Bombay High Court
Canara Bank vs H.T. Koli And Anr. on 23 September, 1998
Equivalent citations: [1999(81)FLR370], (2000)IIILLJ277BOM
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT
1. This is the second round of litigation at the instance of the petitioner-bank. Earlier the petitioner-bank challenged the award, dated (sic) passed by the Central Government Industrial Tribunal No. 2 in Reference (CGIT)No. 2/48 of 1986 whereby the said Tribunal held that the dismissal of respondent 1 Sri H.T. Koli who was working as Clerk in the petitioner-bank was not justified and directed the petitioner- bank to reinstate respondent 1 with immediate effect with full back-wages and continuity of service. The said award was set aside by this Court on July 11, 1997 and matter was sent back to the concerned Industrial Tribunal for fresh decision as per directions. After remand, respondent 1 was further cross-examined and parties were heard. Then by the present award which is impugned in this writ petition passed on October 15, 1997 the Tribunal again held that the dismissal of respondent 1 herein was not justified and the petitioner-bank has been directed to reinstate respondent 1 with full back-wages and continuity of service.
2. The facts relevant for present purpose of the writ petition are: The first respondent (for short employee) was appointed by the petitioner-bank (employer-bank) as a Typist-cum-clerk in the month of December 1975. The employee was initially posted at employer-bank's Queen's Road Branch. In the year 1980, the employee was transferred to Malad (West) Branch. While the employee was working at Malad (West) Branch, he was found to have fraudulently altered ledger entries in the savings bank account bearing No. 15052 which was in the name of one Sri Shankar Sanjeev Rao. The employee inflated the entries in the said altering deposit figures. On April 27, 1982 though the account holder deposited only an amount of Rs. 5 but it was altered later on to Rs. 14,005 by adding the figure of 1400 on the left side of the figure 5, thereby increasing the credit balance by Rs. 14,000. Again on April 28, 1982 the account holder deposited in the said account an amount of Rs. 15 which was later on altered by the employee to Rs. 6,015. The alterations were also made in the deposit made on May 8, 1982 and May 20,1982. According to the employer-bank, the employee in connivance and conspiracy with the account bolder Shankar Sanjeev Rao defrauded the employer-bank of Rs. 77,600 and wilfully caused the said monetary loss to the employer-bank. On May 20, 1982 the said fraud was detected by the then Branch Manager who informed this incident to the higher authorities. Two senior officers of the bank Sri S.K.M. Shetty and Sri Bhandari were deputed to Malad (West) Branch to investigate the said fraud. The statements of various employees including the present employee were recorded. It is the case of the employer- bank that the employee in his statements recorded on May 20, 1982 and May 21, 1982 admitted that he introduced the said account holder Shankar Sajeev Rao and he helped the said account holder in withdrawal of the money on the basis of the inflated entries. The employee who wrote part of the said statement and also signed it admitted in the said statement that the ledger entries pertaining to the said account No. 15052 was altered by him and he facilitated the account holder to withdraw money from the said account on the basis of the inflated entries. On the basis of the investigation conducted by Sri S.K.M. Shetty and Sri Bhandari and the statement of the employee, the employer bank issued chargesheet to the employee on May 24, 1982. In the said chargesheet the employer-bank narrated the modus operadi of the employee of alteration of ledger entries which enabled the account holder to withdraw the excess amount of Rs. 77,600 over and above his actual deposits. The employer-bank charged the employee for defrauding it of Rs.77,600 and causing monetary loss. The employee was, thus charged for gross misconduct under Clause (1) of Regulation 3 of Chap. II of Canara Bank Service Code. The employee was also suspended with effect from May 24, 1982. Upon receipt of the chargesheet, the employee addressed a letter to the General Manager of the employer-bank on May 31,1982 and demanded the copies of the alleged statements, dated May, 20, 1982 and May 21, 1982. Thereafter the employee again wrote a letter on June 16, 1982 demanding the copies of the said statements allegedly by him on May 20, 1982 and May 21, 1982. The employee then filed reply to the chargesheet. The enquiry officer proceeded with the enquiry. The employer-bank examined Sabrine B. Henriques, clerk, Sri P. Ratan Kumar, Manager. Sri S.K.M. Shetty Divisional Manager and Ms. Sumangala Marthu Mahale, Special Assistant Clerk. The employee examined himself. Thereafter the enquiry officer heard the parties and by his report, dated February 22, 1984, held that the charges against the employee were proved. In the enquiry report, the enquiry officer also found that the misconduct committed by employee of defrauding