Dismissed

Madhubala Devi and Anr. v. Employers in Relation to the Management of the Punjab National Bank Reprr through Its Chief Manager

Jharkhand HC3 Apr 2018LPA/356/2015

Case brief

AI extract

What is this about?

The High Court dismissed an appeal by the legal heirs of a deceased bank workman against an Industrial Tribunal award reinstating him. The Court held that the Tribunal erred by rehearing the fact of misconduct which was fairly proved, and upheld the discharge order as the Quantum of punishment fell within the domain of the disciplinary authority.

What did the court decide?

Letters Patent Appeal dismissed; award of Industrial Tribunal set aside; discharge order of appellant maintained.

Madhubala Devi and Anr. Vs Employers in… — Pension and Retirement Benefits | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 353 of 2015

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with

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L.P.A. No. 356 of 2015

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Madhubala Devi, wife of Late Jwala Prasad.

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Pankaj Kumar Sahay, son of Late Jwala Prasad.

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Both being the heirs and legal representatives of the deceased workman namely, Late Jwala Prasad.

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Both residents of Chandi Prasad Lane, Jogsar, P.O. Buranath, P.S.

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Kotwali, District Bhagalpur, 812001, State of Bihar.

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……Respondents/Appellants

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Versus

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Employers in relation to the Management of the Punjab National Bank having its Zonal Office cum Circle Office, Bagroy Market, Main Road, P.O. G.P.O., Ranchi, P.S. Kotwali, District Ranchi, duly represented through its Chief Manager, Human Resource Department, Circle Office, Bagroy Market, Main Road, P.O. G.P.O., Ranchi, P.S. Kotwali, District- Ranchi.

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…… Petitioner/Respondent

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[in both cases]

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----CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJESH KUMAR

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-----

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For the Petitioners : Mr. Indrajit Sinha, Advocate Mr. Suraj Singh, Advocate For the Respondent : Mr. Pratyush Kumar, Advocate [in both cases]

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----- 21/Dated: 3^rd April, 2018: Oral Order: Per D.N. Patel, A.C.J.:

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L.P.A. No. 353 of 2015

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This Letters Patent Appeal has been preferred by legal heirs of the original workman who was employed by the respondent Bank. His services were terminated by way of an order of discharge dated 10^th July, 2008 and hence, reference was preferred under Section 10 of the Industrial Disputes Act, 1947 being a Reference Case No. 55 of 2009 which was filed before Central Government Industrial Tribunal (No-1), Dhanbad.

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After hearing both the sides and giving adequate opportunity of being heard Central Government Industrial Tribunal (No-1), Dhanbad passed an award dated 28^th March, 2014 whereby, the order of discharge

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of the employee dated 10^th July, 2008 was quashed and set aside and there was an order of reinstatement with 75% back wages.

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It further appears from the facts of the case that the said award was challenged by the respondent-Bank Management by way of writ petition being W.P.(L) No. 6173 of 2014 which was allowed by the learned Single Judge vide judgment and order dated 19^th March, 2015 and the award passed by the Central Government Industrial Tribunal (No-), Dhanbad in Reference Case No. 55 of 2009 dated 28^th March, 2014 was quashed and set aside.

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Hence being aggrieved and feeling dissatisfied by the judgment and order delivered by the learned Single Judge in W.P.(L) No.6173 of 2014 dated 19^th March, 2015, the workman has preferred the present Letters Patent Appeal.

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Having heard the counsels for both the sides and looking to the facts and circumstances of the case, it appears that there were financial irregularities committed by the deceased employee-delinquent as per the charges levelled against him vide chargesheet dated 27^th February, 2007. Looking to the nature of the charges against the delinquent employee, it appears that there were allegations of shortage of cash. One transaction was about Rs. 1,00,000/-, second transaction was of Rs.11,000/- and third transaction was of Rs. 8000/- out of which charge for shortage of cash of Rs. 8000/- has been held as proved by the Enquiry Officer report dated 19^th February, 2008. Likewise, there were also charges against the delinquent employee about five travelling allowance bills. Without travelling an inch in any of the direction the travelling allowance bills were raised by the delinquent employee and out of such type of five travelling allowance bills, three have been proved as per Enquiry Officer report dated 19^th February, 2008.

