E. Koteshwara Rao vs The Hon''ble Central Government Industrial Tribunal cum-Labour Court

K.G. Shankar, J.—These two writ petitions are to dispose of through common order as they have a common thread. Through W.P. No. 8567 of 2003 which shall be referred to as the former writ petition, the petitioner sought to set aside the award dated 23.12.2002 in I.D. No. 250 of 2001 on the file of the Central Government Industrial Tribunal-Cum-Labour Court, Hyderabad-the 1st respondent. In W.P. No. 5355 of 2005 which shall be referred to as a latter writ petition, the petitioner challenges the order dated 06.05.2002 passed by the 1st respondent in I.D. No. 250 of 2001. Chronologically the latter writ petition ought to have been filed prior to the former writ petition.

On 06.05.2002, the 1st respondent held that the domestic enquiry held was proper. Questioning the finding that the domestic enquiry was properly held, the latter writ petition was filed. After holding that the domestic enquiry was proper, 1st respondent went into the question of merits in I.D. No. 250 of 2001 and ultimately passed award on 23.12.2002. Assailing the same, the first writ petition was filed. As both the writ petitions relates to the preliminary order and the final order in I.D. No. 250 of 2001 and run on a common thread, both the writ petitioners are disposed of through this common order.

The petitioner joined the respondent bank on 01.05.1975 as a peon. In November, 1979, he was promoted as a clerk. In 1996, the petitioner was transferred to Ongole branch. On 20.05.1998, a memorandum was issued to the petitioner that he committed various acts of commissions and omissions as a Head Cashier in the Ongole branch of the respondent bank on 04.05.1998. It was stated in the memorandum that the petitioner did not hand over the cash vouchers on 04.05.1998 to the Accountant/Branch Manager for safe custody, that he has not taken proper care to identify the person to whom he paid Rs. 25,000/- (Rupees twenty five thousand only) against token No. 9, that he issued tokens without obtaining prior approval of the Ledger Officer as of the amount withdrawn in question was above Rs. 5000/- (Rupees five thousand only), that it is violation of the norms and that the petitioner did not prepare the cash supplementary on 04.05.1998 itself. On 01.06.1998, the petitioner submitted a representation. Sri K.V. Krishna Reddy, the Manager (P.& A.), submitted a report on 18.05.1998 to the Assistant General Manager, Regional Office of the Bank, Vijayawada regarding the fraudulent withdrawal of Rs. 25,000/- (Rupees twenty five thousand only) from the account of one E. Lachchanna bearing S.B. Account No. 12248. Consequent upon the same, a charge sheet was issued alleging that the petitioner committed acts which were prejudicial to the interests of the bank as they involved monetary loss to the bank and that the petitioner was negligent in performing his official duties and committed breach of rules of business of the bank in discharge of his functions.

The domestic enquiry was conducted against the petitioner by the Disciplinary Authority himself, acting as the Enquiry Officer. Three witnesses viz., K.V. Krishna Reddy, Accountant of the Ongole Branch and B. Adinarayana, Officer J.M.G.S., were examined as M.Ws. 1 and 3. As many as 13 documents were also marked. The petitioner was found guilty by the Enquiry Officer...The petitioner was dismissed from service. Questioning the same, the petitioner raised I.D. No. 250 of 2001. The Labour Court considered the question of the validity of the domestic enquiry at the outset and passed orders on 06.05.2002 that the domestic enquiry was proper. The petitioner immediately filed W.P. No. 10132 of 2002 challenging the order of the Labour Court dated 06.05.2002. However, the petitioner chose to withdraw the same on 10.06.2002 and was granted liberty to challenge the same once again after passing of the award. Consequently, the petitioner laid the second writ petition challenging the order dated 06.05.2002 after passing of the award.

Sri C.R. Sridharan, the learned counsel for respondent Nos. 2 and 3 contended that the Labour Court was justified in holding that the departmental enquiry was properly conducted and that the subsequent order of the dismissal of the petitioner from service does not suffer from any infirmity, so much so, both the writ petitions are liable to be dismissed.

