AI Structured Summary
Not yet generated for this judgment
Judgment
D. Hariparanthaman, J.—The petitioner was initially appointed as Messenger in State Bank of India, Mudukulathur Branch on 20.1.1982.
Subsequently, he was promoted as Clerk in the year 1992. While he was serving in Ramanathapuram Branch, a charge sheet dated 30.8.2004
was issued against him. In the charge sheet, it was alleged that the following irregularities were committed by him:
i. You had utilised the services of R. Palani, Messenger, for preparing the challan, in order to create an impression that the voucher was prepared
by the Messenger wrongly/inadvertently.
ii. You did not sign the credit challan even after the request of Shri R. Palani, Messenger, deliberately with mala fide intention.
iii. The account number mentioned in the draft was 05/6101. But you had knowingly arranged to credit the proceeds of the draft belonging to a
customer to your Current Account No. 0109 00 9501500 with mala fide intention.
iv. Even though you were aware of the fact the account No. of the beneficiary was mentioned in the draft as 05/6101, you have failed to initiate
appropriate steps to refer the matter to the Chief Manager or Manager (PB) in this regard v. Although the instrument in question was received by
you on 27.1.2004 and adequate time was available at your disposal to verify whether the amount of draft REALLY PERTAINED TO YOU, you
had failed to initiate proper steps to verify the beneficiary''s correct account number in order to afford credit of the proceeds of the draft.
vi. You have withdrawn the proceeds of the said draft credited to your S.B. Account No. 0119 00 95015 in two installments of Rs. 5000/- each
on 29.1.2004 and 7.2.2004.
Thus you have unauthorisedly utilised the customer''s money for a period of more than 2 months with malafide and fraudulent intention.
vii. In order to suppress your fraudulent acts, you have initiated steps with the courier agency to solve the problem without the knowledge of the
Chief Manager or Manager (PB) of the Branch. In this connection you have paid the defrauded amount to the courier service agent, Shri Shibu, on
28.4.2004 by means of your Current Account Cheque No. 008341 dated 28.4.2004.
The crux of the allegation in the charge sheet is that he misappropriated an amount of Rs. 10,000/- belonging to a customer for a period of more
than 2 months for his personal benefit.
An enquiry was conducted. Pursuant to the enquiry, the petitioner was dismissed from service by the disciplinary authority by an order dated
15.12.2005. The appeal preferred by the petitioner to the appellate authority was rejected by the appellate authority by an order dated 30.3.2006.
The appellate authority modified the punishment from ''dismissal from service'' into ''removal from service''.
Thereafter, the petitioner took the matter of his non-employment before the Conciliation Machinery under the Industrial Disputes Act. The
Conciliation Officer gave a failure report u/s 12(4) of the Industrial Disputes Act. The Government of India, Ministry of Labour passed an order
dated 18.4.2007 u/s 10 of the Industrial Disputes Act referring the Industrial Dispute regarding the non-employment of the petitioner before the
first respondent Tribunal.
The first respondent Tribunal took on file the industrial dispute as I.D. No. 17 of 2007.
The petitioner filed a detailed claim statement. He stated that on 27.1.2004, while he was busy in his seat work as single window operator, a
cover addressed to ""S. Chandrasekar, State Bank of India, Ramanathapuram Branch"" was delivered to him by a courier agent. The courier
contained a foreign draft for Rs. 10,000/- favoring S. Chandrasekar without any other enclosure, i.e., there was no covering letter along with the
draft. The petitioner was the only person available at State Bank of India, Ramanathapuram Branch under the name of S. Chandrasekar at the
material point of time.
The petitioner further stated that since he received a foreign remittance on an earlier occasion from his relative Kumaresan, who also assured the
petitioner through his letters on previous dates i.e., 19.12.2002 and 5.1.2003 to send further remittance, the petitioner presumed that the
remittance was intended only for him. Since he was busy at the single window counter handling both receipts and payments, he requested the sub
staff R. Palani who was standing nearby to credit the same into his account. Thiru R. Palani, sub staff, prepared the voucher and arranged to credit
the same into his account.
The petitioner further stated that he learnt from Kumaresan after some time that no such remittance was sent by him. Immediately, he contacted
the courier agent and requested him to verify and inform whether the cover delivered to him was really intended for him. The courier agent, after
verification of the records, informed him that the cover was wrongly addressed to him. Since he received such information, he informed the same to
the Assistant General Manager, State Bank of India, Ramanathapuram Branch by means of written statement and he also simultaneously arranged
to remit back Rs. 10,000/- to the correct beneficiary through courier agent.
The aforesaid unintentional lapse was unfortunately misconstrued as an act of mala fide on the part of the petitioner and the disciplinary
proceedings were initiated against him, culminating in removal from service.
