Canara Bank vs Sri S A Ramesh Babu
2022 Latest Caselaw 3670 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF MARCH, 2022

                         PRESENT

        THE HON'BLE MRS.JUSTICE S.SUJATHA

                          AND

THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR


       WRIT PETITION No.51177 of 2019 (L-TER)

BETWEEN:
CANARA BANK
(ERSTWHILE SYNDICATE BANK)
A NATIONALISED BANK
CONSTITUTED UNDER THE PROVISIONS
OF THE CENTRAL ACT 5 OF 1970
HAVING ITS REGISTERED OFFICE AT
MANIPAL, UDUPI DISTRICT
REPRESENTED BY ITS
GENERAL MANAGER.                             ...PETITIONER

        (BY SRI. RADHESH PRABHU.K., ADVOCATE)

AND:
SRI.S.A RAMESH BABU
NO.60, 10TH CROSS
I MAIN ROAD, BOVIPALYA
MAHALAKSHMIPURAM
BENGALURU - 560 086.                     ...RESPONDENT

             (BY SRI G.M ANAND., ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA THIS W.P. FILED
PRAYING TO QUASH THE AWARD DATED 25.06.2019 PASSED
BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-
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LABOUR COURT, BENGALURU, IN C.R.NO.21 OF 2001
PRODUCED AS ANNX-A, WHILE AWARDING EXEMPLARY
COSTS.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, S. SUJATHA, J., MADE THE
FOLLOWING:

                         ORDER

The petitioner - bank has challenged the legality

and correctness of the award dated 25.06.2019 passed

by the Central Government Industrial Tribunal-cum-

Labour Court in C.R.No.21/2001 [Annexure-A] whereby

the reference made by the Central Government

exercising the powers conferred by Clause [d] of Sub-

Section [1] and Sub-Section [2A] of Section 10 of

Industrial Disputes Act, 1957 ['Act' for short] has been

accepted setting aside the order of dismissal passed

against the respondent - employee, further directing the

petitioner - bank to reinstate the employee into service

if he approaches the bank within 90 days of the award

in the Gazette, awarding back-wages of 25%.

2. The respondent appointed as a Clerk-cum-

Typist on 15.12.1983 in the petitioner-bank was

imposed with the penalty of reduction of basic pay by

two stages for a period of three years pursuant to the

charge sheet issued and the enquiry held against him

for the misconduct of issuing cheques without

maintaining the sufficient balance in the account.

Subsequently, he was suspended on 16.12.1998

pursuant to the charges levelled against him for the

misconduct of engaging in trade/business outside the

scope of his duties and issuing the cheques without

maintaining the sufficient balance. On the charges

levelled against him, enquiry was conducted which

culminated in an order of the disciplinary authority

dated 24.11.1999 dismissing the respondent.

      3.     Being     aggrieved,        the   respondent     has

preferred    appeal     before     the     Appellate     Authority

unsuccessfully. Further, reference made to the Tribunal

came to be rejected, against which W.P.No.33953/2004

was filed by the respondent. The Writ Court vide order

dated 07.12.2009 setting aside the award dated

27.05.2004 passed by the Tribunal, remitted the matter

to the Tribunal to re-consider the matter in the light of

the decisions of the Hon'ble Apex Court, taking into

consideration the evidence and also findings and to

pass an appropriate order. Pursuant to which, the

impugned award dated 25.06.2019 is passed.

4. Learned counsel for the petitioner-bank

submitted that the Tribunal has not complied with the

directions issued by the Writ Court in

W.P.No.33953/2004 while remitting the matter. The

evidence on record and the findings recorded by the

Enquiry Officer/Disciplinary Authority/Appellate

Authority has not been properly appreciated by the

Tribunal while modifying the quantum of punishment in

exercise of the powers under Section 11A of the Act.

