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Judgment
K. Chandru, J.—The petitioner is the management of South India Bank Limited having head quarters at Thrissur, Kerala State. Aggrieved
by the order passed by the first respondent appellate authority in T.N.S.E. Case No. 11/95 , dated 29.9.1988 in setting aside the order of
termination passed against S. Rajavelu, the late husband of the second respondent and father of 3rd and 4th respondents, the present writ petition
has been filed.
The husband of the second respondent late Rajavelu was employed by the petitioner Bank and he was working as Additional Branch Manager
in their Pollachi Branch. He was an handicapped person and also a severe diabetic. He was issued with a charge memo dated 11.12.1992 for the
various commissions and omissions allegedly committed by him when he was working at Pollachi and Gobanapudur Branches. An enquiry was
conducted in respect of those charge memo. Out of the 8 charges leveled except, charge No. 7, all other charges were held to be proved by the
enquiry officer accepting the report of the enquiry officer, the first respondent dismissed late Rajavelu by an order dated 6.3.1995.
After unsuccessfully filing an appeal before the Board of Directors, late Rajavelu preferred an appeal u/s 41(2) of the Tamil Nadu Shops and
Establishments Act 1947 (for short ""TNSE Act"") to the appellate authority of that region namely, the first respondent herein. His appeal was taken
on file as TSE. Case No. 11/95 and notice was issued to the petitioner bank. During the pendency of the appeal, he passed away on 19.4.1996
and respondents 2 to 4 came on record before the first respondent by filing I.A. No. 3/96.
Against the order of impleadment of respondents 2 to 4, the petitioner bank preferred a writ petition before this court being W.P. No. 15560 of
1996. The said writ petition was admitted on 19.11.1996 and an interim stay of further proceedings were granted by this court. Subsequently,
when the respondents 2 to 4 filed a vacate stay application, the interim stay granted earlier was vacated by this court by an order dated 16.4.1997.
Thereafter, the first respondent took up the case for final hearing. Before the first respondent on behalf of the respondents 2 to 4, 10 documents
were filed and they were marked as Exs.A-1 to A-10. On the side of the petitioner-Management, 27 documents were filed and they were marked
as Exs. R-1 to R-27. The first respondent, on an analysis of the evidence placed before him, came to the conclusion that the charges leveled
against the Rajavelu was not proved in the enquiry and therefore, he set aside the order of dismissal dated 6.3.1995 and directed his reinstatement
with back wages and all other attendant benefits by its order dated 29.9.1998. It is against this order, the present writ petition was filed as noted
already.
The writ petition was admitted on 5.2.1999 and an interim order was granted. Subsequently, the said order was made absolute on 2.9.2003.
The second respondent also filed a counter affidavit dated 5.7.2008.
Mr. Ananda Krishnan, learned Counsel representing for M/s. T.S. Gopalan and Co. for the petitioner submitted that it was wrong on the part of
the first respondent/appellate authority to disagree with the findings given by the enquiry officer. The findings in respect of charge Nos. 1 and 2,
were perverse and the charge Nos. 4 and 5 were very serious. Since the late Rajavelu was engaged as the Additional Branch Manager, it was
improper on his part to have discounted cheques, when there was no sufficient funds. He also took this court to the findings rendered by the
appellate authority and tried to submit that the order of the authority is liable to be set aside.
Per contra, Mr. Edwin Prabhakar, learned Counsel for R-2 to R-4 submitted that in the enquiry, the petitioner-Management did not examine
proper witnesses. Charge Nos. 1, 2 and 8 had a common allegation that he came to the branch office under influence of liquor. But in the enquiry,
his drunkenness was not proved. The charge was based upon a complaint given by the Branch Manager Venugopal who was not having good
terms with late Rajavelu. On 20.6.1992, since the said Rajavelu due to his sugar level shoot up and felt giddy sat on the stair case leading to the
bank. The complainant Venugopal admitted that there was no previous complaint of misbehaviour before 20.6.1992 and he did not get Rajavelu
examined to prove that he was drunk. M.W.3 Jayaraman and M.W.4, Paul R.James did not support the case of the bank. Therefore, the appellate
authority rightly held charges 1, 2 and 8 were not proved.
