INDIAN OVERSEAS BANK & ORS. versus OM PRAKASH LAL SRIVASTAVA on 19 January 2022

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SUPREME COURT REPORTS

[2022] 1 S.C.R.

AINDIAN OVERSEAS BANK & ORS.

v.

OM PRAKASH LAL SRIVASTAVA

(Civil Appeal No. 267 of 2022)

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JANUARY 19, 2022

[SANJAY KISHAN KAUL AND M. M. SUNDRESH,JJ.]

Service Law: Bank service – Disciplinary proceedings –Dismissal from service – Respondent employed in appellant-bank/Cmanagement as a clerk-cum-cashier – A complaint was made by hissister-in-law that respondent had opened and operated saving bankaccount in joint name with her by forging her signatures andencashed demand draft which she had received on death of her husband – Inquiry officer opined that bare comparison of theDsignatures on the account opening form and withdrawal formpurportedly signed by sister-in-law of respondent showed that theywere different, by looking from the perspective of a “banker’s eye”and that all charges against respondent stood proved – DisciplinaryAuthority imposed penalty of dismissal from service – IndustrialTribunal held that the management failed to produce originalEdocuments and most photocopies of the relevant pages were notreadable and thus there was violation of rules of natural justice –However, Tribunal granted an opportunity to the management toprove the charges against the respondent – Management ledevidence by producing five witnesses while respondent examinedFhimself – Tribunal answered the reference against the respondentopining that the management was successful in establishing all thecharges against him and the punishment of dismissal also wascommensurate to the charges levelled and proved against him –Appellant filed writ petition before High Court – High Court allowedwrit petition while remitting matter back to Industrial Tribunal inGrespect of charges 4 and 5 holding that when the earlier departmentalproceedings were found to be violative of the principles of naturaljustice then no findings vis-a-vis charges 1, 2, 3, 6 and 7 shouldhave been arrived at, based on the plea that the management ledevidence only in respect of charges 4 and 5 – In respect of charges4 and 5, it was opined that on the request of the respondent, theH

signatures of his sister-in-law should have been got compared withher admitted signatures by an expert and then only a correctconclusion could have been arrived at and the Tribunal shouldhave refrained from acting like an expert – On management’s appeal,held: High Court applied the test of criminal proceedings todepartmental proceedings while traversing the path of requirementof a hand writing expert to be called for the said purpose – HighCourt opined that only charges 4 and 5 could really have beengone into by the Industrial Tribunal, which required further evidencein its opinion, of a hand writing expert – So far as the other chargeswere concerned, a conclusion was reached that no further evidencewas led – This was neither the correct approach nor borne out ofthe record – In fact, evidence was led – Even earlier, the material inrespect of other charges emanated from the record of themanagement which showed the conduct of the respondent – Thus,even the aspect of the other charges could not have been brushedaside in the manner it purported to – On the matter being remittedback, two witnesses deposed as to these aspects – Respondent wasa clerk-cum-cashier – It was a post of confidence – He breachedthat confidence – In fact, the respondent breached the trust of awidowed sister-in-law as well as of the bank, and, therefore, nocase was made out for interference either on law or on moral grounds– The punishment imposed on the respondent could also not be saidto be disproportionate – The conduct established of the respondentdid not entitle him to continue in service.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. If there is no jurisdictional error or violation ofnatural justice or error of law apparent on the face of the record,there is no occasion for the High Court to get into the merits ofthe controversy as an appellate court. That too, on the aspect ofan opinion formed in respect of two sets of signatures where theinquiry was held by an officer of the bank who came to an opinionon a bare comparison of the signatures that there is a differencein the same. It has been looked at from the perspective of a“banker’s eye”. This is, of course, apart from the testimony ofthe sister-in-law of the respondent. [Para 15][255-C-D]

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A2. The deposition of the sister-in-law of the respondent wasclear and unambiguous. She was staying in a joint family of whichthe respondent was a part. She unfortunately lost her husband inan accident. The two drafts were received from his employer andthose drafts were kept in custody with the respondent, possiblybecause he was a banker and the elder brother of her deceasedBhusband. Instead of extending the benefits of the same to her,the respondent went on a path of opening an account jointly inhis and his sister-in-law’s name, presenting the drafts, and drawingthe amounts with appropriation of the same to himself. His sister-in-law had not even visited the bank to sign the account openingCform or the signature cards, nor had she presented the drafts orsigned the encashment vouchers. In fact, it is only when shecomplained about not receiving the amount that the bank inquiredinto it and, at least, the money was transferred to her. Her cross-examination elicited nothing, nor for that matter was it put to herin cross-examination that she had ever visited the bank, openedDthe account or signed the encashment vouchers. The relationshipsin the family were not estranged nor was there any endeavour to“fix” the respondent by a relative. This evidence was enough toimplicate the respondent. [Para 16][255-F-H; 256-A-B]

