Madras High Court

The Asst. General Manager vs The Presiding Officer on 5 February, 2025

Author: M.Dhandapani

Bench: M.Dhandapani

____________
W.P. No.6155/2011

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE : 05.02.2025

CORAM

THE HONOURABLE MR. JUSTICE M.DHANDAPANI

W.P. NO.6155 OF 2011

The Asst. General Manager
Indian Bank, Circle Head
Circle Office
Pondicherry 605 011. .. Petitioner

- Vs -

1. The Presiding Officer
Central Government Industrial Tribunal
-cum-Labour Court
Chennai.

2. K.B.Chandramouleeswaran .. Respondents

Writ petition filed under Article 226 of the Constitution of India praying

this Court to issue a writ of certiorari calling for the record of the 1st respondent

in ID No.36 of 2007 and quash its award dated 22.7.2010.

For Petitioner : Mr. P.Raghunathan

For Respondents : Mr. K.M.Ramesh, SC, for
Mr. V.Subramani, for R-2

1
https://www.mhc.tn.gov.in/judis
____________
W.P. No.6155/2011

ORDER

Aggrieved by the order of the 1st respondent in directing reinstatement of

the 2nd respondent with 50% backwages, the present petition has been filed by

the petitioner.

2. Tor brevity, the petitioner will be referred to as the ‘Bank’ and the 2 nd

respondent will be referred to as the ‘employee’.

3. The brief facts necessary for the disposal of the present petition are as

under :-

The 2nd respondent joined the services of the Indian Bank on 23.01.1984 as

Clerk/Shroff in Ariyankuppam Branch, Pondicherry. On 15.9.2001, by means of a

memo, allegation was levelled against the 2nd respondent that on 14.8.2001, he

had arrived at the total of Rs.3,50,243/- towards 88 payments in the Rough Cash

Book, which was later altered to Rs.3,52,243/- which resulted in excess cash of

Rs.2,000/- at the hands of the 2nd respondent, thereby, the 2nd respondent

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

misappropriated the same and arrived at the cash balance of Rs.3,70,449.30

which was lodged in the cash safe and that the 2nd respondent held the Rs.2000/-

cash on his person till the same was found out without reporting the same to the

Assistant General Manager and upon questioning, he tendered a withdrawal slip

drawn on his SB A/c No.7328 for the said sum knowing fully well that the

transaction was over for the day, thereby, the 2nd respondent manipulated all the

records of the bank to reflect the said withdrawal.

4. Towards the said memo, the 2nd respondent submitted his explanation

dated 22.9.2001, which, having been found to be not satisfactory, resulted in the

issuance of charge with four charges, vide charge memo dated 20.02.2002, which

is alleged to be a major misconduct under clause 19.5 (j) of the Bipartite

Settlement dated 19.10.1966.

5. The enquiry was proceeded with from 27.5.2002 to 18.7.2002 in which

M.W.1 and M.W.2 were examined and Exs.MEX-1 to MEX-47 were marked on the

side of the bank and on the side of the employee, the employee examined

himself as D.W.1 and no documents were marked. The enquiry officer held the

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

charges proved against the employee/2nd respondent and upon providing a copy

of the enquiry report dated 11.01.2003 to which the 2nd respondent submitted his

explanation on 12.03.2003 and being not satisfied with the said explanation, vide

notice dated 19.09.2003, punishment of removal from service was proposed

against the 2nd respondent to which he replied on 29.9.2003 and after affording

an opportunity of personal hearing to the 2nd respondent on 01.10.2003, during

which time also the 2nd respondent pleaded not guilty, punishment of removal

from service was imposed on the 2nd respondent, vide order dated 9.2.2004.

6. Against the said punishment, the 2nd respondent preferred appeal,

which was rejected on 30.11.2004 without application of mind to the materials.

