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Judgment
The petitioner/employee, having been dismissed from service by the first respondent/Bank Management by an order dated 17.4.1987, raised an
industrial dispute in I.D.No.167 of 1990 before the Labour Court, Madurai and the same was transferred as I.D.No.81 of 1992 of the Labour
Court Thiruchirapalli viz., the second respondent herein, who by an award dated 10.3.1993 confirmed the order of dismissal dated 17.4.1987.
Hence, the petitioner seeks a writ of certiorarified mandamus under the following facts and circumstances of the case.
A disciplinary action was initiated against the petitioner/employee by the first respondent/management by a memo dated 7.4.1986 for alleged
charges of misappropriation of funds of the first respondent/management to the tune of Rs.100 on 8.1.1982 and a further sum of Rs.517 on
6.12.1986 towards his travelling allowance and encashment of leave to his credit, respectively.
It is further alleged that when the petitioner was under interim suspension, he had abused his co-employees viz., Thiru. Lakshmanan and
Thiru.Rajan and assaulted them with chappal on 21.8.1986, which warranted the issue of a second charge memo dated 9.2.1987 to the petitioner.
The petitioner submitted his explanations dated 3.11.1986 and 27.3.1987 to the charge memos dated 7.4.1986 and 9.2.1987 respectively. Not
satisfied with his explanations, a domestic enquiry was ordered, given a hearing and a fair and reasonable opportunity. Finding ultimately that the
charges were held proved, he was dismissed from service by an order dated 17.11.1987.
Mr. L.N. Prakasam, learned counsel for the petitioner challenges the impugned order of dismissal dated 17.11.1987 on the following grounds;
(i) the first respondent/management was not regular in paying the subsistence allowance and therefore, the petitioner was deprived of reasonable
opportunity to defend himself. Consequently, the impugned order of dismissal is bad in law. In this regard, Mr. L.N. Prakasam, learned counsel for
the petitioner relies upon the following decisions;
(a) Fakirbhai Fulabhai Solanki Vs. Presiding Officer and Another, ; (b) Capt.M.Paal Anthony v. Bharat Gold Mines Lid. and another, 1999 (3)
L.W. 351
(ii) Mr. L.N. Prakasam, learned counsel for the petitioner placing reliance on (a) Rama Kant Mistra v. State of U.P. 1982 (I) LLJ 472 and (b)
Aditya Mills Ltd. v. Ram Dayal and others, 1974 L.I.C. 25. contends that the impugned order is liable to be quashed on the ground of
victimisation, as the first respondent/management failed to take into consideration the long and uninterrupted service rendered by the petitioner,
prior to the alleged dates of misconduct, and
(iii) In any event, the first respondent/management ought to have taken into consideration the order dated 24.6.1987 made in Criminal Appeal
No.35 of 1987 on the file of the learned Assistant Sessions Judge, Pudukottai, wherein the petitioner was acquitted in the criminal case with regard
to the charges registered against him, on the same incident said to have taken place on 21.8.1986.
6.1. Per contra, Ms.Narmadha Sampath, learned counsel for the first respondent/management, at the outset, pointed out that the decision of the
criminal court in Criminal Appeal No.35 of 1987 dated 24.6.1987 is not relevant, wherein the petitioner had not been acquitted on merits, but was
acquitted on technical grounds holding that ""the Chambers of the Special Officer in the first respondent/management could not be construed as a
public place"". It is further contended that, in any event, the criminal case is not with reference to the charge of the alleged misappropriation of funds
of the bank referred to above, but for having assaulted the Special Officer, which incident said to have taken place on 21.8.1986. It is argued that
the assaulting a co- worker is a serious misconduct warranting dismissal of the petitioner from service, as held in Basu Deba Das Vs. M.R. Bhope
and Another, .
6.2. That apart, it is contended that even though the petitioner was entitled for travelling allowance as well as encashment of leave to his credit, he
is not entitled to unilateraly withdraw the same, without proper sanction by the Special Officer of the first respondent/management as per the bye-
laws and in the absence of such proper sanction and disbursement of funds by the management to the petitioner, the unilateral withdrawals of a sum
of Rs.100 on 8.1.1982 towards travelling allowance and Rs.517 on 6.12.1985 towards encashment of leave to his credit by the petitioner, from
the funds of the first respondent/bank management, amounts to misappropriation of the same. Since the petitioner had admitted such withdrawals,
the charges in that regard stand proved. Once misappropriation of funds stood proved, it is argued that showing sympathy to the petitioner is
uncalled for, as held in Janatha Bazar (South Kanara Central Co-operative Whole Sale Stores Limited) Etc. Vs. The Secretary, Sahakari
Noukarara Sangha Etc.,
6.3. The alleged non-payment of subsistence allowance is strongly disputed by the learned counsel for the first respondent/bank management on
the grounds that such contention was not raised before the Labour Court and therefore, the same cannot be permitted to be raised for the first time
before this Court and that in any event, the allegation is false and incorrect, as the petitioner was paid the entire subsistence allowance and the
same was duly acknowledged by him under stamped receipts.
