Bank Of India vs The Ld. Presiding Officer Cgit ...
2014 Latest Caselaw 6862 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision:- 16th December, 2014

+                                 W.P.(C) No.718/2003

        BANK OF INDIA                                            ..... Petitioner
                     Through:            Mr. Rajat Arora, Adv.

                                     Versus

    THE LD. PRESIDING OFFICER
    CGIT DELHI & ANR.                         ..... Respondents

Through: Ms. Leena Tuteja, Adv. for R-2.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 226 of the Constitution of India impugns

the Award dated 3rd October, 2002 of the Industrial Tribunal-cum-Labour

Court, New Delhi in I.D.No.17/1994, answering the following reference:-

"Whether the action of the Management of Bank of India in dismissing Shri Satya Prakash Sharma, Agricultural Assistant from service w.e.f. 5th October, 1992 is justified? If not, what relief is the workman entitled to?"

in favour of the respondent no.2 workman and setting aside the order

dated 5th October, 1992 of the Disciplinary Authority of the petitioner Bank

(of dismissal of the respondent no.2 workman from the services of the

petitioner Bank and of recovery of Rs.4,000/- with interest from the

respondent no.2 workman) and directing the petitioner Bank to reinstate the

respondent no.2 workman in service with full back wages and all

consequential benefits.

2. Notice of the petition was issued and vide ex parte ad interim order

dated 28th January, 2003, the operation of the impugned Award stayed.

Pleadings were completed. Vide order dated 11th May, 2004 on the

application of the respondent no.2 workman under Section 17B of the

Industrial Disputes Act, 1947, the petitioner Bank, without prejudice to its

rights and contentions, agreed to pay a sum of Rs.5,425/- per month to the

respondent no.2 workman w.e.f. 17th September, 2003. Though, the parties

were referred to mediation but without any success. Rule was issued in the

petition on 18th May, 2007. The respondent no.2 workman filed CM

No.18042/2007 stating that the petitioner Bank, during the pendency of the

industrial dispute, had come out with Pension Regulations, 1995, giving an

option to all the employees of the Bank to avail benefit thereof; however

since the service of the respondent no.2 workman had been terminated, the

respondent no.2 workman was not informed thereof and thus could not

exercise the option as required to be exercised under the said scheme and,

seeking a direction to the petitioner Bank to allow the respondent no.2

workman to exercise such option at that stage so as to become entitled to the

benefits of the said scheme. This application is also pending consideration.

On 15th March, 2010 it was informed that the respondent no.2 workman

attained the age of superannuation on 31st October, 2009 and hence the

payment under Section 17B of the ID Act had been stopped since

November, 2009. The counsel for the petitioner Bank and the counsel for the

respondent no.2 workman have been heard.

3. The respondent no.2 workman Shri Satya Prakash Sharma working as

Agricultural Assistant with the petitioner Bank was on 24 th November, 1990

charge sheeted for depositing a cheque for Rs.4,000/- received from New

India Assurance Company towards insurance claim of a buffalo financed by

the petitioner Bank to one Mr. Mool Chand Sharma, in the account of the

said Mr. Mool Chand Sharma (borrower) instead of in the loan account of

the said borrower with the petitioner Bank and having further, inspite of

fully knowing that the amount so deposited could not be withdrawn, having

obtained a blank signed withdrawal form from the said borrower and having

filled up the said form and having withdrawn the said amount of Rs.4,000/-

from the account of the borrower; he was also charged with having received

in cash Rs.700/- from the borrower misrepresenting to the borrower that the

said amount of Rs.4,000/- and Rs.700/- would be deposited in the loan

account, and having never deposited the said amount or any part thereof in

the loan account of the borrower with the petitioner Bank and having

misappropriated the said sum.

4. A departmental inquiry was conducted and the Inquiry Officer (IO) in

report dated 15th January, 1992 found the charges of, (i) the respondent no.2

workman depositing the insurance claim in the savings bank account of the

borrower with mala fide intentions; and, (ii) the respondent no.2 workman

having obtained a blank signed withdrawal form from the borrower and

filling up the same and withdrawing the said sum of Rs.4,000/- from the

bank account of the borrower, to have been proved. However the IO found

the charge, of the respondent no.2 workman having received Rs.700/- in

cash from the borrower misrepresenting to the borrower that the said amount

of Rs.700/- will be deposited in his loan account, having not been proved.

