Karnataka High Court
The Chairman vs Sri. Mahadevaswamy on 31 May, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.47606/2017 (L-RES)
BETWEEN:
THE CHAIRMAN
CAUVERY KALPATHTARU GRAMEENA BANK,
HEAD OFFICE, CA-20,
VIJAYANAGAR 2ND STAGE,
MYSORE - 570 017. ... PETITIONER
(BY SRI T.P. MUTHANNA, ADVOCATE)
AND:
SRI MAHADEVASWAMY
S/O. LATE MAALLANNA,
HABBASUR VILLAGE,
CHAMRAJNAGAR TALUK AND DISTRICT,
KARNATAKA - 571 313. ... RESPONDENT
(BY SRI C.N. MAHADESHWARAN, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR ENTIRE
RECORDS LEADING TO PASSING OF AWARD DATED 21.07.2017 IN
C.R.NO.01/2012 PASSED BY CGIT CUM LABOUR COURT, BENGALURU;
QUASH THE AWARD DATED 21.07.2017 IN C.R.NO.1/2012 PASSED BY
CGIT CUM LABOUR COURT, BENGALURU VIDE ANNEX-H TO THE WRIT
PETITION.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
23/04/2024 FOR ORDERS AND COMING FOR PRONOUNCEMENT OF
ORDER THIS DAY, (AT KALABURAGI BENCH THROUGH VIDEO
CONFERENCING), THE COURT PRONOUNCED THE FOLLOWING:
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ORDER
Aggrieved by the award of the Central Government Industrial Tribunal-cum-Labour Court ('Labour Court for short) directing the petitioner to reinstate the workman into service with the benefit of continuity of service and other consequential benefits with 50% backwages, the Chairman, Cauvery Kalpathtaru Grameena Bank ('the Bank' for short) is before this Court.
2. The parties herein are referred to as the 'workman' and the 'Bank' for the sake of convenience.
3. Workman joined the services of the Bank as a messenger-cum-sweeper in the year 1983, while in service, the workman has been placed under suspension, charge sheet was issued against the workman for commission of misconduct relating to certain irregularities observed under Advances Portfolio of Bank by involving one S. Pradeep, got many cheques used and money was fraudulently withdrawn from the customers account, enquiry proceedings were -3- initiated, enquiry officer submitted findings holding the workman guilty of the charges leveled against him, the Disciplinary Authority imposed the punishment of "removal from service which shall not be a disqualification for future employment".
4. The workman preferred appeal against the order of punishment before the Appellate Authority, the Appellate Authority rejected the appeal confirming the punishment imposed by the Disciplinary Authority. Dispute was raised by the workman before the Labour Court, the Labour Court passed an order directing the petitioner-bank to reinstate the workman into service with the benefit of continuity of service and 50% backwages and other benefits.
5. Heard Sri T.P. Muttanna, learned counsel appearing for the petitioner-Bank and Sri C.N. Mahadeshwaran, learned counsel for the respondent- workman.
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6. Learned counsel for the Bank would urge the following grounds:
a. Workman has admitted the charges leveled against him in his reply and also before the Enquiry Officer and the Appellate Authority, vide letter received by the bank on 27.01.2007.
b. In a transparent manner, enquiry proceedings were initiated by following the principles of natural justice and the proceedings were recorded both in English and Kannada and having admitted the contents of the proceedings, the workman, in his letter dated 14.08.2006, has promised to remit back a sum of Rs.40,000/- and which he did so, by depositing Rs.40,000/- on 16.08.2006 vide pay-in-slip dated 16.08.2008, which fact was ignored by the Labour Court.
c. The fairness of the domestic enquiry has been held to be fair and proper by the Labour Court and having observed so, the Labour Court was not justified in holding -5- that there is perversity in the findings of the Enquiry Officer and there was victimization of the workman by the bank.
d. The Enquiry Officer found the workman guilty of charges mainly on the documentary evidence corroborated with the letter of the workman, the Labour Court has interfered with the order of punishment of the Disciplinary Authority and replaced it with its own order without there being any justification.
e. The employees of the Bank handling the public money need to maintain a high standard of integrity, honesty and morality and the misconduct on the part of the workman in such matters cannot be gained by sympathy and generosity as a factor, which is impermissible and the findings of the Labour Court warrant interference.