Aggrieved by the same, the 2nd respondent raised an industrial dispute, which,

upon reference, was taken up in ID No.36/2007 and after adjudication, the

Tribunal held that there are no evidence to point the finger of guilt on the 2nd

respondent and, therefore, directed reinstatement of the 2nd respondent in

service along with 50% backwages, continuity of service and other attendant

benefits. Aggrieved by the same, the present writ petition has been filed by the

Bank.

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

7. Learned counsel appearing for the petitioner submitted that the findings

recorded by the Tribunal are wholly improper and erroneous and not properly

appreciating the evidence submitted by the petitioner. It is the further

submission of the learned counsel that the corrections carried out by the 2nd

respondent in the records of the bank have been accepted and upon the

difference in the amount coming to light, the 2nd respondent had come forward

to make good the loss by submitting withdrawal slip, which clearly shows that act

of misappropriation done by the 2nd respondent. In the light of the above, the

conclusion with regard to the 2nd respondent not being guilty of misappropriation

arrived at by the Tribunal is wholly unwarranted and not sustainable on facts and

the order of reinstatement in the light of the above deserves to be interfered

with.

8. It is the further submission of the learned counsel that even otherwise,

the award was received by the petitioner with the communication dated 6.8.2010

from the Government, which was subsequently published in the Government

Gazette. The 2nd respondent had received a sum of Rs.5,53,805/- towards

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

gratuity and provident fund, which has to be refunded by the 2nd respondent if

the award of reinstatement is to be complied with. However, the 2nd respondent

has not come forward to refund the said amount and, therefore, the order of

reinstatement and consequential backwages could not be complied with.

Therefore, it is prayed that this Court may pass appropriate directions.

9. Per contra, learned senior counsel appearing for the 2nd respondent

submitted that the Tribunal has properly appreciated the materials in proper

perspective and in the absence of material records, which points to the

culpability of the 2nd respondent in the commission of misappropriation, the

Tribunal has rightly interfered with the enquiry report and the consequential

punishment and had ordered reinstatement, which does not require any

interference at the hands of this Court.

10. It is the further submission of the learned senior counsel that the 2nd

respondent has been paid a sum of Rs.5.5 Lakhs and odd, but the consequential

backwages and other benefits receivable by the 2nd respondent works out to

more than rs.10 Lakhs and, therefore, the petitioner is bound to pay amount to

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

the 2nd respondent on account of reinstatement and, therefore, the plea of the

petitioner for the 2nd respondent to refund the amount, paid by the petitioner is

wholly erroneous and not borne out by any materials. Accordingly, he prays for

dismissal of the present petition.

11. In support of the aforesaid submissions, learned senior counsel placed

reliance on the following decisions : -

1) Anil Kumar – Vs – Presiding Officer & Ors. (1985 (3) SCC 78);

2) Rocho (P.B.) – Vs – Union of India & Ors. (1984 (2) LLN 841 (Ker));

3) D.Vincent – Vs – The Director of Government Examinations (1987 WLR 69);

4) Hardwari Lal – Vs – State of UP & Ors. (1999 (8) SCC 582);

5) Kuldeep Singh – Vs – Commissioner of Police & Ors. (1999 (2) SCC 10);

6) Union of India & Ors. – Vs – Gyan Chand Chattar (2009 (12) SCC 78); and

7) Dev Singh – Vs – Punjab Tourism Development Corporation Ltd. & anr. (2003 (8) SCC 9)

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

12. This Court gave its careful consideration to the submissions advanced

by the learned counsel appearing on either side and perused the materials

available on record.

