Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9564 OF 2012
Bank of Baroda ….Petitioner
:
Devshi Valji Kundadia ….Respondent
Sanghvi i/by. M/s. Sanjay Udeshi & Co. for the Petitioner.
Respondent- Mr. Devshi Valji Kundhadia, present in person.
ORAL JUDGMENT
1) Petitioner-Bank has filed the present petition challenging Part-II and Final Awards passed by the Central Government Industrial Tribunal, Mumbai (CGIT). By Part-II Award dated 28 May 1997, the CGIT held that the findings recorded by the enquiry officer were perverse. By Final Award dated 24 April 2012, the CGIT has set aside the order of dismissal from service dated 15 February 1993 and has directed reinstatement of the Respondent with 60% backwages.
2) Briefly stated, facts of the case are that Petitioner was formerly Dena Bank, a statutory corporation constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act VI Page No. 1 of 22_ __ of 1970. Dena bank has merged with Bank of Baroda. Respondent was impleaded as Typist-cum-Clerk and was posted at Dongri Branch of Dena Bank at the relevant time. It appears that on 14 September 1991, Respondent was asked to perform duties of Cashier on account of nonavailability of regular Cashier. It appears that shortage of cash of Rs.10,000/- was detected with the Respondent on 14 September 1991. He was apparently transferred from Dongri Branch to City Regional Office. In order not to have any blot on him, Respondent made good the shortage on his personal account.
3) Show cause notice dated 4 November 1991 was issued to Respondent alleging that he misappropriated Rs. 10,000/- out of Rs. 50,000/- received from the account holder M/s. S.M. Jewellers by deliberately indicating erroneous figures of denomination on the reverse of the pay-in-slip. It was alleged that the Petitioner deliberately mentioned the cash particulars as Rs. 50 x 200 = 10,000 instead of Rs. 20,000. It was further alleged in the show cause notice that Shri. S.T. Suryawanshi, Clerk had reported late for duties and was advised by the Branch Manager not to sign the muster and to go home. That Respondent allowed Shri. S.T. Suryawanshi to sit with him in his cabin and handed over a cover/envelope containing two bundles of Rs. 50/- Notes totaling Rs.10,000/- to Shri. Suryawnashi and with instructions to deliver the same at his residence. This is how the charge of misappropriation of Bank’s money, commission of fraud on Bank and doing of act prejudicial to the interest of the Bank were leveled against the Respondent in the show cause notice dated 4 November 1991. Respondent refuted the charges by filing reply dated 7 December 1991, inter-alia, contending that he had already made good the shortage of Rs.10,000/- and that as per the Manual, in case of shortages, if the concerned employee makes good the shortage, no further action is to be taken against him. He denied having handed over any monies to Shri. Page No. 2 of 22_ __ Suryawanshi. He also cried victimisation on account of his trade union activities.
4) It appears that enquiry was conducted by treating the showcause notice dated 4 November 1991 as chargesheet. In the enquiry, Mr. Suryawanshi was examined, who deposed that Petitioner handed to him 2 bundles of Rs. 50 each totaling Rs.10,000/-, which he attempted to deliver at this residence on 14 September 1991 but could not find Respondent’s wife. That he got suspicious and approached the house of the Respondent again on 15 September 1991 in presence of three witnesses and in their presence, the bag containing two bundles of Rs.50/- was opened and handed over to the Respondent. The witness was cross-examined by the Respondent. The Enquiry Officer submitted his report holding the charges levelled against the Respondent to be proved. Respondent responded to the Report of the Enquiry Officer on 8 October 1992. The Petitioner-Bank thereafter proceeded to issue order dated 15 February 1993 imposing the punishment of dismissal from service on Respondent with immediate effect. He preferred Appeal dated 16 March 1993 before the Appellate Authority which was turned down on 10 August 1993. In the above background, Respondent raised demand for Reference through the Union and at his instance the Reference came to be made to the CGIT and registered as Reference (CGIT) No.1/12 of 1995, in following terms: Whether action of the Management of Dena Bank, Bombay is dismissing Shri. D.V. Kundhadia, Typist-cum-Clerk from service w.e.f. 15.2.83 is legal and justified? If not, what relief is the said workman entitled to?
5) CGIT first took up the preliminary issue of fairness in the enquiry and delivered Part-I Award dated 26 December 1996 holding that the enquiry held against the Respondent was legal, fair and proper. Page No. 3 of 22_ __ The proceedings were thereafter adjourned for considering the aspect of perversity in the findings of the Enquiry Officer. CGIT thereafter delivered Part-II Award dated 28 May 1997 and holding that the findings of the Enquiry Officer were perverse. The Management was granted opportunity to justify its action by leading evidence.
