IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY WRIT PETITION NO.44163/2011 (L-TER) BETWEEN:
SYNDICATE BANK A BANK CONSTITUTED UNDER THE CENTRAL ACT 5 OF 1970, HAVING ITS HEAD OFFICE AT MANIPAL REP. BY SRI.SUBRAMANI R THE DEPUTY GENERAL MANAGER SYNDICATE BANK, REGIONAL BANK UDUPI – 576 101 ... PETITIONER (BY SRI.K RADESH PRABHU, ADV.) AND:
SMT.MEENAKSHI R SHETTY PINTO COMPOUND, NO.3/9/46, NANTHOOR VIVEKANANDA ROAD, II CROSS MANGALORE – 575 005 ... RESPONDENT (BY SRI.K HANUMANTHARAYAPPA, ADV. C/R1) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE AWARD DATED 10.05.2011 IN C.R. NO.83 OF 2001 ON THE FILE OF THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL - CUM - LABOUR COURT, BANGALORE PRODUCED AS ANNEXURE - A.
THIS PETITION COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY AFTER HAVING HEARD AND RESERVED FOR ORDER ON 12.10.2018, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is filed by the petitioner challenging the award dated 10.5.2011 in C.R.No.83 of 2001 passed by the Central Government Industrial Tribunal-cum-Labour Court, Bangalore, hereinafter referred to as `the Tribunal’ allowing the reference and directing reinstatement of the respondent with back wages and consequential benefits, while directing payment of cost.
2. The brief facts of the case are that the respondent was working as a clerk at Kankanady Branch of the petitioner Bank from 5.8.1985till 20.6.1998, when she was relieved on transfer to the Regional Office, Belgaum. The petitioner bank served the respondent with a charge sheet dated 31.07.1998 alleging commission of misconduct by the respondent, while, she was performing the duty of cashier on 05.01.1998 and 12.01.1998. The charges leveled against the respondent was that she received a sum of Rs.5,492/- on 5.1.1998 from Sri Krishna Nayak towards water consumption charges pertaining to a building standing in the name of Mr.Abdul Rahaman T and for credit of the current account of Mangalore City Corporation. The respondent issued a counterfoil to the remitter duly initialed by her, but failed to account the said amount in the books of accounts of the petitioner bank. Later, the remitter approached the petitioner bank and made a grievance that the amount had not been remitted to the account of the Corporation of the City of Mangalore and hence, he had to pay amount of Rs.5,492/- along with interest and thus, a total sum of Rs.5,730/-. The said complainant was also enclosed with a copy of the customer portion’s of the said challan dated 5.1.1998 in support of the complaint.
3. On being questioned, the respondent confessed before the Scroll Officer of the petitioner bank that she has received the amount from Sri Krishna Nayak, but has not accounted the said amount in the books of the petitioner bank. The respondent undertook to reimburse the amount to Sri Krishna Nayak directly.
4. The second charge was that on 25.5.1998, the Manager, Nagori Vyavasaya Seva Sahakari Bank, Kankanady, Mangalore vide his complaint dated 25.5.1998 complained that on 12.01.1998, he deposited a sum of Rs.636/- at Kankanady Branch of the petitioner bank through one Sri Jagadish connected with the Sahakari Bank, being the water consumption charges covered bill No.190444 dated 15.12.1997 for being credited to the account of the Mangalore City Corporation and enclosed the photocopy of the counterfoil issued by the respondent, who was the cashier on that day bearing the seal of the petitioner bank `cash received’, but failed to credit the said amount to the account of Mangalore City Corporation. The said amount was claimed by the Corporation in the subsequent water consumption charges. On verification of the petitioner bank records, the respondent who was working as the Cashier on 12.1.1998, had not accounted for the same, but misappropriated the said amount and thus committed serious misconduct under clause No.19 of the Bi-Partite Settlement and is guilty of doing acts prejudicial to the interest of the petitioner bank within the meaning of Clause No.19.5(j) of the Bi-Partite Settlement.