7. In support of his contentions, learned counsel has placed the following decisions:
i. Avinash Sadashiv Bhosale (D) Thr. LRs. Vs. Union of India and Ors.1 (Avinash Sadashiv Bhosale) 1 Civil Appeal No.7005/2012 -6- ii. Ramesh Chandra Sharma Vs. Punjab National Bank and Anr.2 (Ramesh Chandra Sharma) iii. Hori Singh Vs. State Bank of India Thru its Chairman and Others3 [High Court of Judicature at Allahabad, Lucknow Bench] (Hori Singh) iv. State Bank of India Vs. Tarun Kumar Banerjee and Ors.4 (Tarun Kumar Banerjee)
8. Per contra, learned counsel appearing for the respondent-workman would urge the following grounds:
a. That the charges framed against the workman are false in the absence of any specific allegation of misconduct referred to by the complainant in the complaint for the alleged misconduct.
b. The ignorance of the workman was virtually exploited, the alleged admission / statement was obtained forcibly under threat and coercion.2 Appeal (Civil) No.971/2007 3 W.A. No.30241/2016 4 C.A. No.3151/1997 -7-
c. Without examining the star witness (complainant), a very strong reliance has been placed upon a prerecorded statements.
d. That the alleged amount of misconduct for Rs.40,000/- has been recovered from the concerned officials of the bank, who are in fact the real culprits and not the workman as alleged by the bank.
e. The act on part of the bank is an act of
victimization and unjust deprivation of the livelihood
guaranteed to the workman.
f. The Labour Court, by the impugned award, has
rightly held that there is perversity in the findings of the Enquiry Officer and victimization, the impugned order of the Labour Court warrants no interference.
9. Having heard the learned counsel for the parties, the only point that evolves for consideration is:
"Whether the Labour Court, in the present facts and circumstances of the case was justified in substituting the punishment imposed by the Disciplinary Authority and place the judgment by its own?"-8-
10. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
11. The workman was charged with eight charges of serious irregularities/acts of misconduct alleged to have been committed by the workman during his incumbency as a messenger-cum-sweeper between 04.06.2000 and 10.06.2006.
CHARGE NO.1 is in two portion:
A. In utter disregard to the extant instructions of the Bank in the matter of dealing with the security forms supplied from the Head Office, it has transpired that although workman had obtained 400 cheque books bearing No.081001 to 085000, each book containing 10 leaves on 03.01.2005 against acknowledgement, workman had failed to hand over all the cheque books received by him from Head Office to the Branch authorities. Instead, the workman with ulterior motive held back among others one cheque book bearing No.082111 to 082120 with himself concealing the actual No. of cheque books that were obtained from Head Office on 03.01.2005 without the knowledge of Branch authorities.-9-
B. Further, in spite of the fact that the cheque books are provided to the customers against their request and acknowledgement for smooth conduct of transactions on their accounts, it has transpired that although Smt. Shivananjamma D/O Siddaiah, Chamarajanagara Town has not approached the Branch with a request for issuance of cheque book, she is shown to have been issued with a cheque book bearing No.082111 to 082120 by making improper entries.
CHARGE NO.2:
In utter disregard to the interest and instructions of the Bank, the workman connivance with one Shri S. Pradeep, Messenger-com-Sweeper of Arkalawadi Branch got 6 cheque leaves duly filled up with necessary details such as date, payee, amount in figures and words in his handwriting and also got them signed as "Shivananjamma" by him as if Smt. Shivananjamma herself has drawn these cheques duly facilitating him to copy the signatures of the depositor by providing him the 'specimen signature' maintained on the Branch records and managed these 'self cheques to be presented across the counter through himself as well as through his accomplices and he has fraudulently withdrawn Rs.40000/- from the savings bank account No. 2679 of Smt. Shivananjamma D/O Siddaiah, Chamarajanagara Town as per the details furnished here below.
