Madras High Court
D.Inbavalli vs State Bank Of India on 27 October, 2017
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.06.2017
DATE OF DECISION : 27.10.2017
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.No.10675 of 2016
D.Inbavalli .. Petitioner
-vs-
1. State Bank of India
rep.by its Regional Manager (RBO-II)
Chennai Zone-I
Disciplinary Authority
Disciplinary Proceedings Cell
Administrative Office, Chennai Zone
Chennai Network-I
86, Rajaji Salai
Chennai 600 001
2. The National Commission for Scheduled Caste
rep.by its Director
Sastri Bhavan, Haddows Road
Chennai 600 006 .. Respondents
Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records from the first respondent relating to the proceedings bearing reference No.DIS/CON/628 dated 15.03.2016, quash the same and consequently direct the first respondent not to proceed further with the proceedings against the petitioner relating to the chargesheet dated 10.05.2012.
For Petitioner :: Mr.N.G.R.Prasad for
M/s Row & Reddy
For Respondents :: Mr.S.Ravindran
Senior Counsel for
M/s S.Bazeer Ahamed for R1
Mr.A.K.Manojkumar
Central Government Standing
Counsel for R2
ORDER
This writ petition is directed against the impugned show cause notice issued in terms of Clause 12 of the memorandum of settlement dated 10.4.2002, in and by which the disciplinary authority, proposing to impose the punishment of dismissal without notice on the petitioner, in terms of Clause 6(a) of the aforementioned settlement, for having been found guilty of several charges in the departmental enquiry, has directed the petitioner to appear at 10.30 AM on 22.3.2016 for a personal hearing in the matter.
2. Mr.N.G.R.Prasad, learned counsel for the petitioner, assailing the impugned notice, heavily submitted that when the petitioner is working as a Special Assistant with the first respondent bank, she was issued with a charge memo on 10.5.2012 alleging that on 4.10.2011, the petitioner misappropriated a part of the cash remitted by Mr.M.Venkatesan of M/s Ganapathy Fruits and the scrutiny of CCTV footage revealed that she had misappropriated some amount and that the CCTV footage for another three days when cash shortage was reported at her counter on 16.8.2011, 16.9.2011 and 3.10.2011 were scrutinized, it was found that she stealthily removed some pieces of notes, thus she acted in a manner prejudicial to the interest of the bank as detailed in the statement of allegations in Annexure-II. On receipt of the same, the petitioner submitted her detailed explanation. After rejecting the same, an enquiry officer was appointed and the petitioner also appeared before the enquiry officer on 11.7.2012 along with her representative by name Mr.V.S.Balasubramaniyan, who is the President of the State Bank Employees Union. But the first respondent bank refused him to represent the petitioner. Subsequently, the refusal of her request to engage a representative was challenged in Writ Petition No.19528 of 2012. But this Court dismissed the same. As against that, Writ Appeal No.280 of 2014 was filed, which was allowed by this Court by order dated 10.7.2014 with a direction to the first respondent herein to permit Mr.V.S.Balasubramaniyan to be the representative of the petitioner before the enquiry officer with a further direction to the petitioner to cooperate with the enquiry so as to enable the disciplinary authority to conclude the proceedings within a period of six months. Pursuant thereto, the enquiry officer conducted an enquiry and the petitioner also denied all the charges. In the departmental enquiry, the complainant Mr.Venkatesan was not at all examined. Moreover, nothing adverse was recorded in the CCTV footage. Besides, the CCTV footage was not admissible in evidence under Section 65B of the Indian Evidence Act, because it was not certified. Further, the petitioner was able to prove in the departmental enquiry that the amount mentioned in the payment challan and the ledger have tallied and there was no shortage. Despite this, the bank has now issued the show cause notice on 15.3.2016 proposing to dismiss the petitioner from service without notice and further indicating to the petitioner that the period of suspension also will be treated only as suspension for all purposes. As the impugned proceeding is a pre-determined one, since the respondents have pre-concluded the issue, calling upon the petitioner to submit her explanation and also to appear for a personal hearing, will be of no use. However, the petitioner made a complaint on 23.2.2016 to the second respondent-National Commission for Scheduled Caste with regard to the harassment meted out to her and her husband and how she was denied even an opportunity of having a defence representative. The second respondent also had called for comments from the bank on her complaint. Without even giving a reply to the National Commission for Scheduled Castes and Scheduled Tribes, the respondent bank has hurriedly rushed to issue the impugned notice calling for the petitioners comments on the proposed punishment. When the charge itself is vague and since the petitioner belongs to Scheduled Caste community, for having obtained an order from this Court for engaging a representative, fabricating certain documents against the petitioner, the bank is attempting to terminate her service.
