The Deputy General Manager (B&O) vs The Presiding Officer
2021 Latest Caselaw 6313 Mad

                                                                                  WP NO.13871 OF 2016


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 10.03.2021

                                                      CORAM

                                   THE HONOURABLE MR. JUSTICE M.GOVINDARAJ

                                             WP NO.13871 OF 2016
                                           AND WMP NO.12177 OF 2016

                     1. The Deputy General Manager (B&O),
                        Chennai Zone II,
                        State Bank of India,
                        Rajaji Salai, Chennnai – 600 001.

                     2. The Deputy General Manager,
                        (Operation & Credit), Appellate Authority,
                        State Bank of India,
                        Local Head Office,
                        Chennai – 600 006.                                        ... Petitioners

                                                           Vs.

                     1. The Presiding Officer,
                        Central Government Industrial Tribunal-cum-
                        Labour Court, Shastribhavan,
                        Chennai – 600 006.

                     2. G.Keerthivasan                                         ... Respondents

                     PRAYER: The Writ Petition has been filed under Article 226 of the
                     Constitution of India praying to issue a Writ of Certiorari, to call for the
                     records of the first respondent in I.D.No.89 of 2013 and quash its award
                     dated 16.12.2015.

                     1/12



https://www.mhc.tn.gov.in/judis/
                                                                                    WP NO.13871 OF 2016


                                   For Petitioner           :     Mr.Anand Gopalan
                                                                  For M/s.T.S.Gopalan and Co.

                                   For Respondent No.1      :     Mr.K.M.Ramesh

                                                    ORDER

Inveighing the Award passed by the Tribunal in I.D.No.89 of

2013, dated 16.12.2015, the Management has preferred the present Writ

Petition.

2.The Petitioner Management had given a charge memo to the

second respondent for committing certain irregularities and he was

discharged from the duty.

3.The gravamen of the charges are as follows:-

(i) the second respondent debited non-home SB account of one

of the account holders and credited the proceeds to his own account on 12

occasions, and said to have prepared composite vouchers and debited the

SB account of one G.Marudakasi and credited to his account and withdrawn

money subsequently,

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(ii) he debited Bank Charges account without any approval

from the sanctioning Authority on four occasions, and

(iii) he indulged in outside borrowing and tarnished the

reputation of the Bank.

4.The Enquiry Officer has held the charges proved and the

disciplinary authority imposed punishment of discharge from service, in

terms of Clause 6(d) of the Memorandum of Settlement and he was

discharged from service with superannuation benefits. The respondent

raised an industrial dispute and the Tribunal had found that the charges were

proved. However, in respect of the first charge, it is held that even by

admission of the petitioner it is only a procedural lapse and there is no

element of embezzlement involved. In other words, the Bank has not proved

the misconduct of embezzlement on the part of the employee. In respect of

second charge, it is held that even though he obtained permission from the

Bank Manager, he has debited the account without any authority. In respect

of third charge, it is held that borrowing is a personal affair of the employee

and there is no basis to frame charges against him. Based on those findings,

https://www.mhc.tn.gov.in/judis/ WP NO.13871 OF 2016

modified the punishment of discharge from service to one of reduction of

scale of pay to lesser scale by two stages and reinstatement with 25% of

backwages.

5.Inveighing the Award of the Labour Court, the learned

counsel appearing for the Petitioner Management would vehemently

contend that the Tribunal, having found that the charges are proved, should

have upheld the punishment imposed. He relied on the judgment of the

Hon'ble Supreme Court, in the case of DAMOH PANNA SAGAR RURAL

REGIONAL BANK AND ANOTHER VS. MUNNA LAL JAIN [(2005) 10

SCC 84]. The relevant portion of the judgment reads as under:-

“17. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is

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unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik (1996 (9) SCC 69), it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority.

The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.”

6.As per the above judgment, a bank officer is expected to

maintain higher standards of honesty and utmost integrity. It is not loss or

profit, but maintaining discipline is the predominant concern of the Bank

employee. Therefore, when an employee of the Bank commits misconduct

on the issue of honesty and integrity, punishment of dismissal is not too

https://www.mhc.tn.gov.in/judis/ WP NO.13871 OF 2016

harsh.

