Dattatray K.Shinde vs The Railway Goods Cleraing & ...
2017 Latest Caselaw 5905 Bom

                                      1              WP.1303/2002-Judgment

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           ORDINARY ORIGINAL CIVIL JURISDICTION

                    WRIT PETITION NO. 1303 OF 2002

Dattatray Kindiram Shinde
Indian Inhabitant of Thane
Residing at Annapurna Nivas
1st floor Room No.8,
Padwalnagar, Wagle Estate
Thane - 400 604.                                   ...Petitioner
       Vs.
1. The Railway Goods Clearing & Forwarding
    Establishment Labour Board for Greater Bombay.

2. The Chairman, 
    The Railway Goods Clearing & Forwarding
    Establishment Labour Board for Greater Bombay ...Respondents

Mr. Mahendra Agavekar i/b. V.P. Vaidya for the Petitioner 
Mr. Sanjay Prabhakar Shinde for Respondent Nos. 1&2

                                                CORAM : A.A. SAYED & 
                                                          M.S. KARNIK, JJ.

JUDGMENT RESERVED ON : 2nd AUGUST 2017 JUDGMENT PRONOUNCED ON : 14th AUGUST 2017

JUDGMENT:[PER SHRI M.S. KARNIK, J.]

1. By this Petition the Petitioner challenges his dismissal

from service by an order dated 15th April 2002. The

Petitioner joined the services of the Respondent Board as

Clerk some time in May 1984. In 1992 the Petitioner was

promoted to the post of Supervisor. The Petitioner was

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promoted to the post of Assistant Accountant in 1996.

2. On 16th March 1998 the Petitioner was charge-sheeted

in respect of the discrepancies found in provident fund

amounts during the period from 1989 - 1990 and 1990 -

1991 which resulted in loss to the Board. The following are

the gist of the charges:

1. During the financial years 1989-90, 1990- 91, 1991-92 while preparing Resignation cases of 27 workers, a sum of Rs.26,468.56 has been increased in the workers P.F. contribution in the year 1989-90 & 1991-92 & similar amount has been increased in the Board's contribution. Thus he has caused a loss of Rs.52,927.12 to the Board (Schedule 'A' is annexed hereto).

2. By making wrong entries in the P.F. account of workers of the Board and by increasing the Board's contribution by similar amount and obtaining signatures of the Board's President & Secretary have cheated the officers & thereby the Board.

3. By not discharging his duties / responsibilities have violated the Board's code of conduct.

4. Have lost faith of the Board".

3. During the course of the enquiry the evidence of Mr.

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Pednekar, Accountant was recorded. According to the

Petitioner Shri Pednekar has deposed only on the basis of the

entires made in the P.F. Register. In the submission of learned

Counsel for the Petitioner at the relevant time when the

alleged discrepancies were noticed, Shri Pednekar was not

working as an Accountant. He was posted as an Accountant

only in the year 1994.

4. The Enquiry Officer found that the charges are proved.

The Respondent / Appointing Authority dismissed the

Petitioner from service by the impugned order dated 15th

April, 2002.

5. In the submission of the learned Counsel for the

Petitioner Shri Pednekar was not a competent witness to

depose in respect of the incidents which had taken place in

the year 1989 - 1990 and 1990 - 1991. Shri Pednekar joined

as an Accountant only in the year 1994. Learned Counsel for

the Petitioner submitted that the findings recorded by the

Enquiry Officer are perverse in as much as the findings are

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based on no evidence. According to the learned Counsel the

evidence of Shri Pednekar has to be discarded as Shri

Pednekar is not competent to depose on the basis of the

documents and the registers adduced as evidence on behalf of

the Management.

6. Learned Counsel further submitted that a detailed

defence submitted by him has not been considered by the

Enquiry Officer. According to him he was discharging his

duty of making entires of P.F deductions in P.F Account Bank

as per the entries received from the Table Clerk regarding the

workers in all Tollis of table Nos. 1, 2, 3, 4 & 5. His job was to

prepare the total dues of P.F amount of the workers at the end

of the year, charge interest, verify the amount if the workers

resigned and prepare their resignation cases. According to

him all these works were done as per the order and directions

of the then Assistant Accountant and head of Provident Fund

Shri I.M. Savle.

