State Bank of India v. Sri. T.R. Sethumadhavan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938** ## **WP(C).No. 10514 of 2009 (H)** **----------------------------** **ID.NO. 309/2006 OF LABOUR COURT, ERNAKULAM** **PETITIONER:** **----------------------** **STATE BANK OF INDIA, REPRESENTED BY ITS ASST. GENERAL MANAGER, ZONAL OFFICE, ERNAKULAM-COCHIN 682 031.** **BY ADVS.SRI.GEORGE THOMAS (MEVADA) SRIN.RAYNOLD FERNANDEZ** **RESPONDENT :** **------------------------** **SRI. T.R.SETHUMADHAVAN, C/O.T.R.MALATHI, SBI, LIC BUILDING, M.G.ROAD, KOCHI-11.** ## **BY ADV. SRI.BIJU MARTIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.10514/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE WRITTEN COMPLAINT SUBMITTED BY SRI. SIDHI, DATED 07/06/1995** - **P2 COPY OF THE LETTER DATED 21/06/95.** - **P3 COPY OF THE PROCEEDING AGAINST THE PETITIONER DATED 15/12/90** - **P4 COPY OF THE ENQUIRY REPORT DATED 26/11/96.** - **P5 COPY OF THE ORDER OF DISMISSAL DATED 06/12/97** - **P6 COPY OF THE ORDER DATED 10/02/98** - **P7 COPY OF THE ORDER DATED 01/06/98** - **P8 COPY OF THE CLAIM STATEMENT DATED 20/06/00** - **P9 COPY OF THE WRITTEN STATEMENT DATED 01/12/01** - **P10 COPY OF THE REJOINDER DATED 08/04/02** - **P11 COPY OF THE AWARD DATED 22/02/08** ## **RESPODNENT'S EXHIBITS:** - **R(A) COPY OF THE CERTIFIED COPY OF THE DEPOSITION OF THE E.O. IN ID 309/06 DATED 12/5/08** - **R(B) COPY OF THE ORDER DATED 11/10/96** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.10514 of 2009-H ---------------------------------Dated this the 16[th] day of August, 2016** ## **JUDGMENT** The petitioner, State Bank of India, is aggrieved by the award passed at Ext.P11 wherein, the issue referred was the legality of the dismissal of a workman and whether the same is justifiable. The award was passed, holding such dismissal to be illegal and unjustifiable and directing reinstatement with back-wages, continuity of service and all other consequential benefits. 2. The issue as raised by the petitioner, the Management, is in a narrow compass as to whether the petitioner-management was entitled **2** _W.P(C). No.10514 of 2009-H_ to adduce fresh evidence to substantiate the charges, on the enquiry being found to be bad. The enquiry was found to be bad for reason of the Management having not examined any witnesses and having merely produced documents which were marked by the Enquiry Officer. 3. The learned Counsel appearing for the respondent would submit that there was no question of adducing fresh evidence, since the enquiry was found to be valid. The findings in the enquiry were found by the Tribunal to be unsustainable for reason of there being no witnesses examined on behalf of the management for proving the various documents produced. In such circumstances, there was no requirement for permitting the Management to adduce fresh evidence, as the finding of guilt was set aside for there being no evidence to prove the same. _W.P(C). No.10514 of 2009-H_ **3** 4. It is also argued that originally after supply of the enquiry report, the disciplinary authority passed an order finding only one of the charges proved against the respondent. Subsequently, the authority passed a further order produced as Ext.P5 dated 06.12.1997 finding the delinquent-workman guilty of two charges. The procedure so adopted is unheard of and vitiates the order of dismissal, Exhibit P6, passed on the basis of the subsequent order. The Disciplinary Authority found the Charge Sheeted Employee (CSE)/workman guilty of the charges levelled at 1 and 3, by Exhibit P5; as found by the Enquiry Officer, which according to the CSE, is an order passed, reviewing the earlier order making the order of dismissal grossly irregular. The alleged earlier order is produced along with a Counter _W.P(C). No.10514 of 2009-H_ **4** Affidavit of the CSE, as Ext.R(b). 5. Admittedly, there were five charges levelled against the CSE as is evident from Ext.P4. Charge 1 was with respect to accepting Rs.1,000/- from a customer and not making the remittance. Charges 2,3 and 4 were with respect to delayed remittance made after accepting cash from different customers. Charge No.5 was with respect to unauthorised absence. Admittedly, an enquiry was held into the charges, after which Ext.P4 report was submitted by the Enquiry Officer to the Disciplinary Authority. The enquiry report was supplied to the CSE, by Exhibit P5, concurring with the findings in the report and proposing a punishment, as also giving an opportunity to the CSE to represent against the findings and the punishment proposed. The CSE filed objection dated _W.P(C). No.10514 of 2009-H_ **5** 20.03.1997 and also submitted a letter dated 08.01.1998, at the time of hearing. The Disciplinary Authority then passed order produced at Ext.P6, wherein the workman was awarded with the punishment of dismissal from service, which was the point of reference before the Industrial Tribunal. The appeal filed by the CSE was rejected by Exhibit P7. The Award of the Industrial Tribunal at Ext.P11 is impugned herein. 