Ahalya vs The Guntur Women Co-op. Urban Bank Ltd. and Others

L.N. Reddy, J.—This writ appeal is filed by the 3rd respondent in W.P. No. 31607 of 1997. The 1st respondent herein filed the writ petition with a prayer to set aside the order, dated 27.09.1997 passed by the 2nd respondent in S.A. No. 5 of 1996 confirming the order, dated 09.12.1996 passed by the 3rd respondent in APSE. S.A. No. 1 of 1995.

The appellant was working as a Clerk in the 1st respondent-Bank. On 22.07.1994, she was alleged to have prepared a remittance slip for Rs. 5,000/- with the date 11.07.1994 in her own hand-writing for the purpose of crediting the amount into Savings Bank Account No. 1091. A Memo was issued to her by the 1st respondent on 23.07.1994, alleging that she attempted to make a fictitious remittance. The appellant is said to have submitted a reply dated 01.08.1994 admitting her guilt. A charge memo was issued on 30.09.1994. Thereafter, departmental enquiry was conducted by appointing an Advocate as enquiry officer. A report was submitted by him on 15.12.1994 holding that the charge is proved. Taking the same into account, the 1st respondent issued a show cause notice. Not satisfied with the explanation submitted by the appellant, the 1st respondent issued proceedings dated 16.01.1995 removing her from service.

The appellant filed APSE. S.A. No. 1 of 1995 under Section 48 of the A.P. Shops and Establishments Act, 1988 (for short ''the Act'') before the 3rd respondent. It was pleaded that the enquiry was conducted in flagrant violation of the provisions of law and principles of natural justice and the charge was fictitious in nature. Through order, dated 09.12.1996, the 3rd respondent has set aside the order of removal and directed reinstatement of the appellant into service. Challenging the same, the 1st respondent filed S.A. No. 5 of 96 before the 2nd respondent. The S.A. was dismissed through order, dated 27.09.1997. Feeling aggrieved by the dismissal, the 1st respondent filed W.P. No. 31607 of 1997 before this Court. Learned Single Judge allowed the writ petition. Hence, this writ appeal.

Learned counsel for the appellant submits that the charge itself was very vague and speculative and though there was no allegation of any acts of indiscipline even according to the charge, the first appellant passed the order removing the appellant from service. She contends that respondents 2 and 3 dealt with the matter in accordance with the provisions of the Act and the learned Single Judge was not at all justified in reversing the concurrent findings. She submits that the enquiry officer flouted all norms that are relevant in a domestic enquiry and did not even furnish the documents applied for by the appellant. She also submits that the High Court cannot function as a Court of appeal, when an order passed under Section 48 of the Act is challenged and in the instant case, the learned Single Judge straight away proceeded to observe that the orders of respondents 1 and 2 are perverse and based on no evidence.

Learned counsel for the respondents on the other hand submits that the charge against the appellant was held proved, and that the 2nd respondent has set aside the order of removal without any basis. He submits that when the appellant herself admitted in her reply dated 01.08.1994, there was indeed no necessity to conduct any further enquiry.

The charge framed against the appellant reads:

" Smt. Y. Ahalya Clerk of Women Coop. Urban Bank Ltd. Guntur attempted to commit cheating and forgery in respect of creating a fictitious credit slip for Rs. 5,000/- which was brought to the Accountant Smt. Ch. Koteswaramma for approval with an intention to commit mischief of valuable security of the Bank. Hence this Charge."

From a perusal of this, it is evident that the allegation against the appellant was that she attempted to commit acts of cheating and forgery. It was not even alleged that the appellant has misappropriated any amount or has fabricated the records. It is important to note that in the domestic enquiry, that was held by an Advocate by name Venkateswara Rao, no independent witness much less the person, whose account the appellant is alleged to have sought to tamper, was examined. Certain documents being Exs. M.1 to M.9, and 19 enclosures were filed. The Secretary of the Bank was examined as P.W. 1 and Accountant as P.W. 2. Substantial part of the report is devoted to the dates of hearing and the developments that have taken place on those days. No effort was made to give an opportunity to the appellant to cross-examine those two witnesses. At any rate, P.Ws. 1 and 2 are from the Management.

The adjudication under the Act is almost akin to the one by the Labour Court under the Industrial Disputes Act. Even where the charges are held proved in the domestic enquiry, the authority under the Act is conferred with the power to grant the relief proportionate to the proven facts. The 2nd respondent framed the following points for its consideration:

Whether Enquiry Officer had examined the letters admitted by the delinquent on 1-8-94 is voluntary or involuntary?