6) Petitioner-Bank challenged Part-II Award dated 28 May 1997 on the issue of perversity before this Court by filing Writ Petition No. 4631/1997, which came to be dismissed by detailed judgment and order dated 23 April 2009. Letters Patent Appeal NO. 266/2009 preferred by the Petitioner-Bank was dismissed by the Division Bench by order dated 22 January 2010. Petitioners carried the matter further before the Apex Court by filing Special Leave Petition
(Civil) No. 17542/2010, which came to be dismissed by order dated
16 July 2010. The Apex Court however clarified that if the Final Award went against the Petitioner-Bank, it was open to it to also challenge the interim Award dated 28 May 1997, if otherwise permissible.
7) It appears that by the time the Special Leave Petition of the Petitioner-Bank was dismissed on 16 July 2010, the Petitioner-Bank was not in a position to lead evidence by examining witnesses before the CGIT to justify its action. Respondent filed his affidavit of evidence and was cross-examined by the Management. In absence of any evidence being produced by the Petitioner-Bank, the CGIT made final award dated 4 May 2010 holding the dismissal order dated 15 February 1993 to be illegal and unjustified and directed reinstatement of the Respondent with 60% backwages.
8) Petitioner-Bank has filed the present petition challenging the final Award dated 24 April 2012. It has also included challenge to Part-II Award on the issue of perversity dated 28 May 1997. By order Page No. 4 of 22_ __ dated 14 January 2013, this Court admitted the petition and stayed execution of the final Award. The petition is called out for final hearing.
9) I have heard Mr. Talsania, the learned senior advocate appearing for the Petitioner-Bank. He would submit that the CGIT has erred in holding that the findings of the Enquiry Officer ware perverse. He would submit that the Petitioner-Bank led evidence of direct eyewitness- Shri. S.T. Suryawnashi, who deposed about both the acts of the Petitioner handing him over envelope containing two bundles of Rs.50/- notes, as well as its delivery at the residence of the Respondent. Mr. Talsania would accordingly submit that the charge of misappropriation is thus proved beyond doubt on account of evidence of Shri. Suryawanshi. He would submit that in domestic enquiry, proof beyond reasonable doubt is not required and the test is mere preponderance of probabilities. So long as there is some evidence on record, it is not for the Tribunal to interfere in the finding of guilt. In support, he would rely upon judgment of the Apex Court in State of Haryana and Anr. Versus. Rattan Singh[1].
10) Mr. Talsania would further submit that there was absolutely no reason for the Tribunal to hold that the deposition of Shri. Suryawanshi did not inspire confidence. That there is no factor is proved by the Respondent for Shri. Suryawanshi to depose against him. There is no suggestion of any animosity of Shri. Suryawanshi towards him. There is nothing on record to indicate that the Bank had any adverse interest against the Respondent to implicate him in a false case. He would therefore submit that evidence of Shri. Suryawanshi was sufficient to bring home the charges of misappropriation, fraud and dereliction of duties. That Part-II Award dated 28 May 1997 is thus perverse and liable to be set aside. That the Supreme Court has
Page No. 5 of 22_ __ permitted Petitioner to raise challenge to the Part-II Award dated 18 May 1997. Without prejudice, the Final Award is delivered ignoring the evidence in the inquiry as that evidence can still be relied on as the inquiry is held to be fair and proper. That serious charge of misappropriation is provided and CGIT has erred in directing Respondent’s reinstatement. He would therefore pray for setting aside the impugned award of the CGIT.
11) The petition is opposed by the Respondent appearing in person. He would submit that he has not committed any misappropriation and is innocent. He would submit that this Court has already considered in detail absence of evidence in the Departmental Enquiry in its judgment dated 23 April 2009 and has held him to be innocent. He would rely upon Manual of Instructions issued by the Dena Bank in support of his contention that mere detection of shortage from a Cashier is not a ground for initiation of departmental enquiry as shortage of cash can be made good. That despite not being at fault, he has paid the shortage amount of Rs. 10,000/- to the Bank to avoid any blemish on him. That the General Manager of the Bank had revoked his dismissal order in the year 2007 and had instructed the Personnel Department to reinstate him as Scale-IV Officer. He would submit that he has attained the age of superannuation in the year 2017 and is without any pension. That at the time of merger of Dena Bank with Bank of Baroda, provision has been made for his arrears and pensionary benefits. He would accordingly pray for dismissal of the petition.
