756 of 2003 .. D.Rajasekaran .. Petitioner vs. 1.The Disciplinary Authority/ Assistant General Manager State Bank of India Sivakasi. 2.Appellate Authority The Deputy General Manager (CB) State Bank of India 21 Rajaji Road, Chennai 1. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.R.Muthukannu For respondents : Mr.Karthik for M/s.T.S.Gopalan & Co., .. ORDER The writ petition is directed against the order of the disciplinary authority viz., the first respondent dated 21.11.2000, as confirmed by the appellate authority, the second respondent dated 5.6.2002, by which punishment of dismissal was passed against the petitioner, treating the period of suspension as suspension for all purposes came to be confirmed. 2. The writ petitioner while he was working as a Cashier in the respondent Bank at Sivakasi branch, there was a complaint about shortage of Rs.31,689.30, in respect of which a criminal case was filed against him under section 409 IPC before the Judicial Magistrate No.II, Sattur, which was subsequently transferred to the file of Judicial Magistrate, Sivakasi and numbered as C.C.No.382 of 1989. It is, in respect of the same allegation, the first respondent issued a charge memo on 17.12.1988. Even though the https://hcservices.ecourts.gov.in/hcservices/ petitioner was acquitted in the criminal case, in departmental proceedings, by order dated 21.11.2000 of the first respondent which is stated to have been served on the petitioner on 7.3.2002, he was dismissed from service as against which appeal was filed before the second respondent which came to be rejected on 5.7.2002. 3. The impugned orders are challenged on various grounds including that when the competent criminal Court on a same charge acquitted the petitioner on 11.7.1996, in the disciplinary proceedings the order of dismissal was passed after four years on 21.11.2000; that when the charge was about shortage, it was converted into misappropriation and therefore, there was no shortage; that the petitioner did not attend the Office after 15.10.1987, however, the suspension order was passed on 20.10.1987; that even though the petitioner was permitted to peruse the voluminous records, copies of the said documents were not furnished stating that the same would be supplied during the time of enquiry; that as per the Sastri award on the same set of facts, if criminal complaint and disciplinary proceedings are initiated, the disciplinary proceedings are to await till the criminal trial is completed, but contrary to this, enquiry commenced on 2.5.1988 and even after acquittal in the criminal case on 21.11.2000, the department proceedings ended in punishment; that the shortage does not amount to misappropriation and that the Enquiry Officer’s report is not based on any legal evidence and the disciplinary authority, without considering the materials placed, has passed the order of punishment and the appellate authority has also not considered the order of the original authority in its proper perspective. 4. In the counter affidavit filed by the respondent bank, it is stated that the petitioner was working as a Clerk in Sivakasi branch of the respondent bank and on 15.10.1987 when he was working as Cashier, he left the branch around 2.15 p.m. and he did not return and the petitioner’s drawer was opened with duplicate key and when inventory was taken, it was found that there was a shortage of Rs.31,689.30. It is stated that since the petitioner did not report for duty, a complaint was lodged with the police and he was prosecuted for the offence under section 409 of the Indian Penal Code. a) It is stated that a charge memo was issued on 17.2.1988 for the misconduct amounting to breach of trust and fraudulent misappropriation and the petitioner was asked to submit his explanation and to appear for enquiry on 5.12.1988 and when the petitioner requested for adjournment, it was posted on 21.12.1998. It is stated that in the meantime, the petitioner filed a suit in O.S.No.616 of 1988 before the District Munsif’s Court, Sattur for an injunction restraining the Enquiry Officer from proceeding with https://hcservices.ecourts.gov.in/hcservices/ the domestic enquiry till the completion of criminal case and he also got an interim injunction and ultimately, the said suit came to be dismissed as not maintainable on 23.12.1989 and the order of interim injunction was vacated and the appeal filed by the petitioner against the said decree was also dismissed in A.S.No.20 of 1990 by judgment dated 7.1.1990 by the Subordinate Judge, Srivilliputtur. b) It is stated that after the disposal of the criminal case, the petitioner was asked to appear for enquiry on 20.2.1990 and it was adjourned to several dates and the petitioner did not choose to appear and in those circumstances, the Enquiry Officer was obliged to proceed with the enquiry in his absence and five witnesses were examined and the Enquiry Officer submitted his report on 22.6.1990 holding that the charges against the petitioner are proved. c) It is stated that when the enquiry report was served, the petitioner again filed W.P.No.10701 