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Judgment
D.H. Waghela, C.J.—The appeals are preferred from common order dated 18.04.2013 of learned Single Judge in Writ Petition Nos. 16177/2007 and 13883/2008. Both those petitions were preferred from the award and order of the Labour Court in C.R. No. 100/1998 whereby, management of the scheduled bank was directed to reinstate the workman concerned with 50% back wages, withholding his four annual increments with cumulative effect from the date of order of punishment. The workman concerned was suspended and charge sheeted for the misconduct wherein, shortage of Rs. 12,500/- was found in the cash in charge of the workman, in his capacity as a cashier at the Tumkur branch of the bank. During the course of adjudication of the industrial dispute before the Labour Court, it was found and held, while deciding it as a preliminary issue, that the departmental enquiry held by the employer was not fair and proper. Thereafter, evidence of the alleged misconduct was led before the Court, which found that the workman was working as a cashier on 09.12.1995 and on that day, there was shortage of Rs. 12,500/- in cash balance. However, the Labour Court held in the impugned award that the workman alone could not be held responsible, as the relevant registers and documents related to the cash balance were not only signed by the workman, but were also signed by the manager, after due verification of the cash balance on hand. The workman pleaded that he had already deposited a sum of Rs. 7,000/- by challan dated 12.12.1995 and there was a debit voucher made against the workman for the remaining shortage of Rs. 12,500/-, even as he had made a promise that he will make good that shortage of amount. Curiously, the shortage of cash was found in packets wherein, during inspection 10 notes of 100 rupees denomination were found missing from five packets of 100 rupees notes and similarly, 10 notes of 50 rupees denomination were found missing from each of 15 bundles of notes. Thus in short, a systematic shortfall in cash balance was not in dispute. The management of the bank relied upon Article 41 of Manual of Security and Fire Fighting, according to which, any shortage in the cash balance, however occasioned, should be recovered the same day, if possible.
The Labour Court found that shortage of Rs. 19,500/- found during the course of inspection at the time of closing of cash balance on 09.12.1995 and shortage of Rs. 7,000/- found at the close of the day on 12.12.1995 was as a result of negligence on the part of the workman. It relied upon the fact that there was no allegation in the chargesheet that the workman had misappropriated the amount. It was on that basis that the Labour Court found the punishment of dismissal excessive and disproportionate to the gravity of misconduct and accordingly made the award directing the management to reinstate the workman with 50% of back wages, after withholding four annual increments with cumulative effect.
Upon the above award and order being called into question before learned Single Judge, it was observed that the workman had not worked in the bank from the date of his suspension till the date of award of the Labour Court i.e., from 1995 to 2007 and hence, grant of 50% of back wages for such period was not justified. Accordingly, the order of the Labour Court was modified to reduce the back wages from 50% to 25%.
Learned counsel appearing for the bank vehemently argued that in such cases of serious misconduct involving loss of cash at the hands or even due to negligence of the cashier has to be viewed seriously and the Labour Court ought not to have interfered with the punishment of dismissal. He relied upon the three judge bench decision of the Apex Court in UCO Bank,. Chandigarh vs. Hardev Singh in SLP No. 14491/2001 observing that;
This is a case of misplaced sympathy. The respondent was acting as a Teller in the Bank. One expects the higher standards of honesty and integrity. When admittedly small amounts deposited by the bank''s customers do not find their way into the coffers of the bank but land up in the pocket of an employee, to say that the charge is not serious or the embezzlement is not intentional would be gross understatement, the least to say. The charge framed was serious and normally punishment of dismissal from service would have been logical course to take. Keeping in view the past service of the respondent and other relevant factors into consideration, the punishment of removal only was imposed. The Bank, in a sense, has been more than considerate towards the respondent because with the punishment of removal being imposed, pensionary benefits etc. are not denied. The decision of the High Court to direct the reinstatement was uncalled for.
On the other hand, learned counsel appearing for the workman submitted that the workman had suffered complete loss of income for the period as long as 12 years and the lesser punishment being justified in the facts and circumstances of the case, he ought to have been awarded full back wages.
Having considered the material on record and arguments of learned counsel appearing on both side, it clearly appears that it was a case of admitted shortfall of cash in custody of the cashier and the management of the bank was justified in taking a very strict view of the matter. It was however also clear from perusal of the award of the Labour Court that what was held to have been proved, on appreciation of evidence, was negligence and not misappropriation. That finding of fact having also been relied upon and confirmed by learned Single Judge, further re-appreciation of evidence was neither permissible nor necessary. Therefore, taking it to be a case of negligence as also the admitted fact of shortfall in cash and in absence of any evidence of previous history of any misconduct on the part of the workman during his long period of service, we are of the view that the punishment of dismissal would have resulted into disproportionate consequences for the workman and a lenient view for allowing him to complete his tenure in service was justified. However, any payment by way of back wages would not be justified on account of the fact that the litigation before the Labour Court had arisen because of the misconduct of the workman himself and pendency of the case before the Labour Court could not be exclusively attributed to the management. Any order to make payment towards back wages would be an unnecessary burden and in fact a punishment for the bank, whose actions of suspending the employee and terminating his service were otherwise not wholly unjustified in strict legal sense. Therefore, the appeal of the bank is partly allowed and the appeals of the workman are dismissed with the direction that the award of the Labour Court and impugned order of learned Single Judge shall stand modified to the extent that the workman Mr. D.N. Krishnappa shall not be entitled to any back wages, and the other aspects of the award of the Labour Court shall remain intact. Since it is stated at the bar that the original award of the Labour Court is as yet not complied with by the employer-bank, it is directed that now the award and order of the Labour Court in C.R. No. 100/1998 shall be complied with, subject to above modification, within a period of one month.
The appeals as well as the interim applications made therein are disposed accordingly.