INDIAN OVERSEAS BANK & ORS.versusOM PRAKASH LAL SRIVASTAVA

246                      [2022]REPORTS
               SUPREME COURT    1 S.C.R. 246              [2022] 1 S.C.R.


A                   INDIAN OVERSEAS BANK & ORS.
                                       v.
                     OM PRAKASH LAL SRIVASTAVA
                         (Civil Appeal No. 267 of 2022)
B
                              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/
C     management as a clerk-cum-cashier – A complaint was made by his
      sister-in-law that respondent had opened and operated saving bank
      account in joint name with her by forging her signatures and
      encashed demand draft which she had received on death of her
      husband – Inquiry officer opined that bare comparison of the
D     signatures on the account opening form and withdrawal form
      purportedly signed by sister-in-law of respondent showed that they
      were different, by looking from the perspective of a “banker’s eye”
      and that all charges against respondent stood proved – Disciplinary
      Authority imposed penalty of dismissal from service – Industrial
      Tribunal held that the management failed to produce original
E     documents and most photocopies of the relevant pages were not
      readable and thus there was violation of rules of natural justice –
      However, Tribunal granted an opportunity to the management to
      prove the charges against the respondent – Management led
      evidence by producing five witnesses while respondent examined
F     himself – Tribunal answered the reference against the respondent
      opining that the management was successful in establishing all the
      charges against him and the punishment of dismissal also was
      commensurate to the charges levelled and proved against him –
      Appellant filed writ petition before High Court – High Court allowed
      writ petition while remitting matter back to Industrial Tribunal in
G     respect of charges 4 and 5 holding that when the earlier departmental
      proceedings were found to be violative of the principles of natural
      justice then no findings vis-a-vis charges 1, 2, 3, 6 and 7 should
      have been arrived at, based on the plea that the management led
      evidence only in respect of charges 4 and 5 – In respect of charges
H     4 and 5, it was opined that on the request of the respondent, the

                                      246
   INDIAN OVERSEAS BANK v. OM PRAKASH LAL SRIVASTAVA                     247


signatures of his sister-in-law should have been got compared with       A
her admitted signatures by an expert and then only a correct
conclusion could have been arrived at and the Tribunal should
have refrained from acting like an expert – On management’s appeal,
held: High Court applied the test of criminal proceedings to
departmental proceedings while traversing the path of requirement
                                                                         B
of a hand writing expert to be called for the said purpose – High
Court opined that only charges 4 and 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
were concerned, a conclusion was reached that no further evidence
was led – This was neither the correct approach nor borne out of         C
the record – In fact, evidence was led – Even earlier, the material in
respect of other charges emanated from the record of the
management which showed the conduct of the respondent – Thus,
even the aspect of the other charges could not have been brushed
aside in the manner it purported to – On the matter being remitted
                                                                         D
back, two witnesses deposed as to these aspects – Respondent was
a clerk-cum-cashier – It was a post of confidence – He breached
that confidence – In fact, the respondent breached the trust of a
widowed sister-in-law as well as of the bank, and, therefore, no
case was made out for interference either on law or on moral grounds
– The punishment imposed on the respondent could also not be said        E
to be disproportionate – The conduct established of the respondent
did not entitle him to continue in service.
      Allowing the appeal, the Court
      HELD: 1. If there is no jurisdictional error or violation of
natural justice or error of law apparent on the face of the record,      F
there is no occasion for the High Court to get into the merits of
the controversy as an appellate court. That too, on the aspect of
an opinion formed in respect of two sets of signatures where the
inquiry was held by an officer of the bank who came to an opinion
on a bare comparison of the signatures that there is a difference        G
in the same. It has been looked at from the perspective of a
“banker’s eye”. This is, of course, apart from the testimony of
the sister-in-law of the respondent. [Para 15][255-C-D]


                                                                         H
248            SUPREME COURT REPORTS                      [2022] 1 S.C.R.