3. The High Court appears to have applied the test ofEcriminal proceedings to departmental proceedings whiletraversing the path of requirement of a hand writing expert to becalled for the said purpose. The High Court has opined that onlycharges 4 & 5 could really have been gone into by the IndustrialTribunal, which required further evidence in its opinion, of a handFwriting expert. So far as the other charges are concerned, aconclusion was reached that no further evidence was led. This isneither the correct approach nor borne out of the record.Evidence was led. Even earlier, the material in respect of othercharges emanates from the record of the bank which shows the conduct of the respondent which are apparent from the mannerGof framing of the charges themselves and the material led insupport thereof. Thus, even the aspect of the other charges couldnot have been brushed aside in the manner it purports to. Therespondent breached the trust of a widowed sister-in-law as wellas of the bank. The punishment imposed on the respondent couldH

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also hardly be said to be disproportionate. The conductestablished of the respondent did not entitle him to continue inservice. [Paras 17, 18 and 19][256-B-C; 256-E-H]

Ashoo Surendranath Tewari v. Deputy Superintendentof Police, EOW, CBI (2020) 9 SCC 636 – relied on.

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Lalit Popli v. Canara Bank (2003) 3 SCC 583 : [2003]2 SCR 100; GE Power India Ltd. (Formerly Known asM/s. Alstom Projects Ltd.) v. A. Aziz 2020 SCC OnlineSC 782 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 267 of2022.

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From the Judgment and Order dated 31.05.2018 of the High Courtof Judicature at Allahabad in W.P. (C) No.53458 of 2013.

Neeraj Kumar Jain, Sr. Adv., Krishan Kumar, Kunal Awana,Pratiek Gaur, Nitin Pal, Advs. for the Appellants.

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V. Chithambres, Sr. Adv., Girijesh Pandey, Ramjee Pandey, ShivKumar Tiwari, Kafeel Ahmad, Advs. for the Respondent.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

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1. The appellant-Bank, a nationalised one, took the ultimate stepagainst the respondent as an employee in pursuance of departmentalproceedings having found him guilty on various counts inter alia includingbreach of duty as a custodian of public money and dishonesty, fraud ormanipulation of documents. The Industrial Tribunal ultimately upheld thedecision of the appellant-Bank but in terms of the impugned judgment ofthe Allahabad High Court, five of the charges were found not provedwhile qua two of the charges the matter was remitted back to theIndustrial Tribunal with a limited mandate.

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A2. The said decision was, however, stayed by this Court on5.3.2019.

The facts:

3. The respondent was employed with the appellant-Bank as aclerk- cum-cashier w.e.f. 14.9.1981. The appellant-Bank received aBcomplaint dated 8.10.1994 from the sister-in-law of the respondent, Smt.Meera Srivastava, that the respondent had opened and operated a savingsaccount No. 7882 in the joint name of the respondent and his sister-in-law by forging her signatures, and encashed a demand draft of Rs. 20,000/- which was issued to her by way of interim relief by Kalyan NigamLimited in which her husband was employed as a Junior Engineer, whoChad unfortunately passed away in a road accident on 15.4.1994. Therespondent was placed under suspension on 5.11.1994 by the Bank forcommitting acts of grave misconduct at the Gorakhpur Branch and hewas issued a chargesheet dated 22.3.1995. The charges are as under:

“Charge No.1: On 28.9.94 you went to the clearing house withoutDcollecting the outward clearing cheques from Mr. T.K. Sridharofficer in violation of the specific instructions of the BranchManager Mr. R.N. Saxena and thus you committed an act ofwilful insubordination which is a gross misconduct under para19.5(e) of the Bipartite Settlement dated 19.10.66.

ECharge No.2: You refused to include the outward clearing chequesfor Rs.2,21,161.47 for the day’s clearing on 28.9.94 when Mr.A.K. Chakraborthy and Mr. S.N. Pandey officer handed overthe said cheques at the clearing house before 10.30 a.m., despitethe specific instructions given by them, which is an act of wilfulinsubordination and is a gross misconduct under para 19.5(e) ofFthe Bipartite Settlement dated 19.10.66.

