FRANCIS VINCENT NEELANKOVIL TRICHUR Vs. INDUSTRIAL TRIBUNAL MADRAS

JUDGEMENT

(1.) The judgment of the learned single Judge, allowing the writ petition filed by the second respondent bank (in short 'the bank'), challenging the award passed by the Industrial Tribunal and upholding the order of dismissal by the bank, is in challenge before us.

(2.) The appellant herein was employed as a clerk in Purasawalkam branch of the bank. On 15/12/1977, a demand draft dated 12/11/1977 issued by the National Bank of Omen, drawn in favour of one K.C. Appukuttan was brought to the bank by one V.T. Lazar, who had account in that bank, for being deposited in his account. That draft was endorsed by the said payee. The draft was presented along with the usual pay-in slip at the counter of the bank, which was manned by the appellant. It later on turned out that the amount covered in the said demand draft was not credited to the account of V.T. Lazar and, therefore, he complained to the bank. He also produced the counterfoil which disclosed that the demand draft, which was made payable at the Bank of America was received from V.T. Lazar for being credited to his account. On the complaint being received, it was found that the amount was deposited in the name of the appellant, who had received the said draft along with the pay-in slip duly filled in. The amount covered by the said draft was credited to the account of the appellant on 16/12/1977 and on the very next day, he also drew the money from his bank account. The appellant kept on working in the bank till 26/12/1977 and thereafter, gave a leave letter and went on leave on account of his alleged illness. He did not turn up for the work for more than two months. He produced a medical certificate. The bank, on the basis of the complaint given by Lazar, instituted an enquiry and an explanation was called on the basis of the said complaint dated 9/01/1978. The appellant wrote a letter on 20/01/1978 wherein he owned up the two charges levelled against him and urged that the charges were true and that he had committed the said acts by mistake and without thinking about the seriousness of his action and he sought apologies. He also wrote that he was prepared to accept the disciplinary action without any reservation. The departmental enquiry proceeded in respect of i the fraud played by the appellant because in the investigation it came to light that the appellant had fraudulently written his name in the main foil of the pay-in slip while on the counterfoil meant for the customer, the name of Lazar was written. The counterfoil also bore a portion of the rubber-stamp of the bank, suggesting that the draft mentioned therein was deposited in the bank. The appellant took part in the enquiry. He cross-examined witnesses also. He also examined himself. The said Lazar was also thoroughly examined and he supported his case to the hilt. He gave out a statement that after depositing the draft, he left the bank in a hurry and the appellant had given him the counter-foil of the pay-in slip in the evening at his residence. He also asserted that he enquired with the appellant as to whether the amount had been collected and he was told by him that it will take some time as it was the year-end closing time. He also further asserted that he had gone to enquire from the appellant but he was not in the bank and, therefore, made a complaint to the Branch Manager of the bank, who after making enquiries, found that the amount covered by the said demand draft had in fact been collected and credited to the account of the appellant instead of Lazar. Though he was cross-examined, nothing really came out of the cross-examination in respect of the material allegations. The bank Manager was also examined and he pointed out that the draft had been sent for collection and was also realised on' 16/12/1977 and the amount was credited on 16/12/1977 to the account of the appellant and was withdrawn by him also. The defence raised by the appellant was slightly unusual. He said that he accepted that the draft was given to him by Lazar for collection but, he claimed that on the following day he found that there was no signature of Lazar on the reverse side of the draft and, therefore, he thought of saving time and put his own signature on the reverse and got the draft credited to his own account. According to him, he had drawn the money only with an intention to give it back to Lazar but he could not do so as later on he fell ill. The appellant was found guilty on all the counts. In reply to the second notice before proposing the punishment, the appellant asserted that he had already paid the amount to the customer without furnishing any details about the date and place of payment. Ultimately, he came to be dismissed from service on 10/06/1978. The dismissal order was challenged before the Industrial Tribunal vide I.D. No. 85 of (sic). No oral evidence was let in by either party. Exhibit M-1 to M-28 were marked by consent of the Management. The appellant also did not challenge the enquiry. The Tribunal endorsed the finding of misconduct perhaps because those findings were never challenged before it. The finding of the Tribunal is to be found in paragraph 6. The Tribunal had gone on to observe that the bank had paid the amount to Lazar on 9/01/1978 and that since the appellant had learnt about the said payment having been made by the bank, he paid the same to the bank. The Tribunal noted that since the bank could not confirm this claim by the appellant due to the non-availability of the records, the Tribunal held that the money was returned by the appellant was correct. Ultimately, the Tribunal held that though the misconduct was proved, which was the subject- matter of the first charge, the third charge of unauthorised absence was only a minor misconduct. The Tribunal dubbed the whole affair as a 'temporary misappropriation made in a momentary fit of indiscretion'. The Tribunal, therefore, came to the conclusion that the appellant was entitled to the sympathetic treatment and, therefore, came to the conclusion that the punishment was more harsh than necessary and thus set aside the dismissal and directed the reinstatement with continuity in service as also 50% of the back wages.

(3.) The order of the Tribunal was challenged by the bank before the learned single Judge and it was contended that the discretion shown by the Tribunal was perverse. It was pointed out that in the wake of proved misconduct, that too of a very serious nature, the Tribunal could not have dubbed it as an 'act of momentary indiscretion'. It was pointed out that the misconduct of misappropriation was complete and could not be said to be temporary because it is nowhere proved that the appellant had in any manner returned the money to the bank. It was also pointed out to the learned single Judge that it was a case of absolute fraud involving more than one offence under the Indian Penal Code that the appellant had in fact prepared false documents and had misappropriated the money and had further falsely claimed that the misappropriated amount was returned to the bank for which there was absolutely no basis. The Tribunal, therefore could not have merely dubbed it as an 'act of momentary indiscretion' without analysing the grave nature of the fraud played by the appeallant. The learned single Judge allowed the writ petition and that is how the matter is before us.