Madras High Court
P. Arumugam vs The Management Of Viralimalai ... on 11 December, 2000
Equivalent citations: (2001)IILLJ1717MAD
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER
1. The petitioner/employee, having been dismissed from service by the first respondent/Bank Management by an order dated 17.4.1987, raised an industrial dispute in I.D.No.167 of 1990 before the Labour Court, Madurai and the same was transferred as I.D.No.81 of 1992 of the Labour Court Thiruchirapalli viz., the second respondent herein, who by an award dated 10.3.1993 confirmed the order of dismissal dated 17.4.1987. Hence, the petitioner seeks a writ of certiorarified mandamus under the following facts and circumstances of the case.
2. A disciplinary action was initiated against the petitioner/employee by the first respondent/management by a memo dated 7.4.1986 for alleged charges of misappropriation of funds of the first respondent/management to the tune of Rs.100 on 8.1.1982 and a further sum of Rs.517 on 6.12.1986 towards his travelling allowance and encashment of leave to his credit, respectively.
3. It is further alleged that when the petitioner was under interim suspension, he had abused his co-employees viz., Thiru. Lakshmanan and Thiru.Rajan and assaulted them with chappal on 21.8.1986, which warranted the issue of a second charge memo dated 9.2.1987 to the petitioner.
4. The petitioner submitted his explanations dated 3.11.1986 and 27.3.1987 to the charge memos dated 7.4.1986 and 9.2.1987 respectively. Not satisfied with his explanations, a domestic enquiry was ordered, given a hearing and a fair and reasonable opportunity. Finding ultimately that the charges were held proved, he was dismissed from service by an order dated 17.11.1987.
5. Mr. L.N. Prakasam, learned counsel for the petitioner challenges the impugned order of dismissal dated 17.11.1987 on the following grounds;
(i) the first respondent/management was not regular in paying the subsistence allowance and therefore, the petitioner was deprived of reasonable opportunity to defend himself. Consequently, the impugned order of dismissal is bad in law. In this regard, Mr. L.N. Prakasam, learned counsel for the petitioner relies upon the following decisions;
(a) Fakirbhai Fulabhai Solanki v. Presiding Officer, ; (b) Capt.M.Paal Anthony v. Bharat Gold Mines Lid. and another, 1999 (3) L.W. 351
(ii) Mr. L.N. Prakasam, learned counsel for the petitioner placing reliance on (a) Rama Kant Mistra v. State of U.P. 1982 (1) LLJ 472 and (b) Aditya Mills Ltd. v. Ram Dayal and others, 1974 L.I.C. 25. contends that the impugned order is liable to be quashed on the ground of victimisation, as the first respondent/management failed to take into consideration the long and uninterrupted service rendered by the petitioner, prior to the alleged dates of misconduct, and
(iii) In any event, the first respondent/management ought to have taken into consideration the order dated 24.6.1987 made in Criminal Appeal No.35 of 1987 on the file of the learned Assistant Sessions Judge, Pudukottai, wherein the petitioner was acquitted in the criminal case with regard to the charges registered against him, on the same incident said to have taken place on 21.8.1986.
6.1. Per contra, Ms.Narmadha Sampath, learned counsel for the first respondent/management, at the outset, pointed out that the decision of the criminal court in Criminal Appeal No.35 of 1987 dated 24.6.1987 is not relevant, wherein the petitioner had not been acquitted on merits, but was acquitted on technical grounds holding that "the Chambers of the Special Officer in the first respondent/management could not be construed as a public place". It is further contended that, in any event, the criminal case is not with reference to the charge of the alleged misappropriation of funds of the bank referred to above, but for having assaulted the Special Officer, which incident said to have taken place on 21.8.1986. It is argued that the assaulting a co- worker is a serious misconduct warranting dismissal of the petitioner from service, as held in Basu Deba Das v. M.R.Bhope and another, 1993 (II) LLJ 1022.
6.2. That apart, it is contended that even though the petitioner was entitled for travelling allowance as well as encashment of leave to his credit, he is not entitled to unilateraly withdraw the same, without proper sanction by the Special Officer of the first respondent/management as per the bye-laws and in the absence of such proper sanction and disbursement of funds by the management to the petitioner, the unilateral withdrawals of a sum of Rs.100 on 8.1.1982 towards travelling allowance and Rs.517 on 6.12.1985 towards encashment of leave to his credit by the petitioner, from the funds of the first respondent/bank management, amounts to misappropriation of the same. Since the petitioner had admitted such withdrawals, the charges in that regard stand proved. Once misappropriation of funds stood proved, it is argued that showing sympathy to the petitioner is uncalled for, as held in Janatha Bazaar S.K.C.C.W.S.Ltd. v. Secretary. S.N. Sangha and others, 2000(II) LLJ 1395 6.3. The alleged non-payment of subsistence allowance is strongly disputed by the learned counsel for the first respondent/bank management on the grounds that such contention was not raised before the Labour Court and therefore, the same cannot be permitted to be raised for the first time before this Court and that in any event, the allegation is false and incorrect, as the petitioner was paid the entire subsistence allowance and the same was duly acknowledged by him under stamped receipts.
