Madras High Court
The Deputy General Manager (B&O) vs The Presiding Officer on 19 October, 2022
W.P.No.24701 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.10.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.24701 of 2017
1.The Deputy General Manager (B&O),
Appellate Authority,
State Bank of India
Human Resources Section,
Network-II, Administrative Office,
Madurai Cluster, Maduram Complex,
No.2, Dr. Ambedkar Road,
Madurai – 625 002.
2.Regional Manger (RBO IV)
Disciplinary Authority,
State Bank of India,
Madurai – 625 002. ... Petitioners
Vs.
1.The Presiding Officer
Central Government Industrial Tribunal-
Cum-Labour Court,
Chennai.
2.A.Ramamoorthi ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari, calling for the records of the 1st respondent
in I.D.No.9 of 2016 and quash its award dated 30.12.2016.
Page 1 of 38
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For Petitioners : Mr.S.Ravindran
Senior Counsel
For Mr.S.Bazeer Ahamed
For R1 : Tribunal
For R2 : Mr.Balan Haridas
ORDER
Facts of the case:
The writ on hand has been filed challenging the Award dated
30.12.2016 passed in I.D.No.9 of 2016.
2. The State Bank of India is the petitioner.
3. The petitioners state that as per the administrative exigencies,
periodical transfers of employees are carried out in the petitioner / Bank. The
petitioner / Bank is having administrative office at No.2, Dr.Ambedkar
Road, Madurai. During December 2013, certain employees in the Madurai
region were transferred to various other branches. 3 employees namely
K.Rajendran, Senior Assistant was transferred from administrative office to
nearby branch situated at Lady Doak College, Madurai, S.Mayilerinathan,
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Senior Head Messenger was transferred within the premises of
administrative office and the 2nd respondent in the present writ petition
Mr.A.Ramamoorthi, Special Assistant was transferred from Tallakulam
branch to Natham branch within Madurai City. All employees were given
sufficient joining time to report to the transferred office / branch.
4. Mr.K.Rajendran protested against the order of transfer on
11.01.2014 at about 2:30 p.m. He along with S.Mayilerinathan and the 2nd
respondent indulged in unauthorised sit-in-dharna, which lasted till 11:00
a.m. on 12.01.2014. Though the Chief Manager (HR) along with other
officials instructed the 2nd respondent and two other employees mentioned
above to leave the place and not indulge in disorderly conduct, 2nd
respondent and the other two employees continued to hold sit-in-dharna in
the administrative office. The 2nd respondent herein during the sit-in-dharna
in a disorderly and indecent manner, demanded the production of attendance
register relating to administrative office from the officials, who were present
there so as to enable Mr.K.Rajendran to sign the attendance register. The 2 nd
respondent also abetted other staff members to participate in the dharna to
engage forcefully against the officials. When, Mr.K.Rajendran sought for
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some clarification in the order of transfer and it was furnished to him, the 2nd
respondent repeatedly pressurised and demanded modification in the written
clarification provided to Mr.K.Rajendran. This resulted in the detention of
officials in the office premises situated at the administrative office from 2:30
p.m. on 11.01.2014 to 11:00 a.m. on next day 12.01.2014.
5. This disorderly behaviour of the 2nd respondent forced the officials
to lodge a criminal complaint to the police authorities on 12.01.2014. These
incidents portrayed the image of the Bank poorly in the eyes of general
public and customers. These incidents were published in the Tamil
Newpaper “Dinamalar”. The private television channel “Pudhiya
Thalaimurai” also aired the above incident. This caused loss of image and
reputation to the petitioner Bank. Further, on 12.01.2014, the 2nd respondent
arranged to bring outsiders to the administrative office, Madurai and abetted
them to force the Bank authorities to permit Mr.K.Rajendran to rejoin duty
at administrative office, Madurai.
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6. In respect of the misconducts as stated above, the petitioner / Bank
issued a charge sheet dated 21.03.2014 to the 2nd respondent, as the
explanation submitted by 2nd respondent was not satisfactory, a domestic
enquiry was conducted. The enquiry was held by following the procedures
as contemplated. The 2nd respondent was represented by a defence
representative in the enquiry. The enquiry was held on 11 sittings
commencing from 02.06.2014 to 09.09.2014. 10 witnesses were examined
and 17 documents were marked in support of the charges levelled against
the 2nd respondent. The 2nd respondent examined Mr.K.Rajendran as his
witness and filed two documents.
