(Prayer: Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus, call for the records relating to the impugned order dated 20.08.2001 made in I.D.No.429 of 2001 passed by the 2nd respondent and quash the same and order reinstatement of the M.Veeraperumal in service with the 1st respondent.)
1. The present writ petition is directed against the impugned award passed by the Central Government Industrial Tribunal cum Labour Court in I.D.No.429 of 2001 dated 20.08.2001 (Tamil Nadu State Industrial Tribunal I.D.No.33/97). One Mr.M.Veeraperumal while serving as Record Keeper attached to the Indian Overseas Bank, Zonal Office at Madurai was subjected to a disciplinary proceedings for the allegation that he, in collusion with Mr.K.Rajaguru, Roll No.12327, former Manager of Kakkur Branch and one Mr.K.A.Marimuthu, cheated the Bank to the tune of Rs.1,00,000/- by introducing one Mr.K.A.Marimuthu to open the Savings Bank Account No.16018 in the North Vadambokki Street Branch, Madurai on 24.04.1992 at the instance of Mr.Rajaguru with the sole purpose of fraudulently encashing the draft No.11/19 issued by the Kakkur Branch in favour of Mr.K.A.Marimuthu. It is alleged that while opening the account, Mr.M.Veeraperumal was aware of the fact that Mr.K.A.Marimuthu was not the resident at the address given to the Bank and the address belongs to one Mr.Mani Iyer, Astrologer. As a result, the draft was obtained fraudulently by the said Mr.Marimuthu and thus, the Bank suffered a loss of Rs.1,00,000/- being the proceeds of the draft credited to the account of Mr.Marimuthu and withdrawn by him subsequently. In view of the above said charge memo, Mr.M.Veeraperumal was placed under suspension. He was also issued with the charge sheet cum suspension order dated 28.03.1993, calling upon him to submit his explanation. On receipt of the charge sheet cum suspension order, by writing letter to the disciplinary authority, he sought for supply of more documents and thereafter, he submitted his reply on 21.10.1993 denying the said charge.
2. The disciplinary authority, having not satisfied with the explanation offered which had no relevancy to the charges levelled against him, sent a letter dated 27.11.1993 informing the date of enquiry. Subsequently, the enquiry was held on 08.02.1994 at North Vadambokki Street Branch, Madurai. When the charge sheeted employee Mr.M.Veeraperumal denied all the charges, the regular enquiry was held on 08.02.1994, 09.02.1994 and 18.05.1994 and finally concluded on 19.08.1994. Thereafter, on completion of the enquiry, the Enquiry Officer found the charge sheeted employee guilty of the charge. Thereafter, the disciplinary authority, by furnishing a copy of the enquiry report, issued a second show cause notice dated 19.08.1994, calling upon him to submit his further representation as to why he should not be awarded with the penalty of dismissal from Bank service without further notice. On receipt of the said second show cause notice, the charge sheeted employee Mr.M.Veeraperumal, submitted a detailed written representation dated 02.09.1994 stating that the charge sheet itself is defective and suffers from the infirmity of ambiguity. Further, it is stated that the enquiry was marred by violations of the principles of natural justice since the investigation was unscientific and incomplete. On that basis, he requested the disciplinary authority to reconsider his stand on the basis of the written statement and to exonerate him from the charge. Finally, the disciplinary authority on 24.09.1994, by holding that the charges are proved against him, which warrant a deterrent punishment since he also suffered two more punishments in the past, accordingly, imposed penalty of dismissal from Bank services with immediate effect in terms of para 17.6(a) of the Biparties Settlement dated 14.12.1966 between the Bank and its workmen. Aggrieved against the same, the charge sheeted employee Mr.M.Veeraperumal filed an appeal before the Deputy General Manager, appellate authority, Indian Overseas Bank, Madras on 15.10.1994, seeking a personal hearing so as to submit his case and the appeal came to be dismissed. Thereafter, the matter went before the Central Government Industrial Tribunal-cum-Labour Court, Chennai and the Labour Court also dismissed his Industrial Dispute in the award No.494/2001, confirming the order of punishment given by the disciplinary authority as confirmed by the appellate authority. As against the said order of the Tribunal, the present writ petition has been filed.
