S.B.I vs Hemant Kumar

and order dated August 8, 2008 passed by the High

Court of Uttarakhand. By the impugned judgment,

the High Court dismissed the Writ Petition filed by

the appellant before it and affirmed the award

2

dated November 6, 1998 made by the Central

Government Industrial Tribunal-cum-Labour Court,

Pandu Nagar, Kanpur, directing reinstatement of the

respondent in the service of the appellant-bank

with full back-wages.

4. The respondent worked in the appellant-bank as

Cashier-cum-Clerk. In January, 1994 it was

discovered that the respondent had been indulging

in misappropriation of money by making fictitious

entries and manipulations in the bank's ledgers.

On his malfeasance coming to light, the respondent

not only admitted his guilt in writing vide memo

dated March 3, 1994 but also deposited the amount

of Rs.14,000/- to make good the amount earlier

defalcated by him. He was given a chargesheet

detailing his various acts of omission and

commission to which he did not give any reply.

Nevertheless, before the Enquiry Officer in course

of the preliminary enquiry he expressed the intent

to defend himself in the enquiry. The enquiry was

3

first fixed on November 15, 1994 but on that date

the respondent did not appear without giving any

intimation to the Enquiry Officer. Due to his non-

appearance the enquiry was adjourned to November

28, 1994. On that date, once again, he did not

come to participate in the enquiry proceedings but

sent a request for adjournment on the ground that

his mother-in-law was seriously ill at Agra. The

enquiry was once again adjourned and it was fixed

for December 14, 1994. He was intimated about the

next date fixed in the enquiry through registered

post as well as hand delivery letters dated

November 15, 1994 and November 28, 1994

respectively.

5. On December 14, 1994 the respondent was once

again absent and there was no intimation from him.

In those circumstances and having regard to the

fact that the witness intended to be examined by

the management in support of the charge had come in

connection with that enquiry from Delhi to Dehradun

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for the third time, the Enquiry Officer decided to

proceed with the enquiry and examine him ex parte.

PW.1 happened to be the Branch Manager where the

respondent was posted at the material time and

where the misappropriation was committed by him.

In course of his evidence, in reply to the question

what action was taken by him when the fraudulent

entry came to light, the witness stated as

follows:-

"PW.1: Shri Hemant Kumar (EPA)

confessed having made a fraudulent entry

of Rs.14000/- dated 26.09.93 in the A/C

No.1287 of Miss Shivani and also confessed

having balanced the ledger No.10 by

manipulating the total on page 2 & 3 of

Ex.P2. Hemant Kumar (EPA) gave a

confession letter Ex.P4 probably on

10.02.94 and he was asked to deposit

Rs.14000/-. Shri Hemant Kumar (EPA)

deposited Rs.14000/- in the A/c of Miss

Shivani on 11.02.94 vide credit voucher

Ex.P3 which has been written in the hand

of Hemant Kumar."

6. After recording his evidence, the Enquiry

Officer closed the enquiry and submitted his report

holding the respondent guilty of all the charges.

5 A copy of the enquiry report was sent to the

respondent along with a letter telling him that it

was tentatively decided to dismiss him from service

and asking him to show cause and to appear for a

personal hearing. The respondent gave his reply to

the enquiry report and after hearing him in person,

the disciplinary authority passed the order of his

dismissal from service.

7. Against the order passed by the disciplinary

authority, the respondent preferred an appeal and

during the pendency of the appeal he submitted yet

another letter admitting his guilt in writing,

presumably hoping that a lenient view would be

taken in the appeal. In the memo dated December

10, 1986 addressed to the Manager, State Bank of

India, the respondent stated as follows:-

"Dear Sir,

Subject: Entry dated 26.09.93 for

Rs.14,000/-.

With reference to above, I committed a

fraud by wrong crediting Rs.14,000/- on

6

26.09.93 which was Sunday in SB account

No.1287 of Shivani and lt. col. G.G.

Agrawal and I was closing the wrong

balancing of ledger No.10 --- months. For

which I am extremely sorry and shameful.

I beg you to --- for this shameful act and

I promise you not to do such thing in

future."