13. The main ground, which was canvassed by the 2nd respondent before

the Tribunal, leading to the punishment being set aside is that of bias on the part

of the enquiry officer. The contentions, which weighed with the Tribunal to set

aside the order of punishment, as seen from the order of the Tribunal is as

follows :-

“11. ..... It is in evidence that there have been other alterations of similar nature in the register on the same day. In order to establish the guilt against the petitioner it is relevant to consider the petitioner has had the mens rea to appropriate to himself a sum of Rs.2,000/- on the day. Comprehensively it is not a case with any evidence to tilt the decision against the petitioner even on preponderance of probability. The complainant has not been examined nor copy of the complaint has been given to the petitioner. There is discrepancy in the case pleaded by the respondent regarding the date of occurrence as 19.08.2021 whereas according to the petitioner it is 14.08.2021. ...... While the case of the petitioner is a total denial of the whole charges including misappropriation of money by him, the charges do not

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

stand proved with some evidence, say, leval evidence or material logically probative to a prudent mind under which it could safely be held that the petitioner is guilty. The complainant viz., Branch Manager not being a witness to the occurrence evidently cannot be said to have had a direct knowledge relating to the incident. His information is what he heard from the Asstt. Branch Manager who was then in-charge of the Branch Manager signifying that the knowledge of the Branch Manager to lodge the complaint is from hearsay information. True, there is no allergy to hearsay provided there is a rational nexus and credibility. In this case both the witnesses from the side of the Managerment as well as on the side of the delinquent are not considtent in their version regarding the aspect that the petitioner admitted before the Asstt. Branch Manager that he had taken the money thinking that he might have made some short payment.”

14. A perusal of the above findings of the Tribunal reveals that the fulcrum

of the case, viz., the complaint, has not been provided to the 2nd respondent.

Further, the complainant, who is the author of the complaint, has not been

examined. Further, not only there is material discrepancy with regard to the date

of occurrence, but there are also interpolations in the Register barring the

interpolation, which is the issue in the present case. Further, the contradiction in

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

the evidence of the witnesses galore, which has led the Tribunal to the finding

that even on the touchstone of preponderance of probability, which is the basis

on which the evidence in an enquiry has to be construed, has not been

established, necessitating the Tribunal to set aside the order of punishment.

15. It is to be pointed out when there are glaring deficiencies in the

evidence and materials, which are necessary to establish the charges, and that

the said documents have not been placed at the time of enquiry, necessarily, the

report of the enquiry officer suffers from perversity bordering bias, more so,

when the report is against the delinquent. Opportunity of fair hearing is the hall

mark of principles of natural justice and when the basic necessities in the form of

providing of report and examination of the witness, who is the complainant, has

not been done, necessarily, the report cannot form the basis for dismissing the

delinquent and, therefore, the Tribunal is well within its power to interfere with

the said punishment, moreso, when the said punishment is perverse and not in

consonance with the materials available on record. When neither the complaint

is provided to the 2nd respondent nor the complainant is examined at the time of

enquiry, there is definitely an element of bias, which strikes at the root of the

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

enquiry report and the punishment, which is the off-shoot of the enquiry report

does not merit acceptance and the Tribunal has rightly interfered with the said

punishment.

16. Though the Tribunal had ordered reinstatement of the 2nd respondent

with backwages and other attendant benefits, however, it is to be pointed out

that the delinquency, which has been alleged to have taken place in the year

2001, more than two decade have passed by now and even when the order had

come to be passed, a decade had passed. Further, the 2 nd respondent has been

paid his gratuity and provident fund and other benefits, which is sought to be

recovered by filing miscellaneous petition, however, which has still not been paid

by the 2nd respondent. In such circumstances, at this distant point of time, after

more than two decades from the date of removal from service, it would not be in

the interest of justice to order reinstatement, as no fruitful purpose would stand

served. In such cases, it has been laid down by the Apex Court that in lieu of

reinstatement, lumpsum compensation could be awarded. The aforesaid ratio

has been laid down by the Apex Court in the case of Senior Superintendent

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

Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Ors., (2010 (2) CCC 169)

wherein, the Apex Court held thus :-

“7. In a recent judgment authored by one of us (R.M. Lodha, J.) in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. MANU/SC/1213/2009 : (2009) 15 SCC 327 the aforesaid decisions were noticed and it was stated:

“7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

* * * * * * *

14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in

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

violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.”

8. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice. In our considered view, the compensation of Rs. 40,000/- to each of the workmen (respondent Nos. 1 to