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Judgment
The second respondent was employed as a Clerk in Purasawalkam Branch of the petitioner-bank. On 15.12.1977 a demand draft dated
12.11.1977 issued by the National Bank of Omen Limited drawn in favour of one K.C. Appukuttan was brought to the bank by ONE V.T.
Lazar, who had an Account in the bank for being deposited in his Account that demand draft being the one which was payable to the payee named
therein and that draft having been endorsed by the payee. The said draft was received by Francis Vincent, the second respondent herein, who
issued the counterfoil of the challan to the said V.T. Lazar, which has been marked as Ex.M3 in the enquiry proceedings conducted against him.
That challan disclosed that the demand draft, which had been made payable at the Bank of America was received from the said V.T. Lazar for
being credited to the Account of V.T. Lazar. The challan is dated 15.12.1977. To the misfortune of the said V.T. Lazar, that amount was not
credited to the Account of V.T.Lazar. The second respondent Francis Vincent wrote down his own name, in the other part of challan as the
person to whose account, the proceeds were to be credited. On 16.12.1977, the amount was realised and the money was credited to the account
of 2nd Respondent Francis Vincent, without the knowledge of the customer viz., V.T. Lazar. On the next day viz., on 17.12.1977 the money was
drawn by Francis Vincent from the bank account. He continued to work in the bank till 26.12.1977, on which date he gave a leave letter to the
bank and went on leave. The reason disclosed by him for going on leave was that he was suffering from conjunctivitis and would not be able to
attend to office for a few days. He did not turn up for work for more than two months thereafter. He also sent from Poona a medical certificate to
the bank in the first week of March 1998 issued by a Doctor at Bangalore, wherein it was stated that he was suffering from conjunctivitis from
25th December 1977 to 24th January 1978 and he was under the treatment of the Doctor at Bangalore. The Doctor''s Certificate is dated
2.2.1978.
The bank received a complaint from V.T. Lazar on 27.12.1977 to the effect that after V.T. Lazar''s enquiries at the bank he found that the
demand draft, which he had remitted to the bank and in respect of which he had been issued the challan counterfoil, marked as Ex.M-3 had still
not been realised by him. The branch Manager of the bank on seeing the said challan counterfoil and after checking up the records found that the
money had in fact been collected, but that collection was for the benefit of Francis Vincent, as the name entered in the challan was that of Francis
Vincent as if the demand draft had been endorsed to the name of Francis Vincent, and was to his benefit. A written complaint was thereafter
lodged by the said V.T.Lazar on 9.1.1978 based on the oral complaint which had been received prior to 7.1.1978, the date on which a
chargesheet was issued by the bank to Francis Vincent. In response to the charge-sheet, the second respondent, Francis Vincent sent a letter,
dated 20.1.1978, wherein he stated as under:
The first two charges levelled against me are true. I have done it by mistake without thinking about the seriousness of my action. I really apologise
for it and I am prepared to accept the disciplinary action without any reservation. I have done a lot of harm to the Institution and hence, whatever
action is being taken against me, I will gladly receive it ...
In the said letter, the address of the second respondent was given as ""Francis Vincent Neelankavil, C/o. Prof. N.P. Inasu, No. 29, Old Randallan
Road, Prabhakar Colony, Lonavla, Poona District.
