IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 OP.No. 24329 of 1998(U) --------------------------------- PETITIONER(S): ---------------------- C.N.PRABHAKARAN, CHEMPANPURAYIDATHIL, RAJAKKAD P.O., IDUKKI DT. BY ADV. MR.MATHEW SEBASTIAN RESPONDENT(S): -------------------------- 1. THE INDUSTRIAL TRIBUNAL, IDUKKI , ELAPPARA. 2. THE RAJAKKAD SERVICE, CO-OPERATIVE BANK LTD., NO.342, RAJAKKAD P.O., IDKKI DISTRICT. R1 BY GOVT. PLEADER SMT. SUDHADEVI BY MR.M.N.SUKUMARAN NAYAR, SENIOR ADVOCATE R2 BY ADVS.MR.B.RAMAN PILLAI , MR.C.HARIKUMAR, MR.RAJU RADHAKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.42806/1998 IN OP. NO.24329/1998 DISMISSED 03/12/2009 SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PETITION DTD. 5.11.1996. P2:- COPY OF THE LOAN APPLICATION AND THE CONNECTED PAPERS DTD. 3.5.1980. P3:- COPY OF THE AWARD DT. 1.4.98 IN THE COURT OF THE INDUSTRIAL TRIBUNAL, IDUKKI. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE REPRESENTATION SUBMITTED BY THE MEMBERS BEFORE THE BANK DTD. 17.5.1988. R2(b):- COPY OF THE REPRESENTATION SUBMITTED BY THE MEMBERS BEFORE THE BANK DTD. 20.5.1988. R2(c):- COPY OF THE REPRESENTATION SUBMITTED BY THE MEMBERS BEFORE THE BANK DTD. 21.5.88. TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 24329 of 1998 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3rd December, 2009. J U D G M E N T The petitioner was an employee of the 2nd respondent-Co- operative Bank. Disciplinary proceedings were initiated against him on four charges of misconduct. An enquiry was conducted and on finding the petitioner guilty of the charges of misconduct in the enquiry, he was dismissed from service. The petitioner raised an industrial dispute, which was referred for adjudication as I.D. No. 157/1990 to the Industrial Tribunal, Alappuzha. Later on, the same was transferred to Industrial Tribunal, Idukki, who re-numbered the the same as I.D.No. 7/1994. Before the Industrial Tribunal, the 2nd respondent -management chose not to rely on the enquiry conducted by them, but to adduce fresh evidence before the Tribunal to substantiate the charges levelled against the petitioner. Evidence was adduced by both sides. After considering the evidence adduced, the Tribunal passed Ext. P3 award holding the petitioner guilty in respect of one charge out of the 3 charges. Since the proved charge involved misappropriation of money belonging to the management, the Tribunal found that the proved charge is grave enough to warrant the punishment of dismissal. Accordingly, the Tribunal, by Ext. P3 award, held that the petitioner is not entitled to any reliefs in the I.D. That award is under challenge before me. 2. The petitioner challenges the award on the only ground that the finding of guilt in respect of one charge was against the evidence involved in this case. According to the petitioner, the Tribunal heavily relied on an admission in writing by the petitioner in respect of the misconduct, which, according to the petitioner, was obtained by coercion and threat. He therefore would submit that that evidence could not have been relied upon, to find the petitioner guilty of the misconduct. He further submits that in view of Ext. P2 document O.P. No. 24329/98 -: 2 :- produced, which is the loan application relating to the charge of misappropriation, would go to show that the other evidence is unbelievable and the petitioner's version is believable. According to him, the misconduct alleged against him is that the petitioner forged loan documents in the name of some members of the bank and misappropriated the loan amounts. This is sought to be proved on the basis of complaints received from the alleged borrowers stating that they have not received any loan amount. On the back of the complaints, the petitioner himself had written that the loan mentioned in the complaint was taken by the petitioner and he would repay the same. According to the petitioner, the petitioner filed a petition to summon the loan applications of the complainant and only one was produced by the management stating that the other documents are not traceable. He points out that, that loan document was signed by the complainant, who filed the complaint. He further submits that as explained by the management witness himself, the grant of loan involves a lengthy process, which has to be ultimately sanctioned by even the Board of Directors and therefore it is impossible to believe that the petitioner alone had got the loan sanctioned for himself. Therefore, according to the petitioner, the finding of the Tribunal is perverse and unsustainable. He also points out that even assuming that the charges have been proved, the loan amounts are negligible amounts for which the punishment of dismissal from service is totally disproportionate. He points out that at the time of dismissal, he was only 41 years of age and he had 17 more years of service remaining. The petitioner therefore seeks quashing of Ext. P3 and reinstatement with back wages. 