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2019 Supreme(Mad) 3201
IN THE HIGH COURT OF MADRAS
S.M. Subramaniam, J.
Deputy General Manager, State Bank of India - Appellant
Versus
Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court and Ors. – Respondents
W.P. Nos. 6644 of 2010, 6651 of 2011 and M.P. Nos. 1 to 3 of 2010
Decided On : 28-11-2019
For the Appellant :S. Ravindran, Senior Counsel for S. Bazeer Ahmed and K.M. Ramesh, Advocates
For the Respondent:K.M. Ramesh, Advocate, S. Ravindran, Senior Counsel for S. Bazeer Ahamed, Advocate
Headnote:
Industrial Disputes Act – Section 12(5) – Indian Penal Code - Section 120B r/w 420 – Constitution of India, 1950 - Article 136 – Dishonor of cheques - Dismissed from service - Memorandum of Settlement - Allegation of grave misconduct - Management of State Bank of India has challenged award with reference to relief of reinstatement granted in favor of employee - Employee has filed writ petition challenging denial of back wages and prayed for grant of back wages - Employs was working as Assistant General Manager of State Bank of India - On account of allegation of grave misconduct employee was placed under suspension pending initiation of regular departmental proceedings - Charge memo was issued in terms of clause 5(j) of Memorandum of Settlement alleging that employee took back one cover containing short credits lodged in account and addressed to Service Branch Mumbai as per list A from courier representative in March to return to him envelopes addressed to Service Branch Mumbai as per list B containing SCs lodged on various dates on account current account holder thereby colluding with who has defrauded Bank to tune and caused loss to Bank to extent - It was alleged in charge that second respondent accepted a dinner hosted by at Hotel Royal Southern – Held, Acceptance of these versions made by delinquent employee by Tribunal is undoubtedly in contravention to statements made by other evidences before enquiry officer - Industrial Tribunal by considering defense statement of delinquent employee came to a conclusion that charges are not proved – Contrarily Management was able to establish conduct entire circumstances and other factors regarding participation of delinquent employee for committing such a grave misconduct - Non-consideration of findings arrived by enquiry officer are undoubtedly improper - Facts recorded by enquiry officer with reference to charge Memorandum also should be considered by Tribunal while appreciating evidences – Contrarily Tribunal has taken a lenient view in respect of contra evidences produced by Management and accordingly granted reinstatement and denied back wages - Tribunal had not appreciated evidences in its entirety and beyond all now delinquent employee is convicted by criminal court and criminal appeal filed by delinquent employee is also pending - Thus reinstatement of employee is certainly impermissible - For all these reasons this Court is of considered opinion that award passed by Industrial Tribunal in I.D. is perverse and relief of reinstatement was granted by taking a lenient view and on misplaced sympathy which is unwarranted as misconduct proved against delinquent employee are grave in nature – Order accordingly
ORDER :
S.M. Subramaniam, J.
1. Challenging the award dated 14.12.2009 in ID No. 20 of 2007, the Management/State Bank of India has filed W.P. No. 6644 of 2010 and the employee has filed W.P. No. 6651 of 2011.
2. The Management of the State Bank of India has challenged the award with reference to the relief of reinstatement granted in favour of the employee. The employee has filed the writ petition challenging the denial of backwages and prayed for grant of backwages.
3. The employee/Thiru. J. Rajagopalan was working as Assistant General Manager (Admin) of State Bank of India at Tiruchirappalli. On account of allegation of grave misconduct, the employee was placed under suspension on 24.02.2003, pending initiation of regular departmental proceedings. The charge memo dated 25.02.2004 was issued in terms of clause 5(j) of the Memorandum of Settlement dated 10.04.2002, alleging that the employee, on 24.02.2002, took back one cover containing 5 short credits (SC) lodged in the account of Thiru. S Ayoob and addressed to the Service Branch, Mumbai as per list 'A' from Mr. R. Natarajan, courier representative, in March 2002, to return to him the envelopes addressed to the Service Branch, Mumbai as per list "B" containing SC's lodged on various dates on account of Thiru. S. Ayoob, current account holder thereby, colluding with S. Ayoob who has defrauded the Bank to the tune of Rs. 10,98,600/- and caused loss to the Bank to the extent of Rs. 1,08,07,599/-. It was alleged in charge No. 3 that the second respondent on 18.05.2002, accepted a dinner hosted by S. Ayoob at Hotel Royal Southern, Tiruchi.
4. The employee denied the charges and thereafter, an enquiry was ordered. The enquiry officer conducted the enquiry by affording opportunity to the delinquent employee. The enquiry officer submitted his report on 17.03.2005, holding that the first two charges were proved and the charge 3 was partly proved. The enquiry report was forwarded to the employee on 19.03.2005 and after considering the materials available on record, the employee was dismissed from service in terms of Clause 6(a) of the settlement dated 10.04.2002. The order of dismissal from service was issued on 28.06.2005.
5. The employee preferred an appeal and the appellate Authority passed an order on 17.02.2006, rejecting the appeal. Thereafter, the employee raised an industrial dispute in ID No. 20 of 2007. The Industrial Tribunal granted the benefit of reinstatement in favour of the employee and rejected the back wages. Thus, both parties have chosen to file writ petitions, challenging the same award.
6. The learned counsel appearing on behalf of the Management contended that the charges are grave in nature and the charges were held proved mainly on the ground of preponderance of probabilities. The entire facts and circumstances led to the charges were established by the Management that the misconduct which are all grave in nature are proved against the delinquent employee. The manner in which the delinquent employee conducted himself regarding the banking transactions were cogently established before the enquiry officer as well as before the Industrial Tribunal. Therefore, there is no reason for the Industrial Tribunal to grant the benefit of reinstatement as the misconduct are proved grave in nature which resulted in monetary loss to the Bank.
7. The learned Senior Counsel for the Management solicited the attention of this Court that a criminal case was registered against the delinquent employee before the Second Additional District Court for CBI Cases, Madurai, which ended in conviction and by judgment dated 17.03.2017 in C.C. No. 4 of 2006, the delinquent was convicted and sentenced to imprisonment for seven years. It is submitted that challenging the said conviction and sentence, the delinquent employee has filed an appeal and the same is stated to be pending. The conviction was imposed under Section 120B r/w 420 IPC. He was imposed with the punishment of 7 years imprisonment fo