3. Mr.Prasad also further submitted that the first respondent has no jurisdiction to proceed to issue the impugned show cause notice. Adding further he submitted that the petitioners husband was also harassed by the bank while he served as a Chief Manager. While he was fighting with the issue, he also died on 6.12.2012 and his terminal benefits are yet to be settled by the respondent bank. In the meanwhile, the petitioner has been chargesheeted. That shows that the first respondent is proceeding only against the petitioner for coming to the Court seeking remedy against the treatment meted out to her with a mala fide motive, as she happened to be from Scheduled Caste community. Finally, Mr.Prasad contended that in the disciplinary proceedings, the respondent bank has not even mentioned as to what is the alleged amount the petitioner had misappropriated, particularly when the challan amount tallied with the remittance and the cash on 4.10.2011, fabricating the complaint on 10.10.2011, the bank cannot charge the petitioner that she had removed rupees one thousand from the bundle of Rs.100 section, which again cannot be their case, when admittedly Rs.45 lakhs was credited to the account of the customer and no excess amount was found in her possession. Contending further, it was argued that on 2.11.2015, the presenting officer marked a letter received from Mr.Venkatesan dated 10.10.2011, noticing that Mr.Venkatesans name was not shown in the list of witnesses, it was pointed out that Mr.Venkatesan should be produced as one of the witnesses if prosecution exhibit-3 should acquire the evidentiary value. Accepting the objection, Mr.Venkatesans name was included. Subsequently, the presenting officer could not produce him. Moreover, the presenting officer has not said anything apologetically about the non-production of the witness Venkatesan. That shows that the enquiry officer has sided with the prosecution. Besides, when the CDs were presented by the presenting officer, they were never played inside the enquiry room. Three sets of 4 CDs were brought, of which one set was given to the departmental representative and another to the enquiry officer. While seeing the CD, it is not known how the enquiry officer has left away Venkatesan putting money on his pocket with a broad smile on his face. Moreover, the enquiry officer has also closed his eyes to the petitioners gesture to Mr.Venkatesan to go to the branch manager and lodge his complaint. In this context, he referred to the judgment of the Apex Court in the case of Hardwari Lal v. State of U.P. and others (1999) 8 SCC 582 for the proposition that non-examination of the complainant would amount to violation of the principles of natural justice. Again referring to another judgment of the Apex Court in Siemens Limited v. State of Maharasthra and others (2006) 12 SCC 33 for the proposition that the writ petition filed under Article 226 is maintainable questioning the show cause notice issued with premeditation. Mr.Prasad argued that a mere perusal of the impugned notice clearly shows that the first respondent has already formed an opinion regarding the imposition of major punishment of dismissal from service on the petitioner. It is evident that the first respondent had clearly made up his mind to dismiss the petitioner, therefore, the petitioners appearance as directed by him on 22.3.2016 would be of no use and it will be a mere eye-wash. Hence, if the impugned proceeding indicating clearly that the petitioner would be dismissed from service, is not stayed, the petitioner would be dismissed from service.
4. A detailed counter affidavit has been filed by the first respondent bank. Mr.S.Ravindran, learned senior counsel for the first respondent has submitted that the present writ petition is not maintainable at the stage of second show cause notice, when the petitioner, being a 'workman' under Section 2(s) of the Industrial Disputes Act, 1947, has got an alternative effective remedy to raise an industrial dispute on the final order to be inflicted on the delinquent. Taking support from the judgment of the Apex Court in Uttar Pradesh State Spinning Company Limited v. R.S.Pandey, (2005) 8 SCC 264, he submitted that the Apex Court has held that the writ petition under Article 226 of the Constitution of India should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out.
5. Again replying to the contention of Mr.Prasad that the complainant Mr.Venkatesan was not examined and such a default would vitiate the entire proceedings, Mr.Ravindran submitted that in a domestic enquiry, the customer of the bank need not be enquired. Taking support from the judgment of the Apex Court in State Bank of India v. Tarun kumar Banerjee and another, (2000) 8 SCC 12, he submitted that the right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions. Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and the principles of natural justice. Even if no enquiry is held by an employer or if the enquiry held by them is found to be defective, thereafter, when a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. On the evidence adduced before it, the Tribunal has to decide for itself whether the misconduct alleged is proved. However, while deciding the sufficiency of evidence, the Apex Court has held that in a bank case, the customer of the bank need not be involved in a domestic enquiry conducted, because that would not be conducive to proper bank-customer relationship. Moreover, it would not be in the interest of the bank to harass a customer in an enquiry. Therefore, the non production of the banks customer is not fatal to the domestic enquiry, since the domestic enquiry does not give any scope for producing the evidence whether having direct bearing in the case or not as is being done in a Court.
