:1: :1: :1: IN IN IN THE COURT OF JUDICATURE AT BOMBAY THE COURT OF JUDICATURE AT BOMBAY THE COURT OF JUDICATURE AT BOMBAY ORIGINAL ORIGINAL ORIGINAL SIDE JURISDICTION SIDE JURISDICTION SIDE JURISDICTION WRIT WRIT WRIT PETITION NO. 349 OF 2001 PETITION NO. 349 OF 2001 PETITION NO. 349 OF 2001 Central Bank of India . ...Petitioners vs. Mr.R.G.Vanmali and anr. ...Respondents ------- Ms.S.V.Kher i/by.K.P.Anilkumar for the petitioners. Mr.V.P.Vaidya for respondent no.1. CORAM: CORAM: CORAM: S.C. DHARMADHIKARI, J. S.C. DHARMADHIKARI, J. S.C. DHARMADHIKARI, J. 29th 29th 29th January, 2007. January, 2007. January, 2007. P.C P.C P.C :- :- :- 1. By this petition under Article 226 of the Constitution of India, the petitioner Union Bank of India challenges the Awards dated 3.3.1999 and :2: :2: :2: 10.2.2000 (Exhibits I and J to this Writ Petition). 2. By the award which is referred as Part-I the Learned Presiding Officer of the Central Government Industrial Tribunal came to the conclusion that the domestic inquiry which was held against the respondent by the petitioner was in accordance with the principles of natural justice but the Enquiry Officer’s findings are perverse. The petitioner management was therefore allowed to lead evidence to justify its actions. 3. By the award which is referred as Part-II Exhibit J delivered on 10.2.2000, the Learned Presiding Officer concluded that the action of the management in dismissing the respondent with effect from 13.9.1995 is not legal and justified. The petitioner was directed to reinstate the Respondent in its service with continuity so also pay him full Backwages, Save and except deducting a sum of Rs.3,000/- per month from the said quantum from 1.6.1996 till payment. :3: :3: :3: 4. It is not in dispute that the respondent is an employee of the petitioner. He was at the relevant time posted by the petitioner bank at its branch in Mumbai. He joined the service of the bank as a clerk with effect from 10th April, 1981. He worked in various departments. The petitioner alleged that while working at Bhuleshwar branch, the respondent was issued with certain memos dated 13.3.1993 and 16.4.1993 for certain acts of misconduct conducted during his tenure at the said branch. By these memos he was placed under suspension. He submitted his written explanation thereof which was found to be unsatisfactory. A decision was therefore taken to institute a disciplinary/departmental inquiry against him. A chargesheet dated 2.7. 1993 was issued in that behalf. 5. The charges are that although, the respondent was a clerk in the Savings Bank department of Bhuleshwar Branch he introduced a Current Account of a partnership firm. The Current Account was of one Shreeji Jewellers. The introduction to this Current Account by the respondent was against the banking :4: :4: :4: norms. The banking norms are that, one Current Account can be opened by a firm, if only, the same is introduced by another Current Account holder. 6. It is then alleged that between 27.3.1991 to 6.6.1991 the respondent though not connected with the Current Account Department of Bhuleshwar branch, filled in 37 pay-in-slips in his own hand writing crediting various amounts in the Current Account No.109188 of the said M/s. Shreeji Jewellers. It is alleged that two cheques of Rs.9 lacs drawn on Dena Bank, Bhuleswhar branch and lodged in the said Current account for clearing were returned unpaid by Dena Bank on 21.6.1991. The particulars of these cheques were filled in by the respondent in the said pay-in-slips. 7. It is lastly alleged that the respondent while working in Saving Department at Bhuleshwar branch during the aforesaid period colluded with one Saujiani and Anwar Qureshi. He got issued Four Fate letters with regard to certain cheques drawn by M/s. Shreeji Jewellers. It is alleged that the contents :5: :5: :5: of these letters are in the handwriting of the respondent. It is alleged that the respondent was working in the Saving Department at the branch. He has no connection with the Current Account department at the said branch. Thus, there was no occasion for him to prepare the said letters. 8. After setting out the details pertaining to the said Fate letters, the chargesheet alleges that the respondent in collusion with the above officers misled the collecting bankers thereby showing undue favour to M/s.Shreeji Jewellers. Thus, when the balance in the Account of M/s. Shreeji Jewellers was insufficient to meet the amount that would be required to be paid under the cheques covered by the aforesaid Letters, an assurance was given by the petitioner to the Third Party/Collecting Bank that the cheques would be duly honoured. It is therefore alleged that the respondent aided and abeted M/s. Shreeji Jewellers in committing a fraud and for all these actions he received illegal gratification of Rs.1000/-. :6: :6: :6: 9. It was alleged that these acts of the respondent amount to Misconduct within the meaning of para 19.5 (Clause J) of the Bi-partite Settlement dated 19.8.1966 one N.K. Shriyan was appointed as the Enquiry Officer. 