Madras High Court
K.Jagannathan vs The Central Government Industrial ... on 26 February, 2025
Author: M.Dhandapani
Bench: M.Dhandapani
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W.P. No.26609/2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 26.02.2025
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO.26609 OF 2010
K.Jagannathan .. Petitioner
- Vs -
1. The Central Government Industrial Tribunal
-cum- Labour Court
Rep. By its Presiding Officer
1 Floor, B wing, No.26, Haddows Road
Shastri Bhavan, Chennai 600 006.
2. The General Manager
Indian Overseas Bank (PAD)
Central Office, 763, Anna Salai
Chennai 600 002. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of certiorarified mandamus calling for the concerned
records from the 1st respondent quash the award dated 16.7.2010 passed by the
1st respondent Tribunal in I.D. No.46 of 2007 and consequently direct the 2nd
1
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W.P. No.26609/2010
respondent to reinstate the petitioner in service with full back wages, continuity
of service and all other attendant benefits.
For Petitioner : Mr. Balan Haridas
For Respondents : Mr. K.Sreenivasamurthy for R-2
ORDER
Assailing the order of punishment imposed by the disciplinary authority
and as confirmed by the appellate authority and affirmed by the Tribunal,
imposing the punishment of dismissal from service on the petitioner, the present
petition has been filed.
2. It is the case of the petitioner that he joined the services of the 2 nd
respondent as Clerk/Shroff/Godown Keeper on 10.4.1981 and his services were
confirmed on 10.10.1981 and that during December, 1997, the petitioner was
working in Suramangalam Branch, Salem during which time, the petitioner was
suspended by an order dated 18.8.1999.
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3. It is the further case of the petitioner that a charge memo was issued on
2.9.2000 containing 13 charges relating to alleged acts of omission and
commission during the period from 16.12.1997 to 30.6.1997 while the petitioner
was working at Suramangalam Branch. The charges against the petitioner relate
to misappropriation of amounts by acts of forgery and misutilising the cheques of
the account holders, which were obtained clandestinely and the amounts in the
account of the account holders were surreptitiously siphoned off to the account
of the petitioner and his relatives and, thereby, causing wrongful loss to the
Bank.
4. It is the further averment of the petitioner that upon receipt of the
charge memo, the petitioner sought for time to give explanation and sought
permission to peruse the documents, however, the said request was negatived
and the petitioner was directed to give explanation on the basis of the
information already available, which act of the 2nd respondent is a stark violation
of principles of natural justice.
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5. It is the further averment of the petitioner that without giving
opportunity to the petitioner to submit explanation to the charge memo,
domestic enquiry was conducted, which was informed to the petitioner on
2.12.2001. Thereafter, the petitioner gave letter dated 19.12.2001 requesting
permission to peruse the documents and since the co-employees of the
petitioner were also being proceeded departmentally, the petitioner requested
for a joint enquiry. However, all the request were rejected by the Bank.
Thereafter, vide letter dated 4.2.2002, the petitioner sought for taking the
assistance of an advocate, which was rejected and, therefore, the petitioner filed
W.P. No.5969/2002 and this court permitted the petitioner to avail the services
of an advocate and the appeal filed by the 2nd respondent against the said order
was dismissed.
6. It is the further averment of the petitioner that enquiry was conducted
and after hearing the witnesses, numbering four on behalf of the bank and
documents being marked, enquiry was concluded resulting in filing of an enquiry
report based on which the disciplinary authority issued notice proposing
punishment of dismissal from service. Since no opportunity of hearing was given
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to the petitioner with regard to the enquiry report, the petitioner approached
this Court by filing W.P. No.12402/2004, which was dismissed and upon dismissal
of the said writ petition, the disciplinary authority passed the order dated
17.11.2004 imposing the punishment of dismissal from service on the petitioner.
The appeal filed by the petitioner on 11.12.2004 against the said order of
dismissal was rejected by the appellate authority. Aggrieved by the same, as the
conciliation proceedings ended in failure, the dispute was referred to the 1st
respondent for adjudication in I.D. No.46/2007.
