Bombay High Court
Babanrao Budhajirao Nanekar vs Adinath Sahakari Bank Ltd. And Ors. on 15 September, 1994
Equivalent citations: 1995(2)BOMCR260
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. By this writ petition under Article 227 of the Constitution of India, the petitioner challenges the order of the Labour Court, Pune, dated 31st July, 1985, made in Application (BIR/LCB) No. 364 of 1983 and two orders dated 5th January, 1987, made by the Industrial Court, Pune, in Appeal (IC) No. 18 of 1985, both under the provisions of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the "the Act").
2. The petitioner was employed in the first respondent Bank from 28th November, 1973 as a Peon. On 1st May, 1980, he was promoted as a Clerk. From 18th August, 1981, the petitioner was required to work as a Cashier-cum-Clerk. I am informed at the bar that the grade of clerk and Cashier-cum-clerk is identical, except that the clerk who is to work as Cashier-cum-clerk is paid a Cash Handling Allowance. On 22nd June, 1982, during a transaction, the petitioner made an over-payment of Rs. 10,000/- to a party by name Deccan Trading Co. which had encashed a bearer cheque in the sum of Rs. 45,000/-. Instead of paying the sum of Rs. 45,000/- to the said party, the petitioner paid over Rs. 55,000/-. The excess amount of Rs. 10,000/- consisted of one bundle of 100 hundred-rupee currency notes. On the same day, after the transactions were closed and the cash was tallied, the shortage in cash came to light. While it is the case of the petitioner that the shortage was actually discovered by him and brought to the notice of Assistant Manager, Jasdekar, it is the case of the first respondent that it was Jasdekar who noticed the shortage of cash and sought explanation therefore from the petitioner. However, that may be, the fact remains that after the shortage of cash was noticed, Jasdekar scrutinised the cheque against which cash payment was made on that day. On the reverse of the cheque of Deccan Trading Co., he noticed the denomination and number of notes paid. From this, he discovered that there was a mistake in totalling. While the sum total of the amount written on the reverse side of the cheque should have been Rs. 55,000/-, the amount written on the reverse side of the cheque as total was Rs. 45,000/-. Jasdekar deduced that the over-payment must have been made to the representative of Deccan Trading Co. It is alleged that the petitioner seemed very reluctant to the idea of immediately contacting the representatives of Deccan Trading Co. to recover the over-payment of Rs. 10,000/-. Ultimately, as a result of the vigorous efforts of both the petitioner and Jasdekar, the representative of Deccan Trading Co. was contacted late at night. He feigned ignorance of over-payment and stated that the money had been sent over to a Bombay Party and, if the Bombay party confirmed that there was over-payment, the over-payment would be accepted. A complaint was lodged with the Police and the representative of Deccan Trading Co. produced a bag, alleged to be a bag in which the cash payment drawn from the Bank the previous day had been carried. He alleged that the cash amount had been left intact inside the bag. However, when the bag was opened, the numbers and the denominations of the currency notes inside the bag did not tally with the denominations and numbers noted down by the petitioner on the reverse side of the cheque and also noted on a slip of paper for the benefit of the Police. Though the total amount of cash inside the bag was Rs. 45,000/-, and the representative of Deccan Trading Co. maintained that that was all that was drawn from the Bank, he buckled down under intensive questioning by the Police and subsequently admitted over-payment of Rs. 10,000/-. He agreed and undertook to return the said over-payment of Rs. 10,000/- if the petitioner gave an admission in writing that the over-payment was the result of mistake on the part of the petitioner. Such a writing was given by the petitioner and the over-payment of Rs. 10,000/ was recovered from Deccan Trading Co.
3. The petitioner was served with a charge-sheet dated 8th July, 1982, in which, after alleging the facts constituting the incident and alleging that the petitioner had not shown interest in recovery of the amount, it was alleged that the conduct of the petitioner gave rise to a suspicion that he was acting with a dishonest intention or with gross neligence. He was asked to show cause thereagainst. By a reply dated 4th August, 1982, the petitioner denied that the incident as alleged in the show-cause notice had happened at all. He also denied the misconduct alleged against him. A detailed inquiry was held against the petitioner, where at the petitioner was present and was given full opportunity to defend himself against the charges levelled against him. As a result of the inquiry, the Inquiry Officer, by his report dated 24th December, 1982, found the petitioner guilty of -
(a) Gross negligence of work or negligence likely to involve the Bank in serious loss;
(b) Dishonesty in connection with the property or affairs of the Bank;
and
(c) Commission of any act subversive of discipline or good behaviour on the premises of the Bank.
Consequent upon the said finding, the petitioner was dismissed from service by order dated 11th August, 1983 in which it is stated, inter alia :
"The Enquiry Officer has held you guilty of the 3 charges levelled against you. The Board of Directors has considered the findings of the Enquiry Officer and resolved to dismiss you from the service of the Bank".
4. The petitioner challenged his dismissal from service by his Application (BIR/LCB) No. 364 of 1983 before the Labour Court at Pune. An order dated 25th March, 1985 was made by the Labour Court holding that the domestic enquiry held against the petitioner was legal and proper and the findings recorded therein were not perverse. The case was set down for further hearing. After further hearing, by the order dated 31st July, 1985 the Labour Court held that, though the incident was a solitary incident of carelessness on the part of the petitioner, it was serious enough to warrant dismissal from service. After taking into consideration all circumstances, the Labour Court opined that the punishment of dismissal from service imposed upon the petitioner was just, proper and reasonable and did not call for interference. Consequently, his application was dismissed. The petitioner appealed to the Industrial Court vide Appeal (IC) No. 18 of 1985. The Industrial Court endorsed all the findings of fact recorded by the Labour Court and agreeing with the reasoning of the Labour Court, dismissed the appeal. Being aggrieved, the petitioner is now in this Court.
