{"id":110566,"date":"2009-08-13T00:00:00","date_gmt":"2009-08-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/uco-bank-vs-sh-naresh-kumar-and-another-on-13-august-2009"},"modified":"2018-02-26T08:46:58","modified_gmt":"2018-02-26T03:16:58","slug":"uco-bank-vs-sh-naresh-kumar-and-another-on-13-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/uco-bank-vs-sh-naresh-kumar-and-another-on-13-august-2009","title":{"rendered":"Uco Bank vs Sh. Naresh Kumar And Another on 13 August, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Uco Bank vs Sh. Naresh Kumar And Another on 13 August, 2009<\/div>\n
C.W.P. No.17849 of 2004                                    -1-\n\n IN THE HIGH COURT FOR THE STATES OF PUNJAB AND\n             HARYANA AT CHANDIGARH\n\n                            C.W.P. No.17849 of 2004\n                            Date of Decision: 13.08.2009\n\n\nUCO Bank                                            .....Petitioner\n\n                               Versus\n\n\nSh. Naresh Kumar and another                       ....Respondents<\/pre>\n
Present: Mr. Sudhir Mittal, Advocate
\n         for the petitioner.\n<\/p>\n
         Mr. O.P. Sharma, Advocate
\n         for respondent No.1.<\/p>\n
\n\n2.       C.W.P. No.4504 of 2006\n\nNaresh Kumar                                  .....Petitioner\n\n                               Versus\n\n<\/pre>\n
The Central Government Industrial Tribunal-cum-Labour Court and
\nanother<\/p>\n
                                              ….Respondents<\/p>\n
Present: Mr. O.P. Sharma, Advocate
\n         for the petitioner.\n<\/p>\n
         Mr. Sudhir Mittal, Advocate
\n         for respondent No.2.\n<\/p>\n
CORAM:HON’BLE MR. JUSTICE K. KANNAN<\/p>\n
1.     Whether Reporters of local papers may be allowed to see
\n       the judgment ?\n<\/p>\n
2.     To be referred to the Reporters or not ?\n<\/p>\n
3.     Whether the judgment should be reported in the Digest?\n<\/p>\n
                 -.-\n<\/p>\n
K. KANNAN J.\n<\/p>\n
1.       C.W.P. No.17849 of 2004 and 4504 of 2006 are against the<\/p>\n
same award, the former having been filed at the instance of the<\/p>\n
management and the latter at the instance of the workman. By the
\n C.W.P. No.17849 of 2004                                       -2-<\/span><\/p>\n
impugned award, the punishment of removal from service had been<\/p>\n
modified and the Labour Court has substituted it by stoppage of four<\/p>\n
increments for one year. The Labour Court had also found that the<\/p>\n
departmental proceedings taken by the management resulted in<\/p>\n
dismissal at two levels.      One, by the Disciplinary Authority and<\/p>\n
another by the Appellate Authority in the intra-departmental appeal<\/p>\n
that the proceedings were fair and proper. The management’s writ<\/p>\n
petition is against the reduction of punishment while the workman has<\/p>\n
filed the writ petition challenging the correctness of the finding of the<\/p>\n
Labour Court that the proceedings before the domestic Tribunal were<\/p>\n
fair and proper.\n<\/p>\n
2.        The charges against the workman by the management-bank<\/p>\n
consisted as follows:-\n<\/p>\n
          “1. That while working at Bhallan Branch on 05.11.1998,<\/p>\n
               you applied for one day’s Casual Leave for 06.11.1998<\/p>\n
               with the reason for sitting on Dharna at Zonal Office,<\/p>\n
               Chandigarh.      The leave applied by you was not<\/p>\n
               sanctioned by the Manager and you were informed<\/p>\n
               accordingly.\n<\/p><\/blockquote>\n
          2.   That on 07.11.1998 at 11.00 A.M., you were vide<\/p>\n
               Bhallan    Branch’s   Offic    Order   No.23\/98      dated<\/p>\n
               07.11.1998 asked to officiate vide Assistant Manager<\/p>\n
               in a Leave Vacancy. You neither accepted nor refused<\/p>\n
               the Offic Order but on the blank space in Office Order<\/p>\n
               itself wrote a long narration questioning the bona fides<\/p>\n
               of the Manager\/Office Order and did not perform the
\n C.W.P. No.17849 of 2004                                     -3-<\/span><\/p>\n
              duty(s) as directed by the Manager.\n<\/p><\/blockquote>\n
         3.   That on 04.12.1998 at about 4.00 P.M., Sh. P.S. Saini,<\/p>\n
              Assistant Manager of Bhallan Branch went inside the<\/p>\n
              Strong Room to get some documents from there, you<\/p>\n
              shut the Strong Room door from outside. In spite of his<\/p>\n
              frantic knockings on the door the same was not opened.<\/p>\n
