IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 04-01-2008 CORAM THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA WRIT PETITION No.14233 OF 2003 Bank of Baroda Employees Union, (Regn.No.2077), 28, Rajaji Salai, Chennai-600 001. ... Petitioner -vs- 1.Bank of Baroda, rep.by its Assistant General Manager, 82, Bank Road, Coimbatore-18. 2.The Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, 1st Floor, Shasthri Bhavan, Haddows Road, Chennai-600 006. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorarified mandamus. For petitioner : Mr.S.Vaidyanathan For respondent 1 : Mr.K.S.V.Prasad O R D E R Petitioner has challenged the award of the second respondent, dated 05.12.2002, made in I.D.No.581 of 2001. The issue in the said award related to non-employment of one Thiru S.S.Rajan, who was employed as a Shroff-cum-Clerk in the first respondent Bank. He joined the services of the Bank on 30.01.1982. He was issued with a show cause notice, dated 01/03.02.1996, in which as many as eight allegations were levelled against him in the course of discharge of his duties at Tanjore Branch. The delinquent employee submitted his reply, dated https://hcservices.ecourts.gov.in/hcservices/ 22.04.1996. In the said reply, he admitted his guilt in respect of allegations 1 to 5. As regards allegations 6 and 7, he denied the same and with regard to eighth allegation, which related to borrowal made by him from one of the constituents of the Bank, he stated that he would repay the amount, honouring his promise. 2. Thereafter, as the first respondent was not satisfied with the explanation, a Charge Memo, dated 05.05.1997, came to be issued to the delinquent, in which seven charges were levelled against him. The delinquent was also informed that a departmental enquiry would be held and he would be given all the opportunities, to put forth his submissions to the said Charge Memo. Once again, the delinquent gave his reply, dated 22.08.1997, wherein he admitted the charges 1 to 5. While making his admission, he stated that such admission was being made under para 19.12 (e) of the Bipartite Settlement. He denied the charges 6 and 7 and requested the first respondent to treat the whole matter under para 19.12 (e) and close the enquiry proceedings. The enquiry, which commenced on 08.09.1997, was subsequently adjourned and posted on 18.03.1998 and the delinquent employee attended the said enquiry. No sooner had the enquiry commenced, the delinquent made an unequivocal admission to all the seven charges, enlisted in the Charge Sheet, dated 05.05.1997. The Enquiry Officer, in his proceedings, dated 18.03.1998, recorded the said admission. Thereafter, the Enquiry Officer submitted his report, dated 20.03.1998, wherein, he, after referring to the unqualified admission made by the delinquent employee by referring to para 19.12 (e) of the Bipartite Settlement, held all the charges levelled against the delinquent in the Charge Sheet, dated 05.05.1997, as conclusively proved. 3. Based on the findings of the Enquiry Officer, the Disciplinary Authority issued an order, dated 26.03.1998, calling upon the delinquent employee to make his representation, if any, within a period of 15 days. Accordingly, the delinquent submitted his representation on 06.04.1998. In the said representation also, the delinquent confirmed that while originally he admitted the charges 1 to 5 in his letter, dated 22.08.1997, in the enquiry held on 18.03.1998, he made it clear that he was accepting all the charges 1 to 7 under para 19.12 (e) of the Bipartite Settlement. He, therefore, requested for a lenient treatment. Thereafter, a second show cause notice, dated 22.10.1998, was issued, proposing the punishment of dismissal as well as the stoppage of one increment for a period of six months. He was also afforded a personal hearing as regards the proposed punishment on 06.11.1998 at 03.00 p.m. The subsequent proposal as regards the modified punishment was issued to the delinquent on 02.11.1998, wherein, instead of dismissal from service, the Disciplinary Authority proposed the punishment of removal of the delinquent from Bank's https://hcservices.ecourts.gov.in/hcservices/ service. Again, a hearing was given to the delinquent on 06.11.1998 and the delinquent submitted his explanation, dated 01.12.1998. Thereafter, a final order of removal was passed on the delinquent employee on 17.12.1998. The delinquent preferred an appeal on 08.01.1999, which was also rejected by the Appellate Authority, by an order, dated 04/05.11.1999. 4. Challenging the order of removal, the petitioner raised an industrial dispute, which came to be referred for adjudication before the second respondent Tribunal by the Government of India, Ministry of Labour, vide its order dated 26.04.2001. The issue that was referred for adjudication was "Whether the action of the management of Bank of Baroda in removing Shri S.S.Rajan from the Bank's services is legal and justified ? If not, what relief is the workman entitled to ? 5. Before the Tribunal, the parties filed their respective statements. The Tribunal passed the impugned award, dated 05.12.2002, holding that the removal of the delinquent workman Thiru S.S.Rajan was fully justified and that he was not entitled for any relief. 