IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.1.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.1726 of 1999 1. The Management, South India Bank Limited, Head Office, SIB House, Mission Quarters, Thrissur-680 001. 2. The Management, South Indian Bank Limited, 40, New Scheme Road, Pollachi, Coimbatore District, both rep.by General Manager (Planning & Admn) .. Petitioners -vs- 1. The Deputy Commissioner of Labour (Appeals), Coimbatore. 2. R.Visalakshi 3. R.Manoranjitham (minor rep.by guardian R.Visalakshi) 4. Minor R.Janarthanam (rep.by guardian R.Visalakshi) .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records of the first respondent in TSE Case No.11/95 and quash his order dated 29.9.1998. For petitioner :: Mr.Ananda Krishnan for M/s.T.S.Gopalan & Co. For respondents :: Mrs.C.K.Vishnupriya, AGP for R1 Mr.Edwin Prabakar for RR2 to 4 ***** O R D E R The petitioner is the management of South India Bank Limited having head quarters at Thrissur, Kerala State. Aggrieved by the order passed by the first respondent appellate authority in T.N.S.E.Case No.11/95 , dated 29.9.1988 in setting aside the order of termination passed against S.Rajavelu, the late husband of the https://hcservices.ecourts.gov.in/hcservices/ second respondent and father of 3rd and 4th respondents, the present writ petition has been filed. 2. The husband of the second respondent late Rajavelu was employed by the petitioner Bank and he was working as Additional Branch Manager in their Pollachi Branch. He was an handicapped person and also a severe diabetic. He was issued with a charge memo dated 11.12.1992 for the various commissions and omissions allegedly committed by him when he was working at Pollachi and Gobanapudur Branches. An enquiry was conducted in respect of those charge memo. Out of the 8 charges leveled except, charge No.7, all other charges were held to be proved by the enquiry officer accepting the report of the enquiry officer, the first respondent dismissed late Rajavelu by an order dated 6.3.1995. 3. After unsuccessfully filing an appeal before the Board of Directors, late Rajavelu preferred an appeal under section 41(2) of the Tamil Nadu Shops and Establishments Act 1947 (for short "TNSE Act") to the appellate authority of that region namely, the first respondent herein. His appeal was taken on file as TSE. Case No.11/95 and notice was issued to the petitioner bank. During the pendency of the appeal, he passed away on 19.4.1996 and respondents 2 to 4 came on record before the first respondent by filing I.A.No.3/96. 4. Against the order of impleadment of respondents 2 to 4, the petitioner bank preferred a writ petition before this court being W.P.No.15560 of 1996. The said writ petition was admitted on 19.11.1996 and an interim stay of further proceedings were granted by this court. Subsequently, when the respondents 2 to 4 filed a vacate stay application, the interim stay granted earlier was vacated by this court by an order dated 16.4.1997. 5. Thereafter, the first respondent took up the case for final hearing. Before the first respondent on behalf of the respondents 2 to 4, 10 documents were filed and they were marked as Exs.A-1 to A- 10. On the side of the petitioner-Management, 27 documents were filed and they were marked as Exs. R-1 to R-27. The first respondent, on an analysis of the evidence placed before him, came to the conclusion that the charges leveled against the Rajavelu was not proved in the enquiry and therefore, he set aside the order of dismissal dated 6.3.1995 and directed his reinstatement with back wages and all other attendant benefits by its order dated 29.9.1998. It is against this order, the present writ petition was filed as noted already. 6. The writ petition was admitted on 5.2.1999 and an interim order was granted. Subsequently, the said order was made absolute on 2.9.2003 . The second respondent also filed a counter affidavit dated 5.7.2008 . https://hcservices.ecourts.gov.in/hcservices/ 7. Mr. Ananda Krishnan, learned counsel representing for M/s.T.S.Gopalan and Co. for the petitioner submitted that it was wrong on the part of the first respondent/appellate authority to disagree with the findings given by the enquiry officer. The findings in respect of charge Nos.1 and 2, were perverse and the charge Nos.4 and 5 were very serious. Since the late Rajavelu was engaged as the Additional Branch Manager, it was improper on his part to have discounted cheques, when there was no sufficient funds. He also took this court to the findings rendered by the appellate authority and tried to submit that the order of the authority is liable to be set aside. 8. Per contra, Mr.Edwin Prabhakar, learned counsel for R-2 to R-4 submitted that in the enquiry, the petitioner-Management did not examine proper witnesses. Charge Nos. 1, 2 and 8 had a common allegation that he came to the branch office under influence of liquor. But in the enquiry, his drunkenness was not proved. The charge was based upon a complaint given by the Branch Manager Venugopal who was not having good terms with late Rajavelu. On 20.6.1992, since the said Rajavelu due to his sugar level shoot up and felt giddy sat on the stair case leading to the bank. The complainant Venugopal admitted that there was no previous complaint of misbehaviour before 20.6.1992 and he did not get Rajavelu examined to prove that he was drunk. M.W.3 Jayaraman and M.W.4, Paul R.James did not support the case of the bank. Therefore, the appellate authority rightly held charges 1, 2 and 8 were not proved. 