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1998 Supreme(Mad) 1048
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. JAYASIMHA BABU
Management of Catholic Syrian Bank Limited - Appellant
Versus
Industrial Tribunal, Madras-104 and Another - Respondents
W.P. No. 12175/1988 & W.M.P. Nos. 18151/1988 & 7413/1989
Decided On : 07 August 1998
The discretion of the Tribunal under Section 11-A of the Industrial Disputes Act, 1947 is not a free license to direct reinstatement, even when it is not warranted and to set aside the order of dismissal, when the records do not warrant the setting aside of the order of dismissal.
Headnote:
INDUSTRIAL DISPUTES ACT - SECTION 11-A - MISCONDUCT - GRAVE MISCONDUCT - REINSTATEMENT - DISCRETION OF TRIBUNAL - JUDICIAL REVIEW - BANK EMPLOYEE - FRAUD - MISAPPROPRIATION - DISMISSAL - JUSTIFIED.
Fact of the Case:
The second respondent, Francis Vincent, was employed as a Clerk in Puraswalkam Branch of the petitioner-bank. On December 15, 1977, a demand draft dated November 12, 1977 issued by the National Bank of Omen Limited drawn in favour of one K. C. Appukuttan was brought to the bank by V. T. Lazar, who had an Account in the bank for being deposited in his Account that demand draft being the one which was payable to the payee named therein and that draft having been endorsed by the payee. The said draft was received by Francis Vincent, the second respondent herein, who issued the counterfoil of the challan to the said V. T. Lazar, which has been marked as Ex. M3 in the enquiry proceedings conducted against him. That challan disclosed that the demand draft, which had been made payable at the Bank of America was received from the said V. T. Lazar for being credited to the account of V. T. Lazar. The challan is dated December 15, 1977. To the misfortune of the said V. T. Lazar, that amount was not credited to the Account of V. T. Lazar. The second respondent Francis Vincent wrote down his own name, in the other part of challan as the person to whose Account, the proceeds were to be credited. On December 16, 1977, the amount was realised and the money was credited to the Account of 2nd Respondent Francis Vincent, without the knowledge of the customer viz., V. T. Lazar. On the next day viz., on December 17, 1977 the money was drawn by Francis Vincent from the bank Account. He continued to work in the bank till December 26, 1977, on which date he gave a leave letter to the bank and went on leave. The reason disclosed by him for going on leave was that he was suffering from conjuctivities and would not be able to attend to office for a few days. He did not turn up for work for more than two months thereafter. He also sent from Poona a medical certificate to the bank in the first week of March, 1978 issued by a Doctor at Bangalore, wherein it was stated that he was suffering from conjuctivitise from December 25, 1977 to January 24, 1978 and he was under the treatment of the Doctor at Bangalore. The Doctor's Certificate is dated February 2, 1978.
Finding of the Court:
The Tribunal as a judicial forum is required to reach its conclusion in such matters, on the basis of evidence and also on the basis of all the available materials, which are relevant. It Is only when the Tribunal discharges its functions in the matter judicially, value can be attached to the discretion exercised by it and if the discretion had been properly exercised, this Court would not interfere with such exercise of discretion. The discretionary power to Tribunal is not however, a free licence to direct reinstatement, even when it is not warranted and to set aside the order of dismissal, when the records do not warrant the setting aside of the order of dismissal.
Issues: Whether the dismissal of the second respondent, Francis Vincent, was justified?
Ratio Decidendi: 1. The Tribunal failed to exercise its discretion judicially in setting aside the order of dismissal passed by the employer. 2. The misconduct committed by the second respondent was grave in nature and warranted the penalty of dismissal. 3. The past record of service of the second respondent was not a sufficient basis for holding that the penalty of dismissal was not in accordance with law. 4. The Tribunal erred in adopting a moralistic attitude in judging the conduct of the second respondent.
Final Decision: The impugned order of the Tribunal directing reinstatement is set aside and the order of dismissal passed by the employer is sustained.
R. JAYASIMHABABU, J.
The second respondent was employed as a Clerk in Puraswalkam Branch of the petitioner-bank. On December 15, 1977 a demand draft dated November 12, 1977 issued by the National Bank of Omen Limited drawn in favour of one K. C. Appukuttan was brought to the bank by V. T. Lazar, who had an Account in the bank for being deposited in his Account that demand draft being the one which was payable to the payee named therein and that draft having been endorsed by the payee. The said draft was received by Francis Vincent, the second respondent herein, who issued the counterfoil of the challan to the said V. T. Lazar, which has been marked as Ex. M3 in the enquiry proceedings conducted against him. That challan disclosed that the demand draft, which had been made payable at the Bank of America was received from the said V. T. Lazar for being credited to the account of V. T. Lazar. The challan is dated December 15, 1977. To the misfortune of the said V. T. Lazar, that amount was not credited to the Account of V. T. Lazar. The second respondent Francis Vincent wrote down his own name, in the other part of challan as the person to whose Account, the proceeds were to be credited. On December 16, 1977, the amount was realised and the money was credited to the Account of 2nd Respondent Francis Vincent, without the knowledge of the customer viz., V. T. Lazar. On the next day viz., on December 17, 1977 the money was drawn by Francis Vincent from the bank Account. He continued to work in the bank till December 26, 1977, on which date he gave a leave letter to the bank and went on leave. The reason disclosed by him for going on leave was that he was suffering from conjuctivities and would not be able to attend to office for a few days. He did not turn up for work for more than two months thereafter. He also sent from Poona a medical certificate to the bank in the first week of March, 1978 issued by a Doctor at Bangalore, wherein it was stated that he was suffering from conjuctivitise from December 25, 1977 to January 24, 1978 and he was under the treatment of the Doctor at Bangalore. The Doctor's Certificate is dated February 2, 1978.
2. The bank received a complaint from V. T. Lazar on December 27, 1977 to the effect that after V. T. Lazar's enquiries at the bank he found that the demand draft, which he had remitted to the bank and in respect of which he had been issued the challan counterfoil, marked as Ex. M-3 had still not been realised by him. The branch Manager of the bank on seeing the said challan counterfoil and after checking up the records found that the money had in fact been collected, but that collection was for the benefit of Francis Vincent, as the name entered in the Challan was that of Francis Vincent as if the demand draft had been endorsed to the name of Francis Vincent, and was to his benefit. A written complaint was thereafter lodged by the said V. T. Lazar on January 9, 1978 based on the oral complaint which had been received prior to January 7, 1978, the date on which a chargesheet was issued by the bank to Francis Vincent. In response to the charge sheet, the second respondent, Francis Vincent sent a letter, dated January 20, 1978, wherein he stated as under :
"The first two charges levelled against me are true. I have done it by mistake without thinking about the seriousness of my action. I really apologise for it and I am prepared to accept the disciplinary action without any reservation. I have done a lot of harm to the Institution and hence, whatever action is being taken against me, I will gladly receive it ...."
In the said letter, the address of the second respondent was given as
"Francis Vincent Neelankavil, C/o. Prof. N. P. Inasu, No. 29, Old Randallan Road, Prabhakar Colony, Lonavala, Poona District."
3. The charge sheet that was issued to the workman by the management was in respect of the fraud played by him on the bank's customer; misappropriation of bank's funds, and unauthorised