Sri G. Vidyasagar, the learned counsel for the petitioner, on the other hand, contended that no witnesses were examined in the domestic enquiry to substantiate the charge and that K.V. Krishna Reddy was not the Branch Manager of the Ongole branch at the relevant time and was not competent to speak about the allegations against the petitioner. He submitted that the report of the Enquiry Officer as well as the confirmation of the finding by the Industrial Tribunal and consequent orders are liable to be set aside.

The petitioner was working as a Head Cashier of the Union Bank of India in Ongole branch at the relevant time. There is no dispute that the position held by the petitioner is a post of high confidentiality and that high level of honesty and confidentiality are liable to be maintained by the person holding such a position. While so, the Department alleged that the petitioner committed dereliction of his duties as a Head Cashier. A charge sheet was issued which culminated into a domestic enquiry. The Enquiry Officer found the petitioner guilty of the charges leveled against him. Consequently, the petitioner was dismissed from service as the management lost confidence in the bona fides of the petitioner.

It is evident that dismissal order can be challenged by a workman before the Labour Court. The Labour Court shall first consider the validity of the domestic enquiry as a preliminary point. The Labour Court considers whether the principles of natural justice were followed and adequate opportunity was accorded to the petitioner to defend himself before the domestic enquiry. If the Labour Court is satisfied that the domestic enquiry is valid, the question of the adequacy of punishment is taken for consideration. It may also be noticed that oral evidence is permitted before the Labour Court if it is considered that the domestic enquiry is vitiated by violation of the principles of natural justice or adequate opportunity to the delinquent to support his case was not given.

Section 11A of the Industrial Disputes Act (for short I.D. Act,) came into a the Statue book with effect from 15.12.1971. Prior to introduction of Section 11A of the I.D. Act, the Industrial Courts had no power to interfere with the award including the question of punishment to be inflicted upon the employee if the domestic enquiry was found to be valid. However, after Section 11A of the I.D. Act was brought into the Statute book, the Labour Court acquired the power to consider the quantum of sentence and acquired a right to defer from the penalty imposed by the Disciplinary Authority.

While so, in this case, preliminary finding was issued by the Labour Court on 06.05.2002 that the domestic enquiry was valid. If a workman claims that the principles of natural justice were violated in the process of conducting domestic enquiry, he gets an opportunity to depose and produce further evidence regarding violation of the principles of natural justice before the Court. The petitioner, however, did not chose to depose hut only produced documents before the Court. The Tribunal consider various principles enunciated by the Supreme Court and observed that an enquiry would be considered to have been not properly held unless:-

The employee proceeded against has been informed clearly of the charges leveled against him,

The witnesses are examined - ordinarily in the presence of the employee - in respect of the charges,

The employee is given a fair opportunity to cross-examine the witnesses,

He is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter and

The Enquiry Officer records his findings with reasons for the same in his report.

The Labour Court, however, considered that all the ingredients mentioned have been fulfilled and the enquiry report therefore, could not be questioned on the ground that principles of natural justice were violated. It may be noticed that the learned counsel for the petitioner has not seriously contested W.P. No. 5355 of 2005 at large, aimed at questioning the reasoning and finding of the award and consequent punishment. At any rate, where the petitioner has not let in any evidence to show that he was not communicated the charges and had not been accorded opportunity to defend himself properly, the question of setting aside the award on the ground that violation of principles of natural justice does not arise.

The learned counsel for the respondents places reliance upon The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, it would appear that Firestone Tyre is one of the earliest decisions after incorporation of Section 11A of the I.D. Act, the Supreme Court ultimately observed:-

If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to defer from the ''conclusions arrived at by the management, will have to give very cogent reasons for not accepting the view of the employer.

It is contended by the learned counsel for the respondents on the basis of this decision that once it is found that the domestic enquiry was properly held and a correct finding was reached, the Court should be slow to defer from the conclusions. As Sri G. Vidyasagar, the learned counsel for the petitioner has pointed out, the Tribunal reaching a correct finding regarding* the misconduct is a pre-requisite before the Court expresses its reluctance to interfere with the conclusions reached by the Tribunal. The petitioner contended that the guilt of the accused arrived at by the Tribunal has no justification and that the Tribunal should have set aside the findings of the Enquiry Officer. It is evident from the law that the Tribunal should refrain from examining the proof of guilt of the petitioner afresh except when the finding reached by the Enquiry Officer was found to be perverse. I shall examine this question whether the finding of the Enquiry Officer was justified or otherwise later.