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Looking to the Enquiry Officer's Report which is at Annexure-4 to the memo of this Letters Patent Appeal, it is evident that there was no procedural lacunae on the part of the respondent-Bank Management in holding the enquiry. Adequate opportunity of being heard was also given to the delinquent employee during course of the departmental enquiry. Looking to the report of Enquiry Officer (Annexure-4), it appears that the report of the Enquiry Officer is based upon evidences on record. Further, looking to the Enquiry Officer Report shortage of cash to the extent of Rs. 8000/- has been proved which is a misconduct no.1. Likewise, three travelling allowance bills were wrongly raised by the delinquent employee, this factum has also been proved.

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We are not sitting in an appeal against the order passed by the Enquiry Officer nor we see any reason to re-evaluate with the evidences collected during the course of departmental enquiry. No error has been committed by the Enquiry Officer.

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Thereafter, Enquiry Officer Report was given to the delinquent employee on 12^th March, 2008. Second show-cause notice was also given to the delinquent employee on 08^th May, 2008 which is basically meant for hearing on quantum of punishment.

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Looking to the nature of misconduct, disciplinary authority has passed an order of discharge of the deceased employee vide order dated 10^th July, 2008 which was quashed and set aside by Central Government Industrial Tribunal (No-1), Dhanbad in Reference Case No. 55 of 2009 vide award dated 28^th March, 2014.

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It appears that the Central Government Industrial Tribunal (No-1) Dhanbad has not properly appreciated that the Industrial Tribunal is not sitting in an Appeal against the Enquiry Officer's Report. There is no procedural lacunae in holding the enquiry, adequate opportunity of being heard was also given to the delinquent employee. These aspects of the matter have not been properly appreciated by the Central Government Industrial Tribunal (No-1), Dhanbad. So far as reinstatement is concerned there is no question of reinstatement whatsoever arises looking to the grave misconduct committed by the delinquent employee i.e. one about shortage of cash and another is false travelling allowance bills raised by the delinquent employee.

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Looking to the order, passed by learned Single Judge in W.P.(L) No. 6173 of 2014 dated 19^th March, 2015, we see no reason to take any other view than what is taken by the learned Single Judge. The action on the part of the delinquent employee is a pre-planned, well designed action. False travelling allowance bills cannot be raised by mistake. Likewise shortage of cash by Rs. 8000/- is also a grave misconduct. Thus quantum of punishment, inflicted upon delinquent, cannot be said to be unreasonably excessive nor it can be lebelled as shockingly disproportionate. On the contrary, lenient view has been taken by the management, while discharging the workman, instead of dismissal, so that workman can get retirement benefits, otherwise they could have been forfeited.

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It has been held by the Hon’ble Supreme Court in the case of State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya reported in (2011) 4 SCC 584 especially in paragraph nos.7, 8 and 9 as under:

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“7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.

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When a court is considering whether the punishment of “termination from service” imposed upon a bank employee is shockingly excessive or disproportionate to the gravity of the proved misconduct, the loss of confidence in the employee will be an important and relevant factor. When an unknown person comes to the bank and claims to be the account-holder of a long inoperative account, and a bank employee, who does not know such person, instructs his colleague to transfer the account from “dormant” to “operative” category (contrary to the instructions regulating dormant accounts) without any kind of verification, and accepts the money withdrawal form from such person, gets a token and collects the amount on behalf of such person for the purpose of handing it over to such person, he in effect enables such unknown person to withdraw the amount contrary to the banking procedures; and ultimately, if it transpires that the person who claimed to be the account-holder was an impostor, the bank cannot be found fault with if it says that it has lost confidence in the employee concerned. A bank is justified in contending that not only the employees who are dishonest, but those who are guilty of gross negligence, are not fit to continue in its service.

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Several witnesses were examined to prove the charge. One of them was H.S. Sharma who conducted the preliminary enquiry and to whom the respondent had made a statement broadly admitting the facts which constituted the subject-matter of the second charge. I.M. Rawal, who was the cashier and I.C. Ojha, the officiating Branch Manager were also examined. Based upon their evidence, the enquiry officer found the respondent to be guilty of the second charge and that has been accepted by the disciplinary authority. The High Court has interfered with the said finding without expressly holding that the said finding of guilt was erroneous. The High Court has proceeded as if it was sitting in appeal over the departmental enquiry and interfered with the finding on a vague assumption that the respondent must have acted bona fide in an “increasing customer-friendly atmosphere”. There was no justification for the Division Bench to interfere with the finding of guilt .”

