Suresh Chand vs The Presiding Officer, Cgit & ...
2008 Latest Caselaw 2312 Del

                                Unreportable

           IN THE HIGH COURT OF DELHI AT NEW DELHI

                            +WP(C) No.168/1991

                                                  Date of Decision: 19-12-2008

#Suresh Chand                                 .....Petitioner
!                                       Through Mr.Sudhir Kulshereshtha

             Versus

$The Presiding Officer, CGIT & Anr.           .....Defendant
^                                       Through Mr. Jagat Arora with
                                        Mr. Rajat Arora for respondent No.2

CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI

      1.Whether Reporters of Local papers may be allowed to see
        the Judgment?
      2.To be referred to the Reporter or not?
      3.Whether the judgment should be reported in the Digest?

A.K. SIKRI, J.

:

1. On 26.12.1972, the petitioner was appointed as a peon in the services of

the respondent No.2 Bank. In November 1992, he was still working as a

peon when Smt. Raj Kali lodged her complaint on 22.11.1992 alleging

that she had given Rs.600/- to the petitioner for depositing in her savings

bank account, but he did not deposite the same and made fictitious entry

her pass-book. Exact allegations in this behalf are contained in the

charge-sheet dated 17.6.1980, which was served upon the petitioner,

alleging as under:-

"On 22.11.1982, Smt. Raj Kali, Account holder of No.18771 of B.O. Modi Nagar (who is your neighbour and whose account was opened with your introduction) gave you Rs.600/- to deposit the same in her account

WP(C) No.168/1991 Page 1 alongwith her pass Book. You did not deposit the said money in her account but made a fictitious entry of Rs.600/- with the Bank and put your initials in the pass Book. You have, thus, cheated a customer of the Bank, and have misused your official position and defrauded the bank. This Act on your part tentamount to gross misconduct in terms of para 19.5(J) of the Bipartite settlement dated 19.10.66 making your liable for disciplinary action."

2. The petitioner denied the charges by submitting his reply; departmental

enquiry was ordered and the enquiry commenced on 21.11.1983. While

this enquiry was in progress, Smt. Raj Kali addressed a letter dated

15.12.1983 to the Manager of the respondent Bank in which it was stated

that she had not made any complaint on the basis of which enquiry was

started and in fact, she had not given Rs.600/- to the petitioner for

depositing in her account. The Bank still decided to proceed with the

enquiry. Enquiry proceedings were concluded on 22.3.1984 on the basis

of which the Enquiry Officer submitted his report dated 19.5.1984

holding that the charges stood proved against the petitioner. Show Cause

Notice dated 30/31.07.1984 was served upon the petitioner. Personal

hearing was also accorded. Thereafter, punishment of dismissal was

imposed upon the petitioner vide orders dated 21.9.1984. The petitioner

preferred departmental appeal before the Appellate Authority, which was

also dismissed on 6.5.1985. Thereafter, the petitioner raised industrial

dispute. Dispute was referred to the Central Government Industrial

Tribunal (in short the 'CGIT') with the following terms of reference:

"Whether the action of the Management of Punjab National Bank in dismissing Shri Suresh Chand, peon

WP(C) No.168/1991 Page 2 from service w.e.f. 21.9.1984 is justified? If not, to what relief the workman is entitled?"

3. Parties appeared before the CGIT. The petitioner filed his statement of

claim to which written statement was filed by the respondent followed by

rejoinder of the petitioner. Evidence was recorded. The learned

Presiding Officer, CGIT, has given his award dated 28.12.1989 in the

said ID No.91/87 holding that enquiry was conducted in accordance with

the provisions contained in para 19.12(a) of the Bipartite Settlement

Agreement and also that principles of natural justice were fully observed.

He has, thus, held that the order of dismissal passed by the respondent

Bank is legal and valid and fully justified. Challenging this award,

present writ petition is filed by the petitioner.

4. The Division Bench issued Rule in this petition on 18.2.1992 and directed

the petitioner to pay Rs.600/- along with interest in the savings bank

account of Smt. Raj Kali. In compliance to that order, the petitioner

deposited demand draft dated 4.3.1992 in the sum of Rs.935.80P. in the

account of Smt. Raj Kali.

