Judgment:
O R D E R
1. This writ petition has been filed, challenging the award of the first respondent Industrial Tribunal-cum-Labour court, dated 16.6.2005, made in I.D.No.121 of 2003.
2. It has been stated that the second respondent had been appointed as a Clerk-cum-Typist in the local head office of the State Bank of India, at Chennai, on 1.7.1978. He had been promoted as a stenographer in the year, 1981 and he had been transferred to the Tuticorin Branch of the petitioner Bank. While so, the second respondent had indulged in certain activities which were prejudicial to the petitioner Bank. Therefore, the second respondent had been asked to submit his explanation based on the charges levelled against him. Since, the explanation, submitted by the second respondent was not satisfactory, a charge memo, dated 19.11.1988, had been issued to him.
3. It has been stated that the second respondent had borrowed Rs.1,50,000/- from M/s.Port City Benefit Fund Limited and he had issued two cheques for Rs.50,000/- and Rs.1,00,000/-, drawn on the State Bank of India, Tuticorin Branch. Both the cheques had been returned unpaid for want of sufficient funds in the second respondent s bank account. Since, the cheques had been dishonoured, legal notices had been sent to the second respondent, for taking criminal action against him, for the dishonour of the cheques. The second respondent had submitted his reply, dated 21.4.1999.
4. A second charge memo, dated 15.6.1999, had been served on the second respondent for having availed housing loans, by creating an equitable mortgage. However, he had sold the property on 29.10.1998, as seen from the encumbrance certificate, dated 10.2.1999. The sale of the property by the second respondent is contrary to the conditions contained in Clause (vii) of the term loan agreement executed by the second respondent, on 31.8.1998 and clause (j) of the additional housing loan agreement. Further, on 4.1.1999, he had availed leave fare concession, under the leave fare concession Scheme, to undertake a journey. However, he had failed to undertake the journey.
5. In such circumstances, the petitioner bank had appointed an enquiry officer, who had conducted the enquiry on various dates. The second respondent had participated in the enquiry proceedings and he had accepted the charge levelled in the first charge memo. With regard to the second charge, he had stated that the property in question had been sold by the power of attorney, fraudulently and that he had filed a suit, numbered as O.P.No.37 of 2000, on the file of the subordinate Court, Tuticorin, for setting aside the sale deed, and the same was pending adjudication.
6. In respect of the charge relating to the availing of leave fare concession he had submitted that he could not undertake the journey in view of the fact that he was unwell. Not being convinced with the explanation submitted by the second respondent, and based on the enquiry report, the disciplinary authority had passed an order, dated 23.7.2001, proposing the punishment of removal from service on the second respondent. A personal hearing had been given to the second respondent on the quantum of punishment, on 8.8.2001. Thereafter, a final order, dated 27.9.2001, had been passed confirming the proposed punishment of removal from service.
7. It had been further stated that the second respondent had preferred an appeal against the punishment of removal from service awarded to him. After giving an opportunity of personal hearing to the second respondent the appellate authority had passed an order, dated 7.1.2002, confirming the punishment imposed on the second respondent. Thereafter, the second respondent had raised an industrial dispute, before the first respondent Industrial Tribunal-cum-Labour Court. The first respondent had held that the first charge had been accepted by the second respondent. However, it had been found that the execution of the sale deed, in respect of the mortgaged property, had been brought about by fraud, coercion and undue influence. It had also been held that the civil Court had declared the sale of the property, as null and void. The first respondent Industrial Tribunal-cum-Labour Court had also held that the second respondent had not misutilised the advance of Rs.9200/- obtained by him, on 4.1.1999, under the leave fare concession Scheme and therefore, the charge relating to the availing of the leave fare concession, by the second respondent, cannot be sustained.
8. The learned counsel appearing on behalf of the petitioner had submitted that the award of the first respondent Industrial Tribunal-cum-Labour Court is contrary to the facts and the law applicable to the case. The award of the first respondent Industrial Tribunal-cum-Labour Court, dated 16.6.2005, suffers from an error apparent on the face of the record and it is against the pleadings contained in the claim statement. The award passed by the first respondent, directing the reinstatement of the second respondent in service, with continuity of service and other consequential benefits and with 50% of the backwages, is illegal and void.
9. Even though the second respondent had accepted the first charge he has been directed to be reinstated in service, by the impugned award passed by the first respondent. The first respondent ought not to have granted an award in favour of the second respondent, especially, when the petitioner had lost confidence and faith in him. The explanation submitted by the second respondent that he had been forced to execute the power of attorney, for the sale of the property mortgaged as security for the housing loan, cannot be accepted. The finding of the first respondent that Civil Court had declared the sale, as null and void, is not correct, as such a declaration had been obtained by way of a compromise, nearly two years after the imposition of the punishment on the second respondent.
10. It had also been stated that the first respondent had failed to appreciate the fact that the recovery of Rs.9200/-, with regard to the irregularity committed by the second respondent, by availing the leave fare concession Scheme, cannot be taken as a mitigating factor in favour of the second respondent. Since, the second respondent had been employed in the petitioner Bank it is important for him to have conducted himself in such a manner that he could be trusted fully, without any aspersions being cast on his integrity.
11. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions:
11.1) In High Court of Judicature at Bombay V. Shashikant S.Patil (1999 LAB.I.C. 3833), it had been held as follows:
Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. 11.2) In Canara Bank V. V.K.Awasthy (2005(6) SCC 321), it had been held as follows:
"Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. The expressions "natural justice'' and "legal justice'' do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. No form or procedure should ever be permitted to exclude the presentation of a litigant's defence. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi- judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression `civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. The principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
12. Per contra, the learned counsel appearing on behalf of the second respondent had submitted that the award of the first respondent Industrial Tribunal-cum-Labour Court, dated 16.6.2005, is in accordance with law and the facts of the case. The charges levelled by the petitioner against the second respondent were not serious in nature. Therefore, the punishment of removal from service imposed on the second respondent was highly excessive in nature. The first respondent had also found that the sale of the property, mortgaged as security for the housing loan availed by the second respondent, had been done, fraudulently and by coercion, by the power of attorney of the second respondent. Further, the said sale had been held to be null and void, by a competent Civil Court. It had also been rightly held that an amount of Rs.9200/-, said to have been availed by the second respondent, as an advance, under the leave fare concession Scheme, had been recovered. As such, the award of the first respondent Industrial Tribunal-cum-Labour Court cannot be said to be illegal and void, as alleged by the petitioner.
13. The learned counsel appearing on behalf of the second respondent had relied on the following decisions in support of his contentions.
13.1 In A.L.Kalra V. P.E.C.India Litd. (1984-I L.L.J.186), the appellant, who was an employee of the respondent Corporation, had taken an advance for the purchase of a plot of land and for acquiring a vehicle. He had been charge sheeted on the allegation that he did not utilize the advance for the purpose for which it had been given, nor did he refund it. Therefore, he had been removed from service. In the said case, the Supreme Court had held as follows: "The order of removal passed by the Disciplinary Authority is illegal and invalid because that action is thoroughly arbitrary and violative of Article 14 and the alleged misconduct does not constitute misconduct within the meaning of 1975 Rules. The enquiry officer himself had found that punishment was already imposed for the alleged misconduct by withholding the salary and the appellant could not be exposed to double jeopardy. The findings of the enquiry officer are unsupported by reasons and the order of the Disciplinary Authority as well as the Appellate Authority suffer from the same vice. For these reasons the order of removal as well as the appellate order are quashed and set aside. As regards payment of backwages held: There has been lapse in totally complying with the regulations by the appellant, though it neither constitutes misconduct nor substantially good enough to initiate disciplinary proceedings. Having regard to all the aspects of the case, the appellant should be paid 50% of the back wages for the period since his removal upto his reinstatement excluding the period for which he had procured alternative employment." 13.2. In United Commercial Bank v. S.R.Purohit (1997(1) L.L.N.517), it had been held that the bank employee misutilising the house building advance taken from the bank may not be one of the misconducts envisaged in the Bipartite Settlement, entered into between the management of the bank and its employees. However, liberty had been granted to the Bank to realise the legitimate dues, with interest.
14. The learned counsel had also relied on the following decisions in support of his contentions:
1) Suryanarayan Pujari V. Union of India (1992-II L.L.N. 243).
2) S.Murugadhas V. State Bank of India (1997(2) L.L.N. 1176.
3) Bhagwan Dass V. Indian Airlines, Ltd. (1998(4) L.L.N. 577)
4) Mgmt. of Esorpe Mills (Private) Ltd. Coimbatore and Presiding Officer, Labour Court, Coimbatore, and another (1998(4) L.L.N. 884) and
5) The Chief General Manager, State Bank of India, Local Head Office, Chennai-1 v. The Central Government Industrial Tribunal cum Labour Court, Chennai (W.P.No.2512 of 2004).
15. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the second respondent, and in view of the decisions cited by them, and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to set aside the award of the first respondent Industrial Tribunal-cum-Labour Court, dated 16.6.2005, made in I.D.No.121 of 2003.
16. The petitioner has not been in a position to show as to how the award passed by the first respondent is contrary to law and the facts of the case. Further, the petitioner has not been in a position to show that the charges, said to have been proved against the second respondent, are serious in nature so as to warrant the imposition of the severe punishment of removal from service on the second respondent. The first respondent, using its discretionary power, had reinstated the second respondent in service, with continuity of service and other attendant benefits. However, only 50% of the backwages had been directed to be paid to the second respondent.
17. It is also noted that there were no charges against the second respondent in his nearly 22 years of service. As it cannot be held that the award of the first respondent, dated 16.6.2005, is contrary to law and perverse in nature, this Court does not find it appropriate to interfere with the findings of the first respondent Industrial Tribunal-cum-Labour Court, in its award, dated 16.6.2005, made in I.D.No.121 of 2003. Therefore, the writ petition is liable to be dismissed. Hence, it is dismissed. No costs.