Cheque Cheque Date of Amount Payee Receiver of
No. Date Passing of Payment
cheque
082311 30.03.2005 31.03.2005 10000 Self Puttamadhu
082113 04.04.2005 04.04.2005 10000 Self M.Rajanna
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082114 12.04.2005 12.04.2005 10000 Self Not legible
082115 19.04.2005 19.04.2005 5000 Self P.Shivakumarasw
amy
082117 26.04.2005 27.04.2005 3000 Self P. Shivakumar
082118 09.05.2005 10.05.2005 2000 Self Mahadevaswamy
TOTAL 40000
CHARGE NO.3:
Notwithstanding the fact that in terms of Head Office Circular No.7/79 dated 18.01.1979 and 85/90 dated 08.10.1990 making ledger postings of the vouchers into the respective ledger accounts is the primary responsibility of the Cashier-cum-Clerk and Messenger-cum-Sweepers are not supposed to get an access into the books of accounts of the Bank -vale HOC No.35/82 dated 23.03.1982 and No.45/82 dated 16.04.1982 workman with ulterior motive posted the fraudulent cheque bearing No.082117 dated 26.04.2005 for Rs.3000/- into savings bank account No.2679 of Smt. Shivananjamma D/O Siddaish, Chamarajanagar Town on 27.04.2005 in the ledger and managed get encashment the fraudulent cheque.
CHARGE NO.4:
In utter disregard to the interest and instructions of the Bank with calculated plan and understanding that the cheque bearing No.082118 dated 09.05.2005 for Rs.2000/- contained fake signature of the depositor which was forged by Shri S. Pradeep, Messenger-cum-Sweeper of Arkalawadi Branch in consonance with the conspiracy hatched by workman and the cheque was not belonged to the depositor as also not issued by the depositor but ill gotten by workman, workman has presented
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the fraudulent cheque for payment across the counter on 10.05.2005 at Chamarajanagara Branch purporting to be drawn on savings bank account No.2679 of Smt. Shivananjamma D/O Siddaiah, Chamarajanagara Town workman has succeeded in getting the encashment of the falsified cheque affixing his signature on the reverse of the forged instrument for having received the proceeds of the cheque.
CHARGE NO.5:
In spite of the fact that in terms of the extant instructions of the Bank, the official on deputation for obtaining stationery from Head Office for Branch use shall collect them and safely hand over all the books and forms secured from Head Office including security forms to the Branch Manager/Manager (Accounts) for sale keeping them with due entries in the relative registers, you have visited Head Offer on 30.12.2002 under the instructions of the Senior Manager, Chamarajanagara Branch and collected following 4 Fixed Deposit Receipt Book among other items of stationery from the Stationery Department, Head Office, Mysore but handed over only 3 Fixed Deposit Receipt Book to the Branch by keeping one Fixed Deposit Receipt Book with himself with ulterior motive.
Fixed Deposit Receipt Fixed Deposit Receipt Fixed Receipt Books obtained from Head Books Handed Over to Book Retained by Office the Branch the Official 89901 to 89950 89901 to 89950 89951 to 90000 89951 to 90000 90001 to 90050 90001 to 90050 90051 to 90100 90051 to 90100
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CHARGE NO.6:
Without regards to the instructions contained in Head Office Circular No.48 dated 19.08.1999 wherein the members of Staff were advised to guard against issuing of cheques on their accounts without ensuring/maintaining sufficient funds, which will have belittling effect on the image of the Bank and such acts will be viewed very seriously and necessary action initiated against the concerned workman has drawn the following cheques in favour of third parties on workman savings took account No.2661 maintained at Cauvery Grameena Bank, Chamarajanagara Branch and on receipt of the cheques for collection Chamarajanagara Branch has returned them unpaid as there was no sufficient balance in his savings back account.
Details Of Cheques Returned Unpaid For Want Of sufficient Funds Sl Cheque Payee Amt. Collecting Bank Returned . No. Date Self Puttamadhu N o.
