W.P.(C).No. 35250/2007 (U)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939** ## **WP(C).No. 35250 of 2007 (U)** ## **----------------------------** ## **PETITIONER(S):** ## **----------------------** **1. THE GENERAL SECRETARY, UNION BANK OF INDIA UNION BANK OF INDIA EMPLOYEES UNION,T.C.3/770,, ERA-8, ELAMGAMVILA LANE, T.K. DIVAKARAN ROAD,, MUTTADA P.O., TRIVANDRUM.** **2. P.A. CHACKO,** **CARE TAKER/WATCHMAN (UNDER ORDER OF DISMISSAL),, UNION BANK OF INDIA, STC, ALUVA, NOW RESIDING AT, PYNADATH HOUSE, MANJAPRA P.O., ANGAMALLY VIA.,, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENT(S):** ## **--------------------------** **1. CHAIRMAN & MANAGING DIRECTOR,UNION BANK UNION BANK OF INDIA, 239, VIDHAN BHAVAN MARG,, NARIMAN POINT, MUMBAI.** **2. V.V. BHASKARA REDDY, ENQUIRY OFFICER & DISCIPLINARY AUTHORITY,, NODAL REGIONAL OFFICE, ERNAKULAM (PRESENTLY, WORKING AS MANAGER, HRM, ZONAL OFFICE,MADRAS).** ## **R1 &R 2 BY ADV. SRI.A.S.P.KURUP, SC, UBI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 35250 of 2007 (U)** **----------------------------** ## **APPENDIX** ## **-----------------** ## **PETITIONERS EXHIBITS** ## **------------------------------------** ## **EXT.P1 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE MANAGEMENT TO THE 2ND PETITIONER DATED 01/09/2000** - **EXT.P2 TRUE COPY OF THE CHARGE SHEET DATED 14/11/2000 ISSUED TO THE PETITIONER AND APPOINTMENT OF ENQUIRY OFFICER.** - **EXT.P3 TRUE COPY OF THE EXTRACT OF THE STD REGISTER MAINTAINED IN THE STC** ## **EXT.P4 TRUE COPY OF THE RELEVANT EXTRACT OF THE DISCIPLINARY RULES (PAGES 98 TO 106)** **EXT.P5 TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER** **EXT.P6 TRUE COPY OF THE ORDER OF DISMISSAL ISSUED TO THE PETITIONER** **EXT.P7 TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 11.04.2007** **EXT.P8 TRUE COPY OF THE AWARD PASSED BY THE LABOUR COURT, ERNAKULAM, DATED 25.06.2007 COMMUNICATED BY LETTER DATED 10.08.07** ## **RESPONDENTS EXHIBITS** **NIL** **-----------------------------------** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **A.MUHAMED MUSTAQUE, J.** ========================= ## **W.P.(C).No.35250/2007** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 20[th] day of October, 2017 ## **J U D G M E N T** 1. This writ petition concerns dismissal of a sub-staff of the Union Bank of India pursuant to the disciplinary proceedings. The first petitioner is the Union and the second petitioner is the worker. Perhaps the charge as laid against the worker speaks the nature of the misconduct and the penalty that can be followed. Therefore, it is appropriate to refer the charge against the petitioner which reads as follows: "Shri Chacko is informed that his explanations is not found satisfactory and convincing. The fact remains that Shri Chacko was in the habit of altering the figures of cash amounts in the Telephone register for STD facility availed by the trainee participants. Shri Chacko altered two figures on 14/8/2000 for the amount of Rs.58.75 and Rs.27.50 as Rs.53.75 and Rs.22.50 resp. Again on 15th August, 2000 an amount of Rs.38.75 ``` WPC 35250/2007 ``` ## **-:2:-** was completely omitted to be entered resulting in short remittance of Rs.48.75. He was in the habit of altering dates in check in and check out register of participants for various programs so as to benefit himself out of catering bills inflated on account of this transaction." 2. The disciplinary authority himself was the enquiry officer. He found the worker was guilty and punishment of dismissal was imposed. The Union raised a dispute. The dispute was referred to the Industrial Tribunal. The Tribunal affirming the order of dismissal, passed an award. Impugning that award, the petitioners have approached this Court. 3. The learned counsel for the petitioners relying upon the judgment of this Court in **S.D.Saji v. District Court and others [2000 (2) ILR 173]** argued that the disciplinary authority being an enquiry officer, the enquiry itself is vitiated and therefore, the entire proceedings will have to be set aside. He also relied upon the judgment of the Hon'ble Supreme Court in Civil Appeal No.4531 of 2007 to canvass this proposition. The learned counsel further argued that the charge sheet as above only warrants an action for ``` WPC 35250/2007 ``` ## **-:3:-** minor misconduct as referred to in clause (7) in Exhibit P4 bi-party settlement arrived at between the management and the Union. On the other hand, the learned counsel for the management would argue that the enquiry officer is impartial and merely because the disciplinary authority happened to be the enquiry officer, it cannot result in vitiating the entire enquiry proceedings. It is further argued that the reputation of the bank sustained a heavy loss on account of the alleged misconduct. 