CANARA BANK Vs. H T KOLI

JUDGEMENT

(1.) THIS is the second round of litigation at the instance of the petitioner-bank. Earlier the petitioner-bank challenged the award, dated (sic) passed by the Central Government Industrial Tribunal No. 2 in Reference (CGIT)No. 2/48 of 1986 whereby the said Tribunal held that the dismissal of respondent 1 Sri H. T. Koli who was working as Clerk in the petitioner-bank was not justified and directed the petitioner- bank to reinstate respondent 1 with immediate effect with full back-wages and continuity of service. The said award was set aside by this Court on July 11, 1997 and matter was sent back to the concerned Industrial Tribunal for fresh decision as per directions. After remand, respondent 1 was further cross-examined and parties were heard. Then by the present award which is impugned in this writ petition passed on October 15, 1997 the Tribunal again held that the dismissal of respondent 1 herein was not justified and the petitioner-bank has been directed to reinstate respondent 1 with full back-wages and continuity of service.

(2.) THE facts relevant for present purpose of the writ petition are: The first respondent (for short employee) was appointed by the petitioner-bank (employer-bank) as a Typist-cum-clerk in the month of December 1975. The employee was initially posted at employer-bank's Queen's Road Branch. In the year 1980, the employee was transferred to Malad (West) Branch. While the employee was working at Malad (West) Branch, he was found to have fraudulently altered ledger entries in the savings bank account bearing No. 15052 which was in the name of one Sri Shankar Sanjeev Rao. The employee inflated the entries in the said altering deposit figures. On April 27, 1982 though the account holder deposited only an amount of Rs. 5 but it was altered later on to Rs. 14,005 by adding the figure of 1400 on the left side of the figure 5, thereby increasing the credit balance by Rs. 14,000. Again on April 28, 1982 the account holder deposited in the said account an amount of Rs. 15 which was later on altered by the employee to Rs. 6,015. The alterations were also made in the deposit made on May 8, 1982 and May 20,1982. According to the employer-bank, the employee in connivance and conspiracy with the account bolder Shankar Sanjeev Rao defrauded the employer-bank of Rs. 77,600 and wilfully caused the said monetary loss to the employer-bank. On May 20, 1982 the said fraud was detected by the then Branch Manager who informed this incident to the higher authorities. Two senior officers of the bank Sri S. K. M. Shetty and Sri Bhandari were deputed to Malad (West) Branch to investigate the said fraud. The statements of various employees including the present employee were recorded. It is the case of the employer- bank that the employee in his statements recorded on May 20, 1982 and May 21, 1982 admitted that he introduced the said account holder Shankar Sajeev Rao and he helped the said account holder in withdrawal of the money on the basis of the inflated entries. The employee who wrote part of the said statement and also signed it admitted in the said statement that the ledger entries pertaining to the said account No. 15052 was altered by him and he facilitated the account holder to withdraw money from the said account on the basis of the inflated entries. On the basis of the investigation conducted by Sri S. K. M. Shetty and Sri Bhandari and the statement of the employee, the employer bank issued chargesheet to the employee on May 24, 1982. In the said chargesheet the employer-bank narrated the modus operadi of the employee of alteration of ledger entries which enabled the account holder to withdraw the excess amount of Rs. 77,600 over and above his actual deposits. The employer-bank charged the employee for defrauding it of Rs. 77,600 and causing monetary loss. The employee was, thus charged for gross misconduct under Clause (1) of Regulation 3 of Chap. II of Canara Bank Service Code. The employee was also suspended with effect from May 24, 1982. Upon receipt of the chargesheet, the employee addressed a letter to the General Manager of the employer-bank on May 31,1982 and demanded the copies of the alleged statements, dated May, 20, 1982 and May 21, 1982. Thereafter the employee again wrote a letter on June 16, 1982 demanding the copies of the said statements allegedly by him on May 20, 1982 and May 21, 1982. The employee then filed reply to the chargesheet. The enquiry officer proceeded with the enquiry. The employer-bank examined Sabrine B. Henriques, clerk, Sri P. Ratan Kumar, Manager. Sri S. K. M. Shetty Divisional Manager and Ms. Sumangala Marthu Mahale, Special Assistant Clerk. The employee examined