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Judgment
K. Vinod Chandran, J.—The petitioner is a Society aggrieved by the order of the Arbitration Court, Ext. P8, confirmed in Ext. P9, by the Cooperative Tribunal. Though the proceedings initiated before the Arbitration Court and the Tribunal are with respect to the disciplinary action and punishment imposed on the first respondent, the disciplinary enquiry initiated against another employee has considerable bearing in the matter.
The controversy arose when unauthorised withdrawal, from the account of a customer of the Bank, was detected. The Bank having conducted preliminary enquiry as to the unauthorised withdrawal, found that one Sasidharan, an attendar in the Bank, was responsible for the misappropriation. Sasidharan was proceeded against by the petitioner Bank and was issued with a charge memo alleging misappropriation of funds. A domestic enquiry was initiated and an Advocate was appointed as enquiry officer.
The enquiry concluded with Ext. P1 report finding that there was no evidence to find Sri. Sasidharan alone, guilty of the charges levelled against him in the charge sheet. The said finding was inter alia on the ground that the first respondent, who was the Secretary, at that point of time had not deposed in accordance with the charge sheet or rather, her evidence did not indicate the misappropriation having been committed by the said Sasidharan. In such circumstances, the enquiry was concluded with the finding that there are other persons involved in the incident. The Enquiry Officer also directed that the persons, who abetted the offence, should also be issued with a charge sheet and proceeded against. Clearly the Enquiry Officer exceeded his brief in issuing such directions, especially when it was not as if the evidence adduced clearly indicated the delinquent employee and the Secretary deposed contrary to such evidence.
The respondent Bank however, issued a further charge sheet, Ext. P2 against three employees of the Bank, of which, the first arrayed was the first respondent herein. The charge memo is produced as Ext. P2 and the specific charge against the first respondent was that, she along with Sasidharan misappropriated an amount of Rs. 28,700/- from the account of a customer of the respondent Bank. The third person arrayed in Ext. P2 was charged with abetting such commission of offence. The allegation against the second person, arrayed in Ext. P2, was that he was guilty of dereliction of duty. Again a domestic enquiry was conducted. Sasidharan, who was initially charged as having been responsible for the misappropriation, had not been included in Ext. P2 charge sheet. Learned counsel for the respondent Bank submits that, he was not so included, since charge sheet was already issued to him.
In the enquiry conducted against Sasidharan and also against the three persons arrayed in Ext. P2, another Advocate was appointed as the Enquiry Officer. The enquiry report is produced at Ext. P3. The Enquiry Officer found that, there is no evidence to hold that the first respondent had misappropriated amounts or even that the first respondent had abetted Sasidharan in the misappropriation, which offence was found to have been commissioned by the latter. The Enquiry Officer however, looked at the conduct of the first respondent, after detection of the offence and held that she was guilty of dereliction of duty. It is not clear as to, on what basis, the Enquiry Officer found such dereliction of duty on the first respondent. There is no discussion as to any evidence adduced on that aspect. Despite the fact that there could have been no evidence adduced on that aspect, since there was no charge levelled on that count; the enquiry report reveals only a presumptive finding, without any reasoning and unsupported by evidence.
The disciplinary committee of the petitioner Bank however, thought it fit to proceed against the first respondent for offence of dereliction of duty, found by the Enquiry Officer. It is trite law that the disciplinary authority can always differ from the findings of the enquiry officer and after re-appreciation of the evidence enter a finding quite contrary to that arrived at by the enquiry officer. However, the said principle cannot have any application in the present case, since Ext. P6 does not discuss any of the evidence adduced before the Enquiry Officer.
True, when concurring with the opinion of the enquiry officer, there need not necessarily be a fresh discussion, but as was noticed earlier, the charge sheet did not contain a specific charge with respect to dereliction of duty and the first respondent was not called upon to answer such charges. The charge on which the first respondent was sought to be punished, was never put to her, nor was she given an opportunity to defend it.
The Enquiry Officer merely states that the conduct of the first respondent after the detection of the offence would indicate dereliction of duty. There was no dereliction of duty found on the first respondent, even with respect to the misappropriation of funds, which was the specific charge and the incident, which was enquired into by the enquiry officer. Suffice it to say that by Ext. P6 the disciplinary committee adopted the finding of the Enquiry Officer and held that the first respondent is guilty of dereliction of duty and recommended reversion, to the post of Assistant Secretary. The charge on which the punishment was imposed was never raised against the delinquent employee nor was she given an opportunity to answer the same.