of 1990 to forbear the bank till the disposal of the criminal case in C.C.301 of 1988 on the file of Judicial Magistrate No.1, Sivakasi and the interim stay was granted on 12.7.1990, which was made absolute on 6.8.1990 and ultimately, the criminal case ended in acquittal on 11.7.1996 and the petitioner filed another writ petition in W.P.No.11019 of 1998 for quashing the charge sheet on the ground that the criminal case ended in acquittal. d) It is stated that there was an order of interim stay granted by this Court on 12.7.1990 and the writ petition, W.P.No.10701 of 1990 filed by the petitioner came to be dismissed on 12.1.1999 and in the other writ petition in W.P.No.11019 of 1998 the High Court passed orders on 23.12.1999 permitting the bank to proceed further and pass final orders and not to implement the final order. e) It was, thereafter, on 26.9.2000 a second show-cause notice was issued to the petitioner proposing the punishment of dismissal. It is stated that the petitioner attended the enquiry on 9.10.2000 and after considering his representation, the first respondent passed orders on 21.11.2000 dismissing the petitioner from service and in view of the order passed by this Court dated 23.12.1999, the implementation of the said order was kept in abeyance and it was on 5.3.2002, the writ petition WP.No.11019 of 1998 was dismissed and thereafter, on 7.3.2002, the punishment was given effect to. f) It is stated that the writ appeal in W.A.No.1119 of 2002 filed by the petitioner against the said order came to be dismissed on 24.4.2002 and the petitioner preferred an appeal to the second respondent against the order of the first respondent dated 7.3.2002 https://hcservices.ecourts.gov.in/hcservices/ and the appeal was also dismissed on 5.6.2002. It is stated that the petitioner is a workman within the meaning of Section 2(s) of the Industrial Disputes Act,1946 and therefore, without raising an industrial dispute, the writ petition is not maintainable. g) It is stated that the misconduct which has been alleged against the petitioner in the charge sheet has nothing to do with the criminal case and they are independent proceedings. It is stated that the petitioner has absconded himself without even rendering account in respect of shortage of Rs.31,689.30 which cannot be taken lightly. It is stated that the unauthorized absence of the petitioner resulted in serious prejudice to the bank and there is no justification for the petitioner for not appearing before the Enquiry Officer on various dates and the petitioner having not appeared cannot complain of denial of reasonable opportunity. It is stated that in the domestic enquiry, five witnesses were examined and 26 documents were marked and the Enquiry Officer referred to the witnesses and documents in the enquiry report. 5. Mr.R.Muthukannu, learned counsel appearing for the petitioner would submit, by placing reliance on the Sastri Award, that the entire proceedings conducted by the respondent bank are against the said award and according to him, inasmuch as the award is statutory in character, failure to follow the same would vitiate the entire proceedings. He would rely upon the judgment in State of Jharkhand vs. Ambay Cements (2004 (5) CTC 515(SC)] in respect of quantum of punishment. He would submit that for the unauthorized absence for one day, the punishment of dismissal is shocking the conscience. He would rely upon various judgments reported in Canara Bank by its General Manager, Bangalore vs. Presiding Officer, Industrial Tribunal, Chennai and another [2008(2) MLJ 414], V.R.Palanisamy vs. Director of Collegiate Education, Chennai and others [2009 (1) MLJ 1071], K.Elayaperumal vs. The Deputy Inspector General of Police, Madurai Range, Madurai and another [2009 WLR 112] and G.M.Tank vs. State of Gujarat and another [2006 (3) CTC 494]. 6. Per contra, it is the contention of Mr.Karthik, learned counsel for the respondents that the Sastri Award cannot be an embargo for the enquiry and the right of the employer for misconduct cannot be taken away. He would rely upon the judgment in Delhi Cloth and General Mills Co., vs. Ludh Budh Singh [1972 (1) SCC 595)]. He would submit that the acquittal of petitioner in the criminal case which is on the basis of benefit of doubt is not a bar for proceeding with disciplinary proceedings and he would rely upon the judgment in Bank of India and another vs. Bhimsen Gochhayat [2009 (4) LLJ 663 (SC)]. It is his submission that the petitioner has not given any explanation for shortage. It is his https://hcservices.ecourts.gov.in/hcservices/ submission that the petitioner is a workman under the Industrial Disputes Act and the scope for elaborate discussion on various issues is possible in the Labour Court and therefore, there is availability of alternative remedy and for that he would rely upon the judgment in Durga Enterprises (P) Ltd., vs. Principal Secretary, Government of U.P. And others [(2004) 13 SCC 665]. 7. I have heard the learned counsel for the petitioner and the respondents and referred to the entire papers filed. 