Dismissed

Kishor Nayaran Vartak v. the Sangli Zilla Kamgar Co.Op. Bank Ltd. and 6 Ors.

Bombay HC11 Dec 2006WP/2973/2006

Case brief

AI extract

What is this about?

The petitioner, a cashier dismissed for fraud, approached the High Court in writ against the Industrial Court's order quashing his reinstatement. The High Court held that the Industrial Court was justified in relying on the workman's own admissions of misconduct and found no discrimination or basis for writ intervention.

What the court decided

AI extract

Kishor Nayaran Vartak Vs the Sangli Zilla Kamgar… — Service and Employment | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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O.O.C.J.

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WRIT PETITION NO. 2973 OF 2006

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Shri Kishor Narayan Vartak. ... Petitioner.

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V/s.

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M/s. The Sangli Zilla Kamgar Co-Op. Bank Ltd. & Ors. ... Respondents.

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Mr. V.P. Vaidya for the Petitioner.

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Mr. A.S. Peerzada i/b. Burhan V. Bukhari for the Respondents.

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CORAM : DR. D.Y.CHANDRACHUD,J.

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11TH DECEMBER, 2006.

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P.C. :

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1.		The Pet	itioner	was a cashie	r engage	d by th	e First
Respondent		which	is	a	Co-operat	ive	Bank.	A	charge-sheet
was	issued	to	the	Petitioner	on	20th	March	1989.	The
allegations	the	rein	were	that	while		working	as a	Cashier,
the	Petitio	ner ma	de	payments	of	a	total of	five	cheques
in	the	amount	of	Rs.79	,466/-	with	out the	cheques	bearing
the sig	nature	of	the	account	hol	der,	the	signature	of the
recipient	a	nd	in	violation	of	the	est	ablished	banking
procedures.		The	c	harge	was	that	the	Petitione	r was
guilty	of	dish	onesty	and	fraud	in	connection	with	the

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business	of	the employer, of	a habitual breach of	the
rules	of the	establishment and	of the commission of	an
act	subversive	of discipline or	good behaviour on	the
premises	of the	establishment. T	he charge was held	to be
established	in t	he disciplinary	enquiry that was	convened
by t	he Bank	and an order of	dismissal was passed.	The
Petitioner	challen	ged the order	of dismissal	in
proceedings	before	the Labour	Court under the	Bombay
Industrial	Relations	Act, 1946.	The Labour Court	held
that	the en	quiry was proper	but came to the	conclusion
that	the fin	dings were perverse.	Thereupon, the	Bank
availed	of an	opportunity to	lead evidence in sup	port of
the	charge of	misconduct. The	Labour Court allowed	the
application	and	passed an ord	er of reinstatement	with
full	backwages	with effect fro	m 1st September 1990	and
continuity	of servic	e. The order	of the Labour Co	urt was
challenged	by the	Bank in appeal.	By an order dat	ed 16th
September	2006	, the Industrial	Court allowed the	appeal.
The	Industrial	Court held that	the charge of	misconduct
stood	established;	that in	breach of the	established
procedures,	the	Petitioner as	a Cashier had paid	the
amounts	under	the five cheques	without the signature	of
the dra has a	wer and lso made	the passing off a reference	icer. The Industrial to the admissions o	Court f the

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workman himself during the course of his evidence which

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established his misconduct. In these circumstances, the order of the Labour Court was set aside.

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On behalf of the Petitioner, the order of the Industrial Court has been challenged on the grounds that :

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(i) The Bank had acted discriminatorily by letting

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off the Clerk and the Ledger Keeper both of whom were also involved in the act of misconduct;

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(ii) The account in question was of a Chairman of the Bank and at the worst, it can be assumed, that the Petitioner had acted under the pressure of his higher authorities including the Branch Manager who had passed the cheques;

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(iii) A Committee which was set up by the Bank had recommended that the employees concerned in the transaction, including the Petitioner in the petition should be reinstated; and

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(iv) It is not the case of the Bank that the erstwhile

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Chairman had not received the money which was paid by the

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Petitioner under the cheques.

