IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY NINETH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P. No.5977 of 2006 Between: The Bhongir Cooperative Central Bank Limited, Now changed as The Nalgonda District Cooperative Central Bank Limited, Nalgonda, Nalgonda District, Rep.by its General Manager. … Petitioner And Mr.Chanda Narender Reddy, S/o.Venkat Reddy and another. … Respondents THE HONOURABLE SRI JUSTICE G.CHANDRAIAH W.P. No.5977 of 2006 ORDER: The writ petitioner herein is the Bhongir Co-operative Central Bank Limited that was changed as the Nalgonda District Co-operative Central Bank Limited filed the present writ petition questioning the award dated 02.04.2005 passed in M.P. No.1 of 1981 in I.D. No.8 of 1975 by the learned Additional Industrial Tribunal-cum-Additional Labour Court at Hyderabad (for short ‘the learned Tribunal’). The 1st respondent herein, filed a complaint under Section 33-A of the Industrial Disputes Act, 1947, (for short ‘the Act’), was removed from service, after domestic enquiry, on the charges of committing certain irregularities, during the course of his service, in contravention of Section 32(2) of the Act, even though I.D. No.8 of 1975 was pending adjudication between the union and the management of the Bank. By award dated 02.04.2005, the learned Tribunal passed an award setting aside the imposition of punishment of dismissal from service and modified to that of compulsory retirement from service. Aggrieved by which, the petitioner-Bank filed the present writ petition. Brief facts of the case are that the 1st respondent herein was appointed as a Supervisor on 01.08.1959 and promoted in the month of July, 1969 as branch Manager and posted at Choutuppal branch. In the year 1972, he was transferred to the head office at Hyderabad and while working in the head office, on 22.05.1976 he was placed under suspension on certain charges. He was issued a charge sheet on 22.05.1976 to which, he submitted his explanation on 22.07.1976. After conducting domestic enquiry, he was removed from service by order dated 08.01.1981 and he was also subjected for criminal charges in C.C. No.67 of 1976 under Section 409 and 477 of IPC on the file of the learned Additional Judicial Magistrate First Class, Bhongir and in the said criminal case, he was acquitted by order dated 29.03.1985. During the course of domestic enquiry, on the ground that the Enquiry Officer had not followed the required procedure, the 1st respondent herein filed I.D. No.8 of 1975. While the said matter was pending consideration, on 08.01.1981, he was dismissed from service. On the ground that the order of dismissal is contrary to under Section 33(2) of the Act, he filed M.P. No.1 of 1981 in I.D. No.8 of 1975. By order dated 02.04.2005, the learned Tribunal partly allowed the M.P. No.1 of 1981 in I.D. No.8 of 1975 and modified the order from dismissal to that of compulsory retirement. Further facts, which are not in dispute, are that on the earlier occasion, the learned Tribunal passed an award on 04.12.1985 (first award) holding that the 1st respondent herein is entitled to reinstate into service with all benefits. Aggrieved by the same, the petitioner-Bank filed W.P. No.3882 of 1986. By order dated 24.02.1989, while setting aside the said award, this Court, remitted the matter for considering the evidence afresh. After considering afresh, the learned Tribunal passed another award dated 26.08.1993 (second award) upholding the order of dismissal. Questioning the same, the 1st respondent herein filed another W.P. No.3583 of 1994. By order dated 19.06.1997, this Court, while setting aside the said award also, remitted the matter with a direction to the learned Tribunal to pass reasoned order dealing with all the issues, considering the evidence on record and arguments. The learned Tribunal, once again, passed award on 19.09.1997 (third award) holding that the 1st respondent is guilty of charges 1, 4, 5 and 6 and modified the punishment of dismissal to that of compulsory retirement. Questioning the same, the petitioner-Bank has filed W.P. No.24955 of 1998 and the 1st respondent herein also filed another W.P. No.21430 of 1999 seeking for reinstatement into service. By order dated 04.10.2004, both the writ petitions, i.e. W.P. No.24955 of 1998 (filed by the petitioner-Bank) and W.P. No.21430 of 1999 (filed by the 1st respondent herein) were disposed of while setting aside the award dated 19.09.1997 passed by the learned Tribunal and the learned Tribunal was directed to look into the evidence on the file of the Tribunal only but not the evidence before the domestic enquiry. In compliance with the same, the learned Tribunal passed award in M.P. No.1 of 1981 in I.D. No.8 of 1975 on 02.04.2005 