@JUDGMENTTAG-ORDER
The Honourable Mr. Justice T. Raja
1. The petitioner herein seeks for issuance of writ of certiorarified mandamus to quash the proceedings of the first respondent/the Deputy General Manger, Syndicate Bank, Chennai, made in PRS:CZO:IRC:9:98, dated 15.07.1998, as concurred by the second respondent/the General Manager, Syndicate Bank, made in proceedings No.47/PD/IRD(W)/DA-7, dated 05.10.1998, and as confirmed by the Award of the fourth respondent/the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, dated 27.08.2001 in I.D.No.272/2002, by calling for the records connected thereto and consequently, to direct the first respondent to reinstate the CSE, K. Chandrasekaran, Stenographer, in the services of the first respondent bank with all attendant and service benefits and back wages.
2. Learned counsel appearing for the petitioner submitted that one K. Chandrasekaran joined the service of Syndicate Bank on 03.11.1980 as a Clerk-cum-Cashier at Kotagiri branch. The said K. Chandrasekaran, after passing the departmental test for the post of Stenographer, was posted to Pollachi branch on 22.01.1990 as a Stenographer. Thereafter, on 10.12.1996, the Manager of the respondent Bank, Pollachi Branch, issued a notice to the concerned workman, namely, K. Chandrasekaran, for an alleged misconduct committed by him. In the meanwhile, he was also placed under suspension from 20.12.1996, by a letter dated 17.12.1996, and a charge sheet dated 11.02.1997 was issued to the concerned workman by the respondent Bank alleging that the said K. Chandrasekaran did not remit the money into the loan account on 29.11.1996 pertaining to one Muthuswamy, and it is further alleged that the money given by Muthuswamy has been accounted for only on 07.12.1996, but the said Muthuswamy has been issued with a receipt on 06.12.1996. To substantiate the first charge, the Management and the Enquiry Officer relied on the evidence of MW-1 and MW-4 and M.Ex-1 to M.Ex-3 and M.Ex-23. However, on a perusal of the documentary evidences, it would be evident that M.Ex-2 has not been proved in accordance with law. M.Ex-2 is the counterfoil challan dated 06.12.1996 bearing the stamp and seal of the Syndicate Bank, Pollachi branch. When the delinquent employee employed at the relevant point of time as a Stenographer in Pollachi branch, one borrower of the branch, namely, Muthusamy, owner of M/s. Newyork Tailor, 69, Bioscope Road, Pollachi, having PSL A/c No.70/85, visited the branch around 11.00 a.m. on 29.11.1996 to repay his dues. On approaching the said Chandrasekaran for preparing the cash credit challan for Rs.4,400/-towards PSL A/c No.70/85, the said employee Chandrasekaran reportedly suggested him not to pay the amount immediately and he further advised him that to talk to the manager for waiving a portion of the dues. However, when the Muthusamy insisted for remitting the amount of Rs.4,400/- towards his loan account immediately, he asked him to give the amount informing that the Manager was busy. Thereafter, the said Muthusamy reposing confidence on him, handed over the cash of Rs.4,400/- on that day, i.e., on 29.11.1996 and left the branch with an assurance that he would give the bank''s receipt/counterfoil for the same amount on the same day. Since he failed to give the bank''s receipt to the said Muthusamy on 29.11.1996, inspite of his repeated request, he came to the Pollachi branch on 06.12.1996 for receipt, but, the said Chandrasekaran kept him waiting and when he insisted for the receipt/counterfoil, the said Chandrasekarn, by taking him to the first floor of the bank, handed over a receipt/counterfoil for Rs.4,400/-, dated 06.12.1996, as if the same was issued on behalf of the branch. Thereafter, the said Muthusamy left the branch, but as he became suspicious, he came to the branch on 07.12.1996 to verify the genuineness of the receipt/counterfoil with the Branch Manager, and on verification, it was fond that no such amount of Rs.4,400/- was remitted by the said Chandrasekaran, and it was turned out to be a fake one. Immediately, when the Manager of the Bank questioned the charge sheeted employee, Chandrasekaran, he left the Manager room and on the same day, remitted a sum of Rs.4,400/- into the PSL A/c No.70/85 of Muthusamy and handed over the counterfoil to the party in the presence of the Manager. Therefore, it was contended that the allegation against the said Chandrasekaran, that he failed to account a sum of Rs.4,400/- received from one Muthusamy, has to be properly proved beyond all reasonable doubts. But, the Enquiry Officer, after receiving a reply from the charge sheeted employee, namely, Chandrasekarn, and on completion of the enquiry holding that the said Muthusamy did not remit the money on 29.11.1996 was not correct and proper, because on the relevant date the said Muthusamy met the charge sheeted employee only for seeking certain clarification with regard to the debt in his loan account and thereafter, the said Muthusamy came on 06.12.1996 and sought a help to prepare the credit challan and then after preparation of the challan, the said Muthusamy did not remit the money into the bank and that, again, when the customer visited the bank on 07.12.1996, as per his request, the challan was prepared and thereafter, counterfoil was also handed over to the customer, it was under these circumstances, it was contended that the facts of the given case have not been properly gone into by the Enquiry Officer. Further, when there is no misappropriation of funds, the first charge alleged against the said employee, does not have any of the ingredients as found in Clause 19.7(I) of the Bipartite Settlement. Further, when the said customer Muthusamy, on filing a complaint before the Manager of the Bank, subsequently, withdrew the complaint, there is nothing further that can be looked into by the Enquiry Officer, for, as on the date when the Enquiry Officer initiated the enquiry, there was no written complaint warranting continuation of the enquiry against the petitioner. On that basis, it was contended that the Enquiry Officer, in his report submitted on 09.05.1998 should have dropped the proceedings against the charge sheeted employee, Chandrasekaran, for the reason that the said Muthusamy, has already withdrawn the complaint dated 07.12.1996.
