Delhi High Court
M.K.Gupta vs Central Bank Of India on 11 June, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 04th January, 2018
Pronounced on: 11th June, 2018
+ W.P. (C) 18116/2004
CENTRAL BANK OF INDIA ..... Petitioner
Through: Ms. Rachna Gupta and Mr. S.S.
Malik, Advocates
versus
M.K.GUPTA ..... Respondent
Through: Mr. Paranjay Chopra and Mr. Kunal
Sharma, Advocates
+ W.P. (C) 12759/2005
M.K.GUPTA ..... Petitioner
Through: Mr. Paranjay Chopra and Mr. Kunal
Sharma, Advocates
versus
CENTRAL BANK OF INDIA ..... Respondent
Through: Ms. Rachna Gupta and Mr. S.S.
Malik, Advocates
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT
C. HARI SHANKAR, J.
1. Under challenge, in these writ petitions, preferred by the Central
Bank of India (hereinafter referred to as "the Bank") and the workman
M. K. Gupta, is an Award, dated 27th May, 2004, issued by the learned
Industrial Tribunal in ID No.85/1993. The learned Tribunal, has vide
the said award, declared the dismissal of the services of the workman
by the Bank, w.e.f. 4th September, 1990, to be "not completely
justified" and has, consequently, directed the reinstatement of the
workman, w.e.f. 1st January, 2000, with stoppage of two increments
with cumulative effect. The workman has also been held, by the
award, to be entitled to 50% back wages after 1st January, 2000.
2. WP(C) 18116/2004, by the Bank prays that the impugned
Award be set aside and the dismissal, of the workman's services by
the Bank, upheld. Per contra, WP(C) No.12759/2005, by the
workman, seeks to assert his entitlement to reinstatement, ab initio,
with full back wages.
3. I have heard Ms. Rachna Gupta, and Mr. Paranjay Chopra,
learned counsel appearing for the Bank and workman at length and
perused the record.
4. The controversy is brief, and emanates, essentially, from
charge-sheet, dated 8th August, 1983, issued to the workman by the
Bank. The charge-sheet alleged that, on 11th February, 1983, the
workman (who was employed as Assistant Cashier), was instructed to
effect cash transfer of ₹ 3.5 lakhs from the Lajpat Nagar Branch to the
Nehru Place Branch of the Bank. However, it was alleged, having
taken delivery of the said cash from the Chief Cashier, the workman,
instead of placing the cash in a proper steel box "as per instructions
laid down", unauthorisedly placed the cash in a briefcase, which was
left, by him, in the cabin of the Chief Cashier, from where it went
missing. As such, the charge-sheet alleged that the workman had
failed to account for the said cash of ₹ 3.5 lakhs which was entrusted
to his charge. Asserting that the workman was expected to ensure the
safety of the cash and to remit it securely to the Nehru Place Branch of
the Bank, which, owing to his failure to comply with proper norms
and laid down procedure governing of cash, could not be effected, it
was alleged that the Bank had suffered serious financial loss. As a
result, the charge-sheet alleged that the workman had acted in a
manner prejudicial to the interests of the Bank, and that he was guilty
of gross misconduct within the meaning of 19.5 (j) of the Bipartite
Settlement, governing relations between the Bank and its employees.
The workman, therefore, was given an opportunity to respond thereto.
It is important to note that the charge-sheet does not, expressly or
impliedly, doubt the bonafides of the workman, or attribute any
ulterior motive to him.
5. Prior to the issuance of the abovementioned charge-sheet, dated
8th August, 1983, FIR No. 87/83, was lodged, by the Bank, in the
Police Station, on 11th February, 1983 itself, under Section 409 of the
Indian Penal Code (hereinafter referred to as "the IPC"), regarding
loss of the aforementioned ₹ 3.5 lakhs, and arraying the workman as
an accused.
