R.K.Srivastava vs The Mgmt. Of Bank Of Baroda & Anr.
2013 Latest Caselaw 4445 Del

$~9


*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 883/2005

                                         Decided on 27th September, 2013

      R.K.SRIVASTAVA                                      ..... Petitioner

                           Through:      Mr. Deepak Anand, Adv.

                           versus

      THE MGMT. OF BANK OF BARODA & ANR. ..... Respondents

                           Through:      Mr. R.R. Kumar and Mr. Bharat
                                         Singh, Advs.



CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

CM Nos. 11946/2013 (Restoration) and CM No. 11947/2013 (u/Sec. 5 of the Limitation Act)

For the reasons explained in the applications delay is condoned and

writ petition is restored at its original number.

Both the applications are disposed of.

W.P. (C) 883/2005

1. Present writ petition has been filed by the petitioner under Article

226 of the Constitution of India aggrieved by the Award dated 22nd July,

2004 passed by the Central Government Industrial Tribunal-cum-Labour

Court (CGIT).

2. The dispute referred to CGIT for adjudication is as under :-

"Whether the action of the management of Bank of Baroda, New Delhi in dismissing Shri R.K. Srivastava, account-cum- cashier clerk from service w.e.f. 31.1.1989 is justified. If not, to what relief the workman is entitled to?

3. Briefly stated facts, relevant for the purpose of disposal of this writ

petition, are that petitioner was appointed as Accounts-cum-Cash Clerk

with the respondent no.1 in the month of September, 1982. A

departmental enquiry was held against the petitioner on the following

charges:-

"During the period, he was functioning as Accounts-cum- clerk at Daryaganj, New Delhi branch.

a) He fraudulently withdrew `4500/- on 14.1.1987 and again on 15.1.1987, he withdrew `4500/- from SB A/C No. 894 of Mrs. Pruthi.

b) On 8.1.1987, he fraudulently withdrew `1500/- from SB A/C No. 741 of Mohd. Ayub Khan.

c) On 19.1.1987, he fraudulently withdrew `1500/- from SB A/C No. 1135 of Shri Radhey Shyam.

d) The debit instruments were unauthorisedly entered into payment scroll by him.

c) On 30.1.1987, he fraudulently withdrew `700/- from SB A/C No. 1052 of Shri Hanuman J.S. Prohit.

f) After fraudulently withdrawing the above mentioned amounts, he destroyed/stole the debit instruments."

4. Charge-sheet was served on the petitioner alleging therein that his

above acts constituted misconduct. Enquiry Officer was appointed who

conducted the enquiry. Petitioner participated in the enquiry. After

completing the enquiry, Enquiry Officer concluded that charges levelled

against the petitioner were duly proved. Enquiry Officer submitted his

report to Disciplinary Authority, that is, Regional Manager. On the basis

of enquiry report Disciplinary Authority terminated the service of

petitioner. Appeal was dismissed by the Appellate Authority.

5. Petitioner alleged before the Industrial Adjudicator that charge-

sheet was served on false and fabricated charges. During the enquiry

petitioner was not given ample opportunity to defend himself. He was not

granted permission to be represented by an advocate. Petitioner had made

it clear to the Enquiry Officer that the charges were of grave and serious

in nature and since he was not well conversant with the departmental

proceedings, he be permitted to engage an advocate to defend himself but

his request was declined. Petitioner has dismissed on the instructions of

his superiors. Mr. Malhotra, Manager of the Bank had asked the

petitioner to help one customer, namely, Mrs. Rekha Pruthi in depositing

`9,000/- in her account. Accordingly, petitioner helped the said customer

by writing the pay-in-slip regarding cash deposit, as per the directions of

Branch Manager. Mrs. Pruthi had issued a wrong cheque herself.

Statement of Sh. Malhotra, Sh. R.C. Jain, Sh. S.K. Sharma and Sh. A.K.

Singhal were recorded before the Enquiry Officer as managements'

witnesses on the pretext that a mere formality was being observed but no

action would be taken against the petitioner. Enquiry Officer as well as

Presiding Officer made the petitioner to sit during the enquiry as a silent

spectator. The enquiry was, thus, vitiated.

6. In written statement, respondent no.1 denied the afore-stated

allegations. It was alleged that petitioner was occupying post of utmost

trust and confidence. Petitioner committed forgery and misappropriation

of customers' money. Charge-sheet detailing the charges was duly

acknowledged by the petitioner. During the enquiry petitioner deposited

the amounts in the accounts of respect account holders from which he had

withdrawn the money. Had petitioner not withdrawn money from the

accounts of the customers he would not have subsequently deposited the

same of his own. Since the petitioner had deposited the money no

criminal action was taken against him. Petitioner had misappropriated the

funds and had breached the trust and confidence reposed by the

respondent in him, thus, was rightly awarded punishment of dismissal

from service. During the enquiry petitioner was afforded opportunity to

cross-examine the witnesses of respondent no. 1 but he declined. He also

did not examine any witness in his defence though opportunity was

afforded to him. Opportunity of personal hearing was also afforded to the

petitioner.