7. Learned Counsel for the Petitioner submits that the

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signatures made by the Petitioner on the 27 cases of payment

of P.F dues are in token of having made entries in account

book and verifying the total amount and he has affixed his

signatures pursuant to the directions of the then Provident

Fund Head Shri Savle. Learned Counsel for the Petitioner

relied upon the decision of the Apex Court in the case of

Moni Shankar Vs. Union of India & Another (2008) 3 SCC

484 to contend that the evidence adduced during the course

of the enquiry will have to be gone into to ascertain if the

requisite standard of proof (preponderance of probability) is

met and that this Court has power to interfere where test of

proportionality is not satisfied.

8. Learned Counsel for the Petitioner also contends that

there is a delay in issuing the charge-sheet which vitiates the

enquiry. In his submission for the alleged misappropriation of

1989-1990 and 1990-1991 the charge-sheet is issued in the

year 1998.

9. Learned Counsel for the Respondent on the other hand

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supported the findings of the Enquiry Officer and the order

passed by the Disciplinary Authority. According to him in the

year 1987-1988 to 1992, a large scale fraud was perpetrated

on Respondent No.1 Board by certain employees of the Board

about 19 in number (including the Petitioner), who

misappropriated huge amounts from the wages deposited in

the Board, in collusion and connivance with each other and

with the Government appointed Auditor. Prior to 1994, in the

Kalyan branch office, wages payable to the Mathadi workers

were deposited from the 1st of the month to 12th day of the

month, with the table clerks by the registered employers.

About 75% of the wages were in cash. The said table clerks

maintained full accounts of the wages and levy received and

deposited the same in the Board's account. The table clerks

also calculated the wages payable to the Mathadi workers,

and the Head Office sent the cheque for wages to the table-

clerks as per the statements prepared by them. The Personnel

Officer of the Board was in charge of the overall supervision

of the table-clerks. The fraud came to light when in the year

1992 the said auditor Mr. S.D. Gunjal appointed by the

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Government submitted the audited balance sheet for the year

1991-1992 along with his report to the State Government.

The Respondent No.1 Board however was not given a copy of

the said balance sheet by the auditor at the relevant time, and

it was only in the year 1993 the Respondent No.1 Board

received the second copy of the audited balance sheet for the

year 1991-92. On going through the balance sheet it was

found that there was a glaring discrepancy of

Rs.1,12,12,000/-in the two balance sheets for the same year.

The Respondent No.1 Board therefore undertook scrutiny of

the accounts of the Board through special auditor and found

large-scale misappropriation of the funds from the year 1987-

88 onwards. About 19 employees of the Respondent No.1

Board (including the Petitioner) were involved. These

comprised of table clerks responsible for handling cash and

payment of salaries, supervisors, accountant, assistant

accountants, Inspectors, Personal Officer, (the Petitioner

herein) and the Chartered Accountant Mr. S.D. Gunjal

appointed by the Government to audit the accounts of the

Board. It was found that the aforesaid sum of

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Rs.1,12,12,000/- had been siphoned off by these employees

in collusion and connivance with each other. The said

employees falsified and fabricated accounts, and in the case

of cash misappropriation, they destroyed the relevant

documents and records. The Respondent No.1 Board lodged

a complaint with the Anti Corruption Bureau, and pursuant to

the said complaint eight employees including Petitioner were

arrested and the criminal proceedings are pending.

