Bombay High Court
Vijay Balu Navarkar vs Jalgaon Janata Sahakari Bank Ltd, ... on 11 April, 2016
Bench: R.V. Ghuge
WP/6479/2015
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6479 OF 2015
Vijay Balu Navarkar,
Age 34 years, Occ. Nil,
R/o 73B, Mohan Nagar,
Mohadi Road, Jalgaon. ..Petitioner
Versus
1. Jalgaon Janata Sahakari
Bank Limited, Head office -
117/119, Navi Peth,
Jalgaon, through the
Chief Executive Officer.
2. Chairman,
Jalgaon Janata Sahakari
Bank Limited, Head office -
117/119, Navi Peth,
Jalgaon. ..Respondents
...
Advocate for Petitioner : Shri Barde Parag Vijay
Advocate for Respondents : Shri Dixit V.J. Sr. Advocate
i/b Shri Nagargoje Ankush N.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: April 11, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition is
taken up for final disposal.
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4. The petitioner / employee is aggrieved by the judgment dated
4.3.2015, delivered by the Industrial Court, by which Revision (ULP) No.12
of 2013, preferred by the respondent / Bank has been allowed and the Part
I judgment of the Labour Court, dated 23.11.2012, with regard to the two
preliminary issues has been set aside.
5. Shri Barde submits that the petitioner was suspended pending the
disciplinary proceedings on 17.8.2006. He received a charge sheet dated
31.10.2006 on 17.11.2006. He denied all the charges. The Enquiry Officer
on completion of the enquiry, submitted his report dated 28.6.2007. After
hearing the petitioner on the enquiry report, the respondent terminated his
services, by way of punishment, on 13.9.2007.
6. The petitioner filed Complaint (ULP) No.43 of 2007 before the Labour
Court for challenging his termination. By the Part I judgment, dated
23.11.2012, the Labour Court concluded that enquiry is vitiated for non-
compliance of the principles of natural justice and the findings of the
Enquiry Officer are perverse, as there is no evidence before him to
conclude that the petitioner is guilty of the charges levelled upon him. By
Revision (ULP) No.12 of 2013, the respondent challenged the Part I
judgment of the Labour Court. By the impugned judgment dated 4.3.2015,
the Industrial Court has allowed the Revision Petition and by quashing the
Part I judgment of the Labour Court, has concluded that the enquiry was
conducted in a fair manner and the findings of the Enquiry Officer are not
perverse.
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7. Shri Barde, learned Advocate for the petitioner / employee has
strenuously criticized the impugned judgment. He draws my attention to
the charge sheet, dated 31.10.2006, based on which the domestic enquiry
was conducted against the petitioner and he was found guilty of all the
charges except one charge with regard to the purchasing of diesel for the
diesel generator utilized by the Bank at its Onkareshwar Branch.
8. Shri Barde has taken me through paragraph Nos.2 to 8 of the charge
sheet, which are basically the details of the mis-conducts alleged to have
been committed by the petitioner. His contention is that the charges are
vague and ambiguous. Details of alleged incidences constituting a mis-
conduct have not been mentioned. The charges are based purely on
suspicion and presumptions.
9. He further submits that the petitioner had sought the appointment of
an Advocate as his defence representative, which request was turned down
on the ground that the Standing Orders do not permit for engaging of an
Advocate. He was granted the liberty of appointing any co-employee
working in the Bank, though subsequently, he chose to participate in the
enquiry by himself.
10. Shri Barde has referred to the order passed by the Labour Court,
dated 23.11.2012 in Complaint (ULP) No.43 of 2007, which was filed by the
petitioner after the order of dismissal dated 13.9.2007 was issued to him.
Since he had challenged the enquiry as well as the findings of the enquiry
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officer, the Labour Court framed the two issues as required by law and has
considered the submissions of the litigating sides on the basis of the enquiry
report and the record and proceedings of the enquiry.
11. Shri Barde has taken me through the various paragraphs of the Part I
judgment of the Labour Court dated 23.11.2012, by which the Labour Court
has concluded on the following issues:-
(a) The suspension order is issued more than two months prior to
the issuance of the charge sheet and the said Act is illegal.
(b) The Bank could not have issued the suspension order prior to
the issuance of the charge sheet.
(c) The Complaints made by the Assistant Accountant and the
Cashier do not bear Outward Numbers and hence they are bogus and
fabricated documents.
(d) Charges levelled upon the petitioner are not proved in the
enquiry.
(e) He was never caught red handed while allegedly stealing
currency notes from the packs of currency notes which he was
counting.
(f) There was no evidence before the enquiry officer apart from
suspicion being voiced and hence the charges could not have been
held to be proved.