12) Rival contentions of the parties now fall for my consideration. Page No. 6 of 22_ __ 13) Petitioner faced serious charge of misappropriation of amount of Rs.10,000/- while being asked to work as Cashier on 14 September 1991 in absence of the regular Cashier. Otherwise, it appears that the designation of Respondent was a mere Clerk. Initially, it appears that the case was treated as a mere shortage in cash and after the shortage was reported by the Respondent to the Branch Manager, the Manager was investigating the exact person responsible for the shortage. This is clear from the letter dated 16 September 1991 of Mr. Kuwadia, Bank Manager in which he apparently doubted the employee of account holder-M/s. S.M. Jewellers for deliberately depositing Rs.10,000/- short. The CGIT has culled out Bank Manager’s letter dated 16 September 1991 in its Part-II Award and it would be apposite to reproduce the same here again: Our receiving cashier Mr. Sawant was on sanctioned privilege leave on 14.9.91. In lieu of Mr. Sawant, Mr. D.V. Kundhadia (clerk) was asked to work as Receiving Cashier and he had willingly accepted the work as usual. In past also he has worked in cash, while our regular cashier proceeded on leave. On that day being Saturday half day cash counter was very busy and there was long queue for depositing the money. Afterwards, while balancing receipt cashier's cash (Mr. D.V.Kundhadia), it was found short of Rs. 10,000/- (Rupees ten thousand only) by Kundhadia. Finding short of Rs. 10,000/- our officers started checking of all pay in slips particulars mean time we found that S.M. Jewellers had written. 2 bundles of Rs.50/denomination and total was mentioned Rs. 20,000/- of two bundles which is wrong. The grand total was Rs.50,000/- (total was correctly written) we immediately called the owner of S.M.Jewellers and explained him everything but he has not accepted that he had paid 2 bundles less of Rs.50/- denomination. He accepted writing mistake of his clerk while paying cash. We are doubting on S.M.Jewellers clerk who has paid Rs. 10,000/- (ten thousand only) less purposely on cash counter seeing rush on cash receipt counter. When undersigned had called clerk of M/s. S.M. Jewellers had cross examined him he replied that he had paid 2 new bundles and 2 old bundles Page No. 7 of 22_ __ of Rs.50/- denomination. The reply was quite wrong as there was no new bundles were found in receipt of Rs.50/- denomination. When we told M/s. S.M. Jewellers that we will lodge police complaint for finding out true culprits. Hearing this he had told that they will also lodge complaint against cashier. At present we have debited out suspense payment account to tally cash. This is for your information and advise whether we required to lodge police complaint or not.” (emphasis added)
14) Thus as on 16 September 1991, the Bank never really doubted any overt act on the part of the Respondent nor had a slightest clue that there could be misappropriation on his part. On the contrary, the Branch Manager possibly held the employee of the Account Holder, M/s. S.M. Jewellers responsible for shortage of deposit of Rs.10,000/-. It appears that the Bank Manager had summoned the concerned employee of the account holder and made enquiries with the same. The Branch Manager therefore suspected that M/s. S.M. Jewellers possibly did not hand over entire sum of Rs. 50,000/- on 14 September 1991 via pay-in-slip no.17.
15) It appears that the twist got added in the case when Shri. Suryawanshi appeared on the scene, albeit after delay of 13 days. Shri. Suryawanshi was posted in Dongri Branch and was late in reporting for duties on 14 September 1991. The Branch Manager did not permit him to sign the attendance muster and asked him to go home. According to Mr. Suryawanshi, he waited for having tea in the Tea Club of employees and approached Respondent, who was then the President of Employees Union and enquired whether he should go home as instructed by the Manager. According to Mr. Suryawanshi, Respondent promised to ensure his attendance and he sat with the Respondent in his cabin, when the Respondent handed over one envelope/cover and Page No. 8 of 22_ __ asked Shri. Suryawanshi to keep the same in his bag. Later, Respondent asked him to deliver the same at his home. According to Mr. Suryawanshi, he approached Respondent’s home on 14 September 1991, but did not find Respondent’s wife. That he got suspicious on the following day as to what the envelope may contain and accordingly gathered three witnesses and approached Respondent’s home on 15 September 1991 and delivered the same to Respondent by opening the same in presence of three witnesses by noticing that the same contained two bundles of Rs. 50 notes.
16) This statement was given by Mr. Suryawanshi on 28 September 1991, i.e. 13 days after the alleged delivery. It thus appears that the statement given by Mr. Suryawanshi on 28 September 1991 became the reason for initiation of disciplinary proceedings against him vide show-cause notice dated 4 September 1991. Mr. Suryawanshi became the star witness of the management in the domestic enquiry. Mr. Talsania also strongly relies upon deposition of Shri. Suryawanshi to bring home charges against the Respondent. It would therefore be apposite to reproduce the letter in Marathi as well as its English translation of the letter dated 28 September 1991 (not very happily translated) submitted by Shri. Suryawanshi as produced alongwith the petition, which reads thus: देना बँक डोंगरी शाखा मुंबई नं. ९ दिद. २८/९/९१ रिरजनल मैनेजर साहेब देना बँक सिसटी रिरजन मुंबई यांचे सेवेशी Page No. 9 of 22_ __ मी खालील सही करणार सूय%वंशी एस. हो. देना बँक डोंगरी दिवनंती अज% करिरतो की दिद. १४/९/९१ दिदवशी ऑफीसला २५ दिमनीने उशिशरा आलो. त्यामुळे मला आमच्या मॅनेजर साहेबानी कामावर घेतले नाही. आमचा 'टी' कल्ब आहे. घरी जाण्यापूव; चूहा दिपऊन जाऊ म्हणून मी चहासाठी थांबलो व ११.४५ ला चहा घेतले नंतर माश्या खात्याचा चेक देऊन ५०० रु. माझा पेमेंट सुमारे १२ वाजता घेतला. ते मला श्री. डी.व्ही. क ु दंडिडया रिरसीव्हींग क ॅ शमध्ये दिदसला. माझा प्रेसिसडेंट असल्यामुळे त्याला दिवचारले मी घरी जाऊ का १ त्या म्हटले मी तुझी हजेरी लावतो. इकडे माझ्याकडे ये. सुमारे १२ वाजता मी त्याच्याजवळ गेलो. त्यापूव; त्याने एस. ए. ज्वेलस%ची रिरसिसप्ट घेतली होती. मला बोलावले व मी त्याच्या क ॅ दिबन मध्ये गेलो ५ दिमदिनटानंतर त्याने मला कव्हर दिदले. व सांगडितले हे माझे पैसे आहेत तुझ्या बॅगमध्ये ठेव. थोडा वेळ त्यांच्याजवळ बसल्यानंतर त्याने मला म्हटले की त्याला क ॅ श बॅलन्स करायला वेळ मागेल तरी तू माझे कव्हर माझ्या घरी दे. त्या दिदवशी मला फार टेन्शन होते साहेबाची तक्रार मी आपल्याकडे क े ली होती व परत कामावर न घेतल्यामुळे मला काहीच सुचत नव्हते म्हणून त्याने सांदिगतल्याप्रमाणे मी त्याच्या घरी गेलो. त्याच्याघरी त्याची पत्नी नव्हती. माझ्या आईची डॉक्टरकडे संध्याकाळी अपॉइंटमेंट असल्यामुळे मी घरी गेलो. व दुसऱ्या दिदवशी रदिववार होता व त्या कव्हरदिवषयी मला संशय वाटला म्हणून मी ताबडतोब तीन माणसांना सोबत घेऊन रदिववारी क ुं दडिडयाच्या घरी गेलो. व तीन माणसासमक्ष कव्हर उघडे करून ५० रु. चे दोन बंडल पॅक असलेले दिदले. सदर घटनेला खालील तीन लोक पुरावा आहेत. १) श्री आय. आर. दिनकम असिस. डायरेक्टर डिडस्पोजल अँड सपलाय सेंट्रल गव्हरनमेंट २) श्री जी जी तायडे ३) श्री राठोड सॅपलाय डिडस्पोजल ऑदिफस वरील डितन्ही माणसा समक्ष मी त्याला १० हजार रुपये दिदले. नंतर सोमवारी क ॅ श short आहे. तर तू भर असे क ु दंडिडयाला सांदिगतले. तो मला म्हणाला मी क ॅ शिशयर आहे माझी जबाबदारी आहे तुला काय करायचे आहे तुझी बदली होणार आहे. माझी आईची तब्येत परत दिबघडल्यामुळे २/३ दिदवस मी ऑदिफसला येऊ शकलो नाही. तसा अज% मी मॅनेजर साहेबांना दिदला आहे. महाशयास दिवदीत होय वरील स्टेटमेंट मी क ु ठल्याही दबाब खाली न देता सत्य घटना लिलहीत आहे. Suryavanshi S.T. Dena Bank Dongri Br. To, The Regional Manager Dena Bank, Bombay City Region Page No. 10 of 22_ __ Bombay. Dear Sir, I, the undersigned Shri. S.T. Suryanshi, Dena Bank, Dongri Branch. Sept.1991 I reached office late by 25 minutes. Our Manager did not allow me to sign. We are having a tea club in the branch. So I decided to have tea before going home. At 11.40 a.m. I had tea. After I had withdrawn Rs.500/- from my account. I received the payment around 12 ‘clock. That time I say Mr. Kundhadia to the receiving cashier’s cabin. Since he is the President of our Union, I asked him whether I should go home or not. He told me to come to the cashier’s cabin and said he will mark me present. I went there around 12 O’clock. Before that he had received cash from S.M. Jewellers. Five minutes after my going to his cabin he gave me one envelope and asked to me to keep it in my bag since the money belongs to him. After sitting there for some time he told me that it will take some more time to balance the cash, so you deliver this envelope at my house. That day I was under tension since I had complained to you against our manager and since he had not allowed me to sign that day. I was disturbed. So as per his instructions, I went to his house but his wife was not at home. I had an appointment with the Doctor and had to take my mother there, so I went home. Next day was Sunday and since I got suspicious about the cover, immediately I went to Mr. Kundhadia’s house alongwith three other persons. I opened the envelope in front of these three witnesses and took out bundles of Rs.50/-. The following three persons are the witnesses of this event.