3. The learned counsel appearing for the petitioner submitted that the delinquent employee Mr.M.Veeraperumal, having put in 21 years of unblemished service in the respondent Bank, was issued with a charge sheet cum suspension order, dated 28.03.1993 for his alleged misconduct of introducing Mr.K.A.Marimuthu for opening a Savings Bank Account bearing Account No.16018 at North Vadambokki Street Branch, Madurai for an allegation of fraudulently encashing a draft issued by Kakkur Branch in favour of Mr.K.A.Marimuthu at the instance of Mr.K.Rajaguru, former Manager of Kakkur Branch. Eventhough the said M.Veeraperumal disputed the charges levelled against him, an enquiry was conducted. In the said enquiry, though the respondent Bank failed to prove the charges, the Enquiry Officer wrongly gave a finding that Mr.M.Veeraperumal was found guilty of the misconduct without proper appreciation of evidence.
4. At this juncture, the learned counsel placed his first contention that the Enquiry Officer, Mr.N.Rajamani, who was also serving as disciplinary authority, after completing the enquiry, has issued the order of dismissal from service, therefore, the disciplinary authority cannot serve as Enquiry Officer as the same person cannot act as both the disciplinary authority and the Enquiry Officer and hence, the entire enquiry proceedings and the order of dismissal passed by the disciplinary authority against Mr.M.Veeraperumal are liable to be set aside, as the same are contrary to law.
5. Secondly, it is submitted by the learned counsel appearing for the petitioner that it is not the case of the respondent bank that Mr.M.Veeraperumal, Record Keeper, wrongly introduced one Mr.K.A.Marimuthu on his own, but, he has introduced Mr.K.A.Marimuthu at the instance of Mr.Rajaguru, former Branch Manager since the said Mr.Rajaguru was known to Mr.M.Veeraperumal for a long time. On introduction of one Mr.K.A.Marimuthu by Mr.Rajaguru, former Branch Manager to Mr.M.Veeraperumal with the request to help him in encashing a draft for which, Mr.M.Veeraperumal, charge sheeted employee has introduced Mr.K.A.Marimuthu to open an account. Therefore, the question of introducing one Mr.K.A.Marimuthu as account holder at the request of another Branch Manager Mr.Rajaguru, cannot be held improper and more so, giving an introduction does not in any way bind the introducer in the event of account becoming irregular. According to the respondent Bank's Book of instructions clause (4), it is clearly stated that it must be clearly realized that giving an introduction does not in any way bind the introducer in the event of account becoming irregular. On that basis, the learned counsel appearing for the petitioner submitted that if at all the said Mr.K.A.Marimuthu after introduction by Mr.M.Veeraperumal to open an account has caused loss to the Bank, only the said K.A.Marimuthu and Mr.Rajaguru, who has introduced the said Marimuthu to Mr.M.Veeraperumal, shall be proceeded to and not the said Veeraperumal at all.
6. Thirdly, the learned counsel for the petitioner contended that the said Mr.K.A.Marimuthu has also taken out DD given by a bank cheque and on accepting the cheque given by Mr.K.A.Marimuthu, the Cashier issued DD and thereby no cheating or loss has occurred to the Bank. Because one account holder of Savings Bank Account bearing Account Nos.1663 and 1665 at Kakkur Branch has given blank cheques to Rajaguru, Branch Manager, which were later filled up by Rajaguru in favour of Mr.K.A.Marimuthu on 18.04.1992, after receiving the cheque filled in by Rajaguru to Marimuthu, the Manager of Kakkur Branch had issued a DD for Rs.1,00,000/- to Mr.M.A.Marimuthu. Therefore, no way this transaction can be held to be irregular and causing loss to the Bank. When there was no loss caused to the Bank at the transaction made by his introducer Mr.K.A.Marimuthu, Mr.M.Veeraperumal cannot be held responsible. But these vital facts have not been properly considered by the disciplinary authority or appellate authority and even by the Central Government Industrial Tribunal cum Labour Court. On this basis, the learned counsel prayed for setting aside the dismissal order passed by the appellate authority.
