The appellate authority under Section 41(2) retains the power to modify disciplinary sanctions and must ensure proportionality while addressing misconduct.

COMMON ORDER

As the validity of an order passed under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947, in TNSE (A) No.1 of 90, is the subject matter of challenge in both these writ petitions, they were heard together and reserved for orders on 07.04.2025. Thereafter, in view of certain ambiguity, the matter was again taken up for consideration on 09.07.2025 and, after having further heard learned counsel on either side, the matter was again reserved for orders on 09.07.2025. Accordingly, these matters are being disposed of by this common order.

2. For the sake of convenience, the parties are referred to as they are arrayed in W.P (MD) No.5378 of 2012.

3. The brief facts that are relevant for disposal of these writ petitions are as under:-

3.1. While the Respondent No.2 herein was working as a ‘Manager’ of the Calicut Branch of the petitioner/ Bank, he was placed under suspension and was subjected to disciplinary proceedings by issuing a charge sheet,dated 23.02.1996 containing 19 charges. In response to the same, the Respondent No.2 submitted his explanation dated 23.03.1996, denying all the charges. At that stage, an additional charge sheet dated 28.03.1996 was issued containing 4 more charges, and the Respondent No.2 submitted his explanation to the same on 20.04.1996, denying the additional charges as well. Having not been satisfied with the explanation submitted by the Respondent No.2, the Petitioner Bank appointed an Enquiry Officer to hold an enquiry into the charges. Accordingly, the Enquiry Officer conducted a detailed enquiry and submitted his report dated 11.07.1997 holding 13 charges out of 23 as proved i.e. Charge Nos.4, 7, 9, 11-15 and 17-19 of the first charge-sheet and the Charge Nos.1 and 3 of the second charge sheet as proved.

3.2. It was thereafter, a show-cause notice was issued to the Respondent No.2, affording an opportunity to him to submit his further explanation and accordingly, the Respondent No.2 submitted his explanation and thereafter, after duly affording an opportunity of personal hearing, the respondent bank passed Order dated 19.08.1997, dismissing the Respondent No.2 from service with immediate effect. Aggrieved by the same, Respondent No.2 filed an appeal under Sub-Section (2) of Section 41 of the Act, 1947, before the Respondent No.1 herein. The said appeal was taken on record and an elaborate enquiry was undertaken by the Respondent No.1. In the said enquiry, the Respondent No.2 examined himself as PWA-1 and marked Exhibit A-1 to Exhibit A-58 and on the other hand, the petitioner bank, having cross-examined the Respondent No.2, got marked Exhibit R-1 to R-15.

3.3. It was thereafter, the first respondent appellate authority considered the charges that are held to have been proved against the Respondent No.2 by the Enquiry Officer in elaborate. At this stage, it is necessary to point out that the said charge numbers were wrongly mentioned as Charge Nos.3, 6, 8, 17 and 18 instead of Charge Nos.4, 7, 9, 18 and 19 in the impugned order. The charges 4, 7 and 9, which were held to have been proved by the Enquiry Officer against the Respondent No.2, were found to have been not proved by the first respondent in the impugned order. Insofar as Charges 11 to 15 and 17 are concerned, they were held to have been proved by the Respondent No.1 also. As already noted above, the said Charge Nos.11 to 15 and 17, which were held to have been proved by the Respondent No.1 were mistakenly numbered in the impugned order as Charge Nos.10 to 14 and 16. The charges 1 and 3