REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2957 OF 2011

[ARISING OUT OF SLP (CIVIL) NO.18301 OF 2010]

S.B.I. … APPELLANT VERSUS

HEMANT KUMAR … RESPONDENT

J U D G M E N T

Aftab Alam, J.

1. Delay condoned. 2. Leave granted. 3. This appeal is directed against the judgment  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  

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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  

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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.  

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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  

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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.  

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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  

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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  

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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

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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.  

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