V.S. Thushara Bindhu vs State of Kerala

K. Vinod Chandran, J.—The petitioner, a Senior Clerk of the 3rd respondent-Bank, challenges the imposition of punishment, of barring of two increments with cumulative effect, which is confirmed by the Labour Court on a dispute raised as to the justifiability of such punishment.

The petitioner has three contentions to challenge the proceedings and punishment. The first contention is that based on a complaint by the petitioner, an enquiry was conducted, in which she was imposed with a punishment of warning, which was overturned by the appellate authority and on the very same allegations, the instant proceedings were carried out. The next challenge is with respect of the authority of the President or rather the lack of it to impose a punishment as per Rule 198 of the Kerala Co-operative Societies Rules, 1969. One another ground is that, the officer against whom the petitioner raised a complaint, the Secretary of the 3rd respondent-Bank, has filed a report, based on which the disciplinary proceedings have been initiated.

The facts necessarily have to be noticed; and the complaint referred to by the petitioner is produced at Exhibit P1. That complaint was against the Secretary, who is said to have abused the petitioner on seeking a day''s leave and alleging that on earlier occasions also the petitioner has faced such behaviour from the Secretary. The complaint was enquired into by one of the Directors, in which enquiry the petitioner and the Secretary, against whom allegations were raised, were examined. Other employees of the respondent-Bank were also examined. It was found that the allegations against the Secretary was unfounded and was ill-motivated. It was noticed that the petitioner''s attempt was only to get over the specific directions issued by the Secretary to the petitioner, to ensure compliance of the directions issued by the senior officers. The President having considered the report of the Director and having recorded the aforesaid observations, proceeded to warn the petitioner, by Exhibit P2. The petitioner immediately replied to the same by Exhibit P3, accepting the punishment; but, however, pointing out the illegality in the punishment having been imposed on her own complaint. The President then issued Exhibit P4 communication rejecting Exhibit P3 communication of the petitioner. In such circumstance, the petitioner appealed against the order of the President, produced at Exhibit P4, which was overturned by the Committee in Exhibit P6.

There can be no objection to Exhibit P6, because the facts stated above would reveal an unnecessary exercise resorted to by the President. Admittedly the enquiry was into the allegations levelled against the Secretary, by the petitioner. The allegations were found to be not true. The matter should have rested there. But, however, the President thought it fit to impose a punishment of warning on the petitioner, who had filed the complaint. If the allegations levelled against the Secretary were found to be untrue and they were in the nature of serious disciplinary laches, then necessarily an enquiry ought to have been conducted against the petitioner. In any event, Exhibit P6 was not challenged by the Bank.

Subsequently, charge-memo, produced at Exhibit P7; which was dated nil, but is endorsed to have been received on 26.02.2014, was issued against the petitioner. A reply was submitted at Exhibit P8 and not satisfied with it, an enquiry was ordered. An Advocate was appointed as the Enquiry Officer. The Enquiry Officer issued notice to the delinquent employee. The Bank examined 8 witnesses, as MW1 to MW8, on behalf of the management and marked Exhibits M1 to M12 documents. The delinquent employee was examined for the defence and documents Exhibits D1 to D5 were marked.

The charges levelled against the delinquent employee were (i) being absent during duty hours and talking in an insubordinate manner when asked about the same; (ii) being unauthorisedly absent contrary to regulations and preferring leave applications subsequently; (iii) negligence when in charge of the Branch Manager''s post; and (iv) not complying with the instructions of the Secretary and behaving in an insubordinate manner when directed to comply with such instructions and making baseless allegations against the Secretary, causing disrepute to the Secretary as also the Bank. In the enquiry, the Enquiry Officer found the delinquent employee to be guilty of three charges; except No. (ii), which was relating to unauthorised absence and covering up the same with subsequent leave applications.