the employer-bank was grave and warranted deterrent punishment and accordingly proposed the punishment of dismissal. After receipt of the report of the enquiry officer, by an order, dated May 18, 1984, the employee was dismissed from service. The employee raised industrial dispute which was referred for adjudication to the Central Government Industrial Tribunal-cum-Labour Court No. 2, Bombay, and registered as Reference (CGIT) No. 2/48 of 1986. The employee filed statement of claim to which written statement was filed by the employer-bank. The employee thereafter filed additional statement of claim to which additional written statement was filed by the employer-bank. The Industrial Tribunal framed issues. Issue (1) was whether the workman proved that the enquiry held against him was not proper, that he was not given proper opportunity to defend himself and the rules of natural justice were not followed. Issue (2) was whether the workman proved that the enquiry officer had a biased view against him and his findings are improper and perverse. Issue No. (3) was whether the dismissal of the workman with effect from February 25, 1982 by the employer-bank was justified. The Tribunal vide its Part I Award held that the workman was able to establish that the enquiry held against him was not proper and that he was not given proper opportunity to defend himself and principles of natural justice were violated. On the basis of its finding on issue (1) in Part I Award, the Tribunal did not record any finding on issue (2). The management led evidence to prove the misconduct before the Industrial Tribunal. The management examined Sabrine B. Henriques, Sri P. Ratan Kumar, Sri S.K.M. Shetty and Ms. Sumangala Marthu Mahale, before the Industrial Tribunal to justify its action. The workman examined himself. The parties produced documents and as I have already noted by the Award, dated December 9, 1994, the Tribunal held the dismissal of the employee bad in law and directed his reinstatement with full back wages and continuity of service. The said award was challenged before this Court by Way of Writ Petition No. 1083 of 1995 and vide order, dated July 11, 1997 this Court set aside the award passed by the Tribunal on December 9, 1994 and sent the matter back to the Tribunal for fresh decision in accordance with law and also permitted the employer to lead evidence in defence of the subsequent documents filed by the workman or to further cross-examine the workman. After the remand, the employer-bank chose to further cross-examine the employee and accordingly the employee was cross-examined. The Tribunal thereafter heard the parties and by the impugned award, dated October 15, 1997, held that the dismissal of employee was not justified. The Tribunal also directed the employer company to reinstate the employee with full back wages and continuity of service.
3. It would be pertinent to note that besides the witnesses examined by the employer-bank in proof of the misconduct, it also relied upon the statement made by the employee on May 20, 1982 and May 21, 1982 admitting the alteration in the entries made by him which resulted in defrauding the bank to the tune of Rs.77, 600. The Tribunal did not find the statements made by the witnesses on behalf of the employer-bank reliable. As regards the statement made by the employee on May 20, 1982 and May 21, 1982, the Tribunal observed that though the employee admitted in his cross-examination that the said statement bear his signature yet it found difficult to accept that statement since according to Tribunal it could not be voluntary unless an assurance was given to him or some force was used against him. The Tribunal held that though for the first time a grievance was raised by the employee through the letter of his advocate, dated July 1, 1982, that the said statements were taken from him by force, misrepresentation and undue influence when the employee was in distressed condition, the grievance was raised in reasonable time and therefore, the said statements which was in the nature of confession by the employee could not be accepted. The crucial point that appears to me is if the statement made by the employee on May 20, 1982 and May 21, 1982 were voluntary, obviously on the face of such admission by the employee the misconduct of the employee would stand proved. The material part of the statement reproduced at page 38 A of the paper book) made by the employee reads thus:
"After the account Sri Shankar Rao, has opened I was requested by Shankar Rao to help him by altering the figures in the ledger. Sri Shankar Rao real name is Pradeep Kumar Lutty. I altered the figure with ball-pen four times. I have done this during office hours. Shankar Rao requested to him. He promises me to help any time I understand that if the figure is altered he can withdraw the money. I will search for Rao and produce him before the bask or police. I will recover the money and reimburse the bank. I surrender the ball-pen in which figures are altered. The above statement is given by me out of my free will and voluntarily and the same are true."
