Madras High Court
B.Sivaramalingam vs The Regional Manager on 21 February, 2025
W.P.No.7118 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 04/02/25
Pronounced on : 21/02/2025
CORAM
THE HONOURABLE DR.JUSTICE A.D.MARIA CLETE
Writ Petition No. 7118 of 2020
B.Sivaramalingam
S/o. G.Balasubramaniam
2B, Surabhi Apartments,
Near Saraswathi Mahal,
Karaikudi. …Petitioner
Vs.
The Regional Manager,
State Bank of India, RBO-II,
Administrative Unit,
No.2, Dr.Ambedkar Raod,
Madurai – 625 002. …Respondent
Prayer in W.P.No.7118 of 2020: To issue a Writ of Certiorarified
Mandamus or any other appropriate Writ or Order or Direction in
the nature of Writ calling for the records connected with the
impugned order dated 18-09-2015 issued by the Presiding Officer,
Central Government Industrial Tribunal cum Labour Court,
Chennai in I.D.No.77/2014 and quash the same and further direct
the respondent to reinstate the petitioner in service with back
wages and continuity of service with all attended benefits from the
date of his dismissal within the time frame as may be fixed by this
Hon’ble Court and pass such further or other orders.
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W.P.No.7118 of 2020
For Petitioner : Mr. Balan Haridas,
Assisted by Mr.Kamatchi Sundaresan
For M/s. Law Square
M/s. S.Sivakumar,
G.P.Arivuchudar,
P.H.C.M.Gandhi,
M.Kamatchi Sundari
For Respondent : Mr.S.Ravindran, Senior Advocate
For Mr. S.Bazeer Ahamed and R.Anuja
JUDGMENT
Heard.
2. The Petitioner, who was working as an Assistant at the
Respondent Bank's Ramanathapuram Branch, has filed this writ
petition challenging the Award dated 18.09.2015 passed by the
Central Government Industrial Tribunal-cum-Labour Court,
Chennai, in I.D. No. 77 of 2014 which was corrected by order in
I.A.No.36/2019 on 9.8.2019 wherein and by which he was denied
any relief and the I.D. was dismissed.
3. The writ petition was admitted on 20.03.2020. The
Respondent entered an appearance and filed a counter affidavit
dated 20.01.2022, along with a typed set of documents dated
15.06.2023. The matter was initially heard by a learned Judge,
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who reserved orders on 14.06.2024. However, on 08.08.2024, the
learned Judge reopened the matter for further hearing and directed
that it be placed before the appropriate bench handling similar
matters. Consequently, the case was listed before this Court.
Elaborate arguments were heard and several authorities were cited
by both sides.
4. Before approaching the authorities and the labour
department, the Petitioner initially filed a writ petition (W.P. No.
5607 of 2005) challenging his dismissal order dated 27.04.2004,
which was subsequently confirmed by the appellate authority on
17.08.2004. However, after keeping the matter pending for over
six years, he withdrew the writ petition on 06.04.2011 and
proceeded to raise an industrial dispute before the Central
Government Labour Department. As the Conciliation Officer was
unable to facilitate a settlement between the parties, a failure
report was submitted to the Central Government. Upon receiving
the failure report and considering the matter, the Central
Government issued an order of reference under Section 10(1) of
the Industrial Disputes Act for adjudication of the dispute
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concerning the Petitioner's dismissal, vide Reference No.
L-12012/43/2014-IR (B.1) dated 17.09.2014. Pursuant to the
reference, the Central Government Industrial Tribunal-cum-
Labour Court (CGITLC) took the dispute on file as I.D. No. 77 of
2014 and issued notices to the parties.
5. The Petitioner filed his claim statement dated Nil in 2014,
while the Respondent submitted its counter statement dated Nil
November 2014. Subsequently, the Petitioner filed a rejoinder
statement on 15.12.2014. As the Petitioner challenged the validity
of the domestic inquiry conducted against him, the Labour Court
framed a preliminary issue and proceeded to hear the matter. By
an order dated 06.05.2015, the Labour Court rejected the
Petitioner's challenge. It held that issues concerning the absence of
examination of the complainant and the marking of documents
without examining relevant witnesses were matters affecting the
merits of the case and could be argued in the main dispute. The
Supreme Court has clarified that such preliminary orders need not
be challenged immediately and can be contested along with the
final award if it goes against a party. In the present case, while the
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Petitioner has included a copy of the preliminary order at Page
107 of the typed set filed along with the writ petition, the main
writ petition does not contain a specific prayer for setting aside the
preliminary order.
6. The Management also filed an additional counter statement
contending that the Petitioner's dispute against the dismissal order
dated 24.07.2004 was raised beyond the prescribed limitation
period. They relied on the amendment introduced by Amendment
Act 24 of 2010 to the Industrial Disputes Act, specifically Section
2A(2)(iii), which stipulates a three-year limitation period. This
amendment was notified by the Central Government with effect
from 15.09.2010. In light of the amended provisions of the
Industrial Disputes Act, the dispute was barred by limitation.
7. Before the Labour Court, the Petitioner examined
himself as WW1 and submitted 14 documents, marked as Ex.W1
to Ex.W14, in support of his case. On the other hand, the
Management did not present any oral evidence, relying instead on
the domestic inquiry conducted by them. They submitted 13
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documents, which were marked as Ex.M1 to Ex.M13. Upon
analyzing the evidence, the Labour Court found the first three
charges against the Petitioner to be proved, categorizing them as
serious misconduct. Consequently, it determined that the
Petitioner was not entitled to any relief and, in paragraph 18 of its
order, concluded as follows:
“An employee who is dealing with the public
money is expected to be honest and straight in his
transactions. The conduct of the petitioner was against
this expectation. For the proved misconducts itself, the
punishment imposed on him is not inappropriate. The
petitioner is not entitled to any relief.”
