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Judgment
Vinod K. Sharma, J.—The Petitioner had approached this Court, for issuance of a Writ, in the nature of Certiorari, to quash the order dated 26.09.2008 passed by the Appellate Authority, dismissing his Appeal against the order of dismissal.
The Petitioner joined the services of the Respondent bank on 21.02.1977 as Apprentice Trainee. He was confirmed as Clerk in 1978. The Petitioner was granted regular promotion, and finally rose to the level of Senior Manager in the year 1999.
While being posted at Madurai Main Branch, the Petitioner was placed under suspension on 05.04.2002. The charges levelled against the Petitioner reads as under:
You failed to discharge your duties with devotion and diligence and thereby failed to take all necessary steps to ensure and protect the interest of the bank in violation of Regulation 3(1) of the Karur Vysya Bank Officer Employees'' (Conduct) Regulations.
You failed to discharge your duties with utmost integrity 3 and honest and thereby acted in a manner unbecoming of a Bank Officer in violation of Regulation 3(1) of the Karur Vysya Bank Officer Employees'' (Conduct) Regulations.
You failed to act in your best judgment in the performance of your official duties in violation of Regulation 3(3) of the Karur Vysya Bank Officer Employees'' (Conduct) Regulations.
The second Charge Memo dated 22.01.2003 was issued with the following charges:
You failed to discharge your duties with devotion and diligence and thereby failed to take all necessary steps to ensure and protect the interest of the bank in violation of Regulation 3(1) of the Karur Vysya Bank Officer Employees'' (Conduct) Regulations.
You failed to discharge your duties with utmost integrity and honesty and thereby acted in a manner unbecoming of a Bank Officer in violation of Regulation 3(1) of the Karur Vysya Bank Officer Employees'' (Conduct) Regulations.
You failed to act in your best judgment in the performance of your official duties in violation of Regulation 3(3) of the Karur Vysya Bank Officer Employees'' (Conduct) Regulations.
Before the Enquiry Officer, the Management led evidence, and 4 thereafter, the Petitioner also led evidence in support of his defence.
It is pertinent to mention here, that the Petitioner was issued two separate charge memos, and two different enquiries were held. In both the Enquiries, the Petitioner was held guilty of the charges.
The competent Authority, after giving an opportunity to the Petitioner, agreed with the findings of the Enquiry Officer, and holding that the charges are very serious, ordered his dismissal, on account of both charge memos. Dismissal orders were passed on the same date.
The Petitioner preferred an Appeal against the order of dismissal. The Appellate Authority, concurred with the competent authority, and dismissed the Appeal.
The Petitioner, thereafter, preferred a Review. Before the Review Petition could be decided, the Petitioner invoked the provisions of Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 by preferring the Appeal before the prescribed Authority i.e., the Deputy Commissioner, vide the impugned order, the Appellate Authority dismissed the Appeal.
The operative part of the order of the Appellate Authority reads as under:
On perusal of the evidence of the Appellant and the documents filed on both sides, the Appellant admitted himself in his cross-examination that the Ex.R.2 was written by him and in the said letter he accepted that the property pledged by M/s. Usha Agencies was registered on 10.01.2002 in the name of his brother-in-law Mr. Ramakrishnan since his brother-in-law arranged for One Time Settlement. The Appellant intentionally involved to make loss to the bank since he arranged the Bank to accept OTS. On the date of registration, the loan amount was not cleared. Further, he admitted since he was the Power of Attorney holder of his brother-in-law, he signed the cash chalan on 16.01.2002 and handed over the title deeds to the party on 16.01.2002. Further, the Ex.R.26 and 27 show that a total amount of Rs. 24,50,000/-was remitted by him in the bank and signed in the chalan in the "remitter column". In the arguments, the Appellant contended that the Ex.R.2 was obtained by coercion by the management which is not acceptable. The admissions given by the Appellant himself prove the charges levelled against him are proved. There is No. infirmity either in the conduct of the enquiry or in the findings of the enquiry officer.
With regard to the second charge sheet issued to the Appellant it was for the misappropriation made to M/s. Kimuni Associates, M/s. Kamala Traders, M/s. U.K.Wines, M/s. Charles Wines, M/s. Mangaleswari Traders, M/s. Gurunathan Stores, M/s. Angu Stores, M/s. Eswari Stores and M/s. Tamil Nadu Auto Centre. To the above charge sheet, in the reply statement given by the Appellant he has stated that "I do agree that exceeding have been done as reported in the charge sheet". Hence, the Appellant do agree for the misconducts done by him. The respondent has stated tha t with regard to the first and second charge sheet, total loss suffered due to the appellant''s act is Rs.29.19 lakhs
Moreover while going through the enquiry proceedings dated 17.10.2002, the charge sheeted officer (CSO) stated in Page 3 "If our bank feels that the property will fetch more value, I undertake to convince my brother-in-law to sell the property to bank for the same sale consideration together with the expenses incurred by my brother-in-law while purchasing the property.
In the second charge sheeted enquiry (Ex.R.88) in the proceedings in Page No. 10 the CSO to I.A "I do agree that the exceedings have been done in many of the accounts reported in the charge sheet due to concentration on the business development, I was unable to apply for ratification then and there. I really regret very much for my inability for not applying ratification.
Both the statements of the Appellant in the enquiry proceedings show, that he has given deliberate confession statement, and he agreed about his misappropriation of bank''s fund.
In view of the above, as per Section 41(2) of the Tamil Nadu Shops and Establishments Act, I find with the reasonable cause the employer has dispensed with the services of the Appellant and there is satisfactory evidence recorded at an enquiry held for the purpose. Hence the appeal filed by Mr. v. Muthusubramanian, Appellant is dismissed. I pass order accordingly.
