S.B.IversusHEMANT KUMAR

                        (2011) 4 S.C.R. 280

A                               S.B.I.
                                  v.
                         HEMANT KUMAR
                  (Civil Appeal No. 2957 of 2011)

                           APRIL 6, 2011
B
              [AFTAB ALAM AND R.M. LODHA, JJ.]

          Service law: Disciplinary proceedings - Misappropriation
    of funds - Enquiry - Delinquent employee remaining absent
C   during the enquiry - Number of adjournments - No intimation
    from employee about absence - Enquiry officer recording
    evidence on behalf of management and finding the employee
    guilty - Disciplinary officer passing order of dismissal - In
    appeal thereagainst, employee admitting guilt - Dismissal of
o   appeal - Industrial dispute - Tribunal holding that the
    domestic enquiry held against the employee suffered from
    violation of principles of natural justice and enquiry officer
    ought to have made enquiry from the management about the
    alleged letter sent by employee for seeking adjournment and
E   given another opportunity to him to lead evidence in rebuttal
    - Writ petition filed by management dismissed by High Court
    - On appeal, held: Both the reasons assigned by the Tribunal
    for condemning the departmental enquiry as defective were
    completely untenable - Principles of natural justice cannot
F   be stretched to a point where they would render the in-house
    proceedings unworkable - Admittedly, the employee 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 - Employee had already tendered
G   two admissions of guilt and there was hardly anything that
    could be said on his behalf to repel the charges - Tribunal's
    findings were wholly unreasonable and perverse - High Court,
    unfortunately, did not consider the matter in the right
    perspective - The order passed by the High Court and the
    award made by the Tribunal set aside - Natural justice.
H                                 280
              S.B.I. v. HEMANT KUMAR                  281

     The respondent was working in the appellant-bank        A
as cashier-cum-clerk. The appellant-bank discovered that
the respondent had indulged in misappropriation of
funds by making fictitious entries and manipulations in
the bank's ledgers. He was given a charge-sheet. On the
first day of enquiry, the respondent did not appear          B
without any intimation to the Enquiry Officer. The enquiry
was adjourned. On the adjourned date, the respondent
sent the request for adjournment again on the ground of
illness of his mother-in-law. The enquiry was once again
adjourned and the respondent was intimated about the         c
next date fixed in the enquiry through registered post as
well as hand delivered letters. The respondent was once
again absent and there was no intimation from him. PW.1
was the Branch Manager where the respondent was
posted at the material time and where the                    0
misappropriation was committed by him. He had come in
connection with the enquiry from Delhi to Dehradun for
the third time, and the Enquiry Officer proceeded with the
enquiry and examined him. After recording the evidence
of PW-1, the Enquiry Officer closed the enquiry and
                                                             E
submitted his report holding the respondent guilty of all
the charges. A copy of the enquiry report was sent to the
respondent along with a letter informing him that it was
tentatively decided to dismiss him from service and
asking him to show cause. The respondent gave his reply
to the enquiry report and after hearing him in person, the   F
disciplinary authority passed the order of his dismissal
from service.
     Against the order passed by the disciplinary
authority, the respondent preferred an appeal and during     G
the pendency of the appeal he submitted yet another
letter admitting his guilt in writing. His appeal was
dismissed and then the respondent raised an industrial
dispute. The Industrial Tribunal held that the domestic
                                                             H
    282       SUPREME COURT REPORTS            [2011] 4 S.C.R.

A enquiry held against the respondent suffered from
  violation of the principles of natural justice. While holding
  so, the Tribunal assigned two reasons. Firstly, the
  respondent had sent an application through post for
  adjournment of the enquiry on the ground that he had
B sustained injuries and even though this application did
  not reach 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 ought to have given another opportunity
c to the respondent to lead evidence in rebuttal. The
  Tribunal, accordingly, set aside the order of dismissal
  and directed for the respondent's reinstatement with full
  back-wages. By impugned judgment, the High Court
  dismissed the writ petition filed by the appellant and
0 affirmed the award passed by Tribunal. The instant appeal
  was filed challenging the impugned order.
          Allowing the appeal, the Court
       HELD: Both the reasons assigned by the Tribunal for
E condemning the departmental enquiry as defective were
  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 riot appeared for the enquiry on two
F earlier dates. On the third date too he was absent and
  there was no intimation from him before the Enquiry
  Officer, yet the Tribunal insisted 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. In a
G situation 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, 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
H
              S.8.1. v. HEMANT KUMAR                      283


