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Secretary Bank of Madura Ltd. Vs. General Secretary, Bank of Madura Employees Union, Coimbatore and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 730 of 1962
Reported inAIR1965Mad491; [1970(20)FLR381]; (1965)IILLJ44Mad
ActsConstitution of India - Article 226; Industrial Disputes Act - Sections 33(2)
AppellantSecretary Bank of Madura Ltd.
RespondentGeneral Secretary, Bank of Madura Employees Union, Coimbatore and ors.
Cases ReferredIn Royal Printing Works v. Industrial Tribunal
.....industrial tribunal on the reference held that regulation 19 forbade acceptance or solicitation by bank employees of gifts for their own personal purposes and benefit and that the act of the second respondent in receiving small amounts for the benefit of the bank employees' union would not be a violation of the regulation. so far as the third respondent was concerned the tribunal found that the charge was not proved. on these findings the tribunal set aside the orders of dismissal and in its view of the conclusions of the domestic tribunal were also perverse.; on a writ petition to quash the order of the tribunal on the question raised as to the proper construction of regulation 19,; held, that regulation 19 which stated that an employee shall not solicit or accept any gift from..........had been transferred to that place form its coimbatore branch. he was then a vice-president of the bank employees' union. n september 1961, the bank charged him with misconduct on four counts (1) contrary to regulation 19 of the staff regulation and rules of service, he received gifts form five constituents of the bank all belonging to dharapuram in coimbatore district and solicited gifts form four other persons hailing form the same place, (2) he applied for causal leave and permission for absence from august 23 to 27, 1961 and handed over his leave letter and safe keys to the officer-in-charge at his residence, notwithstanding the fact that the officer told him that he could not grant casual leave as he himself would be out of station august 24, and by this irresponsible conduct of his.....
(1) This petition under Art. 226 of the constitution is to quash an award of the Industrial Tribunal Madras on a reference for adjudication o an industrial dispute relating to the propriety of the termination by the Bank of Madura Ltd., of the services of A. R. Sambandam and S. Venkataramman. The former was working as a cashier in the Cochin branch of the Bank form 21-8-1961 and had been transferred to that place form its Coimbatore branch. He was then a vice-president of the Bank Employees' Union. N September 1961, the Bank charged him with misconduct on four counts (1) contrary to Regulation 19 of the Staff Regulation and rules of service, he received gifts form five constituents of the bank all belonging to Dharapuram in Coimbatore District and solicited gifts form four other persons hailing form the same place, (2) he applied for causal leave and permission for absence from August 23 to 27, 1961 and handed over his leave letter and safe keys to the officer-in-charge at his residence, notwithstanding the fact that the officer told him that he could not grant casual leave as he himself would be out of station August 24, and by this irresponsible conduct of his as cashier in joint custody of the bank's safe keys, he committed a grave breach of discipline; (3) he applied for leave on 2-9-1961, for 12 days form 5-8-1961 on a false pretence. Cancellation having failed, the secretary of the Bank, on a domestic enquiry in which evidence was recorded, found him guilty of all charges and terminated his services on 24-12-1961 with immediate effect.

The change against Venkataraman was that on the evening of 7-9-1961 at about 6-30 p.m. after office hours, he went upstairs of the central office of the Bank of Madurai, typed some private matter, interfered with the steno-typist's drawer and ransacked the papers. He was also an office-bearer in the Labour Union of the bank and apparently the management suspected him of spying out information for the Union. This charge also, after a similar domestic enquiry, was found proved and his services were terminated by the secretary. Their cause having been taken up and exposed by their fellow employees of the bank, the matter assumed the proportion of an industrial dispute which was in due course referred for adjudication.

The Industrial Tribunal found that Sambandam received or solicited donation of small amounts from certain constituents of the bank not for his own personal benefit but to augment the funds of the Union. The Tribunal considered that this was not a contravention of the regulation 19, as in its view all that if forbade was acceptance or solicitation by bank employees of gifts for their own personal purposes and benefit. It was also of the view that there was nothing wrong in Sambandam having absented himself on leave after handing over the safe keys to his officer and that taking leave on false grounds, was not specifically constituted by the regulation as an act of misconduct. the Industrial Tribunal having arrived at these findings characterised the conclusions of the domestic tribunal as perverse. As regards Venkataraman, the tribunal found that the evidence only established that on the typewriter of the Secretary's steno typist's, shortly after office hours, he typed a small private matter and that beyond that, there was no evidence that he opened the drawer of the steno typist's table and ransacked the papers or that he had any criminal intent when he went upstairs. By its award, therefore, the Tribunal set aside, the termination of services of both the employees and directed their reinstatement with back wages.