6. Heard both sides.
7. Since Mr.Ravindran has questioned the maintainability of the writ petition at the stage of issuance of second show cause notice asking the petitioner to appear for a personal hearing with regard to the proposed punishment of dismissal without notice and also pleaded that the non-production of the complainant-Mr.Venkatesan does not vitiate the enquiry proceedings, it is quite appropriate to examine these two issues.
8. The petitioner, while serving as a Special Assistant in the Koyambedu branch of the first respondent bank, is alleged to have involved in misappropriation of Rs.1,000/- belonging to the banks customer viz., M/s Ganapathy Fruits. On the ground that the petitioner is a 'workman' under Section 2(s) of the Industrial Disputes Act, 1947, she was issued with a charge memo dated 10.5.2012 alleging the following charge as found in item No.1 of Annexure-II:-
On 4.10.11 the employee of M/s Ganapathy Fruits, Shri M.Venkatesan had remitted Rs.45.00 lacs into their CC account at her counter. Shri Venkatesan complained that she misappropriated a part of the cash. A scrutiny of CCTV footage revealed that her misappropriating some amount. The CCTV footage for another 3 days when cash shortage was reported at her counter on 16.08.11, 16.09.11 and 3.10.11 were scrutinized and found that she stealthily removed some pieces of notes.
9. Since the charge levelled against the petitioner shows that her conduct of stealthily removing some pieces of notes on 16.8.2011, 16.9.2011 and 3.10.2011 involved a serious misconduct, the first respondent bank conducted a domestic enquiry in respect of the above said charge. Only two witnesses were examined on behalf of the respondent bank and 13 documents were marked. The petitioner also examined herself as a witness and filed nine documents. After completing the enquiry, the enquiry officer submitted his report on 28.12.2015 finding the petitioner guilty of charges levelled against her. By a letter dated 5.1.2016, the first respondent served a copy of the findings of the enquiry officer seeking her comments and the petitioner also by her letter dated 20.1.2016 submitted her written reply. It is at this stage, considering the nature of charges levelled against the chargesheeted employee, the findings of the enquiry officer and the submission of the written explanation by the chargesheeted delinquent, the disciplinary authority has come to a prima facie opinion on the nature of punishment to be imposed on the petitioner, who is considered as a 'workman' under section 2(s) of the Industrial Disputes Act. When the disciplinary authority has agreed with the findings of the enquiry officer, after considering the nature and gravity of charges proved against the petitioner, a tentative proposal is made to impose the punishment of dismissal from service. On the said basis, a second show cause notice on the proposed punishment was issued on 15.3.2016 to the petitioner informing the petitioner to appear for a personal hearing in the matter. When the first respondent contended that the petitioner is a 'workman' under section 2(s) of the Industrial Disputes Act, any order of punishment imposed on her can be challenged before the Central Government Industrial Tribunal, Chennai, wherein all the objections raised by the petitioner could be gone into by way of factual appreciation so that a proper decision can be given by the said Tribunal, explaining further Mr.S.Ravindran learned senior counsel for the respondents submitted that the allegation levelled against the petitioner that she had misappropriated some amount has been established by the first respondent on scrutiny of CCTV footage and it was further found by the enquiry officer that she stealthily removed some pieces of notes and if it is questioned, the first respondent would be able to establish before the Tribunal by producing the relevant CCTV footage to the satisfaction of the Tribunal and accordingly the bank can justify the order of dismissal by adducing evidence and even if it was held that there was some defect in the departmental proceedings, it can be sufficiently established. At this stage, the petitioner cannot come to this Court with the writ petition under Article 226 of the Constitution, as this Court cannot go into the factual aspects under Article 226.
