Madras High Court
T.Kathirvel vs The Regional Manager on 6 July, 2021
W.A.No.2108 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
W.A.No.2108 of 2018
T.Kathirvel .. Appellant
Vs
1.The Regional Manager
(Disciplinary Authority)
State Bank of India,
Region-IV, Regional Business Office,
Respondents, Administrative Office,
No.21, McDonalds Road,
Tiruchirappalli - 620 001.
2.Deputy General Manager,
(Business and Operations)
(Appellate Authority)
State Bank of India,
Disciplinary Proceedings Cell,
Administrative Office,
Tiruchirappalli Zone,
No.21 McDonalds Road,
Tiruchirappalli - 620 001.
3.The Presiding Officer,
Central Government Industrial Tribunal
cum Labour Court,
Shasthri Bhavan, Haddows Road,
Chennai - 600 006. .. Respondents
Page 1 of 10
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W.A.No.2108 of 2018
Appeal filed under Clause 15 of Letters Patent against the order
dated 14.03.2018 made in W.P.No.5675 of 2018.
For Appellant : Mr.K.M.Ramesh
For Respondents : Mr.S.Ravindran, Sr.Counsel
for Mr.S.Bazeer Ahamed for R1
R3 - Court
R2 - No appearance
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
The appellant before us was initially appointed as a part time
sweeper with half wages in the year 1993. The post was confirmed in
the year 1994. Thereafter, he was appointed as Messenger with three-
fourth wages.
2. An order was passed against the appellant pending enquiry
suspending him on 12.02.2013. He was charged for the mis-conduct
on the ground that he had passed the plain debit vouchers used for
the purpose of withdrawing cash from the Savings Bank Account
without the signatures of the account holders and made cash payment
to another staff member of the same Branch by name Madhan (since
deceased). The following is the charge framed against the appellant:
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W.A.No.2108 of 2018
1.Shri.T.Kathirvel, Assistant has passed plain debit
vouchers used for the purpose of withdrawing cash from
Savings Bank Accounts of KCC borrowers without the
signature of the account holders therein and made cash
payment to another staff member of the same branch.
3. Pursuant to the enquiry conducted and upon finding that the
charge against the appellant is proved, the order of dismissal was
passed by the Disciplinary Authority on 28.09.2013. On the appeal
filed by the appellant, the Appellate Authority, while confirming the
conclusion arrived at by the Disciplinary Authority was pleased to
modify the punishment from that of dismissal to that of removal. The
following is the operative portion of the order passed in the appeal
dated 23.03.3013:
"The Appellate Authority's observations:
I have gone through the Enquiry report, the
Disciplinary Authority's view and relooked into the
matter in its entirety; the CSE passed the vouchers
without ensuing the discharge from the customers and
did not notice the debit voucher was signed by
Shri.L.Madhan and not by the customer.
He is suffering from heart ailment and thyroid problem.
Considering his earlier service records, his medical
ailment, his family condition, and the employee's 16-
years of service rendered to this institution, depriving
him the retirement benefits is not commensurate with
the charges leveled against the CSE and place his
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W.A.No.2108 of 2018
family members in starvation.
Therefore I, as Appellate Authority, am of the view that
the penaly of "Dismissal without Notice" imposed by
the Disciplinary Authority on 28.09.2013 may be
modified to "Removal from service" purely on
humanitarian grounds.
Therefore, I modify the penalty as "Be removed from
service with superannuation benefits i.e., Pension
and/Provident Fund and Gratuity as would be due
otherwise under the Rules or Regulations prevailing at
the relevant time and without disqualification from
future employment" in terms of Clause 6(b) of the
Memorandum of Settlement dated 10.04.2002 treating
the period of suspension as suspension only for all its
intents and purposes.
4. The appellant raised a dispute in I.D.No.36 of 2016 under
Section 2 (A) (3) of the Industrial Disputes Act. The Central
Government Industrial Tribunal dismissed the claim petition both on
the ground of merit and on the ground of proportionality.
5. A writ petition was filed before the learned single Judge
challenging the award passed by the Tribunal. The learned single Judge
concurred with the view expressed by the Tribunal and thus upheld the
award passed. As against the said order passed, the present appeal
has been filed.
6. Mr.K.M.Ramesh, learned counsel appearing for the appellant,
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W.A.No.2108 of 2018
placing reliance upon the enquiry proceedings, submitted that it is a
case of no evidence. It is for the department to substantiate the
charges. The evidence would reveal that the appellant was performing
very well being a topper in gold loan and received gold medal. He
received diamond achiever award from the Chairman for the gold loan.
The aforesaid dereliction, even assuming is true, must have happened
due to pressure of work. It is not as if there is a loss to the respondent
Bank. The appellate authority having exercised the power in reducing
the punishment, the Tribunal ought to have exercised the second limb
of Section 11 A of the Industrial Disputes Act with respect to the
quantum of punishment.