The learned counsel for the respondents contended that the petitioner would be entitled to a Writ of Certiorari if there is error apparent on the face of the record only and not otherwise. Inter alia, he submitted that the Supreme Court held that in domestic enquiry, the standard of proof required is preponderance of probabilities and not proof beyond a reasonable doubt. In Union of India (UOI) Vs. Sardar Bahadur, , the Supreme Court observed that a finding cannot be characterized as perverse or unsupported by any relevant material, if it is a reasonable inference from the proven facts. It also observed that if the domestic enquiry has been conducted properly, the question of adequacy or reliability of evidence could not be canvassed before the High Court. The learned counsel for the respondents contended that the facts in the case are more identical with the facts of the present case and that the decisions squarely apply to the case on hand restraining this Court from reappraising the evidence or considering the finding of the Enquiry Officer and the Labour Court as perverse.

The facts on the basis of which charges were leveled against the petitioner may be stated briefly at this stage for the purpose of findings. While the petitioner was working as Cashier in the Ongole branch of Union Bank of India, on 04.05.1998, the petitioner officiated as the Head Cashier since Sri G. Udhaya Bhasker, Regular Head Cashier was on leave. One Sri Anji Reddy, Clerk was acting as a Scroller as the regular Scroller Sri Ch. Shobhan Babu was also on leave. Till about 9.50 A.M., Anji Reddy did not turn up for duty. Consequently, B. Adinarayana handed over tokens to the petitioner in respect of withdrawal of cheques. The petitioner issued seven tokens including token No. 9. Token No. 9 relates to S. B. Account No. 12248 of Epuri Lachchanna for a sum of Rs. 25,000/- (Rupees twenty five thousand only). The petitioner entered the account number of the customer as 1248 in cash scroll instead of 12248. Although Lachchanna was possessor of cheque book and used to make withdrawal through cheques, token No. 9 related to withdrawal through a withdrawal form and not a cheque.

A circular was issued on 20.09.1991 by the bank that withdrawal of money through withdrawal form from the savings bank account shall be restricted to a maximum of Rs. 5000/- only. The claim of the bank is that although the petitioner was aware of the circular, he failed to obtain permission from the supervisor of his staff, before issuing token No. 9 as the withdrawal was for as much as for Rs. 25,000/-. It would appear that the bank issued another circular on 05.01.1991 that payments through withdrawal slips should be allowed when the withdrawal slip was accompanied by the passbook and was presented by the account holder himself. It is also contended by the respondent bank that the petitioner issued token in violation of the circular although the withdrawal form was not accompanied by the passbook. On 14.05.1998, E. Lachchanna, the customer complained to the bank that there was an unauthorized debit entry in his account dated 04.05.1998 for a sum of Rs. 25,000/-. He claimed that he did not withdraw such moneys. The bank considers that the account holder did not present withdrawal form and that although the withdrawal form was not accompanied by the passbook and although the same was not presented by the customer himself and although the amount sought to be withdrawn is more than Rs. 5,000/-, the petitioner carelessly and negligently issued token No. 9 and allowed spurious person to withdrawn the money from the account of the account holder. However, it would appear that subsequently, E. Lachchanna, the account holder, withdrew his complaint. On the basis of this allegation, the charge sheet was laid and enquiry was held.

Before the Enquiry Officer, Sri K.V. Krishna Reddy, the Preliminary Enquiry Officer, who submitted the report on 18.05.1989 was examined as M.W. 1, Sri K.V.P. Kiran, the Accountant at the Ongole Branch was examined as M.W. 2 and M.W. 3 is B. Adinarayana, an Officer in JMGS at Ongole. M.W. 3 claimed that he knew Lachchanna, account holder of the A/c. No. 12248 and that on 04.05.1998, he did not visit the bank. M.W. 3 is not an employee of the respondent bank. The bank, however, examined him to show that the account holder did not personally present withdrawal form on 04.05.1998 to establish carelessness leading to misconduct of the petitioner. The learned counsel for the petitioner contended that the entire evidence was based on the report of the Accounts Officer and the Branch Manager at the relevant time and that as neither of them was examined, enquiry shall be considered to be bad.