The petitioner pleaded that the enquiry was not conducted in a fair manner and the same was conducted in violation of principles of natural
justice and therefore the enquiry is liable to be set aside.
The respondent Bank filed a reply statement in I.D. No. 17 of 2007. The Bank reproduced the charge sheet and the seven irregularities
mentioned therein. When the petitioner denied the charges, enquiry was conducted. According to them, the enquiry was conducted in a fair manner
and the petitioner was given all opportunities. After the conclusion of the enquiry, an enquiry report was sent to the petitioner seeking his comments
on the finding.
The petitioner sent his comments on the findings of the enquiry report, vide his letter dated 29.8.2005. It is stated that after considering the
entire material papers, the disciplinary authority proposed the punishment of dismissal without notice and offered personal hearing. The personal
hearing was held on 3.12.2005. Thereafter, the disciplinary authority passed the dismissal order by its order dated 15.12.2005. The petitioner filed
an appeal before the appellate authority.
The appellate authority considering the materials placed before him modified the punishment of dismissal as removal from service by an order
dated 30.3.2006. According to them, the question whether or not the petitioner had put in 20 years of unblemished service is irrelevant when the
misconduct alleged and proved was a major misconduct and grave in nature. The Bank pleaded to dismiss the Claim Petition and to answer the
reference in its favour.
The Tribunal decided the preliminary issue as to the validity of the domestic enquiry and passed an order dated 11.1.2008 holding that the
enquiry was not conducted in a fair manner.
Thereafter, on behalf of the bank management, the Bank Manager Mr. A. Muthukumar examined himself as M.W. 1 and marked 11
documents. Ex. M. 1 to Ex. M. 11 were marked. The rebuttal evidence was let in by the petitioner by examining Kumaresan as W.W. 1.
Thereafter, the petitioner himself was examined as W.W. 2. Thirteen Documents were marked as Ex. W. 1 to Ex. W. 13 on the side of the
petitioner.
After hearing both sides, the Tribunal passed the impugned award dated 26.6.2009 in I.D. No. 17 of 2007 dismissing the industrial dispute
and holding that the removal of the petitioner from service is legal and justified. This Writ Petition is filed challenging the aforesaid award.
Heard both sides.
When the Writ Petition is taken up for final disposal, the learned counsel for the bank has submitted that the reply statement filed in the
Industrial Dispute could be taken up as the counter affidavit.
As stated above, the enquiry conducted by the bank was set aside by the Tribunal by way of preliminary order dated 11.1.2008. Thereafter,
the bank let in evidence to prove the charge. On behalf of the bank, M.W. 1 was examined and Ex. M. 1 to Ex. M. 11 were marked. Rebuttal
evidence was let in by the writ petitioner by examining Thiru R.K. Kumaresan as W.W. 1. Thereafter, he himself was examined as W.W. 2.
Documents Ex. W. 1 to Ex. W. 13 were marked on his side.
The Tribunal proceeded in paragraph 11 of the award that the only question for consideration is whether there has been mala fide or fraudulent
intention on the part of the petitioner in crediting the amount sent in the name of S. Chandrasekar to his account. In the same paragraph, the
Tribunal came to the conclusion that the petitioner mis-credited the amount with the mala fide intention of misappropriating it and therefore he is
guilty of the charges levelled against him.
While rendering such a finding, the Tribunal failed to take into account that portion of evidence of M.W. 1, management witness, that was in
favour of the petitioner.
In the charge sheet itself, it is stated that the petitioner repaid the amount to the courier service agent Shri Shibu on 28.4.2004. Further more,
the same is also stated in the reply statement of the Bank filed before the Tribunal. It is stated in paragraph 5 of the reply statement of the Bank as
follows:
It is pertinent to mention that the petitioner initiated steps to settle the issue and settled the amount to the Courier agent without the knowledge of
the Bank and only subsequently he informed the facts to the bank.
Further, the petitioner specifically stated that on 27.1.2004, he was busy in his seat work as single window operator. This was not disputed by
the bank. It is also not in dispute that the cover addressed to ""S. Chandrasekar"", State Bank of India, Ramanathapuram Branch'' was delivered on
27.1.2004 as evidenced from Ex. M. 2. The draft in the name of ""S. Chandrasekar"" was inside the cover that was delivered by the courier agent.
The draft is Ex. M. 3. The challan was filled by Mr. Palani, the sub staff and Mr. Palani alone deposited the draft on behalf of the petitioner. Ex.
M. 4 Pay-in-slip voucher was passed on by one Munian, SBI Officer. The name of the petitioner also tallies with the name in whose favour the
draft was sent. Neither Mr. Palani nor Mr. Munian noticed that the draft was not meant for the petitioner.