The charge-sheet that was issued to the workman by the management was in respect of the fraud played by him on the bank''s customer;
misappropriation of bank''s funds, and unauthorised absence from duty without submitting proper leave application. An enquiry into those charges
was conducted. The second respondent was present throughout the enquiry proceedings. He asked questions in cross-examination to the
witnesses examined by the Management, and himself deposed. V.T. Lazar, who had been defrauded was the first witness. He stated at the enquiry
that he had a bakery and stationery shop along with his papad-making business, that the amount of the demand draft of K.C. Appukuttan, who
was working in his stationery shop had been given by them in advance to Appukuttan, at Appukuttan''s request and that he had taken the demand
draft to the bank for being credited to his Account. As it was the Christmas season, he wanted the money to be available to him early. He further
stated that Francis Vincent gave him the counterfoil of the pay slip in the evening hours at his house, as he had to leave the Bank in a hurry, after
depositing the draft. He also stated that he enquired with Francis Vincent after two days as to whether the amount had been collected. He was told
that as it was year end closing, it would take some more time. When he went to enquire again towards the end of December, 1977 the said
Francis Vincent was not there in the Bank and it was after that visit on seeing the counterfoil of the challan the Manager of the Petitioner-bank
conducted enquiries and found out that the amount of the draft in fact had been realised and credited to the account of Francis Vincent who by the
time had drawn the money and gone on leave. V.T. Lazar was cross examined by Francis Vincent. What he elicited in cross examination was that
V.T. Lazar had asked for an early collection of the draft and after two days, he had enquired with Francis Vincent as to whether the amount was
received. There was no cross-examination in relation to the material facts set out by V.T. Lazar in the deposition. The other witness examined was
one John Alappatt, who was the Manager of Purasawalkam Branch of the petitioner bank. He stated that the draft had been sent for collection and
was also realised on 16.12.1977, as per Ex.M-6 in folio 37 of the local collection register. The amount was credited on 16.12.1977 to the
Account of Francis Vincent as per Ex.M.-7 and was withdrawn by him on the following day viz., on 17.12.1977. He also stated that Francis
Vincent had not attended the Bank for work after 26.12.1977.
The second respondent, Francis Vincent deposed before the Enquiry Officer. He did not dispute the fact that the draft was given to him by V.T.
Lazar for collection. He claimed that on the following day. He had noted the absence of V.T. Lazar''s signature on the reverse of the draft and
thought that in order to save time he would put his signature on the reverse and credit the draft to his own account. He claimed that he drew the
money only with the intention of giving it back to V.T.Lazar, but he could not do so. He did not state in his deposition that he had given the money
to V.T.Lazar, even after the complaint and the enquiry.
After the enquiry on the complaint, the second respondent wrote to the Enquiry Officer stating that due to over enthusiasm to help the customer,
he had to sign on the reverse of the instrument. Even in his letter, which was sent on 23.5.1978 he did not claim that he had returned the money to
V.T.Lazar. The second respondent was informed by his employer that the Management of the petitioner-bank had proposed to dismiss him from
service by letter, dated 31.5.1978. Thereafter, the workman wrote to the Chairman of the Bank wherein for the first time, he stated that he had
already paid the amount to the customer without furnishing any details as to how and when the amount was paid to the customer. It must be
noticed here that V.T.Lazar in his deposition stated that he had not been paid the money and there was no challenge to that statement in cross
examination during the enquiry proceedings. The second respondent was dismissed from service on 10.6.1978.
On these facts, the Tribunal was required to apply its mind as to whether the dismissal of the workman could be held to be justified, a reference
having been made to the Industrial Tribunal in 1985 nearly eight years after the dismissal in Industrial Dispute No. 85 of 1985 before the Industrial
Tribunal, requiring the Tribunal to determine the justifiability or otherwise of the dismissal of the second respondent, Francis Vincent who had been
employed as a Clerk in the petitioner-bank, from service with effect from 10.6.1978.
Before the Industrial Tribunal no oral evidence was let in by either party Exs.M-1 to M-28 were marked by consent for the management. The
workman, though he had claimed in his claim statement that the enquiry was vitiated did not press that objection. Counsel for the workman, as
noticed by the Tribunal had endorsed that the validity of the enquiry is not challenged. The Tribunal has noted in paragraph 6 of its order that...
arguments were confined only to the scope of Section 11-A of the Industrial Disputes Act, 1947...