8. It is seen from the records that the Petitioner was
suspended pending inquiry into the charges by an order dated
13.07.2002 (Ex.W1). A charge memo was issued to him,
containing four charges. As the CGIT concluded that the fourth
charge was not proved, it is necessary to refer only to the first
three charges mentioned in the charge memo dated 04.06.2003
(Ex.W2). These three charges are extracted below:
“Charge No.1:
On 7/5/2002, you obtained six STDRs, discharged on the
reverse, along with a request letter for closure of S.B.
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Account No. 0119 00 17273 and a blank SB withdrawn
form from Smt. Sathiyabama, a branch customer.
But you had unauthorizedly utilized the above request
letter obtained from Smt. Sathiyabama and closed STDR
No.727 324 (Account No. 0129009343) for Rs.54299/- (in
the bunch of six STDRs handed over to you by her for
renewal)
Thus you had betrayed the trust reposed by the customer
in you and acted detrimental to the interest of the Bank.
Charge No.2:
On 7/5/2002, you had fraudulently withdrawn Rs.54300/-
from SB Account No.011900 17273 of Smt. Sathiyabama
utilizing the blank SB withdrawal form obtained from her
and received cash for the same from the Payment
Cashier and had utilized the amount for your personal
benefit without the knowledge of the customer.
Charge No.3:
On 14/5/2002, you had prepared STDR No.815987
(Account No.012920 11892 04) for Rs.54367/- in the
name of Smt. Sathiyabama by removing one Special Term
Deposit Receipt Security Form from Shri Samuel
Gnanaraj, Assistant without his knowledge and without
accounting for the same in the books of the branch, you
had forged the signature of the Accountant in the above
Special Term Deposit Receipt.”
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9. After issuing a notice (Ex.W3) to the Petitioner an
inquiry was conducted from 15.10.2003 to 02.12.2003 (Ex.W4).
The Inquiry Officer submitted his report on 22.01.2004 (Ex.W7),
in which the Petitioner was found guilty of all four charges. The
Petitioner submitted his remarks on the report on 10.03.2004
(Ex.W8). After considering the materials on record, the
Respondent provided the Petitioner with a personal hearing by an
order dated 30.03.2004, and subsequently, he was dismissed from
service through an order dated 27.04.2004 (Ex.W9). Aggrieved
by the dismissal, the Petitioner filed an appeal before the Deputy
General Manager, the Appellate Authority, on 17.06.2004
(Ex.W10). The Appellate Authority, after affording a personal
hearing (Ex.W12), rejected the appeal by an order dated
07.08.2004 (Ex.W14). Regrettably, the legality of this dismissal
order has come up for adjudication after two decades. This delay
is partly attributable to the Petitioner himself, who filed a direct
writ petition, which remained pending for six years. The
adjudication of the dispute then took another year, and despite the
so-called rectification order being issued by the Central
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Government after five years, the Petitioner approached this Court
only after a further delay of five years.
10. The Petitioner had been employed at the
Ramanathapuram branch for 10 years and was well acquainted
with Smt. Sathiyabama, a customer who maintained a savings
bank account at the branch. She also held six Special Term
Deposit Receipts (STDRs), each valued at Rs. 50,000, which
were set to mature on 14.05.2002. A week prior to the maturity
date, Smt. Sathiyabama visited the bank and submitted a formal
request for the closure of her savings account. The request was
received by the Petitioner, as he was familiar with her. On the
same day, she also handed over the six STDRs to him, despite
their maturity date being 14.05.2002. The Petitioner assured her
that he would renew them and return them to her. Subsequently,
on 09.05.2002, the Petitioner closed her savings account and
returned her passbook. He also proceeded to renew all six
STDRs, setting their new maturity date to 14.11.2002.
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11. On 10.07.2002, Smt. Sathiyabama visited the branch
with two renewed STDRs and submitted a letter requesting
foreclosure. However, a review of the account transactions
revealed that on 07.05.2002, an amount of Rs.54,299 had been
credited to her account, while Rs.54,300 had been withdrawn on
the same day. It was only upon discovering this discrepancy that
Smt. Sathiyabama realized she had been deceived. Consequently,
she lodged a written complaint with the Chief Manager (Ex.M8).
When questioned about the matter, the Petitioner submitted a
written response dated 10.07.2002 (Ex.M9), which stated as
follows:
“Sathiyabama W/o. Senthil is my family friend.
She wanted to renew 6 STDR cash for Rs.50,000/- and
since it was not matured I told her to come on that date.
In the meanwhile, she needed Rs.15,000/- and so I closed
1 STDR prematurely and credit in her account and
withdraw Rs.54,300/-. I gave her Rs.15,000/- and kept
the balance with me. She gave Rs.15,000/- on the date of
maturity of STDR . By mistake I filled one STDR form
and signed myself and given. I had given STDR renewal
till 14.05.2002 to her. I assure that apart from this, I
have not done any mistake causing loss to the bank. I
kindly request you to apologize my mistake and help
me.”
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12. The CGIT, upon perusal of these documents, found that
when the charge sheet (Ex.W2) was issued to the Petitioner, he
did not submit any written explanation in response. Although the
Petitioner later claimed that he had orally denied the charges, he
failed to take any specific stand even at the commencement of the
inquiry proceedings. In the inquiry proceedings, the defense
representative had virtually admitted about the fact that there were
transactions between the Petitioner and the complainant
Sathiyabama and they had monetary transactions. This will
reinforce the fact that the Petitioner had done some transaction on
7.5.2002. Further, in the statement marked as Ex.M9, though later
claimed that it was obtained under coercion, but there was no
evidence for the same and that the letter was written by the
Petitioner in his own hand. Furthermore, in the statement marked
as Ex.M9, the Petitioner initially admitted to the transactions.
