Godson A. Rodrigues v. SVC Co-operative Bank Ltd.

15) It is the second aspect about perversity in the findings of the Enquiry Officer, which is the main grouse sought to be raised by the Petitioner in the present petition. According to the Petitioner, there is no evidence on record to prove the charges levelled against him. According to the Petitioner, there are ___Page No. 9 of 25_____ admissions on the part of the Management Witness coupled with the findings of the Enquiry Officer about the genuineness of documents produced by the Petitioner in support of his claim for housing loan and once genuineness of those documents are accepted, the charges ought to have been held disproved by the Enquiry Officer. To examine the contention of the Petitioner, about perversity in the findings of the Enquiry Officer, it would be necessary to consider the charges levelled against him in the Memorandum of Chargesheet dated 19 December 2017. The charges levelled against the Petitioner reads thus:

1. You availed loan for construction of house at a total cost of Rs.31.60 lacs based on a floor plan of built up area of 2460 sq. ft. by providing a to the Bank the construction of which does not match with the floor plan submitted which indicates that the loan proceeds were not used for construction of new bungalow.

2. You provided undated quotation from CHARLY - Architectural and Civil Services for New Construction of Ground + First floor Structure in RCC for total amount of Rs.31.60 lacs which was submitted only for the purpose of availing staff housing loan since the security provided did not match with the specifications provided in the quotation.

3. You provided false Certificate from CHARLY - Architectural and Civil Services dated 18.10.2012 stating that he has started construction work of a New Bungalow at Gass, (Lahan Sargodi) Post- Sopara, Tal. Vasai, District Thane, Built up area of the Bungalow on Ground + First floor is 2460 square feet and 70% of the work is completed successfully and cost of completed Bungalow is Rs 22.12 lacs was submitted knowing well that no such construction activity took place as per the certificate provided. Moreover the constructed area and the structure of the security provided did not match with area mentioned in the certificate and floor plan provided. ___Page No. 10 of 25_____

4. You provided false Certificate from CHARLY-Architectural and Civil Services dated 5.10.2013 stating that you have started construction work of a New Bungalow at Gass, (Lahan Sargodi) Post- Sopara, Vasai, District Thane, Built area of the Bungalow on Ground + First floor is 2460 square feet and 100% of the work is completed successfully and Cost of completed Bungalow is Rs.31.60 lacs was submitted knowing well that no such construction activity took place as per the certificate provided, moreover the constructed area and the structure of the security provided does not match with area mentioned in the certificate provided and the approved floor plan.

5. At the time of disbursement on 31.10.2011 you made an application to the Senior Manager - Vakola Branch requesting to release the Housing loan proceeds in the name of contractor Mr. Oswin Mascarenhas and submitted following documents:  Undated cash receipt from Oswin Design Consultant for receiving Rs 9.60 lacs on various dates from you.  Demand letter dated 17.10.2013 from Mr. Oswin Mascarenhas Prop Oswin Design Consultant for Rs 22.00 lacs for full and final payment towards completion of work contract of the bungalow, along with photographs of the Bungalow constructed, though no bungalow was constructed

6. You also submitted photograph of some other Bungalow purportedly to be the security which you have mortgaged to Bank, for availing the loan under Staff Housing Loan Scheme. However, it has been observed that,  The construction does not match the floor plan dated 03.07.2011 of ground floor and first floor submitted at the time of sanction of the Housing loan. As per Gram Panchayat approved floor plan submitted there is a Living room. 2 Bed rooms (of identical size) and a Kitchen on the Ground floor and there is a Living room, 2 Bed rooms (of identical size) and a Kitchen on the First floor. The house inspected contains a Living room, 1 Bed room and a Kitchen on the Ground floor and in the First floor there are only 2 Bedrooms of different size.  The image which appears in the photograph of the bungalow submitted by you at the time of disbursement, differs from the bungalow which was visited by the Official of Vigilance Department. ___Page No. 11 of 25_____  On the left side adjacent to the bungalow as per photograph submitted by you at the time of disbursement, there is a building however now during site visit on the left side the plot is vacant.