himself. Thereafter the enquiry officer heard the parties and by his report, dated February 22, 1984, held that the charges against the employee were proved. In the enquiry report, the enquiry officer also found that the misconduct committed by employee of defrauding the employer-bank was grave and warranted deterrent punishment and accordingly proposed the punishment of dismissal. After receipt of the report of the enquiry officer, by an order, dated May 18, 1984, the employee was dismissed from service. The employee raised industrial dispute which was referred for adjudication to the Central Government Industrial Tribunal-cum-Labour Court No. 2, Bombay, and registered as Reference (CGIT) No. 2/48 of 1986. The employee filed statement of claim to which written statement was filed by the employer-bank. The employee thereafter filed additional statement of claim to which additional written statement was filed by the employer-bank. The Industrial Tribunal framed issues. Issue (1) was whether the workman proved that the enquiry held against him was not proper, that he was not given proper opportunity to defend himself and the rules of natural justice were not followed. Issue (2) was whether the workman proved that the enquiry officer had a biased view against him and his findings are improper and perverse. Issue No. (3) was whether the dismissal of the workman with effect from February 25, 1982 by the employer-bank was justified. The Tribunal vide its Part I Award held that the workman was able to establish that the enquiry held against him was not proper and that he was not given proper opportunity to defend himself and principles of natural justice were violated. On the basis of its finding on issue (1) in Part I Award, the Tribunal did not record any finding on issue (2 ). The management led evidence to prove the misconduct before the Industrial Tribunal. The management examined Sabrine B. Henriques, Sri P. Ratan Kumar, Sri S. K. M. Shetty and Ms. Sumangala Marthu Mahale, before the Industrial Tribunal to justify its action. The workman examined himself. The parties produced documents and as I have already noted by the Award, dated December 9, 1994, the Tribunal held the dismissal of the employee bad in law and directed his reinstatement with full back wages and continuity of service. The said award was challenged before this Court by Way of Writ Petition No. 1083 of 1995 and vide order, dated July 11, 1997 this Court set aside the award passed by the Tribunal on December 9, 1994 and sent the matter back to the Tribunal for fresh decision in accordance with law and also permitted the employer to lead evidence in defence of the subsequent documents filed by the workman or to further cross-examine the workman. After the remand, the employer-bank chose to further cross-examine the employee and accordingly the employee was cross-examined. The Tribunal thereafter heard the parties and by the impugned award, dated October 15, 1997, held that the dismissal of employee was not justified. The Tribunal also directed the employer company to reinstate the employee with full back wages and continuity of service.

(3.) IT would be pertinent to note that besides the witnesses examined by the employer-bank in proof of the misconduct, it also relied upon the statement made by the employee on May 20, 1982 and May 21, 1982 admitting the alteration in the entries made by him which resulted in defrauding the bank to the tune of Rs. 77, 600. The Tribunal did not find the statements made by the witnesses on behalf of the employer-bank reliable. As regards the statement made by the employee on May 20, 1982 and May 21, 1982, the Tribunal observed that though the employee admitted in his cross-examination that the said statement bear his signature yet it found difficult to accept that statement since according to Tribunal it could not be voluntary unless an assurance was given to him or some force was used against him. The Tribunal held that though for the first time a grievance was raised by the employee through the letter of his advocate, dated July 1, 1982, that the said statements were taken from him by force, misrepresentation and undue influence when the employee was in distressed condition, the grievance was raised in reasonable time and therefore, the said statements which was in the nature of confession by the employee could not be accepted. The crucial point that appears to me is if the statement made by the employee on May 20, 1982 and May 21, 1982 were voluntary, obviously on the face of such admission by the employee the misconduct of the employee would stand proved. The material part of the statement reproduced at page 38 A of the paper book) made by the employee reads thus: