Madras High Court
The Special Officer vs The Appellate Authority on 15 December, 2010
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 15/12/2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL WP.(MD).No.9533 of 2005 & W.P.M.P.No. 10257 of 2005 The Special Officer, Paramakkudi, Urban Co-operative Bank Ltd, 2/378 M.S. Agraharam, Paramakkudi. .. Petitioner Vs. 1.The Appellate Authority Under Sec 41 of Tamilnadu Shops and Establishments Act, (Deputy Commissioner of Labour), Sundaram Theatre Road, K.K. Nagar, Madurai - 625 020. 2. Thiru M. Ramanathan .. Respondents Prayer Writ Petition is filed under Article 226 of Constitution of India to issue a Writ of Certiorari to call for the records relating to the impugned order of the first respondent in his file T.N.S.E. No: 1/04 and Quash the order dated 27.06.2005 and to pass such other orders as this Court may deem fit and proper in the circumstances of the case. !For Petitioner ... Mr. S.Seenivasagam ^For R1 and R2 ... No appearance :ORDER
The petitioner/Special Officer of Paramakkudi Urban Co-operative Bank Limited, Paramakkudi, has projected the present writ petition seeking a Writ of Certiorari calling for the records pertaining to the impugned order of the first respondent/Appellate Authority, dated 27.06.2005, in his file T.N.S.E. Appeal No:1/04 and to quash the same.
2. The second respondent has been serving as a Watchman in the petitioner/Co-operative Bank. At the time of joining the service in the petitioner/Bank, he submitted a school certificate that he left studies while studying 9th standard. Subsequently, he furnished a set of certificates to the effect that he completed S.S.L.C. examinations in the examinations held in April, October 1991 and October 1993. Moreover, the second respondent/Employee is reported to have passed in the Co-operative Training during the year 1994- 1995 and made a request to make entries in his service record of the said qualifications.
3. Further, the second respondent also made a written request to consider him for the post of Junior Assistant as and when a vacancy arises. When the petitioner/Bank verified the certificates for the purpose of making entry in the service record of the second respondent, it has been found that the mark sheet for October 1993 Examinations has been some what different from other two mark sheets of the same examination. Therefore, a needle of suspicion has arisen in respect of the veracity of the certificate. After correspondence, it has come to light that the said S.S.L.C. mark sheet of October 1993 is found to be a forged one. Also the registration number has not at all been allotted for October 1993 examinations.
4. The Director of Government Examinations, Chennai, has informed the petitioner/Bank through communication dated 11.01.1999 stating that S.S.L.C. mark sheet certificate of the second respondent/Watchman is a forged one etc. This has also been confirmed by another communication dated 29.01.1999 sent to the Secretary of the Director of Government examinations, Chennai - 6.
5. The case of the petitioner/Bank is that the second respondent, with a help of forged certificate, has gained an entry for the Co-operative training as required qualification for enrolment is a pass in S.S.L.C. examination unless the second respondent(Watchman) qualifies himself educationally to the pass in S.S.L.C. examination, he cannot seek an entry for Co-operative training .
6. The Secretary to the Government Examinations Board Chennai-6, in her communication dated 30.08.1999 addressed to the Managing Director of the petitioner/Bank has, among other things, mentioned that for producing false or manipulated mark sheet, the Sub Inspector of Police, Ramnad District, has been requested as per their office communication letter dated 07.08.1999 to register a case against the second respondent/Watchman. Moreover, a request is made to the petitioner/Bank to take disciplinary action against the second respondent and to transmit a office copy of the same to him.
7. The petitioner/Bank has issued a Charge Memo dated 20.5.2000 calling upon the explanation of the second respondent/Watchman. The second respondent/Watchman submitted his explanation, dated 02.06.2000, mentioning that he has completed the examinations by writing the subjects one by one (as encouraged by his friends) and he has obtained the certificate for October 1993 examination with the help of his friends and he is unaware of the fact that the said mark sheet is forged one at that point of time. Since the explanation furnished by the second respondent/ Employee has been found to be unsatisfactory, a Domestic Enquiry has been held in regard to the charges levelled against the second Respondent/employee.
