Kerala High Court
The Irinjalakuda Co-Operative ... vs Smt.K.Smitha
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937
WP(C).No. 27526 of 2015 (M)
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PETITIONERS:
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1. THE IRINJALAKUDA CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LIMITED NO.R-312, AGED 57 YEARS,
HEAD OFFICE, IRINJALAKUDA,
REPRESENTED BY ITS SECRETARY.
2. THE BOARD OF DIRECTORS,
THE IRINJALAKUDA CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LIMITED NO.R-312,
IRINJALAKUDA, REPRESENTED BY ITS PRESIDENT.
BY ADVS.SRI.V.A.MUHAMMED
SMT.P.A.JENZIA
RESPONDENTS:
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1. SMT.K.SMITHA,
W/O.RAJESH, ERINGAL HOUSE, P.O VELUTHUR,
KUNNATHANGADI, THRISSUR DISTRICT, 680 012.
2. THE CO-OPERATIVE ARBITRATION COURT (NORTHERN),
KOZHIKODE 673 020,
REPRESENTED BY ITS PRESIDING OFFICER/ARBITRATOR.
3. THE KERALA CO-OPERATIVE TRIBUNAL,
THIRUVANANTHAPURAM 680 033,
REPRESENTED BY ITS SECRETARY.
R1 BY ADV. SRI.GOPIDASAN.V.KATTEDATH
R1 BY ADV. SRI.C.CHANDRASEKHARAN
R BY SRI. G. GOPAKUMAR, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24-02-2016, ALONG WITH WPC. 28069/2015, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 27526 of 2015 (M)
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APPENDIX
PETITIONER'S EXHIBITS :
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EXHIBIT P1. COPY OF THE MEMO OF CHARGES DATED 18.6.09.
EXHIBIT P2. COPY OF THE ENQUIRY REPORT DATED 8.4.10.
EXHIBIT P3. COPY OF THE ORDER DATED 28.4.10 OF THE BANK.
EXHIBIT P4. COPY OF THE LETTER OF THE BANK DATED 20.8.10.
EXHIBIT P5. COPY OF THE AWARD IN ARC 164/11 OF THE CO-OPERATIVE
ARBITRATION COURT DATED 18.10.14.
EXHIBIT P6. COPY OF THE JUDGMENT IN APPEAL NO.97/14 DATED 30.5.15 OF
THE CO-OPERATIVE TRIBUNAL.
RESPONDENTS' EXHIBITS:
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EXT.R1(a): TRUE COPY OF THE JUDGMENT IN C.C.NO. 770/2009 DATED
07.03.2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKKUDI.
EXT.R1(b): TRUE COPY OF THE JUDGMENT IN CRL.R.P. NO. 1720/2012 DATED
04.06.2014 OF THE HON'BLE HIGH COURT OF KERALA.
/True Copy/
P.A to Judge.
rv
DAMA SESHADRI NAIDU, J.
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W.P. (C) Nos. 27526 & 28069 of 2015
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Dated this the day of February 2016.
JUDGMENT
The first respondent, while working as a Junior Clerk in the first petitioner Bank, faced disciplinary proceedings on the allegations of fraud and misappropriation. Resultantly, he was subjected to the major punishment of dismissal from service. When the intra- departmental appeal proved futile, she filed ARC No.164 of 2011 (originally ARC No. 164 of 2010) and invited Ext.P5 award. The learned Arbitration Court, in reversal, directed the first petitioner Bank to reinstate the petitioner without back wages, however.
2. Aggrieved, the first petitioner Bank filed Appeal No. 97 of 2014 before the Co-operative Tribunal, Thiruvananthapuram. On the other hand, assailing the denial of back wages despite reinstatement, the first respondent filed Appeal No. 2 of 2015.
3. As can be seen from the record, the learned Tribunal took up both the appeals and disposed them of through Ext.P6 common W.P.(C.) Nos. 27526 & 28069 of 2015 -2- judgment. Though the learned Tribunal has not interfered with the substantial findings of the learned Arbitration Court as regards the merits of the matter, it has, however, held that an employee could not be thrust upon an unwilling employer. In other words, after setting aside the order of reinstatement, the Tribunal remanded the matter to the Arbitration Court to consider the question of compensation to be awarded to the first respondent in lieu of reinstatement.