4. The aforesaid statement was made by the employee on May 21, 1982. The employee was issued chargesheet on May 24, 1982 and after receipt of the said chargesheet he first wrote a letter on May 31, 1982 addressed to the General Manager of the employer-bank. In the said letter he demanded the copies of the alleged statement, dated May 20, 1982 and May 21, 1982, but he did not raise any grievance that the said statement was procured under duress, undue influence, force or coercion. He only stated in the said letter that upon Supply of the copies of the said statement dated May 20, 1982 and May 21, 1982, he would be in a position to submit his defence, if any pressure or undue influence or force or coercion was exerted on the employee which was later on set up by the employee, at the first available opportunity in letter, dated May 31, 1982, the employee would have raised the grievance at least that the said statement was not voluntary and it was obtained under force or pressure or undue influence. Not only that thereafter again he wrote a letter to the General Manager of the employer-bank on June 16, 1982 and in that letter also there is not even whisper that the said statement was procured under force, pressure, undue influence or coercion. The grievance that the said statement was obtained under force and pressure was raised for the first time in the letter sent through his advocate on July 1, 1982. Even in his cross-examination, dated August 14, 1982, the employee has only said, "the force which was used on me as that the Officer Bhandari dictated that letter to me and then I wrote it. It is true to say that on May 20, 1982 Bhandari and Shetty used force on me. These statements were recorded in the cabin of the Branch Manager." If any pressure of any sort or any force would have been used on the employee at the time his statement was recorded on May 20, 1982 and May 21, 1982, the employee would not have kept quiet for 1 1/2 months and would have immediately raised the grievance on the first available opportunity and in any case when he wrote the letters on May 31, 1982 and June 16 1982 to the General Manager of the employer-bank. The employee is also not reported to have raised this grievance to any other person till he contacted his advocate and through whom he sent the letter on July 1, 1982. The employee did not take up the matter with the union raising the grievance that his statements were recorded on May 20, 1982 and May 21, 1982 under force or pressure or undue influence. If any undue influence or pressure or force would have been used upon the employee his statement was recorded on May 20, 1982 and May 21, 1982 the employee would not keep quiet and would have definitely taken up the matter with somebody immediately which apparently was not done till he contacted his advocate and through whom the letter was sent on July 1, 1982. The Tribunal brushed aside the admission of the employee conjecturarily when it observed that a person on his own accord will not accept such a guilt unless an assurance was given to him or that a force was used against him. There was no reason much less justifiable reason to doubt the genuineness of employees admission, particularly when employee did not raise any grievance regarding thereto for one and half months. The entire approach of the Tribunal while considering this aspect of the matter is not in accordance with law. In Sri J. D. v. State Bank of India and Anr. , the Apex Court with regard to confession of the employee observed thus, in Paras. 11 and 12, at pages 1982-I-LLJ-54 at 58, 59:
"11. In the instant case, the alleged misconduct of the appellant was that he forged documents, withdrew Rs. 1,500, Rs. 1,000 in excess of the amount he was authorized to do and misappropriated the excess amount of Rs. 1, 000. With regard to the fact whether the appellant manipulated the documents, withdrew excess amount and misappropriated it, there is, of course, no direct evidence of any eye witness except the appellant's confession referred to above. The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence, namely, the authority letter containing the admitted interpolations by the appellant in his own and handwriting in different ink, and the addition of the digit "1" before 500. The evidence of Kansal would have, been primary and material, if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter. But Kansal's complaint was to the contrary. For the purpose of a departmental enquiry complaint, certainly not frivolous, but substantiated by circumstantial evidence, is enough. What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to the withdrawal of excess money by the appellant in the presence of the four witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar, aforesaid, against his advice. On the complaint of Kansal, the evidence of these four witnesses is direct as the complaint is said to have been made by Kansal in their presence and hearing. It is, therefore, not hearsay. As the respondent has succeeded in proving that a complaint was made by Kansal on the evidence of the above named four witnesses, respondent has succeeded. No rule of law enjoins that a complaint has to be in writing as insisted by Tribunal.
