The instant writ petition was filed challenging the award passed by the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Kanpur, (hereinafter referred to as 'the Tribunal') dated 21.2.2013.
The petitioner before this Court was initially appointed as a clerk-cum-cashier with Bharat Oversees Bank (hereinafter referred to as ''the respondent Bank') with effect from 14.9.1981. On 22.3.1995, he received a statement of charge which had alleged that there were 7 charges against him and that he had to reply against them within 15 days. The petitioner submitted his reply and an enquiry was undertaken. On 28.2.1996, a show cause notice alongwith the enquiry report was served upon the petitioner and to the show cause notice, the petitioner replied. However, when on 11.5.1996, final order imposing a penalty of dismissal from service was imposed upon the petitioner, he availed the remedy of appeal which was also dismissed. Aggrieved thereof, the petitioner raised an Industrial Dispute which was referred for adjudication to the Tribunal on 30.10.2003. When this reference was answered against the petitioner, the instant writ petition was filed.
The counsel for the petitioner made the following submissions:-
I. The Tribunal had framed a preliminary issue and had decided the same on 15.11.2011 in which it was ultimately held that the departmental enquiry which was conducted by the respondent Bank was improper and that it was held in violation of the principles of natural justice. Thereafter, the Tribunal had given an opportunity to the parties to lead evidence and the respondent Bank though led evidence on the charges no.4 and 5 did not lead any evidence with regard to the other charges and, therefore, the Labour Court could not have given any finding with regard to charges no. 1, 2, 3, 6 and 7 and, therefore, any findings which had been arrived at by the Tribunal with regard to these charges were to be set aside.
II. While dealing with charges no. 4 and 5 the learned counsel for the petitioner submitted that the complaint as was made by the complainant Mrs. Meera Srivastava on 8.10.1994 was a motivated one and was not dealt with by the Tribunal properly. Further, learned counsel submitted that when the charges were based on the fact that the petitioner had committed forgery and had defrauded the complainant Smt. Meera Srivastava, then they should have been proved to the hilt. The responsibility cast on the Tribunal while dealing with fraud was exactly that of a criminal court dealing with a case of fraud. In this regard learned counsel relied upon a decision reported in AIR 1941 Privy Council 93 (A.L.N Narayanan Chettyar and Another vs. Official Assignee, High Court Rangoon and Another). He read out a certain paragraph of this decision and so the same are being reproduced here as under:-
"There are other difficulties in the plaintiffs' way which have been sufficiently considered in the judgements of the High court. Fraud of this nature, like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt. The High Court were justified in holding that the trial Judge's finding was largely based on suspicion and conjecture. There were documents unaccounted for which would conclusively prove the issue one way or the other. In their absence the High Court's decision on the merits was right and cannot be disturbed. Their Lordships will humbly advise His Majesty that the appeal be dismissed. The appellants must pay the costs of the appeal."
Learned counsel further submitted that fraud is an essential ingredient of forgery and in this context he relied upon 1996 (6) SCC 550 (Indian Bank vs. satyam Fibres (India) Pvt. Ltd. Since learned counsel read out certain paragraphs, the same are being reproduced here as under:-
"28. From the above, it would be seen that fraud is an essential ingredient of forgery.
29. Forgery under the Indian Penal Code is an offence which has been defined in Section 463, while Section 464 deals with the making of a false document. Section 465 prescribes punishment for forgery. "Forged document" is defined in Section 470 while Section 471 deals with the crime of using as genuine, the forged document.
30. Forgery and Fraud are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts.
31. The Privy Council in Satish Chandra Chatterjee vs. Kumar Satish Kantha Roy & Ors. Air 1923 PC 73, laid down as under:
"Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, be proved by those who made them-- proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so many a clever and dexterous knave would escape.
32. The above principle will apply not only to court of law but also to statutory tribunals which, like the Commission, are conferred power to record evidence by applying certain provisions of the Code of Civil Procedure including the power to enforce attendance of the witnesses and are also given the power to receive evidence on affidavits. The Commission under the Consumer Protection Act, 1986 decides the dispute by following the procedure indicated in Section 22 read with Section 13(iv) and (v) of the Act."
For a proper adjudication charges as were levelled against the petitioner may be looked into. They, therefore, are being reproduced here as under:-
Charge No. 1. On 28.9.'94 you went to the clearing house without collecting the outward clearing cheques from Mr. T.K. Sridhar officer in violation of the specific instructions of the branch manager Mr. R.N. Saxena and thus you committed an act of willful insubordination which is a gross misconduct under para 19.5(e) of the Bipartite Settlement dated 19.10.'66.