8. At the outset, it has to be stated that there is no unexplained delay in either framing the charge against the petitioner or passing the final order in the departmental proceedings. In fact, that is also not the case of the petitioner as it is seen in the affidavit filed in support of the writ petition. In fact, at the instance of the petitioner, who had chosen to approach the Civil Court on the ground that the departmental proceedings and the criminal case were on the same set of facts and there was an order of injunction and thereafter, the petitioner also approached this Court by filing writ petition and in that also, there was an interim order and it was due to that reason, even though charges were framed as early as on 17.02.1988, the disciplinary proceedings were kept in abeyance for the criminal Court to complete its proceedings and ultimately, the criminal Court acquitted the petitioner giving benefit of doubt on 11.7.1996. 9. It is also not in dispute that in spite of several opportunities having been given, the petitioner did not participate in the enquiry and ultimately the Enquiry Officer had to proceed ex-parte and submitted his report to the disciplinary authority on 22.6.1990. It was, because the criminal case was pending and interim orders as stated above were operating against the respondent bank, the Enquiry Officer’s report was kept in abeyance and it was, thereafter, the report of the Enquiry Officer was communicated to the petitioner on 8.6.2000 and a show-cause notice was issued on 26.9.2000 and ultimately, the order of punishment was passed on 21.12.2000, which was given effect to from 7.3.2002 because of the order of stay granted by this Court. Therefore, the final order passed on 21.12.2000 and its communication to the petitioner on 7.3.2002 cannot be said to be affected by any unexplained delay. 10. The pendency of the criminal case was not a bar for proceeding with the disciplinary proceedings. A reference to the charge memo which is as follows: "It is reported against you that on the 15th October, 1987, when you were working as receiving cashier, you did https://hcservices.ecourts.gov.in/hcservices/ not return to the Branch for duty after you left around 2.15 p.m. for lunch. As enquiries made to find out your whereabouts were not fruitful, your cash drawer was opened around 4.30 p.m. with the duplicate key and an inventory of cash available in the drawer was taken. A sum of Rs.31,689.30 was found short in the receipts handled by you during the day; out of 129 credit vouchers relating to remittance received by you during the day, 47 were found in your counter not stamped/scrolled/signed by you. Your above actions, if proved, would amount to breach of trust and fraudulent misappropriation of funds received over the counter for credit of various accounts, acts prejudicial to the interest of the Bank and hence, "Gross misconduct" within the meaning of Paragraph 521(4) (j) of the Sastry Award read with Paragraph 18.28 of the Desai Award." shows that there was a shortage of Rs.31,689.30 and in respect of various vouchers, they were not stamped or scrolled or signed by the petitioner and therefore, it was construed to be a gross misconduct as per Paragraph 521(4)(j) of the Sastri Award read with Paragraph 18.25 of the Desai Award. On the other hand, the criminal charge which had been levelled against the petitioner was that as a Cashier when he was entrusted with a sum of Rs.6,20,901.50, he unauthorizedly spent Rs.31,689.30 for his personal benefit and absconded and therefore, there was a criminal breach of trust as per section 409 of the Indian Penal Code. 11. A reference to the criminal Court judgment shows that the petitioner was acquitted giving benefit of doubts. Therefore, it is clear that the charges framed against the petitioner in the departmental proceedings and the charge framed in the criminal case are not one and the same. As held by the Hon’ble Apex Court in Bank of India and another v. Bhimsen Gochhayat [2009 (4) LLJ 663 (SC)], the departmental enquiry will not be invalid if the charges are different from the criminal case even if the case ended in acquittal. 12. The reference made to the Sastri Award, especially Paragraph 521 in conjunction with Paragraph 18.28 of the Desai Award shows that they relate to the opportunity to be given while following the procedure in disciplinary actions. Under the Sastri Award, if an employee of the bank is acquitted in criminal case, it is open to the management to proceed against him as per Paragraph 9 and 10 which are as follows: " 9. When it is decided to take any disciplinary action against an employee such decision shall be https://hcservices.ecourts.gov.in/hcservices/ communicated to him within three days thereof. 