The learned counsel for the petitioner placed reliance upon Sur Enamel and Stamping Works (P) Ltd. Vs. Their Workmen, where it was declared by the Supreme Court:

An enquiry cannot be said to have been properly held unless (i) the employee proceeded against has been informed clearly of the charges leveled against him, (ii) the witnesses are examined - ordinarily in the presence of the employee - in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine the witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, (v) the Enquiry Officer records his findings with reasons for the same in his report.

The learned counsel for the petitioner submitted that the five parameters referred to by the Supreme Court had not been considered by the Labour Court but merely observed that the ingredients were satisfied. In the preliminary report dated 06.05.2002 the 1st respondent-Tribunal considered this decision of the Supreme Court at paragraph No. 11. Thus, the Labour Court considered the five parameters suggested by the Supreme Court way back in 1963. It is contended by the learned counsel for the respondents that the order of the Labour Court is a reasoned order and cannot be assailed.

I have already pointed out that the petitioner did not seriously contest the issue regarding the validity of the domestic enquiry. Thus, the very writ petition in W.P. No. 5355 of 2005 is more a formal affair. The main contest is that the findings of the Enquiry Officer and the Tribunal are perverse and are liable to be set aside. Consequently, the basis on which the preliminary finding was issued by the Labour Court through orders dated 06.05.2002 is more academic and does not call for any observations from me.

The learned counsel for the respondents contended that the petitioner cannot now urge that the charges are vague as the petitioner did not ask the Disciplinary Authority/Enquiry Officer for clarification and more so, where the petitioner filed a detailed reply to the charge sheet. He also submitted that finding of the Enquiry Officer are unassailable and indeed are not questioned. He further contended that the petitioner, being a bank employee, must maintain utmost vigilance in discharge of his functions and that the petitioner cannot be slack on one hand, and claim for sympathetic treatment on the other hand. In Disciplinary Authority-cum-Regional Manager and Others Vs. Nikunja Bihari Patnaik, , a Bank Officer acted beyond his authority and allowed advances and overdrafts. Many of such advances and overdrafts became irrevocable. On his having been found guilty in the domestic enquiry, the Disciplinary Authority dismissed him from service. When he approached the Supreme Court and sought for mercy on the ground that he was,, 37 years old only, the Supreme Court held that he, being a bank officer, should have acted with utmost vigilance and that when he did not care about his duties, he did not deserve sympathy of the Court. In Union Bank of India Vs. Vishwa Mohan, the Supreme Court observed:

It needs to be emphasized that in the banking business absolute devotion, diligence integrity and honesty need to be preserved by every bank employee on any particular bank officer. If this is not observed, the confidence of the public/depositors would be impaired.

It is the contention of the learned counsel for the respondents on the basis of this decision that the petitioner being an official of the bank acted beyond the directions of the bank and committed misconduct. He also submitted that the bank bona fide lost confidence in the petitioner and that in view of such loss of confidence, the bank is immune from challenge regarding the disciplinary action taken against the petitioner. The Supreme Court held in Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy and Others, that when misconduct proved against the employee was serious and grave creating genuine lack of confidence in him on the part of the employer, the question of exercising the jurisdiction u/s 11A of the I.D. Act by the Court to alter or reduce the punishment inflicted upon the employee would not arise. He submitted that misconduct committed by the petitioner is grave in the sense he violated the circulars and the withdrawal memo which was not presented by the account holder, causing loss to the bank and that the bank consequently lost confidence in the petitioner. He submitted that as the bank lost confidence in the petitioner, it is not proper for the Court to order reinstatement of the petitioner by interfering with the punishment imposed upon the petitioner. He also submitted that the report of the Enquiry Officer was correct and that the Labour Court deemed it appropriate not to interfere with the same. He submitted that the scope of Writ of Certiorari is limited as observed in Hari Vishnu Kamat v. Ahmed Ishaque AIR 1995 SC 233.

(1) ''Certiorari'' will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to -exercise it,(2) ''Certiorari'' will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of ''Certiorari'' acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in ''Certiorari''. These propositions are well settled and are not in dispute.

