IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 OP.No. 1106 of 1999(F) -------------------------------- PETITIONER: ------------------- A. LALITHAMBUJA KUMARI, LALITHA BHAVAN, T.C. NO. 48/673, AMBALATHARA, POONTHURA.P.O., TRIVANDRUM. BY ADV. SRI.P.RAMAKRISHNAN, SMT.A.K.PREETHA. RESPONDENTS: ------------------------ 1. THE INDUSTRIAL TRIBUNAL, KOLLAM. 2. THE SYNDICATE BANK, ZONAL OFFICE, TRIVANDRUM, REPRESENTED BY ITS DEPUTY GENERAL MANAGER, TRIVANDRUM. BY SR. GOVERNMENT PLEADER SMT. M.R. SREELATHA, ADV. SRI.R.S.KALKURA, ADV. SRI.P.C.HARIDAS, ADV. SRI.P.V.VENUGOPAL. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 1106/1999-F: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE AWARD OF THE R.1. DTD. 21/11/1996. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. S.SIRI JAGAN, J. ================== O.P.No. 1106 of 1999 ================== Dated this the 26th day of February, 2008 J U D G M E N T The petitioner is the workman involved in I.D.No.1/1995 on the files the Industrial Tribunal, Kollam, who passed Ext.P1 award in that I.D. The petitioner is challenging Ext.P1 award in this original petition. 2. The issue referred for adjudication was: “Whether the action of the management of Syndicate Bank, Trivandrum in dismissing Smt.D.Lalithamjuja Kumari, Special Assistant, from service w.e.f. 27.10.1993 is legal and justified ? If not, to what relief is the said workman entitled?'. 3. Since the dismissal of the workman was after conducting a domestic enquiry, the Tribunal considered the validity of the domestic enquiry as a preliminary point and came to the conclusion that the enquiry was conducted properly and validly, and the findings entered by the enquiry officer were supported by sufficient evidence on record. Affirming the findings of the enquiry officer, the Tribunal came to the conclusion that for those misconducts the punishment of dismissal cannot be o.p.1106/99 2 stated to be unjustifiable and the punishment imposed by the management is commensurate with the gravity of the misconducts proved to have been committed by the workman. 4. The petitioner is challenging the preliminary order itself on the ground that there is in fact violation of principles of natural justice vitiating the enquiry itself. The ground raised by the petitioner is that in the enquiry the petitioner called for 27 documents which were not produced by the management, which would amount to violation of principles of natural justice and denial of sufficient opportunity to prove the innocence of the petitioner. He points out that while dealing with this specific contention, the Tribunal, in paragraph 7, held that those documents were missing and those documents were actually part of the charges levelled against the workman. Reading out the charges levelled against the petitioner, the counsel for the petitioner points out that there was no charge therein regarding missing of the said documents. The counsel for the petitioner, therefore, submits that the findings of the Tribunal on this point are clearly perverse and therefore, the enquiry itself ought to have been set aside as violative of principles of natural justice. o.p.1106/99 3 5. On the other hand, the counsel for the management would submit that there is no merit in the contention of the petitioner. According to him, the documents called for by the petitioner were closure applications of account holders and signature card and other connected documents in respect of the said accounts. He would point out that the very case of the management against the petitioner was that, without any authorisation the petitioner had closed accounts of the account holders and, therefore, the question of account holders submitting closure applications does not arise at all. As far as the signature card and other connected documents in respect of the accounts are concerned, he would submit that the entire documents relating to the accounts were under the absolute control of the petitioner at the relevant time and those documents were actually missing and this fact was actually brought on record before the enquiry officer and therefore, there is no basis for that contention also. Regarding the finding of the Tribunal pointed out by the counsel for the petitioner, the learned counsel for the management would contend that that finding relates to the closure applications the absence of which only was o.p.1106/99 4 part of the charges against the workman. 6. I have considered the rival contentions in detail. 