Madras High Court
Assistant General Manager (Admn) vs The Presiding Officer on 19 April, 2022
WP.NOS.28078 OF 2014 & 28280 OF 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19 / 04 / 2022
CORAM:
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
WP NOS.28078 OF 2014 AND 28280 OF 2015
AND CONNECTED MISCELLANEOUS PETITIONS
WP NO.28078 / 2014
Assistant General Manager (Admn)
Disciplinary Authority
State Bank of India
Disciplinary Proceedings Cell
Network 2, Administrative Unit,
Kurinji Complex, State Bank Road,
Coimbatore - 641 018. ... Petitioner
Vs.
1.The Presiding Officer
Central Government Industrial Tribunal
Labour Court, Chennai.
2.G.Mathan ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorari, calling for the records of the 1st
respondent in ID No.80 of 2012 and quash its award dated 21.05.2014.
For Petitioner : Mr.S.Ravindran, Senior Counsel
For Respondent-2 : Mr.Balan Haridas
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WP NO.28280 / 2015
G.Mathan ... Petitioner
Vs.
1.The Presiding Officer
Central Government Industrial Tribunal
Labour Court
Chennai.
2.Assistant General Manager (Admn)
Disciplinary Authority
State Bank of India
Disciplinary Proceedings Cell
Network 2, Administrative Unit,
Kurinji Complex, State Bank Road,
Coimbatore - 641 018. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus, calling for the
concerned records from the 1st respondent in ID No.80 of 2012 in so far as
denying 50% of the back wages, continuity of service and other attendant
benefits and consequently direct the respondent to pay the full backwages,
continuity of service and other attendant benefits to the petitioner along with
interest at the rate of 18% per annum.
For Petitioner : Mr.Balan Haridas
For Respondent-2 : Mr.S.Ravindran
Senior Counsel
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COMMON ORDER
Challenging the Award passed in ID No.80 of 2012 dated
21.05.2014 on the file of Central Government Industrial Tribunal, Labour
Court, Chennai, the above writ petitions have been preferred by the
Management/Bank as well as the workman.
2.The petitioner in WP No.28078 of 2014 is the
Management/Bank and the petitioner in WP No.28280 of 2015 is the
workman.
3.The workman joined the Bank as Gardener. While he was
working as General Attendant in Kadathur Branch of the Bank, in the year
2007, he was issued with a show cause notice on the allegation that he forged
the signature of one Rajan having Savings Bank Account in their Branch and
withdrew the amount to the tune of Rs.41,000/- from the Savings Bank
Account of the said Rajan during the period between 27.05.2005 and
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31.10.2005. Having not satisfied with his explanation, a charge memo dated
03.10.2008 was issued by the Bank. After elaborate enquiry, the workman
was given a copy of the enquiry report and opportunity to file his objections.
On the basis of the enquiry report, the Disciplinary Authority imposed the
punishment of removal from service with superannuation benefits. The
appeal filed by the workman against the order of the Disciplinary Authority
was also dismissed. But, in the criminal case instituted against the workman,
he was acquitted of the criminal charges on 09.03.2011. Thereafter, the
workman raised an Industrial Dispute on the ground that the enquiry
conducted against him was unfair and he was found guilty of the charges
only on the basis of the report of the Forensic expert alone. The punishment
imposed is grossly disproportionate to the charges and since he was acquitted
of the criminal charges, the punishment order shall be set aside and he shall
be reinstated in service, with backwages, continuity of service and all
attendant benefits.
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4.The Management resisted the contentions and let in oral and
documentary evidence. The Tribunal had gone through the evidence and
found that it is not sufficient to prove the guilty of the delinquent employee,
particularly, the evidence of P.W.6, an expert from the Forensic Department
has stated that the handwritings of the delinquent employee in the withdrawal
slips tallies with the specimen handwriting and also held that there is no
reason to reject the opinion given by P.W.6. However, non-examination of
the account holder and withdrawal of money from his account was
established through him and the findings of the Enquiry Officer relying on
the Forensic Expert cannot be relied on fully since the delinquent employee
was acquitted from the same set of charges in the criminal cases, it was held
that the imposition of punishment is not correct. Relying on a judgment of
this Court in CHINNADURAI VS. INSPECTOR GENERAL OF
REGISTRATION, CHENNAI [2012 (2) LLN 543] and judgment of the
Hon'ble Supreme Court in PAUL ANTONY VS. BHARAT GOLDMINES
LTD., [1999 (3) SCC 679] that the criminal cases and the departmental
proceedings are based on identical set of facts and the findings of the Enquiry
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Officer vindicate that the charges framed against the delinquent was not
proved and the delinquent having been acquitted in the criminal case by a
judicial pronouncement, it would be unjust, unfair and rather oppressive to
allow the findings recorded at the departmental proceedings to stand. On
these grounds, the punishment order was set aside and reinstatement of the
petitioner with 50% backwages was ordered. Challenging the same, the
present writ petitions are filed.
5.Heard the submissions made on either side and perused the
materials available on record.
6.The learned counsel for the Bank / Management relied on the
following judgments of the Hon'ble Supreme Court, in support of his
submission:
(i) MANAGEMENT OF BHARAT HEAVY
ELECTRICALS LTD. VS. M.MANI AND OTHERS [2018 (1) SCC 285]
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"19.Similarly, in our considered view, the Labour
Court failed to see that the criminal proceedings and
departmental proceedings are two separate proceedings in
law. One is initiated by the State against the delinquent
employees in criminal court and other i.e. departmental
enquiry which is initiated by the employer under the
Labour/Service Laws/Rules, against the delinquent
employees.
20.The Labour Court should have seen that the
dismissal order of the respondents was not based on the
criminal court's judgment and it could not be so for the
reason that it was a case of acquittal. It was, however,
based on domestic enquiry, which the employer had every
right to conduct independently of the criminal case.
21.This Court has consistently held that in a case
where the enquiry has been held independently of the
criminal proceedings, acquittal in criminal court is of no
avail. It is held that even if a person stood acquitted by the
criminal court, domestic enquiry can still be held--the reason
being that the standard of proof required in a domestic
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enquiry and that in criminal case are altogether different. In
a criminal case, standard of proof required is beyond
reasonable doubt while in a domestic enquiry, it is the
preponderance of probabilities. (See Karnataka SRTC v.
M.G. Vittal Rao [Karnataka SRTC v. M.G.Vittal Rao,
(2012) 1 SCC 442 : (2012) 1 SCC (L&S) 171] )"
(ii) STATE BANK OF INDIA VS. TARUN KUMAR
BANERJEE AND OTHERS [2000 (2) LLJ 1373]
"........placed heavy reliance on non-examination of
complainant, non-production of money, non-production of
so-called confessional statements and non-production of any
evidence which may have been available. But as far as the
evidence tendered by the two witnesses is concerned who
actually saw the incident having taken place in the manner
referred to earlier, the charge of misconduct against the first
respondent stood proved to the hilt and we fail to appreciate
as to how the Tribunal could have taken any other view.
