1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO.4162 OF 1996 Dwarkadas s/o Hukumchand Bhutada, Age 49 years, Occ. Nil, R/o Killa Road, Nanded, now residing at Bhokar, Taluka Bhokar, District Nanded. ... PETITIONER VERSUS 1. The Chairman, Nanded District Central Co-operative Bank Ltd., Head Office, Station Road, Nanded, District Nanded. 2. The Manager, Nanded District Central Co-operative Bank Ltd., Nanded, District Nanded. ... RESPONDENTS ..... Shri S.S. Choudhari, Advocate for the petitioner Shri P.D. Suryawanshi, Advocate holding for Shri D.N. Suryawanshi, Advocate for respondents ..... Coram : Shrihari P. Davare, J. Dated : 9th July, 2009. Date of reserving judgment : 2nd July, 2009. Date of pronouncing judgment : 9th July, 2009 JUDGMENT : 1. In the present Writ Petition, challenge is to the judgment and 2 order passed by the learned Member, Industrial Court, Jalna in Appeal (B.I.R.) No.7/1994 on 19.6.1996, thereby quashing and setting aside the judgment and order passed by Labour Court, Aurangabad on 7.11.1989 and restoring the dismissal order dated 8/1/1985, passed by respondent No.1/2, dismissing the petitioner herein from service. The factual conspectus and shorn of details are as follows : 2. The petitioner was appointed as a Clerk in the office of respondent Nos.1 and 2 vide order dated 27.4.1967 and his services were confirmed w.e.f. 1.7.1969. In February 1982, the petitioner was promoted as a Cashier. Thereafter in July 1984, the petitioner was promoted as an Agent. It is alleged that the petitioner has used and issued bogus triplicate advices to the customers to use money to the tune of Rs.14,455/ temporarily. Hence, the petitioner was put under the suspension on 20.10.1984 on the ground of enquiry. During suspension, charge sheet was issued to the petitioner on 13/15.11.1984 and charge of misappropriation and misconduct was levelled against the petitioner herein under clause (d) of Rule 16 of Certified Standing Orders of the respondents. The enquiry was conducted, statements of witnesses of both the sides were recorded. It is the contention of the petitioner that, on the promise that no action would be taken, he gave a writing of admission dated 23.11.1984 on the advice of Mr. V.R. Soni, Chief Officer (Administration), N.M. Aundhekar, Chief Officer (Accounts) and M.R. Adkine (Manager) and also considering the larger interest of the Bank and thereby stated that though the amount was obtained by him from the Bank, it was deposited and he was ready and 3 willing to deposit the interest for the use of the amount, and requested that lenient view be taken in respect of the alleged misappropriation. Thereafter the petitioner herein received the dismissal order on 8.1.1985 along with the findings of the Enquiry Officer, dismissing him w.e.f. 9.1.1985. After receipt of the dismissal order dated 8.1.1985, the petitioner gave notice of change to respondents on 18.1.1985 and thereby desired change specified in the annexures annexed to the said notice. On 2.2.1985, the respondents informed to the petitioner that the act of misconduct of the petitioner was serious and detrimental to the interest of the institution and, therefore, could not give any lesser punishment than awarded to him. 3. Hence, on 20.9.1985, the petitioner filed B.I.R. Application No. 10/1985 in Labour Court, Aurangabad for quashing the order of dismissal dated 8.1.1985 and for directions to the respondents to reinstate him in the service with full back wages and continuity of service. The respondents filed their written statement therein on 14.10.1985 and opposed the said application. By judgment and order dated 7.11.1989, the learned Labour Court, Aurangabad allowed the said application and directed the respondents to reinstate the petitioner/ applicant with continuity of service and back wages w.e.f 8.11.1985. 4. Being aggrieved by the said judgment and order, the respondents herein preferred Appeal (B.I.R.) No.7/1994 before Industrial Court, Jalna Bench. After hearing the respective parties, the learned Member, Industrial Court, Jalna Bench allowed the said appeal by judgment 4 and order dated 19.6.1996 and thereby quashed and set aside judgment of Labour Court, Aurangabad, dated 7.11.1989, and restored the original order of dismissal dated 8.1.1985 of respondents, dismissing the complainant/ employee from the service of the respondents Bank w.e.f. 9.1.1985. Being aggrieved and dissatisfied by the said judgment and order dated 19.6.1996, passed by the learned Member, Industrial Court, Jalna in Appeal (B.I.R.) No.7/1994, the petitioner herein has preferred the present Writ Petition assailing the said judgment and order requesting to quash and set aside the same. 5. It is urged by the petitioner that the past service record of the petitioner was not considered by the learned Member, Industrial Court, Jalna while restoring the order of dismissal dated 8.1.1985. It was also urged that the allegedly misappropriated amount was deposited by the petitioner and, therefore, it was temporary misappropriation and punishment awarded thereto was disproportionate. It is further submitted by the petitioner that Mr. V.R. Soni, Chief Officer (Administrtion), N.M. Aundhekar, Chief Officer (Accounts) and M.R. Adkine (Manager) gave promise to the petitioner that if the admission would be given by him, no action would be taken against him and accordingly the petitioner was made to give the admission before the Enquiry Officer regarding the alleged misappropriation of the amount. 