Madras High Court
Thirumangalam Co. Operative Urban Bank ... vs Assistant Commissioner Of Labour, ... on 6 January, 1992
Equivalent citations: (1992)IILLJ886MAD
ORDER
1. The second respondent was employed as a night watchman in the petitioner bank. On February 28, 1981, he was on duty as night watchman. The second respondent along with one Ramadoss had consumed liquor and because the second respondent was in a drunken state, he was dropped by the said Ramadoss within the premises of the Bank and the gate of the bank premises was locked. It is stated that the second respondent was in a state of undress and had created an unruly scene. On account of his behaviour a large crowd had gathered outside the Bank gate and they witnessed the conduct of the second respondent.
2. On April 15, 1981, charge memo was issued to the second respondent. He submitted his explanation on April 17, 1981. A domestic enquiry was conducted. As many as seven witnesses were examined in the domestic enquiry. The Enquiry Officer found the second respondent guilty of the charges and on a careful consideration of the report of the Enquiry Officer, the provisional conclusion was arrived at proposing to dismiss the second respondent. A second show cause notice was issued together with a copy of the findings of the Enquiry Officer. The second respondent submitted his explanation on April 15, 1982. After considering the explanation, by an order dated April 20, 1982, the second respondent was dismissed from service.
3. Against the said order, the second respondent preferred an appeal to the first respondent under S. 41 of the Tamil Nadu Shops and Establishments Act. Before the first respondent, Exs. A.1 to A.27 were marked on the side of the second respondent and Exs. M.1 to M.16 were marked on the side of the petitioner Bank. The first respondent had passed an order on May 15, 1983 holding that the order of dismissal was liable to be set aside and accordingly, he set aside the order of dismissal. The petitioner Bank has filed this writ petition challenging the order of the first respondent dated May 15, 1983.
4. Learned counsel for the petitioner has taken me through the order of the first respondent and argues that the first respondent has erred in law in reversing the order of dismissal. The argument is that the first respondent has treated the case more as a prosecution under the Criminal Procedure Code. He also sites S. U. S. Davey Sons v. Commissioner for Workman's Compensation (1960-I-LLJ-485) for the proposition that the first respondent has no jurisdiction to brush aside the valid findings of the Enquiry Officer in the domestic enquiry.
5. On the other hand, learned counsel for the second respondent argues that the charge memo itself does not contain the source of information for framing the charges, and that past records had not been taken into account while imposing punishment of dismissal. He cites Remington Rand of India v. R. Jambulingam (1975-I-LLJ-450).
6. Having given my anxious consideration to the rival submissions, I am inclined to think that the order of the first respondent is vitiated by errors of law apparent on the face of the records. The first and foremost mistake committed by the first respondent is that he had not kept in mind the charges framed against the second respondent. The charges roughly translated were as follows :
"That on February 28, 1981 at about 5.30 p.m. the second respondent being the night Watchman had consumed liquor and had acted contrary to the rules.
(2) That the second respondent had during duty hours behaved in an unlawful manner forgetting his duties.
(3) By consuming liquor and being in a state of undress and by using indecent words, the second respondent had lowered the reputation of the Bank in the eyes of the public".
Ignoring the above charges, the first respondent had proceeded to consider only the question whether the second respondent had consumed liquor or not. Even the finding of the first respondent on this aspect is according to (me) perverse. In a domestic enquiry, what is necessary is a preponderance of probabilities for holding the charges proved against delinquent workman. It is not necessary that the evidence should be as fool-proof as in the case of a criminal trial. In this case, the first respondent observes that merely because the second respondent was found in a state of undress and was talking indecently, it cannot be presumed that he had consumed liquor. The first respondent also says that the charge of violation of the prohibition laws can be established only by the concerned police authorities. The first respondent also observes that the charges had not been established beyond any reasonable doubt. He has proceeded to pick holes in the evidence of the management witnesses for holding that the charge of consumption of liquor had not been established. It is not necessary for me to go through the entire discussion of the evidence as made by the first respondent. Sufficient to say that the first respondent has referred to minor discrepancies relating to the time of occurrence and the necessity of certain witnesses to have gone to the Bank premises at the time when the incident took place. The stock reason for disbelieving the witnesses seems to be that the witnesses did not report the matter to the police authorities. This is hardly a reason for rejecting the cogent and clear evidence of the management witnesses. Two independent witnesses had also been examined to prove the charges, but the first respondent observes that in spite of the fact that a crowd had gathered outside the bank premises, no independent witnesses had been examined. I am, therefore, of the view that the reassessment of evidence made by the first respondent was clearly perverse and contrary to what a reasonable person will say about the deposition of the witnesses. While I agree with the learned counsel for the second respondent that a reassessment of the evidence is certainly permissible in an appeal under S. 41 of the Act, I am clearly of the opinion that the reassessment must be on a proper basis and cannot be whimsical or arbitrary. In this connection as rightly pointed out by learned counsel for the petitioner in S. U. S. Davey Sons v. Commissioner for Workmen's Compensation (supra) this Court has held as follows : (p. 488) "Of course, as the appellate authority it should take into consideration the fact that the management had jurisdiction to hold an enquiry and to reach its conclusions; and those conclusions of the management with its right to terminate the services of an employee for misconduct proved to its satisfaction, should be treated with respect by the appellate authority, and should not be lightly brushed aside."
In this case, the first respondent has not even said that the appreciation of evidence by the Enquiry Officer was in any way vitiated or irregular. I, therefore, hold that the order of the first respondent dated May 15, 1983 is liable to be set aside, even on the finding that the second respondent had not consumed liquor on the date of occurrence.
7. There is one other serious irregularity in the order of the first respondent to which I have already made reference. A perusal of the charges would clearly show that the consumption of liquor was not the only charge against the second respondent. His behaviour in the bank premises attracting the attention of the public was also the subject matter of the charges. Inasmuch as the first respondent says that the act of the 2nd respondent in vomitting in the bank premises, in being in a state of undress and in using indecent words would not amount to consumption of liquor, the conclusion is irresistible that the first respondent did find the second respondent guilty of the above acts of misconducts. In my opinion, these acts of misconducts would by themselves be sufficient to hold the second respondent guilty of the charges.
8. Coming now to the last submission of the learned counsel for the second respondent that the past records had not been taken into account while imposing the punishment of dismissal, I am inclined to think that this complaint is also without any basis. Learned counsel for the second respondent relies on the admission made by the Secretary of the Bank that the second respondent was not guilty of any such charge on any previous occasion. Therefore, he argues that the punishment of dismissal is disproportionate to the charge. I do not agree. Where the charges framed against the second respondent themselves are serious enough, it is not certainly necessary for the management to rely on the past records. In a charge like drunken behaviour lowering the reputation of the bank, the fact that the workman had a past good record would not minimise the gravity of the offence. On the proved charges, I have no doubt in my mind that the petitioner bank was justified in imposing the punishment of dismissal. Every authority in this country should uphold discipline and where discipline is treated lightly by the employees, a deterrant punishment is called for. There is no other way of improving discipline in the industrial field, like any other field.
9. For what I have stated above, the impugned order of the first respondent dated May 15, 1983 is quashed. The writ petition is allowed. There will be no order as to costs.