IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.12.2011 Coram: THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P. No.30433 of 2008 M.Velayudham .. Petitioner vs. 1. Presiding Officer, Central Government Industrial Tribunal cum Labour Court, I Floor, 'B' Wing, 26, Haddows Road, Shastri Bhavan, Chennai – 6 2. Assistant General Manager, Canara Bank, Circle Office, No.563/1 Anna Salai, Teynampet, Chennai 600 018 .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus to call for the concerned records from the 1st respondent, quash the award passed by the 1st respondent dated 26.02.2008, in I.D.No.20 of 2006 and consequently, direct the second respondent bank to reinstate the petitioner with full back wages, continuity of service and all other attendant benefits. For Petitioner : Mr.Balan Haridass For Respondent : Mr.C.Seethapathy for R2 R1- Tribunal O R D E R The petitioner, a former employee of the second respondent bank, has filed this writ petition, challenging the award of the Central Government Industrial Tribunal cum Labour Court, the first respondent herein in I.D.No.20 of 2006, dated 26.02.2008. By the impugned award, the Tribunal dismissed the claim petition and confirmed the punishment of compulsory retirement imposed on the petitioner. 2. The petitioner was appointed in the second respondent bank as a Sub-Staff on 19.12.1979. During 1987, he was promoted as clerk and https://hcservices.ecourts.gov.in/hcservices/ was working in the Mowbrays Road branch, Chennai. Whileso, he was placed under suspension with effect from 09.07.2002, in connection with certain misconducts. A charge memo dated 18.01.2003, was issued to the petitioner containing the imputation of misconduct. The petitioner submitted his explanation and not satisfied with the explanation, the disciplinary authority directed domestic enquiry to be conducted. The petitioner participated in the enquiry proceedings and the enquiry officer submitted his findings on 28.11.2003, holding that the charges are proved. The findings of the enquiry officer were communicated to the petitioner and he was also given opportunity to submit his further representation and after affording an opportunity of personal hearing, the disciplinary authority by order dated 14.01.2004, imposed the punishment of compulsory retirement. The petitioner preferred an appeal before the Appellate Authority, which was rejected by the Appellate Authority, by order dated 17.09.2004. The petitioner raised a dispute and the Central Government by order dated 24.02.2006, referred the dispute to the first respondent Tribunal for adjudication to decide whether the action of the second respondent management in imposing the punishment of compulsory retirement on the petitioner is legal and justified and to what relief the petitioner is entitled to? 3. The first respondent Tribunal registered the reference as I.D.No.20 of 2006, and issued notices to the petitioner and the respondent management. Before the Tribunal both parties did not lead any oral evidence. The petitioner marked four documents as Exhibits W-1 to W-4 and the management marked 20 documents as Exhibits M-1 to M-20. The Tribunal framed two points for determination as stated in the order of reference. By award dated 26.02.2008, both the points were answered against the petitioner and the Tribunal held that the action of the respondent management in imposing the punishment of compulsory retirement against the petitioner is legal and justified. Challenging the said award, the petitioner has filed this writ petition. 4. The learned counsel appearing for the petitioner submitted that the Tribunal merely extracted the pleadings and without discussing the evidence on record erroneously dismissed the Industrial dispute. It is further submitted that the petitioner has established by elaborate pleading that he had no role in sending the discounted cheques for clearing and without considering the same, the Tribunal erred in dismissing the dispute. Further, it is contended that the records namely, the weekly LCRC statement and monthly reconciliation statement which were prepared by the petitioner were not questioned by the Branch Manager or by any other officer and the Tribunal failed to appreciate this aspect and erroneously dismissed the dispute. The learned counsel further submitted that this is a fit case where the impugned award has to be set aside and the matter should be remanded to the Tribunal for fresh consideration. Further, it is submitted that when a jurisdiction has been conferred on the https://hcservices.ecourts.gov.in/hcservices/ Tribunal under Section 11A of the Industrial Disputes Act (I.D.Act), the Tribunal ought to have recorded a finding as regards the correctness of the finding of misconduct and in the instant case, the Tribunal failed to exercise its jurisdiction and therefore, the impugned award is illegal. 