6. The Industrial Tribunal had framed three issues for consideration being (i) the validity of the enquiry (ii) the sustainability of the findings and (iii) propriety of the punishment. With respect to the validity of the enquiry, though the claim statement (Exhibit-P8) and the rejoinder filed (Exhibit-P10) seriously contested the enquiry on grounds of violation _W.P(C). No.10514 of 2009-H_ **6** of principles of natural justice; at the time of argument, the learned Counsel for the workman gave up the challenge and hence the Tribunal did not look into the validity and propriety of the enquiry. 7. The enquiry report was marked as Ext.M(1). The documents marked in the enquiry, on the side of the Management, were 19 in number, but none was examined to mark those documents before the Enquiry Officer. The defence side also sought for introduction of 7 documents, which was also allowed without any examination of witness. Out of the 7 documents, marked on behalf of the CSE, document Nos.4,5,6 & 7 were produced by the Management, at the request of the CSE. On production the same were again marked without any witness being examined. The documents marked were all _W.P(C). No.10514 of 2009-H_ **7** photocopies as deposed by the Enquiry Officer, who was examined as MW1, which deposition is produced at Ext.R(a). The Industrial Tribunal had found fault with the procedure adopted by the Enquiry Officer in so far as having not examined any witness to prove the documents produced. 8. The learned counsel appearing for the respondent/CSE would contend that such a finding was only on the sustainability of the findings, based on the evidence recorded and not on the validity of the enquiry as such. This Court is unable to countenance such argument, since the procedure adopted in the enquiry was the consideration made by the Tribunal and having found the same to be not proper, the findings were found to be unsustainable. _W.P(C). No.10514 of 2009-H_ **8** 9. The argument now raised by the CSE is also contrary to the specific pleadings in the dispute, on record before the Tribunal. The claim statement is produced at Exhibit P8, which, in paragraph 6, specifically pleaded violation of principles of natural justice. One of the grounds on which the said contention raised was also specified as _'No witnesses were examined in the enquiry by the prosecution to testify the documents referred by the disciplinary authority'(sic)_ . In the rejoinder too it was contended _'Exhibits P1 to 19 documents are not brought in the enquiry by testifying any of the documents. The procedure adopted by the management in this regard is illegal and violation of the principles of natural justice. (sic-para 10 of Exhibit P10)._ 10 _. T_ he allegation of no witness having been _W.P(C). No.10514 of 2009-H_ **9** examined at the enquiry would only be a procedural irregularity vitiating the enquiry, upon which the Management has to be necessarily given an opportunity to adduce fresh evidence, if there is a request to that end made at the first instance. This is a fit case, in which the Management ought to have been directed to adduce fresh evidence, especially when the Management had requested for adducing such fresh evidence, on the enquiry being found to be irregular, in the written statement itself, at the first instance, as is seen from Ext.P9. The Management had at the first instance itself requested for such measure; if any procedural defect is found in the enquiry conducted by the Management against the CSE. The Management, in that context ought to have been given an opportunity to substantiate the charges,with _W.P(C). No.10514 of 2009-H_ **10** fresh evidence in the proceedings before the Tribunal. 11. The finding of the Tribunal was also to the effect that the Management having not examined any witness before the Enquiry Officer, the documents produced could not have been relied upon. As to the said finding, it is to be noticed that the CSE never objected to the marking of the documents at the time of the enquiry proceedings. The CSE had participated in the enquiry and was also represented by a defense representative. The CSE did not at any point in the enquiry proceedings, as is revealed from the report challenge the nonexamination of witnesses. The Enquiry Officer who was examined as MW1 was not confronted with a suggestion that the non-examination of a witness to prove the documents produced was _W.P(C). No.10514 of 2009-H_ **11** ever raised as an objection in the enquiry proceedings. The enquiry report all the same reveals such an objection having been taken at the time of final arguments before the Enquiry Officer. 12. The deposition of the Enquiry officer (MW1) admits the fact that the documents were marked without examining a witness. The proceedings indicate that even the documents produced by the CSE were marked without examining himself or another witness. The Management had also produced the documents requested by the CSE and the same was also marked without any witness being examined. In the context of the procedure adopted at the enquiry, this Court is of the opinion that the documents marked were with consent and in such circumstance, the finding of the Tribunal; with _W.P(C). No.10514 of 2009-H_ **12** respect to the documents being merely produced and there being available no evidence to substantiate the charges, cannot be upheld. 