Madras High Court
Deputy General Manager vs The Presiding Officer on 28 November, 2019
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP.No.6644 of 2010 & 6651 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.6644 of 2010 & 6651 of 2011
M.P.Nos.1 to 3 of 2010
Deputy General Manager,
State Bank of India,
Mc.Donalds Road
Tirchirappalli-620 001. ...Petitioner in W.P.No.6644 of 2010
vs.
1. The Presiding Officer
Central Government Industrial Tribunal cum
Labour Court, Shasthri Bhavan,
Haddows Road, Chennai-600 006. ...R1 & R1 in W.P.No.6644 of
2010 & 6651 of 2011
2. J.Rajagopalan ...R2 in W.P.No.6644 of 2010
3.State Bank of India rep.by its
Deputy General Manager,
Zonal Office, Mc.Donalds Road,
Tiruchirappalli-620 001.
4. State Bank of India,
Rep. By its Chief General Manager,
Local Head Office,
College Road, Chennai-600 006. ... R2 & R3 in W.P.No.6651
of 2011
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PRAYER IN W.P.No.6644 of 2010: Writ Petition filed under Article
226 of the Constitution of India praying to issue a Writ of Certiorari,
to call for the records from the file of the first respondent herein
relating to the award dated 14.12.2009 in I.D.No.20/2007 and
quash the said award.
PRAYER IN W.P.No.6651 of 2010: Writ Petition filed under Article
226 of the Constitution of India praying to issue a Writ of
Certiorarified Mandamus, to call for the records from the first
respondent Industrial Tribunal relating to its award dated
14.12.2009 in I.D.No.20 of 2007, communicated to the petitioner by
the Office fo the Tribunal on 18.01.2010, quash the same in so far
as it denied backwages, consequently direct the respondent Bank to
pay the backwages from the date of suspension after adjusting the
amount of subsistence allowance paid till 13.12.2009, with revision
of scales of pay from the date of suspension till the date of filing of
W.P.No.6644 of 2010 by the State Bank of India challenging the
award of reinstatement, pass such other order or orders as are
necessary in the facts and circumstances of the case, award costs
and render justice.
For Petitioner : Mr.S.Ravindran
in W.P.No.6644 Senior Counsel
of 2010 for Mr.S.Bazeer Ahmed
For Respondents : R1-Tribunal
in W.P.No.6644 Mr.K.M.Ramesh for R2.
Of 2010
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For petitioner : Mr.K.M.Ramesh
in W.P.No.6651
of 2011
For respondents :R1-Tribunal
in W.P.No.6651 :Mr.S.Ravindran, Senior Counsel
of 2011 for Mr.S.Bazeer Ahamed for RR2 & 3.
COMMON ORDER
Challenging the award dated 14.12.2009 in I.D.No.20 of 2007, the Management/State Bank of India has filed W.P.No.6644 of 2010 and the employee has filed W.P.No.6651 of 2011.
2. The Management of the State Bank of India has challenged the award with reference to the relief of reinstatement granted in favour of the employee. The employee has filed the writ petition challenging the denial of backwages and prayed for grant of backwages.
3. The employee/Thiru.J.Rajagopalan was working as Assistant General Manager(Admin) of State Bank of India at Tiruchirappalli. On account of allegation of grave misconduct, the employee was placed under suspension on 24.02.2003, pending 3/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 initiation of regular departmental proceedings. The charge memo dated 25.02.2004 was issued in terms of clause 5(j) of the Memorandum of Settlement dated 10.04.2002, alleging that the employee, on 24.02.2002, took back one cover containing 5 short credits (SC) lodged in the account of Thiru.S Ayoob and addressed to the Service Branch, Mumbai as per list 'A' from Mr.R.Natarajan, courier representative, in March 2002, to return to him the envelopes addressed to the Service Branch, Mumbai as per list “B” containing SC's lodged on various dates on account of Thiru.S Ayoob, current account holder thereby, colluding with S Ayoob who has defrauded the Bank to the tune of Rs.10,98,600/- and caused loss to the Bank to the extent of Rs.1,08,07,599/-. It was alleged in charge No.3 that the second respondent on 18.05.2002, accepted a dinner hosted by S Ayoob at Hotel Royal Southern, Tiruchi.