Accordingly it was reported that the charge of the respondent no.2 workman

having misappropriated Rs.4,000/- stood established.

5. The Disciplinary Authority of the petitioner Bank, after issuing notice

to show cause to the respondent no.2 workman, imposed the punishment of

dismissal from service and of recovery of Rs.4,000/- being the loss,

attributable to the respondent no.2 workman, suffered by the petitioner Bank

together with interest thereon on the respondent no.2 workman. The

departmental appeal preferred by the petitioner Bank was dismissed vide

order dated 28th April, 1993 and the punishment imposed on the respondent

no.2 workman confirmed. The respondent no.2 workman raised an industrial

dispute and on which the Central Government vide order dated 14 th

February, 1994 made the reference aforesaid.

6. The Central Government Industrial Tribunal - cum - Labour Court

(Tribunal) in the impugned Award has found / observed / held, (i) that the

respondent no.2 workman had challenged the validity of the inquiry

proceedings inter alia on the grounds, that the most important witnesses Shri

Mool Chand Sharma (borrower), Shri Phool Chand and Shri Jaipal Singh

were not produced by the Management before the IO to prove the charge and

that there was inordinate delay in inquiry, amounting to violation of

principles of natural justice; (ii) the petitioner Bank had defended its action

contending, that due to absence of outside witnesses charge of

misappropriation of Rs.700/- was not proved; the inquiry was held

throughout in the presence of the respondent no.2 workman and the

respondent no.2 workman was afforded reasonable opportunity during the

inquiry; that there was no illegality in conducting the inquiry and passing the

order of dismissal of the respondent no.2 workman from service; that the

punishment of dismissal from service was justified; that even if there was

any infirmity in the departmental inquiry, the petitioner Bank should be

permitted to lead evidence before the Tribunal for just and fair decision; (iii)