Although he later alleged that this statement was obtained under
coercion, there was no supporting evidence to substantiate this
claim. Also, it was established that the letter was written in the
Petitioner’s own handwriting.
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13. Regarding the alleged coercion in obtaining the letter
marked as Ex.M9, the CGIT considered the precedent cited by the
Management—Orissa Mining Corporation vs. Ananda Chandra
Prusty, reported in 1996 (11) SCC 600. The Tribunal took note of
the following passage from the judgment and held that the ruling
was relevant to the present case:
“On a consideration of the totality of the facts
and circumstances of the case including the nature of
charges we are not inclined to interfere in the matter.
The position with respect to burden of proof is as
clarified by us hereinabove viz., that there is no such
thing as an absolute burden of proof, always lying upon
the department in a disciplinary inquiry. The burden of
proof depends upon the nature of explanation and the
nature of charges. In a given case the burden may be
shifted to the delinquent officer, depending upon his
explanation. For example take the first charge in this
case. The charge was that he made certain false notings
on account of which loans were disbursed to certain
ineligible persons. The respondent's case was that those
notings were based upon certain documents produced
and certain records maintained by other employees in
the office. In such a situation it is for the respondent to
establish his case. The department is not expected to
examine those other employees in the office to show that
their acts or records could not have formed the basis of
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wrong nothings made by the respondent.”
14. Thereafter it held as follows:-
“In this the petitioner has stated that when
Sathya Bama came for renewing the receipts for
Rs.50,000/- each, he had told her that the maturity date
was not over and had asked her to come later. Since
she wanted Rs.15,000/- he had foreclosed one receipt
and had credited it to her account and paid Rs.15,000/-
to her. He has then admitted that he has taken the
balance amount to himself. This amounts to an
admission on the part of the petitioner that the balance
amount out of the amount credit to the account of
Sathya Bama has been taken by himself. When such an
admission is made, it is for the petitioner to explain
under what circumstances he happened to retain the
amount. So far as the management is concerned it is
proved by the admission of the petitioner that he
retained the amount. When it is admitted by the
petitioner that the document was given by him in his
hand it is for him to establish that it was obtained from
him by coercion by the Management. The burden to
prove this has shifted to him in view of the very case set
up by him. The petitioner has not lifted a finger to
prove that Ex.M9 is the document that has come out of
coercion and it was not voluntarily given by him. When
Ex.M9 is read along with other documents it is clear
that he had fraudulently withdrawn the amount and
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utilized it by himself.”
15. Regarding the second part of the admission in Ex.M9,
the CGIT, in Paragraph 16, held as follows:
“The next part of admission made by the
petitioner in Ex.M9 makes the above fact more clear
apart from proving the third charge also. It is clear from
Ex.M9 that Sathya Bama had approached the petitioner
on 14.05.2002, the date on which the deposits were to
mature. According to the petitioner, by mistake he had
written one deposit receipt, signed it himself and had
given it to Sathya Bama. The case of the Respondent is
that the deposit receipt was forged by the petitioner. This
was because he had foreclosed one of the deposit
receipts without her knowledge and had utilized the
amount by himself. No other explanation can be given
for the petitioner managing to fill up a deposit form,
signing it himself and giving it to Sathya Bama.”
16. The CGIT found that Ex.M9 did not pertain to the
fourth charge, and therefore, that charge could not be considered
proven. However, since the first three charges were established,
the Tribunal denied any relief to the workman, as previously
noted. That said, the Tribunal’s award is not very happy reading
and at some places it has made some loose observations which
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tend to contradict the final conclusions reached. In Paragraph 11,
it made the following observations:
“Of course there is sufficient force in the
argument advanced on behalf of the petitioner that in
the absence of examination of Sathya Bama the
complaint given by her could not have been accepted in
evidence or relief upon by the Enquiry Officer. The
counsel for the Respondent has of course argued that
the document has been marked without any objection
and the petitioner could not raise any objection
regarding the marking of the document later. However,
mere marking of the document could not be proof of the
document itself. It was incumbent upon the Management
to examine the complainant.”
17. Leveraging these observations, the learned counsel for
the Petitioner-workman relied on the judgment of the Supreme
Court in Neeta Kaplish vs. Presiding Officer, Labour Court &
Anr., reported in 1999 (1) SCC 517. He specifically emphasized
the concluding remarks made by the Supreme Court, which are as
follows:
“Having regard to the findings recorded by the
Labour Court that the domestic enquiry was not properly
and fairly held and an effective opportunity of hearing was
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not given to the appellant, the Labour Court was right in
calling upon the Management to lead fresh evidence. Since
the Management did not lead any fresh evidence on merits,
the appellant was well within her right to say that she, too,
would not lead any fresh evidence. But, for that reason, her
claim could not be rejected- Rather, she was entitled to be
granted relief then and there. However, having regard to
the entire circumstances of me case particularly when the
Labour Court had itself found that the enquiry was not
fairly and properly held, we allow the appeal, set aside the
judgement of the High Court and that of the Labour Court
and remand the case back to the Labour Court to decide the
case afresh after requiring the parties to lead fresh
evidence on merits in pursuance of its order dated
21.11.1995. Having regard to the fact that the appellant
was removed from service on 04.04.1987, we direct that the
Labour Court shall dispose of the whole matter within three
months from this date on which the certified copy of this
Judgment is produced before it.”