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3.		W	hile cons	idering the	merits	of the su	bmiss	ions
which	ha	ve	been	urged	on	behalf	of	the		Petitioner,	it
would	at	the	outset	be	necess	ary	to	refer	to	the	evidence
of	the	w	orkman	himself.		This	beco	mes	ne	cessary	since
apart	from	any	thing	else,	the	Indus	trial	Cou	rt	was o	f the
view	that	the	admis	sions	which	cam	e	to	be	elicited	during
the	c	ourse		of	cro	ss-exam	inatio	n,	establ	ished	the
miscond	uct	of	the	work	man.	Du	ring	the	course	of	his

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cross-examination, the Petitioner made the following

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admissions :-

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" Witness	volunteers that at the time	of
encashment	of the cheques, the then chairman	was
present in	the chairman’s cabin. I myself	did
not make	any efforts to obtain the signature	of
the chairman	on the cheques. I did not mak	e any
attempt to	obtain the signature of chairman	on
the back side	of the cheque while making	payment.
The Opponent	bank sustained monetary loss	of
Rs.79,440/-	in the transaction in question.	The
procedure of	payment of cheque is common to	all
the customers.	It is true that the	routine
procedure	pertaining to encashment of cheque	was
not followed	in respect of cheques Ex.C-16	to
C-20. My	self and the branch manager were	given
charge sheet	pertaining to the transaction	of
Ex.C-16 to	C-20. S.B. Shinde was the	then
branch manager.	It is true that enquiry was	held
against the	then branch manager and his	services
were terminated	by the opponent a like me.	I

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issued letter to the opponent dated 27.2.1989 which is at Ex.19 in the enquiry proceedings. This letter bears my signature and signature of S.B. Shinde, S.S. Deshmukh, M.R. Mulik, V.M. Shirke. It is true that we admitted guilt and prayed for reinstatement in this letter."

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4.	The	Labou	r Court, it mus	t be not	ed too	k
cognizance	of	the	admissions	of	the	w	orkman	in	paragraph
17 of	its judg	ment.	Having	not	iced	the	admis	sions	of the
workman,	the	Labou	r Court	nonethel	ess	held	in	favour	of
the	workman	on	the ground	that	the	mana	gement	had	not
placed	any subs	tantive	material	on	the		record	or	material

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to establish its point of view. The finding of the

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labour Court was as follows :-

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" In	this case after		providing opportun	ity to	the
opponent	to lead evidence to prove the char	ges,
the oppon	ent examined only one witness i.	e.
Shri	T.B. Gunjal	and	thus in this	case,	the
opponents	, did not pl	ace	on record	any	new
material	or evidence		to substantiate	their	stand
point	and again o	ppone	nts are relying	on	the
evidence	already adduced	on	record. It	is	also
admitted	that patently		there is	no	habitual
breach of	banking rules and regulations on	the

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part of the applicant."

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5.		The Labo	ur Court	was	manifestly in e	rror in
holding	that	no	subst	antive	evidence	was	produc	ed by	the
management.		The	Ba	nk	after the	Labour	Court	had	found
that	the	findings	of	the	enquiry	was	perverse	availed	of
the oppo	rtunity	to	lead	evi	dence in	support	of	the	charge

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of	misconduct.		On b	ehalf	of	the	B	ank,	evide	nce	was
adduced	of Shri	T.B.	G	unjal.		The	Ba	nk	during	the	course
of	its	evidence	establi	shed	the	proced	ur	es	which		were
required	to	be	followed	before	a	cheque		was	paid	.	In
fact	there	was	no	dispute	a	bout	th	e	reported	pro	cedures.
The	Petitioner	had	himself	ad	mitted	that		he	had	not	made
any	attempt	to	obtain	the	sign	ature o	f	the	Chairm	an	on
the	cheques	and	that th	e c	heques	were		all	unsigned	.	The
Petitioner	had	ad	mitted	that	he	had		not	follow	ed	the
procedure	that	is	requ	ired	to	be foll	o	wed.	I	n	these
circumstan	ces,	the	In	dustrial		Cou	rt		was		entirely
justified	in	holdin	g that	the	L	abour	C	ourt	had	failed	to

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give adequate weight to the admissions of the workman

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himself which established the act of misconduct.

