Punjab-Haryana High Court
State Bank Of India vs Presiding Officer on 15 May, 2012
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.6082 of 1992 (O&M)
Date of decision:15.05.2012
State Bank of India, through its Assistant General Manager,
Region 1, Zonal Office Punjab, Sector 17, Chandigarh.
...Petitioner
versus
Presiding Officer, Central Government Industrial Tribunal-cum-
Labour Court, Chandigarh, and another.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Ashok Gupta, Advocate, for the petitioner.
Mr. Vikas Singh, Advocate, for respondent No.2.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J. (Oral)
1. The petitioner-Bank challenges the order of the Industrial Tribunal-cum-Labour Court accepting the reference made to it on an adjudication sought of whether the termination of service of the private respondents w.e.f. 13.12.1983 was justified or not. It found that, it was not.
Civil Writ Petition No.6082 of 1992 (O&M) -2-
2. The second respondent was a Clerk-cum-Cashier, who was charged for his alleged negligence in not duly accounting for Rs.30,000/- which had been entrusted to him. The incident was of the larger amount of cash remaining with him, but on 12.05.1980 against the total cash of Rs.2,98,113.44, he had accounted only for Rs.2,68,213.44. The imputation against the employee was that the cash shortage of Rs.30,000/- was on account of alleged gross negligence in the performance of his duties. The contention in defence by the employee was that on that given date, he had left the counter to take the scroll outside and had asked the messenger employee with the Bank, Shri Gurdeep Singh to take care, but when he returned to his counter, he found two packets of Rs.100/- notes and two packets of Rs.50/- notes missing and he had immediately raised an alarm about the shortage. He was, therefore, contending that he was not guilty of negligence but yet another employee, who had been left at the counter, had allowed for the money to go missing and he was himself not responsible for the loss.
3. As a matter of admitted event before the issuance of the charge-sheet, it should also be observed that a criminal complaint had been filed with the police for the shortage of cash that had resulted on that day and a case of alleged offence under Civil Writ Petition No.6082 of 1992 (O&M) -3- Section 408 IPC was registered against the second respondent and he was prosecuted before the Criminal Court. During the pendency of the criminal case, the petitioner had been kept under suspension, but after the trial, the Criminal Court returned a finding that the criminal charge attributed to him, had not been established and he was entitled to be acquitted of the charges. The Criminal Court judgment was rendered on 19.01.1982. Against the order of acquittal, there had been an appeal to this Court at the instance of the State which was also dismissed on 26.08.1992. During all the time when the criminal case was pending before the trial Court, the Bank had not taken any independent departmental action. It was after the acquittal that a charge-sheet had been issued imputing an act of gross negligence in the performance of his duties.
4. While the Enquiry Officer found the charge against the petitioner as established, the Labour Court found that the proceedings had been vitiated. The Labour Court observed that the petitioner had not been served with the documents which the Management was relying on and the fact that the employee was demanding the documents before the commencement of the enquiry was brought out through the proceedings of the Enquiry Officer himself. The Labour Court observed that the petitioner Civil Writ Petition No.6082 of 1992 (O&M) -4- had moved an application under Ex.A-8, dated 13.12.1982 to stay the proceedings till the copies of documents were supplied to him and yet another application under Ex.A-9 had been moved for the supply of various documents. The Labour Court recorded the proceedings of the Enquiry Officer himself under Ex.A-7, dated 03.01.1983 that all the copies of the documents which were to be relied on against the petitioner would be supplied to him before he started with the defence witnesses. The Labour Court found, however, that the documents had not been supplied to the employee as he had demanded and, therefore, the enquiry was not properly conducted. He also observed that even the dates of hearing had not been properly communicated and he had not been given a full opportunity to examine his defence witnesses. He referred to the fact of the submission of Ex. A-15 and A-16 giving the details of the defence witnesses on 26.08.1983 and 11.09.1983, but this request for examination of the defence witnesses had been rejected by the officer on 13.09.1983.
5. The learned counsel appearing on behalf of the Bank would find fault with the findings of the Labour Court by contending that the employee had himself by his conduct disentitled himself to any privileges, particularly in view of the Civil Writ Petition No.6082 of 1992 (O&M) -5- fact that on 29.07.1983, he had walked out of the proceedings at the time of cross-examination of the Bank witnesses. The Enquiry Officer had not really closed the case on that date but he had adjourned the case to 30.07.1983. The learned counsel would point out that the employee, who had not participated in the proceedings, could not have complained that he did not have a full opportunity to conduct the case. The Labour Court's order goes on further to find that when the case was adjourned to 30.07.1983, nothing had been brought on record to show that the petitioner had been informed about the date of adjournment. The Enquiry Officer himself had been cited as a witness by the Management and examined as MW-1. During his cross- examination, it was elicited through him that from the records produced before the Labour Court, there was nothing to show that in the proceedings dated 29.07.1983, there was a mention about the date of next hearing. The witness was also cross- examined whether he had conducted any further proceedings after 30.07.1983 and it was elicited that there were no further proceedings. On the other hand, after receipt of the letter of communication from the employee seeking for production of defence witnesses, the Enquiry Officer had proceeded to reject his request which itself, according to the Labour Court, was Civil Writ Petition No.6082 of 1992 (O&M) -6- proof of the fact that the employee had not been given opportunity to let in his evidence, even if he had not participated at the previous hearing. The Labour Court raised a query as to how the Enquiry Officer could have bypassed an opportunity for defence witnesses and to demand of the petitioner to give a written brief in defence.
