IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10181 of 2009 M/S PUNJAB & SIND BANK . Versus SRI AMOD KUMAR For the Petitioner:- Mr. Shivjee Pandey, Sr. Advocate & Mr. Nalin Vilochan Tiwary, Advocate For the Respondent:- Mr. Devi Kant Jha & Mr. Birendra Kumar Jha, Advocates ----------- 03. 03.02.2011 Heard learned counsel for the petitioner and the respondent. The petitioner Bank questions the award dated 17.2.2009 of the Presiding Officer, Central Government Industrial Tribunal No.1 at Dhanbad in Reference Case No. 114 of 2002, directing reinstatement of the respondent in service with full back wages and consequential benefits. The respondent at the relevant time is stated to have been working as a Clerk in the Bank. He was placed under suspension on certain allegations being made. Six charges were framed against him and a departmental enquiry held. A de novo enquiry was held. Final orders of punishment imposing compulsory retirement were passed on 13.3.2002. A Departmental Appeal was dismissed. Thereafter followed the reference under Section 10 of the Industrial Disputes Act (hereinafter called the I.D. Act) leading to the present award. Learned Senior counsel for the petitioner 2 submitted that the de novo enquiry was not questioned by the respondent and he voluntarily participated in the same after his objections were duly replied. In the de novo enquiry there are no allegations of any procedural infirmity causing prejudice to the defence of the respondent so as to vitiate the enquiry. The enquiry report was furnished, a second show cause notice issued duly replied to, consideration of the same, have all been followed. The finding of the Tribunal that the departmental proceedings were mala fide is perverse not supported by any factual materials or reasoning. Out of the six charges, two have been admitted and the rest proved. The Tribunal has not returned any finding with regard to any procedural infirmity in the process of departmental enquiry at any stage. Reliance is placed upon 1979 L.I.C. 1192 (Shankar Chakravarti Vs Britania Biscuit Company Limited) to submit that if there was no infirmity in the departmental enquiry, the Tribunal could not have interfered with the order for compulsory retirement. Conversely, if the Tribunal had arrived at a finding of serious procedural infirmity in the departmental enquiry, it was required to provide opportunity to the petitioner before it to substantiate the charges. The allegations relate to financial misdemeanors in discharge of duties as a Bank employee. The fact that no actual loss had been caused to the Bank 3 is inconsequential placing reliance on 2005 (1) SCC 12 (Ganesh Santa Ram Sirur Versus State Bank of India & others). Learned counsel for the respondent raised a preliminary objection that the writ application was not maintainable in absence of the Tribunal as a party respondent, relying upon A.I.R. 1963 SC 786 (Udit Narayan Singh Mal Paharia Versus Additional Member Board of Revenue). There can be no quarrel with the general proposition that unless all necessary parties, who are concerned with and are likely to be affected by an order are impleaded, the writ petition was not maintainable. In the case of Udit Narayan Singh (supra) the petitioner questioned the order passed by the Board of Revenue in favour of private parties who had not been made respondents. The Board of Revenue was also not impleaded. An objection was raised for non impleadment of necessary parties. The Court drew a distinction between proper and necessary parties. It was held that without presence of the successful private party, a necessary party, the Court cannot issue any order behind his back depriving him of the benefit of the order under challenge. The facts presently are substantially different and the judgment is therefore of no avail to the petitioner as can be 4 culled from paragraph-12 and 13 of the judgment. “12. To summarise in a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party. 13. In the present case Phudan Manjhi and Bhagwan Rajak were parties before the Commissioner as well as before the Board of Revenue. They succeeded in the said proceedings and the orders of the said tribunal were in their favour. It would be against all principles of natural justice to make an order adverse to them behind their back; and any order so made could not be an effective one. They were, therefore, necessary parties before the High Court. The record discloses that the appellant first impleaded them in his petition but struck them out at the time of the presentation of the petition. He did not file any application before the High Court for impleading them as respondents. In the circumstances, the petition filed by him was incompetent and was rightly rejected”. It is next contended for the respondent that after the first enquiry was completed and a report submitted, the petitioner was required to take this enquiry to its logical conclusion by either accepting it or rejecting it. If they differed with the report of any part of the report, they could have proceeded on a difference of opinion but de novo enquiry was not justified. Reliance was placed upon 5 2003 (SCC) (L & S) 791 (Union of India Versus K.D. Pandey and