IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 27.09.2011 Coram:- The Hon'ble Mr. Justice T.RAJA Writ Petition No.7494 of 2003 V.Mohanram ... Petitioner vs. 1. Presiding Officer, The Central Government Industrial Tribunal-cum-Labour Court, I Floor, B Wing, No.26, Haddows Road, Sasthri Bhavan, Chennai-6. 2. Canara Bank, rep. by its General Manager, 563/1 Anna Salai, Teynampet, Chennai 600 018. ... Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus as stated therein. For petitioner : Mr.Balan Haridas For R-2 : Mr.C.Seethapathy. R1 : Tribunal O R D E R The petitioner herein by name V.Mohanram seeks for issuance of a writ of certiorarified mandamus to call for the records connected to the Award, dated 31.10.2002, passed by the 1st respondent/Presiding Officer of the Central Government Industrial Tribunal-cum-Labour Court, Chennai, in I.D. No.673 of 2001, quash the same and consequently, to direct the 2nd respondent/Bank to reinstate the petitioner with full back-wages, continuity of service and all other attendant benefits, etc. 2. When the petitioner was working in the Overdraft Section of the 2nd respondent-Bank, he was issued with a charge memo, dated 02.06.1994, containing two charges viz., (a) on 15.03.1994, while working in the Overdraft Section, he attempted to encash a cheque https://hcservices.ecourts.gov.in/hcservices/ bearing No.140150 for Rs.1,00,000/- purported to have been drawn on the inoperative Current Account of M/s.Karur Chit Funds; and (b) on 27.12.1993, by handing over a withdrawal slip for Rs.180/-, drawn on the SB Account No.15107 of Smt.T.Vedavalli & purported to have been signed by the account holder, to Mr.M.S.Thirunvaukkarasu, Acting Supervisor of the SB Department, and requesting him to pass the said withdrawal slip for payment stating that he knew the party very well, the petitioner received cash from Mr.V.Srinivasan, Cashier, towards withdrawal, however, on verification of the specimen card, the signature was found to be varying as it was in Tamil whereas the specimen signature was in English, whereupon, cash released was retrieved by the cashier from the petitioner, who, by collecting the withdrawal slip/cheque back from Mr.Thirunavukkarasu under the pretext that he would come with the party to get a fresh specimen, destroyed the withdrawal slip in the Bank Hall itself;, and it was alleged that the aforesaid instances, resulting in willful damage to the property of the Bank/Customer and to the interest/reputation of the Bank, amounted to gross misconduct in terms of Chapter XI Regulation 3 clauses (j) and (m) of the Central bank Service Code. The explanation submitted by the petitioner not being satisfactory, the respondent/Bank initiated domestic inquiry proceedings vide order No.MC DAC 989 E 37, dated 11.07.1994, to go into the charges levelled against the petitioner. In the enquiry, while the petitioner marked a document as an Exhibit and examined three witnesses viz., Muralidaran (Clerk), D.Sundaram (Special Assistant) and T.Soundaravalli, sister of the Account Holder- Vedavalli, the Bank/Management marked 17 Exhibits and examined seven witnesses. The petitioner took a stand before the Enquiry Officer that he was made a scapegoat for the acts of other employees of the Bank and that he was a victim of circumstances. He denied any direct involvement in the alleged instances and pleaded that he may be discharged as innocent. In reply to the first allegation that the petitioner unauthorizedly obtained possession of the cheque bearing No.140150 from and out of the cheque book with cheque leaves bearing Nos.140126 to 140150, which was actually issued to M/s.Gayathri Enterprises, and utilised the same and attempted to fraudulently withdraw a sum of Rs.1,00,000/- from the inoperative current account of M/s.Karur Chit Funds, the petitioner gave his explanation before the Enquiry Officer that he went to the Current Account Section only to help the Supervisor posted in the said Section in view of heavy crowd on that https://hcservices.ecourts.gov.in/hcservices/ particular day, but, that was mistaken as though the petitioner visited the Current Account Section in an attempt to withdraw a sum of Rs.1,00,000/- from the inoperative current account of M/s.Karur Chit Funds. Since no monetary loss was caused on the alleged attempt to encash the cheque, he pleaded with the Enquiry Officer that no adverse inference can be drawn against him and prayed to discard the first charge. In respect of Charge No.2, it was pleaded with the Enquiry Officer that, on the relevant day ie., 27.12.1993 at about 1.45 pm., Smt.Vedavalli came to the Bank and handed over the Passbook to the petitioner asking to verify the balance in her account. After verifying the ledger and updating the passbook, he told her that the balance in her Account was only Rs.180/-. By tendering the withdrawal slip for Rs.180/-, as she said that she was going out of station urgently and requested for instant withdrawal of the sum, he made entries in the Register for withdrawal and obtained Rs.180/- from Cashier Srinivasan and handed it over to the party. But, after lunch hours, when the petitioner resumed duty at