Madras High Court
The Deputy General Manager vs A.Madanabalan on 5 June, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.06.2012
CORAM:
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.11042 OF 2007
AND CONNECTED MISCELLANEOUS PETITIONS
The Deputy General Manager
State Bank of India
84, Rajaji Salai,
Chennai 600 001. ... Petitioner
Versus
1.A.Madanabalan
2.The Presiding Officer
Central Government Industrial Tribunal
cum Labour Court
1st Floor, 26, Haddows Road,
Shastri Bhavan, Chennai 600 006. ... 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 records on the file of the 2nd respondent namely the Presiding Officer, Central Government Industrial Tribunal, the Labour Court in award dated 06.12.2006 in I.D.No.32/2005 and quash the same as illegal, arbitrary and oppose to law.
For Petitioner : Mr.S.Sethuraman
For Respondent-1 : Mr.Balan Haridas
O R D E R
The petitioner is the State Bank of India represented by its Deputy General Manager, Chennai. In this writ petition, they have come forward to challenge the award passed by the second respondent Central Government Industrial Tribunal cum Labour Court (shortly "CGIT") in I.D.No.32/2005 dated 06.12.2006. By the impugned award, the Labour Court directed reinstatement of the first respondent, with continuity of service, and other attendant benefits. With reference to the backwages, since the workman did not prove that he was not in gainful employed, the Labour Court granted only 50% of the backwages.
2.The writ petition was admitted on 24.03.2007. Pending the writ petition, notice was ordered in the stay application. Subsequently, the workman filed an application in M.P.No.2 of 2007 seeking for a direction to pay wages in terms of Section 17-B of the Industrial Disputes Act, 1947. In that application, this Court directed the Management to pay Rs.2,00,000/- (Rupees Two Lakhs Only) by way of Banker's Cheque towards backwages. With reference to the payment under Section 17-B of the Industrial Disputes Act, a direction was issued to pay wages at the rate of Rs.8,500/- every month pending disposal of the writ petition. The first respondent workman also filed an affidavit of undertaking stating that in the event of his loosing the case, he will repay the amount of Rs.2,00,000/- to the Bank, pursuant to the conditions imposed by this Court.
3.The learned counsel for the petitioner also filed an additional typed-set containing the documents, which are not enclosed along with the original typed-set.
4.Heard the arguments of Mr.S.Sethuraman, learned counsel for the petitioner and Mr.Balan Haridas, learned counsel for the first respondent.
5.The facts leading to the passing of the award as follows:
(a)The first respondent workman was joined as a Clerk cum Cashier in the petitioner Bank on 11.07.1985. He was initially working in Ashok Nagar Branch. On 10.11.1998, he was placed under suspension.
(b)Subsequently, a charge sheet dated 19.06.1999 was given to the workman. The charges relates to the workman was that he received money from the customers as a Cashier and failed to account the amount. The last allegation was that he had received Rs.16,000/- which is in excess of his power of a teller.
(c)A criminal case was also foisted against the first respondent workman in C.C.No.7512/2002. The said case was tried by the XI Metropolitan Magistrate, Saidapet, Chennai and the workman was acquitted by an order dated 27.02.2004. In that case, the allegation was that he misappropriated a sum of Rs.3,000/- from the savings bank account of one Thirugnanasambandam on 09.09.1997. Another criminal case was tried in C.C.No.935/2003 before the same learned Magistrate. This case relates to the petitioner misappropriating a sum of Rs.1,35,700/- and he was accused of breach of trust and fraud. That case also ended in acquittal by a judgment dated 27.02.2004.
(d)But even before the criminal trial is over, an enquiry was conducted against the first respondent workman. The workman gave his explanation dated 13.07.1999 to the charge memo given to him. In the enquiry, it was stated by the workman that none of the customers had implicated the workman by correlating the records with the allegation made against the workman. All the amounts that were received by the first respondent workman were accounted. The signature found in the counterfoils was not subjected to any examination by a forensic expert.
(e)On the basis of the findings rendered by the Enquiry Officer dated 16.05.2001, workman's explanation was called for. The workman gave his explanation on 05.09.2001. Thereafter, the Disciplinary Authority issued a second show cause notice dated 19.12.2001 proposing the penalty of dismissal and also propose to recover the loss of Rs.67,500/-. Personal hearing was also given to the workman on 22.12.2001.
