Dismissed

Smt. Mary Paul v. Industrial Tribunal

Kerala HC3 Dec 2011OP/6644/2003

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging the dismissal of a clerk from a cooperative bank and the Industrial Tribunal Award upholding the same. The court held the enquiry was valid despite a remark in a prior case and found the proved misconduct justified the dismissal under Sec.11A of the I.D Act.

What did the court decide?

The original petition was dismissed. The Industrial Tribunal Award dated 08.05.2002 was affirmed.

Smt. Mary Paul Vs Industrial Tribunal — Labour and Industrial Disputes | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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SATURDAY, THE 3RD DAY OF DECEMBER 2011/12TH AGRAHAYANA 1933

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O.P.No. 6644 of 2003 (N)

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PETITIONER:

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SMT.MARY PAUL, W/O GEORGE MOHAN DAS, AGED 44 YEARS, MORNINGVIEW, KUNNATHURMEDU PALAKKAD.

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BY ADV. SRI.P.RAMAKRISHNAN

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RESPONDENTS:

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1. THE INDUSTRIAL TRIBUNAL, PALAKKAD.

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2. THE PRESIDENT, ELAPPULLY SERVICE CO-OPERATIVE BANK, ELAPPULLY.

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R1 BY GOVERNMENT PLEADER

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THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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O.P.No. 6644 of 2003 (N)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 : COPY OF THE AWARD DATED 8.5.2002 PASSED BY THE 1ST RESPONDENT IN I.D. NO. 81/2000.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

P.A.TO JUDGE

DST

P.R.RAMACHANDRA MENON, J.

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O.P.No.6644 of 2003

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Dated this 03^rd day of December, 2011

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JUDGMENT

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Dismissal of the petitioner from the service of the concerned Co-operative Bank and interference declined by the Industrial Tribunal, Palakkad by passing Ext.P1, Award form the subject matter of challenge in this original petition.

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The petitioner was working as a senior clerk with additional charge of Gold Appraiser in the Pallatheri Branch of the Elappully Service Co-operative Bank limited. While so, she was served with a memo of charges alleging some grievous misconducts involving misappropriation of funds, fraudulent correction of the official records and some other incidental aspects. Similar charges were raised against some other officials/staff as well, including the Manager of the Bank/Clerks/ Attenders. Two separate enquiries were conducted at the instance of the Management; one against petitioner and few others and the other enquiry, against some others involving different category of staff. Both the enquiries were conducted by the common enquiry officer and different enquiry reports were submitted, arriving at guilt of the parties concerned.

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O.P.No.6644 of 2003

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Pursuant to the finding made by the enquiry officer, the matter was considered by the disciplinary authority who concurred with the finding of the enquiry officer on guilt and imposed the punishment of dismissal upon the petitioner and such other appropriate punishment in respect of the persons concerned. This led to two different industrial disputes by way of I.D.No.81 of 2000 (involving the petitioner herein) and I.D.No.47 of 2001 in respect of a person by name Rajeswari. This Court is not concerned with the outcome of the proceedings pursued by the other employees/staff/management.

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I.D.No.81 of 2000 involving the petitioner herein and I.D.No.47 of 2000 involving the delinquent employee by name Rajeswari were tried together by the Industrial Tribunal, Palakkad, leading to Ext.P1, Award. As per the said Award, a specific finding was arrived at by the Tribunal that the petitioner herein and the other delinquent employee by name Rajeswari were not qualified appraisers and that the particular charge levelled against them as to the granting of loan accepting 'spurious gold' as security, was not established by the Management, while holding that the other charges levelled against the petitioner were proved in respect of the other misconducts. Accordingly, it was held that the enquiry

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O.P.No.6644 of 2003

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conducted against the delinquent employee was proper and valid and that the finding was not perverse; that the finding on guilt was well supported with reasons and hence that the decision taken by the Management did not warrant any interference. With regard to the power under Sec.11A of the I.D Act, the Tribunal observed that the punishment of dismissal awarded was never disproportionate to the gravity of the proven misconduct and as such, no interference was made with regard to the punishment as well. Ext.P1, Award passed in this regard is under challenge in this original petition.

