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

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 23RD DAY OF JANUARY 2017/3RD MAGHA, 1938 WP(C).No. 30618 of 2009 (V) ---------------------------- AGAINST THE ORDER/JUDGMENT IN ID 25/2006 of CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM DATED 25.06.2008 PETITIONER(S): ------------------ THE REGIONAL MANAGER,UNION BANK OF INDIA, UNION BANK BHAVAN,M.G.ROAD,ERNAKULAM. BY ADV. SRI.A.S.P.KURUP, SC RESPONDENT(S): -------------------- 1. MR. P.K.VENUGOPALAN,'KAVITHA', KUNNAKKALA HOUSE, W.KADUNGALLUR,ALUVA-10. 2. THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR,ERNAKULAM. R,R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30618 of 2009 (V) : 2 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: |EXT.P1|:|COPY OF MEMORANDUM DATED 22.11.1996 ISSUED BY BANK| |---|---|---| |||TO 1ST RESPODNENT.| |EXT.P2|:|COPY OF SUPPLEMENTARY CHARGE SHEET DATED| |||24.01.1997 ISSUED BY BANK TO 1ST RESPODNENT.| |EXT.P3|:|COPY OF APPOINTMENT ORDER OF ENQUIRY OFFICER DATED| |||02.01.1997 ISSUED BY PETITIONER BANK.| |EXT.P4|:|COPY OF LETTER DATED 27.01.1997 ISSUED FROM IR DEPT.| |||ISSUED TO THE DISCIPLINARY AUTHORITY.| |EXT.P5|:|COPY OF NOTICE DATED 14.02.1997 ISSUED BY ENQUIRY| |||OFFICER TO THE 1ST RESPODNENT.| |EXT.P6|:|COPY OF PROCEEDINGS OF ENQUIRY CONDUCTED BY THE| |||ENQUIRY OFFICER AGAINST 1ST RESPODNENT.| |EXT.P7|:|COPY OF VARIOUS EXHIBITS PRODUCED BY THE BANK| |||BEFORE THE ENQUIRY OFFICER.| |EXT.P8|:|COPY OF WRITTEN BRIEF DATED 02.05.1997 SUBMITTED BY| |||BANK BEFORE THE ENQUIRY OFFICER.| |EXT.P9|:|COPY OF REPLY STATEMENT DATED 04.06.1997 SUBMITTED| |||BY FIRST RESPODNENT BEFORE ENQUIRY OFFICER.| |EXT.P10|:|COPY OF ENQUIRY REPORT DATED 16.06.1997 SUBMITTED| |||BY ENQUIRY OFFICER.| |EXT.P11|:|COPY OF HEARING NOTE DATED 02.07.1997 SUBMITTED BY| |||1ST RESPODNENT BEFORE THE ENQUIRY OFFICER.| |EXT.P12|:|COPY OF FINAL ORDER DATED 07.07.1997 PASSED BY| |||ENQUIRY OFFICER CUM DISCIPLINARY AUTHORITY.| |EXT.P13|:|COPY OF ORDER NO.CO: IRD:647 DATED 18.01.2001| |||PASSED BY APPELLATE AUTHORITY.| |EXT.P14|:|COPY OF PETITION DATED 30.12.2002 GIVEN BY 1ST| |||RESPODNENT<br>BEFORE<br>THE<br>ASSISTANT<br>LABOUR| |||COMMISSIONER (CENTRAL).| |EXT.P15|:|COPY OF WRITTEN COMMENTS DATED 17.02.2003 GIVEN BY| |||PETITIONER BANK BEFORE THE ASSISTANT LABOUR| |||COMMISSIONER (CENTRAL).| |EXT.P16|:|COPY OF ORDER DATED 23.07.2003 ISSUED BY THE| |||CONCILLIATION OFFICER, GOVT. OF INDIA, MINISTRY OF| |||LABOUR & EMPLOYMENT.| ## PETITIONER'S EXHIBITS: : COPY OF ID NO.43/2003 DATED 13.03.2004 FILED BY 1ST EXT.P17 RESPONDENT BEFORE 2ND RESPODNENT. EXT.P18 : COPY OF WRITTEN STATEMENT DATED 02.08.2004 FILED BY BANK BEFORE THE 2ND RESPODNENT. EXT.P19 : COPY OF RE-JOINDER DATED 28.02.2005 FILED BY 1ST RESPODNENT BEFORE 2ND RESPODNENT. EXT.P20 : COPY OF AWARD DATED 25.06.2008 PASSED BY 2ND RESPODNENT. EXT.P21 : COPY OF COMMUNICATION DATED 08.05.2009 GIVEN BY GOVT. OF INDIA, MINISTRY OF LABOUR & EMPLOYMENT TO THE 1ST RESPODNENT. ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## P.A. TO JUDGE rv ## **DAMA SESHADRI NAIDU, J. ------------------------------------------W.P. (C) No. 30618 of 2009 (V) -----------------------------------------Dated this the 23[rd] day of January, 2017.** ## **JUDGMENT** The writ petitioner is a Bank; it is aggrieved by Ext.P20 award passed by the Central Government Industrial Tribunal Cum Labour Court, Ernakulam, the second respondent (“the Labour Court”). The first respondent was the petitioner’s employee. While he was working as a Head Cashier, on 16.10.1996 the Manager noticed shortage of cash: `42,977/-. When questioned, the employee admitted his lapse in writing and later, on 18.10.1996, paid the amount. 