IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.04.2010 CORAM: THE HONOURABLE MR. JUSTICE T. RAJA WP.No.2512 Of 2004 The Chief General Manager State Bank of India Local Head Office Chennai -1. .. Petitioner Vs. 1.The Central Government Industrial Tribunal cum Labour Court, Chennai Block No.1, Sastry Bhavan, Haddows Road, Chennai – 34. 2.K.S. Sivaramakrishnan .. Respondents Prayer : Writ Petition is filed under article 226 of the Constitution of India praying to issuance of Writ of Certiorari to call for the records from the 1st respondent relating to the I.D.No.45/2001 and the award dated 05.09.2003 on the file of the Central Government Industrial Tribunal cum Labour Court the 1st respondent and quash the Award dated 05.09.2003 made in I.D.No.45/2001. For Petitioners : Mr.K.S.Sundar. For Respondents : Mr.R.Arumugam for R2 R1-Court. ORDER The present writ petition is filed by the State Bank of India challenging the correctness of the order passed by the Central Government Industrial Tribunal-cum-Labour Court, Chennai setting aside the punishment of discharge awarded to the second respondent K.S.Sivaramakrishnan, on the ground of proved charges. 2. When the second respondent was working in State Bank of India, Adyar Branch office as Clerk-cum-Typist is alleged to have involved himself in financial irregularities causing loss to the petitioner bank by using some cheques and crediting to his own savings account No.S111/790, by debiting the National clearing Account. Therefore, the second respondent was issued with a charge https://hcservices.ecourts.gov.in/hcservices/ sheet dated 22.09.1995 for the acts of gross misconduct wherein the following charges have been framed : "i. You have, with fraudulent and ulterior motives, afforded credits to your savings Bank Account No.S111/790, by debiting National Clearing Account, purported to be the proceeds of the following cheques. Cheque No Date Amount Rs. Drawn on 786980 8/11/94 3000 TNSC Bank, Besant Nagar 785246 12/1/95 5000 -do- 786969 7/4/95 3000 -do- 786973 22/4/1995 2000 -do- ii. You have wantonly and with an intention to defraud the Bank withheld the above instruments from entering in the clearing register and sending them for National Clearing, thus fraudulently enabling yourself to misappropriate Bank's funds to a tune of Rs.13,000/- during the period from 08.11.1994 to 26.04.1995." 3. Since the second respondent credited amounts to his own account with an intention to withhold the instruments from being lodged in clearing, so as to misappropriate the Bank's money and when the above said acts of the second respondent was prejudicial to the interest of the Bank, as it would amount to acts of gross misconduct under para 521-4(J) of the Sastry Award, the second respondent was issued with a show cause notice, calling upon him to submit his explanation within a period of 7 days. The second respondent, after receipt of the above said show cause notice, submitted his reply dated 21.11.1996, wherein, he has accepted that he was responsible for the above said acts of gross misconduct and further the second respondent requested for dropping of the above said proceedings, pleading that the second respondent has unfortunately done the above acts due to absent mindedness on account of some domestic problem in his family. Since, the explanation offered by the 2nd respondent was not satisfactory, an enquiry was conducted on 21.11.1996, wherein the second respondent took part to defend the allegation made against him in the charge sheet. However, in the said enquiry, the enquiry officer sought for clarification from the second respondent as to whether the acts were done with an intention to defraud the Bank. Though the second respondent delinquent employee denied, however accepted the fact that the instruments mentioned in the charge sheet were presented at the branch by him to enable him to get credit to his savings bank account, by debiting national clearing account, without sending the cheque for national clearing on the respective dates. https://hcservices.ecourts.gov.in/hcservices/ 4. Therefore, the enquiry officer finding that the cheques which were used crediting in his own account, were not sent for collection on the respective dates through National Clearing concluded the enquiry, holding that the charges levelled against the second respondent were found proved. In the enquiry report it was clearly mentioned by the enquiry officer that the second respondent has accepted the fact that his savings bank account has been credited, but the cheques were not sent for National Clearing on the respective dates. Therefore, the enquiry officer rejected the claim of the second respondent that the above said lapses had