IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 WP(C).No. 23542 of 2005(C) -------------------------- PETITIONER: --------------- THE REGIONAL MANAGER, SYNDICATE BANK, REGIONAL OFFICE, SHANMUGHAM ROAD, ERNAKULAM, (FORMERLY THE DEPUTY GENERAL MANAGER, SYNDICATE BANK, ZONAL OFFICE, SASTHAMANGALAM, TRIVANDRUM.) BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENTS: --------------- 1. THE GENERAL SECRETARY, SYNDICATE BANK EMPLOYEES UNION, K.K. MUNDAL BUILDING, NO.8, RAMASWAMY STREET, WOODS ROAD, CHENNAI-600 002. 2. THE INDUSTRIAL TRIBUNAL, KOLLAM. R1 BY ADV. SRI.P.RAMAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23542 of 2005(C) APPENDIX PETITIONER'S EXHIBITS EXT.P1 : THE PHOTOCOPY OF THE AWARD IN ID.36/03 DATED 10.01.2005 OF THE 2ND RESPONDENT. /TRUE COPY/ P.S. TO JUDGE. (CR) P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C)No. 23542 OF 2005 ......................................................................... Dated this the 7th September, 2011 J U D G M E N T Ext.P1 Award passed by the Industrial Tribunal, Kollam, ordering reinstatement of the concerned workman, (who was awarded the punishment of compulsory retirement by the Management) with continuity in service and all attendant benefits, is under challenge in this writ petition filed at the instance of the Management Bank. 2. The petitioner Bank initiated disciplinary proceedings against the delinquent workman by placing him under suspension w.e.f. 08.08.2001, pending enquiry, in respect of the complaint received from a lady cashier and two other employees of the Bank in connection with the misconduct committed by the worker on 01.08.2001. The basis for the complaint was that the workman, who was employed as attender in the Cash Department of the Bank at its Fort Branch, Thiruvananthapuram W.P.(C)No. 23542 OF 2005 2 was not co-operating with the work in the Department, by not obeying the instructions of the Cashier in assisting for counting and bundling the 'Notes', when the lady cashier had to seek the assistance of another lady attender. This was to the chagrin of the workman, who turned against the cashier by name K.S. Geetha Devi and abused her in filthy, obscene and sexually coloured words. It was pursuant to the complaint preferred by the lady cashier, that the workman was suspended from the service as mentioned above. 3. The disciplinary action initiated by the Management against the workman refers to the misconduct in the matter of sexual harassment towards the lady cashier K.S. Geetha Devi and also for doing acts prejudicial to the interest of the Bank, coming within the purview of XIX.5(j) of the Bipartite Settlement. The workman was served with the charge sheet and a domestic enquiry was conducted giving opportunity to prove innocence. Evidence was adduced, both oral and documentary, in the enquiry and on conclusion of the enquiry, the Enquiry Officer found the delinquent employee guilty of the charges W.P.(C)No. 23542 OF 2005 3 levelled against him, based on which, the petitioner Management proposed the punishment of 'dismissal' from service. However, after considering the explanation of the employee, taking a lenient view, the proposed punishment of 'dismissal' was converted as 'compulsory retirement' from service, which was imposed accordingly. The employee preferred an appeal before the Appellate Authority, who considered the entire matter and rejected the appeal confirming the punishment awarded. This gave rise to the industrial dispute, which was referred for adjudication to the second respondent. 4. The Trade Union representing the employee filed a claim statement before the Tribunal stating that the enquiry was conducted without adhering to the principles of natural justice; that the charge sheet was vague; that the complaint preferred by the lady cashier by name Geetha Devi was a false one and that the punishment imposed was, at any rate, disproportionate to the gravity of the alleged misconduct and further that there was no proof as to the alleged sexual harassment. 5. The Management Bank filed reply statement, W.P.(C)No. 23542 OF 2005 4 controverting the averments in the claim statement and seeking to justify the course and procedure pursued by them. It was specifically contended that the domestic enquiry was conducted strictly adhering to all the known principles of natural justice and that absolutely no prejudice whatsoever was caused to the employee at any point of time . It was also stated that there was no obscurity in the charge sheet at all and that the factual point, on which the enquiry was being conducted, was clearly given in the order of suspension and also in the charge sheet. It was further stated that the punishment of 'compulsory retirement' from service was imposed, taking a lenient view, by changing the proposed punishment of 'dismissal' from service and that the same can never be called as disproportionate to the gravity of misconduct. The punishment was awarded, also taking note of the previous misconducts committed by the employee and also the punishment awarded to him at different points of time. 6. After considering the rival pleadings and materials on record, the Tribunal arrived at a finding on the 'preliminary issue' as to the validity of the enquiry, by passing an order on W.P.