1 81363 07.08.05 Sri Ram City 1410 State Bank of 18.08.05
Union Finance India,
Limited Chamarajanag
ar
2 81364 07.09.05 Sri Ram City 1410 State Bank of 14.09.05
Union Finance India,
Limited Chamarajanag
ar
CHARGE NO.7
Notwithstanding the fact that Regulation 26 of Cauvery Grameena Bank (Officers & Employees) Service Regulations 2000
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clearly envisages that no officer or employee borrow or otherwise place himself under pecuniary obligation to a money lender except accepting from a relative of personal friend a purely temporary loan of a small amount free of interest and he shall so manage his private affairs to avoid indebtedness, he has paced himself under pecuniary obligation to M/s Sriram City Union Finance Limited and in token of evidencing of your borrowings from M/s Sriram City Union Finance Limited that he has issued the cheques referred under charge No.6.
CHARGE NO.8 Whereas in terms of the extant instructions of the Bank, loans and advances are considered by the Branches to the eligible applicants/borrowers on request and on executing required set of documents at the Branch, although the applicant Smt. Suma W/o Nagamallu of Nellur Village bas not approached Chandakawadi Branch and sought for the loans as also not executed any document, Chandakarwadi Branch, Cauvery Kalpatharu Grameena Bank has sanctioned and released a Deposit Loan of Rs.13000/-on 21.05.2004 against Savings Certificate Receipt No.301042 (New SCR No.301094) dated 25.02.2004 for Rs.17500/- falling due on 25.08.2006 in the name of Smt.H.M.Suma -vide DPL No.2273 through falsification of documents by obtaining the forged signatures of Smt. Suma W/o Nagamallu. Further the above deposit loan has been repaid by you on 15.01.2005 Through a credit challan of Rs.13690/- duly signed by woekman -vide Receipt Scroll No.6.
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12. The bank examined three witnesses and produced documents in support of the charges. The workman, in his letter dated 25.01.2007, admitted the mistakes committed by him, the Enquiry Officer conducted the enquiry as per the procedure and complying with the principles of natural justice and based on the oral and documentary evidence, held that the workman was guilty of charges and the Disciplinary Authority, considering the gravity of the charges proved, imposed the punishment of removal from service, which is not a disqualification for future employment.
13. The Labour Court, held the enquiry to be fair and proper, and thus the interference by the Labour Court to the finding of the enquiry officer was very limited. The Apex Court in the case of The workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and others5 (Firestone Tyre) held as follows:
"32. From those decisions, the following principles broadly emerge:-5
(1973) I LLJ 278 SC
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(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal., the latter has power to see if action of the employer is justified.
(2) 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 principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the, findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to, adduce evidence
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before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the, merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
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(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his, action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen, 1971-1 SCC 742 = (AIR 1971 SC 2171) within the judicial decision of a Labour Court or Tribunal"
14. Prior to insertion of Section 11A, the proposition was where a proper domestic enquiry had been held before
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passing the order of punishment, the Tribunal had no power to interfere with the findings on the misconduct recorded in the domestic enquiry, unless it was vitiated by one or the other infirmities as pointed out in the case of Indian Iron & Steel Co. Ltd. v. Their Workmen6. The enquiry if held proper by the employer, the Labour Court/Tribunal had to consider whether there was perversity in the findings of the Enquiry Officer and the Tribunal/Labour Court had no jurisdiction to sit in judgment over the decision of the employer as an appellate authority. The interference by the Labour Court to the decision of the employer would be justified only when the findings arrived in the enquiry are perverse, or management is guilty of victimization, unfair labour practice or mala fide as held in Firestone Tyre's case stated supra.