7. You availed concessional staff housing loan to the extent of Rs.22.00 lacs fraudulently by providing false construction certificates when such construction did not take place at all and providing photograph of some other Bungalow as a proof of completion of construction. In fact, no new construction was done at site at Gass, (Lahan Sargodi) Post- Sopara, Tal. Vasai, District Thane, and the existing Bungalow at the site was built by your father, Mr. Andrew Rodrigues, prior to year 2013.

8. In brief, you availed the entire loan amount of Rs.22.00 lacs under concessional Staff Housing Loan fraudulently and the end use of the same is not as per sanction ie. for construction of new Bungalow. Moreover, the Bungalow provided as security is not as per: (1) Approved floor plans of Gram Panchayat (2) Quotations for construction of New Bungalow (3) Certificates of construction and completion of New Bungalow (4) Photographs of a Bungalow submitted for proof of construction. Your aforesaid grave/serious irregularities amount to gross misconduct as per provisions of Clauses 5(1) and 5(1) of Annexure-III captioned Disciplinary Action and Procedure Thereof to the Memorandum of Settlement dated 10.07.2015, which are quoted herebelow: 5(j) doing any act prejudicial to the interest of the Bank 5(l) committing fraud......

16) The gist of charges levelled against the Petitioner was about raising a false claim of construction of house and availing housing loan of Rs.22,00,000/- on concessional interest rate. In short, what is alleged against the Petitioner is that he never constructed a house for which he availed loan at concessional rate from the Bank. ___Page No. 12 of 25_____ 17) It appears that while applying for housing loan, the Petitioner produced before the Bank following documents:

(i) Gram Panchayat approved floor plan dated 3 July 2011.

(ii) Quotation of M/s. Charly Architect and Civil Services for construction of ground plus first floor structure for Rs.31.60 lakhs.

(iii) Certificate from M/s. Charly Architect and Civil

Services dated 18 October 2012 certifying that the Contractor Mr. Godson Rodrigues had started construction work and that 70% of the work was complete and that the cost of the completed work was Rs.22.12 lakhs.

(iv) Certificate of M/s. Charly Architect and Civil Services dated 5 October 2013 certifying that 100% construction of the bungalow was complete and that cost of Rs.31.60 lakhs was incurred.

(v) Petitioner’s application dated 31 October 2013 in the name of the Contractor.

(vi) Cash receipt of Contractor for having received amount of Rs.9.60 lakhs (difference between loan amount and cost of construction).

(vii) Demand letter dated 17 October 2013 from the

(viii) Photograph of the bunglow.

18) By producing the above documents, Petitioner sought to create a picture as if the Bungalow was actually constructed by him by incurring cost of Rs.31.60 lakhs and that amount of Rs.22,00,000/- was payable to the Contractor. Believing the documents produced by the Petitioner to be genuine, the Bank apparently sanctioned the housing loan of Rs.22 lakhs to the Petitioner at concessional interest rate of 5%. It appears that after sanctioning of the loan but before disbursal of the loan amount, Mrs. Sonia Pandit (Sonia Martin) was deputed to pay visit to the ___Page No. 13 of 25_____ bungalow and certify that the same was actually constructed. It appears that Mrs. Sonia Pandit paid a visit and certified construction of the bungalow. This is how the loan amount of Rs.22 lakhs was disbursed to the Petitioner. In support of the charges, Respondent-Bank examined Mr. Rajesh Nair, Senior Manager in Vigilance Department of the Bank.

