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Judgment
S.K. Dubey, J.
The petitioner/Bank by this petition under article 226/227 of the Constitution of India has prayed for quashment of the award (Annexure (i) dated 29th July. 1986. passed in ease No. CCIT/LC (R) (38) of 1986 by the Central Government Industrual Tribunal-cum-Labour Court, Jabalpur for short hereinafter call ''the Tribunal directing reinstatement or respondent no 2. back wages and substituting the punishment of the discharge from service vide order dated 15/4/1983 (Annexure E). being too harsh to the punishment of slopping of two increments with cumulative effect.
The facts giving rise to this petition are these. Respondent No. 2 (hereinafter referred to as ''the workman'') was appointed in the bank service on 1.6. 1974 as Cashier-cum-Clerk at the Hamidia Branch of the Bank since 1981. A departmental enquiry was initialed on the charge sheet dated 10.7.1982 (Annexure A) on the following charges :
(a) That you have made in your own hand and authenticated the under noted spurious entries in live Pass Book No. 3589 of Saving Bank Account No. 4000 of Shri Dharam Veer Prasad Bhatnagar. -
Dale
Particulars
Amount Withdrawn
Amount Deposited
Balance
1981
Oct. 01
By Cash
4000/-
4056-05
Oct. 31
To Cash W/F
2500/-
1550-05
Nov. 17
To Cash W/F
200/-
1356-05
1982
Feb. 16
To Cash W/F
1000/-
356-05
Feb. 24
By Cash
2000/-
2356-05
Mar. 04
To Cash W/F
500/-
1856-05
Mar. 06
To Cash W/F
600/-
1256-05
Mar. 19
To Cash W/F
100/-
1156-05
Mar. 27
To Cash W/F
50/-
1106-05
(b) You have authenticated without due authority the under-noted balance in the above-mentioned Pass Book.
Date
Balance (G)
1981
July 27
11-34
August 01
51-34
September 30
56-05
The act of the workman amounted to a majour mis-conduct in terms of Paragraph 521. Clause (4) and sub-clause (J) of Shastri Award which reads thus:
(4) By the expression "gross misconduct" shall be meant any of the following acts and omissions on the part of an employee :
(a) - (i) xxx
(j) doing any act prejudicial of the interests of the bank, or cross negligence or negligence involving or likely to involve that bank on serious loss:
The workman submitted his reply staling that he did make the entries hut the entries were made without any ulterior motive in a pass hook of which he was under the belief that it is unused and of a closed account to demonstrate a person how the entries are made in a pass hook. The entries had no relevance to the entries of the account maintained in the Branch. By making such entries, which, according to the Bank are spurious, the workman has not received any financial gain as the Pass Book was unused and of a closed account and. therefore, there was no occassion to make the entries of the pass hook in the ledger. He acted in good faith without any intention to cause any loss to the Bank or to am of the Account Holder. The Bank being not satisfied held a depart menial enquiry. The Enquiry officer submitted his report (Annexure C) dated 4.2.1983 and gave its finding -
Charge No. 1
(a) Shri K. K. Bhatnagar the employee made and authenticated in his own hand the entries mentioned in the charge sheet, in the S. B. Pass book no 3589 of S. B. account No. 4000 of Shri D. P. Bhatnagar.
(b) The Bank however was not put to any financial loss as a result of the Employee''s act.
(c) The Presenting Officer''s case that the Employee made these entries in the pass book with ulterior motives has not been established. He proceeded against the Employee without making it apart of the charge sheet.
(d) The Presenting Officer did not bring any material/evidence/argument to indicate that the bank was likely to suffer financial loss as a result of the Employee''s act.
Charge No. 2
(a) The Employee unauthorisedly authenticated the balance mentioned in charge no. 2 of the charge sheet in the S. B. Pass Book no. 3589 of the account of Shri D. P. Bhatangar.
(b) The Bank was not put to any financial loss as a result of the Employee''s act.