5. Perusal of the award of the CGIT would show that the petitioner had

challenged the fairness and justness of the enqiry on the following

grounds:-

"1. That there was no legally admission or substantive evidence in as much as the complainant namely Smt. Raj Kali has not been produced as a witness;

2. That opinion of the handwriting expert could not have been relied upon;

WP(C) No.168/1991 Page 3

3. That the enquiry was bad for the reason that the presenting officer examined himself as a witness;

4. That the Enquiry Officer prevented the workman to produce the documents on the record during the cross-examination of the Management witness;

5. That the enquiry was bad for the reason of non- production of the ledger keeper;

6. That the non-production of original pass book was bad, and

7. That the documents were improperly exhibited by the Enquiry officer."

6. Learned CGIT, however, did not accept any of these grounds. The

learned counsel for the petitioner argued that the findings and

observations of the learned CGIT brushing aside the aforesaid arguments

were clearly erroneous and the learned CGIT has not considered the

matter in proper perspective. With respect to the observations of the

learned CGIT on each ground, the submission of the learned counsel for

the petitioner was as under:

i. In the award of the Ld. Industrial Tribunal, First ground is

discussed about no legal admission evidence. The Tribunal

found that the non-production of the complainant-Rajkali

does not vitiate the enquiry and the deposition of the

management witness is legally admissible and substantive

evidence and it is not necessary that the complainant be

examined in every case. According to the petitioner, the

Ld. Industrial Tribunal failed to apply its mind that the

WP(C) No.168/1991 Page 4 charge was based on a complaint of Smt. Rajkali which was

only thumb impression and it was typed in English and

therefore it was mandatory and in all fairness complainant

Rajkali was required to be examined. The petitioner placed

reliance on the decision of Hon'ble Supreme Court in the

case of Vinod Chaturvedi and Ors. Vs. State of Madhya

Pradesh reported in 1984(2) S.C.C. 350. In this case,

Supreme Court took the view that the examination of writer

was necessary so that the opportunity could be given to the

defence to cross examine the writer otherwise the reliance is

totally misconceived.

ii. With regard to Second ground regarding the opinion of

handwriting expert, the Ld. Tribunal took the view that the

report of the handwirting expert dated 10.9.83 was

produced on the record on 12.12.83 and at that time, no

objection was taken by the defence representative and

therefore the report of handwriting expert is logically

probative and has been rightly relied upon. It is submitted

that the report of the handwriting expert is merely an

opinion and is inducted during the course of enquiry. The

non-examination of handwriting expert is fatal to the

enquiry and it is well settled that the evidence given by the

expert are not conclusive because it is after all evidence.

Relieance is placed by the petitioner on (1) Para 26 of the

WP(C) No.168/1991 Page 5 decision in the case of Ishwari Prasad Vs. Md. Isha

Reported in AIR 1963 S.C. 1728 (2) Para 21 of the

decision in the case of Shashi Kumar Banerjee Vs.

Subodh Kumar reported in AIR 1964 S.C. 529). It is

further submitted that the report of handwriting expert was

not supplied with the charge sheet which is clear from the

dates and it shows that it was procured at a later stage as

suitable to the bank and its credibility and authenticity is

doubtful. It is submitted that in departmental enquiry the

fairness and compliance of the principles of natural justice

are the basic requirement even when not called upon from

the defence.

iii. The Third ground of the petitioner that the presenting

officer cannot appear as a witness has been found without

force. According to the petitioner the conclusion is

unfounded inasmuch as it is well settled law that a witness

cannot be a presenting officer. Reliance is placed on Para

120 of Anil Kumar Ghosh Vs. Union of India reported

in 1990 H.C. Calcutta 299. It is submitted that Sh. A.L.

