Bombay High Court
R.B.Mane vs The Railway Goods Clearin G & ... on 14 August, 2017
Bench: A.A. Sayed
WP 1304-2002.doc
DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1304 OF 2002
R.B. Mane
Indian inhabitant of Thane
residing at Gajanan Nagar,
Shankar Colony, Chawl No.C/5,
Ulhasnagar, Thane 400 604. ...Petitioner
versus
1. The Railway Goods Clearing and
Forwarding Establishment Labour
Board for Greater Bombay and
Authority constituted under
Section 6 of the Mathadi Act, 1969
having its office at 84-A Broach
Sadan, Devji Ratansey Marg,
Danabundar, Mumbai 400 009.
2. The Chairman,
The Railway Goods Clearing
Forwarding, Labour Board for
Greater Bombay having his office
at 84A, Broach Sadan, Devji Ratansey Marg,
Danabundar, Mumbai 400 009. ...Respondents
Mr. Mahendra Agavekar i/by V.P. Vaidya, for Petitioner.
Mr. Sanjay Prabhakar Shinde, for Respondent nos.1 and 2.
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WP 1304-2002.doc
CORAM : A.A.SAYED AND
M.S.KARNIK, JJ.
RESERVED ON : 2nd August, 2017.
PRONOUNCED ON : 14th August, 2017.
JUDGMENT (PER M.S. KARNIK, J.) :-
The challenge in this Petition is to the dismissal order
dated 15/4/2002 passed by the respondent-Board pursuant to
disciplinary proceedings initiated against the petitioner. The
petitioner joined the services of the respondent-Board as a clerk in
November, 1986. Sometime in 1994 the respondent-Board alleged
that the petitioner made entries in Provident Fund Register during
the period 1989-1990 and 1990-1991 which shows discrepancies
resulting in loss to the Board. A charge-sheet was issued to the
petitioner on 6/3/1998. The charges in brief are as under :-
"1) While preparing Resignation cases of total 7 workers during the
financial year 1992-93 in the year 1991-92, a sum of Rs.10,000/- is
increased in the P.F. Contribution of the worker and a sum of Rs.
10,000/- in the Board's contribution. Thus, you have cause a loss of
Rs.20,000/- to the Board (Schedule 'A' is annexed hereto and xerox
copies of the relevant documents are being supplied.)
2) By making alterations in the entries in the P.F. Account Book of X
Board's workers and by increasing the Board's contribution and
obtaining signatures of the Board's Chairman & Secretary, there on, have
thereby cheated the Board.
3) By not discharging your duties as a clerk, you have violated the
code of conduct of the Board.
4) You lost the faith of the Board."
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2. The petitioner disputed his involvement and pointed out
that handwriting of the disputed entries are not his and asked the
respondent to verify the same. Learned Counsel invited our attention
to the Inquiry Officer's report and evidence of Shri Pednekar. During
the course of the inquiry, the evidence of Shri Pednekar was recorded.
In the submission of the petitioner Shri Pednekar joined in 1994 and
therefore he deposed merely on the basis of the entries made in the
Provident Fund register. The Inquiry Officer recorded findings that
the charges levelled against the petitioner are proved. By the
impugned order dated 15/4/2002 the petitioner was dismissed from
the services of the respondent-Board. Learned Counsel for the
petitioner assailed the Inquiry Officer's report. In his submission the
Inquiry Officer has based his findings on the evidence of Shri
Pednekar who was not competent to depose as a witness. According
to him, Shri Pednekar had joined as an Accountant only in 1994 and
therefore could not be privy to the alleged incidents of 1989-1990
and 1990-1991, Shri Pednekar has deposed only on the basis of the
records. Learned Counsel further submits that his duty was to record
the entry in the Register as forwarded to him by the other clerk and
therefore he had merely copied what was sent to him. In his
submission the petitioner is not responsible for the said
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manipulations. His duty was only to verify if the entries in the
Register are similar. In the submission of the learned Counsel for the
petitioner the Inquiry Officer has not considered his defence and
hence mechanically held that the findings levelled against the
petitioner has been proved.
3. Learned Counsel further submitted that there is a gross
delay in initiating the inquiry which vitiates the inquiry. Learned
Counsel relied upon the decision of the Apex Court in the case of
Moni Shankar v. Union of India & anr. (2008) 3 SCC 484 to
contend that the evidence adduced during the course of the inquiry
will have to be taken into consideration if the requisite standard of
proof (preponderance of probability) is met and that this Court has
power to interfere where the test of proportionality is not satisfied.
4. In the submission of the learned Counsel the Inquiry
Officer has only relied upon that part of the evidence of Shri
Pednekar which was favourable to the management and has
conveniently ignored the material evidence in favour of the
petitioner.
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5. Learned Counsel for the respondents on the other
submitted as under :-
(a) In the years from 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 a huge amount 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 day of the month to 12th day of the month, with the table
clerks by the registered employers. About seventy-five percent 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
bank 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.
(b) The fraud came to light in the year 1992 when the said
auditor Mr. S.D. Gunjal appointed by the Government submitted the
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audited balance sheet for the year 1991-92 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 that 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 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 of the
Board 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
Rs.1,12,12,000/- had been siphoned off by these employees in
collusion and connivance with each other and in criminal conspiracy.