10. In so far as the Petitioner is concerned, from 1989-1990

and 1991-1992 he was working as a Clerk in Provident Fund

Section. The Petitioner was incharge of Main Provident

Register in which individual provident fund accounts of the

workers was maintained. At the end of every month, the

Table Clerks in the Board prepare payment sheets and post

the amount of Provident Fund deducted from the workers

monthly wages in a separate statement called the Provident

Fund Deduction Statement or Provident Fund Chart. The

table clerk then sends the said statement or provident fund

chart to the provident fund clerk. The provident fund clerk,

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was thereafter required to post provident fund deductions of

the workers from the said provident fund chart in the main

provident fund register. At the end of the financial year, the

concerned table clerk calculates the total amount of provident

fund deductions and posts it in the provident fund deduction

statement or provident fund chart. The provident fund clerk

is also required to draw up the total provident fund

accumulations of the provident fund and to tally it with the

total provident fund accumulations shown by the table clerk

in the provident fund chart. Where a worker resigned, the

provident fund clerk was required to prepare the total

provident fund as well as gratuity amount payable to the

workers and to submit the same to the Assistant Accountant.

The disbursement of the said provident fund and gratuity was

done by the provident fund clerk.

11. The learned Counsel for the Respondent submits that it

is the Petitioner who addressed a letter dated 4 th March 1994

to the Chairman of the Board wherein he informed the

Chairman that he has increased amounts in the Provident

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Fund contribution payable to the Mathadi workers at the

behest of the then Assistant Accountant Shri I.M. Savle.

12. It is pointed out that the Board thereafter conducted

enquiry during 1994-1996 when it was found that the

Petitioner had paid excess amount by way of Provident Fund

dues to the 27 Mathadi workers who resigned from the

Board and payments have been made to them during the

period between 1989-1990 and 1991-1992 totalling to

Rs.54,927.12. The modus operandi adopted by the Petitioner

was that such amounts were increased only in the cases of

workers who resigned. It was found that the amounts in the

last financial year were changed / altered by the Petitioner.

The Petitioner thereafter showed the same amount as a P.F

contribution payable by the Board. It was found that the

totals worked out by the Petitioner in the main P.F. Register do

not tally with the totals drawn by and posted by the table

clerk in his P.F chart. It was also found that the amounts in

most of the cases were paid to the workers partly by cheque

and partly by cash and in some cases entirely in cash.

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13. Learned Counsel for the Respondents further submits

that all these aspects have been taken into consideration by

the Enquiry Officer and held that the charges levelled against

the Petitioner stand proved. The learned Counsel submits

that the charges are serious and therefore, the appropriate

punishment of dismissal is imposed on the Petitioner which

cannot be said to be disproportionate to the proved

misconduct.

14. We have considered the submissions made by the

learned Counsel. In the statement of the Petitioner he has

clearly stated that he was discharging the duty of making

entries of P.F deductions in P.F. Account Bank as per the

entries received from the Table Clerk, prepare the total dues

of P.F amount of the workers at the end of the year, charge

interest, verify the amount if the workers resigned and

prepare their resignation cases, etc. He stated that all these

works were done as per the order and direction of the then

Assistant Accountant and head of Provident Fund Shri I.M.

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Savle. He further states that the 27 cases mentioned in the

charge-sheet were bearing his signatures as Clerk. He has

however stated that the same are in token of totalling the

entires in the Account Book and verifying the total amount

and that he has affixed his signatures pursuant to the

directions of the then P.F. Head Shri I.M. Savle. The Enquiry

Officer considered the evidence of Shri Pednekar wherein he

has stated that all the papers connected with resignation of

the Mathadi workers are being prepared by the Petitioner and

he has initialled all such papers. According to Shri Pednekar

the P.F. figures from both sides as well as those from the

workers side have been increased. He further deposed that

the Petitioner himself wrote a letter dated 4 th March 1994

wherein the Petitioner admits that the amounts of P.F have

been increased by him as directed by Shri Savle the then

Assistant Accountant. Shri Pednekar has clearly deposed that

the increases in the P.F. accounts are in the handwriting of the

Petitioner and this has been done by him at the behest of the

Superiors. It has further come in his evidence that the

Mathadi workers who have resigned have received more

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amounts than what they should have actually got.

15. The Enquiry Officer has recorded his finding that the

Petitioner has agreed that in the annexure attached to the

charge-sheet an increase of Rs.1000/- and Rs.2000/- is shown

in respect of P.F. amount that was paid to 27 Mathadi workers

who have resigned during the period 1989-1990 and 1990-

1991. It is also recorded that the Petitioner agreed that on all

the 27 resignation cases the Petitioner has put his signature.