(2) The management of the Bank, which is the petitioner before us, contends that the Tribunal misconstrued regulation 19 and was not justified in characterising the findings of the domestic Tribunal as perverse and its funding a respect of Venkataraman as not supported by evidence.

(3) The limits of the jurisdiction of the Industrial Tribunal over findings in a domestic enquiry are not in dispute. The Tribunal is not a court of appeal and cannot therefore substitute its own judgment with that of the domestic tribunal. Its powers of interference are confined to certain grounds, namely (1) want of good faith on the part of the domestic tribunal (2) victimisation or unfair labour practice, (3) bias of the management or violation of the principles of natural justice and (4) the finding of the domestic tribunal being based on no evidence or completely baseless or perverse. Vide India Iron and Steel Co. Ltd. v. Their Workmen, 1958 SCR 667: (AIR 1958 SC 130). It has not been argued for the management that the Industrial Tribunal here exceeded its limits or acted without jurisdiction. Regulation 19 states:

"An employee shall not solicit or accept any gift from a constituent on the bank or from a subordinate employee."

The Tribunal reasoned that a gift implied that it benefited the person who accepted it and that therefore accepting or soliciting by a bank employee form a constituent or a subordinate employee of the Bank donations to the funds of the Union did not come within the purview of that inhibition under the regulation. The Tribunal considered that there was no compelling reason to extend the prohibition to such donations.

We are unable to share its view. In our opinion, the regulation is wide enough to cover such donations. Acceptance by an employee of a gift need not necessarily be for his own benefit and may well be for impersonal purposes. The object of the regulation is to prevent an employee form placing himself under an obligation to a constituent of the bank or a subordinate employee. It will not be any the less an obligation because the donation received or solicited by the employee is not intended for himself but for the pupils of the Union of which he is a member. We accept the contention for the management, on the scope of regulation 19.

(4) On the findings of the Industrial Tribunal in respect of the third and fourth charges, it is true, s pointed out by it, there is nothing in the regulations to constitute false grounds in leave applications into acts of misconduct. But we are unable to accept that in the absence of any such regulation, it will not be permissible for the Management to terminate the services of an employee on that ground. Regulations 37 to 42 deal with privilege and causal leave and regulation 36 provides that notwithstanding anything contained in these regulation, the Bank has the right to refuse to grant leave when it is necessitated by the exigencies of the service. The bank may well, acting under this regulation refuse leave asked for on false grounds. The finding of the domestic enquiry that Sambandam took leave on two occasions on false grounds has not been upset by the Tribunal.

Even assuming that none of the regulations forbade false grounds for leave applications, we are of the view that the regulations are to exhaustive as to categories of misconduct for which an employee may be punished. Counsel for respondents 1 to 3 contends that the regulations in this case are in the nature of standing orders and one cannot travel beyond them. He says that if a particular conduct is not comprehended by the standing orders as an act of misconduct, he cannot be punished for it. In support he relies on the following observations in Buckingham and Carnatic Co. Ltd v. Venkatiah, :

"The certified standing orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service".

We do not think that these observations in any way support counsel's proposition. Where there are standing orders, they would, of course, constitute the terms and conditions of service and to that extent, they will be binding on the parties thereto as a contract. But is does not follow that what is not embodied in the standing orders can never be a misconduct. The standing orders cannot be considered to be exhaustive from that standpoint. If, for instance, an employee commits murder, or other cognizable offence, which is not described in the standing orders which govern the service, as a misconduct, surely it cannot be said that, on that account, he is not guilty of a misconduct making him liable to disciplinary action entailing termination of service. Jagadisan J., in Express Newspapers (Private) Ltd., Madras v. Industrial Tribunal, which arose out of proceedings under S. 33(2) of the Industrial Disputes Act, expressed his view thus:

"It cannot be said that the Standing Orders provided for every kind of misconduct on the part of an employee justifying disciplinary action being taken against him. The standing orders of the petitioner as they stood in 1958 did not provide for a case in which an employee happened to be convicted in a criminal court for an offence involving moral turpitude. It would-be unreasonable to contend that despite such a conviction he would still be deemed not to have committed any misconduct so as to justify removal from service".

We share this view. On facts, the removal from service in that case was on the ground that the employee had availed himself of leave on false reasons.

