JUDGMENT Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 21st July, 2004 in ID No. 104 of 1996 whereby the Central Government Industrial Tribunal ( in short ? the Tribunal?) came to conclusion that the findings of Disciplinary Authority and Appellate Authority were misleading, imaginary and misconceived and so the same cannot be sustained. He ordered for reinstatement of the respondent with full back wages and also directed that 50% of the back wages may be recovered from disciplinary authority and appellate authority as they did a wrong in passing the dismissal order and caused loss to the bank.
2. In brief, the facts are that the respondent was working as a Head Clerk at Modi Nagar Branch of the petitioner bank. The petitioner received complaints from its customer regarding his cheques and drafts not having been credited to his account. After holding a preliminary enquiry about the complaint, the petitioner bank found that respondent Mr. G.D Sharma was involved in a large scale fraud by opening fictitious accounts and depositing the drafts of the customers in these accounts and then withdrawing the money from the accounts. Following charge sheet was served upon the respondent G.D. Sharma on 6th April, 1990:
Charge sheet It has been decided to initiate disciplinary action against you, on account of serious irregularities committed by you during your stay at Ghaziabad Branch on the following charges:
i) That you on 4.9.86 filled up a pay in slip for Rs. 100.00 for opening a fictitious Saving Bank Account No. 34099 in name of Shri R. Prasad.
ii) That you opened a fictitious S/B Account No. 34099 in the name of R. Prasad by forging the signatures of Shri R. Prasad.
iii) That you fraudulently obtained payment of cheque No. 800201 for Rs. 18,800/- after forging the signatures of Shri R. Prasad on 9.9.86 from Savings Bank Account No. 34099.
iv) That you on 22.9.86 fraudulently issued a cheque No. 800202 for Rs. 1,080.00 and also forged the signatures of Shri R. Prasad on the cheque as drawer and on the reverse of the cheque.(Account No. 34099).
v) That you on 22.6.87 opened a fictitious savings Bank Account No. 35760 in the name of Shri Manohar Kakar with signatures of Shri Kakar forged by you.
vi) That you on 22.6.1987 prepared a cash deposit voucher for Rs. 2000 for depositing cash in the name of Shri Manohar Kakkar, i.e. the new fictitious Saving Bank Account opened by you.(A/c No. 35760).
vii) That you on 22.6.87 prepared a credit voucher for Rs. 14,000.00 in the name of Shri Manohar Kakar Savings Bank Account No. 35760 with a view to misappropriate State Bank of Patiala, Chandigarh draft No. 251109 dated 11.6.87 for Rs. 14,000.00.
viii) That you on 22.6.87 obtained payment of cheque No. 800203 of S/B Account No. 35760 for Rs. 5,000.00 after forging the signatures of Shri M. Kakkar on the face and the reverse of the cheque.
ix) That you forged the signatures of Shri M. Kakar on cheque No. 800204 dated 26.5.87 for Rs. 8,000.00 on the face and reverse of the cheque. (A/c No. 35760).
x) That you also forged the signatures of M. Kakar on cheque No. 800205 dated 1.7.87 for Rs. 1,000.00 (A/c No. 35760) on the face and reverse of the cheque.
xi) That you prepared credit voucher for Rs. 28,481.10 for credit of savings Bank Account No. 35760 for Shri Manohar Kakar and credit vouchers for Rs. 88.00 and Rs. 7.00 for credit of commission account PandT charges recovered account on account of S/B No. P/154 with a view ;to misappropriate United Bank of India, New Market, Calcutta Draft No. 176822 dated 3.9.87, received as proceeds of Ghazibad Branch S/C Bill AT/86 dated 28.7.87.
xii) That you have obtained payment of cheque No. 800208 dated 9.12.87 for Rs. 10,300.00 on 17.12.87 after forging the signatures of Shri M. Kakar on the cheque (A/C No. 35760).
xiii) That you obtained payment of cheque No. 800207 dated 8.12.87 on 21.12.87 for Rs. 18,000.00 after forging the signatures of Shri M. Kakar o the above cheque (A/C No. 35760).
xiv) That you prepared a credit voucher of Rs. 25.00 for credit of S/B Account No. IB 382 on 6.9.86 for depositing draft No. 220248 dated 6.9.86 for Rs. 25.00 issued by our Muradnagar Branch in name of J.S. Malhotra.
xv) That you prepared a credit voucher for Rs. 18,900/- for credit to account No. 34099 and signed the same as P. Singh in place of depositor.
xvi) That you filled up cheque Nos. 799829 and 799992 on 8.9.86 and 18.9.86 for Rs. 18,900.00 and Rs. 900.00 respectively purported to have been signed by Shri J.S. Malhotra holder of account No. SIB 382 which cheques have not been signed by Shri J.S. Malhotra.