4. The employee denied the charges and thereafter, an enquiry was ordered. The enquiry officer conducted the enquiry by affording opportunity to the delinquent employee. The enquiry officer submitted his report on 17.03.2005, holding that the first two charges were proved and the charge 3 was partly proved. The 4/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 enquiry report was forwarded to the employee on 19.03.2005 and after considering the materials available on record, the employee was dismissed from service in terms of Clause 6(a) of the settlement dated 10.04.2002. The order of dismissal from service was issued on 28.06.2005.
5. The employee preferred an appeal and the appellate Authority passed an order on 17.02.2006, rejecting the appeal. Thereafter, the employee raised an industrial dispute in I.D.No.20 of 2007. The Industrial Tribunal granted the benefit of reinstatement in favour of the employee and rejected the back wages. Thus, both parties have chosen to file writ petitions, challenging the same award.
6. The learned counsel appearing on behalf of the Management contended that the charges are grave in nature and the charges were held proved mainly on the ground of preponderance of probabilities. The entire facts and circumstances led to the charges were established by the Management that the misconduct which are all grave in nature are proved against the delinquent employee. The 5/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 manner in which the delinquent employee conducted himself regarding the banking transactions were cogently established before the enquiry officer as well as before the Industrial Tribunal. Therefore, there is no reason for the Industrial Tribunal to grant the benefit of reinstatement as the misconduct are proved grave in nature which resulted in monetary loss to the Bank.
7. The learned Senior Counsel for the Management solicited the attention of this Court that a criminal case was registered against the delinquent employee before the Second Additional District Court for CBI Cases, Maduai, which ended in conviction and by judgment dated 17.03.2017 in C.C.No.4 of 2006, the delinquent was convicted and sentenced to imprisonment for seven years. It is submitted that challenging the said conviction and sentence, the delinquent employee has filed an appeal and the same is stated to be pending. The conviction was imposed under Section 120 B r/w 420 IPC. He was imposed with the punishment of 7 years imprisonment for charges under Section 420 IPC and the criminal appeal filed by the delinquent employee/Mr.J.Rajagopalan is now pending. Therefore, the question of reinstatement would not arise at 6/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 all. An employee, who was convicted in a criminal case, though preferred an appeal, is not entitled for reinstatement and based on the criminal court judgment also, the delinquent employee is not entitled for reinstatement.
8. The learned Senior Counsel solicited the attention of this Court regarding the findings of the enquiry officer and submitted that the charges are very grave in nature and the Enquiry Officer arrived at a finding that the delinquent employee is capable of committing such misconducts. Therefore, the Industrial Tribunal has committed an error in not considering the cogent findings of the enquiry officer.
9. The learned Senior Counsel narrated the entire sequences leading to the establishment of the charges as follows:
1. The employee was working as Assistant(cash) in the State Bank of India, Aranthaangi Branch, Pudhukottai District.
2. During March and April 2002, 7/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 G.P.Radhakrishnan was the Branch manager in the said branch
3.One of the customers of the branch was S.Ayoob
4. One of the methods of commercial transactions between the customer and the bank is a reputed customer would be given what is known as “short credit” which means that on the mere deposit of cheque by the customer, before its realization the cheque amount would be credited to the customers account in the branch. As it was in practice during the relevant time the cheques would be sent to the collection house through courier at respective service branch wherein the cheque amount would be realized and the transaction would be completed.
5.However, there used to be a fraudulent practice where after giving short credit to the customer, the cheque to the service branch would be delayed enabling the customer to have the benefit of banks money for a temporary period without actual cash in his account. Worst even, the cheque may bounce belatedly enabling the customer to fraud the bank permanently. The present case falls under the 2nd 8/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 category.