7. Opposing the above submissions, the learned counsel appearing for the respondent forcibly contended that the charge sheeted employee, Mr.M.Veeraperumal, while serving as a Record Keeper in the Zonal office of the first respondent, has introduced one Mr.K.A.Marimuthu to open an account without having his permanent address for the sole purpose of fraudulently encashing the draft knowing fully well aware of the residential address of Mr.K.A.Marimuthu and only in collusion with K.Rajaguru, Former Manager of Kakkur Branch along with Mr.K.A.Marimuthu, all these three people have cheated the Bank for a sum of Rs.1,00,000/- by introducing K.A.Marimuthu at North Vadambokki Street Branch to open a Savings Bank Account on 24.04.1992. But, curiously, on the very same day, DD was deposited and the said K.A.Marimuthu had also withdrawn the entire amount within a week on different dates and after withdrawing the entire amount, he stopped operating the account.
8. At this juncture, the customer of the Bank one Mr.Sambasivam and his brother Mr.Manickavasagam having accounts in the Kakkur Branch after orally complaining to the Bank on 27.10.1992 again gave a written complaint on 12.11.1992 stating that one Rajaguru and Marimuthu cheated them by misappropriating their money by way of filling the blank cheques with Rs.1,11,525/- and Rs.1,10,511/-. Immediately, after the receipt of the complaint, investigation was ordered by the Bank and the Investigation Officer after enquiring the introducer Mr.M.Veeraperumal and Account holder Mr.K.A.Marimuthu, it was found that Mr.M.Veeraperumal only introduced Mr.K.A.Marimuthu to open the account even though he did not know him personally and also his occupation and correct address. On that basis, the charge sheet cum suspension dated 23.08.1993 was issued to Mr.M.Veeraperumal as he has colluded with Rajaguru, Former Kakkur Branch and one Mr.K.A.Marimuthu, so as to cheat the Bank by introducing one K.A.Marimuthu to open a Savings Bank account on 24.04.1992 and thereafter, when his explanation was found incorrect, the enquiry was ordered and in the enquiry, the said M.Veeraperumal also did not even go into the witness box. However, the Enquiry Officer, who was also the disciplinary authority as he is entitled to function as Enquiry Officer held the enquiry by giving all reasonable opportunities to both sides and on completion of the enquiry, by furnishing a copy of the report to Mr.M.Veeraperumal called upon him to submit his further representation as to why he should not be imposed with the punishment of dismissal from service for the proved misconduct. Thereafter, he submitted his explanation and the explanation offered by him was fully an erroneous statement and the disciplinary authority finally imposed the punishment of penalty of dismissal from service.
9. Aggrieved against the said order, the said charge sheeted employee M.Veeraperumal filed an appeal and the appellate authority also after giving him reasonable opportunity to place his case, finding no merits in the appeal, dismissed the appeal and thereafter, the learned Industrial Tribunal cum Labour Court also finding no merits in his side, dismissed the award, giving a clear cut finding that the charge sheeted employee, Mr.Veeraperumal has introduced one Mr.K.A.Marimuthu to open a Savings Bank Account at North Vadambokki Street Branch, when he was working as Record Keeper in the zonal office of the respondent Bank, Madurai only with the sole purpose of fraudulently encashing the draft No.11/19 issued by the Kakkur Branch in favour of Mr.K.A.Marimuthu for Rs.1,00,000/- and while introducing the said Savings Bank account holder, the said M.Veeraperumal was fully aware of the fact that Mr.K.A.Marimuthu was not resident at the address given in the application seeking opening of the account and in spite of that, the concerned employee stood as an introducer to open a State Bank Account and thereby a draft was fraudulently obtained and the proceeds were fraudulently withdrawn by Mr.K.A.Marimuthu subsequently and thus has come to the light of the Bank when the three S.B. Accountholders found that their accounts were not transferred to Chokkikulam from Kakkur Branch when their accounts in Kakkur Branch were closed and the proceeds were misappropriated. On that basis, he further contended that when there is a repeated finding one by one by the disciplinary authority followed by the appellate authority and finally concluded by the learned Industrial Tribunal cum Labour Court, the finding of fact that the said Mr.M.Veeraperumal was found guilty of charges levelled against him on the basis of evidence need not be disturbed or interferred by this Court.