4. Further aggrieved, the first petitioner Bank has filed the present writ petitions assailing the common judgment passed in Appeal Nos. 97 of 2014 and 2 of 2015.
5. In the above factual backdrop, the learned counsel for the petitioners has submitted that once the Arbitration Court or the Appellate Tribunal has come to a conclusion that the enquiry has been vitiated, the proper course of action ought to have been relegating the matter to the disciplinary authority. For it has to hold a fresh enquiry from the stage where the enquiry had been found vitiated. In support of his submissions, he has placed reliance on Chairman, Life Insurance Corporation of India and others v. A. Masilamani1. 1 2013(6) SCC 530 (Para 16) W.P.(C.) Nos. 27526 & 28069 of 2015 -3-
6. In further elaboration of his submissions, the learned counsel for the petitioners has also contended that the enquiry report is exhaustive, having specific findings concerning the first respondent's culpability in stealing two cheque leaves and encashing them for an amount of Rs.1,00,000/- through one of her close relatives. The first respondent is alleged to have forged the signatures of the other officials of the Bank in that process. In this regard, he has submitted that the first respondent has had sufficient opportunity and even let in evidence before the Enquiry Officer by examining her own witnesses.
7. Further drawing my attention to the statements of witnesses, as have been reflected in the enquiry report, the learned counsel has contended that the order of the Arbitration Court and also the judgment of the Tribunal have been vitiated on account of the perversity of findings resulting in failure of justice. Thus, the learned counsel has urged this Court to set aside the Ext.P6 judgment of the learned Tribunal and restore the order of the disciplinary authority:
the first respondent's dismissal from service.
8. Per contra, the learned counsel for the first respondent has, with equal vehemence, contended that in the light of the concurrent W.P.(C.) Nos. 27526 & 28069 of 2015 -4- findings rendered by the Arbitration Court and the Appellate Tribunal as regards the Bank's abject failure to bring home the first respondent's guilt, neither Ext.P5 nor Ext.P6 calls for any interference.
9. Expatiating on the adjudicatory ambit of the writ of certiorari, the learned counsel would contend that unless there is a question of law to be determined, this Court would be loath to interfere on a pure question of fact which stood concurrently confirmed. To buttress his contention, the learned counsel has placed reliance on Swaran Singh & another v. State of Punjab & others2 and the State of Orissa v. Murlidhar Jena3.
10. The learned counsel, taking me through the enquiry report, as well as Ext.P6 judgment of the Appellate Tribunal, has strenuously contended that the petitioner Bank has grossly failed to discharge its burden of establishing any fraud or misappropriation of funds by the first respondent. He has also submitted that the very material witnesses, such as the payee of the cheque, have not been examined by the petitioner Bank. According to him, the disciplinary authority, instead of letting the petitioner Bank establish the first respondent's 2 (1976) I S.C.W.R.40 3 AIR 1963 SC 404 W.P.(C.) Nos. 27526 & 28069 of 2015 -5- guilt, has cast the entire burden on the first respondent. It has thus held in the negative that the first respondent could not establish her innocence. The burden of proof, contends the learned counsel, has been misplaced resulting in miscarriage of justice. Eventually, the learned counsel has urged this Court to dismiss the writ petition as both Exts.P5 and P6, according to him, are unexceptional.
11. Heard the learned counsel for the petitioner Bank, the learned counsel for the first respondent and the learned Government Pleader, apart from perusing the record.
12. Apart from initiating departmental proceedings, the petitioner Bank registered a crime against the first respondent in C.C. No. 770 of 2009 before the Judicial First Class Magistrate Court, Chalakudy. The allegation is that on 22.04.2009 the first respondent while working at Mala Branch of the petitioner Bank stole two cheque leaves, used one cheque to draw Rs.1,00,000/- from the Bank's account maintained with the District Co-operative Bank. She has forged the signatures of the officers concerned, used the seal of the Bank, and drew the amount using one of her relatives as the payee. On the same allegations, the first respondent has been subjected to W.P.(C.) Nos. 27526 & 28069 of 2015 -6- disciplinary proceedings departmentally as well.