Thus, the legality of the enquiry as also the findings recorded therein were accepted by the workman and it was only the quantum of punishment
that was agitated before the Tribunal. The Tribunal in para 6 of its order has noted that the charges 1 and 2, which deal with the fraud played on
the bank''s customer and the misappropriation of funds were established by the evidence adduced on behalf of the management, and that the
delinquent employee had credited the sum of Rs. 500 to his own account and temporarily misappropriated the sum. The Tribunal in the very same
paragraph has proceeded to observe that the bank had paid from the suspense account to V.T. Lazar on 9.1.1978 this amount. The basis for that
observation is the affidavit filed by the workman, stating that the workman had learn about the said payment made by the bank and that he in fact
had paid the amount to the bank. The fact that the bank could not verify the records, after the lapse of ten years was treated by the Tribunal as an
admission of the correctness of the workman''s statements in the affidavit. The Tribunal while drawing such inference did not look into the enquiry
proceedings, the unchallenged statement of Lazar that he had not been paid the money and the total absence of any claim of payment having been
made in the letter written by the workman before the conclusion of enquiry.
The Tribunal did not look into the records at all to analyse manner in which the fraud had been perpetrated and the series of false statements
which the workman had made for which there was no plausible explanation whatsoever. The Tribunal held that the absence from duty was only a
minor misconduct, which also could not be said to have been proved. It was so stated by the Tribunal even after having noted that arguments
before it were confined only to the scope of Section 11-A of the Industrial Disputes Act, 1947, which implied that there was no further challenge
to the findings recorded at the enquiry.
The Tribunal then proceeded to advert to the arguments putforth by the workman''s counsel that it was a case of temporary misappropriation
made in a momentary fit of indiscretion. The Tribunal then jumped to the conclusion that taking into consideration the totality of the circumstances
of the case, the order for dismissal was to be set aside. The order of the Tribunal does not disclose that it had taken any trouble to look into the
enquiry records, the manner in which the fraud was committed, and the conduct of the workman. The tribunal merely accepted the argument that
the punishment was harsh and disproportionate to the gravity of the misconduct committed by the delinquent. The Tribunal then set aside the
dismissal and directed reinstatement with continuity in service and fifty per cent of the back wages.
Learned counsel for the petitioner management contended that this order of the Tribunal is perverse as the Tribunal has patently failed to
exercise the judicial discretion vested in it in a judicial manner while determining the appropriateness of the penalty which had been imposed for the
admitted and proved misconduct. The workman''s claim that the admission made by the workman was the result of coercion by the employer was
patently incorrect, as no such complaint was made by him during the enquiry and even before the Tribunal the workman had accepted the fact that
the charges levelled against him had been proved. The admission made by the delinquent merely reinforces and corresponds to the charges that
were ultimately proved at the enquiry. It was further submitted by the counsel that the Tribunal has failed to take note of all the relevant material
circumstances before deciding in a casual manner that the misconduct committed by the workman was merely youthful indiscretion and that the
punishment imposed was disproportionate.
The material facts brought out during the course of enquiry and the contents of the records before the Tribunal had not been properly
scrutinised, with the result, the relevant materials have been omitted to be considered, before the Tribunal reached the conclusion that the
punishment was disproportionate to the gravity of the offence. Unless the gravity of the offence is first analysed, it was not proper for the Tribunal
to hold that the punishment was disproportionate. The conduct of the delinquent has not been properly taken into account and the veracity of
several statements made by him has not been analysed by the Tribunal. It had assumed that the money had been repaid, even though V.T.Lazar at
the enquiry had categorically stated that the money had not been paid to him and that statement was not challenged in cross-examination. It was
not the case of the workman that he had paid the money at any time prior or during the course of the enquiry. The Bank being an Institution can ill-
afford to employ persons like the second respondent who had demonstrated through his lack of integrity by crediting to his own account monies
that should have been credited to the account of a customer and thereafter drawing the money from the account, and utilising it for himself. The
Tribunal has ignored all these factors and therefore, the discretion exercised by it cannot be regarded as a judicial discretion properly exercised.
The interference by this Court with that order under Article 226 of the Constitution of India is warranted and is necessary.
Learned counsel appearing for the second respondent- workman vigorously contended that the discretion u/s 11-A of the Industrial disputes
Act, 1947 is that of the Tribunal and once the discretion has been exercised, this Court should not substitute it''s view for that of the Tribunal.
