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Judgment
By way of the present writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner seeks quashing of the award dated 23.03.2017 passed by the learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court No. 1, Karkardooma Courts, Delhi (hereinafter referred to as the “Tribunal”) in I.D. No. 272/2011, whereby the action of the respondent in dismissing the petitioner from service was upheld.
The brief facts necessary for the adjudication of the present petition are that, the petitioner was appointed as a clerk with the Syndicate Bank (hereinafter referred to as the “Management”) with effect from 14.10.1983 and his last drawn salary was Rs.10,300/- per month. At the relevant time, he was posted at the B.B.M. DTC Depot extension counter attached to the GTB Nagar Branch of the Management.
The concerned inquiry proceedings against him arose out of a transaction dated 02.02.1993, concerning two amounts of Rs.5,300/-and Rs.100/-, allegedly received by him from one Sh. Harish Kumar Menghi, a customer of the Management. A charge-sheet dated 08.09.1998 was filed alleging that the petitioner had issued two counterfoils, one for Rs.5,300/- towards credit in Savings Bank Account No.690 and the other for Rs.100/- towards credit in CD Account No.1956, without accounting for or remitting the amounts received by him to the Management. It was further alleged that he had made “fictitious entries” of the said amounts in the ledger sheet and passbooks of the concerned accounts. The charge-sheet characterised the alleged acts as gross misconduct of “doing acts prejudicial to the interest of the bank” under Clause 19.5(j) of the Bipartite Settlement, which governed the service and disciplinary conditions of bank employees.
A departmental inquiry was thereafter conducted and after issuance of the notice of proposed punishment and grant of personal hearing, the petitioner was dismissed from service by order dated 15.12.1999. The appeal preferred by him against the said order was also dismissed by the concerned appellate authority on 12.04.2000. The petitioner thereafter raised an industrial dispute and the matter was referred for adjudication to the Central Government Industrial Tribunal-cum-Labour Court No. II, Delhi, from where it was further transferred to the Tribunal vide order dated 30.03.2010.
During the proceedings before the Tribunal, the petitioner challenged the validity of the departmental inquiry, principally on the ground of violation of the principles of natural justice. By order dated 29.02.2012, the Tribunal held the inquiry to be vitiated and the Management was thereafter permitted to lead fresh evidence before the Tribunal to prove the misconduct of the petitioner. Upon the appreciation of all evidence, the Tribunal, vide the impugned award, held that the allegations against the petitioner stood proved and that the punishment of dismissal was justified.
The principal contention raised by the learned counsel for the petitioner is that the charge-sheet was issued after an unexplained delay of about five and a half years and that no explanation was furnished by the Management as to why the disciplinary proceedings were initiated only in September 1998. Reliance in this regard has been placed on “P.V. Mahadevan v. M.D. Tamil Nadu Housing Board”1. Learned counsel has also drawn the attention of this Court to the fact that the Management, having failed to examine Sh. Harish Kumar Menghi during the inquiry proceedings, subsequently moved an application for introducing him as an additional witness, and emphasis has also been placed on his deposition dated 23.12.2013, wherein he stated that he did not remember the alleged cash deposits of Rs.5,300/- and Rs.100/-.
Learned counsel has further submitted that the charge-sheet was not accompanied by a statement of allegations/statement of imputation, list of witnesses, or list of documents forming the basis of the charge. Reliance has also been placed on the decision in “Anant R. Kulkarni v. Y.P. Education Society”2 in support of the submission that failure to furnish the statement of allegations causes prejudice to the delinquent employee.
The last limb of the petitioner’s case is that there was admittedly no complaint from the customer Sh. Menghi, who was examined only before the Tribunal and not during the course of the inquiry proceedings and that the Management had suffered no financial loss. In this context, learned counsel has stated that the charge framed against the petitioner was of “doing acts prejudicial to the interest of the bank” under Clause 19.5(j) of the Bipartite Settlement and that there was no separate charge of misappropriation, cheating or forgery.
Learned Senior Counsel appearing for the Management, on the other hand, submits that the challenge raised by the petitioner essentially seeks a re-appreciation of the evidence which is not warranted in the exercise of jurisdiction under Articles 226 and 227 of the Constitution. He has particularly relied upon the order of the Tribunal permitting examination of Sh. Harish Kumar Menghi as an additional witness, whereafter he was examined and, notably, cross-examined at length by the petitioner, before the Management closed its evidence.