19) Deposition of Mr. Nair before the Enquiry Officer would indicate that he visited the bungalow site on 28 September

2017. He deposed that when he made enquiries with the local residents in respect of the structure in the photograph submitted by Petitioner, they were unable to locate the same. They however took Mr. Nair to Petitioner’s house, where his mother was found. He met Ms. Fatima Rodrigues, Petitioner’s mother on 18 September 2017. After making enquiries with Petitioner’s mother, she informed Mr. Nair that the bungalow was actually constructed by Petitioner’s father in the year 1990 and that the same was renovated in the year 2013. Mr. Nair further deposed that he compared the bungalow with the floor plan submitted by the Petitioner at the time of availing the loan and that the structure of the bungalow did not match the floor plan. He submitted that the floor plan approved by the Grampanchayat reflected living room, 2 bedrooms and a kitchen on the ground floor and living room, 2 bedrooms and a kitchen on the first floor. As against this, the bungalow that he visited had living room, one bedroom and a kitchen on the ground floor and only 2 bedrooms ___Page No. 14 of 25_____ on first floor. He also deposed that the photographs produced by the Petitioner at the time of availing the loan facility was not of the structure that he visited. He further deposed that the photographs produced by the Petitioner showed existence of a building on the left side of his alleged bungalow, whereas the structure inspected by him had a vacant plot on its left side. He further deposed that the approved plan, quotation, architect’s certificate were in respect of the construction of ground plus first floor whereas the photograph produced by the Petitioner showed structure of ground plus two upper floors. He also deposed about certain other variations in the approved plan as compared to the photograph produced by the Petitioner. This is the direct evidence of the witness who visually and personally inspected Petitioner’s house with the approved plan submitted by Petitioner.

20) Mr. Nair further deposed that he paid one more visit alongwith Mr. Anil Kakode, a valuer on Bank’s panel on 12 October 2017 and when they met Petitioner’s father, Mr. Andrew Rodrigues and mother Mrs. Fatima Rodrigues. That during the course of visit on 12 October 2017, Mr. Andrew Rodrigues informed Mr. Nair that the house was built in the year 1990 and the same was merely renovated in the year 2013. Mr. Nair also produced copy of the Report of M/s. Kakode Associates during the course of enquiry. He further deposed that as per the Certificate from M/s. Charly Architectural and Civil Services, the ___Page No. 15 of 25_____ built up area of the bungalow was 2460 sq.ft whereas as per the measurements taken by M/s. Kakode Associates, built up area of the house was found to be 811.41 sq.ft on ground floor and with open veranda of 118 Sq.ft and 747sq.ft on the first floor. That there was difference in the area totalling to 783.59 sq.ft when compared to the Architect’s certificate. Mr. Nair further deposed that though an amount of Rs.9.60 lakhs was shown to have been paid to the contractor in cash, the bank accounts of the Petitioner did not disclose any substantial cash withdrawal during the relevant period. Mr. Nair was cross-examined at great length by the defence representative of the Petitioner. During crossexamination, it turned out that the built up area as per the Architect’s plan was 2,640 sq.ft whereas actual built up area found during verification by M/s. Kakode Associates was 1674.41 sq.ft. Mr. Bhat has attempted to make much out of answer to Question No.41 which is as under: Q.41. It is true that the sanctioning authority procured the said document which was verified by concerned authorities of the Bank before sanctioning. I refer to point nos. 2, 3, 4 and 5 of the Charge Sheet at Ex-3 ? Ans. Yes, it is true. It was submitted by the CSE.