Counsel submitted that the discretion exercised by the Tribunal was, therefore, the introduction of Section 11-A of the Industrial Disputes Act,
1947 relating to a managerial function and the Tribunal''s discretion was wide as regarded as managerial discretion which is empowered to
supplement. It was therefore open to the Tribunal to choose such measure as it deemed fit and proper on the facts and circumstances of penalising
the workman for the proved misconduct. The fact that the employee had been found guilty would not be sufficient to enable the employer to sustain
the penalty awarded, as that was also a matter which was well within the discretion of the Tribunal, and the Tribunal, even after accepting the
legality of the enquiry and the factum of charge having been proved can still proceed to set aside the penalty and substitute such other penalty as it
considered proper. Counsel further submitted that the workman was not a hardened criminal and the fact that on one occasion he had not done the
right thing should not be regarded as sufficient to result in his loss of employment. Counsel further submitted that the past record of service had not
been considered by the employer and such failure would vitiate the order, as under the terms of the bipartite settlement the past record of the
employee was required to be considered. According to counsel, the Court should not adopt a ''moralistic attitude'' in judging the conduct of the
workman while reviewing the order of the Tribunal.
Before noticing the authorities relied on and referred to by the counsel for the petitioner-management the decisions relied on by counsel for the
second respondents may first be noticed.
15-A. Counsel for the second respondent workman relied upon the decision of the Supreme Court in M.M.T. Ltd. v. Mohd. Usman and another,
1983 (2) LLJ 386 wherein the Supreme Court held that if the Labour Court after evaluating the gravity of the misconduct held that punishment of
termination of service is disproportionately heavy in relation to misconduct and exercised its discretion, this Court, in the absence of any important
legal principles would not undertake to re-examine the question of adequacy or inadequacy of material for interference by Labour Court.
15-B. Counsel then referred to the decision of the Apex Court in Balder Singh v. Labour Court, Patiala and another, 70 FJR 1, wherein it has
been held that reinstatement can be ordered, where it has been found that the penalty imposed was harsh and where there is an order declining to
award backwages after such reinstatement, such discretion was well within the jurisdiction of the Tribunal.
15.C. The case M/s Tulsidas Paul v. Second Labour Court, 1971 (1) LLJ 526 was relied upon for the proposition that where the dismissal is
found to be unjustified, the normal rule is to grant the relief of reinstatement and compensation should be awarded only in exceptional and unusual
circumstances.
15.D. The case of Scooter India Ltd v. Labour Court, 73 FJR 515 was relied on for the proposition that even after accepting the findings at the
enquiry the Labour Court can still set aside the order of termination and direct reinstatement and that the Labour Court can temper justice with
mercy and give an opportunity to erring workman to reform himself.
15.E. Counsel then relied on a Division Bench Judgment of this Court in the case of Management of Binny Ltd. v. Additional Labour Court
Madras, 1979 (2) LLJ 280, wherein this Court upheld the order of the Labour Court, directing reinstatement, even though the employer had
dismissed the workman on the charges of theft of articles like viz., surgical cotton, boric acid powder, sulphanide powder, surgical dressing,
turpentine and Dettol etc. This Court further found that discretion had not been exercised by the Labour Court in a perverse manner .
15.F. Counsel finally relied on and referred to an unreported Judgment of this Court in W.A.No.360 of 1996 dated 4.9.1997, where it was held
that there were extenuating circumstances for not interfering with the award of the Labor Court setting aside dismissal of the workman from
service, and awarding Compensation, even though the workman was found to have misappropriated funds. In that case it was found that there was
a compulsion on the workman by his creditors to immediately pay them the monies which the workman had collected from the Post Office for the
purpose of depositing the same in the Bank, and the monies were subsequently repaid by the workman to the Bank. The circumstances in which
the money was temporarily misappropriated by the workman were held to constitute sufficient basis for the exercise of the discretion by the
Labour Court in favour of the workman.
Learned counsel for the employer relied upon the decision of the (A) Gujarat High Court in Municipal Corporation of City of Ahamedabad v.