13. The Enquiry Officer has examined the following witnesses:
Sl. Name and designation Witness
No. the Arbitratio
Enquiry n
1 K. RaviKumar, Branch Manager PW1 DW2
2 P.L. James, Cashier PW2 DW4
3 N.R. Sivadasan, Peon PW3 DW3
4 A. Sasidharan, Senior Supervisor PW4 ---
Adithya Varma, Director Board PW5 ---
5 Member
A.C.S Warrier, President of the PW6 DW5
6 Managing Committee
7 Rajan Chacko, Secretary PW7 DW6
8 Murali, Driver --
9 Chandrika PW9 --
Siji Varghese, Sub Inspector at Mala PW10 --
10 Police Station
Varghese R, Manager of the drawee PW11 --
11 Bank
14. Based on the evidence of the above witnesses, the Enquiry Officer has found that no outsider could have accessed the cheque- book kept in the Bank. Nor was there any chance of an outsider knowing the pattern of the signature of the authorised signatories of W.P.(C.) Nos. 27526 & 28069 of 2015 -7- the Bank, whose signatures were allegedly found forged on Ext.P2 cheque leaves. The first respondent, according to the Enquiry Officer, has specifically deposed in her evidence that none of her colleagues or the witnesses examined had displayed any animosity towards her.
15. Further, the Enquiry Officer has found as incriminating the first respondent's absence from work from 27.04.2009; that is, soon after the crime came to light. A perusal of the enquiry report reveals that two factors have significantly contributed to the Enquiry Officer's conclusion that the first respondent is guilty of stealing the two cheque leaves from the custody of the Cashier/Manager: (1) that the fist respondent confessed to the President of the Managing Committee her crime; (2) that she voluntarily repaid Rs.1,00,000/-, the amount equivalent to that initially withdrawn from the Bank's account maintained with the District Co-operative Bank using Ext.P2 cheque leaf.
16. From the same enquiry report, it can be gathered that whatever be the contriving circumstances, the first respondent, the junior most staff in the Organisation, had all the accusing fingers pointed towards her. In that context, she submitted an explanation:
W.P.(C.) Nos. 27526 & 28069 of 2015 -8- She had already been facing problems about her entry into service on compassionate grounds. In that context, the President of the Managing Committee advised her to make good the amount, so that there would not be any pecuniary loss to the Bank. And the issue could be closed without further probe.
17. It is the first respondent's specific contention that under those compelling circumstances, only with a view to saving her employment, she had thought it advisable to buy peace by paying the said amount of Rs.1,00,000/-, the withdrawal of which she had nothing to do with. Be that as it may, in the light of the major punishment imposed on her, she filed ARC No. 164 of 2011.
18. During the trial, the Arbitration Court has set aside the enquiry report and permitted the parties to let in evidence. Accordingly, most of the witnesses examined by the enquiry officer, with certain omissions as was shown in the above table, have again been examined.
19. Eventually, after an elaborate discussion of various issues, duly taking note of the acquittal the first respondent has earned in the crime, the learned Arbitration Court has held, rightly, that the enquiry W.P.(C.) Nos. 27526 & 28069 of 2015 -9- officer has exceeded his brief, apart from concluding that the enquiry report suffers from many infirmities. It has also concluded that the intra-departmental authority has dismissed the appeal arbitrarily without assigning any reasons. Eventually, the Arbitration Court has held that the first respondent was entitled to reinstatement, but the issue of back wages had to be decided by the Bank in accordance with law.
20. Both the petitioner Bank and the first respondent filed Appeal Nos. 97 of 2014 and 2 of 2015 respectively assailing Ext.P5 award. Relying on a judgment of this Court, the Tribunal, through Ext.P6 common judgment, has held that the relationship between the employer and the employee is contractual, being that of master and servant. According to the Tribunal, the termination of that relationship would not entitle the servant to a declaration that his employment had not been validly terminated. The order of reinstatement which indirectly enforces the personal contract of service, thus, is against law.