6.4. with regard to the alleged victimisation that the first respondent/bank management had not considered the long and uninterrupted service of the petitioner, Ms.Narmadha Sampath, learned counsel for the first respondent/bank management, contends that the length of service of a workman is not relevant in the imposition of punishment for a proved misconduct, as held in Sri Gopalakrishna Mills Pvt. Ltd. v. Labour Court 1980 (I) LLJ 425.
7.1. I have given careful consideration to the submissions of both sides.
7.2. A careful perusal of the order dated 24.6.1987 in Criminal Appeal No.35 of 1987 makes it clear that the petitioner was not acquitted of the charges levelled against him before the Criminal Court on the alleged incident said to have taken place on 21.8.86. That apart, as rightly pointed out by the learned counsel for the first respondent/bank management, though the trial court convicted the petitioner, on appeal, the learned Assistant Sessions Judge, Pudukottai, acquitted the petitioner on a technical ground that "the Chambers of the Special Officer of the first respondent/bank management could not be construed as a public place". Therefore, in my considered opinion, the order dated 24.6.1987 in Criminal Appeal No.35 of 1987 is directly relevant to the charges of misappropriation of funds of the first respondent/bank management at all, as to which the impugned disciplinary action was initiated against the petitioner.
7.3. Even though the refusal of payment of subsistence allowance would certainly result in denial of opportunity to the petitioner to defend himself, as such denial amounts to a violation of, principles of natural justice, as held in Faldrbhai Fulabhai Solank v. Presiding Officer, as such non-payment of subsistence allowance could be likened to slow- poisoning the employee, and would gradually starve himself ;o death, as held in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another, 1993 (3) LW 351 it is, never the case of the petitioner that due to non-payment of subsistence allowance, he could not participate in the enquiry at all. On the other hand, in the records produced by the first respondent/bank management, it is . stated that the petitioner had been paid the subsistence allowance and the petitioner himself had acknowledged for having received the same under proper stamped receipts and therefore. I do not find any substance in the grievance of the petitioner in this regard.
7.4. It is true, victimisation is a strong ground on which the order of dismissal could be set aside where the workman concerned is innocent and yet he is being punished for no fault on his part, as he has in some way displeased his employer on the one hand and on the other hand, where the punishment imposed on such innocent employee in a manner shockingly disproportionate to the misconduct alleged against him, as held in Aditya Mitts Ltd. v. Ram Dayal, 1974 LIC 25, of course, ignoring the unblemished service rendered by the worker prior to the date of the alleged misconduct, as held in Rama Kant Misra v. State of U.P. 1982 (I) LLJ 472. But in the instant case, even though the petitioner himself is entitled for travelling allowance and to encash the leave to his credit, he is not authorised to do so without proper sanction of the Special Officer of the first respondent/bank management as per the bye-laws. In the absence of such proper sanction for such withdrawals viz., Rs.100 towards travelling allowance and Rs.517 for encashing the leave to his credit from the funds of the first respondent/management, in my considered opinion, the impugned withdrawal of the funds of the first respondent/bank management would certainly amount to misappropriation of funds, particularly when the petitioner is working in a Co-operative Bank where he is dealing with the funds of the public, who have entrusted their money with the bank.
7.5. It is a settled position in law, as held by the Apex Court in U.P.S.R.T. Corpn. v. Subhash Chandra Sharha, 2000 (2) L.L.N. 402, even a threat to assault a co-employee amounts to a serious misconduct and the punishment of removal could not therefore be construed as shockingly disproportionate to the charges held proved. The Bombay High Court in Babu Deba Das v. M.R,Bhope and another, 1993 (II) LLJ 1022 held that an act of assaulting the co-worker is a serious misconduct warranting dismissal from service.
7.6. If that be so, once misappropriation is proved and the assault of co-employee is also found proved by the Enquiry Officer in the instant case, it may not be proper for this Court to interfere with the quantum of punishment, merely on the ground of the length of service put in by the petitioner in the first respondent/bank management, as held in Sri Gopalakrishna Mills Pvt. Ltd. v. Labour Court, 1980 (I) LLJ 425. as mere length of service of the petitioner would not be relevant in imposing punishment for a proved misconduct, nor the length of service of an employee could itself.be taken as a license to commit such misconduct. Under such circumstances, showing sympathy to the petitioner is not called for by this Court, as held in Janaiha Bazaar S.K.C.C.W.S.Ltd. v. Secy. S.N.Sangha, 2000 (II) LLJ 1395.
8. In the result, finding no merits in the writ petition, the same is dismissed. No costs.