bank and for all that time the Enquiry Committee would A
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 cannot be accepted. The second
reason assigned by the Tribunal that the Enquiry Officer B
should have allowed the respondent the opportunity to
lead evidence in rebuttal was 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 c
said on his behalf to repel the charges. The Tribunal's
findings were wholly unreasonable and perverse and fit
to be set aside. The High Court, unfortunately, did not
consider the matter in the right perspective. The order
passed by the High Court and the award made by the
                                                           0
Tribunal are set aside. [Paras 9-12] [286-F-H; 287-E-H;
288-A-E]
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2957 of 2011.
                                                                  E
      From the Judgment & Order dated 08.08.2008 &
17.02.2010 of the High Court of Uttarakhand at Nainital in Writ
Petition No. 1746 of 2001 (MS) Review Application R.A. No.
14 of 2010.

    Sanjay Kapur, Abhishek Kumar, Ashmi Mohan for the             F
Appellant.
    Randhir Singh Jain, Ruchika Jain for the Respondent.
    The Judgment of the Court was delivered by                    G
    AFTAB ALAM, J. 1. Delay condoned.

    2. Leave granted.
    3. This appeal is directed against the judgment and order     H
    284      SUPREME COURT REPORTS               [2011] 4 S.C.R.


A 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
  dated November 6, 1998 made by the Central Government
  Industrial Tribunal-cum-Labour Court, Pandu Nagar, Kanpur,
s directing reinstatement of the respondent in the service of the
  appellant-bank with full back-waqes.

         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
C   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 .. 1m. He was given a
D   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 first fixed on November 15, 1994 but on that date
E   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-
F   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.
G
         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
H
     S.B.I. v. HEMANT KUMAR [AFTAB ALAM, J.]                 285


Dehradun for the third time, the Enquiry Officer decided to          A
proceed with the enquiry and examine him ex parte. PW.1
happened to be the Brartch 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        B
entry came to light, the witness stated as follows:-

          "PW.1: Shri Hemant Kumar (EPA) confessed h~ving
    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       C
    on page 2 & 3 of Ex.P2. Hemant Kumar (EPA) gave a
    confession letter Ex.P4 probably on 10.02.94 "'nd 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        D
    in the hand of Hernant Kumar."

     6. After recording his-evidence, the Enquiry Officer clqsed
the enquiry and submitted his report holding the respondent
guilty of all the charges. A copy of the enquiry report was sent     E
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         F
order of his dismissal from service.

     7. Against thr.: crder passed by the disciplinary authority,
the respondent preferred an appeal and during the pen~ency
of the appeal lie submitted yet another letter admitting his guilt
in writing, presumably hoping that a lenient view would be taken     G
in the appeal. In the memo dated ueoember 10, 1986
addressed to the Manager, State Bank of India, the respondent
stated as follows:-

                                                                     H
    286        SUPREME COURT REPORTS                [2011] 4 S.C.R.


A         "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 26.09.93 which was
B         Sunday in SB account No.1287 of Shivani and It. col. G.G.
          Agrawal and I was closing the wrong balancing of ledger
          No.1 O - 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."
c
       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
D 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
E held to be defective. The Tribunal, accordingly, set aside the
  order of dismissal and directed for the respondent's
  reinstatement with full back-wages.

       9. The Tribunal has assigned two reasons for holding that
  the departmental enquiry held in the case was in violation of
F 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
G 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:-
H
     S.B.I. v. HEMANT KUMAR [AFTAB ALAM, J.]                287

            "In the instant case I find that after 14.12.94 the A
     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 B
     tribunal concerned workman has·addticed evidence to
     prove that fact that he had applied tod1djournment 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 C
     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 D
     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 E
 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 F
 dates. On the third date too he was absent and there was no
 intimation from him before the Enquiry Officer, yet the Tribunal
 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 G
 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 H
   288       SUPREME COURT REPORTS               (2011) 4 S.C.R.


A the bank and for all that time the Enquiry Committee would
  remain in suc;pended 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
B that three barren dates in an in-house proceeding do not
  amount to delay. Let the in-house proceedings at least be
  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
C 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.
D
       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
E Court's order is equally unsustainable. We, accordingly, set
  aside the order passed by the High Court and the award made
  by the Tribunal. The appeal is allowed but with no order as to
  costs.

   D.G.                                           Appeal allowed.