6.On 24.02.2002, the employee on the instructions of branch manager, Radhakrishnan intercepted the courier containing 5 cheques on short credit amounting to 24,15,000 to be lodged to the account of Ayoob at service Branch, Mumbai. The employee collected the courier cover from Natarajan, courier representative and delivered it to the Branch Manager.
7.Earlier during March 2002, the employee persuaded the courier representative, Natarajan, to recover the courier cover to be sent to service branch, Mumbai which contained 19 cheques on short credit amounting to Rs.1,09,86,000/-.
8.On 18.05.2002, he accepted dinner party hosted by Ayoob at Hotel Royal Sothern, Trichy, wherein the branch Manager also participated.
9.The above fraud came to light only during December 2002, when the subsequent branch manager R.Santhanakrishnan found that the above two transactions were not credited by the service branch, Mumbai.9/31
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10. After thorough investigation on 24.02.2004, charge sheet was issued to the employee on his active role in the above fraud. The employee submitted his explanation dated 25.03.2004 admitted that he got back the cover from the courier agency at the instance of Radhakrishnan, branch Manager. However, he denied any collusion in the fraud. He also stated that he attended the dinner on 18.05.2002, in the hotel cottage where S.Ayoob was present but Ayoob did not participate in the dinner.
11.A domestic enquiry was held into the above charges. The enquiry officer submitted report dated 17.03.2005 holding the employee guilty. By order dated 28.06.2005, the employee was dismissed from service.
12.The non-employment issue was adjudicated before the CGIT, Chennai. By preliminary order dated 07.01.2009, the enquiry was held to be vitiated. Thereafter, S.Muthukumaraswamy, branch manager was examined and Exhibits M1 to M5 were marked. The employee examined himself and marked W1 to W7.
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13.By award dated 14.12.2009, in I.D.No.20/2007, the presiding officer held a.The petitioner was examined as WW1 justified that as per the instructions of officiating chief manager went to the courier office and requested the courier person to return the cheque.
b.He denied having deliberately taken the envelopes containing SE Schedules and to have handed over to Radhakrishan c.Though the petitioner is shown to be a man who did certain over offending acts on being instructed by the officiating manager there is nothing to show that part of his actus-rea the petitioner had any mensrea.
d.Though according to MW1 all staff members of the bank could be aware as to the bank practice and rules it is not known whether the petitioner had knowledge to avoid compliance.
e.It is abundantly clear as to whether the petitioner was actually colluding or cooperating with his boss with the knowledge that he was doing contrary to rule.
f.There is no evidence even of prepondering nature to prove the guilt of the 11/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 petitioner.
14. All the above reasons given by the Tribunal is perverse. It has shown misplaced sympathy to the employee by diluting the seriousness of the misconduct committed by the employee to hold him not guilty of the charges levelled against him.
10. The learned counsel appearing on behalf of the employee disputed the contention raised on behalf of the Bank by stating that even in reply filed by the delinquent employee on 25.02.2004, addressed to the Branch Manager/State Bank of India, he is clearly stated that “I have just obeyed the instructions of the officiating CM to convey his message to courier person I dropped him at the branch. It is further contended that “I respectfully denied the allegations of having demanded handing over back to me the envelopes form the courier representative. Similarly, I vehemently deny the allegation of my collusion with the fraudster. I have never imagined either to defraud my bank or to collude with any fraudster”. The very same defence was taken by the delinquent employee before the enquiry officer also and the Industrial Tribunal considered all these evidences and arrived at a conclusion that there 12/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 is a doubt in respect of misconduct as alleged and accordingly, held that the charges have not been proved. While awarding the reinstatement, the Tribunal ought to have granted back wages, in view of the fact that the Tribunal came to a conclusion that the grave misconduct against the delinquent employee are not proved.
11. The learned counsel for the delinquent employee mainly contended that when the employee was without employment, the Bank should have produced evidences before the Labour Court that he was gainfully employed. In the event of not establishing any gainful employment, then the Industrial Tribunal ought to have granted back wages, while ordering reinstatement. The Industrial Tribunal rightly came to a conclusion that the domestic enquiry was not conducted properly and set aside the same by holding that the charges are not proved on merits. Therefore, the Tribunal ought to have granted back wages.