7. The Enquiry Officer submitted his report dated 27.01.2015, held
that the 2nd respondent was guilty of all the charges levelled against him. By
letter dated 14.02.2015, a copy of the report of the Enquiry Officer was
furnished to the 2nd respondent, requiring him to make his submissions on
the findings of the Enquiry Officer. The 2nd respondent's submissions as
mentioned in his reply dated 09.03.2015 was not satisfactory. On
28.03.2015, notice of proposed penalty was issued to the 2nd respondent and
requiring him to attend the personal hearing. During the personal hearing
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held on 27.04.2015, the 2nd respondent's written response was received and
oral submissions were heard. As the explanation of the 2nd respondent was
not found satisfactory, by order dated 09.05.2015, the 2nd respondent was
dismissed from service. The appeal filed by the 2nd respondent was also
rejected on 07.08.2015.
8. The 2nd respondent, challenging the order of dismissal by filing
I.D.No.9 of 2016 before the Central Government Industrial Tribunal-cum-
Labour Court, Chennai. The 2nd respondent did not question the validity of
the domestic enquiry held against him. No oral evidence was let in by both
parties in the above dispute. The documents of the petitioner Bank were
marked as Exhibits M1 to M12 and the 2nd respondent's documents were
marked as W1 to W4. The 1st respondent passed an award dated
30.12.2016, setting aside the punishment of dismissal from service issued to
the 2nd respondent and directed his reinstatement with pay at next lowest
stage in the scale of pay from 09.05.2015 onwards. Thus, the petitioner is
constrained to file the present writ petition.
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Arguments on behalf of the petitioners:
9. The learned Senior Counsel appearing on behalf of the petitioner /
Bank made submissions that the award of the Labour Court is perverse to
the extent of interfering with the punishment of removal from service, which
was imposed on the 2nd respondent after adhering to the principles of natural
justice and affording opportunity to the 2nd respondent / employee. The 2nd
respondent / employee has not challenged the validity of the domestic
enquiry held against him. The charges against the 2 nd respondent were held
proved. The nature of the charges are grave affecting the institutional
integrity of the State Bank of India and thus, the Disciplinary Authority
inflicted the punishment of removal from service. The 1st respondent /
Labour Court failed to appreciate the findings of the enquiry officer in his
report, which were not disputed by the 2nd respondent. The Labour Court
proceeded on the mistaken impression as if there are no findings in the
enquiry report. The 1st respondent has further not considered the elaborate
discussions made by the Enquiry Officer in his report regarding allegations
against the 2nd respondent, which were proved beyond doubt.
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10. The learned Senior Counsel appearing on behalf of the petitioners
strenuously contended that there cannot be any compromise on discipline in
the petitioner / Bank. The petitioner / Bank suffered loss of reputation on
account of the serious misconduct committed by the 2nd respondent along
with other two employees on 11.01.2014 and 12.01.2014. When the
misconduct committed by the employees of the Bank, affected the reputation
of the Bank and caused inconvenience to the customers and other officials of
the administrative branch of the Bank. The 1st respondent has erroneously
invoked Section 11(A) of the Industrial Disputes Act and modified the
punishment, which is untenable.
11. The learned Senior Counsel for the petitioners drew the attention
of this Court with reference to the findings of the Labour Court as detailed
under:
Findings of the Lower Court:
(a) It is an admitted fact that at least from 2:30 P.M., the
petitioner was with Rajendran and with his colleague.
(b) The petitioner himself did not give evidence to
advance his case.
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(c) It is there in evidence that in spite of the request and
persuasion of the officers they remained inside the office
causing difficulty to the officers and forcing them to stay inside
the office. It was only because of the three remained in the
office several of his officers had to remain in the office in their
attempt to solve the problem even during odd hours and when
attempt failed, they were forced to call the Police and later
make a formal complaint at the instance of the Police.