2. The Bank, on its part, initiated disciplinary proceedings: it issued Ext.P1 chargesheet and Ext.P2 supplementary chargesheet, later conducted an enquiry, had Ext.P10 enquiry report, and eventually passed Ext.P12 order of punishment. It dismissed the employee from service. Aggrieved, the employee filed an intra-bank appeal but without success. The appellate authority dismissed the employee’s appeal through Ext.P13. Eventually, the employee filed Ext.P17 claim statement before the Labour Court, which rendered Ext.P20 award: the order of dismissal was modified to that of discharge W.P.(C.) No. 30618/2009 -2- with superannuation benefits. Aggrieved, the Bank has filed this writ petition for a certiorari against Ext.P20 order. 3. Sri Sadchith P. Kurup, the learned counsel for the Bank has submitted that the Labour Court has accepted the findings of the disciplinary committee in their entirety but has interfered with the order of punishment only on extraneous reasons—the reasons of sympathy. He has further submitted that, as the employee was a cashier in a commercial Bank, fidelity was of utmost importance, and any errant behaviour would have a telling effect on the confidence of the Bank's clientele. Insisting that the Labour Court’s inference is uncalled for, the learned counsel has relied on _**Govindan A. v. State Bank of Travancore**_[1] . 4. _Per contra_ , Sri Dinesh Mathew J. Muricken, the learned counsel appearing for the employee, has submitted that it is not a case of fraud. According to him, on 16.10.1996 there was a shortage in the cash handled by the employee. The shortage must have occasioned because of the employee’s paying excess to any customer. Instead of adopting any evasive tactics, the employee, stresses the learned counsel, admitted his lapse and paid the > 1 ILR 2016 (4) Kerala 345 W.P.(C.) No. 30618/2009 -3- amount within 48 hours. The learned counsel would have us conclude that the employee’s conduct was _bona fide_ and the petitioner Bank suffered no loss. 5. The learned counsel has taken me through Ext.P20 to contend that the Labour Court has taken into account all vital aspects before its concluding that the punishment inflicted on the employee is disproportionate. He has especially stressed that the employee had more than two decades of blemishless service and also earned his employer's appreciation for his commitment, say, of garnering deposits. 6. Eventually, the learned counsel has urged this Court not to disturb Ext.P20 award for, according to him, the scope of interference in a writ of certiorari is very much limited, and the error must be a jurisdictional one or so patent as to lead to manifest injustice. 7. The learned counsel, in support of his submissions, has relied on _**Kailash Nath Guptha v. Enquiry Officer (R.K. Rai), Alahabad Bank & others**_[2] and _**Dev Singh v. Panjab**_ > 2 AIR 2003 SC 1377 W.P.(C.) No. 30618/2009 -4- ## _**Development Corporation Ltd. and another**_[3] .. 8. Heard the learned counsel for the petitioner and the learned counsel for the first respondent, apart from perusing the record. 9. Indeed, as has been rightly contended by the learned counsel for the Bank, the facts are not in dispute. Proportionality of punishment is the bone of contention. The employee has contended that the punishment inflicted on him was grossly disproportionate. The employee’s contention found favour with the Labour Court. 