12. The learned counsel appearing for the delinquent employee cited the judgment of the Hon'ble Supreme Court of India in the case of Sadhu Ram vs. Delhi Transport Corporation 13/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 reported in AIR 1984 SC 1467, wherein the Supreme Court made the following observations in paragraph Nos.2 & 3 are extracted hereunder:
2. Sadhu Ram was a probationer Bus Conductor whose services were terminated on 7th September, 1967 by the respondent, the Delhi Transport Corporation. On the failure of conciliation proceedings, the Conciliation Officer, Delhi submitted his report to the Delhi Administration u/s 12(5) of the Industrial Disputes Act, whereupon the Delhi Administration referred the following dispute to the Presiding Officer, Labour Court, Delhi for adjudication: “Whether the termination of service, of Shri Sadhu Ram, conductor is illegal and unjustified, and if so what directions are necessary in this respect”. The Union on behalf of the workman and the management appeared before the Presiding Officer, Labour Court. On behalf of the management, a contention was raised that the workman had not raised any demand with the management and that here was therefore, no industrial dispute. The reference was accordingly claimed to be incompetent. The Labour Court overruled the contention, holding as a fact that the Union has raised a valid demand with the management. On merits, the Labour Court gave the following finding: “I, therefore, hold that the termination order in respect of this workman is illegal and 14/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 malafide and that amounts to colourable exercise of power”. Consequently, the management was directed to reinstate the workman with effect from 8th September, 1967 with the full backwages and benefits. The management invoked the jurisdiction of the High Court of Delhi under Article 226 of the Constitution questioning the award of the Labour Court. The High went into a learned discussion on what was an Industrial Dispute and what was a jurisdictional fact, a discussion which in our opinion was an entirely unnecessary exercise. In launching into a discussion on these questions needlessly, the High Court appeared to forget the basic fact that the Labour Court had given two categoric findings:(i) that the Union had raised a demand with the management and (ii) that the termination of the services of the workman was a malafide and colourable exercise of power. Delving into the evidence as if it was an appellate Court, and reappreciating the evidence, the High Court thought that one of the documents upon which the Labour Court had relied was a suspicious document; and the High Court went on to find that no demand had been raised and there was no Industrial Dispute which could be properly referred by the Government for adjudication. On those findings, a learned single judge of the High Court quashed the Award of the Presiding Officer of the Labour Court. The decision of the learned single judge was affirmed by a Division 15/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 Bench. The workman has come before us under Article 136 of the Constitution.
3. We are afraid the High Court misdirected itself. The jurisdiction under Article 226 of the Constitution is truly wide but for that every reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate Court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different form ordinary civil disputes and to jurisdictional facts does not entitle the High Court to interfere with the findings no jurisdictional facts which the Tribunal is well competent to decide.
Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering.
13. In the case of Kuldeep Singh vs. The Commissioner of Police and others reported in AIR 1999 SC 677, the Supreme Court held as follows:
41.Smt.Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been 16/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse.
42.The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of “Reasonable Opportunity” contemplated by Article 311(2) of the Constitution. The “Bias” in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non-
production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some 17/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 superior officer who perhaps directed “fix him up”.
43.For the reasons stated above, the appeals are allowed. The judgment and order dated 28th February, 1997 passed by the Central Administrative Tribunal, is set aside. The order dated 3rd of May, 1991 passed by Deputy Commissioner of Police by which the appellant was dismissed from service as also the order passed in appeal by Additional Commissioner of Police are quahsed and the respondents are directed to reinstate the appellant with all consequential benefits including all the arrears of pay up-to-date which shall be paid within three months from today. There will, however, be no order as to costs.