              The door was opened by some one only after 15<\/p>\n
              minutes when Sh. P.S. Saini was almost on the verge of<\/p>\n
              being suffocated.\n<\/p><\/blockquote>\n
         4.   That on 04.12.1998 itself immediately after the<\/p>\n
              aforementioned incident, Bank’s very valued customer,<\/p>\n
              namely Sh. Sarvjit Singh came to the bank to deposit<\/p>\n
              Rs.1,00,000\/- in his account and when Sh. P.S. Saini,<\/p>\n
              Assistant Manager was in the midst of counting cash,<\/p>\n
              you snatched the entire cash from him and threw the<\/p>\n
              notes helter-skelter and slapped Sh. P.S. Saini.”<\/p>\n<\/blockquote>\n
5.       In effect, the workman had been imputed with riotous and<\/p>\n
disorderly behaviour at the premises of the Bank, willful damage to<\/p>\n
the property of the Bank, willful subordination and disobedience of<\/p>\n
the orders of the management and for misbehaviour towards<\/p>\n
customers during the business hours, all of which being misconducts,<\/p>\n
as per the relevant provisions of the Bipartite Settlement dated<\/p>\n
19.10.1966 between the management and the workers’ union.<\/p>\n
6.       On the first charge that the workman had deliberately<\/p>\n
absented himself from duty on 06.11.1998 and had carried out<\/p>\n
corrections in the attendance register, the response by the workman
\n C.W.P. No.17849 of 2004                                     -4-<\/span><\/p>\n
was that he had sought for leave on 05.11.1998 stating that he was<\/p>\n
required to be absent for participation in a Dharna at Delhi and in the<\/p>\n
leave letter, it had been endorsed that he shall resume his duty on<\/p>\n
07.11.1998. According to him, this meant by implication that his<\/p>\n
leave on 06.11.1998 had been granted.        Referring to the alleged<\/p>\n
corrections in the attendance register, his contention was that when he<\/p>\n
reported to duty on 07.11.1998, he had entered the time of arrival<\/p>\n
against date 06.11.1998 by mistake and when he found the mistake he<\/p>\n
re-wrote against the date 07.11.1998 marked himself present and<\/p>\n
entered in the column across the date 06.11.1998 that he had taken<\/p>\n
casual leave. According to him, the management had subsequently<\/p>\n
struck off the writings made by him and had written “absent”. It was<\/p>\n
the management, which had carried out corrections in the attendance<\/p>\n
register and not himself.\n<\/p>\n
7.        Learned counsel appearing for the management would point<\/p>\n
out that the issue relating to the refusal of leave had been properly<\/p>\n
dealt with by the Enquiry Officer as well as by the Appellate<\/p>\n
Authority. The format of application for leave was in a standard<\/p>\n
printed form and against his application, the leave had been endorsed<\/p>\n
as denied and produced before the Enquiry Officer. Further in the<\/p>\n
memo of requisition for leave also, the sanctioning officer had scored<\/p>\n
out the request for leave on the ground that leave could not be granted<\/p>\n
for the reason of participating in Dharna. The Appellate Court had<\/p>\n
reasoned that his leave was not being sanctioned admitted of no doubt<\/p>\n
that he was not being allowed the leave. Before me, it is argued that<\/p>\n
even the reference to the date 07.11.1998 as a day when he could join
\n C.W.P. No.17849 of 2004                                      -5-<\/span><\/p>\n
was not true and that date had been interpolated by the workman<\/p>\n
himself. It must be noticed that such a contention was not raised<\/p>\n
before the Enquiry Officer. I, therefore, agree with the contention on<\/p>\n
behalf of the workman that if in the first sentence, there was a<\/p>\n
reference to the fact that the sanction for leave was being denied and<\/p>\n
in the last sentence it should read like that the workman should resume<\/p>\n
his duty on 07.11.1998, it was possible for the workman to believe<\/p>\n
that he was really being accorded the leave on 06.11.1998. The effect<\/p>\n
of reference that the workman shall resume duty on 07.11.1998 was<\/p>\n
never considered by the Enquiry Officer or the Appellate Authority.<\/p>\n
The Labour Court had not also subjected the reasoning of the<\/p>\n
domestic Tribunal to any serious scrutiny. It is also pointed out by the<\/p>\n
learned counsel arguing for the workman that in the attendance<\/p>\n
register, the endorsement “absent” has not been scored out anywhere<\/p>\n