Gulani who acted as disciplinary authority and issued the

charge sheet was the sole witness in the enqiry by the

management and he was the presenting officer.

iv. On Fourth ground that enquiry is bad for not permitting the

petitioner to use the document/withdrawal letter dated

WP(C) No.168/1991 Page 6 15.12.83 in cross examination, it is submitted that at page

17 of the enquiry register the workman representative

during cross examination of the management witness

inquired about the receipt of the letter dated 15.12.83 from

Smt. Rajkali which was admitted but still it was not allowed

to be used in cross examination. It is submitted that the

very basis of the enquiry is complaint and once it is

withdrawn, the basis of the enqiury disappears and become

non-existent. The effect of letter dated 15.12.89 is

necessary to be considered which has not been done by the

industrial Tribunal.

v. With regard to Fifth ground regarding non-production of

the ledger keeper the Ld. Tribunal took the view that it is

not vitiating the enquiry and it is for the management to

decide what to produce and what not to produce. It is

submitted that the entries of the ledger and the pass book

could only be proved by the ledger keeper and his non-

examination is fatal to the departmental enquiry.

vi. The Sixth ground was about non-production of the original

pass book and the Ld. Tribunal held that it had no force.

The submission of the petitioner's counsel is that when the

photocopy was stated to be fabricated and even the entry

was doubted, it was required in all fairness to produce the

original pass book.

WP(C) No.168/1991 Page 7 vii. The Seventh ground regarding the contention that the

documents were improperly exhibited by the enquiry officer

was rejected having no force, which according to the

learned counsel was not a correct approach.

7. He additionally argued that in any case, even if it is presumed that the charge

is proved, the punishment of dismissal could not be imposed on the basis of

this charge and it does not fall in the category of gross misconduct but would

only be a minor misconduct. Submission was that in Rule 19.5 gross

misconduct is defined. None of the action of the petitioner, even if found to

be proved, fall within the expression "gross misconduct." At the most clause

(g) of Rule 19.7, the attempt to collect money without the permission could

be a minor misconduct and for minor misconduct, the punishment could be as

per 19.8 of the Rules which does not provide for dismissal. At the end, it was

submitted that the fact that the petitioner was a peon and was not discharging

the duties of a clerk or a cashier etc. may also be considered and also that the

petitioner was called upon by this Court to deposit the alleged amount of

Rs.600/- + interest total Rs.935.80 which direction is complied by him

without prejudice to his rights.

8. It was, thus, pleaded that the impugned award be set aside and the reference

answered in favour of the petitioner.

9. Learned counsel for the respondent on the other hand submitted that the scope

of interference with the departmental enquiry in exercise of judicial power

was very limited. Finding of facts recorded by the Enquiry Officer were

WP(C) No.168/1991 Page 8 accepted by the Disciplinary Authority on the basis of which punishment was

imposed. The Tribunal had also gone into the matter and rendered its Award

which again recorded the fact and this Court in exercise of its power under

Article 226 of the Constitution of India would not enter into these findings of

facts. He further submitted that merely because complaint was withdrawn by

the complainant was no ground not to proceed with the enquiry. His

explanation was that the incident was of 26.1182; complaint was made on

20.1.1983 and charge sheet on the basis of said complaint was filed on

17.6.1983. Six months thereafter complaint was withdrawn i.e. on

15.12.1983 which could have been because of the influence exercised by the

petitioner and, therefore, the bank was not obliged to close the proceedings

after the service of charge sheet. Insofar as hand writing expert is concerned,

it was submitted that Enquiry Officer had not relied upon the said report. In

respect of Presenting Officer acting as witness, the learned counsel argued

that no prejudice was suffered by the petitioner thereby. The learned counsel

for the respondent thus beseeched that this Court should not interfere with the

Award and dismiss the writ petition relying upon the following judgments:

i. State Bank of India Vs. Tarun Kumar Banerjee AIR 2000

SC 3028

ii. Union Bank of India Vs. Vishwa Mohan AIR 1998 SC 2311

10. I have considered the respective submissions of both the sides. The

allegations in the complaint were that Smt. Raj Kali had given Rs.600/- to the

petitioner for depositing in her Savings Bank account but he did not deposit

WP(C) No.168/1991 Page 9 the same and made fictitious entry in her pass book. This is clearly a serious

charge and I do not agree with the contention of learned counsel for the

petitioner that it would amount to minor misconduct. Learned counsel had

referred to Para 19.7 of Chapter 19 which stipulates acts and omissions on the

part of an employee constituting minor misconduct. He submitted that case

would be covered by Clause (g) which reads as under:

"19.7 By the expression "minor misconduct" shall be meant any of the following acts and omissions on the part of an employee:

X X X X

(g) attempt to collect or collecting moneys within the premises of the bank without the previous permission of the management or except as allowed by any rule of law for the time being in force"

11. The submission is misconceived. Attempt to collect or collecting moneys

within the premises of the bank signifies lawful collection. However, it is

made minor misconduct if it is done with the previous permission of the

management. It would not deal with the situation where an employee collects

money from a customer and does not deposit in his/her account, retains the

same with him and makes fictitious entry into pass book of the customer.

Such an act would be criminal breach of trust as well as tempering with the

records. It would fall in Clause (j) of Para 19.5 which enlist "gross

misconduct" Clause (j) reads as under:

WP(C) No.168/1991 Page 10 19.5 By the expression "gross misconduct" shall be meant any of the following acts and omissions on the part of an employee:

X X X X

(j) doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss;

12. I also reject the contention of the petitioner that merely because Smt. Raj

Kali had withdrawn the complaint, enquiry should not have been proceeded.

As mentioned above, complaint was made on 20.1.1983 and after the charge

sheet was served upon the petitioner she withdrew the complaint. As it is the

concern of every employer to ensure that the conduct of its employees is

without blemish and keeping in view that there was such a serious charge

against the petitioner, if the bank decided to go with the enquiry, it had the

right to do so (See State Bank of India Vs. Tarun Kumar Banerjee AIR 2000

SC 3028).

13. There may be various reasons for Smt. Raj Kali to withdraw the

complaint. That would also explain that non-production of Smt. Raj Kali as

a witness. The learned Tribunal had dealt with this aspect in the following

manner in the impugned Award.

"Firstly it has been submitted that there was no legal, admissible or substantive evidence as the complainant Smt. Raj Kali has not been produced as a witness. The Management witness at page 4 of the Enquiry Register had deposed that Smt. Raj Kali approached the bank on 18.1.1983 with her Pass Book and further that she submitted a written complaint on 20.1.83 duly typed and put her thumb impression before him. During the cross-examination at page 8 of the Enquiry Register, the Management witness categorically stated that he was basing allegation on WP(C) No.168/1991 Page 11 the basis of the complaint and the personal talk with the complainant. The learned representative for the workman has argued that the witness did not elaborate as to what personal talk was between him and the complainant. The learned representative for the management has rightly submitted that there was no relationship between the witness and the complainant and as such the personal talk referred to in the deposition necessarily implied that the complainant personally talked about her complaint with the Manager and also gave him the typed complaint. Further it was for the representative of the workman to cross-examine the witness on this particular point. The very fact that there was no cross examination on this point established the fact that the complainant made oral complaint as well during her personal talk with the witness and also gave him a written complaint. The learned representative of the workman in support of his contention has relied upon the judgment of the Hon'ble Supreme Court in the case Central bank of India Versus P.L.Jain 1969 II LLJ 377; Khartha and Co. Ltd. Vs. its workman (1963 II LLJ 452) and Union of India Vs. Sardar Bahadur (1972 Lab. IC-627). These authorities relate to the peculiar facts of these very cases and are distinguishable and are not relevant to the facts of the present case. The deposition of the Management witness is legally admissible and substantive evidence and the same carrot be ignored. It is not necessary that the complaint must always be examined in every case. In the authority State of Haryana Vs. Rattan Singh (SC) Lab. Judgments Vol. V page 168, it was held by the Hon'ble Supreme Court as under:-

"It is well settled that in the domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility."

14. The Tribunal also relied upon the judgment of Supreme Court in the case

of J.D.Jain Vs. Management of State Bank of India (Supreme Court Lab.