Hussainmiya Chandmiya, 1987 (I) LLJ 152, wherein A.M. Ahmadi, H (as the learned Judge then was) speaking for the Bench observed that
ordinarily the High Court would be slow in interfering with an order of reinstatement passed u/s 11-A of the Industrial Disputes Act, 1947 by way
of a substitute for an order of dismissal or discharge, but there are cases, where such an arbitrary order cannot be countenanced! because it
tantamounts to an abuse of the discretionary jurisdiction conferred by Section 11-A of the Industrial Disputes Act, 1947. The Court found that the
misconduct, which the workman had committed in that case did warrant termination of service. In that case, the Labour Court has on the basis of
misplaced sympathy, substituted the order of dismissal with that of a lesser punishment.
16B. Counsel on the same aspect drew attention to the decision of Division Bench of this Court in South India Sugars Ltd v. First Additional
Labour Court, Madras, 1989 (II) LLN 1044, wherein Srinivasan, J (as the learned Judge then was) speaking for the Bench observed that the
power of the Labour Court u/s 11-A of the Industrial Disputes Act, 1947 cannot be exercised arbitrarily and it has to be exercised in a judicious
manner and it is always subject to judicial review.
16C. Counsel then referred to the decision of the Supreme Court in Hindustan Steels Ltd., Rourkela Vs. A.K. Roy and Others, , wherein the
Supreme Court referring to the discretion of the Tribunal emphasised that discretion should be exercised judicially and in accordance with the well
recognised principle. It was further held by the Supreme Court that the High Court in exercise of its writ jurisdiction can interfere and cannot be
content by simply saying that since the Tribunal has exercised its discretion it will not examine the circumstances of the case to ascertain whether or
not such exercise was proper and in accordance with the well settled principle made. The Court also held that certiorari can properly be issued to
quash the order made without due regard to relevant considerations.
16D. The case of Management of Delhi Transport Undertaking Vs. Industrial Tribunal, Delhi and Another, was referred to in support of the
principle that omission to mention the appropriate Standing Order, Regulations and the relevant sections of the Act was not fatal to the validity of
the final order dismissing a workman.
16E. The decision of a learned single Judge of Andhra Pradesh High Court in the case of A.P. State Road Transport Corporation v. Additional
Labour Court Cum Industrial Tribunal, 63 FJR 230 was relied on for the proposition that the Tribunal must take into consideration all the relevant
facts and factors and can interfere with the punishment imposed by the employer, only when it comes to the conclusion that the punishment
imposed is extremely harsh and unjust and wholly disproportionate to the proved misconduct.
16F. The case of Municipal Committee v. Krishnan Behari, 1996 Lab. I.C. 1056 was referred to in support of the proposition that the amount
misappropriated may be small or large; it is the act of misappropriation that is relevant for imposing the penalty and that any sympathy shown in
such cases is totally uncalled for and is opposed to public interest.
16G. The case Binny Ltd v. Workmen, 1993 Lab. I.C. 1119 was relied on for the proposition that reinstatement is not the proper relief, where the
employer has lost the confidence in the workman.
16H. A Division Bench Judgment of this Court in Sri Gopalakrishna Mills v. Labour Court, Coimbatore, 1981 Lab I.C. 209 was relied upon for
the proposition that the long period of unblemished service by itself would not warrant awarding the penalty of dismissal. If the misconduct is grave
in character.
16I. The decision of a learned single Judge of Delhi High Court in Workmen of Indian Overseas Bank v. Indian Overseas Bank, 1973 (1) LLJ
316 was relied on for the proposition that there may be cases, where the gravity of the offence standing by itself would justify the dismissal and no
amount of previous good conduct might affect the gravity of the offence.