holding that the charges 1, 4, 5 and 6 that are leveled against the 1st respondent herein were proved. Therefore, taking into consideration the facts and circumstances of the case, the learned Tribunal modified the order of dismissal of the 1st respondent herein from service to that of compulsory retirement. Aggrieved by which, the petitioner-Bank has filed the present writ petition. This Court on 27.03.2006 ordered Rule nisi and notice in WPMP. No.7634 of 2006, wherein, the petitioner-Bank, sought for suspension of the impugned award but no interim order has been granted. But by virtue of order dated 25.03.2010, passed in WPMP. No.7295 of 2010, petition seeking to fix an early date of hearing, today the matter has been listed under the caption for final hearing. The learned counsel appearing for the petitioner submitted that the 1st respondent herein was bank Manager and he is not a workman within the definition of Section 2(s) of the Act. Therefore, I.D. No.8 of 1975 itself is not maintainable and the said aspect was not considered by the learned Tribunal. He further submitted that having regard to the fact that the charges 1, 4, 5 and 6 that were leveled against the 1st respondent herein were proved, the learned Tribunal ought not to have interfered with the order of dismissal and ought to have confirmed the same instead of modifying the order from dismissal to that of compulsory retirement. Therefore, the impugned order is liable to be set aside. On the other hand, the learned counsel appearing for the 1st respondent herein submitted that all the issues that have been raised on behalf of the petitioner-Bank were considered and having regard to the facts and circumstances of the case, the learned Tribunal had passed the impugned order setting aside the order of dismissal of the 1st respondent herein from service and modified to that of compulsory retirement. He further submitted that even as per the evidence on record, there was no possibility to hold that the charges leveled against the 1st respondent herein are proved but he submitted that he has not questioned the award passed by the learned Tribunal. Therefore, it is submitted that the impugned award does not suffer from any legal infirmity, as such, the same is to be sustained and the writ petition is liable to be dismissed. As could be seen from the record, the following are the charges framed against the 1st respondent herein: “Charge No.1: He forged the signature of the Secretary of the Koyyalagudem Handloom Weaver Co-operative Society and drawn a loan of Rs.2,400/- and he has not yet made good of this amount. Charge No.2: He opened a fictitious special savings account in the name of K.Ramachandram, Secretary of Koyyalagudem Co-operative Society obtained signatures on the blank cheques in the cheque book issued to him and operated himself the account presumably with the funds of the branch and used to remit the monies into the account forgoing the signature of the account holder and he has turned out Rs.1.31 lakhs transaction from February, 1971 to August, 1971 and tht the person in whose name the account was operated is a man without corresponding means. Charge No.4: He collected savings deposits and daily deposits from several deposit-holders, made entries in the pass books but failed to bring the amount so collected to the cash book and utilized the bank funds for his personal ends. Charge No.5: He allowed drawal of huge amount from the Special saving account of Sri Pocham Peda Yellaiahgaru, Jagannadham while the account holder did not possess the amount to that extent to the credit of his account, thus misused the bank funds for his personal ends in collaboration with the accountholder. Charge No.6: He was writing altering and correcting the entries in the books of accounts to cover up his misuse taking advantage of his position and innocence of the other members of the staff. Charge No.7: He himself collected certain deposits by going door to door and forged the signature on the pay slips while remitting that amount into bank instead of remitting it under his own signature.” The learned Tribunal, after considering the evidence, held that the charges 1, 4, 5 and 6 are proved and the charges 2 and 7 are not proved and the charge No.3 was dropped. Further, it could be seen from the order dated 14.10.2004 passed by this Court in W.P. No.21430 of 1999, which was filed by the 1st respondent herein seeking for issuance of Writ of Certiorari calling for the records in M.P. No.1 of 1981 in I.D. No.8 of 1975 before the 2nd respondent herein and quash the order dated 19.09.1997 as being illegal and consequently directed to reinstate the 1st respondent herein into service with back wages and all other attendant benefits. The