9. It is submitted that with reference to charge No.3, the evidence of one M.R.Sivasamy was examined but the Bank Customer M.Mariappan was not examined. The so called complainant refused to be a party to depose against the Rajavelu. With reference to Charge No.4, the discounted cheque instead of being adjusted against the petitioner's account, was adjusted against some other account . The amount was sought to be adjusted through telegraphic transfer. The entire issue was precipitated by the officer of the bank. Further, when it was brought to the knowledge of late Rajavelu that he had deposited a demand draft for Rs.1000/- on 24.12.1992. 10. Similarly, he is submitted that charge No.5 that he took traveling allowance and after joining at the Gobanapudur Branch he had drawn Rs.3,500/- from 18.,5.1992 to 28.5.1992 whereas he was eligible to draw only Rs.1,293/-. For this, the late Rajavelu explained, since the period of deputation was not specified, he had drawn the excess T.A. amount . Only after checking the accounts it was found that he had drawn excess amount and it could be always adjusted against the salary account of Rajavelu. https://hcservices.ecourts.gov.in/hcservices/ 11.He further submitted that with reference to Charge No.6, for the alleged indecent behaviour against one A.R.Rangasamy Chettiar who had given a complaint, he was not examined. On the other hand it was elicited from the two management witnesses M/s.Varghees Mathews and G.R.Loganathan that the Rajavelu scolded Loganathan only because he came to the Manager's room and used the telephone without Manager's permission. Therefore, the appellate authority held that there was nothing wrong on the part of late Rajavelu in scolding that person. As stated already, charge No.7 was not proved even as per the finding of the domestic enquiry officer. 12. The appellate authority had gone into the evidence and had come to an independent conclusion that the charges were not proved against the late Rajavelu and hence, he is eligible for all consequential benefits. In this context, Mr.Edwin Prabhakar, learned counsel for the petitioner brought to the notice of this court that the decision of the Division Bench presented by P.Sadasivam J., (as he then was) reported in 2007(2) L.L.N.550 (I.K.Lodi v. Appellate authority under Tamil Nadu Shops and Establishemtns Act, Chennai and another) and referred to para 21 which reads as follows: "21. We have already pointed out that Sub sec. (3) of S.41 of the Act makes it clear that the decisionof othe appelalte authority shall be final and binding on both the parties. Further, it is not the case of the bank that the appellate authority has not looked into the oral and documentary evidence, on the other hand, the authority considered each charge with reference to the oral and documentary evidence let in by both sides and on proper appreciation of the materials, arrived at a specific conclusion, in such circumstances, as observed in the decision reported in 1999(2) L.L.M.74 (vide supra) it is not a case of no evidence or perverse finding' for interference by the learned Judge, exercising jurisdiction under art.226 of the Constitution of India." 13. In the light of the above, the writ petition deserves to be dismissed. Only question is since the said Rajavelu had passed away on 19.4.1996, the relief granted by the authority has to be modified. 14. It is claimed by the petitioner-Management that they have already paid the late Rajavelu the following amounts which were set out in a memo dated 7.7.2008 filed before this court and the same is extracted below: "1.Gratuity - Rs.1,34,550.00 2.Provident Fund - Rs.2,25,351.00 https://hcservices.ecourts.gov.in/hcservices/ 3.Arrears of Subsistence Allowance - Rs. 2,273.00 4.GSLS - Rs. 5,147.00 5.Arrears of salary & Gratuity (due to salary revision of officers) - Rs. 42,253.67 ------------------- Rs.4,09,574.67 ----------------- Item No.1 to 3 was received by the dismissed employee on12.10.1995 and item NO.4 & 5 was received by the dismissed employee on 11.4.1996. Out of the total amount paid as above by way of terminal benefits, a sum of Rs.2,13,365.08 being the amount outstanding as on the date of dismissal in his various loan accounts, was adjusted with the consent of Rajavelu, at the time of settlement of the account." 15. Therefore, the only amounts to be paid is the back wages and the difference in gratuity. It is claimed that at the time of his dismissal, he was paid a monthly salary of Rs.10,120.65. If the back wages are worked out at this rate from 6.3.1995 to 19.4.1996 , it comes to Rs.1,36,019.35. The difference in gratuity is calculated it may work out to another Rs.4,000/-. Therefore, the sum payable to the respondents 2 to 4 is now rounded off to Rs.1,40,000/- . The petitioners are directed to pay the amount of Rs.1,40,000/- to the respondents 2 to 4 within a period of eight weeks from the date of receipt of a copy of this order. 16. The writ petition is accordingly dismissed with the above directions. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rj To The Deputy Commissioner of Labour (Appeals), Coimbatore. 1 cc To M/s. T.S.Gopalan & Co., Advocate, SR.1595 1 cc To Mr.A.Edwin Prabhakar, Advocate, SR.1570 W.P.No.1726 of 1999 MSM(CO) SRA(28/01/2009) https://hcservices.ecourts.gov.in/hcservices/