IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 18..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 10985 of 1998 S. Narasimhan .. Petitioner Vs. 1. The Presiding Officer Labour Court Vellore 2. The Management of Kamaraj Co-operative Town Bank Ltd. Polur T.S. District 3. The Labour Officer Tiruvannamalai .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari to call for the records from the first respondent pertaining to the award dated 04.12.1996 of the first respondent in I.D. No. 485 of 1994 published in the Tamil Nadu Government Gazette dated 16.4.1997 Part II – Section 2 (Supplement), quash the same and substitute the same by directing the second respondent to reinstate the petitioner with continuity of service, full backwages and all other attendant benefits. For Petitioner : Mr. Balan Haridoss R1 : Court For Respondent 2 : Mr. John Zakharia for M/s T.S. Gopalan & Co. R3 : No Appearance ORDER This writ petition is filed against the Award dated 04.12.1996 passed by the first respondent Labour Court in I.D. No. 485 of 1994 as it had declined to grant any relief to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was employed as a Peon in the second respondent Bank. By a charge-memo dated 02.02.1987, six charges were framed against him and the charges relate to availing of jewel loan in the name of his family members and friends and obtaining loan in the name of his wife exceeding the maximum limit fixed for an individual, removing the jewels from the Bank even before clearing of the loan, despite admission of the guilt not making good the amount, making false entries in the register and the jewel loan cards in his own hand writing as though it was written by the Section Clerk and also he tore of several sheets in the jewel loan ledger to screen the evidence. He submitted an explanation dated 09.02.1987. Thereafter, a domestic enquiry was held by one Advocate. 3. The grievance of the petitioner was that the lawyer, who was engaged, was a junior Advocate of the counsel for the then President and therefore, the enquiry was biased. After conducting enquiry and examination of five witnesses in the enquiry by the Management and marking 62 documents, the petitioner examined himself and four other witnesses. The Enquiry Officer found that the first charge, viz., pledging loan in the name of his family members and friends and receiving particulars was proved and the other charges were not proved. The second show cause notice dated 15.9.1989 was given to the petitioner after examining the explanation submitted by the petitioner. He was dismissed by an order dated 12.6.1989. As against the said dismissal, the petitioner filed an appeal to the Board of Directors and the Board dismissed his appeal vide order dated 22.7.1991. It was thereafter, he raised an industrial dispute before the Government Labour Officer which finally reached the Labour Court at Chennai and was taken on file as I.D. No. 349 of 1992. Subsequent to the consideration of the Labour Court at Vellore, the matter was transferred and re-numbered as I.D. No. 485 of 1994. 4. Before the Labour Court, 17 documents were filed by the second respondent Management and they were marked as Exs. M.1 to M.17. The Labour Court held that the domestic enquriy was conducted in a fair and proper manner and the finding of the Enquiry Officer that the first charge was proved is borne out by records. On the question of quantum of punishment, the Labour Court held that though the petitioner was a last grade servant in the Bank, but he has misused his access to the Bank and committed a serious misconduct thereby rendering himself unworthy of confidence. Therefore, it refused to grant any relief to the petitioner by its Award dated 04.12.1996. It is against this Award, the present writ petition has been filed after a period of 1½ years. https://hcservices.ecourts.gov.in/hcservices/ 5. Heard the arguments of Mr. Balan Haridoss, learned counsel for the petitioner and Mr. John, learned counsel appearing for M/s T.S. Gopalan & Co., for the second respondent and perused the records. 6. Mr. Balan Haridoss, learned counsel appearing for the petitioner submitted that the petitioner was also proceeded with the criminal action in Crime No. 8 of 1989 and was tried as the third accused before the Judicial Magistrate No. 2, Vellore. The learned Judge, after protracted trial in C.C. No. 4 of 1998, acquitted the petitioner by judgment dated 31.8.2005. The learned counsel wanted to take advantage of the subsequent Criminal Court judgment which was not available before the domestic enquiry. 