(c) The Presenting Officer''s case that the Employee authenticated the balances in the S. B. pass book with ulterior motive has not been established. He proceeded agasint the employee without making it a part of the charge sheet.
(d) The Presenting Officer did not bring any material/evidence/argument to indicate that the Bank was likely to suffer financial loss as a result of the Employee''s act.
However the Disciplinary Authority did not agree with the findings recorded by the Enquiry Officer and recorded its own conclusions and issued a show cause notice dated 17.2.1983 (Annexure D.). holding that when the workman has admitted of having made the entries in the pass book when the balance was only Rs 56-05. The pass book showed deposit on October 1 of Rs 4000/- and then several entries of deposits and withdrawals. The entries made in the pass book were detected only when the account-holder approached the Bank for the last withdrawal of Ks. 56.05. The Disciplinary Authority also observed that there is no material to indicate that the said pass book was a lost pass book. Therefore. it was of the view that the credit and dabit entries which are spurious showing deposits a different picture of the account knowing fully well the consequences of that. The said act is a gross act of misconduct deserving severe penalty. After reply to show cause notice the Disciplinary Authority passed the order of discharge dated 15.4.1983 (Annexure E). The workman preferred a departmental appeal which was dismissed. Thereafter, the workman raised an industrial dispute. The appropriate Government referred the dispute for adjudication of the Tribunal. The Tribunal after perusing the pleadings of the parties framed the following preliminary issues -
(i) Whether the enquiry held by the Enquiry Officer is proper and legal?
(ii) if so. whether the punishment awarded to the workman is commensurate with the misconduct. if any ?
(iii) Relief and costs ?
After hearing the parties and on perusing the pleadings of the parties and the material adduced, the Tribunal decided issue no. 1 in favour of the Bank holding the enquiry as legal and proper. While deciding issue no. (ii) relating to punishment, the Tribunal affirmed the findings of the Enquiry Officer and recorded a finding that the workman had admitted that he made the entires in good faith without any intent ion to cause damage or loss to any body. The charge levelled against the workman does not say that the act was done to the prejudice of the Bank or it was his gross negligence involving or likely to involve the Bank in severe loss." It also does not say that he had done so with an ulterior motive. In paragraph 11. the Tribunal observed that in the pass book only two entries of amount deposited were made while number of entries of withdrawal were made and a balance of petty amount of Rs. 1106-05 was shown. If the entries were made with a malafide intention by the workman, some huge amount of deposits and balance could have been entered and since he was a Cashier he could have manipulated the entries in the ledger as well, in order to cause loss to the Bank:
but that was not done A bank employee of long standing will not take the risk for a petty amount of Rs. 1106-05. Merely because in the opinion of the Disciplinary Authority and the Appellate Authority the pass book was not of a closed account as it had no such entry: but the defence to that is of lost one. Therefore, there was no entry of closure of account on it. The Tribunal also criticised the manner of approach in which the finding was recorded by the Disciplinary Authority and the Appellate Authority in the absence of the Evidence. Therefore, looking to the excellent previous record of the workman to which contrary is not proved. the punishment of discharge from service awared by the Disciplinary Authority was held to be 100 excessive and harsh not commensurating with the act of workman and in exercise of powers u/s 11-A of the Industrial Disputes Act. 1947 (For short the Act"), the Tribunal altered the punishment of discharge from service to that of stoppage of two increments with cumulative effect and directed reinstatement with back wages.