(d) The evidence and the statement given by most of the
witnesses would reveal that the petitioner and other two
continued to remain inside the office in spite of the direction to
leave the office. In PEX-1, Satish Krishnan a special officer had
stated that he has tried to convince the petitioner and others to
leave the administrative office building but they were not
obliging. According to him, when the police came they also
requested them to vacate the building but they refused. Still
another attempt was made by the police officials after formal
complaint was lodged by the management. Yet, it was only
refusal on the part of 3 including the petitioner.
(e) Saturday was a half working day and officers were
expected to leave by 2:30 p.m. Most of them had to remain
inside the office since the petitioner and other two refused to
leave the premises.
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So, the charge of the petitioner and others refused to leave the
office premises in spite of the request and disobeyed the lawful
and reasonable orders of the management is clearly established.
(f) From the evidence, it could be seen that it is not a case
of victimization. It is the admitted case that the petitioner as
well as two others were inside the office beyond office hours on
11.01.2014 and remained at the office until 11 A.M on the next
day forcing the officers to remain inside the office. The charge
based on this certainly could not be termed as victimization.
(g) Dated at Chennai on 14th day of October 2022.
12. The petitioners have stated that the charges were framed for the
unruly behaviour of the 2nd respondent indulged in dharna, abetting other
staff members to participate in dharna, bringing the outsiders from 02:30
p.m on 11.01.2014 to 11:00 a.m. on 12.01.2014.
13. The act of misconduct of the 2nd respondent amount to gross
misconduct in terms of settlement dated 10.04.2002, namely paragraph 2 of
the written notes filed on behalf of the petitioners reads as under:
5.(c) - Riotous or disorderly or indecent behavior on
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the premises of the bank.
i. 5(d) - Wilful damage or attempt to cause damage to the
property of the bank or any of its customers.
ii. 5(e) - Wilful insubordination or disobedience of any
lawful and reasonable order of the management or of a
superior.
iii. 5(j) - Doing any act prejudicial to the interest of the
bank.
iv. 5(1) - Abetment or instigation of any of the acts or
omissions above mentioned.
14. 10 witnesses were examined and 17 documents were marked to
prove the charges levelled against the 2nd respondent. The copy of the Police
complaint and newspaper publications were also marked as exhibits,
including the CCTV footages. It is contended that the 1st respondent Labour
Court failed to note the cardinal principle that in the domestic enquiry, the
proof required is one of “preponderance of probability” re-examined the
evidence, as if it was considering the criminal case. The 1st respondent has
not given any reason in its award, as to why the Labour Court was not
accepting the findings of the Enquiry Officer, which is fatal to the impugned
award.
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15. The learned Senior Counsel appearing on behalf of the writ
petitioners relied on the judgment of the Hon'ble Supreme Court of India in
the case of Hombe Gowda Educational Trust and Another Vs. State of
Karnataka and Others reported in [(2006) 1 SCC 430] and the relevant
paragraph 30 reads as under:
“30. This Court has come a long way from
its earlier viewpoints. The recent trend in the
decisions of this Court seek to strike a balance
between the earlier approach of the industrial
relation wherein only the interest of the workmen
was sought to be protected with the avowed object
of fast industrial growth of the country. In several
decisions of this Court it has been noticed that
how discipline at the workplaces/ industrial
undertaking received a setback. In view of the
change in economic policy of the country, it may
not now be proper to allow the employees to
break the discipline with impunity. Our country is
governed by rule of law. All actions, therefore,
must be taken in accordance with law. Law
declared by this Court in terms of Article 141 of
the Constitution of India, as noticed in the
decisions noticed supra, categorically
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demonstrates that the Tribunal would not
normally interfere with the quantum of
punishment imposed by the employers unless an
appropriate case is made out therefor. The
Tribunal being inferior to that of this court was
bound to follow the decisions of this Court which
are applicable to the fact of the present case in
question. The Tribunal can neither ignore the
ratio laid down by this Court nor refuse to follow
the same.”
16. The learned Senior Counsel appearing on behalf of the petitioners
also relied on the judgment of this Court (Delivered by SMSJ), in the case of
Hindustan Unilever Limited Vs. The Presiding Officer, Labour Court and
Others reported in [(2019) 4 LLJ 590], wherein this Court has considered
the Fundamental duties as enunciated under Article 51-A of the Constitution
of India, which is to be considered, while dealing with the rights of the
employees. The relevant paragraphs are extracted hereunder:
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“32. It is relevant to remind the fundamental
duties of a citizen enunciated under Article
51&126;A of the Constitution of India. Sub
Clause (i) to Article 51&126;A enumerates that ?
to safeguard public property and to abjure
violence?. Sub Clause (j) stipulates that ?to strive
towards excellence in all spheres of individual
and collective activity so that the nation
constantly rises to higher levels of endeavour and
achievement?.