21. Weighed with the above reasoning, the learned Tribunal set aside the order of reinstatement.
W.P.(C.) Nos. 27526 & 28069 of 2015 -10-
22. The learned Tribunal has, however, proceeded further to observe that the first respondent, the employee, is not remediless:
she can seek compensation. The quantum of compensation has to be arrived at, it observes, by taking into account the first respondent's service, the salary which she was drawing at the time of dismissal, the remaining period of service she has been left with, the amounts, if any, to recovered from the first respondent, etc.
23. In the end, observing that it has no material before it to undertake the exercise of fixing the compensation, the learned Tribunal remanded the matter for the said purpose to the Arbitration Court.
24. As has already been adverted to, apart from a domestic enquiry, the incident of somebody stealing the cheque and encashing one of the leaves for Rs.1,00,000/- has led to registration of Crime No. 315 of 2009 for offences under Sections 465, 468, 471 and 420 IPC. In C.C. No. 770 of 2009, the first respondent earned an acquittal through Ext.R1(a) judgment dated 07.03.2012 from the Judicial First Class Magistrate, Chalakudy.
W.P.(C.) Nos. 27526 & 28069 of 2015 -11-
25. Granted that the parameters for fixing the guilt in criminal proceedings and that of misconduct in the domestic enquiry are entirely different, this Court, nevertheless, feels it appropriate to examine the line of judicial thinking adopted by the criminal court while acquitting the first respondent. The Judicial First Class Magistrate has observed that, as per the evidence of the prosecution, every person working in the Bank had free access to the cheque- books as they had been placed on the Bank's counter. On the other hand, there is no positive evidence that first respondent had dishonestly removed the cheque leaves. Further, no evidence is lead to establishing that the first respondent had any hand in the presentation of the cheque for encashment and, ipso facto, in withdrawing the money.
26. It pays to note that an official of the District Co-operative Bank, the drawee bank, has deposed that the signatures on the cheque leaf tallied and the drawee bank did not entertain any doubt about the genuineness of the signatures. It is a matter of record that the enquiry officer took upon himself the task of comparing the signatures on the cheque leaf; he has concluded that the first W.P.(C.) Nos. 27526 & 28069 of 2015 -12- respondent forged the signatures on the cheque.
27. Given the fact that numerous witnesses have been examined both by the Enquiry Officer and by the Arbitration Court, I had, during the hearing, felt it desirable to examine the depositions of those witnesses and been inclined to issue a rule nisi summoning the record from the Tribunal. The learned counsel for the first respondent, however, volunteered to produce the translated copies of the depositions of all the witnesses both before the Enquiry Officer and before the learned Arbitrator. He did file those documents painstakingly translating all of them.
28. Before the Arbitration Court, the then Branch Manager examined himself as DW2. He went on record that he did not know under which circumstances the allegedly stolen cheque came to be passed or encashed. He has also deposed that the Bank has not complained to any authority that the District Bank, the drawee Bank, passed the cheque improperly verifying the signatures on the instrument. He had, indeed, admitted that the cheque-books were not kept properly: the table of the cashier in which the cheque-books were kept was not securely locked, then. And even the seals of the W.P.(C.) Nos. 27526 & 28069 of 2015 -13- Bank were kept on the table, thus making them accessible to all the employees, without exception.
29. It is further pertinent to note that on the very same day when the cheque was said to have been stolen; that is, on 22.04.2009, it was presented for encashment. The witness averred that the first respondent stayed in the Branch throughout the working hours, and she had no occasion to leave the Branch.
30. The Secretary of the Bank, examined as DW1, has deposed that he did not have any direct knowledge about the case. DW3, the Peon of the Branch, apart from confirming that the first respondent remained in the Branch on the fateful day, did attest to the fact that he had no knowledge as regards who stole the cheque and who forged the signatures on it.
31. When confronted with a specific question concerning who withdrew the cash from the drawee Bank, DW3 submitted that one Ms. Sunitha signed on the back of the instrument as the payee. DW4, working as a Cashier, then, in the Branch, admitted that he was responsible for the safe custody of the cheques and cash. He has further submitted that he has not seen the first respondent either W.P.(C.) Nos. 27526 & 28069 of 2015 -14- signing the cheque or drawing the money. He has, nevertheless, stated that the demand draft presented by the first respondent for Rs.1,00,000/- was encashed by the Bank (the first respondent's coerced repayment).
