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2012 DIGILAW 2200 (MAD)

Deputy General Manager v. The Presiding Officer

2012-06-05

K.CHANDRU

body2012
JUDGMENT:- 1. The petitioner is a Syndicate Bank. In this writ petition, they have challenged an Award passed by the Central Government Industrial Tribunal cum Labour Court (for short CGIT), Chennai made in I.D.No.43 of 2005 dated 01.05.2008. By the impugned Award, the CGIT granted the relief of reinstatement with backwages and continuity of service and other attendant benefits. 2. The writ petition was admitted on 15.10.2008. Pending the writ petition, an interim stay was granted. The second respondent filed a vacate stay application in M.P.No.1 of2009. This Court by an order dated 06.10.2009 directed the petitioner Bank to pay Rs.7,603/- towards payment under Section 17-B of the I.D. Act being the last drawn wages and made the interim stay absolute. 3. Since the petitioner has not filed the documents which were made available before the CGIT, the original records were directed to be summoned. Accordingly, the original records were summoned and perused by this Court. The petitioner also filed a copy of the judgment of the Sessions Court in respect of second respondent made in Criminal Appeal No.30 of 2005. The appeal was filed against the order of the Judicial Magistrate No. I, Nagapattinam in C.C. No.565 of 2003, The Sessions Court by a judgment dated 29.11.2006 allowed the appeal and set aside the conviction made against the second respondent who was arrayed as accused No.3. The Sessions Court dealt with various criminal appeals filed by various other employees who were involved in the same transaction being Criminal Appeal Nos.16,17,19,20,29 of 2005 including that of the second respondent in C.A.No.30 of 2005. 4. In that case, one V. Marimuthu, who was Assistant Manager in the petitioner Bank filed Criminal Appeal No.16 of 2005 and 17 of 2005 and they were also allowed. The said Marimuthu since he was an Assistant Manager filed a writ petition before this Court being W.P.No.27591 of 2003 challenging the order of dismissal and for a direction to reinstate him in service. After conducting an enquiry he was dismissed from service. His subsequent appeal was rejected by the Appellate Authority by an order dated 26.07.2003. This Court after going into the entire issue dismissed the writ petition. After conducting an enquiry he was dismissed from service. His subsequent appeal was rejected by the Appellate Authority by an order dated 26.07.2003. This Court after going into the entire issue dismissed the writ petition. In paragraph 3, it was observed as follows:- "3.) ...When an investigation was made, the following revelations came to be surface:- 19.07.2001 A cheque book containing 100 leaves with numbers 578601 to 57870 was issued to Shrine Velankanni Basilice. 14.08.01 One A.Vinayagamurthy opened an account in Indian Bank, Nagapattinam. 20.08.01 Cheque No.578695 for Rs.1.25 lakhs was received in clearing from Indian Bank, Nagapattinam favouring A.Vinayagamurthy. 30.08.01 Cheque No.578671 for Rs.2.46 lakhs was received in clearing through Indian Bank, Nagapattinam favouring A.Vinayagamurthy. Enquiries with Indian Bank revealed that the proceeds of the two cheques were credited to SB Account No.6697 which was in the name of one A. Vinayagamurthy. 21.08.01 Vinayagamurthy had withdrawn from Indian Bank Rs.1.23 lakhs 01.09.01 Vinayagamurthy had withdrawn from Indian Bank Rs.2.46 lakhs. 21.09.2001 The Church made an oral complaint by telephone about the unauthorised withdrawal of Rs.3.69 lakhs. The two paid cheques were alone missing from the bundle of cheques relating to the two relevant dates. The debit entries in the personal ledger of Shrine Velankanni Basilice were made under the password of G. Sunddar and authenticated by ARM (V. Marimuthu), the petitioner. 5.11.01 Vinayagamurthy gave a letter to the Vigilance Officer stating that it was Marimuthu who gave the two cheques requesting him to deposit to this SB Account with Indian Bank and after withdrawing the amounts, he agreed to give him a commission of 3%. Vinayaga murthy also implicated G. Sundar As the respondent Bank could not produce the two cheques, the Bank was obliged to pay the sum of Rs.3.69 lakhs to Shrine Velankanni Basilice. b) A close study of the above events would show that admittedly the two cheques of the Church were fraudulently used for unauthorised withdrawal of Rs.3.69 lakhs and it could not have been possible without the connivance or knowledge of the employees of the Bank. When the involvement of the employees of the Bank was examined, the role of the petitioner, Marimuthu and G. Sundar, Clerk became more apparent in the light of the revelation made by Vinayagamurthy through whom the amount was withdrawn. When the involvement of the employees of the Bank was examined, the role of the petitioner, Marimuthu and G. Sundar, Clerk became more apparent in the light of the revelation made by Vinayagamurthy through whom the amount was withdrawn. when the involvement of the petitioner came to light on 23.10.2001, he was placed under suspension pending enquiry." (Emphasis added) 5. The said Marimuthu preferred a writ appeal before the Division Bench being W.A.No.366 of 2008. The Division