Not Necessary To Call For Handwriting Experts In Departmental Enquiry; Test Of Criminal Proceedings Not Applicable: Supreme Court

A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh allowed an appeal filed by Indian Overseas Bank assailing the order of the Allahabad High Court, which had found five out of seven charges against the respondent-employee to have not been established and with respect to the other charges remitted the matter back to the Industrial Tribunal. It is pertinent to mention herein that the Tribunal had upheld the decision of the Bank to dismiss the respondent from service.

Factual Background

On 14.09.1981 the respondent was appointed as a clerk-cum-cashier at the Indian Overseas Bank ("Bank"). On 08.10.1994, the Bank received a complaint from the sister-in-law of the respondent that he had opened a joint account in their name by forging her signatures and have encashed a demand draft of Rs. 20,000 issued to her by her husband's employer, Kalyan Nigam Limited, as compensation for his demise. The Bank suspended the respondent on 05.11.1994, inter alia, for his gross misconduct and wilful subordination and he was sent a statement of charge on 22.03.1995. An inquiry officer adjudicated the charges following the principles of natural justice and concluded that the charges stood proved. The Disciplinary Authority issued a show cause notice on 28.02.1996 and upon consideration of the response submitted by the respondent dismissed him from service by its order dated 11.05.1996. His appeal was also rejected. Thereafter, the respondent raised an industrial dispute, which was referred to the Industrial Tribunal at Kanpur to adjudicate if the dismissal was justified. On the preliminary issue framed by the Tribunal, it held that the Bank had acted in violation of natural justice but finally it decided the reference against the respondent as the Bank succeeded in establishing the charges. The respondent challenged the award which was quashed by the Allahabad High Court and the matter was remitted back to the Tribunal for adjudication of the 4th and 5th charges (charges with respect to fraud and forgery in opening the joint account and encashing the demand draft).

Submissions made by the appellant

The Senior Counsel appearing on behalf of the Bank argued that the High Court had erred in applying standards of proof adopted in a criminal proceeding to a disciplinary proceeding. The misconduct ought to be established on the 'preponderance of probabilities' and not 'beyond reasonable doubt'. It was contended that there was ample evidence to show that the respondent had indulged in fraud and forgery in opening the joint account and appropriating money from the same. The sister-in-law had given clear and unequivocal testimony in this respect. So far as the charges of insubordination and misconduct there was sufficient evidence to award punishment to the respondent.

Submissions made by the respondent

The Counsel appearing on behalf of the respondent submitted that charges other than the 4th and the 5th had not been proved as no evidence was led in that regard. Referring to Lalit Popli v. Canara Bank (2003) 3 SCC 583, the Counsel argued that the 4th and 5th charges were also not proved as the handwriting was not examined by an expert.

Analysis by the Supreme Court

At the outset, citing GE Power India Ltd. (Formerly known as M/s. Alstom Projects Ltd) v. A. Aziz 2020 SCC OnLine SC 782, the Court observed that under Article 226 of the Constitution of India, the High Court had limited scope to scrutinise the award passed by the Tribunal. Without there being any jurisdictional error or violation of natural justice or error of law apparent on the face of the record, the High Court should not have gotten into the merits of the dispute. Moreso, the inquiry officer had compared two signatures and found them to be different. The Court noted that it has been looked at from the perspective of a "banker's eye". The clear and unequivocal testimony of the sister-in-law and the fact that the same could not be controverted in cross examination, was taken note of. The Court further observed that the sister-in-law neither went to the bank nor presented the draft for encashment. Considering the submission of the Counsels for both the parties, the Court was of the view that there was enough evidence to implicate the respondent. Placing reliance on Ashoo Surendranath Tewari v. Deputy Superintendent of police, EOW, CBI (2020) 9 SCC 636, the Court opined that the High Court had applied the test of criminal proceedings in a departmental processing by calling for an handwriting expert to examine the signatures. The Supreme Court further refuted the findings of the High Court that the Tribunal could have gone into only the 4th and 5th charges because for the other 5 charges no evidence was led by the Bank and even for the 4th and 5th charges the opinion of a handwriting expert was required. Justifying dismissal as the appropriate punishment, the Court remarked -

"The respondent was a clerk-cum-cashier. It is a post of confidence. The respondent breached that confidence. In fact, the respondent breached the trust of a widowed sister-in-law as well as of the bank, making it hardly a case for interference either on law or on moral grounds. The punishment imposed on the respondent could also hardly be said to be disproportionate. The conduct established of the respondent did not entitle him to continue in service."

Case Name: Indian Overseas Bank And Ors. v. Om Prakash Lal Srivastava

Citation: 2022 LiveLaw (SC) 66

Case No. and Date: Civil Appeal No. 267 of 2022 | 19 Jan 2022

Corum: Justices Sanjay Kishan Kaul and M.M. Sundresh

Counsel for the Appellant: Senior Advocate, Mr. Neeraj Kumar Jain, Advocate-on-Record, Mr. Krishan Kumar, Advocates, Mr. Atul Sheopuri and Mr. Nitin Pal.

Counsel for the Respondent: Advocate-on-Record, Mr. Ramjee Pandey, Advocates, Mr. Girijesh Pandey and Mr. Kafeel Ahmad.

Click Here To Read/Download Judgment