10. Indisputably, the question as to whether the petitioner is a 'workman' under section 2(s) of the Industrial Disputes Act has to be gone into by the Central Government Industrial Tribunal, Chennai. Only then, the punishment, if imposed, can be further challenged before the Central Government Industrial Tribunal, Chennai, in which event all the objections raised by the petitioner can be gone into by way of factual appreciation and the decision thereon can also be given by the Tribunal. Therefore, when the petitioner has got an effective alternative remedy before the Central Government Industrial Tribunal, Chennai, this Court is not inclined to entertain the writ petition. Secondly, the Apex Court in Uttar Pradesh State Spinning Company Limited v. R.S.Pandey, (2005) 8 SCC 264 has held that the High Court should not interfere if there is adequate, efficacious and alternative remedy available. It is pertinent to extract the relevant portion of the judgment hereunder:-
11. Except for a period when Article 226 was amended by the Constitution (42nd amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extra-ordinary jurisdiction.
11. In the light of the above, the allegations of the petitioner that the complainant Mr.Venkatesan was not examined and the perusal of the CDs would indicate the sequence where Mr.Venkatesan putting money on his pocket with a broad smile on his face has escaped the attention of the enquiry officer, are all the factual matters to be gone into by the Central Government Industrial Tribunal, Chennai and not by this Court under Article 226. Thirdly, the first respondent also, meeting the said contention, took a plea that two witnesses were examined on their behalf and 13 documents were marked. While the petitioner examined herself as a witness along with nine documents, the enquiry officer submitted his findings holding the petitioner guilty of the charge levelled against her. The disciplinary authority, on perusing the entire records, arrived at a conclusion on the merits of the charges and after proper appreciation of evidence, concurred with the findings of the enquiry officer, considering the nature and gravity of the charges levelled against the petitioner, and tentatively proposed to impose the punishment of dismissal from service. With regard to the sufficiency of evidence, with the leave of the Tribunal, the first respondent could also justify the order of termination by adducing evidence, even if it was held that there was some defect in the departmental proceedings before the Tribunal. In these facts and circumstances, I am of the view that this Court cannot interfere at this stage.
12. Turning to another contention of victimization to show that the petitioner was victimized, Mr.Prasad also submitted that the petitioner was not only denied the opportunity of having a defence representative, which was acquired only through the order of this Court in W.A.No.280 of 2014 dated 10.7.2014, but also was denied the subsistence allowance, for which she filed a complaint on 23.2.2016 to the National Commission for Scheduled Castes and Scheduled Tribes. Without the same being disposed of, the first respondent has no jurisdiction to issue the impugned show cause notice.
13. Meeting that point, Mr.Ravindran, learned senior counsel for the respondents submitted that when the petitioner made a complaint on 23.2.2016 to the Director, National Commission for Scheduled Castes and Scheduled Tribes alleging non-payment of subsistence allowance only, as per the banks extant instructions, subsistence allowance has been paid to the petitioner every month from the date of her suspension. Therefore, there is no merit in the said complaint. Moreover, the respondent bank also replied to the National Commission for Scheduled Castes and Scheduled Tribes on 15.3.2016. In view thereof, I could see that the filing of the complaint to the second respondent cannot be a ground to maintain the writ petition.
14. In view of the above background, while answering the first question of maintainability raised by the first respondent bank on the ground that the petitioner being a 'workman' covered under section 2(s) of the Industrial Disputes Act should approach the Central Government Industrial Tribunal, Chennai against the final order to be passed by the respondent management as to the fairness of enquiry, correctness of the charges and the quantum of punishment that could be examined by the Tribunal, let me deal with the second question. So far as the submission of Mr.Prasad as to the non-production of the complainant Mr.Venkatesan before the enquiry officer is concerned, it is well settled by the Apex Court in State Bank of India v. Tarun Kumar Banerjee and others, (2000) 8 SCC 12, that the customer of the bank need not be involved in a domestic enquiry conducted, as such a course would not be conducive to proper banker-customer relationship and would also not be in the interest of the bank. Thirdly, going to the impugned question as to whether the petitioner is entitled to challenge the impugned notice dated 15.3.2016 calling upon her to give her explanation as to why the proposed punishment of dismissal from service without notice should not be imposed against her, at the outset, I can say that law is well settled by the Constitution Bench of the Apex Court in the case of Union of India and another v. Tulsiram Patel, (1985) 3 SCC 398, wherein the Constitution Bench has laid down the law beyond anyones doubt that after the Constitution (42nd Amendment) Act, 1976, the employees are not entitled in law to be heard in the matter of penalty. Explaining this legal position further clear, in Punjab National Bank v. K.K.Verma, (2010) 13 SCC 494, the Supreme Court has held as follows:-
28Counsel for the appellant submitted that the Constitution Bench has held in Union of India and another v. Tulsiram Patel, (1985) 3 SCC 398 that after the 42nd amendment the employees are not entitled in law to be heard in the matter of penalty. In Karunakars case (supra), another Constitution Bench has referred to Tulsiram Patel in paragraph-4 and then explained the legal position in this behalf in paragraph-7 as follows:-
While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment. Thus, the right to represent against the findings in the inquiry report to prove ones innocence is distinct from the right to represent against the proposed penalty. It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment. The right to represent against the findings in the report is not disturbed in any way... Therefore, the writ petition challenging the second show cause notice as to why the proposed punishment should not be imposed against her is legally not maintainable under Article 226 of the Constitution of India.