18. In this case, however, the Petitioner did not challenge
the Preliminary Order passed by the CGIT, despite having the
opportunity to do so. Nevertheless, the Tribunal thoroughly
considered the matter and rendered its findings on the evidentiary
value of Ex.M9. It also discounted the workman's claim of
coercion, holding that the burden of proof rested upon the
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workman. The next decision cited by the counsel for the workman
was Roop Singh Negi vs. Punjab National Bank & Ors., reported
in 2009 (2) SCC 570. Reliance was placed on the passage from
Paragraph 23, which reads as follows:
“…the order of the disciplinary authority as also
the appellate authority are not supported by any reason.
As the orders passed by them have severe civil
consequences, appropriate reasons should have been
assigned. If the enquiry officer had relied upon the
confession made by the appellant, there was no reason as
to why the order of discharge passed by the Criminal
Court on the basis of self-same evidence should not have
been taken into consideration. The materials brought on
record pointing out the guilt are required to be proved. A
decision must be arrived at on some evidence, which is
legally admissible. The provisions of the Evidence Act may
not be applicable in a departmental proceeding but the
principles of natural justice are. As the report of the
Enquiry Officer was based on merely ipse dixit as also
surmises and conjectures, the same could not have been
sustained. The inferences drawn by the Enquiry Officer
apparently were not supported by any evidence. Suspicion,
as is well known, however high may be, can under no
circumstances be held to be a substitute for legal proof.
For the aforementioned reasons, the judgment of
the High Court is set aside. The appeal is allowed with
costs and appellant is directed to be reinstated with full
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back wages.”
19. The learned counsel further relied on four judgments of
the Supreme Court, all of which arose under Article 226 of the
Constitution. The judgments cited, along with the specific
paragraphs relied upon, are as follows:
a.M.V.Bijlani Vs. Union of India (2006 (5) SCC 8)
“It is true that the jurisdiction of the court in
judicial review is limited. Disciplinary proceedings,
however, being quasi-criminal in nature, there should be
some evidences to prove the charge. Although the charges
in a departmental proceedings are not required to be
proved like a criminal trial, i.e., beyond all reasonable
doubts, we cannot lose sight of the fact that the Enquiry
Officer performs a quasi-judicial function, who upon
analysing the documents must arrive at a conclusion that
there had been a preponderance of probability to prove
the charges on the basis of materials on record. While
doing so, he cannot take into consideration any irrelevant
fact. He cannot refuse to consider the relevant facts. He
cannot shift the burden of proof. He cannot reject the
relevant testimony of the witnesses only on the basis of
surmises and conjectures. He cannot enquire into the
allegations with which the delinquent officer had not been
charged with.
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The report of the Enquiry Officer suffers from the
aforementioned vices. The orders of the disciplinary
authority as also the appellate authority which are based
on the said Enquiry Report, thus, cannot be sustained. We
have also noticed the way in which the Tribunal has dealt
with the matter. Upon its findings, the High Court also
commented that it had not delved deep into the contentions
raised by the Appellant. The Tribunal also, thus, failed to
discharge its functions properly.”
b.State of Uttranchal & Ors. Vs. Kharak Singh (2008 (8) SCC
236)
“14) A reading of the enquiry report also shows that
the respondent herein was not furnished with the required
documents. The department's witnesses were not examined
in his presence. Though the respondent who was the writ
petitioner specifically stated so in the affidavit before the
High Court in the writ proceedings, those averments were
specifically controverted in the reply affidavit filed by the
department. Mere denial for the sake of denial is not an
answer to the specific allegations made in the affidavit.
Likewise, there is no evidence to show that after submission
of the report by the enquiry officer to the disciplinary
authority, the respondent herein was furnished with the
copy of the said report along with all the relied upon
documents. When all these infirmities were specifically
pleaded and brought to the notice of the appellate authority
(i.e. Forest Conservator), he rejected the same but has not
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pointed the relevant materials from the records of the
enquiry officer and disciplinary authority to support his
decision. Hence, the appellate authority has also committed
an error in dismissing the appeal of the respondent.
15) After taking note of all the infirmities and in the
light of the various principles enunciated by this Court, the
High Court has rightly interfered and quashed the orders
dated 05.03.1986 passed by the Divisional Forest Officer,
Haldwani as well as order dated 27.04.1991 passed by the
Conservator of Forest, Western Circle, Nainital.”
c. Union of India & Ors. Vs. Gyan Chand Chattar (2009 (12) SCC
78)
“29. …law can be summarized that an enquiry is to
be conducted against any person giving strict adherence to
the statutory provisions and principles of natural justice.
The charges should be specific, definite and giving details
of the incident which formed the basis of charges. No
enquiry can be sustained on vague charges. Enquiry has to
be conducted fairly, objectively and not subjectively.
Finding should not be perverse or unreasonable, nor the
same should be based on conjunctures and surmises. There
is a distinction in proof and suspicion. Every act or
omission on the part of the delinquent cannot be a
misconduct The authority must record reasons for arriving
at the finding of fact in the context of the statute defining the
misconduct.
30. In fact, initiation of the enquiry against the
respondent appears to be the outcome of anguish of
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superior officers as there had been agitation by the Railway
staff demanding the payment of pay and allowances and
they detained the train illegally and there has been too
much hue and cry for several hours on the Railway Station.
The Enquiry Officer has taken into consideration the non-
existing material and failed to consider the relevant
material and finding of all facts recorded by him cannot be
sustained in the eyes of law.
31. There could be no case of substantial
misdemeanour against the respondent on either of the
aforesaid charges except Charge No. 6 on which major
penalty could be imposed. Charge No. 6 is totally vague and
no enquiry could be conducted against the respondent on
such a charge. It was basically a case of no evidence on any
charge except Charge Nos. 4 & 5.
32. In fact, it was a simple case where the respondent
employee failed to prove to be a tactful person or
possessing a high standard administrative capability or
firmness or a man of possessing quality of leadership. It
might be a case of his indecisiveness or lack of presence of
mind. It cannot be held that any of the aforesaid charges
except Charge No. 6, may warrant imposition of major
punishment of removal. Thus, no interference is required in
the matter.