Another) A de novo enquiry is not a stranger to the principles of domestic enquiry. If the facts and circumstances so justify, it has been upheld by the Courts. In the de novo enquiry, the petitioner filed objections which were duly replied to. Thereafter he participated in the enquiry without demur. The court holds against the respondent on principles of waiver to conclude that the question cannot be gone into. It does not appear from the discussions contained in the order of the Tribunal that either party led evidence with regard to the nature of the earlier enquiry and the circumstances under which de novo enquiry came to be ordered. In absence of any issues having been raised by the parties before the Tribunal with regard to whether de novo enquiry was justified or not, the respondent having participated, the issue looses its relevance. In 1957 SCR 575( Manak Lal v. Dr Prem Chand Singhvi) discussing the question of bias and waiver it has been held at paragraph 8 as follows :- “8. The next question which falls to be considered is whether it was open to the appellant to take this objection for the first time before the High Court. In other words, has he or has he not waived his objection to the presence of Shri Chhangani in the Tribunal? Shri Daphtary does not seriously contest the position that the objection could have been effectively waived. The alleged bias in a member of the Tribunal does not 6 render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the Tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R., has observed in Vyvyan v. Vyvyan “waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim”. If, in the present case, it appears that the appellant knew all the facts about the alleged disability of Shri Chhangani and was also aware that he could effectively request the learned Chief Justice to nominate some other member instead of Shri Chhangani and yet did not adopt that course, it may well be that he deliberately took a chance to obtain a report in his favour from the Tribunal and when he came to know that the report had gone against him he thought better of his rights and raised this point before the High Court for the first time. In other words, though the point of law raised by Shri Daphtary against the competence of the Tribunal be sound, it is still necessary for us to consider whether the appellant was precluded from raising this point before the High Court by waiver or acquiescence.” In ,(2006) 11 SCC 464, U.P. Jal Nigam v. Jaswant Singh it has been held at paragraph 12 as follows :-: 12. ………Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might 7 fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted….” The next submission is that charges were not proved by leading oral evidence, but only documents had been filed by the presenting officer. Nothing has been pointed out from the Award that any objection was taken by the petitioner with regard to any procedural infirmity committed during the departmental enquiry causing him prejudice or that evidence was admitted during the departmental enquiry contrary to law. There may be cases where the documents itself may constitute evidence speaking for themselves requiring no oral evidence to support the same by merely reiterating the contents of the documents. The petitioner on those documents had admitted two of the charges. The Tribunal while referring to the documents filed by the petitioner before it holds that no witness was cited to prove or support the documents. If there was no infirmity in the departmental proceedings, and the Tribunal does not appear to be arriving at any such conclusion, the petitioner aptly relies upon paragraph-15 of Shankar Chakrvarti (supra) holding as follows:- “15. In Bharat Sugar Mills Ltd. v. Shri Jai Singh, (1962) 3 SCR 684 the matter 8 came before this Court questioning an Award of the Industrial Tribunal by which the Tribunal declined to grant permission under Section 33 except in respect of one workman holding that the domestic enquiry was not proper and that the employer was guilty of mala fide conduct and victimisation. Before this Court the workman contended that once the domestic enquiry was found to be improper, the Tribunal had to dismiss the application and it could not take independent evidence and arrive at a finding of its own as to the guilt of the workman. It may be mentioned that there was no preliminary issue framed in this case by the Tribunal about the validity of the enquiry. Yet the employer had adduce evidence to substantiate the charges against the workman simultaneously relying upon the papers of domestic enquiry. Negativing this contention of the workman this Court observed as under: "Where there has been a proper enquiry by the management itself the Tribunal, it has been settled by a number of decisions of this Court, has to accept the findings arrived at in that enquiry unless it is preverse and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide. But the mere fact that no enquiry has been held or that the enquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper enquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct. When such evidence is adduced before the Tribunal the management is deprived of the benefit