8. One K.Paramaguru, (learned Advocate) has been appointed as the Domestic Enquiry Officer. The second Respondent (delinquent employee) has been directed to be appear in the enquiry on 21.6.2000 as per notice dated 16.6.2000 and he has taken part in the enquiry. On the side of the petitioner/Bank as a management witness, one P.Shanmugam, the Secretary of the petitioner/Bank has been examined and he produced the supportive documents. The second respondent has stated that he has no intention to cross examine the management witness P.Shanmugam(Secretary of the Bank). Other than the management witness P.Shanmugam, no further witness has been examined by the side of the petitioner/Bank. On the side of the second respondent/delinquent, an opportunity has been provided to let in evidence on his behalf. However, the second respondent informed that there is no need for him to let in evidence on his side and prayed for his explanation dated 2.3.2000 and 2.6.2000 to be marked on his side and to treat the same as evidence on his side. Accordingly, the enquiry has been completed.
9. The Domestic Enquiry Officer has submitted his findings dated 25.6.2000 by holding that all the charges leveled against the Second Respondent/Watchman have been proved in the enquiry. Therefore, the second respondent has been held to have produced the false certificate as if he obtained 37 marks in Mathematics and 38 marks in Social Studies in the S.S.L.C. Public examination held on October 1993 and thereby he passed in all subjects and represented to make entries in his service book that he passed 10th standard. He also gained accommodation for Co-operative training as he passed in 10th standard with the help of bogus certificate and thereby cheated the Training Institute. To suit the educational qualification to get promotion as clerk, the second respondent /Watchman manipulated false certificate as passed S.S.L.c. examinations and obtained co-operative training and thereby cheated the Management and Government Department.
10. The second respondent/employee by manipulating a false certificate to gain personally he attained disqualification from holding a post in the bank and further has lost confidence that reposed on him by the petitioner/Bank by his acts of omissions and commissions.
11. The second respondent/Watchman with proved charges levelled against him has been dismissed from service, as per the order dated 27.07.2001 passed by the petitioner/Bank.
12. Being dissatisfied with the order of the petitioner/Bank dated 27.07.2001 in dismissing the second respondent from service, the second respondent/employee has preferred an appeal bearing No.TNSE Appeal No. 1 of 2004, before the first respondent/ Appellate Authority, as per Section 41 of the Tamilnadu Shops and Establishments Act, 1947.
13. However, the first respondent/Appellate Authority by means of an order dated 27.6.2005, set aside the order of dismissal passed by the petitioner/Bank against the second respondent. The Learned Appellate Authority allowing the appeal in TNSE Appeal No.1 of 2004 preferred against the second respondent/Watchman has come to a resultant conclusion that the charges leveled against the second respondent/Watchman have not been proved in the enquiry held for that purpose and consequently, directed that the second respondent/Watchman is entitled for employment with consequential benefits.
14. The Learned counsel for the petitioner/Bank urges before this Court that the impugned order passed by the first respondent/Appellate Authority dated 27.6.2005 is against law, weight of evidence and probabilities of the case and the first respondent/Appellate Authority has failed to take up the probability of enquiry as a primary issue and rendered erroneous finding on the same and thereby failed to follow the legal procedure and simply held that the charges have not been proved and the dismissal order passed by the petitioner/bank as incorrect one.
15. Expatiating his submissions, the learned counsel for the petitioner contends that the first respondent/Appellate Authority has omitted totally to consider the evidence let in by the second respondent in the Domestic Enquiry and the documents filed therein, but has placed reliance on the judgment of a criminal court in C.C. No. 219 of 2000 on the file of the learned Judicial Magistrate, Paramakudi, in respect of the second respondent and that judgment in C.C. No. 219 of 2000 on the file of the learned Judicial Magistrate, Paramakudi, has been passed on 30.01.2003 and the said Judgment has not been made available at the time of conclusion of the Domestic Enquiry or at the time of the findings being rendered by the Domestic Enquiry Officer on 25.6.2000 or even as on the date of order of dismissal passed by the petitioner/Bank on 27.07.2001.
16. The pith and substance of the stand taken by the petitioner/Bank is that the order passed by the first respondent/Appellate Authority dated 27.6.2005 is a perverse one in the eye of law and to promote substantial cause of justice, this Court has to set aside the same to prevent an aberration of justice by means of allowing the present writ petition.