1. Shri. Nikem, Asst. Director, Disposal & Supply Control Govt.
2. Shri G.G. Tayde
3. Shri. Rathod, Supply Disposal Office. I have him Rs.10,000/- in front of these three persons. On Monday I told Mr. Kundhadia about the cash shortage and asked him to deposit the money. He told me that since I am the Cashier. It is my responsibility. Why you are bothered. You are going to get a transfer. As my mother was not well I could not attend office for 2-3 days. Accordingly I have given an application to our Manager. Sir, I hereby declare that whatever I have written here is only reality and I have not written it under anybody’s pressure. Page No. 11 of 22_ __ 17) Shri. Suryawanshi appeared as Management’s Witness No.3 in the enquiry and led evidence in accordance with the statement that he gave on 28 September 1991.
18) It is the statement of Shri. Suryawanshi in the entire episode which appears to be most suspicious and raises more questions than leading to any definitive conclusion. Careful perusal of the letter/statement of Shri. Suryawanshi dated 28 September 1991 shows that he accused Respondent of handing him cover/envelope containing money for being delivered at Respondent’s home. Thus, he had knowledge that the cover/envelope contained money. He claims that he approached Respondent’s house on 14 September 1991, but did not find his wife at home. Because he had Doctor’s appointment for his mother, he went to his own home with the envelope. For some inconceivable reason, he claims to have entertained doubts about contents of the envelope/cover. His claim of entertainment of doubt/suspicion becomes unbelievable as he already had knowledge about contents of the envelope. His claim that Respondent had handed over him the envelope with Rs. 10,000/ (substantial amount in the year 1991, possibly representing monthly wages of a bank clerk), suggesting that Respondent had full faith and trust in him possibly on account of friendship between the duo. The handing over of the cash had apparently happened on Saturday (half day for bank) at 12 noon, i.e. few hours before the Respondent himself could have carried amount home. Also, according to the Bank, the amount was misappropriated by Respondent and he did not disclose to Mr. Suryawanshi that was being handed over was misappropriated money. It defies logic that the Respondent would hand over the misappropriated amount to Mr. Suryawanshi instead of personally carrying home the same. He worked as cashier and the shortage was bound to be detected by the end of the day. He has worked as cashier before as well and was aware that handing over Rs. 10,000/- to Mr. Suryawanshi for delivery at home Page No. 12 of 22_ __ from bank’s cash book would obviously be noticed by the end of the day in the form of shortage.
19) However, defying all logic, Mr. Suryawanshi claims that Respondent handed over envelope which contained Rs. 10,000/- to him on 14 September 1991. It is the further claim of Mr. Suryawanshi of entertaining doubt/suspicion and gathering three witnesses and delivery of envelope by opening the same in front of those three witnesses which makes his claim to be an imaginary and concocted story. What happened during intervening night of 14th and 15th September 1991 that converted a close and trusted friend who started gathering evidence against Respondent is nowhere explained. Shri. Suryawanshi claims that he approached Respondent’s house alongwith three witnesses and opened the envelope/cover in front of them. In his statement/letter dated 28 September 1991, he has stated the names of the said three witnesses and has made a specific allegation that Rs. 10,000/- was handed by him to Respondent in presence of the three witnesses. Mr. Suryawanshi knew that the envelope handed over to him by Respondent contained money. His statement does not reflect that he had any clue about the shortage before he delivered the envelope to Respondent on 15 September 1991. The statement on the contrary suggests that he acquired knowledge about the shortage on Monday i.e. 16 September 1991. So why did he entertain any doubt for gathering evidence in the form of three witnesses is difficult to digest.