33. Emphasizing the fundamental duties of
the citizen under Article 51&126;A of the
Constitution of India, this Court is of the strong
opinion that rights and duties are inseparable
concepts and the person, who is claiming right,
must keep in mind that he has got corresponding
duties towards the fellow citizen and to our great
Nation at large. Rights and duties are the relative
terms and therefore, in the current day situation,
while dealing with the rights of the individuals,
his duties are also to be considered by the
Constitutional Courts in order to adopt a
pragmatic and balancing approach. It is not as if
while upholding a rights of a citizen, Court can
neglect his duties. Only if a citizen respects his
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duties as law requires, then alone he can claim
his right under the law and it is not as if he can
violate his duties and responsibilities and claim
rights in isolation. Such a concept, if at all in the
mind of a person, the same can never be
encouraged by the Constitutional Courts.
34. Keeping this view, this Court is of an
opinion that certain allegations, manhandling or
physically attacking or assaulting the
co&126;employees or the higher officials can
never be tolerated and such offences are already
classified as punishable offence under the Indian
Penal Code. This apart, respecting the fellow
citizen or colleagues in the work place is of
paramount importance. Only through
maintaining the discipline and decorum, the
industrial activities can be developed, so also,
the developmental activities across the country
can be taken forward. Thus, discipline and
decorum in industrial places are of paramount
importance. It is an organizational discipline,
which would make the industry to grow further
and to develop the prospectus of our great Nation
as well as the people at large. Thus,
compromising the discipline will lead to
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destruction within the industry / public
institutions. Any indisciplined industry or
organization can never see the light of growth.
Most of the industries / public institutions had
collapsed on account of indiscipline, mal
administration or corruption. Thus, discipline,
decorum, honesty and integrity are the vital
characters to be maintained in the industry /
public institutions, factories and trade activities,
so as to take our Nation forward on par with the
global standards. Our great Nation is a fast
growing Country in the world. Under these
circumstances, Courts are also duty bound to
ensure that such discipline, decorum, honesty
and integrity are being maintained at all
institutional levels and all such institutional
respects are also protected.
35. This being the concept to be borne in
mind, this Court is of an opinion that any
indiscipline, if noticed and disciplinary actions
are initiated against the employees, Courts must
be keen in analyzing the factors and arrive a
conclusion that such indiscipline activities are
brought down and dealt in accordance with law
without showing any leniency or misplaced
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sympathy. Thus in disciplinary matters,
misplaced sympathy by the Courts also would
lead to destruction of industries / public
institutions. The personal likes and dislikes of
certain elements or character should not have
any impact in deciding such cases of disciplinary
proceedings. It is not as if we are compromising
the principles, we are compromising the National
developments and therefore, there cannot be any
such misplaced sympathy in the matter of
discipline and decorum in industries and in
public institutions.
39. Section 11&126;A of the Act cannot be
used in a routine manner, so as to modify or
reduce the punishment and a pragmatic and
balanced approach is required. The exercise of
discretionary powers under Section 11&126;A of
the Industrial Disputes Act must be exercised with
logic, reasoning and by application of mind. The
situation established before the Labour Court
and the gravity of the charges proved against the
workman must be considered before modifying or
quashing the punishment imposed by the
employer. The Labour Court ought to have
considered the fact that discipline in an
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industrial establishment is of paramount
importance and the nature of the proved
misconduct its gravity and seriousness are to be
looked into before modifying the punishment. In a
case, where a workman assaulted, the superior
official by using filthy language and his previous
misconducts in the factory were also established
by the employer, then this Court is of the
considered opinion that there is no reason
whatsoever to interfere with the penalty of
termination imposed by the employer. Every such
punishment imposed is meant to sent a clear
message to the society at large, more specifically
to the employees working in industrial
establishments / public institutions. The major
penalty in this regard is to ensure that the
industrial establishments are protected from such
unruly activities of few workman and to protect
the interest and the welfare of the organisation
itself. Therefore, the Labour Court cannot simply
interfere with the quantum of punishment without
assigning proper and acceptable reasons. Merely
invoking Section 11&126;A of the Industrial
Disputes Act is certainly impermissible and in all
such cases, where Labour Court has taken a
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decision to modify the punishment or to quash the
punishment imposed by the employer, then
adequate reasons are to be recorded in the
award and a mere observation that the
punishment of termination is ?grossly
disproportionate? is unacceptable for arriving
such a conclusion that the punishment is grossly
disproportionate. The Labour Court is bound to
assign proper and acceptable reasons. Thus, the
findings of the Labour Court that the punishment
is grossly disproportionate is not based on any
valid material and in the absence of any
convincing reason, the said findings are
construed to be perverse and unsustainable.”
