The Regional Manager, Union Bank of India v. P.K. Venugopalan and Central Government Industrial Tribunal cum Labour Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939 WA.No. 1697 of 2017 () IN WP(C).30618/2009 -------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 30618/2009 of HIGH COURT OF KERALA DATED 23-01-2017 APPELLANT/PETITIONER: ------------------------------------- THE REGIONAL MANAGER UNION BANK OF INDIA, UNION BANK BHAVAN, M.G ROAD, ERNAKULAM BY ADV. SRI.A.S.P.KURUP, SC, UBI RESPONDENTS : --------------------------- 1. MR.P.K.VENUGOPALAN - 'KAVITHA', KUNNAKKALA HOUSE, - W.KADUNGALLUR, ALUVA 10 2. THE CENTRAL GOVERNMENT INDISTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM - 68 2036 R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **P.R.RAMACHANDRA MENON & SHIRCY V, JJ.** ------------------------------------------------ W.A.No.1697 of 2017 -----------------------------------------------Dated this the 10[th] day of October, 2017 ## **J U D G M E N T** ## **P.R.Ramachandra Menon, J.** Invocation of the power vested with the Central Government Industrial Tribunal-Cum-Labour Court under Section 11A of the Industrial Disputes Act, 1947, modifying the punishment of 'dismissal' to that of 'discharge', as upheld by the learned Single Judge while dismissing the writ petition filed by the appellant Bank, is the subject matter of challenge in this appeal. 2. Heard the learned counsel for the appellant at length. The sequence of events pointed out in the pleadings and proceedings is that the 1[st] respondent herein, while working as a Cashier in the service of the appellant Bank, was proceeded against for misappropriation, issuing Ext.P1 charge sheet on 22.11.1996. It was alleged that a shortage of cash, to an extent of 42,977/- was noted₹ in the accounts between 15.10.1996 and 16.10.1996, which was allegedly misappropriated by the 1[st] respondent. It is also stated that, on bringing the instance of shortage to the notice of the employee, he was not in a position to explain how the shortage had occurred, but readily repaid the same, by effecting deposit of the due amount on 18.10.1996 (within 48 hours). A supplementary charge sheet by virtue of Ext.P2 was issued on 24.01.1997, stating W.A.No.1697 of 2017 2 that there was extensive borrowing by the said employee from different persons (sums of 5,000/-, 10,500/-, 10,000/-, 10,000/-)₹ ₹ ₹ ₹ and that the said instances also would constitute a misconduct. 3. A domestic enquiry was ordered and on culmination of the enquiry, report was submitted by the Enquiry Officer finding the delinquent employee guilty of the first charge, however, exonerating him in respect of Ext.P2 supplementary charge. Accepting the report of the Enquiry Officer, the appellant Bank imposed the punishment of 'dismissal' as per Ext.P12. Though this was sought to be challenged by the employee by submitting an appeal, it did not turn fruitful and the appeal was dismissed by the appellate authority by Ext.P13. This made the respondent employee to raise an industrial dispute in terms of the relevant provisions of the ID Act, causing a reference to be made by the appropriate Government to the Central Government Industrial Tribunal cum Labour Court, where it was numbered as I.D.No.25 of 2006. 4. Ext.P17 claim statement was filed by the worker. The version of the Management was put forth as per Ext.P18 written statement. A re-joinder was filed by the worker as borne by Ext.P19. Evidence adduced before the Tribunal consists of oral testimony of MW1 and Ext.M1 enquiry file produced from the side of the Management. After considering the matter in detail, the Central W.A.No.1697 of 2017 3 Government Industrial Tribunal-cum-Labour Court, upheld the validity of the enquiry and proceeded to consider 'proportionality of the punishment' imposed. After analysing the facts and figures, the Central Government Industrial Tribunal-cum-Labour Court held that the punishment of 'dismissal' awarded was not correct or sustainable and that 'discharge' would be the adequate and appropriate punishment. It was accordingly, that the power under Section 11A of the ID Act was invoked and the punishment was substituted/modified as aforesaid, which was sought to be challenged by the Management Bank by filing a writ petition before this Court. 5. After detailed examination of the facts, figures, evidence and the precedents cited across the Bar, the learned Single Judge found that it was not a fit case to call for interference. Accordingly, the writ petition was dismissed as per judgment dated 23.01.2017, which forms the subject matter of challenge in this appeal. 