10. A chargesheet was issued and duly served. An opportunity was given to the respondent by the petitioner to deal with the allegations and considering the fact that the written statement/reply to the chargesheet was of denial it was decided that an Disciplinary Enquiry be held. Accordingly the Enquiry commenced. At the inquiry which was held by the petitioner bank, the bank examined two witnesses of the branch and produced several documents. The chart which is annexed to the petition at Exhibit B enlists the gists of the charges, evidence led by the petitioner and that of the respondent so also the findings of the Enquiry Officer on each of the charges. 11. The Inquiry Officer at the conclusion of the Inquiry submitted his report. :7: :7: :7: 12. As per the rules, a show cause notice was issued by the disciplinary authority before passing final orders. By this notice comments and remarks of the respondent were called for and a reply was forwarded by the respondent on 22.7.1995. With regard to the proposed punishment also identical procedure was followed and infact a personal hearing was also given by the Disciplinary Authority. 13. The Disciplinary Authority in its final order concluded that Charge No.1 is not proved and therefore exonerated the respondent. 14. As far as Charge No.2 and 3 are concerned, it was held that they are proved and considering the seriousness of the same, the punishment of Dismissal was awarded by the Disciplinary Authority vide final order dated 13.9.1995. The Disciplinary Authority’s order has been confirned in Appeal. The Appellate Authority rejected the First Respondent’s Appeal. 15. It appears that aggrieved and dissatisfied by :8: :8: :8: the punishment of dismissal from services imposed upon the respondent, his case was taken by the Central Government Employees Association. It moved the Central Government requesting that a Reference of the dispute between the parties be made and that is how the Central Government in exercise of the powers conferred by Clause (d) of Sub-Section (1) of Section 10 of the Industrial Disputes Act, 1947 referred for adjudication the demand of the union for reinstatement of the respondent in the services of the petitioner. The Reference was made to the Central Government Industrial Tribunal at Mumbai. 16. A statement of claim was filed pursuant to the directions issued by the Presiding Officer and the demand therein was that the respondent be reinstated because according to the union the case is based on the admission of the respondent employee that he has introduced the Account holder to the Bank, filled in the pay-in-slips (thirty seven in number) and wrote four Fate letters under the instructions of the authorised officer one Mr. Saujiani. It is contended in justification of this demand that the :9: :9: :9: petitioner bank did not examine any witness to establish that the respondent had opened the above Accounts with an intention to benefit M/s. Shreeji Jewellers or for the benefit of himself. It was contended that the evidence was withheld by the petitioner and therefore fair opportunity to rebut the alleged charges levelled was not given. In this behalf para 6 of the Statement of Claim which sets out the Justification in support of the Demand and more particularly subparas (i) and (ii) are relevant. 17. It is in these circumstances that the respondent prayed that the Tribunal should hold and declare that domestic inquiry is not legal, fair and proper and the same violates the principles of natural justice. A relief was claimed that the Tribunal should declare that the findings of the Inquiry Officer so also the reasons recorded by the disciplinary and appellate authority are perverse and bad in law. After holding so, the tribunal was requested to declare that the order of dismissal is vitiated and should therefore be set aside with consequential relief of reinstatement to the original :10: :10: :10: post. 18. The petitioner filed its written statement and after referring to the charges so also the proceedings before the Inquiry Officer, it denied the allegations in the Statement of Claim and contended that neither is the domestic inquiry vitiated nor are the findings perverse as alleged. They pointed out that the respondent is guilty in as much as he has violated Banking norms so also his conduct is such as can be termed as prejudicial to the interest of the bank. For all these reasons the petitioner prayed that the Reference be rejected. A rejoinder was filed by the respondent. 