Madras High Court
The Management Of vs The Presiding Officer on 30 June, 2021
W.A.No.460 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 30.06.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.460 of 2013
and M.P.No.1 of 2013
The Management of
Indian Bank
37, Rajaji Salai
Chennai - 1
Rep.by its Assistant General Manager ... Appellant
-vs-
1.The Presiding Officer,
Central Government Industrial Tribunal
Cum Labour Court, Chennai-6.
2.Indian Bank Employees
Association, rep.by its
General Secretary
Old No.197, New No.250
Lingi Street, Chennai-600 001. ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent Act to set aside
the order of the learned Judge dated 28.09.2012 in W.P.No.10311 of 2008.
For Appellant : Mr.Anand Gopalan
For R1 : Labour Court
For R2 : Mr.V.Ajoykhose
1/20
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W.A.No.460 of 2013
JUDGMENT
(Order of the Court was made by V.SIVAGNANAM, J.,)
This Writ Appeal has been filed to set aside the order of the learned
Judge dated 28.09.2012 in W.P.No.10311 of 2008.
2.The fact of the case is that the appellant is the Nationalized Bank,
having its branches throughout the country, including one at Hosur. One
Mr.M.Sukumaran, joined in the service of the appellant's Bank as a Clerk on
30.03.1976. He worked at Hosur Branch from July 1989. On 05.01.2000,
since the cashier of the Bank went on leave, the said workman, attended the
work of cashier and one Mrs.Chandrika Nagarajan and Venugopal were
looking after the counter Nos.1 and 2 respectively. In the course of the day,
exchange of currency notes had taken place between the concerned
workman and Mrs.Chandrika Nagarajan and she noted down one such
exchange of five section of fifty rupees notes denominations (i.e.,
Rs.25,000/-) not returned by the concerned workman and in the top corner
of rough cash book she mentioned about the same. After closing of the
business hours, while verifying the cash balance, Mr.Arokiasamy David,
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W.A.No.460 of 2013
Assistant Manager of the Branch, found a difference of Rs.25,000/- and
Mrs.Chandrika Nagarajan also reported a shortage of Rs.25,000/- in her
cash. Further, she complained that in the course of exchange of currency
notes, the concerned workman had not returned Rs.25,000/-, which he had
taken from her and that accounted for the difference. As the shortage was in
the cash handled by Mrs.Chandrika Nagarajan, she gave a complaint that
the concerned workman had not returned Rs.25,000/- which he had taken
from her and thereby there was a shortage.
3.On 06.01.2000, the Branch Manager of the Hosur Branch reported
about the complaint of Mrs.Chandrika Nagarajan to the Zonal Office
narrating as to what had transpired on 05.01.2000. In turn, on 07.01.2000,
one Mr.Santhana Gopalakrishnan, Senior Manager of the Regional Office,
Dharmapuri, visited Hosur Branch and investigated the shortage of
Rs.25,000/- in cash reported by Mrs.Chandrika Nagarajan. On 10.01.2000,
Mr.Santhana Gopalakrishnan made his report, in which, he had mentioned
about Mrs.Chandrika Nagarajan having noted down in the rough cash book
"50x500". Therefore, he recommended that there should be a deeper probe
by Vigilance Department. Accordingly, Mr.M.Paulraj, Vigilance Officer
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visited the Hosur Branch and started investigation of the same. When he
was searching whether there was an entry of payment of Rs.25,000/-, he
found that there were two entries of which one was debiting a cheque in the
current account of K.S & Co. and the other was the payment received by the
payee of the cheque, Mr.B.M.Ramachandran. When the Vigilance Officer
visited Mr.Ramachandran and enquired him about the details of the
payment, he had told him that he was the payee of the cheque for
Rs.25,000/- which he had received from K.S. & Co., and that when he
visited the Branch at 11.30 am on 05.01.2000, he was given a token No.606
and thereafter, he handed over the token to the cashier, who, in turn,
received five section of Rs.50/-denomination currency notes from the lady
cashier of the adjacent counter.
4.In the course of investigation, it found out that on 05.01.2000, one
B.M.Ramachandran presented a cheque No.291612 for Rs.25,000/-. It
appears that he was paid Rs.25,000/- in Rs.50/- denominations ie., 500
pieces.
