## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE AMIT RAWAL**
**MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942**
## **WP(C).No.10821 OF 2020(C)**
## **PETITIONER/S:**
**1 DY. GENERAL MANAGER (B AND O), APPELLATE AUTHORITY, STATE BANK OF INDIA, ADMINISTRATIVE OFFICE, KOTTAYAM (FORMERLY OFFICIATED BY THE DEPUTY GENERAL MANAGER ( B AND O), APPELLATE AUTHORITY, STATE BANK OF INDIA, DISCIPLINARY PROCEEDINGS CELL, ADMINISTRATIVE OFFICE, LMS COUNDPOUND,TRIVANDRUM-33)**
**2 REGIONAL MANAGER (DISCIPLINARY AUTHORITY), STATE BANK OF INDIA, REGIONAL BUSINESS OFFICE, THIRUNAKKARA, KOTTAYAM-686001.**
## **BY ADV. SRI.AMAL GEORGE**
## **RESPONDENT/S:**
**SMT. SREEKUMARI M., KARTHIKA, HOUSE NO.VIII/140. P.O., KUMARANELLORE, KOTTAYAM-686016.**
## **OTHER PRESENT:**
## **SRI VINOD MADHAVAN**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated this the 15[th] day of June 2020**
The State Bank of India through its Deputy General Manager (B&O) and Regional Manager in the instant writ petition has laid challenge to award Ext.P1 dated 30.09.2019.
2. Facts leading to filing of the writ petition is that Smt.Sreekumari.M./respondent joined State Bank of India on 8.11.1978 as an Assistant, later promoted as Special Assistant. With effect from 10.12.2007 to 30.01.2010, she was working as a Special Assistant in Thirunakara Branch and thereafter, from 31.1.2010 to 26.8.2010 Senior Special Assistant at Kottayam Branch. She availed four demand loans and four current account overdrafts having an aggregate value of Rs.57 lakhs. For availing the aforementioned loans, she offered her term deposit of SBI as security but amount of Rs.33 Lakhs remained without any security. On account of such serious irregularities detected by the Bank, a show cause notice dated 21[st] April 2011 Ext.P2 was issued to the respondent which was duly replied vide reply dated 9[th] May 2011, Ext.P3. In the reply the allegations of
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having multiple term deposit receipts were emphatically denied and duly explained by concluding that there was no willful misappropriation or irregularity.
3. Explanation given by the respondent found misconduct under clause 5(j) of the Bipartite Settlement dated 10.04.2002 and ordered for domestic enquiry. She was given ample opportunity for effectively participating in the enquiry. On 8.10.2011, she submitted representation dated 8.10.2011, Ext.P4 to the AGM (DPC/Administration-1) LHO Annex Trivandrum alleging that there was no willful misappropriation, irregularity and the alleged omissions were detected by herself even corrective steps were taken to regularize accounts. Alleged irregularity was by mischance, not by willful action and expressed remorse for taking a lenient view. The enquiry officer vide a report dated 10.11.2011 Ext.P5 proved the charges against employee and the action proposed to be taken was communicated vide letter dated 23.01.2012. On 7.2.2012, she was given opportunity of personal hearing. After affording aforementioned personal hearing, the disciplinary authority vide
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order dated 15.2.2012 ordered the respondent 'be dismissed without notice' in terms of clause 6(a) of the Memorandum of Settlement on Departmental Action Procedure for workmen dated 10.1.2002. The aforementioned decision was preferred in appeal before the Appellate Authority which was also rejected for want of merit.
4. A dispute for resolution by order dated 14.10.2013 of the Government of India, Ministry of Labour as per the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of the Industrial Disputes Act, 1947 was raised. The dispute raised for resolution was 'Whether the punishment of dismissal from service imposed on Smt.Sreekumari M by the Management of the State Bank of India is proportionate to the misconduct committed by her. To what relief the worker is entitled?”.