Judgments Vol. V Page I). That was also a case where the complainant was

WP(C) No.168/1991 Page 12 not examined and the Supreme Court held that enquiry will not be treated as

vitiated on this ground. Insofar as non-production of hand writing expert is

concerned, the Tribunal has dealt with in the following manner:

"With regard to the second ground that opinion of the hand writing expert could not have been relied upon as handwriting expert had not been examined during the enquiry. It may be observed that the report of the Hand-writing expert was produced on the record on 12.12.1983 and at that time no objection whatsoever was taken by the defence representative, and in fact the defence representative had cross- examined the Management witness at length on the opinion of the handwriting expert. The hand writing expert opinion was never disputed by the defence representative at any point of time during the course of enquiry, on the ground that it was inadmissible in the absence of the production of the handwriting expert himself. The very fact that the defence representative cross-examined the witness at length on the report of the handwriting expert goes to show that any objection regarding the admissibility of the report of the hand writing expert without actually producing the handwriting expert had been given up. As has been stated hereinabove, the strict rules of Indian Evidence Act are not applicable to the domestic enquiry and all material which is logically probative for prudent mind is permissible and admissible. The report of the handwriting expert is logically probative and as such the same has been rightly relied upon by the Enquiry Officer in support of her conclusion."

15. For the proposition that Presenting Officer cannot be a witness, the

petitioner has relied upon the judgment of the Calcutta High Court in the case

of Anil Kr. Ghosh Vs. Union of India, 1990 I CLR 299. However, this

judgment stands overruled by the Supreme Court in Director General, ICMR

& Ors. Vs. Dr. Anil Kr. Ghosh and Anr., 1999 (1) LLJ SC 1036. Therefore,

there is no force in this ground either.

WP(C) No.168/1991 Page 13

16. However, the petitioner has been able to make out a case of interference

in view of his following two arguments, namely,

(a) whether the Presenting Officer could prove the report of the

handwriting expert or for proving the same the handwriting expert

himself was to be produced as a witness; and

(b) whether non-production of original pass-book to prove the

charge is vital.

17. The Presenting Officer appeared and produced the report of the

handwriting expert. For proving this report the handwriting expert was not

produced. There is a force in the contention of the learned counsel for the

petitioner that evidence given by the expert is not conclusive and the veracity

of the report is to be decided after the cross-examination of the expert. In the

present case, as per the petitioner, even that report of the handwriting expert

was not supplied with the charge-sheet. In the absence of the handwriting

expert the petitioner was denied opportunity to cross-examine him and

therefore, it would be violation of principles of natural justice. The Inquiry

Officer has heavily relied upon the said report for indicting the petitioner in

the inquiry. Therefore, the handwriting expert should have been produced to

prove his report. The prejudice is writ large in not adhering to this course of

action.

18. I also find merit in the submission of the learned counsel for the

petitioner that non-production of the original document, i.e., at least the

ledger, which was in possession of the bank and from where entries could be

WP(C) No.168/1991 Page 14 proved, would be fatal to the departmental inquiry.

19. The learned Tribunal has taken the view that it was for the management

to decide what to produce and what not to produce. However, having regard

to the nature of the charge, the same could be proved from the ledger showing

that there is no credit in the account of the complainant whereas the petitioner

had shown that credit in the pass-book. Non-production of ledger is,

therefore, fatal.

20. On these two grounds, therefore, inquiry is vitiated.

21. With this I come to the vital question of relief. The incident is of the

year 1992. Eighteen years have gone by. The petitioner is 57 years of age.

The age of superannuation is 60 years. Therefore, no useful purpose would

be served at this stage to hold fresh inquiry. At the same time since the

inquiry is vitiated on technical ground, the petitioner also should not be given

full back wages. While setting aside the punishment and reinstating the

petitioner, ends of justice would meet if the petitioner is granted 25% of the

wages for the intervening period and no other financial benefits.

22. The impugned award is accordingly set aside and the writ petition is

allowed in the aforesaid terms. The petitioner shall also be entitled to costs

quantified at Rs.5,000/-.

  December ____, 2008                                   (A.K. SIKRI)
  HP/skk                                                   JUDGE




WP(C) No.168/1991                                                         Page 15