5.According to Mrs.Chandrika Nagarajan, the concerned workman
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W.A.No.460 of 2013
had taken five sections of Rs.50/- denominations and by retaining two of the
stitched bundles, he had paid remaining amount with three sections of loose
Rs.50/- denominations. Mr.Ramachandran also confirmed that he saw the
concerned workman collecting the amount from Mrs.Chandrika Nagarajan
for making the payment.
6.The complaint of Mrs.Chandrika Nagarajan was that out of the
amount which the concerned workman had received from her for exchange,
he had not returned Rs.25,000/-. When the concerned workman was
questioned as to how he could make the payment of Rs.25,000/- to
Ramachandran in Rs.50/- denominations (500 pieces) when he had only 413
pieces, he gave an explanation that in the morning sub staff Sivaprakasam
tendered Rs.22,000/- in fifty rupees denominations and he wanted Rs.500/-
denominations for that amount. He had collected that amount and promised
to pay the five hundred rupees denominations in due course.
7.In view of the above, on 21.01.2000, the concerned workman was
issued with a show cause notice calling for his explanation. He gave his
reply on 02.02.2000 stating that on 05.01.2000, at the specific request of
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W.A.No.460 of 2013
Mrs.Chandrika Nagarajan, exchange of rupee notes between the counters
took place and the Branch never had a register for maintaining internal
transactions and that he had not received any denominations, since he had
sufficient denominations to make the payment and he was in no way
responsible for the shortage.
8.On 16.02.2000, charge sheet was issued to the concerned workman,
charging him with the misconduct of having acted in a manner prejudicial to
the interest of the Bank. A domestic enquiry was held on the charges. After
completion of enquiry by the officials, the Enquiry Officer gave his report
on 22.12.2000. A copy of the finding of the Enquiry Officer was sent to the
concerned workman who by his letter dated 29.01.2001 submitted his
comments. On 23.03.2001, the Disciplinary Authority issued a show cause
notice proposing the punishment of dismissal for charges 2 and 3 and called
upon the concerned workman to appear for personal hearing on 12.04.2001.
Considering his representation, on 17.04.2001 the Disciplinary Authority
awarded the punishment of dismissal. On appeal by the concerned
workman, the punishment was modified from one of dismissal into
compulsory retirement.
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W.A.No.460 of 2013
9.Aggrieved against the order of compulsory retirement, the 2nd
respondent Union raised an industrial dispute before the 1st respondent in
I.D.No.423 of 2004.
10.After considering the available evidences on record and after
hearing the arguments advanced by either side, the Industrial Tribunal
passed an award dated 28.12.2006 holding that when there is no proof to
show that only fifty rupees denomination has been exchanged between the
concerned workman and Mrs.Chandrika Nagarajan, it cannot be said that
only fifty rupees denomination notes alone were exchanged and they were
not returned to Mrs.Chandrika Nagarajan and such a contention contrary
thereto is without any substance and hence directed the appellant to
reinstate the concerned workman into service with continuity of service,
back wages and other attendant benefits.
11.As against the order of the 1st respondent, the appellant has
preferred Writ Petition before this Court in W.P.No.10311 of 2008 and this
Court by its order dated 28.09.2012 dismissed the Writ Petition with a
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W.A.No.460 of 2013
direction to the appellant to pay the backwages for the period of his
dismissal till his actual date of retirement along with all terminal benefits, as
if no penalty was suffered by the concerned workman during the course of
his employment.
12.Aggrieved by the order of the learned Single Judge, the appellant
has preferred this present Writ Appeal.
13.Learned counsel for the appellant would submit that the 1st
respondent failed to give cogent reasons to differ from the conclusion of the
Enquiry Officer. Further, the learned Single Judge failed to appreciate the
fact that the 1st respondent did not give any valid reason for displaying the
finding of the Enquiry Officer. The 1st respondent without any valid reason
substituted its conclusion without assigning acceptable reason and when
two views are possible, the 1st respondent is not permitted to substitute its
own view by disbelieving the findings of the Enquiry Officer. Further, the
learned Single Judge failed to consider the false explanation averred by the
concerned workman, which was dismissed by the Enquiry Officer and also
the evidence of Ramachandran. Further, there is a failure on the part of the
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W.A.No.460 of 2013
trade Union to show any strained relationship between the concerned
workman and the complainant Mrs.Chandrika Nagarajan and accordingly
the learned counsel for the appellant further reiterated other grounds raised
in the grounds of the Writ Appeal and thus pleaded to set aside the order of
the learned Single Judge.
