Bank of India v. Shri T. Thulaseedharan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **WP(C).No. 29316 of 2006 (M)** **---------------------------ID 7/2005 of LABOUR COURT, ERNAKULAM --------** **PETITIONER :** ## **------------------** **BANK OF INDIA, REPRESENTED BY ITS ZONAL MANAGER, ZONAL OFFICE, KALOOR-KADAVANTHARA ROAD, KALOOR-682017.** **BY ADVS.SRI.DEVAN RAMACHANDRAN SRI.SURESHKUMAR SMT.T.G.SEETHAL** **RESPONDENTS :** ## **1. SHRI T.THULASEEDHARAN NAIR,** **TC.22/819, SURESH BHAWAN, KIZHE PERUMPALLY VEEDU, ATTUKAL, MANACAUD, TRIVANDRUM.** **2. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNALLABOUR COURT, 38/377, A-3, KARITHALA LANE, KARSHAKA ROAD, ERNAKULAM, KOCHI-682 016.** **BY SRI. P. PARAMESWARAN NAIR R1 BY ADVS. SRI.A.JAYASANKAR SRI.C.ANIL KUMAR R2 BY ADVS. SRI. AJITH KRISHNAN, ADDL.CGSC SRI.THOMAS J.ANAKKALUNKAL,CGC BY SRI.JOHN VARGHESE, ASSISTANT SG** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).NO. 29316 OF 2006 (M)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: MEMO DT 7/7/2003 CONTAINING THE ALLEGATIONS LEVELLED AGAINST THE R1.** - **P2: COPY OF THE REPLY DT 20/8/2003** - **P3: COPY OF THE CHARGE - SHEET DT 22/10/2003 ISSUED TO R1.** - **P4: COPY OF THE ENQUIRY REPORT DT 28/1/2004.** - **P5: COPY OF THE SHOW CAUSE NOTICE ISSUED TO R1.** - **P6: COPY OF THE WRITTEN SUBMISSION FILED BY THE R1.** - **P7: COPY OF THE PUNISHMENT ORDER DT 19/3/2004.** - **P8: COPY OF THE APPEAL FILED BY THE R1.** - **P9: COPY OF THE APPELLATE ORDER DT 27/4/2004.** - **P10: CLAIM STATEMENT FILED BY THE R1 DT NIL NOV. 2005.** - **P11: STATEMENT OF DEFENCE FILED BY THE PETITIONER.** - **P12: COPY OF THE AWARD PASSED BY THE R2 DT 28/8/2006.** - **P13: COPY OF THE NOTICE FROM THE ASSITANT LABOUR COMMISSIONER DT 29/3/2010.** **RESPONDENT'S EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **BP** **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 29316 of 2006 -------------------------------------------------Dated this the 20[th] day of June, 2014** ## **J U D G M E N T** The petitioner, a nationalized bank, has approached this Court challenging Ext.P12 award passed by the 2[nd] respondent Tribunal in ID No.7/2005, which arose from the punishment of compulsory retirement from service imposed on the 1[st] respondent. Vide Ext.P12 award, the 2[nd] respondent Tribunal found that the 1[st] respondent is entitled to be reinstated with full back wages, continuity of service and all other consequential benefits. 2. The 1[st] respondent joined service of the petitioner bank on 01.04.1988 as sub-staff. While working at PTP Nagar Branch, a memo was issued to him raising certain allegations of misconduct. A domestic enquiry was conducted and the 1[st] respondent was found partly guilty of the first two charges and guilty of charges 3 and 4. However, the disciplinary authority differed W.P.(C) No. 29316 of 2006 **==> picture [20 x 8] intentionally omitted <==** from the findings of the enquiry officer and recorded the substituted finding and held that all charges stood proved, which was done without giving the 1[st] respondent an opportunity of being heard. On 06.03.2004, a show cause notice proposing punishment was issued to the 1[st] respondent along with a report of the enquiry officer and the substituted findings of the disciplinary authority. A reply was given by the 1[st] respondent. However, the management imposed punishment of compulsory retirement from service. The 1[st] respondent contended that the punishment was shockingly disproportionate to the charges and the enquiry officer has not followed the principles of natural justice. He also raised a contention that the documents were marked and witnesses were examined without prior notice. 3. The matter came up before 2[nd] respondent on reference made by the Central Government under Section 10(1)(d) of the Industrial Disputes Act, 1947 for adjudication. The following was the reference; W.P.(C) No. 29316 of 2006 **==> picture [20 x 8] intentionally omitted <==** “Whether the action of the management of Bank of India in compulsorily retiring from service of Sh.T.Thulaseedharan Nair, Ex-staff subordinate sepoy of PTP Nagar Branch with superannuation benefits w.e.f. 27.4.2004 is justified? If not, to what relief the workman is entitled for?” 4. In the proceedings before the 2[nd] respondent, the petitioner contended that the charges levelled against the 1[st] respondent are serious in nature involving financial irregularities; and therefore, the punishment imposed is perfectly justified. It was also contended that the 1[st] respondent was given opportunity by the enquiry officer to peruse documents marked in the enquiry and he was assisted by a defence representative. The 1[st] respondent was cross-examined in the presence of defence representative and no objection was raised by the 1[st] respondent during enquiry; and therefore, no prejudice has been caused to the 1[st] respondent at any stage of enquiry proceedings; so contended by the petitioner. Therefore, they justified the stand in imposing punishment on the 1[st] respondent. The 2[nd] respondent Tribunal, after considering the evidence, passed Ext.P12, W.P.