On the question of delay, learned Senior Counsel submits that the mere passage of time between the alleged incident and issuance of the charge-sheet does not, by itself, vitiate disciplinary proceedings. Reliance in this regard has been placed on “State of A.P. v. N. Radhakishan”3. Lastly, learned Senior Counsel submits that the misconduct concerned relates to the handling of customer money by a bank employee and the consequent falsification of the Management’s records. The punishment of dismissal cannot be said to be disproportionate having regard to the nature of the misconduct and the confidence reposed in an employee dealing with public money.
Before dealing with the individual submissions, it would be apposite to bear in mind the nature of the institution in which the petitioner was employed. A bank does not merely deal with its own funds, it functions on the faith rendered by its customers in the persons handling their money and maintaining the corresponding records. The responsibility of a bank employee entrusted with customer transactions is, therefore, distinct from that of an employee discharging purely administrative functions. The present case concerns an allegation that money handed over by a customer for being credited to his accounts was not accounted for in the bank’s records and that, thereafter, entries were made in the relevant records to show a transaction which, according to the Management, had not in fact taken place. It is against this factual backdrop that the challenge to the finding of misconduct and the punishment imposed upon the petitioner has to be examined.
The first issue which arises for consideration is the delay in issuance of the charge-sheet. The alleged transaction is of 02.02.1993, whereas the charge-sheet-cum-suspension order was issued on 08.09.1998. There is, thus, a gap of more than five years. The petitioner has contended that the Management has not furnished any satisfactory explanation for this delay and that, with the passage of time, the availability and reliability of the evidence itself stood affected. In “P. V. Mahadevan” (supra), the Supreme Court deprecated an inordinate and unexplained delay in initiation of disciplinary proceedings, particularly where such delay causes prejudice to the delinquent employee.
At the same time however, the delay cannot be examined by applying an inflexible formula. In “N. Radhakishan” (supra), the Supreme Court held that the Court is required to consider the nature of the charge, its complexity, the reasons for the delay, and the prejudice caused. The relevant extract is reproduced hereunder:
“19.It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.”
Applying the aforesaid principle to the facts of the present case, the record shows that the discrepancy relating to the account of Sh. Harish Kumar Menghi came to light when the account was being reconciled in the year 1996. The statement of Sh. Menghi was recorded on 10.12.1996 and the matter was investigated by Sh. S. L. Prasad, who was examined as MW2, in December 1996. The Management thereafter relied upon the relevant banking records and also obtained an opinion from a handwriting expert, namely Sh. A. K. Gupta. The said expert, opined that the signatures of the petitioner tally with the questioned documents. The charge-sheet was issued thereafter on 08.09.1998. Thus, though there was undoubtedly a substantial interval between the transaction in question and the issuance of the charge-sheet, the record does not support the contention that the Management remained wholly inactive throughout this period.
The petitioner has next contended that the charge-sheet was not accompanied by a separate statement of allegations or statement of imputation, list of witnesses, or list of documents. There can be no quarrel with the proposition that a delinquent employee must know with reasonable clarity the case which he is required to meet. In the present case, however, the charge-sheet itself set out the transaction, the dates, the two amounts, the account numbers, the alleged issuance of the counterfoils, the failure to account for or remit the amounts and the alleged fictitious entries in the ledger and passbooks. The petitioner was, therefore, not confronted with an allegation which was wholly vague or incapable of being understood.
The more significant aspect of the matter is that the original departmental inquiry did not form the sole basis for the impugned award. Vide order dated 29.02.2012, the Tribunal found the domestic inquiry to be unfair and against the principles of natural justice. It was noticed that the Enquiry Officer had sought advice from the Disciplinary Authority, which, according to the Tribunal, showed that he had acted under the dictates of his superiors. The issue relating to the fairness of the inquiry was consequently decided in favour of the petitioner. The Management, however, had specifically prayed that it be allowed to prove the misconduct of the petitioner on merits in the event the inquiry was held to be vitiated. The Tribunal thereafter permitted the Management to lead evidence afresh.
The Management examined Sh. S.L. Prasad (as MW2), Sh. A.K. Gupta, Director, Truth Lab (as MW3) and Sh. Harish Kumar Menghi (as MW4). The petitioner also entered the witness box and examined himself as WW1. The case, therefore, was adjudicated by the Tribunal on the evidence led before it and not merely on the basis of the findings recorded in the departmental inquiry. This distinction is, in the opinion of this Court, significant, while considering the petitioner’s contention that the subsequent proceedings were merely an attempt to cure defects in the original inquiry.