2. The above charges if established, would amount to gross misconduct in terms of the provisions of the award.
3. You are, therefore, hereby instructed to submit your explanation in defense in writing to the undersigned within a week from the date of receipt of this charge sheet failing which it will be presumed that you have no reply to submit in this regard and we shall proceed accordingly.
3. The respondent denied the charges and an inquiry was held into the charges by the inquiry officer and the inquiry officer, after recording evidence of both sides, gave a report holding that the charges levelled against the respondent were not proved. The inquiry officer submitted his report to the disciplinary authority. The disciplinary authority considered the inquiry officer's report, disagreed with the conclusion arrived at by the inquiry officer and opined that the misconduct was sufficiently proved and since the misconduct was serious and prejudicial to the interest of the bank, it warranted capital punishment(dismissal from service). Detailed reasons were given by the disciplinary authority for disagreeing with the inquiry officer's report and a show cause notice was issued to the respondent asking him as to why punishment of dismissal be not imposed on him. He was also given an opportunity for personal hearing. The respondent gave reply to the show cause notice of the disciplinary authority. The disciplinary authority after giving personal hearing to the respondent and after considering the reply, passed a final order holding that the misconduct against the respondent stood proved. The Disciplinary Authority imposed punishment of dismissal of respondent without notice. The respondent preferred an appeal before the Appellate Authority. The Appellate Authority heard the respondent and after hearing him, maintained the order passed by the disciplinary authority. Thereafter the respondent raised an industrial dispute against the action of management in dismissing him which was referred for adjudication to the Tribunal in following terms: ?Whether the action of the management of State Bank of India in dismissing the services of Shri G.D. Sharma w.e.f. 05.04.1990 is legal and justified? If not, to what relief the workman is entitled.
4. The Industrial Tribunal observed that the respondent has not challenged the fairness of the inquiry. The respondent had participated in the inquiry In view of the fact that fairness of the inquiry had not been challenged by the respondent, no evidence was required to be led before the Tribunal to prove the misconduct and the evidence led before the inquiry officer was only to be considered by the Tribunal.
5. The Tribunal considered the entire evidence led before the inquiry officer and after re appreciating the evidence came to conclusion that the defense witnesses examined during the enquiry were of the same department and same branch and these witnesses have deposed that signatures on the disputed cheques were those of of Shri R. Prasad, Manohar Kakar and J.S. Malhotra and payments were given after obtaining their signatures. The customer also made no complaint that the money was withdrawn from their accounts unauthorizedly. That would mean that they had no grievance. Since the operators of the accounts had no grievance, so no conclusion could have been arrived at that there was no withdrawal from the accounts of these persons. The Tribunal observed that the employees who handled the cheque and who passed the cheque and those who made payments have supported the respondent and have not supported the bank. Therefore, the findings given by the Inquiry Officer based on the statement of these witnesses and other evidence was proper findings and the conclusion arrived at by the disciplinary authority was not correct. The Inquiry Officer rightly held that the charges were not proved. He observed that the Disciplinary Authority may differ from the findings of Inquiry Officer but the Disciplinary Authority must give findings on each and every charge supported by evidence. The findings of the disciplinary authority was not based on any evidence but was based on conjectures and surmises. The Disciplinary Authority mentioned all circumstantial evidence and had not mentioned a single piece of oral evidence. As such, the findings of the Disciplinary Authority was based on no evidence. He, therefore, set aside the findings of the Disciplinary Authority and Appellate Authority and held that the findings of the Inquiry Officer was correct.
