IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2011 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.22584 of 2003 P.Marimuthu ... Petitioner Vs. 1.The Presiding Officer, Central Govt. Industrial Tribunal - Cum – Labour Court, 1st Floor, 'Shastri Bhavan', 'B' Wing, 26, Haddows Road, Chennai – 600 006. 2.The Assistant General Manager, Central Bank of India, Zonal Office, No.48/49, Montieth Road, Egmore, Chennai – 600 008. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorari calling for the records and papers from the files of the 1st Respondent relating to I.D.No.96 of 2001 and quash its impugned Award dated 30.09.2002 rejecting and denying the claim of the petitioner for reinstatement in service with backages, with continuity of service and with aal other attendant benefits. For Petitioner : Mr.K.M.Ramesh For Respondents : Mr.V.Karthick for M/s.T.S.Gopalan & Co. for R2 R1 – Court ORDER The writ petition is directed against the soundness of the impugned award passed by the first respondent-Central Government Industrial Tribunal-cum-Labour Court, Chennai, in I.D.No.96 of 2001, dated 30.09.2002, dismissing the reinstatement in service with continuity of service and all other attendant benefits. 2. Learned counsel appearing for the petitioner submitted that when the petitioner was working as Head Cashier in Srirangapuram https://hcservices.ecourts.gov.in/hcservices/ Branch of the Central Bank of India, he was issued with a charge memo dated 15.09.1989, calling upon him to explain in respect of three charges, which are extracted as under:- i. Petitioner in collusion with Mr.R.Madhalaisekaran, Branch Manager of Srirangapuram Branch, raised 26 cattle loans in the name of fictitious borrowers for an amount of Rs.98,500/- and shared the amount with Mr.R.Madhalaisekaran; ii. Petitioner colluded with Mr.R.Madhalaisekaran in destroying some of the documents pertaining to loan accounts; iii. Petitioner managed to get loan sanctioned in the names of his close relatives. On receipt of the said charge memo, the petitioner has submitted his explanations dated 20.09.1989 denying all the allegations. Dissatisfying with the explanations offered by the petitioner, an enquiry was conducted in respect of three charges, and thereafter, the enquiry officer found him guilty of all the charges. Accepting the said findings, the disciplinary authority passed an order of dismissal from service for the proved charges. Thereafter, the matter was questioned before the Tribunal. The said Tribunal has not raised any preliminary issue as held by the Constitution Bench of Apex Court in Karnataka State Road Transport Corporation vs. Lakshmidevamma & Another (2002 (2) LLJ 199), that the Labour Court / Tribunal should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry admitted by the employer, there will be no difficulty. But, when the matter is in controversy between the parties, that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. When that is the legal position, it is therefore incumbent upon the Tribunal to decide the fairness of the domestic enquiry as a preliminary issue. But, the Tribunal has not followed the said procedure. On that basis, the impugned order cannot be sustained, as it is tantamount to violation of the judgment of the Constitution Bench of the Apex Court in KSRTC's case (cited supra). 3. Secondly, it was argued that the decision relied on by the respondent bank regarding the integrity of the bank officer, are relevant only when the charges levelled against the petitioner, is proved in the fair enquiry. On the other hand, the charges levelled against the petitioner have not been established through any legal evidence in the enquiry, hence, he prayed for allowing the present writ petition. 4. Per contra, learned counsel appearing for the second respondent submitted that the present writ petition is not legally https://hcservices.ecourts.gov.in/hcservices/ maintainable, since the Tribunal has well considered the case of the petitioner on appreciation of evidence and passed the award by holding that the petitioner, after dismissal from service by the disciplinary authority on 31.01.1991, preferred an appeal on 11.03.1991 and thereafter, appeal was rejected by the Appellate Authority confirming the order of dismissal on 12.07.1991. Thereafter, the petitioner, by sleeping over the matter for about 6 years, belatedly raised an industrial dispute. Even before the learned Tribunal, the petitioner examined himself and marked 19 documents on his behalf and on the side of the management, 47 documents were examined. Learned Tribunal, after considering the evidences adduced before the domestic enquiry viz., both oral and documentary evidence adduced by both sides before the Enquiry Officer and also after examining the documents produced before it, passed the award dated 30.09.2002, dismissing the claim of the petitioner. When all the relevant records were examined thoroughly by the Tribunal, it is not legally possible for this Court to re-appreciate the evidence. 