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A customer of the Bank need not be involved in a
domestic enquiry conducted as such a course would not be
conducive to proper Banker customer relationship and,
therefore, would not be in the interest of the Bank. Further,
when money was secured a prudent banker would deposit
the same in the account of the customer complaining of loss
of money and, therefore, non-production of money also
would not be of much materiality. When in the course of the
domestic enquiry no reliance was placed on the so-called
confessional statement made by the first respondent, then
non-production of the same is also of no significance. Thus,
in our opinion, these circumstances are irrelevant and the
Tribunal could not have placed reliance on the same to reach
the conclusion it did and, therefore, the learned single Judge
was justified in interfering with the same. In the writ
appeal the learned Judges on the Division Bench reiterated
the view expressed by the Tribunal which we have found to
be fallacious.
At this stage, it is necessary to notice one argument
that was urged on behalf of the first respondent, namely,
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that in the course of the order dismissing the first
respondent from service it is noticed as follows :
"In summing up after going through the issue raised
by Shri Banerjee in detail, I am of opinion that a domestic
enquiry like ours does not give any scope for producing all
evidences whether having direct bearing in the case or not as
is being done in a Court."
It is submitted that even if evidence is withheld, the
conclusion of the inquiry officer would be correct is a
perverse approach. We do not think so. What is stated
therein is that when sufficient evidence was produced to
conclude one way or the other, the evidence not produced
will not be of any significance unless there was such
evidence which was withheld would have tilted the evidence
adduced in the course of domestic enquiry. No such evidence
is forthcoming in this case. Therefore, this argument deserves
to be rejected."
(iii) DEPUTY INSPECTOR GENERAL OF POLICE AND
ANOTHER VS. S.SAMUTHIRAM [2013 (1) SCC 598]
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"23. As we have already indicated, in the absence of
any provision in the service rule for reinstatement, if an
employee is honourably acquitted by a Criminal Court, no
right is conferred on the employee to claim any benefit
including reinstatement. Reason is that the standard of
proof required for holding a person guilty by a criminal court
and the enquiry conducted by way of disciplinary proceeding
is entirely different. In a criminal case, the onus of
establishing the guilt of the accused is on the prosecution
and if it fails to establish the guilt beyond reasonable doubt,
the accused is assumed to be innocent. It is settled law that
the strict burden of proof required to establish guilt in a
criminal court is not required in a disciplinary proceedings
and preponderance of probabilities is sufficient. There may
be cases where a person is acquitted for technical reasons or
the prosecution giving up other witnesses since few of the
other witnesses turned hostile etc. In the case on hand the
prosecution did not take steps to examine many of the
crucial witnesses on the ground that the complainant and
his wife turned hostile. The court, therefore, acquitted the
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accused giving the benefit of doubt. We are not prepared to
say in the instant case, the respondent was honourably
acquitted by the criminal court and even if it is so, he is not
entitled to claim reinstatement since the Tamil Nadu Service
Rules do not provide so. "
(iv) GENERAL MANAGER, ELECTRICAL RENGALI
HYDRO ELECTRIC PROJECT, ORISSA AND OTHERS VS.
GIRIDHARI SAHU AND OTHERS [2019 (10) SCC 695]
"24. A Constitution Bench of this Court, in Syed
Yakoob v. K.S. Radhakrishnan and another, has spoken
about the scope of Writ of Certiorari in the following terms:
“7. The question about the limits of the jurisdiction of
High Courts in issuing a writ of certiorari under Article
226 has been frequently considered by this Court and the
true legal position in that behalf is no longer in doubt. A
writ of certiorari can be issued for correcting errors of
jurisdiction committed by inferior courts or tribunals: these
are cases where orders are passed by inferior courts or
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tribunals without jurisdiction, or in excess of it, or as a
result of failure to exercise jurisdiction."
A writ can similarly be issued where in exercise of
jurisdiction conferred on it, the court or tribunal acts
illegally or improperly, as for instance, it decides a question
without giving an opportunity to be heard to the party
affected by the order, or 5 AIR 1964 SC 477 where the
procedure adopted in dealing with the dispute is opposed to
principles of natural justice. There is, however, no doubt
that the jurisdiction to issue a writ of certiorari is a
supervisory jurisdiction and the court exercising it is not
entitled to act as an appellate court. This limitation
necessarily means that findings of fact reached by the
inferior court or tribunal as a result of the appreciation of
evidence cannot be reopened or questioned in writ
proceedings. An error of law which is apparent on the face
of the record can be corrected by a writ, but not an error of
fact, however grave it may appear to be. In regard to a
finding of fact recorded by the tribunal, a writ of certiorari
can be issued if it is shown that in recording the said
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finding, the tribunal had erroneously refused to admit
admissible and material evidence, or had erroneously
admitted inadmissible evidence which has influenced the
impugned finding. Similarly, if a finding of fact is based on
no evidence, that would be regarded as an error of law
which can be corrected by a writ of certiorari. In dealing
with this category of cases, however, we must always bear
in mind that a finding of fact recorded by the tribunal
cannot be challenged in proceedings for a writ of certiorari
on the ground that the relevant and material evidence
adduced before the tribunal was insufficient or inadequate
to sustain the impugned finding. The adequacy or
sufficiency of evidence led on a point and the inference of
fact to be drawn from the said finding are within the
exclusive jurisdiction of the tribunal, and the said points
cannot be agitated before a writ court. It is within these
limits that the jurisdiction conferred on the High Courts
under Article 226 to issue a writ of certiorari can be
legitimately exercised (vide Hari Vishnu Kamath v. Ahmad
Ishaque [AIR 1955 SC 233] , Nagendra Nath Bora v.
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Commr. of Hills Division and Appeals [AIR 1958 SC 398]
and Kaushalya Devi v. Bachittar Singh [AIR 1960 SC
1168]).”
(Emphasis supplied)
(v) EMPLOYERS IN RELATION TO MANAGEMENT
OF WEST BOKARO COLLIERY OF M/S.TISCO. LTD., VS.
CONCERNED WORKMAN, RAM PRAVESH SINGH [2008 (2) LLN
42]
"15. This Court in Divisional Controller, KSRTC
(NWKRTC) vs. A.T. Mane [(2005) 3 SCC 254], held that: -
From the above it is clear that once a domestic
tribunal based on evidence comes to a particular conclusion,
normally it is not open to the appellate tribunals and courts
to substitute their subjective opinion in the place of the one
arrived at by the domestic tribunal. In the present case, there
is evidence of the inspector who checked the bus which
establishes the misconduct of the respondent. The domestic
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tribunal accepted that evidence and found the respondent
guilty. But the courts below misdirected themselves in
insisting on the evidence of the ticketless passengers to reject
the said finding which, in our opinion, as held by this Court
in the case of Rattan Singh [(1977) 2 SCC 491] is not a
condition precedent. We may herein note that the judgment
of this Court in Rattan Singh has since been followed by
this Court in Devendra Swamy vs. Karnataka SRTC [(2002)
9 SCC 644]
16. In U.P. State Road Transport Corporation vs.
Vinod Kumar [2007 (13) SCALE 690], this Court again
observed that in the absence of a challenge to the legality or
fairness of the domestic enquiry, the Court should be
reluctant to either interfere with the finding recorded by the
Enquiry Officer or the punishment awarded by the
Punishing Authority.