19. The Learned Presiding Officer thereafter made this Award, Part (I) on 3.3.1999. The Learned Presiding Officer in para 17 and 18 went into the merits of the charge and the scope of the relevant clause in the bi-partite settlement and, ultimately, in para 19 held thus : " It appears to me that he had given these findings only on the basis of the factual position which is not in dispute." :11: :11: :11: 20. The conclusion of the Learned Presiding Officer at the stage of Part-I Award was that the domestic inquiry was held in accordance with the principles of justice but the Inquiry Officer’s findings are perverse. The management was allowed to lead evidence to justify its action. 21. Thereafter, the petitioner filed an Affidavit-in-lieu of examination-in-chief of its Assistant Manager, who, at the relevant time was posted at the Bhuleshwar branch. In his deposition the Assistant Manager pointed out that in the Savings Account and Current Account Department there is a practice of issuing Fate letters confirming the payment of a particular cheque through clearing by the Paying bank to the Collecting bank on request of the Collecting Bank. He said that such Fate letters are issued after confirming the payment of the cheque in question in that particular account so also on ascertaining that the cheque in question is debited to the parties account. He relied upon the copies of the Fate letters and stated that there was no :12: :12: :12: sufficient balance to clear the cheques in the Account of M/s.Shreeji Jewellers. The debit balance to the tune of Rs.10,22,450.50/- therefore resulted in the loss because of issuance of one of the Fate Letter. Similar is the position with regard to the other Fate letters. These statements were made by him after referring to the statement of Accounts for the concerned period. In his deposition he pointed out that the aforesaid Fate letters misled the Collecting bankers. The respondent displayed undue favours to M/s.Shreeji Jewellers knowing that the balance in their Account was insufficient to meet the demand ‘Under’ the cheques. It was his specific statement that when one of the Fate letters were written by the respondent he was not working in the Current Account department. Normally, such Fate letters are prepared and issued by the concerned departmental staff in the Current Department. The practice in the petitioner bank is that one employee working in a particular department can work or perform work in other department only after he is instructed by his superiors. He has also deposed that while preparing and issuing Fate letters the :13: :13: :13: concerned employee was ascertaining and verifying the position in the Account of the Current Account holder. 22. The cross examination of this witness proceeded upon the admitted facts and the questions posed were regarding signing of the Fate letters. The respondent did not step into the witness box nor did he lead any evidence. 23. The matter was thereafter placed for oral arguments with regard to the issue that was framed by the Learned Presiding Officer, namely, whether the action of the petitioner in dismissing the respondent employee is legal and justified. 24. The Tribunal after having held that the findings of the Enquiry Officer are perverse made the Part II Award holding that the action of dismissal is not legal and justified. He, thereafter, proceeded to set aside the dismissal order and directed that the reinstatement in the services should follow. :14: :14: :14: 25. These awards are assailed by the petitioner bank by invoking this court’s jurisdiction under Article 226 of the Constitution of India. 26. This writ petition was admitted and at the stage of admission this court granted interim orders in terms of prayer clause (c) subject to compliance of Section 17B of the I.D. Act. In other words, the implementation and execution of the impugned awards was stayed by this court. 27. At the hearing of this petition, Ms. Kher appearing for the petitioner has invited my attention to the charge, findings of the Inquiry Officer, the order of the disciplinary authority and the deposition of the respondent before the Presiding Officer. She thereafter took me through the Awards and contended that both Part I and Part II Award are vitiated. She submits that the factual aspects are not in dispute at all. The respondent employee does not dispute that at the relevant time he was working at the Bhuleshwar branch in the Savings Department. He does not dispute that the Current Account was :15: :15: :15: introduced by him. She submits that the bi-partite settlement is also undisputed in as much it is in force since 