need for framing issues before the Tribunal was not felt as both parties in

support of their case filed documentary evidence and stated that oral

evidence need not be recorded and the question of fairness or otherwise of

the departmental enquiry be decided on the basis of record produced by both

the parties; hence no oral evidence was adduced by either parties before the

Tribunal; (iv) that the counsel for the respondent no.2 workman appearing as

his representative had, while addressing oral arguments conceded that the

departmental inquiry was held properly and there was no procedural error or

violation of any principles of natural justice in conducting the inquiry; the

only contention on behalf of the respondent no.2 workman was that the

findings of the IO were perverse and baseless because the most important

witnesses i.e. Shri Mool Chand Sharma (borrower), Shri Phool Chand and

Shri Jaipal Singh did not appear before the IO to give their evidence in

support of their charges leveled against the respondent no.2 workman and

this fact had been overlooked and not considered, neither by the IO nor by

the Disciplinary Authority or the Appellate Authority; that in the absence of

substantial evidence to prove the charges, the punishment of dismissal

should not have been awarded; (v) that the hearing before the Tribunal was

thus confined to the aforesaid aspect and to the aspect of quantum of

punishment awarded to the respondent no.2 workman; (vi) that though the

petitioner Bank had mentioned the names of Shri Mool Chand Sharma, Shri

Phool Chand and Shri Jaipal Singh supra in its list of witnesses before the IO

but neither of the said persons appeared to give their evidence to prove the

charges against the respondent no.2 workman; (vii) it was the case of the

petitioner Bank that the aforesaid witnesses had denied to appear and give

evidence against the respondent no.2 workman before IO as they were

threatened by the respondent no.2 workman; (viii) that the petitioner Bank,

before the IO, had produced only formal witnesses whose evidence, being

secondary, could not be said to be sufficient to prove the facts against the

respondent no.2 workman and to prove the charges leveled against the

respondent no.2 workman; (ix) that in the absence of substantial evidence to

prove the factum of complaint, the charges could not be said to have been

proved; (x) the matter remained in dark as to why the borrower and the other

two witnesses did not appear; (xi) the petitioner Bank cannot take benefit of

it merely by saying that the said witnesses did not appear due to certain

threat given by the respondent no.2 workman and that the said witnesses had

been won over by the respondent no.2 workman; (xii) the respondent no.2

workman could not be held guilty on the basis of any presumption or

assumption; (xiii) that the evidence on record of the IO was not sufficient to

prove the charges against the respondent no.2 workman; (xiv) this fact was

not considered by the IO and which led to an error and perversity; (xv) since

the aforesaid fact was overlooked by the IO, Disciplinary Authority as well

as Appellate Authority, therefore their inquiries are also perverse; (xvi) that

no case for granting the petitioner Bank a fresh opportunity to produce the

said witnesses and prove the charges before the Tribunal also was made out

as according to the petitioner Bank itself the said witnesses had refused to

appear and give evidence against the respondent no.2 workman; (xvii) the

documentary evidence placed by the petitioner Bank in the form of

complaint etc. received from the borrower was not substantive evidence of

proof of guilt and only had corroborative value; (xviii) no one can be held

guilty of charge, merely on the basis of a documentary / corroborative

evidence only; (xix) hence there was no justification to allow further time

and opportunity to the petitioner Bank before the Tribunal, to adduce any

other evidence if any against the respondent no.2 workman to prove the

charges; (xx) that the order, of extreme penalty of dismissal from service,

therefore could not be sustained; and, (xxi) that it was also the contention of

the respondent no.2 workman that there had been no financial loss to the

petitioner Bank and axiomatically no justification to pass the order of

dismissal from service and recovery of Rs.4,000/- from the respondent no.2

workman.

Accordingly, the Award of reinstatement of the respondent no.2

workman in service with full back wages and consequential benefits.

7. On enquiry, it was informed that the respondent no.2 workman had

joined the employment of the petitioner Bank on 27th October, 1980 and that

the time allowed for exercising the option under the Pension Scheme supra

of the petitioner Bank was of 60 days from September, 1995.

8. During the hearing it has further transpired that approximately a sum

of Rs.4 lacs has been paid by the petitioner Bank to the respondent no.2

workman towards 17B wages till the time of the respondent no.2 workman

attained the age of superannuation as aforesaid.

9. In the aforesaid facts and circumstances, in my view, the decision of

this writ petition is dependent upon the findings on the following issues:-

(a) what is the scope of interference by a Tribunal in the findings of

the Departmental Inquiry Officer, Disciplinary Authority and

the Appellate Authority, particularly when it is conceded that

the departmental inquiry held was admittedly in accordance

with the procedure prescribed therefor and the principals of

natural justice and whether the Tribunal, in the present case was

right in holding the findings of the IO / Disciplinary Authority /

Appellate Authority to be perverse;

(b) whether the Tribunal was right in, inspite of the petitioner Bank

seeking an opportunity for the same, refusing to grant an

opportunity to the petitioner Bank to prove the misconduct with

which the respondent no.2 workman was charged, before the

Tribunal;

(c) even if the charge is held to be proved, whether the punishment

meted out is proportionate thereto; and,

(d) if the petition is to be dismissed, whether the respondent no.2

workman is to be given an opportunity to avail of the pension

scheme.

10. The counsel for the petitioner Bank has argued:-

A. that the Industrial Tribunal-cum-Labour Court erred in drawing

adverse inference from the non-appearance of the borrower and

the other two witnesses before the IO, losing sight of the fact

that the customers of the petitioner Bank hesitate to so

participate in the domestic inquiry. Reliance in this regard is

placed on State Bank of India Vs. Tarun Kumar Banerjee

2000 SCC (L&S)1049;

B. that the charges stood proved from the evidence led by the

petitioner Bank before the IO;

C. on the contrary the respondent no.2 workman failed to appear

as a witness and give statement before the IO and only his

defence representative made a statement at the time of

arguments before the IO;

D. that the respondent no.2 workman admitted his handwriting on

the form filled up for withdrawal of the aforesaid sum of

Rs.4,000/- from the account of the borrower and admittedly the

said amount was not deposited in the loan account of the

borrower with the petitioner Bank and it thus stood proved that

the respondent no.2 workman had misappropriated the said sum

of Rs.4,000/-;

E. that on the aspect of proportionality of punishment, attention is

invited to Damoh Panna Sagar Rural Regional Bank Vs.