6. Assailing the said award, Mr.S.Vaidyanathan, learned counsel for the petitioner, vehemently contended that when the delinquent made his admission as regards the misconduct alleged against him with particular reference to para 19.12 (e) of the Bipartite Settlement, such admission should have been dealt with as per the stipulations contained in the said paragraph and not otherwise. According to the learned counsel, the admission of the delinquent employee could not have been acted upon by the first respondent Bank in a truncated manner, leaving aside the other provisions contained in para 19.12 (e). 7. Learned counsel for the petitioner also contended that had the delinquent been informed of such a course to be adopted by the first respondent, he would not have admitted the misconduct, instead, he would have faced the enquiry and, therefore, in the absence of any independent evidence in the domestic enquiry or before the Tribunal as regards the charges levelled against the delinquent employee, the first respondent should not have passed the order of termination. 8. The learned counsel further contended that though the petitioner accepted the terminal benefits offered by the first respondent Bank after the order of removal, such acceptance was without prejudice to his rights to challenge the order. 9. It was lastly contended that the punishment of removal from service was highly disproportionate to the charges https://hcservices.ecourts.gov.in/hcservices/ levelled against the delinquent employee. In support of his contention, the learned counsel relied on the following decisions : (i) Atul Castings Ltd. v. Bawa Gurvachan Singh, 2001 (5) Supreme Court Cases 133 ; (ii) Delhi Transport Corporation v. Shyam Lal, 2004 (8) Supreme Court Cases 88 ; and (iii) State of Punjab and others v. Dr.Harbhajan Singh Greasy, 1996 (9) Supreme Court Cases 322. 10. As against the above submissions, Mr.K.S.V.Prasad, learned counsel for the first respondent-Bank would contend that paragraph 19.12 (e) of the Bipartite Settlement cannot be read in the manner in which the petitioner wants to interpret. According to the learned counsel, the provisions contained in para 19.12 (e) (i) to (iii) are interdependent and, therefore, the assumption of the delinquent employee, while admitting the guilt, that no enquiry would be held against him and that no punishment of discharge or dismissal could be inflicted on him was wholly misconceived. 11. The learned counsel contended that while in the first instance the delinquent admitted his guilt only as regards charges 1 to 5, an enquiry was ordered to be held and, that in the enquiry, after making a categorical admission of guilt of all the charges 1 to 7, he made a reference to his letter, dated 31.12.1997, wherein also he admitted his guilt though by making a reference to para 19.12 (e) of the Bipartite Settlement and, therefore, there was no flaw in the action of the first respondent Bank in having proceeded with the enquiry ordered against the delinquent and acting upon the report of the Enquiry Officer for inflicting the ultimate order of punishment of removal from service. 12. It was the further contention of the learned counsel that it was for the first respondent Bank to decide whether or not to hold an enquiry, by invoking para 19.12 (e) of the Settlement, and it is not for the delinquent employee to dictate to the Bank, as to how and in what manner para 19.12 (e) should be applied in the case of misconduct levelled against him. As regards the acceptance of the terminal benefits without prejudice to the rights of the delinquent, the learned counsel would contend that though a plea was so made in the claim statement, the said averment was denied by the first respondent in its counter statement and that no material was placed before the second respondent Tribunal in support of the said contention by the https://hcservices.ecourts.gov.in/hcservices/ delinquent employee and, therefore, it was not open for the petitioner to raise the said ground, while assailing the award of the second respondent Tribunal. 13. As far as the extent of punishment imposed on the delinquent is concerned, learned counsel for the first respondent contended that since removal would entail the delinquent employee of all the terminal benefits, including pension, and, he, having accepted the terminal benefits, it is not now open to the petitioner to challenge the said order of removal and that, in any event, having regard to the nature of charges, which are very serious in nature and being major misconducts, the punishment of removal cannot be said to be disproportionate to the charges admitted by the delinquent and as held proved by the Enquiry Officer. 14. Having heard the learned counsel for the respective parties and on a perusal of the various documents placed before the second respondent Tribunal and also the impugned award whereof, I am of the view that the issue centres around the interpretation of para 19.12 (e) (i) to (iii) of the Bipartite Settlement. 15. It is not in dispute that the delinquent employee admitted his guilt of all the charges 1 to 7 in unequivocal terms both before the first respondent as well as the Enquiry Officer. It is also not in dispute that in the communication, dated 31.12.1997, the delinquent admitted all the charges 1 to 7, by making a specific reference to para 19.12 (e) and sought for a lenient treatment. 16. The question for consideration is, whether such an admission of the misconduct by making a reference to para 19.12 (e) would entail any benefit to the delinquent employee in the matter of punishment ? 