the S.B. Section, the Supervisor got back the cheque for Rs.180/- from the Cashier and at 2.45 P.M., he told the petitioner that, on verification, he had found that there was difference in signature. The petitioner replied that if necessary, he would obtain fresh specimen signature from the party for having made payment for the cheque and further, he struck off the entry on the orders of the supervisor. The petitioner also paid a sum of Rs.180/- to the cashier, therefore, the misconduct of causing any loss to the Bank does not even arise at all. The Enquiry Officer, after concluding the proceedings, found that both the charges have been substantially proved against the charge- sheeted employee/petitioner. The petitioner, through a letter dated 13.04.1995, addressed by the Bank was furnished with the findings of the Enquiry Officer and called upon to submit his further representation. After the explanation submitted by the petitioner on 08.05.1995, a second show cause notice, dated 07.06.1995, was issued, asking him to appear for personal hearing on the proposed punishment of dismissal from service and subsequent thereto, by proceedings of the Disciplinary Authority, dated 28.07.1995, the petitioner was imposed with the punishment of dismissal from service. The appeal preferred also came to be dismissed by the Appellate Authority on 17.09.1995, confirming the dismissal order passed by the Disciplinary Authority. Thereafter, the petitioner approached the 1st respondent/Tribunal and, by Award dated 31.10.2002 passed in Industrial Dispute No.673 of 2001, the Tribunal declined to interfere with the order passed by the Appellate Authority confirming the order of the Disciplinary Authority in imposing the punishment of dismissal from service. Aggrieved by the said Award, the petitioner has come to this Court with the present Writ Petition. https://hcservices.ecourts.gov.in/hcservices/ 3. Learned counsel for the petitioner submits that, when no complaint in connection with either of the charges was filed by the Account Holder/s concerned, the Bank is not justified in alleging misconduct against the petitioner and initiating the domestic enquiry proceedings with a motivated view to send him out of service. In respect of charge No.1, he submits that, admittedly, the handwriting in the cheque book is of one Muralidar, but the said person was not examined either before the Enquiry Officer or the Labour Court. Therefore, when apparently there is no evidence to prove the guilt by producing and examining the author of the instrument-Mr.Muralidar, the charge proceedings are rendered otiose. Ignoring this vital aspect, the Enquiry Officer held the petitioner guilty based on mere surmises and conjecture and therefore, his findings being perverse, biased and illegal, the ultimate order of punishment based on the same as well as confirmation of such order by the appellate authority and also the Award of the Labour Court are liable to be interfered with. In this regard, by referring to a Division Bench decision of this Court in B.Padmaiah v. The Union of India & 5 others (2007 Writ Law Reporter 9) for the proposition that, if a decision is arrived at on the basis of no evidence or evidence on which no reliable and reasonable reason would act, such decision would be perverse, it is submitted that the failure to examine the account holder concerned is nothing but infringement of the principles of natural justice. At least, the Labour Court, with its ample powers under Section 11-A of the I.D. Act, could have gone into these vital aspects by undertaking the exercise of re-appreciating the entire evidence to undo the effect of the unjust orders arose from an enquiry conducted in a biased manner targeting the petitioner to see that he is somehow sent out of the Institution, but unfortunately, the Labour Court too miserably failed to proceed in a right perspective. In the given circumstances, even by reaching a conclusion that the enquiry conducted was fair and proper, the labour court could have interfered with the quantum of punishment as the same is highly disproportionate to the misconduct alleged whereby no financial loss had ever occurred to the Bank. 4. Per contra, learned counsel appearing for the 2nd respondent/Bank submits that both the charges against the petitioner were found to be proved based on clear and convincing evidence by way of materials adduced and the statements of the witnesses. According to him, the defence plea of the petitioner turned out to be a false version, for, during the course of departmental proceedings, it was well established that the petitioner was never requested by the Supervisor or the clerks concerned at the Current Account Department to assist them in their regular working. It was further proved that https://hcservices.ecourts.gov.in/hcservices/ the petitioner visited the current account section on his own under the pretext of assisting the department and he had attempted to withdraw a sum of Rs.1 lakh from the inoperative current account of M/s.Karur Chit Funds. Further, the cheque that was used by the petitioner for the purpose of attempted withdrawal from the inoperative