The Enquiry Report having been submitted to the Disciplinary Authority by Exhibit P10 covering letter, the same was forwarded to the delinquent employee, calling for explanation as to the findings in the enquiry. A copy of the Enquiry Report is also seen enclosed along with the covering letter. The petitioner submitted explanation as per Exhibit P11, which was found to be unsatisfactory and an order communicating the proposed punishment of withholding of two increments with cumulative effect, as per Exhibit P11. The delinquent having been granted an opportunity, the President of the Bank, by Exhibit P13 confirmed the proposal and imposed the punishment of withholding of two yearly increments with cumulative effect.

An appeal was preferred as per Exhibit P14 before the Appellate Authority, viz., the Committee, which confirmed the punishment as per Exhibit P16. A dispute raised consequent to the punishment was considered by the Labour Court by Exhibits P17 and P18. The preliminary order, Exhibit P17, passed by the Labour Court upholding the enquiry and Exhibit P18 final order confirming the punishment are assailed herein.

The question of sustainability of the enquiry and the compliance of principles of natural justice was considered elaborately by the Labour Court in Exhibit P17 order. The main challenge against the disciplinary action, at the preliminary stage, were that the charges were vague, ambiguous and unspecific and that the findings of the Enquiry Officer with respect to charges (i), (iii) and (iv) were perverse and based on assumptions and surmises. The delinquent employee also raised a contention that the enquiry was vitiated for reason of her not having been permitted to engage an advocate to conduct the defence.

The Labour Court rightly found that the management having not engaged an advocate as Presenting Officer, there was no right conferred on the delinquent employee to be represented by an advocate in defence of the charges levelled against her. The Labour Court found that the cross-examination of witnesses was after providing sufficient opportunity and sufficient interval of time after chief-examination. The charges were found to be specific and the Enquiry Officer was found to have meticulously analysed the oral testimony of each and every witness. The enquiry having been found to be not vitiated by any defect or irregularity in its conduct and the delinquent employee having been afforded every opportunity to put forth her defence, the Labour Court upheld the enquiry as having been properly conducted; eminently following the principles of natural justice. The other aspects were left to be considered in the final adjudication. This Court does not find any infirmity in the preliminary order and looking at the enquiry report also, there is nothing on record to vitiate the enquiry.

The punishment as such was upheld by Exhibit P18 award in the industrial dispute. The issue referred was whether the punishment imposed was justifiable. The issues raised for consideration were whether the charges were identical to that on which the delinquent officer was punished earlier and as to the legality and propriety of the punishment imposed. The Labour Court found that the charges were not at all vague. The Labour Court found that by no stretch of imagination can the charges be said to be general in nature or ambiguous. The charge-sheet itself highlighted the instances upon which charges were levelled, which made the charges very clear and specific. The contention raised on behalf of the delinquent employee that the charges were vague was found against the delinquent employee.

The charge with respect to absence during duty hours and the allegation of insubordination, were with respect to specific instances. The said instances very clearly came out in the evidence of the witnesses examined by the management; being the Secretary, Branch Manager and other employees present at that time. The negligence in discharging the duties was also specifically with respect to 07.07.2013, on which date the delinquent employee held the charge of the Branch Manager. The evidence discussed by the Enquiry Officer clearly found the allegations to have been proved. The 4th and last charge was with respect to the complaint given by the delinquent employee to the officers of the Co-operative Department and to the office holders of the Union, wherein derogatory statements about the Secretary were said to have been made which were alleged to be baseless and untrue. The said charge was also found to have been proved. It is for the aforesaid charges that the petitioner was imposed with the punishment of barring two yearly increments with cumulative effect.

As to the 4th charge being identical to that enquired into earlier, the Labour Court found that such a contention cannot be sustained on the facts. As noticed above, the delinquent employee had initially complained against the conduct of the Secretary. An enquiry was conducted and it was found that the allegations were baseless. The person who conducted the enquiry was a Managing Committee member, who had, on finding the allegations to be baseless, also suggested that the complainant-employee be warned against such conduct. The President had, hence, while intimating the complainant about the findings in the enquiry, also issued a warning as is indicated in Exhibit P2. This was accepted by the delinquent employee, by Exhibit P3. But, later since her acceptance itself was rejected by the President, an appeal was filed before the Committee. The Committee, in appeal, overturned the warning.

