The Chief General Manager v. K.Kannan, Old No.31

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.08.2017

CORAM

THE HON'BLE Mr. JUSTICE V.PARTHIBAN W.P.No.16868 of 2004 and W.P.M.P.No.19981 of 2004 and W.P.M.P.Nos.5835 & 399 of 2005 The Chief General Manager, State Bank of India, Chennai 600 001.

... Petitioner Vs.

1.K.Kannan(Deceased) 2.The presiding Officer, Central Government Industrial Cum-Labour Court, Sastri Bhavan, Chennai 600 006.

3.Mahalakshmi 4.B.Amudha 5.S.Kumudha Respondents 3 to 5 are substituted as LRs of deceased R1-Kannan as per Order dated 23.12.2016 in W.M.P.No.34499/2016 in W.P.No.16868 of 2004.

... Respondents Prayer : Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorari, to call for the records relating to the impugned award of the second respondent, the Central Government Industrial Tribunal-cum-Labour Court, Chennai made in I.D.No.55 of 2002, dated 21.01.2004 and quash the same as illegal and unsustainable.

For Petitioner : Mr.S.Kanniah For Respondents : Mr.Janarthanan for R1 to R5

O R D E R

Heard Mr.S.Kanniah, learned counsel appearing for the petitioner and Mr.Janarthanan, learned counsel appearing for the respondent Nos.1,3 to 5.

2.The petitioner has approached this Court for seeking the following relief, "To issue a Writ of Certiorari, to call for the records relating to the impugned award of the second respondent, the Central Government Industrial Tribunal-cum-Labour Court, Chennai made in I.D.No.55 of 2002, dated 21.01.2004 and quash the same as illegal and unsustainable."

3. The case of the petitioner is as follows:

The petitioner is the Chief General Manager in the State Bank of India and approached this Court challenging the award of the Central Government Industrial Tribunal-cum-Labour Court passed by the second respondent herein in Industrial Dispute No.55 of 2002 dated 21.01.2004. The facts and circumstances which gave rise to the present writ petition are narrated here under.

4. The first respondent has entered the services of the Bank as a messenger on 28.12.1982. While working as a messenger at Valluvarkottam branch of the Bank, he was issued with the charge sheet dated 20.04.1992, alleging that on 07.08.1991, he received an amount of Rs.2,628.00/- being the proceeds of branch in S.C.No.2303 to 2307 from the T.Nagar Head Post Office, but had remitted a sum of Rs.1,951.50/- on 21.08.1991, and again he made good the balance amount of Rs.670.50/- on 22.10.1991, when the matter came to light. Therefore, the allegation against the workman was misappropriation of the amount which was received on behalf of the Bank.

5. In pursuance of the charge sheet, an enquiry was conducted and the charges were held to be proved. On 20.09.1999, eventually the workman was imposed with a penalty of dismissal from service. The workman had preferred an appeal before the appellate authority. But however, the same came to be rejected by the order of the appellate authority dated 14.01.2000.

6. In the said circumstances, the workman viz., the first respondent herein, raised an Industrial Dispute No.55 of 2002, for adjudication before the second respondent. The second respondent in Industrial Dispute No.55 of 2002, passed an award on 21.01.2004. In the said Industrial Dispute, the second respondent ordered modifying the penalty of dismissal from service into one of stoppage of three increments with the cumulative effect and ordered to reinstate the workman with only half of the back wages with the continuity of service and other attendant benefits. The said award is put to challenge by the Management who is the petitioner herein.

7. During the pendency of the present writ petition, it appears that the workman died in the year 2013 and his legal heirs were brought on record. The learned counsel appearing for the petitioner strongly contended that the interference by the second respondent in regard to the punishment is totally unwarranted since the charge against the workman was one of misappropriation and therefore the punishment of dismissal was very much commensurate to the gravity of the misconduct alleged against him.