14. In the case of H.S.Chandra Shekara Chari vs. The Divisional Controller KSRTC and another reported in AIR 1999 SC 1843, the Supreme Court made an observation as follows:
13. It was for this reason that full backwages were not awarded to the appellant. Once the Tribunal had found that the charges against the appellant were not established, it was not open to the learned Single Judge, who had rightly refused to re-appraise the evidence, to say that with better proof the charges could have been 18/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 established. The learned Single Judge had no jurisdiction, not even u/s 11A of the Industrial Disputes Act, 1947, to enter into the question whether the charges could have been established by better or further evidence.That is not the function of the Court or any quasi-judicial authority.
If it is found as a fact that charges are not established, then the necessary consequences have to follow and, as a corollary thereto, appropriate orders are to be passed. There may be circumstances justifying non-payment of full backwages, but they cannot be denied for the reason that the charges could have been established with better proof. If “better proof was available with the management and it was not furnished or produced before the Court, a presumption would arise that such proof, if furnished, woul have gone against the management. We are surprised that the view propounded by the learned Single Judge, which falls in the realm of speculation, has been upheld by the Division Bench.
14.In this situation, therefore, we remand the whole case back to the learned Single Judge to re-hear it on merits, subject to the condition that in compliance of the award passed by the Labour Court,, the appellant shall be put back to duty and all the arrears of salary and allowances shall be paid to him within three months and during the pendency of the writ petition, the monthly 19/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 salary shall continue to be paid to the appellant as and when it falls due.
15. Relying on the above judgments, the learned counsel for the delinquent employee reiterated that the High Court cannot re-appreciate the facts and the conclusion arrived by the Labour Court. By re-appreciating the evidences, the High Court cannot reverse the findings of the Labour Court in a writ jurisdiction under Article 226 of the Constitution of India. It is contended that the “High Court cannot constitute itself into an appellate Court over Tribunal constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to re- adjudicate facts upon questions of fact decided by those Tribunals”.
16. The learned counsel for the delinquent employee citing the above judgments emphasized that the Industrial Tribunal arrived at a conclusion that the findings of the domestic enquiry officer were perverse and that the charges are not proved. Therefore, there is no reason whatsoever to consider the writ petition filed by the Management. The Tribunal has committed an error in not awarding 20/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 the back wages. In view of the fact that the management has not established that the delinquent employee was gainfully employed, during the non-employment period, the writ petition filed by the management is to be dismissed and backwages should be granted to the employee.
17. In reply, the learned Senior Counsel for the Management cited the judgment of the Supreme Court of India in the case of State of Haryana and others vs. Rattan Singh reported in (1982)ILLJ46SC, wherein three judges Bench of the Supreme Court made certain observations. While speaking for Bench, his Lordship Mr.V.R.Krishna Iyer, made the following observation:
4.It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.
It is true that departmental authorities and administrative tribunals must be careful in evaluating such 21/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrarines, bias or surrender of independence of judgment vitiate the conclusions reached, such finding even though of a domestic tribunal, cannot be held good.
However, the Courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the Tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. 22/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011
18. Relying on the above judgment, the learned Senior Counsel reiterated that in a departmental disciplinary proceedings, preponderance of probabilities are never to punish an employee. Therefore, the domestic enquiry officer, who had examined the evidences, had arrived at a conclusion that the charges against the delinquent employee are proved and therefore, there is no reason whatsoever for the Industrial Tribunal to take a different view, holding that the charges are not proved.