17. Relying on the above judgments, the learned Senior Counsel
appearing on behalf of the petitioners is of an opinion that the proved
charges against the 2nd respondent in the case are grave in nature and caused
loss of reputation to the State Bank of India and further, resulted in
inconvenience to the officials of the Bank. Thus, the major penalty of
removal from service imposed by the Disciplinary Authority is just and
proper and the interference made by the 1 st respondent / Labour Court
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without assigning any convincing reason is untenable and liable to be set
aside.
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Arguments on behalf of the Second Respondent:
18. The learned counsel appearing on behalf of the 2nd respondent /
employee disputed the contentions raised by the petitioners by stating that
the Labour Court award is justifiable on many grounds. The 1st respondent /
Labour Court rightly invoked Section 11(A) of the Industrial Disputes Act
and modified the punishment as that of reduction of scale of pay to next
lower stage. It is not as if, the 2nd respondent was left without any
punishment. The modified punishment of reduction of pay to next lower
stage itself would sufficient enough to meet out the interest of justice and
with reference to the gravity of the proved charges against the 2nd
respondent.
19. The learned counsel for the 2nd respondent reiterated that the 2nd
respondent is working in the State Bank of India from the year 1988
onwards. He has got unblemished record of service for more than 25 years.
After filing of the present writ petition, the 2nd respondent was reinstated in
service and working without any adverse remarks for the past about 5 years.
The 2nd respondent has served about 30 years in the State Bank of India
without suffering any punishment or adverse remarks. While so, the Labour
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Court has considered the mitigating factors and the gravity of the proved
charges and accordingly, modified the punishment of dismissal from service
to that of reduction of pay to next lower stage. Therefore, the writ petition is
liable to be rejected.
20. The learned counsel for the 2nd respondent drew the attention of
this Court with reference to the findings of the Labour Court and it is
relevant to extract paragraphs 31 and 32 of the impugned award, which
reads as under:
“31.Was there a sit-in Dharna as alleged
in the Charge Sheet? What is the evidence
available in this respect? In his statement marked
as PEX-1 Sajith Krishnan does not mention about
the sit-in Dharna. What he has stated is that even
after the office hours the three employees
including the petitioner were not willing to move
out from the lobby. He has also stated that the
efforts to convince the three people started in the
evening and continued till the next day. During
his examination what he has stated is that the
three were sitting in DGM's lobby even after
office hours and the officials were trying to
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convince them to leave the office. Witness
Shanmugham has stated in his statement marked
as PEX-2 that the petitioner was part of sit-in
Dharna. However, what is seen from the
statement of this witness itself is that the
petitioner and the other two were moving from
place to place inside the office either on their
own or at the instance of the superior Officers.
Rajendran was frequently going outside and
talking over his mobile phone. While Rajendran
was speaking with this witness the petitioner and
Mylerinathan were standing at the western side
of the wall in the cabin. Rajendran himself was
sitting before him. As per PEX-3, the statement
given by Karthikeya Venkatesan there is no
reference to a Dharna by the petitioner and
others. What he has stated is that while himself
and others were preparing to leave the office
Rajendran the petitioner and the other were
sitting in the DGM Secretariat. However, during
his examination when a leading question was put
to him he has stated that Dharna was held by
Rajendran along with the petitioner and another.