Before the Tribunal the workman accepted the fact that the enquiry had been properly conducted. The findings recorded in the enquiry
regarding the fraud committed by the workman on the customer viz., in issuing the counterfoil of the challan, as if the draft had been credited to the
customer''s bank account and thereafter in the challan writing his own name and crediting the amount shown in the draft to his own account and
subsequently withdrawing the amount, had been established clearly. The failure on the part of the workman to pay back the money to the customer
had also been established at the enquiry. The customer himself had given evidence to the effect that he had not been paid the money, also had not
been challenged in the cross -examination. The prejudice caused to the Bank by reason of this conduct of the second respondent workman was
evident; the conduct of the workman in claiming that he had credited the draft to his own account in the bank, as customer was in urgent need of
money, and even after drawing the money from the bank on the very next day, continued to retain that amount with himself not only for the period
when he continued to work in the bank but even thereafter without paying the same to the customer had also been proved. The letters written by
the second respondent workman to the bank, first pleading that he had suffered illness and later intimating the bank about the treatment he
undertook from a Doctor at Bangalore through a medical certificate issued by the Doctor at Bangalore in support thereof and with reference to the
period during which he undertook treatment from the Doctor viz., from 25th December, 1977 to 24th January, 1978, while the workman was very
much available at Chennai on 26.12.1977 would clearly show that he had not been telling the truth and he had been making false statements, as
even according to him, he was in Poone on 20th January, 1978 from where he sent Ex.M.-11 letter to the Management.
17A. The workman was employed in a bank, where the confidence of the customers is paramount for the success of the business cannot be
disputed. The effect of the continuation of the employment of such person who had failed to rejoin and inspire the confidence of the employer was
also evident. The risk to the bank in employing a person like the second respondent- workman, who had patently duped its customer, and harmed
the Bank''s reputation was also evident. The misconduct committed by the second respondent-workman had been proved, after due enquiry in
which the workman had fully participated. The second respondent-workman himself had confessed his misconduct in Ex.M- 11, letter, dated
20.1.1978. Though he sought to result from that letter before the Tribunal the charge having been proved at the enquiry, and the findings having
been accepted by the workman during the proceedings before the Tribunal would show that the statements given by the workman second
respondent in Ex.M-11, letter was not as a result of any coercion by any one, about which allegation, there was no evidence whatsoever.
The Tribunal as a judicial forum is required to reach its conclusion in such matters, on the basis of evidence and also on the basis of all the
available materials, which are relevant. It is only when the Tribunal discharges its functions in the matter judicially, value can be attached to the
discretion exercised by it and if the discretion had been properly exercised, this Court would not interfere with such exercise of discretion. The
discretionary power to Tribunal is not however, a free licence to direct reinstatement, even when it is not warranted and to set aside the order of
dismissal, when the records do not warrant the setting aside of the order of dismissal.
As has been pointed out by Srinivasan, J. in South India Sugars Ltd, 1989 (II) MLJ 1044 and A.M. Ahmadi, J as he then was in the Gujarat
High Court in Municipal Corporation of City of Ahmedabad, 1987 (I) LLJ 152, if the Labour Court has not exercised its discretionary power in a
judicious manner, then, such order made by the Labour Court is liable to be reviewed by this Court, and on such review, as has been pointed out
by the Supreme Court in Hindustan Steels Ltd., Rourkela Vs. A.K. Roy and Others, , it is the duty of the Court to interfere with the order, which
had not been made in proper exercise of discretionary power after examining all the relevant circumstances and materials.
The circumstances of this case which have been found in the earlier part of this order clearly warrant the conclusion that the order of dismissal
was justified. That the misconduct is grave is not disputed by the workman himself. It is however sought to be made light of by characterising it as a
''momentary indiscretion. It can hardly be regarded as ''momentary indiscretion'' as the chain of events and the conduct of the workman throughout
do not support any such characterisation''. If the misconduct of the workman is grave in nature and the gravity of the offence warrants the penalty
of dismissal, the tribunal cannot on the ground that it has power u/s 11-A of the Industrial Disputes Act, 1947 set aside the order of dismissal and
simply direct reinstatement of the workman. The power u/s 11-A of the Industrial Disputes Act, 1947 becomes available for being exercised, only
when all aspects of the case are considered and only when it is established that the charge which has been proved and the penalty which has been
imposed are not proportionate to each other. The Tribunal before characterising the penalty as disproportionate has failed to examine all the
material details, but has simply in a superficial manner accepted the statements made for the workman that it was just an act of momentary
indiscretion and the Tribunal in turn has proceeded to charcterise it as a case of ''Youthful indiscretion''. It must therefore be held that the Tribunal
has not exercised its discretion in the manner required for being accepted as proper exercise of judicial discretion.