6. Following on the charge-sheet, dated 8th August, 1983 (supra),
a departmental inquiry was held, culminating in the submission of an
Inquiry Report, dated 29th April, 1985, by the Inquiry Officer
(hereinafter referred to as "IO"). The Inquiry Report opined, relying
on the depositions of the Bank's witness V. N. Wadhawan (BW-3),
Accountant of the Bank, and B. R. Midha (BW-4), to the effect that no
permission had been granted, to the workman, to consign the cash,
entrusted to him for transmission to the Nehru Place Branch of the
Bank, to a briefcase instead of a steel box, that the act of the workman,
in placing the cash in a briefcase, was contrary to the instructions
given to him, and ex facie unjustified. It was further opined, by the IO,
that, having been entrusted with the responsibility of transmitting of
cash, the workman ought not to have left the briefcase, containing the
cash, in the cabin of the Chief Cashier, without any safeguard. The
assertion, of the workman, that he had left the cash in the cabin of the
Chief Cashier, for going to the toilet, was disbelieved, and his
bonafides were found questionable (though, as noted hereinbefore, the
charge-sheet, issued to the workman, did not do so). The IO, therefore,
held the workman directly responsible for the loss caused to the Bank,
as a result of his negligence and failure to safeguard the container,
containing the cash entrusted to him. As such, all charges against the
workman were, found, by the IO, to, stand proved.
7. The criminal proceedings that had been initiated against the
workman on 11th February, 1983, culminated in judgment and order,
dated 29th June, 1989 passed by the learned MM, which proceeded on
the ground that there was no conclusive evidence of final entrustment
of ₹ 3.5 lakh in cash to the workman, and that the only witness, to the
said handing over of the cash, was the Chief Cashier (PW-6), whose
role was also suspect. In this view of the matter, the learned MM
concluded that the prosecution had been unable to prove, beyond
reasonable doubt, the fact of handing over/entrustment of the cash of ₹
3.5 lakhs, to the workman. Accordingly, the workman was acquitted.
This decision may not, however, have any serious impact on the
present adjudication, for two reasons; firstly, because the learned MM
only held the charge, against the workman, not to have been proved
"beyond reasonable doubt", and, secondly, because, in the present
case, there is no dispute, even by the workman, regarding entrustment,
to him, of ₹ 3.5 lakhs, for being transferred to the Nehru Place Branch
of the Bank.
8. The Chief Manager of the Bank, as disciplinary authority, after
examining the Inquiry Report dated 29th April, 1985 (supra), issued a
"Show Cause Memo" dated 29th June, 1990, to the workman,
proposing imposition of punishment, on him, of "dismissal without
notice" and inviting his response thereto. Significantly, the Show
Cause Memo exonerated the workman of the allegation of having
unjustifiably placed the cash, handed over to him for transmitting to
the Nehru Place Branch of the Bank, in a briefcase instead of a steel
box, opining categorically that carriage of such cash in a briefcase was
a matter of common practice, and that, in doing so, the workman had
to be assumed to have acted as per the instructions of his superiors.
However, the disciplinary authority found the workman guilty of
having failed to ensure safety and security of the cash, for which he
was accountable. The Show Cause Memo observed that, even if the
workman wished to go to the toilet, he ought to have entrusted the
container, containing the cash, to the Chief Cashier, whereas the Chief
Cashier, deposing as MW-1, had specifically stated that he was
unaware of the fact that the workman had gone to the toilet, leaving
the briefcase in his cabin. In these circumstances, the Show Cause
Memo held the workman negligent in handing the cash of ₹ 3.5 lakhs,
and guilty of failure to ensure the safety and security of the said cash,
resulting in serious financial loss to the Bank.
9. The workman responded to the aforementioned Show Cause
Memo, dated 29th June, 1990.
10. Vide order dated 4th September, 1990, the disciplinary authority
held that the response, of the workman, to the Show Cause Memo, did
not contain any substantial defence to the allegations put to him;
resultantly the punishment of "dismissal without notice", as earlier
proposed, was awarded to the workman.
11. The workman appealed, on 4th September, 1990, against the
imposition, on him, of the aforesaid punishment of dismissal without
notice, to the appellate authority, i.e. the Deputy General Manager of
the Bank.
12. Vide order dated 8th January, 1992, the Deputy General
Manager of the Bank, as appellate authority, rejected the appeal of the
workman.
13. This resulted in the workman initiating an industrial dispute,
which was referred, by the Central Government, for adjudication to
the learned Industrial Tribunal, vide letter dated 23rd November, 1993,
containing the following single term of reference:-
"Whether the action of the management of Central Bank
of India, dismissing the services of Shri M.K.Gupta,
Asstt. Cashier w.e.f. 4.09.1990 is justified? If not to what
relief the concerned workman is entitled?"