but only the endorsement made by the workman that he was on casual<\/p>\n
leave on 06.11.1998 had been scored out. If the word “absent” had<\/p>\n
already been entered by the management and the workman would be<\/p>\n
imputed as having made the interpolation or correction, the word<\/p>\n
absent must have been struck off. On the other hand, it is only the<\/p>\n
entry of the workman that he was on casual leave which has been<\/p>\n
scored out. This shows that the workman could not have carried out<\/p>\n
any interpolation and the explanation given by him as regards the<\/p>\n
entries in the attendance register gains credibility. The finding, in my<\/p>\n
view, does not accord with evidence at all and therefore, although the<\/p>\n
domestic Tribunal and the Labour Court found the charge No.1 to<\/p>\n
have been proved, I set aside the finding.\n<\/p>\n
 C.W.P. No.17849 of 2004                                        -6-<\/span><\/p>\n
8.           As regards the second charge that the workman had refused<\/p>\n
to officiate in duty as Assistant Manager on a particular day when the<\/p>\n
officer was on leave, the contention of the workman was that there<\/p>\n
was an express instruction that he shall not be permitted to officiate in<\/p>\n
a higher post. Learned counsel appearing for the management points<\/p>\n
out and in my view correctly that workman’s response to the memo for<\/p>\n
officiation in a higher post was through a memo with an endorsement<\/p>\n
taking up irrelevant facts, as to how on previous dates the Manager<\/p>\n
had conducted himself. He had also challenged the duty assigned to<\/p>\n
him by stating that the Workers Union had already decided not to take<\/p>\n
up any such higher officiation roles. It was in the context of his refusal<\/p>\n
to officiate, the management had passed an order that he shall not be<\/p>\n
permitted to officiate in future for a period of six months.         This<\/p>\n
response from the management was more in the nature of reprisal or<\/p>\n
an admonishment for an open defiance by the workman that he would<\/p>\n
not officiate in a higher post. It was a clear case of insubordination<\/p>\n
and the findings in that regard by the Labour Court are perfectly<\/p>\n
justified.\n<\/p>\n
9.           The third charge was relatively a serious one.          The<\/p>\n
management had charged the workman as having locked up an<\/p>\n
official, Sh. Saini in the Strong Room and in enquiry it was brought<\/p>\n
out that he was seen proclaiming that he had taught the officer a<\/p>\n
lesson and even went out of the Bank shouting to the attention of the<\/p>\n
public making references upon caste and that all the persons<\/p>\n
belonging to the caste would require to be properly dealt with. It was<\/p>\n
also brought out in evidence before the Enquiry Officer that when Mr.
\n C.W.P. No.17849 of 2004                                    -7-<\/span><\/p>\n
Saini had been later released from the Strong Room, he was given a<\/p>\n
physical bashing by the workman by landing a fist blow on the nose.<\/p>\n
The Manager had given evidence that on his return from outside, he<\/p>\n
saw Mr. Saini totally shaken up and Mr. Saini had himself given<\/p>\n
evidence that he was beaten and he was bleeding. This incident was<\/p>\n
found to be true by the Enquiry Officer but the challenge against this<\/p>\n
finding by learned counsel appearing for the workman was that the<\/p>\n
Enquiry Officer had failed to examine the evidence of Satpal, a Clerk,<\/p>\n
who had stated that no such incident took place in the Bank. It is not<\/p>\n
as if no reference had been made by the Enquiry Officer but he had<\/p>\n
observed that witness told him later individually that he deliberately<\/p>\n
concealed the incident to support his comrade. It is strange that the<\/p>\n
Enquiry Officer must make reference to an alleged private<\/p>\n
conversation, which is not a part of the record. That portion of the<\/p>\n
Enquiry Officer’s report is unacceptable but still I find that if a<\/p>\n
Manager of the Bank as well as an official in a bank gave evidence<\/p>\n
that he was physically assaulted, the evidence cannot be easily<\/p>\n
brushed aside by the only fact that there was a denial by the workman.<\/p>\n
Learned counsel appearing for the workman also contended that the<\/p>\n
Strong Room itself was not accessible and it was not open because the<\/p>\n
Manager had left at 2.30 P.M. on that day and he had the keys with<\/p>\n
him. He came back only after the 4 O’clock and therefore, the incident<\/p>\n