Coming next to the controversy surrounding Sh. Harish Kumar Menghi, he had handed over Rs.5,300/- to the petitioner for credit to the former account and Rs.100/- for credit to the latter account. The petitioner allegedly issued counterfoils for the said amounts, entered the transactions in the passbook, but did not deposit the amounts at the Extension Counter. The Management further alleged that a “fictitious entry” of Rs.5,300/- was subsequently made in the ledger of SB Account No.690 as “By cash”. The Tribunal’s order dated 16.05.2013 records that Sh. Menghi could not earlier be examined as his whereabouts were not known to the Management and also noticed that he was the “star witness” in the controversy and that his testimony could assist in arriving at a just decision. It was in these circumstances that the Management’s application to examine him as an additional witness was allowed.
In his cross-examination, Sh. Menghi (examined as MW4) stated that he had gone to the bank to deposit money and had handed over the cash to the petitioner in the bank premises, probably at the petitioner’s seat. He further stated that he was subsequently informed by the bank officials that Rs.5,300/- had not been deposited in his account and that he should produce the receipt. In relation to the other account, he stated that the entry pertaining to Rs.100/- was not reflected and that he had to redeposit the said amount. This evidence, therefore, cannot be treated as wholly exculpatory merely because, after the passage of about two decades, he did not recollect the transaction when examined in 2013. The Tribunal was consequently required to, and did, consider his testimony along with the contemporaneous documentary material and the evidence of the other Management witnesses.
The petitioner has emphasised that there was no written complaint from Sh. Menghi and that the Management itself had not suffered any loss. The misconduct alleged against the petitioner was not dependent upon the existence of a formal complaint from the customer or upon proof of a net financial loss to the Management. The charge concerned receipt of customer money, failure to account for the same, and making of corresponding entries in the bank’s records. The submission that there was no separate charge of “misappropriation”, “cheating” or “forgery” though may merit consideration, however, more pertinently, the formal charge against the petitioner was of “doing acts prejudicial to the interest of the bank” under Clause 19.5(j) of the Bipartite Settlement. The charge-sheet alleged that the amounts had been received by him, that the same were not accounted for or remitted to the Bank, and that fictitious entries had thereafter been made in the relevant records. The Tribunal’s subsequent description of this conduct as involving misappropriation, cheating, and forgery was its characterisation of the conduct found proved from the evidence and it was not necessary for the Management to separately reproduce each such expression as an independent charge when the underlying acts themselves had been specifically put to the petitioner.
It is undeniable that the passage of time may have had an effect on the recollection of Sh. Menghi. His statement in 2013 that he did not remember the transaction cannot be ignored and equally, however, the case cannot be decided by isolating that answer from the rest of his testimony and the documentary evidence. The counterfoils, the absence of the corresponding cash entry, the ledger entry, the evidence of MW2 and the handwriting expert were all matters which the Tribunal rightly considered together. The petitioner has not been able to demonstrate that the Tribunal relied upon evidence which had no connection with the charge or that its conclusion was one which no reasonable adjudicating authority could have arrived at.
Lastly, the scope of interference under Articles 226 and 227 of the Constitution of India is well settled. This Court is not called upon to substitute its own appreciation of the evidence for that of the Tribunal merely because a different inference may be possible. Unless the finding is shown to be perverse, based on no evidence, or vitiated by a material error of law or procedure, interference would not be warranted. (Ref: “Syed Yakoob v. K.S. Radhakrishnan”4).
The Tribunal’s conclusion cannot be characterised as one based on no evidence. The Disciplinary Authority, after considering the material, recorded that the allegations stood conclusively proved and that the misconduct was prejudicial to the interest of the Bank. The Authority further took into account the requirement of honesty and integrity in a financial institution dealing with public money and recorded loss of confidence in the petitioner. The Tribunal, upon independently considering the evidence led before it, upheld the punishment of dismissal. The punishment of dismissal, in these circumstances, cannot be said to be so disproportionate to the misconduct proved as to warrant interference in writ jurisdiction.
Accordingly, no ground for interference is made out. The impugned award is upheld and the present petition is dismissed.