3. In respect of the second charge, namely, the cheque was returned with remark ''insufficient fund'' on presentation in his savings bank account, it was submitted that the bank cannot raise the issue, as the second charge has been included after a lapse of 18 months from the date of occurrence and therefore, the second charge ought not to have levelled against him.
4. In his further submission, it was contended that the fourth respondent-Tribunal ought to have appreciated the facts and evidences let in by the parties and ought to have come to an independent conclusion. But, on the contrary, the Tribunal, without applying its mind, erroneously has concurred with the findings of the Enquiry Officer, which is unsustainable in law. With the aforesaid submissions, he prayed for allowing the present writ petition.
5. Per contra, learned counsel appearing for the respondents submitted that one R. Muthusamy, a Tailor, who was having a Tailor Shop, availed a loan of Rs.4,000/- on 07.12.1985 under Priority Sector. As the loan was outstanding with no chance of recovery, it was transferred to DICGC''s account and the same was written off. After some time, when he approached the Clerk Chandrasekaran, who happened to be his neighbour, to prepare a credit slip for remitting the amount to his loan account, the said Chandrasekaran advised him not to remit the dues but to speak to the Manager of the Bank for waiver of a portion of the loan. Therefore, believing the said charge sheeted employee, Mr. Muthusamy gave him a sum of Rs.4,400/-, with an assurance that he would get back the bank''s receipt, but subsequently, the said charge sheeted employee failed to give the receipt as promised. Therefore, the complainant Mr. Muthusamy came to the branch on 06.12.1996 and demanded receipt from the charge sheeted employee, who in turn handed over a counterfoil evidencing remittance of Rs.4,400/- to the complainant Muthusamy. Subsequently, on his return to his shop, he had some doubt about the genuineness of counterfoil and therefore, he wanted to get a confirmation thereon from the Branch Manager and on that basis, he made a complaint before the Manger by showing the counterfoil. After verifying the scroll, the Branch Manager found that the amount was not credited to his account. In the meanwhile, the charge sheeted employee remitted a sum of Rs.4,400/- to the credit of Muthusamy''s account and gave him the counterfoil, and as a result, the first charge was framed.
6. Secondly, in respect of the second charge, it was contended that the employee of the bank, who are having account, are required to ensure that they do not issue cheques without having sufficient fund in the account for making any payment. Despite such clear instructions, the charge sheeted employee issued a cheque No.233023, dated 22.05.1995 on his S.B. Account No.20402 for Rs.10,000/-in favour of one G. Subramaniam, when the account had a balance of only Rs.3.32/-. Again, on 12.12.1995, he issued another cheque No.453475, dated 10.12.1995 for Rs.12,000/- in favour of one T. Ganesh Kumar, when his account did not have sufficient balance and both the cheques had returned for want of funds. In respect of these two charges, when the charge memo was issued, the charge sheeted employee submitted his explanations without showing any sufficient cause. Therefore, the Enquiry Officer was appointed. In the domestic enquiry, four witnesses for the management side were examined and 23 documents were filed as management exhibits. On the side of the delinquent employee, no document was filed as defence exhibits and only the delinquent employee was examined as DW2 and as mentioned above, four more witnesses were examined as defence witnesses as DW1, DW3 to DW5. The Enquiry Officer, after analysing the evidence let in before him, has given a finding that the charges levelled against the delinquent employee has been proved. Thereafter, a copy of the report was also sent to the delinquent employee and after his reply dated 18.05.1998 to the enquiry report, the Disciplinary Authority has issued a memo to the delinquent employee mentioning the proposed punishment and informing him to attend the personal hearing on 24.06.1998. Subsequently, the Disciplinary Authority has passed an order dated 15.07.1998 dismissing the delinquent employee from the services of the Bank. Aggrieved by the said order, when an appeal was filed on 16.07.1998 before the Appellate Authority, the Appellate Authority heard the appeal of the delinquent employee represented by his defence representative on 09.09.1998 and finally, the Appellate Authority passed an order dated 05.10.1998 confirming the order of punishment imposed by the Disciplinary Authority against the delinquent employee. Thereafter, when an industrial dispute was raised by the fourth respondent-Tribunal, a clear cut finding was given by the Tribunal, stating that the delinquent employee, in his cross-examination, had admitted that the complainant Muthusamy had handed over a sum of Rs.4,400/- to him to deposit the same into his loan account. It is under these circumstances, the findings of the Enquiry Officer, that the delinquent employee has kept the amount of the borrower without crediting the same in his account till 07.12.1996 has to be accepted. Under this circumstances, when the learned Labour Court has considered the case of both sides, it is not prudent on the part of this Court to interfere with such well reasoned award passed by the Tribunal, he pleaded.
