Amit B. Borkar, J.

1. The issue involved in the present Writ Petitions is whether the Labour Court was justified in interfering with the findings of the Disciplinary Authority holding Respondent No. 1 having committed misconduct by unauthorizedly and illegally withdrawing advances in his own name and the name of other Employees, disobedience of the orders of Superiors and unauthorized absenteeism etc.

2. Writ Petition No. 2290/2010 is filed by the Employer against reducing the punishment of dismissal of the Employee and directing reinstatement. The Employee filed Writ Petition No. 5338/2010 against the denial of back-wages by the Courts below.

3. Since Writ Petition No. 2290/2010 is treated as a lead Petition, the facts of the said Writ Petition relevant for adjudication for the present Writ Petitions are as under:-

Petitioner appointed Respondent No. 1 as a Clerk in the year 1980. Thereafter, he was promoted to Branch Manager and was posted at Malegaon Branch. During the period of service of Respondent No. 1, it was found that he indulged in misappropriation; therefore, on 16/07/1997, Charge-sheet was issued to Respondent No. 1. On 07/10/2007, Respondent No. 1 filed a reply to the Charge-sheet. Respondent No. 2, considering the material on record, constituted the Enquiry Committee. Respondent No. 1 failed to remain present during the Enquiry. On 15/04/1998, the Enquiry Officer submitted a Report holding Respondent No. 1 guilty. On 03/06/1998, the explanation was called from Respondent No. 1, but he refused to submit the explanation. On 23/06/1998, the services of Respondent No. 1 were terminated.

4. Respondent No. 1, therefore, filed Complaint (ULP) No. 182/1998 before the Labour Court, Akola. As a result, the Labour Court held that though the misconduct in relation to certain charges was proved, the punishment imposed was set aside, directing reinstatement of Respondent No. 1. Petitioner being aggrieved thereby challenged the said order of Labour Court by way of Revision (ULP) No. 04/2009 before the Industrial Court which has been dismissed by the impugned order dated 22/03/2010. Petitioner, therefore, has filed the present Writ Petition.

5. This Court, on 23/09/2010, issued Rule and fixed the Writ Petition for final disposal on 10/01/2011. The record shows that Advocate P.N. Verma is appearing on behalf of Respondent No. 1. Yesterday, on 15/09/2022, Shri A.V. Karnavat h/f Shri Verma, Advocate for Respondent No. 1 requested for adjournment and therefore the Writ Petition is kept for final disposal today. Despite making it clear that no adjournment would be granted today, Advocate for Respondent No. 1 is absent. Therefore, the Writ Petition is decided on merits after giving the opportunity of hearing to Petitioner and Respondent No. 2.

6. Shri Mohgaonkar, learned Advocate for the Petitioner-Employer submitted that the judgment of the Labour Court is perverse to the extent that the findings recorded by it are contrary to the material evidence produced by Petitioner. He submitted that the Labour Court itself has held that some of the charges to be proved and Respondent No. 1 has committed misconduct by holding that he had not taken rent receipts from Shri Shelke, refused to follow the orders of Superior and no receipts are kept in the record for miscellaneous expenses. He submitted that the cashbooks below Exhibit Nos. 103, 104 and 105 were produced on record to show that Respondent No. 1 had misappropriated various amounts by withdrawing those amounts in his name and for other Employees. He submitted that except for Misconduct 4 and 8, the Labour Court has accepted that Respondent No. 1 had committed misconduct.

7. Having gone through the judgments and orders of the Labour Court and the Industrial Court, it appears that the Employer had produced receipts showing the amounts withdrawn by Respondent No. 1 below Exhibit Nos. 78, 85, 87, 91, 93, 97 and 101. Additionally, the relevant extracts of the books were produced below Exhibit Nos. 79, 86, 88, 92, 94 and 98. The relevant cashbooks were produced below Exhibit Nos. 110, 112 and 94. The extract of the cashbooks below Exhibit Nos. 103, 104 and 105 show that Respondent No. 1 had himself withdrawn the amounts in his name and the names of other Employees. The Labour Court, while answering Issue No. 3 in relation to the misconduct, held that Respondent No. 1 committed misconduct by illegally taking an advance salary of Rs. 62,700/- and disbursing an amount of Rs. 18,500/- to other Employees. In Paragraph 29 of the judgment, the Labour Court held that Respondent No. 1 failed to get the rent receipts from Shri Shelke, refused to comply with Superior's orders, and failed to keep accounts.

