IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 WP(C).No. 22980 of 2009(N) -------------------------- ID.49/2006 of LABOUR COURT, ERNAKULAM .................... PETITIONER(S): --------------- GEORGE THOMAS, KURISHUMOOTTIL HOUSE, SALEMPURAM, PATHANAPURAM P.O., KOLLAM. BY ADV. SRI.P.RAMAKRISHNAN SRI.K.PRAVEEN KUMAR RESPONDENT(S): --------------- 1. THE FEDERAL BANK LIMITED, REP. BY ITS CHAIRMAN, FEDERAL TOWERS, ALUVA. 2. THE CHAIRMAN, FEDERAL BANK LIMITED, FEDERAL TOWERS, ALUVA. 3. THE CHIEF MANAGER (DISCIPLINARY AUTHORITY), PERSONNEL & INDUSTRIAL RELATION DEPARTMENT, FEDERAL TOWERS, ALUVA. ADV. SRI.B.S.KRISHNAN, SENIOR ADVOCATE FOR R1 & 2 SRI.K.ANAND (A.201) FOR R1 & 2 SMT.LATHA KRISHNAN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/8/2010, THE COURT ON 9/9/2010 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF CHARGE SHEET EXT.P2-TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DT.5.12.01 EXT.P3-TRUE COPY OF ORDER ISSUED BY R1 DT.9.3.02 EXT.P4-TRUE COPY OF REPRESENTATION SENT BY THE PETITIONER DT.28.5.2002 EXT.P5-TRUE COPY OF REPRESENTATION SENT BY THE petitioner DT.20.6.2002 EXT.P6-TRUE COPY OF RODER DT.31.10.02 EXT.P7-TRUE COPY OF CLAIM PETITION FILED BY THE PETITIONER EXT.P8-TRUE COPY OF WRITTEN STATEMENT FILED BY THE RESPONDENT EXT.P9-TRUE COPY OF REJOINDER FILED BY THE PETITIONER EXT.P10-TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 30.8.2007 EXT.P11-TRUE COPY OF THE PROCEEDINGS OF R3 DT.7.9.05 EXT.P12-TRUE COPY OF ORDER OF R3 DT.9.12.2005 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 22980 of 2009-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of September, 2010. JUDGMENT The award of the Central Government Industrial Tribunal cum Labour Court is under challenge in this writ petition, at the instance of the former employee concerned. As per the award, the punishment of dismissal imposed by the management has been upheld. 2. The petitioner was employed as Typist cum Clerk in the service of the first respondent Bank. He was issued with two charge memos dated 7.8.2001 and 1.11.2001. The details of the charges are available in Ext.P8 which is the written statement filed by the management before the Tribunal. Mainly, the gross misconduct alleged are: (a) remaining unauthorisedly absent without intimation continuously for a period exceeding 30 days; and (b) doing any act prejudicial to the interest of the Bank. The minor misconduct alleged are: (a) absence without leave; and (b) incurring debts to an extent considered by the management as excessive. 3. In the disciplinary enquiry conducted against the employee, he remained ex-parte. Before the Labour Court, the validity of the enquiry was challenged which was heard as a preliminary issue and by an order wpc 22980/2009 2 dated 17.8.2007 it was held that the enquiry is valid. The said order is not under challenge in this writ petition and the same has become final. 4. The two questions addressed by the Labour Court in Ext.P10 award relates to the sustainability of the findings of the enquiry officer and the propriety of the punishment imposed. 5. Learned counsel for the petitioner Shri P. Ramakrishnan submitted that the power under Section 11A of the Industrial Disputes Act was not at all invoked by the Labour Court while considering the proportionality of the punishment and therefore the matter requires to be remanded to the Labour Court itself. It is pointed out that the dismissal has been imposed without considering the gravity of the charges and at least the same ought to have been converted as discharge. Reliance is placed on the decision of a Division Bench of this Court in Federal Bank Employees' Union v. Federal Bank Ltd. (2008 (2) KLT 612), wherein a punishment of dismissal which was converted as reinstatement by the Labour Court, was modified by this Court as one of discharge. It is pointed out that the principles therein would squarely apply to the facts of this case. 6. Per contra, Shri K. Anand, learned counsel for the Bank contended that the job of a Bank employee requires absolute devotion and wpc 22980/2009 3 any misconduct leading to dishonesty would invite maximum punishment, as the employee of a Bank has to deal with members of public and public money. Reliance is placed on the decisions of the Apex Court in State Bank of India and another v. Bela Bagchi and others {(2005) 7 SCC 435} and State Bank of India and others v. Ramesh Dinkar Punde {(2006) 7 SCC 212}. 7. A reading of Ext.P10 award of the Labour Court shows that the Labour Court has discussed the evidence in detail while considering the sustainability of the findings of the enquiry officer. The charges, in a nutshell, included unauthorised absence without intimation, borrowing money from customers and well-wishers, persuading customers and well- wishers to stand guaranty for him and his family members for availing loans and issuing cheques to several persons without maintaining sufficient balance in his account. Ext.ME-4 is the charge memo issued on 7.8.2001 and Ext.ME-7 is the charge memo dated 1.11.2001. The allegation regarding absence continuously, relates to two periods, viz. from 3.4.2001 to 12.4.2001 and again from 17.4.2001 to 7.8.2001. The issue was whether he had given any due intimation to the Bank regarding absence. The petitioner contended that there was due intimation and therefore it is only a wpc 22980/2009 4 minor misconduct. It was found that absence from 17.4.2001 to 7.8.2001 is clearly unauthorised absence as no leave was applied for. After discussing the evidence elaborately, the Labour Court, in para 6 concluded that the finding of the enquiry officer that the absence was without intimation to the Bank is not correct and it was found that a mere unauthorised absence is a minor misconduct. 