17. After going through the order of the Industrial
Tribunal, we are of the opinion that the Tribunal has
interfered with the findings recorded by the domestic
Tribunal as if it was the Appellate Tribunal. There was
evidence present on record regarding indecent, riotous and
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disorderly behaviour of the respondent towards his superiors.
The Management witnesses who were present at the scene of
occurrence have unequivocally deposed about the
misbehaviour of the respondent towards his superiors. Their
evidence has been discarded by the Tribunal by observing
that in the absence of independent evidence, the statements
of the workmen who were present at the scene of occurrence
could not be believed. Industrial Tribunal fell in error in
discarding the evidence produced by the Management only
because the independent witnesses were not produced. It is
nobodys case that the independent witnesses were available
at the scene of occurrence and the Management had failed to
produce them. It is possible that at the time of occurrence,
only the workers of the Management and the persons who
were trying to put up the construction unauthorizedly were
the persons present and no independent evidence was
available. Statements of the fellow workmen had
established the misconduct of the respondent. Enquiry
Officer accepted the testimony of the witnesses produced by
the Management who had clearly implicated the respondent.
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It was a legitimate conclusion which could be arrived at and
it would not be open to the Industrial Tribunal to substitute
the said opinion by its own opinion.
18.Findings recorded by the Tribunal that the
workman had left the place of duty at 12.25 P.M. and,
therefore, could not have reached the place of occurrence at
12.30 P.M. after collecting his other associates, is not based
on any evidence. The case of the Management is that the
respondent had left his place of duty at 12.05 P.M. and
reached the place of occurrence at 12.30 P.M. after
collecting his fellow workmen. There was sufficient time for
the workman to reach the place of occurrence within half an
hour as the distance between the place of duty and the place
of occurrence was only 1 k.m. The duty of the respondent-
workman was upto 1.00 Oclock. Even if, it is accepted that
he left the place of duty at 12.25 P.M., then also, he left the
place of duty during his duty hours.
19. Tribunal has set aside the report of the Enquiry
Officer and the order of dismissal passed by the Punishing
Authority by observing that the charges against the
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respondent were not proved beyond reasonable doubt. It has
repeatedly been held by this Court that the acquittal in a
criminal case would not operate as a bar for drawing up of a
disciplinary proceeding against a delinquent. It is well
settled principle of law that yardstick and standard of proof
in a criminal case is different from the one in disciplinary
proceedings. While the standard of proof in a criminal case
is proof beyond all reasonable doubt, the standard of proof
in a departmental proceeding is preponderance of
probabilities.
20. Learned Counsel for the respondent cited two
cases The Workmen of M/s. Firestone Tyre & Rubber Co.
of India (Pvt.) Ltd. vs. The Management & Ors. [(1973) 1
SCC 813] and South Indian Cashew Factories
Workers Union vs. Kerala State Cashew Development
Corpn. Ltd.& Ors. [(2006) 5 SCC 201], to contend that the
Labour Court in exercise of its jurisdiction under Section
11A could have come to a different conclusion. There is no
quarrel with this proposition of law. The Labour Court
could have awarded lesser punishment in the given facts and
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circumstances of the case. In a case where two views are
possible on the evidence on record, then the Industrial
Tribunal should be very slow in coming to a conclusion other
than the one arrived at by the domestic Tribunal by
substituting its opinion in place of the opinion of the
domestic Tribunal.
21. Labour Court fell into the factual as well as legal
error in setting aside the findings recorded by the domestic
Tribunal. Learned Single Judge as well as the Division
Bench have simply affirmed the findings recorded by the
Tribunal."
(vi) J.D.JAIN VS. MANAGEMENT OF STATE BANK OF
INDIA AND OTHERS [1982 (1) SCC 143]
"7.In an application for a Writ of Certiorari
under Article 226 of the Constitution for quashing an award
of an Industrial Tribunal, the jurisdiction of the High Court
is limited. It can quash the award, inter alia, when the
Tribunal has committed an error of law apparent on the face
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of the record or when the finding of facts of the Tribunal is
perverse. In the case before us, according to the Tribunal, as
Kansal was not examined, the evidence before it was hearsay
and as such on the basis thereof the appellant could not be
legally found guilty.
....
10.The next question is, is the evidence in the domestic
enquiry really hearsay, as held by the Tribunal ?
The word 'hearsay' is used in various senses. Some
times it means whatever a person is heard to say; some times
it means whatever a person declares on information given by
someone else. (See Stephen on Law of Evidence).
The Privy Council it the case of Subramaniam v/s.
Public Prosecutor, observed: "Evidence of a statement made
to a witness who is not himself called as a witness may or
may not be hearsay. It is hearsay and inadmissible when the
object of the evidence is to establish the truth of that is
contained in the statement. lt is not hearsay and is admissible
when it is proposed to establish by the evidence, not the truth
of the statement but the fact that it was made. The fact that
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it was made quite apart from its truth, is frequently relevant
in considering the mental state and conduct thereafter of the
witness or some other persons in whose presence these
statements are made."
11. In the instant case, the alleged misconduct of the
appellant was that he forged documents, withdrew Rs.
1,500. 1,000 in excess of the amount he was authorised to do
and misappropriated the excess amount of Rs. 1,000. With
regard to the fact whether the appellant manipulated the
documents, withdrew excess amount and misappropriated it,
there is, of course, no direct evidence of any eye witness
except the appellant's 'confession' referred to above. The
evidence on which reliance has been taken by the respondent
is the confession and circumstantial evidence, namely, the
authority letter containing the admitted interpolations by the
appellant in his own handwriting in different ink, and the
addition of the digit "I" before 500. The evidence of Kansal
would have been primary and material, if the fact in issue
were whether Kansal authorised the appellant to make the
alterations in the authority letter. But Kansal's complaint
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was to the contrary. For the purpose of a departmental
enquiry complaint certainly not frivolous, but substantiated
by circumstantial evidence, is enough. What the respondent
sought to establish in the domestic enquiry was that Kansal
had made a verbal complaint with regard to the withdrawal
of excess money by the appellant in presence of the four
witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar,
aforesaid, against his advice. On the complaint of Kansal, the
evidence of these four witnesses is direct as the complaint is
said to have been made by Kansal in their presence and
hearing; it is therefore, not hearsay. As the respondent has
succeeded in proving that a come plaint was made by Kansal
on the evidence of the above-named four witnesses, the
respondent has succeeded. No rule of law enjoins that
complaint has to be in writing as insisted by the Tribunal."
