Bank of India, Regional Office, Bangalore vs D. Padmanabhudu and Another

C. Shivappa, J.—Petitioner herein is a nationalised Bank having one of its regional office at Bangalore. The first respondent was working as a cashier-cum-accounts clerk in the Koppal Branch of the petitioner-Bank. He was dismissed from service vide order dated 31-3-1990 for serious acts of misconduct committed by him in the course of his duties as a cashier. The first respondent thereafter raised an industrial dispute regarding his dismissal from service and a reference was made on 28-10-1991 for adjudication to respondent No. 2. The second respondent set aside the dismissal of the first respondent and directed reinstatement with continuity of service and with backwages but denied two future increments with cumulative effect. Further directed the petitioner not to take into account the period of absence of the first respondent from duty from the date he was placed under suspension till his reinstatement for he purpose of earning increment.

The first respondent joined the petitioner-Bank on 30-10-1980 as subordinate staff and he was promoted as cashier-cum-accounts clerk on 15-10-1984. It is reported that between April 1989 to July 1989 he received several remittances from various customers on several dates in the capacity as a cashier but did not remit it to the Bank and made fictitious debit and credit entries in their accounts. As these facts constituted serious acts of misconduct he was kept under suspension on 4-10-1989 and charge-sheet was issued on 15-10-1990 by the Regional Manager, who is the Disciplinary Authority. Thereafter a domestic enquiry was held and the first respondent participated in the enquiry and took the assistance of the union representative as his defence representative. In the course of enquiry, the first respondent voluntarily admitted all the charges levelled against him and also admitted the documents produced by the management but did not choose to adduce any evidence. On the basis of the material on record, the Enquiry Officer gave his findings holding the first respondent guilty of the charges and imposed the punishment of dismissal from service.

The learned Judge in his order has assigned three reasons which are as follows :

" (1) That the amount misappropriated by the respondent has been paid back to the customer and it is the amount of the customer and not of the Bank;

(2) That the respondent belongs to Scheduled Tribe; and

(3) That the first respondent ought to have been given an opportunity to reform himself and to prove his loyalty to the Bank and relied on a decision of the Supreme Court in Scooters India Limited Vs. Labour Court and Others,

The question that arises for consideration is whether the reasons assigned by the Tribunal are proper or calls for interference?

The Supreme Court in The East India Hotels Vs. Their Workmen and Others, has held as follows :

"When a proper enquiry has been held by an employer and the finding of misconduct has support from the evidence adduced at the said enquiry the tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the enquiry is unfair or the findings arrived at in the enquiry are perverse or have no basis in evidence or the management is guilty of victimisation, unfair labour or mala fide or the punishment is harsh and oppressive. The Tribunal cannot, reappraise the evidence and arrive at a conclusion different from that arrived at by the domestic Tribunal.

Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence for the first time justifying his action. Once misconduct is proved, either in the enquiry conduced by the employer or by the evidence placed before the Tribunal the punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is harsh and oppressive."

The Bank is the custodian of the money of the customers and cashier is a person who deals with the money and he must be more diligent and honest and justify the trust reposed on him by the bank and by the customers. If once the customers lose the confidence in the dealings, the entire organisation suffers and confidence of the customers is the basis on which the entire edifice of the banking system is built. The learned Judge has assigned the reason that the money misappropriated by the first respondent has been paid back to the customer and it is the amount of the customer and not of the Bank. The learned Judge has lost sight of the principle that the intentional temporary retention of the money which does not belong to a person is also a misappropriation. Mere repayment will not absolve the liability or the misconduct committed by the first respondent. When once the money is put to Bank by the customer, the Bank owes a duty to repay and the reasoning that it is the money of the customer and not of the Bank is a perverse reasoning. The second reason that the first respondent belong to Scheduled Caste normally is not the relevant criteria to weight while considering the cause. Caste should not be the ground while appreciating the facts and law in a given case. The second reasoning also does not merit any consideration. The third reasoning that he ought to have been given an opportunity to reform himself, of course, may be on humanitarian grounds. But this aspect depends upon facts of each case. The learned Judge has relied on a decision of the Supreme Court in Scooter India Ltd., Lucknow v. Labour Court, Lucknow & Ors. (supra). That was a case where the workman indulged in distribution or exhibition of offensive hand bills, pamphlets, etc., inside the factory premises. In such a circumstances, the Labour Court took the view that justice must be tempered with mercy and that the erring workman should be given an opportunity to reform himself and prove to be loyal and disciplined employee. The facts of that case cannot be equated and applied to the instant case. Here, it is the misuse of office or betrayal of the trust shaking the very confidence reposed by the customer in a banking system. It is settled law that when once the confidence is reduced, or a responsible post is misused or a sensitive or a strategic position is abused, the Court should not lightly consider the same and grant the relief L. Michael and Another Vs. Johnson Pumps Ltd., To reinforce confidence in the mind of the customers stringent punishment is essential and therefore the case relied on by the learned Judge has no application and the reasoning of the learned Judge are perverse.

Sri. Subba Rao, learned counsel for the first respondent pleaded that having regard to the strata to which the first respondent belongs, he should be given an opportunity to serve the petitioner-Bank with all sincerity.

Setting aside the dismissal of the first respondent and reinstating him may demoralise the petitioner-organization and breed indiscipline. This is not a case where certain trivial misconduct is committed. His intentions exhibited by false entries and the act of misappropriation has been proved by over whelming evidence and admissions. The interest of an individual cannot override or be compromised when it is a question of maintaining disciple in a banking organisation.

Therefore, I pass the following order :-

" (i) The award passed by the second respondent impugned in this writ petition is set aside.

(ii) The order of dismissal is confirmed; and

(iii) The rule is made absolute.

(iv) Parties to bear their own costs."

fv.