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6.		In s	o far as the question of discrimina	tion is
concern	ed,	from	the evidence of the	workman	as	has	been
noted		above,	it appears that the	Bank	had	also	proceeded
against	the	then	Branch Manager Shri	S.B.	Shi	nde	and the
services		of	the employee were	terminated	in	the	same
manner		as th	at of the petitioner.	The	Bank	ha	d also
proceed	ed	against	Shri S.B. Shinde	, Shri	S.S.		Deshmukh,
Shri	M.R.	Mul	ik and Shri B.M.	Shirke,	who	were	employed
as	Ledger	Keeper	and Senior Clerks.	In	fact,	the	workman

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himself referre	d to a letter dated 27th February	1989
(Exhibit 19)	by which, all these employees admitted	their
guilt, but	prayed for reinstatement. The Petitioner	was
a signatory	to the aforesaid letter wherein	the
Petitioner had	accepted and admitted his own	guilt.
Counsel appear	ing on behalf of the First R	espondent
stated before	the Court that against the order	of
termination,	the Branch Manager instituted a p	roceeding
under the	Bombay Industrial Relations Act, 1946 in	which
the Bank ha	s raised the preliminary objection with	regard
to the m	aintainability of the proceedings on the	ground
that the Bra	nch Manager is not a workman.	That
proceeding is	still pending. In so far as the	three
other employees	(who were Ledger Keeper and Senior	Clerks
respectively)	are concerned, Counsel appearing on	behalf
of the First	Respondent stated that the Labour Court	held
that the en	quiry was fair and proper and that	the
findings were	not perverse. However, the punishment	of
dismissal was	held to be disproportionate and was	set

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aside. The Bank accepted the order of the Labour Court

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and granted re-instatement to the aforesaid workman.

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The material which has been placed on record of the proceeding before the Court below clearly does not

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establish	any discriminatory act	ion on the part	of	the
Bank. T	he Bank proceeded again	st all the emplo	yees.	The
services	of all the employees	were terminated.	Thi	s, in
fact, is	accepted by the Petit	ioner himself in	the	course
of cross	examination. The	proceedings adopted	by	the
Branch	Manager are pending	before the appr	opriate	Court.
It cannot	be said that the po	sition of a Cashier	was	of
the same	order in the	hierarchy as t	he	Ledger
Keeper/Clerks	in whose case,	the Bank accepted	the	order
of the	Labour Court. Whether	the Bank should	or	should
not have	accepted the findings	of the Labour	Court	in
those case	s does not fall	for determination.	In	any
case,	having regard to the	responsibilities of	a	Cashier
and the	duties cast upon him,	it cannot be s	aid tha	t the
Bank was	not justified in taki	ng the view that	it	has
taken in	the case. The fact	that the Petitioner	was	an
employee	of a Cooperative Bank	who was under	pressu	re of
the then	Chairman is no ground	for this Court	to	exercise
the ju	risdiction under Article	226. The	recomme	ndations
of a	Committee appointed by	the Bank	are	only
recommendatory	in nature. The	Bank can by no	means	be
held to	be in error in refu	sing to condone an	act	of
misconduct.	The Industrial C	ourt has g	iven	cogent
reasons fo	r coming to the	conclusion that	the	Labour

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Court	was	not	justifie	d in	interfering	with	the	order
passed	in the	discip	linary	procee	dings.	The	order of	the
Industrial	Court	is	log	ical	and	consist	ent and	is
entirely	in	accord	ance	with	law.	No	case	for

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interference under Article 226 is made out. The Petition

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is accordingly dismissed.

Kishor Nayaran Vartak v. the Sangli Zilla Kamgar Co.Op. Bank Ltd. and 6 Ors.

Case brief

What is this about?

What the court decided

Kishor Nayaran Vartak v. the Sangli Zilla Kamgar Co.Op. Bank Ltd. and 6 Ors.

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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