JUDGMENT D.P. Singh, J.
1. Pleadings are complete and the counsel for the parties agree that the petition may be finally disposed off under the rules of the court.
2. Heard learned counsel for the parties.
3. This petition is directed against an order of the Central Government Industrial Tribunal dated 21.7.1997 accepting the reference of the workman and directing his reinstatement together with 374th back wages.
4. The respondent workman was a Cashier in the pallia. Branch of the petitioner Bank when allegations of financial misappropriation were leveled against him and a charge sheet dated 20.6.1977 was issued. After holding an enquiry the services of the respondent workman were 1 dispensed with which gave rise to a reference under Section 10 of the Industrial Disputes Act. The reference was registered as industrial dispute No. 21 of 1996 by the Central Government Industrial Tribunal, Kanpur. After exchange of pleadings the Tribunal framed a preliminary issue with regard to fairness of the enquiry and by order dated 21.1.1997 it held that the enquiry was vitiated and as such it allowed the parties to lead evidence and by the impugned award the workman has been reinstated with 3/4th back wages.
5. Learned counsel for the petitioner has urged that the Tribunal had erred in law by discarding the two documents Ex. M-1 and M-2 on untenable grounds. She has further urged that charge No. 4 which was found to be proved by the Tribunal was sufficient to justify the termination of the workman.
6. The case of the petitioner before the Tribunal was that while he was working as Cashier in the aforesaid Branch of the petitioner Bank he had fraudulently withdrawn Rs. 8100/- on different dates from the savings Bank account of a customer and destroyed the withdrawal vouchers and further he made entries in the ledger account without being authorized and also interpolated the entries in the pass book of a customer. The following charges were framed against him vide charge sheet dated 21.6.1977:
"You are hereby required to show cause as to why disciplinary action should not be taken against you on any one or more of the following charges: -
7. Before the Tribunal the management relied upon a written statement of all the employees of the Branch dated 21.6.1976 addressed to the Branch Manager admitting his guilt and seeking forgiveness with promise to refund the amount after arranging for the money. It also relied upon a confession letter written by the workman and addressed to the Branch Manager dated 28.6.1976 and these documents were marked as Exhb. M-l and M-2 respectively. To prove the documents it examined Shri Raj Narayan Mishra, Deena Nath Misra, Mukteshwar Pandey and Vijay Pratap Singh. All of them stated that the workman had admitted his misconduct before all the employees of the Branch. In the cross examination nothing worthwhile was found so far as the authenticity of the two documents are concerned. It would be relevant to quote the wordings of the joint statement of the employees which is extracted hereinbelow:
"Shri Krishan Kumar Srivastava, Cashier State Bank of India, Ballia City ne apne dwara galat kiye gaye karyon ko hum sabhi karamchariyon ke samaksh rote huye sweekar kiya aur yeh bhi sweekar kiya ki isme maine kisi anya karamchari se kisi prakar ka sahyog nahin liya hai. Jo four thousand five hundred rupiya ki dinaak 28.7.1975 ko savings bank ledger No. 13 ke account No. 1117 mein posting hai. Veh mere dawara hi ki gayi hai. Maine hi sab rupiyaa eight thousand one hundred liya hai aur teeno dino ka sab savings Bank voucher bhi swayam nasht kar diya hai. Main apne is ghrinit karya ke liye sharminda hoon aur sab ke samne kshama mangta hoon. Main eight thousand one hundred rupiyaa kisi prakar prabandh karke de doonga. Mujhe kuch samay diya jaye. Abhi yahan se two thousand rupiya ka prabandh kiya hoon. Veh miljayega aur maine two thousand nine hundred rupiyaa ki gehna apni wife ke liye kharida tha use girvi rakh kar ya bechkar de doonga. Meri behan ka Allahabad City post office mein khata hai. J/s se two thousand rupiyaa mil jayega. Veh bhi de doonga. Baki rakam ke liye prayatansheel hoon aur sheeghra hi prabandh karke pura rupiyaa vapas kar doonga. Ab aap log kirpayaa men naukri bacha lain.
Sathan- State Bank of India, Ballia City.
9. In the statement made by the workman before the Tribunal he has denied his confession before the employees of the Branch and so far as the confessional letter addressed to the Branch Manager is concerned, he has stated that he was made to sign blank papers under duress. The Tribunal refused to believe the joint statement of the employees of the Branch on the grounds that it did not bear the signature of the workman and the bald denial of the workman. The reason given for disbelieving the document is palpably perverse. The document M-l is not a confessional statement which was required to be signed by the workman. It only shows that the workman had made the statement before all the employees of the Branch which was reduced in writing by them and given to the Branch Manager under their signatures. The workman admits that there was no animosity between him and the other employees of the Branch but he does not give any plausible reason for them to have recorded the statement and submitted it to the Branch Manager except that it was done at the behest of the Branch Manager. The confessional statement, Ex. M-2 has been disbelieved on the ground that there was animosity between him and the Branch Manager. The two documents were also disbelieved on the ground that they were not made part of the criminal investigation papers wherein a final report had been submitted. It is apparent from the record that a first information report of the incident was also lodged which resulted in a final report due to lack of evidence. The labour court has held that if the two documents were in existence at the time of filing of the papers before the court in the final report, there is no reason why they did not accompany it. Thus it held that the documents were antidated. The Branch Manager and other witnesses of the management have stated that the documents were shown to the Investigating Officer but, for reasons best known to him, he did not act upon the two documents. The workman has not produced or examined the Investigating Officer to contradict it but the Tribunal concludes that this was sufficient together with denial of the workman to disbelieve it. In my opinion, this reasoning is also palpably perverse. It was not within the domain of the management to have forced the Investigating Officer to take the two documents on record. Even otherwise, in criminal law, such confession is not admissible in evidence as the admission was only extra judicial confession not made before a Magistrate. Be it so, once a positive statement of producing the documents before the Investigating Officer was made by the management, unless the statement was discredited by leading the evidence of the Investigating Officer no such conclusion could have been drawn by the Tribunal. Such admission is a good piece of evidence in a domestic enquiry specially when the entire staff of the Branch, without any plausible reason, has stated that the workman had admitted his guilt and sought forgiveness with the promise of making good the loss suffered by the Bank by arranging for the money. In my opinion, this conclusion of the labour court of disbelieving the two documents is conjectural and is neither based on any credible nor actionable evidence and as such is perverse and no prudent man would have reached such a conclusion on the basis of the evidence on record.