15. The Enquiry Officer and the Disciplinary Authority have analyzed the entire oral and documentary evidence, charge Nos.1, 2 and 3 are of a serious nature. The charges 6 1958 SCR 667
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leveled against the workman as entrusted with work of bringing stationery and security items such as Cheque books from their head office on 03.01.2005, workman allegedly withheld one Cheque book having 10 leaves bearing number 082111 to 082120 with ulterior motive, made fraudulent entries in the savings bank account No. 2679 of one Shivanajamma as having issued the said Cheque leaves to her, forged the initials of the supervisor, account holder and made use of the said Cheque leaves for defrauding the bank, The workman by involving one S Pradeep messenger cum sweeper of Arkalwadi branch got 6 cheques filled out of 10 as mentioned above and fraudulently withdrew total amount of Rs. 40,000/- (Rupees Forty Thousand Only) by forging the signature of the Account holder misappropriated the same Smt.Shivananjamma and workman has issued Cheque No. 81363 dated 07.08.2005 and Cheque No.81364 dated 07.09.2005 for Rs.1410/- respectively on his account without maintaining sufficient balances in the account resulting in dishonor of two Cheques issued by him, workman committed
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acts of misconduct in violation of Service Rules of the Bank by placing himself under pecuniary obligation by way of borrowing with M/s Sriram City Union Finance Limited. He fraudulently without the knowledge of the depositor Smt. H M Suma, by falsification of documents, availed deposit loan of Rs.13,000/- on 21-05-2004 and also repaid the same by crediting the loan account on 15- 01-2005 and thus misappropriated the customer's funds and committed fraudulent acts.
16. The workman, denied about the letter having addressed by him to the bank and took up a contention that the alleged letter of admitting the charges was obtained by fraud and coercion. The workman other then merely stating that the letter was obtained by playing fraud, the workman has not come forward with any specific assertion as to how fraud and coercion had been implicated upon him. The workman does not dispute about the signature on the letter and as per Ex.P15 the fingerprint opinion has clearly stated that the handwriting on the letter and the admitted signature
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of the workman are one and the same. The workman has failed to establish there was coercion or fraud played upon the workman for making such a confession. On the other hand the evidence let-in by the workman neither suggests any bias or prejudice on part of the Enquiry Officer against the employee, such as unfair treatment, discriminatory demands, predetermined stands, nor would it have indicated victimization, as bias can undermine the fairness and impartiality of the enquiry process, leading to unjust outcomes, however, in the instant case, there is no such pleading by the workman. The reliance placed by the learned counsel for the respondent in the case of Roopsingh Negi stated supra to contend that the so called confession/ admission itself was not sufficient to hold the workman guilty of misconduct and the documentary evidence has to be proved by examining the witnesses, the decision in Roopsingh Negi case is distinguishable as in the said case the appellant there in had confessed to the police that he was involved in stealing of bank draft book and the appellant
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there in was forced to sign on the said confession, as he was tortured in the police station, in the instant case the written document / letter is not disputed by the workman and no circumstances has been spoken to by the workman and the workman has failed to discharge the burden casted upon him to prove that there was fraud and coercion upon the workman.
17. The Labour Court holds that the findings of the Enquiry Officer suffer from perversity and that there is victimization on the part of the employer, the perversity as found by the Labour Court does not mention the contradictions or errors, nor has it been explained reasonably as to why the evidence presented by the witnesses during the enquiry, would indicate any perversity, nor has the Labour Court assigned any reasons about any inconsistency in the witness testimony, contradictory to the documentary evidence or illogical conclusion drawn by the Enquiry Officer. On the other hand, the Enquiry Officer considered the relevant evidence that is crucial, selectively considered the
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evidence that supports the material on records, and held that the workman is guilty of misconduct.
18. The fairness of the enquiry, having been held to be fair and proper after affording sufficient opportunity to the employee to present his case, cannot raise any doubts about the integrity of the process. The Labour Court, other than merely saying there is perversity in the findings and there is victimization, is totally silent as to what is the perversity and what is the victimization by the bank. The punishment imposed by the employer is for serious misconduct, which can be nothing but an imposition of removal from service, and at no stretch of imagination, it can be held that the imposition of punishment is disproportionate to the alleged misconduct, nor is there any ground urged by the workman that in identical circumstances of alleged misconduct more severe than what is typically imposed in similar cases, it would have raised a suspicion of victimization. The punishment imposed was commensurate with the gravity of
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the offence and consistent with the employer's discipline policy.
19. In the departmental enquiry, the standard of proof is only the preponderance of probabilities and in the case of massive fraud, there can be nothing but an imposition of dismissal, as done in the instant case. The findings recorded by the Enquiry Officer cannot be said to be that, based on no evidence and the Disciplinary Authority has taken into consideration all the relevant materials and then concluded that the charges have been duly proved against the delinquent.