(vii) SHASHI BHUSHAN PRASAD VS. INSPECTOR
GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE AND
OTHERS [2019 (7) SCC 797]
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"19. We are in full agreement with the exposition of
law laid down by this Court and it is fairly well settled that
two proceedings criminal and departmental are entirely
different. They operate in different fields and have different
objectives. Whereas the object of criminal trial is to inflict
appropriate punishment on an offender, the purpose of
enquiry proceedings is to deal with the delinquent
departmentally and to impose penalty in accordance with
the service Rules. The degree of proof which is necessary to
order a conviction is different from the degree of proof
necessary to record the commission of delinquency. Even the
rule relating to appreciation of evidence in the two
proceedings is also not similar. In criminal law, burden of
proof is on the prosecution and unless the prosecution is able
to prove the guilt of the accused beyond reasonable doubt, he
cannot be convicted by a Court of law whereas in the
departmental enquiry, penalty can be imposed on the
delinquent on a finding recorded on the basis of
‘preponderance of probability’. Acquittal by the Court of
competent jurisdiction in a judicial proceeding does not ipso
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facto absolve the delinquent from the liability under the
disciplinary jurisdiction of the authority. This what has
been considered by the High Court in the impugned
judgment in detail and needs no interference by this Court.
20. The judgment in M. Paul Anthony case (supra) on
which the learned counsel for the appellant has placed
reliance was a case where a question arose for consideration
as to whether the departmental proceedings and proceedings
in a criminal case on the basis of same sets of facts and
evidence can be continued simultaneously and this Court
answered in para 22 as under:
“22.The conclusions which are deducible from various
decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a
criminal case can proceed simultaneously as there is no bar
in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal
case are based on identical and similar set of facts and the
charge in the criminal case against the delinquent employee
is of a grave nature which involves complicated questions of
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law and fact, it would be desirable to stay the departmental
proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case
is grave and whether complicated questions of fact and law
are involved in that case, will depend upon the nature of
offence, the nature of the case launched against the
employee on the basis of evidence and material collected
against him during investigation or as reflected in the charge
sheet.
(iv) The factors mentioned at (ii) and (iii) above
cannot be considered in isolation to stay the departmental
proceedings but due regard has to be given to the fact that
the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its
disposal is being unduly delayed, the departmental
proceedings, even if they were stayed on account of the
pendency of the criminal case, can be resumed and proceeded
with so as to conclude them at an early date, so that if the
employee is found not guilty his honour may be vindicated
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and in case he is found guilty, the administration may get
rid of him at the earliest.”
21. It may not be of assistance to the appellant in the
instant case for the reason that the charge levelled against
the appellant in the criminal case and departmental
proceedings of which detailed reference has been made were
on different sets of facts and evidence having no nexus/co
relationship. The kind of criminal act/delinquency which he
had committed in discharge of his duties in the course of
employment. That apart, much before the judgment of the
criminal case could be pronounced, the departmental enquiry
was concluded and after the Inquiry Officer had held him
guilty, he was punished with the penalty of dismissal from
service.
22. The judgment in G.M. Tank case(supra) on which
the learned counsel for the appellant has placed reliance was
a case where this Court had proceeded on the premise that
the charges in the criminal case and departmental enquiry
are grounded upon the same sets of facts and evidence. This
may not be of any assistance to the appellant as we have
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observed that in the instant case the charge in the criminal
case and departmental enquiry were different having no
nexus/co relationship based on different sets of facts and
evidence which has been independently enquired in the
disciplinary proceedings and in a criminal trial and acquittal
in the criminal proceedings would not absolve the appellant
from the liability under the disciplinary proceedings
instituted against him in which he had been held guilty and
in sequel thereto punished with the penalty of dismissal
from service."
(viii) U.P.STATE BRASSWARE CORPN. LTD., AND
ANOTHER VS. UDAY NARAIN PANDEY [2006 (1) SCC 479]
"22.No precise formula can be laid down as to under
what circumstances payment of entire back wages should be
allowed. Indisputably, it depends upon the facts and
circumstances of each case. It would, however, not be correct
to contend that it is automatic. It should not be granted
mechanically only because on technical grounds or otherwise
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an order of termination is found to be in contravention of
the provisions of Section 6-N of the U.P. Industrial
Disputes Act. "
45.The Court, therefore, emphasized that while
granting relief application of mind on the part of the
industrial court is imperative. Payment of full back wages,
therefore, cannot be the natural consequence. "
(ix) NOVARTIS INDIA LIMITED VS. STATE OF WEST
BENGAL AND OTHERS [2009 (3) SCC 124]
"21.There can, however, be no doubt whatsoever that
there has been a shift in the approach of this Court in regard
to payment of back wages. Back wages cannot be granted
almost automatically upon setting aside an order of
termination inter alia on the premises that the burden to
show that the workman was gainfully employed during
interregnum period was on the employer. This Court, in a
number of decisions opined that grant of back wages is not
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automatic. The burden of proof that he remained
unemployed would be on the workmen keeping in view the
provisions contained in Section 106 of the Evidence Act,
1972. This Court in the matter of grant of back wages has
laid down certain guidelines stating that therefor several
factors are required to be considered including the nature of
appointment; the mode of recruitment; the length of service;
and whether the appointment was in consonance with
Articles 4 and 16 of the Constitution of India in cases of
public employment; etc.
22. It is also trite that for the purpose of grant of
back wages, conduct of the concerned workman also plays a
vital role. Each decision, as regards grant of back wages or
the quantum thereof, would, therefore, depend on the fact of
each case. Back wages are ordinarily to be granted, keeping
in view the principles of grant of damages in mind. It
cannot be claimed as a matter of right."
(x) P.KARUPPAIAH (D) THROUGH L.Rs. VS.
GENERAL MANAGER, THIRUVALLUVAR TRANSPORT
CORPORATION LTD., [2018 (2) LLN 568 (SC)]
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"12. On proving such facts to the satisfaction of the
Court, the back wages are accordingly awarded either in full
or part or may even be declined as the case may be while
passing the order of reinstatement. The Courts have also
applied in appropriate cases the principle of "No work-No
pay" while declining to award back wages and confining the
relief only to the extent of grant of reinstatement along with
grant of some consequential reliefs by awarding some
benefits notionally, if any, in exercise of discretionary
powers depending upon the facts of each case. "
7.The learned counsel for the workman relied on the following
judgments, in support of his contention:
(i) Judgment of the Hon'ble Supreme Court in G.M.TANK
VS. STATE OF GUJARAT AND OTHERS [2006 (5) SCC 446]
"30.The judgments relied on by the learned counsel
appearing for the respondents are not distinguishable on
facts and on law. In this case, the departmental proceedings
and the criminal case are based on identical and similar set
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of facts and the charge in a Departmental case against the
appellant and the charge before the Criminal Court are one
and the same. It is true that the nature of charge in the
departmental proceedings and in the criminal case is grave.