An appeal was filed before the Appellate Authority; the Committee of the Bank which consisted of nine members. A valid quorum for an administrative committee would be above 50% of the existing members. Hence, to have a minimum quorum, there ought to have been five members in the committee, which considered the appeal. The decision taken at Ext. P7, was by four members of the administrative committee. The first respondent, who challenged the decision of the managing committee, confirming the order of the disciplinary committee; before the Arbitration court, took up a preliminary objection with respect to the quorum not being satisfied.
Learned counsel appearing for the petitioner Bank, would submit that the quorum could not be satisfied only on the first respondent raising a specific contention in her appeal to the administrative committee that, neither the person, who initiated action against her nor the three members, of the disciplinary committee, should participate in the appeal proceedings. Out of the nine hence, three had to keep away from the committee, according to the learned counsel. There is no illegality apparent in convening the committee meeting, according to the petitioner, since six persons were present in the meeting. However, two of such members present, abstained from consideration of the particular appeal of the petitioner, since they were disciplinary committee members.
Ext. P7, nevertheless, does not disclose the fact of two members having abstained from the proceedings in the appeal. There is also no evidence, before the Arbitration Court, as to the proper convening of the Committee, with a valid quorum. In such circumstances, the preliminary objection of lack of jurisdiction, as found by the Arbitration Court and confirmed by the Tribunal, has to be upheld by this Court.
Normally, in such circumstances, there should be an order of remand. In the present case, the Arbitration Court and also the Tribunal have looked into the facts and this Court is also of the opinion that, at this stage, a remand would be unnecessary since the facts with respect to the enquiry and the law applicable, were examined by both the lower authorities; despite the decision in appeal being found to be without a quorum.
The Arbitration Court specifically found that there was no charge of dereliction of duty, against the first respondent. The specific charge against the first respondent was of misappropriation. The Attender, Sasidharan, was found to be guilty of the charge of misappropriation in the enquiry proceedings. The Arbitration Court rightly found that a charge of dereliction of duty, not having been levelled against the first respondent, in the course of enquiry proceedings, the Enquiry Officer has no authority to arrive at such a conclusion. The Arbitration Court also drew considerable support from the fact that, the 1st respondent was found in the enquiry to be not guilty of the only charge levelled against her.
The Arbitration Court also found that the specific charge levelled was found to be not proved in the enquiry conducted. The delinquent employee could not be deemed to have had reasonable opportunity to controvert the allegation and adduce evidence to disprove a charge not levelled against her. It is also specifically noticed in Ext. P8 that, the defendant therein, being the petitioner herein, did not adduce any oral or documentary evidence with respect to this allegation even before the Arbitration Court.
The Tribunal confirmed the findings of the Arbitration Court. Reiterating the findings of the Arbitration Court and confirming the preliminary objection as also the finding on merits; the punishment imposed, being for a charge not included in the terms of reference in the disciplinary enquiry was set aside. This Court sitting in extraordinary jurisdiction examining a concurrent finding of two fact finding authorities, would not be justified in re-appreciating the evidence to come to a different finding. There is also absolute lack of evidence to find the charge levelled against the first respondent, by the Enquiry Officer.
The Enquiry Officer could not have, in the first place, found a charge which was not levelled against the delinquent employee by the employer. The subsequent enquiry itself was on a finding or rather a direction, issued in an earlier enquiry, as against another. The charge levelled against the delinquent employee by the enquiry officer is also not supported by any evidence as is seen from the enquiry report, Ext. P3. The disciplinary committee also did not discuss any evidence with respect to dereliction of duty and merely adopted the finding of the Enquiry Officer. The petitioner Bank did not adduce any evidence with respect to the dereliction of duty found by the Enquiry Officer.
The enquiry was specifically proceeded against on an incident of unauthorised withdrawal of funds, from the account maintained in the petitioner Bank. The Enquiry Officer found dereliction of duty, after the detection of the offence which would again indicate that the same could not have been found and decided in an enquiry initiated on a different aspect. The charge of ''dereliction of duty'' found against the petitioner and for which punishment was imposed was never put to the delinquent employee nor was there any evidence led on that aspect, either in the enquiry or before the two fact finding authorities.
The charge was first raised and found by the Enquiry Officer in an enquiry with respect to a different charge. The employer never levelled the allegation found by the Enquiry Officer. The Enquiry Officer clearly went beyond the scope of her brief. The charge being found to be unsustainable, the punishment imposed has to be set aside. The first respondent would be entitled to all consequential benefits including immediate placement in the post from which she was reverted.
For all the above reasons, the orders at Exts. P8 and P9 are confirmed. The writ petition is dismissed leaving the parties to suffer their respective costs.