6. In a case where there is a challenge to the award passed by the Labour Court, the High Court apprising the award is never to be treated as a Court of appeal. The learned counsel appearing on behalf of the petitioner was at pains to point out that in the proceedings before the Enquiry Officer, the Enquiry Officer had accommodated the employee adequately, but still the employee had actually defied the Enquiry Officer and walked out of the proceedings. Even if an employee had refused to cross-examine a management witness and walked out of the proceedings, as observed by the Enquiry Officer, it could only mean that the employee had not availed of an opportunity to cross-examine a management witness and allow for making appropriate inferences on the value of the evidence tendered through such management witness. So long as the delinquent employee was not set ex parte, he had a right to participate in the proceedings at any time. If, therefore, the workman was Civil Writ Petition No.6082 of 1992 (O&M) -7- demanding an opportunity for letting in defence witness, there could not have been a refusal to allow for such a course by the only fact that the employee had not cross-examined a management witness. This assumes significance, for, the charge itself was not a case of misappropriation, but a case of negligence in allowing for some packets of currency to go missing and an amount of Rs.30,000/- could not still be accounted by the workman. It was nobody's case, at least before the departmental proceedings that he had defalcated with the funds. The written reply to the charge-sheet brought out a particular defence where the employee had admitted to the entrustment, he was pleading for a certain circumstance showing that he was not himself responsible, but there was yet another employee Gurdeep Singh, a Cash Coolie, who was actually in the same counter, stitching the currency notes to make bundles and when the woman came to deposit some money, he went to bring the scroll and asked Gurdeep Singh to look after the cash. When he returned, he found two packets of Rs.100/- notes and two packets of Rs.50/- notes missing. He was, therefore, attempting to bring a definite case of yet another employee in a Bank, who was at the same counter and who ought to have known how the amount went missing.
Civil Writ Petition No.6082 of 1992 (O&M) -8-
7. In the manner in which the defence was built, there surely was an imperative to the cause of justice that he had been given appropriate opportunity to tender evidence which he was trying to bring. In my view, if the documents relied on by the Management were not served to a delinquent and if the defence witnesses had not been permitted to be examined, they would prima facie constitute a vitiation of the proceedings. This line of defence itself was not new and brought for the first time during enquiry proceedings. Even the so-called confession letter, which the Management relied on, as not having been acted upon by the Labour Court, brings out a same set of facts. The statement given by the employee on the same date brings out the same set of facts of the employee leaving the counter with instructions to Gurdeep Singh to take care and soon after his return, he found the currency packets missing and raised a hue and cry about it. The portion of the confession statement, which the petitioner could still use, was only that the employee had undertaken to return the money in installments. This "confession letter" does not prove what the Enquiry Officer found and how the disciplinary authority dealt with, while imposing a punishment of removal from service. The Enquiry Officer understood the charge-sheet in a language which the charge- Civil Writ Petition No.6082 of 1992 (O&M) -9- sheet itself does not reveal. The Enquiry Officer was making a finding that the employee was guilty of misappropriation. The charge-sheet does not impute such misappropriation. The disciplinary authority also believed the issue of loss of Rs.30,000/- as one of misappropriation. On the other hand, it was not.