Munna Lal Jain (2005) 10 SCC 84; and,

F. attention is invited to Chairman and Managing Director,

United Commercial Bank Vs. P.C. Kakkar (2003) 4 SCC 364

laying down that a Bank Officer is required to exercise higher

standards of honesty and integrity and the argument, of the

Bank having suffered no loss from his action, is not available to

a delinquent bank employee who acted without authority and

that the Courts should not interfere in the punishment for such

misconduct meted by the Disciplinary Authority.

11. The counsel for the respondent no.2 workman has argued:-

I. that no inference of the respondent no.2 workman having

withdrawn the amount aforesaid of Rs.4,000/- in cash from the

account of the respondent no.2 workman could be drawn from

the admission by the respondent no.2 workman of the form for

withdrawing the said money being in his handwriting because it

was the job of the respondent no.2 workman to assist the

uneducated agriculturists to whom the banking facilities were

being made available;

II. that the money withdrawal form bears a token number and

which is indicative of the borrower having himself withdrawn

the amount of Rs.4,000/- from the bank account, in as much as

if the respondent no.2 workman had withdrawn the said money,

he, being an employee of the bank, no token would have been

issued;

III. that while the amount of Rs.4,000/- was withdrawn on 7th

January, 1987, the complaint thereof by the borrower was made

for the first time after more than two years on 6 th September,

1989;

IV. that the borrower in his written complaint dated 6 th September,

1989 did not even say that the respondent no.2 workman had

withdrawn the said amount of Rs.4,000/- from his account but

claimed to have given the said amount of Rs.4,000/- in cash to

the respondent no.2 workman;

V. that though the respondent no.2 workman was charged with

having deposited the cheque for Rs.4,000/- received towards

insurance claim in the saving account of the borrower instead in

the account of the borrower with the bank, "with mala fide

intentions", but no mala fide intention has been proved;

VI. that the borrower, prior to the first complaint dated 6th

September, 1989, had on 27th November, 1988 acknowledged

the amount outstanding in his loan account; had the borrower

intended Rs.4,000/- and Rs.700/- to have been deposited in his

loan account, according to the borrower the same would have

stood squared up and the borrower would not have

acknowledged the liability on 27th November, 1988; and,

VII. that even if all the charges against the respondent no.2

workman are proved, the petitioner Bank has not suffered any

loss in as much as the borrower has squared the loan account in

installments culminating in the year 1994.

12. I had during the hearing asked both the counsels as to the scope of

inference by the Tribunal in the factual findings arrived at by the IO and the

Disciplinary Authority. Both counsels had stated that they would, by the end

of the day, give copies of the judgments on the said aspect. However no

copies of the judgments have been supplied. The counsel for the respondent

no.2 workman, during the hearing had however invited attention to Section

11A of the ID Act in this regard.

13. I have perused the records and considered the contentions of the

counsels.

14. In my view, once it was conceded by the respondent no.2 workman

that the departmental inquiry was conducted in accordance with the

procedure prescribed therefor and in compliance of the principles of natural

justice and in the absence of any plea of want of good faith or of

victimization, the only ground on which the Tribunal could, as per Indian

Iron & Steel Co. Ltd. Vs. Their Workmen AIR 1958 SC 130, have

interfered in the factual findings therein was, if it could be said that the

conclusions reached / arrived at, on the basis of material on record, could not

have been arrived / reached at by any reasonably thinking person. Else, the

Tribunal does not sit in appeal over the findings arrived at in departmental

disciplinary proceedings in as much as the management of a concern has

power to direct its own internal administration and discipline and the

Tribunal cannot substitute its own judgment for that of the management.

Only if it could be said so, could it be said that the findings were perverse.

