STATE BANK OF SAURASHTRA THROUGH MANAGING DIRECTOR & 2 Other(S) vs RASHMIKANT GIRDHARLAL DAVE & 1 Other(S)

Judgement and order dated 10.06.2011 rendered in Reference CGITA No. 636 of 2004 renumbered from Reference (ITC) No. 50 of 1995 by Central Government Industrial Tribunal cum Labour Court, Ahmedabad is sought to be assailed by the employer in Special Civil Application No. 14601 of 2011 and by the workman in Special Civil Application No. 6960 of 2012 to an extent of denial of certain benefits after modifying the punishment imposed upon the workman under Section 11A of the Industrial Disputes Act, 1947 ( for short 'I.D.Act').

The facts of the case are in narrow compass:

The workman was a Head Cashier in State Bank of Saurashtra, Amreli, Agriculture Development Branch during the incident in question which took place on 30.10.1986. The workman was found to have temporarily misappropriated the cash of Rs. 35,000/­ upto 12.30 hours of 04.11.1986 from 30.10.1986. The misappropriation was detected during the verification made by Verifying Officer Mr. K. B. Mehta on 04.11.1986 before 12.30 hours.

On the above charge, the workman was suspended on 11.11.1986; however it came to be revoked under the orders from Head Office on 02.03.1987.

It would be appropriate to note at this stage certain admitted facts being [1] that the workman was a Head Cashier and was also discharging his duties as Clerk receiving the cash; [2] there was strong room to be operated with the key in possession of Head Cashier and joint custodian; [3] within the strong room there was safe, which also could be operated with two keys one with the Head Cashier and the other with the joint custodian; [4] within the safe, the cash box used by the cash receiving Clerk to be operated only with a single key with the Head Cashier, would be placed; [5] that 30.10.1986 was last working day before Diwali Holidays and the Bank reopened on 04.11.1986; [6] that Mr. K. B. Mehta Verifying Officer visited the bank for cash verification on 04.11.1986; [7] that cash verification took place in presence of the workman ; [8] that the delinquent was in charge of the duties as Head Cashier upto 11.11.1986; [9] that the proprietary concerning Investwell is owned by one Ila Dave who is wife of the delinquent employee; that from that account a sum of Rs. 35000/­ on 04.11.1986 was withdrawn; [10] that for the purpose of withdrawal, one of the signature overleaf the withdrawing cheque is that of the delinquent; [11] that Mr.B.M. Vyas was the employee of Investwell and overleaf the withdrawing cheque, he had also signed and received the cash of Rs.35000/­ from the main branch of State Bank of Saurashtra;

[12] before withdrawal of Rs. 35000/­ on 04.11.1986 by cheque from Investwell, a cash in the sum of Rs. 35000/­ was deposited in its account on the very date and the balance before such deposit in the said account was Rs. 1549.40; [13] the Verifying Officer Mr. K. B. Mehta had no enmity with the workman and he had never seen the delinquent before the incident in question.

The disputed facts are [1] that there was no shortfall of cash on verification on 30.10.1986; [2] Mr. J.M. Lakhani the joint custodian physically counted the cash on 30.10.1986 ; [3] that an attempt was made by delinquent employee urging the Verifying Officer to adjust the shortfall against the cheque received late i.e beyond the office hours of 30.10.1986; [4] that cash in the sum of Rs. 35000/­ was deposited before 12.30 hours by delinquent; [5] that the endorsement as to shortfall of Rs. 35,000/­ was put in the C­2 register on 04.11.1986; [6] that the shortfall of the cash in the sum of Rs. 35000/­ found by Mr. K.B. Mehta on 04.11.1986 was noted in C­2 register on the same day but the delinquent refused to acknowledge the same; [7] that the delinquent had acknowledged the shortfall of Rs. 35000/­ in presence of Mr.Lakhani by subscribing to the endorsement in C­2 register, to that effect on 04.11.1986.

The Tribunal rested its finding on the aforementioned admitted facts, the testimony of Mr. K. B. Mehta and Mr. JM Lakhani as also that of the delinquent and the documentary evidence on record. The case of the employer Bank was that arithmetic entry in the relevant C­2 register indicated the cash in the sum of Rs. 1,30,653.22 whereas infact the amount was short by Rs. 35000/­. Thus except the physical removal of cash from the cash box or retention of the said amount by the responsible person, there would be no documentary evidence evidencing the outgoing of the cash from the cash box and the only piece of evidence to be principally relied upon in such circumstances would be the oral statement in evidence.

The document namely the relevant extract of C­2 register came to be relied upon by both the parties; the workman contended that the said document was concocted later on i.e. after 07.11.1986 or 08.11.1986. According to him, he obtained the extract of relevant C­2 register produced by him at Exh. 95 wherein no endorsement acknowledging the shortfall as claimed by Mr. K. B. Mehta and Mr. J. M. Lakhani was ever made on 04.11.1986; on the other hand reliance was placed on Exh. 34 by the employer to contend that such endorsement was made but the delinquent refused to countersign it.

It appears that while examination­in­chief of two management witnesses (supra) was extensively considered, when it came to cross­ examination, it was observed by the Tribunal that "both the management witness were cross­examined at length on behalf of the second party workman, but nothing could have been gained to discredit their testimony" in the impugned award.

In the light of the rival submissions, it needs to be examined whether the relevant materials on record were considered. Three witnesses were examined during the proceedings, two by the management Mr. K.B. Mehta Verifying officer and Mr. JM Lakhani and one by the delinquent as also the delinquent himself. In their respective cross­examination crucial facts bearing on the outgoing and incoming of the cash and other facts relevant connected there with were revealed by the two departmental witnesses. The Tribunal has rejected the facts in the cross­examination of the two witnesses only in one line quoted above. In absence of considering the relevant facts touching the base of controversy, it cannot be said that relevant material was considered for reaching the conclusion as above by the Tribunal. The impugned judgement and award therefore cannot be sustained. It is required to be quashed and set aside and Reference CGITA No. 636 of 2004 renumbered from Reference (ITC) No. 50 of 1995 is required to be restored on the file of the Tribunal for re­ appreciation of the evidence including the cross­examination of the witnesses and for deciding the matter afresh. Accordingly impugned judgement and award is quashed and set aside and the matter shall stand restored to the file of the Central Government Industrial Tribunal for its reconsideration as above. It is clarified that no fresh evidence would be recorded.

Needless to say that the Tribunal will decide the case on merits without being influenced by any of the observations made by this Court.

In above terms petitions are disposed of.

Endevour shall be made by the Tribunal to decide the matter within four months from the date of receipt of writ of this court.