7. Before the Tribunal, while the petitioner did not examine any witnesses,
but marked Exs.W-1 to W-13, on behalf of the 2nd respondent, one witness was
examined as M.W.1 and Exs.M-1 to M-184 were marked. On the basis of the oral
and documentary evidence, the Tribunal concurred with the view and affirmed
the punishment of dismissal from service imposed on the workman. Aggrieved
by the same, the present petition has been preferred by the petitioner.
8. Learned counsel appearing for the petitioner submits that the Tribunal
grossly erred in confirming the punishment though it was demonstrated before
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the Tribunal that the charges have not been proved. It is the further submission
of the learned counsel that no legal evidence has been placed to prove the
charges and none of the customers, whose accounts are claimed to have been
misutilised and whose cheques have been misutilised have been examined to
show that the petitioner had, in fact, misappropriated the money.
9. It is the further submission of the learned counsel that the order of the
Tribunal is bereft of any reasoning and appreciation of materials and, therefore,
the affirmation of the punishment is clearly on non-application of mind and,
therefore, the said order is perverse and arbitrary and liable to be interfered
with.
10. It is the further submission of the learned counsel that no reasons have
been assigned by the Tribunal to substantiate the findings with regard to the guilt
having been proved against the petitioner; rather the whole case of the Tribunal
proceeds on surmises and conjectures and the findings are not based on legal
evidence. It is the further submission of the learned counsel that no proper
opportunity was given to the petitioner to submit his explanation and the same
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vitiates the enquiry and, therefore, the enquiry report deserves to be set aside
for violation of principles of natural justice.
11. It is the further submission of the learned counsel that though there
are not substantive materials to conclude that the guilt fastened on the
petitioner has been proved, however, not appreciating the same, the Tribunal
has not invoked its power u/s 11-A of the Industrial Disputes Act to bring down
the punishment imposed on the petitioner and, therefore, the impugned order
passed by the Tribunal deserves to be set aside.
12. Per contra, learned counsel appearing for the 2nd respondent
submitted that the decision arrived at by the authorities to impose the
punishment of dismissal from service on the petitioner is a concurrent finding
and this Court sitting under Article 226 of the Constitution is merely reviewing
the decision arrived at by the authorities and it cannot go into the intricacies of
the evidence unless it is shown that the decision arrived at based on which
punishment is inflicted is perverse.
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13. It is the further submission of the learned counsel that the evidence in
a departmental enquiry is not akin to criminal trial, as the evidence in a
departmental proceeding has to be appreciated on preponderance of probability
and the strict rules of criminal trial by adverting to the Evidence Act is not
necessary. The materials available on record, which have been properly
appreciated by the authorities, have led to the probabilistic view that the
petitioner is guilty of the alleged misconduct, which has resulted in the
punishment and, therefore, merely reviewing the said decisions shall not
interfere with the same unless it is shown to be perverse. Therefore, he prays for
dismissal of the writ petition.
14. This Court gave its anxious consideration to the submissions advanced
by the learned counsel on either side and perused the materials available on
record.
15. Contentions have been raised by the workman with regard to fairness
of the enquiry and also procedural flaws in the conduct of the enquiry. Though it
is the case of the petitioner that there is violation of principles of natural justice
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and that the petitioner has not been afforded opportunity to peruse the
materials and submit his expxlanation, however, it is to be pointed out that all
the materials were available before the Tribunal, which were placed at the time
of the enquiry and, therefore, the Tribunal has went through all the materials
before coming to a decision and further the petitioner has also had an
opportunity to look into the materials and, therefore, it cannot be claimed that
there is violation of principles of natural justice. Though the petitioner has
raisecd concern with regard to procedural flaws and fairness of the enquiry, it is
to be pointed out that disciplinary enquiry is not akin to criminal trial before a
court of law and strict rules of evidence is not required to be followed, inasmuch
as the enquiry has been conducted in a proper manner and there is no violation
of principles of natural justice. As aforestated, there is no infraction of principles
of natural justice and, therefore, there could be no question with regard to the
manner in which the enquiry has been conducted and the fairness in the enquiry,
though there may have been certain procedural flaws, which would in no way
term the enquiry to be biased or flawed.