(g) On the basis of the statement made by Assistant Accountant
Shri Pethkar, it is apparent that the charges are not proved against
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the petitioner.
12. Shri Barde has strenuously submitted that the petitioner was a
helper, who used to assist a particular Assistant Accountant or a Cashier as
per the duty allotted to him on a particular date. He used to assist the
concerned superior in counting the notes and used to prepare packs of
currency notes to be moved from one counter to the another counter. Once
the currency notes were counted and packed, he would lose control over
the said packs / bundles after they were moved to another counter. It had
never so happened that any Cashier or Assistant Accountant or any other
employee has ever noticed the petitioner withdrawing notes from any
pack / bundle.
13. He further submits that in the enquiry, Shri Pethkar has admitted
that some times the notes used to be missing even when the petitioner was
not assisting him. This statement has been rightly appreciated by the
Labour Court and has, therefore, concluded that the findings of the enquiry
officer are based merely on suspicion and not on any direct evidence.
14. He further submits that mere suspicion cannot take place of proof
and as such, the findings of the enquiry officer were rightly held to be
perverse.
15. He relies upon the following judgments of the Honourable Apex Court
as well as of this Court:-
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(i) Sawai Singh Versus State of Rajasthan - AIR 1986 SC 995,
(ii) Anant R. Kulkarni Vs. Y.P.Education Society -
AIR 2013 SC 2098,
(iii) Shriram Vishwanath Deshpande Vs. Presiding Officer -
2010 (1) ALL MR 65,
(iv) Nand Kishore Prasad Vs. The State of Bihar and others -
AIR 1978 SC 1277,
(v) Narinder Mohan Arya Vs. United India Insurance Co. Ltd. -
AIR 2006 SC 1748
(vi) Shridhar Sakharam Omle Vs. Yeshwantrao Chawan Academy
of Development Administration - 2006 (5) Bom. C.R. 456 and
(vii) Bapu Parati Urmude Vs. Premier Industries -
Writ Petition No.4568 of 2011, dated 29.11.2013.
16. He further submits that if the charge sheet is vague and ambiguous,
no charge can be said to be proved against an employee. The charges have
to be specific and must pointedly indicate to the delinquent as regards the
charges which are being levelled upon him. He, therefore, submits that the
Labour Court has correctly arrived at a conclusion in the Part I judgment
that the findings are perverse and the enquiry is vitiated including on the
ground that it was conducted beyond three months.
17. While assailing the impugned judgment of the Industrial Court, Shri
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Barde submits that all the grounds on which the enquiry was vitiated,
including the perversity in the findings of the enquiry officer, has not been
considered by the Industrial Court. It has merely proceeded on the legal
principle that strict Rules of Evidence Act are not applicable to the
departmental enquiry and has held that on the preponderance on the
principles of probabilities, the charges can be held to be proved.
18. He further criticized the impugned judgment for the reason that the
Industrial Court has failed to apply its mind to the record and proceedings
of the enquiry and has not considered all the issues dealt with by the
Labour Court. He further submits that merely because a second view is
possible, the Industrial Court was not justified in setting aside the impugned
Part I judgment of the Labour Court. Unless the findings are found to be
perverse, the Industrial Court could not have exceeded its limited
jurisdiction under Section 44 of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971 ("the said Act").
He, therefore, prays for setting aside the impugned judgment.
19. Shri Dixit, learned Sr. Advocate appearing on behalf of the
respondent Bank submits that the petitioner was the Helper in the Bank and
was assisting several Cashiers and Assistant Accountants. The Bank runs on
the trust and confidence of the customers / account holders. Whenever any
amount is found to be short in any pack of currency notes, the Cashier or
the Assistant Accountant is normally made to pay that amount. Since the
frequency of notes going missing was noticed by certain Cashiers and
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Accountants, internal reports were generated. Based on the same, the
charge sheet was issued, as the petitioner was found to be a common
element in the said instances of notes going missing. On each occasion, the
Cashiers and Assistant Accountants had made good the short fall by paying
from their own pocket and therefore, it has become a serious issue with the
Bank.
20. He refers to the charge sheet dated 31.10.2006 and submits that
barring Clause 7 in the charge sheet, (the date on which the petitioner
brought less amount of diesel despite having been given money to purchase
50 liters of diesel), specific details and the short fall of money, including
the dates on which the incidents have occurred, have been mentioned in all
the charges. In so far as the only solitary vague charge of purchase of 30-
35 liters of diesel, instead of 50 liters of diesel, the enquiry officer has
exonerated the petitioner of the said charge and as such, the same is given
up by he management.
