Judgment:
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of the award dated 23.2.2004 whereby the reference was answered against the petitioner and the petitioner was directed to reinstate the respondent workman with 50% back wages.
2. Briefly, the facts are that the respondent/workman was working as a clerk with the petitioner bank. He was having a Saving Bank Account in the same branch where he was posted. Because he was working in the same branch he was well versed with the bank record ledgers etc.. He made fake entries in the ledger containing his account and by falsification of account he withdrew an amount of Rs. 5410/-. When the matter was discovered, he was told by the bank that he had overdrawn amount from his saving bank account. He then deposited this amount back with the bank. However, a charge-sheet was served upon him in respect of falsification of account and withdrawal of amounts as a result of falsification of accounts. The petitioner gave reply to charge-sheet taking a plea that he had already deposited the amount, he was under the impression that now no action would be taken against him. He, however, denied the charges. An enquiry was initiated against the respondent into the charges. The respondent deliberately did not attend the enquiry. He was served a notice of 28th July, 1992 asking him to appear on 8th August, 1992. He did not turn up on that day. The enquiry officer despite the protest from the management witnesses, who had come to depose, adjourned the enquiry to 21st September, 1992 and sent a notice to the respondent informing him about the next date of hearing and asking him to attend the enquiry on that date. The respondent again did not attend the enquiry on 21st September, 1992. The management witnesses were present, the enquiriy officer posted the case at 2.30 p.m on the same date. The respondent did not attend the enquiry though he was attending the office on that day. The enquiry officer posted the enquiry for 22.9.1992 and on that day also the respondent did not appear, instead the respondent met the enquiry officer and told that he would not attend the enquiry. The enquiry officer made a note of his unwillingness to attend the enquiry and recorded the statement of witnesses. After recording the statement of witnesses, he gave his report holding that the charges against the respondent of falsification of account and then withdrawal of money after falsification were proved. The Disciplinary Authority after considering the report and giving opportunity to the respondent to make representation, imposed the penalty of dismissal from the service. Against the order of Disciplinary Authority, the respondent preferred a departmental appeal which was dismissed. The respondent thereafter raised an industrial dispute which was referred for adjudication to the Industrial Tribunal in the following terms:
Whether the action of the management of Syndicate Bank, New Delhi in dismissing Shri Sanjay Kapoor, Clerk from service w.e.f. 19.3.1993 is justified? If not, to what relief is the said workman entitled to?
3. The Tribunal after noting the pleas of both the sides observed that there appeared to be a haste in conducting the enquiry. The enquiry officer recorded the statement of management witnesses and gave his report. The workman was not given an opportunity to produce his witnesses. If the workman was not present on 21.9.1992 and 22.9.1992, the enquiry officer should have given a notice to the workman. Thus, The enquiry was conducted in haste. The Tribunal, further observed that no report of hand-writing expert was called and the respondent did not work in the saving bank department so there was no question of manipulation in the record in his own hand-writing. The Tribunal held the enquiry as bad and directed reinstatement of the workman with 50% back wages.
4. The order of the Tribunal is challenged on the ground that the Tribunal has acted contrary to law. The respondent workman was having sufficient knowledge of the enquiry proceedings and was served notice twice. He was present in the bank on the day of the enquiry but did not deliberately attend the enquiry. The Tribunal also failed to consider that the respondent appeared before the enquiry officer and told him that he would not be appearing in the enquiry, it is only then the enquiry officer proceeded ex-parte and the enquiry officer recorded the statement of witnesses of management. It is further submitted by the counsel for petitioner that there was no necessity of examining hand-writing expert. The falsification of the account was evident from the plethora of documents placed on record by the petitioner, the withdrawal slips signed by the respondent who had withdrawn extra amount from his Saving Bank Account after making fake entries in his saving bank account. The Tribunal not only ignored the entire evidence but passed award on conjectures and surmises. However, the Counsel for respondent has defended the award submitting that the enquiry was not conducted properly.