10. Though these submissions made by the learned counsel for the respondent carries force let me deal with the submission made by the learned counsel appearing for the petitioner. When the charge sheeted employee, Mr.M.Veeraperumal was working as Record Keeper at the zonal office, Indian Overseas Bank at Madurai, he had introduced one Mr.K.A.Marimuthu to open SB account bearing Account No. 16018 with North Vadambokki Street Branch at Madurai as he was introduced by one Mr.Rajaguru, former Branch Manager from Kakkur Branch. But after the introduction of Mr.K.A.Marimuthu, it appears that Mr.K.A.Marimuthu by opening a SB account on 24.04.1992, deposited one DD on the same day and withdrawn the entire amount within a week on different dates. But after taking all money, he stopped operating the account. At this juncture, a written complaint was given by one Mr.Sambasivam and his brother Mr.Manickavasagam, whose wife Mrs.Pappa was maintaining a account with the said bank. In the said complaint, it was stated that when they were having account at Chokkikulam Branch in the name of V.Sambasivam, Mrs.M.Pappa and in the name of V.Sambasivam and M.Krishnammal, one Mr.Rajaguru, Manager approached them with the request to open an account at Kakkur Branch by transferring the amount from Chokkikulam Branch, in order to improve the deposits at Kakkur Branch.
11. Believing his words, they gave three cheques for Rs.1,09,000/-, Rs.1,10,000/- and Rs.1,75,000/- and the said Mr.Rajaguru, Bank Manager, promised them to give interest on the said amount. Subsequently, in February 1992, the said Rajaguru called on them and informed them about his transfer to Pudukottai. But the complainant requested the said Rajaguru to transfer the amounts back to Chokkikulam branch as they needed money. For that purpose, Mr.Rajaguru, Branch Manager, obtained blank cheques signed by the account holders for the purpose of transferring the amounts back to the Chokkikulam branch. Believing his words, when the blank cheques were given to Rajaguru with the consent of the complainant for the purpose of transferring the amounts back to the Chokkikulam branch, the said Rajaguru along with his friend K.A.Marimuthu filled in the blank cheques with Rs.1,11,525/- and Rs.1,10,511/- amounts both in the name of one Mr.K.A.Marimuthu and after getting him introduced to a charge sheeted employee M.Veeraperumal, by opening S.B. Account, misappropriated their money. Later on, it was transpired that Mr.Marimuthu was a TADA detenue. In this background, when the Investigation Officer reported that the charge sheeted employee Mr.M.Veeraperumal was also responsible for introducing Mr.K.A.Marimuthu to open SB account, he was issued with charge sheet cum suspension order. It is settled law that the disciplinary authority, who intends to hold an enquiry in the sensitive matter, is entitled to function as an Enquiry Officer. Accordingly, the disciplinary authority himself has functioned as Enquiry Officer. Therefore, the first argument advanced by the learned counsel appearing for the petitioner that the same person could not function as both the disciplinary authority and Enquiry Officer, is legally unsustainable. Accordingly, the same is rejected.
12. While proceeding with the second submission made by the learned counsel for the petitioner that the said charge sheeted employee Mr.M.Veeraperumal having known Mr.Rajaguru, another Branch Manager, more than 10 years, on his request to help his friend, introduced Mr.K.A.Marimuthu with North Vadambokki Street Branch, to open a savings bank account on 24.04.1992 has only helped him to the limited extent for opening a new account, hence, the said help rendered to a friend of Mr.Rajguru, Branch Manager, cannot be found fault with in view of Clause 4 of the Books of instructions which says that the introducer is not responsible under any circumstances of any irregularity that might have been happened in the account opened by the introducer. This argument placed before this Court, does not stand to the reason that in as much as this clause is applicable when a person, in a normal circumstances in good faith without negligence, introduces a new account holder to the bank. But in the present case, the charge sheeted employee has introduced the account holder Mr.K.A.Marimuthu, who is a TADA detenu, even without ascertaining his address, occupation and even without personally knowing him, to help him at the request of Mr.K.Rajaguru. When Mr.Rajaguru, Branch Manger of Kakkur Branch has come to his house, being a record keeper, should have verified the whereabouts of Mr.K.A.Marimuthu before introducing to open an account, but as a responsible officer has not discharged his responsibility. Therefore, it is not open to say that only in good faith, when his friend Mr.Rajaguru requested him to help one Mr.K.A.Marimuthu for opening an account, he signed as an introducer for Mr.K.A.Marimuthu to open SB Account at North Vadambokki Street Branch. In fact, his letter dated 21.10.1993 addressed to Mr.N.Rajamani, Disciplinary Authority, Vigilance Department, Indian Overseas Bank clearly shows that he has admitted his fault that he did not know whether the address mentioned in the application form was the correct one. As result of introducing a new account holder, the Bank has now suffered a loss of Rs.1,00,000/-. Therefore, the Bank has lost a sum of Rs.1,00,000/- by the way in which the said Marimuthu has operated the account by opening his account on 24.04.1992 and by depositing on the same day the DD amount and withdrawing the entire amount within a week on different dates and thereafter he stopped operating the account itself.