as alleged by the management could not be true. Learned counsel<\/p>\n
appearing for the management would explain from the finding of the<\/p>\n
Enquiry officer and as found by the Appellate Authority itself that<\/p>\n
during the day time it will be open and there will be only key while
\n C.W.P. No.17849 of 2004                                      -8-<\/span><\/p>\n
only at the time of closing after the banking hours, the second key will<\/p>\n
also be used. According to him, only the Manager had left the Bank<\/p>\n
but the Strong Room was still open and therefore, the case as<\/p>\n
propounded by the workman was not true.          This reasoning finds<\/p>\n
reference in the Enquiry Officer’s report as well as in the Appellate<\/p>\n
Authority’s order. The Court shall not reappraise evidence in a case<\/p>\n
where some evidence had been placed before the Enquiry Officer that<\/p>\n
was found to be credible enough to uphold the charge. It is not the<\/p>\n
adequacy of evidence that shall be tested but the total absence thereof<\/p>\n
which may vitiate a finding. I uphold the finding of the Enquiry<\/p>\n
Officer and the Labour Court that charge No.3 had been fully<\/p>\n
established.\n<\/p>\n
10.       As regards the charge that a customer had come to deposit<\/p>\n
some cash and the Manager had also informed the workman that he<\/p>\n
had prior information that a customer might arrive late and he had so<\/p>\n
informed the workman when the manager was leaving the bank at 2.30<\/p>\n
P.M. The customer did come a little late after the customer banking<\/p>\n
hours, at the time when he was assaulting Mr. Saini and even the<\/p>\n
currency which he had held in his hands had flown out of his hands in<\/p>\n
the melee.     The customer had gathered the cash and left without<\/p>\n
depositing the money. Learned counsel appearing for the workman<\/p>\n
would show that apart from alleged written statement of the customer<\/p>\n
in writing narrating the incident, there was no other evidence before<\/p>\n
the Enquiry Officer. The non-examination of the customer himself<\/p>\n
was, according to him, material. If the incident has been spoken by<\/p>\n
another witness and the fact that there was a written complaint itself
\n C.W.P. No.17849 of 2004                                     -9-<\/span><\/p>\n
was sufficient for the Enquiry Officer to state that the incident was<\/p>\n
true and the charge had been proved.      It is not as if there was no<\/p>\n
material at all for the Enquiry Officer or the Labour Court to come to<\/p>\n
the conclusion that the charge had been proved.\n<\/p>\n
11.       The findings of the Enquiry Officer and the Appellate<\/p>\n
Authority are fairly elaborate. The Labour Court had not dealt with<\/p>\n
each charge but had made a general observation that it found that all<\/p>\n
the procedural formalities attending on the enquiry, such as,<\/p>\n
opportunity to the delinquent, the defence examination of witnesses<\/p>\n
etc. had all been properly followed and that the proceedings had been<\/p>\n
fair and proper. Since the learned counsel for the workman sought my<\/p>\n
attention to each one of the charges and argued at considerable length,<\/p>\n
I have addressed them charge-wise only to satisfy myself that even the<\/p>\n
general observation of the Labour Court had a concrete basis. Except<\/p>\n
the first charge, I am convinced that every other charge had been<\/p>\n
clearly and substantially established.\n<\/p>\n
12.       As regards the punishment, the Labour Court found that the<\/p>\n
punishment of removal from service was harsh and disproportionate to<\/p>\n
the alleged misconduct especially when there were no charges of fraud<\/p>\n
etc.   As bad and serious as a charge of fraud is the charge of<\/p>\n
insubordination and physical violence on a superior officer.       The<\/p>\n
intervention, which the Labour Court had made for the nature of<\/p>\n
charges, which I have outlined could clearly show that it was not<\/p>\n
simply a case where the Labour Court could have been interfered as<\/p>\n
regards punishment. This is all the more so when the Labour Court<\/p>\n
found that the enquiry before the Enquiry Officer had been proper and
\n C.W.P. No.17849 of 2004                                      -10-<\/span><\/p>\n
fair and it found that all other charges had been established. The<\/p>\n
nature of charges were definitely not being incidents of minor<\/p>\n
misconducts. They were grave and serious and if the charges were<\/p>\n
found to have been established, there is simply no scope for<\/p>\n
interference.\n<\/p>\n