14.Learned counsel appearing for the 2nd respondent supported the
order of the learned Single Judge contending that the Tribunal has rightly
analysed and reappraised the evidence available on record; the Tribunal
clearly found that no evidence and no proof to show that the Rs.50/-
denomination has been exchanged between the workman and
Mrs.Chandrika Nagarajan; in the absence of any proof, based on the oral
evidence of Mrs.Chandrika Nagarajan alone, the delinquent employee
cannot be found guilty, and hence he could not be punished by imposing
compulsory retirement and that the Tribunal rightly analysed the evidence
and set aside the Enquiry Officer's finding and ordered to reinstate the
concerned workman with backwages and other attendant benefits. The
learned Single Judge also upheld the finding of the Tribunal holding that
there is no reasons to interfere with the finding of the learned Single Judge
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and thus pleaded to dismiss the Writ Appeal.
15.Heard the learned counsel for the parties and perused the records.
16.The admitted fact of the case is that the workman-
Mr.M.Sukumaran, Clerk/Shroff, joined in the service of the appellant Bank
on 30.03.1976 and he was lastly employed in Hosur Branch from July 1989.
Permanent Cashier appointed in this Bank went on leave from 05.01.2000
and thereby the workman was assigned with the work in payment counter.
At that time, Mrs.Chandrika Nagarajan was working in the receipt counter.
On 05.01.2000, Mrs.Chandrika Nagarajan had reported shortage of
Rs.25,000/-. According to her, it was given to the delinquent clerk, but, the
concerned clerk denied the said allegation.
17.Admittedly, there was a shortage of Rs.25,000/- in the counter
handled by Mrs.Chandrika Nagarajan therefore, she gave a complaint before
the Regional Manager alleging that although she gave Rs.4.75 Lakhs to the
concerned workman, he returned only Rs.4.5 Lakhs and he did not return
the balance amount of Rs.25,000/-. Upon receipt of the complaint from
Mrs.Chandrika Nagarajan the appellant conducted disciplinary enquiry and
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based on the findings holding him guilty, the delinquent was imposed with
the order of compulsory retirement.
18.We have carefully considered the Enquiry Officer's report as well
as the impugned order dated 28.12.2006 in I.D.No.423 of 2004. On perusal
of the Enquiry report, it is found that the Enquiry Officer relied upon the
evidence of Mrs.Chandrika Nagarajan and one Ramachandran. While
analysing the evidence, the Enquiry Officer mentioned about the MEX-3
and it runs as follows:-
"letter dated 05.01.2000 from Mrs.Chandrika
Nagarajan, addressed to Regional Manager, Dharmapuri
narrates the happening on 05.01.2000 and informs that she
had given 5 sections of Rs.50/- denominations around 11 O'
Clock to CSE., and he said he did not receive the same."
19.From the above, it is seen that according to the allegation of
Mrs.Chandrika Nagarajan she had given 5 sections of Rs.50/- denomination
to the concerned workman around 11 O' Clock. However, in the letter
addressed to the Vigilance Officer by Mr.Ramachandran it would show that
he reached the appellant Bank only at 11.30 am to encash the cheque for an
amount of Rs.25,000/-. He received token No.606 and when his turn came
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W.A.No.460 of 2013
up, he went to the counter and received Rs.25,000/-, besides he had
witnessed the collection of Rs.25,000/- from the said Mrs.Chandrika
Nagarajan. Letter dated 13.01.2000 sent by the Ramachandran also runs as
follows:-
"To
The Vigilance Officer
Indian Bank
Zonal Office
Kovai.
Sir,
I came to the Indian Bank, Hosur Branch on 05.01.2000
Wednesday at 11.30 am., to encash the cheque for Rs.25,000/-. They
gave me a token No.606.
After some time, the cashier called me by mentioning the token
No. I handed the same. Immediately he stand up and received a sum
of Rs.25,000/- from a near woman cashier and asked me to take the
same as it is.
