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SCA/7322/2001 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7322 of 2001
With
CIVIL
APPLICATION No. 11806 of 2006
In
SPECIAL CIVIL APPLICATION No. 7322 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
BANK OF INDIA - Petitioner(s)
Versus
WORKERS
OF STATE BANK OF INDIA, THRO' P.B. KARYEE, & 1 - Respondent(s)
=========================================================
Appearance
:
MR
PRANAV G DESAI for
Petitioner(s) : 1,
MR ABHISHEK M MEHTA for Respondent(s) :
1,
DELETED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 31/03/2010
CAV
JUDGMENT
The
petitioner State Bank of India has challenged an award dated
12.3.2001 rendered by the Industrial Judicial Commission in
Reference (ITC) No.5/94 by which the petitioner bank was directed to
reinstate the respondent workman on his original post with 50%
back-wages.
Shortly
stated facts are as follows :
2.1 Shri
P.B. Karyee, a member of the respondent Union was employed as a peon
by the petitioner bank. In discharge of his duties, he was alleged
to have committed serious misconducts. Charge-sheet dated 7.6.1983
was filed against him leveling following allegations :
a)
An amount of Rs. 10,000/- was deposited by you in cash in your S.B,.
A/c. No. 31/3772 on 3-9-1981 and you withdrew almost the entire
amount on the next day. A transaction of such magnitude was
obviously beyond the known sources of your income.
b) As
stated in your statement of assets and liabilities, you had obtained
a fiat car (Regd. No. GJE-7058) from Shri K.R. Acharya and had it
registered in the name of your wife, Smt. Sitaben P. Karyee.
c) On
11th October, 1982 you encashed a blank signed S.B.
withdrawal from S.B. A/c. of Shri K.R. Acharya at the teller counter
at the Branch after filling up an amount of Rs. 2,000/- in your own
hand writing. The said amount was later redeposited by you in the
said account.
d) You
assisted Shri K.R. Acharya and his associates, mainly A.B. Acharya
and Shri Jayant R. Acharya, in transacting business on their behalf
in respect of accounts at various other banks at Gandhinagar,
including I.O.B., P.N.B. Allahabad Bank, etc. despite knowing the
fraudulent nature of those transactions. Moreover, you did this
during your duty hours neglecting your duties in the bank.
e) You
assisted Shri K.R. Acharya while he was working on the cash book
balancing desk and allege facilitate destruction removal of cheques
received through inward clearing and the manipulation of books for
the purpose of balancing the days cash book.
f) You
were performing household work for Acharya and were also aware about
Shri Acharya’s activities in Bombay including their residential
address and other places of visit
2.2 Delinquent
denied the charges. A departmental inquiry was therefore, conducted.
The inquiry officer submitted his report dated 11.2.1985 in which
he came to the following conclusions :
i) Imputation
(a) has been proved.
ii) Imputation
(b) has been partly proved.
iii) Imputation
(c) has been proved.
iv) Imputation
(d) has been partly proved.
v) Imputation
(e) has not been proved.
vi) Imputation
(f) in the form stated in the charge-sheet has been proved to some
extent but is not adequate to substantiate the main charge.
2.3 Considering
the inquiry officer’s report and submission of the delinquent,
disciplinary authority in its detailed order dated 31.12.1986
imposed punishment of dismissal from service on the workman. Workman
preferred an appeal before the appellate authority. The appellate
authority however, by order dated 18.6.1987 dismissed the appeal.
Workman sought reference before the Industrial Judicial Commission
which by impugned order dated 12.3.2001 allowed the reference,
setting aside the dismissal order, directed reinstatement of workman
with 50% back-wages. Bank is therefore, before this Court
challenging the said award.
I
have heard learned advocate for the bank as well as for the workman.
On
behalf of the bank, learned advocate Shri Desai submitted that the
Industrial Commission ought not to have interfered with the findings
arrived at by the inquiry officer as upheld by the disciplinary
authority and appellate authority. He submitted that after
conducting full fledged departmental inquiry, following the
principles of natural justice and rules of the bank, considering the
gravity of the charges, holding the charges to be proved, the
disciplinary authority imposed punishment which ought not to have
been interfered with.
On
the other hand, learned advocate Shri Abhishek Mehta for the workman
contended that the findings arrived at during the course of inquiry
are perverse and based on no evidence. It is submitted that the
Industrial Commission therefore, rightly overruled such conclusions.
He further submitted that in any case, quantum of punishment is
excessive. He contended that against large number of other officers
of the bank who were involved in the scandal, no steps have been
taken or at any rate no serious punishment imposed.
Having
heard the learned advocates for the parties, I find that the inquiry
officer had discussed the evidence threadbare to come to his factual
findings. In particular, with respect to charge (a), he found that
same was duly established. One may recall charge(a) pertains to an
amount of Rs. 10,000/- which was deposited by the delinquent in cash
in his bank account on 3.9.1981 and very next day, he withdrew the
entire amount. It was alleged that transaction was of such magnitude
which was beyond his known source of income.