33. The Division Bench, after considering the fact
that already 20 years has lapsed and judgment of the
learned Single Judge has not be complied with, considered
it better to close the chapter awarding him 50% of the back
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wages and granted all consequential benefits including the
retiral benefits.
34. Today, the situation has become worst. About
three decades have elapsed; the respondent has not been
paid his pay since the date of his suspension i.e. 29.11.1980,
facing the disciplinary proceedings and litigation, he
reached the age of superannuation long back. Thus, it is in
the interest of justice that his mental agony and harassment
should come to an end.
35. Therefore, we dispose of the appeal directing the
present appellant to pay 50% of the pay and allowances
without interest till the respondent reached the age of
superannuation and arrears of retiral benefits with 9%
interest to the respondent-employee within a period of three
months from today.”
d. The General Manager Personnel Syndicate Bank & Ors.
Vs. B S N Prasad (Civil Appeal No. 6327 of 2024 dated
21.1.2025)
“23. It is well settled that the exercise of powers by
the disciplinary authority is always subject to principles of
proportionality and fair play. In the facts of the case, the
financial loss caused to the appellant was reimbursed. The
respondent, at every stage, fairly accepted his mistakes. The
respondent, while replying to the notice and the letters
addressed to him by the appellant, repeatedly pointed out
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that he had to deal with more than 4,800 SKCC accounts
during a short period of 60 days. Therefore, he worked
under pressure all along. Moreover, he stated that he was
in short receipt of crop insurance claims pertaining to
2,500 farmers to the extent of ? 50 lakhs. Therefore, the
farmers and political leaders pressurized him.
24. The respondent was employed in the appellant
bank on 5th August, 1985 and had an unblemished record
for more than 21 years till 11th June 2007. We have
perused the Syndicate Bank Officer Employees (Discipline
and Appeal) Regulations, 1976 (for short “the Disciplinary
Regulations”).
Under Regulation 4, there is a provision for
imposing minor penalties and major penalties. The
respondent has already reached the age of superannuation.
In our view, the penalty of dismissal was disproportionate
to the misconduct established against the respondent and
his unblemished career for a long time. However, fact
remains that the misconduct alleged and proved against the
respondent was of a serious nature considering the fact that
a very high standard of conduct is expected from a branch
manager of a Bank. Considering the facts of the case, we
are of the view that a minor penalty, as provided
in Regulation 4(e) of the Disciplinary Regulations, would
be appropriate. The penalty will be of reducing the
respondent to a lower stage in the time scale of pay for a
period of one year, without cumulative effect and not
adversely affecting his pension.”
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20. Reference was also made to the judgment of this Court
in W.P. No. 22895 of 2008 dated 25.01.2018 in A. Thangavelu vs.
Presiding Officer & Another, wherein the following observations
were made:
“15. ….this Court is of the view that there is
merit in the contentions put forth by the learned counsel
for the petitioner. The Tribunal has side stepped its own
observation made in favour of the petitioner and
proceeded to hold against the petitioner in passing the
final award. Moreover, the award as such, does not
disclose whether the Tribunal has considered the
application of Section 11-A of the Industrial Disputes
Act, particularly, in regard to the proportionality of the
punishment imposed on the petitioner.”
21. The aggrieved bank preferred an appeal in Writ Appeal
No. 595 of 2018 (State Bank of India vs. A. Thangavelu &
Others), which was dismissed by a Division Bench vide order
dated 13.04.2018. In the concluding portion, the Division Bench
observed as follows:
“10. ..…we do not find any justification to
interfere with the order passed by the learned Single
Judge. The writ appeal is dismissed. It appears that the
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first respondent herein is due for superannuation by
30th April 2018 and therefore, the Management can
impose any other punishment as ordered by the learned
Single Judge. The respondent would be entitled to all
consequential benefits excluding the punishment to be
imposed by the Bank exercising its discretion.”
22. The Bank took up the matter further on appeal to the
Supreme Court in Civil Appeal No. 8202 of 2019 (State Bank of
India Vs. A.Thangavelu) which was also dismissed on 22.10.2019.
The Supreme Court held as follows:-
“2. Considering the facts and circumstances of the
case, the Single Judge as well as Division Bench of the
High Court considered it appropriate to remit the matter to
the Bank for imposing appropriate punishment. However,
subsequent event has taken place and the delinquent
employee has attained the age of superannuation on
30.04.2018, it would not serve any useful purpose by
remitting the matter back to the Disciplinary Authority to
pass order of punishment and then to have another round
of litigation.
3. To set at rest all the controversies, in the
peculiar facts and circumstances of the case and nature
of charges levelled we direct that no fresh punishment
need be imposed, as we deny the back-wages to the
delinquent till the date he attained the age of
superannuation that will meet ends of justice to the
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parties. The respondent shall be only entitled to
continuity of service till the age of superannuation and
would be given the pensionary and other benefits to be
worked out on the basis the last pay he would have
drawn had he been continued in service. The order is
modified accordingly.
4. This order has been passed in the peculiar facts
and circumstances of the case.
Let dues be finalized and the amount due be paid within
three months.”
23. It is pertinent to note that these judgments were
delivered in the context of writ petitions filed before this Hon’ble
Court and did not arise from an Award passed by the Tribunal
under the Industrial Disputes Act (I.D. Act), where the Tribunal's
powers are specifically delineated under Section 11-A of the Act.
Further, the circumstances that were pointed out in these
judgments relating to the conduct of a domestic inquiry did not
arise in the present case. Here, after the inquiry was found to be
vitiated, fresh evidence was presented before the Tribunal, which
appropriately evaluated the material and rightly held the workman
guilty.