As seen from PEX-4 the statement given by
Kumaravelu, Rajendran had approached him by
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1030 AM or 1100 AM. Rajendran tried to give a
letter to Kumaravelu but he was informed that the
matter does not come under his duties. He has
left the cabin and he had come back by 0230 PM
accompanied by two persons. The three had been
sitting in his office for half an hour. When he
went out for lunch they also left. Later he had
seen them sitting outside DGM's room. As could
be seen in PEX-5 the statement given by
Chidambara Jeevanandham, Rajendra was
sitting in his own seat upto the lunch time. He
does not state what happened subsequently. As
seen from PEX-6 given by Mahalingam, the
Deputy Manager Rajendran accompanied by the
petitioner and Mylerinathan had approached by
0200 PM requesting to meet the DGM. Since
DGM was not available the three went away and
came back by 0330 PM to his room. When DGM
came back by 0430 PM he asked the three to
leave the office. He has further stated in his
statement though the petitioner and another had
been accompanying Rajendran the two did not
speak anything. But they were waiting in his
room till 0930 PM. The HR Section Officers had
arranged dinner for all including the petitioner
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and Mylerinathan. When the Deputy Manager
told the three that he wanted to lock his room
they left the room. Witnesses Senthil Kumar and
Samiuddeen Hussain also do not refer to Dharna
in their respective statements.
32. What could be seen from the statements
and evidence is that on the basis of demand of
Rajendran to permit him to sign the Attendance
Register or to deliver a letter to him based on the
High Court order hectic negotiations were being
held between Rajendran and the Officers and
they were trying to solve the problem. A Dharna
in its strict sense does not seem to have occurred
in the office on the day. On the other hand, there
seems to have been persuasion on the part of the
Rajendran to convince the Officers about his
right to join duty and the attempt of the Officers
to convince him otherwise.”
21. The learned counsel for the 2nd respondent contended that the
Dharna was not established as per the statement of the Security Officer
Mr.Sajith Krishnan, the protest alone was established. Thus, the punishment
of removal was considered as excessive by the Labour Court and
accordingly, the modified punishment of reduction of pay to next lower stage
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was imposed. Thus, there is no infirmity in respect of the award passed and
the writ petition is liable to be rejected.
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Analysis:
22. Considering the facts established, it is not in dispute that the
charge memorandum was issued in accordance with the procedures as
contemplated. The domestic enquiry was conducted in compliance with the
principles of natural justice. The 2nd respondent was afforded with an
opportunity to defend his case and he was permitted to engage defence
assistant. Thus, there is no infirmity in respect of the departmental enquiry
conducted. The enquiry proceedings were not under challenge before the 1st
respondent / Labour Court. Thus, the Disciplinary Authority has conducted
the departmental disciplinary proceedings in the manner contemplated and
by following the procedures stipulated.
23. Regarding the allegations, 6 charges were framed, culminated
from the incident occurred on 11.01.2014 and 12.01.2014. The Charge No.1
indicates that at about 2:30 p.m. on 11.01.2014 (Saturday) to around 11:00
a.m. on 12.01.2014 (Sunday), the 2nd respondent along with two other
employees, participated in an unauthorised sit-in-dharna, which amount to
gross misconduct in terms of paragraph 5(j) of the Memorandum of
Settlement dated 10.04.2002.
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24. Point to be noted with reference to the above charges is that the
2nd respondent along with other two employees allegedly conducted sit-in-
dharna within the premises of the administrative office at Madurai at about
2:30 p.m. on 11.01.2014, which was a Saturday. The business hours of the
Bank on Saturday closes at 2:30 p.m. Thus, it is made clear that the 2nd
respondent along with two employees conducted agitation beyond the
business hours and on the next day, which was Sunday, holiday. Thus, the
contention of the petitioners that the protest of the employees caused
inconvenience to the customers of the Bank is not acceptable.
25. Next question would be, whether the proved misconduct, warrant
the major penalty of removal from service. No doubt, the allegations are
regarding the protest made by the employees on account of administrative
transfer. Transfer is an incidental to service, more so, a condition of service.