The nature of the case launched against the appellant on the
basis of evidence and material collected against him during
enquiry and investigation and as reflected in the charge
sheet, factors mentioned are one and the same. In other
words, charges, evidence, witnesses and circumstances are
one and the same. In the present case, criminal and
departmental proceedings have already noticed or granted on
the same set of facts namely, raid conducted at the
appellant's residence, recovery of articles therefrom. The
Investigating Officer, Mr. V.B. Raval and other
departmental witnesses were the only witnesses examined by
the Enquiry Officer who by relying upon their statement
came to the conclusion that the charges were established
against the appellant. The same witnesses were examined in
the criminal case and the criminal court on the examination
came to the conclusion that the prosecution has not proved
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the guilt alleged against the appellant beyond any
reasonable doubt and acquitted the appellant by his judicial
pronouncement with the finding that the charge has not
been proved. It is also to be noticed the judicial
pronouncement was made after a regular trial and on hot
contest. Under these circumstances, it would be unjust and
unfair and rather oppressive to allow the findings recorded
in the departmental proceedings to stand.
31.In our opinion, such facts and evidence in the
department as well as criminal proceedings were the same
without there being any iota of difference, the appellant
should succeed. The distinction which is usually proved
between the departmental and criminal proceedings on the
basis of the approach and burden of proof would not be
applicable in the instant case. Though finding recorded in
the domestic enquiry was found to be valid by the Courts
below, when there was an honourable acquittal of the
employee during the pendency of the proceedings challenging
the dismissal, the same requires to be taken note of and the
decision in Paul Anthony's case (supra) will apply. We,
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therefore, hold that the appeal filed by the appellant
deserves to be allowed.
32.In the instant case, the appellant joined the
respondent in the year 1953. He was suspended from service
on 8.2.1979 and got subsistence allowance of Rs.700/- p.m.
i.e. 50% of the salary. On 15.10.1982 dismissal order was
passed. The appellant has put in 26 years of service with the
respondent i.e. from 1953-1979. The appellant would now
superannuate in February, 1986. On the basis of the same
charges and the evidence, the Department passed an order of
dismissal on 21.10.1982 whereas the Criminal Court
acquitted him on 30.1.2002. However, as the Criminal
Court acquitted the appellant on 30.1.2002 and until such
acquittal, there was no reason or ground to hold the
dismissal to be erroneous, any relief monetarily can be only
w.e.f. 30.1.2002. But by then, the appellant had retired,
therefore, we deem it proper to set aside the order of
dismissal without back wages. The appellant would be
entitled to pension."
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(ii) Judgment of the Hon'ble Supreme Court in UNION OF
INDIA VS. NAMAN SINGH SHEKHAWAT [2008 (4) SCC 1]
"24. In the departmental proceeding the appellant
was bound to comply with the principles of natural justice.
Copies of some documents were not supplied. Services of a
legal practitioner, may not be a matter of right, but he was
atleast entitled to the effective assistance of the
departmental representative, Shri Madhukar Sharma. The
same was also for all intent and purport denied.
The Tribunal in this behalf opined :-
" It is undisputed fact that Shri Mool Singh was
examined although his name was not in the list of witnesses.
The applicant's request to call Shri Jumma as defence
witness was not allowed. Not only this but in the absence
of the departmental representative Shri Madhukar Sharma,
the applicant was compelled to cross- examine Shri Mool
Singh who was cited as main witness in this case. It is also
not disputed that the Inquiry Officer himself has cross-
examined the applicant which was the duty of the
departmental representatives. It appears that the conduct of
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the Inquiry Officer in this case has been throughout biased
and it appears that he has acted with predetermined notions
which should have caused prejudice to the applicant."
We are in general agreement with the said
observations.
....
35.It is not a case where a mere benefit of doubt had
been given to the respondent in the criminal proceeding. The
criminal court has given a positive finding that the
prosecution has not been able to prove that the accused had
misappropriated the goods. His visit to the border for
discharging his duties did not tantamount to misuse of the
post or the authority. No evidence has been presented that
he did not have the authority to go to the border side on
official duties and even the department had not forbidden
him from going to that place. It was held that as
misappropriation of the property has not been proved, the
question of any criminal conspiracy did not arise. No
evidence had been adduced to bring home the charge of
criminal conspiracy, which is an independent crime."
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(iii) Division Bench judgment of this Court in
KALYANASUNDARAM VS. THE MANAGEMENT OF TAMIL NADU
STATE TRANSPORT CORPORATION (KUMBAKONAM DIVISION-1)
LTD., AND ANOTHER [W.A.NO.5 OF 2011 DECIDED ON 30.11.2011]
"10. In the case of the Capt. M. Paul Anthony vs.
Bharat Gold Mines Limited reported in (1999) 3 S.C.C. 679,
the Supreme Court observed as hereunder :-
26. To place an employee under suspension is an
unqualified right of the employer. This right is conceded to
the employer in service jurisprudence everywhere. It has even
received statutory recognition under service rules framed by
various authorities, including Govt. of India and the State
Governments. [See: for example, Rule 10 of Central Civil
Services (Classification, Control & Appeal) Rules]. Even
under the General Clauses Act, this right is conceded to the
employer by Section 16 which, inter alia, provides that
power to appoint includes power to suspend or dismiss.
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27. The order of suspension does not put an end to an
employee's service and he continues to be a member of the
service though he is not permitted to work and is paid only
Subsistence Allowance which is less than his salary
[See: State of M.P. vs. State of Maharashtra, (1977) II
S.C.C. 288].
29. Exercise of right to suspend an employee may be
justified on facts of a particular case. Instances, however,
are not rare where officers have been found to be afflicted by
"suspension syndrome" and the employees have been found to
be placed under suspension just for nothing. It is their
irritability rather than the employee's trivial lapse which has
often resulted in suspension. Suspension notwithstanding,
non-payment of Subsistence Allowance is an inhuman act
which has an unpropitious effect on the life of an employee.
When the employee is placed under suspension, he is
demobilized and the salary is also paid to him at a reduced
rate under the nick name of 'Subsistence Allowance', so that
the employee may sustain himself.