6.4. with regard to the alleged victimisation that the first respondent/bank management had not considered the long and uninterrupted service of the
petitioner, Ms.Narmadha Sampath, learned counsel for the first respondent/bank management, contends that the length of service of a workman is
not relevant in the imposition of punishment for a proved misconduct, as held in Sri Gopalakrishna Mills Pvt. Ltd. Vs. Labour Court and Another, .
7.1. I have given careful consideration to the submissions of both sides.
7.2. A careful perusal of the order dated 24.6.1987 in Criminal Appeal No.35 of 1987 makes it clear that the petitioner was not acquitted of the
charges levelled against him before the Criminal Court on the alleged incident said to have taken place on 21.8.86. That apart, as rightly pointed
out by the learned counsel for the first respondent/bank management, though the trial court convicted the petitioner, on appeal, the learned
Assistant Sessions Judge, Pudukottai, acquitted the petitioner on a technical ground that ""the Chambers of the Special Officer of the first
respondent/bank management could not be construed as a public place"". Therefore, in my considered opinion, the order dated 24.6.1987 in
Criminal Appeal No.35 of 1987 is directly relevant to the charges of misappropriation of funds of the first respondent/bank management at all, as
to which the impugned disciplinary action was initiated against the petitioner.
7.3. Even though the refusal of payment of subsistence allowance would certainly result in denial of opportunity to the petitioner to defend himself,
as such denial amounts to a violation of, principles of natural justice, as held in Fakirbhai Fulabhai Solanki Vs. Presiding Officer and Another, as
such non-payment of subsistence allowance could be likened to slow- poisoning the employee, and would gradually starve himself ;o death, as
held in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another, 1993 (3) LW 351 it is, never the case of the petitioner that due to non-
payment of subsistence allowance, he could not participate in the enquiry at all. On the other hand, in the records produced by the first
respondent/bank management, it is . stated that the petitioner had been paid the subsistence allowance and the petitioner himself had
acknowledged for having received the same under proper stamped receipts and therefore. I do not find any substance in the grievance of the
petitioner in this regard.
7.4. It is true, victimisation is a strong ground on which the order of dismissal could be set aside where the workman concerned is innocent and yet
he is being punished for no fault on his part, as he has in some way displeased his employer on the one hand and on the other hand, where the
punishment imposed on such innocent employee in a manner shockingly disproportionate to the misconduct alleged against him, as held in Aditya
Mitts Ltd. v. Ram Dayal, 1974 LIC 25, of course, ignoring the unblemished service rendered by the worker prior to the date of the alleged
misconduct, as held in Rama Kant Misra v. State of U.P. 1982 (I) LLJ 472. But in the instant case, even though the petitioner himself is entitled for
travelling allowance and to encash the leave to his credit, he is not authorised to do so without proper sanction of the Special Officer of the first
respondent/bank management as per the bye-laws. In the absence of such proper sanction for such withdrawals viz., Rs.100 towards travelling
allowance and Rs.517 for encashing the leave to his credit from the funds of the first respondent/management, in my considered opinion, the
impugned withdrawal of the funds of the first respondent/bank management would certainly amount to misappropriation of funds, particularly when
the petitioner is working in a Co-operative Bank where he is dealing with the funds of the public, who have entrusted their money with the bank.
7.5. It is a settled position in law, as held by the Apex Court in U.P.S.R.T. Corpn. v. Subhash Chandra Sharha, 2000 (2) L.L.N. 402, even a
threat to assault a co-employee amounts to a serious misconduct and the punishment of removal could not therefore be construed as shockingly
disproportionate to the charges held proved. The Bombay High Court in Basu Deba Das Vs. M.R. Bhope and Another, held that an act of
assaulting the co-worker is a serious misconduct warranting dismissal from service.
7.6. If that be so, once misappropriation is proved and the assault of co-employee is also found proved by the Enquiry Officer in the instant case, it
may not be proper for this Court to interfere with the quantum of punishment, merely on the ground of the length of service put in by the petitioner
in the first respondent/bank management, as held in Sri Gopalakrishna Mills Pvt. Ltd. Vs. Labour Court and Another, . as mere length of service of
the petitioner would not be relevant in imposing punishment for a proved misconduct, nor the length of service of an employee could itself.be taken
as a license to commit such misconduct. Under such circumstances, showing sympathy to the petitioner is not called for by this Court, as held in
Janatha Bazar (South Kanara Central Co-operative Whole Sale Stores Limited) Etc. Vs. The Secretary, Sahakari Noukarara Sangha Etc., .
In the result, finding no merits in the writ petition, the same is dismissed. No costs.