(C)No. 23542 OF 2005 5 14.12.2004, holding that the Domestic Enquiry was valid and proper. However, in the course of further discussion, the Tribunal held that the falsity of the complaint preferred by the cashier Geetha Devi and the allegation of personal animosity raised by the employee were wrong and unacceptable and that the evidence revealed that the delinquent employee had actually abused the cashier in filthy and sexually colourable words, as alleged by the Management in the charge sheet. Still, the Tribunal held that the entire action against the delinquent was vitiated as the charge sheet was vague and accordingly, the inference made by the Enquiry Officer and the finding of the Disciplinary Authority/Appellate authority were held as vitiated and perverse. In the said circumstance, the Tribunal directed the Management to reinstate the employee in service, with all attendant benefits including 'continuity of service', which in turn is under challenge. 7. No counter affidavit has been filed from the part of the first respondent Union and as such, the matter is considered on the basis of the discussion on the facts and evidence, as done by W.P.(C)No. 23542 OF 2005 6 the Tribunal in Ext. P1 Award. 8. The learned Counsel for the petitioner Bank submits that the finding and reasoning given by the second respondent Tribunal to have interfered with the punishment are quite wrong and unsustainable in all respects. When the Tribunal holds as per the preliminary order dated 14.12.2004 that the enquiry was 'valid and proper', the Tribunal takes a 'U' turn holding that the enquiry is vitiated, when it comes to para 6,7 and 8 of Ext. P1 Award. The learned counsel submits that the misconduct committed by the delinquent is very serious and detrimental to the interests of the Bank. 9. The learned Counsel submits that the delinquent employee was a person who was indulged in similar misconducts earlier. Disciplinary action was initiated against him and on acceptance of the guilt, placing sympathy, much lessor punishments were imposed upon him in respect of the different causes of action, by way of 'warning' and later by way of 'withholding of increments' for the specific period, in the light of assurance that he would not repeat the misconduct. This being W.P.(C)No. 23542 OF 2005 7 the position, it is argued that there was no scope for any interference, even by invoking the power under Section 11A of the I.D. Act; more so, in the light of the rulings rendered by the Apex Court, also by this Court on many an occasion including the one reported in 2009(3) KLT SN. 29(Case No.31)(Federal Bank Ltd. vs. Sreekantan). 10. The learned Counsel for the first respondent Union submits that the finding of the second respondent Tribunal that the charge sheet was vague in all respects, is in tune with the law declared by this Court as per the decision reported in 1991 (1) KLT 383 (Gopalakrishna Prabhu vs. Central Bank). Reliance is sought to be placed on the decision in Rajagopal B. vs. Jomy Xavier and Another reported in (2010 (2) KHC 196 (DB) = ILR 2010 (2) Kerala 117) as well; as to the scope of interference by this Court in matters adjudicated by the Labour Court/Industrial Tribunal . 11. The validity of the domestic enquiry having been sustained as valid and proper by the second respondent Tribunal, the limited questions for consideration are; whether the finding W.P.(C)No. 23542 OF 2005 8 rendered by the Tribunal is perverse or not, in the light of the materials on record and whether it will come within the purview of the misconducts as enumerated in the Settlement, particularly under XIX.5(j) and XIX.5(c) and if so, whether the punishment of 'compulsory retirement' from service is disproportionate to the gravity of proven misconduct. 12. There is no dispute that the disciplinary action and the procedure in the Management establishment are governed by the terms of Chapter XIX of Bipartite Settlement dated 19.10.1966 as amended upto 01.10.1987. Clause 19.5 of the said Settlement deed deals with gross misconducts, out of which, the issue in hand comes under © and (j) respectively, which are extracted below: “5. By the expression”gross misconduct” shall be meant any of the following acts and omissions on the part of an employee: a) xxxx b) xxxx c) drunkenness or riotous or disorderly or indecent behaviour on the premises of W.P.