5. It is further contended that the power of the Tribunal is that of an Appellate Court and it has jurisdiction to re-appreciate the evidence and despite sufficient material placed before the Tribunal, it failed to exercise its power under Section 11A of the Act. In support of his contentions, the learned counsel placed reliance on the decision of the Hon'ble Division Bench of this Court in 1983 II LLJ 232, [Workmen, employed in Engine Valves Limited vs. Engine Valves Limited] and 2011 I LLN 77 (DB)(Mad) [G.Annie Christy vs. Deputy Chief Mechanical Engineer] and the decisions of this Court in W.P.No.7716 of 1998, dated 21.02.2007, W.P.No.21625 of 2009, dated 15.09.2011 and Judgment of this Court in 2010 4 LLJ 401 [Superintending Engineer, E.E. Distribution Circle vs. B.Gandhiraju]. 6. The learned counsel appearing for the respondent management by relying upon the counter affidavit submitted that the petitioner is attempting to invoke the jurisdiction of this Court to re- appreciate the evidence placed before the Tribunal and this Court should not act as an Appellate Court over the award of the Tribunal. It is further submitted that the departmental proceedings were conducted in a fair and transparent manner giving due opportunity to the petitioner at all stages and the order of the disciplinary authority has been upheld by the Appellate Authority and this Court should not interfere with the discretion of the disciplinary authority with regard to imposition of punishment moreso when, the petitioner was a bank employee. Further, the learned counsel by relying upon the factual averments pleaded in the counter affidavit submitted that the charges have been proved beyond doubt and the petitioner was found guilty. Further, it is submitted that the petitioner was having transactions/dealings in nearly 12 private banks and financial institutions and the operations were high value transaction fully disproportionate to the net salary of the petitioner. It is further submitted that it is incorrect to state that the Tribunal did not discuss the evidence on record and a perusal of the award would establish that the Tribunal appreciated the evidence and passed the award. Further, the learned counsel submitted that this Court may also look into the order passed by the disciplinary authority as well as the Appellate Authority wherein cogent reasons have been given. In support of his contentions, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in AIR 2007 SC 705,[Government of India vs. George Philip]; (2008) 5 SCC 569 [Chairman & Managing Director V.S.P. vs. Goparaju Sri Prabhakara Hari Babu]; (2009) 8 SCC 310[State of Uttar Pradesh and another vs. Man Mohan Nath Singa and another] and the decision of this Court in W.P.No.7494 of 2003, dated 27.09.2011. https://hcservices.ecourts.gov.in/hcservices/ 7. Heard the learned counsels appearing for the parties and perused the materials available on record. 8. The petitioner while working as a clerk at the Mowbrays Road branch, Chennai of the second respondent bank was placed under suspension with effect from 09.07.2002. Subsequently, a charge memo dated 18.01.2003, was issued containing the following charges:- It was reported by the Mowbrays Road Branch, Chennai that on a routine check-up of LCCR slips with the relevant batch ticket No.129, dated 04.07.2002, there was a difference of Rs.20,000/- noticed by them. The Branch verified all the records thoroughly and then came across with some discrepancies in the presentation of LCCR slips with cheques to Accounts Section, Chennai records. Accordingly, an investigation was conducted in the matter and the following facts came to light:- Mrs.Orion Forms, a Partnership Firm and an SSI unit was dealing with the Mowbrays Road Branch, Chennai since 1999. On a perusal of LCDB records, it was giving cheques for huge sums for discounting and most of the said cheques were drawn on Syndicate Bank, K.K.Nagar, Chennai by M/s.Indian Apparels. Four of such cheques viz., 975455, 935458, 935460 and 935471 discounted to M/s.Orion Forms were not presented till 20.07.2002. Upon verification it was observed that on several days all the cheques lodged in the clearing waste were not sent for encoding to Accounts Section, Chennai. One or two cheques pertaining to M/s.Orion Forms drawn on Syndicate Bank, K.K.Nagar Branch and discounted on that day were removed after the preparation of LCCR. The LCCR copies in duplicate meant for Accounts Section, Chennai were either altered or a separate LCCR for reduced amount were prepared and sent to encoding centre/Accounts Section. The Office copy of the LCCR which was used as debit slip for the lot was not altered nor was there any alteration in the computerized account wise summary based on which the LCCR was prepared. An investigation revealed that all the alterations in the Accounts Section copies (duplicate) were done by the petitioner. The LCCR for the reduced amounts were also prepared by him. The alterations in the LCCR were not authenticated by anybody. The signature in the LCCRs for reduced amount do not belong to any of the authorised signatories of the