IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.10214 of 2001 The Zonal Manager Bank of India, Southern Zone 46, Cathedral Road, Chennai – 600 086. ... Petitioner Vs 1.The General Secretary, Bank of India Staff Union 46, Cathedral Road, Chennai – 600 086. 2.The Presiding Officer, Central Government Industrial Tribunal, Chennai. ...Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, to call for the records connected with Award dated 09.01.2001 made in I.D.No.39 of 2000 on the file of the 2nd respondent and quash the same. For petitioner : Mr.V.Sanjay Mohan for M/s.S.Ramasubramanian Associates For R1 : No appearance O R D E R The petitioner is the Management of Bank of India represented by its Zonal Manager. They have filed the present writ petition, seeking to challenge the Award passed by the second respondent Central Government Industrial Tribunal (CGIT) dated 09.01.2001 in I.D.No.39 of 2000. 2. By the impugned Award, the CGIT held that the punishment of withdrawal of special allowance of Head Cashier permanently to R.Baskaran awarded by the Management was not justified since it was a deterrent punishment not commensurate with the gravity of the proved misconduct. The CGIT modified it to that of a punishment of withdrawal of special allowance for a period of two years and that the employee was entitled for other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ 3. The writ petition was admitted on 22.05.2001. Pending the writ petition, an order of interim stay was granted for a limited period. Subsequently, on 08.09.2003, the interim stay was made absolute. Though notice was taken by the first respondent, there is no appearance. 4. The facts leading to the passing of the Award are as follows: One R.Bhaskaran, who was working as Head Cashier was a member of the first respondent Trade Union. He was working at the Velayathampalayam Branch as Head Cashier – Category 'C'. Because of his alleged arrogant and rude behaviour with the valued customers, a memo dated 27.09.1995 was issued to him. He was placed under suspension pending enquiry. A charge sheet was given to him listing out as many as 9 charges. The 9 charges cumulatively amount to gross misconduct in terms of para 19.5(j) of the Bi-partite settlement dated 19.10.1996. An enquiry was ordered to be conducted and the workman was given the assistance of a co-employee in the enquiry. The workman fully participated and after giving all opportunities, the Enquiry Officer found that the workman was guilty of 3 incidents that took place on 06.05.1994, 04.08.1995 and 08.03.1994 and the other six charges were not proved. 5. On the basis of the findings of the Enquiry Officer and other documents, a show cause notice was issued on 10.10.1996. The workman gave his written explanation. The disciplinary authority by an order dated 30.11.1996 imposed the punishment of permanent withdrawal of special allowance in terms of Para 21(iv)(e) of the Bipartite settlement dated 14.02.1995. It was also held that for the interregnum period, he will not be entitled for any pay and allowances over and above the subsistence allowance already paid. The workman filed an appeal before the Appellate Authority and the Appellate Authority by an order dated 07.02.1997 rejected the appeal and concurred with the disciplinary authority. 6. The first respondent Union raised a dispute before the Assistant Labour Commissioner (central). He sent a failure report dated 07.10.1999. The Government of India, Ministry of Labour by its order dated 29.02.2000 referred the dispute for adjudication by the second respondent CGIT. The reference made to the Tribunal was as follows: "Whether the Management of Bank of India is justified in awarding punishment of withdrawal of special allow of Head Cashier 'C' permanently to Sh.R.Baskaran? If not, to what relief the employee is entitled?" 7. On receipt of the reference, it was registered as I.D.39/2000 and notices were issued to both the parties. The first respondent Trade Union filed a claim statement dated 11.09.2000. On behalf of the petitioner Management, a counter statement dated 03.10.2000 was filed. The first respondent Union filed a re-joinder dated 02.11.2000. https://hcservices.ecourts.gov.in/hcservices/ 8. Before the CGIT, on behalf of the Union, 3 documents were filed and they were marked as Exs.W1 to W3. On the side of the Management, 3 documents were filed and they were marked as Exs.M1 to M3. The CGIT on an appreciation of materials placed before it, held that the Enquiry Officer had conducted the enquiry in a fair and proper manner following the principles of natural justice and gave sufficient opportunities to the charge sheeted employee to defend himself. The Tribunal found that the Management had examined three witnesses while the workman had examined 7 witnesses. The Enquiry Officer has held that three incidents were proved. With reference to the findings recorded by the Enquiry Officer, it was held by the CGIT that there was no scope to interfere with the findings of the Enquiry Officer. The findings of the Enquiry Officer were not perverse and was supported by sufficient evidence. 9. It was thereafter, the Tribunal took a tangent. In order to interfere with the penalty, it propounded the theory of proportionality. The Tribunal held that the past record of the workman Baskaran was very much relevant and he had put in 14 years of service without blemish. Since only three charges (that too part of charge No.6 was not proved) it held that for the proved misconduct did not require grave punishment. But at the same time, the Tribunal in paragraph 5 observed as follows: "...When he was asked to do the work as per the instruction of the Branch Manager, he cannot bluntly refuse to accept the cash for the same day. Because of his refusal only, the Manager had to sign it as late cash collection for the day. So, when considering all these things it can be easily concluded that the workman concerned has committed the misconduct of insubordination and discourtious treatment to the customers of the Bank. All put together it is seen, the punishment imposed by the disciplinary authority which is confirmed by the appellate authority is a deterrent one and not commensurate with the gravity of misconduct proved in the enquiry." 10. Having found that the enquiry was fair and proper, the charges were supported by sufficient evidence and the report of the Enquiry Officer was not perverse, the CGIT ought not to have gone into the question of proportionality. The punishment imposed on the petitioner was only withdrawal of special allowance and not dismissal or discharge. Only in such cases, the CGIT can invoke its power under Section 11-A of the Industrial Disputes Act. In the present case, the question of invoking power under Section 11-A of the Act to go into the proportionality of the punishment did not arise. The CGIT had not kept in its mind the jurisdiction imposed on it. It is not as if the punishment imposed is so shockingly disproportionate, that no reasonable person would have imposed such punishment. On the other hand, the petitioner Bank itself had imposed only a minor penalty on misconducts which were proved in a https://hcservices.ecourts.gov.in/hcservices/ full-fledged enquiry supported by legal evidence. Therefore, the attempt by the CGIT to interfere with the penalty is unwarranted. 11. In the light of the above, the impugned Award stands set aside. The writ petition stands allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1.The General Secretary, Bank of India Staff Union 46, Cathedral Road, Chennai – 600 086. 2.The Presiding Officer, Central Government Industrial Tribunal, Chennai. + 1 CC TO M/S.S.Ramasubramanian and Associates, Advocates Sr 41173 order in W.P.No.10214 of 2001 GR (CO) RH (16.6.10) https://hcservices.ecourts.gov.in/hcservices/