17. Apart from the above, the core contention projected by the learned counsel for the petitioner/Bank is that the first respondent/Appellate Authority has come to an incorrect conclusion that the second respondent/Watchman has no mala fide intention by producing the bogus certificate, which is quite contra to the evidence available in the Domestic Enquiry etc.
18. The learned counsel for the petitioner submits that the issuance of second Show Cause Notice to the second respondent/Watchman is not a must in the eye of law and therefore, the issuance of second Show Cause Notice is not necessary to the case. However, by the amendment of Article 311(2) of the Constitution of India, by virtue of 42nd Amendment, the right to get a copy of tentative decision is no longer available as per decision in Union of India Vs. Tulsi Ram Patel reported in 1985 (2) SCR at page 576. Thus, after amendment an employee has lost the right to know before hand the mind of the disciplinary authority as it is no longer required to communicate his decision to the delinquent. There is no denial of natural justice as law clearly provides for withdrawal of second opportunity. In this connection, he relies on the decision in Union of India and Others Vs. Mohd. Ramzan Khan reported in (1991) 1 SCC page 588.
19. It is to be noted that acquittal by the criminal court in C.C. No. 219 of 2000 in respect of the second respondent/Watchman cannot have a bearing in regard to the findings of the domestic enquiry wherein the charges levelled against the second respondent /Watchman have been held to be proved. In a criminal case, the prosecution has to prove its case beyond all reasonable doubt. However, in a domestic enquiry proceedings, the findings of the enquiry officer must be based on preponderance of probability. Therefore, the purview of criminal jurisdiction is totally different than that of the proceedings in regard to the conduct of domestic enquiry proceedings.
20. This Court points out that in the decision in Management Salem Steel Plant Vs. 1. Presiding Officer, Labour Court, Salem, 2. Sri Vajravelu reported in 2005(LLR) 263 Madras, this Court has held that 'Making a false claim for medical reimbursement by a workman will be a serious misconduct to justify his dismissal'.
21. This Court worth recalls the decision in Board of Directors, Sri Visakha Grameea Bank, Srikakulam, and others Vs. Upadrista Ramanarasinga Rao reported in 2003(1) L.L.N. 980(A.P), wherein it is held that the dismissal of an employee who created fictitious documents will be justified.
22. In the decision of the Hon'ble Supreme Court in Indian Oil Corporation Ltd., and another, Appellants Vs. Ashok Kumar Arora reproted in AIR 1997 Supreme Court 1030 it is held that 'dismissal of an employee for misconduct in presenting false medical bills will be justified'.
23. It is to be noted that imposition of punishment is primarily within the domain of disciplinary authority and the gravity of misconduct must be measured in terms of which nature while imposing punishment, as per the decision in General Manager, Appellate Authority, Bank of India and Another Vs. Mohd. Nizamuddin reported in (2006) 7 Supreme Court Cases 410.
24. As far as the present case is concerned, the second respondent/ Watchman has produced false mark sheet as if he obtained 37 marks in Mathematics and 38 marks in Social Studies in S.S.L.C. examinations held during the year 1993. Resultantly, it created an impression that he passed in all subjects and further represented to the petitioner/Bank to make necessary entries in his service records that he has passed 10 th standard examination. Moreover, the second respondent/Watchman has attended the co-operative training on the strength of his pass in 10th standard with a help of false or bogus certificate thereby cheated the Training Institute for getting promotion as clerk. He has manipulated the false certificate as pass in S.S.L.C examination and obtained co-operative training thereby cheating the petitioner/Bank and the Government Department etc.
25. On going through the findings of the domestic enquiry officer, this Court is of the considered view that the enquiry conducted against the second respondent/ Watchman has been a fair and reasonable one and that the second respondent/Watchman has been provided with an adequate opportunity to take part in the Domestic Enquiry proceedings. In short, the Domestic Enquiry Officer, on an appreciation of available oral and documentary evidence on record, has come to the consequent conclusion that the charges levelled against the second respondent/Watchman have been held to be proved against him.
