{"id":263002,"date":"2000-09-19T00:00:00","date_gmt":"2000-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-bank-of-india-vs-tarun-kumar-banerjee-and-ors-on-19-september-2000"},"modified":"2016-12-22T00:23:22","modified_gmt":"2016-12-21T18:53:22","slug":"state-bank-of-india-vs-tarun-kumar-banerjee-and-ors-on-19-september-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-bank-of-india-vs-tarun-kumar-banerjee-and-ors-on-19-september-2000","title":{"rendered":"State Bank Of India vs Tarun Kumar Banerjee And Ors on 19 September, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Bank Of India vs Tarun Kumar Banerjee And Ors on 19 September, 2000<\/div>\n
Bench: S. Rajendra Babu, D.P. Mohapatra<\/div>\n
           CASE NO.:\nAppeal (civil)  3151 of 1997\n\nPETITIONER:\nSTATE BANK OF INDIA\n\nRESPONDENT:\nTARUN KUMAR BANERJEE AND ORS.\n\nDATE OF JUDGMENT: 19\/09\/2000\n\nBENCH:\nS. RAJENDRA BABU & D.P. MOHAPATRA\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
 2000 Supp(3) SCR 313<\/p>\n
 The Judgment of the Court was delivered by<\/p>\n
RAJENDRA BABU, J. A charge-sheet issued to respondent no. 1 reads that at
\nabout 11 a.m. on June 23, 1973 Smt. Parul Rani Chowdhury, a customer of the
\nappellant-Bank, handed over to respondent no.l a sum of Rs. 3,002.40p along
\nwith two draft applications each for Rs. l,001.20p that even though
\nrespondent no.l received excess amount of Rs. 1,000 over Rs. 2,002.40p, he
\nneither refunded the same nor asked the customer as to the matter in which
\nthe said amount was to be disposited either by depositing the same in the
\nsavings bank account or deposit the same in the Sunday deposits account;
\nthat instead he retained the said money with him with intention of
\nmisappropriating the same; that thereafter Smt. Parul Rani Chowdhury
\nreturned at about 1.30 p.m. on the same day and demanded the said amount of
\nRs. 1,000 handed over to respondent no.l in excess, which he flatly denied;
\nthat on a report being made to the Branch Manager by Smt. Parul Rani
\nChowdhury he inquired about the matter; that when a preliminary search
\nfailed to trace the amount and a physical search of all the employees was
\nbeing conducted, respondent no.l threw away the said amount of Rs. 1,000 on
\nthe floor that thereby he retained the amount with him with a criminal
\nintent to misappropriate the same and thus lowered the image of the
\nappellant-Bank and thus acted in a manner highly prejudicial to the
\ninterest of the appellant-Bank. Respondent No. 1 replied to the said
\ncharge-sheet by stating that on a memorandum being issued to him directly
\ninvolving him in an alleged misappropriation of the said sum on June 23,
\n1973 he was compelled to sign a statement which he was not allowed to go
\nthrough even. Thereafter, he was placed under suspension. He alleged that
\nhe is a victim of serious conspiracy specially while after his recent
\npromotion from Messenger to Cashier he has looking forward for a bright
\nfuture and he denied all the charges levelled against him and he claimed to
\nbe innocent.\n<\/p>\n
A domestic enquiry was held against him and three witnesses were  examined.