It is also the case of the petitioner that there was no covering letter enclosed along with the draft. In the said circumstances, since he was busy
in his seat work as single window operator, he requested Palani, Sub Staff to fill up the challan and credit it to his account. Thiru Palani gave a
letter dated 21.9.2004 to the Assistant General Manager admitting that he only filled up the challan. The letter dated 21.9.2004 is marked as Ex.
W. 11. The aforesaid facts are not considered by the Tribunal. The aforesaid facts are not in dispute and they are borne out by Exhibits marked
during the deposition of the witness.
The petitioner came with a specific plea that W.W. 1 was employed in abroad. He produced the appointment order of W.W. 1 dated
18.10.2002 about his employment in abroad and it is marked as Ex. W. 6. The service certificate dated 5.5.2003 is marked as Ex. W. 7. He has
also marked the relevant pages of his passport as Ex. W. 8 to show that he was employed in abroad. W.W. 1 also deposed that the petitioner is
his uncle''s son. He also deposed that he sent Rs. 9,325.84 (420 US Dollars) and the same was received by the petitioner on 17.2.2003 through
the bank. He told him that he wanted to send Rs. 20000/- and therefore the balance would be sent shortly. W.W. 1 also stated that he contacted
the petitioner over phone during the last week of April 2004. At that time, the petitioner informed him that he received the amount of Rs. 10,000/-
on 27.1.2004 remitted by him. W.W. 1 further deposed that he told the petitioner that he did not send any further sum to him other than the
amount which was sent earlier on 17.2.2003. The letters written by W.W. 1 to the petitioner dated 19.12.2002 and 5.1.2003 about the remittance
were marked as Ex. W. 9 and Ex. W. 10. Virtually, the aforesaid deposition of W.W. 1 was not controverted in the cross-examination. But the
Tribunal failed to take into account the aforesaid facts.
On coming to know in the last week of April 2004 that the amount which the petitioner received on 27.1.2004, was not sent by W.W. 1, he
immediately contacted the courier office and found that the draft was sent to some other Chandrasekar. In this regard, Yojana Couriers Private
Limited wrote a letter dated 7.5.2005 to the enquiry officer, State Bank of India and the same was marked as Ex. W. 12. The entire contents of
the letter are extracted hereunder:
We came to understand that a departmental enquiry is being conducted against your employees Mr. S. Chandrasekar. We wish to advise you as
follows:
A cover addressed to Sri Chandrasekar, State Bank of India, Ramanathapuram Branch was delivered to your employee against his
acknowledgment. We could not confirm whether there was any enclosure along with the draft.
After some days S. Chandrasekar requested our employee Mr. Shibu to verify and inform him whether the contents of the cover i.e., the Draft
issued by Bahrain Financing Company was really intended to him.
After receiving this information, Mr. Shibu has verified with the records and informed Mr. Chandrasekar that the cover was wrongly addressed to
him. We also requested to refund the money of Rs. 10000/- (Rupee Ten Thousand) so as to enable us to issue a duplicate draft in favour of S.
Chandrasekar A/C No. 051/6101. He issued a cheque in favour of our employee Mr. Shibu.
We then instructed our employee to explore the possibility of remitting the cash in the said account. As it happened to be NRE a/c, remitting Indian
rupees directly into the account was not possible.
Mr. Chandrasekar asked our employee to meet the Manager to rectify the error, as there was a crowd around him.
After few days as instructed by Manager SBI, the Bahrain Financing Company sent a fax message mentioning the correct account number of
beneficiary. On 12.5.2004 we came to know that the amount was credited to the correct account num.
In this context, we believe that Mr. S. Chandrasekar your employee had not done any mistake intentionally. When he came to know that money
was not related to him, he contacted Mr. Shibu to verify and advise the correct position.
But, the Tribunal miserably failed to take into account the aforesaid letter Ex. W. 12.
This important piece of evidence was not referred to by the Tribunal. Further more, it is relevant that Bahrain Finance Company, Salem wrote
a letter dated 6.5.2004 to the Manager, State Bank of India, Ramanathapuram Branch complaining that they sent a draft favoring S. Chandrasekar
with Ramanathapuram Branch and the same was collected at the Branch. It was further stated that on investigation, the amount was credited into
the account of the petitioner. The said letter 6.5.2004 was marked as Ex. M. 1. Even before the Bahrain Finance Company complained about the
same, the petitioner found out the mistake in the last week of April 2004 and remitted the money back to the courier agent, even as per the
pleadings of the bank that was extracted above. This vital aspect was not taken note of by the Tribunal.
The Tribunal failed to take note of the fact that the petitioner was initially appointed as a sub staff (Messenger) and he was not directly
recruited as Clerk of the bank. On rendering 10 years of service as sub staff, he was promoted as Clerk from the post of Sub Staff. This fact was
also not taken note of by the Tribunal.