20) Thus, according to the statement/letter of Shri. Suryawanshi, he not only raised suspicion about the conduct of the Respondent on 15 September 1991 and discovered that the envelope contained two bundles of notes of Rs. 50/-, but had also acquired knowledge about shortage of money on the following day i.e. 16 September 1991 (Monday). This extra-vigilant person, who had acted Page No. 13 of 22_ __ as an investigating officer by gathering witnesses to witness the contents of the envelope on 15 September 1991, however went into deep slumber even after acquiring knowledge about the allegation of shortage against Respondent. He waited till 28 September 1991 and then submitted letter/statement. The conduct of Shri. Suryawanshi in the entire episode makes his claims highly unbelievable.
21) The Respondent has cross-examined Shri. Suryawanshi and has given him specific suggestions about the ill-intention to deliberately depose against him to cover his own irregularities. In his cross-examination, Mr. Suryawanshi could not even name the building in which the Respondent was residing, which creates doubts about his alleged visits to Respondent’s home. The statement of Shri. Suryawanshi itself indicates that the Respondent was President of Dena Bank’s Employees Union. This is not to suggest that he is deliberately implicated in a false case, but the possibility of misuse of incident of shortage of Rs. 10,000/- in cash detected on 14 September, 1991 which was initially sought to be attributed by the Branch Manager to the employee of M/s. S.M. Jewellers, for taking action against Respondent by securing a statement/letter dated 28 September 1991 from Shri. Suryawanshi cannot be entirely ruled out. The evidence of Shri. Suryawanshi appears to be highly unbelievable and the CGIT has rightly discarded his evidence by holding that same does not inspire confidence.
22) Also of relevance is the fact that the learned Single Judge of this Court (V.M. Kanade, J.) has already applied mind to the evidence on record and passed detailed order dated 28 April 2009 upholding the Part-II Award on the issue of perversity in the findings of the Enquiry Officer. It would be apposite to reproduce the relevant findings recorded by this Court in order dated 23 April 2009 as under: Page No. 14 of 22_ __ In the present case, S.T. Suryavanshi who had alleged in evidence that the envelope containing Rs.10,000/- was given by the respondent to him for delivering it at the residence of the respondent. Firstly, he made a complaint to the Branch Manager on 27.9.1991. This statement, therefore, was made almost after a lapse of 13 days. No explanation has been given as to why he had not informed the Branch Manager earlier more particularly when a complaint had already been filed by the Branch Manager in the police station against M/s.S.M. Jewellers. Secondly, the letter dated 27.9.91 was written by S.T. Suryavanshi three days after the respondent who was the president of the registered trade union informed the bank that he was ready to pay the shortage of cash of Rs.10,000/- in one installment though he had reiterated his stand that the shortage of cash was due to less amount being paid by the clerk of S.M. Jewellers. This disclosure by S.T. Suryavanshi after a lapse of 13 days and more particularly, three days after the respondent had written this letter creates a doubt about the veracity of his statement. The tribunal after having examined his evidence has observed that his testimony was unacceptable. The tribunal is entitled to re appreciate the evidence and see whether the finding recorded by the Inquiry Officer is perverse or not. In the present case, therefore, in my view, the Tribunal was justified in recording the said finding. Under these circumstances, in my view, no case is made out by the Petitioner for interfering with the finding recorded by the CGIT.
23) As observed above, the Appeal Court dismissed Letters Patent Appeal No. 266/2009 by order dated 22 January 2010 and upheld the order dated 23 April 2009. The Apex Court has also dismissed the Special Leave Petition preferred by the Petitioner-Bank by order dated 16 July 2010 by passing the following order: Heard the learned counsel for the petitioner. This Special Leave Petition has been filed against the impugned judgment of the Bombay High Court dated 22.01.2010 by which the Division Bench has upheld the order of the learned single Judge. The learned single Judge dismissed the writ petition filed by the petitioner herein challenging an interim order of the Central Government Industrial Tribunal No.1,Mumbai dated 28 May 1997. It is well settled by this Court that no writ should be entertained against an interim order of the labour court or the industrial tribunal. It is only when a final award is given, then a party should be allowed to challenge it if he is aggrieved. Page No. 15 of 22_ __ In the present case, the order of the Tribunal dated 28.05.1997 was only an interim order and it did not decide the reference finally. Therefore, the writ petition was rightly dismissed. Hence, we are not inclined to interfere in this matter. The Special Leave Petition is dismissed accordingly. However, if the final award goes against the petitioner, it will be open to the petitioner, while challenging that final award, to also challenge the interim order of the Tribunal dated 28.05.1997, if otherwise permissible.