8. He would further submit that though the power is vested with the second respondent for interference in the quantum of penalty under Section 11 (A), the power has to be exercised judiciously and fairly and it is incumbent upon the Tribunal or Labour Court to give cogent reasons for such interference.

9. The learned counsel appearing for the petitioner would draw this Court's attention to the judgement of the Hon'ble Supreme Court of India, in the case of U.P.State Road Transport Corporation Vs. Suresh Chand Sharma, reported in (2010) 6 Supreme Court Cases 555, in which, the Hon'ble Supreme Court in Paragraph 22 and 23 as held that in case of corruption/misappropriation , the only punishment is dismissal from service. The Hon'ble Supreme Court has adverted to various other decisions on the issue before making statement of law on the aspect.

10. In the said circumstances, the learned counsel for the petitioner would urge this Court that the award passed by the Labour Court cannot be sustained in law. On the other hand, the learned counsel appearing for the first respondent/workman would submit that the Labour Court had indeed given reasons as found in paragraph 11 of the award in which, the second respondent as clearly held that the petitioner being a last grade servant, is only a victim of circumstances and therefore, the punishment of dismissal from service was too harsh and excessive. The findings of the second respondent in paragraph 11 as extracted below, "11.

I find much force in the contention of the learned counsel for the petitioner because from the documents produced by the Respondent/Management, it is clear that the petitioner is only a victim for the circumstances. Further, it is not the duty of a messenger to deal with cash transaction. Therefore, under such circumstances, I find that the punishment imposed by the respondent/Management State Bank of India against the petitioner/workman Sri.K.Kannan is too harsh. Under such circumstances, I find a lesser punishment is to be awarded to the petitioner.

circumstances of the case and for the mistake committed by the petitioner."

11. In the above circumstances, the learned counsel would submit that the discretion exercised by the second respondent in the matter of interfering with the quantum of penalty on the basis of appreciation of facts and circumstances of the case, cannot be disturbed by this Court by exercising his jurisdiction and Article 226 of the Constitution of India.

12. According to the learned counsel, the second respondent had taken into consideration the entire circumstances of the case and position held by the workman as a last grade servant and therefore, had rightly came to the conclusion that the punishment of dismissal from service was too harsh and therefore was liable to be interfered with. In the said circumstances, the second respondent had interfered with the quantum and substituted the punishment to stoppage of three increments. Such findings by the second respondent does not call for interference at the hands of this Court.

13. Upon considering the rival submissions made by the learned counsels and upon perused the materials and pleadings placed on record, this Court is of the view that the reasons spelt out by the second respondent in paragraph 11, which is extracted above is sufficient enough for interfering with the quantum of punishment imposed on the workman. The second respondent has clearly held that the workman being a last grade servant, working as a messenger, became a victim of circumstances and therefore imposing the harsh penalty of dismissal from service was not warranted. Such findings of the facts and the exercise of discretion under Section 11 (A) of the Industrial Dispute Act does not call for interference. Even independently viewing the matter, it has to be seen that the punishment which was imposed on the petitioner was excessive.

However, this Court has also considered the fact in the matter of misappropriation, a serious view had to be taken, as held by the Hon'ble Supreme Court of India, but at the same time, the Court has also endowed with the responsibility to appreciate the totality of circumstances and factual matrix of each case for taking final decision in the matter. In the present case, the admitted position is that the workman was only a messenger and therefore, the charge which was held to be proved against him cannot result in imposition of such harsh penalty of dismissal from service.

14. In the said circumstances, this Court does not find any infirmity in the award passed by the second respondent and therefore, the present writ petition lacks in merits and

substance. Hence, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar (CS II ) /true copy/ Sub Asst. Registrar gsk To The presiding Officer, Central Government Industrial Cum-Labour Court, Sastri Bhavan, Chennai 600 006.

+ 1 cc to Mr.S.Kanniah, Advocate,SR.

+ 1 cc to Mr.Janarthanan, Advocate,SR.61190 W.P.No.16868 of 2004 SCD(CO) NR 18/09/2017