A            2. The deposition of the sister-in-law of the respondent was
      clear and unambiguous. She was staying in a joint family of which
      the respondent was a part. She unfortunately lost her husband in
      an accident. The two drafts were received from his employer and
      those drafts were kept in custody with the respondent, possibly
      because he was a banker and the elder brother of her deceased
B
      husband. Instead of extending the benefits of the same to her,
      the respondent went on a path of opening an account jointly in
      his and his sister-in-law’s name, presenting the drafts, and drawing
      the amounts with appropriation of the same to himself. His sister-
      in-law had not even visited the bank to sign the account opening
C     form or the signature cards, nor had she presented the drafts or
      signed the encashment vouchers. In fact, it is only when she
      complained about not receiving the amount that the bank inquired
      into it and, at least, the money was transferred to her. Her cross-
      examination elicited nothing, nor for that matter was it put to her
      in cross-examination that she had ever visited the bank, opened
D
      the account or signed the encashment vouchers. The relationships
      in the family were not estranged nor was there any endeavour to
      “fix” the respondent by a relative. This evidence was enough to
      implicate the respondent. [Para 16][255-F-H; 256-A-B]
             3. The High Court appears to have applied the test of
E     criminal proceedings to departmental proceedings while
      traversing the path of requirement of a hand writing expert to be
      called for the said purpose. The High Court has opined that only
      charges 4 & 5 could really have been gone into by the Industrial
      Tribunal, which required further evidence in its opinion, of a hand
F     writing expert. So far as the other charges are concerned, a
      conclusion was reached that no further evidence was led. This is
      neither the correct approach nor borne out of the record.
      Evidence was led. Even earlier, the material in respect of other
      charges emanates from the record of the bank which shows the
      conduct of the respondent which are apparent from the manner
G     of framing of the charges themselves and the material led in
      support thereof. Thus, even the aspect of the other charges could
      not have been brushed aside in the manner it purports to. The
      respondent breached the trust of a widowed sister-in-law as well
      as of the bank. The punishment imposed on the respondent could
H
   INDIAN OVERSEAS BANK v. OM PRAKASH LAL SRIVASTAVA                         249


also hardly be said to be disproportionate. The conduct                      A
established of the respondent did not entitle him to continue in
service. [Paras 17, 18 and 19][256-B-C; 256-E-H]
        Ashoo Surendranath Tewari v. Deputy Superintendent
        of Police, EOW, CBI (2020) 9 SCC 636 – relied on.
        Lalit Popli v. Canara Bank (2003) 3 SCC 583 : [2003]                 B
        2 SCR 100; GE Power India Ltd. (Formerly Known as
        M/s. Alstom Projects Ltd.) v. A. Aziz 2020 SCC Online
        SC 782 – referred to.
                        Case Law Reference
                                                                             C
[2003] 2 SCR 100                 referred to             Para 13
2020 SCC Online SC 782           referred to             Para 15
(2020) 9 SCC 636                 relied on               Para 17
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 267 of
                                                                             D
2022.
      From the Judgment and Order dated 31.05.2018 of the High Court
of 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.                           E
    V. Chithambres, Sr. Adv., Girijesh Pandey, Ramjee Pandey, Shiv
Kumar Tiwari, Kafeel Ahmad, Advs. for the Respondent.
        The Judgment of the Court was delivered by
        SANJAY KISHAN KAUL, J.                                               F
       1. The appellant-Bank, a nationalised one, took the ultimate step
against the respondent as an employee in pursuance of departmental
proceedings having found him guilty on various counts inter alia including
breach of duty as a custodian of public money and dishonesty, fraud or
manipulation of documents. The Industrial Tribunal ultimately upheld the
                                                                             G
decision of the appellant-Bank but in terms of the impugned judgment of
the Allahabad High Court, five of the charges were found not proved
while qua two of the charges the matter was remitted back to the
Industrial Tribunal with a limited mandate.

                                                                             H
250            SUPREME COURT REPORTS                          [2022] 1 S.C.R.


A           2. The said decision was, however, stayed by this Court on
      5.3.2019.
            The facts:
             3. The respondent was employed with the appellant-Bank as a
      clerk- cum-cashier w.e.f. 14.9.1981. The appellant-Bank received a
B     complaint dated 8.10.1994 from the sister-in-law of the respondent, Smt.
      Meera Srivastava, that the respondent had opened and operated a savings
      account 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 Nigam
      Limited in which her husband was employed as a Junior Engineer, who
C
      had unfortunately passed away in a road accident on 15.4.1994. The
      respondent was placed under suspension on 5.11.1994 by the Bank for
      committing acts of grave misconduct at the Gorakhpur Branch and he
      was 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 without
D            collecting the outward clearing cheques from Mr. T.K. Sridhar
             officer in violation of the specific instructions of the Branch
             Manager Mr. R.N. Saxena and thus you committed an act of
             wilful insubordination which is a gross misconduct under para
             19.5(e) of the Bipartite Settlement dated 19.10.66.
E            Charge No.2: You refused to include the outward clearing cheques
             for 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 over
             the said cheques at the clearing house before 10.30 a.m., despite
             the specific instructions given by them, which is an act of wilful
             insubordination and is a gross misconduct under para 19.5(e) of
F
             the Bipartite Settlement dated 19.10.66.
            Charge No.3: By refusing to include the outward clearing cheques
            for Rs.2,21,161.47 for the day’s clearing on 28.9.94, you caused
            inconvenience and hardship to the Bank’s customers concerned
            and thus acted in a manner prejudicial to the interests of the Bank,
G           which is a gross misconduct under para 19.5(j) of the Bipartite
            Settlement dated 19.10.66.
            Charge No.4: You fraudulently and dishonestly opened savings
            bank account No.7882 in the joint names of yourself and your
            sister-in-law Mrs. Meera Srivastava by forging the signature of
H           the latter which is an act prejudicial to the interests of the Bank
   INDIAN OVERSEAS BANK v. OM PRAKASH LAL SRIVASTAVA                         251
                [SANJAY KISHAN KAUL, J.]