7.Mr.S.Ravindran, learned senior counsel appearing for the first
respondent submitted that the disciplinary authority, appellate
authority, the Tribunal and the learned single Judge have given
categorical findings on merit on the basis of the materials available
before them. Therefore, the power of review is not required to be
exercised under Article 226 of The Constitution of India which is both
extraordinary and discretionary in nature. The charge as proved is
serious in nature. The appellate authority has shown leniency and
therefore, no further indulgence is required. Even assuming the
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W.A.No.2108 of 2018
appellant has given voluntary retirement on the date of suspension or
even at the time of passing of the order of dismissal by the disciplinary
authority, he would not be entitled for the pension as still there will be
about five months wanting provided the suspension period is also
taken as one of service. The Tribunal has given cogent reasons for not
exercising the power under Section 11A of the Act. Therefore, there is
no need to interfere with the order passed. In support of this
contention, learned senior counsel for the first respondent placed
reliance on the following decisions:
(i)State Bank of Bikaner and Jaipur Vs. Nemi Chand
Nalwaya ((2011) 4 SCC 584)
(ii)Lucknow K.Gramin Bank (Now Allahabad, U.P.
Gramin Bank) and Another Vs. Rajendra Singh (2013 (5)
LLN 100 (SC))
8.We have perused the report of the enquiry officer, the decision
rendered by the disciplinary authority and as confirmed by the
appellate authority. The Tribunal, in our view, passed a correct award
with respect to the merit. It once again went into the entire evidence
and held that the charge as framed is proved. The Tribunal examined
the documents marked along with the oral evidence of the witnesses.
The primary facts are not disputed by the appellant and in fact, there
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W.A.No.2108 of 2018
is tacit admission in the cross examination.
9.In such view of the matter, we do not wish to embark an
enquiry at the appellate stage especially when the Court of fist
instance viz., the Tribunal has considered the relevant materials for
coming to this conclusion. When such a conclusion is arrived, the same
was not expected to be reapprised by this Court. The learned single
Judge has also rightly dismissed the writ petition on merit.
10.We come to the next issue, which is on the exercise of power
under Section 11A of the Act by the Tribunal insofar as the
proportionality is concerned. We have already recorded the charge
against the appellant. It is not as if the appellant has caused a loss nor
there is an element of wilfulness involved. The charge mainly states
about the dereliction and negligence on the part of the appellant.
Perhaps, that is the reason why even the appellate authority has
modified the punishment. We have further recorded the fact that the
appellant's service otherwise was very praiseworthy. He had achieved
distinction and was accordingly awarded. If the suspension period is
taken into consideration he would have put in more than 18 years of
service. He is a person who has come to the ranks having deserved
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W.A.No.2108 of 2018
the promotion by the dint of hard work. Therefore, for a single
negligent work, denying the appellant the benefit of pension would be
too harsh in our considered view. The appellant has got two more
years to go. In such view of the matter, we are inclined to modify the
award passed to the extent that the appellant is deemed to have
completed 20 years of service only for the purpose of enabling him to
get the benefit of pension.
11.Though the learned senior counsel appearing for the first
respondent made reliance upon two decisions of the Apex Court, we do
not find that they are applicable to the case on hand. In State Bank of
Bikaner and Jaipur Vs. Nemi Chand Nalwaya ((2011) 4 SCC 584), the
facts are different. It is not as if this Court is ordering reinstatement.
Similarly, the other judgment relied upon in Lucknow K.Gramin Bank
(Now Allahabad, U.P. Gramin Bank) and Another Vs. Rajendra Singh
(2013 (5) LLN 100 (SC)) also does not apply to the case on hand.
Even in the said judgment, reliance made by the learned senior
counsel on para 16d may not have an application to the case on hand
as there is no need for remitting the matter since we are dealing with
the exercise of power under Section 11A of the Act by the Tribunal.
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W.A.No.2108 of 2018
12.In such view of the matter, the writ appeal stands allowed in
part. Accordingly, the award of the Tribunal stands modified to the
extent that the appellant is entitled for pension on the ground that he
deemed to have completed 20 years of service. No costs.
(M.M.S., J.) (R.N.M., J.)
06.07.2021
Index:Yes/No
mmi/ssm
To
1.The Regional Manager
(Disciplinary Authority)
State Bank of India,
Region-IV, Regional Business Office,
Respondents, Administrative Office,
No.21, McDonalds Road,
Tiruchirappalli - 620 001.
2.Deputy General Manager,
(Business and Operations)
(Appellate Authority)
State Bank of India,
Disciplinary Proceedings Cell,
Administrative Office, Tiruchirappalli Zone,
No.21 McDonalds Road,
Tiruchirappalli - 620 001.
3.The Presiding Officer,
Central Government Industrial Tribunal
cum Labour Court,
Shasthri Bhavan, Haddows Road,
Chennai - 600 006.
M.M.SUNDRESH, J.
and
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W.A.No.2108 of 2018
R.N.MANJULA,J.
mmi
W.A.No.2108 of 2018
06.07.2021
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