19. This apart, the learned Senior Counsel relied on the judgment of the criminal Court namely the Second Additional District Court for CBI Cases, Madurai in judgment dated 17.03.2017, wherein the delinquent employee was convicted. The evidences examined by the domestic enquiry officer were also examined before the Criminal Court of law. The learned Senior Counsel solicited the attention of this Court that regarding the evidence given by Mr.Natarajan before the Criminal Court and the same is extracted hereunder:
Natarajan made evidence before the Court that "ehd; jw;rkak; g[Jf;nfhl;ilapy; g[ugrdy; Thpahpy; rg;?V!z;lhf fle;j 25 23/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 Mz;Lfshf elj;jp tUfpnwd;/ 2?k; vjphpia vdf;Fj; bjhpa[k;/ g[Jf;nfhl;ilapy; cs;s SBI t';fpf;Fk;. g[ugrdy; ThpapUf;Fk; th;j;jf hPjpahd cld;gof;if Vw;gLj;jpf; bfhz;nld;/ me;j g[Jf;nfhl;il SBI fpisapy; 2?tJ vjphp nfrpauhf gzpahw;wp te;jhh;/ mjd; K:yk; mtiu bjhpa[k;/// ghuj ! ;nll; t';fpapy; cld;gof;if vw;gl;ljdhy; jpdKk; khiy 5/30 kzpf;F nky; te;J jghy;fis bgw;W bry;Yk;go vd;idf; nfl;Lf; bfhz;lhh;fs;/ khiy 5 kzpf;F nky; SBI fpisf;Fr; brd;W mDg;g[ifg; gphptpy; cs;s o/o/gp v!;/rp ek;gh; Mfpaitfs; v';F ,Uf;Fk; mjid ehd; Ch;thhpahf vGjp o/o/gp ek;gh;. v!;/rp ek;gh; Mfpaitfis m/rh/M/111 y; gjpt[ bra;J/ SBI fthpy; ve;j ve;j Ch; vd;W Kfthp vGjp mDg;g ntz;oa Mtz';fis cs;ns itj;J xl;o gpd;g[ mjw;F urPJ nghLntd; ////////2002 k; Mz;L khh;r;R khjk; xU ehs; vd;Dila mYtyfj;jpw;F nfrpah; uh$nfhghy; xUj;jiuf; Tl;of; bfhz;L vd;Dila mYtyfj;jpw;F te;jhh; uh$nfhghy; vd;dplk; ma{g; g[Jf;nfhl;il SBI fpisapy; Valuable Customers vd;Wk; rPg; nkyhsh; uhjh fpUczDf;F kpft[k; ntz;oath; vd;W Twpdhh;/ Ma{g; v';fs; t';fpapy; fbyf;rDf;fhf jhf;fy; bra;a[k; fhnrhiyfis jahh; bra;J gjpntl;oy; gjpt[ bra;J g[ugrdy; Thpah; jiyik mYtyfj;jpw;F mDg;ghky; uh$nfhghyplk; bfhLf;Fk;go uh$nfhghy; vd;dplk; Twpdhh;/ cld; ,Ue;j ma{g; vd;idg; ghh;j;J uh$nfhghy; Twpago bra;ar; brhd;dhh;/ nkYk; mth; brhy;fpwgo bra;jhy;. uh$nfhghy; vdf;F cjtp bra;thh; vd;W ma{g; Twpdhh;/ ,e;j bra;ifapy; vdf;F cld;ghL fpilahJ vd;W ehd; kWj;J tpl;nld;/ vd;id uh$nfhghy; tw;g[Wj;jpdhh;. fl;lhag;gLj;jpdhh;/ mth; bjhy;iy bra;jjhy; ehd; nahrpf;fpnwd; vd;W Twp mDg;gp itj;njd;/ 2002?k; Mz;L khh;r;R khjk; 12?k; njjp ehd; t';fpapy; jghy;fis nrfhpj;Jf; bfhz;L fpsk;gpa rkaj;jpy; uh$nfhghy; vd;dplk; te;J Kk;ig SBI rh;tP!; fpisf;F mDg;g ntz;oa jghiy mDg;g ntz;lhk;/ mtw;iw rPg; nknd$h; nfl;Fk; nghJ bfhLf;f 24/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 ntz;oaJ jhnd. ju khl;nld; vd;W brhy;tjw;F eP ahh; vd;W Twpdhh;/ ehd; nkyhshplk; Twp ,e;j mf;hpbkz;l;il nfd;ry; bra;J tpLfpnwd; vd;W uh$nfhghy; vd;id kpul;odhh;/ ehd; nkyhsUk; nfl;fpwhh; vd;W uh$nfhghy; brhd;djhYk;. nkYk; uh$nfhghy; t';fp CHpah; vd;w fhuzj;jhYk;. Kk;il rh;tP!; fpisf;F bry;y ntz;oa fojj;ij ehd; bfhLj;J tpl;nld;/ 04.04.2002 y; g[Jf;nfhl;il SBI fpisf;F brd;W jghy;fis vy;yhk; vLj;J bl!;ghl;r; gjpntl;oy; (Ex.P.110) gjpt[ bra;njd;/ me;j gjpt[fs; ehd; fpsk;g[k;