Thus, an employee is expected to serve wherever he is posted in the interest
of administration. The State Bank of India is the largest service provider and
therefore, the public duties towards its customers are of paramount
importance. High discipline in the Banking Sector is vital as they are dealing
with financial transactions and the customers are depositing their hard
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W.P.No.24701 of 2017
earned money with trust. Thus, any breach of trust at the instance of the
employees are to be viewed seriously. However, in the present case, basic
factor remains that the 3 employees conducted protest against their
administrative transfers after business hours at 02:30 p.m. on 11.04.2014
(Saturday) and on 12.01.2014 (Sunday). Thus, the protest was made against
the administration of the State Bank of India and not affecting the business
transactions with the customers of the Bank.
26. The other charges are also relating to the same incident, more
specifically, regarding the consequential misconducts against the 2nd
respondent. No doubt, the administrative transfers are not issued to the far
off place as rightly contended by the learned Senior Counsel appearing on
behalf of the petitioners. The administrative transfers were effected within
the city, which would not affect the normal family life of the 2 nd respondent.
Therefore, there is no reason to protest against such administrative transfers
issued within the city and if at all any grievances exist to the transferee, he
has to approach the Competent Authority or Appellate Authority for
redressing his grievances. Contrarily, no employee of the Bank can sit inside
the administrative office premises and raise protest against the
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W.P.No.24701 of 2017
administrative transfers, which amounts to misconduct. In the present case,
the misconduct of protest has been established beyond any pale of doubt.
27. Question arises, whether it is a sit-in-dharna or a protest done on
account of an administrative transfer. No doubt, employees are not expected
to act in provocation. They are expected to behave in the manner known to
law and conducive to the atmosphere of the public premises. Thus, sit-in-
dharna inside the office in an illegal manner or conducting a protest without
obtaining appropriate permission is amounting to misconduct. However, the
gravity of proved misconduct is to be weighed with reference to the
punishment imposed.
28. In the present case, the 2nd respondent along with two other
employees have not declared any sit-in-dharna. Simply they sat in the office
premises after working hours on 11.01.2014 and refused to leave the office
premises, which caused inconvenience to the other officials, who all are
responsible for the safety and security of the State Bank of India office
premises. There was no incident of violence. The 2nd respondent was sitting
in the office premises and sought for certain clarifications and informations
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from the officials. Even after providing such informations, he continued to
sit in the office premises till 11:00 a.m. on 12.01.2014, which was a Sunday.
Thus, the entire incident as established during the enquiry proceedings
reveals that after office hours, the 2nd respondent sat within the office
premises and sought for certain clarifications from the Bank officials and
refused to leave the office premises, despite the request made by the Higher
Officials, and the Police.
29. How to classify such an act of an employee, who is working in the
same office premises. It is not in dispute that the 2nd respondent was
working in the very same administrative office at Madurai. He was
transferred from administrative office to the Lady Doak College in the
Madurai. The administrative transfer in the opinion of this Court would have
caused grievance in the mind of 2nd respondent and more so, he would have
developed a doubt regarding the genuinity of the administrative transfer
issued by the competent authority and asked clarifications. No doubt, even
in such circumstances, an employee is expected to approach in the manner
contemplated under law by filing an Appeal before the Higher Authority or
by approaching the Court of Law. Contrarily, an employee is not expected to
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W.P.No.24701 of 2017
sit in the office beyond the office hours in order to cause inconvenience to
the other officials, who all are responsible for the safety and security of the
public offices. Therefore, the conduct of the 2nd respondent at no
circumstances be appreciated or approved by this Court. However, the fact
remains the 2nd respondent had not committed any act of violence nor
misbehaved with the higher officials of the Bank. No doubt, he asked for
certain clarifications and details from the officials, which would have caused
certain irritation and inconvenience to such officials. However, the said
misconduct cannot be construed as grave to the extent of warranting major
penalty of removal from service.
30. In the context of the facts and circumstances of the case on hand,
the judgment relied on by the learned Senior Counsel appearing on behalf of
the petitioners are of no avail to the petitioner / Bank as in the case of
Hindustan Unilever Limited (cited supra) an act of violence was proved
and therefore, this Court held that misplaced sympathy or leniency would
result in adverse consequences regarding the developmental activities in the
industries and in our Great Nation. No doubt, duties and responsibilities are
corresponding and to be considered, while deciding such nature of cases in
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disciplinary matters. However, the Courts are bound to consider the nature
of the proved charges and the quantum of punishment imposed and if it is
disproportionate, then judicial review is justifiable.