6. The learned counsel for the appellant Bank submits that there is already a finding by the Central Government Industrial Tribunal-cum-Labour Court that, if the misconduct of misappropriation is proved, then the punishment of 'dismissal' will be perfectly within the four walls of the law. Hence the punishment imposed ought not to have been modified by the Central W.A.No.1697 of 2017 4 Government Industrial Tribunal-cum-Labour Court, even by invoking the power under Section 11A of the ID Act, as no such unfettered power is vested with the said Court/Tribunal under Section 11A of the ID Act as made clear by this Court in the decision reported in _**Cochin Shipyard Ltd. v. Industrial Tribunal and others [(2006) KHC 562]**_ . The learned counsel further points out that the reliance sought to be placed by the learned Single Judge on _**Kailash Nath Gupta v. Allahabad Bank [AIR 2003 SC 1377]**_ is not correct, in so far as in the said case, the misconduct involved was never an instance of misappropriation. All the five articles of charge mentioned therein related to one or other instances, where loss was caused to the Bank because of the deeds and misdeeds of the Manager and never amounted to any instance of misappropriation, though the total loss suffered/caused to the Bank was reckoned as ₹46,000/-. This being the position, the parity sought to be drawn by the learned Single Judge to the said decision, so as to extend benefit of the worker, in turn upholding Ext.P20 Award passed by the Tribunal, is not correct or proper. The learned counsel further submits that, intervention has been made by the Apex Court with regard to the proportionality of punishment only in appropriate cases as in _**Dev Singh v. Punjab Tourism Development Corporation Ltd., And Another [(2003) KHC 1576]**_ . In the said 5 W.A.No.1697 of 2017 case, punishment of dismissal was awarded with regard to the charge of misplacement of file, which was found as highly disproportionate and it was accordingly held that, withholding of one increment including stoppage at the efficiency bar would be the appropriate punishment. The case involved herein is not a similar one, which requires to be dealt with seriously, as it is an instance of misappropriation and hence, both the Tribunal and the learned Single Judge have gone wrong in dealing with the matter and requires interference of this Court, submits the learned counsel. 7. Despite the earnest efforts made by the learned counsel for the appellant, we find it difficult to agree with the proposition, for more than one reason. The factual point as discussed already reveals that the employee, the 1[st] respondent, was serving as a Cashier in the Bank for more than two decades and there was no instance of any misconduct against him during the entire career. It is true that, this by itself is not a 'green card' to hold that any subsequent instance of misappropriation, if at all committed by the employee, has to be given a 'go-bye'. Here, the insinuation levelled against the 1[st] respondent is that the cash balance of 15.10.1996 and 16.10.1996, did not tally with the transactions of the day. After verification, the shortage was brought to the notice of the employee, who found the factual position as correct, but could not W.A.No.1697 of 2017 6 explain it properly and readily accepted the shortage and repaid the cash within 48 hours i.e. on 18.10.1996. It was much thereafter, that Ext.P1 charge sheet was issued to the employee alleging the instance of misappropriation, followed by Ext.P2 supplementary charge, ultimately leading to his dismissal from the service. 8. There is no dispute to the fact that the supplementary charge as per Ext.P2 was also enquired by the Enquiry Officer and a finding was rendered exonerating the employee in respect of the said charge. The insinuation mentioned therein was in respect of some amounts borrowed by the employee from four different persons (sums of 5,000/-, 10,500/-, 10,000/-, 10,000/-). How₹ ₹ ₹ ₹ these instances could be described as a delinquency, is a matter of mystery. This Court however does not intend to express anything further, as the Enquiry Officer has held it against the Bank and in favour of the employee, exonerating him from the charge. However, when the punishment was reduced by the Tribunal as per Ext.P20, modifying the 'dismissal' to that of 'discharge', quite unfortunately an observation has been made that the 'misappropriation' might have been because of the pressing needs of the employee to discharge the liability due to his casual borrowings. This does not appear to be factually correct, in so far as the said misconduct has been held as not proved and the employee W.A.No.1697 of 2017 7 stands exonerated. That apart, towards the end of the Award, the Tribunal has held that the said amount was repaid by the employee within 'two weeks'. It is relevant to note that the employee did not take two weeks' time to pay back the said amount. The very moment, when the shortage was brought to his notice pursuant to not tallying of the accounts on 15.10.1996 and 16.10.1996[.] , the shortage was accepted and it was repaid by him within 48 hours i.e. within two days on 18.10.1996, as admitted by the Bank. Had the factual position been correctly noted by the Tribunal, it may be possible to say that even the modified punishment of 'discharge' ordered by the Tribunal might have been changed to some other lesser extent, by the Tribunal. We do not find it necessary to make any further observation in that regard, as we are only concerned with the correctness and sustainability of the Award passed by the Tribunal and whether the interference declined by the learned Single Judge with regard to the proportionality of the proven misconduct is correct or not. We made a reference to the above factual aspects, only because of the wrong description of the facts, in the Award passed by the Tribunal. 