13. Further, the charge sheeted employee Mr.M.Veeraperumal, did not even maintain his explanation consistently from the date of his explanation till the completion of the enquire proceedings. In his explanation, dated 21.10.1993, he has stated that Mr.Rajaguru came to his resident alongwith Mr.K.A.Marimuthu and requested him to help the said person to open a Savings Bank account at North Vadambokki Street, Madurai since the said Rajaguru was an officer and he is known to him and at his request he stood as introducer to K.A.Marimuthu for opening the account. But subsequently, this stand was modified by Mr.M.Veeraperumal in his appeal dated 09.12.1994 wherein he completely changed his version stating that Mr.Rajaguru alongwith Mr.K.A.Marimuthu was in the house of Mr.Mani Iyer, Astrologer and therein, Mr.Rajaguru introduced the said Marimuthu. Therefore, the Enquiry Officer also failed to accept his explanation as his explanation was not consistent. This aspect has been properly considered by the disciplinary authority and the appellate authority. Beyond that the disciplinary authority before passing the impugned penalty of dismissal from service have rightly gone into the past record of Mr.M.Veeraperumal. As per the past record, he has earlier suffered two other punishments by o
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rder dated 28.03.1978 for the proved charges contained in charge sheet dated 30.04.1976. The disciplinary authority has imposed a punishment of stoppage of 3 increments which fell due in 1978, 1979 and 1980 by order dated 28.03.1978. Again by another order dated 04.08.1987, he suffered one more punishment of stoppage of one more increment with cumulative effect by order dated 04.08.1987 by the Disciplinary Authority in respect of charge sheet dated 25.04.1987. 14. On that basis, the learned Industrial Tribunal has also given a categorical finding after appreciating the entire evidence, that the act of introduction made by the concerned employee Mr.M.Veeraperumal is not mere a irregularity, because while introducing the said Savings Bank account holder, Mr.M.Veeraperumal was fully aware of the fact that the said Mr.K.A.Marimuthu was not residing in the address given in the Account Opening Form and that one Mr.Mani Iyer, Astrologer was residing in that address. In spite of that Mr.M.Veeraperumal stood as a introducer for Mr.K.A.Marimuthu to open a Savings Bank Account and thereby, a draft fraudulently obtained was credited into the said S.B.Account and the proceeds were fraudulently withdrawn by Mr.K.A.Marimuthu. Resultantly, the Bank has sustained a loss to the tune of Rs.1,00,000/-. Hence, the argument advanced by the learned counsel appearing for the petitioner that there was no loss caused to the bank is also far from truth. 15. Finally, when the findings of the fact that the charge sheeted employee has committed irregularity in introducing Mr.K.A.Marimuthu, has been properly found correct on the basis of proper evidence produced from both sides, by the Enquiry Officer, the same was confirmed by the appellate authority. The learned Industrial Tribunal while discharging the statutory power conferred under Section 11(A) of the Industrial Disputes Act has also given a well reasoned order and approved the finding of facts arrived at by the authorities below. In these circumstances, this Court sitting under Article 226 of the Constitution of India cannot substitute its own finding when the learned Industrial Tribunal on appreciation of entire facts has reached acceptable conclusions. Accordingly, the writ petition is dismissed. No costs.