31. No doubt, our Great Nation is the strong supporter of reformative
theory. Thus, the punishment imposed must be in commensuration with the
gravity of charges. The previous conduct of the employee throughout his
services are also to be taken into consideration, while imposing major
penalty of removal from service. Therefore, a balancing approach in-between
reformation and deterrency is to be adopted.
32. The Constitutional Courts have ruled that punishment in
disciplinary matters, the proportionality of the punishment is to be
considered by the Courts. No doubt, the Disciplinary Authority is competent
to impose any penalty contemplated under the Rules. However, the penalty
imposed, whether disproportionate or excessive, is to be ascertained and the
High Court in exercise of power of judicial review shall interfere with the
quantum of punishment, if it is excessive. Equally, the Labour Court is
empowered to modify the punishment of dismissal from service under
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Section 11(A) of the Industrial Disputes Act. However, while interfering
with the quantum of punishment, the Labour Court has to assign adequate
reasons for such interference.
33. In the present case, the Labour Court has formed an opinion in
paragraphs 31 and 32 of the award, which would be sufficient enough to
modify the punishment by invoking Section 11(A) of the Industrial Disputes
Act, 1947.
34. Therefore, the Labour Court considered the fact that the 2 nd
respondent along with two employees were inside the office beyond office
hours and the officials held a negotiation with the employees and requested
them to leave the office premises. There was no violence, offensive
statements, misbehaviour or otherwise were found during the protest by the
2nd respondent along with two other employees. Thus, the 2nd respondent
along with two other employees were sitting in the office premises and
protested against the administrative transfers issued against them.
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35. In the context of protest, the Right to Protest is a Constitutional
Right of a Workman. However, Right to Protest is subject to restriction and
the procedures which is to be followed. In the present case, the reason for
the protest seems to be untenable. However, the 2 nd respondent / employee
without any permission or approval from the competent authorities, sat
inside the office premises beyond office hours, which amounts to an illegal
protest, which is a misconduct. Thus, there is no justification for the manner
of protest made by the 2nd respondent by sitting inside the office premises
beyond office hours in order to cause inconvenience to the Higher Officials
of the petitioner / Bank. However, this Court is of the considered opinion
that the punishment of removal from service is harsh, excessive and
disproportionate. Thus, this Court do not find any infirmity in respect of the
modification of punishment by the Industrial Tribunal by invoking the
powers conferred under Section 11(A) of the Industrial Disputes Act, 1947.
36. The long and clean services of about 25 years rendered by the 2nd
respondent / employee to be considered. That apart, 5 years of clean service
rendered by the 2nd respondent, during the pendency of the writ petition is to
be taken note of. The proportionality of the punishment is also to be taken
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into consideration. The 2nd respondent has not committed any act of violence
or vandalisation or grave offence or an act of misbehaviour with the officials
or otherwise. Therefore, the proved charges against the 2nd respondent
cannot be construed as grave to an extent, warranting the major penalty of
removal from service. Thus, the modification of punishment imposed by the
Labour Court to that of reduction of pay to next lower stage is justified and
there is no perversity.
37. Accordingly, this Court has no hesitation in forming an opinion
that the writ petitioners have not established any acceptable ground for the
purpose of interfering with the Award dated 30.12.2016 passed in I.D.No.9
of 2016 and consequently, the award of the Labour Court stands confirmed,
with the following directions:
(a) The 2nd respondent / employee is not entitled for any
back wages as the principles of 'no work no pay' would be
applicable.
(b) The 2nd respondent / employee is entitled for
continuity of service.
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(c) The petitioner / Management is at liberty to transfer
the 2nd respondent / employee to the transferred branch at Lady
Doak College, Madurai or to any other branch in Madurai
District for the remaining period of services, enabling him to
realise the importance of the public services in the interest of
public at large.
38. With the above directions, the Writ Petition stands disposed of.
No costs.
19.10.2022
Jeni
Index : Yes
Speaking order
To
The Presiding Officer
Central Government Industrial Tribunal-
Cum-Labour Court,
Chennai.
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W.P.No.24701 of 2017
S.M.SUBRAMANIAM, J.
Jeni
W.P.No.24701 of 2017
19.10.2022
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