Their lordships further observed thus :-
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34. There is yet another reason for discarding the
whole of the case of the respondents. As pointed out earlier,
the criminal case as also the departmental proceedings were
based on identical set of facts, namely, 'the raid conducted
at the appellant's residence and recovery of incriminating
articles there from.' The findings recorded by the Inquiry
Officer, a copy of which has been placed before us, indicate
that the charges framed against the appellant were sought
to be proved by Police Officers and Panch witnesses, who
had raided the house of the appellant and had effected
recovery. They were the only witnesses examined by the
Inquiry Officer and the Inquiry Officer, relying upon their
statements, came to the conclusion that the charges were
established against the appellant. The same witnesses were
examined in the criminal case but the court, on a
consideration of the entire evidence, came to the conclusion
that no search was conducted nor was any recovery made
from the residence of the appellant. The whole case of the
prosecution was thrown out and the appellant was
acquitted. In this situation, therefore, where the appellant is
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acquitted by a judicial pronouncement with the finding that
the "raid and recovery" at the residence of the appellant were
not proved, it would be unjust, unfair and rather oppressive
to allow the findings recorded at the ex-parte departmental
proceedings, to stand.
35. Since the facts and the evidence in both the
proceedings, namely, the departmental proceedings and the
criminal case were the same without there being any iota of
difference, the distinction, which is usually drawn as
between the departmental proceedings and the criminal case
on the basis of approach and burden of proof, would not be
applicable to the instant case."
(iv) Judgment of this Court in THE DEPUTY GENERAL
MANAGER, STATE BANK OF INDIA VS. A.MADANABALAN AND
ANOTHER [WP NO.11042 OF 2007 DECIDED ON 05.06.2012]
"(j)The CGIT found that the Management of the
State Bank of India has not filed the admitted documents
prior to the incident or any contemporary documents. Under
such circumstances, neither the Enquiry Officer nor the
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Disciplinary Authority could not have come to the
conclusion that the initials or the signatures found in the
counterfoils were that of the workman. The CGIT also
found that none of the witnesses were deposed that they
deposited the amount only to the workman or they have
obtained entries in the passbook only through the workman.
Hence, it cannot be said that the amounts received from the
customers were misappropriated. The CGIT also found that
it is an admitted fact that none of the payments alleged to
have been made by the customers were found entered in the
day book or cashier scroll. Under the said circumstances, the
burden is upon the Bank to establish that it was only the
workman who was acting as a Cashier on the alleged dates.
Even though he made initials or signatures in the
counterfoils, he had not made any entries in the books of
accounts of the Bank. The Bank also failed to establish
these facts as satisfactory evidence. Under the said
circumstances, it found that the findings given by the
Enquiry Officer were perverse and without any material, for
the un-approved charges, the dismissal was to shock the
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conscience of the CGIT. Though the Bank pleaded that they
lost confidence in the workman, the CGIT refused to accept
the said contention, as the charges were never proved and
the question of reposting confidence will not arise. It is in
that context, the CGIT granted reinstatement with
continuity of service and all other attendant benefits, but
with 50% backwages, as noted above.
5.Mr.S.Sethuraman, learned counsel for the
petitioner filed additional typed-set and took this Court to
the minutes of the enquiry. But he was unable to assail the
findings rendered by the CGIT. As rightly observed by the
CGIT, the Management did not lead best evidence to hold
that it was the workman, who had received the amount by
briefing the signature in the counterfoils and the customers
also did not identify the workman as the person who had
received the money from them. On the other hand, there was
a confusion in identifying the workman by the witnesses.
Therefore, in the absence of any satisfactory evidence, this
Court do not think that any case is made out to interfere
with the findings rendered by the CGIT."
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(v) Judgment of this Court in P.V.SARGURU VS. TAMIL
NADU ELECTRICITY BOARD AND ANOTHER [WP NO.13816 OF 2008
DECIDED ON 03.11.2016]
"18. In yet another judgment of a Division Bench of
this Court in Writ Appeal No.5 of 2011 in
Kalyanasundaram Vs The Management of Tamil Nadu
Transport Corporation and another the Division Bench
observed as follows:-
"9. Admittedly, the appellant was exonerated by the
criminal court from the charges of negligent driving by
judgment dated 20.06.1991. The criminal court held, on the
basis of evidence, that the appellant was not guilty of rash
and negligent driving of the vehicle. The judgment of the
criminal court was passed during the pendency of the
departmental enquiry and the said fact was brought to the
notice of the authority concerned, but on the basis of the
evidence produced by the Management, the order of
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termination of the appellant from service was passed on
07.10.1993 without full opportunity of hearing."
19. The Division Bench of this Court in the above
said judgment, by relying upon the judgment of the Supreme
Court in the case of Capt.M.Paul Anthony Vs.Bharat Gold
Mines Limited reported in (1999) 3 S.C.C.679 has
ultimately concluded that the appeal has to be allowed and
holding that the departmental proceedings and criminal case
against erring officer are operating in different fields.
Merely because the criminal case is pending or initiated that
would not prejudice the employer to proceed departmentally
against the erring person and in that view of the matter,
law is well settled. However once the criminal case ended in
conviction and the departmental proceedings were initiated
and concluded on the basis of the said criminal charges alone
with same set of facts and same witnesses, then much
credence has to be given to the findings rendered in the
criminal case before taking a decision in the departmental
proceedings.
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20. Here, in the case on hand, though initially the
criminal case ended in conviction, ultimately it was reversed
and the petitioner has been set free in criminal case by this
Court on 10.03.2015. However, even before such findings
are given by this Court, the departmental proceedings were
concluded and an order of dismissal was passed on
09.05.2005. Therefore, one cannot find any fault with the
respondents for proceeding against the petitioner in the
departmental proceedings and it was concluded with an
enquiry, which ended in punishment. However, this Court
must give credence to the findings of the Court in the
criminal proceedings where the learned Judge has considered
the entire materials and findings of the trial Court which
has given a finding to the effect that the main witness who
was the complainant before the trap case, was an interested
person and the demand itself was not proved and also the
acceptance of gratification was also not proved. When there
is a categorical finding of this nature by this Court in the
said criminal appeal, the same can be pressed into service in
respect of the present case where the petitioner is challenging
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the departmental proceedings and its ultimate order of
dismissal.
21. Following the principles and ratio laid down by
the Hon'ble Apex Court as well as this Court in the
judgments referred to above and also taking into
consideration the categorical findings given by this Court in
Criminal Appeal No.212 of 2008 dated 10.03.2005, this
Court is of the considered view that atleast some lenient
view should be shown to the petitioner. Moreover, the
petitioner had served in the respondent Board from 1967 till
the date of dismissal on 09.05.2005 without any remark or
black-mark. Since the petitioner has already been under
suspension on 31.12.2003 some lenient punishment would
meet the ends of justice. Therefore, this Court has no
hesitation to interfere with the impugned order dated
09.05.2005, by modifying the same to the extent of
compulsory retirement instead of removal from service.
22. In the result, the writ petition is partly allowed.
Impugned order dated 09.05.2005 is modified to the extent
that the petitioner shall be placed under compulsory
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retirement as a punishment and in view of the same, all
service benefits for which the petitioner is entitled to, in the
relevant rules of the respondent-organization, shall be given
to the petitioner and the needful shall be done within a
period of three months from the date of receipt of a copy of
this order...."