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Learned counsel for petitioner submits with reference to the materials on record that the main grievance of petitioner is with regard to the finding arrived at by the Tribunal without properly appreciating the validity of the domestic enquiry. It is stated that the very same enquiry officer was conducting two different enquiries in respect of the different officers/staff. In the domestic enquiry conducted by the said officer in respect of the other staff (with regard to which the petitioner is never concerned), a reference was made by the enquiry officer to the petitioner as well, observing that persons like the petitioner were also involved in the misconduct (while arriving at the guilt of the persons concerned). In view of the said observation the learned

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counsel submits that the enquiry conducted by the very same officer was proceeding on the wrong track with a preconceived mind and as such, the finding on guilt in respect of the petitioner is not correct or proper. It is also stated that the factual position as above was brought to the notice of the authorities concerned by filing an application for changing the enquiry officer, which however was not positively dealt with. The action pursued by the enquiry officer and the Management in this regard has caused much prejudice to the petitioner and hence it was not correct or proper for the Tribunal to have entered a finding that the enquiry was valid and proper in all respects, which in turn is sought to be interfered by this Court.

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With regard to the merits of the case the learned counsel submits that a specific finding has been arrived at by the Tribunal in paragraph 18, that there was absolutely no basis for arriving at the guilt on the part of petitioner as to the acceptance of 'spurious gold' and that petitioner has been absolved of the charges in this regard. This being the position, the course pursued by the Tribunal; especially with regard to the correctness and sustainability of the quantum of punishment imposed is not correct or proper and is liable to be interfered by this Court. In other words, it is stated that the Tribunal has not

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properly exercised the power vested with the Tribunal under Sec.11A of the ID Act.

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The learned counsel appearing for the

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respondent/Management submits that, various charges were levelled against the persons like the petitioner and almost all the charges have been held as proved, but for the charge involving the acceptance of spurious gold for granting the loan. The involvement of the petitioner and the knowledge as to the course and events cannot be disputed in view of the positive observation made by the Tribunal in Ext.P1, Award itself. Reference is also made to the specific observations in paragraph 19 of the Award, to have the liability mulcted upon the shoulders of the petitioner. It is further stated that, even one charge is enough, if the same is proved, to impose punishment of dismissal, if such a punishment could be imposed in respect of such charge. This being the position, the observation of the Tribunal in paragraph 18 absolving the petitioner from the charge of acceptance of spurious gold is not of much significance; submits the learned counsel.

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With regard to the scope of power under Sec.11A of the I.D Act, the learned counsel for the Management submits that the Management is an institution pursuing banking activities

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where utmost trust and confidence come to play and absolutely no sympathy is called for under such circumstance in view of the observations made by this Court in the decision reported in

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Perur Service Sahakarana Bank Ltd Vs. Industrial Tribunal, Palakkad and Anr. (2008(1) KHC 718 , paragraph 5). Reference is also made to the decision rendered by a Division Bench of this Court in South Indian Bank Ltd Vs. V.Krishnakumar (2006(1) KLT SN 17) . In reply to the above submissions, the learned counsel appearing for the petitioner submits that there is no justification for awarding the extreme punishment of dismissal, for the reason that the entire amount involved has already been realised and there is no loss to the Bank. The evidence and the sequence of events have to be appreciated as a whole, instead of considering the same in isolation, submits the learned counsel.

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It is well settled that the jurisdiction vested with this Court by way of judicial review in such matters is rather limited. Considering the question of validity of the enquiry, it is true that some reference to the connection of the petitioner has been made by the enquiry officer, in the enquiry conducted against some other persons (with regard to which the petitioner had no connection). It is also true that the former enquiry was finalised

