K. Mohan vs State Bank of India

N. Paul Vasanthakumar, J.—This writ appeal is filed against the order made in W.P. No. 30252 of 2008 dated 16.4.2010 wherein the appellant has challenged the Award made in I.D. No. 56 of 2002 dated 22.1.2004 on the file of Central Government Industrial Tribunal-cum-Labour Court, Chennai.

Heard Mr. R. Arumugam, learned Counsel appearing for the appellant and Mr. S. Kanniah, learned Counsel appearing for the 1st respondent.

The Labour Court awarded reinstatement of the appellant with continuity of service, back wages and also other attendant benefits. The 1st respondent-Bank having aggrieved, filed the writ petition in W.P. No. 30252 of 2004, which was allowed by the learned Single Judge holding that Industrial Tribunal should not have interfered with the quantum of punishment. The grounds on which the Industrial Tribunal interfered are that the disciplinary authority is not the competent authority to impose the punishment and principles of natural justice was violated, while imposing the punishment by the disciplinary authority and the back wages and retirement benefits were ordered to be paid. The learned Single Judge set aside the Award by holding that those findings are unsustainable and without taking into account whether the appellant was gainfully employed in all those days.

It is seen from the records that the appellant was proceeded with in respect of five charges and the Enquiry Officer gave a finding holding that Charge Nos. 1 to 4 were not proved and Charge No. 5 as partly proved. As the Charge Nos. 1 to 4 were not proved, we need not repeat the said charges and we can only refer Charge No. 5, which was partly proved, according to the Enquiry Officer. Charge No. 5 reads as follows:--

"On 3.10.1994, you caused a debit of Rs. 30,000/- in the S.B. Account No. C.8261 of Mrs. N. Rajalakshmi by preparing a letter forging the signature of the account holder and received a Bankers Cheque for Rs. 30,000/- in the name of one Shri M. Kumar. You received the payment against the Bankers Cheque from Smt. Shanthi, Payment Cashier, stating that Shri M.Kumar was your friend. You received the money from her and misappropriated the same to cover up your fraudulent act, you destroyed the letter prepared by you as also the entire bunch of vouchers relating to current account C&I or 3.10.1994."

The Enquiry Officer held that only part of Charge No. 5 as proved. Findings are recorded as follows:--

"Conclusion

Charge (i) - Not proved

Charge (ii) - Not proved

Charge (iii) - Not proved

Charge (iv) - Not proved

Charge (v) - Partly proved"

The disciplinary authority differed with the finding rendered by the Enquiry Officer with regard to Charge No. 5 and held that Charge No. 5 was fully proved and issued a show-cause notice on 8.12.1998 stating as to why punishment of discharge in terms of paragraph 521--5 (b) of the Sastry Award, as contained in paragraph 21(iv)(b) of the Bipartite Settlement dated 14.2.1995 shall not be imposed and the period of suspension can be treated as one of suspension for all intents and purposes.

The grievance of the appellant is that while differing with the view of the Enquiry Officer regarding Charge No. 5, no descending view was communicated to the appellant and straightaway finding of guilt for the entire Charge No. 5 was recorded and show-cause notice regarding proposing punishment alone was issued, which is in violation of the procedure established by law and also is in violation of principles of natural justice in terms of the decisions of the Hon''ble Supreme Court.

The appellant submitted reply on 22.1.1999 to the show-cause notice for the proposed penalty, however, the same was rejected and the appeal preferred was also negatived and thereafter, the appellant raised I.D. No. 56 of 2002 and by an order dated 22.1.2004, the Central Government Industrial Tribunal which gave a finding that the disciplinary authority has failed to follow the mandatory procedure while differing with the finding recorded by the Enquiry Officer in respect of Charge No. 5 and also gave a finding that the punishment was also disproportionate, as the appellant has served for over 23 years without any blemish. The Labour Court, ultimately, allowed the I.D. and ordered reinstatement in service with continuity of service, back wages and also other attendant benefits.

The learned Single Judge, while reversing the order of the Labour Court, has held that the prejudice caused to the appellant was not established for not communicating the dissenting view and the Labour Court was not justified in interfering with the punishment recorded by the disciplinary authority which was confirmed by the appellate authority, as it is the prerogative of the disciplinary authority to impose appropriate punishment.