14. Consequent thereto, the workman filed his Statement of Claim,
dated 17th January, 1994. Reliance was predictably, placed, by the
workman, on the judgment, dated 29th June, 1999 of the learned MM,
acquitting him of the charge under Section 409 of the IPC. The
workman also complained of having been discriminated against, as
other officers/employees, also charge-sheeted in respect of the same
incident of loss of ₹ 3.5 lakhs, had been awarded lesser punishment.
Certain technical objections, regarding the permissibility of initiating
disciplinary proceedings within one year of filing of the FIR, and
failure, on the part of the disciplinary authority, to dispose of the
matter within one year of availability of the Inquiry Report, based on
provisions of the Bipartite Settlement between the Bank and its
employees, were also raised; however, at this distance of time, no
useful purpose would be served by making reference thereto,
especially as no contention, to the said effect, was urged before me,
even during arguments in Court. In fine, the workman prayed that the
order, dismissing him from service, be set aside and he be reinstated
with continuity of service and full back wages.
15. In response, the Bank filed its written statement before the
learned Industrial Tribunal, meeting the allegation of having
discriminated against the workman, vis-à-vis his colleagues
discharged in the matter, by stating that the roles played by different
employees was different. Surprisingly, it was sought to be averred, in
the written statement, that, "the workman concerned was involved in
acts of misappropriation of ₹ 3.5 lakhs which were proved in a fair
and proper departmental inquiry", whereas, in fact, the charge-sheet
dated 8th August, 1983 (supra), issued to the workman, did not allege
any misappropriation, by him, of ₹ 3.5 lakhs, but limited the allegation
against the workman to "negligence in failing to ensure safety and
security of the said amount". In fact, a reading of the written statement
filed by the Bank before the learned Industrial Tribunal reveals that
the Bank proceeded, throughout, on the premise that the charge
against the workman was of misappropriation of ₹ 3.5 lakhs, whereas,
as already noted hereinabove, this was not so.
16. The workman rejoined thereto.
17. Vide the impugned Award dated 27th May, 2004, the learned
Industrial Tribunal disposed of the aforementioned industrial dispute
opining as under:-
"I have perused the statement of the witnesses and by
evidence of the witnesses, it is not proved satisfactory that the
workman embezzled the amount but his gross negligence and
misconduct is proved as he was entrusted with the work of
remittance of the cash and he should be precautious regarding
the cash. He should not take it lightly. Whenever, the Chief
Cashier's cabin is opened and somebody goes out, it is closed
again. The workman in his affidavit has written that the cash
was placed in a brief case and he went to toilet. The workman
ought to have entrusted the brief case to the Chief Cashier but
it has no where been stated that when he went to the toilet, he
entrusted the brief case containing the cash with the Chief
Cashier. He has only said in the affidavit that money was
placed in the brief case and he went away to the toilet so he
has not given a satisfactory reply that why he did not entrust
the brief case to the Chief Cashier and why he left the brief
case containing money and went away. As such, the money
was placed in the briefcase, it was the bounden duty of the
workman applicant to take precaution of the briefcase and to
place it in safe custody. It indicates the negligence on the part
of the workman. Embezzlement of the money has not been
proved. Still in case, there is no embezzlement, there is gross
misconduct of the workman in handling the brief case
containing the money. The steel box was not available so he
should not place the money in brief case on advice of
anybody. The enquiry was with held because of the trial and
the own request of the workman.
In the enquiry, the workman has been afforded full
opportunity and the principles of natural justice have been
followed and the workman was found guilty of gross
negligence and misconduct and so the punishment of
dismissal without notice was given to him.
An FIR was lodged against the workman and
embezzlement is not proved even in the enquiry. No
independent witnesses have come out according to the own
version of the workman, the money was placed in the brief
case and he had to take the brief case to Nehru Place Branch
but leaving the briefcase in the Chief Cashier's cabin
unattended, he went to the toilet. This conduct of the
workman is suspicious and it amounts to gross and grave
misconduct in handling the cash of a very huge amount. So
far as punishment is concerned, it amounts to victimization of
the workman applicant as he has been dismissed for gross
misconduct.
In the circumstances of this case, his increment should
be withheld with cumulative effect and he should be
reinstated after sometime without back wages. As such the
punishment inflicted is not commensurate in view of the
misconduct of the workman."