occurred in view of his forget fullness and absent mindedness and concluded that the charges were proved against the second respondent. Thereafter, a copy of the enquiry report was also furnished to the second respondent on 31.07.1997. After receipt of the 2nd show cause notice and the copy of the findings of the enquiry officer report, the second respondent once again gave his second explanation by his letter dated 15.09.1997. The Disciplinary Authority, being not satisfied with the explanation offered by the second respondent, proposed the punishment of discharge and in terms of Para 521-5(b) of the Sastry Award read with Para 18.28 of the Desai Award, afforded personal hearing to the second respondent on 20.04.1998. The second respondent by awaiting the personal hearing, further submitted his explanation by letter dated 20.04.1998, stating that there was no malafide intention as enumerated in the charge sheet and further claimed that since the account in Tamil Nadu Co-operative Bank had sufficient balance, there is no question of loss arisen as mentioned in the charge sheet and on that basis requested the department to exonerate him from the above said proceedings. 5. But, finally, the Disciplinary Authority, by an order dated 27.07.1998, passed the punishment of discharge which was proposed earlier against the second respondent. Aggrieved by the order of discharge imposed against the second respondent, he preferred an appeal before the Appellate Authority on 03.09.1998. After considering the case of both sides, the Appellate Authority, by its order dated 21.10.1998 dismissed the appeal and held that the lapses were brought on record. Holding and keeping the cheques in the custody of the second respondent for long period of time also clearly indicates that the acts were tainted with malafide intention and on that basis declined to interfere with the punishment of discharge. 6. Aggrieved by the order passed by the Appellate Authority, the second respondent preferred Industrial Dispute before the Central Government Industrial Tribunal-cum-Labour Court, Chennai, challenging the punishment of discharge imposed against the second respondent. The learned Central Government Industrial Tribunal, after considering the background of the second respondent, finally came to the conclusion that the punishment of discharge imposed against the second respondent was proved. Nonetheless, for no reason, erroneously https://hcservices.ecourts.gov.in/hcservices/ by interfering with the punishment of discharge, directed the petitioner's bank to reinstate the second respondent in service with continuity of service but without back wages, from the date of suspension till the date of his reinstatement, namely for about 10 years. 7. Aggrieved by the said order passed by the first respondent, the present writ petition has been filed by the State Bank of India, petitioner herein on the following grounds : (i) The learned counsel for the petitioner submits that the learned Central Government Industrial Tribunal, while considering the case of the 2nd respondent grossly overlooked the past punishment suffered by the second respondent on three earlier occasions. The second respondent suffered 2 censures on two earlier occasions. In spite of having suffered punishment on two consecutive occasions the second respondent has not shown any improvement in his performance in discharging his public duty while serving in financial institutions. (ii) Again in the year 1993, the second respondent once again committed serious irregularities. Thereafter, enquiry was conducted and subsequently he was found guilty, for which he was imposed with punishment of stoppage of increment for a period of two years with cumulative effect by an order dated 22.02.1993. 8. In respect of all the previous antecedents and punishments suffered by the second respondent it was submitted that the learned Central Government Industrial Tribunal has erroneously interfered with the quantum of punishment and by quashing the punishment of discharge directed the petitioner Bank to reinstate the second respondent with continuity of service, of course without back wages for the period of about 10 years. The learned counsel for petitioner further submitted that in the event of allowing the second respondent to rejoin the duty in the petitioner's Bank, the loss of confidence incurred by the second respondent would be sending very bad message to staff members working in the financial institution like the State Bank of India. Therefore, it would further affect the morale of the staff members working in the Bank and, therefore prayed for setting aside the order passed by the learned Central Government Industrial Tribunal. 