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arriving at the guilt of the delinquent officials and it was nearly after one year, that the proceedings against the petitioner were finalised by the very same enquiry officer. This Court finds that the reference made by the enquiry officer in the earlier proceedings pertaining to the other officials was only in respect of the “involvement” of the petitioner herein as well. In the course of describing the facts and sequence, the enquiry officer made an observation that some other officials were also 'involved' in the case, which takes in the petitioner as well. This Court does not find any material on record to arrive at a finding that the enquiry officer had made any observation arriving at the guilt of the petitioner herein, so as to constitute a 'finding'. It is also not in dispute that the misconduct connected with the petitioner herein was not the subject matter of the consideration before the enquiry officer in the earlier set of proceedings; nor was he part of the said exercise at any stage. Proceedings against the petitioner were pursued and finalised based on the charges levelled against her, by raising specific pleadings and adducing evidence in the second set of enquiry. It was on the basis of the said pleadings and evidence on the record, that the enquiry officer arrived at a finding, which was considered by the Management and on satisfaction of the guilt, imposed the

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punishment of dismissal. The nature of the proceedings as above has been meticulously examined by the Industrial Tribunal while arriving at a finding that the enquiry conducted is valid and proper in all respects and that the finding was not perverse. This Court does not find any reason to disagree.

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Coming to the merit involved, petitioner was proceeded against in respect of the following charges:

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i. In some gold loan transaction the ornaments received as security are of spurious gold;

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ii. Some gold loan transactions are in the name of some fictitious persons;

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iii. Some gold loan transactions are bogus transactions without the knowledge of the customer;

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iv. In some gold loan transaction the amount advanced as loan is in excess than the maximum loan amount fixed by the bank to be advanced per gram of gold;

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v. In some gold loan transactions there are no security gold at all;

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vi. Some gold loan transactions were seen closed without receiving full money when there are outstanding dues from the loanees and

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vii. The employees unauthorisedly participated, the attenders of the bank names A.Krishnan and A.Kabeer and they were allowed to handle the records and registers of the bank which

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are in custody of the employees;

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viii. In some gold loan transaction, alterations were made in the figures of the amount in the concerned register, thereby showing a reduced amount than actually received by the bank.

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After detailed scrutiny, the petitioner has been absolved of the charge pertaining to the acceptance of granting of gold loan accepting spurious gold, as observed in paragraph 18 of the Award. The discussion with regard to the other charges and the finding arrived at are summarised in paragraphs 19 to 21. As obvious therefrom, the specific instances where the petitioner was involved also pertained to the transaction with the husband of the petitioner as well, as referred to in paragraph 19, clearly establishing the participation of the petitioner, which could only be by way of a conscious exercise. It was accordingly, that the guilt on the part of the petitioner was established and a finding was arrived at with regard to the misconducts involved. This Court finds that the finding and reasoning given by the Tribunal is perfectly within the four walls of law and it does not call for any interference.

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With regard to the exercise of power under Sec.11A, it has been observed by Tribunal in paragraph 24 of the Award that the charges found as proved against the petitioner are

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serious misconducts, which justify the punishment. Merely the fact that petitioner has been absolved from one of the charges, is not a ground to reduce the gravity of the proven charges in respect of the other misconducts. The observations made by this Court in paragraph 5 of the decision reported in Perur Service Sahakarana Bank Ltd Vs. Industrial Tribunal, Palakkad and Anr. (supra) are also relevant in this regard. True, in the said case, the punishment was modified by this Court by way of 'discharge'; but the facts and circumstances discussed therein stand entirely on a different pedestal. This is more so, in view of the other serious charges as mentioned herein before with regard to which the petitioner has been connected.

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The scope of Sec.11A of the ID Act and the power of this Court to interfere with such matters have come up for consideration before the Apex Court and before this Court on many an occasion. It has been held by Apex Court that “misplaced sympathy is always an evil” and if the punishment awarded is justified in the light of the proven charges, no interference is possible under any circumstance. This Court also finds support in this regard from the verdicts passed in South Indian Bank Ltd Vs. V.Krishnakumar (supra) and in Sita Dayanandan Vs. State of Kerala and Anr. (2010 KHC Page

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91) . The Tribunal has considered all the relevant aspects and as

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such, Ext.P1, Award does not require any interference.

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The original petition fails and the same is dismissed

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accordingly.