Indian Overseas Bank and Ors. Vs. Om Prakash Lal Srivastava

INTRODUCTION

The Appellant-Bank in a departmental proceeding found respondent at fault on numerous charges inter alia together with breach of duty as a guardian of public money and cheating, fraud, forgery and tampering of documents. The Industrial Tribunal eventually upheld the ruling of the Appellant-Bank but in relations of the challenged judgment of the Allahabad High Court, five of the charges found to be not proved while the other two was referred back to the Industrial Tribunal with a partial mandate.


FACTS OF THE CASE

The Respondent was an employee of Appellant-Bank holding the designation of clerk-cumcashier. The Appellant-Bank received a complaint from Respondent’s sister-in-law Smt. Meera Srivastava, that the Respondent, without her permission, opened and ran a savings account in the joint title of the Respondent and his sister-in-law by imitating her signatures, and encashed a demand draft of Rs. 20,000/- which was allotted to her by Kalyan Nigam Limited in which her husband used to work as a Junior Engineer, who had unluckily died in a road accident. The Appellant-Bank suspended the respondent for perpetrating acts of severe misconduct at the Gorakhpur Branch and a chargesheet has been filed against him. The charges are as under:

Charge No. 1: He has violated the explicit instructions of the Branch Manager Mr. R.N. Saxena, who directed him to collect the outward clearing cheques before going to the clearing house

Charge No. 2: In spite of the explicit instructions given to him, he rejected to embrace the outward clearance cheques handed to him by the officers at the clearing house before 10.30 a.m.

Charge No. 3: By rejecting to embrace the outward clearing cheques he caused trouble and discomfort to the Bank's customers and thus put the interests of the Bank in jeopardy,

Charge No. 4: he deceitfully and unfairly opened savings bank account in the joint titles of himself and his sister-in-law Mrs. Meera Srivastava by copying the sign of the latter

Charge No. 5: he deceptively and deceitfully encashed from the joint account a sum of Rs. 20,000/- by forging the sign of Mrs. Meera Srivastava in the withdrawal slip.

Charge No. 6: he behaved in a unruly, unsystematic and offensive manner by forcibly fetching the print of the suspension order after seeking the Branch Manager's brief case, table drawer and his pocket.

Charge No. 7: Tampering with the records of the branch by erasing his own admission confined in the duplicate copy of the suspension decree and the narration in the attending record using white fluid.

Thus, he performed an act of wilful disobedience which is a blatant misconduct under para 19.5(e) of the Bipartite Settlement dated 19.10.66.

An inquiry officer was selected to judge upon the charges after Respondent refused the accusations made against him, all notions of natural justice were followed. The inquiry officer opined and concluded that all allegations raised against the Respondent were correct. the Respondent was served with a show cause notice and after taking into consideration the reply, the Disciplinary Authority proceeded to sustain the outcome and enforce the penalty of dismissal from service. The Respondent filed a submission before the appellate board but the authority declined the appeal.


JUDGEMENT OF THE INDUSTRIAL TRIBUNAL

The Respondent pursued to rise an industrial dispute and the actions were challenged before the Tribunal and the Tribunal set up a primary issue on the question of impartiality of the domestic inquiry. Earlier the Tribunal decided the primary issue against the Appellant as the Appellant- Bank could not able to submit original documents and most of the copies were unreadable. But the Tribunal granted a chance to the Appellant-Bank to present the evidence and uphold the charges against Respondent. The Bank produced five witnesses and the tribunal opined that the Appellant-Bank had been able to established all the charges against the Respondent. The Tribunal upheld the amount of punishment levied and rest the case against the Respondent.