21. He then drews the attention of the Court to the list of witnesses
mentioned in the charge sheet itself, to make the petitioner aware as to
who would be deposing in enquiry. The reports in the form of documentary
evidence were placed on record in the enquiry. Six witnesses, including
one Peon / Sepoy have deposed in the enquiry.
22. He submits that circumstantially, based on the chain of events, the
charges levelled upon the petitioner, barring one charge, have been proved
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through oral and documentary evidence. The enquiry officer has considered
the entire evidence and has submitted a detailed report. The Labour Court
had picked up a solitary statement made by Shri Pethkar that some times
the cash have gone missing, even when another helper was assisting him
and based on the said statements, the findings are held to be perverse.
23. He further submits that the enquiry has been held to be vitiated for
the reason that the suspension order was issued two months prior to the
issuance of the charge sheet and since the enquiry was conducted beyond
three months. He has relied upon the judgment delivered by this Court in
the matter of Bapu Parati Urmude (supra) to contend that merely because
the enquiry is conducted beyond the stipulated period, would not be fatal
to the enquiry and would not vitiate the enquiry.
24. I have considered the submissions of the learned Advocates.
25. The law is trite on the manner in which enquiries are to be
conducted in service jurisprudence. The law is equally trite that there
must be some evidence available to support the findings of the enquiry
officer. If there is some evidence on record and if the chain of events
would indicate even circumstantially, or on the basis of hearsay evidence,
charges can be held to be proved against an employee.
26. I have considered the judgments relied upon by Shri Barde in the
matter of Sawai Singh (supra), Anant R. Kulkarni (supra), Shriram
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Vishwanath (supra), Nand Kishore (supra) and Narinder (supra). In these
judgments, vague charge sheets have been held to be no basis for
conducting an enquiry and a delinquent is not expected to raise any
defence against vague charges. So also, a conclusion of the enquiry officer,
based purely on suspicion and in the absence of evidential material, has
also been held to be unsustainable. I am in respectful agreement with the
view taken by the Honourable Supreme Court in the above said cases.
27.
However, in the case in hand, after having considered the charges
levelled upon the petitioner by the charge sheet dated 31.10.2006, I find
that only clause 7 is vague and ambiguous as the date on which the diesel
was purchased, the receipt of the diesel purchased, the money allocated to
the petitioner for purchasing the diesel have not been mentioned and as
such the enquiry officer has rightly exonerated the petitioner of the said
charge. However, in so far as the paragraphs 1 to 6 and 8 are concerned, I
find that the dates and events are narrated. The assistance rendered by
the petitioner to a particular Cashier or an Assistant Accountant on a
particular date and in particular Branch has also been mentioned. The
details of the amounts which fell short have also been mentioned. I do not
find that these charges could be termed as being so vague and ambiguous
that the petitioner could not have set up a defence against the same.
28. In so far as the suspension order issued to the petitioner, two months
prior to the charge sheet is concerned, it is trite law that the obligation
cast upon the employer is to ensure that the suspension allowance, strictly
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in accordance with the Rules is paid to the employee, the moment he is
placed under suspension. It is also trite law that the employer can place an
employee under suspension pending disciplinary proceedings and pay him
the suspension allowance until suspension is revoked or till the disciplinary
proceedings are concluded in the nature of passing of an order on such
proceedings by the disciplinary authority. On this count, the Labour Court
could not have vitiated the enquiry.
29.
The Labour Court has considered that the enquiry was conducted
beyond three months and has concluded that it was an illegality. This issue
is no longer res integra. The enquiry is not expected to be conducted in un-
due haste, merely to ensure that the time frame is not violated. The intent
and object of law is to ensure that the enquiry is conducted in a fair and
proper manner and a reasonable opportunity of defence is given to the
employee. This Court, in the Bapu Parvati's judgment (supra) has dealt
with the said issue and after considering the provisions of the Standing
Order, has concluded that the enquiry cannot be vitiated merely on the
ground that it was conducted beyond the prescribed time frame.
30. In so far as the grievance of the petitioner that an Advocate was not
permitted to defend him is concerned, it has come on record that since
there was no provision for engaging an Advocate, this liberty was refused
and he was permitted to engage a co-employee to defend himself in the
enquiry. It emerges from the enquiry proceedings that the petitioner did
not appoint a co-employee and proceeded to participate in the enquiry by
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defending himself. Unless grave prejudice is not demonstrated, an enquiry
cannot be vitiated on this count.