The contention of the appellant before this Court is that the findings of the Enquiry Officer being part of Charge No. 5 as proved, the disciplinary authority was not justified in recording a finding of guilt in respect of Charge No. 5 in toto and imposing punishment of discharge from service, which has the effect of termination and at this age, as the appellant cannot go for any other employment.

The learned Counsel appearing for the respondent-Bank, on the other hand, submitted that though there is a procedural violation, the prejudice caused to the appellant has not been established to interfere with the punishment recorded. Therefore, the learned Single Judge was right in setting aside the Award made in I.D. No. 56 of 2002.

We have considered the rival submissions made by the respective Counsels and also perused the materials available on record.

On a perusal of the Enquiry Officer''s report in respect of Charge No. 5, it is evident that the appellant was not in a hurry and the appellant was made entry in item No. 137 in a total of 180 entries that day. Therefore, it cannot be conclusively proved that the papers were destroyed by the appellant alone and at best, it could only be the case of a person wanting to extend good customer service and ultimately fallen a victim to circumstances, which was also amplified by the fact that the complaint was given by a lady clerk and not born out of the facts.

Thus, the Enquiry Officer gave a finding in favour of the appellant and if the said finding, which is positive in nature, is to be over-turned by the disciplinary authority, the differing view is bound to be communicated and non-communication of the differing view before holding that Charge No. 5 is fully proved, is in violation of principles of natural justice, as held by the Hon''ble Supreme Court in the decision Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, . In the said decision, in paragraphs 11 and 19, the Hon''ble Supreme Court held thus:--

"11...........The controversy in the present case, however, relates to the case where the disciplinary authority disagrees with the findings of the inquiring authority and acts under Regulation 7(2). The said sub-regulation does not specifically state that when the disciplinary authority disagrees with the findings of the inquiring authority, and is required to record its own reason for such disagreement and also to record its own finding on such charge, it is required to give a hearing to the delinquent officer.

19.........the principles of natural justice have to be read into Regulation 7(2).

As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

Similar is the view taken by the Hon''ble Supreme Court in the decisions Central Bank of India Vs. C. Bernard, ; Yoginath D. Bagde Vs. State of Maharashtra and Another, (Lav Nigam v. Chairman & MD. ITI Limited and another), 2007 (112) FLR 1077 (SC) Coal India Ltd. and Others Vs. Saroj Kumar Mishra, and S.P. Malhotra Vs. Punjab National Bank and Others, . Hence, the action of the disciplinary authority in straightaway recording the finding of guilt in respect of Charge No. 5, cannot be sustained. The said aspect has not been considered by the appellate authority and rightly considered by the Labour Court in I.D. No. 56 of 2002.

The learned Counsel appearing for the appellant submitted that for the finding recorded in respect of Charge No. 5, as partly proved by the Enquiry Officer, though some punishment may be awarded, the Labour Court exercised its discretion under section 11A of the Industrial Disputes Act regarding the proportionality of punishment. The appellant also filed an affidavit of undertaking dated 21.4.2014 stating that he will forego the salary for the period from the date of suspension i.e. 15.10.1994 to the date of discharge i.e. 5.2.1999 and the same can be treated as the punishment since denial of salary for the period of about 5 years will meets the ends of justice.

The appellant is now aged 65 years and therefore, no useful purpose would be served to remit the matter to proceed from the stage where the proceedings got vitiated. In view of the above factual aspects, we are of the view that the order of discharge passed by the disciplinary authority, confirmed by the appellate authority, which was also upheld by the learned Single Judge is liable to be set aside and accordingly, the said orders are set aside and the Award of the Labour Court made in I.D. No. 56 of 2002 dated 22.1.2004 is restored and modified to the effect that the appellant is deemed to be reinstated in service from 6.2.1999 with all service benefits, including back wages as the 1st respondent has not proved that the appellant was otherwise employed after 6.2.1999. For the earlier period that was from 15.10.1994 to 5.2.1999, the said period should be counted only for other benefits, other than the back wages. The writ appeal is allowed. The 1st respondent-Bank is directed to settle the benefits payable to the appellant as ordered within a period of three months from the date of receipt of a copy of this order. No costs.