6. The award has been challenged by the petitioner on the ground that learned Tribunal failed to appreciate that in this case, no rules of natural justice were violated by the Disciplinary Authority. The Disciplinary Authority had given hearing to respondent and arrived at a conclusion based on the evidence. The Tribunal had no jurisdiction to arrive at a different conclusion so long as there was some evidence on record pointing to the misconduct of respondent, considered by the Disciplinary Authority. The Disciplinary Authority was sole judge of facts and if there be some legal evidence on which the finding was based, the adequacy or reliability of evidence was not a matter which could be agitated before the Tribunal.
7. The petitioner also urged that the Tribunal totally ignored the evidence of BW-2 who proved the complaint made by the customers to the bank and who proved opening of fictitious accounts in the name of Manohar Kakar. Manohar Kakar was having a genuine account No. 18775. However, another fictitious account in the name of Manohar Kakar was opened by the respondent in the same bank being account No. 35760. That a complaint was received by the Bank from Shri Manohar Kakkar that the proceeds of the draft was not credited in his account. The learned Presiding Officer of the Tribunal wrongly brushed aside the evidence of handwriting expert who proved that the handwriting on the fictitious accounts papers was that of the respondent. Though, the petitioner had to examine three handwriting experts, but the first two handwriting experts were not even competent to depose and were not examined. One of them had mixed up with the respondent and gave a copy of the report to the respondent which the respondent used in the Court. The petitioner had a right to discard the handwriting expert who got mixed up with the respondent. Second handwriting expert was not qualified and it came to the knowledge of the bank later on that the report of only a qualified handwriting expert can stand the scrutiny of the Court and, therefore, the third handwriting expert was appointed. The appointment of three handwriting experts cannot be a factor considered adverse to the petitioner.
8. It is also urged that in the petition that the standard of proof required in case of a domestic enquiry is not proof beyond reasonable doubt but is a proof by preponderance of probabilities. The Tribunal ignored this law and gave award contrary to it.
9. It is also urged that the Tribunal wrongly observed that the customer had made no grievance, while the grievance made by the customer was categorically proved by BW2. It was not necessary for the bank to produce the customers either before the inquiry officer or before the Tribunal. It is further urged that the Tribunal's observations that the findings of disciplinary authority and Appellate Authority were misleading, imaginary, misconceived and resulted into loss to the bank and directions for recovery of 50% damages from disciplinary authority and appellate authority, were without any basis. No mala fide was sought to be proved against the disciplinary authority and appellate authority by the respondent. The disciplinary authority and appellate authority had acted in discharge of their duties and no order could have been passed for recovery of damages from them. It is further submitted that the respondent had got superannuated during pendency of award. No reinstatement of the respondent could have been ordered by the Tribunal, but Tribunal ordered reinstatement with full back wages.
10. In counter affidavit, the respondent had taken the stand that the writ petition was not maintainable since the petitioner bank had not obtained any sanction for challenging the award in terms of memo No. H-52027/8/99-IR(IMP.I) dated 19th March, 1999 issued by Ministry of Labour. He submitted that in terms of this memo, Ministry of Labour had laid down a Monitoring and Scrutiny Procedure which was required to be followed and the consent of administrative Ministry was required to be obtained before challenging the award of the Tribunal. The other objection taken is that the Labour Court has not been imp leaded as a party and, therefore, the writ petition was bad. The respondent denied that he was involved in any fraud or the charges, as stated in the charge sheet, and submitted that the inquiry officer rightly came to conclusion that the charges against him were not proved. He described procedure for opening of a new account and submitted that in view of this procedure, for opening of a new account, several bank officials were involved in it and a fictitious account could not have been opened by him singlehandedly. He also submitted that the Bank officials responsible for opening of a new Bank account were not examined during the enquiry by the bank and, therefore, it could not be said that he was the person who had opened the fictitious account in the name of Manohar Kakkar. He also took the stand that Manohar Kakkar was not examined. He supported the decision of the Tribunal, directing his reinstatement and advanced the same reasons, as given by the Tribunal, in his counter.
11. The objections taken by respondent about not making the Tribunal as a party to the writ petition and not seeking permission of the Administrative Ministry are not tenable. Labour Tribunal is not a necessary party when its orders are challenged by employer or workman. As far as a permission under the above circular is concerned, that is not mandatory under any law. An administrative circular, not issued under any statutory rule making power has no binding force.