32. The President of the Managing Committee, having been examined as DW5, did admit that the District Co-operative Bank might have passed the cheque only after a comparison of the signatures on the instrument with the specimen signatures. Apart from stating lack of personal knowledge as regards the incident, he further admits that only the first respondent was subjected to disciplinary proceedings as well as criminal prosecution. The depositions of other witnesses too does not help the case of the petitioner Bank.
33. The first respondent, having examined herself as PW1, has reiterated her consistent stand as had been found in the enquiry report: that she was threatened by the President of the Managing Committee that she would lose her job being a junior most staff and that she should pay the amount in question to bury the issue. Since the principal allegation is that the first respondent went to the W.P.(C.) Nos. 27526 & 28069 of 2015 -15- President's house along with his brother-in-law and her aunt, she examined, before the Arbitration Court, her brother-in-law as PW2. But, he had denied his going to the President's house along with the first respondent.
34. From the record, it can be gathered that the cheque is said to have been presented for encashment by one Ms. K. Sunitha, who has never been examined either before the Enquiry Officer or before the Arbitration Court. On the other hand, before the Enquiry Officer, one Ms. Chandrika, said to be the first respondent's aunt, being her mother's younger sister, was examined as a witness. She has denied the whole episode.
35. As has rightly been pointed out by the learned Arbitrator and also the Judicial First Class Magistrate, it defies logic why the signature or writing on Ext.P2 cheque leaf has never been subjected to any expert examination. Further, the person, who is said to have put the signature on the back of the instrument and received the money from the drawee Bank, that is the payee, has never been examined at any stage. A panoptic study of the enquiry report reveals very clearly that the first respondent was subjected to disciplinary W.P.(C.) Nos. 27526 & 28069 of 2015 -16- proceedings and also the criminal prosecution only on two grounds:
that she absented herself from duty for three days soon after the incident and that she voluntarily repaid, if it could be termed thus, the money through a demand draft.
36. The defence on the part of the first respondent on both the issues is not far to seek. First, she has submitted that she did apply for leave having submitted an application, but that was not sanctioned. Even otherwise, it is not unusual that the junior most employee facing the terrifying prospect of prosecution going away on leave: unable to bear the baleful looks of her colleagues and the customers of the Bank when the needle of suspicion was pointed towards her.
37. As regards the first respondent's paying Rs.1,00,000/- allegedly on the advice of the President of the Managing Committee, I gather from the record that the first respondent's mother died when she was 2 = years old; yet she secured employment under compassionate grounds. On that context, there seems to have been certain controversy concerning her securing employment. She being the junior most employee already having her position threatened, the W.P.(C.) Nos. 27526 & 28069 of 2015 -17- allegation of her stealing two cheque leaves and encashing one of them may have proved the last draw. She may have genuinely paid heed to the advice or the veiled threat of the President that she better pay what can be called the hush-money so that her employment could be safeguarded. She has, indeed, paid the amount under those compelling circumstances.
38. Indisputably, the witnesses have gone on record that the cheque-books were improperly kept on the table, thereby, providing access to all and sundry; even the seals were also freely available to any of the staff members; for that matter, even the customers of the Bank, too. It only affirms the ageless adage: Shut your door, and you will make your neighbour a good woman. In the present instance, there are lapses galore. The very cashier has gone on record that he did not properly keep the cheque-books in safe custody. Nor has the Manager helped himself by deposing that the cheque-books and the seals of the Bank had been accessible to all and sundry.
39. The Enquiry Officer, in the first place, fastened the guilt on the first respondent on a simple premise that she failed to prove her innocence. On the other hand, initially, the Arbitration Court and later W.P.(C.) Nos. 27526 & 28069 of 2015 -18- the Appellate Tribunal have given cogent reasons why the findings in the domestic enquiry could not be sustained. Conceding that the adjudicatory standards are entirely different in a domestic enquiry on one hand and in criminal proceedings on the other, still I may hold that the findings in Ext.R1(a) also go a long way in establishing that the first respondent has been victimized--if anything.
40. In the facts and circumstances, both the writ petitions are dismissed. No order as to costs.
DAMA SESHADRI NAIDU, JUDGE.
rv