Counsel for the workman contended that the past conduct of the second respondent-workman had not been considered. According to him,
the past record of the workman was such as to extenuate the gravity of the misconduct committed by him. Where the misconduct of the delinquent
is grave, the absence of any penalty during his earlier period of service, by itself would not constitute a sufficient basis of holding that the penalty is
not in accordance with taw. The lackluster record which showed neither significant achievement nor the suffering of any penalty cannot contribute
much to the decision regarding the penalty, where the misconduct established is a grave one. It was not the case of the second respondent-
workman that he had performed meritoriously during his earlier years of service. The best that can be assumed is that he had not suffered any
penalty earlier. But that by itself is not sufficient to hold that the order of dismissal could not have been passed, if that particular fact had been taken
into account. The reference to the past record of service in the bipartite settlement relief on by counsel is not meant to be a trap to render
ineffective, order of termination passed as a consequence of grave misconduct having been proved.
The submission made by the counsel for the second respondent workman that the Court should not adopt a moralistic attitude is rather difficult
to accept, if by moralistic, is meant the upholding of standards which the community as a whole accepts, like honesty and integrity, the
condemnation of fraud, theft and the like. It is certainly the function of the Court to ensure that those standards are maintained to the extent they are
reflected in the law expressly or impliedly. It can hardly be said that every employee has the right to commit fraud, or theft, or to be dishonest in his
dealings either with the employer or with the customers of the employer. No employee can claim a right to commit fraud during the course of his
employment with his employer and in relation to the affairs of the employer or its customers. The fact that the Tribunal has discretion does not
imply that such discretion should be exercised in such a fashion as to ignore the minimum ethical standards to the extent they are required to be
maintained by law. It cannot be said that though the ethical standard in itself is beyond criticism, nevertheless, such standard is not required to be
maintained by the employee, even when this standard is embodied in the applicable rules and regulations which require integrity to be maintained
and which declares dishonesty, fraud, theft, misappropriation and the like as misconduct and therefore, his failure to maintain the standard is not to
be put against him and further despite the misconduct proved, the employer should be compelled to continue him in his employment with all
benefits. Though in cases where it is warranted, justice may be required to be rendered with mercy, that itself however, is not to be carried to the
extent of abandoning of ethical standards reflected in the law on the ground that it is not the function of the Court to be concerned with such moral
or ethical standard.
The argument advanced for the workman that the workman is not hardened criminal and therefore, his failure to maintain integrity should be
condoned, cannot be accepted. An employer need not wait till such time as the employee commits a series of fraudulent acts before taking action
against him. While that may be a factor for reducing the period of incarceration in the event of criminal conviction, it is not the duty of an employer
to retain his employee., who has committed fraudulent acts and exhibited dishonest conduct by misappropriating the customer''s money thus
bringing disrepute to the institution in which he is employed. It is not too much to ask for any employer to expect his workmen to maintain minimum
standards of integrity which in fact is being maintained by the vast majority of workmen. The misconduct committed by a small proportion of the
total workforce is not to be condoned for the asking. Rewarding fraudulent and dishonest, conduct amounting to grave misconduct, by
reinstatement and award of backwages is to mock at the integrity and honesty of the vast majority of workmen who are honest, diligent and law
abiding. As observed by Ahmadi, J. in Municipal Corporation of City of Ahmedabad v. Hussathmiaya Chandmiya, 1987 (I) LLJ 152, Sympathy
cannot be a ground for invalidating the dismissal when such sympathy is totally misplaced and where the acts committed are grave in nature.
In the result, the impugned order of the Tribunal cannot be sustained. The order of the Tribunal directing re- instatement is set aside and the
order of dismissal passed by the employer is sustained, the dismissal of the 2nd respondent having been found to be justified. Counsel for the
second respondent-workman submitted that the workman has already been paid over a lakh of rupees during the pendency of the writ petition
payment having been made in terms of S. 17-B of the Industrial Disputes Act. Having regard to the long pendency of this petition, it is made clear
that the workman will not be required to re-pay the said sum to the petitioner-management, notwithstanding the result of this writ petition. All
connected miscellaneous petitions are dismissed.