10. The procedure in such cases shall be as follows: a) An employee against whom disciplinary action is proposed or likely to be taken shall be given a charge sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the officer conducting the enquiry, to cross-examine any witness on whose evidence the charge rests and to examine witnesses and produce other evidence in his defence. He shall also be permitted to be defended by a representative of a registered union of bank employees or, with the bank's permission, by a lawyer. He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him. b) Pending such enquiry he may be suspended, but if on the conclusion of the enquiry it is decided to take no action against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all other privileges for the period of suspension; and if some punishment other than dismissal is inflicted the whole or a part of the period of suspension, may, at the discretion of the management, be treated as on duty with the right to a corresponding portion of the wages, allowances, etc. c) In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the employee and any other aggravating or extenuating circumstances exist the misconduct may be contended and in case such misconduct is of the 'gross' type he may be merely discharged, with or without notice or on payment of a month's pay and allowances, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer, think it expedient to retain the employee in question any longer in service. Discharge in such cases shall not be deemed to amount to disciplinary action." 13. In my considered view, it cannot be said that the said https://hcservices.ecourts.gov.in/hcservices/ procedure has not been followed by the respondents. In any event, if sufficient opportunity has been given to the petitioner and in spite of the same, the petitioner has failed to give explanation or participate in the enquiry before the Enquiry Officer, it is certainly not open to the petitioner to complain about the procedure followed. In any event, the intricacies about various procedures to be followed as per Sastri Award or Desai Award cannot be now decided by this Court while exercising jurisdiction under Article 226 of the Constitution of India. If really the petitioner is desirous of having a detailed enquiry as to whether the procedure has been followed or not, it is for him to invoke the jurisdiction of the Labour Court under the Industrial Disputes Act by raising an appropriate industrial dispute. 14. As far as the next submission about the quantum of punishment is concerned, the learned counsel has taken enormous efforts to substantiate his contention that the punishment of dismissal on the facts of the present case is not commensurate to the charges framed against the petitioner. He has relied upon various judgments where the Hon’ble Apex Court has in categorical terms held that in cases where quantum of punishment is shocking the conscience of the Court, the Court can always interfere for a lesser punishment. So also, it requires consideration as to whether the nature of duty imposed on a bank official should be put in a higher pedestal for the purpose of supporting the punishment awarded to the petitioner. It is no doubt true that the learned counsel has insisted for the remand of the matter to the authority again for the purpose of deciding the quantum of punishment by referring the judgment in K.Elayaperumal vs. The Deputy Inspector General of Police, Madurai Range, Madurai and another [2009 WLR 112]. That was a case where the appellate authority’s order was not a reasoned one and was very laconic and in those circumstances, the matter was remanded back. However, on the facts of the present case, there is nothing to decide against the order of the appellate authority which has in fact considered the original authority’s order in detail and therefore, I am of the considered view that by remanding the matter back to the appellate authority, no useful purpose would be served. 15. In such view of the matter, since the petitioner has raised a point about the award to the effect that it has got the statutory authority, I am of the considered view that instead of interfering with the impugned orders of punishment, the petitioner must be given an opportunity to work out his remedy in the manner known to law, especially as per the provisions of the Industrial Disputes Act. In such view of the matter, the writ petition stands dismissed, however, with liberty to the petitioner to work out his remedy as per the provisions of the Industrial Disputes Act by raising an industrial dispute, if so advised. It is made clear https://hcservices.ecourts.gov.in/hcservices/ that in the event of the petitioner raising such industrial dispute, the Labour Court shall decide the same on merit, instead of dismissing it on the ground of delay, taking into consideration the pendency of the writ petition in this Court while considering the delay or laches. The writ petition stands dismissed with the above direction. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Kh To 1.The Disciplinary Authority/ Assistant General Manager State Bank of India Sivakasi. 2.Appellate Authority The Deputy General Manager (CB) State Bank of India 21 Rajaji Road, Chennai 1. +1cc to M/s.R.Muthukannu, Advocate Sr 89628 +1cc to M/s.T.S.Gopalan & Co., Advocates Sr 89388 MG(CO) km/31.12. W.P.No.10756 of 2003 https://hcservices.ecourts.gov.in/hcservices/