5. The Enquiry Officer in the enquiry report recorded a finding that charges leveled against the respondent stood proved. The Disciplinary Authority issued a show cause notice dated 4.6.1999. The respondent submitted her written submissions dated 10.7.1999. The Disciplinary Authority after affording personal hearing to the respondent on 14.9.1999, passed an order dated 22.9.1999 and held that the respondent had committed acts prejudicial to the interest of petitioner bank and imposed a penalty of dismissal from service.
6. The respondent preferred appeal and the appellate authority – General Manager (P). The appellate authority afforded a personal hearing to the respondent on 5.11.1999 and thereafter passed an order dismissing the appeal and confirmed the order of disciplinary authority by the order dated 1.12.1999.
7. Thereafter at the instance of the respondent, the matter was referred to the Tribunal, which was numbered as C.R.No.83/2001. The Tribunal by its award dated 10.5.2011 held that findings of the Enquiry Officer in respect of the charges against the respondent are perverse and hence set aside the order of punishment and allowed the reference. Being aggrieved, the present writ petition is filed.
8. I have heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the impugned orders.
9. The learned counsel for the petitioner submitted that the Tribunal has assumed jurisdiction in itself to re-appreciate the evidence on record as if it is an appellate court. The Tribunal ignored vital admissions made by the respondent during the course of her evidence as per MEX-16. The Tribunal has treated the domestic enquiry as if it is a proceeding in criminal trial and applied wrong yardstick to the proceedings. The impugned award ignoring proceedings on preliminary issue and recording contra findings is a non-application of mind by the Tribunal. The Tribunal has ignored the circumstances that is, respondent was a cashier, respondent admitted tendering of amount by Sri Krishna Nayak, and affixing seal of the petitioner bank, One Sri Jagadish, tendered Rs.636/- on 12.1.1998 in cash at cash counter, which was received by the respondent as a cashier and acknowledged it by affixing seal of the petitioner bank. Both the amounts were not accounted in the books of petitioner Bank and the concerned parties paid the same to the Corporation of City of Mangalore. The respondent admitted the misappropriation and agreed to reimburse the amount to the respective remitters. The respondent in the enquiry coupled with evidence of the Bank’s staff, proved the misconduct of misappropriation by the respondent. The withdrawal of complaint by Sri Jagadish, did not dilute the misconduct on the part of the respondent. The doubt expressed by the Tribunal as to the endorsement issued by the Corporation has no basis. It is common knowledge that the Corporations function in peculiar way and issue bills in respect of previous periods at their own whims and fancies. The document MEX-3 bears the date as 15.12.1997 and was tendered for payment on 5.1.1998. The doubt expressed by the Tribunal has no bearing on the misconduct on the part of the respondent. The Tribunal ignored the fact that the Management had produced the entire scroll for the day and the case pleaded by the respondent did not fit in with the theory propounded.
10. On the other hand, the learned counsel for the respondent has supported the order passed by the Tribunal and prayed for dismissal of the writ petition.
11. The point that arises for consideration is, whether the Tribunal has acted illegally and with material irregularity in passing the order allowing the reference and setting aside the imposition of penalty as against the respondent? My finding would be in the affirmative for the following reasons.
12. MW-1 Sri P kV V Kamath, Deputy Chief Officer, Vigilance has deposed that he verified certified copies of identity attendance register of Kankanady Branch, copy of customer portion of water bill in the name of Sri Abdul Rahaman for Rs.5492/-, carbon copy of bank’s scroll for the collection account of water bill dated 5.1.1998, B-28 register page Nos.565, 566, 567, counterfoils/bankers portion of the slip bearing Nos.181141 for Rs.366, etc., and recorded statement of Sri A Shivananda Karkere, Assistant Manager of Kankanady Branch and found that respondent having collected the amount from Sri Krishna Naik pertaining to water bill, failed to account the same.