(C) No. 29316 of 2006 ..4.. which is under challenge. 5. Arguments have been heard. 6. The following are the arguments advanced by the learned counsel for the petitioner bank; - a)No prejudice has been caused to the 1[st] respondent since he had sufficient time to verify the documents and to prepare himself for the cross-examination. - b)The finding of the 2[nd] respondent Tribunal that the 1[st] respondent was cross-examined before leading the evidence of the management and that caused prejudice to his defence, is not sustainable. The substituted findings were based on the records of the enquiry without relying on any new facts. - c)On admissions made by the 1[st] respondent, it is clear that he was guilty of serious misconduct unbecoming of a bank employee and he is unfit to hold a post in the service of the bank. - d)The petitioner bank being a financial institution would suffer very adverse consequences if the 1[st] respondent, W.P.(C) No. 29316 of 2006 **==> picture [20 x 8] intentionally omitted <==** who had been found guilty of fraudulent acts involving lack of integrity and honesty, is reinstated in service. 7. All these contentions are refuted by the learned counsel for the 1[st] respondent, who argued that there is no reason to interfere with the findings entered into by the court below in exercise of powers under Article 226 of the Constitution of India. 8. The learned counsel for the 1[st] respondent invited my attention to the relevant paragraph of the Award to substantiate his argument. One of the allegations of the 1[st] respondent before the Labour Court was that 18 documents were produced by the petitioner bank on the first day of enquiry without a list and without furnishing copy of documents to the charge sheeted employee. The learned Tribunal, on valid reasons, found that all the documents produced and marked were relied on by the enquiry officer for entering into a finding; and therefore, it is necessary to provide at least a list of documents for enquiry. It was rightly pointed out that W.P.(C) No. 29316 of 2006 **==> picture [20 x 8] intentionally omitted <==** the proceedings do not show what was the manner in which or where from the 1[st] respondent had perused the documents. Therefore, it was found that the procedure was improper and caused serious prejudice to the 1[st] respondent. I see no reason to interfere with the said finding. 9. The next contention was that the 1[st] respondent was cross-examined at length by the presenting officer in the beginning of the enquiry exposing all grounds of defence to the opposite side before the management proceeded to let in evidence. This fact is not disputed by the petitioner. As rightly pointed out by the learned Labour Court, the presenting officer has put the cart before horse by examining the 1[st] respondent first. Moreover, a reverse order has been followed by the enquiry officer. In the reverse order, the 1[st] respondent was allowed to be cross-examined by the petitioner on every charge. The result was that the 1[st] respondent, who was expected to keep mum until the management proves W.P.(C) No. 29316 of 2006 **==> picture [20 x 8] intentionally omitted <==** the allegations, was made to speak about the incriminating circumstances against him. Undoubtedly, the same has caused prejudice to the 1[st] respondent and the finding to that effect by the learned Labour Court is perfectly sustainable. 10. The next contention of the 1[st] respondent was regarding the substituted finding of the disciplinary authority. The Labour Court relying on a decision in **Punjab National Bank & Ors.** vs. **Kunj Bihari Misra** **& Anr** [1998 II L.L.J. 809] observed that it was not enough to give a notice after a different finding was entered by the disciplinary authority, which was insufficient to comply with the principles of natural justice. 11. For the aforesaid reasons, it was found by the learned Labour Court that the domestic enquiry was not at all valid. As it was found that the enquiry was invalid, it was observed by the Labour Court that the same evidence adduced by the enquiry officer cannot be relied W.P.(C) No. 29316 of 2006 **==> picture [20 x 8] intentionally omitted <==** on to find out whether the charges are proved or not. As rightly pointed out by the learned counsel for the 1[st] respondent, this Court while exercising its jurisdiction under Article 226 of the Constitution of India, cannot interfere with a decision of a court or Tribunal based on the findings of facts unless it is so outrageous in terms of law and procedure. As the Labour Court has entered into definite conclusions on the facts placed before it, the impugned award does not call for any interference by this Court. Therefore, the writ petition is dismissed, but, without costs. Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-