As far as the reference by the counsel for the respondent no.2 workman to

Section 11A of the ID Act is concerned, the reliance thereon, in my view, in

this context, is misconceived. All that Section 11A does is to vest the

Tribunal with power, in cases where punishment of discharge or dismissal of

a workman has been meted out, to even inspite of concluding that the

prescribed procedure before meting out such a punishment has been

followed and the conclusions of guilt are not perverse, still, if of the view

that the punishment of discharge or dismissal is not justified, modify the said

punishment. In the absence of Section 11A, the Tribunal would have no such

jurisdiction in as much as the settled position in law as held in B.C.

Chaturvedi Vs. Union of India (1973) 1 SCC 813, U.P. State Transport

Corporation Vs. Subhash Chandra Sharma (2000) 3 SCC 324, Kailash

Nath Gupta Vs. Enquiry Officer (2003) 9 SCC 480 and Mahindra &

Mahindra Vs. N.B. Naravade (2005) 3 SCC 134 is that if the departmental

proceedings held are in accordance with law then the Tribunal has no

jurisdiction to interfere in the quantum of punishment. The Tribunal, in the

present case, having interfered with the decision of the IO / Disciplinary

Authority, the question of application of Section 11A did not arise.

15. I will therefore proceed to consider, whether the conclusions reached

by the IO, Disciplinary Authority and Appellate Authority of the petitioner

Bank, of the charge of the respondent no.2 workman having with mala fide

intention deposited the cheque towards insurance claim in the saving

account instead of in the loan account of the borrower and of having got the

withdrawal form signed in blank from the borrower and having withdrawn

the amount of Rs.4,000/- therefrom and having misappropriated the same

having stood proved, can be said to be perverse.

16. The only reason given by the Tribunal for holding the conclusion

reached by the IO / Disciplinary Authority being perverse, is of the said

conclusion having been reached without the borrower and the other two

witnesses having deposed before the IO. The Tribunal otherwise has not

examined the other material available and has not held that the said other

material was not sufficient to reach such a conclusion. The Tribunal has

presumed that it is only the borrower and the other two witnesses who could

have proved the said charge. I may record that the other two witnesses are

the persons named by the borrower in his complaint, in whose presence

according to the borrower the respondent no.2 workman had so made him

sign the blank withdrawal form.

17. The Supreme Court in Tarun Kumar Banerjee supra has held that a

customer of the Bank need not be involved in a domestic enquiry conducted

as such a course would not be conducive to a proper Banker customer

relationship and, therefore, would not be in the interest of the Bank. It was

further held that the Tribunal in that case could not have placed reliance on

such irrelevant circumstance to hold that the conclusion reached

departmentally in the disciplinary proceedings were perverse. It was further

held that when sufficient evidence is produced to conclude one way or the

other, the evidence not produced will not be of any significance unless the

evidence withheld would have tilted the evidence adduced in the course of

the domestic inquiry.

18. I find that even in cases relating to public transport corporations, it has

been held in State of Haryana Vs. Rattan Singh (1977) 2 SCC 491, Sultan

Singh Vs. Delhi Transport Corporation MANU/ DE/0327/1986, Karnataka

State Road Corporation Vs. B.S. Hullikatti (2001) 2 SCC 574, Delhi

Transport Corporation Vs. N.L. Kakkar Presiding Officer, Industrial

Tribunal No.1 MANU/DE/0135/2004 and Delhi Transport Corporation

Vs. Rajbir Singh MANU/DE/4005/2013 that non-production of the

commuters / passengers traveling on the buses and whose presence cannot

be conveniently secured, is not fatal to prove the charge.

19. I have during the hearing, in this regard, enquired from the counsel for

the respondent no.2 workman whether it was / is the case of the respondent

no.2 workman that the disciplinary proceedings against him were motivated

by any reason. The answer is in the negative. As an afterthought however,

attention is invited to the page 77 of the paper book, being the reply of

Management Witness -3 in the course of cross examination by the counsel

for the respondent no.2 workman before the IO, where the said witness has

stated that the addition in the document shown to him was at the instance of

Mr. Anil Aggarwal official of the petitioner Bank (who was acting as the

Presenting Officer) and on the basis thereof it was contended that the same

proved that the charge against the respondent no.2 workman had been

cooked up. However the counsel for the respondent no.2 workman is unable

to show even the document referred to or the effect thereof (I may at this

stage record that though the petition has been pending in this Court for more

than 11 years but the Tribunal‟s record has not been requisitioned as yet;

neither counsel also at any stage or even today made any such request; after

hearing the counsels, it is not deemed expedient to at this stage derail the

decision by requisitioning the record).