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16. It is the settled legal position that insofar as departmental proceedings
is concerned, the appreciation of evidence is based on preponderance of
probability and not in the manner in which evidence is appraised during a
criminal prosecution. The enquiry authority has satisfied himself with regard to
the materials placed before it and the appellate authority as also the Tribunal
have appreciated the enquiry report and accepted that the enquiry has been
conducted in a fair and proper manner. In fact, the Tribunal has written an
exhaustive order to confirm the findings recorded by the authorities, which has
since been affirmed. The fact that the petitioner feels that there is no adequacy
of evidence cannot be the basis to hold that there is no legal evidence which
would render the decision erroneous and unsustainable.
17. In the above backdrop, it is to be pointed out that this Court, sitting
under Article 226 of the Constitution in a matter of judicial review, cannot
reappreciate the evidence as a court of first instance or appellate authority. The
duty of this Court is only to see as to whether the enquiry has been fair and
proper and that the enquiry has been conducted in consonance with principles of
natural justice.
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18. The Hon'ble Supreme Court, in B.C. Chaturvedi – Vs - Union of India,
(1995 (6) SCC 749), while dealing with the issue pertaining to the power of the
Court relating to judicial review, held as under :
“12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. Power of
judicial review is meant to ensure that the individual receives fair
treatment and not to ensure that the conclusion which the
authority reaches is necessarily correct in the eye of the court.
When an inquiry is conducted on charges of misconduct by a
public servant, the Court/Tribunal is concerned to determine
whether the inquiry was held by a competent officer or whether
rules of natural justice are complied with. Whether the findings or
conclusions are based on some evidence, the authority entrusted
with the power to hold inquiry has jurisdiction, power and
authority to reach a finding of fact or conclusion. But that finding
must be based on some evidence. Neither the technical rules of
Evidence Act nor of proof of fact or evidence as defined therein,
apply to disciplinary proceeding. When the authority accepts that
evidence and conclusion receives support therefrom, the
disciplinary authority is entitled to hold that the delinquent officer
is guilty of the charge. The Court/Tribunal in its power of judicial
review does not act as appellate authority to reappreciate the
evidence and to arrive at its own independent findings on the
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evidence. The Court/Tribunal may interfere where the authority
held the proceedings against the delinquent officer in a manner
inconsistent with the rules of natural justice or in violation of
statutory rules prescribing the mode of inquiry or where the
conclusion or finding reached by the disciplinary authority is based
on no evidence. If the conclusion or finding be such as no
reasonable person would have ever reached, the Court/Tribunal
may interfere with the conclusion or the finding, and mould the
relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where
appeal is presented, the appellate authority has coextensive
power to reappreciate the evidence or the nature of punishment.
In a disciplinary inquiry, the strict proof of legal evidence and
findings on that evidence are not relevant. Adequacy of evidence
or reliability of evidence cannot be permitted to be canvassed
before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4
SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court held at p.
728 that if the conclusion, upon consideration of the evidence
reached by the disciplinary authority, is perverse or suffers from
patent error on the face of the record or based on no evidence at
all, a writ of certiorari could be issued.”
(Emphasis Supplied)
19. In Director General of Police, RPF & Ors. - Vs – Rajendra Kumar Dubey
(C.A. No.3820/2020 dated 25.11.20), the Hon'ble Supreme Court, adverting to
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the various decisions of the Apex Court relating to the interference by the High
Court in exercise of its writ jurisdiction with respect to disciplinary proceedings,
including the decision in Chaturvedi's case (supra), held as under :-
“12.1 ...... It is well settled that the High Court must not act as
an appellate authority, and re-appreciate the evidence led before
the enquiry officer.
We will advert to some of the decisions of this Court with
respect to interference by the High Courts with findings in a
departmental enquiry against a public servant.