21) I do not see as to how this answer given by Mr. Nair in his cross-examination can enure to Petitioner’s benefit. After consideration of the deposition of Mr. Nair, it is clear that sufficient evidence was led during the course of enquiry to prove that the Petitioner did not construct the house for which he availed housing loan at concessional rate. The deposition of Mr. ___Page No. 16 of 25_____ Nair is of two types. Part one of his deposition is his firsthand information witnessed by him personally and the other part, qua statements made by Petitioner’s parents and measurements by Mr. Kakode can be considered as a hearsay evidence. Mr. Nair has given personal account of two visits that he paid at Petitioner’s house on 28 September 2017 and 12 October 2017. Whatever he observed personally during those two visits is a personal knowledge attributable to him. He observed that the specification of the house did not match the one in the approved plan produced by the Petitioner. It is Petitioner’s case that the house was constructed as per the plan approved by the Grampanchayat and his architect certified so. The structure at site did not have rooms as specified in the approved plan. He deposed that the photograph produed by Petitioner to prove construction of house for seeking disbursement of loan amount was not of the site where Petitioner’s parents were found. Petitioner did not come up with a case that he had any other house than the one Mr. Nair visited. This information personally witnessed by Mr. Nair clearly proves the charge. Additionally, he interacted with Petitioner’s parents during the course of both the site visits and both the parents confirmed to Mr. Nair that the house was constructed in the year 1990 by Petitioner’s father. This evidence is sought to be treated as hearsay by Mr. Bhat submitting that the parents are not examined as witnesses. Furthermore, Mr. Nair’s reference to the measurement taken by Mr. Kakode is again sought to be termed as hearsay in absence of examination of Mr. Kakode. It is well settled principle that in ___Page No. 17 of 25_____ domestic enquiry, hearsay evidence is also admissible. Reference in this regard can be made to the judgment of the Apex Court in State of Haryana V/s. Rattan Singh[1] wherein the Apex Court has held 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 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 misdirected 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 passages 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 commonsense way as men of understanding and worldly 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 finding is certainly 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 levelled against the respondent. AIR 1977 SC 1512 ___Page No. 18 of 25_____ Therefore, we are unable to hold that the order is invalid on that ground. (emphasis and underlining supplied)

22) Even otherwise, the evidence of Mr. Nair is not entirely hearsay. Mr. Nair has deposed what Petitioner’s parents told him about construction of the house. Additionally, Mr. Nair also compared the structure with his own eyes with the photographs produced by the Petitioner. This again is his personal evidence. Therefore, even if the information given to Mr. Nair by Petitioner’s parents is to be ignored by treating the same as hearsay evidence, still there is sufficient personal evidence of Mr. Nair to prove the charge of non-construction of house by the Petitioner in accordance with the approved plans relied upon by him.

23) It must be borne in mind that the test of proof of charge in a domestic enquiry is preponderance of probabilities. Even if there is some evidence on record, the employer is justified in punishing the employee. It is not necessary to prove the charge beyond reasonable doubt. It would be apposite to refer to the judgment of the Apex Court in the case of Kuldeep Singh v. Commr. of Police[2], in which the Apex Court has 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 supplied)

24) Mr. Bhat has sought to rely upon admissions given by Mr. Nair in his cross-examination that Mrs. Sonia Pandit had visited the house after sanctioning of the loan but before disbursement. It appears that Ms. Sonia Pandit was also hoodwinked by Petitioner by taking her to an altogether different structure. On account of Petitioner’s fraud, Ms. Pandit is also punished by the employer by issuing her show cause notice dated 31 May 2019 by stopping her increment for one year vide Order dated 11 July 2019. In response to the show cause notice, Ms. Pandit (Mrs. Sonia Martin) stated that Petitioner took her to an altogether different location and identified a different property/bungalow than the actual security mortgaged with the Bank. She stated that Petitioner deceived her in furtherance of his fraudulent intentions. Therefore, no benefit can be derived by the Petitioner about Ms. Sonia’s visit at the site on 27 October 2013.

25) After considering the evidence on record, I am of the view that there was sufficient evidence to prove the charges by applying the test of preponderance of probabilities. The findings ___Page No. 20 of 25_____ recorded by the Enquiry Officer do not suffer from the vice of perversity. Therefore, no fault can be found in the findings recorded by the Labour Court about absence of perversity in the findings of the Enquiry Officer.

26) Coming to the Part-II Award, Mr. Bhat has strenuously relied upon Section 11A of the ID Act. Section 11A reads thus: 11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an Industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.