10. Learned counsel for the workman has urged that the Branch Manager had animus against the workman because he had complained against his style of functioning to the Union and this is why he has been framed. This vague stand has only one specific allegation and that is an alleged letter of 1973 sent by the workman to the Secretary of the Union. The nature of the complaint is trivial and there is nothing on record to show whether any action was initiated or contemplated on the basis of the said complaint or whether the complaint was forwarded to the Branch Manager and whether it was disclosed to him at any time prior to the incident. Further, the alleged complaint was made about four years before the disciplinary proceedings were initiated and is too remote to be taken into account. Assuming there was some complaint, it would not ipso facto discredit the statement of other employees of the Branch. Thus, the reasoning given by the workman and the Tribunal cannot be accepted.
11. However, learned counsel for the workman has, with some vehemence, urged, that this court sitting under Article 226 of the Constitution should not enter into the factual controversy as to whether the documents were rightly rejected or not because the labour court has given plausible reasons for it and even if another view is possible, the writ court would not be justified in substituting its own view for that of the labour court. In support of his contention he has relied upon the decision of the Apex Court in the case of Sadhu Ram v. Delhi Transport Corporation, 1983 (47) FLR 326. In this case the labour court had recorded findings of fact that the Union had raised the demand with the management in respect to the termination of the workman and on the basis of evidence on record it held that the termination of the workman was mala fide and colourable exercise of power. The High Court delved into the factual aspect of the controversy and held that no demand had been raised by the Union and thus there was no industrial dispute. It is in these circumstances the Apex Court held that though the jurisdiction under Article 226 is wide but it has to be exercised with circumspection and the High Court could not constitute itself into an appellate court to resolve such disputes. He has then relied upon another decision of the Apex Court in the case of Indian Overseas Bank v. I.O.B. Staff Canteen Workers Union and Anr., AIR (2000) SC 1508. The dispute in the aforesaid case related to the status and relationship of workers in a canteen run by the Bank management and as to whether they were employees of the Bank. The Tribunal found that the canteen was run in the premises of the Bank for about one and a half decades and the canteen was for the exclusive use of the staff and the Bank also regulated the working hours and provided infrastructure like furniture, utensils, etc., and the wages were also being paid from the funds provided by the Bank, and therefore it held them to be employees of the Bank. A learned Single Judge undertook the exercise of re-appreciating the evidence and drawing conclusions on pure questions of fact, set aside the award. In a intra court appeal the Division Bench quashed the order of the learned Single Judge holding that it was not open for a writ court to re-appreciate facts as an appellate court ignoring the vital aspects of the case. In these circumstances, the Apex Court on being approached by the Bank, held that the Division Bench was justified in setting aside the order because the learned Single Judge could not set aside the award of the Tribunal for the mere reason that it was not based on sufficient or credible evidence. In both the decisions the facts were entirely different. No doubt, while exercising discretionary power under Article 226, the court normally, cannot assume the role of an appellate court or re-appreciate the evidence on record, but in the present case, the Tribunal has refused to consider the effect of the documents on grounds which did not exist. Therefore, the argument cannot be sustained.
12. The Tribunal has found that though the fourth charge stood proved against the workman but it was result of inexperience and as it did not cause any financial harm to the Bank, it held that it was not sufficient for awarding the extreme penalty of dismissal. The fact that the workman was the Cashier of the Branch and had indulged in several illegal entries in the records it was sufficient enough for the Bank to have lost trust in the workman. It is a public sector Bank and if such illegal interpolations are allowed, it would have a cascading effect which would reflect on the functioning of the Bank. Had it been another organization, such misconduct could have been condoned, but in a Bank where trust and confidence upon the employees is of paramount consideration, such action should be dealt with a iron hand to deter other employees from indulging in such actions. The Courts have time and again held, especially in cases relating to Banks, that where the trust of the organization is shaken, the Tribunal or the Labour Court should not interfere with the punishment awarded. The Apex Court in a recent decision in Damoh Panna Sagar Rural Regional Bank and Ors. v. Munna Lal Jain, 2005 (104) FLR 291 while dealing with illegal withdrawal by an employee of a Bank, after considering several judgments has held to the following effect in paragraph 14:
"A Bank Officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank Officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct---------"
13. Applying the aforesaid principles to the facts of the present case, it is apparent that the workman was liable to be dismissed. even on the basis of the 4th charge, which the Tribunal found to be proved.
14. When this petition was filed an interim order staying the payment of backwages was passed on 21.11.1997 but the Bank was directed to pay current wages irrespective of the fact whether the Bank takes work or not. The court has been informed at the Bar that current wages are being paid but no work is being taken. Considering the fact that the workman has already been paid by the Bank on the strength of the interim order and he would be attaining the age of superannuation in a couple of years, the payments already made may not be recovered from him.
15. For the reasons given above, this petition succeeds and is allowed and the impugned award dated 21.7.1997 is hereby quashed but subject to the above observation. No order as to costs.