A bank cashier challenged termination for misconduct involving customer cash dealings, abusive conduct and careless performance of duties. The Court upheld the disciplinary punishment as commensurate with the proved charges, dismissed the appeal and confirmed the Single Judge’s judgment and Labour Court award.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/LPA/242/2012 JUDGMENT DATED: 13/07/2021 HARSHAD N DAVE Versus THE REGIONAL MANAGER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 242 of 2012
In R/SPECIAL CIVIL APPLICATION NO. 18493 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and HONOURABLE MR. JUSTICE B.N. KARIA
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| 1 | Whether Reporters of Local Papers may be allowed to see the judgment ? |
YES |
|---|---|---|
| 2 | To be referred to the Reporter or not ? | YES |
| 3 | Whether their Lordships wish to see the fair copy of the judgment ? |
NO |
| 4 | Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? |
NO |
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HARSHAD N DAVE
Versus
THE REGIONAL MANAGER
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Appearance: HCLS COMMITTEE for the Appellant(s) No. 1 MR PV PATADIYA(5924) for the Appellant(s) No. 1 MR NISARG DESAI FOR NANAVATI ASSOCIATES(1375) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
Date : 13/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE B.N. KARIA)
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2.1 The Appellant joined the Respondent-Bank on 10th August 1973 as a Leave Reserve Cashier and was appointed as a Staff Clerk-Cashier in Charge at Sardhar Branch in “C” Category and worked for more than 30 years with the Respondent-Bank. That, the service record of the Appellant was blot-less and the Appellant was not subjected any Departmental or Disciplinary proceedings earlier. On 15th January 2003, the Appellant received a Memo from Zonal office seeking his explanation to Three charges. As per first charge, it was alleged to have addressed the Manager as Hoodlum on 21st February 2002 . As per the Second charge, less payment was made or demanded more money from the customers and as per the Third charge, he was careless and irresponsible behaviour while discharging his day-to-day duties. Reply was submitted by the Appellant on 18th January 2003 . Thereafter, as per averments made in the Petition, without considering the reply by the Respondent=Bank, on
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misconduct committed by the Appellant during the course of his duties as
Staff Clerk-Cashier in Kasturbadham Branch of the Respondent-
Bank at Rajkot. That, on 2nd June 2003 , the Enquiry Officer passed an order holding that the charges levelled against the Appellant were proved. Thereafter, the Disciplinary Authority also passed an order of removal of the Appellant from the services with Superannuation benefits vide order dated 24th July 2003. That, the Appellant raised a dispute with the Ministry of Labour and Employment, New Delhi, in exercise of power conferred by Clause (d), Sub Section (1) and Sub Section 2(A) of Section 10 of the Industrial Disputes Act 1947 , which referred for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Ahmedabad, which was registered as Reference CGITA No. 1424 of 2004. The Respondent filed its Written Statement interalia denying the statement of claim made by the Appellant submitting that in the Departmental proceedings, the Appellant was given opportunity of defending his case, and therefore, the order of dismissal was passed. Learned Judge of the Labour Court, after hearing the arguments of both the sides and considering the documentary evidence, was pleased to reject the Reference and confirmed the Order of punishment inflicted upon the Appellant by the Disciplinary Authority vide order dated 4th April 2011. That, the Appellant challenged the order of the Labour Court in Special Civil Application No. 18493 of 2011 wherein this Court, vide order dated
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9th January 2012, was pleased to dismiss the Writ Petition preferred by
the original Petitioner and hence, this Appeal under Clause 15 of the Letters Patent has been preferred by the Appellant.