Without considering the above relevant facts, the Tribunal proceeded to hold that the petitioner is senior Bank Cashier and therefore he has to
be diligent and more vigilant in the matter of cash transaction.
Another circumstance, that is quoted by the Tribunal is that he withdrew the amount on two occasions, one on 29.1.2004 and 7.2.2004.
Withdrawal of the amount could not either prove or disprove the charge in my view.
Apart from the pleadings, the petitioner produced a Certificate of Merit dated 8.5.1992 issued by the State Bank of India, stating that the
petitioner rendered the meritorious service and the said Certificate was marked as Ex. W. 13. But, the Tribunal did not consider the same.
The Tribunal also failed to consider that the draft was passed by an Officer and on passing of the draft, the same was credited into the account
of the petitioner. Presumably, the Officer who passed the draft was misled by the name and initial that is found in the draft as well as the name and
initial of the petitioner.
The following evidence of M.W. 1 during cross-examination is relevant and it is extracted hereunder:
Prior to clearing, this instrument will be scrutinised as to the name and the account name. When the old account is keyed, the new account number
can be made known if we want it. In Ex. M. 3 the account number against payee''s name is the old account number. Ex. M4 voucher was passed
by S. Munian, Officer. This is the voucher rectified under Ex. M. 10. Ex. M4 is a wrong credit voucher. In para-6 of my proof of affidavit,
inadvertently credited voucher relates to Ex. M. 4.
The aforesaid evidence in favour of the petitioner was not considered by the Tribunal. Likewise, M.W. 1 also deposed that the petitioner gave
a letter Ex. M. 7 to the effect that he thought that the draft is pertained to him and the same is sent by his relative. After he came to know that the
draft was not meant for him, he asked the courier agent to enquire into and after his enquiry with his relative, he realized that the amount was not
meant for him and for that reason, he issued the cheque for Rs. 10,000/-. In fact, the following deposition of M.W. 1 during cross-examination is
extracted hereunder:
The employee Chandrasekaran has stated in Ex. M. 7 that he thought that the demand draft pertained to him sent by his relative. It is further
mentioned that after a few days he came to know that the Demand Draft was not meant for him and therefore he asked the courier to enquire
about it and after his enquiry, he realized that the amount was not meant for him and on account of that he issued a cheque for Rs. 10000/-.
The aforesaid deposition is in favour of the petitioner. But the Tribunal failed to consider the same while passing the impugned award. Since the
Tribunal failed to take into account the relevant evidence on record that were let in by the petitioner also, deposition of the management witness
during cross-examination in favour of the petitioner, in my considered view, the finding rendered by the Tribunal that the charges against the
petitioner are held proved, is perverse.
In fact, the learned counsel for the bank has no answer to the aforesaid issues raised by the learned counsel for the petitioner, except stating
that unless the finding rendered by the Tribunal is perverse, this Court cannot interfere with the award. But, when I have come to the conclusion
that the Tribunal failed to take into account the various documents that were marked before it and also the evidence let in by the persons other than
the petitioner, I have no hesitation to quash the impugned award.
At this juncture, it is relevant to point out that today in Writ Petition No. 849 of 2010, I have also quashed the award dated 12.5.2009 in I.D.
No. 71 of 2007 passed by the Tribunal in respect of the Industrial Dispute between the State Bank of India and the petitioner therein. In the said
case, the workman was discharged from service on the ground that he involved in misappropriation of Rs. 59,837/- on 15 occasions. The Tribunal
held that the charge was proved, still the Tribunal interfered with the punishment of discharge from service and modified the punishment into
reduction in time scale of pay by 3 stages for 3 years with cumulative effect and directed the petitioner to reinstate the workman with continuity of
service and 50% of backwages and attendant benefits.
In fact, in view of the aforesaid reasoning, I am of the view that in the present case also, interference is called for.
In labour jurisprudence, unlike service jurisprudence, the High Court while exercising extraordinary jurisdiction under Article 226 of the
Constitution can also exercise the power of the Labour Court, as held by the Apex Court in Gujarat Steel Tubes Ltd. and Others Vs. Gujarat
Steel Tubes Mazdoor Sabha and Others, and the following passage in paragraph No. 146 is extracted in this regard:
What the Tribunal may, in its discretion, do, the High Court too, under Article 226, can if facts compel, do.
Applying the aforesaid principle, I am of the view that instead of remanding the matter to the Labour Court to pass a fresh award, the award
passed by the Tribunal is liable to be quashed. Accordingly, the award passed by the Tribunal is quashed and the punishment of dismissal/removal
imposed on the petitioner is set aside and the respondents 2 and 3 are directed to reinstate the petitioner with 50% of back wages with continuity
of service and attendant benefits. The Writ Petition is allowed in the above terms. No costs.