account of M/s.Karur Chit Funds was not bearing rubber stamp as per the deposition of the Supervisor of the Current Account Department. In respect of the other transaction also, it is clear from the proceedings of the enquiry that the account holder/Smt.T.Vedavalli had never visited the Bank on that day and it was the petitioner, who attempted to withdraw a sum of Rs.180/- from her account. Further, the Management Witness Thirunvaukkasu, clearly stated in the enquiry that the petitioner prevailed upon him to pass the instrument before verification of the signature in the specimen card and subsequently, when he had verified the signature in the specimen card, it was found out that the signature was different. It was only on the request of the Supervisor, the petitioner had returned the money to the cashier, however, after getting back the cheque, he destroyed the instrument. Such grave misconduct of the petitioner vis-a-vis the name and reputation of the Bank weighed much before the Enquiry Officer to reject the case of the petitioner despite the fact that no monetary loss had occurred and ultimately, the Disciplinary Authority acting on the same, rightly imposed the major punishment of dismissal, which was declined to be interfered with by the Appellate Authority and also by the Labour Court, which delved into all relevant aspects including the defence version of the petitioner/employee and refused to accede to the plea of the petitioner with a clear observation that the petitioner rendered himself undesirable to be retained in service by the respondent bank. Therefore, it is not open for the petitioner to say that the Tribunal has failed to properly exercise its powers under Section 11-A of the Industrial Dispute Act so as to grant relief to the petitioner. So submitting, the learned counsel prays for dismissal of the writ petition as the scope for interference in alike cases under given circumstances is hardly open for this Court. 5. Before even proceeding further, this court may hasten to add that the submission of the learned counsel for the 2nd respondent in support of the Award passed by the Industrial Tribunal, affirming the order of the appellate authority in confirming the punishment imposed by the Disciplinary Authority, carries more force and deserves acceptance. It is not even the case of the petitioner that he was not given fair opportunity to defend his case or there was any deviation or bypass from the procedural track of enquiry. In fact, as already pointed out, the petitioner examined three witnesses on his side and marked a single document while the Bank examined 7 witnesses and marked 15 documents. From a perusal of the proceedings of the Enquiry https://hcservices.ecourts.gov.in/hcservices/ Officer, this Court finds that the Enquiry Officer granted ample opportunities to the petitioner and, only after assessing and examining all the relevant aspects, a definite conclusion has been reached to hold against the petitioner. In fact, monetary loss might not have been caused, but, as rightly pointed out on behalf of the Bank, had the attempts of the petitioner not been thwarted at right time, definitely, he would have retrieved the cash and caused monetary loss to the Bank coupled with bringing disgrace and disrepute to the Bank. Though it is the only vague defence of the petitioner that he did not cause any monetary loss to the Bank, the fact remains, he himself cannot hood himself from the allegation that he involved in both the attempts to clandestinely retrieve a sum of Rupees one lakh from the inoperative account of M/s.Karur Chit Funds and another sum of Rs.180/- from the SB Account of Smt. Vedavalli when she did not even visit the Bank on the relevant day. 6. In regard to the first charge, the Enquiry Officer clearly found that the petitioner visited the current account department on his own, under the pretext of assisting the Department and he had attempted to withdraw Rs.1 lakh from the inoperative account of M/s.Karur Chit Funds. It was further brought out that the said cheque, while being presented by the petitioner for encashment, did not bear the rubber stamp as required. Also, it must be seen that when the petitioner posted the cheque in the concerned ledger folio and insisted Mr.Siva, Current Account Supervisor to pass the cheque and it was refused, the petitioner immediately struck off the entires in the ledger. Thereafter, when siva returned from other work, he noticed that the cheque was missing and when enquired about the same, the petitioner returned the token alone informing that he had handed over the cheque to the party, whereas, no third person was present at that time. It also appears that the petitioner went to the residence of Mr.K.Venkataraman, Senior Manager, on 17.03.1994 and confessed about the first act of misconduct and endeavoured to wriggle out of the situation by requesting the said officer not to proceed with the matter. At any rate, at no point of time, either before the authorities or before the labour court, the petitioner established his case to their satisfaction that the cheque in question bearing No.140150 was given by the party concerned for withdrawal of Rs.1 lakh. Further, his claim about non-examination of Muralidar cannot stand to any logic or reason since it was the petitioner, who returned only the token to the officer concerned stating that he had given back the instrument to the party concerned. Having destroyed or screened the vital piece of evidence, the petitioner cannot be allowed to make any claim of defence on the basis of the said instrument. 