advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, March 7, 2017

the employee filed a response on 13.01.2017 reiterating that she had “... actually applied for revaluation of Part II of CAIIB Examination in the year 2000 ...”. A copy of the application also was produced along with reply as Annexure-R1. It is a handwritten letter by the Management-Bank to the Institute of Bankers on 08.09.2000 but enclosing a draft dated 14.09.2000. There is also an alleged endorsement of receipt of the letter by the Institute on 18.09.2000 on hand delivery. It may be noted that the forged certificate of pass in the examination and the memorandum accompanying it are dated 04.09.2000. One wonders as to what was the need for revaluation once a candidate had been declared successful on 04.09.2000, leave alone the anachronic error on the dates on the application and the draft! We reluctantly refrain from making any further observations in this regard.

                                                                  REPORTABLE

                           SUPREME COURT OF INDIA



                        CIVIL APPELLATE JURISDICTION



                       CIVIL APPEAL NO. 3423  OF 2017
                (Arising out of S.L.P.(Civil) No. 33070/2013)


THE MANAGEMENT OF STATE BANK OF INDIA   ...  APPELLANT (S)



                                   VERSUS



SMITA SHARAD DESHMUKH AND ANOTHER   ... RESPONDENT (S)



                           J  U  D  G  M  E  N  T



KURIAN, J.:



Leave granted.

The appellant (hereinafter referred to as “the Management”) is aggrieved  by
the impugned judgment  of  the  High  Court  whereby  the  first  respondent
(hereinafter referred to as “the employee”) was directed  to  be  reinstated
in service with 50 per cent back wages, reversing the order  passed  by  the
Industrial Tribunal-cum-Labour Court. The employee, while working  with  the
Management,  submitted  a  certificate  purportedly  issued  by  the  Indian
Institute of  Bankers  claiming  that  she  had  passed  the  CAIIB  Part-II
Examination,  and  on  that  basis,  started  drawing  additional   monetary
benefits. The Disciplinary Authority, based on the  finding  in  a  domestic
enquiry that the certificate was a forged one, dismissed  her  from  service
on 01.08.2003. The punishment was upheld by  the  Appellate  Authority  vide
order dated 10.06.2006. The Industrial  Tribunal-cum-Labour  Court  declined
to grant any relief. However, the High Court ordered reinstatement  with  50
per cent back wages, and  thus  aggrieved,  the  Management  has  filed  the
appeal.

The only ground on which the High Court interfered with the award  was  that
the Management had not established, by leading evidence, that  the  employee
was aware of the fact that the certificate produced  before  the  Management
was forged. To quote from impugned judgment:
“6. The question, therefore, before the  Enquiry  Officer  was  whether  the
petitioner knew at the time of submission of the  forged  document  that  it
was forged one. The Presenting Officer in the domestic enquiry did not  lead
any evidence to prove the knowledge and it appears  that  everyone  went  on
presuming that the petitioner knew about the  forgery  since  prior  to  its
production before the employer. Due to the fact that she produced it on  the
employer’s record and that she received monetary benefits  because  of  such
production, every one believed  that  she  ought  to  know  that  it  was  a
forgery. This  conclusion  of  the  Enquiry  Officer  is  grossly  incorrect
because it is based on guess work. He could have said that there  is  strong
doubt in his mind that the petitioner knew before hand that the  certificate
was a forgery. But, he ought to have asked the Presenting  Officer  to  lead
further evidence to prove that the petitioner knew  that  the  document  she
produced was forgery. Neither the Presenting  Officer  realised  this  gross
lacuna in their case. On the basis of this  guess  and  doubt,  the  enquiry
officer held the petitioner guilty of  misconduct.  This,  in  my  view  was
grossly incorrect decision.”





We find it difficult to appreciate the  strange  stand  taken  by  the  High
Court. The Labour Court had clearly analysed the  entire  evidence  and  had
come to the conclusion that the employee was fully  aware  of  the  forgery.
The Tribunal took note of the fact that she  had  produced  a  copy  of  the
postal receipt of dispatching the certificate from the Institute of  Bankers
in her evidence but failed to explain the source of the postal  receipt.  It
also took note of the fact that the alleged  certificate  of  having  passed
the examination is dated 04.09.2000. If that be so, there  was  no  occasion
for asking for               any re-verification of the marks by  filing  an
application dated 08.09.2000. Still further, the Court extensively  referred
to the reply  furnished  by  the  Institute  of  Bankers  and  came  to  the
conclusion that the certificate was a forged one. To quote  from  paragraph-
10 of the award dated 30.08.2011  passed  by  the  Industrial  Tribunal-cum-
Labour Court:

“10. ....The workman has claimed  that she received  the  pass  certificates
from the Indian Institute of Bankers by registered speed post  in  her  home
address and filed the same before the authority. In support  of  her  claim,
she filed an envelope to show that the certificate in question was  sent  to
her in the said envelop by the Indian Institute of  Bankers.  However,  from
by merely filing of the envelope, it cannot be held that the certificate  in
question was sent by the Institute in question to the workman  in  the  said
envelope. Moreover, there are other suspicious  circumstances  which  create
doubt regarding the said claim  of  the  workman.  If  the  certificate  was
actually sent in the said envelop by the  Indian  Institute  of  Bankers  by
registered speed post from Mumbai to the workman in her home  address,  then
the  receipt  granted  by  the  post  office  for  sending  the  envelop  by
registered speed post must have been  granted   to  the  institute  and  the
institute should have in possession of the  same  in  the  office,  to  keep
account of the same, but the workman has also filed the zerox  copy  of  the
receipt alongwith  of the envelope, to show the  date  of  dispatch  of  the
envelope, but she did not say how she was in possession of the  said  postal
receipt.  It is also pleaded by the workman in the statement of  claim  that
she failed in part II of CAIIB examination and applied for  verification  of
marks visiting in person to CAIIB office at Mumbai and on  verification  and
revaluation, she was declared pass. In the statement of claim  she  had  not
mentioned the date of her visit to CAIIB office. However, she has filed  the
zerox copy of the  letter,  Exhibit  W-17  to  show  that  she  applied  for
revaluation of her answer paper and  the  said  letter  shows  that  it  was
submitted on 18.9.2000.  However, Exhibit W-15, filed by the  workman  shows
that by letter dated 4.9.2000, she was intimated by the Indian Institute  of
Bankers that she had completed the Associate examination  of  the  Institute
and is entitled to receive the relevant  certificate.  If  the  workman  had
received the intimation of completion of the examination, then there was  no
question of her applying for revaluation of the  examination  paper  and  if
she had failed in the examination  and  she  approached  the  Institute  for
revaluation of her answer paper on 18.09.2000, then there  was  no  question
of the Institute intimating her by letter  dated  04.09.2000  regarding  her
completion of the examination and issuance of  the  certificate.  So  it  is
clear from the  materials  produced  by  the  parties  in  the  departmental
proceedings that the workman knowingly  produced  the  pass  certificate  of
part II CAIIB examination, which was a fabricated one, for monetary gain  on
ongoing basis and the findings of the  enquiry  officer  are  based  on  the
materials on record and are not perverse.....”



The evidence led by the employee, as rightly appreciated by  the  Industrial
Tribunal, would clearly show that she had the knowledge  that  the  document
she produced was a forged one. Therefore, there was no  requirement  on  the
part of the Management to establish whether she had known, at  the  time  of
submission of the document, that it was a forged one.



It  is  a  well-settled   principle   that   the   High   Court   will   not
        re-appreciate the evidence  but  will  only  see  whether  there  is
evidence in support of the impugned conclusion. The court has  to  take  the
evidence as it stands and its  only  limited  jurisdiction  is  to  examine,
whether on the evidence, the conclusion could have been arrived at.  (See  -
Union of India v.  H.C. Goel[1]) .



In the case of Bank of India and another v. Degala  Suryanarayana[2],  after
referring to H.C. Goel case (supra), this Court held at paragraph-11 :-

“11. Strict rules of evidence are not  applicable  to  departmental  enquiry
proceedings. The only requirement of law is that the allegation against  the
delinquent officer must be established by such evidence acting upon which  a
reasonable person acting reasonably and with objectivity  may  arrive  at  a
finding  upholding  the  gravamen  of  the  charge  against  the  delinquent
officer. Mere conjecture or surmises cannot sustain  the  finding  of  guilt
even  in  departmental  enquiry  proceedings.  The  court   exercising   the
jurisdiction of judicial review would not interfere  with  the  findings  of
fact arrived at in the departmental enquiry proceedings excepting in a  case
of mala fides or perversity i.e. where there is no  evidence  to  support  a
finding or where a finding is such that no man acting  reasonably  and  with
objectivity could have arrived at that  finding.  The  court  cannot  embark
upon reappreciating the evidence or weighing  the  same  like  an  appellate
authority. So long as there is  some  evidence  to  support  the  conclusion
arrived at by the departmental authority, the same has to be sustained. …”


We do not think it necessary to refer to any other  judgments  on  the  same
point, since the same principle has been only  followed  and  reiterated  in
all those decisions.