Branch. After the clearing cheques were ready for despatch to encoding centre/Accounts Section and after the preparation of LCCR duly signed by the Officer of the Branch, the cheques discounted to M/s.Orion Forms were removed by the petitioner and the LCCR was either reduced or a new LCCR was prepared by him and the original LCCR was replaced. For the cheques so removed, a supplementary LCCR https://hcservices.ecourts.gov.in/hcservices/ was prepared by him and the original LCCR and the cheques were sent on a subsequent day to Accounts Section, Chennai, by him presumably after getting the indication from the party that the cheque could be presented. The alteration in the LCCR register were also done by the petitioner. Both the weekly LCCR statement and monthly reconciliation statement were prepared by him from Feb. 2002 onwards and he had made corrections in monthly reconciliation statements. The details of the LCCR altered and supplementary LCCR were furnished in the annexure to the charge sheet. A perusal of his OD Account No.10113.. and SB Account No.30020 reveals that huge operations of high value cheques disproportionate to his net salary credited to his account were carried out by him and he was having dealings with about 12 financial institutions. During the course of interrogation, he was not able to give a convincing reply for his above acts. He had tampered with the LCCR, removed the cheques already lodged in clearing waste and thereby helped the party to derive undue pecuniary gains. Thus, by his above actions, he had caused considerable interest/income loss to the Bank. 9. On a perusal of the above charge, it appears that the petitioner was alleged to have acted prejudicial to the interest of the bank and therefore, explanation was called for, as to why disciplinary proceedings should not be initiated against him. A domestic enquiry was held in which the petitioner participated and he had the assistance of a defence representative and from the records it is evident that the petitioner had cross examined the management witnesses and afforded full opportunity in the departmental enquiry. Admittedly, before the Tribunal there was no challenge to the domestic enquiry conducted and the petitioner accepted the same to be fair and proper. Even in this writ petition, the petitioner would accept that the domestic enquiry was fair and proper. The enquiry officer found the charges levelled against the petitioner stand proved and the copy of the findings were furnished to the petitioner calling for his further explanation. The management not being satisfied with the explanation given, proposed the punishment of dismissal from service and also afforded an opportunity of personal hearing, thereafter considering the submissions made by the petitioner imposed the punishment of compulsory retirement by order dated 14.01.2004. The appeal filed by the petitioner was rejected by the Appellate Authority, by order dated 29.09.2004. The order passed by the disciplinary authority and the Appellate Authority are reasoned orders and the appellate authority while concurring with the disciplinary authority has given his independent reasons. Therefore, the petitioner has not made out any case for interference on procedural aspects or on the ground of violation of principles of natural justice. https://hcservices.ecourts.gov.in/hcservices/ 10. The petitioner raised a dispute and the Central Government referred the matter for adjudication before the Tribunal. Both parties did not lead any oral evidence before the Tribunal, but marked documents exhibits W-1 to W-4 and Exhibits M-1 to M20. The Tribunal by the impugned award held that the action of the respondent management in imposing the punishment of compulsory retirement is legal and justified. 11. The learned counsel for the petitioner vehemently contended that the award of the Tribunal is devoid of reasons, the Tribunal merely extracted the pleadings and dismissed the claim petition, that no independent reasons have been assigned by the Tribunal, the evidence on record was not discussed and the Tribunal grossly erred in not taking into consideration the materials which were available to establish that the petitioner was innocent. The learned counsel submits that though the award runs to 19 pages, none of the issues raised by the petitioner were considered and the Tribunal erroneously dismissed the claim petition in a single paragraph being paragraph no.10. The learned counsel after referring to the decisions cited supra, submitted that though the Tribunal held that the domestic enquiry was fair and proper the Tribunal was required to look into the findings and come to a conclusion whether the findings of the enquiry officer is supported by evidence and after doing so should also examine whether the punishment imposed on the petitioner was justified. 