relevant portion of the order passed by this Court is as under: “The Labour Court was only supposed to look into oral and documentary evidence let in before it by both the parties and come to a conclusion on that basis. Since the labour Court has not followed such a course of action, the impugned award passed by it cannot be said to be followed. Therefore, the same is set aside and the matter is remitted back for fresh consideration by the labour Court. The labour Court is directed to look into the evidence that was let in before it after the domestic enquiry was held to be vitiated earlier and not any other evidence. The labour Court is further directed to dispose of the matter within a period of three months from the date of receipt of a copy of this order. It is made clear that there is no necessity of permitting the parties to lead any fresh evidence, both oral and documentary, in this regard. The writ petition is allowed to the extent indicated above and the matter is remanded to the Labour Court as stated supra. No costs.” Pursuant to the said order, the learned Tribunal disposed of M.P. No.1 of 1981 in I.D. No.8 of 1975. Having regard to the direction given by this Court, in the above writ petition, the learned Tribunal was supposed to consider the evidence on record and nothing else, to consider the issue of the validity of the order of dismissal, passed by the petitioner-Bank. Therefore, the learned Tribunal framed the issue for consideration as to whether the management could establish charges No.1, 2, 4, 5, 6 and 7? If so, whether the punishment of dismissal from service awarded is commensurate to the gravity of the charges? In this regard, the learned Tribunal clearly eschewed any of the material except the material on record to look into the validity of the order of dismissal. Therefore, it held that the issue, as to whether the 1st respondent herein is within the definition of under Section 2(s) of the Act, was not there for consideration. Therefore, the contention of the learned counsel for the petitioner-Bank that the learned Tribunal has failed to consider the contention of the petitioner- Bank with regard to the status of the 1st respondent herein as to whether he is a workman or not and the I.D. No.8 of 1975 is not maintainable, is not sustainable. Coming to other contention that the learned Tribunal having held that the charges 1, 4, 5 and 6 that were leveled against the 1st respondent herein are proved and having regard to the nature of the charges leveled against him, the learned Tribunal committed an error in interfering with the order of dismissal and modifying it to that of compulsory retirement, therefore, the same is illegal and perverse. The learned Tribunal had observed, with regard to the proportionality of the punishment, as under: “I agree with the contentions still my good conscious is impelling me to adopt a lesser punishment in the peculiar circumstances of this case, where the petitioner has joined the service of the bank in the year 1958 and his misconducts were detected in the year 1975, but the domestic enquiry was conducted (3) years later, and he has also faced the rigours of criminal prosecution, and the order of dismissal was passed way back in the year 1981 and he filed the application in question in the year 1981 and quite unfortunately it took almost 25 long years to pass final orders in his application, where three awards were passed earlier by this Court, first one is in his favour, the other two ones against him and the Hon’ble High Court was constrained to set aside those awards on finding errors on Law in passing those awards and in the meanwhile the petitioner has surpassed his age of superannuation, No doubt sending back the petitioner to the bank continue to work there or in case he has already surpassed superannuation age a demmed resurrection of his services which would have the effect that from 1981 he would be deemed in service. Under these circumstances a punishment of compulsory retirement from service would be apt and meet the ends of justice.” For the above reasons, I do not see any illegality, irregularity or perversity. Therefore, I am of the view that the reasons given by the learned Tribunal while interfering with the order of dismissal and modifying to that of compulsory retirement are sound and justifiable. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, I do not see any reason or legal infirmity to interfere with the impugned award dated 02.04.2005 passed in M.P. No.1 of 1981 in I.D. No.8 of 1975 by the learned Tribunal. Therefore, the impugned award is upheld and the writ petition is dismissed. There shall be no order as to costs. __________________________ JUSTICE G. CHANDRAIAH Date: 29.07.2010 LSK