5. In his further submission, he added that the findings of the enquiry officer were based on the evidence and the Disciplinary Authority had agreed with the findings of the enquiry officer, which again upheld by the Appellate Authority, therefore, in a writ proceeding under Article 226 of the Constitution of India, the High Court does not sit as an Appellate Authority over the findings of the Disciplinary Authority and this position of law has been reiterated in several decision of this Court. On that basis, he prayed for dismissal of the present writ petition. 6. Heard the learned counsel appearing on either side and perused the materials available on record. 7. The second respondent-Central Bank of India is a nationalised bank, wherein the petitioner was employed as a Head Cashier in Srirangapuram Branch. While he was working on 19.07.1988 as a Head Cashier in Srirangapuram Branch, he was asked by the Vigilance Officers, S.V.Radhakrishnan and Madhavan, to come to the Srirangapuram Branch, for an enquiry on the misdeed said to have been committed by the Branch Manager, Madhalaisekaran. Subsequently, on a confession statement given by the petitioner, he was placed under suspension on 21.08.1989, and subsequently, a charge memo dated 15.09.1989, under paragraph 19.5(j)(1) of the Bi-partite Settlement, was issued calling upon him to submit his explanations. Immediately thereafter, the petitioner has submitted his explanations denying all the charges on 20.09.1989. Thereafter, an enquiry officer was appointed and the said enquiry officer, after giving a notice to the petitioner, held an enquiry from 15.11.1989 to 07.03.1990, in respect of the charges levelled against the petitioner. During the said enquiry, the petitioner examined six witnesses from his side and adduced 26 documents. From the side of management 6 witnesses and 17 documents were produced for examination. The enquiry officer, after https://hcservices.ecourts.gov.in/hcservices/ completion of the entire proceedings, gave his findings on 28.07.1990, holding that the charges against the petitioner were proved. Based on the report of the enquiry officer, on 21.01.1991, a second show cause notice enclosing a copy of the findings of the enquiry officer, was also sent to the petitioner. On receipt of the said second show cause notice, the petitioner has submitted his explanations. In addition to that, he also appeared for personal hearing on 31.01.1991. On considering the explanations offered by the petitioner, order of dismissal was passed on 31.01.1991, dismissing the petitioner from service, holding that the acts of misconduct levelled in the charge sheet dated 04.10.1989 issued under paragraph 19.5(j)(1) of the Bi-partite Settlement, stood proved against the petitioner. Aggrieved by the said order, the petitioner also filed an appeal on 11.03.1991. Considering the said appeal, the Appellate Authority also, by order dated 12.07.1991, finding no merit in the appeal, rejected his appeal confirming the order of dismissal from service, and thereafter, the petitioner, as submitted by the learned counsel for the second respondent, slept over the matter for nearly 6 years and after waking up from his slumber in April, 1997, raised an industrial dispute belatedly for adjudication. However, the belated dispute was taken up for consideration on the file of the Tribunal as I.D.No.45 of 1999, subsequently, when the Tribunal was constituted in Chennai, the same was transferred to the first respondent and re-numbered as I.D.No.96 of 2001. Thereafter, the petitioner also examined himself, by marking 19 documents on his behalf, and the respondents also filed 47 documents and thereupon, the learned Tribunal, on analysing the documents and pleadings let in before it, in addition to the arguments of both sides, passed an award dated 30.09.2002, dismissing the claim of