8. In para 7 onwards, the other items of evidence to prove the charges regarding borrowing money from customers and others, etc. have been detailed. Herein, learned counsel for the petitioner submitted that if at all the evidence could be accepted, the allegations proved are only in respect of one of the customers of the Bank, viz. Shri K.P. Poulose and the other transactions do not relate to customers of the Bank. It is therefore pointed out that the said aspect ought to have been properly considered by the Labour Court, as it is not sufficient to impose the punishment of dismissal. 9. Importantly, the second charge memo, viz. Ext.P1 and the allegations therein have also to be noticed. It was alleged that the petitioner, clandestinely took possession of cheque leaves bearing Nos.207401 to 207410 from the Bank. At that point of time, the cheque leaf facility extended to the petitioner was withdrawn and therefore it was wpc 22980/2009 5 alleged that he was found misutilising the cheque book facility by issuing cheques to various parties without maintaining sufficient balance in his account. It was also alleged that the said cheque leaves were found not issued to anyone from the branch and the same is not seen available in the stock also. All these aspects were considered by the Labour Court as evident from para 8 of the award: “On the basis of the oral and documentary evidence the Enquiry Officer found that the allegations of borrowing and securing guarantors for loans availed by workman and his family members, is true. The workman had also issued cheques to the creditors. The cheque book facility was withdrawn by the bank from the workman due to his indiscriminate borrowing. It was thereafter that the workman had clandestinely took a cheque book from the bank and issued cheques to borrowers. Ext.ME-9 is copy of a blank cheque signed by the workman. He is not able to explain how he came in possession of the cheque leaf. The cheques when presented by the creditors were dishonoured. It may be true that out of the creditors there is only one customer of the bank. But that will not lighten the gravity of the misconduct. Indiscriminate borrowing by an employee of the bank is bound to tell upon the credibility of the bank. Persuading people by a bank employee to stand as surety and default on his part to repay the loan, affects the reputation of the bank and consequently it is prejudicial to the interest of the bank.” wpc 22980/2009 6 In para 9, the past conduct of the workman was considered. Exts.ME-31 and ME-32 the records of the disciplinary proceedings on two previous occasions for similar misconduct of absenteeism and borrowing are referred to therein. Ultimately, it was found thus: “Repetition of the same misconduct unmindful of the consequences, has led him to the present disciplinary action. The bank cannot tolerate such persons. He has dug his own grave and has to beat his own breast. In the circumstances the employer cannot be expected to clamp a lesser punishment than what is ordered and the same is in no way harsh or hard.” 10. It was found finally that the misconduct of remaining absent without intimation continuously for a period exceeding 30 days, falls under Clause 5(p) of 7th Supplementary Bipartite Settlement, doing an act prejudicial to the interest of the bank under Clause 5(j), absence without leave under Clause 7(a) and incurring debts to an extent considered by the management as excessive under Clause 7(l). The first two are gross misconduct and the last two are minor misconduct. It was held that borrowing money from customers and others is an act which is prejudicial to the interest of the bank and it is a major misconduct. The Labour Court was of the view that the punishment of dismissal therefore calls for “no wpc 22980/2009 7 interference”. 