Bench confirmed the order of the learned Judge and did not give him any relief. Thereafter, he filed a Review Application No.106 of 2010 before the Division Bench. The review application was also dismissed on 25.08.2010. These facts were not brought to the notice of the CGIT. 6. On the other hand, the second respondent G. Sundar who was also a Clerk in the same Bank and who was also involved in the same transaction raised an industrial dispute under Section 2-A (2) of the I. D. Act before the Central Government Labour Department. Since the Conciliation Officer as he could not bring about mediation sent a failure report to the Central Government. The Central Government through Ministry of Labour by their order dated 21.04.2005 referred the following issue for adjudication by the CGIT:- "Whether the action of the Management of Syndicate Bank in imposing the petitioner of dismissal from service of Sri. G. Sundar, Clerk is legal and justified? If not, to what relief is the workman is entitled to?" 7. The CGIT upon the order of reference registered the dispute as I.D.No.43 of 2005 and issued notice to both parties. The workman namely the second respondent filed a claim statement dated Nil. The petitioner Management filed a counter statement dated Nil (November 2005). 8. Before the CGIT, the workman examined himself as W.W.1 and filed 20 documents, which were marked as Exs.W1 to W20. The Management did not lead any oral evidence and on their side, 13 documents relating to the enquiry proceedings were filed and they were marked as Exs.M1 to M13. 9. The CGIT on an analysis of evidence (both oral and documentary) came to the conclusion that the enquiry held against the workman was valid and the findings of the enquiry officer was justified and cannot be questioned. 9. The CGIT on an analysis of evidence (both oral and documentary) came to the conclusion that the enquiry held against the workman was valid and the findings of the enquiry officer was justified and cannot be questioned. But however it found that the proof regarding the workman being party to the transaction was based upon no eye witness who were examined before the Enquiry Officer and based upon hear say. At the same time, CGIT found that the workman had given a statement before the investigation officer and in paragraph 7, it had observed as follows:- "7.) ...Though, I find some force in the contention of the learned counsel for the Respondent, in this case no doubt it is alleged that Sri A.Vinayakamurthy has given a statement before the Investigating Officer but when it is doubted that whether Vinayakamurthy has given a statement or not, the reliance placed by the Enquiry Officer on the statement is not valid. Further, the reason given for the non-examination of the said Vinayakamurthy is not convincible and therefore I find Enquiry officer's findings who has taken into consideration the statement of Vinayakamurthy is not legal." (Emphasis added) It is only on the basis of this, it granted the relief of reinstatement. 10. Mr. V. Karthick, learned counsel appearing for the petitioner Bank contended that hearsay is also an admissible evidence. He relied on a judgment of the Supreme Court in State of Haryana v. Rattan Singh reported in 1982 I LLJ 46 and relied on the following passage found in paragraph 4:- "4.) ...There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good." 11. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good." 11. The learned counsel also referred to another judgment of the Supreme Court reported in 2000 II LLJ 1373 [State Bank of India v. Tarun Kumar Banerjee and others] and contended the evidence of eye witness who were there when the second respondent's statement was recorded by the Investigating Officer in the criminal case is sufficient evidence. He referred to the following passage found in paragraph 8:- "8.) It is submitted that even if evidence is withheld, the conclusion of the enquiry officer would be correct is a perverse approach. We do not think so. What is stated therein is that when sufficient evidence was produced to conclude one way or the other, the evidence not produced will not be of any significance unless there was such evidence which was withheld would have tilted the evidence adduced in the course of domestic enquiry. No such evidence is forthcoming in this case. Therefore, this argument deserves to be rejected." 12. However, it is unnecessary to go into the said issue since this Court in the case of Marimuthu found him guilty of the misconduct and declined to grant relief and the same was also confirmed by the Division Bench and consequently his review application was also dismissed. In the course of the said order, the role of the second respondent was also clearly set out as noted above. Therefore for the same misconduct one person cannot be denied relief and the other person should be granted relief merely because he had approached a different forum. 13. This Court is convinced that evidence available on record is sufficient to hold the second respondent guilty of charges and the CGIT failed to properly appreciate the evidence on records. Hence, the impugned Award in I.D.No.43 of 2005 stands set aside and the writ petition stands allowed. No costs. Connected miscellaneous petition is closed.