IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 16.04.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.30252 of 2004 State Bank of India, Rep. By the Chief General Manager, local Head Office, Circle Top House, No.16, College Lane, Chennai – 600 006. ... Petitioner Vs. 1.K.Mohan 2.The Presiding Officer, Central Government Industrial Tribunal Cum Labour Court, Shastri Bhavan, Chennai – 6. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorari to call for the records relating to the impugned award of the 2nd respondent, Central Government Industrial Tribunal-cum-Labour Court, Chennai made in I.D.No.56 of 2002 dated 22.01.2004 and quash the same as illegal and unsustainable and pass such further orders. For Petitioner :Mr.S.Kanniah For Respondents :Mr.R.Arumugam for M/s. Aiyar & Dolia for R1 ORDER The 1st respondent, K.Mohan, while working as a clerk in the petitioner/State Bank of India at T.Nagar branch, Chennai, was alleged to have forged the signature of one account holder Smt.G.Poornima and made an unauthorised debit in her SB A/c. No.C8352 for Rs.5,000/-. Again, on 30.07.1994, the 1st respondent forged the signature of Smt.G.Poornima and made an unauthorised debit in her SB A/c. No.C 8352 for Rs.2,230/- and credited the same in his current account. But, subsequently, on 01.08.1994, the 1st respondent remitted this amount into her SB A/c. No.C 8352. https://hcservices.ecourts.gov.in/hcservices/ On the third occasion, the 1st respondent on 13.08.1994, was alleged to have forged the signature of Smt.G.Poornima and made an unauthorised debit in her SB A/c. No.C 8352 for Rs.3,000/- and subsequently, on 18.08.1994, the 1st respondent remitted this amount into her account and thereby, temporarily misappropriated the said money and to cover up his fraudulent act, the 1st respondent destroyed the debit vouchers as well. On the 4th occasion on 25.08.94, 1st respondent again forged the signature of the said Smt.G.Poornima and made an unauthorised debit in her account for Rs.2,000/- and subsequently, on 02.09.1994, he credited this amount into her account. On 5th time, i.e. on 03.10.1994, the 1st respondent caused a debit of Rs.30,000/- in the SB A/c No.C8261 of one Mrs.M.Rajalakshmi by preparing a letter forging the signature of the account holder and received a Bankers cheque for Rs.30,000/- in the name of one M.Kumar and thereby, received payment against the Bankers cheque from Smt.Shanthi, Payment Cashier, stating that M.Kumar was his own friend and, thereby, received money from her and misappropriated the same and, to cover up his fraudulent act, he destroyed the entire bunch of vouchers relating to current Account – C & I of 03.10.1994. 2. The account holder Rajalakshmi, having found that a sum of Rs.30,000/- was debited from her account, made a complaint on 08.10.94 against the misappropriation of Rs.30,000/- from her account. After receipt of the complaint, the 1st respondent gave his letter on 10.10.94 admitting his guilt that he was constrained to commit the mistakes in view of his family problem and pleaded for excuse stating that the above said amounts were already credited. The 1st respondent was placed under suspension by an order dated 15.10.94. Thereafter, the above said forgery and misappropriation of bank money, the 1st respondent was issued with a show cause notice calling upon him to submit his explanation for the above said charges by letter dated 14.12.1994. A charge sheet dated 14.12.94 was issued against him by framing 5 charges, alleging acts of forging and destructing the bank's records and misappropriation of the bank's money. The 1st respondent submitted a detailed explanation denying all the allegations. The department having not satisfied with the explanation offered by the delinquent employee, ordered for enquiry. The enquiry officer, after giving reasonable opportunities, by complying the principles of natural justice, completed the enquiry by submitting his report, stating that 4 charges were not proved and 5th charge has been partly proved. But, the enquiry officer did not specify which part or portion of the 5th charge was proved. Therefore, the Assistant General Manager Region II has sent a letter on 08.12.1998 stating https://hcservices.ecourts.gov.in/hcservices/ that so far as charges 1 to 4, he concurred with the findings of the enquiry officer, but, in respect of charge No.5, the Assistant General Manager Region II disagreed with the findings. Therefore, the petitioner has given one more opportunity to the 1st respondent calling upon him for personal hearing and, thereafter, not being satisfied with the explanation offered by the 1st respondent, imposed the punishment of discharge by treating the period of suspension as one of suspension for all purposes. 3. Aggrieved by the order of imposing the punishment of discharge, the 1st respondent preferred an appeal, but the appellate authority after applying his mind, rejected the appeal, holding that the order passed by the Assistant General Manager Region II, who is the competent authority, was held to be valid and, therefore, the same could not be questioned by the petitioner. 4. Aggrieved by the said order of discharge, the 1st respondent approached the Labour Court contending that the Assistant General Manager Region II is not the competent authority to pass an order of proposed punishment of discharge and, according to the circular issued by the General Manager on 28.11.94, the Assistant General Manager incharge of Scale V branches in the circle is the Disciplinary Authority under the provisions of Bipartite Settlement and, in terms of the decision of the Executive Committee of the Central Board dated 16.07.94, the Assistant General Manager Region II is not the competent authority to pass an order of proposed punishment of discharge. The learned Central Government Industrial Tribunal-cum-Labour Court (hereinafter referred as 'CGIT'), Chennai, allowed the case of the 1st respondent on two footings; firstly, the Disciplinary Authority is not the competent authority to impose the punishment and also held that the principles of natural justice has also not been followed; secondly, the disciplinary authority, while confirming the punishment, has not considered the 23 years of service of the 1st respondent and, therefore, punishment imposed by the disciplinary authority is not according to the Bipartite Settlement. Finally, the petitioner Bank directed to reinstate the 1st respondent in service with continuity of service, backwages and all other attendant benefits. Challenging the order passed by the C.G.I.T. dated 22.01.2004, the petitioner has filed the present writ petition. 