16. The Enquiry Officer on the basis of the documents on

record and the evidence of Shri Pednekar that the Petitioner

recorded a finding that the Petitioner has increased the P.F.

figures from the Board's side as well as on the workers side.

On the basis of the evidence on record the Enquiry Officer

found that the Board has been put to a heavy financial loss.

The Enquiry Officer came to a conclusion that wrong entries

were made by the Petitioner in respect of the P.F. to be paid to

the workers who have resigned and thus caused financial loss

to the Board. The Enquiry Officer relied upon the letter dated

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4th March 1994 Exhibit-10 addressed by the Petitioner to the

Chairman of the Board wherein he has informed that the P.F.

amounts were increased by him under the instructions of Shri

Savle the then Assistant Accountant. It is only by letter dated

1st July 1999 Exhibit-20 that he gone back on his words and

changed his stand. He has blamed Mr. More, the then

Chairman of the Board at whose behest he states to have

written the letter dated 4th March 1994. This however was

not accepted by the Enquiry Officer.

17. The learned Counsel for the Respondents relied upon

the decision of the Apex Court in the case of Food

Corporation of India & Anr. Vs. V.P. Bhatia (1998) 9 SCC

131 to support his contention that there is no delay in issuing

the charge-sheet. According to us in the facts of the present

case we do not feel that the Enquiry is vitiated on the ground

of delay.

18. Learned Counsel for the Respondents also relied on the

decision of the Apex Court in the case of Chief Executive

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Officer, Krishna District Cooperative Central Bank Limited

& Anr. Vs. K. Hanumantha Rao & Anr. (2017)2 SCC 528 to

contend that the decision qua nature and quantum of

punishment is prerogative of disciplinary authority and courts

while exercising power of judicial review do not sit as

appellate authority. The Apex Court has observed thus:

"7.1. The observation of the High Court that accusation of lack of proper supervision holds good against the top administration as well is without any basis. The High Court did not appreciate that Respondent 1 was the Supervisor and it was his specific duty, in that capacity, to check the accounts, etc. and supervise the work of subordinates. Respondent 1, in fact, admitted this fact. Also, there is an admission to the effect that his proper supervision would have prevented the persons named from defrauding the Bank. The High Court failed to appreciate that the duties of the Supervisor are not identical and similar to that of the top management of the Bank. No such duty by top management of the Bank is spelled out to show that it was similar to the duty of Respondent 1.

7.2. Even otherwise, the aforesaid reason could not be a valid reason for interfering with the punishment imposed. It is trite that courts, while exercising their power of judicial review over such matters, do not sit as the appellate authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority. It is not the function of the High Court to decide the same.

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It is only in exceptional circumstances, where it is found that the punishment/penalty awarded by the disciplinary authority/employer is wholly dis- proportionate, that too to an extent that it shakes the conscience of the court, that the court steps in and interferes".

19. In this view of the matter when the Petitioner has

agreed that he has shown increase of Rs.1000/- or Rs.2000/-

in respect of P.F. amount that was paid to 27 Mathadi workers

who have resigned during the period 1989-1990 and 1990-

1991 and that on all 27 resignation cases he has put his own

signature we do not feel the findings of the Enquiry Officer

are perverse. The findings of the Enquiry Officer are based

on the documentary evidence on record as well as the

deposition of Shri. Pednekar. It is not possible for us to re-

appreciate the evidence on record as the fact finding

authority has based on the materials on record come to a

conclusion that the charges levelled against the Petitioner

stand proved. The Petitioner has been granted every possible

opportunity to defend himself and we find no breach of the

principles of natural justice in the conduct of the Enquiry. We

do not find any reason to interfere with the impugned order

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of dismissal in the exercise of our writ jurisdiction. The

Petition is accordingly dismissed with no orders as to costs.

20. Rule is discharged.

           (M.S. KARNIK, J.)                                  ( A.A. SAYED, J.)