      and a gross misconduct under para 19.5(j) of the Bipartite             A
      Settlement dated 19.10.66.
      Charge No.5: You fraudulently and dishonestly withdrew from
      the joint account No.7882 a sum of Rs.20,000/- (being the
      proceedings of the demand draft issued in favour of Mrs. Meera
      Srivastava and credited into the account) in two instalments of        B
      Rs.7,000/- and Rs.13,000/- on 20.5.94 and 13.6.94 respectively
      by forging the signature of Mrs. Meera Srivastava in the
      withdrawal slip which is an act prejudicial to the interests of the
      Bank and a gross misconduct under para 19.5(j) of the Bipartite
      Settlement dated 19.10.66.
                                                                             C
      Charge No.6: By Gheraoing the Branch Manager Mr. R.N.
      Saxena along with a few outsiders and staff members, by
      threatening and abusing the Branch Manager I unparliamentary
      language and by forcibly taking the copy of the suspension order
      after searching the Branch Manager’s brief case, table drawer
      and his pocket on 9.11.94, you behaved in a riotous, disorderly        D
      and indecent manner which is a gross misconduct under para
      19.5(c) of the Bipartite Settlement dated 19.10.66.
      Charge No.7: By erasing i) your own acknowledgement contained
      in the duplicate copy of the suspension order dated 5.11.94, ii) the
      narration made against your name in the attendance register            E
      through application of white fluid, you tampered with the records
      of the branch and thus acted in a manner prejudicial to the interest
      of the Bank which is a gross misconduct under para 19.5(j) of the
      Bipartite Settlement dated 19.10.66.”
       4. The respondent denied the allegations in response to the           F
chargesheet. An inquiry officer was appointed to adjudicate upon the
charges. It is the appellant’s case that all principles of natural justice
were followed and the respondent was supplied with all documents/
material relied upon by the appellant-Bank. The inquiry officer concluded
the inquiry and submitted the report dated 6.12.1995 opining that all        G
charges stood proved against the respondent. Consequently, the
respondent was served with a show cause notice dated 28.2.1996 by
the Disciplinary Authority proposing the punishment of dismissal from
service. The respondent submitted a reply but the Disciplinary Authority
after considering the reply proceeded to uphold the finding and impose
the penalty of dismissal from service vide order dated 11.5.1996.            H
252             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


A            5. The respondent filed an appeal before the appellate authority
      but the appellate authority rejected the appeal vide order dated 10.9.1996.
             6. The respondent sought to raise an industrial dispute and the
      Central Government referred the dispute vide G.O. dated 30.10.2003 to
      the Presiding Officer, Central Government Tribunal-cum-Labour Court,
B     Kanpur on the issue whether the action of the Management imposing
      the penalty of dismissal was justified and legal.
             7. The proceedings were contested before the Tribunal and the
      Tribunal framed a preliminary issue on the question of fairness of the
      domestic inquiry. The Tribunal vide order dated 15.11.2011 decided the
      preliminary issue against the appellant as the appellant- Management/
C     Bank had failed to produce original documents and most photocopies of
      the relevant pages were not readable. It was, thus, concluded that there
      was violation of the principles of natural justice. However, the Tribunal
      granted an opportunity to the appellant-Bank to prove the charges against
      respondent by adducing evidence. The Bank led its evidence by producing
D     five witnesses while the respondent examined himself. The Tribunal vide
      award dated 21.2.2013 answered the reference against the respondent
      opining that the appellant- Bank/Management had been successful in
      establishing all the charges against the respondent. On the issue of
      quantum of punishment also it was held that the same was commensurate
      to the charges levelled and proved against the respondent.
E
             8. The appellant sought to assail this order of the Tribunal by filing
      writ petition, being WP(C) No. 53458/2013, before the High Court of
      Judicature at Allahabad. In terms of the impugned judgment dated
      31.5.2018, the said writ petition has been allowed while remitting matter
      back in respect of charges 4 & 5. The impugned judgment held that
F     when the earlier departmental proceedings were found to be violative of
      the 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 led
      evidence only in respect of charges 4 & 5. In respect of charges 4 & 5
      it was opined that on the request of the respondent the signatures of
      Mrs. Meera Srivastava should have been got compared with her admitted
G
      signatures by an expert and then only a correct conclusion could have
      been arrived at whether the signatures on the account opening form or
      the withdrawal form have been forged by the respondent or not and the
      Tribunal should have refrained from acting like an expert. This was so
      as fraud was alleged and a degree of investigation should have been a
H     standard which is resorted to by a criminal court.
   INDIAN OVERSEAS BANK v. OM PRAKASH LAL SRIVASTAVA                           253
                [SANJAY KISHAN KAUL, J.]