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the Inquiry Officer has not considered the evidence of witness of the
Appellant in support of Charge 1(a) and 1(b). It was further submitted by learned Counsel for the Appellant that the Charge No.2 would not amount to gross misconduct in terms of Clause 5(j) of the Memorandum of Settlement dated 10th April 2002. It was submitted that the alleged incidents narrated therein were stated to have taken place on 2 0th December 2001, 4th February 2002 and 27th March 2002, however, the Memo was served upon the original Petitioner for the first time on 11th April 2003 . It was further submitted that considering the allegations, it cannot be inferred that there was any serious financial loss to the Bank. That, the Inquiry Officer has erred in recording the finding that all the Customers/Borrowers emphatically stated having receiving less cash or demanding of excess cash. That, the Charge No.3 would not amount to gross misconduct in terms of Clause 5(j) o f the Memorandum of Settlement dated 10th April 2002 . That, the finding of the Inquiry Officer such as writing figures in Hindi and English amounts to carelessness on the part of the Appellant is clearly perverse. Further, the Inquiry Officer has not dealt with the submissions of the Appellant and gave perverse findings. That, the learned Single Judge has committed an error in not considering the findings of the Inquiry Officer as perverse. That, the action of the Respondent-Bank dismissing the original Petitioner from the service is bad in law. That, awarding the punishment
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of removal from the service is grossly disproportionate to the allegations levelled against the original Petitioner, which are not proved by leading cogent and convincing evidence during the Departmental Inquiry proceedings as well as before the Labour Court. That, the order of punishment tantamount to depriving not only the original Petitioner but his entire members of their source of livelihood. That, even otherwise the impugned action on the part of the learned Labour Court in not setting aside the order of punishment passed by the Disciplinary Authority as well as Departmental Authorities and in not awarding full back wages is neither legal nor proper. Lastly, it was submitted by learned Counsel for the Appellant to quash and set aside the Judgment and Order dated 9th January 2012 passed by the learned Single Judge in Special Civil Application No. 18493 of 2011 as well as Order dated 4th April 2011 passed by the Central Government Industrial Tribunal-cum-Labour Court, Ahmedabad in Reference CGITA No. 1424 of 2004 and direct the Respondent-Bank to reinstate the Appellant on his original Post.
strongly objected the submissions made by learned Counsel for the Appellant and supported the Judgment and order passed by the learned Single Judge as well as learned Labour Court. It was submitted by learned Counsel for the Respondent-Bank that the findings recorded by the Inquiry Officer are not perverse, as there was sufficient documentary
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evidence which enabled the Inquiry Officer to reach to the conclusion that the charges were proved. That, the service of the original Petitioner was terminated after conducting the Inquiry vide order dated 24th July 2003 . That, the evidence was placed on record including Management documents Exhibits-1, 2, 2(a) and 13 along with deposition of Management Witness-6 strongly demonstrates that the original Petitioner had abused the Manager by uttering the words “you are hoodlum”. That, the original Petitioner himself has admitted about the genuineness of all documents produced by the Presiding Officer. That, from the Crossexamination of the original Petitioner and from the depositions of Management Witness No.2-Shri B. B. Khunt, Management Witness
No.7- Jadhav Mehta, Management Witness No.1-Lava H. Sorathia
and Ramesh H. Sorathia would confirm the contents of the Statements/complaints lodged by them and genuineness of such statements were never challenged by the Appellant. That, Management Exhibits 10 and 12 clearly proved the charges of carelessness and irresponsibility on the part of the original Petitioner while discharging his day-to-day duties. It was further submitted by learned Counsel for the Respondent that learned Single Judge has rightly held that the Court would not enter into exercise of re -appreciation of evidence laid before the Inquiry officer, more particularly, when the Labour Court has already considered and examined the evidence and come to the conclusion that
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the findings recorded by the Inquiry Officer are not perverse.
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conducted by following the principles of natural justice and as per rules. That, findings recorded by the Inquiry Officer are based on the evidence and same cannot be treated as perverse. That, the findings of the Inquiry Officer are based upon supporting evidence and this Hon’ble Court may not enter into exercise of re-appreciation of evidence before the Inquiry Officer, more particularly, when the Labour Court as well as learned Single Judge has already considered and examined the evidence and came to the conclusion that the findings recorded by the Inquiry Officer are not perverse. That, the punishment awarded against the original Petitioner cannot be said to be disproportionate to the gravity of charges as argued by the learned Counsel for the Appellant. That, this Hon’ble Court may not consider this Appeal over the decision of Inquiry Officer unless it exists as Statutory provision in this behalf. It was submitted that the decision of penalty is commensurate with the nature and gravity of the charges and proved misconduct. That, the learned Single Judge of this Court, after taking into consideration the entire evidence, has rightly confirmed and upheld the Award passed by the Central Government Industrial Tribunal-cum-Labour Court, Ahmedabad, in Reference CGITA No. 1424 of 2004 and hence, it was requested by learned Counsel for the Respondent to dismiss present Letters Patent Appeal as devoid of merits.
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Counsel appearing for the Respondent-Bank, it transpires that at the relevant point of time, the original Petitioner was working as Cashier Incharge with the Respondent-Bank at Kasturbadham Branch w.e.f.