In these circumstances, the learned Industrial Tribunal held that
withholding of two increments of the workman, with cumulative
effect, would suffice as punishment condign to the misconduct
committed by him. Following on these findings, the learned Industrial
Tribunal answered the reference, made to it, thus:
"The action of the management of Central Bank of India, in
dismissing the services of Shri M.K. Gupta, Asstt. Cashier
w.e.f. 4.09.1990 is not completely justified. The workman
deserves reinstatement from 1.1.2000 with the stoppage of
two increments with cumulative effect. The workman
applicant will be entitled to get 50% back wages after
1.1.2000 with the stoppage of his two increments with
cumulative effect."
18. As already noted hereinabove, the aforementioned Award forms
subject matter of challenge, before this Court, in these two writ
petitions, with the Bank contending that the dismissal, of the services
of the workman, deserves to be upheld, and the workman, per contra,
asserting that he deserved to be reinstated in service with full back
wages.
Analysis
19. An order passed consequent on disciplinary proceedings, it is
trite, cannot traverse the boundaries of the allegations contained in the
charge-sheet itself . [Refer M.V.Bijlani vs U.O.I., (2006) 5 SCC 88]
20. The charge-sheet, dated 8th August, 1983, issued to the
workman, deserves to be reproduced, in its entirety, thus:
"Shri Mohinder Kumar Gupta, Asstt. Cashier, is hereby
informed that his reply dated 14.3.83 to the Bank's Memo
No. RO:PRS:DAD:83/0163 dt. 11.2.1983 issued to him, has
not been found satisfactory. It has, therefore, been decided to
hold a departmental enquiry against him and he is hereby
charged as under :-
On 11.2.83 Shri Gupta was instructed to effect a cash
remittance of Rs.3.50 lacs from Lajpat Nagar branch to B/o
Nehru Place. Shri Gupta got the relevant voucher and
manifold relating to the remittance signed/authorized by the
Accountant/Branch Manager and took delivery of cash for the
purpose from Sh. B.P. Jain, Chief Cashier at about 10.45 a.m.
on 11.2.83 in the following denominations:
3000 x 100 = Rs.3,00,000
700 x 50 = Rs. 35,000
600 x 20 = Rs. 12,000
300 x 10 = Rs. 3,000
Rs.3,50,000
==========
Instead of placing the aforesaid cash received by him
in a proper steel box as per instructions laid down and
instead of security effecting remittance to Nehru Place
Branch, Shri Gupta unauthorisedly placed the said cash in a
brief case containing cash of Rs.3.50 lacs had been left by
him in the Chief Cahsier's cabin and that the said brief case
with the cash missing. The same has not been traced so far.
Shri Gupta thus failed to account for the Bank's cash
of Rs.3.50 lacs entrusted to his charge. Whereas he was
expected to ensure the safety and correctness of the said cash
and remit the same securely to B/o Nehru Place, he failed to
comply with the proper norms and laid down procedures in
transit of cash and has involved the Bank in an incident of
serious financial loss.
The aforesaid acts on the part of Shri Gupta are
prejudicial to the interests of the Bank and constitute gross
misconduct within the meaning of para 19.5 (j) of the
Bipartite Settlement. The departmental enquiry into the
aforesaid charges will be held by Shri C.L. Sharma, Branch
Manager, B/O Nehru Place and the time, date and venue of
the enquiry will be communicated to him by the said Enquiry
Officer. At the enquiry he shall keep ready with him all oral
and documentary evidence which he may wish to tender or
produce on his behalf and he will also be allowed to cross-
examine the witnesses who may be produced by the
management during the enquiry proceedings.
Shri Gupta will be permitted to be defended by
representative of a registered trade Union of Bank employees
of which he is a member. He should inform the Enquiry
Officer the name of his representative and the names of the
witnesses he intends to produce at the enquiry on his behalf.
He is also informed that if he fails to present himself at the
enquiry on the appointed dates or on the adjourned dates, the
enquiry will be held exparte and the findings thereon will be
conclusive and binding on him.
Shri Gupta should note that he will continue to be
under suspension as already advised vide above referred
Memo dated 11.2.1983."
(Emphasis supplied)
Clearly, the aforementioned charge-sheet, merely alleged
failure, on the part of the workman, to account for the cash of ₹ 3.5
lakhs which had been entrusted to his charge, and to ensure the safety
and security thereof. By allegedly failing to comply "with the proper
norms and laid down procedures in transit of cash", the charge-sheet
alleged that the workman had "involved the Bank in an incident of
serious financial loss". These acts, of the workman, it was alleged,
were "prejudicial to the interest of the Bank and constituted gross
misconduct within the meaning of para 19.5 (j) of the Bipartite
Settlement". The said clause, it may be noted, covered "doing acts
prejudicial to the interests of the Bank".