7. Coming to the 2nd charge, it is the definite case of the Management that the petitioner collected back the cheque/withdrawal https://hcservices.ecourts.gov.in/hcservices/ slip from the Cashier, when it surfaced that the signature contained therein did not tally with the specimen signature in the Card, by re- paying the amount received and, immediately thereafter, he destroyed the instrument in the Bank Hall itslef; therefore, it was not possible for the Bank to produce the withdrawal slip during the enquiry and to identify the author thereof. Further, these aspects, being matters for consideration at the time of inquiry, were rightly gone into and dealt with by the Enquiry Officer as could be seen from the proceedings. The Disciplinary Authority, before imposing the major punishment, in due compliance with the principles of natural justice, afforded an opportunity of personal hearing to the petitioner and, only after being satisfied that the acts of misconduct warrant the major punishment of dismissal, proceeded to pass such order in order to illustrate and demonstrate the principle that the Bank is the custodian of the money of customers, and the staff, who are working in the Bank and dealing with the said money, should be more honest and diligent, and they should justify the trust imposed on them both by the Bank and its customers and further, once the customer loses his confidence with the dealings of the Bank, the entire Organization would suffer. The said order of punishment was declined to be interfered with by the appellate authority as well as by the Labour court. On perusing the Award passed by the Labour Court, I am of the view that the case and claim of the petitioner was well considered by it in the perspective of the petitioner himself, however, the Labour Court, finding the impelling and warranting circumstances for the Bank to resort to the extreme step in the given circumstances to see that such acts would not recur, rightly declined to accede to the plea for modification of the punishment. 8. At this juncture, it must be highlighted that, in a departmental enquiry, the strict rules of evidence is not applicable and it would suffice if the charges are established on the principle of preponderance of probability corroborating with the statements of witnesses and other records. Further, where the enquiry proceedings proceeded fairly and properly in a right track without any room for violation of principles of natural justice and the major penalty is imposed as an exemplary action having regard to the grave misconduct, hardly, there is any scope for the High Court sitting under Article 226 of the Constitution of India to interfere with such punishment. In this regard, it is just and necessary to quote below the observation of the Apex Court in Karnataka Bank Ltd. v. A.L.Mohan Rao (2006 (1) SCC 63), “ In our view, a gross misconduct of this nature does merit termination. We fail to see what other type of misconduct would merit termination. It is not for the courts to interfere in cases of gross misconduct of this nature with the decision of the disciplinary https://hcservices.ecourts.gov.in/hcservices/ authority so long as the inquiry has been fair and proper and misconduct proved. In such matters, it is for the disciplinary authority to decide what is the fit punishment. In any case on such a misconduct, it could never have been said that termination of service is not the appropriate punishment.” The above observation of the Apex Court can be aptly applied to the case on hand for the reason that the Disciplinary Authority, after careful consideration and much deliberation subsequent to the grant of all reasonable opportunities to the delinquent, imposed the punishment felt to be just and proper in regard to the misconduct proved and such order withstood the test before the appellate authority as well as the labour court with much comment and criticism only against the conduct of the petitioner in indulging in two instances which, if not thwarted, definitely gulped away the reputation of the Bank and its business. In such circumstances, this Court finds no reason much less valid reason for interference. 9. In the result, the Writ Petition fails and it is dismissed as devoid of any merit. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar JI. To 1. The Presiding Officer. Central Government Industrial Tribunal-cum-Labour Court, I Floor, B Wing, No.26, Haddows Road, Sasthri Bhavan, Chennai-6. 2. The General Manager, Canara Bank, 563/1 Anna Salai, Teynampet,Chennai 600 018. 1 CC to Mr.P.R.Raman, Advocate, SR.59994 1 CC to Mr.Balan Haridas, Advocate, SR.60349 Writ Petition No.7494 of 2003. VSV(CO) SRA(28/10/2011) https://hcservices.ecourts.gov.in/hcservices/