12. Per contra the learned counsel appearing for the respondent bank would submit that the scope of interference by this Court under Article 226 against the award of the Tribunal is very limited and this Court is not hearing an appeal against the decision of the disciplinary authority and the case on hand, the award is a reasoned award and the Tribunal took note of the evidence in the domestic enquiry and after discussing each contention raised by both parties has passed the award and while discussing the case and counter, simultaneously gave reasons for its conclusion and therefore, the award should not be interfered. Further it is contended that the respondent management imposed the punishment of compulsory retirement which is commensurate with the gravity of the misconduct and confirmed by the Tribunal and in the absence of any perversity in the award, this Court should not entertain the writ petition. 13. As the first instance, on a perusal of the impugned award it appears as if the conclusion of the Tribunal is contained only in paragraph 10. However on a closure scrutiny it proves otherwise. At this stage, it may be pointed out that the Tribunal proceeded to analysis the case of the petitioner, the case of the management on each aspect and then proceed to render the finding at the conclusion of the contentions. At this stage, it would be relevant to quote a few paragraphs of the impugned award which would establish that the https://hcservices.ecourts.gov.in/hcservices/ Tribunal did assign reasons for its conclusion and considered the evidence which was placed before the enquiry officer in the domestic enquiry:- It is clearly established before the Domestic Enquiry that no such instructions over phone or through a bit paper was given to the petitioner by any of the Officers or staff employed in the said branch at the relevant time. Therefore, it is clearly established that purely for escaping from liability, the petitioner has alleged that only under certain instructions from higher officials the number of instruments that were to be sent for cleaning were delayed or the LCCR were altered or supplementary LCCR were prepared. Since the petitioner alleged that he has done these alterations by preparing supplementary LCCR, it is for him to establish before the domestic enquiry who has given the alleged instructions or who has asked him to alter the LCCR entries but on the other hand, the petitioner has not established these facts with any satisfactory evidence. Therefore, the petitioner alone who was squarely responsible for deliberately altering the amounts mentioned in the LCCR and for withholding the discounting cheques from being sent immediately for collection with an ulterior motive. No doubt, he had alleged so many things against the Branch Manager and it is also true that the Branch Manager is responsible for discounting the cheques, on that ground it cannot be presumed or assumed that he has given the instructions to the petitioner to alter the LCCR statement or to prepare a supplementary LCCR. Under such circumstances, it is the petitioner who has all along voluntarily and deliberately without any instructions whatsoever have been making alterations in the LCCR and has prepared the supplementary LCCR as contended by the respondent bank. Further, if really the petitioner is innocent as claimed by him, there is absolutely no explanation from him as to what made him to alter only the original and duplicate of the LCCR without altering the office copy knowing fully well that the LCCR bar is in the set of three copies. Thus, it is clearly established in preparing the LCCR, the role of the petitioner is certainly crucial. In that, he is required to prepare LCCR and only be the record retained by the bank with respect to the cheques which are sent for clearing. As such to make a alteration in the LCCR or preparing supplementary LCCRs, after the original preparation of LCCRs in triplicate and forwarding one copy of the same to the Accounts Section of the Bank alongwith the cheques sent for clearance is certainly unbecoming of a responsible clerk whose duty is to simply prepare the LCCR strictly after the instruments being posted in the computer/machine by the clearing clerk and based on the computer summary of the headwise details only. https://hcservices.ecourts.gov.in/hcservices/ While so, even assuming that the petitioner's role is limited yet the same being one of a crucial nature, he is supposed to have either refused to make the alterations or intimated the higher officials of the bank in order to protect the interests of the bank whenever any such instructions were said to be received. But on the contrary, the petitioner has been continuously altering the LCCR and preparing supplementary LCCRs which clearly established that there are absolutely no such instructions were given as alleged by him. Further, even in the departmental enquiry he has failed to disclose as to who were the officers or persons who gave such instructions. Thus, the petitioner has been indulged in such activities knowing fully well the consequence of the same. The instruments alongwith the LCCR Bar were in a bag and