13. MW-2 & MW-3 are Sri B N Baliga, Manager of Kankanady Brancyh and Sri Shivananda Karkere, Assistant Manager of Kankanady Branch. According to MW-3 he was working as the Scroll Officer, where the respondent was working as cashier, that on 4.5.1998 a person came to him along with a Xerox copy of the water bill, Ex.M3 for Rs.5492/- and complained that he deposited the water bill and that it was bearing cash received seal of the bank and the initial of respondent. He verified the cash scroll of 5.1.1998 and as it was not reflecting in the bank books, after verification of the bank records, he took the person along with two other bank staff members to Father Muller’s Charitable Institution E.C and there he approached the respondent and showed the photo copy of the voucher, MEx.3 and she recognized the person who deposited the money and agreed having received the amount and also having affixed the cash received seal and putting her initial certifying the cash being received by her, but she had failed to account the same.
14. It is in the evidence of MW-1 that when he went to the building in question, he ascertained that Sri Krishna Nayak was the Secretary of the apartment’s Association and he was crediting amount to the bank but Sri Krishna Nayak refused to produce the original of the bill on which seal was affixed by the respondent putting her initial saying that as the cashier who received the amount has paid the amount in question and she would be in trouble, he shall not give his statement or produce the original as such his evidence/statement and the original of MEx.3 could not be secured or produced in the domestic enquiry.
15. Sri Jagadish, the other complainant was examined as MW-4 and his bill was marked as MEx.10. MW-4 was partly cross-examined and for further cross-examination he did not participate. He has stated in the cross-examination, it has come to his notice the amount of bill in question had been credited to the neighbouring building and that Hemant Kumar having returned the amount to him, there being no loss to his society, he withdrew the complaint filed on 24.9.1998.
16. The Tribunal has doubted the payment of money by Sri Krishna Nayak on the ground of some discrepancy in mentioning the handwritten endorsement `received on 20.12.1997’. It is on the basis that MEx.3 indicated meter being read on 31.1.1997 in respect of supply of water for the period 28.2.1996 to 31.1.1997 and long delay in receiving it on 20.12.1997. It is also the reason to disbelieve the said transaction that author of the bill was not examined. So far as the complaint of Sri Jagadish, it is disbelieved in view of his cross-examination in which he has stated that the bill amount had been credited to the neighbouring building of Door No.4-48 and that Hemant Kumar having returned the amount to him, he withdrew the complaint and thus the second charge stated to hold no water. The reasons as stated above on which the Tribunal sought to disbelieve the transactions are not sustainable in view of the materials available on record. The evidence of MW-1 to MW-3 clearly prove that the respondent did receive the amount but failed to account the same. There is no reason to discredit the evidence of MW-1 who has stated that Sri Krishna Naik failed to produce the original bill saying that amount has been paid to him and if the original is given, the cashier would be in trouble. The evidence of MW-4 is that the amount was wrongly credited in respect of neighbouring building and amount was paid to him by Sri Hemant Kumar. If that is the case, nothing prevented him to participate in the further cross-examination and produce the said particulars to the Tribunal. On the contrary, MW-4 failed to participate in the further cross-examination. In a departmental enquiry what is required is preponderance of probability and not a proof beyond all reasonable doubt like a criminal case. It is not in dispute that respondent was cashier as on that dates in the petitioner bank. The counterfoil produced by Sri Krishna Naik did contain initial and the bank’s seal. It is a fact that the amount was not accounted by the respondent. It is not a ground to discard copy of the counterfoil on the sole basis that signature or seal is not legible. If has to be examined with the support of evidence of MW-1 to MW-3. The evidence of MW-1 to MW-3 shows receipt of the amount and failure on the part of the respondent to account the same. Therefore, nothing more was required to hold that the respondent has committed an act of misappropriation of the amounts. The Bank is a public trust where public faith is involved. The Tribunal has failed to properly assess the materials in proper perspective and has drawn incorrect conclusions. The Enquiry Officer has submitted a detailed report and the Disciplinary Authority and the appellate authority have passed a reasoned order to accept the same.
17. In the circumstances, I am of the view that impugned order passed by the Tribunal is liable to be quashed. Writ Petition is accordingly allowed. The impugned Award dated 10.5.2011 in C.R.No.83 of 2001 on the file of Central Government Industrial Tribunal-cum-Labour Court, Bangalore at Annexure-A is hereby quashed.
Sd/- JUDGE akd