M. Saseendran v. Managing Director, State Bank of Travancore and Industrial Tribunal, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 24TH DAY OF MAY 2016/3RD JYAISHTA, 1938** **OP.No. 34761 of 2001 (L) -------------------------** ## **PETITIONER:** ## **-----------** ## **M. SASEENDRAN, SIVAGIRI MUTT, VARKALA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.GOPAKUMAR R.THALIYAL SRI.A.K.HARIDAS** ## **RESPONDENTS:** ## **------------** **1. THE MANAGING DIRECTOR, STATE BANK OF TRAVANCORE, POOJAPPURA, THIRUVANANTHAPURAM.** **2. THE INDUSTRIAL TRIBUNAL, KOLLAM.** **R1 BY ADV. SRI.P.RAMAKRISHNAN** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 34761 of 2001 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** - **P1: TRUE COPY OF CLAIM STATEMENT FILED BY PETITIONER BEFORE INDUSTRIAL TRIBUNAL, IDUKKI (I.D. 7/1995)** - **P2: TRUE COPY OF AWARD IN I.D. 7/1995 (I.D. 12/96) DATED 2.11.1998 OF 2ND RESPONDENT** - **P3: TRUE COPY OF PETITION DATED 27.11.2000 FILED BY PETITIONER BEFORE MINISTRY OF LABOUR NEW DELHI** - **P4: TRUE COPY OF REPLY DATED 7.6.2001 FROM MINISTRY OF LABOUR, NEW DELHI** - **P5: TRUE COPY OF APPLICATION DATED 3.7.2001 FILED BY PETITIONER BEFORE 2ND RESPONDENT** ## **RESPONDENT'S EXHIBITS** ## **NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** ## **JJJ** ## **K. VINOD CHANDRAN, J.** ------------------------------------------ O.P. No. 34761 of 2001 (L) ------------------------------------------ Dated this the 24[th] day of May, 2016 ## **J U D G M E N T** The petitioner who was working as a Peon in the 1[st] respondent Bank was terminated from service, pursuant to a disciplinary enquiry, wherein charges of misconduct were alleged. The petitioner approached the Industrial Tribunal; against the order of termination, which dispute was held in favour of the management, as per Ext.P2 award. The petitioner challenges the same before this Court. The award has detailed the entire circumstance which led to the allegation of misconduct, the disciplinary enquiry constituted and the termination ordered. ## **O.P. No.34761/2001** **-2-** 2. The allegations were raised with respect to an incident where the petitioner, along with the Cashier of the respondent Bank, had been transporting Rs.1 lakh, belonging to the Bank; which cash was alleged to have been stolen while in transit. The petitioner, who was carrying the cash in a trunk, was charged as being negligent in transporting the money, causing loss to the Bank. Further charges were also laid on the basis of the subsequent conduct of the petitioner, which are detailed in the award itself. 3. On 10.08.1987, at about 2.15 p.m., the petitioner was carrying a small steel trunk containing a sum of Rs.1 lakh, withdrawn from the Thodupuzha branch, for being transferred to the Karimannoor branch of the respondent Bank. The petitioner at that time was working as a Peon in the Karimannoor ## **O.P. No.34761/2001** **-3-** branch. The incident is said to have occurred at the Thodupuzha Municipal Bus Stand and the petitioner himself had different versions about the incident. On facts, for the present, suffice it to notice that the petitioner asserted the box containing the cash to have been snatched away from his hand. The petitioner was unable to apprehend or identify the miscreant who committed the theft. The first charge levelled against the petitioner was with respect to the loss caused to the Bank by his negligent conduct. The other charges were with respect to the immediate, subsequent conduct of the petitioner. Though the petitioner asserted that the trunk containing the cash was snatched away from his hands, he made absolutely no hue and cry to attract the attention of the public nor did he try to approach any police personnel posted nearby. The petitioner also could not furnish any details about the person who is ## **O.P. No.34761/2001** **-4-** said to have snatched the cash box. The version of the petitioner to the respondent Bank was that while he and the Cashier was crossing the road, the box was snatched away. The petitioner is said to have remained at the spot and when the Cashier returned, he is said to have told him that the money had gone. The petitioner had also refused to give a statement to the Police when he was instructed so to do by his Controlling Officer. 4. The disciplinary enquiry was proceeded with and the enquiry officer found the delinquent, guilty of all the charges levelled against him. The disciplinary authority too agreed with the findings of the enquiry officer and awarded the punishment of termination from service. With respect to the charge sheet and the enquiry, the petitioner had multifarious contentions. It was alleged that the charges levelled against him, being ## **O.P. No.34761/2001** **-5-** six, were unnecessarily expanded and multiplied since it all related to the one single incident. It was alleged that the enquiry was conducted in violation of the principles of natural justice. The Labour Court found that no such specific instance was pointed out in the claim statement. There was also an attack against the findings, on the ground that the reliance placed on the deposition of the Investigating Officer was not proper. The petitioner also contended that five, out of the eleven witnesses, who were independent witnesses, were not examined at the enquiry. According to the petitioner, this seriously prejudiced his defence. The further attack against the enquiry report was that the findings were perverse and not supported by evidence. Prejudice was also urged on the ground that the enquiry report was not supplied to the delinquent, along with the final show-cause notice. ## **O.P. No.34761/2001** **-6-** 5. As was noticed, violation of principles of natural justice was a bland allegation raised without any specific incidence of such defect having been pointed out. The Labour Court rightly, refused to consider the same. As to the framing of six charges, a reading of the charges, as seen from the award, would indicate that the same related to the loss occasioned to the Bank by the