6. It was further contended by the petitioner that the punishment awarded to the petitioner is not commensurate with the alleged misconduct 5 and even before issuance of order of dismissal dated 8.1.1985, no show- cause-notice was given to him and, therefore, the order of dismissal is arbitrary, malafide and capricious and suffers from principles of natural justice. 7. However, as rightly pointed out by learned counsel for the respondent that the learned Labour Court, Aurangabad, while passing the judgment and order in B.I.R. Application No.10/1985 on 7.11.1989, had answered Issue No.1 i.e. “Whether the domestic enquiry against the applicant was fair and proper” in the affirmative. But petitioner has not challenged the said finding before the appropriate higher forum and hence, it is submitted that proper and fair enquiry was conducted by the respondents and order dated 8.1.1985 dismissing the petitioner herein was rightly passed and no interference therein is warranted. Moreover, it is also pointed out by learned counsel for respondents that admission given by the petitioner before the Enquiry Officer on 23.11.1984 in writing is unequivocal and the petitioner herein has categorically admitted the mistake and misappropriation of money to the tune of Rs.14,455/- therein and prayed for sympathetic approach. It is further submitted by the learned counsel for respondents that the punishment of dismissal of the petitioner from service is not disproportionate considering the misappropriation of the amount and also considering the aspect that the misconduct of the petitioner is detrimental to the respondent Nos.1 and 2/ institution. 8. Considering the rival submissions, admittedly the petitioner 6 herein admitted the misappropriation of money to the tune of Rs.14,455/- and his misconduct before the Enquiry Officer by writing dated 23.11.1984 which is unequivocal admission of the petitioner in respect of the misappropriation. Moreover, the learned Labour Court at Aurangabad has also given categorical finding in favour of the Bank while passing judgment and order dated 7.11.1989 that the domestic enquiry conducted by the Bank against the petitioner was fair and proper which has not been challenged by the petitioner herein before the proper and appropriate forum and, therefore, the said finding stands, which leads to the position that the principles of natural justice were followed by the respondents. Hence, in view of the said position, the learned Member, Industrial Tribunal, while passing the judgment and order dated 19.6.1996, has rightly observed that it was not open for the learned Labour Court to record another contradictory conclusion. 9. Coming to the further contention of the petitioner that on promise given by the officers of the Bank that if the admission of misappropriation is given by him, it would be in the larger interest of the Bank and no action would be taken against him, the said stand taken by the petitioner is without any basis and foundation therefor and there is nothing on record to substantiate the said contention put forth by the petitioner herein and hence, same is not digestible and conceivable. 10. As regards the another contention raised by the petitioner herein that he has not at all misappropriated the amount and at the most it is 7 temporary misappropriation since the amount alleged to have been misappropriated temporarily has been deposited by the petitioner with interest, no doubt the petitioner has deposited the misappropriated amount and expressed his readiness and willingness to pay the interest, but by the above referred letter of admission dated 23.11.1984, produced by the petitioner before Enquiry Officer, he has categorically admitted the misappropriation of the amount and his misconduct and, therefore, it cannot lie in the mouth of the petitioner that he has not misappropriated the amount. Moreover, by depositing the amount and expressing his readiness and willingness to pay the interest thereon, the petitioner has not obliged the respondents and observation to that effect made by learned Member, Industrial Tribunal in its judgment dated 19.6.1996 is not out of place. Moreover, had the petitioner not deposited the said amount, he would have faced the prosecution and petitioner was well aware of the same and, therefore, he had deposited the misappropriated amount and hence, the act of deposit of misappropriated amount cannot absolve the liability of the petitioner of misconduct. 