1966. She submits that even if the respondent employee is exonerated from Charge No.1 the conclusion drawn by the Inquiry authority which is confirmed by the Disciplinary and Appellate Authority with regard to Charges 2 and 3, cannot be held to be vitiated. She submits that once there is clear finding that the inquiry was fair and proper, then, considering the admitted factual position and the clause/para in the bi-partitite settlement, the ultimate action of dismissal cannot be held to be vitiated. She submits that the Tribunal in para 19 of the Award Part I, having clearly held that the Inquiry Officer arrived at his conclusion in the light of the factual position which is admitted by both sides, then, as to how his findings can be said to be perverse has not been clarified by the Tribunal at all. She emphasized the fact that the findings are based on admitted material. There is evidence before the Enquiry Officer in as much as relevant documents were produced and their contents proved. Considering the nature of charges and the reply to :16: :16: :16: the same, according to her, it can safely be said that the Inquiry Officer’s findings are based on evidence. She submits that all facts being admitted and the Inquiry being fair so also no prejudice pointed out, then, merely because the Presiding Officer has some other view in mind he cannot term the findings of the Enquiry Officer as perverse. 28. She submits that the Part II award is also vitiated because the Learned Presiding Officer has gone into the aspect of adequacy of the punishment. She submits that once it is demonstrated that there is no perversity, then, the quantum of punishment is a matter which ought not to have been gone into. The question of reinstatement, in any event, does not arise. She submits that assuming without admitting that Part I and II Award require no interference, yet, this is a case where the petitioner has lost confidence in the employee. This is case of breach of trust and complete loss of faith in an Officer who has acted much beyond his authority. It is a serious misconduct on his part. In any event, the Tribunal was obliged to frame an Issue pertaining to :17: :17: :17: backwages. She submits that the law is that Reinstatement is not automatic. Assuming that reinstatement can be awarded it does not mean that full backwages should follow. In the absence of an issue being framed an adhoc finding that the respondent employee has been earning Rs.3000/- per month is something which would vitiate the final conclusion. She submits that this is not a matter where non-framing of issue of this nature is mere irregularity. This is case of gross irregularity and even on this ground the award should be interfered with and set aside. 29. Ms. Kher has relied upon the following decisions in support of her submission:- 1. Chairman and Managing Director, United Commercial bank and Ors. reported in 2003 1 CLR 796. 2. Damoh Panna Sagar Rural Regional Bank and Ors. vs. Munna Lal Singh reported in 2005 1 CLR 821. 3. Workmen of F.T.& R. Co.v. The Management :18: :18: :18: reported in 1973 LIC page 851. 4. Life Insurance Corporation of India vs. R.Dhandapani reported in 2006 1 CLR 32. 5. State Bank of India and anr. vs. Bela Bagchi and Ors. reported in 2005 III CLR 420. 6. State Bank of India and Ors. vs. T.J.Paul reported in 1999 II CLR 8. 7. The Cooper Engineering Ltd vs.P.P.Mundhe reported in AIR 1975 S.C.1900. 8. V.Ramana vs. A.P. State Road Transport Corporation and Ors. reported in 2005 III CLR 410 30. On the other hand, Mr. Vaidya appearing for the respondent supports the impugned Award. Inviting my attention to the Awards he submits that this court in exercise of its writ jurisdiction cannot interfere :19: :19: :19: with the same as if it is court of further appeal. He submits that the findings of the Presiding Officer with regard to perversity committed by the Inquiry Officer and his interference in the quantum of punishment are matters which are decided in the light of the materials produced before the Tribunal. Sufficiency or adequacy of the materials is not something which can be examined by this court in its writ jurisdiction. 