3. In answer to the same, counsel for the 2nd respondent would submit that before the Tribunal, the management had conclusively proved the charge against the petitioner. He points out that while giving evidence, the petitioner himself admitted that he himself had O.P. No. 24329/98 -: 3 :- written on the back of the complaints that he had availed of the loans and he would repay the same. According to him, the defence for the same was that he had written the same under threat and coercion, which is clearly an after-thought since, at any time before giving evidence before the Tribunal, the petitioner had not taken such a contention. Regarding the documents summoned by the petitioner, counsel would submit that the petitioner has not been able to prove that the loan document was actually signed by the complainant- applicant for loan himself. It is pointed out that in disciplinary proceedings, it is not necessary to prove guilt beyond a reasonable doubt and not even by preponderance of probability. The degree of proof is only that of a reasonable man to the effect that if any reasonable man would come to a conclusion of guilt on the basis of the evidence, that would be sufficient for the purpose of returning a verdict of guilt in industrial disciplinary proceedings. 4. I have considered the rival contentions in detail. 5. What has been canvassed before me is the sustainability of the finding regarding charge 3 levelled against the petitioner. The charge is that the petitioner forged loan documents in the names of members of the bank and misappropriated the loan amounts. This was sought to be established by 3 complaints received from 5 members of the bank. Al the 3 complaints stated that they have been informed that they are liable to repay loan amounts taken by them from the bank and that they have not received any loan amounts from the bank. These complaints were produced as Exts.P8(a), P8(b) and P8(c) before the Industrial Tribunal as evidence. On the back of each of those complaints, the petitioner himself had written that the loan mentioned in the complaint was taken by him and that the he would repay it before a particular date. The workman, while giving evidence, specifically admitted having written the same on the back of the O.P. No. 24329/98 -: 4 :- complaints. His defence was that he wrote them since the President of the bank threatened him that unless he writes the same, he would be handed over to the police and disciplinary proceedings would be taken against him. I find it difficult to believe the defence of the petitioner. After the petitioner wrote the endorsement in the complaints charge sheet has been issued to the petitioner and disciplinary action was continued. At no point of time the petitioner found it necessary to retract the same, not even when he was served with a show cause notice for disciplinary proceedings. If the petitioner had written the same under threat and coercion, when he received the show cause for disciplinary proceedings, he would certainly have realised that, the admission would be used against him in the disciplinary proceedings. Therefore, a normal human conduct would require that he would immediately complain to some authority that that admission was obtained from him under threat and coercion. Admittedly, the petitioner has not done so until he gave evidence before the Industrial Tribunal in the I.D. As far as Ext. P2 is concerned, which is one of the loan applications heavily relied on by the petitioner, I have nothing before me to find that it was actually signed by the complainant who disclaimed having received the same. Further, even if the application was actually signed by the complainant, still the petitioner has to show that the complainant had received the loan amount. Of course, the 2nd respondent was not able to explain to me how the loan application happened to be sanctioned after going through the long channel of verification. But, still, the other evidence overweights the evidence relied upon by the petitioner. From the evidence available, a reasonable man would certainly come to the conclusion that the petitioner is guilty of the charge found against him. I do not find any perversity whatsoever in the findings entered by the Industrial Tribunal in that regard. Therefore, I do not find any merit in the challenge against the findings O.P. No. 24329/98 -: 5 :- of guilt of charge No. 3 found against the petitioner by the Tribunal. 6. Counsel for the petitioner, relying on the decision of the Supreme Court in Ex. Naik Sardar Singh v. Union of India and others, AIR 1992 S.C 417 would strenuously argue that the punishment should be proportionate to the gravity of the misconduct found. According to him, since the misconduct found is only misappropriation of a few thousands of rupees, the punishment of dismissal imposed on him is totally disproportionate and irrational. I am unable to agree with the petitioner. It is settled law that imposition of punishment is a managerial function. The Labour Court or this Court cannot substitute the punishment imposed by the management on the delinquent with a punishment, which, according to the Tribunal or this Court, is reasonable. It is settled law that the Tribunal and this Court can interfere with punishments imposed by the management only if the punishment is shockingly disproportionate to the gravity of the misconduct. Here, regardless of the amount of money misappropriated, it still remains misappropriation, which cannot be lightly condoned. As such, I do not find that the punishment of dismissal for the said misconduct is shockingly disproportionate to the gravity of the misconduct committed by the petitioner. Therefore, on that count also, the petitioner is not entitled to any relief. The original petition is without merit and accordingly the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/