20. I have otherwise perused the record of the inquiry proceedings. The

respondent no.2 workman is found to have not filed any reply to the charge

sheet and to have opted straightway to cross examine the witnesses of the

petitioner Bank. The petitioner Bank produced its Investigative Officer as

the first witness who deposed that, the borrower had confirmed to having

made the complaint in writing against the respondent no.2 workman; the

borrower having also named the other two witnesses in whose presence he

had dealt with the respondent no.2 workman; the said other two witnesses

having also confirmed to him the events complained of by the borrower;

that the respondent no.2 workman inspite of opportunity having chosen not

to give any explanation in writing on the complaint to the Investigating

Officer also; the respondent no.2 workman having admitted to the

withdrawal form / voucher having been filled up in his handwriting; the

records of the concerned branch of the bank not containing any other

voucher filled up by the respondent no.2 workman in the past on behalf of

the subject or any other borrower and he having submitted a report to the

bank that there was sufficient evidence in the complaint to prove the

allegations against the respondent no.2 workman. The said witness also

deposed having concluded from the investigation that the respondent no.2

workman credited the amount of the insurance claim to the savings bank

account of the borrower and having filled the subsequent withdrawal slip for

the same amount with a motive and with the knowledge that the amount

withdrawn by him should not have been withdrawn and that the said

withdrawal would cause financial loss to the borrower and the bank. The

respondent no.2 workman in his cross examination of the said witness did

not controvert the statement in examination-in-chief that the respondent no.2

workman was not found to have filled up the withdrawal form / voucher in

the past of the borrower or any other borrower.

21. The second witness produced by the petitioner Bank before the IO

was Mr. K.C. Nigam, Staff Officer of the concerned branch who deposed,

that the pay-in-slip of the cheque towards insurance claim deposited in the

saving bank account of the borrower and the withdrawal form / voucher

were in the handwriting of the respondent no.2 workman. The respondent

no.2 workman in cross examination of the said witness did not put to the

said witness that the deposit slip / withdrawal form / voucher was bearing a

token number and which was indicative of the borrower having withdrawn

the money himself, as has been argued today and for which reason no

cognizance of the said argument can be taken.

22. The third witness examined by the petitioner Bank before the IO was

the official from the New India Insurance Company Ltd. who deposed

having issued the cheque towards the insurance claim. The part of his cross

examination at page 77 of the paper book to which the counsel for the

respondent no.2 workman had referred in her arguments, relates to the

cheque having been made out in the name of the borrower but addition of

"to the account of Bank of India" having been made subsequently. In my

opinion nothing turns on the same as judicial notice can be taken of the fact

that the cheques towards insurance claim against the mortgaged /

hypothecated property, though in the name of the insured, are generally

issued to the account of the financing bank.

23. The fourth witness examined by the petitioner Bank before the IO was

also an official of the concerned branch who deposed having received the

complaint from the borrower. In his cross examination by the respondent

no.2 workman, it has come out that the borrower had informed him that he

did not make the complaint earlier, being under the impression that the

amount of Rs.4,700/- aforesaid had been credited to his account and that it

was only after he received notice from the petitioner Bank of the outstanding

loan that he realized that the amount had not been so deposited and hence

made the complaint.

24. A perusal of the proceedings of the IO also shows the petitioner Bank

at that stage only had taken the stand that the borrower and his other two

witnesses were refusing to depose, owing to threats meted out by the

respondent no.2 workman.

25. The Tribunal also lost sight of the fact that the respondent no.2

workman also could have produced the borrower had there in fact been no

complaint and / or the same was merely being used by the petitioner Bank to

target the respondent no.2 workman. The respondent no.2 workman who

was the human face of the petitioner Bank vis-à-vis the borrower and the

respondent no.2 workman would have known the borrower sufficiently well

to produce him in evidence as his witness if indeed the borrower had no

grievance with the respondent no.2 workman.