7. In this context, the learned counsel also relied upon the judgment of the Supreme Court in G.M. Tank v. State of Gujarat and others [2000 (6) SCC L&S 1121]. That was a case where the employee was charge-sheeted for having disproportionate wealth. He was also simultaneously tried before the Criminal Court for the very same offence. When his dismissal was challenged before the High Court, the learned Judge dismissed the writ petition and subsequently, when the matter was pending before the Division Bench, the subsequent acquittal was brought to the notice of the High Court. But the Division Bench refused to look into the subsequent acquittal even though the materials on which the domestic enquiry was conducted. It was found that the material before the Criminal Court and in the enquiry were one and the same. 8. On appeal, the Supreme Court held that though the aim and purpose of the domestic enquiry was different and the employer need not wait for the criminal case to get over and then can proceed departmentally and take a decision. In the case before the Supreme Court, it was found that since the investigation officer as well as departmental witnesses were the same persons and materials were also the same, it was not safe to rely upon the departmental enquiry. When there was an honourable acquittal, the Court can decide the fate of the individual in the light of the acquittal by the Criminal Court. The learned counsel relied upon the following passages found in paragraphs 30 and 31 of the said judgment:- Para 30: "The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the https://hcservices.ecourts.gov.in/hcservices/ same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant’s residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. Para 31: In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." https://hcservices.ecourts.gov.in/hcservices/ 9. But in the present case, it must be seen that the charge against the petitioner was not what was tried before the Criminal Court. While in the Criminal Court, the criminal act of the petitioner was under trial, but in the departmental enquiry, the charge was about the improper conduct of his availing large number of jewel loans in the name of his friends, family members and wife, which was proved to the satisfaction of the Labour Court. In fact, in the domestic enquiry, the Enquiry Officer found that as many as 24 loans were obtained by him in the name of his wife Mallika. Then in the name of his sister-in-law Vanaja one loan was obtained. Three loans were obtained in the name of another sister-in-law Sulochana. In the name of his brother S.Jayaraman, 12 loans were obtained and in the name of another brother S. Natarajan, 10 loans were obtained. Further, in the name of his third brother Balaraman, 9 loans were obtained. This conduct makes it appear as if the Bank only existed for the petitioner's relatives and friends. 10. Though Mr.Balan Haridoss tried to submit that each loan transaction is decided by the officials of the Bank and his wife and relatives are independent persons and he cannot be charge- sheeted just because they have taken loan. But in the present case, the domestic Enquiry Officer found in his report that when the jewel loan records were verified from 06.10.1986 to 10.10.1986, 57 jewel loans were foreclosed but whereas the jewelleries were found missing from the chest. In fact, many jewels have not been redeemed right from the year 1981 and in respect of several jewel loan transactions, the loans have been granted but the jewels have not been redeemed. In respect a same gold ear-ring as well as a pair of jewellery, 9 jewel loans have been given. These facts were not denied either by the petitioner or by the relatives examined in the enquiry. Though he might not be the person authorised to deal with loan transaction, the fact that some of the jewel loans written in his own handwriting as if it was written by the Section Officer is found correct and also accepted by the Labour Court. 11. The learned counsel relied on the Division Bench judgment of this Court in P. Karuppiah v. Deputy Registrar of Co- operative Societies, Periyakulam [1989 WLR 272]. This is for the purpose of showing that before the petitioner was accused of any negligence, it must be established that he was specifically entrusted with duties and obligations which resulted in the negligence. In the present case, the petitioner is not accused of any negligence. But he is accused of the improper conduct of availing loans in the name of his relatives and friends. He also submitted that there is no proof that the petitioner had forged the signatures and if the charges 2 to 6 are not proved, then it will automatically result in the first charge not being proved. https://hcservices.ecourts.gov.in/hcservices/ 12. This Court is unable to accept the said contention because it is not necessary that each one of the charge should be proved and thereafter, the petitioner should be punished cumulatively for all the charges and not for the first charge alone which cannot stand. Even though the petitioner might have been let off for the misconduct relating to forgery, his improper conduct of availing jewel loans in the name of his family members thereby throwing the rules and regulations of the Bank to the wind, itself shows a serious misconduct. Therefore, the claim that he should be given leniency cannot be accepted. The Labour Court has properly appreciated the evidence of the petitioner and has also dealt with his conduct as well as the punishment. The question of showing any leniency for a misconduct of this nature does not arise. 13. In view of the above, the writ petition deserves to be dismissed. Accordingly, it is dismissed. However, there will be no order as to costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar gri To 1. The Presiding Officer Labour Court Vellore, Vellore District 2. The Labour Officer Tiruvannamalai, Tiruvannamalai District. +1 cc to Mr.Mr. Balan Haridoss, Advocate, SR.No.38482 +1 cc to M/s T.S. Gopalan & Co, Advocates, SR.No.38449 Order in W.P. No. 10985 of 1998 DM (CO) SMK/31.7.08 https://hcservices.ecourts.gov.in/hcservices/