In State of Andhra Pradesh v S.Sree Rama Rao, a three judge
bench of this Court held that the High Court under Article 226 of
the Constitution is not a court of appeal over the decision of the
authorities holding a departmental enquiry against a public
servant. It is not the function of the High Court under its writ
jurisdiction to review the evidence, and arrive at an independent
finding on the evidence. The High Court may, however interfere
where the departmental authority which has held the proceedings
against the delinquent officer are inconsistent with the principles
of natural justice, where the findings are based on no evidence,
which may reasonably support the conclusion that the delinquent
officer is guilty of the charge, or in violation of the statutory rules
prescribing the mode of enquiry, or the authorities were actuated
by some extraneous considerations and failed to reach a fair
decision, or allowed themselves to be influenced by irrelevant
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considerations, or where the conclusion on the very face of it is so
wholly arbitrary and capricious that no reasonable person could
ever have arrived at that conclusion. If however the enquiry is
properly held, the departmental authority is the sole judge of
facts, and if there is some legal evidence on which the findings
can be based, the adequacy or reliability of that evidence is not a
matter which can be permitted to be canvassed before the High
Court in a writ petition.
These principles were further reiterated in the State of Andhra
Pradesh v Chitra Venkata Rao. The jurisdiction to issue a writ of
certiorari under Article 226 is a supervisory jurisdiction. The court
exercises the power not as an appellate court. The findings of fact
reached by an inferior court or tribunal on the appreciation of
evidence, are not re-opened or questioned in writ proceedings. An
error of law which is apparent on the face of the record can be
corrected by a writ court, but not an error of fact, however grave
it may be. A writ can be issued if it is shown that in recording the
finding of fact, the tribunal has erroneously refused to admit
admissible and material evidence, or had erroneously admitted
inadmissible evidence. A finding of fact recorded by the tribunal
cannot be challenged on the ground that the material evidence
adduced before the tribunal is insufficient or inadequate to
sustain a finding. The adequacy or sufficiency of evidence led on a
point, and the inference of fact to be drawn from the said finding
are within the exclusive jurisdiction of the tribunal.
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In subsequent decisions of this Court, including Union of India
v. G. Ganayutham, Director General RPF v. Ch. Sai Babu,
Chennai Metropolitan Water Supply and Sewerage Board v T.T.
Murali, Union of India v. Manab Kumar Guha, these principles
have been consistently followed.
In a recent judgment delivered by this Court in the State of
Rajasthan & Ors. v. Heem Singh this Court has summed up the
law in following words :
“33. In exercising judicial review in disciplinary matters, there
are two ends of the spectrum. The first embodies a rule of
restraint. The second defines when interference is permissible.
The rule of restraint constricts the ambit of judicial review. This is
for a valid reason. The determination of whether a misconduct
has been committed lies primarily within the domain of the
disciplinary authority. The judge does not assume the mantle of
the disciplinary authority. Nor does the judge wear the hat of an
employer. Deference to a finding of fact by the disciplinary
authority is a recognition of the idea that it is the employer who is
responsible for the efficient conduct of their service. Disciplinary
enquiries have to abide by the rules of natural justice. But they
are not governed by strict rules of evidence which apply to judicial
proceedings. The standard of proof is hence not the strict
standard which governs a criminal trial, of proof beyond
reasonable doubt, but a civil standard governed by a
preponderance of probabilities. Within the rule of preponderance,
there are varying approaches based on context and subject. The
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first end of the spectrum is founded on deference and autonomy –
deference to the position of the disciplinary authority as a fact
finding authority and autonomy of the employer in maintaining
discipline and efficiency of the service. At the other end of the
spectrum is the principle that the court has the jurisdiction to
interfere when the findings in the enquiry are based on no
evidence or when they suffer from perversity. A failure to consider
vital evidence is an incident of what the law regards as a perverse
determination of fact. Proportionality is an entrenched feature of
our jurisprudence. Service jurisprudence has recognized it for long
years in allowing for the authority of the court to interfere when
the finding or the penalty are disproportionate to the weight of
the evidence or misconduct. Judicial craft lies in maintaining a
steady sail between the banks of these two shores which have
been termed as the two ends of the spectrum. Judges do not rest
with a mere recitation of the hands-off mantra when they
exercise judicial review. To determine whether the finding in a
disciplinary enquiry is based on some evidence an initial or
threshold level of scrutiny is undertaken. That is to satisfy the
conscience of the court that there is some evidence to support the
charge of misconduct and to guard against perversity. But this
does not allow the court to re-appreciate evidentiary findings in a
disciplinary enquiry or to substitute a view which appears to the
judge to be more appropriate. To do so would offend the first
principle which has been outlined above. The ultimate guide is the
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exercise of robust common sense without which the judges’ craft
is in vain.”
