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Thiruvanaikoil Co-operative Urban v. The Presiding Officer2. N.P. Ravishankar - W.P. No. 11820 of 1995  RD-TN 536 (29 July 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
W.P. No. 11820 of 1995
Thiruvanaikoil Co-operative Urban
Bank Limited, Thiruvanaikoil
Tiruchirapalli – 620 005
rep. by its Secretary ... Petitioner Versus
1. The Presiding Officer
2. N.P. Ravishankar ... Respondents Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari as stated therein.
For Petitioner : Mr. Vijay Narayan
For Respondents : Mr. V. Selvaraj for Mr. R.N. Amarnath :ORDER
The petitioner has filed the above writ petition seeking for a writ of certiorari to call for the records of the first respondent in its award in I.D. No. 188/92 and to quash the award dated 21-11-1994 directing the Petitioner herein to reinstate the 2nd respondent with continuity of service with backwages and all other attendant benefits.
2. Heard both sides. The 2nd respondent herein was employed as a Clerk under the Petitioner/Bank. An account holder by name Chidambaram has deposited Rs.8000/- on 29-03-1981 under fixed deposit scheme. The said Chidambaram has applied for a loan of Rs.2,000/- from the said fixed deposit. The 2nd respondent, on the guise of assisting him has filled up the loan form for a sum of Rs.4,200/- instead of Rs.2,00 0/- and after obtaining Rs.4,200/- from the Bank, he paid Rs.2,000/- to the said Chidambaram. Thereafter, the said Chidambaram has given a written complaint to the Petitioner /Bank against the 2nd respondent herein. On the basis of the complaint, necessary charge memo was issued by the Petitioner to the 2nd respondent. The 2nd respondent has also submitted his explanation and the same was found not satisfactory, he was placed under suspension on 11-07-1984. A domestic enquiry was initiated. In the meantime, the 2nd respondent repaid the allegedly misappropriated amount of Rs. 2,200/- to the said Chidambaram on 22-09-1987 and obtained a letter from him requesting the petitioner not to initiate any action based on his earlier complaint. The 2 nd respondent did not attend the enquiry. The enquiry officer has set the 2nd respondent ex-parte and sent his report as charges are proved. Accepting the report of the enquiry officer, the disciplinary authority dismissed the 2nd respondent from the services on 30-05-1988. Aggrieved by the order of dismissal, the 2nd respondent raised a dispute before the first respondent / labour court.
3. Before the labour court, the 2nd respondent herein has marked Exs. W1 to W7 and the Petitioner herein has marked Exs. M1 to M6. No witness were examined by both sides.
4. Mr. Vijay Narayan, learned counsel appearing for the petitioner submitted that the labour court, after having held that the domestic enquiry was valid and proper, it ought not to have come to the conclusion that the charges against the 2nd respondent herein were not proved on the sole ground that the said Chidambaram was not examined. If such a conclusion is arrived, the labour court ought to have granted an opportunity to the petitioner to let in evidence to sustain the charge before it. The learned counsel further advanced arguments that even in the claim statement, the 2nd respondent has not taken any ground that he was prejudiced by the act of non-examination of the said Chidambaram. It is also argued by the learned counsel that the complaint of Chidambaram was taken on record and also the evidence of the Secretary was also to the effect that the 2nd respondent has forged his signature as such the findings of the labour court that only competent witness is Chidambaram, who was not examined and setting aside the order of dismissal on that sole ground is illegal. The learned counsel further canvassed that in a Banking institution, if a person occupies a position of trust and confidence, his conduct should be satisfactory; whereas, the 2nd respondent herein has misappropriated the amount and also forged the signature of the Secretary which was not considered by the labour court.
5. Mr. Vijay Narayan, learned counsel appearing for the Petitiner/ Bank relied on the following decisions in support of his case:- i) AIR 1982 Supreme Court 673 (J.D. Jain Vs. The Management of State Bank of India and another) wherein in Para-7 and 11, it was held thus:- "In an application for a Writ of Certiorari under Art. 226 of the Constitution for quashing an award of Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. In the case before us, according to the Tribunal as Kansal was not examined, the evidence before it was hearsay and as such on the basis thereof the appellant could not be legally found guilty.
