IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 WP(C).No. 11120 of 2007(W) -------------------------- PETITIONER: ------------ V.G.BALAKRISHNAN, NALANDA BHAVAN, PUNACHEPPALLY, KANJIRAPPALLY. BY ADV. SRI.T.M.ABDUL LATHEEF SMT.MIJI JOHN RESPONDENTS: ------------- 1. CENTRAL GOVERNMENT INDUSTRIAL-CUM LABOUR COURT, ERNAKULAM, KOCHI-14. 2. THE CHAIRMAN, THE FEDERAL BANK LIMITED, HEAD OFFICE, FEDERAL TOWERS, P.B.NO.103, ALUVA- 683101. BY ADV. SRI.K.ANAND (A.201) FOR R1 SMT.LATHA KRISHNAN FOR R1 SRI.P. PARAMESWARAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11120 of 2007 EXT.P1: COPY OF THE AWARD PASSED BY THE 1ST RESPONDENT DATED 27.10.2006 IN I.D.NO.174/2006 ON ITS FILES. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.11120 OF 2008 ---------------------------------------- Dated this the 4th day of August, 2008 JUDGMENT Ext.P1 award of the Central Government Industrial Tribunal- Cum-Labour Court, Ernakulam in I.D.No.174/2006 is under challenge in this writ petition at the instance of the workman involved in that industrial dispute. The issue referred for adjudication in that industrial dispute was: “Whether the action of the management of Federal Bank Ltd. in dismissing the services of Sri. V.G. Balakrishnan w.e.f. 6.9.1997 is legal and justified? If not, to what relief the said workman is entitled?” Since the dismissal of the workman was after having been found guilty in an enquiry conducted for that purpose, the Labour Court first considered the question of validity of the enquiry as a preliminary point. However, at the time of arguments, the learned counsel for the workman conceded before the Labour Court that sufficient opportunity was given to the workman in the enquiry and the findings cannot be said to be perverse. In view of the said admission, the enquiry was found to be valid and W.P.(c)No.11120/08 2 proper and that the findings are also supported by evidence adduced in the enquiry. Thereupon the Labour Court proceeded to consider the question as to whether the punishment imposed for the misconduct proved is commensurate with the gravity of the charges. After considering the matter in detail, the Labour Court came to the conclusion that the workman does not deserve any sympathy from the management and the punishment of dismissal cannot be termed harsh or disproportionate to the guilt. Accordingly, the Labour Court denied relief to the workman. That award is under challenge in this writ petition. 2. In so far as the workman himself had admitted before the Labour court that the enquiry is valid and proper and the findings cannot be said to be perverse, that question is no longer an issue in this writ petition. The only question that can be considered in this writ petition is as to whether the Labour Court was right in refusing to interfere with the punishment. That point was considered in paragraphs 6 to 8 of Ext.P1, which read thus: “6. Point No.(3): Since the enquiry is valid this court need not go into the reasoning of the enquiry officer and to the W.P.(c)No.11120/08 3 findings. Two charge-sheet were issued to the workman. The first charge-sheet is Ext.E7 in Ext.M1. As per the first charge sheet there are 3 charges. (1) The workman was remaining absent on several occasions without complying with the leave rules from February to December, 1994; (2) A cheque for Rs.3500/- was issued to a customer of the bank without having sufficient fund in the account of the workman. The cheque bounced. (3) Two complaints were received by the bank from two persons stating that money borrowed from one person was not repaid by the workman and the price of coffee seeds purchased by the workman from another person on credit, was not paid to him. In the second charge the allegation was that despite the disciplinary proceedings as per the first charge workman was again remaining absent on several occasions from 9.1.1995 to 27.6.1995 without complying with the leave rules. 7. For these two sets of charges a common enquiry was conducted. Three witnesses were examined and documents Ext.ME1 to ME75 were marked on management side. The Enquiry officer marked as enquiry documents, Exts.E1 to E10. All the charges, except the charge regarding purchase of coffee seeds and non-payment of price of coffee seeds, was proved before the enquiry officer. Accepting the findings of the enquriy officer the disciplinary authority dismissed the workman without notice. The appellate authority confirmed the dismissal. 8. The charge is based on para 19.5 (f) and (j) of Bipartite Settlement dated 19.10.1966 which are gross misconduct. How far this court can interference with the punishment imposed by the disciplinary authority is dealt with in Life Insurance Corporation of India Ltd. V. R. Dandapani 2006-1 L.L.J 329. It is observed that unless the punishment is shockingly disproportionate to the guilt W.P.