In Union of India v. P. Gunasekaran, this Court held that the
High Court in exercise of its power under Articles 226 and 227 of
the Constitution of India shall not venture into re-appreciation of
the evidence. The High Court would determine whether : (a) the
enquiry is held by the competent authority; (b) the enquiry is held
according to the procedure prescribed in that behalf; (c) there is
violation of the principles of natural justice in conducting the
proceedings; (d) the authorities have disabled themselves from
reaching a fair conclusion by some considerations which are
extraneous to the evidence and merits of the case; (e) the
authorities have allowed themselves to be influenced by irrelevant
or extraneous considerations; (f) the conclusion, on the very face
of it, is so wholly arbitrary and capricious that no reasonable
person could ever have arrived at such conclusion; (g) the
disciplinary authority had erroneously failed to admit the
admissible and material evidence; (h) the disciplinary authority
had erroneously admitted inadmissible evidence which influenced
the finding; (i) the finding of fact is based on no evidence.
In paragraph 13 of the judgment, the Court held that :
“13.Under Articles 226 / 227 of the Constitution of
India, the High Court shall not :
(i) re-appreciate the evidence;
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(ii) interfere with the conclusions in the enquiry, in the
case the same has been conducted in accordance with
law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based;
(vi) correct the error of fact however grave it may
appear to be;
(vii) go into the proportionality of punishment unless it
shocks its conscience.”
(Emphasis Supplied)
20. From the ratio laid down above, it is implicitly clear that the Courts, in
exercise of its power of judicial review, cannot extend the examination to the
correctness of the act of the disciplinary authority, but only limit itself to the
manner in which the decision has been arrived at by the authority and whether
the same is in accordance with law. This Court is to test only the correctness of
the decision arrived at by the authority on the basis of the evidence before it,
which has since been confirmed by the Tribunal and not proceed with the case as
if it is an appeal against the order of punishment.
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21. The Tribunal, on dissection of the evidence tendered before it as also
before the enquiry officer, which formed the basis of the report, had accepted
the findings of guilt recorded against the workman and this Court, sitting in
judicial review, is not inclined to interfere with the said finding, so long as it is not
perverse and it is in consonance with the principles of natural justice.
22. Now the only question that requires the determination of this Court is
whether the modification of punishment, as espoused by the petitioner is
required in the present case.
23. A careful perusal of the order passed by the disciplinary authority,
which has been affirmed by the appellate authority as also the court below
reveals that appreciating the findings, considering the gravity of the offence,
which is of enormous proportion and which directly affects the credibility of the
bank and hits at the honesty of the petitioner, the disciplinary authority has
thought it fit to impose the punishment of dismissal from service on the
petitioner.
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24. The proportionality of the punishment inflicted on the delinquent had
been considered by the Apex Court in V.S.P. – Vs - Goparaju Sri Prabhakara Hari
Babu (2008 (5) SCC 569), and it was held as under:-
“12. While answering the aforesaid question/issue, the
decision of this Court in the case of Goparaju Sri Prabhakara Hari
Babu (supra), on the judicial review and the limited jurisdiction of
the High Court on the proportionality of the order of
departmental authority is required to be referred to. In the said
decision, after referring to a catena of judgments of this Court, it
is observed and held by this Court that the jurisdiction of the High
Court on the proportionality of the order of departmental
authority is limited. It is observed that it cannot set aside a well-
reasoned order only on grounds of sympathy and sentiments. It is
further observed and held that once it is found that all the
procedural requirements had been complied with, courts would
not ordinarily interfere with the quantum of punishment imposed
upon a delinquent employee. It is further observed that the
superior courts, only in some cases may invoke the doctrine of
proportionality, however if the decision of an employer is found to
be within the legal parameters, the doctrine would ordinarily not
be invoked when the misconduct stands proved.”