12. The learned Tribunal has committed yet another grievous error, in failing to appreciate the confessions made by the appellant 'in the presence of witnesses and to the higher officer who appeared as witness' (as found by itself) namely, Wadhera, Ramzan, Gupta and Sarkar, aforesaid. The confession of the appellant before the said witnesses were to the effect that he had altered the amount in figure and words in his own hand. The award of the Tribunal therefore, has been vitiated by misconception of law involved in the case".
5. In Additional District Magistrate (City) Agra v. Prabhakar Chaturvedi and Anr. , the Apex Court observed thus, in Para. 4, at 1996-I-LLJ-811:
"4. Having considered the rival contentions and also having gone through the written submissions filed on behalf of respondent 1 we find that the order of the High Court cannot be sustained. So far as non-supply of enquiry officer's report is concerned it has to be kept in view that no such contention was raised in the writ petition before the High Court. The High Court has noted this aspect. Nothing could be pointed out to us by learned counsel for respondent to controvert this observation of the High Court. Whether the pleadings in the writ petition should be treated as pleadings in a suit or not is not relevant for deciding this question. Reliance placed in the written submission on R. v. Barnsley Metropolitan Borough Council 1976 (3) All E.L.R 452, also is of no avail to respondent 1. The said decision cannot support the contention canvassed on behalf of the respondent 1 that even if there is no grievance made in the writ petition the High Court is bound to consider the said grievance. So far as the grievance about the non-examination of witnesses and non-supply of documents is concerned in our view, the High Court has erred in ignoring the salient features of the case namely, that respondent 1 himself by his statement, dated December 14, 1984 admitted to have received an amount of Rs. 21,000 and odd and which could not be deposited by him along with his associate account of their carelessness and fault. It is difficult to appreciate how the said statement could be said to have been brought about by any coercion as tried to be submitted on behalf of respondent 1. But, even apart from that the order-sheet of the enquiry officer clearly shows that respondent 1 Prabhakar as well as Sajan Kumar had submitted that they have not to give any documentary or oral evidence and that is how their evidence was closed. Under these circumstances the subsequent request by respondent 1 to examine four more witnesses was rightly considered by the enquiry officer to be an after thought and accordingly such request was rightly rejected. In fact on account of the clear admission contained in writing given by respondent 1 on December 14, 1984 the charge against him stood proved on admission and the only question that remained to be considered was about the nature of punishment to be imposed on him. When respondent 1 was guilty of misappropriation of such a large amount of Rs. 21,000 and odd for couple of months it could not be said that the punishment of dismissal as imposed on him was in any way uncalled for or was grossly disproportionate to the nature of the misconduct proved against respondent 1. For all these reasons the order of the High Court cannot be sustained and is, therefore, quashed and set aside. The writ petition filed in the High Court will stand dismissed. However, in the facts and circumstances of the case there will be no order as to costs."
6. Once the defence of the employee that his statement made on May 20, 1982 and May, 21, 1982 was recorded under duress or force or pressure is not accepted, the admission of the employee in unequivocal term proves his misconduct. I have already observed above that the facts and circumstances of the case do not justify the conclusion that the statement made by the employee on May 20, 1982 and May 21, 1982 was not voluntary or was recorded under pressure or force and, therefore, the only conclusion that can be drawn on the basis of the employee's admission is that the charge against him is proved.
7. Thus, the finding recorded by the Industrial Tribunal that the charge against the employee is not proved cannot be sustained.
8. Looking to the serious and grave nature of misconduct of fraud and forgery committed by the employee defrauding the employer-bank and causing substantial monetary loss, it cannot be said that the punishment of dismissal inflicted by the employer-bank was unjustified or shockingly disproportionate to the charge which has been held proved.
9. In the result, the writ petition is allowed. The award passed by the Central Government Industrial Tribunal No. 2, Mumbai, on October 15, 1997 is quashed and set aside. The Reference (CGIT) No.2/48 of 1986 stands rejected. No costs.