8. His appeal was, however, dismissed and then the

respondent raised an industrial dispute which was

referred for adjudication before the Central

Government Industrial Tribunal-cum-Labour Court.

The Industrial Tribunal found and held that the

domestic enquiry held against the respondent

suffered from violation of the principles of

natural justice. The Tribunal further noted that

in the written statement filed by the appellant-

bank, the plea was not reserved to make good the

charges by leading evidence before the Tribunal in

case the domestic enquiry was held to be defective.

The Tribunal, accordingly, set aside the order of

dismissal and directed for the respondent's

reinstatement with full back-wages.

7 9. The Tribunal has assigned two reasons for

holding that the departmental enquiry held in the

case was in violation of the principles of natural

justice. First, it held that the respondent had

sent an application through post for adjournment of

the enquiry on December 14, 1994 on the ground that

he had sustained injuries and even though this

application had not reached the Enquiry Officer it

was his duty to find out from the bank whether or

not such a letter was received and secondly, even

after examining PW.1 ex parte the Enquiry Officer

should have given another opportunity to the

respondent to lead evidence in rebuttal. In this

connection, the Tribunal made the following

observations:-

"In the instant case I find that after

14.12.94 the witness of the management

were (sic was) examined but no opportunity

was given for adducing evidence in

defence. Apart from this I find that the

concerned workman had applied through post

and (sic for) adjournment on 14.12.94 on

the ground that he had sustained injuries.

Before this tribunal concerned workman has

8

adduced evidence to prove that fact that

he had applied for adjournment through

post. O.P. Chaudhary PW1 enquiry officer

has stated that he had not received any

such application. However, he had

admitted in cross-examination that the

mail is received in the office of the bank

premises. It appears that from the bank

this letter was not handed over to the

enquiry officer. In any case it is held

that application was sent by post and in

this way there is a presumption that such

application would have been reached the

addresses. Hence, the concerned workman

had applied for adjournment. There was no

inordinate delay in holding of enquiry as

it was only third date of hearing hence it

cannot be said that the concerned workman

had adopted dilatory tactics."

10. We are of the view that both the reasons

assigned by the Tribunal for condemning the

departmental enquiry as defective are completely

untenable. The principles of natural justice

cannot be stretched to a point where they would

render the in-house proceedings unworkable.

Admittedly, the respondent had not appeared for the

enquiry on two earlier dates. On the third date

too he was absent and there was no intimation from

him before the Enquiry Officer, yet the Tribunal

9

insists that it was the duty of the Enquiry Officer

to find out from the concerned department of the

bank whether any intimation or application was

received from the respondent. Let us take a case

where the enquiry is not being held in the bank

premises or even in the same town, where the

concerned branch of the bank is located. In such a

situation, it may take hours or even a day or two

to find out whether any letter or intimation from

the person facing the enquiry was received in the

bank and for all that time the Enquiry Committee

would remain in suspended animation. The

Tribunal's observation that it was only the third

date of hearing and hence, it could not be said

that the respondent had adopted dilatory tactics

can only be described as unfortunate. We

completely reject the notion that three barren

dates in an in-house proceeding do not amount to

delay. Let the in-house proceedings at least be

10

conducted expeditiously and without in any undue

loss of time.

11. The second reason assigned by the Tribunal that

the Enquiry Officer should have allowed the

respondent the opportunity to lead evidence in

rebuttal is also without substance in the overall

facts of the case. The respondent had already

tendered two admissions of guilt in writing and one

orally before PW.1 and there was hardly anything

that could be said on his behalf to repel the

charges.

12. We are, therefore, satisfied that the

Tribunal's findings are wholly unreasonable and

perverse and fit to be set aside. The High Court,

unfortunately, did not consider the matter as it

should have, in light of the discussions made

above. The High Court's order is equally

unsustainable. We, accordingly, set aside the

order passed by the High Court and the award made

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by the Tribunal. The appeal is allowed but with no

order as to costs.

.........................................................J.

(Aftab Alam)

.........................................................J.

(R.M. Lodha)

New Delhi;

April 6, 2011.