6.1 The
transaction of depositing of Rs. 10,000/- in cash in his bank
account and subsequent withdrawal thereof by the delinquent was
proved through documentary evidence. This was not even seriously
disputed by the delinquent. His defence however, was that the amount
was received by him from someone to be handed over to the bank
officer Acharya. Since Acharya was not immediately available,
instead of carrying such amount in cash, he deposited in his own
bank account, withdrew the same next day for being handed over to
Acharya. This defence has not been believed by the inquiry officer
by giving cogent reasons. The disciplinary authority as well as the
appellate authority also concurred with such conclusions.
6.2
In my view, the Industrial Commission brushed aside the factual
findings of the employer arrived at pursuant to a domestic inquiry,
without valid reasons. It is by now well settled that the findings
of the fact arrived at during the course of inquiry, Courts and
tribunals would not interfere unless, findings are found to be
perverse. If there is some legal evidence on record to support the
charge and such evidence has been accepted by the competent
authority, it would be permissible for the Courts to interfere with
the findings. Admittedly, delinquent was employed as a peon in the
bank. In the year 1983, his income would certainly not justify his
handling cash amount of Rs. 10,000/- of his own. Industrial
Commission in my view erroneously came to the conclusion that In
my opinion, by depositing Rs. 10,000/- on one day in the bank and
withdrawing the said amount on the next day does not violate any
rule and it cannot be said that he was having the amount in excess
of his source of income and therefore, it cannot be said that he has
committed any fraud. Charge also did not allege that delinquent
had committed fraud. Charge was that transaction was of such a
magnitude which was beyond his known source of income.
With
respect to charge(b) also, I find that same was sufficiently
serious. It appears that there was large scale scandalous fraud in
the particular branch of the bank were delinquent was serving. One
officer Shri K.R. Acharya seems to be the main person. His several
transactions were being inquired into and investigated into. During
such inquiries, it was found that delinquent had made statement of
assets and liabilities that he had obtained a fiat car from Shri
K.R. Acharya and same is registered in the name of his wife Smt.
Sitaben Karyee. This charge also was held to be partly proved by the
inquiry officer through reliable evidence. Statements of witnesses
were recorded. In fact delinquent himself had made declaration.
He later on sought to change his version substituting that the car
was of Mr. Acharya and it was only a benami transaction in the name
of his wife. This defence was rejected by the inquiry officer. The
disciplinary authority considering all the aspects of the matter,
concluded against the delinquent. Industrial Commission however,
overruled the findings making following observations :
:43 …On
the basis of the reasons given by the inquiry officer, it is clear
that car is not registered in the name of second party. As there was
parking space in front of the house of second party, Shri Acharya
used to park his car at that place and therefore it cannot be said
that the second party has committed any offence looking to the
rules of the bank. According to the provisions of standing order, it
cannot be said that the first party bank has proved this charge
against the second party. I therefore come to the conclusion that
this charge is not proved against the second party.
7.1 In
my view, the Industrial Commission ought not to have interfered in
above manner.
Further
with respect to charge(d), the inquiry officer relied on extensive
documentary as well as oral evidence to hold that charge was partly
proved. Charge also in my view was grave. It was alleged that
delinquent had assisted Shri K.R. Acharya and his associates in
transacting business on their behalf in respect of several accounts
at various other banks at Gandhinagar knowing fully well the
fraudulent nature of such transactions. Inquiry Officer found charge
was partially proved. It is not necessary to go into further details
of the manner in which in the impugned order various factors have
been overruled. Suffice it to state that there was sufficient
material on record to permit the disciplinary authority to come to
the conclusion regarding the guilt of the workman. Such findings
ought not to have been upturned without valid reason.
Significantly
validity of the departmental inquiry was never in question. Neither
before the Commission nor before this Court, delinquent has
challenged the legality of the departmental inquiry. In that view of
the matter, when I find that the Industrial Commission seriously
erred in interfering with the factual findings arrived at by the
disciplinary authority as upheld by the appellate authority, I have
no choice but to restore the order of punishment. Considering the
seriousness of the charges proved, there is no case for reduction of
the punishment also. Charge pertains to integrity and involvement
of the delinquent in certain fraudulent transactions. It may be that
he was not the kingpin of the said scandal. It may be that he was
involved in a small way. Nevertheless, when it is shown that he was
employee of the bank and the bank concerned was of the opinion that
order of dismissal would be called for, I cannot substitute my
judgement for that of employer.
In
the result, petition is allowed and disposed of. Award dated dated
12.3.2001 rendered by Industrial Judicial Commission in Reference
(ITC) No.5/94 is quashed. Rule made absolute in above terms.
In
view of order passed in the main matter, civil application does not
survive. Disposed of accordingly.
(Akil
Kureshi,J.)
(raghu)
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