7. It has been held by the Industrial Adjudicator that in the

departmental enquiry petitioner could have defended himself by

appointing any official or office bearer of the Union in terms of Bipartite

Settlement. In departmental enquiries delinquent cannot claim as a matter

of right to be represented through an advocate. Petitioner was afforded

opportunity to cross-examine witnesses but he himself opted not to cross-

examine them. All the relevant papers of misappropriation were proved

in the enquiry, inasmuch as, report of handwriting expert was also

produced. Though the handwriting expert was not examined but

Industrial Adjudicator himself compared the handwriting of petitioner

appearing on the questioned documents with the admitted signatures of

the petitioner to conclude that there was a close resemblance in both the

handwritings. Industrial Adjudicator further observed that petitioner

himself admitted that entire proceedings were conducted in his presence;

he had deposited the entire disputed amount in the customer's accounts

which act of his itself indicated his involvement regarding

misappropriation of money from the accounts. Industrial Adjudicator has

concluded that enquiry was conducted in a fair and proper manner,

inasmuch as, principles of natural justice were duly followed. It was

further held that misconduct was serious and grave in nature, thus,

punishment of removal from service was not disproportionate to the

misconduct and required no interference.

8. I have heard the learned counsel for the parties and also perused the

record. It is not the case that enquiry was held behind the back of

petitioner. Petitioner remained present during the enquiry. Witnesses

were examined in his presence. He was afforded opportunity to cross-

examine them but he chose not to avail that opportunity. For this act he

cannot put blame on anyone else except upon himself. In a domestic

enquiry there is no requirement of providing an advocate to a delinquent,

thus, if such a permission was declined nothing wrong can be found with

this approach. It is not the case that respondent no.1 was represented

through a lawyer. Had the respondent no.1 been represented through a

lawyer the petitioner would have been entitled to similar treatment. Four

witnesses were examined before the Enquiry Officer who deposed against

the petitioner. Petitioner was afforded opportunity to lead evidence in his

defence but he did not produce any witness in the witness box.

9. Learned counsel for the petitioner has vehemently contended that

Mrs. Rekha Pruthi, one of the account holders, was not produced in the

witness box. That apart, Smt. B. Maya, Special Assistant working in

Darya Ganj Branch of respondent no.1 was not produced. They were

material witnesses to prove the charge of misappropriation from the

account of Mrs. Rekha Pruthi. In my view, non appearance of these

witnesses would not be fatal, inasmuch as, respondent no. 1 had examined

four witnesses, namely, Sh. Malhotra, Sh. R.C. Jain, Sh. S.K. Sharma and

Sh. A.K. Singhal who were working in the same branch and had deposed

against the petitioner regarding the charges which were enquired upon.

Learned counsel has further contended that hand writing expert was not

produced and his non-production was also fatal as in his absence

signatures of petitioner on disputed documents remained unproved. I do

not find much force in this contention. Industrial Adjudicator has

categorically observed that he had gone through the report of hand writing

expert and compared the questioned writings with admitted writings

himself and was of the view that questioned and admitted writings were of

one and the same person as there was close resemblance in both the hand

writings. In Lalit Popli vs. Canara Bank and Ors. AIR 2003 SC 1796,

Supreme Court held, thus, "irrespective of an opinion of the handwriting

expert, the Court can compare the admitted writing with disputed writing

and come to its own independent conclusion. Such exercise of

comparison is permissible under Section 73 of the Evidence Act.

Ordinarily, Sections 45 and 73 are complementary to each other.

Evidence of handwriting expert need not be invariably corroborated. It is

for the Court to decide whether to accept such an uncorroborated evidence

or not. It is clear that even when experts evidence is not there, Court has

power to compare the writings and decide the matter". Reliance was

placed on Murari Lal vs. State of Madhya Pradesh 1980 CriLJ 396. It was

further observed that Enquiry Officer and the Disciplinary Authority took

pains to carefully consider the handwriting expert's report and also looked

at the documents to arrive at their own conclusion. It is also well settled

that the approach and objective in criminal proceedings and the

disciplinary proceedings are altogether distinct and different. In the

disciplinary proceedings the preliminary question is whether the employee

is guilty of such conduct as would merit action against him; whereas in

criminal proceedings the question is whether the offences registered

against him are established and if established what sentence should be

imposed upon him. The standard of proof, the mode of enquiry and the

rules governing the enquiry and trial are conceptually different. In case of

disciplinary enquiry the technical rules of evidence have no application.