Shri V. S. Shrouti. learned counsel for the petitioner Bank placing reliance on the decisions in the The East India Hotels Vs. Their Workmen and Others, ; J.D. Jain Vs. Management of State Bank of India and another, and Workmen Vs. Bharat Fritz Werner (P) Ltd. and Another, . contended that when enquiry on a charge of gorss misconduct an order of dismissal or discharge from service is passed and the enquiry is found to be legal and proper in conformity with the principles of natural justice, no interference in the matter of the punishment can be made in exercise of the powers u/s 11-A of the Act, particularly when the making of entries in the pass book is admitted, entries so prejudicial to the interest of the Bank as the petitioner was operating the account of the account holder independently, by keeping Rs. 4000/- in his pocket and when the account holder used to come he used to make the entry of deposit and credit in the pass book without making the entry in the ledger. The workman was holding the post of trust and confidence being a Cashier the order of discharge could not have been interfered with; reinstatement was not expedient, and conclusive of the business and interference with punishment is on extraneous considerations.
Shri Ravindra Shrivastava. learned counsel for the workman supported the award of the Tribunal and contended that section 11-A of the Act gives wide powers to a Tribunal even in a case where the enquiry on a charge of misconduct is found to be legal and proper, to interfere with the punishment, if it is too harsh and not commensurating with the act committal referable to unfair labour practice of victimization. In the present case the Enquiry Officer has not found motive in making spurious entries. Disciplinary Authority recorded its finding contrary of the evidence on record for which there was no evidence. The Tribunal appreciated the two findings and with its added reasons interfered with the punishment awarded by the Disciplinary Authority, as while awarding punishment the Disciplinary Authority did not consider the aggravating or externuating circumstances which is a mandatory duty under paragraph 521 (10) (c) of the Shastri Award. Therefore, also the award of the Tribunal does not call for any interference, in writ jurisdiction of this Court. Learned counsel placed reliance on the decision of the Supreme Court in Jitendra Singh Rathor Vs. Shri Baidyanath Ayurved Bhawan Ltd. and Another, and Management of Hindustan Machine Tools Ltd., Bangalore Vs. Mohd. Usman and Another, , It was also submitted that it this Court is of the opinion that the punishment awarded by the Tribunal looking to the circumstances of the case is inadequate, the back wages from the date of termination till the date of the award be not awarded and punishment of stopage of two increments with cumulative effect be maintained; the matter be not sent back to the Tribunal to have another round of litigation as the workman, who had an unblamished and appreciable record of his service has not gained anything out of the act which he has committed. He is out of employment since the dale of his discharge.
I have carefully considered the contentions raised by the counsel for the parties and perused the record of the case, "rue, the act of the workman cannot be appreciated; even in a lost and unused pass book the spurious entires ought not to have been made as the workman was not a Trainee and was a responsible officer holding a post of Cashier which is a post of trust and confidence. In such cases where misconduct is found proved or even not proved, a Labour Court or a Tribunal should not mechanically direct reinstatement, while interfering with the punishment should consider whether it would be expedient or not. '' "Reinstatement has not been considered as either disirable or expedient in case like cases where there has been strained relationship between the employer and the employee, when the post held by the employee was of trust and confidence or when the dismissal or disharge was unsustainable of infirmity in the impugned order; the employee was found to have been guilty of an activity subversive of prejudicial to the interest of the Industry or like such cases".
See - Workman of Bharat Frit/ Warner (P) Ltd. v. Bharat Fritz Warner (P) Ltd. (Supra).
In the present case-, the Enquiry Officer has found that there was no ulterior motive of the workman in making the spurious entries in the lost pass book, therefore, exonerated the workman of the charges but on that the Disciplinary Authority recorded a contrary finding. Ordinarily the findings of the Disciplinary Authority does not call for interference unless the findings are perverse and the order of punishment is passed with vindictive approach for the purpose of victimization. However, the Disciplinary Authority, beofre awarding the punishment has overlooked the mandatory provision of sub-clause (c) of clause (10) of paragraph 521 of the Shastri Award which reads thus-
(521) - (d) xxx
(c) In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, (he previous record, it any. of the employee and any other aggravating or extenuating circumstances that may exist. Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of the ''"gross" type he may be merely discharged, with or without notice or on payment of a month''s pay and allowance, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. Discharge in such cases shall not be deemed to amount to disciplinary action.