27) Thus under Section 11A, power is conferred on Labour Courts/Tribunals to not just set aside the order of discharge or dismissal and direct reinstatement on conditions, but also give such other relief to the workmen as the case may require, including the award of lesser punishment. According to ___Page No. 21 of 25_____ Mr. Bhat, while delivering Part-II Award, the Labour Court ought to have considered the case of the Petitioner in the light of the provisions of Section 11A. In my view, Section 11A merely empowers the Labour Court to grant appropriate relief or to award lesser penalty than discharge or dismissal if the case warrants so. The lesser penalty can obviously be imposed if the penalty imposed by the employer is found to be shockingly disproportionate. In the present case, Petitioner has indulged in fraudulent activities of submitting false documents in support of the claim of construction of house, which he never actually constructed. The misconduct committed by the Petitioner is grave. The same has rightly not shocked the conscience the Labour Court nor does it shock my conscience. The punishment imposed on the Petitioner is commensurate with the gravity of misconduct proved against him. In my view, therefore no serious infirmity can be found in Part-II Award of the Labour Court.

28) What remains now is to deal with the judgments cited by Mr. Bhat. The Workman of Firestone Tyre & Rubber Co. Vs. The Management & Others[3] is cited in support of the contention that powers under Section 11A ought to have been exercised by the Labour Court. In para-51 of the judgment, the Apex Court has held as under:

51. The legislature in section 11-A has made a departure in certain respect in the law as laid down by this Court. For the first time, power has been given to a Tribunal to satisfy itself whether misconduct is 1973 (26) FLR 359. ___Page No. 22 of 25_____ proved. This is particularly so, as already pointed out by us, regarding even findings arrived at by an employer in an enquiry properly held. The Tribunal has also been given power, also the first lime, to interfere with the punishment imposed by an employer. When such wide powers have been now conferred on Tribunals, the legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the proviso. The Proviso emphasises that the Tribunal has to satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workmen only on the basis of the 'materials on record' before it. What those materials comprise of have been mentioned earlier. The Tribunal, for the purposes referred to above, cannot call for further or fresh evidence, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body. The 'matter' in the proviso refers to the order of discharge or dismissal that is being considered by the Tribunal.

29) The Apex Court has held in The Workman of Firestone Tyre & Rubber Co. (supra) that even if the Labour Court comes to a conclusion that the enquiry was properly held, the Labour Court can go into the correctness of the findings arrived at by the employer. The Apex Court has further held that under Section 11A, power is conferred on the Labour Court to interfere with the punishment imposed by the employer. In the present case, the Labour Court has conducted an enquiry into the correctness of findings recorded by the employer while punishing the Petitioner. It has also considered the issue whether the punishment imposed on the Petitioner for misconduct proved against him is commensurate or not. In my view, therefore the Labour Court has correctly exercised powers conferred under it by the Industrial Disputes Act. ___Page No. 23 of 25_____ 30) Mavji C. Lakum Vs. Central Bank of India[4] is relied upon by Mr. Bhat in support of his contention that even if the enquiry, which is held to be fair and proper, the Labour Court can go into the question of evidence or the quantum of punishment. The Apex Court has held in para-20.[1] of the judgment as under:

20.1. So far the finding of the learned Single Judge appears to be correct. However, the whole thrust of the judgment has changed merely because the Industrial Tribunal had found the inquiry to be fair and proper. The learned Judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the Industrial Tribunal cannot go into the question of evidence or the quantum of punishment. We are afraid that is not the correct law. Even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings. If the Industrial Tribunal comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the Industrial Tribunal would still be justified in re-appreciating the evidence and/or interfering with the quantum of punishment. There can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned. Besides, the Tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons. In our opinion the reasons given by the Tribunal were correct and the treatment given by the Tribunal to the evidence was perfectly justified.

31) In Mavji C. Lakum (supra), the Apex Court has essentially relied upon its previous judgment in The Workman of Firestone Tyre & Rubber Co. (supra) and has reiterated the 2008 III CLR 73 ___Page No. 24 of 25_____ principles in that judgment. As observed above, the Labour Court in the present case, has gone into the issue of correctness of findings recorded in the enquiry and also the issue of proportionality of penalty.

32) After considering the overall conspectus of the case, I do not find any valid reason to interfere in Part-I Award or Part-II Award of the Labour Court. The Writ Petition being devoid of merits is dismissed without any orders as to costs. [SANDEEP V. MARNE, J.] ___Page No. 25 of 25_____