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2012 DIGILAW 713 (MAD)

Y. Moulana v. Assistant General Manager, State Bank of India Salem, (Disciplinary Authority)

2012-02-09

R.SUDHAKAR

body2012
Judgment :- 1. This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent relating to Order No.73, dated 31.7.2001 and that of the second respondent relating to the Order No.190, dated 3.10.2001, quash the said orders and issue consequential directions to reinstate the petitioner in service with all consequential benefits of continuity in service, back pay, etc. 2. The petitioner, while working as an Assistant in the State Bank of India, Salem Branch, was found to have indulged in misappropriation of office money for personal use by forging entries in records. It is stated by the petitioner that he has remitted the amount which he has misappropriated, on 10.6.1999. Petitioner was suspended and charge memo was issued on 24.7.1999. A criminal complaint was lodged before the Central Crime Branch, Salem City in Crime No.20 of 1999 on 15.10.1999. In respect of the charge memo, an Enquiry Officer was appointed. Enquiry was conducted and a report was submitted on 27.4.2001 whereby the Enquiry Officer gave a finding that all the charges levelled against the petitioner were proved beyond doubt. A copy of the enquiry report was furnished to the petitioner. A written submission was made on 18.6.2001. Thereafter by proceedings dated 26.6.2001 the Disciplinary Authority proposed a punishment of dismissal from service and to which the petitioner submitted a written statement and also appeared for personal hearing on 27.7.2001. Thereafter, the first respondent Assistant General Manager passed the final order dated 31.7.2001 imposing the punishment of dismissal from service treating the suspension period as suspension. Petitioner thereafter preferred an appeal on 29.8.2001 to the second respondent. The second respondent after affording a personal hearing on 17.9.2001 passed an order dated 3.10.2001 confirming the penalty imposed by the first respondent. Challenging the same, the present writ petition has been filed. 3. Petitioner in support of the writ petition has raised grounds (a) to (p). On going through the grounds, it is found that all the grounds are relating to factual aspects of the case relating to the charge framed against the petitioner. No legal plea stating that there is a gross violation of principles of natural justice or that the proceedings are contrary to the law has been raised. 4. On going through the grounds, it is found that all the grounds are relating to factual aspects of the case relating to the charge framed against the petitioner. No legal plea stating that there is a gross violation of principles of natural justice or that the proceedings are contrary to the law has been raised. 4. The respondents filed a counter-affidavit raising a preliminary objection in para 3 of the counter-affidavit stating that there is an effective alternative remedy under the Industrial Dispute Act. Para 3 of the counter-affidavit reads as follows:- "3) I submit the present Writ Petition is nothing but an abuse of process of law and the same is liable to be dismissed for the reason that the petitioner has an effective alternative remedy before the Central Industrial Tribunal under the Industrial Disputes Act. Besides that the power of judicial review cannot be invoked in the absence of any infirmity in the conduct of disciplinary proceedings or violation of principles of natural justice. Whereas in the instance case there is no such infirmity. It is also pertinent to point out that the petitioner has committed a grave misconduct of misappropriation by making false entries, fabricated the vouchers, withdrawn amount from customers and manipulated the customers account etc.," 5. The admitted fact in this case is that the petitioner was working as an Assistant at the time of the delinquency charged. Therefore, his remedy, as against the dismissal from service, would be only to raise an industrial dispute, which he failed to do. 6. The writ petition has been filed disputing several factual aspects in the original order and confirmed by the appellate authority. The court exercising power under Article 226 of the Constitution of India is not inclined to go into the disputes on factual aspects as alleged by the petitioner against the orders passed by the Disciplinary Authority or the Appellate Authority. 7. Since the effective alternative remedy is available for the petitioner under the provisions of the Industrial Disputes Act, this Court is not inclined to entertain the writ petition and the preliminary objection raised by the respondents is accepted. Accordingly, the writ petition is dismissed giving liberty to the petitioner to pursue the alternative remedy as above. 7. Since the effective alternative remedy is available for the petitioner under the provisions of the Industrial Disputes Act, this Court is not inclined to entertain the writ petition and the preliminary objection raised by the respondents is accepted. Accordingly, the writ petition is dismissed giving liberty to the petitioner to pursue the alternative remedy as above. In respect of the limitation, petitioner can explain to the competent forum the pendency of the writ petition and to eschew the period during which the writ petition is pending.