JUDGMENT OF THE HIGH COURT

The Appellant approached the High court against the order of the Tribunal by filing writ petition. Writ petition has been permitted while sending matter back in regard of charges 4 & 5. The judgment found the departmental proceedings violative of the principles of natural justice then no findings vis-à-vis charges 1, 2, 3, 6 & 7 have been proved, as the Bank led proof only in regard of charges 4 & 5. With regard to objections 4 and 5, it was considered that at the request of the Respondent, the signatures of Mrs. Meera Srivastava should have been equated with the signatures admitted by an expert and, therefore, only a correct decision would have could be drawn whether or not the signs on the account opening form or withdrawal slip were falsified by the Respondent and the Tribunal should have abstained itself from proceeding like an expert.


Submissions of the Appellant

Counsel for the Appellant submitted that the High Court felt erred in the reasoning in administering the standards of evidence of criminal proceedings to disciplinary proceedings as the misdemeanours in disciplinary proceedings by an employee is to be estimated on the footing of possibilities and prevalence of evidence. There was enough evidence to prove that the Respondent committed deception, fraud and imitation by using the signs of the Appellant, Mrs. Meera Srivastava, opening and managing the account and misappropriating and encashing the sum of Rs. 20 000 / received in the form of demand draft in compensation for the death of her husband. The complainant has given flawless and unambiguous testimony on oath before the Tribunal and nothing conflicting came out in her cross-examination. So, there is no sense to question her testimony.


As for the remaining allegations, the acts led to a compelling conclusion that even those allegations relating to insubordination, disobedience to orders from higher authorities, falsification of suspension letters were proven and even sufficient on their own to inflict punishment of revocation of service.


Submissions of the Respondent

Counsel for the Respondent pleaded charges 4 & 5 were not verified as no proof was guided in that behalf and confidence could not be retained only on documents.

Further it was presented by the Appellant that charges 4 & 5 were also not verified and requested the court to look into the judgment of this Court in Lalit Popli v. Canara Bank more precisely para 13, which says:

Under Section 73 of the said Act, the Court can form its opinion by comparison of writings. The Court is bound to please itself in concluding that the opinion can be adopted. Regardless of the handwriting expert's opinion, the Court may compare the accepted handwriting to the contested handwriting and come to its own sovereign conclusion. Such comparison is permitted under Section 73 of the Evidence Act. It is up to the discretion of the Court to rule whether to admit this uncorroborated evidence or not. It is clear that even in the absence of expert reports, the Court has the power to compare the writings and determine the question.


JUDGEMENT AND ORDER OF THE SUPREME COURT

On considering the submission of the both the council Supreme Court held that the High Court erred in reaching the conclusion of the judgment and pointing, once again, the matter to be sent to the Industrial Tribunal to now take view of a hand writing expert.

The High Court seems to have applied the criminal prosecution test to departmental proceedings when it asked for a handwriting expert to call for this purpose. This would run counter to the stable legal position articulated by this Court and refer to a latest judgement, Ashoo Surendranath Tewari v. sub-intendant of police, in which it was noticed that the standard of proof in departmental proceedings based on the prevalence of probability, is slightly lower than the standard of proof in criminal proceedings where the case needs to be established beyond a reasonable doubt.

Supreme court also noticed that the High Court held that only charges 4 and 5 could effectively be upheld by the Industrial Tribunal, which in its view required additional evidence from a handwriting expert. With respect to the other allegations, it was concluded that no further evidence had been provided.

According to the Supreme Court, High Court has not applied the correct approach while dealing with the case as there were sufficient evidence which shows the misconduct of the Respondent which could emanates from the record of the bank. Thus, the other charges could not be set aside. On the charges which were asked to remitted back to the Tribunal, it is clearly noticeable that the Respondent had breached the trust, committed fraud and forgery as there is no reason to doubt the deposition of Mrs. Meera Srivastava and evidence was adequate to implicate the Respondent, which makes it hardly a case for intrusion either on law or on moral bases. The punishment levied on the Respondent is proportionate to the act committed. The demeanour of the Respondent did not permit him to continue in service. Thus, the impugned judgment dated of the High Court is liable to be put aside and the challenge to the award of the Industrial Tribunal refuted and the order of the Tribunal is upheld.



This article is written by Pratham Bagani of Fergusson College.

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