Before I took the same, asked me to wait and removed two cash
bundles from them, instead of that he has given me two sealed
bundles and asked me to take the cash.
After I count the cash and returned. This is the incident
happened before me."
Both the above mentioned two facts play a vital question, whether to rely on
the evidence of Mrs.Chandrika Nagarajan or Mr.Ramachandran. But the
Enquiry Officer relying upon the evidence of Mrs.Chandrika Nagarajan,
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found him guilty of the charges.
20.This apart, we have perused the report of the Enquiry Officer,
wherein it is mentioned that the appellant Bank is not having Internal
Transactions Register to transfact funds between the bank staffs. Therefore,
the contention of Mrs.Chandrika Nagarajan that on 05.01.2000, she had
given five sections of Rs.50/- denominations to the concerned workman
around 11 O' Clock would go to show that there may not be an entry in the
Internal Transaction Register, since it has not been opened in the appellant
Bank. Further, such a huge amount, during the year 2000, given to another
counter workman without any entry in any register or acknowledgment for
receiving the amount is not legally acceptable one. As a matter of fact, when
Mrs.Chandrika Nagarajan and delinquent employee were exchanging
Rs.25,000/-, after finding that the delinquent employee was not having
sufficient money to return the balance amount of Rs.25,000/-, as per Rule,
Mrs.Chandrika Nagaran ought to have entered the same in the concerned
Register and ought to have obtained endorsement from the delinquent
employee. But, that requirement has not been fulfilled by Mrs.Chandrika
Nagarajan. Secondly, both of them are highly experienced officials,
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W.A.No.460 of 2013
therefore, they cannot plea ignorance of existing practice to register the said
exchange. Besides, there is no evidence to show that Mrs.Chandrika
Nagarajan had given five sections of Rs.50/- denominations to the
concerned workman on 05.01.2000. In the absence of any material to show
that the concerned workman had received a sum of Rs.25,000/- from
Mrs.Chandrika Nagarajan he could not be held responsible for shortage of
Rs.25,000/- in the counter of Mrs.Chandrika Nagarajan.
21.The Tribunal analysed the evidences, step by step, adduced before
the Enquiry Officer and observed its findings as follows:-
"10.
....................Because, in this case, the complainant
namely Mrs.Chandrika Nagarajan, while she was
examined as MW5 has stated that she has no record to
show how much amount has been exchanged between her
and the concerned employee and she also stated that after
tallying her receipts denomination wise, she was making
out that Rs.4,75,000/- was given to the concerned
employee in exchange of which he had given Rs.4.5 Lakhs
of Rs.100/- stitched notes from which she can confirm
that she has received only Rs.4.5 Lakhs cash for Rs.4.75
Lakhs and she further stated that about the notation on
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W.A.No.460 of 2013
the top of the rough cash book, when they were making
exchange, in some occasions, the concerned employee
gave the cash immediately and in some cases it was
delayed and in that case, it was written on the top of the
register and for that she had mentioned the notation.
Further, she has stated that she noted this 50x5 on the top
of the register and when she was asking the concerned
employee that money was not given back to her for that
transaction, for which she had put up a circle around that
note in front of the concerned employee. Under such
circumstances, it cannot be said that only Rs.50/-
denomination was exchanged and it was not returned to
her. Though the Vigilance Officer has enquired
Mr.B.M.Ramachandran, subsequently and has come to
the conclusion that only Rs.25,000/- of fifty rupees
denomination was given to him and which money was
received by the concerned employee from Mrs.Chandrika
Nagarajan is only on surmise. Because, even though the
chart was prepared for denomination wise on 05.01.2000
for the counter of concerned employee, no chart was
prepared with regard to Mrs.Chandrika Nagarajan.
Further when the exchange of rupees independently to the
counters was not ruled out, how the Vigilance Inspector
and also Senior Manager had come to the conclusion that
the evidence given by Mr.Sivaprakash cannot be believed.