10. As seen from the record, the Labour Court has not disturbed the findings arrived at by the disciplinary authority. It has, on the other hand, concurred with the authority. But, to modify the punishment, it considered the employees’ entire service and also the impecunious conditions his large family, including his physically challenged child, had been placed in. Under those circumstances, among other considerations, not to imperil the family’s survival, the Labour Court, in the alternative, ordered that the employee be discharged, so that his terminal benefits would not be affected. > 3 AIR 2003 SC 3712 W.P.(C.) No. 30618/2009 -5- 11. Though the learned counsel for the Bank has placed reliance on _Govindan_ , a recent judgment of this Court, a perusal of the judgment shows that the employee in that case faced the allegation of committing a series of frauds as a bank employee. In the facts of the case, a learned Division Bench of this Court has observed that given the gravity of misconduct, an employee's past conduct is of no consequence. 12. On the other hand, in _Kailash Nath Guptha_ , the Hon'ble Supreme Court has considered a case, more or less having factual parity with this case. The Court has first acknowledged in paragraph 11 that the court's power of interference with the quantum of punishment is extremely limited. It has, however, held that if the disciplinary authority has not taken note of factors having a bearing on the quantum of punishment, certainly the court can direct the employer to re-consider or, in an appropriate case, to shorten litigation, indicate the punishment to be awarded. Adverting to the facts, the Apex Court has observed that there had never been a blemish in the employee’s long past-service; neither irregularity nor misconduct was noticed, save the charges that invited the punishment. Indicating that the loss of `46,000/-, could be recovered from the employee, the Court found the punishment of W.P.(C.) No. 30618/2009 -6- ## dismissal harsh and unwarranted. 13. As seen from the facts of _Kailash Nath Guptha_ , the amount said to have been misappropriated by the employee was `46,000/-. Nevertheless, the Apex Court took into account the employee's past blemishless service and reckoned that the punishment of dismissal was grossly disproportionate. In _Dev Sing_ , another Division Bench of the Hon'ble Supreme Court has considered the issue of disproportionality. It has held that an employee's blemishless past conduct for nearly 20 years ought to have been kept in view while the authorities imposed a major punishment. In fact, the Apex Court has affirmed the modification of the punishment. The precedents on an issue like this, I must acknowledge, are a legion, and have a cleavage. 14. The precedential position apart, I find force in the submissions made by the employee’s counsel that this Court's interference in disciplinary matters, especially exercising its jurisdiction of certiorari under Article 226 of the Constitution of India, is extremely limited. The error must be, as oft-affirmed, apparent on the face of the record or must be jurisdictional. The W.P.(C.) No. 30618/2009 -7- error ought to be so patent as to lead to manifest injustice. Mere error in an order, either factual or legal, may not be a sufficient ground to upset the discretion exercised by a competent statutory Tribunal. Further, the judgments of the Hon'ble Supreme Court in _Kailash Nath Guptha_ and _Dev Sing_ accord well with the facts of this case. In these circumstances, I find no compelling reason to interfere with or upset Ext.P20 award rendered by the Labour Court. I, accordingly, dismiss the writ petition. No order on costs. **DAMA SESHADRI NAIDU, JUDGE.** Rv W.P.(C.) No. 30618/2009 -8-