5. The Management filed a written statement dated 23.6.2014, Ext.P7 and emphatically denied the averments made in the claim by asserting that no such valid ground was made out in awarding the lesser punishment. Once the employee was
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found guilty of misutilizing or misappropriation of the funds of the employer, the primary factor to be taken into consideration is the loss of confidence and not the amount of money that is actually lost. Labour court vide award, Ext.P1 dated 30.9.2019 set aside the imposition of punishment order and granted reinstatement in service without back wages.
5. Mr. Amal George Mevada, learned counsel appearing on behalf of the petitioner inter alia submits that the award of the labour court is not sustainable on the following submissions:
a. The Tribunal was in error in deciding on the validity of disciplinary enquiry as a preliminary issue because the validity of the enquiry was not referred by the Central Government for any kind of adjudication. Thus for all intends and purposes, process adopted by the Tribunal in adjudication of the reference amounts to incompetently making its own reference defying the valid reference made by the Central Government u/s 10 of the Industrial Disputes Act 1947 and making an enquiry entirely outside the scope of the reference.
b. It is settled law that the Bank Employees to have
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absolute devotion, diligence, integrity and honesty as the core values and to take very strict view in the case of erring employees notwithstanding the fact that the amount involved is meagre or there was no loss caused to the Bank. The erosion of confidence will totally be deleterious to the financial stability of the nation itself. The respondent/workman not only disputed the occurrence of the misconduct but attempted to whitewash the same by contending that due to her misconduct the Bank did not suffer any loss. Such an act of her directly proved as reflected in the enquiry report resulted into inevitable dismissal.
c. The Tribunal was in error in not acting on the photocopy of the enquiry proceedings because the respondent did not dispute about the genuineness or otherwise of the enquiry, or the proceedings that culminated into Ext.P5 report.
6. I have heard the learned counsel for the parties, appraised the paper book, and of the view that there is no force and merit in the aforementioned submission on account of the following grounds:
(a) It is settled law that a photo copy of the document is
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not a primary but a secondary evidence. No affidavit was submitted to lead secondary evidence, in case original file had lost. Provisions of Section 65 of the Indian Evidence Act could have easily been pressed into service ie., the existence and loss is sine qua non. Even during the course of hearing, this Court put a specific query to the counsel for not producing original file. The answer was in negative as original file was lost. In support of the submissions, reliance has been laid to the judgment of the Hon'ble Supreme Court in **1996 (4) SCC 374 Bharath forge Co.Ltd. v. A.B Zodge and another.** It was held that in case an employer seeks the indulgence of the labour court for leading additional evidence, labour court is not prevented to permit dehors the proviso to Section 11(A) of 1947 Act. However in the instant case no such affidavit was filed or an application for proving on record photocopy as secondary evidence. The labour court also found that there was no such objection regarding the loss suffered by the Bank. Non production of the file has a serious impact on the conduct of the management regarding the fair and proper enquiry. In such circumstances, the benefit
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would definitely tilt in favour of the workman.
The upshot of the findings, I do not find any illegality or perversity in the award, under Article 226 of the Constitution of India in forming different opinion than the one arrived at. No ground for interference is made out. The writ petition is accordingly dismissed.
**Sd/-**
sab
**AMIT RAWAL, JUDGE**
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## **APPENDIX**
**PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 THE PHOTOCOPY OF THE AWARD IN ID 47/2013 OF THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, ERNAKULAM DATED 30/09/2019.**
**EXHIBIT P2 TRUE PHOTOCOPY OF THE SHOW CAUSE NOTICE ISSUED TO THE RESPONDENT DATED 21/04/2011.**
**EXHIBIT P3 TRUE PHOTOCOPY OF THE REPLY TO THE SHOW CAUSE NOTICE DATED 09/05/2011.**
**EXHIBIT P4 TRUE PHOTOCOPY OF THE REPRESENTATION OF THE RESPONDENT DATED 08/10/2011.**
**EXHIBIT P5 TRUE PHOTOCOPY OF THE ENQUIRY REPORT FINDING THE RESPONDENT GUILTY DATED 10/11/2011.**
**EXHIBIT P6 TRUE PHOTOCOPY OF THE CLAIM STATEMENT OF THE RESPONDENT DATED 25/02/2014.**
**EXHIBIT P7 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT OF THE MANAGEMENT DATED 23/06/2014.**