17. In order to appreciate the issue in the proper perspective, para 19.12 (e) requires extraction, which reads as under : "19.12 (e). An enquiry need not be held, if - (i) the misconduct is such that even if proved the bank does not intend to award the punishment of discharge or dismissal; and (ii) the bank has issued a show cause notice to the employee advising him of the misconduct and the punishment for which he may https://hcservices.ecourts.gov.in/hcservices/ be liable for such misconduct ; and (iii) the employee makes a voluntary admission of his guilt in his reply to the aforesaid show cause notice. However, if the employee concerned requests a hearing regarding the nature of punishment, such a hearing shall be given." 18. A reading of the said paragraph discloses that the issue regarding holding of an enquiry is left to be decided by the Bank management on satisfaction of all the three circumstances. The opening words of the said paragraph "an enquiry need not be held" go to show that there is no mandatory prohibition on the Bank management to hold the enquiry irrespective of happening of the events stipulated in sub-paras (i) to (iii). It is not as if there is a total prohibition on the Bank management from holding the enquiry, in the event of happening of any one of the circumstances contained in para 19.12 (e) (i) to (iii). That apart, a reading of sub-clauses (i) to (iii) discloses that each clause is correlated to one another to enable the Bank management to decide whether or not to hold an enquiry in the case of commission of any misconduct by the delinquent employee. Sub- clauses (i) and (ii) are to the effect that in the event of the Bank management deciding not to pass the extreme punishment of dismissal or discharge, it can decide not to hold the enquiry. Therefore, the Bank management, while issuing a show cause notice to the delinquent employee, should advise him both of the misconduct as well as the proposed punishment, which may ultimately be inflicted on him for the misconduct and its intendment not to hold the enquiry inasmuch as in its conclusion the extreme punishment of dismissal or discharge may not be warranted even if the alleged misconduct is proved. As far as the said clause is concerned, apparently, it would mean that issuing of show cause notice as well as the likely punishment other than dismissal or discharge to be imposed depends upon the decision of the Bank Management. Thereafter, depending upon the reaction of the delinquent employee as to whether he would be willing to accept such a punishment, the Bank management has to decide as to whether it should hold an enquiry or not. As for the third clause, when the delinquent employee makes his voluntary admission of his guilt in his reply to the show cause notice, then again, it is for the Bank management to decide whether or not to hold the enquiry. If clauses (i) to (iii) are read together, it is evident, that in the event of the Bank management issuing a show cause notice and also making it clear that it has no intention to pass an order of dismissal or discharge and the delinquent employee voluntarily making an admission as to all the charges levelled against him in the show cause notice, then, in the normal course, the Bank https://hcservices.ecourts.gov.in/hcservices/ management may decide not to hold the enquiry. But, the opening words of para 19.12 (e) (i) to (iii) cannot be taken to mean that on the happening of sub-clauses (i) to (iii), the Bank Management is prohibited from holding the enquiry. 19. When the said para 19.12 (e) is analysed, it only boils down to the point that the said provision is only to enable the Bank Management to decide whether it should resort to the laborious process of holding a domestic enquiry in respect of a misconduct alleged against its employee even in a case where on proof of such misconduct, the Bank may not resort to imposition of the extreme punishment of dismissal or discharge. 20. It transpires that in para 19.12 (e) (i), a reference is made as to non-passing of discharge or dismissal by way of punishment. But, it cannot be said that a delinquent employee can seek succour to the said clause 19.12 (e) on his own and that he can plead guilty of all the charges irrespective of the nature of the allegations even without the initiative of the Bank Management to invoke the said clause and that it will be the bounden duty of the management to accept the admission of the misconduct and impose a lesser punishment other than dismissal or discharge. Such a conclusion can never be drawn from a reading of para 19.12 (e) of the Bipartite Settlement. 21. The contention of the petitioner that when once the Bank decided to hold an enquiry, the admission of guilt made by the delinquent employee should be ignored and the misconduct ought to have been established by letting in evidence is totally on a misunderstanding and misconception of para 19.12 (e). Merely because the delinquent made a reference to para 19.12 (e) while admitting his misconduct, it cannot be held that the Bank Management is either precluded from either holding the enquiry or from relying upon the unequivocal admission of guilt made by the employee in writing as well as before the Enquiry Officer. It will have to be kept in mind that admission of guilt is the exclusive and personal decision of the delinquent employee. In the case on hand, when the first respondent never proposed to the delinquent employee of its intention that it was not going to impose the punishment