(vi) Judgment of this Court in THE DEPUTY GENERAL
MANAGER, STATE BANK OF INDIA VS. A.MADANABALAN AND
ANOTHER [WA NO.2870 OF 2012 DECIDED ON 02.04.2018]
"6. After careful consideration of the arguments, the
point that arises for our consideration is whether the matter
requires revisit, in the light of the evidence of PW4 and
consequently, the order of the learned single Judge needs
interference or not.
7. On a careful look at the records, as pointed out by
the learned counsel appearing for the Bank, we find some
evidence stated to be the deposition of PW4. However, such
evidence of PW4, who is a public, cannot be a conclusive
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proof to come to a conclusion that the first
respondent/workman committed misappropriation, as a
public will not be aware of internal correspondence of the
Bank and whether the person in the counter has credited the
amount in the account of the customer in the ledger book or
not. Therefore, mere identification of the person who stated
to be in the counter on the day when the amount was
deposited is not sufficient to conclude any person guilty of
misappropriation. Thus, the Bank ought to have enquired
the staff of the Bank who would have the knowledge of
bank transaction. Failure on the part of the Bank to enquire
their staff in this regard would not substantiate the
contention raised by the Bank. Thus, the point that arises
for our consideration is answered in negative."
(vii) Judgment of the Hon'ble Supreme Court in DEEPALI
GUNDU SURWASE VS. KRANTI JUNIOR ADHYAPAK
MAHAVIDYALAYA (D.ED.) AND OTHERS [2013 (10) SCC 324]
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""38. The propositions which can be culled out from
the aforementioned judgments are:
38.1. In cases of wrongful termination of service,
reinstatement with continuity of service and back wages is
the normal rule.
38.2. The aforesaid rule is subject to the rider that
while deciding the issue of back wages, the adjudicating
authority or the Court may take into consideration the
length of service of the employee/workman, the nature of
misconduct, if any, found proved against the
employee/workman, the financial condition of the employer
and similar other factors.
38.3. Ordinarily, an employee or workman whose
services are terminated and who is desirous of getting back
wages is required to either plead or at least make a
statement before the adjudicating authority or the Court of
first instance that he/she was not gainfully employed or was
employed on lesser wages. If the employer wants to avoid
payment of full back wages, then it has to plead and also
lead cogent evidence to prove that the employee/workman
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was gainfully employed and was getting wages equal to the
wages he/she was drawing prior to the termination of
service. This is so because it is settled law that the burden of
proof of the existence of a particular fact lies on the person
who makes a positive averments about its existence. It is
always easier to prove a positive fact than to prove a
negative fact. Therefore, once the employee shows that he
was not employed, the onus lies on the employer to
specifically plead and prove that the employee was gainfully
employed and was getting the same or substantially similar
emoluments.
38.4. The cases in which the Labour Court/Industrial
Tribunal exercises power under Section 11-A of the
Industrial Disputes Act, 1947 and finds that even though
the enquiry held against the employee/workman is consistent
with the rules of natural justice and / or certified standing
orders, if any, but holds that the punishment was
disproportionate to the misconduct found proved, then it
will have the discretion not to award full back wages.
However, if the Labour Court/Industrial Tribunal finds
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that the employee or workman is not at all guilty of any
misconduct or that the employer had foisted a false charge,
then there will be ample justification for award of full back
wages.
38.5.The cases in which the competent Court or
Tribunal finds that the employer has acted in gross violation
of the statutory provisions and/or the principles of natural
justice or is guilty of victimizing the employee or workman,
then the concerned Court or Tribunal will be fully justified
in directing payment of full back wages. In such cases, the
superior Courts should not exercise power under Article
226 or 136 of the Constitution and interfere with the award
passed by the Labour Court, etc., merely because there is a
possibility of forming a different opinion on the entitlement
of the employee/workman to get full back wages or the
employer's obligation to pay the same. The Courts must
always be kept in view that in the cases of wrongful /
illegal termination of service, the wrongdoer is the employer
and sufferer is the employee/workman and there is no
justification to give premium to the employer of his
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wrongdoings by relieving him of the burden to pay to the
employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior Courts have
interfered with the award of the primary adjudicatory
authority on the premise that finalization of litigation has
taken long time ignoring that in majority of cases the parties
are not responsible for such delays. Lack of infrastructure
and manpower is the principal cause for delay in the
disposal of cases. For this the litigants cannot be blamed or
penalised. It would amount to grave injustice to an
employee or workman if he is denied back wages simply
because there is long lapse of time between the termination
of his service and finality given to the order of
reinstatement. The Courts should bear in mind that in most
of these cases, the employer is in an advantageous position
vis-à-vis the employee or workman. He can avail the services
of best legal brain for prolonging the agony of the sufferer,
i.e., the employee or workman, who can ill afford the luxury
of spending money on a lawyer with certain amount of
fame. Therefore, in such cases it would be prudent to adopt
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the course suggested in Hindustan Tin Works Private
Limited v. Employees of Hindustan Tin Works Private
Limited (supra).
38.7. The observation made in J.K. Synthetics Ltd. v.
K.P. Agrawal (supra) that on reinstatement the
employee/workman cannot claim continuity of service as of
right is contrary to the ratio of the judgments of three Judge
Benches referred to hereinabove and cannot be treated as
good law. This part of the judgment is also against the very
concept of reinstatement of an employee/workman."
(viii) Division Bench judgment of this Court in THE
MANAGEMENT OF ADDISON & COMPANY LIMITED VS. THE
PRESIDING OFFICER [WA NO.1946 / 2019 DECIDED ON 18.02.2010]
"9. There is no straight jacket formula for awarding
the relief of backwages. If a person has been wrongfully
terminated and prevented to work and he does not get any
other employment, then normal rule is payment of full
backwages. Unless there are circumstances which would
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compel the labour Court to deviate from the normal rule. The
idea of reinstatement in case of wrongful/illegal termination
is to restore an employee to the position which he held before
dismissal. This implies that the Courts must ensure that
employee must be restored to the same position and this can
be done only if the internal backwages are paid provided the
employee was not gainfully employed elsewhere whereby he
was able to sustain himself and was not really affected
monetary by the termination of service. Courts never
intended to give double advantage to an employee which
would enable him to earn from two sources.......
8.On a perusal of the materials produced before the Court, it is
found that the Tribunal has found that the Enquiry Officer in the
departmental proceedings placed on reliance on the report of the Forensic
expert to come to the conclusion that the workman must have withdrawn
money from the account of one Rajan. Secondly, when the delinquent was
tried for the same set of facts, in criminal cases and departmental
proceedings, by a judicial pronouncement, it would be unjust, unfair and
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rather oppressive to allow the findings recorded at the department
proceedings to stand.