7. The main argument advanced by the counsel for the petitioner is regarding violation of principles of natural justice by the enquiry officer in so far as the documents called for by the petitioner have not been produced by the enquiry officer. Charges levelled against the petitioner, as reiterated in Ext.P1 award, are as follows: The claimant had unauthorisedly and illegally with fraudulent and dishonest motives had closed allowed withdrawals in certain dormant inoperative I.D./SB/FD accounts and while doing so she closed accounts without proper authority and without permission of the depositor, forging signature caused the proceeds of the closed accounts to be credited to some other accounts which were unconnected with the depositors account, unauthorisedly received the payment of certain closed accounts, furnished false, in correct and incomplete information about the closed accounts in the records of the bank and thus falsified the records of the Bank.” As is clear from the above charges, the allegation against the petitioner was that the petitioner herself closed accounts without authority or permission of the depositors. That being so, there cannot be any closure applications by the depositors which can be produced by the management as requested for by the petitioner. Of course, it would be different in the case of the signature cards and other connected documents in respect of the o.p.1106/99 5 said accounts. Admittedly, the contention raised by the management in this regard is that those documents were missing. In paragraph 15 of the counter affidavit filed in this case, the 2nd respondent has stated thus: “15. ...... Her representation dated 203..92 for the copies of documents were all non-existing documents. No such application or authorisation letters were issued by the account holders. In fact certain documents in respect of the said accounts were missing and it is pertinent to note that the documents were missing when the petitioner was holding the supervisory post in the respective section. The petitioner was in charge and the department was under her control. That was the reason why the non-existence of missing of the documents, were made as part of the allegations made in the charge sheet Against the petitioner. Knowing fully well that the document did not exist and it was part of her own misconduct, the petitioner had sought production of the documents which is misleading and mischievous. The averment that the enquiry office ought to have drawn an adverse inference that the documents were not produced is made without any basis.” The petitioner has not chosen to controvert the above by filing a reply affidavit. Therefore, it is clear that the entire documents relating to the accounts in question were under the custody and control of the petitioner. The contention of the management is that those documents were missing. The petitioner was unable to satisfy me otherwise. Therefore, in the circumstances of the case, I cannot draw an inference that non-production of those documents would violate principles of natural justice. 8. The counsel for the petitioner then contended that the o.p.1106/99 6 findings on the evidence recorded by the Industrial Tribunal are clearly perverse. I do not agree with the learned counsel for the petitioner. A reading of the award, particularly paragraphs 8 to 10, clearly shows that there was ample evidence to prove that the petitioner is guilty of the misconducts alleged against her. Some of the accounts were in respect of deceased account holders. It is proved by the management with ample evidence that one Sri.Surendran Nair, who was introduced to the Bank by the petitioner herself, had opened an account in the bank and the proceeds of some of the closed accounts in question were transferred to the said account. Further, the management has categorically proved that the handwriting in all the documents relating to closure of accounts was that of the petitioner. In fact the management took the trouble of getting the handwriting compared and verified, and examined the expert as a witness to prove the same. As such, it is on the basis of overwhelming evidence on record against the petitioner that the Tribunal had come to the finding that the petitioner was guilty of the misconducts alleged against her. I do not find anything remotely suggesting perversity in such findings. o.p.1106/99 7 9. Lastly, the petitioner would contend that the punishment is disproportionate to the gravity of the misconducts. I do not think that any discussion is necessary to show that the punishment of dismissal is not at all excessive for the very grave misconducts proved to have been committed by the petitioner workman. In any event, the same cannot be stated to be shockingly disproportionate to the gravity of the misconducts, which is the test to be applied in such cases. As such, I do not find any infirmity whatsoever in the findings in the award. Accordingly, the original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE o.p.1106/99 8 S.SIRI JAGAN, J. =============== O.P.No. 1106 of 1999-F =============== J U D G M E N T 26th February, 2008