The Petitioner challenged the impugned order firstly, on the ground, that before the Appellate Authority, an application made, for summoning the additional evidence to prove the fact, that the charge against the Petitioner could not be sustained, as One Time Settlement scheme was accepted, only after it was approved by the competent authority. The Petitioner was only the recommending authority and not the final authority. The Application was entertained and kept pending for disposal along with the Appeal.
However, the Appellate Authority failed to take any decision in the application for additional evidence.
The contention of the learned Counsel for the Petitioner is, that the impugned order deserves to be set aside on this short ground alone. In support of this contention, the learned Counsel for the Petitioner placed reliance on the judgment of the Hon''ble Supreme Court in UNITED PLANTERS ASSOCIATION of SOUTHERN INDIA v. K.G. SANGAMESWARAN and Anr. (1997 (2) L.L. N. 73) wherein the Supreme Court held as under:
From a perusal of the provisions of Section 41 of Tamil Nadu Shops and Establishments Act and Rule 9 of Tamil Nadu Shops and Establishment Rules, 1948, it will be seen that the jurisdiction of the appellate authority to record evidence and to come to its own conclusion on the questions involved in the appeal is very wide. Even if the evidence is recorded in the domestic enquiry and the order of dismissal is passed thereafter, it will still be open to the appellate authority to record, if need be, such evidence as may be produced by the parties. Conversely, also if the domestic enquiry is ex parte or No. evidence was recorded during those proceedings, the appellate authority would still be justified in taking additional evidence to enable it to come to its own conclusions on the articles of charges framed against the delinquent officer.
The Appellate Authority under the Shops Act has jurisdiction to take evidence at the appellate stage and to come to its own conclusion about the guilt of the delinquent employee.
In the instant case, the appellate authority has interfered with the order of discharge / dismissal of the Respondent on the ground only that a domestic enquiry was not held into the imputations made against the Respondent. It did not decide the application of the Appellant for recording evidence. The appellate authority, therefore, committed grave error in the exercise of its jurisdiction by not disposing of the application of the Appellant for additional evidence and proceeding to dispose of the appeal on the ground that the order of dismissal having been passed without holding a domestic enquiry was bad in law.
The next contention of the learned Counsel for the Petitioner, is that the impugned order suffers from non-application of mind, in as much as, the Appellate Authority has proceeded on the presumption, that the Petitioner was guilty of misappropriation of funds, whereas there was No. charge of misappropriation. The order of the Appellate Authority, therefore, is perverse on the face of it.
Learned Senior Counsel on behalf of Respondents / Bank contends, that No. fault can be found with the impugned order, in as much as, the Petitioner had No. right to maintain an application, for additional evidence, as admittedly, the Petitioner was given full opportunity by the Enquiry Officer, to lead the evidence. It was open to the Petitioner, to call for any evidence in defence, which he failed to do so, therefore, it was not open to the Petitioner, to seek the permission for additional evidence, at appellate stage.
It is also the contention of the learned Senior Counsel, on behalf of the Bank, that the reading of the charge memos show, that there was a specific charge of dishonesty and integrity, which were very serious in nature, which stood proved.
The charges levelled and proved against the Petitioner clearly proved, that the employer was fully justified, in "loss of confidence".
Therefore, on the principle of loss of confidence in employee, interference is not called for by this Court in exercise of extra ordinary equitable jurisdiction.
It is also the contention of the learned Senior Counsel, that in the allegations, in support of the charges of misconduct all the allegations were duly disclosed to the Petitioner, therefore, it cannot be said, that the Petitioner was unaware of the charge, proved against the Petitioner.
On consideration, I find force in the contentions of the learned Counsel for the Petitioner.
It is not for this Court, at this stage, to say whether the charges against the Petitioner were so serious to terminate the services, on the principle of "loss of confidence", as it was neither the charge nor so pleaded before the Appellate Authority to justify the order of dismissal. The Appellate Authority has also not upheld the dismissal order on plea of "loss of confidence".
It is also not for this Court at this stage, to see whether on the proved charges, the order of dismissal is justified or not, as this Court is only concerned with as to whether the order of the Appellate Authority can be sustained in law or not.
It is well settled law, that it is open to the delinquent to lead additional evidence before the Appellate Authority, by making out a case, justifying such prayer. If an application is moved for additional evidence, the Appellate Authority is under the statutory obligation to decide the application either to allowing or rejecting it, but it cannot ignore the application and proceed with the matter, as has been done in the present case.
The order of the Appellate Authority otherwise also is arbitrary and shows non-application of mind, as one of the reasons for upholding the order of dismissal is that the Petitioner was guilty of misappropriation, whereas there is No. such charge levelled against the Petitioner.
The charge against the Petitioner, in fact, was of dishonesty and doubtful integrity in performance of his duties and misleading the higher authorities in coming to certain decisions. No. finding in this regard has been recorded by the Appellate Court.
The order, therefore, can be safely said to be arbitrary and outcome of non-application of mind, thus, hit by Article 14 of the Constitution of India.
For the reasons stated hereinabove, this writ petition is allowed. The impugned order of the Appellate Authority, is set aside, and the case is remitted back to the Appellate Authority, for deciding the Appeal afresh, after disposing of
Vinod K. Sharma, J.
Dpn/-the application filed by the Petitioner, for leading additional evidence in accordance with law.
Keeping in view the fact, that the matter relates to 2002, it would be appreciated, if the Appeal is disposed of expeditiously, preferably within six months of date of receipt of a certified copy of this order.