4. The bi-party settlement defines both major and minor misconducts. Clause (5) defines the expression "gross misconduct". In this context it was relying on clause 5(j), it was found that the charge as above would fall within the meaning of gross misconduct. Clause 5(j) reads as follows: "(j) doing any prejudicial to the interest of the bank or gross negligence involving or likely to involve the bank in serious loss." 5. To understand the misdeed or misconduct on the part of the worker, whether it amounts to gross misconduct or minor misconduct, it is necessary to peep into the factual matrix. The ``` WPC 35250/2007 ``` ## **-:4:-** worker was the watchman-cum-caretaker in the training centre of the bank. There is a telephone attached to the counter. From the counter, the trainees who attend training sessions make calls. It was found that the alterations were effected in the register in entering receipts of the amount received for using the phone calls. As revealed from the chargesheet there was short remittance of Rs.48.75. It is also alleged that the worker is in the habit of altering dates in the check-in or checkout register of the participants. However, nothing has been stated about the loss sustained to the bank on this ground. As of now, the only projected loss is Rs.48.75. 6. This Court need not dwell much as to the nature of the misconduct. It is nothing but a minor misconduct. It cannot by any stretch of imagination fall within the expression of "major misconduct". To bring an act within the meaning of gross misconduct as referable under clause 5(j) as above, the bank has to demonstrate that it has suffered serious loss either by way of reputation or monetary loss. Serious loss as referred in the clause itself shows that it must be ``` WPC 35250/2007 ``` ## **-:5:-** grave. It is not a mere loss. It must be of such a nature which would bring the banking business under serious loss. Anyway, it is not a matter connected with customer relation so as to project a loss of reputation, and a monetary loss of nearly Rs.50/- cannot be termed as a serious loss for the purpose of gross misconduct. This Court, in fact, adverted to the charge as above, as the Labour Court has a statutory duty cast upon it to decide upon the proportionality of the punishment. The Tribunal, in fact, divested its statutory duty above while analysing the nature of the misconduct. In fact, a reading of the award of the Tribunal itself would clearly indicate that the Labour Court had not applied its mind whether the misconduct as above would fall within the meaning of major misconduct or minor misconduct for the purpose of altering punishment invoking Section 11A of the ID Act. The maximum punishment that can be imposed upon worker for a minor penalty is stoppage of increment for a period, not more than six months. Anyhow, the statutory power to consider that aspect is vested with the Tribunal. This Court while invoking judicial review can only ``` WPC 35250/2007 ``` ## **-:6:-** point out the Tribunal of its failure to invoke its power. 7. The objection raised by the learned counsel for the petitioners that the disciplinary authority and the enquiry officer being the same, certainly, it would go to the root of the enquiry. But if that objection is accepted, it would at the best warrant only interference with the disciplinary enquiry by allowing parties to adduce evidence. At this distance of time, this Court is of the view that it would be a futile exercise, taking note of the maximum punishment that can be imposed. Since the major penalty of dismissal cannot be invoked against the petitioner, the dismissal will have to be set aside. Since it is already found that the major penalty of dismissal is unwarranted it is for the Tribunal to decide the quantum of punishment and consider the claim for the back wages. Accordingly, the impugned order is set aside. 8. This Court ought to have normally remitted back the matter to the Tribunal to consider the question regarding penalty under the Industrial Disputes Act. The learned counsel for the petitioners however would submit that the matter need not go back to the ``` WPC 35250/2007 ``` ## **-:7:-** Tribunal for the reason that the worker had already retired from service and the maximum penalty of barring six months increment may be imposed on him. If that be so there is no scope for further penalty being imposed on the worker. The worker is prepared to accept the punishment of barring of six months increments. Thus, the penalty as above is substituted in the place of dismissal. 9. The next question is whether the petitioner is entitled to back wages or not. Normally this Court considers the question of back wages with reference to the facts involved. This case clearly demonstrates that the disciplinary authority being an enquiry officer, abdicated his power by imposing penalty of dismissal for misconduct that could be only termed as a minor misconduct. The minor and major misconducts will have to be distinguished with the facts involved. It cannot be distinguished based on the whims and fancies of the disciplinary authority. A dismissal without proving any misconduct warranting such dismissal, certainly, must be visited with consequence of payment of back wages. It is not a case where a worker could have been proceeded under disciplinary ``` WPC 35250/2007 ``` ## **-:8:-** proceedings for gross misconduct. Thus, this Court is of the view that the petitioner would be entitled to back wages from the date of dismissal till the date of superannuation. However, this has to be calculated based on the penalty imposed on him barring six months increments. Accordingly, the writ petition is allowed interfering with the impugned award to the limited extent as above. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ms