of dismissal or discharge, there was no reason for the delinquent employee to state that simply because in his admission of guilt he referred to para 19.12 (e), the Bank management is bound to ensure that the punishment of discharge or dismissal will not be imposed. Such an assumption of the delinquent employee while admitting his guilt was uncalled for and, in any case, that would have never deprived the first respondent Bank to accept or act upon the admission of guilt made by the delinquent employee in unequivocal terms in more than one communication and also before the Enquiry Officer. https://hcservices.ecourts.gov.in/hcservices/ 22. In this context, the reliance placed upon by the learned counsel for the first respondent Bank in the decision reported in The Central Bank of India Ltd. v. Karunamoy Banerjee, AIR 1968 SUPREME COURT 266 is well founded. In the said judgment, the Hon'ble Supreme Court made it clear that where the delinquent admitted of the relevant facts on which the decision could be given against him, it cannot be said that the enquiry was in any breach of principles of natural justice. In fact, in one of the decisions relied upon by the learned counsel for the petitioner himself, the Hon'ble Supreme Court made it abundantly clear that it is a settled position of law that admission is the best piece of evidence against the person, making the admission. The said law has been stated in the decision in Delhi Transport Corporation v. Shyam Lal, 2004 (8) Supreme Court Cases 88. The legal position has been categorically stated by the Hon'ble Supreme Court in paragraph 7 as under : "7.We find that the Tribunal's conclusions are prima facie not correct. The statement made by the passenger who had paid excess money to the checking officer is not in the nature of hearsay evidence. Additionally, the effect of the admission regarding guilt as contained in the letters dated 13-1-1989 and 24-2-1989 have not been considered in the proper perspective. It is a fairly settled position in law that admission is the best piece of evidence against the person making the admission. It is, however, open to the person making the admission to show why the admission is not to be acted upon." (emphasis added) 23. Though the learned counsel would seek to rely upon the last sentence to contend that it was open to the delinquent to show why his admission of guilt could not have been acted upon, I am unable to accept the said submission, for the reason that the delinquent employee could have explained such a situation, if he had retracted from his admission or taken a stand that such admission was not made on his own or was made under pressure or undue influence or due to any other extraneous reasons. That was not the case of the petitioner. Therefore, when an unequivocal admission was made by the delinquent employee as regards the misconducts levelled against him, the mere reference to para 19.12 (e) of the Bipartite Settlement is of no avail to him. In such circumstances, the conclusion of the second respondent Tribunal that non-employment of the delinquent employee was fully justified does not call for any interference. https://hcservices.ecourts.gov.in/hcservices/ 24. In so far as the contention viz., that the delinquent employee accepted the terminal benefits under protest is concerned, as rightly pointed out by the learned counsel for the first respondent as well as, as recorded by the second respondent Tribunal in the impugned award, in support of the said stand, no material was placed before the second respondent and, therefore, the said contention cannot even be considered. 25. With regard to the proportionality of punishment, a perusal of the allegations levelled against the delinquent employee discloses that he made fictitious entries in his term loan Pass Book and also Savings Pass Book and had the benefit of enjoying the banks fund, which is the money of various constituents of the Bank, to the extent of more than Rs.30,000/-. That apart, he made certain manipulations in the current account of one Tmt.Mangalam in the Overdraft balance on one occasion and fictitious credit entry on another occasion. Similar such entries were made by the delinquent employee in respect of two other accounts, namely, M/s.Sree Vinayaga Traders and M/s.Leelavathy Traders. On those occasions also, the amounts were more than Rs.5,000/- each. Apart from the above, the delinquent is stated to have borrowed a sum of Rs.44,000/- from one of the constituents of the first respondent Bank with a promise to repay the same, by tendering two post-dated cheques, which promise was not duly kept by the delinquent. 26. A cumulative consideration of all the above proven charges would only go to show that it is highly risky to retain the services of the delinquent employee in the first respondent Bank, as that would not be in the interests of the constituents of the Bank. Therefore, the said contention of the learned counsel for the petitioner cannot also be countenanced. 27. Having regard to my above conclusions, I do not find any merit in this Writ Petition, which deserves dismissal. Accordingly, it is dismissed. No costs. Dixit Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, 1st Floor, Shasthri Bhavan, Haddows Road, Chennai-600 006. + 1 cc to Mr. K. S. V. Prasad, Advocate, SR No.919 + 1 cc to Mr. S. Vaidyanathan, Advocate, SR No.756 AKR(CO) SR/29.1.2008 W.P.No.14233 OF 2003 https://hcservices.ecourts.gov.in/hcservices/