Charge No.3: By refusing to include the outward clearing chequesfor Rs.2,21,161.47 for the day’s clearing on 28.9.94, you causedinconvenience and hardship to the Bank’s customers concernedand thus acted in a manner prejudicial to the interests of the Bank,Gwhich is a gross misconduct under para 19.5(j) of the BipartiteSettlement dated 19.10.66.

Charge No.4: You fraudulently and dishonestly opened savingsbank account No.7882 in the joint names of yourself and yoursister-in-law Mrs. Meera Srivastava by forging the signature ofHthe latter which is an act prejudicial to the interests of the Bank INDIAN OVERSEAS BANK v. OM PRAKASH LAL SRIVASTAVA[SANJAY KISHAN KAUL, J.]

and a gross misconduct under para 19.5(j) of the BipartiteSettlement dated 19.10.66.

Charge No.5: You fraudulently and dishonestly withdrew fromthe joint account No.7882 a sum of Rs.20,000/- (being theproceedings of the demand draft issued in favour of Mrs. MeeraSrivastava and credited into the account) in two instalments ofRs.7,000/- and Rs.13,000/- on 20.5.94 and 13.6.94 respectivelyby forging the signature of Mrs. Meera Srivastava in thewithdrawal slip which is an act prejudicial to the interests of theBank and a gross misconduct under para 19.5(j) of the BipartiteSettlement dated 19.10.66.

Charge No.6: By Gheraoing the Branch Manager Mr. R.N.Saxena along with a few outsiders and staff members, bythreatening and abusing the Branch Manager I unparliamentarylanguage and by forcibly taking the copy of the suspension orderafter searching the Branch Manager’s brief case, table drawerand his pocket on 9.11.94, you behaved in a riotous, disorderlyand indecent manner which is a gross misconduct under para19.5(c) of the Bipartite Settlement dated 19.10.66.

Charge No.7: By erasing i) your own acknowledgement containedin the duplicate copy of the suspension order dated 5.11.94, ii) thenarration made against your name in the attendance registerthrough application of white fluid, you tampered with the recordsof the branch and thus acted in a manner prejudicial to the interestof the Bank which is a gross misconduct under para 19.5(j) of theBipartite Settlement dated 19.10.66.”

4. The respondent denied the allegations in response to thechargesheet. An inquiry officer was appointed to adjudicate upon thecharges. It is the appellant’s case that all principles of natural justicewere followed and the respondent was supplied with all documents/material relied upon by the appellant-Bank. The inquiry officer concludedthe inquiry and submitted the report dated 6.12.1995 opining that allcharges stood proved against the respondent. Consequently, therespondent was served with a show cause notice dated 28.2.1996 bythe Disciplinary Authority proposing the punishment of dismissal fromservice. The respondent submitted a reply but the Disciplinary Authorityafter considering the reply proceeded to uphold the finding and imposethe penalty of dismissal from service vide order dated 11.5.1996.

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5. The respondent filed an appeal before the appellate authoritybut the appellate authority rejected the appeal vide order dated 10.9.1996.

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6. The respondent sought to raise an industrial dispute and theCentral Government referred the dispute vide G.O. dated 30.10.2003 tothe Presiding Officer, Central Government Tribunal-cum-Labour Court,BKanpur on the issue whether the action of the Management imposingthe penalty of dismissal was justified and legal.

7. The proceedings were contested before the Tribunal and theTribunal framed a preliminary issue on the question of fairness of thedomestic inquiry. The Tribunal vide order dated 15.11.2011 decided thepreliminary issue against the appellant as the appellant- Management/CBank had failed to produce original documents and most photocopies ofthe relevant pages were not readable. It was, thus, concluded that therewas violation of the principles of natural justice. However, the Tribunalgranted an opportunity to the appellant-Bank to prove the charges againstrespondent by adducing evidence. The Bank led its evidence by producingDfive witnesses while the respondent examined himself. The Tribunal videaward dated 21.2.2013 answered the reference against the respondentopining that the appellant- Bank/Management had been successful inestablishing all the charges against the respondent. On the issue ofquantum of punishment also it was held that the same was commensurateto the charges levelled and proved against the respondent.E

8. The appellant sought to assail this order of the Tribunal by filingwrit petition, being WP(C) No. 53458/2013, before the High Court ofJudicature at Allahabad. In terms of the impugned judgment dated31.5.2018, the said writ petition has been allowed while remitting matterback in respect of charges 4 & 5. The impugned judgment held thatFwhen the earlier departmental proceedings were found to be violative ofthe principles of natural justice then no findings vis-a-vis charges 1, 2, 3,6 & 7 should have been arrived at, based on the plea that the Bank ledevidence only in respect of charges 4 & 5. In respect of charges 4 & 5it was opined that on the request of the respondent the signatures ofMrs. Meera Srivastava should have been got compared with her admittedGsignatures by an expert and then only a correct conclusion could havebeen arrived at whether the signatures on the account opening form orthe withdrawal form have been forged by the respondent or not and theTribunal should have refrained from acting like an expert. This was soas fraud was alleged and a degree of investigation should have been aHstandard which is resorted to by a criminal court.