8. It must be remembered that the entire departmental proceedings got underway only after the conclusion of the criminal case. While the scope of proceedings before the disciplinary authority and the criminal court operate in different fields, the fact that the departmental proceeding itself commenced only after the conclusion of the criminal court judgment, cannot to be forgotten. If the disciplinary authority had not decided to take parallel departmental proceeding without minding the progress in the criminal court, still no exception could be taken to such a course. On the other hand, if the departmental proceedings were initiated subsequent to the conclusion of the criminal court, the fact that the criminal court acquitted him cannot be totally discarded. In such a situation, there was a duty of the Enquiry Officer and the disciplinary authority to take the judgment of the criminal court as relevant and examine how the acquittal came about. The case of Civil Writ Petition No.6082 of 1992 (O&M) - 10 - acquittal was not merely a case of benefit of doubt being granted to the accused, but it resulted after examination of a defence in the manner put forward by the employee. The portion of the judgment of the trial Court that dealt with imputation against the employee is reproduced in the written statement. The Criminal Court had actually examined the defence version that at the relevant time on 12.05.1980 at 1.30 PM, Gurdeep Singh, Cash Coolie, was there at the counter. This version was supported by the prosecution witnesses-Padam Narain, Rulia Ram Sharma, Inderjit Singh Bhatia and a defence witness Vinod Kumar before the Criminal Court. The Criminal Court observed that all were responsible officers of the Bank. The Criminal Court also observed that this version had been given by the employee immediately after the incident, and he had also referred to the request by the employee that a complaint must be registered to get the real culprit punished but the then Manager Padam Narain did not take appropriate action to have the complaint registered against the person, who was actually responsible for the missing currency. The trial Court also made a specific reference about the poor quality of investigation that was undertaken when the said Gurdeep Singh had not even been interrogated nor was any search conducted on him. These observations of the Criminal Civil Writ Petition No.6082 of 1992 (O&M) - 11 - Court could not have been missed by the disciplinary authority when he was undertaking the issue of punishment particularly after the Criminal Court judgment had been delivered. The appeal to the High Court was also dismissed, but the disciplinary authority was making an issue of the observation of the High Court that the Bank was at liberty to take action for recovery of money as a civil liability as constituting a finding against an employee that he was also responsible for the loss and that the negligence could be attributed to him by such observation. The disciplinary authority had completely misdirected itself in assuming that the loss of Rs.30,000/- constituted defalcation of funds which was against their own records.
9. The attempt of the learned counsel appearing on behalf of the petitioner was no different before me. He cites before me decisions which, in my view, to be wholly irrelevant. In State Bank of India and another Versus Bela Bagchi and others-(2005) 7 Supreme Court Cases 435, the Hon'ble Supreme Court was considering the issue of whether the absence of any loss to a Bank was relevant in the case of fraud committed by an employee. It was a case where on evidence, it was found that an employee had received the money from the Civil Writ Petition No.6082 of 1992 (O&M) - 12 - account-holder for depositing it in his saving bank account but he has not done so. He had caused misappropriation of funds by causing a fictitious credit entry in the passbook of the account- holder. In such a situation, the Court found that when the Bank employee had subsequently deposited the money, the fact that there was no loss could not be a defence at all in an action for fraud and deceit. We do not have such a situation where a charge of such deceit is made against an employee. I have already observed that the charge was one of negligent conduct. The negligence was sought to be explained by the employee as not negligence on his part, but the involvement of yet another employee, who was specifically entrusted to take care of the cash at that time, but he was not even examined, nor a complaint registered against him. The decision in Bela Bagchi's case (supra) has, therefore, no relevance. The learned counsel also relies on a judgment in General Manager, Punjab & Sind Bank and others Versus Daya Singh-(2010) 4 RSJ 340 that dealt with the case of a Bank Manager, who had participated in the enquiry and there was clear documentary evidence on record in the handwriting of the employee which established his role of withdrawal of huge amounts in the name of fictitious persons. The ledger entries also showed that FDRs were in one name and Civil Writ Petition No.6082 of 1992 (O&M) - 13 - the withdrawals were shown in the name of yet another and there were excess withdrawals over amounts of FDRs. The discrepancies could not be explained by the Bank Manager and a finding of guilt was being upheld by the Supreme Court. This hardly affords any lesson for us to follow in this case.
10. Even as regards the manner of issuance of punishment of removal from service, the Bank had acted wrongly. An issue of punishment is seldom an aspect for consideration before Court, unless the punishment itself is oppressive or capricious. If only the Bank had realized that the charge was not misappropriation or defalcation, but it was a case of negligence which it was attributing to an employee and that too, an amount of Rs.30,000/-, it could have never visited the employee of a punishment of removal from service itself. It could have only at best directed the return the money and imposed a commensurate punishment for the lapse in causing loss of that money. This is not so much to say that the punishment was excessive and, therefore, liable to be interfered with. It is a manner of inferring that the Management was derailing its own process in assessing even the nature of charge. The punishment of removal could have fitted only with a case of defalcation or fraud or misappropriation and could have ill-fitted Civil Writ Petition No.6082 of 1992 (O&M) - 14 - with what they were actually charging the petitioner with. The appreciation of the charge itself was faulty and that betrays again the complete lack of application of mind by the Management.
11. The award passed by the Labour Court finding the punishment imposed to be erroneous and further finding the enquiry before the Enquiry Officer was vitiated, require no intervention before this Court. The writ petition is hopelessly a vexatious exercise by the Bank to spite an employee and deny him the continuance in employment.
12. The writ petition is dismissed with cost assessed at Rs.10,000/- against the Bank in favour of the employee. The employee shall be treated as having been reinstated pursuant to the order of the Labour Court and is entitled to all the consequential benefits. The arrears of salary shall be paid with interest at 6% from the date when the respective amounts fell due till the date of payment. The amount shall be released within a period of 8 weeks from the date of receipt of copy of this order.
(K.KANNAN) JUDGE 15.05.2012 sanjeev