Learned counsel argued that the respondent was

indulged in money lending business and has neither

appeared before the enquiry officer at the first instance

nor before the Tribunal on remand. Even after passing

of the order by the Tribunal on 25.06.2019, the

respondent has not approached the bank seeking for

any reinstatement. The respondent was gainfully

employed and was engaged in the money lending

business, the same was duly proved. Hence, the order of

the Tribunal in modifying the dismissal order with back-

wages of 25% is unsustainable. The Tribunal further

erred in holding that for the purpose of calculating the

terminal benefits on superannuation, the respondent

shall be treated as in continuous service from the date

of his dismissal till the date of superannuation. Thus,

the learned counsel argued that the judgments of the

Hon'ble Apex Court rendered in the context of Section

11A of the Act has not at all considered by the Tribunal,

as directed by this Court in the earlier round.

5. Learned counsel for the respondent

supporting the impugned award submitted that the

respondent was not at all indulged in any money lending

business as alleged by the bank but in maintaining the

health of his parents and for paying maintenance to his

wife, he used to collect money from his colleagues and

were returned subsequently. These transactions spread

over for a period of four and half years from 1994 to 1998,

was satisfactorily explained by the respondent before the

enquiring authority but the same has been brushed aside

by the authorities. Out of 144 cheques issued to his

colleagues who were the staff of the same bank, no

investigation was made, as regards 28 cheques the

respondent was already punished. Again including the

same in the second round establishes the perfunctory

nature of the order passed by the authorities. Having

considered these vital aspects, the Tribunal has rightly

modified the order of dismissal order. It was further

submitted that the respondent had no permanent address

and was keeping on changing his residence. As such, no

notice was served on him by the Tribunal in the present

proceedings resulting in passing of the ex parte award.

6. Thus, it was submitted that non-appearance

of the respondent before the Tribunal after remand was

for the bonafide reasons and not due to negligence.

Notwithstanding the earlier penalty order passed

relating to 28 cheques, again punishing him for 144

cheques including those 28 cheques is wholly illegal. On

these grounds, prayed for dismissal of the Writ Petition.

7. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the material on record.

8. The factual aspects of the case are not in

dispute. It is also not in dispute that the respondent has

not approached the petitioner-bank within 90 days of

publication of the award in the Gazette seeking for

reinstatement as directed by the Tribunal. Thus, it is

evident that the respondent was not interested in

joining the service even after the directions issued by

the Tribunal. The jurisdiction of the Tribunal in

invoking Section 11A of the Act is not under challenge.

The only grievance of the petitioner-bank is that the

same is not in compliance with the directions issued by

this Court in W.P.No.33953/2004. The Tribunal though

has considered the findings of the enquiry/disciplinary

authorities, has failed to apply the law enunciated by

this Court in various judgments referred to, by this

Court in the earlier round. As observed by the Tribunal,

even assuming the order of dismissal is too harsh and

shocks the conscience of the Court, the conduct of the

respondent in not approaching the bank within the time

frame fixed by the Tribunal seeking for reinstatement

also plays a significant role. The main charge levelled

against the respondent that he was engaged in business

ought to have been rebutted substantially and further it

was obligatory on his part to establish that he was not

gainfully employed even after passing of the order of

dismissal. The conduct of the respondent in not

appearing before the Tribunal after remand of the case

by this Court and not even approaching the bank

seeking reinstatement pursuant to the order passed by

the Tribunal would establish that he was not interested

in reinstatement. However, in our considered view,

order of dismissal is too harsh and not proportionate to

the misconduct proved. In the given circumstances, we

are of the considered view that the order passed by the

Tribunal deserves modification.

9. For the reasons stated in the preceding

paragraphs, we are of the considered opinion that the

ends of justice and equity would be met, in modifying

the order of dismissal as the order of compulsory

retirement setting aside the order of the Tribunal.

10. Accordingly, we pass the following:

ORDER

i] Writ Petition is partly allowed.

ii] The order of the CGIT dated 25.06.2019

passed in C.R.No.21/2001 [Annexure-A]

impugned herein is set aside.

iii] The order of punishment of dismissal passed

against the respondent by the petitioner-

bank is modified to compulsory retirement.

iv] The respondent shall be entitled to all the

benefits to which he is entitled to, in terms

of the order of compulsory retirement.

      v]     No order as to costs.


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                                     JUDGE


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                                     JUDGE
NC.