13.       Learned counsel appearing for the workman refers to the<\/p>\n
decision of the Hon’ble Supreme Court in Jitendra Singh Rathor Vs.<\/p>\n
Shri Baidyanath Ayurved Bhawan Ltd. and another AIR 1984 SC<\/p>\n
976 that the interference by the High Cout in exercise of powers of<\/p>\n
superintendence under Article 227 of the Constitution, they shall not<\/p>\n
be exercised as a superior court of appeal. The High Court is not<\/p>\n
entitled to exercise the powers of the Tribunal and substitute an award<\/p>\n
in place of the one made by the Tribunal as in the case of appeal<\/p>\n
where it lies to it. He also relied on a decision of a Division Bench of<\/p>\n
this Hon’ble Court in PGI Chandigarh Vs. The Presiding Officer,<\/p>\n
Labour Court, U.T., Chandigarh 1996 (6) SLR 757 where Labour<\/p>\n
Court had modified the punishment by stoppage of four annual<\/p>\n
increments and directed reinstatement. The High Court did not treat it<\/p>\n
as perverse and did not interfere with the judgment. As against this,<\/p>\n
the judgments cited by the learned counsel for the management refers<\/p>\n
to decision of the Hon’ble Supreme Court in West Bokaro Colliery<\/p>\n
(Tisco Ltd.) Vs. Ram Pravesh Singh (2008) 3 SCC 729 where the<\/p>\n
Hon’ble Supreme Court held the sanctity of findings of the Tribunal<\/p>\n
where there had been unequivoval evidence of misbehaviour towards<\/p>\n
the superiors, such evidence rendered before the Tribunal could not<\/p>\n
be discarded by the Labour Court or the Industrial Tribunal. The
\n C.W.P. No.17849 of 2004                                      -11-<\/span><\/p>\n
decision of The Workmen of M\/s Firestone Tyre and Rubber Co. of<\/p>\n
India (Pvt.) Ltd. Vs. The Management and others (1973) 1 SCC 813<\/p>\n
was perhaps the first major decision of the Hon’ble Supreme Court<\/p>\n
that dealt with the extent of discretion under Section 11-A of the<\/p>\n
Industrial Disputes Act and how it shall be exercised. It reminded the<\/p>\n
Courts of the power of an Industrial Tribunal to interfere even in case<\/p>\n
where the enquiry before the domestic Tribunal was found to be not<\/p>\n
fair and proper and how the Labour Court itself could direct the<\/p>\n
parties to adduce evidence regarding the facts that were required to be<\/p>\n
proved before the Tribunal. The judgment also is an authority on the<\/p>\n
aspect that a Tribunal would have the power at all times to reappraise<\/p>\n
the whole evidence and satisfy itself whether the evidence establishes<\/p>\n
the misconduct. It reminds the Tribunals also that if a proper enquiry<\/p>\n
is made then the Tribunal will have to give cogent reasons for not<\/p>\n
accepting the view of the employer and the employer will also escape<\/p>\n
the charge of having acted arbitrarily or mala fide and it would<\/p>\n
conduce to harmonious and healthy relationship betwen the employer<\/p>\n
and the workman. In this case, I have no doubt in my mind that the<\/p>\n
misconduct attributed against the workman and that stood proved<\/p>\n
were very serious and if the management had decided to terminate his<\/p>\n
services, it could not have been merely interfered on a subjective<\/p>\n
finding that it was too harsh and disproportionate. It was harsh, it had<\/p>\n
to be, since the misconduct was just as well deprecatory.<\/p>\n
14.       The award of the Labour Court, in so far as it reduces the<\/p>\n
punishment is set aside. The writ petition filed by the workman in<\/p>\n
C.W.P. No.4504 of 2006 is dismissed. The writ petition filed by the
\n C.W.P. No.17849 of 2004                                        -12-<\/span><\/p>\n
management in C.W.P. No.17849 of 2004 challenging the reduction of<\/p>\n
punishment from one of dismissal is allowed and the award of<\/p>\n
punishment of dismissal made by the Disciplinary Authority is<\/p>\n
restored. There shall be, however, no direction as to costs.<\/p>\n
                                                   (K. KANNAN)
\n                                                      JUDGE
\nAugust 13 , 2009
\nPankaj*\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Uco Bank vs Sh. Naresh Kumar And Another on 13 August, 2009 C.W.P. No.17849 of 2004 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.17849 of 2004 Date of Decision: 13.08.2009 UCO Bank …..Petitioner Versus Sh. Naresh Kumar and another ….Respondents Present: Mr. Sudhir Mittal, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-110566","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nUco Bank vs Sh. 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