13. However,as is revealed from the enquiry report the CSE raised the ground of nonexamination of witness to prove the documents, at the final stage of the enquiry. Though this should have been ideally raised at the time of the marking of documents, this Court would not interfere with the order of the Tribunal having found the enquiry vitiated, since even the management only prays for an opportunity to adduce evidence to substantiate the charges. In the facts of the case, it is only proper that the Management be permitted to adduce fresh evidence before the Tribunal so as to substantiate the charges in the charge-sheet based on which specifically charge Nos.1 and 3 _W.P(C). No.10514 of 2009-H_ **13** resulted in the dismissal of the workman. 14. The Disciplinary Authority having in its order at Ext.P6, not found the evidence available, sufficient to uphold the charges at 2,4 & 5, there need be no evidence adduced on that aspect and there can be no prejudicial order passed by the Tribunal as against the workman on the said charges, which have been given up by the Management itself. 15. The further contention, on which the Tribunal has laboured considerably, is the submission of the workman that there was an order passed by the Disciplinary Authority at an earlier stage [Ext.R(b)] which was later given up and another order passed by another Disciplinary Authority at Ext.P5. At the outset, it is to be noticed that Ext.R(b) is not a communication issued to the petitioner. _W.P(C). No.10514 of 2009-H_ **14** It is not clear as to how the petitioner came into possession of Ext.R(b) or as to who authored the said order, which is handwritten and not one addressed to anyone in particular. Ext.R(b) also is not authenticated by any seal of authority of the Bank and it has to be found that there can be no reliance placed on it. 16. Further, it is not clear as to how the Tribunal entered into the findings it did at paragraph 11 as to an order being issued first by one Officer acting as the Disciplinary Authority and then by another again acting as the Disciplinary Authority, wherein the former found only Charge No.1 to have been proved and the latter having found two charges,Charge Nos.1 & 3, having been proved. The CSE did not produce any document before the Tribunal. The only witness examined before the Tribunal was _W.P(C). No.10514 of 2009-H_ **15** on behalf of the Management, that too the Enquiry Officer. The only document marked was also the enquiry file, in which as was noticed above, 19 documents were marked on the Management's side and 7 on the workman's side. Definitely Ext.R(b) could not have formed part of the enquiry files, since the alleged order dated 11.10.1996 purportedly passed by the Disciplinary Authority was based on the enquiry report dated 26.09.1996;ExhibitP5. In such circumstance, this Court is unable to find that any review of an earlier order was attempted by the Management. 17. The learned Counsel for the respondent relied on **Mahadevan v. Tamil Nadu Housing Board [2005(4) KLT SN 27]** to contend that after retirement, there can be no disciplinary proceedings initiated, especially with _W.P(C). No.10514 of 2009-H_ **16** inordinate delay. In the present case, this Court has not directed the continuation of disciplinary proceedings and this Court has merely directed the Tribunal to permit the Management to adduce fresh evidence to substantiate the charges levelled against the CSE, since the Tribunal has found the enquiry to be defective for reason of the Management having not examined any witness to prove the documents produced at the enquiry. The Management had raised a valid challenge against the award of the Tribunal, which has been allowed by this Court and there could be no delay attributed, to the Management, in initiation or conclusion of disciplinary proceedings. The further reliance placed on **Krishnan Nair v. State of Kerala [1998(2) KLT SN 46]** , is also to the same effect and a _W.P(C). No.10514 of 2009-H_ **17** reading of the facts disclose an enquiry having been initiated 17 years after the incident, that too after the retirement of the employee; which are clearly distinguishable. **Binny Ltd Vs Their Workmen 1972-1-LLJ-478** , also has no application in so far as a remand alone is made and it is for the Tribunal to consider the sustainability of the punishment of dismissal; if the charges are proved by the Management. 18. In the totality of the circumstances, Ext.P11 order is set aside. The matter is remanded to the Industrial Tribunal for fresh consideration. The CSE admittedly was receiving Section 17B wages, when the matter was pending before this Court. The CSE had also superannuated in the year 2010. In such circumstance, it is only proper that the Industrial Tribunal expedite the consideration _W.P(C). No.10514 of 2009-H_ **18** and arrive at a conclusion, at any rate, within four months from the date of receipt of a certified copy of this judgment. The Management and the workman shall appear before the Industrial Tribunal on 01/09/2016. The Management shall produce documents and a list of witnesses within a period of two weeks from that date. The workman shall also be permitted to produce or summon any document as required by him. The adjudication shall be completed as directed herein above. The writ petition is allowed with the above directions. No costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. LSN/sp/16/08/16