negligence of the petitioner employee and the failure of the petitioner employee to ensure that the money lost from the hands of the petitioner was secured immediately by taking timely action. There is no vagueness in the charges alleged and the different aspects of the same incident having been levelled against the petitioner as charges, does not at all vitiate the charge sheet. There cannot, hence, be alleged any unnecessary multiplication of charges. ## **O.P. No.34761/2001** **-7-** 6. Curiously enough, while the petitioner asserted that the enquiry officer did not have any power to summon witnesses, while attacking the deposition of the Investigating Officer in the crime; an attack was raised against the enquiry on the ground of non examination of five witnesses. The plea, it is to be noticed, is mutually destructive. It is trite that the disciplinary authority would be competent to issue summons, but, would not have the power or authority to ensure the presence of witnesses, as is available with the Courts or Tribunals. Hence, in a disciplinary enquiry, at best, the employer could ensure the presence of its own employees, who could depose for and against the delinquent; the former when specifically requested by the delinquent employee. The delinquent employee could also proffer his own witnesses to substantiate his defence, in which event ## **O.P. No.34761/2001** **-8-** the disciplinary authority would be enjoined upon to examine them. The Management, having given up the five witnesses, no summons was issued to them. The petitioner also did not request for examination of these witnesses. 7. The presence of the Investigating Officer before the disciplinary authority cannot, at all, be assailed. It is not as if the enquiry officer cannot examine a witness produced by the management. In all probability, the management would have requested the Investigating Officer to be present and he thought it fit to appear and depose before the enquiry officer. This is a perfectly permissible exercise and there can be no defect found in the Investigating Officer's evidence having been relied upon by the enquiry officer or the disciplinary authority. ## **O.P. No.34761/2001** **-9-** 8. The Tribunal relied on the judgment of the Hon'ble Supreme Court in **State Bank of Bikaner and Jaipur v. Srinath Gupta and another - (1996) 6 SCC 486** which held Section 161 of the Criminal Procedure Code inapplicable to a domestic Tribunal. It has to be observed that the decision relied on by the Tribunal may not be squarely applicable. In the said case, a witness before the enquiry officer, who had given the statement under section 161 of the Cr.P.C., had deposed in accordance with the statement. The presence of the investigating officer was also challenged on the ground that, such presence made the witness depose in accordance with the statement; contrary to the truth. This is not the ground of the delinquent employee in the present case. Here, the investigating officer deposed as a witness and produced the 161 statements of the delinquent and the **-10-** ## **O.P. No.34761/2001** cashier who accompanied him. 9. Be that as it may, there is no reliance placed on the statements as such. The enquiry officer merely looked into the statement to find that there were different versions given by the delinquent employee. Before the Branch Manager, immediately after the incident and in the explanation given to the charge sheet, the delinquent employee had stated that the cash was snatched away, when he was crossing the road with the cashier following him. Before the investigating officer the delinquent had stated that the cash was snatched away when he was proceeding to the milk booth; having send the cashier on an errand. Even if the evidence of the investigating officer, as to the statement made under Section 161 is eschewed, it cannot be said that there was no sufficient evidence to find the negligence of the delinquent. ## **O.P. No.34761/2001** **-11-** 10. The evidence of the police officer clearly indicates that there were police constables posted at the bus stand and there was also another constable at the nearby traffic point. Admittedly, the delinquent did not report the alleged snatching away of the trunk containing the money to any of these police officials. It is to be noticed that the evidence warranting a conviction in a criminal proceeding and that leading to a finding of guilt in a disciplinary proceeding are by their very nature, distinct and different. While in a criminal case, to enter a finding of guilt, the evidence should be one which pins the guilt on the accused beyond all reasonable doubt; what is required in a domestic enquiry is only a preponderance of probabilities. ## **O.P. No.34761/2001** **-12-** 11. The plea that the enquiry officer does not have power to summon a police officer and the challenge raised on the ground that five witnesses were given up by the management are mutually destructive. The police officer, though was not under any compulsion, had voluntarily appeared and deposed before the enquiry officer and there is no reason to find that he is in any manner interested in the matter nor is such a plea raised. It is also an admitted fact that the investigation of the police had not reached anywhere and the case was referred as 'undetected'. As to the other witnesses not having been examined, it is trite that the enquiry officer does not have the power available to Courts or Tribunals to ensure the presence of witnesses. Of course, if the witnesses were employees of the management, at best; the management could have been asked to procure the ## **O.P. No.34761/2001** **-13-** presence of the witnesses. In this case, the witnesses given up by the management were independent witnesses and if at all the petitioner was of the opinion that they would depose in his favour, then they ought to have been produced by the petitioner. 