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25. The precedents on the issue of interference with the punishment
imposed has been oft considered by the Courts and it has been the consistent
view of the Courts that it is always within the domain of the disciplinary authority
to decide on the punishment to be imposed on the delinquent, which should be
proportionate to the act of the delinquent. Only when the punishment is
disproportionate and shocking to the conscience, should the courts interfere in
the same in exercise of powers under Article 226. In Prem Nath Bali – Vs - High
Court of Delhi (2015 (16) SCC 415), the Supreme Court held as under :-
“20. It is a settled principle of law that once the charges
leveled against the delinquent employee are proved then it is for
the appointing authority to decide as to what punishment should
be imposed on the delinquent employee as per the Rules. The
appointing authority, keeping in view the nature and gravity of
the charges, findings of the inquiry officer, entire service record of
the delinquent employee and all relevant factors relating to the
delinquent, exercised its discretion and then imposed the
punishment as provided in the Rules.
21. Once such discretion is exercised by the appointing
authority in inflicting the punishment (whether minor or major)
then the courts are slow to interfere in the quantum of
punishment and only in rare and appropriate case substitutes the
punishment. Such power is exercised when the court finds that the
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delinquent employee is able to prove that the punishment
inflicted on him is wholly unreasonable, arbitrary and
disproportionate to the gravity of the proved charges thereby
shocking the conscience of the court or when it is found to be in
contravention of the Rules. The Court may, in such cases, remit
the case to the appointing authority for imposing any other
punishment as against what was originally awarded to the
delinquent employee by the appointing authority as per the Rules
or may substitute the punishment by itself instead of remitting to
the appointing authority.”
(Emphasis Supplied)
26. From the ratio laid down by the Apex Court above, it is crystal clear
that the power to interfere with the punishment should be exercised only if the
delinquent employee is able to prove that the punishment inflicted on him is
wholly unreasonable, arbitrary and disproportionate to the gravity of the proved
charges and, thereby, shocking the conscience of the Court or if it is in
contravention of the Rules.
27. There could be no quarrel with the fact that the petitioner being in
public employment is supposed to exhibit utmost sincerity and honesty as it
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involves public money. When the petitioner is alleged to have misappropriated
huge sums of money by siphoning it off from the account of the customers by
fraudulently obtaining cheque leaves on behalf of the customers and moving the
funds to his account/accounts of his relatives, the said act of the petitioner is of
alarming proportion, which not only erodes public confidence in the 2nd
respondent bank, but also affects the day to-day life of the general public, who
have deposited money in the bank. When cases of this nature come before the
Courts, which involves misappropriation of public money, never any leniency is
showed to the delinquent. Showing of leniency to the delinquent, that too when
the allegations are too grave, which have been held to have been proved, lenient
act in favour of the delinquent would be nothing but misplaced sympathy at the
hands of this Court. Rightly appreciating the aforesaid materials, the Tribunal
had refrained from interfering with the punishment imposed on the petitioner.
28. A careful perusal of the punishment imposed in relation to the gravity
of the charges levelled, which are found to be proved, the punishment could not
be held to be disproportionate to the charges levelled or could be termed to be
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shocking the conscience of the Court and, therefore, no interference is warranted
with the same.
29. For the reasons aforesaid, this Court is in agreement with the
punishment of dismissal from service imposed on the petitioner by the
disciplinary authority as confirmed by the appellate authority as also the Tribunal
and the said orders does not warrant any interference at the hands of this court.
Accordingly, the writ petition fails and the same is dismissed. There shall be no
order as to costs.
26.02.2025
Index : Yes / No
GLN
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To
The Presiding Officer
Central Government Industrial Tribunal
-cum- Labour Court
1st Floor, ‘B’ Wing
26, Haddows Road, Shastri Bhavan
Chennai 600 006.
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M.DHANDAPANI, J.
GLN
W.P. NO. 26609 OF 2010
26.02.2025
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