19.10.2001 . During the course of his duties, he committed various acts/misconduct, and therefore, charge sheet was issued against him on
11.04.2003. The charges levelled against him are as under:
CHARGE NO.1: a) That when work relating to date entry of the branch was in progress, you were advised on 21.02.02 by the Manager not to interfere in such work. At this you abused the Manager by uttering the words “You are Hoodlum” at him.
b) On 11.10.02, you came late to the branch i.e. after 11.00 a.m. without any prior intimation/permission to/from the Manager and unauthorisedly marked time as 10.45 in the attendance register to create a false record of your having come on time on that day. Since you did not attend your duty on time, the counter clerk, with a view to avoid customer dis-satisfaction, had started accepting withdrawal slips by putting token numbers on their reverse. At this, instead of remaining apologetic for your acts of coming late and causing undue harassment to the customers, you have argued with the Manager by stating that how the clerk could issue/write the token number on the reverse of the withdrawals when cash and tokens were yet not taken out from the safe and warned the Manager by saying “you please note for future”.
Your above acts, if proved, would amount to gross misconduct in terms of Clause 5 ‘c’ of the Memorandum of Settlement dated 10.04.02. CHARGE No.2 : That your conduct as Cashier-in-charge of the branch is replete with complaints from several customers indicating the questionable manner of your dealings as cashier and results in tarnishing of bank's image inasmuch as:
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a) On 04.02.02, while making payment to Shri Babu Bachu Khunt, a customer, you have paid less by Rs. 10/- i.e. two coins of Rs. 5/- each. b) On 20.12.01, after accepting a sum of Rs. 28,040/- from Shri Jadhav Madha, you issued him the counterfoil. After some time, you called the said customer/borrower through a staff of the branch and when Shri Madha arrived at the branch and resisted you claim of having deposited Rs. 50/- less, you picked up a quarrel with him and finally collected cash Rs. 50/- from him. c) Shri Lavabhai H. Sorathia, a customer-borrower of the branch handed over Rs. 22800/- to you on 27.03.02 for depositing in his savings A/c. After accepting the cash you fal;sely told him that it is short by Rs. 100/- and took away from him Rs. 100/- to the dissatisfaction of the customer-borrower. d) Shri Ramesh H. Sorathia gave you Rs. 20,970/- on 27.3.02 for depositing in his S/B A/c. After accepting the cash you advised him that the cash wqas short by Rs. 5000/-. At this Shri Sorathia took back the cash from you and counted in front of you. While so counting, he found the ash to be exactly Rs. 20,970/-. Shri Sorathia has lodged a complaint with the bank stating that had he believed your version, he would have been poorer by Rs. 5000/-.
You above acts, if proved, would amount to gross misconduct in terms of Clause 5 ‘j’ of the Memorandum of Settlement dated 10.04.02. CHARGE No.3 : That you are found to be most careless and irresponsible while discharging your day-to-day duties which is evidence from the following:
a) In the Daily Cash Balance Book, there are many cuttings/overwriting. On some occasions, you have made the entries in different language viz., Gujarati, Englihs, Hindi and Roman. This is despite periodic advices given to you by the Manager to desist from such acts.
b) In the despatch register of the branch, there are
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cuttings/corrections/over-writings at several places. On many instances, full details were found not mentioned by you. Many a times you put up the envelopes meant for despatch with wrong addresses written on them. On several instances, you refrain from mentioning, on the envelopes, name of the concerned department/section, for whose attention the mail marked. Many a times the concerned department/section, for whose attention the mail/s is/are marked.
c) Similarly, in other books of the branch like Receipt/Payment/Transfer Book and Cash Contra Books, there are cuttings/corrections overwritings at several places. Such entries also lack full details causing difficulty in entry pertain viz. ZB/CD/CC etc. At times payment vouchers were entered by you in receipt book and vice versa. Many a times, you deliberately repeat the entries and unauthorisedly cancel/score them off.