\nRespondent No. I did not adduce any evidence nor he examined himself. On
\nthe basis of the evidence recorded in the domestic enquiry by a report made
\nfinding him guilty of charges against him, on January’ 27, 1976 respondent
\nno. I was asked to show cause as to why an appropriate punishment should
\nnot be imposed upon him and he was heard in the matter. The Regional
\nManager thereafter communicated to the respondent No. I the decision to
\ndismiss him. On dismissal being made an industrial dispute was raised which
\nwas referred to the Central Industrial Tribunal (hereinafter referred to as
\n‘the Tribunal’). The Presiding Officer held that the domestic enquiry
\nconducted was just, fair and proper. However, on examination of the
\nmaterial on record the Presiding officer came to the conclusion that the
\nfinding of guilt against the first respondent was not just on the evidence
\non record and, therefore, he set aside the same. This award was challenged
\nby a writ petition which was allowed by learned single Judge of the High
\nCourt and the award given by the Presiding Officer was quashed. On a
\nfurther appeal the Division Bench of the High Court held that the learned
\nsingle Judge could not have interfered with the award made by the Tribunal
\nand set aside the same and restored the award made by the Tribunal. Hence
\nthis appeal by special leave.\n<\/p>\n
The Tribunal having held that the domestic enquiry was fair and valid the
\nscope of interference was very limited. This Court in Workmen of Messrs.
\nFirestone Tvre & Rubber Company of India (P) Ltd. v. Management & Ors<\/a>.,
\n[1973] 3 SCR 587, stated the law as follows.\n<\/p>\n
“(1) The right to take disciplinary action and to decide upon the quantum
\nof punishment are mainly managerial functions, but if a dispute is referred
\nto a Tribunal, the latter has power to see if action of (he employer is
\njustified.\n<\/p>\n
(2) Before imposing the punishment, an employer is expected to conduct a
\nproper enquiry in accordance with the provision of the Standing Orders,
\nif applicable, and principles of natural justice. The enquiry should not be
\nan empty formality.\n<\/p>\n
(3)  When a proper enquiry has been held by an employer, and the finding of
\nmisconduct is a plausible conclusion flowing from the evidence adduced at
\nthe said enquiry, the Tribunal has no jurisdiction to sit in judgment over
\nthe decision of the employer as an appellate body. The interference with
\nthe decision of the employer will be justified only when the findings
\narrived at in the enquiry are perverse or the management is guilty of
\nvictimisation, unfair labour practice or  mala fides.\n<\/p>\n
(4) Even if no enquiry has been held by an employer or if the enquiry held
\nby him is found to be defective, the Tribunal in order to satisfy itself
\nabout the legality and validity of the order, has to give an opportunity to
\nthe employer and the employee to adduce evidence before it. It is open to
\nthe employer to adduce evidence for the first time justifying his action;
\nand it is open to the employee to adduce evidence contra.\n<\/p>\n
(5)  The effect of an employer not holding an enquiry is that the Tribunal
\nwould not have to consider only whether there was a prima facie case. On
\nthe other hand, the issue about the merits of the impugned order of
\ndismissal or discharge is at large before the Tribunal, and the latter, on
\nthe evidence adduced before it, has to decide for itself whether the
\nmisconduct alleged is proved. In such cases, the point about the exercise
\nof managerial functions does not arise at all. A case of defective enquiry
\nstands on the same footing as no enquiry.\n<\/p>\n
 (6)  The Tribunal gets jurisdiction to consider the evidence placed before
\n it for the first time in justification of the action taken only if no
\n enquiry has been held or after the enquiry conducted by an employer is
\n found to be defective.\n<\/p>\n
 (7) It has never been recognised that the Tribunal should straightaway,
\n without anything more, direct reinstatement of a dismissed or discharged
\n employee, once it is found that no domestic enquiry has been held or the
\n said enquiry is found to be defective.\n<\/p>\n
 (8)  An employer, who wants to avail himself of the opportunity of
\n adducing evidence for the first time before the Tribunal to justify his
\n action, should ask for it at the appropriate stage. If such an opportunity
\n is asked for, the Tribunal has no power to refuse. The giving of an
\n opportunity to an employer to adduce evidence for the first time before
\n the Tribunal is in the interest of both the management and the employee
\n and to enable the Tribunal itself to be satisfied about the alleged
\n misconduct.\n<\/p>\n
 (9) Once the misconduct is proved either in the enquiry conducted by an
\n employer or by the evidence placed before a Tribunal for the first time,
\n punishment imposed cannot be interfered with by the Tribunal except in
\n cases where the punishment is so harsh as to suggest  victimisation.\n<\/p>\n
 (10) In a particular case, after setting aside the order of dismissal,
\n whether a workman should be reinstated or paid compensation is, as held by
\n this Court in The Management of Panitole Tea Estate v. The Workmen<\/a>, [1971]
\n 1 SCR 742, within the judicial discretion of a Labour Court or Tribunal.