7.Likewise, the Hon'ble Supreme Court in DEPUTY

GENERAL MANAGER (APPELLATE AUTHORITY) AND OTHERS

VS. AJAI KUMAR SRIVASTAVA (2021 SCC ONLINE SC 4) has

observed that an employee of the Bank requires to maintain absolute

devotion, integrity and honesty. It requires the employee to maintain good

conduct and discipline as he deals with money of the depositors and the

customers and if it is not observed, the confidence of the public/depositors

would be impaired. Therefore, the Hon'ble Supreme Court has confirmed

the punishment of dismissal imposed by the Department by interfering with

the decision of the High Court.

8.From perusal of the materials placed before this Court, it is

seen that the second respondent employee has committed some procedural

irregularities. Admittedly, there is no complaint from the account holder as

to embezzlement or some misappropriation of money. On the other hand,

one of the Joint Account Holders submitted a letter that only on her

https://www.mhc.tn.gov.in/judis/ WP NO.13871 OF 2016

instructions, the money was withdrawn and the employee has committed

procedural irregularities and the letter marked before the Enquiry Officer

was accepted. From the above-said conduct, it is clear that there is no

element of “mens rea” on the part of the employee to commit embezzlement

or to defraud the customers or depositors. It appears that he had acted in

excess of his power taking law into his own hands.

9.Of course, it is true that the Bank employee shall maintain

utmost discipline, honesty and integrity in the discharge of his duty, but,

criminal intention is missing. Therefore, it shall construed as procedural

lapse committed by the employee. Likewise, in respect of other charges,

there are procedural lapses. For such procedural lapses, the punishment of

dismissal is too harsh. The Hon'ble Supreme Court, in UNION OF INDIA

AND ORS. VS. P.BALASUBRAHMANAYAM [CIVIL APPEAL NOS.

3592-3593 OF 2020 DATED 04.03.2021] has held that for procedural

lapse, major punishment is too harsh and minor penalty can be imposed at

the discretion of the disciplinary Authority or the Tribunal concerned.

10.But, remitting the matter back to Tribunal will put both

https://www.mhc.tn.gov.in/judis/ WP NO.13871 OF 2016

parties to the ordeal of retrial and will cause mental agony. In DAMOH

PANNA SAGAR RURAL REGIONAL BANK'S case cited supra, the

Hon'ble Supreme Court has observed that in order to shorten litigations in

exceptional cases, the Constitutional Court may interfere and impose

appropriate punishment. The relevant paragraph of the judgment reads as

follows:-

“15.To put differently unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. Further to shorten litigations, it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof.

In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed.”

11.In the instant case, disciplinary proceedings were initiated

on 16.07.2009 and the matter has not attained finality even after lapse of 12

years. In order to give quietus to this issue, this Court is of the considered

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view that the Award passed by the Tribunal has to be interfered with. The

reckless attitude of the employee, though not resulted in pecuniary loss,

indicates lack of disappointment. If such reckless person is permitted to

continue, it may result in a catastrophe. Once the employer looses

confidence in his employee, it is natural for the employer to resist

reinstatement of the employee. Therefore, the order of reinstatement by the

Tribunal is not justified. At the same time, the employee is left with only

one year of service. Therefore, he has nothing much to loose. The

punishment imposed by the Tribunal will have severe impact on the

monetary benefits of the employee. He will get 25% of the backwages in the

reduced scale of pay by two stages.

12.In order to avoid presence of the employee in the workplace

and also considering procedural lapses committed by the employee, this

Court is inclined to modify the punishment into one of compulsory

retirement with effect from the date of this order. By this decision, the

employee would not be reinstated, at the same time, he would not be

prejudiced in respect of monetary settlement.

13.Therefore, the Award passed by the Tribunal in I.D.No.89

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of 2013, dated 16.12.2015, is interfered with to the above extent by

imposing compulsory retirement to the second respondent with effect from

the date of the order of this Court i.e., on 10.03.2021. The second

respondent will not be entitled to any attendant benefits for the interregnum

period other than counting the period for the purposes of pension, gratuity

and provident fund. The Management is directed to settle all other monetary

benefits due to the petitioner within a period of twelve (12) weeks from the

date of receipt of a copy of this order.

14.With the above modifications, the Writ Petition is partly

allowed. There shall be no order as to costs. Consequently, connected

miscellaneous petition is closed.

10.03.2021 To

The Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, Shastri Bhavan, Chennai – 600 006.

https://www.mhc.tn.gov.in/judis/ WP NO.13871 OF 2016

https://www.mhc.tn.gov.in/judis/ WP NO.13871 OF 2016

M.GOVINDARAJ, J.

asi/tk

WP NO.13871 OF 2016 AND WMP NO.12177 OF 2016

10.03.2021

https://www.mhc.tn.gov.in/judis/