26. On perusal of the record of the IO, it is further found that the

respondent no.2 workman, inspite of opportunity, did not chose to depose

and on the contrary his defence representative made a statement before the

IO, generally denying the charge and the evidence of the petitioner Bank.

However the said statement is of no avail or weightage. The respondent

No.2 workman clearly avoided being subjected to cross examination or even

denying on oath or himself, the charge against him.

27. The aforesaid narrative would show that there was indeed sufficient

material before the IO, Disciplinary Authority and the Appellate Authority

to conclude that the charges had been proved and it cannot be said that their

findings in this regard are perverse. Even the defence representative in his

statement before the IO could not name any other customer on whose behalf

the respondent No.2 workman may have in the past filled the pay-in-slips or

the withdrawal form. The view taken by the IO / Disciplinary Authority was

a plausible view. It cannot be lost sight of that departmental proceedings are

guided by common sense and pragmatic approach and are not governed by

legal technicalities. The Supreme Court, in B.C. Chaturvedi Vs. Union of

India (1995) 6 SCC 749 held that when departmental findings are based on

some evidence, the authority entrusted with power to hold enquiry has

jurisdiction to reach such finding / conclusion and the Tribunal ought not to

re-appreciate evidence on the threshold of technical rules of The Indian

Evidence Act, 1872 and ought not to arrive at its own independent findings

on the evidence. It was reiterated that the Disciplinary Authority is the sole

Judge of facts and adequacy or reliability of evidence cannot be canvassed

before the Tribunal. In our opinion, there was sufficient evidence before the

IO / Disciplinary Authority to reach the conclusion of guilt of the respondent

No.2 workman, specifically in the light of his failing to himself, in writing or

on oath deny the charges. Thus the Tribunal was clearly wrong in setting

aside the disciplinary proceedings.

28. I am unable to hold that once the aforesaid charges are found to be

fulfilled, the punishment meted out of dismissal is not justified. The

judgment supra in P.C. Kakkar and in Damoh Panna Sagar Rural

Regional Bank apply on all fours. It has similarly been held in Divisional

Controller N.E.K.R.T.C. Vs. H. Amresh (2006) 6 SCC 187 and R.K.

Rohilla Vs. Syndicate Bank MANU/DE/6430/2012 (DB) that an employer

cannot be compelled to keep a dishonest employee on an employee in which

the employer has lost faith.

29. I am also of the view that though in terms of the above there is no

need to decide the second of the aforesaid issues but for the sake of

completeness it is deemed appropriate to deal therewith also. In my view the

Tribunal was not justified in, inspite of the petitioner Bank clearly asking for

an opportunity, denying an opportunity to the petitioner Bank to prove the

misconduct, if found to be not proved in the departmental proceedings,

before the Industrial Tribunal. The reason given by the Tribunal for denying

such opportunity to the petitioner Bank is found to be erroneous. Merely

because the petitioner Bank had failed to produce the borrower and the other

two witnesses in evidence during the inquiry could not have led to the

presumption that the petitioner Bank would be unable to produce them

before the Industrial Tribunal-cum-Labour Court also. While the petitioner

Bank could not have in the departmental inquiry compelled the presence of

the borrower and his witnesses, it could have been done so in the

proceedings before the Industrial Tribunal-cum-Labour Court. Reference in

this regard can be made to The Workmen of M/s Firestone Tyre Rubber

Co. of India (Pvt) Ltd. Vs. The Management (1973) 1 SCC 813.

30. The petition therefore succeeds. The Award dated 3rd October, 2002

of the Industrial Tribunal-cum-Labour Court is set aside and the reference

made for adjudication is decided in favour of the petitioner Bank.

31. In view of the aforesaid there is no need to decide the claim of the

respondent no.2 workman being entitled to exercise the option for pension,

in as much as it is the admitted position that the respondent no.2 workman if

dismissed from service, was not entitled to such an option.

I refrain from imposing any costs on the respondent no.2 workman.

RAJIV SAHAI ENDLAW, J.

DECEMBER 16, 2014 „pp‟

(corrected and released on 7th January, 2015)