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(Emphasis supplied)

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It has been held by the Hon’ble Supreme Court in the case of Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane reported in (2005) 3 SCC 254 especially in paragraph no. 12 as under:

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“12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding

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punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.”

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(Emphasis supplied)

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14. It has been held by the Hon’ble Supreme Court in the case of Divisional Controller, N.E.K.R.T.C. Versus H. Amaresh reported in (2006) 6 SCC 187 especially in paragraph no. 18 as under:

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“18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriation the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka SRTC v. B.S. Hullikatti was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a misconduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum.

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(Emphasis supplied)

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15. It has been held by the Hon’ble Supreme Court in the case of Life Insurance Corporation of India & others v. S. Vasanthi reported in (2014) 9 SCC 315 especially in paragraph no. 9 and 11 as under:

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“ 9. We have already reproduced paras 61 and 62 of the impugned judgment of the High Court. After detailed discussion of the various contentions advanced by the respondent herein (appellant before the High Court), the High Court repelled all those contentions and in para 61 summed up the position by holding that the respondent herein was very much guilty of deliberately tampering with the premium position as detailed in the report. So much so, it expressed its “ complete agreement ” in regard to the conclusions arrived at by the authorities concerned that the charges levelled against the respondent had been proved. As noticed above, charges pertain to tampering with the premium position and other records pertaining to 17 insurance policies. It had resulted in pecuniary loss to LIC as well. Charge of tampering with the record is a very serious charge and it adds to the gravity when it is coupled with financial implications. Even for such a severe charge, the disciplinary authority had inflicted the penalty of reduction in basic pay to the

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lowest timescale. The High Court has not even stated as to how this penalty was bad in law and simply labelled it to be “harsh” that too with no reasons. While intermeddling with this penalty, the only epithet used is “ to secure the ends of justice ”. In the absence of any exercise undertaken by the High Court that how it perceived such a penalty to be “harsh”, there was no reason to interfere with the same. Even otherwise, we do not find such a penalty at all to be shockingly disproportionate having regard to the very serious charge levelled against the respondent.

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11. We are of the opinion that the High Court transgressed its limits of judicial review by itself assuming the role of sitting as a departmental appellate authority, which is not permissible in law. The principles discussed above have been summed up and summarised as follows in Lucknow Kshetriya Gramin Bank v. Rajendra Singh :

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“ 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

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19.2. The courts cannot assume the function of disciplinary/ departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

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19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.

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19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.

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19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the codelinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.”

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(Emphasis Supplied)

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16. As a cumulative effect of the aforesaid facts, reasons and judicial

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pronouncements, we see no reason to take any other view than what is taken by the learned Single Judge in W.P.(L) No. 6173 of 2014 dated 19^th March, 2015. There is no substance in this Letters Patent Appeal and

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hence, the same is hereby, dismissed.

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L.P.A. No. 356 of 2015

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This letters Patent Appeal has been preferred by the legal heirs of the employee mainly for the reason that on preliminary issue an award

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was passed by the Central Government Industrial Tribunal (No.1), Dhanbad in Reference Case No. 55 of 2009, but, as stated hereinabove, we are not entertaining the earlier Letters Patent Appeal on merits and we are upholding the order of discharge passed by the respondentManagement dated 10^th July, 2008 and hence, we have already quashed and set aside the award passed by the Central Government Industrial Tribunal (No.1), Dhanbad in Reference Case No. 55 of 2009 dated 29.06.2012/28.03.2014.

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This Letters Patent Appeal is also hereby, dismissed because it is on the preliminary issue, during the pendency of the aforesaid Reference Case No. 55 of 2009.

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( D.N. Patel, A.C.J.)

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(Rajesh Kumar, J.)

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VK/Pallavi

Madhubala Devi and Anr. v. Employers in Relation to the Management of the Punjab National Bank Reprr through Its Chief Manager

Case brief

What is this about?

What did the court decide?

Madhubala Devi and Anr. v. Employers in Relation to the Management of the Punjab National Bank Reprr through Its Chief Manager

Case brief

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What did the court decide?

What the court decided

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