5. Learned counsel appearing for the petitioner submits that the learned C.G.I.T by merely taking into account the 23 years of service, directed reinstatement, ignoring serious prejudice caused to the petitioner Bank, when the 1st respondent has himself admitted, by his own letter dated 10.10.94, his guilt, while praying for excuse on the ground that the 1st respondent had credited the entire money into the SB A/c holder of the bank. https://hcservices.ecourts.gov.in/hcservices/ Secondly, the Assistant General Manager Region II was the competent authority to pass the order of proposed punishment of discharge against the 1st respondent. Since the misdeeds were committed by the 1st respondent prior to 01.12.1994, the charge sheet was issued subsequently on 14.12.94. Therefore, the Assistant General Manager Region, T.Nagar Branch was the competent authority, but not the Assistant General Manager Region II, Zonal Office, who actually initiated the action. Further, it was also contended that the misconducts committed by the 1st respondent were very serious one and, therefore, the punishment awarded by the disciplinary authority was reasonable. But, the learned Tribunal, without considering his own clear admission about the temporary misappropriation of the customers' money, and subsequent repayment in instalment as evidenced through his letter dated 10.10.94, which was also marked as Ex.M3, wrongly set aside the order of discharge by holding that the disciplinary authority failed to take into account the 23 years of past service of the 1st respondent. On that basis, it was further contended that the Tribunal committed serious error, while passing the order dated 22.01.2004 without taking into account whether the 1st respondent was gainfully employed in all these days. 6. Heard the learned counsel appearing on either side and perused the materials available on record. 7. Before going into the question of who is the competent authority to pass an order of punishment of discharge, the case of the petitioner is that the 1st respondent, in his letter dated 10.10.94, admitted his guilt about the temporary misappropriation of customer's money and subsequent repayments made by him in instalment as evidenced through letter dated 10.10.94, which is also marked as Ex.M.3, clearly proves the case of the misappropriation made by the 1st respondent. The enquiry officer, having seen this document, came to the conclusion that the Bank, being repository of public trust, cannot carry on their banking business with persons of doubtful integrity and bonafides, and the misconduct committed by the 1st respondent being very serious and grave in nature, was of the view that it was a case of loss of confidence. Therefore, the disciplinary authority having seen the findings of the enquiry officer in respect of 5th charge and not being very specific on the issue as to which part of the charges were proved and which part of the charge remained unproved, gave further notice calling upon the 1st respondent for explanation by deviating from the report of the enquiry officer and, after giving reasonable opportunity, the disciplinary authority awarded the punishment of discharge. The punishment imposed by the disciplinary authority was subsequently accepted by the appellate authority. Therefore, the learned Tribunal should have seen that the 1st respondent having admitted his guilt of temporary https://hcservices.ecourts.gov.in/hcservices/ misappropriation of customers money, as he himself has made a subsequent repayment in instalment as evidenced through his letter dated 10.1094, which was also marked as Ex.M3, the learned Tribunal should have confirmed the order of discharge imposed by the disciplinary authority on the ground that the same was proper and grave in nature. But, without doing so, unnecessarily, the learned Central Government Industrial Tribunal went into hyper technical issue holding that the Assistant General Manager Region II was not the competent authority to pass an order of proposed punishment of discharge against the 1st respondent. In fact, the misdeeds were committed by the 1st respondent prior to 01.12.94 and charge sheet issued subsequently on 14.12.94 and therefore, the Assistant General Manager, T.Nagar Branch, is the competent authority and not the Assistant General Manager Region II, Zonal Office, who actually initiated the action. 8. In any event, the misconduct committed by the 1st respondent was proved by his own admission before the enquiry officer and the misconduct admittedly proved was of serious in nature. While dealing with the scope of interference in quantum of punishment, the Apex Court in A.P.SRTC Vs. Raghuda Siva Sankar Prasad reported in (2007) 1 SCC 222, has categorically held that in respect of quantum of penalty/punishment, it is not open to the Tribunals and Courts to substitute their subjective opinion in place of the one arrived at by the domestic tribunal, as there is no place for generosity or sympathy on the part of the judicial forums for interfering with the quantum of punishment. Therefore, the Tribunal should not have interfered with the quantum of punishment on the ground that the disciplinary authority is not the competent authority to impose the punishment. Even before this Court also, the 1st respondent has not established how the principles of natural justice has been violated in imposing the punishment by the disciplinary authority. Therefore, the award passed by the Tribunal directing reinstatement of the 1st respondent in service with continuity of service, backwages and other attendant benefits, without taking into account whether the 1st respondent was gainfully employed in all these days, is liable to set aside and, accordingly, the same is set aside. In result, the writ petition is allowed. No Costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. rkm https://hcservices.ecourts.gov.in/hcservices/ To 1. The Chief General Manager State Bank of India, local Head Office, Circle Top House, No.16, College Lane, Chennai – 600 006. 2.The Presiding Officer, Central Government Industrial Tribunal Cum Labour Court, Shastri Bhavan, Chennai – 6. 1 cc to Mr.R. Arumugam, Advocate, SR. 24847 1 cc to M/s. S. Kannaiah, Advocate, SR. 24845 W.P.No.30252/2004 AKR (CO) kk 23/4 https://hcservices.ecourts.gov.in/hcservices/