(c)No.11120/08 4 the court shall not interfere. The evidence adduced before the enquiry officer is to the effect that the charge-sheeted employee remained absent during 1994 & 1995 on several occasions and Ext.ME3 to ME 25, 27, 32, 35 to 52 and 53 are his leave applications. He was proceeded against for unauthorised absence three times in the past. Twice punishment of censure was imposed by order dated 8.8.1988 and 7.10.1988. A third time punishment of stoppage of increment for six months without cumulative effect was imposed by order dated 2.2.1991. The memoranda issued to the CSE by the bank, Exts.67 to 69 show that he was in the habit of remaining absent from 1985 onwards. His attendance register during the period 1994 is Ext.ME56. That shows that on an average 10 days he was availing leave every month. Such being the habit of the charge-sheeted employee the management could not have taken a lenient view. The habitual absence and minor punishments imposed three times will amount to a major misconduct on a fourth occasion of similar default as per clause 19.5(f) of the Bipartite Settlement. He was also in the habit of issuing cheques to third parties including customers of the bank after borrowing money. Cheques used to bounce as there was insufficient fund in his account. This was against the administrative orders of the bank intimated to the employees by circulars. For such a misconduct he was proceeded against once and was dismissed from service as per the order dated 29.5.1992. Against the dismissal order the CSE approached the appellate authority. In Appeal the punishment was reduced to stoppage of increment for two years with cumulative effect and he was reinstated in service on his specific assurance that he would not repeat such conduct in future. This was flouted by CSE, which gave rise to the present disciplinary proceedings. The bank found no improvement in the conduct of the CSE. The long and constant unauthorized W.P.(c)No.11120/08 5 absence and the misconduct of borrowing money indiscriminately and attempts to evade repayments by issuing cheques knowing that there was no sufficient fund in his account, amounted to gross misconduct and warranted punishment for grave misconduct. The disciplinary authority as well as the appellate authority found no mitigating circumstances. An employee who remains absent every now and then without prior intimation or applying for leave puts the management to great inconvenience to function the office smoothly. Lending and borrowing by the bank employees are prohibited by Ext.ME 66 Circular of the bank and such activity is treated as a misconduct inviting disciplinary action. It damages the reputation of the bank and customers lose their trust in bank. The management has been tolerating the CSE for years together. No more leniency can be expected from the management. The CSE does not deserve any sympathy from the management. Considering the past history of CSE and the continuing misconduct it can not be said that the punishment is harsh or disproportionate to the guilt. I find no reason to interfere with the punishment”. 3. I do not find any perversity whatsoever in the said findings of the Labour Court. The Labour Court has given very cogent reasons as to why powers of the Labour Court under Section 11A of the Industrial Disputes Act cannot be invoked in the present case. The Labour Court found that the workman was given minor punishment for habitual absence several times and that itself would constitute a major misconduct. In fact once for identical misconduct, the workman was dismissed W.P.(c)No.11120/08 6 from service and later on in appeal he was reinstated with a comparatively lesser punishment. In spite of the same, the workman continued to indulge in identical misconduct. It was found that the workman is regularly in the habit of issuing cheques to third parties including customers of the bank after borrowing money. Cheques used to bounce as there was insufficient funds in his account. As per the administrative orders of the bank this is prohibited. In fact for a banking institution such employees are a liability since the credibility of the Bank itself is at stake. In such circumstances, I cannot find that the punishment imposed by the management on the workman is in any way disproportionate to the gravity of the misconducts proved against the workman. Therefore, I do not find any merit in this writ petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.11120/08 7