The doctrine of "proof beyond doubt" has no application. Preponderance

of probabilities and some material on record are necessary to arrive at the

conclusion whether or not the delinquent has committed misconduct.

10. Industrial Adjudicator has perused the record and returned a

categorical finding that the enquiry was conducted in a fair and proper

manner, inasmuch as, principles of natural justice were followed. The

findings of facts returned by the Industrial Adjudicator upon appreciation

of material before it cannot be interfered by this Court in exercise of

power of judicial review under Article 226 of the Constitution. In New

India Flour Mills and another vs. Sixth Industrial Tribunal, West Bengal

and others 1963 1 LLJ 745, a Single Judge of Calcutta High Court has

observed thus, "It is difficult for me, sitting in constitutional writ

jurisdiction, to interfere with a findings of facts, even though the findings

may have been arrived at on a wrong evaluation of evidence". Power of

High Court of judicial review under Article 226 of the Constitution is

limited. High Court would step in, in case, award is based on no evidence

or suffers from any manifest error of law. If the Award of the Industrial

Adjudicator is based on some evidence, the High Court would refrain

from interfering on technical grounds.

11. In Calcutta Port Shramik Union vs. Calcutta River Transport

Association and Others, (1989) 1 L.L.N. 1, Supreme Court held thus:-

"In all such cases an attempt should be made by Courts exercising powers of judicial review to sustain as far as possible that awards made by Industrial Tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the Tribunals by striking down awards on hyper-technical grounds. Unfortunately, the orders of the Single Judge and of the Division Bench have resulted in such frustration and have made the award fruitless on an untenable basis."

12. Above all, admittedly, petitioner had himself deposited the money

during the enquiry which was withdrawn by him from the customers'

accounts. His this act amounts to admission of guilt by him. That apart,

guilt of petitioner was duly proved during the enquiry. Findings of facts

returned by the Enquiry Officer upon appreciation of evidence have

rightly not been interfered by the Industrial Adjudicator. In State Bank of

Bikaner and Jaipur vs. Nemi Chand Nalwaya AIR 2011 SC 1931,

Supreme Court held thus "the courts will not act as an appellate court and

reassess the evidence led in the domestic enquiry nor interfere on the

ground that another view is possible on the material on record. If the

enquiry has been fairly and properly held and the findings are based on

evidence, the question of adequacy of the evidence or the reliable nature

of the evidence will not be a ground for interfering with the findings in

departmental enquiries. Therefore, courts will not interfere with findings

of fact recorded in departmental enquiries, except where such findings are

based on no evidence or where they are clearly perverse. The test to find

out perversity is to see whether a tribunal acting reasonably could have

arrived at such conclusion or finding, on the material on record. Courts

will however interfere with the findings in disciplinary matters, if

principles of natural justice or statutory regulations have been violated or

if the order is found to be arbitrary, capricious, mala fide or based on

extraneously considerations". In Divisional Controller, KSRTC

(NWKRTC) vs. A.T. Mane 2005 (1) ALT 18 (SC), Supreme Court has

held that once a domestic tribunal based on evidence comes to a particular

conclusion normally it is not open to the appellate tribunals and courts to

substitute their subjective opinion in the place of the one arrived at by

domestic tribunal.

13. Findings of facts returned in the domestic enquiry as also by the

Industrial Adjudicator cannot be interfered with by this Court in exercise

of its power under Article 226 of the Constitution. Writ jurisdiction

cannot be compared with the appellate jurisdiction. In exercise of its

power of judicial review this Court can interfere only if the award is based

on no evidence or is perverse in the sense that no prudent person can

arrive at a finding on the evidence adduced by the parties which Industrial

Adjudicator has taken. In Lalit Popli (Supra), Supreme Court has held

thus "while exercising jurisdiction under Article 226 of the Constitution,

the High Court does not act as an appellate authority. Its jurisdiction is

circumscribed by limits of judicial review to correct errors of law or

procedural errors leading to manifest injustice or violation of principles of

natural justice. Judicial review is not akin to adjudication of the case on

merits as an appellate authority".

14. In the instant case, I do not find any manifest error of law or

jurisdiction nor is it case of no evidence. Petitioner's counsel has placed

reliance on State Bank of India vs. J.R. Surma 2002 VII AD (Delhi) 325

which I find to be in the context of different facts.

15. In the light of above discussions, writ petition is dismissed.

A.K. PATHAK, J.

SEPTEMBER 27, 2013 ga