9. We may notice at this stage that the inquiry officer had opinedthat while observing the admitted signatures in comparison with thesignatures in question from a banker’s eye it could be said that there isabsence of similarity. Mrs. Meera Srivastava’s claim was that even theaccount was opened fraudulently without her ever visiting the bank. Theposition was the same with respect to two withdrawal slips of Rs.7,000/- and Rs.13,000/-. Mrs. Meera Srivastava had corroborated this aspectin her deposition. In the deposition she accepted that both her and therespondent were members of a joint family but the drafts were given tothe respondent for safe-keeping and when after one and a half monthshe asked the respondent to return her draft he refused to do so on onepretext or the other. Thus, two or three months later she complained tothe bank on learning that the drafts had been encashed at the Branch.On making the complaint she got her money from the Bank. In hercross- examination it was never put to her that she had gone to the Bankto open the account and the account opening form bears her signaturesnor was it put to her that she had gone to the Bank to withdraw theamounts of Rs.7,000/- and Rs.13,000/-. Her statement was opined tohave been trustworthy by both the inquiry officer and the IndustrialTribunal.

Submissions of the Appellant:

10. It was the submission of the learned counsel for the appellantthat the High Court fell into an error in applying the standards of proof ofcriminal proceedings to disciplinary proceedings as the misconduct byan employee in disciplinary proceedings is to be evaluated on the basisof probabilities and preponderance of evidence. There was sufficientevidence to show that the respondent committed fraud and forgery bymanipulating the signatures of the complainant Mrs. Meera Srivastava,opening an account, operating the account and appropriating the sum ofRs.20,000/- received through a demand draft as compensation on thedemise of her husband. The respondent took advantage of thecomplainant being his sister-in-law. The complainant has given clearand unequivocal testimony on oath before the Tribunal and nothing hadcome out to the contrary in her cross-examination. In fact, regardingthis aspect, it was submitted that there was no material cross-examinationand there is no reason to doubt her testimony.

11. Insofar as the remaining charges are concerned, the documentsled to an irresistible conclusion that even those charges relating to AB

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Ainsubordination, disobeying the orders of the higher authorities, forgingthe suspension letters were proved and even by themselves weresufficient to award the punishment of dismissal from service.

Submissions of the Respondent:

12. Learned counsel for the respondent on the other hand pleadedBthat in terms of the impugned judgment charges other than charges 4 &5 were in any case not proved as no evidence had been led in that behalfand reliance could not be placed only on documents.

13. It was further submitted that charges 4 & 5 were also notproved and sought to refer to the judgment of this Court in Lalit Popli v.CCanara Bank[1]more specifically para 13, which reads as under:

“13. It is to be noted that under Sections 45 and 47 of the EvidenceAct, the Court has to take a view on the opinion of others, whereasunder Section 73 of the said Act, the Court by its own comparisonof writings can form its opinion. Evidence of the identity ofDhandwriting is dealt with in three Sections of the Evidence Act.They are Sections 45, 47 and 73. Both under Sections 45 and 47the evidence is an opinion. In the former case it is by a scientificcomparison and in the latter on the basis of familiarity resultingfrom frequent observations and experiences. In both the cases,the Court is required to satisfy itself by such means as are open toEconclude that the opinion may be acted upon. Irrespective of anopinion of the Handwriting Expert, the Court can compare theadmitted writing with disputed writing and come to its ownindependent conclusion. Such exercise of comparison is permissibleunder Section 73 of the Evidence Act. Ordinarily, Sections 45 andF73 are complementary to each other. Evidence of HandwritingExpert need not be invariably corroborated. It is for the Court todecide whether to accept such an uncorroborated evidence ornot. It is clear that even when experts’ evidence is not there,Court has power to compare the writings and decide the matter.[See Murari Lal vs. State of Madhya Pradesh (1980) 1 SCCG704]”

Conclusion:

14. On having considered the rival submissions of the learnedcounsel for the parties, we are of the view that the High Court has fallen into an error in coming to the conclusion in the impugned judgment anddirecting, once again, the matter to be remitted to the Industrial Tribunalto now seek opinion of a hand writing expert.