Charge No. 2. You refused to include the outward clearing cheques for Rs. 2,21,161.47 for the day's clearing on 28.9.'94 when Mr. A.K. Chakraborthy and Mr. S.N. Pandey Officer handed over the said cheques at the clearing house before 10.30a.m., despite the specific instructions given by them, which is an act of wilful insubordination and is a gross misconduct under para 19.5(e) of the Bipartite Settlement dated 19.10.'66.
Charge No. 3. By refusing to include the outward clearing cheques for Rs. 2,21,161.47 for the day's clearing on 28.9.1994, you caused inconvenience and hardship to the Bank's customers concerned and thus acted in a manner prejudicial to the interests of the Bank, which is a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.'66.
Charge No. 4. You fraudulently and dishonestly opened a savings bank account No. 7882 in the joint names of yourself and your sister-in-law Mrs. Meera Srivastava by forging the signature of the later which is an act prejudicial to the interests of the Bank and a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.'66.
Charge No. 5. You fraudulently and dishonestly withdrew from the joint account No. 7882 a sum of Rs. 20,000/- (being the proceeds of the demand draft issued in favour of Mrs. Meera Srivastava and credited into the account) in two installments of Rs. 7,000/- and Rs. 13,000/- on 20.5.1994 and 13.6.1994 respectively by forging the signature of Mrs. Meera Srivastava in the withdrawal slip which is an act prejudicial to the interests of the Bank and a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.1966.
Charge No. 6. By gheraoing the branch manager Mr. R.N. Saxena alongwith a few outsiders and staff members, by threatening and abusing the branch manager in unparliamentary language and by forcibly taking the copy of the suspension order after searching the branch manager's brief case, table drawer and his pocket on 9.11.'94, you behaved in a riotous, disorderly and indecent manner which is a gross misconduct under para 19.5(c) of the Bipartite Settlement dated 19.10.'66.
Charge No.7. By erasing(i) your own acknowledgment contained in the duplicate copy of the suspension order dated 5.11.'94; ii) the narration made against you name in the attendance register through application of while fluid, you tampered with the records of the branch and thus acted in a manner prejudicial to the interests of the Bank which is a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.'66.) A bare perusal of charges no. 4 & 5 makes it clear that the petitioner's act of forgery and the consequential fraud on the complainant were to be investigated into. Charges 1, 2, 3, 6 and 7, learned counsel submitted, though were not connected with forgery were such charges which required the Tribunal and the delinquent to go through the rigours of a Trial which are a must in just any case dealing with insubordination. When these charges were not inquired into and the earlier departmental proceeding was found to be violative of principles of natural justice, then no finding vis-a-vis charges nos. 1, 2, 3, 6 and 7 could have been arrived at.
III. In the complaint, which Mrs. Meera Srivastava had made, the allegation was that a sum of Rs. 20,000/- which she had received as an interim relief after the death of her husband was misappropriated by the petitioner as he had got a Joint Account of hers alongwith himself opened and had deposited the draft in that account. The complainant did not stop there. She further complained that by forging her signatures the amount of Rs. 20,000/- was also withdrawn by the petitioner. Learned counsel for the petitioner submitted that his submission before the Tribunal that the complaint was a motivated one and that the signatures of Mrs. Meera Srivastava be got compared by an expert had fallen on deaf ears and the Tribunal only on the basis of a subjective assessment concluded that the signatures of Mrs. Meera Srivastava had been forged by the petitioner.
Learned counsel submitted that a bare reading of the complaint made it evident that Mrs. Meera Srivastava was not only alleging that the Bank draft of Rs. 20,000/- was misappropriated by the petitioner but she was also alleging that he had opened an account by forging her signatures in the Bank where the petitioner was working and she had also alleged that the petitioner had withdrawn that amount from the Bank. This, the petitioner's counsel submitted, clearly went to show that Mrs. Meera Srivastava was always knowing about the fact that an account was opened in a particular Bank and that the amount was withdrawn from it. Learned counsel submitted that it, therefore, meant that the complainant Mrs. Meera Srivastava had herself got the account opened and had herself got the money withdrawn and only to implicate the petitioner had later on filed the complaint. Learned counsel submitted that had Mrs. Meera not got the account opened herself then she would not have been enable to complain specifically that an account was opened by forging her signatures and that too in a specific bank and that the amount of Rs. 20,000/- was withdrawn by forging her own signatures. Learned counsel submitted that had the petitioner wanted to withdraw money then he could have done so by his own signatures as the account was a joint account and could be operated by either of the account holders.