26. Exs.M5 to M7 documents were marked in the domestic enquiry pertained to S.S.L.C. examination mark sheet produced by the second respondent/Watchman. Ex.M8 is the letter/application dated 19.3.1997 submitted by the second respondent/Watchman to the petitioner/Bank praying for promotion. Ex.M.9 is the copy of the certificate in respect of the second respondent/Watchman pertaining for passing Co-operative training. Ex.M.12 is the letter from the Department. Ex.M.11 is the communication dated 29.1.1999 issued by the Director of Government Examinations, Chennai -6 addressed to the petitioner/Bank informing that the second respondent/Watchman S.S.L.C. mark sheet is the bogus one. Ex.M.12 is yet another communication from the Director of Government examinations confirming the earlier communication that S.S.L.C. mark sheet for 1993 is not true one. Ex.M.13 is the complaint lodged by the Director of Government Examinations to the Inspector of Police, Crime Branch, Ramnad as against the second respondent Ex.M.14 is the Charge Memo issued to the second respondent.
27. In the instant case, one cannot brush aside an important fact that the second respondent/delinquent has not chosen to examine himself as a witness. However, he has satisfied that his explanations dated 2.3.2000 and 2.6.2000 may be taken as part and parcel of his evidence in the case.
28. Looking at from any angle and on going through the Domestic Enquiry findings rendered by the Domestic Enquiry Officer dated 25.06.2000 and also after going through the order passed by the first respondent/Appellate Authority dated 27.06.2005, this Court is of the considered view that the first respondent/Appellate Authority has simply brushed aside the findings of the Domestic Enquiry Officer, dated 25.6.2000, in cavalier fashion and by way of non application of mind and further he has come to an erroneous and perverse conclusion that the second respondent(Watchman) has no mala fide intention to deceive the petitioner/Bank etc, which finding is totally not cemented on the facts and circumstances of the present case which float on the surface.
29. Moreover, the first respondent/Appellate Authority has gone to the extent of mentioning in his impugned order dated 27.6.2005 that the petitioner/Bank has not mentioned in the enquiry report under what Provisions or Sections of the bank's bye-law the second respondent/Watchman's act constituted a serious misconduct leading to capital punishment of dismissal and further if it is deemed that it is a criminal breech of trust due to the decision of criminal court acquitting the appellant, it will not stand under that clause.
30. It is to be borne in mind that if an enquiry has been conducted in a reasonable and fair manner and if the Domestic Enquiry Officer's findings are not perverse and per contra, if it is based on proper evidence and on available materials on record, then it is not open to the first respondent/ Appellate Authority to set aside the order of dismissal passed by the petitioner/Bank in respect of the second respondent/Watchman in a routine and that too, in a casual and whimsical manner.
31. Suffice it, this Court to point out that the charges levelled against the second respondent/Watchman have been proved against the second respondent/Watchman by the petitioner/Bank in a Domestic Enquiry conducted by it. In fact, the Domestic Enquiry officer has rendered his findings dated 25.6.2000 holding that the second respondent/Watchman guilty of all the charges leveled against him. Therefore, to take a contrary view to the Domestic Enquiry Officer's findings dated 25.6.2000, the first respondent /Appellate Authority in setting aside the order of dismissal by means of an order dated 27.6.2005 in T.N.S.E. Appeal No. 1 of 2004, is certainly not a legal and valid and tenable one in the eye of law and in short, the conclusion arrived at by the first respondent/Appellate Authority is not based on sound principles of law and it is not on legal plane. Viewed in that perspective, this Court is left with no option but to interfere with the impugned order passed by the first Appellate Authority on 27.6.2005 and to prevent aberration of justice, this Court sets aside the impugned order passed by the first respondent/Appellate Authority dated 27.6.2005 and allows the Writ Petition filed by the petitioner/Bank. Resultantly, the punishment of dismissal ordered by the petitioner/Bank dated 27.6.2001 in respect of the second respondent/ Watchman is restored by this Court.
32. In the result, the Writ Petition is allowed leaving the parties to bear their own costs. The order passed by the first respondent is set aside by this Court for the reasons assigned by this Court in this Writ Petition. Consequently, connected M.P. is closed.
ses To, The Appellate Authority Under Sec 41 of Tamilnadu Shops and Establishments Act, (Deputy Commissioner of Labour), Sundaram Theatre Road, K.K. Nagar, Madurai - 625 020.