12. It must be borne in mind that in case of a domestic enquiry, the principles of law applicable are not the same as that are applicable in criminal trials. While the criminal courts follow the rule that let 100 guilty persons got scot free but one innocent be not punished and benefit of doubt goes in favor of accused, as proof beyond reasonable doubt is the standard adopted in criminal proceedings, same is not the case in domestic enquiry. While in criminal law, a man is sought to be punished and sent to jail for the crime he has committed, in service law, the domestic enquiry is held after holding a preliminary enquiry of the facts to give a chance to the delinquent employee to explain his conduct in light of evidence collected by the department against him. He is given the list of witnesses and the material which is collected by the department, so that he can give his response. His suitability for the future employment is the major issue before the department. Whether such a person should be continued in the employment or he should be given some lesser punishment or warning to improve his conduct (if the misconduct is of minor nature). In case of Banks, under bipartite agreement, no enquiry need be held where punishment sought to be given is only 'censure'. In case of serious charges, the principles of natural justice are required to be followed and if there is some material to hold the employee guilty of misconduct, major penalties can be imposed by the employer. There is no presumption of innocence in service matters. This is a principle of criminal law and cannot be inserted into service and labour law. The principles of service law is that no one should be condemned without giving him an opportuntiy of hearing. This principle underlines that the conduct of an employee is considered objectionable or blameworthy but there may be reasonable explanation for the conduct. In domestic enquiry if the explanation of the employee is found satisfactory, he is normally not punished. The inquiry officer or the disciplinary authority have not to look upon the evidence from the angle of a criminal court that the guilt must be proved beyond reasonable doubt. The Inquiry officer or the Tribunal has only to see that there was some evidence indicating involvement of the employee into the misconduct which was sufficient to cast doubt on his integrity or his suitability for the post which he was holding. The principle of criminal law that let 100 persons go scot free lest one innocent be convicted is followed in criminal law because of the human fallibility. The principle has converted itself to ?let the faith of one innocent person in the criminal justice system be not shaken even if the faith of whole society in the criminal justice system is shaken?. This principle is not valid for service matters.
13. The Tribunal in this case observed that the account holder had no grievance and so why should the employee be held guilty. I think that this presumption made by the Tribunal was contrary to law and facts. How could customers had made complaint about withdrawal of amounts from fictitious accounts. The fictitious accounts were opened by respondent, so no complaints from customers were there. Customer had made complaint about non crediting of amount in genuine account to the bank official. Personal appearance of customer before enquiry officer was not essential. It was laid down by the Supreme Court in that a customer of the bank need not be involved in domestic enquiry conducted since involving the customers would not be conducive to the proper bank-customer relationship and would not be in the interest of the bank.
14. The banking system today is not the monopoly of nationalized banks and customers look for better services and better relationships. If a complaint of the customer is not attended to or the customer is made to visit the bank time and again for participating in the enquiry and he is subjected to the harassment, the customer would instead change the bank. If an officer of the bank deposes about the complaint received from the customer, that should be sufficient evidence that the customer made a complaint about his account. Examination of customers is not necessary to prove that the customer made a complaint. The Tribunal's observation that the customer had no grievance was contrary to the facts proved. BW-2 in this case had proved before the inquiry officer that the customer had made a complaint about the demand draft amount not having been credited to his account.
15. The Tribunal also ignored the reasons given by the disciplinary authority differing from the inquiry officer. The disciplinary authority had observed that in case of fraud, circumstantial evidence was quite material and oral evidence hard to come. But the Tribunal and enquiry officer seemed to believe that oral evidence was the only good evidence in cases of fraud. While disciplinary authority considered various documents connected with fraud, the Tribunal ignored all of them. The disciplinary authority in this case had categorically observed that the respondent had worked in the said bank at Modi Nagar Branch for long time and remained there in two posts, one as a clerk and then as a Head Cashier and he was a senior staff person and was well versed with the working of the banking system of the branch and being senior, he had an opportunity and free access to the branch/records. He remained attached to various seats during the period from where the relevant records and documents were forged and prepared and removed in perpetuation of fraud. Since the respondent was involved in this branch at almost all seats, had free access to the record, the opening of a fictitious account was not too difficult for the respondent. The other staff working in the branch had supported the respondent because no one of them could have given a statement incriminating himself and inviting action against himself. The respondent took advantage of this and examined those staff members working in the bank at different seats who were supposed to act as per the procedure of opening of a new account or for encashment of the cheque and preparation of drafts. Further, at the time when charges were framed against the respondent, action was already taken against some other staff members who were involved in this episode of forgery. Some staff members were dismissed and some were reduced in ranks. Each and every staff member who was working in the branch, therefore, had a vested interest in saying that they had acted in accordance with the procedure of the bank and they showed their ignorance about the fictitious account. The examination of handwriting expert, therefore, became important. The handwriting expert was examined as BW-1. He gave evidence that the signatures of the respondent tallyed with that of the disputed documents and the signatures and writings on the disputed documents was that of the respondent. The inquiry officer had unjustly brushed aside the handwriting expert's report and the evidence of BW-2 on the ground that the handwriting expert's evidence was only corroborative in nature and cannot be read unless there was other oral evidence as well. The petitioner had good and cogent reasons for engaging three handwriting experts, one after another, and for not relying on the report of other two handwriting experts, one of whom had got mixed up with employee and gave a copy of his report to respondent who used it in the court and the other was not professionally qualified to be a handwriting expert. The disciplinary authority relied upon the report of handwriting expert and the other circumstantial evidence to come to conclusion that the respondent was definitely involved in the fraud.