The enquiry conducted was on the complaint of the petitioner against the Secretary and as was stated earlier. If at all, the petitioner was found to have made baseless allegations which, when made against a superior officer, would take the form of misconduct; then necessarily the petitioner ought to have been issued with a charge-sheet and enquiry conducted in which the delinquent is given fair opportunity to put forth her case. This is what was done in the instant disciplinary proceedings. The Appellate Authority''s earlier order at Exhibit P6 states that the warning issued has been withdrawn only since the petitioner had questioned the manner in which the punishment was imposed on an enquiry into the complaint filed by her. This was the procedural defect which was sought to be rectified by the subsequent enquiry. Hence, it could not be said that it was on identical charges that the petitioner has been proceeded against. True, the earlier warning was issued on the charge of raising baseless allegations; but, however, without issuing a charge memo on that regard and without conducting a domestic enquiry into that aspect. The punishment was set at naught on procedural infirmity. In the charge-sheet, which culminated in the punishment assailed herein, the said charge has been specifically raised and in the proceedings pursuant to such enquiry, the petitioner was given opportunity to put forth her case. In such circumstance, the allegation raised on the ground of the second enquiry being vitiated for the reason of the petitioner having been punished earlier for identical charge is found to be untenable. It is also to be noticed that, that was not the only allegation in the enquiry which is the subject matter of the instant proceedings.

The petitioner relies on Rule 198 of the KCS Rules, to contend that the President had no authority to impose such punishment and it is the Secretary who has the power to impose such punishment. The petitioner has been imposed with the punishment of withholding of increment with cumulative effect, which falls under clause (c) of sub-rue (1) of Rule 198. The authority competent to impose penalties under clauses (a) to (c) on employees holding post higher than that of Senior Clerk/Senior Assistant, 1st Grade Assistant/equivalent other employees, is conferred under sub-rule (3) of Rule 198 on the President and on the Secretary as against all other employees. However, it is to be noticed that the complaint of the petitioner itself was against the Secretary and the insubordination alleged in the charge sheet was also inter alia against the Secretary. The Secretary was one of the key witnesses in the domestic enquiry proceedings. Hence, definitely the Secretary could not have acted as the disciplinary authority, since that would have invited an allegation of bias. Presumably, it is to avoid such allegation that the President, who is competent to impose the other penalties, under clauses (d) to (h) of sub-rule (1) of Rule 198, thought it fit to act as the disciplinary authority in the instant case.

Such action cannot be found fault with; especially in the context of any disciplinary action being frustrated on the employee raising allegations against the person who is conferred with the power under the Rules to impose punishment on an employee. In this context, it is also to be noticed that one of the specific grounds urged in challenge of the proceedings is that the report, leading to the issuance of charge sheet, was of the Secretary against whom allegations were made. When baseless allegations are made against an officer, who has supervisory control over another and the said action is levelled as a misconduct against that other, definitely a report should be called for from the superior officer against whom allegations are made. In the present case, on facts, this Court does not find any infirmity in the President having imposed the punishment or in the Secretary having filed a report against the allegations made against the Secretary.

The Labour Court has also considered the question of interference on the punishment and has held that there is no reason why an interference be made, considering the gravity of the charges proved and the punishment imposed. There is absolutely no unreasonableness in the Labour Court refusing to exercise its discretion; nor would it be proper for the Labour Court or this Court to interfere with such punishment, when the enquiry is found to be a valid exercise in which the charges were found to have been proved. Neither the Labour Court nor this Court would venture to lightly interfere with the punishment imposed by the management, which has a large amount of discretionary authority in deciding upon the punishment to be imposed on its employees. Unless found perverse or grossly unreasonable, neither the Labour Court nor this Court would superimpose its opinion as to what the punishment should be; over that of the management.

The writ petition, in the aforesaid circumstances, is found to be devoid of merit and the same is dismissed. Parties are left to suffer their respective costs.