21. It is clear, from a reading of the charge-sheet, dated 8th August,
1983 (supra), that it did not, expressly or by necessary implication,
attribute any malafides or mens rea to the workman. Far from alleging
misappropriation, by him, of the cash amount of ₹ 3.5 lakhs which
turned out to be his undoing, the charge-sheet, conspicuously, did not
allege the act of the workman leaving the cash, in the briefcase, in the
cabin of the Chief Cashier to be "suspicious" in any manner. Clearly,
therefore, the charge against the workman, was essentially of
negligence simplicitor, and not of negligence culpable.
22. Further, a holistic reading of the charge-sheet clearly indicates
that the breach of "norms and procedures", alleged against the
workman, was only in his placing the cash in a briefcase, instead of a
steel box. This allegation, however, does not continue to survive, in
view of the Show Cause Memo, dated 29th June, 1990 (supra), in
which the disciplinary authority categorically held as under:
"So far as the second part of the charge is concerned i.e.
placing the aforesaid cash in a brief case instead in a steel
box, I do not agree with the findings of the Enquiry Officer
because of the fact that it was the practice prevailing in the
Branch to remit the cash in a brief case. So far as the
authority given to the CSE is concerned, it has been
established from the evidence brought on record by the
Presiding Officer that an authority had been given to the CSE.
MW-1 in his examination-in-chief has clearly deposed that the
remittance had been allowed in the brief case of the
Accountant and he had personally enquired about it from
Accountant and while allowing the remittance in brief case he
had obeyed the instructions of his superiors. Not only this, I
find that even on several other dates the remittance had been
sent in a brief case. Such dates are recorded on page 14 of the
enquiry proceedings.
In view of this I hold that the remittance had been
taken by Mr. Gupta in a brief case with the consent of his
superiors and, I, therefore, exonerate him in respect of this
part of the charge."
(Emphasis supplied)
23. Viewed in chronological sequence, it appears that the Bank has,
at every stage, chosen to better the case, initially made out by it,
against the workman in the charge-sheet.
24. The charge-sheet specifically asserts that, while taking delivery
of the cash from the Chief Cashier, the workman "got the relevant
voucher and manifold relating to the remittance signed/authorized by
the Accountant/Branch Manager". No default, at this stage, is alleged
against the workman. Rather, the immediately succeeding paragraph
of the charge-sheet proceeds to allege that "instead of placing the
aforesaid cash received by him in a proper steel box as per instructions
laid down and instead of security effecting remittance to Nehru Place
Branch, Shri Gupta unauthorizedly placed the said cash in a brief case
containing cash of ₹ 3.50 lakhs had been left by him in the Chief
Cashier's cabin and that the said briefcase with the cash missing". The
failure on the part of the workman, to, "follow the laid down norms
and procedures", is, on the plain words of the charge-sheet, relatable
only to the placing of the cash in a briefcase instead of a steel box. No
procedural violation, at the stage of taking delivery of the cash from
the Chief Cashier, is alleged in the charge-sheet; rather, the manner in
which the charge-sheet is worded seems to indicate that the workman
was found to have complied with due procedure while taking delivery
of the cash. The charge-sheet does, however, fault him for having
placed the cash in a briefcase instead of a steel box, and, by leaving
the briefcase unattended in the cabin of the Chief Cashier, in failing to
ensure its security and safety. The "negligence" attributed to the
workman, by the Bank, was to this extent above, and no more.
25. The Inquiry Report, dated 29th April, 1985, too, does not depart
from the charge-sheet, and finds the workman guilty only of keeping
the cash, entrusted to him, in a briefcase, instead of a steel box, and in
failing to ensure safety and security of the said briefcase. While doing
so, however, the IO observes, towards the conclusion of his Inquiry
Report, thus:
"Since the CSE has admitted in his own reply dtd. 14.5.83,
(Ex.B-14) that cash after counting was placed in a brief case
was kept in the Chief Cashier's cabin and he went to toilet, it
is very much suspicious that when he was attending a very
very important duty of cash remittance, he should have not
left the container with the Chief Cashier's Cabin without any
safeguard of the brief case. CSE was to entrust the
responsibility of the same to the guard and cash peon in
addition to the Chief Cashier. Moreover, it was during the
starting hours of the Bank business and in general every
employee starts duty after getting free from nature's call and
question of going to attend nature's call within about 40 to 50
minutes from his joining the duty is not only unreasonable but
also gives thought to pre-planning of the incident."