(f)Notwithstanding with the explanation offered by the workman, he was dismissed from service. The workman's appeal was also rejected by the appellate authority.
(g)The workman, thereafter, raised an industrial dispute before the CGIT under Section 2-A of the Industrial Disputes Act. The Conciliation Officer, as he could not bring about mediation between the parties, sent a failure report to the Central Government. The Central Government, through Ministry of Labour referred the following issue for adjudication by the CGIT, vide order dated 21.03.2005.
"Whether the action of the management of State Bank of India in imposing the punishment of discharge from service on Shri A.Madanabalan with effect from 25.1.2002 is justified or not? If not, to what relief he is entitled?"
(h)On receipt of the reference, the CGIT registered the case as I.D.No.32/2005 and issued notice to the parties. The workman filed claim statement dated 17.05.2005. The Management filed a reply statement dated Nil May 2005.
(i)Before the CGIT, on behalf of the workman, 5 documents were filed and marked as Exs.W1 to W5, including two judgments of the Criminal Court. On the side of the Management, copies of the enquiry proceedings were filed and marked as Exs.M1 to M10.
(j)The CGIT found that the Management of the State Bank of India has not filed the admitted documents prior to the incident or any contemporary documents. Under such circumstances, neither the Enquiry Officer nor the Disciplinary Authority could not have come to the conclusion that the initials or the signatures found in the counterfoils were that of the workman. The CGIT also found that none of the witnesses were deposed that they deposited the amount only to the workman or they have obtained entries in the passbook only through the workman. Hence, it cannot be said that the amounts received from the customers were misappropriated. The CGIT also found that it is an admitted fact that none of the payments alleged to have been made by the customers were found entered in the day book or cashier scroll. Under the said circumstances, the burden is upon the Bank to establish that it was only the workman who was acting as a Cashier on the alleged dates. Even though he made initials or signatures in the counterfoils, he had not made any entries in the books of accounts of the Bank. The Bank also failed to establish these facts as satisfactory evidence. Under the said circumstances, it found that the findings given by the Enquiry Officer were perverse and without any material, for the un-approved charges, the dismissal was to shock the conscience of the CGIT. Though the Bank pleaded that they lost confidence in the workman, the CGIT refused to accept the said contention, as the charges were never proved and the question of reposting confidence will not arise. It is in that context, the CGIT granted reinstatement with continuity of service and all other attendant benefits, but with 50% backwages, as noted above.
6.Mr.S.Sethuraman, learned counsel for the petitioner filed additional typed-set and took this Court to the minutes of the enquiry. But he was unable to assail the findings rendered by the CGIT. As rightly observed by the CGIT, the Management did not lead best evidence to hold that it was the workman, who had received the amount by briefing the signature in the counterfoils and the customers also did not identify the workman as the person who had received the money from them. On the other hand, there was a confusion in identifying the workman by the witnesses. Therefore, in the absence of any satisfactory evidence, this Court do not think that any case is made out to interfere with the findings rendered by the CGIT.
7.Mr.Balan Haridas, learned counsel for the workman referred to the judgment of the Honourable Supreme Court in UNION OF INDIA AND OTHERS VS. GYAN CHAND CHATTAR [2009 (12) SCC 78] for contending that serious charges of bribery cannot be proved on a mere probabilities or hearsay evidence. In paras 21 and 30 of the judgment, it was observed as follows:
"21. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
30. Charge 6 was basically based on hearsay statement and it is difficult to assume as to whether enquiry could be held on such a vague charge. Charge 6 does not reveal as to who was the person who had been asked by the respondent to pay 1% commission for payment of pay allowances. It is an admitted position that if a charge of corruption is proved, no punishment other that dismissal can be awarded."
8.In the light of these facts and the legal precedents referred to above, it is not a fit case where any relief can be given to the petitioner. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
05.06.2012 Index : Yes Internet : Yes TK To The Presiding Officer Central Government Industrial Tribunal cum Labour Court 1st Floor, 26, Haddows Road, Shastri Bhavan, Chennai 600 006.
K.CHANDRU, J.
TK PRE-DELIVERY ORDER IN W.P.NO.11042 OF 2007 05.06.2012