5. At the very outset, I enquired from the learned Counsel appearing for the respondents as to which of the three heads of misconduct alleged against the petitioner was seriously being canvassed. The reply by learned Counsel was that the petitioner was guilty of all three misconducts levelled against him and that the Inquiry Officer had rightly found him guilty of all three misconducts. Though the enquiry, as far as the procedure was concerned, has been held to be a good one, I am afraid that the findings of the Inquiry Officer recorded in the inquiry are perverse. It is inconceivable that in respect of the same incident, any one can be simultaneously guilty of gross negligence of work or negligence likely to involve the employer in serious loss and dishonesty in connection with the property and affairs of the employer and also commission of act subversive of discipline and good behaviour on the premises of the employer. Dishonesty necessarily requires advertence of mind and an intention to cause wrongful loss to the employer and wrongful gain to the employee himself or to someone else. In stark contrast, gross negligence can arise only when there is utter lack of advertence to the bare requisites of precaution to be observed while discharging duty. In my view, the two heads of misconduct are not only antithetical, but are also mutually exclusive. If one is guilty of dishonesty in a transaction, it cannot be postulated that one is also grossly negligent in the said transaction. It is conceivable that, at the time of serving a charge-sheet, the employer is unable to make out, in the given set of circumstances, whether the employee is guilty of misconduct of dishonesty in connection with the employer's property or causing loss by gross negligence, and, therefore, the employer may choose to level both allegations in the alternative. Nonetheless, when evidence is led, the evidence would clearly indicate and bring to light the necessary mental ingredients or the lack of them, which would clearly indicate whether the circumstances proved would amount to dishonesty in connection with the property or business or only gross negligence. I am unable to appreciate how, at the end of the trial in the domestic enquiry, after all evidence has been recorded, the Enquiry Officer can accept the same evidence as indicative of two heads of misconduct which are mutually exclusive. If the Inquiry Officer chooses so to do, per se, it is indicative of non-application of mind on his part and a finding of such a nature would be perverse, in my view. There is a third misconduct of 'commission of any act subversive of discipline or good behaviour on the premises of the Banks' also alleged and held proved. Even here, counsel has not been able to satisfactorily explain how the act of inadvertent over-payment of Rs. 10,000/- to a party who came to withdraw cash from the bank would amount to an act subversive of discipline or good behaviour on the premises of the Bank. The finding of the Inquiry Officer on this misconduct also is perverse. The net result is that I am of the view that both the courts below have not properly appreciated the argument as to perversity of the findings and have been overawed by the fact that the petitioner was an employee in a Bank and, by his act, had caused temporary deprivation of a sum of Rs. 10,000/- to the Bank, for about 18 hours. If the matter had been approached on first principles, there would have been no difficulty in holding that the Inquiry Officer's findings were perverse, as I am inclined to hold.
6. The fact that the Enquiry Officer's findings are perverse does not necessarily mean that nothing has been proved on record. As a matter of fact, the facts, as admitted by the petitioner himself, show that there was an over-payment of Rs. 10,000/-; it is also categorically admitted by the petitioner, in his writing given to the representative of Deccan Trading Co., that the over-payment was result of his mistake. Under these circumstances, though I am of the view that, sans the element of dishonesty, the punishment was harsh and disproportionate, I am not inclined to allow the petitioner to go scot-free and mulct the respondent-Bank in back wages for consequences of his mistake. Though, normally, the function of imposition of punishment is within the exclusive province of the Labour Court or the Industrial Court in appeal, since the matter has come up before this Court in its writ jurisdiction, and the matter has been hanging fire for about 12 years, I am not inclined to remand the matter for deciding what should be the condign punishment to be meted out to the employee for his admitted mistake of over-payment. In my view, the deprivation of job would be disproportionate punishment. It cannot be forgotten that the petitioner was originally a Peon, promoted as a Clerk only on 1st May, 1980, and had worked as a Clerk for only a year and four months. Then, he was called upon to discharge duty as a Cashier. The facts on record also show that over-payment of cash is a routine affair in the first respondent-bank. Placed on record are a number of memos, where there has been over-payment by parties to the Bank and subsequent refunds on applications made by the parties, which were found to be justified on investigation. The deprivation of back wages would doubtless act partly as a deterrent to the employee and modulate his future conduct since he would be losing back wages for almost 12 years. But I do not consider this, per se, as stinging enough punishment to keep the petitioner on his toes. It would also be necessary to deprive him of some routine increments, which he would have drawn irrespective of the calibre of his work. These put together would be condign punishment for the lapse on the part of the petitioner, in my considered judgment.
7. In the result, the petition is partly allowed and the Rule is made partly absolute. The orders of the two courts below are quashed and set aside, and it is ordered as under :
(i) The first respondent shall reinstate the petitioner in service with continuity;
(ii) The petitioner shall not be entitled to any back wages for the period from the date of his dismissal to the date of his reinstatement, which shall be not later than 20th November, 1994.
(iii) After reinstating the petitioner in service, he will be fitted at the appropriate stage in the pay scale applicable to him, on the footing that he has been in continuous service, but he shall be deprived of the three increments due to him in the appropriate scale during the years 1994, 1995 and 1996.
8. Rule made accordingly, partly absolute, with no order as to costs.
9. Certified copy expedited.