(C)No. 23542 OF 2005 9 the bank; d) xxxx e) xxxx f) xxxx g) xxxx h) xxxx i) xxxx j) doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss;......” 13. Clause XIX.12 © of the said Settlement stipulates that, in awarding punishment by way of disciplinary action, the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the employee and any other aggravating or extenuating circumstances that may exist. It has been observed by the Tribunal in para '6' of Ext.P1 Award, that the employee was placed under suspension as per the order dated 08.08.2001, wherein the allegation is, indecent and disorderly behaviour towards a lady clerk of the Bank and in the charge sheet dated 16.08.2001, it is pointed out that the W.P.(C)No. 23542 OF 2005 10 misconduct of the employee is in respect of doing acts prejudicial to the interests of the Bank vide clause XIX.5(j) of the Bipartite settlement . It was in respect of the said aspects, that the matter was enquired into and the witnesses were examined/cross examined on behalf of the employee/Union. 14. It is seen that the enquiry was attended by the employee with complete understanding as to the facts and events and plea of vagueness raised before the 'Tribunal' in the claim statement was merely a 'plea for the sake of plea' and not with any pith or substance. The rival pleadings and evidence on record, as considered by the 'Tribunal' in paragraph 10 of the Award, gives a clear idea in this regard. In the said paragraph, the Tribunal considered the question whether the workman is guilty of the misconduct of abusing, by using filthy and obscene words against Smt. Geetha Devi,( in the context of the contention of the delinquent employee that Smt. Geetha Devi was in inimical terms with the worker and hence preferred a false complaint against him). The observation of the Tribunal reads as follows: W.P.(C)No. 23542 OF 2005 11 “At the outset I may state that it is quite unbelievable that a lady clerk working in a Nationalised Bank has filed a false complaint alleging that the delinquent used abusive and obscene words in a vulgar language as stated in the chargesheet. It is noticeable that the two lady clerks working in the same branch of the Bank while giving evidence before the Enquiry Officer were reluctant to repeat those obscene words as the words are very much bad which is evident from a reading of the obscene words stated in the charge sheet. Further there is no concrete evidence in the enquiry adduced by the delinquent to prove enmity of Smt. Geetha Devi towards him. So the allegation that Smt. Geetha Devi has filed a false complaint against the delinquent due to enmity is devoid of merit. Smt. Geetha Devi has deposed before the enquiry officer about the incident which is supported by the evidence of two other lady clerks of the Bank as Mws 4 and 5. It is also pertinent to note that the lady staff in the Bank has given a joint complaint to the Manager about the incident. The delinquent has no case that these lady clerks have any kind of enmity to him. The evidence of the complainant Smt. W.P.(C)No. 23542 OF 2005 12 Geetha Devi supported by the evidence of other witnesses examined on the side of the management particularly MW4 and MW5 , fully establish that the delinquent abused Smt. Geetha Devi as alleged by the Management in the charge sheet. ”. Even after arriving at a finding as above, (that it was fully established that the delinquent employee had abused Smt. Geetha Devi as alleged by the Management in the charge sheet), the Tribunal held in paragraph '12' that the entire action against the delinquent was vitiated and that the finding of the Enquiry Officer based on the charge held as vague, was unsustainable. It was quashed accordingly, holding that the enquiry findings were vitiated and perverse; simultaneously ordering reinstatement of the worker with all attendant benefits including continuity of service . 15. In short, on one hand, the Tribunal says that the charge against the delinquent was vague; while on the other hand, it says that the insinuation against the delinquent employee as to abusing the lady clerk in filthy and abusive W.P.(C)No. 23542 OF 2005 13 language as alleged by the Management in the charge sheet was clearly established; thus blowing hot and cold simultaneously. 