The petitioner is a Co-operative Society, who seeks to sustain an order of dismissal passed by the disciplinary authority being a Disciplinary Sub-Committee, against the 1st respondent. The 1st respondent was the General Manager of the petitioner society and was issued with a charge sheet produced as Ext.R1(a), wherein, 9 charges were levelled against the 1st respondent. A Special Disciplinary Sub-Committee issued the said charge sheet and appointed an independent enquiry officer being an Advocate. Ext.P1 is the enquiry report. As per the enquiry report, the 1st respondent was found guilty of 6 charges excepting charge numbers 4, 7 and 9. Concurring with the findings of enquiry officer, the Disciplinary Committee passed Ext.P2 order imposing a punishment of dismissal from service. The 1st respondent filed an appeal before the Committee evidenced as Ext.R1(f). The Committee by Ext.P3 exonerated the 1st respondent of charged 1 to 3. There is considerable dispute on that count raised by the Counsel for the petitioner, which shall be dealt with later. Despite the 1st respondent being exonerated from charges 1 to 3, the Committee confirmed the punishment of dismissal finding the charge under item numbers 5, 6 and 8 have been proved. 2. The 1st respondent was before the Arbitration Court, which set aside the enquiry and after permitting the management and the delinquent employee being the 1st respondent, to adduce evidence, set aside the order of dismissal, directing reinstatement with full back wages. The order of the Arbitration Court was challenged by the petitioner society before the Tribunal, which confirmed the order of the Arbitration Court by Ext.P5, which is assailed herein.
2. The learned Counsel for the petitioner at the out set contends that though the Arbitration Court be said to have issued a preliminary order, setting aside the enquiry, no copy of the same was served on the management or the respondent and the same was not available in the records of the Arbitration Court also. The Tribunal having found the preliminary order to be not available in the records of the Arbitration Court, went ahead and considered the issue afresh and confirmed the order setting aside the enquiry. The learned Counsel would contend that prejudice is caused to the management insofar as the appellate authority having exercised the original jurisdiction, thus depriving the management of a second look in an appeal, which along could look into the facts. The dispute with respect to the findings of the appellate authority is that, on a reading of the appellate order produced at Ext.P3, it is not discernible that the delinquent employee was exonerated of the charges of 1 to 3.
3. In any event, it is also argued that when the enquiry is set aside, then the management is entitled to lead evidence regarding all the charges. Further on the evidence led before the Arbitration Court, the findings of the Arbitration Court as well as those of the Tribunal are assailed on the ground that, the findings are perverse and are passed on extraneous consideration and both the Courts have failed in appreciating the evidence properly.
4. The learned Counsel appearing for the 1st respondent however would contend that the disciplinary proceedings, which culminated in the year 2006 has resulted in the 1st respondent being kept out of service and the prejudice if any caused insofar as the order setting aside the enquiry being not available in the records of the Arbitration Court could be eminently kept over by this Court looking into the facts. The learned Counsel would quite intending the confined jurisdiction under Article 226 of the Constitution of India invited this Court to look at the bare facts, which would be necessary to consider whether the setting aside of the enquiry was proper or not.
5. The learned Counsel would counter the argument that the appellate order does not indicate exoneration of 1st respondent from charges 1 to 3 by inviting this Court to the appeal memorandum and the clear findings entered into by the appellate authority. The learned Counsel would also place emphasis on the fact that the appellate order was a majority decision with four members of the Committee descending from the order and the punishment being imposed only on five members of the Committee agreeing to it, of which two were the persons who had initially raised the complaint against the General Manager.
6. At the out set, it has to be considered whether the setting aside of the enquiry was proper or not. It is clear from the order of the Tribunal that, what was produced before the Arbitration Court was the enquiry report alone and neither the enquiry proceedings or the documents were produced before the Arbitration Court or the Tribunal. The Tribunal in fact while considering the issue specifically found that the enquiry proceedings were not available in the records of the Arbitration Court, nor was it produced it before the Tribunal in paragraph 8 at page 9 of the order.
The aspect on which the sustainability of the enquiry was challenged ,was the production of documents numbered as M9 to M39 were merely produced before the enquiry officer and not marked through any witnesses. It is an admitted position that witnesses were examined by the management before the enquiry officer, in which only 8 documents were marked through such witnesses being M1 to M18.