16. The disciplinary authority also had the interest of the customers in mind. The loss of confidence was a factor reckoned by disciplinary authority, as is evident from the order of the disciplinary authority. Loss of confidence is a good ground for dismissal from service of an employee. The Supreme Court in 1992 (2) SCC 569 held that where employer loses confidence in his employee, there can be no justification directing his reinstatement. In Regional Manager v. Hotilal , the Supreme Court observed as under:
If the charged employee holds a position of trust where honestly and integrity are in built requirements of functioning, it would not be proper to deal with matter leniently, Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions of acts in a fiduciary capacity, the higher degree of integrity and trustworthiness is a must and unexceptionable.
17. The Tribunal had not considered this aspect altogether. It is now settled law that strict principles of Evidence Act or law of evidence are not applicable in domestic enquiries and the order of the disciplinary authority cannot be set aside by the Tribunal so long as there is some evidence on the basis of which conclusion has been arrived at by the disciplinary authority.
18. The respondent has relied upon Yoginath D. bagde v. State of Maharashtra and argued that the disciplinary authority in this case while discarding the finding of the inquiry officer in favor of the respondent came to conclusion that the charges against the respondent were proved and issued show cause notice to the respondent as to why he should not be dismissed. This was a clear violation of principles of natural justice as the disciplinary authority had a pre-set mind. In Yoginath's case(Supra), the Supreme Court observed that it was not indicative to the officer that the disciplinary authority has come only to a tentative decision and he has to show cause only against the tentative decision and the reasoning. However, in the present case, the disciplinary authority had clearly indicated to the respondent that it was merely a tentative decision of the disciplinary authority. The disciplinary authority had also sent tentative reasons for not agreeing with the inquiry officer along with show cause notice. The final order was passed by disciplinary authority only after hearing the respondent. Although in this case the respondent was heard by the disciplinary authority before passing of final order, but in appropriate cases and circumstances, even post decision hearing has been held sufficient to meet the principles of natural justice. In Canara Bank v. Debasis Das, the Supreme Court observed that in a given case post decisional hearing can obliterate the procedural deficiency of a pre- decisional hearing. In Bharat Filling Station v. I.O.C. Ltd. , this Court also observed that in a given case, if circumstances warrant pre- decisional hearing, may be dispensed with. I consider that mere use of non- technical language by the disciplinary authority in show cause notice would not make the nature of opportunity given to the respondent as null and void. The disciplinary authority, in this case, had followed the principles of natural justice.
19. The respondent even during the pendency of the writ petition tried to play smart. He was superannuated on 31st March, 2003. He still moved an application in 2005 under Section 17-B of the Industrial Disputes Act claiming last drawn wages during pendency of writ petition and this Court passed an order directing that he should be paid last drawn wages, without knowing that he had already been superannuated. This fact was brought to the notice of the Court by a review petition filed by petitioner and the order under Section 17B of the Industrial Disputes Act was, therefore, suspended since the respondent was not entitled to any wages under Section 17B of the I.D. Act after superannuation.
20. In view of my foregoing discussion, I allow the writ petition. The order of the Tribunal is set aside. No orders as to costs.