Madras High Court
Shanmuga Sundaram vs The Chief General Manager on 1 March, 2022
1 W.A.No.397 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2022
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A.No.397 of 2022
Shanmuga Sundaram ... Appellant
Vs
1. The Chief General Manager
State Bank of India,
Local Head Office,
College Road,
Nungambakkam,
Chennai 600 006.
2. The Deputy General Manager (B&O)
State Bank of India
Zonal Office,
No.86, Rajaji Salai,
Chennai 600 001. ...
Respondents
Prayer:Writ Appeal is filed under clause 15 of the Letter Patent praying to
set aside the order made in WP No.31163 of 2019 by the order dated in
21.12.2021.
For Appellant : Mr.A.J.Mohamed Kassim
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2 W.A.No.397 of 2022
S.VAIDYANATHAN, J.
&
MOHAMMED SHAFFIQ, J.
JUDGMENT
The present appeal has been preferred against the order in
W.P.No.29747 of 2013 dated 16.12.2013 whereby the writ petition was
dismissed and the order of dismissal passed by the Bank dated 09.06.2011
was not interfered with by the learned single Judge.
2. It is the case of the writ petitioner/appellant that he worked as a
Special Assistant at the Vellore Main Branch of the respondent Bank and
was alleged to have unauthorisedly and wrongfully debited the amount from
various accounts to the tune of Rs.22 lakhs. On account of the said
misconduct he was placed under suspension on 07.04.2010 in terms of
provisions of Memorandum of Settlement dated 10.04.2002. It is further
case of the appellant that after a detailed enquiry, three charges were framed
against him, which have been held to be proved and was dismissed from
service on 09.06.2011. Hence the appellant preferred an appeal on
21.07.2011. According to the appellant/writ petitioner, the appeal was not at
all disposed of and that he has sent a reminder on 27.02.2017. Apart from
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the Disciplinary Proceedings a criminal case was also initiated against the
appellant/writ petitioner for various offences under IPC, which was taken up
as Calendar Case 1 of 2013. It is stated by the Appellant that he was
acquitted by the Criminal Court on 30.05.2019 and after acquittal by the
criminal Court, the appellant/writ petitioner made a representation on
01.08.2019 to settle the terminal benefits, including all the arrears due to
him. Since the request was not acceded to the writ petitioner has approached
this Court challenging the dismissal order dated 09.06.2011.
3. The learned single Judge, after taking note of the contention of the
writ petitioner and the pleadings of the respondents, wherein it has been
contended by the Bank that the writ petition has been filed beyond a period
of eight years on the ground of laches dismissed the writ petition.
4. The contention put forth by the respondent / Bank is that when the
dismissal order is in force, the appellant is not entitled to get any relief
including the retirement benefits. The Bank further contended that the
employee participated in the Domestic Enquiry and due opportunity was
given. Since the charge levelled against him is grave in nature, viz.,
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misappropriation of the public money, the Bank has no other option, except
to dismiss him from service. The appeal was also rejected on 23.07.2012
which was received by him on 02.08.2012. In the counter filed by the Bank
before the learned Single Judge, the genuineness of the letters dated
05.07.2019 and 01.08.2019 mentioned supra was questioned and even in
the absence of standard of proof in the Domestic Enquiry, what is required is
to prove the charges based on preponderance of probabilities and need not
be proved beyond the reasonable doubt. The learned single Judge has
accepted the contention of the Bank that the employee has committed a great
misconduct and that the standard of proof in Domestic Enquiry and criminal
proceedings are completely different. It was held that in the Domestic
Enquiry, charges have been proved and the punishment cannot be interfered
with. Insofar as the proportionate of punishment is concerned, as the Bank
employee who was holding a responsible position of public trust had
involved in unauthorised and wrongful debit from the customers account of
the bank, which cannot be taken slightly by imposing lesser penalty than
dismissal. Hence the learned single Judge did not interfere with the
punishment of dismissal, passed against the writ petitioner.
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5. It is seen that the Bank has established the charges in the Domestic
Enquiry and that the appellant/writ petitioner has knocked at the doors of
the Court after eight years and even assuming for the sake of argument that
the Appellate order has not been communicated to him, nothing prevented
the employee from approaching this Court immediately or raise an Industrial
Dispute under the I.D.Act 1947, wherein the powers of the Tribunal is wider
to invoke Section 11 A to modify the punishment based on the severity of
the misconduct.
6. In this case, the period of limitation to raise an Industrial Dispute is
only three years in terms of amendment to Section 2A of the I.D.Act, which
came into effect from 15.09.2010. The employee did not take any steps to
get his grievance redressed either before the appropriate Labour Forum or
before this Court immediately after the order of dismissal passed against
him. Even for approaching the Industrial Forum the employee can bypass
the appellate remedy available under the Bipartite settlement or regulation,
as the order of the Disciplinary Authority would be confirmed and in very
rarest of the rare cases, it would be modified by the Appellate Authority and
powers of the Industrial Tribunal is much wider and the proceedings of the
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Industrial Tribunal can step into the shoes of the Disciplinary Authority, in
case Domestic Enquiry is held to be not fair and proper and after affording
an opportunity to the employer the Tribunal may come to a different
punishment depending upon the charges framed against the employee.
7. In this case as the appellant/writ petitioner has not availed
alternative remedy and at this distant point of time this Court cannot permit
the petitioner to approach the alternative Forum, as he has not filed the writ
petition within three years from the date of dismissal from service and that
there is a delay of eight years in approaching this Court, apart from the fact
that the charges against the appellant/writ petitioner is one of
misappropriation, which is very grave in nature and the punishment imposed
by the employer is perfectly valid and the order does not suffer from any
infirmity.
8. Accordingly the writ appeal is dismissed. No costs.
(S.V.N.J.,) (M.S.Q.J.,)
01.03.2022
dpq
Speaking order/Non-speaking order
Internet: Yes/No
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S.VAIDYANATHAN, J.
and
MOHAMMED SHAFFIQ, J.
dpq
W.A.No.397 of 2022
01.03.2022
https://www.mhc.tn.gov.in/judis
