The Tribunal's modification of punishment from dismissal to compulsory retirement was justified based on proportionality and the workman's long service, emphasizing the importance of fair inquiry procedures.

ORDER :

M.Dhandapani, J.

Aggrieved by the order of the Central Government Industrial Tribunal- cum-Labour Court (for short ‘the Tribunal’) in I.D. No.79/09 dated 13.2.2012 modifying the punishment of dismissal from service to one of compulsory retirement, while the workman had preferred W.P. No.8417/2012 seeking reinstatement with continuity of service and attached attendant benefits, the Bank has filed W.P. No.3506/13 questioning the modification of the punishment.

2. The petitioner was working as a clerk in the petitioner bank and during the course of his work as Clerk-cum-Cashier in Arni Branch, he had indulged in unauthorised withdrawal of funds from the SB accounts of various account holders and misappropriated the money. It is the further allegation against the workman that between November, 1996 and February, 1997, the workman had made nine such withdrawals for a total sum of Rs. 1 Lakh. Upon the delinquency coming to notice, the workman was proceeded with by way of a disciplinary enquiry by issuance of charge sheet dated 4.8.1998 listing out the various instances where he had resorted to such unauthorised withdrawal. The enquiry was conducted in which the workman also participated and report was filed by the enquiry officer holding the charges proved and after obtaining his explanation, the disciplinary authority imposed the punishment of dismissal from service on the workman. The workman challenged the punishment by way of appeal, which was also dismissed. The punishment was also questioned by the workman by filing W.P. No.17303/2012 before this Court, which was also disposed of on 26.7.2004.

3. Thereafter, the workman raised an industrial dispute which was referred for adjudication to the Tribunal, which was numbered as I.D. No.79/2009. Before the Tribunal, while the workman and the bank did not adduce any oral evidence, however, on the side of the workman, Exs.W-1 to W-10 were marked and on the side of the bank, Exs.M-1 to M-7 were marked. On the basis of the documentary evidence, the Tribunal modified the punishment imposed on the petitioner, as stated supra, leading to the filing of the present writ petitions.

4. Learned counsel appearing for the workman submitted that the order of the Tribunal is erroneous and contrary to law. It is the further submission of the learned counsel that M.W.s 1 to 3, who were examined at the domestic were not allowed to be cross examined and in such a background, the Tribunal ought to have doubted the fairness of the enquiry and should have drawn an adverse inference with regard to the proof as against the workman.

5. It is the further submission of the learned counsel that the Tribunal, without proper materials, has held that the workman had not cooperated with the enquiry and was delaying the enquiry inspite of opportunity given for cross examination, is wholly erroneous and flawed on the materials available on record though it was demonstrated before the Tribunal that the enquiry was conducted fairly and properly.

6. It is the further submission of the learned counsel that there is a delay of 1 ½ years in the issuance of charge memo and that being the case, the enquiry officer did not give the workman sufficient opportunity to defend the charges and held that there was no violation of principles of natural justice in the conduct of the enquiry. It is the further submission of the learned counsel that there are no materials to prove the charges levelled against the workman.

7. It is the further submission of the learned counsel that material documents, which were relied on to establish the charges against the workman were not filed in original before the enquiry officer, which aspect has not been properly appreciated by the Tribunal, as the copies in Xerox cannot be taken as substantive documents to hold the charges proved against the workman.

8. It is therefore the submission of the learned counsel that the non providing of opportunity to the workman to cross examine the witnesses coupled