24) Mr. Talsania would read the order passed by the Apex Court to mean an unqualified liberty granted to Petitioner-Bank to once again agitate the issue with regard to the perversity in the findings of the Enquiry Officer in the present petition. I am unable to agree. The Apex Court, though granted liberty to the Petitioner-Bank to challenge the Part-II Award dated 28 May 1997, it has qualified the same with the caveat of ‘if otherwise permissible’. Since the SLP is dismissed without disturbing the orders passed by the learned Single Judge and the Division Bench, it therefore becomes difficult to hold that this Court is expected to once again decide the issue of perversity by treating the said orders to be non-existent. Petitioner did not lead evidence after delivery of Part-II Award and therefore the CGIT completed the formality of setting aside the dismissal order on account of lack of any evidence to justify the action. Allowing Petitioner to once again raise a challenge to Part-II Award would virtually mean as if it succeeded before the Apex Court. Therefore, this Court would actually be justified in not permitting the Petitioner-Bank to raise the issue of perversity. However with a view to not leave any gap unfilled on account of liberty granted by the Apex Court in the order dated 16 July 2010 to once again challenge Part-II Award dated 28 May 1997, if otherwise permissible, I have once again discussed the evidence on record and I find it difficult to convince myself that there is any evidence on record to prove the charge of misappropriation against the Respondent. Thus, independent of the findings recorded by this Court in detailed order Page No. 16 of 22_ __ dated 23 April 2009, I am of the view that the findings recorded by the Enquiry Officer are perverse and that CGIT was justified in passing Part-II Award dated 28 May 1997.
25) It is an admitted position that after delivery of Part-II Award dated 28 May 1997, Petitioner-Bank did not lead any evidence before the CGIT to justify its action. Once findings of the Enquiry Officer are held to be perverse in Part-II Award dated 28 May 1997 and the said Award is upheld, it is impermissible to go back on the evidence recorded in the domestic enquiry. It therefore became incumbent for the Petitioner-Bank to lead fresh evidence to justify its action before the CGIT. Since no evidence was led before the CGIT by the Petitioner- Bank, CGIT has rightly set aside the punishment of dismissal from service imposed on the Respondent. Mr. Talsania would submit that the enquiry is held to be fair and proper and that Petitioner-Bank would be entitled to rely upon evidence already recorded in the enquiry for the purpose of justifying its action. If that was the position, there was no reason for the Petitioner-Bank to question Part-II Award dated 28 May 1997 in three rounds of lengthy litigation upto the Apex Court. In fact, while delivering Part-II Award dated 28 May 1997, the Presiding Officer of CGIT directed the Petitioner-Bank to lead evidence to justify its action. It possibly could have easily presented all witnesses, including Mr. Suryawanshi before the CGIT in 1997. However Petitioner decided to challenge Part-II Award and continued its lengthy litigation sojourn upto the Apex Court for the next 13 long years till 16 July 2010, when its SLP was finally dismissed. Thus Petitioner alone is responsible for its inability to lead evidence to justify its action.
26) However, even if the submission of Mr. Talsania about permissibility to lead evidence relied in the Domestic Enquiry is momentarily held to be correct, still the evidence on record does not Page No. 17 of 22_ __ support the allegation of misappropriation leveled against the Respondent. I have already discussed the evidence on record and I am unable to hold that evidence of Shri. Suryawanshi alone is sufficient for proving the misconduct of misappropriation leveled against the Respondent. As observed above, Shri. Suryawanshi appears to be highly unreliable witness set up after 13 days of the incident possibly for implication of the Respondent. Though Mr. Talsania questions as to who would set up Shri. Suryawanshi, it is not necessary to answer the query. There could be myriad of reasons why Mr. Suryawanshi woven up an imaginary story, defying logic, after 13 days of the incident. Suffice it to observe that Respondent was admittedly the President of Dena Bank’s Employees Union. Respondent has also given suggestion to Shri. Suryawanshi about false deposition to cover up his own irregularities. Otherwise also a simple case of detection of shortage of cash of a Cashier is given the flavour of misappropriation by introducing a new twist in the story by virtue of belated statement/letter of Shri. Suryawanshi dated 28 September 1991. It is not uncommon in Banks that shortages are detected by Cashiers due to heavy rush at the counters. The Manager has vouched for heavy rush at the counter because of half day working of Bank on Saturday. To take care of such routine incidents of shortages, Para-12.[2] of the Manual of Instructions issued by Dena Bank, which was in vogue at the relevant time, provided as under: 12.[2] The amount of shortage should be recovered from the Cashier concerned in one lump sum. If permission is granted by the management to recover the amount in instalments, such instalments shall be a charge on the salary of the employee concerned and shall be recovered every month regularly and reported in the salary statement.