15. We would like to emphasise at the threshold that there arecertain inherent legal limitations to the scrutiny of an award of a Tribunalby the High Court while exercising jurisdiction under Article 226 of theConstitution of India. We may refer to the judgment of this Court in GEPower India Ltd. (Formerly Known as M/s. Alstom Projects Ltd.) v.A.Aziz[2]. If there is no jurisdictional error or violation of natural justice orerror of law apparent on the face of the record, there is no occasion forthe High Court to get into the merits of the controversy as an appellatecourt. That too, on the aspect of an opinion formed in respect of twosets of signatures where the inquiry was held by an officer of the bankwho came to an opinion on a bare comparison of the signatures thatthere is a difference in the same. It has been looked at from theperspective of a “banker’s eye”. This is, of course, apart from thetestimony of the sister- in-law of the respondent.

16. We have in the course of noting the submissions of the learnedcounsel for the parties in the context of the factual matrix recorded inpara 9 that the Inquiry Officer had himself opined while observing theadmitted signatures in comparison with the signatures in question from a“banker’s eye”, it was not just the ipse dixit of the Inquiry Officer butwas based on the deposition of the sister-in-law of the respondent, Mrs.Meera Srivastava. The deposition of Mrs. Meera Srivastava was clearand unambiguous. She was staying in a joint family of which therespondent was a part. She unfortunately lost her husband in an accident.The two drafts were received from his employer and those drafts werekept in custody with the respondent, possibly because he was a bankerand the elder brother of her deceased husband. Instead of extending thebenefits of the same to her, the respondent went on a path of opening anaccount jointly in his and his sister-in-law’s name, presenting the drafts,and drawing the amounts with appropriation of the same to himself.Mrs. Meera Srivastava had not even visited the bank to sign the accountopening form or the signature cards, nor had she presented the drafts orsigned the encashment vouchers. In fact, it is only when she complainedabout not receiving the amount that the bank inquired into it and, at least,the money was transferred to her. Her cross-examination elicited nothing, AB

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Anor for that matter was it put to her in cross-examination that she hadever visited the bank, opened the account or signed the encashmentvouchers. The relationships in the family were not estranged nor wasthere any endeavour to “fix” the respondent by a relative. In our viewthis evidence was enough to implicate the respondent.

B17. The High Court appears to have applied the test of criminalproceedings to departmental proceedings while traversing the path ofrequirement of a hand writing expert to be called for the said purpose.This would go contrary to the settled legal position enunciated by thisCourt. It would suffice for us to refer to a recent judgment in AshooSurendranath Tewari v. Deputy Superintendent of Police, EOW,CCBI[3] where it has been observed while referring to earlier judicialprecedents, that the standard of proof in departmental proceedings, beingbased on preponderance of probability, is somewhat lower than thestandard of proof in criminal proceedings where the case has to be provedbeyond reasonable doubt.D

18. We may also notice that the High Court has opined that onlycharges 4 & 5 could really have been gone into by the Industrial Tribunal,which required further evidence in its opinion, of a hand writing expert.So far as the other charges are concerned, a conclusion was reachedthat no further evidence was led.

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19. In our view this is neither the correct approach nor borne outof the record. Evidence was led. Even earlier, the material in respect ofother charges emanates from the record of the bank which shows theconduct of the respondent which are apparent from the manner of framingof the charges themselves and the material led in support thereof. Thus,Feven the aspect of the other charges could not have been brushed asidein the manner it purports to. On the matter being remitted back, twowitnesses deposed as to these aspects, being MW-3 and MW-4. Therespondent was a clerk-cum-cashier. It is a post of confidence. Therespondent breached that confidence. In fact, the respondent breachedthe trust of a widowed sister-in-law as well as of the bank, making itGhardly a case for interference either on law or on moral grounds. Thepunishment imposed on the respondent could also hardly be said to bedisproportionate. The conduct established of the respondent did not entitlehim to continue in service.

INDIAN OVERSEAS BANK v. OM PRAKASH LAL SRIVASTAVA[SANJAY KISHAN KAUL, J.]

20. We are, thus, of the view that the impugned judgment dated31.5.2018 of the High Court is liable to be set aside and the challenge tothe award of the Industrial Tribunal dated 21.2.2013 is repelled.

21. The appeal is accordingly allowed leaving the parties to beartheir own costs.

Devika Gujral

Appeal allowed.

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