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24. The learned counsel also referred to my judgment in A.
Kanakaraj & Others vs. Presiding Officer, Labour Court,
Coimbatore-2, reported in 2025 (1) CTC 152 (Mad), wherein I
had the opportunity to examine the scope of Section 11-A of the
Industrial Disputes Act. In that case, evidence was presented for
the first time before the Labour Court, and the labour court did not
appreciate and render correct findings on the basis of materials on
record. However, the said judgment is not applicable to the
present case.
25. Although the management raised the issue of limitation
under Section 2A(3) of the I.D. Act, no substantial arguments
were advanced on this point. In any case, Sections 2A(2) and
2A(3) provide as follows:
“2A(2) Notwithstanding anything contained in
section 10, any such workman as is specified in sub-
section (1) may, make an application direct to the
Labour Court or Tribunal for adjudication of the dispute
referred to therein after the expiry of forty-five days from
the date he has made the application to the Conciliation
Officer of the appropriate Government for conciliation of
the dispute, and in receipt of such application the Labour
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Court or Tribunal shall have powers and jurisdiction to
adjudicate upon the dispute, as if it were a dispute
referred to it by the appropriate Government in
accordance with the provisions of this Act and all the
provisions of this Act shall apply in relation to such
adjudication as they apply in relation to an industrial
dispute referred to it by the appropriate Government.
2A(3) The application referred to in sub-section
(2) shall be made to the Labour Court or Tribunal before
the expiry of three years from the date of discharge,
dismissal, retrenchment or otherwise termination of
service as specified in sub-section (1).”
26. The present case does not fall within the ambit of
Section 2A(3) of the I.D. Act, as the Central Government, by its
order dated 17.09.2014, made a reference under Section 2A read
with Section 10(1)(d) of the I.D. Act. This is not a situation where
the workman, having failed in conciliation, directly approached
the Tribunal with a claim statement to invoke the benefit of
Section 2A(2) of the I.D. Act. Furthermore, following the
dismissal order dated 07.08.2004, the workman filed a writ
petition (W.P. No. 5607 of 2005) and subsequently withdrew it
with the liberty to raise an industrial dispute. This liberty was
expressly granted by the Court's order dated 06.04.2011. Pursuant
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to this order, the workman raised a dispute before the Assistant
Labour Commissioner, Madurai. The Conciliation Failure Report
was forwarded to the Central Government on 30.06.2014,
following which, by exercising its powers under Section 10(1)(d)
read with Section 2A, the Central Government, by its order dated
17.09.2014, referred the dispute for adjudication by the Central
Government Industrial Tribunal (CGIT). The CGIT registered the
dispute as Case No. 77/2014 and issued notices to the parties.
Accordingly, there is no delay on the part of the petitioner in
raising the dispute and securing adjudication by the CGIT. The
preliminary objection raised by the management is therefore
overruled.
27. The learned Senior Counsel for the Respondent Bank
drew the attention of this Court to the following judgments of the
Hon'ble Supreme Court in this regard and highlighted the relevant
passages extracted below:
a. Tara Chand Vyas Vs. Chairman & Disciplinary Authority &
Ors. (1997 (4) SCC 565)
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“…..It is based upon the documentary evidence which
has already been part of the record and copies thereof had
been supplied to the petitioner. Under those circumstances, we
do not think there is that any manifest error apparent on the
face of the record, warranting interference. It is then
contended that no reasons have been given in support of the
conclusions to substantiate the charges. The enquiry officer
had elaborately discussed each charge and given reasons
which were considered by the disciplinary authority and reach
the conclusion that the charges were proved. So, had the
appellate authority. They are not like civil Court.”
b. Janatha Bazar (South Kanara Central Cooperative Wholesale
Stores Ltd) & Ors. Vs. Secretary, Sahakari Noukarara Sangha &
Ors. (2000 (7) SCC 517)
“7. ….the High Court materially erred in confirming
the directions given by the Labour Court in reinstating the
respondent-workmen with 25% back wages. For giving the
aforesaid direction, the Labour Court considered that there
is no evidence regarding past misconduct by the employees
and, therefore, it can be observed that they have rendered
several years of service without any blemish and to some
extent, there was lapse on the part of the Management.
8. In case of proved misappropriation, in our view,
there is no question of considering past record. It is the
discretion of the employer to consider the same in
appropriate cases, but the Labour Court cannot substitute
the penalty imposed by the employer in such cases.”
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c. State Bank of India Vs. Tarun Kumar Banerjee & Ors. (2000(8)
SCC 12)
“If we look at the evidence adduced in the present
case, it is given by three witnesses who are the officers of
the appellant-Bank - (i) Shri A.R. Dutt, the Branch
Manager, (ii) Shri S.K. Mitra, Head Clerk and (iii) the
present Bank Manager. The evidence of Shri A.R. Dutt is
that on the date of occurrence a lady depositor produced
two pay-in-slip consisting of draft application forms and a
saving bank deposit form, each for Rs. 1,000 only plus
Bank's commission for draft application form which were
passed by the Accounts clerk for deposit in cash
department. The amount was received by the first
respondent' who Was acting as Head Cashier. The lady
customer did not produce the savings bank pay-in-slip at
the cash counter but delivered Rs. 3,000 as told by her to
him with two draft application forms. At about 1 p.m. the
lady with her husband came to him and complained that
she had deposited Rs. 3,000 and odd with the cashier but
did not receive the savings Bank pay-in-slip nor the excess
amount refunded to her by the Cashier. On the receipt of
the information he personally went to the cash department
and checked the cash but did not find any excess amount
therein. On asking the first respondent about the amount
received by him he completely denied the same. He asked
the Accountant to check the cash in the strong room and
searched the Cashier concerned whether he has any cash
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of Rs. 1,000 with him. There was no excess cash found in
the strong room. When at about 4.30 p.m. he asked the
Accountant to search the Cashier, respondent No. 1, the
Accountant then started checking him, he personally went
out of room and saw the first respondent throwing the
bundles of notes by the side of the wall in the accounts
department, the possession of which was taken by him and
he questioned respondent No. 1 about the same.