Therefore, from the documents produced in this case, I
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W.A.No.460 of 2013
come to a conclusion that even the approach of the
respondent/Bank that only fifty rupees denomination was
given on exchange and it was not returned by the
concerned employee is without any basis and they have
built up the case only on the allegations made by
Mrs.Chandrika Nagarajan, and the bank has come to the
conclusion that fifty rupees denomination alone was
exchanged between the concerned employee and
Mrs.Chandrika Nagarajan and approached this case with
perversity. When there is no proof with regard to
exchange of notes and when there is no proof how much
amount has been exchanged between the concerned
employee and Mrs.Chandrika Nagarajan, it cannot be
said that only fifty rupees denomination alone was
exchanged and that too Rs.25,000/- was given by her for
exchange is without any basis and they have approached
the customers with a pre-concluded ideas and they have
obtained the evidence. For that they have relied on the
denomination chart, which cannot be a true one without
any proof that no exchange independently cannot be done
in these circumstances. Therefore, I find the theory of
fifty rupees denomination alone was exchanged between
the concerned employee and Mrs.Chandrika Nagarajan,
is a false one and the respondent/Bank approached the
case with a pre-concluded theory. Further, when
Mr.Sivaprakash, a co-employee deposed before the
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W.A.No.460 of 2013
Enquiry Officer that he has exchanged fifty rupees
denomination in exchange of Rs.500/- notes from the
concerned employee, it was rejected by the Enquiry
Officer on the ground that when he asked for exchange of
currency, the concerned employee informed that he was
not having the same at that time, which according to the
Enquiry Officer is a false one because when he alleged to
have asked for exchange at 10.30 am., the Enquiry
Officer has come to the conclusion that the concerned
employee must have five hundred rupees denomination
and therefore, his evidence cannot be accepted is without
any substance because, learned counsel for the petitioner
has clearly stated that at that time when Mr.Sivaprakash
approached for exchange of notes, there was no loose
five hundred rupee notes and he has got only stitched
bundles and therefore, he asked Mr.Sivaprakash to wait
for some time and whenever he receives denomination he
will pay the same, which can be a possible answer for the
same. But, on the other hand, the Enquiry Officer has
totally rejected the evidence of Mr.Sivaprakash on the
ground that both the concerned employee and
Mr.Sivaprakash are in one union and Mrs.Chandrika
Nagarajan, was in rival union and therefore, his evidence
is an interested one and he said it is an afterthought. But,
even at the time of giving explanation, the concerned
employee has given the explanation that Mr.Sivaprakash
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W.A.No.460 of 2013
approached him for exchange of ntoes and he has made
the same. Therefore, it cannot be said as an afterthought.
Similarly, Mr.B.M.Ramachandran has stated that he has
given a statement after the receipt of money which cannot
be a true statement because shortage of money was found
only at 4.30 pm., and no one has approached the said
B.M.Ramachandran at that time and only the Vigilance
Officer after a week's time has approached
Mr.Ramachandran and obtained the evidence. When
such is the fact, it cannot be said that
Mr.B.M.Ramachandran has given a true statement with
regard to exchange and the reason given by the Enquiry
Officer for accepting the evidence of
Mr.B.M.Ramachandran and rejecting the evidence of
Mr.Sivaprakash is without any substance. Under such
circumstances, the finding given by the Enquiry Officer is
a perverse one and without any legal evidence."
22.Agreeing with the above reasonings, learned Single Judge also
observed that there is no direct evidence available against the workman,
hence upheld the findings of the Tribunal and also finding that the workman
had reached the age of superannuation declined the prayer for reinstatement.
He further directed the appellant to pay the backwages for the period of his
dismissal till his actual age of retirement and also all terminal benefits, as if
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W.A.No.460 of 2013
no penalty was suffered by him during the course of his employment. We
also find no error, therefore, we find no reason to interfere with the order of
the learned Single Judge dated 28.09.2012 in W.P.No.10311 of 2008 and
accordingly we confirm the same.
23.In the result, the Writ Appeal stands dismissed. No costs.
Consequently connected miscellaneous petition is closed.
(T.R.J.,) (V.S.G.J.,)
30.06.2021
Jer
To
The Presiding Officer,
Central Government Industrial Tribunal
Cum Labour Court, Chennai-6.
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W.A.No.460 of 2013
T.RAJA, J.
and
V.SIVAGNANAM, J.
Jer
W.A.No.460 of 2013
and M.P.No.1 of 2013
https://www.mhc.tn.gov.in/judis/
W.A.No.460 of 2013
30.06.2021
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