31. The thrust of Shri Barde's argument is that there was no evidence
before the enquiry officer and no prudent enquiry officer could have arrived
at a conclusion as has been arrived at in the instant case. He has placed
reliance upon the judgment of the Honourable Supreme Court in the matter
of Narinder (supra) and especially paragraph No.26, which reads as under:-
"26.
In our opinion the learned Single Judge and consequently the
Division Bench of the High Court did not pose unto themselves the
correct question. The matter can be viewed from two angles.
Despite limited jurisdiction a civil court, it was entitled to interfere
in a case where the report of the Enquiry Officer is based on no
evidence. In a suit filed by a delinquent employee in a civil court as
also a writ court, in the event the findings arrived at in the
departmental proceedings are questioned before it should keep in
mind the following: (1) the enquiry officer is not permitted to
collect any material from outside sources during the conduct of the
enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and
Ors.[1971] 1 SCR 87 (2) In a domestic enquiry fairness in the
procedure is a part of the principles of natural justice [See Khem
Chand v. Union of India and Ors. (1959) ILLJ 167 SC and State of
Uttar Pradesh v. Om Prakash Gupta : AIR 1970 SC 679 ]. (3) Exercise
of discretionary power involve two elements (i) Objective and (ii)
subjective and existence of the exercise of an objective element is a
condition precedent for exercise of the subjective element. [See
K.L. Tripathi v. State Bank of India and Others : (1984) ILLJ 2 SC . (4)
It is not possible to lay down any rigid rules of the principles of
natural justice which depends on the facts and circumstances of
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each case but the concept of fair play in action is the basis. [See
Sawai Singh v. State of Rajasthan : (1986) IILLJ 390 SC (5) The
enquiry officer is not permitted to travel beyond the charges and
any punishment imposed on the basis of a finding which was not the
subject matter of the charges is wholly illegal. [See Director
(Inspection & quality Control) Export Inspection Council of India and
Ors. v. Kalyan Kumar Mitra and Ors. . (6) Suspicion or presumption
cannot take the place of proof even in a domestic enquiry. The writ
court is entitled to interfere with the findings of the fact of any
tribunal or authority in certain circumstances. [See Central Bank of
India Ltd. v. Prakash Chand Jain : (1969) IILLJ 377 SC , Kuldeep Singh
v. Commissioner of Police and Ors. : (1999) ILLJ 604 SC ]."
32. He has also placed reliance on the judgment delivered by the learned
Division Bench of this Court in the matter of Shridhar Sakharam (supra),
wherein, this Court has concluded that mere suspicion would not be
enough. There was neither any direct nor circumstantial evidence to prove
the charge against the delinquent. In those circumstances, the learned
Division Bench interfered with the findings of the enquiry officer.
33. In the instant case, six witnesses have deposed against the
petitioner. Though the labour Court has culled out one minor portion of the
testimony of witness Shri Pethkar to conclude that there were other
instances of short fall in money when other helpers were assisting Shri
Pethkar. The Labour Court could not have branded the findings of the
enquiry officer as perverse, without considering the entire evidence of Shri
Pethkar. Similarly, the Labour Court could not have discarded /
disregarded the testimony of five other witnesses, who have also led
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evidence to support the charges that on the occasion mentioned in the
charge sheet, currency notes were missing from the bundles / packs which
were already counted and handled by the petitioner.
34. It is settled law that the findings of the enquiry officer cannot be
branded as being perverse on trivial grounds. Unless the findings of holding
the delinquent guilty are based on no evidence at all and purely on the
basis of suspicion, such findings would not be sustained. As like in this case,
when the findings of the enquiry officer are based on the testimony of six
witnesses and on the basis of the documentary evidence, the Labour Court
could not have termed the findings as perverse.
35. Another contention put forth by the petitioner is that the reports
made by the Cashier or the Assistant Accountant do not carry inward /
outward numbers. In my view, this being an internal matter within the
concerned Bank and since a report with regard to the conduct of an
employee is made by the concerned Cashier or the Assistant Accountant,
unless the rules mandatorily prescribe the transmission of these documents
through the inward / outward register, posting of the outward number on
such internal documents is not required. So long as the author of the
documents as a witness, does not state that the documents were never
issued by the said person, these internal communications have to be
believed since the presumption is that the documents are generated by the
concerned employee to his superior in the establishment.
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36. In the light of the above, though I find that the Industrial Court has
not gone into much details in considering the above issues, as has been
done by this Court and having considered the same in these proceedings, I
do not find that the conclusion arrived at by the Industrial Court could
therefore, be termed as perverse.
37. In the light of the above, this petition being devoid of merits is,
therefore, dismissed. Rule is discharged.
( RAVINDRA V. GHUGE, J. )
...
akl/d