       9. We may notice at this stage that the inquiry officer had opined      A
that while observing the admitted signatures in comparison with the
signatures in question from a banker’s eye it could be said that there is
absence of similarity. Mrs. Meera Srivastava’s claim was that even the
account was opened fraudulently without her ever visiting the bank. The
position was the same with respect to two withdrawal slips of Rs.7,000/
                                                                               B
- and Rs.13,000/-. Mrs. Meera Srivastava had corroborated this aspect
in her deposition. In the deposition she accepted that both her and the
respondent were members of a joint family but the drafts were given to
the respondent for safe-keeping and when after one and a half month
she asked the respondent to return her draft he refused to do so on one
pretext or the other. Thus, two or three months later she complained to        C
the bank on learning that the drafts had been encashed at the Branch.
On making the complaint she got her money from the Bank. In her
cross- examination it was never put to her that she had gone to the Bank
to open the account and the account opening form bears her signatures
nor was it put to her that she had gone to the Bank to withdraw the
                                                                               D
amounts of Rs.7,000/- and Rs.13,000/-. Her statement was opined to
have been trustworthy by both the inquiry officer and the Industrial
Tribunal.
      Submissions of the Appellant:
       10. It was the submission of the learned counsel for the appellant      E
that the High Court fell into an error in applying the standards of proof of
criminal proceedings to disciplinary proceedings as the misconduct by
an employee in disciplinary proceedings is to be evaluated on the basis
of probabilities and preponderance of evidence. There was sufficient
evidence to show that the respondent committed fraud and forgery by
manipulating the signatures of the complainant Mrs. Meera Srivastava,          F
opening an account, operating the account and appropriating the sum of
Rs.20,000/- received through a demand draft as compensation on the
demise of her husband. The respondent took advantage of the
complainant being his sister-in-law. The complainant has given clear
and unequivocal testimony on oath before the Tribunal and nothing had          G
come out to the contrary in her cross-examination. In fact, regarding
this aspect, it was submitted that there was no material cross-examination
and there is no reason to doubt her testimony.
      11. Insofar as the remaining charges are concerned, the documents
led to an irresistible conclusion that even those charges relating to          H
254               SUPREME COURT REPORTS                          [2022] 1 S.C.R.


A     insubordination, disobeying the orders of the higher authorities, forging
      the suspension letters were proved and even by themselves were
      sufficient to award the punishment of dismissal from service.
               Submissions of the Respondent:
             12. Learned counsel for the respondent on the other hand pleaded
B     that 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 behalf
      and reliance could not be placed only on documents.
            13. It was further submitted that charges 4 & 5 were also not
      proved and sought to refer to the judgment of this Court in Lalit Popli v.
C     Canara Bank1 more specifically para 13, which reads as under:
               “13. It is to be noted that under Sections 45 and 47 of the Evidence
               Act, the Court has to take a view on the opinion of others, whereas
               under Section 73 of the said Act, the Court by its own comparison
               of writings can form its opinion. Evidence of the identity of
D              handwriting is dealt with in three Sections of the Evidence Act.
               They are Sections 45, 47 and 73. Both under Sections 45 and 47
               the evidence is an opinion. In the former case it is by a scientific
               comparison and in the latter on the basis of familiarity resulting
               from frequent observations and experiences. In both the cases,
               the Court is required to satisfy itself by such means as are open to
E              conclude that the opinion may be acted upon. Irrespective of an
               opinion of the Handwriting Expert, the Court can compare the
               admitted writing with disputed writing and come to its own
               independent conclusion. Such exercise of comparison is permissible
               under Section 73 of the Evidence Act. Ordinarily, Sections 45 and
F              73 are complementary to each other. Evidence of Handwriting
               Expert need not be invariably corroborated. It is for the Court to
               decide whether to accept such an uncorroborated evidence or
               not. 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 SCC
G              704]”
               Conclusion:
            14. On having considered the rival submissions of the learned
      counsel for the parties, we are of the view that the High Court has fallen