of having the findings of the domestic tribunal being accepted as prima facie proof of the alleged 9 misconduct unless the finding is preverse and has to prove to the satisfaction of the Tribunal itself that the workman was guilty of the alleged miscoduct. We do not think it either just to the management or indeed even fair to the workman himself that in such a case the Industrial Tribunal should refuse to take evidence and thereby drive the management to make a further application for permission after holding a proper enquiry and deprive the workman of the benefit of the Tribunal itself being satisfied on evidence adduced before it that he was guilty of the alleged misconduct." The submission that the order of compulsory retirement came to be passed during the pendency of conciliation proceedings violating Section 33 A of the I.D. Act relying upon 2002 (2) SCC 244 (Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Versus Ram Gopal Sharma And Others) merits no consideration in view of the observations contained at paragraph 16 of the judgment holding as under “16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33-A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33-A. There is nothing in Sections 31, 33 and 33-A to suggest otherwise even reading them together in the context. These sections are intended to serve different purposes.” 10 The next submission on behalf of the respondent that in absence of any perversity in the Award interference was not warranted does not Appeal to the Court. The petitioner specifically pleaded that a copy of the enquiry report was given to the respondent who filed his reply to the same on 14.8.2001. Yet the Tribunal arrives at the conclusion that there was nothing to demonstrate that with the show cause notice dated 10.1.2002 the enquiry report was actually furnished to the delinquent. The fact that the delinquent filed his reply to the enquiry report perhaps is sufficient evidence to hold that the Tribunal arrived at a conclusion to the contrary on assumptions and presumptions. It was next contended on behalf of the respondent that he had been dismissed by an officer subordinate in rank to the appointing authority. The issue does not appear to have been seriously pursued. The Tribunal arrived at a negative finding that the management had led no evidence to show that the Zonal Manager was the appointing authority. The Tribunal on consideration of the case of the parties was required to arrive at a positive conclusion that it was not the Zonal Manager but an Officer superior in rank who had appointed the petitioner. The finding of the Tribunal that in absence of any 11 financial loss caused to the Bank order for compulsory retirement was not sustainable is contrary to the repeated judicial pronouncements in regard to the nature of relationship between the Bank and its employee, in a position of trust dealing with the money of others. The fact that loss may not have been occasioned, but trust has been belied, shall not be sufficient justification to hold that in absence of such loss the order or punishment was not sustainable. The Supreme Court in the case of Ganesh Santa Ram Sirur (supra) at paragraph-34 in this context has held as follows:- “34. The bank manager/officer and employees of any bank, nationalised/or non-nationalised, are expected to act and discharge their functions in accordance with the rules and regulations of the bank. Acting beyond one’s authority is by itself a breach of discipline and trust and a misconduct. In the instant case Charge 5 framed against the appellant is very serious and grave in nature. We have already extracted the relevant Rule which prohibits the bank manager to sanction a loan to his wife or his relative or to any partner. While sanctioning the loan the appellant did not appear to have kept this aspect in mind and acted illegally and sanctioned the loan. He realised the mistake later and tried to salvage the same by not encashing the draft issued in the maiden name of his wife though the draft was issued but not encashed. The decision to sanction a loan is not an honest decision. Rule 34(3)(1) is a rule of integrity and, therefore, as rightly pointed out by Mr Salve, the respondent Bank cannot afford to have the appellant as bank manager. The punishment of removal awarded by the appellate authority is just and proper in the facts and circumstances of the case. Before concluding, we may usefully rely on the 12 judgment Regional Manager, U.P. SRTC v. Hoti Lal13 wherein this Court has held as under: (SCC p. 614, para 10) “If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal.” The charges presently related to the financial transactions. The respondent admitted two of the charges but tried to explain them which was not accepted. The other charges have been proved. The petitioner has not been dismissed from service, but has been compulsory retired. No procedural error in the decision making process departmentally has been demonstrated to the satisfaction of the Court. Interference with the same by the Award was not justified. The impugned award dated 17.2.2009 is accordingly held to be not sustainable. It is set aside. The writ application stands allowed. P.K ( Navin Sinha, J.)