20. In Ramesh Chandra Sharma v. Punjab National Bank & Another7 stated supra, the Apex Court has held at paragraph No.31 as under:
"31. The High Court itself has noticed a large number of decisions and formed the opinion that the charges levelled against the delinquent officer were of grave nature. A major punishment may be inflicted even where no pecuniary loss was caused to the Bank by reason of the act of the delinquent officer. In 7 [(2007) 9 SCC 15]
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support of the aforementioned proposition of law, the High Court opined:
"The charges levelled against the petitioner, which were found proved upon enquiry, are quite serious in nature. The petitioner had engaged himself in reckless lending causing huge financial loss to the Bank to the extent of Rs 1,14,87,164.76. It also shows that the petitioner had disbursed loan through middlemen and demanded and received illegal gratification from a borrower. We are of the considered opinion that in such cases, the officers of the Bank should not be permitted to continue in service at all.
Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity. A necessary implication which must be engrafted on the contract of service is that the servant must undertake to serve his master with good faith and fidelity. In a case of loss of confidence, reinstatement cannot be directed. Granting such an employee the relief of reinstatement would be 'an act of misplaced sympathy which can find no foundation in law or in equity'. [Vide Air India Corporation Bombay Vs. V.A. ReVellow, AIR 1972 SC 1343; tHE Binny Ltd. Vs. Their Workmen, AIR 1973 SC 1403; Kamal Kishore Lakshman Vs. Management of M/s. Pan American World Airways Inc & Ors., AIR 1987 SC 229;
Francis Klein & Co. Pvt. Ltd. Vs.
Their Workmen, AIR 1971 SC 2414; Regional
Manager, Rajasthan SRTC Vs. Sohan Lal, (2004) 8 SCC 218; and Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy & Ors., 2005 AIR SCW 1232).
In Kanhaiyalal Agrawal & Ors. Vs. Factory Manager, Gwalior Sugar Co. Ltd. (2001) 9 SCC 609, the Hon'ble Supreme Court laid down the test for loss of confidence to find out as to whether there was bona fide loss of confidence in the employee, observing that, (i) the workman is holding the position of trust
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and confidence; (ii) by abusing such position, he commits act which results in forfeiting the same; and
(iii) to continue him in service/establishment would be embarrassing and inconvenient to the employer, or would be detrimental to the discipline or security of the establishment. Loss of confidence cannot be subjective, based upon the mind of the management.
Objective facts which would lead to a definite inference of apprehension in the mind of the management, regarding trustworthiness or reliability of the employee, must be alleged and proved."
Reliance in this regard has also been placed by the High Court on the decision of State Bank of India Vs. Bela Bagch [AIR 2005 SC 3272]."
21. The Apex Court in Kanhaiyalal Agrawal and others Vs. Factory Manager, Gwalior Sugar Co. Ltd.,8 has held that the test for loss of confidence to find out as to whether there was a bonafide loss of confidence in the employee observing that, (i) the workman who is holding the post of trust and confidence; (ii) by abusing such position, he commits act which results in forfeiting the same and (iii) to continue him in service/ establishment would be embarrassing and inconvenient to the employer, or would be detrimental to the disciplinary security of the establishment. Loss of confidence cannot be subjective, based upon the 8 (2001) 9 SCC 609
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mind of the Management and once the confidence is lost, the workman cannot be continued in the employment.
22. The most relevant document is the letter addressed by the workman to the bank, the said document has been admitted by the workman, wherein in categorical terms, the workman has stated as to the misconduct committed by him and also about remitting the said amount to the bank. The Labour Court has totally misdirected itself in considering the entire evidence and replaced the order of the Disciplinary Authority by its own, which calls for interference by this Court.
23. The other judgments placed reliance by the respondent counsel are distinguishable and not applicable to the present facts and circumstances of the case. Accordingly, for the foregoing reasons, the point framed for consideration is answered accordingly and resultantly, this Court pass the following:
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ORDER
i. The writ petition is allowed.
ii. The impugned award dated 21.07.2017 in CR No.1/2012 passed by the CGIT cum Labour Court, Bengaluru at Annexure-H is hereby set aside. The orders of the Disciplinary Authority and the Appellate Authority stand confirmed.
SD/-
JUDGE S*