He contended that in view of these observations of the Supreme Court, there is no scope for issuance of the Writ of Certiorari in the present case setting aside the orders of the Labour Court. The Supreme Court considered the scope of Certiorari in Syed Yakoob Vs. K.S. Radhakrishnan and Others, once again holding that an error of law apparent on the face of the record can be rectified through a Writ of Certiorari and that if a statutory provision capable of the constructions was construed in one manner by the Disciplinary Authority or by the Tribunal, the same cannot be considered to be an error of law on the face of the record to issue Writ of Certiorari. At any rate, it is the contention of the learned counsel for the respondents that the finding of the Enquiry Officer and the Tribunal were justified and are not perverse in any manner, and that there is no scope for the issuance of Writ of Certiorari against such an order.

The learned counsel for the petitioner contended that the customer, who allegedly lodged the complaint, was not examined by the Enquiry Officer and that such non-examination of the customer cannot lead to a finding of the guilt of the petitioner. V.R. Krishna Ayer, J, speaking for the Bench in State of Haryana and Another Vs. Rattan Singh, observed that satisfaction of sufficiency of evidence by domestic Tribunal is beyond judiciary scrutiny and that if there is ''some'' or ''any'' evidence in support of the case against the delinquent, the finding of guilt by the Enquiry Officer or the Tribunal cannot be questioned. In the case cited, the Supreme Court observed that in departmental proceedings, the guilt need not be established beyond reasonable doubt; proof of negligence may be sufficient to find an employee guilty of misconduct. The Supreme Court also observed that as strict rules of evidence are not applicable to domestic enquiry, findings on hearsay evidence is quite permissible.

The learned counsel for the respondents contends that the Tribunal scrutinized the finding of the Enquiry Officer and found it to be correct and that the finding of the Tribunal certainly is justified in the present case. The main theme of the learned counsel for the petitioner is that the very charge is not proved as M.W. 1 did not work as the Manager of the Ongole branch at the relevant time and that as M.W. 2 was not the Accountant at the relevant witness. I may notice, at the outset, that the petitioner cannot and did not deny the circulars that the withdrawal form should be allowed for amounts below Rs. 5,000/- only and that the withdrawal forms should be presented by the account holder together with the passbook. His claim would appear that the account holder personally submitted the withdrawal form. Even then, the passbook has not been presented. Nevertheless, the petitioner acted on the withdrawal form which is against the rules. However, mere passing the withdrawal form without the passbook, certainly cannot be grave misconduct.

At the same time, it is the contention of the respondent-bank that the account holder never presented the withdrawal form. M.W. 3 deposed that the account holder did not come to the bank on 04.05.1998. Curiously, it was not even suggesting to this witness that the account holder personally presented the withdrawal form to the petitioner and that the proposed M.W. 3 did not notice the account holder. On the other hand, the M.W. 3 was not cross-examined at all except for a question whether the M.W. 3 knew the petitioner or not. I am afraid that the petitioner has, more or less, admitted from the evidence of M.W. 3 that the account holder did not present the withdrawal form. When the withdrawal form was for more than Rs. 5,000/- which was not permissible and when the withdrawal form was not presented by the account holder, accepting the same is grave misconduct. The petitioner as a bank official ought to have been and perhaps was aware of the possibility of the consequences of accepting such withdrawal form. In any event, from the evidence let in before the Enquiry Officer, I consider that the petitioner has admitted that the withdrawal form was not presented by the account holder and that he nevertheless honoured the same.

Consequently, the finding of the Enquiry Officer that the petitioner was guilty and upholding of the finding of guilt by the Tribunal are justified and do not call for any interference.

Regarding the quantum of sentence, as pointed out by the Supreme Court in Vishwa Mohan (Supra) the non-observance of absolute devotion, diligence, integrity and honesty by a bank official may impair the confidence of public/depositors and that in view of Nikunja Behari Patnaik (Supra) no sympathy can be shown against an employee of bank who was dismissed from service for his misconduct.

I am afraid that the petitioner did not conduct himself properly and acted carelessly in honouring a withdrawal form totally against the norms and common sense. The finding of the Enquiry Officer and Tribunal that the petitioner is guilty of the charges leveled against him for such misconduct does not call for any interference. Consequently, the order of the dismissal of the petitioner from service does not deserve to be interfered with. I therefore, see no merits in these writ petitions.

In the result, these Writ Petitions are dismissed. Miscellaneous petitions, if any, pending in these Writ Petitions shall stand closed. No costs.