7. Then on a subsequent date, the presenting officer produced M9 to M30 and again on another day produced M30 to M39. The delinquent employee immediately on production of such documents even when a copy being served on the delinquent employee filed Ext.R1(c) objections before the enquiry officer, wherein, the specific objection taken was that out of the four witnesses examined, the deposition was only two persons were supplied to him. The marking of documents M9 to M30 was also objected to on the ground of they not being produced or proved through a witnesses and the copies not having been supplied to the delinquent employee. The subsequent production of M31 to M39 was also objected to in Ext.R1(c) by the hand written not appended. The enquiry officer, as such accepted position of both parties in his deposition before the Tribunal, admitted having received Ext.R1(c) objection. Neither was any consideration made on Ext.R1(c) as stated above, nor was any proceedings were produced before the Arbitration Court.
8. The petitioner in his argument note filed as Ext.R1(d) and also in his objection to enquiry report produced at Ext.R1(e) took a specific stand that the documents M9 to M39 were marked behind its back and he was not given an opportunity to challenge that same or even examined it. The enquiry officer does not at all refer to the said objections or the argument raised in its enquiry report. The Disciplinary Committee or the appellate authority also ignored the specific contentions taken by the delinquent employee. The evidence of the enquiry officer would in fact clearly establish that M9 to M39 were produced behind the back of the delinquent employee having been produced before the enquiry officer by the presenting officer.
9. The contention raised on behalf of the learned Counsel for the petitioner is that as long as the genuineness of such documents are not under challenge, there was no prejudice caused to the delinquent employee and the enquiry could not have been set aside on that aspect also. The learned Counsel would also place reliance on the decisions in Dy. General Manager, S.B.I v. Roy Samuel [2004 KHC 690] and Birendra Kumar Singh v. Commandant, Central Industrial Security Force, Trivandrum and other [2014(3) KHC 208] would urge before this Court that what is essential in a disciplinary proceedings not a finding of proof beyond reasonable doubt as is required in a criminal proceedings.
10. This Court is not convinced that the said proposition would be applicable on the facts of this case. Definitely, a document produced in disciplinary officer for it is to be put against the delinquent employee would have to be produced in the proper manner marking it through a witness who can speak about the genuineness of the documents. The production of such documents through the presenting officer directly to the enquiry officer even without supplying the copies to the delinquent employee, is definitely a violation of the principles of natural justice. The delinquent employee having not even get the opportunity to look at the documents cannot be said to have raised no question about the genuineness of the documents. The admitted case is that the enquiry proceedings were not produced before the Tribunal or the Arbitration Court. The production of the documents without marking it through a witness and without supplying the copies is also admitted.
11. In such circumstance, the sustainability of the enquiry report has to be found against the management and this Court does not find any infirmity in the Arbitration Court or the Tribunal having set aside the same. The prejudice caused insofar as the management not being given a second opportunity would be effaced insofar as this Court has given into the specific facts looking into the records as also the order of the Tribunal.
12. The next question is as establishment of the charges on which definitely punishment was imposed was confirmed by the appellate authority. In considering the same, initially one has to consider whether the appellate authority has in fact exonerated the 1st respondent from charges numbered as 1 to 3. There is no dispute that the charge numbers 4, 7 and 9 were not proved even as per the enquiry officer's report. Though the enquiry as such is set aside, the disciplinary authority did not defer from the findings of the enquiry officer and imposed punishment only on the charges 1 to 3 and 5, 6 and 8. In appeal the specific ground raised by the delinquent employee is indicated in Ext.R1(f) at ground 'L', which pertain the charges to 1 to 3, the same is extracted hereunder.
L. Charges 1 to 3 pertain to the appointment of 10 Appraisers and 3 Peons. All those appointments were made by the then Board of Directors and I was only obeying their dictates. The present Board of Directors have confirmed those employees. The Joint Registrar has not objected any of those appointments. All such employees are still continuing in the services of the Bank. Myself alone is crucified. All these aspects have been proved in the enquiry through oral as well as documentary evidence.
13. The appellate authority, in Ext.P3, has specifically found in two places in the appellate order that ground 'L' 1 to 3 is to be accepted. It is also to be noticed that after examining the matter, the appellate authority has also specifically referred to charges 5, 6 and 8 to impose punishment in paragraph 5 to confirm the punishment of dismissal. At the operative portion also it is specifically stated by the appellate authority that, with respect to 1 to 3 raised as ground 'L', all the other grounds in the appeal are rejected. The 1st respondent has exonerated from charges 1 to 3.