(Emphasis supplied)
The above extracted findings of the IO, besides being totally
presumptive and conjectural in nature, clearly travel beyond the
charge-sheet issued to the workman, which did not contain any
allegation regarding "pre-planning of the incident" by him, or consider
the acts of the workman to be "suspicious" in any manner; neither did
it doubt the truth of the assertion, of the workman, that he had gone to
the toilet leaving the briefcase in the Chief Cashier's cabin, as the IO
seems to have done.
26. Proceeding, now, to the Show Cause Memo, dated 29th June,
1990, it is alleged, by the disciplinary authority, in the said Memo, as
under:
"After carefully analyzing the evidence brought on
record of the enquiry I fully agree with the findings of the
Enquiry Officer that the CSE was instructed to effect a
remittance of Rs.3.50 lacs from Lajpat Nagar Branch to Nehru
Place Branch and he had got relevant voucher and manifold
relating to the remittance signed/authorized by the
Accountant/Branch Manager. It has been clearly established
that he had prepared the relevant voucher and manifold
relating to this remittance and he has got the same
signed/authorized by the Accountant/Branch Manager. It has
been also established in the enquiry that he had signed on the
reverse of the manifold and voucher for having received the
cash. The Member's contention that he subscribed the
signatures on the back of the manifold in advance and that he
did not receive the cash and pending his signatures in the
Register he had gone to toilet is purely his saving novoice,
carrying no force at all because during the course of enquiry
in the written statement filed by him he has clearly admitted
that he had kept the bundles of cash amounting to Rs.3.50 lacs
in the brief case.
As regards cash remittance register is concerned, from
the proceedings this emerged as a fact that this register was
not being maintained properly and the manifold and the
voucher was the only instrument used in the Branch for cash
remittance. Mr. Gupta being the concerned person used for
cash remittance fully knew the procedure followed in the
Branch for cash remittance. If he was strictly adhering to the
procedure rather than the practice prevailing in the Branch, he
should not have signed on the back of the manifold/voucher
before receipt of the cash. Since he fully knew the practice
was that of signing the voucher/manifold on its back in token
of his having received the cash, he had signed the said
manifold/voucher and not register. Therefore, his contention
that he had kept the brief case in Chief Cashier's cabin
pending signature on the register and he had gone to attend
nature's call is purely an afterthought. I, therefore, hold this
part of the charge as proved against the CSE and I fully agree
with the findings of the Enquiry Officer in this regard."
(Emphasis supplied)
Again, here, the disciplinary authority disbelieved the submission, of the
workman, that he had visited the toilet, leaving the briefcase, containing the
cash, in the Chief Cashier's cabin. This observation deviates sharply from
the charge-sheet dated 8th August, 1983, which proceeded on the premise
that, by thus leaving the briefcase unattended in the cabin of the Chief
Cashier, the workman had negligently failed to ensure the safety and
security of the cash.
27. Insofar as the impugned Award is concerned, it is starkly
contradictory in terms. The learned Tribunal, first alleges the
workman to be guilty of "gross misconduct" and, thereafter, faults the
bank for having "victimized the workman by punishing him for gross
misconduct". There is apparent non-application of mind, on the part of
the learned Industrial Tribunal, in deciding the matter.
28. In any case, as Bank, and workman, are equally aggrieved by
the said award, I have, before me, effectively a tabula rasa.
29. Harking back to the charge-sheet dated 8th August, 1983, the
only violation of procedure, alleged against the workman therein, was
in his keeping the cash, entrusted to him, in a briefcase instead of a
steel box. This allegation stands dropped by the disciplinary authority.
As such, the allegation, in the charge-sheet, of the workman having
"failed to comply with the proper norms and laid down procedures",
fails.