It is submitted that with reference to charge No. 3, the evidence of one M.R. Sivasamy was examined but the Bank Customer M. Mariappan
was not examined. The so called complainant refused to be a party to depose against the Rajavelu. With reference to Charge No. 4, the
discounted cheque instead of being adjusted against the petitioner''s account, was adjusted against some other account. The amount was sought to
be adjusted through telegraphic transfer. The entire issue was precipitated by the officer of the bank. Further, when it was brought to the
knowledge of late Rajavelu that he had deposited a demand draft for Rs. 1000/- on 24.12.1992.
Similarly, he is submitted that charge No. 5 that he took traveling allowance and after joining at the Gobanapudur Branch he had drawn Rs.
3,500/- from 18.,5.1992 to 28.5.1992 whereas he was eligible to draw only Rs. 1,293/-. For this, the late Rajavelu explained, since the period of
deputation was not specified, he had drawn the excess T.A. amount . Only after checking the accounts it was found that he had drawn excess
amount and it could be always adjusted against the salary account of Rajavelu.
11.He further submitted that with reference to Charge No. 6, for the alleged indecent behaviour against one A.R. Rangasamy Chettiar who had
given a complaint, he was not examined. On the other hand it was elicited from the two management witnesses M/s. Varghees Mathews and G.R.
Loganathan that the Rajavelu scolded Loganathan only because he came to the Manager''s room and used the telephone without Manager''s
permission. Therefore, the appellate authority held that there was nothing wrong on the part of late Rajavelu in scolding that person. As stated
already, charge No. 7 was not proved even as per the finding of the domestic enquiry officer.
The appellate authority had gone into the evidence and had come to an independent conclusion that the charges were not proved against the
late Rajavelu and hence, he is eligible for all consequential benefits. In this context, Mr. Edwin Prabhakar, learned Counsel for the petitioner
brought to the notice of this court that the decision of the Division Bench presented by P. Sadasivam J., (as he then was) reported in 2007(2)
L.L.N. 550 (I.K. Lodi v. Appellate authority under Tamil Nadu Shops and Establishemtns Act, Chennai and Anr.) and referred to para 21 which
reads as follows:
We have already pointed out that Sub Section (3) of Section 41 of the Act makes it clear that the decisionof othe appelalte authority shall be
final and binding on both the parties. Further, it is not the case of the bank that the appellate authority has not looked into the oral and documentary
evidence, on the other hand, the authority considered each charge with reference to the oral and documentary evidence let in by both sides and on
proper appreciation of the materials, arrived at a specific conclusion, in such circumstances, as observed in the decision reported in 1999(2)
L.L.M.74 (vide supra) it is not a case of no evidence or perverse finding'' for interference by the learned Judge, exercising jurisdiction under Article
226 of the Constitution of India.
In the light of the above, the writ petition deserves to be dismissed. Only question is since the said Rajavelu had passed away on 19.4.1996,
the relief granted by the authority has to be modified.
It is claimed by the petitioner-Management that they have already paid the late Rajavelu the following amounts which were set out in a memo
dated 7.7.2008 filed before this court and the same is extracted below:
Gratuity - Rs. 1,34,550.00
Provident Fund - Rs. 2,25,351.00
Arrears of Subsistence Allowance - Rs. 2,273.00
GSLS - Rs. 5,147.00
Arrears of salary & Gratuity
(due to salary revision of officers) - Rs. 42,253.67
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Rs. 4,09,574.67
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Item No. 1 to 3 was received by the dismissed employee on12.10.1995 and item No. 4 & 5 was received by the dismissed employee on
11.4.1996.
Out of the total amount paid as above by way of terminal benefits, a sum of Rs. 2,13,365.08 being the amount outstanding as on the date of
dismissal in his various loan accounts, was adjusted with the consent of Rajavelu, at the time of settlement of the account.
Therefore, the only amounts to be paid is the back wages and the difference in gratuity. It is claimed that at the time of his dismissal, he was
paid a monthly salary of Rs. 10,120.65. If the back wages are worked out at this rate from 6.3.1995 to 19.4.1996, it comes to Rs. 1,36,019.35.
The difference in gratuity is calculated it may work out to another Rs. 4,000/-. Therefore, the sum payable to the respondents 2 to 4 is now
rounded off to Rs. 1,40,000/- . The petitioners are directed to pay the amount of Rs. 1,40,000/- to the respondents 2 to 4 within a period of eight
weeks from the date of receipt of a copy of this order.
The writ petition is accordingly dismissed with the above directions. However, there will be no order as to costs.