9.At the outset, it has to be seen that whether the findings of the
Enquiry Officer and the departmental proceedings are unfair, unjust and
violative of principles of natural justice. In the entire pleadings, the
delinquent workman has not stated he was not given ample opportunity or
that the enquiry conducted was unfair and illegal. Therefore, it is only the
proportionality of the punishment has to be looked into. However, the Labour
Court has delved into appreciation of evidence given by the witnesses. In that
view of the matter, the evidence of the Assistant Director of Forensic
Department, who deposed as expert having compared the handwritings and
signatures draws importance. The Forensic Expert was examined in chief and
was elaborately cross examined by the delinquent's representative. He has
categorically stated that the withdrawal slips, vouchers of the disputed
documents were received and signatures found therein were given Serial
nos.Q1 to Q10 and the handwritings were marked as Serial nos.Q11 to Q15.
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WP.NOS.28078 OF 2014 & 28280 OF 2015
Thereafter, the specimen signatures of the account holder were marked as
S.Nos.1 to S.Nos.22 and the signatures and handwritings of the delinquent
employee were marked as S.Nos.23 to S.No.30. He has found that the
specimen signature of the delinquent employee, tallies with the handwritings
in the withdrawal slips, vouchers etc. But the specimen signature of the
account holder marked as S.Nos.1 to 22 was not signed by him and that there
is difference in the same and arrived at a conclusion that the specimen
signature of the account holder differs from the disputed signatures found in
the withdrawal slips and that specimen in handwritings of the delinquent
employee tallies with the disputed withdrawal slips, vouchers etc. Hence, the
handwritings found in the withdrawal slips are one and the same and the
signature in the withdrawal slip does not belong to the account holder. The
delinquent's representative had conducted elaborate cross examination. For
the questions put by the delinquent's representative to the Forensic expert that
the finding in the reasoning sheet that the signatures have been partially
imitated and who has written the remaining portion is concerned, the expert
has clearly explained the procedures adopted for examining the handwritings
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WP.NOS.28078 OF 2014 & 28280 OF 2015
and signatures and the characters of the letters, strokes and the imitation
whether fully made or partially made, were all the facts to arrive at a
conclusion and has categorically explained the reasoning given by him in his
report. To another question as to how many specimen signatures were given
to compare the handwriting and signatures, the answer was that the specimen
signature of Rajan and Mathan and one Ganesan were sent for inspection. In
yet another question, he would categorically depose that he had compared the
disputed handwritings and signatures with the specimen found that the
disputed signatures were not made by the account holder and that the
handwritings were made by the delinquent employee. Further, he would
substantiate that he compared all the characters of the specimen signatures
and handwritings and since they tallies during comparison without any basis
differences, had given that finding and it was written by the delinquent
employee.
10.Apart from this, it is relevant to state that the charge sheeted
employee during the chief examination would depose that when known
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WP.NOS.28078 OF 2014 & 28280 OF 2015
persons come to Bank, he would help them by writing the vouchers. Further,
he would admit to a particular question of the Presenting Officer that
signatures in the withdrawal slips S.Nos.23 to 215 are the delinquent
employees or not? The answer was "yes" the handwriting found in S.No.23
where it is mentioned as deposit receipts handwriting and that in 215 the
amount 5000 written in words and figures also belonged to him.
11.Curiously, S.Nos.Q11 to Q15 were the disputed signatures
found in the withdrawal slips and S.Nos.23 to S30 were the specimen
signatures made by the delinquent employee. He would admit that
handwriting found in S.Nos.21 and S23 were made by him. This admission
and the clear admission of the Forensic expert has been relied on by the
Enquiry Officer and the punishment was imposed by the Disciplinary
Authority. The Tribunal has erred in coming to a finding that the Forensic
expert has not stated that the signatures found in the withdrawal slips
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WP.NOS.28078 OF 2014 & 28280 OF 2015
belonged to the delinquent employee and therefore, the withdrawal of the
money from the bank made by the delinquent employee was not proved. The
finding of the Tribunal as such is perverse and unsustainable in law.
12.Secondly, the finding that the acquittal made by the Judicial
Magistrate in the criminal proceedings would have an impact on the
punishment imposed in the departmental proceedings is not correct and
erroneous for the reason that in criminal cases, the prosecution is burdened
with proving the charges and accused has a right to maintain silence.
Contrary to the same, in the departmental proceedings, the charge sheeted
employee is entitled to let in evidence, on par with the employer and cross
examine the witnesses.
13.Here, the standard of proof in criminal proceedings is proving
the charge beyond reasonable doubt, whereas, in the departmental
proceedings, it is only the preponderance of probability. Charge need not be
proved to the hilt. But, if it is shown in a departmental proceedings that there
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WP.NOS.28078 OF 2014 & 28280 OF 2015
are preponderance of probabilities, then on the basis of the same, punishment
can be imposed. Therefore, the findings of the Tribunal on this ground also is
not sustainable. Since the Tribunal has not applied its mind in proper
perspective with respect to the evidence and fairness of the enquiry, the
Award of the Tribunal it is not sustainable and liable to be set aside.
14.Accordingly, the Award dated 21.05.2014 passed in
I.D.No.80 of 2012 by the Central Government Industrial Tribunal, Labour
Court, Chennai is set aside and the matter is remitted back to the Central
Government Industrial Tribunal, Labour Court, Chennai, for fresh
consideration. Since the matter is pending from 2008, it is to just and proper
to direct the Tribunal to conclude the proceedings within a limited time.
Accordingly, three months time from the date of receipt of a copy of this
order is granted to the Tribunal to conclude the proceedings and pass an
award. It is always open to the parties, if they choose to adduce additional
evidence before the Tribunal.
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WP.NOS.28078 OF 2014 & 28280 OF 2015
15.In view of the setting aside of the Award, the claim of the
delinquent employee to set aside the award in respect of denial of 50% of the
backwages, continuity of service and other attendant benefits and
consequential direction to pay full backwages with continuity of service also
does not survive.
16.In fine, W.P.No.28078 of 2014 filed by the Bank /
Management is partly allowed and W.P.No.28280 of 2015 filed by the
workman / employee is dismissed. No costs. Consequently, connected
miscellaneous petitions are closed.
19 / 04 / 2022
Index : Yes/No
Internet : Yes/No
Speaking / Non-speaking order
TK
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WP.NOS.28078 OF 2014 & 28280 OF 2015
M.GOVINDARAJ, J.
TK
To
1.The Presiding Officer
Central Government Industrial Tribunal
Labour Court, Chennai.
2.The Assistant General Manager (Admn)
Disciplinary Authority
State Bank of India
Disciplinary Proceedings Cell
Network 2, Administrative Unit,
Kurinji Complex, State Bank Road,
Coimbatore - 641 018.
WP NOS.28078 OF 2014 AND 28280 OF 2015
19 / 04 / 2022
https://www.mhc.tn.gov.in/judis