14. The contention with respect to the management being sustain all the charges on the enquiry being set aside is not sustainable. The disciplinary authority have thought it fit to impose punishment only with respect to the charges 1 to 3 and 5, 6 and 8. The appellate authority has exonerated the 1st respondent of charges 1 to 3. What remains would only be the charges 5, 6 and 8 and the evidence led could only be in sustenance of the aforesaid charges.
15. The charges referred to in Ext.R1(a) as 5, 6 and 8 have been translated by the petitioners and extracted in the memorandum of writ petition, which is also hereunder.
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. ] N ] ] U ] ÿV r ] ] ] V U ] ] ] ] CEO ] ] V V r ] r ] ÿ V ] ÿ ] ] ÿU V ]. ] ] N U ] ÿU N ] ÿV ] ÿ . ] r ] ] EML ] ] ] Vÿ U ] ] N V ] ] U ] U r] U ÿU r] ] V ] V r ] ] ] ] ] ] r] ] ] V 10 ] ] U U ] ] N ] ] V ] V ] ] U ] ÿ .
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16. The Arbitration Court dealt with charges 5 and 6, in paragraph 4 of its order at Ext.P4, the charge was with respect to the Bank being defrauded of Rs.10,00,000/- in a loan transaction numbered as EML No.38 availed of from the morning and evening branch of the petitioner Bank. The specific allegation is that the petitioner did not take any action against the Manger, despite 1st respondent, General Manager being informed of the said fraud played on the Bank. The Branch Manager of the morning and evening branch was examined as DW1 before the Tribunal, who was unable to say anything with respect to the defrauding of the Bank. It was also noticed before the Arbitration Court that there was no document produced by the management to substantiate the charges.
17. In this context, it is to be reiterated that despite many documents having been marked before the enquiry officer, the marked documents were not produced along with the enquiry filed. The enquiry report having been set aside, the Bank did not choose to produce the said document through its witnesses examined before the Arbitration Court. The proof affidavits filed indicated as Exts.P6, P7 and P8 does not indicate any marking of the documents, but only refers to the same as produced before the enquiry officer. The documents produced before the enquiry officer not being a part of the enquiry proceedings produced before the Arbitration Court and the same having not been marked, when the witnesses were examined before the Arbitration Court to enable enquiry copy the management has miserably failed to substantiate the charges leveled against the 1st respondent. With respect to the 8th charge also, the Arbitration Court by in paragraph 5 specifically found that DW3, who was examined was not aware of the said transaction and was unable to state anything to find the 1st respondent guilty of the aforesaid charges. It was in such circumstance that the Arbitration Court reverse the order of dismissal which is confirmed in Ext.P5 order of the Tribunal.
18. The Tribunal has elaborately considered the charges and has in fact found that EML No. 38 with respect to the 5th charges was availed from the morning and evening branches of the appellate at mission quarters were as the query upon which the charges was raised was to the regular branch admission quarters itself. It was hence that DW1 before the Arbitration Court failed to depose anything linking the 1st respondent with the defalcation that agreed in the morning and evening branch at the mission quarters. The Manager of the regular branch admission quarters merely deposed that he had answered a query with respect to the loan in the negative since, admittedly no such loan was availed from the regular branch at the mission quarters. The second part of the charge No.6 was found to be with respect to a loan sanction of the Parvattani branch of the appellate Bank. The charge No.8 was also with respect to a transaction at Sakthan Thampuran branch of the appellant Bank. There was nothing to evidence that the discrepancy in the said transaction was brought to the notice of the 1st respondent who was the General Manager having over all supervision and having its office at the head office of the branch. The petitioner Bank is said to have been 16 branches and the General Manager is conferred with the power of over all supervision. On an examination of Exts.P4 and P5, this Court is unable to find any infirmity in the same. The evidence which was led by the management was insufficient insofar as none of the documents which were relied on in the enquiry were produced or marked before the Arbitration Court. The witnesses examined were also unable to speak on any defalcation committed by the 1st respondent herein.
19. Considering the findings on facts under Article 226, this Court exercises a confined jurisdiction were interference would be warranted only if there was perversity on the face of the Tribunal or unreasonableness or even appreciation of evidence on extraneous consideration. None of this infirmity can be found at Exts.P4 and P5. The order of reinstatement with back wages cannot be interfered with Article 226.
The writ petition would stand dismissed.
K. VINOD CHANDRAN, JUDGE SB