IV. Since the petitioner was confident that there was no forgery done he had, before the enquiry office who was inquiring for the bank and also before the Tribunal, requested that the signatures on the account opening form and on the withdrawal forms be got compared by an expert with an admitted signature of the complainant Mrs. Meera Srivastava.
V. Learned counsel for the petitioner further submitted that since this request of the petitioner was not accepted the whole enquiry was vitiated and, therefore, the same may be set aside as it was based on no evidence whatsoever.
Learned counsel for the petitioner has submitted that from the provisions of the Evidence Act, to be found in Sections 45 and 73, the comparison of the signatures of the complainant Mrs. Meera Srivastava had to be done with some admitted signature of her's by an expert.
Since the comparison was not done, learned counsel submits that the enquiry and the award passed by the Tribunal became vitiated in law and, therefore, they cannot be sustained in the eyes of law.
Learned counsel for the Bank, in reply, however, submitted that this Court in its writ jurisdiction may not interfere with the findings of fact as had been arrived at by the Tribunal. The petitioner, he submitted, when had demanded for the comparison of the admitted signatures of the complainant and when none existed then the petitioner cannot now take any advantage of the fact that the comparison of the forged signature with some admitted signatures was not done. Learned counsel further, relying on AIR 1997 SC 3255 (Ajit Savant Majagavi v. State of Karnataka) submitted that it is only a matter of extreme caution and judicial sobriety that the court should not take upon itself the function of an expert but if circumstance warrant then there was no harm if the Tribunal acted as an expert. Since, the learned counsel read out paragraphs 37 and 38 of the above decision, they are being reproduced here as under:
"37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.
38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. (See : State (Delhi Administration) vs. Pali Ram, AIR 1979 SC 14 = (1979) 2 SCC 158) "
Further, the learned counsel for the Bank has submitted that when all the evidence was present on the record of the case with regard to the charges no. 1, 2, 3, 6 and 7 before the Tribunal then there was no requirement of taking any further evidence at all. He has also submitted that the complaint as was submitted by Ms. Meera Srivastava was a genuine one and no motive could be alleged.
Having heard the learned counsel for the parties, I am of the view that the Tribunal erred when it decided the case without getting the signatures of Mrs. Meera Srivastava compared with her admitted signatures by an expert. From the perusal of the record, it is evident that when the Tribunal had allowed the parties to lead their evidence then the petitioner had brought to the notice of the Tribunal that on 6.4.1995 he had asked for a comparison of the signatures on the Account Opening Form and upon the Withdrawal Form with the admitted signatures of Mrs. Meera Srivastava by an expert. He had, before the Tribunal, by means of an affidavit which was exhibited as Exhibit-6, placed the application dated 6.4.1995 on the record, yet the Tribunal had, against all settled principles of law, declined to get the signatures of Mrs. Meera Srivastava examined by an expert with the signatures of hers which were admitted to the parties. Had this exercise been undertaken by the Tribunal only then a correct conclusion could have been arrived at as to whether the signatures on the "Account Opening Form" and on the "Withdrawal Form" had been forged by the petitioner or not. The Tribunal should have refrained from acting like an expert. Judicial propriety demanded that the services of an expert should have been hired for coming to a proper conclusion. When fraud was alleged the degree of investigation should have been of a standard which is resorted to by a Criminal Court. Slackness should have been shunned.
Further, I find that the Tribunal should have investigated as to how the complainant had got knowledge of the fact that the compensation cheque had been deposited by the petitioner fraudulently in his own Bank and he had opened a joint account and money was withdrawn from it by forging her signature. It could not be established by surmises and conjecture that the complainant could have known about the deeds of the petitioner from just anywhere.
Since no evidence was led with regard to the charges no. 1, 2, 3, 6 and 7 and the enquiry with regard to them had been also held to be vitiated on 15.9.2011, I hold that the findings which had been arrived at with regard to those charges cannot be sustained in the eyes of law.
Under such circumstances, the award dated 21.2.2013 is quashed. The matter is now remanded back to the Tribunal which shall, after allowing the parties to get the admitted signatures of Mrs. Meera Srivastava compared with the alleged forged signatures by an expert, come to a proper conclusion with regard to charges 4 and 5 alone. This exercise shall be completed within a period of two months from the presentation of a certified copy of this order.
The writ petition is allowed.
Order Date :- 31.5.2018 praveen.