27) As observed above, the Branch Manager himself suspected the employee of the customer for deliberately having deposited Page No. 18 of 22_ __ Rs.10,000/- short while making the deposit. Of course, Respondent ought to have been careful in accepting correct amount of cash from the customer and the dereliction in duties on this part in this regard has already costed him by deposit of Rs.10,000/- for making good the shortage in accordance with Para-12.[2] of the Manual. If Shri. Suryawanshi was not to appear at the scene, this would have gone as the usual case of detection of short cash in the account of the Cashier and after denial of short deposited by the employee of the account holder, Respondent would have been held responsible for such shortage and the amount would have been recovered from him as per para-12.[2] of the Manual. It is Shri. Suryawanshi’s belated entry in the entire episode which is responsible for giving the flavour of misappropriation in the present case. His entire enumeration of events in his statement dated 28 September 1991 appears to be highly doubtful. None of the alleged three witnesses that he gathered on 15 September 1991 were ultimately examined in the enquiry. In my view, therefore there is no warrant for interference in the findings of the CGIT in Part-II Award dated 28 May 1997 that the findings of the Enquiry Officer are perverse.
28) True it is that in Domestic Enquiry, the charge need not be proved beyond reasonable doubt which is the test for proving charge in a criminal trial. The test in domestic inquiry is preponderance of probabilities. So long as there is some evidence on record, the finding of guilt cannot be interfered with by Courts and Tribunals in a domestic enquiry. In this regard, reliance by Mr. Talsania on the judgment of the Apex Court in Rattan Singh (supra) is apposite. The Apex Court has held in para-4 of the judgment as under:
4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All Page No. 19 of 22_ __ materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.
29) The principles are reiterated by the Apex Court in its judgment in Kuldeep Singh Versus. Commissioner of Police and Others[2] in which it is held as under:
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. (emphasis added)
Page No. 20 of 22_ __ 30) Though the intricate rules of evidence under the Indian Evidence Act may not apply to domestic enquiries, at the same time, evidence which is not acceptable at all or which is thoroughly unreliable, cannot form basis for guilt of the delinquent employee. There is a marked distinction between the concepts of adequacy of evidence and unacceptable evidence. While Courts and Tribunals cannot go into the issue of adequacy of evidence, it cannot be expected to consider the evidence which is wholly unacceptable.
31) Once this Court finds it the entire testimony of Shri. Suryawanshi to be totally unreliable, it would be too dangerous to uphold the finding of guilt on the basis of such unreliable and unacceptable evidence. Once the deposition of Shri. Suryawanshi is discarded, there is absolutely zero evidence in support of the charge of misappropriation. The 2 other management witnesses examined by Petitioner are Shri. A.M. Kuwadia, Branch Manager and Shri. S.M. Sundaram, Manager City R.O., both of whom have not deposed anything about the alleged misappropriation.
32) The conspectus of the above discussion is that no patent error can be traced either in Part-II Award dated 28 May 1997 or in the final Award dated 28 April 2012. Respondent has already attained the age of superannuation in the year 2017 and there is no question of his reinstatement. The Tribunal has awarded only 60% backwages for the intervening period from 15 February 1993 till passing of the final Award on 24 February 2012. Though the misconduct of misappropriation is not proved, the Respondent is already denied 40% wages during long period from 15 February 1993 to 24 April 2012. This would serve as a punishment for him for dereliction of duty for shortage of huge amount of Rs. 10,000/-. Implementation of the Award will make the Respondent entitled to only 60% wages for 19 long years Page No. 21 of 22_ __ between 15 February 1993 to 24 April 2012 and 100% wages from the date of the Award i.e. 24 April 2012 till the date of his retirement. I am therefore not inclined to interfere even in the order directing 60% backwages.
33) Resultantly, I find Part-II Award dated 28 May 1997 as well as the final Award dated 24 April 2012 passed by the learned CGIT to be unexceptional. The Writ Petition is devoid of merits. It is accordingly dismissed with no order as to costs.
34) Petitioner-Bank shall release all the dues arising out of the final Award dated 28 April 2012 to the Respondent within a period of 2 months. Rule is discharged. [SANDEEP V. MARNE, J.] Page No. 22 of 22_ __