11. ....What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to the withdrawal of excess money by the appellant in presence of the four witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar, aforesaid against his advice. On the complaint of Kansal, the evidence of these four witnesses is direct as the complaint is said to have been made by Kansal in their presence and hearing. It is, therefore, not hearsay. As the respondent has succeeded in proving that a complaint was made by Kansal on the evidence of the above-named four witnesses, the respondent has succeeded. No rule of law enjoins thata complaint has tobe in writing as insisted by the Tribunal. ii) (1991) 2 Supreme Court Cases 716 (Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and others) wherein in Para-37 it was held thus:-
"37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in confirmity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc., seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases, the other facts can be inferred, as much a is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of pro of is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case.
The standard of proof is the same both in civil cases and domestic enquiries."
6. Mr. V. Selvaraj, learned counsel appearing for the 2nd respondent submitted that on 18-06-1984, the 2nd respondent has borrowed a sum of Rs.2,200/- as handloan which was paid with interest on 24-02-1986 and the said loan transaction has nothing to do with the petitioner/ Bank. The said Chidambaram submitted a letter before the Petitioner / Bank stating that he had no complaint against the 2nd respondent and no action required to be taken against him on the basis of the complaint dated 20-02-1985. It is further argued that when the complainant himself has withdrawn the complaint, the order of dismissal passed against the 2nd respondent is liable to be set aside.
7. The labour court held that Chidambaram has given a complaint against the 2nd respondent and the former has received the said amount of Rs.2,200/- and issued a letter dated 22-02-1987 during the pendency of disciplinary proceedings. The finding of the labour court was that in and by the said letter, Chidambaram has stated that no action required to be taken against the 2nd respondent as such Chidambaram was the most competent witness, but he was not examined before the domestic enquiry and no valid reason was assigned for non-examination of the said Chidambaram. The labour court further held that though it was stated that Secretary was examined as witness, his deposition was not produced before it. Ultimately, the labour court passed an award directing the Management to reinstate the petitioner with continuity of service and backwages.
8. The complaint dated 20-03-1983 of Chidambaram was marked before the enquiry officer and also before the labour court as Ex.M1. In the said Complaint, he has narrated the incident elaborately. Another letter dated 06-12-1986 was also marked before the enquiry officer and before the labour Court as Ex.W7. In the said Ex.W7, it is stated that "it is to inform you that I have no complaint against Mr. Ravishankar, Clerk of your Bank or your Bank and therefore you need not take any further action on my letter of 20-02-1985 with reference to my deposit loan against No. 1875 dated 18-06-1984." The above said two letters were taken into consideration by the enquiry officer in reaching the conclusion that the charge against the 2nd respondent was proved. The said letter was sent only during the pendency of the disciplinary proceedings. The second letter of Chidambaram does not contain anything about the alleged loan transaction set up by the 2nd respondent. If any such transaction, as alleged by the 2nd respondent was taken place, it should have been reflected in the said letter. The said two letters of Chidambaram prove the guilt of the 2nd respondent beyond reasonable doubt.
9. The enquiry officer has rightly found, on proper consideration of the said documents that the charges against the 2nd respondent herein were proved. Admittedly, the 2nd respondent has not participated in the enquiry. I have examined the report of the enquiry officer. I am unable to accept the view taken by the labour court that the findings of enquiry officer cannot be held to be findings based on any evidence. It is well settled that the conclusion or finding of fact arrived at in a disciplinary proceeding can be interfered with by the labour court only when there is no material for the said conclusion or that on the material, the conclusion cannot be that of a reasonable man. The labour court thoroughly failed to consider the said letters, Ex. M1 and Ex.W7 which are evident that no discussion about the contents of the same. The labour court adopted an erroneous approach resulting in miscarriage of justice. The ratio laid down by the Apex Court relied on by the counsel for the petitioner in both the judgments supra are applicable to the facts and circumstances of the case. Hence, I set aside the award passed by the labour court.
With the result, the writ petition is allowed as prayed for. No costs. The amount, if any received by the 2nd respondent pursuant to the interim order of this Court need not be refunded to the Petitioner/Bank. 29-07-2002
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