30. The only other allegation, in the charge-sheet to the workman,
was of negligence in failing to ensure safety and security of the cash
entrusted to him. As already observed by me hereinabove, the
observations, in the Inquiry Report, dated 29th April, 1985 as well as
in the Show Cause Memo, dated 29th June, 1990 (supra), issued by the
disciplinary authority, to the effect that the acts of the workman were
"suspicious" and "pre-planned" are obviously unsustainable in law,
being in excess of the charge contained in the charge-sheet which does
not, at any point, question the bona fides of the workman, or the
manner in which he acted.
31. Insofar as the allegation of laxity and negligence, on the
workman's part, in failing to ensure safety and security of the cash
entrusted to him, is concerned, however, the Bank, in my view, has an
open-and-shut case. There is no dispute about the fact that the
workman had received the said cash, and that the cash was meant to be
transmitted to the Nehru Place Branch of the Bank. The act of the
workman in leaving the cash, so entrusted to him, unattended in the
cabin of the Chief Cashier, cannot be excused. While, it is true that
negligence by itself, is ordinarily not an actionable "misconduct"
(UOI v. J. Ahmed, (1979) 2 SCC 286, Insp. Prem Chand vs Govt. of
NCT of Delhi, (2007) 4 SCC 566 and Ravi Yashwant Bhoir vs.
Collector, (2012) 4 SCC 407), it is equally well-settled that, where
such negligence results in serious or disciplinary consequences,
disciplinary action, and punishment following thereupon, is merited.
Being an employee of the Bank, the respondent was expected, at all
times, to exercise the highest degree of care and caution in dealing
with cash consigned to his custody, which represented public monies.
Negligence, by a Bank employee, in dealing with cash entrusted to the
Bank by the customers thereof, and held by the Bank in fiduciary
capacity, is inexcusable, and has, inevitably, to visit the employee with
penal consequences.
32. Having said that, in the absence of any allegation, in the charge-
sheet issued to him, of mala fides, or ill-motive, on his part, it is
obvious that the workman could not, justifiably, have been visited
with the extreme punishment of removal/dismissal from service. At
the same time, while dealing with proved delinquency, it is axiomatic
that punishment must be proportionate to misconduct. Misplaced
sympathy, in such cases, can, on occasion, be as destructive, to the
larger public interest, as misguided severity. The learned Industrial
Tribunal has thought it appropriate to reduce the punishment to
withholding of two increments with cumulative effect. Given the
seriousness of his misconduct, I am of the view that the learned
Industrial Tribunal has been unduly lenient with the workman,
especially keeping in mind the fact that he was a Bank official, who
had, undoubtedly, shown gross negligence in handling cash entrusted
to him for onward transmission. The decision, of the learned
Industrial Tribunal, to merely withhold two increments, even while
reinstating him in service and awarding 50% back wages for the
period from 1st January, 2000, appears to be more of a bonanza than a
penalty.
33. I would have been inclined to award a substantially higher
punishment to the workman, in the facts of the present case; however,
given the fact that he is now approaching the eighth decade of his life,
and claims to be in impecunious circumstances, I choose to modify the
directions, in the impugned award, only to the following extent:
(i) The declaration, by the learned Industrial Tribunal, of the
dismissal, of the workman, from service, as illegal and
unjustified, is affirmed and upheld. However, the direction to
reinstate the workman in service is set aside as having become
incapable of implementation with efflux of time, as the
workman has crossed the age of superannuation during the
pendency of these proceedings.
(ii) The direction to pay 50% back wages to the workman, is
also set aside.
(iii) For the period following the date of the impugned Award
till the date of his superannuation, the workman would be
entitled to a lump sum payment, computed at 25% of the wages
which he would have drawn, had he been reinstated and
continued in service. Inasmuch as the decision, in the
impugned Award of the learned Industrial Tribunal, declaring
the dismissal, of the workman, as illegal and unjustified, is
upheld, the workman would also be entitled to retiral benefits,
computed on the basis thereof.
(iv) The Bank would be entitled to adjust, while disbursing
the above amounts, all payments made to the workman during
the course of these proceedings, whether under Section 17-B of
the Industrial Disputes Act, 1947, or otherwise.
34. Payments, in accordance with the above directions, be
computed and made, to the workman, within a period of four weeks
from the date of receipt, by the Bank, of a certified copy of this
judgement.
35. Resultantly, while WP (C) 12759/2005 is dismissed, WP(C)
18116/2004 is partly allowed in terms of para 33 above.
36. There shall be no order as to costs.
C.HARI SHANKAR
(JUDGE)
JUNE 11, 2018
rk/dsn