From the order of discharge it is not reflected that the Disciplinary Authority before awarding the punishment been taken into account the gravity of the misconduct, previous record. if any of the employee and any other aggravating or extenuating circumstances, if such circumstances exists, the mis-conduct/may be condoned. True that the act of workman was an act or conduct which was incompatible vis a vis the establishment and the employer but the Disciplinary Authority without considering the extenuating circumstances and previous unblamish record of the service of the workman, when admittedly what to say of serioud loss, no loss was caused to the Bank.
Section 11-A of the Act. invests the Tribunal vide discretion in the matter of awarding relief and to substitute its measure of punishment in place; the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the cases. The High Court under article 227 of the Constitution does not enjoy such power though as a superior Court,. it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinize the orders of the subordinate tribunals within the well accepted limitations and. therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, it any. However, the High Court is not entitled to exercise the power of the Tribunal and substitute an award in place of one made by the Tribunal as in the case of an appeal where it lies to it. See-Jitendra Singh Rathore v. Shri Baidyanath Ayurved Bhawan Ltd. and another (supra).
However, the Supreme Court in case of Workman of Bharat Fritz Warner (P) Ltd. v. Bharat Fritz. Warner (P) Ltd. (supra) has observed that the High Court may decide the entire matter without remitting the case to the Tribunal and grant porper relief finally in accordance with law. However in accordance with Section 11-A of the Act which empowers the Industrial Tribunal to go into the question whether the order of discharge or dismissal from service passed against the workman is justified or not and permits the Tribunal to set aside the order of discharge or dismissal as circumstances of the case may require, it was open to the High Court to consider what would be the adequate punishment for the misconduct found against the workman and take the view that the act of misconduct found proved against the workman were not such as to warrant dismissal or discharge from service or not or any other adequate punishment.
In a recent dicision of the Supreme Court in State Bank of India and Others Vs. Samarendra Kishore Endow and Another, . the Supreme Court has observed that imposition of adequate punishment is within the discretion of Disciplinary Authority, it may be open to the Disciplinary Authority but not to the High Court or the Administrative Tribunal for (he reason that the jurisdiction of the Tribunal is a similar to the power of the High Court under article 226 of the Constitution. The power under article 226 of the Constitution is one of judicial review. It is not an appeal from the decision but a review of the manner in which the decision was made. The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment reaches on a matter which it is authorised by law to decide for itsell. a conclusion which is correct in the eyes of the Court. The Supreme Court in the facts of the case where a Bank employee falsely claimed travelling expenses on transfer and for releasing construction loan of Rs.1.00, 000. 00 without verifying progress of construction, finding that there was no loss caused to the Bank, held the punishment of removal as too harsh and remitted the case to Disciplinary Authority to consider whether lesser punishment is not called for in the circumstances.
But the present case is not of an employee directly reaching to High Court in writ jurisdiction but of that, an award passed an industrial dispute so raised, where the Tribunal has exercised its wide powers u/s 11-A of the Act; therefore, the question of sending the case to Bank does not arise. Hence in the absence of legal principle I am not inclined to re-examine the question of adequacy of inadequacy of punishment, even though a different conclusion in the matter or punishment with that awarded by the Tribunal can be reached looking to the nature of employment and post held by the workman. However, looking to the facts and circumstances that the act of the Bank cannot be said to he maldfide. I am of the view that the award of the back wages from the date of discharge till the date of award was not proper. For that I had my mind to remit the case but as the learned counsel for the petitioner, to put a final curtain to an industrial strife has offered that back wages for that period be also not awarded so as to avoid another inning of the litigation. Hence, while maintaining the award of the Tribunal. I direct that the respondent no. 2 will also not be entitled to back wages from the date of the order of discharge till the date of the award of the Tribunal.
In the result, the petition stands partially allowed in the manner stated above, with no order as to costs. Outstanding amount of security, if any. shall be refunded to the petitioner.