11. That takes me to the further contention raised by the learned counsel for the petitioner that the punishment awarded to the alleged misappropriation/ misconduct is disproportionate and is not commensurate with the alleged misconduct, it cannot be forgotten that the petitioner was holding the responsible post of Cashier-cum-Agent and Bank had reposed faith and confidence in him by appointing him as Cashier/ Agent of the Bank and he misused the said faith and confidence and dishonestly 8 defrauded the respondent Bank with a view to cheat it and, therefore, there is no doubt that the misconduct committed by the petitioner herein is detrimental to the public institution/ Banking. Moreover, the amount involved in the said misappropriation is to the tune of Rs.14,455/- which was a large amount in the year 1984 and, therefore, considering all the said aspects, there cannot be any dispute that the punishment of dismissal awarded to the petitioner was proportionate to the act committed by him. Moreover, sight cannot be lost of the aspect that even petitioner has not proved that his past record was so worth and unblemished to invite any leniency, and hence, observations made by the learned Industrial Court, Jalna in its judgment dated 19.6.1996 in that respect speaks for themselves. Accordingly, there is no substance in the said contention of the petitioner and same is required to be discarded. 12. Reliance can be very well placed on the observations made by the Hon’ble Supreme Court in the case cited by learned counsel for the respoondent, which is reported at 2000 II C.L.R. 568 (M.B. Shah & D.P. Mohapatra, JJ.) in the case of Janatha Bazar (South Kanara Central Co-op. Wholesale Stores (Ltd.) etc. Vs. secretary, Sahakari Noukarara Sangha etc.), wherein it has been observed in paragraph Nos.6 and 8 as under : “6. As stated above, the learned Single Judge and the Division Bench in writ appeals confirmed the findings given by the Labour Court that charges against the workmen for breach of trust and misappropriation of funds entrusted to them for the value mentioned in the charge sheet had been established. After giving the said 9 findings, in our view, the Labour Court materially erred in setting aside the order passed by the Management removing the workmen from the service and reinstating them with 25% back wages. Once act of misappropration is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well-settled. (Re. Municipal Committee Bahadurgarh v. Krishnan Bahari and Others (JT 1996 (3) SC 96 = (1996) 2 SCC 714). In U.P. State Road Transport Corporation v. Basudeo Chaudhary and Anr. [(1997) 11 SCC 370] this Court set aside the judgment passed by the High Court in a case where a conductor serving with the U.P. State Road Transport Corporation was removed from service on the ground that alleged misconduct of the conductor was attempt to cause loss of Rs.65/- to the Corporation by issuing tickets to 23 passengers for a sum of Rs.2.35 but recovering @ Rs. 5.35 per head and also by making entry in the waybill as having received the amount of Rs.2.35, which figure was subsequently altered to Rs.2.85. The Court held that it was not possible to say that Corporation removing the conductor from service has imposed a punishment which is disporportionate to his misconduct. Simiarly in Punjab Dairy Development Corporation Ltd. and Anr. V. Kala Singh and Others (JT 1997 (5) SC 604 = (1997) 6 SCC 159), this Court considered the case of a wokrman who was working as a Dairy Helper-cum-Cleaner for collecting the milk from various centres and was charged for the misconduct that he inflated the quantum of milk supplies in milk centres and also inflated the quality of fat contents where there were less fat contents. The Court held that “in view of proof of misconduct a necessary consequence will be that Management has lost confidence that the workman would truthfully and faithfully carry on his duties and consequently the Labour Court rightly declined to exercise the power under Section 11A of the I.D. Act to grant relief with 10 minor penalty”. 7. . . . . 8. In case of proved misappropration, in our view there is no question of considering past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases.” 13. As regards the further contention raised by the petitioner that no show-cause-notice was issued to him before issuing the order of dismissal dated 8.1.1985, it is a matter of record that the petitioner herein was put under suspension on 20.10.1984 to conduct his enquiry and during the said suspension, charge sheet was issued to him on 13/15.11.1984 and his enquiry was conducted by the Enquiry Officer before whom the petitioner gave the admission in writing on 23.11.1984 and ultimately order of dismissal dated 8.1.1985 was issued by the respondents to dismiss the petitioner w.e.f. 9.1.1985 and, therefore, it is apparently clear that due opportunity was given to the petitioner and principles of natural justice were followed by the respondents and hence, there is no substance in the said contention of the petitioner. 14. In the circumstances, upon scrutiny and assessment of the impugned judgment and order passed by the learned Member, Industrial Tribunal, Jalna in Appeal (B.I.R.) No.7/1994, dated 19.6.1996, no infirmity and illegality is found therein and, therefore, no interference therein is warranted under Article 227 of the Constitution of India. 11 15. In the result, present Writ Petition bears no substance and same is devoid of nay merits and, therefore, same stands dismissed. Rule stands discharged. In the facts and circumstances, there shall be no order as to costs. (Shrihari P. Davare, J.)