When the Manager Counsels you and advises to refrain from repeating such acts, you reply in a most irresponsible manner by stating that after 50 years of age, your working style is this and bank has not suffered any financial loss on account of such acts of yours.
found satisfactory, and thereafter, a fulfledge departmental inquiry was initiated in accordance with applicable Rules of the Bank and Inquiry Officer submitted his report concluding that charges levelled against the original Petitioner were proved. The Disciplinary Authority, considered the relevant aspect including the gravity of charges, the tenure of the original Petitioner, his past conduct etc., and considered it appropriate to terminate the services of the original Petitioner on 24th July 2003 . In
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Reference (CGITA) No. 1424 of 2004, Labour Court framed Six Issues ,
and thereafter, held that findings of the Inquiry officer were not perverse and punishment was not shockingly disproportionate to the gravity of charges and that punishment being justified, the original PetitionerWorkman is not entitled to any relief and accordingly, Labour Court has rejected such reference of the original Petitioner.
5.12. When the legality and propriety of the inquiry is accepted and it is not in dispute that the delinquent employee was afforded sufficient opportunity to defend his case and the inquiry was conducted by following principle of natural justice and as per rules and when it is also found by the Labour Court that the findings recorded by the inquiry officer are based on evidence and are not devoid of supporting evidence and are not such which can be treated as perverse, then in that event, the Labour Court would not, ordinarily, interfere with the order of penalty passed by the employer / disciplinary authority, unless it is found by the Labour Court that the penalty imposed by the employer is so disproportionate, which amounts to victimization or is such, which ordinarily would not be imposed having regard to the gravity of the charges.
5.13. In present case, the Labour Court came to the conclusion that the findings were not perverse and the punishment was not shockingly disproportionate. Therefore, Labour Court did not consider it necessary or appropriate to interfere with the order of penalty.
6. This Court would not enter into exercise of re-appreciation of
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evidence before the inquiry officer, more particularly, when the Labour Court has already considered and examined the evidence and come to the conclusion that the findings recorded by the inquiry officer are not perverse.
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Sorathia in support of their case. These witnesses examined by the Respondent-Bank clearly proves the charges of misconduct committed by the original Petitioner. The findings of the Inquiry Officer are passed upon the supporting evidence. It appears that the original Petitioner had filed a purshish on 14th March 2006 admitting the legality of the Inquiry in CGITA No. 1424 of 2004 and the witnesses examined by the Respondent-Bank have stated about receiving less cash or demanding of excess cash amount from the customers by the original Petitioner.
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the other judgments of Hon’ble Apex Court:
22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional Courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority which has been earlier examined by this Court in State of Tamil Nadu Vs. T.V. Venugopalan((1994)6SCC 302) and later in Government of T.N. and Another Vs. A. Rajapandian ((1995)1SCC 216) and further examined by the three Judge Bench of this Court in B.C. Chaturvedi Vs. Union of India and Others wherein it has been held as under:−
23. It has been consistently followed in the later decision of this Court in Himachal Pradesh State Electricity Board Limited Vs. Mahesh Dahiya(2017)1 SCC 768 and recently by the three Judge Bench of this Court in Pravin Kumar Vs. Union of India and Others (2020) 9 SCC 471.
24. It is thus settled that the power of judicial review, of the
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Constitutional Courts, is an evaluation of the decision−making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
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27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.
Appellant in this Appeal has no merits. The punishment ordered by the Disciplinary Authority is commensurate to the charges levelled against the original Petitioner and the contention of the Appellant does not hold good in view of the charges proved otherwise as discussed in the preceding paragraphs.
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of 2011 preferred by the original Petitioner confirming the Award dated
04.04.2011 passed by the Central Government Industrial Tribunal-cumLabour Court, Ahmedabad, in Reference CGITA No. 1424 of 2004.
Consequently, present Letters Patent Appeal deserves to be dismissed and is accordingly dismissed. The impugned Judgment and Order dated 9th January 2012 passed by the learned Single Judge in Special Civil Application No. 18493 of 2011 as well as Order dated 4th April 2011 passed by the Central Government Industrial Tribunal-cumLabour Court, Ahmedabad in Reference CGITA No. 1424 of 2004 are hereby confirmed. No costs.
(DR. VINEET KOTHARI,J)
(B.N. KARIA, J)
K. S. DARJI
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2 issues framed by the court
Did the disciplinary findings against the bank cashier warrant interference in judicial review?
Was dismissal disproportionate to the proved misconduct?
Colour shows how this judgement treated each authority
Deputy General Manager (Appellate Authority) and Others v. Ajaikumar Srivastav aRelied on¶107
2021 (2) S.C.C. Page No. 612 · Who else cites this
HARSHAD N DAVE
THE REGIONAL MANAGER
VINEET KOTHARI
B.N. KARIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