11. Learned counsel for the petitioner submitted that the proportionality of the punishment was not considered by the Labour Court and he invited my attention to the principles stated in Federal Bank Employees' Union's case (2008 (2) KLT 612). The Division Bench examined the scope of Section 11A of the Industrial Disputes Act and it was specifically held as follows: “Even though Labour Court can grant relief and substitute punishment in appropriate cases, it can be done only for cogent reasons. Labour Courts and Industrial Tribunals cannot act as a benevolent dictator and grant relief indiscriminately. Misplaced sympathy to wrong doers may do more harm to the industries. Industrial peace, harmony, power of the management to run the establishment etc. cannot be forgotten by the Tribunals or Labour Courts. Power under S.11A to interfere with punishment should be imposed sparingly in compelling circumstances as power to take disciplinary action is essentially a managerial function. Appropriate punishment has to be decided by the Labour Court considering the entire facts and circumstances of the case, gravity of the misconduct, effect in the establishment of the relief to be granted etc. Moulding of relief is an onerus duty on the part of the Labour Court or Tribunal. Normally the Labour Court cannot grant reinstatement in cases of proved misconducts involving wpc 22980/2009 8 dishonesty, theft, misappropriatioin, riotous behaviour inside the establishment or disorderly behaviour towards superiors as reinstatement of such employees will affect the internal discipline of the establishment.” 12. Therefore, the power under the said Section to interfere with the punishment to be imposed, can be used only sparingly and in compelling circumstances. It was specifically held that in cases involving dishonesty, the Labour Court cannot normally grant reinstatement. Therefore, actually the said principle will go against the contentions raised by the petitioner herein. It is not as if the Labour Court has not considered the pleas raised by the petitioner. The crucial findings of the Labour Court as extracted above, will show that all the relevant aspects were considered by the Labour Court. One of the serious charges against the petitioner is the issuance of cheques in spite of the fact that the cheque book facility was withdrawn by the Bank due to his indiscriminate borrowing. It was found that he had clandestinely took the cheque book from the Bank and issued cheques to the borrowers. The Labour Court specifically found in para 8 that he is not able to explain how he came in possession of the cheque leaf. Even though among the creditors, there is only one customer from the Bank, the Labour Court rightly held that the same will not affect the gravity of the wpc 22980/2009 9 misconduct. It cannot be said that the said proved charge is not a grave one. 13. In this context, it is apposite to refer to the principles stated by the Apex Court in the decisions relied on by the learned counsel for the Management. Bela Bagchi's case {(2005) 7 SCC 435} relates to the case of a Bank employee itself and the requirement to maintain high standards of honesty and dignity was re-inforced in para 15 in the following words: “A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. Even acting beyond one's authority is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also without substance.” 14. In the subsequent decision in Ramesh Dinkar Punde's case {(2006) 7 SCC 212}, their Lordships elaborately considered the principles stated in various earlier decisions including Union of India v. Parma Nanda {(1989) 2 SCC 177} and Union Bank of India v. Vishwa Mohan wpc 22980/2009 10 {(1998) 4 SCC 310}. With regard to the power of the Tribunal to interfere with the punishment, it was held in Parma Nanda's case {(1989) 2 SCC 177} as follows: “If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.” 15. In the subsequent decision in Vishwa Mohan's case {(1998 (4) SCC 310}, with regard to the discipline that has to be maintained by a Bank employee, it was held as follows: “It needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired.” The Apex Court finally held in para 21 as follows: “As already said, the respondent being a bank officer holds a position of trust where honesty and integrity are inbuilt wpc 22980/2009 11 requirements of functioning and it would not be proper to deal with the matter leniently. The respondent was a Manager of the Bank and it needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer so that the confidence of the public/depositors is not impaired. It is for this reason that when a bank officer commits misconduct, as in the present case, for his personal ends and against the interest of the bank and the depositors, he must be dealt with iron hands and he does not deserve to be dealt with leniently.” 16. In the light of the above principles laid down by the Apex Court also, I am of the view that the Labour Court has rightly upheld the punishment. It is a case where he was earlier imposed certain punishments for similar misconduct of absenteeism and borrowing. The question is whether in such circumstances, the Labour Court and this Court will be justified in interfering with the punishment. It is not a case where, as pointed out by the learned counsel for the petitioner, the Labour Court has not considered the punishment imposed under Section 11A of the Act. As already observed, the relevant findings in paragraphs 9 and 10 will show that the Labour Court has applied its mind to the charges proved, the punishment imposed and the requirement to impose the said punishment, wpc 22980/2009 12 and there is no failure as such warranting a remand. This Court cannot act as an appellate authority in such matters. For all these reasons, I find no reason to interfere with Ext.P10 award. The writ petition is therefore dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/