Bombay High Court
Shivaji Bhimrao Kendre vs Nanded D.C.C.Bank L.Nanded Thru ... on 22 June, 2017
Bench: R.V. Ghuge
WP/4156/1998
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4156 OF 1998
Shivaji Bhimrao Kendre,
Age 52 years, Occ. Nil
r/o at post Mala Koli,
Taluka Loha, Dist. Nanded. ..Petitioner
Versus
The Nanded District Central
Cooperative Bank Limited,
Head Office, Station Road,
Nanded through it's
Managing Director, Nanded. ..Respondent
...
Advocate for Petitioner : Shri Mundhe Subhash V.
Advocate for Respondent : Shri Suryawanshi Kamlakar J.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 22, 2017
...
ORAL JUDGMENT :-
1. Both the learned Advocates have no objection, if this
Court hears this matter.
2. The petitioner is aggrieved by the judgment of the
Industrial Court dated 5.2.1998, by which, Revision (ULP) No.
52 of 1995 filed by the respondent / Bank has been allowed
and the judgment of the Labour Court dated 30.6.1995 in
Complaint (ULP) No.92 of 1993 has been quashed and set
aside.
WP/4156/1998
3. Shri Mundhe, learned Advocate for the petitioner /
employee strenuously submits that though he was charged
with having committed major misconducts vide charge sheet
dated 2.4.1992, the charge of mis-appropriation was never
levelled upon him. The description of the three charges in the
charge sheet may appear to be grave. However, if the charges
are minutely scanned, it is apparent that due to heavy flow of
work and a busy schedule, certain cheques which were stale,
were inadvertently cleared and payments were made. He
was, however, not the only person involved since clearing of a
cheque by the Clerk or Cashier ultimately reaches the table of
the Branch Manager.
4. Under the first charge, some cheques are said to have
been passed and under the second charge a stale cheque has
been passed and under the third charge, some cheques have
been cleared though there were no funds in the drawers'
accounts.
5. He has then drawn my attention to the fifteen grounds
raised in the memo of the petition. He has also placed before
the Court the synoptical notes dated 18.4.2017 and has
WP/4156/1998
canvassed at length that no charge has been proved against
the petitioner. He has further stated that the petitioner has
put in 22 years of unblemished service and all his retiral
benefits have been taken away on account of the impugned
dismissal dated 2.7.1993.
6. He further submits that the Labour Court, by judgment
dated 30.6.1995, had allowed Complaint (ULP) No.92 of 1993,
filed by the petitioner and after concluding that the petitioner
is guilty of negligence, had reduced the punishment from
dismissal to demotion to the lower post for a period of two
years. He, therefore, submits that the impugned judgment of
the Industrial Court deserves to be quashed and set aside.
7. The learned counsel for the respondent submits that the
Standing Orders applicable to the Bank do not specifically use
the word 'misappropriation'. This impression has to be
inferred after considering the charges that are held to be
proved against the petitioner. Under the first charge, the
petitioner had prepared cheques in the names of those
agriculturists, who had not actually been involved in the sale
of cotton with the Kandhar Taluka Sahakari Kharedi Vikri
Sangh Limited (Cotton Division). Without confirming the list of
WP/4156/1998
agriculturists and the actual amounts to be paid, larger
amounts were mentioned in the cheques and those
agriculturists benefited from such excess payment. It has to
be inferred as to why the petitioner has illegally obliged such
Cotton Growers by giving them excess payments.
8. He then submits that charge Nos.2 and 3 were with
regard to clearing stale cheques, which is also impermissible
in law. The Reserve Bank of India Guidelines would not permit
such transactions and eventually, it would be the Bank which
would suffer serious action, which could be initiated by the
appropriate authorities.
9. Upon considering the submissions of the learned
Advocates, I find that the Labour Court has declared the
findings of the Enquiry Officer as partly perverse with regard
to the first charge, which is more serious i.e. with regard to
the making of excess payment in reference to bogus cheques
and Cotton Growers being unduly benefited out of such acts.
Though the entire record of the actual payments to be made
and the actual amounts mentioned in the cheques were
before the Enquiry Officer as well as the Labour Court, a
conclusion has been drawn by the Labour Court that as
WP/4156/1998
clearing of such cheques was not exclusively within the job
profile of the petitioner, the said charge cannot be said to be
true.
10. This conclusion is apparently unsustainable since in
service jurisprudence, the charges can be proved on the
preponderance on the principles of probabilities. Though it
may not exclusively be a duty of the petitioner to scrutinize
the actual payments to be made and the amounts to be
written on the cheques, it is not disputed that he had prepared
such cheques, which were forwarded to the higher authorities
for signature and clearing. Considering the heavy work in the
Bank, it cannot be ruled out that the superior authorities, who
most of the times depend upon the ground work performed by
the employees like the petitioner, have lost sight of such acts.
In this backdrop, the Industrial Court has rightly concluded
that the first charge set aside by the Labour Court, is an
erroneous conclusion.
11. In so far as the second and third charges are concerned,
regarding clearing of stale cheques, it is an open and shut
case since the dates on the cheques and the presentation of
the cheques for crediting indicated that they were sought to
be credited beyond six months as was then permissible.
WP/4156/1998
12. Considering the above, I do not find that the impugned
judgment of the Industrial Court would be termed as being
perverse or erroneous. This petition being devoid of merits is,
therefore, dismissed.
13. Rule is discharged.
14. At this stage, learned Advocate or the petitioner submits
that his retiral benefits are lying with the respondent. On this
count, I leave it open to the petitioner to approach the
respondent / Bank and in which case, the respondent would
consider the claims of the petitioner as regards retiral benefits
in accordance with Rules and provisions and would take a
decision, to be communicated to the petitioner within a period
of eight weeks from the date of any representation.
( RAVINDRA V. GHUGE, J. )
...
akl/d