rkaj;jpy; uh$nfhghy; te;J Kk;gi rh;tP!; fpisf;F bry;;y ntz;oa ftiu uhjhfpUczd; nfl;fpwhh; vd;W vd;dplk; jghiy nfl;lhh;/ mth; Vw;fdnt vd;id gaKWj;jpajhy; me;j jghiy ehd; uh$nfhghyplk; bfhLj;J tpl;nld;/ 07/04/2002 y; fpisf;F brd;W jghy;fis gjpt[ bra;J bfhz;oUf;Fk; nghJ 04/04/2002 th';fpr; brd;w jghiy vd;dplk; uh$nfhghy; bfhLf;Fk; nghJ fth;fs; xl;lhky; ,Ue;jJ/ ehd; mjid vLj;Jg; ghh;j;njd;/ cs;ns Mtz';fs; vJt[k; ,y;yhky; bts;is jhs;fs;jhd; ,Ue;jJ/ mJf; Fwpj;J uh$nfhghiyf; nfl;l nghJ. eP Thpah; ntiy bra;fpwhh;/ vd;id nfs;tp nfl;ff; TlhJ/ xl;o mDg;g ntz;oaJ jhd; vd;Wr; brhy;yp mtnu ftiu xl;of; bfhLj;jhh; //////// kWgoa[k; 17/04/2002. 25/04/2002. 30/04/2002/ 02/05/2002 Mfpa njjpfspy; ehd; t';fpapy; Kk;ig rh;tP!; fpisf;F bry;y ntz;oa jghy;fis mDg;g[if gjpntl;oy; me;je;j njjpapy; vGJk; gpd;g[ uh$nfhghy; me;j jghy;fis bgw;Wf; bfhz;lhh;/////////// mDg;g[if gjpntl;oy; ehd; vGjpa Fwpg;g[fs; Vw;fdnt. Ex.P.112, Ex.P.113, Ex.P114, Ex.P115, Ex.P116, Mf Fwpaplg;gl;Ls;sJ/ bgw;w jghy;fis 2. 3 ehl;fs; fHpj;J uh$nfhghy; vd;dplk; te;J bfhLg;ghh;/ ehd; mtw;iw ehd; jiyik mYtyfj;jpw;F mDg;gp itg;gngd; uh$nfghyplk; bfhLj;j jghy;fspd; tpgu';fis mDg;g[if gjpntl;oypUe;J moj;J tplth vd;W nfl;ljw;F uh$nfhghy; mjid mof;f ntz;lhk;/ mit mg;gona ,Uf;fl;Lk; vd;W Twp 25/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 tpl;lhh;/
20. The standard of proof required to convict a person under the Criminal law is strict and high in nature. In other words, high standard of proof is required to convict a person under the criminal law. However, no such high standard of proof is required to punish an employee under the disciplinary rules. When the criminal Court examined the witnesses in connection with the very same set of allegations and convicted the delinquent employee and sentenced him to 7 years of imprisonment, there is no reason for this Court to sustain the order of reinstatement ordered by the Industrial Tribunal. Undoubtedly, the Industrial Tribunal had no occasion to consider the judgment of the criminal case as the said judgment was delivered, after the award passed in I.D.No.20 of 2007. However, the judgment of the criminal Court is to be considered by this Court. The delinquent employee was convicted, during the pendency of these writ petitions. Challenging the said judgment, he has preferred an appeal, which is also pending. This Court cannot neglect the judgment of the second Additional District Court for CBI Cases, 26/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 Madurai in C.C.No.4 of 2006 dated 17.03.2017.