In the case before us, it is  an  admitted  position  that  the  certificate
produced by the employee is a forged one. It has  been  categorically  found
by the Industrial Tribunal, on the basis of evidence, that the employee  was
fully aware of the fact  that  the  document  was  a  forged  one.  In  such
circumstances, there is no basis at all for the  stand  taken  by  the  High
Court that the Management did not establish that the employee had  knowledge
about the certificate being a forged one.



Despite the factual and legal position  as  above,  we  had  made  one  more
attempt for the verification  of  the  certificate  from  the  Institute  of
Bankers. Thus, on 08.08.2016, this Court passed the following order:

“The Deputy Director (Examinations)  of  The  Indian  Institute  of  Bankers
shall inform this Court as to whether the  candidate  Mrs.  S.  S.  Deshmukh
(Membership No. 5880536) had actually applied for revaluation of Part II  of
CAIIB Examination in the year 2000 and what is  the  action  taken  on  that
application and also whether the action thus taken,  was  informed  to  Mrs.
Deshmukh.



Needless to say that in the report, it would  be  made  clear  that  whether
Mrs. Deshmukh had actually passed in the revaluation.



The report shall be submitted to the Registrar of  this  Court  within  four
weeks from today.



The Registry shall communicate a copy of this order to the Deputy  Director,
Indian Institute of Bankers forthwith.



In addition, a copy of  this  order  be  given  Dasti  to  the  parties  for
communication.



Post on 21.09.2016.”



The Institute has, by its  letter  dated  03.09.2016,  informed  this  Court
that:

“Ref : IIBF/CO/EXAM/4832/2016        3rd September, 2016

The Registrar

Supreme Court of India,

Tilak Marg,

New Delhi-110 201

(India)



Sir,



Re: SLP (C) No. 33070/2013

In the matter of –



The Management of State Bank of India

                            v/s

Smita Sharad Deshmukh & Another.



This has reference to order date the 8th August, 2016 by the  Hon’ble  Court
in the captioned matter interalia seeking details from the Institute  as  to
whether the candidate  Mrs.  S.S.  Deshmukh  (Membership  No.  5880536)  had
actually applied for revaluation of part II of CAIIB Examination.



In this connection this is to inform that Mrs.  Deshmukh  had  appeared  for
following  2  subjects  in  May/June  2000  Examination  conducted  by   the
Institute and has secured the marks shown against each of the subjects.

      1. Practice & Law of Banking – 45  Marks

      2. Indian Economics Problem – 23 Marks



This is to  inform  further  that  the  Institute  has  provision  only  for
verification of marks and no request was received  from  Mrs.  Deshmukh  for
verification of marks in connection with above said examination.



Thanking you,

Yours faithfully,



(Joint Director)

Examination”



Despite the clear position as  above,  the  employee  filed  a  response  on
13.01.2017 reiterating that she had “... actually  applied  for  revaluation
of Part II of CAIIB Examination in  the  year  2000  ...”.  A  copy  of  the
application also was produced along with  reply  as  Annexure-R1.  It  is  a
handwritten letter by the Management-Bank to the  Institute  of  Bankers  on
08.09.2000 but enclosing  a  draft  dated  14.09.2000.   There  is  also  an
alleged endorsement of receipt of the letter by the Institute on  18.09.2000
on hand delivery. It may be noted that the forged  certificate  of  pass  in
the examination and the memorandum accompanying  it  are  dated  04.09.2000.
One wonders as to what was the need for revaluation  once  a  candidate  had
been declared successful on 04.09.2000, leave alone the anachronic error  on
the dates on the application and the  draft!  We  reluctantly  refrain  from
making any further observations in this regard.



Though learned counsel for  the  employee  made  a  persuasive  attempt  for
modification of punishment on the ground of disproportionality, in  view  of
the conduct of the employee which we have referred  to  above,  we  are  not
inclined to take a different  view  from  that  taken  by  the  Disciplinary
Authority,  Appellate  Authority  and  the  Industrial   Tribunal-cum-Labour
Court.



The impugned judgment of the High Court is  set  aside  and  the  appeal  is
allowed. However, we make it clear that there shall be no  recovery  of  the
wages and benefits already paid to her.



There shall be no order as to costs.



............................J.
(KURIAN JOSEPH)




............................J.
(A.M. KHANWILKAR)

NEW DELHI;
MARCH 1, 2017.
-----------------------
[1]     (1964) 4 SCR 718
[2]     (1999) 5 SCC 762


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.