7. Heard the learned counsel appearing on either side and perused the materials available on record.
8. It is pertinent to note that when the delinquent employee Chandrasekaran, while serving as a Stenographer in Pollachi Branch on 29.11.1996, one Muthusamy, a borrower of the said branch and owner of M/s. Newyork Tailor, Pollachi, having PSL A/c No.70/85, visited the branch to repay his loan amount of Rs.4,400/-. Since the delinquent employee was also living in the same street and in view of his acquaintance with him as a neighbour, the said Muthusamy approached him for preparing the Cash Credit Challan for Rs.4,400/- towards his PSL A/c No.70/85. But, the said loan granted to the complainant became bad. When the loan was considered as bad, having been transferred to the account of DICGC''s claim lodged account, the loan account will remain open under this head of account. Therefore, the staffs of the branch were aware of the loans, which were transferred to DICG''s claim lodge account and/or written off. But, the borrower Muthusamy was not aware of the transfer of loan amount to DICGC''s account. Therefore, he came to the branch to repay the loan, thinking that the loan is still payable and thereby, he approached the delinquent employee, who happened to be his neighbour, to prepare a credit challan for remitting the amount to his loan account and thereafter, the delinquent employee assured him that he would get the bank''s receipt later and would give it to him. But, when the bank''s receipt, as promised by the delinquent employee, was not given to him, again, the complainant Muthusamy visited the branch on 06.12.1996 and thereafter, the delinquent employee handed over a copy of the counterfoil to him. However, after receipt of the counterfoil, the said Muthusamy returned to his shop and subsequently, he had a suspicion about the genuineness of the counterfoil and therefore, he wanted to confirm about the remittance of Rs.4,400/-, that was credited into his account. When he came back again to the branch and met the Branch Manager, who, on verification, found that the remittance of Rs.4,400/- was not credited into his account on 06.12.1996. Subsequently, when the Branch Manager called upon the concerned delinquent employee and questioned about the counterfoil, the said delinquent employee requested the Branch Manager to discuss the matter in private. However, the Branch Manager declined to accept his request. Immediately thereafter, he left out from the room and prepared a challan for remittance of Rs.4,400/-into the loan account of Muthusamy and handed over a counterfoil to Muthusamy in the presence of the Manager and the Inspector. This evidence clearly goes to show that, availing of loan by one Tailor R. Muthusamy on 07.12.1985 for a sum of Rs.4,000/- and the same was written off by the respondent-bank sometimes during 1990 were not disputed. These aspects have been properly dealt with by the Enquiry Officer and rightly held the first charge as established.
9. Besides, the second charge is that he has issued a cheque No.233023, DATED 22.05.1995 on his S.B. Account No.20402 for Rs.10,000/- in favour of one Subramaniam, when the account had a balance of Rs.3.32/- and similarly, on 10.12.1995, he issued another cheque No.453475, dated 10.12.1995 for Rs.12,000/- in favour of one T. Ganesh Kumar, when his account had a balance of Rs.3.29/-, have also been properly discussed, holding that the bank employees required to ensure that they do not issue cheques without having sufficient funds in their account for making payment. As discussed above, when both these charges were considered by the Enquiry Officer, in his report dated 09.05.1998, the Disciplinary Authority, by order dated 15.07.1998, and the Appellate Authority, by order dated 05.10.1998 and again, when these findings of fact have been considered by the learned Tribunal, after knowing that the delinquent employee has misappropriated a sum of Rs.4,400/- and thereby derived undue pecuniary gain at the cost of the bank, this Court does not wish to interfere with such a well reasoned findings of fact given by the Authorities. Accordingly, this Court, finding no merit in the writ petition, confirms the same and the writ petition, as a result, fails and is dismissed. No Costs.