21. Undoubtedly, a convicted employee cannot be reinstated in the State Bank of India. The Management also punished the employee based on the charges, which are all proved before the enquiry proceedings. The findings of the Tribunal was mainly on the ground that the charges were not proved.
22. Let us consider the findings of the Tribunal, wherein the Tribunal has held that “the delinquent employee who was examined as W.W1 testified that he as per the instructions of the Officiating Chief Manager went to the courier office and requested the courier person to return the cheque. On the request of Courier Boy, he dropped him at the branch which was on the way to his residence. He denied having deliberately taken the envelopes containing SC schedules and to have handed over to Radhakrishnan, the Officiating Chief Manager”.
23. The Tribunal arrived at a conclusion that “though the petitioner is shown to be a man who did certain overt offending acts 27/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 on being instructed by the Officiating Manager, there is nothing to show that for that part of his actus-rea the petitioner has had any mensrea”. The Tribunal further made a finding that “it is not abundantly clear as to whether the petitioner was actually colluding or cooperating with his Official Boss with the very knowledge that he was doing is contrary to rule, bank practice or law. The involvement of the petitioner by way of participating in the dinner party cannot be a conclusive or reliable pointer of guilt against the petitioner for the reason that his colleague Raghunathan who is still in service of the Bank had attended the same party. According to the petitioner, the party was arranged by the Officiating Chief Manager and not by Ayub”.
24. Acceptance of these versions made by the delinquent employee by the Tribunal is undoubtedly, in contravention to the statements made by other evidences before the enquiry officer. The Industrial Tribunal by considering the defence statement of the delinquent employee, came to a conclusion that the charges are not proved. Contrarily, the Management was able to establish the conduct, entire circumstances and other factors regarding the 28/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 participation of the delinquent employee for committing such a grave misconduct. Non-consideration of the findings arrived by the enquiry officer are undoubtedly improper. The facts recorded by the enquiry officer with reference to the charge Memorandum also should be considered by the Tribunal, while appreciating the evidences. Contrarily, the Tribunal has taken a lenient view in respect of contra evidences produced by the Management and accordingly, granted reinstatement and denied backwages. The Tribunal had not appreciated the evidences in its entirety and beyond all, now the delinquent employee is convicted by the criminal court and the criminal appeal filed by the delinquent employee is also pending. Thus, reinstatement of the employee is certainly impermissible.
25. For all these reasons, this Court is of the considered opinion that the award passed by the Industrial Tribunal in I.D.No.20 of 2007 dated 14.12.2009 is perverse and the relief of reinstatement was granted by taking a lenient view and on misplaced sympathy, which is unwarranted, as the misconduct proved against the delinquent employee are grave in nature.
29/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011
26. This being the factum, the award dated 14.12.2009 passed in I.D.No.20 of 2007 is quashed. Consequently, the W.P.No.6641 of 2010 is allowed and W.P.No.6651 of 2011 is dismissed. No costs. Connected miscellaneous petition are closed.
28.11.2019 ssb Index : Yes/No Internet:Yes/No Speaking Order/Non-speaking Order To
1. The Presiding Officer Central Government Industrial Tribunal cum Labour Court, Shasthri Bhavan, Haddows Road, Chennai-600 006.
2.State Bank of India rep.by its Deputy General Manager, Zonal Office, Mc.Donalds Road, Tiruchirappalli-620 001.
3. State Bank of India, Rep. By its Chief General Manager, Local Head Office, College Road, Chennai-600 006.
30/31 http://www.judis.nic.in WP.No.6644 of 2010 & 6651 of 2011 S.M.SUBRAMANIAM ,J.
ssb W.P.No.6644 of 2010 & 6651 of 2011 M.P.Nos.1 to 3 of 2010 28.11.2019 31/31 http://www.judis.nic.in