The said employees falsified and fabricated accounts, and in the case
of cash misappropriation, they destroyed the relevant documents and
WP 1304-2002.doc
records. The respondent no.1 Board lodged a complaint with the Anti
Corruption Bureau, and pursuant to the said complaint eight
employee including petitioner were arrested. Charge-sheets have
been filed against all eighteen employees, and the cases against the
said employees are pending in Special Court, Mumbai.
(c) During the year 1990-91 and 1991-92, the petitioner was
working as a Clerk in Provident Fund Section. As provident fund
clerk, the petitioner was in charge 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, was
thereafter required to post provident fund deductions of the worker
from the said provident fund chart in the main provident fund
register. At the end of the financial year, the concerned table clerk
posts calculates the total amount of provident fund deductions and
posts it in the provident fund deduction statement or provident fund
WP 1304-2002.doc
chart. The provident fund clerk is also required to draw up the total
provident fund accumulations of the provident fund and totally 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 amount
payable to the worker as well as the gratuity and to submit the same
assistant accountant. The disbursement of the said provident fund
and gratuity was done by the provident fund clerk.
(d) The Board in a special audit conducted in the year 1994-
95 and 1995-96, found that the petitioner had paid excess amount by
way of workers provident fund contributions and the Board's
provident fund contributions in 27 cases totaling to Rs.20,000/-. 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 years were
changed/altered by the petitioner to an inflated amount. The
petitioner thereafter showed the same amount as the provident fund
contributions payable by the Board. In the audit it was found that the
totals worked out by the petitioner in the Main Provident Fund
Register did not tally with the totals drawn up and posted by the
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table clerk in his Provident Fund Chart. It was also found that the
amounts in most cases was paid to the workers partly by cheque and
partly by cash and in some entirely in cash.
6. In the enquiry the representative of the management
produced all documents relied upon by it particularly the provident
fund deduction statement/provident fund chart maintained by the
table clerk and the main provident fund register maintained by the
petitioner and the 7 cases showing the settlement of claims of
provident fund wherein inflated provident fund amounts are paid to
the workers. The said documents were duly proved by the
management representative. The petitioner in his statement of
defence has admitted he prepared the 7 cases and that the signature
there under was his own.
7. In his submission, on the basis of the documentary
evidence and the deposition of Shri Pednekar the Inquiry Officer held
the charges as proved. In his submission the charges are serious and
in view of the findings recorded by the Inquiry Officer having
regarded to the gravity of the charges it cannot be said that the
punishment of dismissal is disproportionate.
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8. We have considered the submissions made by the learned
Counsel. Before the Inquiry Officer the evidence of Shri Pednekar,
Accountant was recorded in support of the charges framed against
the petitioner. In his deposition he has stated that he does all the
work pertaining to the accounts and that the Provident Fund
Department falls under his control. In his deposition Shri Pednekar
has stated that the petitioner was looking after the work of Table no.
15,16,17,18, 19 and 20. All the resignation cases have been prepared
by the petitioner and accordingly has made entries in the Register.
The figures at Exh.M-18 are in the handwriting of the petitioner. The
Inquiry Officer noted that even the stand of the petitioner while cross
examining witness Shri Pednekar appears to be that the petitioner
had increased the provident fund amount in order to obey the orders
of his superiors and to avoid their grudge. The Inquiry Officer noted
that the defence Counsel had attempted to indirectly suggest that
Shri Chandane (Accountant who was also proceeded departmental
inquiry) directly or indirectly through Shri Savale (also charge-
sheeted) had attempted to pressurise the petitioner for showing the
excess amount. In the cross-examination the petitioner admitted that
the first page in resignation cases in Exh.M-15 to 20 bears his
signature. The Inquiry Officer took into consideration the admission
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of the petitioner that he does not have any strong evidence in support
of the contention that the Assistant Accountant and Accountant may
have increased the amount of provident fund. The petitioner has also
admitted that seven workers in the resignation cases have been paid
Rs.20,000/- of the Railway Board in excess. In so far as these cases
are concerned, the petitioner admitted that he had prepared the cases
of the seven workers who had resigned. The Inquiry Officer on the
basis of the material on record and the admission given by the
petitioner has come to the conclusion that the resignation cases were
prepared by the petitioner in his own handwriting increasing the
provident fund amount. The Inquiry Officer has come to the
conclusion that due to the increase in the provident fund amount loss
of Rs.20,000/- has been caused to the Board. These amounts have
been paid to the workers who had resigned which fact has been
admitted by the petitioner in his cross-examination. In this view of
the matter, on the basis of the documentary evidence produced by the
respondents and the oral evidence the Inquiry Officer held charge
nos.1, 2 and 3 as proved.
9. The learned Counsel for the Respondents relied upon the
decision of the Apex Court in the case of Food Corporation of India
WP 1304-2002.doc
& 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.
10. Learned Counsel for the Respondents also relied on the
decision of the Apex Court in the case of Chief Executive 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. It is only
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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".
11. In this view of the matter we do not find any reason to
interfere with the impugned order. The findings of the Inquiry Officer
are based on the evidence on record and it is not possible for us to re-
appreciate the evidence on record in the exercise of writ jurisdiction.
We do not find that there is any perversity in the findings recorded by
the Inquiry Officer. The inquiry has been conducted by following
principles of natural justice and adequate opportunity has been
granted to the petitioner to defend the charges levelled against him.
We therefore do not find any merit in the present Petition and the
same is therefore dismissed with no order as to costs.
12. Rule to stand discharged.
(M.S.KARNIK, J.) (A.A.SAYED, J.)