15. However, an argument can possibly be advanced on the basis of settlement reached under clause 12 of the memorandum of settlement, which obligates the management/employer to issue proposed show cause notice calling for a personal hearing. But here again, the legal position is well settled that there cannot be any agreement between the parties to the contract against law. Therefore, one of the clauses in the aforementioned agreement in which the employer has to issue notice with regard to the proposed punishment is neither lawful nor enforceable in the eye of law. In this context, it is necessary to refer to Sections 20 & 23 of the Indian Contract Act, which are given as under:-
20. Agreement void where both parties are under mistake as to the matter of fact.--Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void.
23. What considerations and objects are lawful and what not..--The consideration or object of an agreement is lawful, unless it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law or is fraudulent or involves or implies injury to the person or property of another, or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
16. A mere reading of the same shows that where both the parties to an agreement are under a mistake as to the matter of fact essential to the agreement, such an agreement is void. In the present case, when the Constitution (42nd Amendment) Act, 1976 has done away with the issuance of second show cause notice proposing the punishment to be imposed by the employer on the delinquent employee, which has also been considered by the Apex Court in Tulsiram Patels case and K.K.Verma's case mentioned supra, I am of the considered opinion that what cannot be done directly cannot be allowed to be done indirectly. Further, as held by the Allahabad High Court in Nutan Kumar v. Second Additional District Jude, Banda, AIR 1994 All 294, which holds that the agreement offending a statute or public policy or forbidden by law is not only void, but it is invalid from nativity and it cannot become valid even if the parties agree to it.
17. No doubt, Sections 12(3) and 18(1) of the Industrial Disputes Act say that the settlement reached between the parties are of binding nature, but, they cannot go against the law. When the Constitution (42nd amendment) Act was enacted by the Parliament on November, 11, 1976 and received the assent of the President on December 18, 1976, the agreement reached between the petitioner Union and the employer under Section 18(1) cannot overreach the supremacy of Parliament. Moreover, law declared by the Constitution Bench in Tulsiram Patels case followed in K.K.Vermas case under Article 141 will bind all the citizens of this country.
18. In fine, firstly, the writ petition is not maintainable, for the simple reason that the petitioner being a workman under section 2(s) of the Industrial Disputes Act, has to approach the Central Government Industrial Tribunal, Chennai by raising a dispute only after the final order is passed by the employer, if it is against her. That stage has not yet come.
18.1. Secondly, the Central Government Industrial Tribunal, Chennai, in the event of entertaining the industrial dispute, could go into three aspects viz., the correctness of the charges, the fairness of enquiry and the quantum of punishment, if any, imposed on the petitioner. That stage also has not yet reached.
18.2. Thirdly, the issuance of second show cause notice indicating the proposed punishment having been dispensed with by the Constitution (42nd Amendment) Act, 1976, the writ petition is not maintainable under Article 226 of the Constitution of India.
19. For all the aforementioned discussions, this Court is not inclined to entertain the writ petition. Accordingly, this writ petition is dismissed, as the petitioner can have recourse to the alternative and efficacious remedy available under law, if any adverse order is passed against her. Consequently, interim order stands vacated and the W.M.P.Nos.9352 and 18941 of 2016 are also dismissed. No costs.
Speaking/Non speaking order 27.10.2017
Index : yes
Issue copy on 31.10.2017
ss
To
1. The Regional Manager (RBO-II)
State Bank of India
Chennai Zone-I
Disciplinary Authority
Disciplinary Proceedings Cell
Administrative Office, Chennai Zone
Chennai Network-I
86, Rajaji Salai
Chennai 600 001
2. The Director
National Commission for Scheduled Caste
Sastri Bhavan, Haddows Road
Chennai 600 006
T.RAJA, J.
ss
Order in
W.P.No.10675 of 2016
27.10.2017