placed in the pigeon hole and the sub-staff Mr Dayanidhi had clearly stated in the enquiry that there was no opportunity to anybody to meddle with the instrument when the same was in his custody. Neither the Branch Manager nor Mr.Ramarathinam who had been taking care of the entire LCCR nor Mr.Dayanithi who had been carrying the bag consisting of LCCr and instruments were not questioned in respect of delay in sending the instrument which had been discounted for M/s.Orion Forms. On the other hand, the petitioner who had nothing to do with the delay in sending the discounted cheques for clearing had been charge sheeted without any basis and an extreme punishment of compulsory retirement had been imposed on him. When it is his evidence that the alterations in the LCCR, preparation of supplementary LCCR and alteration in the LCCR register were done as per the instructions from the Branch Manager or the Officer, no action was taken against the Branch Manager or the Officers. Further, the weekly LCCR Statement and Monthly Reconciliation Statement which were prepared by the petitioner have not been questioned either by the Branch Manager or by Ramarathinam. It is not questioned because LCCR alteration and supplementary LCCR were made under their instructions, therefore, the allegation that the petitioner tampered with the LCCR is without any substance and the respondent bank has not proved the allegations with any satisfactory evidence in the Domestic enquiry and the enquiry officer has come to the conclusion with presumption and assumption. In the Domestic enquiry, the Branch Manager, the Officers and the Peon who were examined as MW5, MW2 and MW4 clearly stated the petitioner was entrusted with the work of taking the instruments/cheques to Abhiramapuram branch on quite a few occasions on way to his house for lunch. Further, the petitioner himself has admitted at the time of interrogation before the Investigation Officer that on some https://hcservices.ecourts.gov.in/hcservices/ occasions he had also taken the instruments to Abhiramapuram branch on his way to his house for lunch. While this being the admitted fact, it is false to allege that there is no scope for him to remove any of instruments when the petitioner has admitted that he had made the alterations in the LCCR and also prepared supplementary LCCR. It is only the bounden duty of the petitioner to prove that they were done only on the instructions of the higher officials. But on the other hand except the held allegation, he has not established this fact with any satisfactory evidence. The question of recovery of the money from the customer is immaterial. The petitioner who has been indulging in tampering of records and was also responsible for causing delay in realization of the amount by the Bank by ensuring that the discounted cheque is sent for clearance belatedly. Thus, the said delay has certainly caused considerable loss of income/interest to the Bank, therefore there is no substance in the contention of the petitioner that he has not caused any loss to the respondent bank. 14. In view of the above reasons assigned by the Tribunal, it cannot be stated that the Tribunal did not analysis the evidence. It may be true that the award of the Tribunal may not a classical "judgment format", but cannot be stated to be an award without reasons. However in order to dispel any doubt, this Court perused the findings in the domestic enquiry which has been filed in the typed set of papers by the petitioner. From the evidence as recorded by the enquiry officer, it has been established that the petitioner altered and prepared supplementary LCCRs etc without proper authorization and even during the cross examination of MW-1 and MW-6, the petitioner was unable to make any headway. That apart, the enquiry officer also took note of the disproportionate financial transaction in the petitioner's account. All these matters were taken into consideration and initially a provisional conclusion was arrived to dismiss the petitioner from service. The petitioner was given an opportunity of personal hearing and the disciplinary authority instead of dismissing the petitioner from service passed the order of compulsory retirement. The Appellate Authority also by a very detailed order, confirmed the penalty. Further, it is seen that the petitioner's net salary was approximately Rs.2200/- per month, but transactions involving debit of more than Rs.30,000/- per month have been reflected in his savings bank account and high value cheques of Rs.1,50,000/- had been credited in his account, cheques have been utilized for repayment of card payment to financial institutions and the petitioner has had transactions/dealings with over 12 schedule banks and private financial institutions and all these high value transactions were fully disproportionate to the net salary credited into the petitioner's account. This aspect of the matter was also taken note of by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 15. For all