Respondent No. 1 told him that he had put the money in his
socks. On next Monday he took a statement in writing duly
signed by the first respondent and reported the matter to
the Head Office and thereafter respondent No. 1 was put
under suspension under instructions from Head Office. In
the cross- examination nothing worthwhile was elicited to
tilt the evidence tendered in the examination-in-chief. This
statement of Shri A.R. Dutt is corroborated by Shri S.K.
Mitra who was Head Clerk at the relevant time. Again
nothing worthwhile is elicited in his cross-examination
except to state he belonged to S.B.S.S.A. The Tribunal,
however, went on to say that even though the first
respondent had not examined himself nor was any cross-
examination directed at the witnesses to the question of his
being a victim of conspiracy by the employees of the
appellant-Bank who are members of another rival Union to
which he belonged and 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
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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.
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.”
d. Indian Overseas Bank & Ors. Vs. Om Prakash Lal Srivastava
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(2022 (3) SCC 803)
“15. We would like to emphasise at the threshold
that there are certain inherent legal limitations to the
scrutiny of an award of a Tribunal by the High Court while
exercising jurisdiction under Article 226 of the Constitution
of India. We may refer to the judgment of this Court in GE
Power India Ltd. (Formerly Known as M/s. Alstom Projects
Ltd.) v. A. Aziz2. If there is no jurisdictional error or
violation of natural justice or error of law apparent on the
face of the record, there is no occasion for the High Court
to get into the merits of the controversy as an appellate
court. That too, on the aspect of an opinion formed in
respect of two sets of signatures where the inquiry was held
by an officer of the bank who came to an opinion on a bare
comparison of the signatures that there is a difference in
the same. It has been looked at from the perspective of a
“banker’s eye”. This is, of course, apart from the testimony
of the sister- in-law of the respondent.
16. We have in the course of noting the submissions
of the learned counsel for the parties in the context of the
factual matrix recorded in para 9 that the Inquiry Officer
had himself opined while observing the admitted signatures
in comparison with the signatures in question from a
“banker’s eye”, it was not just the ipse dixit of the Inquiry
Officer but was based on the deposition of the sister-in-law
of the respondent, Mrs. Meera Srivastava. The deposition
of Mrs. Meera Srivastava was clear and unambiguous. She
was staying in a joint family of which the respondent was a
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part. She unfortunately lost her husband in an accident.
The two drafts were received from his employer and those
drafts were kept in custody with the respondent, possibly
because he was a banker and the elder brother of her
deceased husband. Instead of extending the benefits of the
same to her, the respondent went on a path of opening an
account jointly in his and his sister-in-law’s name,
presenting the drafts, and drawing the amounts with
appropriation of the same to himself. Mrs. Meera
Srivastava had not even visited the bank to sign the account
opening form or the signature cards, nor had she presented
the drafts or signed the encashment vouchers. In fact, it is
only when she complained about not receiving the amount
that the bank inquired into it and, at least, the money was
transferred to her. Her cross-examination elicited nothing,
nor for that matter was it put to her in cross-examination
that she had ever visited the bank, opened the account or
signed the encashment vouchers. The relationships in the
family were not estranged nor was there any endeavour to
“fix” the respondent by a relative. In our view this evidence
was enough to implicate the respondent.
17. The High Court appears to have applied the test
of criminal proceedings to departmental proceedings while
traversing the path of requirement of a hand writing expert
to be called for the said purpose. This would go contrary to
the settled legal position enunciated by this Court. It would
suffice for us to refer to a recent judgment in Ashoo
Surendranath Tewari v. Deputy Superintendent of Police,
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EOW, CBI 3 where it has been observed while referring to
earlier judicial precedents, that the standard of proof in
departmental proceedings, being based on preponderance
of probability, is somewhat lower than the standard of
proof in criminal proceedings where the case has to be
proved beyond reasonable doubt.
18. We may also notice that the High Court has
opined that only charges 4 & 5 could really have been gone
into by the Industrial Tribunal, which required further
evidence in its opinion, of a hand writing expert. So far as
the other charges are concerned, a conclusion was reached
that no further evidence was led.
19. In our view this is neither the correct approach
nor borne out of the record. Evidence was led. Even
earlier, the material in respect of other charges emanates
from the record of the bank which shows the conduct of the
respondent which are apparent from the manner of framing
of the charges themselves and the material led in support
thereof. Thus, even the aspect of the other charges could
not have been brushed aside in the manner it purports to.
On the matter being remitted back, two witnesses (2020) 9
SCC 636 deposed as to these aspects, being MW-3 and
MW-4. The respondent was a clerk-cum-cashier. It is a post
of confidence. The respondent breached that confidence. In
fact, the respondent breached the trust of a widowed sister-
in-law as well as of the bank, making it hardly a case for
interference either on law or on moral grounds. The
punishment imposed on the respondent could also hardly be
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said to be disproportionate. The conduct established of the
respondent did not entitle him to continue in service.”
e. United Bank of India Vs. Bachan Prasad Lall (2022 (4) SCC
358)
“9. The nature of allegation against the respondent
employee was of fraudulently preparing nine credit transfer
vouchers on various dates on the 4 pretext of payment of
interest towards fixed deposits and crediting the whole
amount to one saving account opened in the name of one
Smt. Asha Devi (admittedly the fake account prepared by
respondent employee). In order to adjust the said amount,
he manipulated the other book records of the Bank using
forged signatures. After such nature of allegations stood
proved, the disciplinary authority, after taking into
consideration the record of inquiry and the post held by the
respondent employee, punished him with the penalty of
dismissal from service.
