IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WA.No. 1119 of 2008() ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.20922/2003 Dated 11/01/2008 .................... APPELLANT(S): ----------------------- PALAKKAD JILLA VANIJYA VYAVASAYA MAZDOOR SANGHAM, HARIKKARA,STREET, PALAKKAD, REPRESENTED BY ITS SECRETARY, N.VISHNUDAS, AGED 54 YEARS, SON OF KRISHNAN NAIR. BY ADVS.MR.H.B.SHENOY MR.B.ASHOK SHENOY MR.THOMAS P.MAKIL SMT.LAKSHMI B.SHENOY MR.ABU MATHEW MR.SOBHAN GEORGE RESPONDENT(S): -------------------------- 1. THE PERUR SERVICE SAHAKARANA BANK LTD., REPRESENTED BY ITS SECRETARY, PERUR P.O., OTTAPALAM, PALAKKAD 679 302. 2. THE INDUSTRIAL TRIBUNAL, PALAKKAD. R1 BY MR.V.CHITAMBARESH, SENIOR ADVOCATE R1 BY ADVS.MR.T.C.SURESH MENON, MR.JIBU P THOMAS, MR.P.S.APPU. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K.BALAKRISHNAN NAIR, J & S.S.SATHEESACHANDRAN, J ------------------------------------- W.A No.1119 OF 2008 -------------------------------- Dated this the 15th day of February 2010 JUDGMENT Balakrishnan Nair, J 2nd respondent is the appellant. 1st respondent herein is the writ petitioner. Brief facts of the case are the following. 2. Smt. A.Soubhagyavathy was a Senior Clerk of the 1st respondent bank. Disciplinary action was taken against her after following the due procedure. She was dismissed from service on 12/10/1999. The appellant herein espoused her cause and raised a dispute which was ultimately referred for adjudication to the Industrial Tribunal, Palakkad. The Tribunal found that the enquiry was held properly and the finding of guilt was based on the evidence tendered before the enquiry officer. Thereafter while considering on the proportionality of the punishment with reference to the proved misconduct, invoking the power under Section 11A of the Industrial Disputes Act 1947, Tribunal found that the misconduct proved against the delinquent senior clerk was not that much serious warranting dismissal from service. Therefore, the punishment of dismissal was substituted by a lesser penalty of barring four increments. In the result there was a direction to reinstate her with the aforementioned penalty. W.A No.1119 OF 2008 Page numbers The 1st respondent bank challenged the said award, a copy of which was produced as Ext.P3 in the writ petition. The learned Single Judge noticed that the findings of the Tribunal that the misconduct proved were not serious are untenable. Learned judge ordered to convert the punishment into one of discharge so that the employee would be entitled to the terminal benefits. The trade union of the delinquent employee has preferred this appeal challenging the said decision of the learned single Judge. The learned counsel for the appellant submitted that the Tribunal having regard to all the materials on record came to the conclusion that the misconducts proved were not of serious nature. The Tribunal had the advantage of seeing all the background materials which were let in to prove the aforementioned charges. A reading of the misconduct taken out of context may appear to be serious as this court does not have the advantage of seeing all the materials relevant in this case. At any rate, the learned counsel submitted that the matter should have been remitted to the tribunal for a fresh decision in accordance with law. 3. The allegations against the worker were the following. (a) The worker who was a Senior Clerk refused to discharge her duties and responsibilities in spite of repeated instructions W.A No.1119 OF 2008 Page numbers given to her and she also refused to take over the charges of the Secretary on 03/08/1998. (b) The worker denied the fact of receipt of notice intimating her that the promotion benefits would be given to her only on submitting satisfactory explanation. (c) Making false allegation that the Secretary had forged the signature of the worker. (d) Making allegation that the former Senior Clerk Sri.K.Damodharan put the signature of the worker and misleading the Board of directors and customers. (e) Submitting statements before the disciplinary committee contradictory to the contents of her letter dated 05/09/1998. (f) The worker had misbehaved towards the customers, other employees, Secretary, President and the members of Director Board. (g) Tampering the fixed deposit register by altering the figures Rs.24,000/- to Rs.20,000/- against fixed deposit loan No.547/98. (h) Writing unnecessary matters in day book and subsidiary cash book. (i) Making false allegation that receipt No.4732 dated 29/08/1998 was rubbed with paste. W.A No.1119 OF 2008 Page numbers (j) Making false statement that one Sukumaran Master and Hajir Umma complained that all the items of gold ornaments pledged by them were not received back from the management-bank. (k) The worker refused to accept the memos served on her by the Secretary. 4. Except allegation No.(e), the employee was found guilty of all other charges by the enquiry authority. Disciplinary authority accepted those findings after giving an opportunity to the delinquent employee to file her objection to them. We notice that allegation No.(g) among the above stated allegations deals with the tampering of the figures Rs.24,000 in a fixed deposit receipt to Rs.20,000/-. Allegation was that it was done to trap the Secretary of the bank. The said allegation is a very serious allegation and it has been held to be proved. If that be so, for that allegation alone her service has to be terminated. Having regard to the said allegation, the finding of the Tribunal that the proved misconduct were not serious warranting dismissal is perverse and the same cannot be supported. So we are of the view that the learned single Judge was right in his judgment. Having regard to the facts of the case, it is unnecessary to remit the matter to the Industrial Tribunal. In appropriate cases, now it is well settled that this court itself can pass an order which the W.A No.1119 OF 2008 Page numbers competent authority would have passed, had it properly exercised the discretion vested in it. (See the decision “Comptroller and Auditor General of India Vs K.S Jagannathan and Another” (AIR 1987 SC 537)). The contentions of the appellant therefore, fail, and accordingly, the writ appeal is dismissed. K.BALAKRISHNAN NAIR JUDGE S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A TO JUDGE vdv