\n The above was the law as laid down by this Court as on 15.12.1971
\n applicable to all industrial adjudication arising out of orders of
\n dismissal or discharge.”\n<\/p>\n
Prior to the insertion of Section 11-A where a proper domestic enquiry had
\nbeen held before the passing of the order of punishment, the Tribunal had
\nno power to interfere with its findings on the misconduct recorded in the
\ndomestic enquiry unless it was vitiated by one or other infirmities pointed
\nout in Indian Iron & Steel Co Ltd. & Anr. v. Their Workmen<\/a>, [1958] SCR 667,
\ncase. The conduct of the disciplinary proceedings and imposition of the
\npunishment were all considered to be managerial functions with which the
\nTribunal had no power to interfere unless the findings were perverse or the
\npunishment was so harsh as to lead to an inference of victimisation or
\nunfair labour practice. Now, the position is different. In the course of
\nadjudication proceedings if the Tribunal is satisfied that the order of
\ndischarge or dismissal was not justified, it can reappraise the evidence
\nadduced in the domestic enquiry and satisfy itself whether the evidence
\nrelied upon by the employer establishes the misconduct alleged against the
\nworkman. The criticism advanced against the award of the Tribunal is that
\nevidence of three witnesses recorded at enquiry being sufficient to record
\nthe guilt of respondent No. 1, that evidence has been ignored and
\nirrelevant considerations such as non-examination of complainant Smt. Parul
\nRani Chowdhury, non-production of money and non-availability of other
\nevidence not on record is taken note of and, therefore, its award is
\nvitiated. The Division Bench too fell in the same error, it is contended.\n<\/p>\n
If we look at the evidence adduced in the present case, it is given by
\nthree witnesses who are the officers of the appellant-Bank – (i) Shri A.R.
\nDutt, the Branch Manager, (ii) Shri S.K. Mitra, Head Clerk and (iii) the
\npresent Bank Manager. The evidence of Shri A.R. Dutt is that on the date of
\noccurrence a lady depositor produced two pay-in-slip consisting of draft
\napplication forms and a saving bank deposit form, each for Rs. 1,000 only
\nplus Bank’s commission for draft application form which were passed by the
\nAccounts clerk for deposit in cash department. The amount was received by
\nthe first respondent’ who Was acting as Head Cashier. The lady customer did
\nnot produce the savings bank pay-in-slip at the cash counter but delivered
\nRs. 3,000 as told by her to him with two draft application forms. At about
\n1 p.m. the lady with her husband came to him and complained that she had
\ndeposited Rs. 3,000 and odd with the cashier but did not receive the
\nsavings Bank pay-in-slip nor the excess amount refunded to her by the
\nCashier. On the receipt of the information he personally went to the cash
\ndepartment and checked the cash but did not find any excess amount therein.
\nOn asking the first respondent about the amount received by him he
\ncompletely denied the same. He asked the Accountant to check the cash in
\nthe strong room and searched the Cashier concerned whether he has any cash
\nof Rs. 1,000 with him. There was no excess cash found in the strong room.
\nWhen at about 4.30 p.m. he asked the Accountant to search the Cashier,
\nrespondent No. 1, the Accountant then started checking him, he personally
\nwent out of room and saw the first respondent throwing the bundles of notes
\nby the side of the wall in the accounts department, the possession of which
\nwas taken by him and he questioned respondent No. 1 about the same.
\nRespondent No. 1 told him that he had put the money in his socks. On next
\nMonday he took a statement in writing duly signed by the first respondent
\nand reported the matter to the Head Office and thereafter respondent No. 1
\nwas put under suspension under instructions from Head Office. In the cross-
\nexamination nothing worthwhile was elicited to tilt the evidence tendered
\nin the examination-in-chief. This statement of Shri A.R. Dutt is
\ncorroborated by Shri S.K. Mitra who was Head Clerk at the relevant time.