5. The basic principles of natural justice call that no person should be penalised without being heard. This principle requires an opportunity of hearing should be given to the person against whom an action is sought to be taken. But, this principle does not require that if a person, despite having given opportunity does not appear before the enquiry officer for placing his version of the things or refuses to appear or fails to appear, the enquiry officer should not proceed with the enquiry. The law only enjoins a duty to give a fair opportunity to the delinquent, it does not enjoin a duty to physically bring the delinquent by force before the enquiry officer against his willingness and hear him. The tribunal seemed to be suffering under a hangover of trials as are held these days in courts where a trial of case takes years together and adjournment after adjournment is given and even if a party is not present, the party is not proceeded ex-parte and no adverse order is passed. If, an adverse order is passed it is set aside on the next date of hearing when an application is made. An enquiry is different from judicial proceedings. An enquiry is in the nature of investigation where the delinquent employee is given opportunity to present his side of the story and examine his witnesses, if he wants to. In the present case, enquiry officer had given sufficient opportunity to the delinquent. Notices were served upon the delinquent, enquiry officer did not proceed against the delinquent on the very first day when he did not appear on 8th August, 1992. He adjourned the case on 21st September, and then again adjourned the case to 2.30 p.m. on the same day and then to 22nd September, 1992. I consider nothing more could be expected from an enquiry officer. In this case delinquent had told the enquiry officer himself that he would not participate in the proceedings. The enquiry officer was perfectly justified in proceeding ex-parte. I find the approach of the Tribunal contrary to law, contrary to principles of natural justice.
6. In Ranjan Kumar Mitra v. Andrew Yule and Co. Ltd. and Anr. 1997(10) SSC 386 Supreme Court observed that where the employee had chosen not to participate in the enquiry he cannot assail his termination on merits and dismissed the appeal of the appellant. In Karnataka Bank Limited v. A.L. Mohan Rao 2006 LLR 252, Supreme Court observed that misconduct of this nature of an employee colluding with Branch Manager and enabling grant of fictitious loan to some acquaintance/ relative merit termination. It is not for the courts to interfere in case of misconduct of this nature, when the decision of Disciplinary Authority is arrived at after an enquiry conducted in fair and proper manner and misconduct proved. It is for the Disciplinary Authority to decide what is the fit punishment. Supreme Court set aside the order of division bench ordering reinstatement of the employee and observed that such reinstatement amounted to misplaced sympathy.
7. The enquiry report could not have been set aside by the Tribunal on the ground that hand-writing expert was not examined. In this case, the enquiry report was given on the basis of documents namely withdrawal slips signed by the respondents withdrawing amount from his Saving Bank Account from time to time after each falsification of account. He used to add a figure in the ledger of his saving account and then withdraw exactly the same amount afterwards. The modus operandi of the respondent was clear from the documents. There was no necessity of examining any hand-writing expert. There is no denial of the respondent about the withdrawal of the amount and he had deposited the amount back when it was detected that he had been withdrawing amounts by fraud. In Lalit Popli v. Canara Bank and Ors. 2003 (3) SSC 583 Supreme Court observed that the approach of the single judge of High Court as regards the evidence of hand-writing was clearly erroneous. The approach and objective in criminal proceedings and disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the preliminary question is whether the employee is guilty of such misconduct as would merit action against him whereas in criminal proceedings, the question is whether the offence registered against him are established and if established what sentence should be imposed upon. The standard of proof, the mode of enquiry and the rules for holding an enquiry and the trial are conceptually different. In case of disciplinary enquiry, the technical rules of evidence have no application.
8. The Tribunal also observed that the respondent was not working in Saving Account department and there was no question of his manipulating the account. This observation seems to have been made by the Tribunal without having knowledge of working of the bank. In a bank, employees are posted on the basis of trust, and all the employees handle different ledgers and books of accounts. The bank management puts trust into the employees and does not keep a watch on the employees thinking that their employees are working in the interest of the bank. There is no presumption that if the respondent was not working in Saving Account department, he had no opportunity to handle ledgers of his Saving Bank Account.
9. In the present case the Tribunal seems to have misplaced sympathy with the respondent and did not look into the evidence which was available on record of the enquiry proceedings. I find that the order of the Tribunal is perverse and liable to be set aside. I hereby set aside the order of Tribunal. The termination of the respondent was justified. The writ petition is allowed.