9. In reply, the learned counsel appearing for the respondent submits that though the second respondent has suffered the Disciplinary Proceedings for not sending 4 cheques for immediate collection, he has not utilised the fund. Therefore, there is no loss of money suffered by the petitioner Bank. On that basis he submitted that the second respondent should not have been imposed a major penalty of discharge by the petitioner's Bank. It was also further submitted that the learned Central Government Industrial Tribunal, while passing the order of reinstatement with continuity of https://hcservices.ecourts.gov.in/hcservices/ service, thought fit to punish the second respondent sufficiently by not awarding benefit of back wages for about 10 years. Therefore, the second respondent has also accepted the punishment by not appealing against the order. In that view of the matter, prayed for little more leniency from this court on the ground that the second respondent is left with three months of service to attain the age of superannuation. 10. Heard both sides. 11. Previously, the second respondent has suffered 3 punishments. In the first 2 occasions he has suffered censure at the hands of the petitioner Bank and on the 3rd occasion in the year 1995, the second respondent again suffered the punishment of stoppage of increment at the hands of the petitioner Bank for a period of two years with cumulative effect. But, when the Disciplinary Proceedings were initiated against the second respondent, even from the beginning itself the second respondent has given in his own hand writing, admitting that the act of non-sending the cheques for collection was due to some forget-fullness and absent mindedness on account of some domestic problem that happened in his family. Therefore, from day one till the completion of the Disciplinary Proceedings, the second respondent has not committed any act with any intention to cause loss to the Bank. Further the learned counsel for the respondent contended that the cheque has been credited in his own account without sending it for collection. The second respondent has not used the money and, therefore, it cannot be assumed or construed that the second respondent has mis-appropriated the money of the petitioner Bank or any other Bank. Therefore, it cannot be construed that there has been a financial loss to the petitioner Bank. In that view of the matter, the learned Central Government Industrial Tribunal rightly came to the conclusion that the punishment of discharge imposed by the petitioner Bank was disproportionate to the charges levelled against the second respondent. 12. Though, the learned Central Government Industrial Tribunal passed an order of reinstatement with continuity of service, but refused to grant the benefit of back wages for about 9 years and 9 months to him and also the punishment is good enough to send a strong message to the second respondent and to the petitioner Bank. 13. The learned counsel appearing for the petitioner has brought to the notice of this court, the judgment of the Apex Court reported in JT 2001 10 SC 433 [Devendra Swamy v. Karnataka State Road Transport Corporation] wherein the Hon'ble Apex Court has held that unless the punishment is shockingly disproportionate to the proved charge, the punishment awarded by the disciplinary authority shall not be interfered with in exercise of power of judicial review. In the above said Judgment, the Hon'ble Apex Court has further held that the punishment of dismissal should not be interfered, if the https://hcservices.ecourts.gov.in/hcservices/ punishment of dismissal awarded was deserved but in the present case no doubt the learned Tribunal has modified the punishment, by sufficiently punishing the second respondent by not awarding the benefit of back wages for about 10 years. The same was also accepted by the second respondent by not challenging the said order. Therefore, this court is not inclined to accept the arguments of the learned counsel appearing for the petitioner to interfere with the impugned Award passed by the Central Government Industrial Tribunal. 14. In this view of the matter, this court is not inclined to interfere with the award passed by the learned Central Government Industrial Tribunal. Accordingly, this writ petition is dismissed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar tsh To 1.The Central Government Industrial Tribunal -cum-Labour Court, Chennai Block No.1, Sastry Bhavan, Haddows Road, Chennai – 34. 2.The Section Officer, V.R.Section, High Court, Madras-104. 1 cc to Mr.K.S.Sundar, Advocate, Sr.No.23213 1 cc to Mr.R.Arumugam, Advocate, Sr.No.23407 W.P.No.2512 Of 2004 GG {CO} TP/1.6.2010. https://hcservices.ecourts.gov.in/hcservices/