\nAgain nothing worthwhile is elicited in his cross-examination except to
\nstate he belonged to S.B.S.S.A. The Tribunal, however, went on to say that
\neven though the first respondent had not examined himself nor was any
\ncross-examination directed at the witnesses to the question of his being a
\nvictim of conspiracy by the employees of the appellant-Bank who are members
\nof another rival Union to which he belonged and placed heavy reliance on
\nnon-examination of complainant, non-production of money, non-production of
\nso-called confessional statements and non-production of any evidence which
\nmay have been available. But as far as the evidence tendered by the two
\nwitnesses is concerned who actually saw the incident having taken place in
\nthe manner referred to earlier, the charge of misconduct against the first
\nrespondent stood proved to the hilt and we fail to appreciate as to how the
\nTribunal could have taken any other view.\n<\/p>\n
A customer of the Bank need not be involved in a domestic enquiry conducted
\nas such a course would not be conducive to proper Banker customer
\nrelationship and, therefore, would not be in the interest of the Bank.
\nFurther, when money was secured a prudent banker would deposit the same  in
\nthe account of the customer complaining of loss of money and, therefore,
\nnon-production of money also would not be of much materiality. When in the
\ncourse of the domestic enquiry no reliance was placed on the so-called
\nconfessional statement made by the first respondent, then non-production of
\nthe same is also of no significance. Thus, in our opinion, these
\ncircumstances are irrelevant and the Tribunal could not have placed
\nreliance on the same to reach the conclusion it did and, therefore, the
\nlearned single Judge was justified in interfering with the same. In the
\nwrit appeal the learned Judges on the Division Bench reiterated the view
\nexpressed by the Tribunal which we have found to be fallacious.\n<\/p>\n
At this stage, it is necessary to notice one argument that was urged on
\nbehalf of the first respondent, namely, that in the course of the order
\ndismissing the first respondent from service it is noticed as follows :\n<\/p>\n
“In summing up after going through the issue raised by Shri Banerjee in
\ndetail, I am of opinion that a domestic enquiry like ours does not give any
\nscope for producing all evidences whether having direct bearing in the case
\nor not as is being done in a Court.”\n<\/p>\n
It is submitted that even if evidence is withheld, the conclusion of the
\ninquiry officer would be correct is a perverse approach. We do not think
\nso. What is stated therein is that when sufficient evidence was produced to
\nconclude one way or the other, the evidence not produced will not be of any
\nsignificance unless there was such evidence which was withheld would have
\ntilted the evidence adduced in the course of domestic enquiry. No such
\nevidence is forthcoming in this case. Therefore, this argument deserves to
\nbe rejected.\n<\/p>\n
For the foregoing reasons, we have no hesitation in setting aside the order
\nmade by the Division Bench of the High Court and restore that of the
\nlearned single Judge.\n<\/p>\n
For the aforesaid reasons, this appeal is allowed as stated above.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Bank Of India vs Tarun Kumar Banerjee And Ors on 19 September, 2000 Bench: S. Rajendra Babu, D.P. Mohapatra CASE NO.: Appeal (civil) 3151 of 1997 PETITIONER: STATE BANK OF INDIA RESPONDENT: TARUN KUMAR BANERJEE AND ORS. DATE OF JUDGMENT: 19\/09\/2000 BENCH: S. RAJENDRA BABU & D.P. MOHAPATRA JUDGMENT: JUDGMENT […]<\/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":[30],"tags":[],"class_list":["post-263002","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Bank Of India vs Tarun Kumar Banerjee And Ors on 19 September, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-bank-of-india-vs-tarun-kumar-banerjee-and-ors-on-19-september-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Bank Of India vs Tarun Kumar Banerjee And Ors on 19 September, 2000 - 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