10. The finding of guilt recorded by the inquiry
officer in his report was confirmed at all later stages by the
disciplinary/appellate authority and even after judicial
scrutiny by the Division Bench in the impugned judgment
but still refrained from interference on the premise that the
employee had superannuated in the year 2007.
11. In our considered view, looking into seriousness
of the nature of allegations levelled against the respondent
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employee, the punishment of dismissal inflicted upon him in
no manner could be said to be shockingly disproportionate
which would have required to be interfered with by the
Tribunal in exercise of its power under Section 11A of the
Act 1947. At the same time, merely because the employee
stood superannuated in the meanwhile, will not absolve him
from the misconduct which he had committed in discharge
of his duties and looking into the nature of misconduct
which he had committed, he was not entitled for any
indulgence. The Bank employee always holds the position of
trust where honesty and integrity are the sine qua non but it
would never be advisable to deal with such matters
leniently.”
f. State of Haryana & Anr. Vs. Rattan Singh (1977 (2) SCC 491)
“4. It is well settled that in a domestic enquiry the
strict and sophisticated rules of evidence under the Indian
Evidence Act may not apply. Ail materials which are
logically probative for a prudent mind are permissible.
There is no allergy to hearsay evidence provided it has
reasonable nexus and credibility. It is true that
departmental authorities and administrative tribunals must
be careful in evaluating such material and should not glibly
swallow what is strictly speaking not relevant under
the Indian Evidence Act. For this proposition it is not
necessary to cite decisions nor text books, although we have
been taken through case law and other authorities by
counsel on both sides. The essence of a judicial approach is
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objectivity, exclusion of extraneous materials or
considerations and observance of rules of natural justice.
Of course, fairplay is the basis and if perversity or
arbitrariness, bias or surrender of independence of
judgment vitiate the conclusions reached, such finding,even
though of a domestic tribunal, cannot be held good.
However, the courts below mis-directed themselves,
perhaps, in insisting that passengers who had come in and
gone out should be chased and brought before the tribunal
before a valid finding could be recorded. The 'residuum'
rule to which counsel for the respondent referred, based
upon certain passengers from American jurisprudence does
not go to that extent nor does the passage from Halsbury
insist on such rigid requirement. The simple point is, was
there some evidence or was there no evidence not in the
sense of the technical rules governing regular court
proceedings but in a fair common-sense way as men of
understanding and wordly wisdom will accept. Viewed in
this way, sufficiency of evidence in proof of the finding by a
domestic tribunal is beyond scrutiny. Absence of any
evidence in support of a ending is certainty available for the
court to look into because it amounts to an error of law
apparent on the record. We find, in this case, that the
evidence of Chamanlal, Inspector of the flying squad, is
some evidence which has elevance to the charge leveled
against the respondent. Therefore, we are unable to hold
that the order is invalid on that ground.”
g.Uttar Pradesh State Road Transport Corporation Vs. Vinod
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Kumar (2008 (1) SCC 115)
“As stated in the preceding paragraphs, the
respondent had confined his case only to the conclusions
reached by the Enquiry Officer as well as the quantum of
punishment. Therefore, since the respondent had not
challenged the correctness, legality or validity of the
enquiry conducted, it was not open to the Labour Court to
go into the findings recorded by the Enquiry Officer
regarding the misconduct committed by the respondent. This
Court in a number of judgments has held that the
punishment of removal/dismissal is the appropriate
punishment for an employee found guilty of
misappropriation of funds; and the Courts should be
reluctant to reduce the punishment on misplaced sympathy
for a workman. That, there is nothing wrong in the employer
losing confidence or faith in such an employee and
awarding punishment of dismissal. That, in such cases,
there is no place for generosity or misplaced sympathy on
the part of the judicial forums and interfering with the
quantum of punishment.”
28. The above judgments cited by the learned Senior
Counsel fully support the case of the management. The petitioner's
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challenge to the inquiry is misconceived. Since Exhibit M9,
authored by the petitioner, stands proved, and there is no evidence
to substantiate his allegation of coercion, no additional material is
required to establish the petitioner's guilt of misconduct. The fact
that the Respondent Bank did not examine the complainant is
immaterial. It has been sufficiently established that the petitioner
was handling the complainant's monies and had, without her
knowledge, misappropriated certain amounts. This is adequate to
conclude that the petitioner is guilty of the misconduct alleged
against him.
29. In the bipartite settlement, among the several gross
misconduct found in Paragraph 5, Misconduct No. 5(j) is relevant
and is stated as follows:
“doing any act prejudicial to the interest of the bank
or gross negligence or negligence involving or likely to
involve the bank in serious loss;”
30. The charges leveled against the petitioner are serious,
and the Petitioner has disqualified himself from being engaged in
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a bank that manages its customers' accounts. The scope for
interfering with a finding of fact in a writ petition under Article
226 is limited. The Labour Court has rightly exercised its
discretion and there is no justification for interference with its
decision.
31. In view of the above the W.P.No. 7118 of 2020 will
stand dismissed. However, there will be no order as to costs.
21.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
av
Copy to:
1. The Presiding Officer,
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Central Government Industrial Tribunal cum
Labour Court,
Shastri Bhavan, Haddows Road,
Chennai – 600006.
2. The Regional Manager,
State Bank of India, RBO-II,
Administrative Unit,
No.2, Dr.Ambedkar Raod,
Madurai – 625 002.
DR. A.D.MARIA CLETE, J.
av
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Pre-delivery Judgment in
21.02.2025
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