16. The question that comes up for consideration in the above circumstance, is whether the said act amounts to gross misconduct as contemplated under clause XIX.5 of the settlement executed between the Management and the Union. The Tribunal arrived at a finding in paragraph '6' of Ext. P1 Award that abusing Smt. Geetha Devi would indicate that it affected only the 'private rights' and that the said act was not prejudicial to the interests of the Bank as given in clause XIX.5(j) of the Bipartite settlement, placing reliance on the decision of this Court in 1991(1) KLT 383 (Gopalakrishna Prabhu vs. Central Bank).. 17. Coming to the case dealt with by this Court in 1991 (1) KLT 383, it is true that the gross misconduct therein also involved a similar position as in the instant case, with respect to clause XIX.5(j) of the Bipartite settlement and as to the acts prejudicial to the interests of the Bank. The charges levelled against the employee therein as extracted in the opening paragraph of the said judgment are as given below: W.P.(C)No. 23542 OF 2005 14 “i) for having allegedly received Rs.100/- from one Mr. Balakrishna Bhat for purchase of shares of a Company but not remitted to the Bank for the said purpose. ii) for having issued a cheque bearing No.937996 dt.25.8..82 for Rs.2,500/- in his overdraft account and another cheque bearing NO.488309 dt.18.10.82 for Rs.75,000/- drawn on the same overdraft account without required drawing power and hence returned unpaid and a withdrawal for Rs.15,000- in his HSS account without maintaining sufficient balance and hence returned unpaid. iii) for having not utilised the second instalment of housing loan sanctioned to him on 24.10.1981 even after a period of ten months from the said availment. iv) for having availed an advance of Rs.1,500 against leave fare concession for a proposed tour in October, 1982, on the strength of his own declaration but submitted a final bill only for Rs.30.30 ps. (Rs.Thirty and paise thirty only) and that too after the stipulated period meant for submission of such bills by which there is every reason to believe that he has not utilised the advance for the purpose for which it was allowed by the Bank.” W.P.(C)No. 23542 OF 2005 15 It was with reference to the above instances, that a finding was rendered by the Court that the said misconducts could not be branded as anything prejudicial to the interest of the Bank, as observed in paragraph 5 , in the following terms: “ 5. A close scrutiny of the charges would indicate that matters highlighted thereunder affect only private rights. So far as charge No.(2) is concerned, it should be said, the transaction made mention of therein brings about only the relationship of a banker and customer. The other two charges, 3 and 4, to my mind, if found established do not constitute any misconduct, much less a misconduct defined in the clause captioned, 'prejudicial to the interest of the bank' . I have deliberately made this observation only to show that a finding on such matters can vary with individuals and hence a delinquent is likely to be exposed to vagaries of subjective evaluation. It is not unlikely that some disciplinary W.P.(C)No. 23542 OF 2005 16 authorities may even opine that such acts will not constitute any misconduct at all although the conduct of the employee is such that it can be said that he failed to keep the high standards of moral, ethical or decorous behaviour befitting an officer of the bank. This by itself in my view, cannot constitute misconduct unless the same falls within the enumerated items of misconduct other than the one coming under caption 'any act prejudicial to the interest of the bank'.” The factual position in the said case is nowhere near the misconduct committed by the delinquent employee in the instant case, in respect of whom, a clear finding has been arrived at, based on the findings on record by the Tribunal itself in paragraph '10' of Ext.P1 Award as extracted herein before. This Court finds that abusing a lady superior officer by the delinquent attender in filthy and sexually colourable words in the presence of co-workers is a serious misconduct, quite unbecoming of an W.P.(C)No. 23542 OF 2005 17 employee of the Bank and it indeed is an act prejudicial to the interests of the Bank, as given under clause XIX.5(j) of the Bipartite settlement, (besides the misconduct of indecent behaviour on the premises of the Bank as given in XIX.5(c) as well). 18. The proven act of using abusive words in vulgar language, as above, has very much affected the morale of the lady superior officer and also the other co-workers, which in turn affects the organisational interests, the work out put and also the image before the customers and public, at large. The idea and understanding of the Tribunal that it only affects the 'private rights' of Geetha Devi is wrong and unfounded in all respects. The decision sought to be relied on by the Tribunal, ie. (1991 (1) KLT 383) stands entirely on a different footing and is not applicable to the case in hand, by virtue of the black and white difference in the factual position. 