H     1
          (2003) 3 SCC 583
      INDIAN OVERSEAS BANK v. OM PRAKASH LAL SRIVASTAVA                           255
                   [SANJAY KISHAN KAUL, J.]

into an error in coming to the conclusion in the impugned judgment and            A
directing, once again, the matter to be remitted to the Industrial Tribunal
to now seek opinion of a hand writing expert.
       15. We would like to emphasise at the threshold that there are
certain inherent legal limitations to the scrutiny of an award of a Tribunal
by the High Court while exercising jurisdiction under Article 226 of the          B
Constitution of India. We may refer to the judgment of this Court in GE
Power India Ltd. (Formerly Known as M/s. Alstom Projects Ltd.) v.
A.Aziz2. If there is no jurisdictional error or violation of natural 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 of the controversy as an appellate
court. That too, on the aspect of an opinion formed in respect of two             C
sets of signatures where the inquiry was held by an officer of the bank
who came to an opinion on a bare comparison of the signatures that
there is a difference in the same. It has been looked at from the
perspective of a “banker’s eye”. This is, of course, apart from the
testimony of the sister- in-law of the respondent.                                D
       16. We have in the course of noting the submissions of the learned
counsel for the parties in the context of the factual matrix recorded in
para 9 that the Inquiry Officer had himself opined while observing the
admitted signatures in comparison with the signatures in question from a
“banker’s eye”, it was not just the ipse dixit of the Inquiry Officer but         E
was based on the deposition of the sister-in-law of the respondent, Mrs.
Meera Srivastava. The deposition of Mrs. Meera Srivastava was clear
and unambiguous. She was staying in a joint family of which the
respondent was a part. She unfortunately lost her husband in an accident.
The two drafts were received from his employer and those drafts were
kept in custody with the respondent, possibly because he was a banker             F
and the elder brother of her deceased husband. Instead of extending the
benefits of the same to her, the respondent went on a path of opening an
account 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 account           G
opening form or the signature cards, nor had she presented the drafts or
signed the encashment vouchers. In fact, it is only when she complained
about not receiving the amount that the bank inquired into it and, at least,
the money was transferred to her. Her cross-examination elicited nothing,
2
    2020 SCC Online SC 782.                                                       H
256               SUPREME COURT REPORTS                        [2022] 1 S.C.R.


A     nor for that matter was it put to her in cross-examination that she had
      ever visited the bank, opened the account or signed the encashment
      vouchers. The relationships in the family were not estranged nor was
      there any endeavour to “fix” the respondent by a relative. In our view
      this evidence was enough to implicate the respondent.
B           17. The High Court appears to have applied the test of criminal
      proceedings to departmental proceedings while traversing the path of
      requirement of a hand writing expert to be called for the said purpose.
      This would go contrary to the settled legal position enunciated by this
      Court. It would suffice for us to refer to a recent judgment in Ashoo
      Surendranath Tewari v. Deputy Superintendent of Police, EOW,
C     CBI3 where it has been observed while referring to earlier judicial
      precedents, that the standard of proof in departmental proceedings, being
      based on preponderance of probability, is somewhat lower than the
      standard of proof in criminal proceedings where the case has to be proved
      beyond reasonable doubt.
D            18. We may also notice that the High Court has opined that only
      charges 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 reached
      that no further evidence was led.
E            19. In our view this is neither the correct approach nor borne out
      of the record. Evidence was led. Even earlier, the material in respect of
      other charges emanates from the record of the bank which shows the
      conduct of the respondent which are apparent from the manner of framing
      of the charges themselves and the material led in support thereof. Thus,
F     even the aspect of the other charges could not have been brushed aside
      in the manner it purports to. On the matter being remitted back, two
      witnesses deposed as to these aspects, being MW-3 and MW-4. 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
G     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.

      3
H         (2020) 9 SCC 636
   INDIAN OVERSEAS BANK v. OM PRAKASH LAL SRIVASTAVA                          257
                [SANJAY KISHAN KAUL, J.]

      20. We are, thus, of the view that the impugned judgment dated          A
31.5.2018 of the High Court is liable to be set aside and the challenge to
the award of the Industrial Tribunal dated 21.2.2013 is repelled.
       21. The appeal is accordingly allowed leaving the parties to bear
their own costs.
                                                                              B
Devika Gujral                                               Appeal allowed.




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