the petitioner, holding that the claim of the petitioner, that he had given a statement on 03.08.1989 and 04.08.1989 under coercion, could not be accepted, since the petitioner while giving his reply to Ex.M.10 dated 20.09.1989, in reply to the memo dated 15.09.1989, had not even stated or mentioned that the above mentioned two statements were obtained by coercion. In line with the findings of the enquiry officer as confirmed by the disciplinary authority, the learned Tribunal also has given a finding that the loans were disbursed as a bogus one and whileso, it was not possible to obtain signatures from the loanees. Further, it shows that the petitioner, in collusion with the Branch Manager, had created bogus debit vouchers and obtained signature of innocent persons without their knowledge and thus, misappropriated the bank's funds. When the first respondent- Tribunal has categorically found that the petitioner was a party to the payments and that the addresses given were fictitious, since the letters addressed to them were returned unserved, it will go to show that the bogus loans were sanctioned to the fictitious persons. On yet another finding that the the petitioner, after the dismissal of his appeal on 12.07.1991, has failed to give any sufficient reason for the inordinate delay of 6 years in raising the industrial dispute, dismissed the claim of the petitioner. This part of the https://hcservices.ecourts.gov.in/hcservices/ finding that there has been a huge unexplained delay of 6 years from the date of appeal in raising the industrial dispute, tells this Court not to exercise its discretion warranting interference with the impugned award passed by the tribunal. 8. Further, there is no dispute in the argument advanced by the learned counsel for the petitioner that the Apex Court in Shambhu Nath Goyal's case (cited supra), has finally held that it was the duty of the Labour Court to first decide the preliminary issue as to whether the domestic enquiry was fair and proper and violative of the principles of natural justice. No doubt, the said view has been accepted by the Constitution Bench of the Apex Court in KSRTC's case (cited supra) . But, the petitioner has not raised the industrial dispute before the Industrial Tribunal, soon after the dismissal of his appeal by the Appellate Authority and thus, there has been an inordinate delay of six years, therefore, it is hopelessly barred by limitation. 9. It is an admitted case of both sides that the petitioner was issued with a charge sheet dated 04.10.1989. Finally, after completion of the enquiry, the Disciplinary Authority also accepting the findings of the enquiry officer passed an order of dismissal on 31.01.1991. The correctness of the order of dismissal has been confirmed by the Appellate Authority, by its order dated 12.07.1991. Whileso, the petitioner, taking a plea before this Court that the learned Tribunal has failed to consider his case, as his case has been similar to the principles laid down by the Apex Court in Shambhu Nath Goya v. Bank of Baroda (1983-II-LLJ-415), as affirmed by the Constitution Bench of the Apex Court in KSRTC's case (cited supra), is hopelessly barred by limitation, as rightly held by the Tribunal. Having slept over the matter for about 6 years, after dismissal of his appeal on 12.07.1991 and when there is no sufficient cause shown for his delay in raising the industrial dispute, this Court does not find any infirmity in the findings given by the Tribunal. When there has been a finding of fact by the Tribunal that the claim of the petitioner should not be countenanced on the ground of delay, latches, inaction on the part of the petitioner, this Court cannot interdict with such findings rendered by Tribunal. 10. In view of the reasons stated above, this Court finding no merit in the writ petition, dismisses the same. No Costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrarrkm Rkm https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Central Govt. Industrial Tribunal - Cum – Labour Court, 1st Floor, 'Shastri Bhavan', 'B' Wing, 26, Haddows Road, Chennai – 600 006. 2.The Assistant General Manager, Central Bank of India, Zonal Office, No.48/49, Montieth Road, Egmore, Chennai – 600 008. One CC to Mr.K.M.Ramesh, Advocate Sr.68685 One CC to M/S.T.S.Gopalan & Co, Advocate SR.68730 Pre-Delivery Order in W.P.No.22584/2003 NG(CO) DRL : 23/11/2011 10.11.2011 https://hcservices.ecourts.gov.in/hcservices/