12. The evidence at the enquiry also brought out that the personnel of the Bank transporting cash could avail the facility of a jeep or taxi for transporting it, which the Peon or the Cashier, accompanying the Peon, failed to do. The conduct of the delinquent in having resorted to a public transport, putting at risk the valuable money of the Bank, itself is a negligent act. It was found that, though the delinquent alleged that the money was snatched from his hands, he had made no effort to apprehend the culprit nor had he raised an alarm which would have definitely attracted notice of the public. In normal circumstances, when substantial ## **O.P. No.34761/2001** **-14-** amount of cash is carried on the person, and the same is snatched away by another, the natural reaction would be to create a commotion so as to attract the attention of others and to make a collective effort to apprehend the assailant. The fact that the petitioner created absolutely no commotion and coolly maintained his position till the Cashier returned; to whom he narrated unfazed, the alleged incident, raises very serious apprehension and casts a shadow of suspicion on the delinquent. 13. The delinquent employee was not even able to identify or even give a description of the person who snatched the money and he is also said to have initially refused to give a statement of the alleged incident. The alleged snatching away of the box containing the cash, which occurred in a public place, a bus stand, without any person noticing the same and the person who was **-15-** ## **O.P. No.34761/2001** in possession having not raised a commotion, probablise the connivance of the delinquent in the loss occasioned to the Bank. It was also noticed by the enquiry officer at the disciplinary proceedings that one of the versions given by the delinquent was that he was walking with the cash box inside the bus stand and the Cashier was following him. Both of them could not give any clue regarding the person who allegedly snatched away the cash box. This, coupled with the fact that neither the workman nor the Cashier attempted to report the matter to the police constables who were stationed in the bus stand itself, makes the issue more complex. 14. The Labour Court has found that on the evidence adduced it can be safely found that the workman was guilty of the charges levelled. The contention that the Bank had been reimbursed with the money by the Insurance is of no avail to the workman, ## **O.P. No.34761/2001** **-16-** who has failed to show diligence in protecting the valuable cash of his employer and has, by his negligence and subsequent conduct, lost the trust of his employer. The argument that actually no loss was caused to the bank, from the alleged negligence, was held to be no ground to condone the act of misconduct in **State Bank of India v. Bela Bagchi - (2005) 7 SCC 435** . 15. The ground of non supply of enquiry report; it is trite has to be looked at in the background of the prejudice caused to the delinquent employee. Here, the case of the petitioner is not that he was never supplied with the enquiry report. The ground raised is that the enquiry report was not supplied along with the show cause notice. The petitioner requested for a copy of the enquiry report after the show-cause notice was received and the disciplinary authority immediately supplied the ## **O.P. No.34761/2001** **-17-** same. The objections were filed by the petitioner after the enquiry report was received. In such circumstance, there can be no prejudice found to interfere with the order of the disciplinary authority. Even when the enquiry report was supplied, just prior to the submission of the appeal; the Honourable Supreme Court found that no prejudice was caused to the employee in **Union Bank of India v. Vishwa Mohan - (1998) 4 SCC 310.** This Court does not find any reason to interfere with the findings of the Labour Court. 16. The further argument is on the application of Section 11A of the Industrial Disputes Act. Section 11A, which has to be resorted to only in cases of dismissal or termination, has to be applied sparingly and only if it is found that the punishment imposed is disproportionate to the gravity of the offence alleged. ## **O.P. No.34761/2001** **-18-** In the present case, it cannot, at all, be said that the punishment of dismissal was disproportionate to the gravity of the offence. The petitioner employee's conduct was grossly negligent and occasioned loss of Rs.1 lakh of his employer, the Bank. **General Manager (P), Punjab and Sind Bank v. Daya Singh - (2010) 11 SCC 233;** emphasised the expectation of higher degree of honesty and integrity from a bank employee. Though a peon, by the nature of his duties, the employer entrusted him with cash for transmission from one branch to another and that inspires an expectation as noticed in the aforesaid judgment. 17. The evidence led at the enquiry has proved that the loss was not occasioned by an act of theft, where the delinquent could not be held responsible at all. The delinquent employee had flouted the instructions of the Bank, with respect to transporting of ## **O.P. No.34761/2001** **-19-** cash, and had also negligently carried the same and raised an allegation of theft, which the subsequent conduct of the delinquent belied. The petitioner employee lost the confidence of the employer. **Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar - (2003) 4 SCC 364** held that punishment imposed by disciplinary authority; unless shocking to the conscience of the Court/Tribunal, no judicial review was possible. It cannot be said that the termination of the employee; on charges of serious misconduct, which led to the employer loosing trust in the employee, is in any manner disproportionate to the gravity of the offence alleged and proved. Nor is the termination, considering the gravity of the offence, shocking to the conscience of this Court. ## **O.P. No.34761/2001** **-20-** In such circumstance, this Court does not find any reason to interfere with the award of the Industrial Tribunal. The original petition is devoid of merit and the same is dismissed. No costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 25/5/16