(5) So far as the second charge against Sambandam is concerned, the Tribunal rightly disagreed with the finding at the domestic enquiry. Though learned counsel for the petitioner did not concede the point he could not convince us to the contrary and id not in fact make any serious attempt to do so. Learned counsel has also not been able to persuade us that the Tribunal was wrong in disagreeing with the finding of the enquiry officer against Venkataraman. He stated that the finding of the enquiry officer was based on inference from the fact that the steno-typist's drawer as found open and that Venkataraman should therefore have opened the drawer with a view to ransack the papers and fish out information for the purpose of his Union. But as rightly observed by the Tribunal, there was no evidence that Venkataraman opened the drawer in order to fish out any information, and thus committed an act of misconduct. The Tribunal's order setting aside the removal of Venkataraman form service is not shown to be vitiated by any error and should therefore stand.

(6) On the observations we have made supra, it follows the Tribunal was not justified in describing as perverse the enquiry officer's findings on charges 1, 3 and 4 against Sambandam. The question then arises whether the Tribunal's award in respect of him cannot be sustained on the enquiry officer's finding on the second charge. Generally speaking, where an order is based on more grounds than one which are not alternative, and one or more of them are found to be had there is no evidence or indication that the order would have been made on the basis of the surviving ground or grounds, it will have to be quashed in its entirety. But, the application of this principle may depend on particular subject matter and peculiar facts and circumstances in each case. Swami Motor Transport (Private) Ltd v. Raman and Raman (Private) Ltd., which related to variation of a route under the provisions of the Motor Vehicles Act, 1939 held:

If among several matters taken into consideration there was a matter which was irrelevant or extraneous and the Tribunal was influenced by such irrelevant or extraneous matter also then the order must be quashed because it could not be determined what the Tribunal would have done if such a matter had been excluded".

This principle is not confined to cases, under the Motor Vehicles Act, but is applied to orders made under other branches of law including cases of termination of service under private employment,Kalindi v. Tata Locomotive and Engineering Co. Ltd., Jamshedpur, is an instance of sustaining an order of punishment made by a domestic tribunal against an employee on the ground that the management had made similar orders on some of the findings alone which were not interfered with and there was no reason to think therefore that the management could have discriminated in favour of the dismissed employees there in question.

State of Orissa v. Bidyabhushan, elated to a

Government servant entitled to the protection of Art. 311 of the Constitution. There were two charges in that case against the Government servant, the first relating to the receiving of illegal gratification under five specific heads and the second relating to possession of means disproportionate to his income as sub-registrar. The High Court of Orissa held that the findings of the Tribunal in respect of two of the sub-heads under the first charge were vitiated but found that the rest of the findings of the Tribunal were supported by evidence. In view of its disagreement with the Tribunal in respect of the two heads of the corruption charge, the High Court considered that the State Government should reconsider the punishment and decide whether it would still maintain the punishment of dismissal. The Supreme Court reversing the judgement of the High Court, observed a p. 248 (of Lab LJ): (at pp. 785-786 of AIR):--

"If the order of dismissal was based on the findings on charges 1 (a) and 1 (e) alone, the court would have jurisdiction to declare the order of dismissal illegal but when the findings of the tribunal relating to the two out of five heads of the first charge and the second charge were found not liable to be interfered with by the High Court and those findings established grave delinquency, in our view, the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissed."

(7) The Supreme Court expressed this view not with reference to any principle that if some of the reasons on which an order is based are held to be untenable or erroneous, the order could still, in all circumstances, be sustained but to the nature and scope of the constitutional guarantee afforded to a public servant in respect of his tenure of service and the scope of the court's power to review the reasons which induced the punishing authority.

In Royal Printing Works v. Industrial Tribunal, 1963-2 Lab LJ 60 (Mad) a Division Bench of this court upheld the order which had set aside the order of removal and directed reinstatement of an employee in an Industrial concern, on the ground that, as found by the Tribunal, only some of the reasons for removal but not the other reasons were proper.

We are unable to accept the contention for the petitioner that 1963-2 Lab LJ 60 (Mad.) held anything contrary to . It may also be seen that in the case before the Supreme Court, the first charge was one of corruption under several heads and to the finding of corruption under several heads and to the finding of corruption or more instances.

But in the case of Sambandam, as rightly pointed out by his counsel, there is one ground fatal to the order terminating his service. It is not disputed before us that he was a cashier when he was dismissed from service. A cashier under the regulations comes under "D category". Regulations 25 to 27 make it manifest that the secretary of the Bank has no power to discuss an employee belonging to the D category. Learned counsel for the petitioner could not convince us that it is not so. But he attempted to show that the order of dismissal made by the secretary had the approval of the management. But this point was not taken before the tribunal which had no opportunity therefore to deal with it. Further, we are not satisfied that there was any such approval by the management which may be regarded as a substantial compliance of the regulations 25 to 27. We hold, therefore, that the order of the secretary terminating the services of Sambandam was in excess of his powers.

(8) The petition is dismissed with costs. Counsel's fee Rs. 100.

(9) Petition dismissed.

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