Whether reasonable opportunity has been given to the delinquent or not?

Whether the enquiry had been conducted impartially or not?

Whether the enquiry officer had proved the charge beyond reasonable doubt?

After elaborate discussion, with reference to the proceedings before the enquiry officer, the 2nd respondent took the view that the enquiry is vitiated and cannot be sustained in law. It was also found that the punishment inflicted upon the appellant is unjustified. The denial of opportunity to the appellant in the enquiry proceedings was dealt with in detail. Ultimately the order of removal was set aside and direction as to reinstatement was issued.

In S.A. No. 5 of 1995, the 2nd respondent discussed the matter in further detail. Before him, the case was presented against the appellant, which is at variance with the charge itself. The relevant contention reads:

"The counsel of the appellant/management argued that on 11-07-94 Sri P. Prabhakararao having account No. 1091 presented a cheque to Sri Nageswararao for Rs. 65,250/- with cashier. But mistakenly the concerned person Sri Nageswararao who presented the cheque received the cash of Rs. 60,250/- and forgotten one bundle of Rs. 5,000/- at the cash counter and left the counter. The respondent/workwoman observed the same after the concerned person left the cash counter. The cashier also revealed the same to the Bank Secretary-in-charge. The concerned person who presented the cheque took the cash bundle wrapped in a paper and dispatched the same to Nellore to another party. But they came to know that there was loss of amount of Rs. 5,000/- out of the drawn amount of Rs. 65,250/- from the Bank. The respondent/workwoman i.e., clerk came to know from the cashier that the person who drawn the amount on behalf of Sri T. Prabhakararao, SB A/c holder forgotten Rs. 5,000/- in the cashier counter. In good faith the respondent/workwoman informed the same to the account holder who drawn a cheque amount of Rs. 65,250/- and forgot ton Rs. 5,000/- in the cash counter and advised him to approach the Bank Authorities for payment of Rs. 5,000/-. But the account holder lately approached the Bank authorities and informed the same."

Not even traces of this are found in the charge. It has already been mentioned that the account-holder was not examined and no allegation is made to the effect that any wrong entries were made in the account books of the bank or the account holder, or the bank had suffered any loss.

The circumstances, under which the High Court can interfere with the award passed by the Labour Court or an order passed by an authority under the Act, are too well-known. Even where a second view is possible on facts, this Court cannot interfere. It is only when the findings recorded by the authorities are perverse or based on no evidence that there can exist a possibility. It is also essential to note that there need not be any independent evidence in such proceedings. The Court or authority is vested with the power to re-appreciate the evidence, which formed part of the records of the domestic enquiry.

In the instant case, the entire record pertaining to the domestic enquiry was placed before the 3rd respondent. He analysed each and every document and recorded a finding to the effect that the charge is not proved. That was affirmed by the 2nd respondent. The learned Single Judge however straight away commenced his discussion about the orders assailed in the writ petition with an observation that the orders passed by respondents 2 and 3 are perverse and based on no evidence. The learned Single Judge observed:

"Both the orders of respondent Nos. 1 and 2 are perverse and are based on no evidence. It defies reason as to how the two documents, one of which was not in existence and other was torn, could have been supplied to the third respondent. It is not even the case of the third respondent that either the enquiry officer or the disciplinary authority of the petitioner-bank had relied on these two documents to substantiate the charge and, as a result of non-furnishing of those two documents, she had suffered prejudice.

No effort was made to verify the manner in which the domestic enquiry was conducted nor the purport of the charge was taken into account. The 1st respondent did not mention any provision, which the appellant can be said to have violated. An order, which has the effect of terminating the services of an employee, can be passed only when a charge referable to the relevant service rule is proved. When the charge itself is about an attempt, it is difficult to hold the same to be an act of misconduct. Assuming that such a charge is proved, the punishment of removal was unthinkable, if not highly disproportionate. Respondents 2 and 3 have decided the matter based on the entire record and arrived at a correct conclusion. The view taken by the learned Single Judge cannot be sustained in law.

Hence, the writ appeal is allowed and the order, dated 30.09.2010 in W.P. No. 31607 of 1997 is set aside. It is brought to our notice that the appellant has since attained the age of superannuation. We direct that she shall be entitled to be paid the wages under Section 48(4) of the Act till date of retirement. She shall also be entitled to be paid the retirement benefits.

The miscellaneous petition filed in this writ appeal shall also stand disposed of. There shall be no order as to costs.