9. On consideration of the case, which was sought to be relied on from the part of the 1[st] respondent before the learned Single Judge i.e. _**Kailash Nath Gupta**_ 's case, it is true that it was not a W.A.No.1697 of 2017 8 case of misappropriation, but causing 'loss' to the Bank to an extent of 46,000/-, distributed under different articles of charge. The₹ circumstances under which dis-proportionality of the punishment could be considered by this Court, in exercising the jurisdiction under Article 226 of the Constitution, has been discussed therein. It has been made clear that, this Court is not to function as a 'court of appeal' and only in exceptional circumstances, could the said jurisdiction be invoked. There cannot be any dispute with regard to the said declaration; but in so far as the 1st respondent is concerned, unlike the party involved in the case dealt with by the honourable Supreme Court (who was a Manager of the Bank and not a 'workman' as defined under Section 2(s) of the ID Act), he is a 'workman' as defined under the I.D. Act. A specific provision is provided under the statute by way of Section 11A, to modify the punishment by the adjudicating authority ie. the Central Industrial Tribunal/Labour Court, as the case may be, to an appropriate extent, even if the misconduct is proved. Whether such power should be invoked, considering the gravity of the offence and proven misconduct, is a matter which varies from case to case. 10. Power under Section 11A cannot be invoked as a matter of course, as held by the Division Bench of this Court in _**Cochin Shipyard Ltd. v. Industrial Tribunal and others [2006 KHC**_ W.A.No.1697 of 2017 9 _**562]**_ , which is sought to be relied on by the learned counsel for the appellant. But here, a reference is necessary to the factual context involved in the said case, as discussed in the opening paragraph. The worker in the said case had surreptitiously removed 1.75 litres of oil and it was kept concealed in the 'tool box' of his scooter, for being taken outside the premises of the management/employer establishment i.e. Cochin Shipyard Ltd. The misconduct was proved and punishment was imposed, which was modified by invoking power under Section 11A, the correctness of which was examined by the Division Bench of this Court. It was held that, in view of the particular facts and circumstances of the case (with reference to the nature of misconduct and the proven misconduct of theft) it was quite wrong to have invoked the power under Section 11A, thus holding that there is no unfettered power for the Labour Court/Industrial Tribunal to invoke power under Section 11A of the ID Act, as matter of course. Considering the circumstances under which such an observation was made and on comparison with the factual point involved in this case, especially when the employee on being told as to the shortage on 16.10.1996,[,] readily accepted the shortage (though failed to provide proper explanation) and satisfied the amount within 48 hours. 11. Some other relevant aspects are also liable to be W.A.No.1697 of 2017 10 considered. The factual position averred by the employee as to his service, spread over for more than two decades, getting appointment as a Peon and subsequently promoted to the post of Cashier and absence of any black mark in the entire service stands virtually conceded by the Bank. The fact that the employee was given compliments by the Management at different points of time for 'better customer relations' and for 'mobilisation of bank deposits' is also a conceded fact. Such other facts were also considered by the Tribunal, while considering whether any interference was to be made invoking the power under Section 11A of the ID Act, particularly as to the plight of two children one of whom is deaf and dumb and the chance for them to be thrown to the streets, if the punishment of 'Dismissal' ordered by the Management, was given effect to. It was after properly weighing of all these facts and figures, that the Tribunal found it fit and proper to have invoked the power under Section 11A, in turn modifying the punishment of 'Dismissal' to that 'Discharge'. 12. The crucial point to the considered is whether there is anything wrong in the 'decision making process' adopted by the Tribunal. The role of this Court is not to substitute its view, if another view than the one taken by the Industrial adjudicating authority is possible. This job has been correctly undertaken by the W.A.No.1697 of 2017 11 learned Single Judge, who declined to act as a 'court of appeal' to accept the version of the Management and sustain the punishment of dismissal. We find absolutely no ground, much less any tenable reason, to call for interference with the verdict passed by the learned Single Judge. This Writ Appeal fails and the same is dismissed accordingly. Sd/- **P.R.RAMACHANDRA MENON (JUDGE)** Sd/- **SHIRCY V. (JUDGE)** AV