19. It has been held by the Apex Court on many an occasion that 'misplaced sympathy is an evil'. The net result of Ext. P1 Award passed by the Tribunal is that, even after a W.P.(C)No. 23542 OF 2005 18 positive finding on the guilt of the employee (as held in paragraph 10 of the Award), the Tribunal makes some hyper- technical assumption as to the alleged vagueness of the charge and exonerates the employee in toto, ordering reinstatement with continuity of service and all attendant benefits. This is quite unheard of. In the decision rendered by the Supreme Court in Mahindra and Mahindra Ltd vs. N.B. Naravade (AIR 2005 SC 1993), it was held that the dismissal of a worker in respect of a proven misconduct of using abusive language against a superior officer in front of the subordinates could never be categorised as an instance to see that the punishment was “shockingly disproportionate”, so as to have invoked the power under Section 11A of the I.D. Act, modifying the punishment. Similarly, it has been held by the Apex Court in U.B. Gadhe & Ors vs. G.M.Gujarat Ambuja Cement Pvt. Ltd. (AIR 2008 SC 99) that no misplaced sympathy can be extended to the worker, when the misconduct committed is serious and subversive of discipline in the place of employment. Support is still more available from the law declared by the Supreme Court W.P.(C)No. 23542 OF 2005 19 in Hombe Gowda Educational Trust and another vs. State of Karnataka and others (2006(1) SCC 430) and by the Division Bench of this Court in South Indian Bank Ltd. vs. Krishnakumar [2006 (1) KLT SN 17 (Case No. 27)] and Federal Bank Employees' Union v. Federal Bank Ltd. (2008 (2) KLT 612). The scope of interference under Section 11A of the I.D. Act has been considered by this Bench in the decision in Federal Bank vs Sreekantan (2009 (3) KLT SN 29 (Case No.31) deprecating the course followed by the Labour Court/Industrial Tribunal, whereby the punishment of dismissal ordered by the Management was substituted by discharge with superannuation benefits. 20. Coming to the reliance sought to be placed on the Division Bench judgment in Rajagopal B. vs. Jomy Xavier and Another reported in (2010 (2) KHC 196 (DB) = ILR 2010 (2) Kerala 117), the law is very clear, that the High Court cannot simply substitute its opinion while invoking the power of judicial review on the decision of the Labour Court/Industrial Tribunal. The factual position in the said case W.P.(C)No. 23542 OF 2005 20 was that, the punishment of dismissal inflicted upon the workman was modified by the Tribunal ordering reinstatement without backwages by invoking the power under section 11A of the I.D. Act, which in turn was challenged from both the sides. The management sought to sustain the punishment of dismissal, while the worker claimed to have backwages. The learned Single Judge allowed the writ petition filed by the Management and dismissed the other one preferred by the workman, which led to the appeals preferred by the workman in both the cases. The Division Bench considered whether the charge levelled against the worker as extracted by the learned single Judge itself amounted to any misconduct, mainly when it was in respect of good behaviour to 'relatives of persons in Management' of the employer, which was held as not a condition of service and cannot form the basis of a charge sheet against the workman. It was accordingly that the verdict passed by the learned single Judge was set aside, allowing the concerned appeal, simultaneously declining the reliefs sought for by the workman claiming backwages, thus dismissing the other appeal preferred W.P.(C)No. 23542 OF 2005 21 by the workman as well. The said decision does not support, promote or advance the case of the worker in the instant case in any manner. On the other hand, the said verdict itself is an authority, whereby it upholds the necessity to interfere when the Tribunal arrives at a conclusion which is patently perverse or one which no man in his senses would arrive at, which instance can be stated as one out of jurisdiction. This is evident from the relevant portion in paragraph '7' of the said verdict, which reads as follows: “xxxxxxx It is also equally settled that the High court cannot act as an appellate authority over the decisions of the Labour Courts/Industrial Tribunals. If the decision is within jurisdiction, it is no part of the business of this Court to interfere with the decision of the Labour Court/Tribunal according to its opinion, regarding the propriety of the punishment. There is no dispute that broadly, the Labour Court/Tribunal has jurisdiction to adjudicate a dispute concerning the dismissal