31. That apart, according to him the respondent was recruited in the year 1981. Till date of the order of the dismissal he had rendered 13 years of unblemished service to the satisfaction of the petitioner. There is no other case or charge of misconduct. He submits that it is pertinent to note that the Inquiry Officer exonerates the respondent from the charge of accepting the bribe from the Current Account holder in return of the favours allegedly shown to it. Thus, there was no motive, ulterior or otherwise, in rendering the service to the Current Account holder. On the other hand, the Current Account Holder was invited to open an Account :20: :20: :20: with the Bank pursuant to a drive launched by the petitioner bank for deposits. It is not as if the respondent employee has gone out of the way and shown some special favour to the Current Account holder. All acts committed by him are part and parcel of the normal banking services. He submits that such acts must be demonstrated to have a co-relation to the prejudice or alleged loss caused to the bank. There is nothing to prove such co-relation. In other words, something more than merely assisting the customer must be brought on record. An Inocuous act of filling in the pay-in-slip and introduction of the Current Account Holder are normal courtesies shown by the bank to the customer. These are not acts of misconduct by themselves. Assuming that all factual aspects are admitted including the preparation and writing of Fate letters, Mr.Vaidya submits that the contents of the Fate letters being in the handwriting of the respondent employee is not enough. The allegation is that he prepared Fate letters. The signature and the despatch of the same are not matters which are within the Authority of the respondent. Mr.Saujaini was admittedly the superior :21: :21: :21: officer. He signed the same. By his signature and subsequent despatch of these letters that the bank was bound to honour the same. In short, the decision to address and Despatch such fate letters was not that of the Respondent but his superiors. Thus, Charge No.3 cannot be held to be proved by the limited role that is attributed to the respondent employee in the entire episode. 32. He submits that cheques being returned for want of insufficient funds are matters which cannot be attributed to an employee like Respondent. These are acts of an Account Holder. The fraud is by an Account Holder. There is nothing on record to show that the respondent aided and abeted the Account Holder in committing the alleged fraud. There is exoneration from the charge of bribery. In such circumstances, the Presiding Officer was right in both conclusions drawn by him. Mr.Vaidya pointed out there was no necessity in framing the issue of backwages at all. He submits that the management is unnecessaryily making issue of an act which has neither caused any loss nor serious prejudice to it. :22: :22: :22: These are matters of accomodating a Account Holder for a limited period. Subsequently and even on the date when the cheques were presented there was a credit balance in the Account of the Current Account Holder. The cheques were honoured by the bank. The decisions of such nature are not taken by the Respondent at the level at which he is working. In such circumstances, the punishment of dismissal is not only extreme but wholly disproportionate. Assuming there is some lapse it is minor in character and should not be visited with extreme penalty. Mr.Vaidya has relied upon a decision of Supreme Court reported in (2005) 8 SCC page 351 in the case of (2005) 8 SCC page 351 in the case of (2005) 8 SCC page 351 in the case of M.M.Malhotra M.M.Malhotra M.M.Malhotra vs. Union of India and Ors. vs. Union of India and Ors. vs. Union of India and Ors. 33. For properly appreciating the rival contentions, it would be necessary to note that facts as alleged in the charge-sheet are not disputed. It is nobody’s case that the Account holder was not introduced by the respondent, the pay-in-slips were not filled in by the first respondent or that the Fate letters were not written by him. All the three acts being admitted the conclusion that was drawn by :23: :23: :23: the Enquiry Officer is that as far as Charge No.1 is concerned, the charge is proved. However, the final order passed by the Tribunal authority exonerates the first respondent of this charge. As far as the second charge is concerned of filling in pay-in-slips, the Inquiry Officer after holding that the respondent has filled in the relevant pay-in slips in his own handwriting, holds that the charge as framed stands proved. Thus, on the material produced including the admission of the first respondent, the Enquiry Officer concluded that the Charge no.2 is proved and this finding and conclusion is upheld by the Disciplinary Authority. It is also upheld in Appeal. 35. Charge no.3 pertains to Fate letters. 35. I need not reiterate the practice of addressing such letters as was prevalent in the petitioner bank at the relevant time. That is an admitted fact. The practice as prevalent has been explained by the petitioner and the deposition of its witness has been referred by me precisely for these :24: :24: :24: reasons. The practice of Fate letters being forwarded by the petitioner for honouring certain cheques from the account