8. The Labour Court held the charge of misappropriation not proved. However, the statements of witnesses show that Respondent No. 1 had withdrawn the amounts in his name and also for distributing to other Employees. It must be noted that the Labour Court itself, in Paragraph 20, has referred to the cashbook produced by Petitioner below Exhibit Nos. 103, 104 and 105 show that Respondent No. 1 had withdrawn the amount of Rs. 10,000/- on 14/01/1997, Rs. 21,000/- on 05/02/1997 and Rs. 12,500/- on 09/02/1997. The documents produced on record also show that Respondent No. 1 had himself withdrawn an amount of Rs. 2,700/- in the name of Shri A.H. Rothe on 28/08/1996, Rs. 145/- on 23/09/1996, Rs. 5,000/- on 18/08/1996 and Rs. 5,000/- on 27/04/1996 in the name of Shri P.S. Aware, totalling to Rs. 12,865/-. The Labour Court, in Paragraph 21, by referring to the cashbook produced by Petitioner, has recorded a finding that Petitioner has not proved that the said amounts were misappropriated by Respondent No. 1.

9. It must be noted that Respondent No. 1 had no Authority to withdraw the amounts in advance without specific Authority from the Superiors. Despite the production of the voluminous evidence to show misappropriation committed by Respondent No. 1, the Labour Court and the Industrial Court have recorded a finding that the Employer has failed to prove misconduct of misappropriation. In my opinion, the documentary evidence referred to above, along with the oral evidence of the Employer's witnesses, remained unchallenged as Respondent No. 1 refused to participate in the Departmental Enquiry nor led oral evidence in support of his case before the Labour Court. Therefore, in my opinion, the Labour Court and the Industrial Court were not justified in holding that the Employer has failed to prove Misconduct 4 and 8 by Respondent No. 1 of having withdrawn the amounts in his name and for distribution to the other Employees. I, therefore, hold that the Employer has proved misconduct as held in the Departmental Enquiry.

10. The Labour Court and the Industrial Court have interfered with the punishment imposed in the Domestic Enquiry. The law is on the point as to whether the Courts will act as the Appellate Court and reassess the evidence led in the Domestic Enquiry, and the scope of interference is well-settled. The Hon'ble Apex Court, in the case of State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya reported in (2011) 4 SCC 584, [LQ/SC/2011/342] in Paragraph 7, has held as under:-

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."

11. In the case of State Bank of Bikaner and Jaipur (supra), the Hon'ble Apex Court was considering the case of a Bank Employee whose services were terminated, contending that the Employee was dishonest but was guilty of gross negligence. The Court, while considering the case of Bank Employee, which is similar to the facts of the present case, in Paragraph 8, held as under:-

"8. When a court is considering whether punishment of 'termination from service' imposed upon a bank employee is shockingly excessive or disproportionate to the gravity of the proved misconduct, the loss of confidence in the employee will be an important and relevant factor. When an unknown person comes to the bank and claims to be the account-holder of a long inoperative account, and a bank employee, who does not know such person, instructs his colleague to transfer the account from "dormant" to "operative" category (contrary to instructions regulating dormant accounts) without any kind of verification, and accepts the money withdrawal form from such person, gets a token and collects the amount on behalf of such person for the purpose of handing it over to such person, he in effect enables such unknown person to withdraw the amount contrary to the banking procedures; and ultimately, if it transpires that the person who claimed to be account holder was an imposter, the bank can not be found fault with if it says that it has lost confidence in the employee concerned. A Bank is justified in contending that not only employees who are dishonest, but those who are guilty of gross negligence, are not fit to continue in its service."

12. The Hon'ble Apex Court in the case of Divisional Controller, KSRTC vs. A.T. Mane reported in (2005) 3 SCC 254 [LQ/SC/2004/1119] laid down the parameters of punishment to be imposed in case of misappropriation of funds by delinquent Employee. It is held that when an Employee is found guilty of misappropriating a Corporation's funds, there is nothing wrong with the Corporation losing confidence or faith in such a person and awarding a punishment of dismissal. It is further held that there is no place for generosity or misplaced sympathy on the part of the judicial forums and thereby interfering with the quantum of punishment. The judgment squarely applies to the material produced by the Employer; it is proved beyond doubt that Respondent No. 1 had withdrawn the excess amount of Rs. 62,700/- for his own benefit and Rs. 18,500/- for distribution to the other Employees. Apart from the aforesaid two charges, the Labour Court and the Industrial Court have held that the other charges against Respondent No. 1 are proved.

13. Curiously, the Labour Court, while directing the reinstatement of Respondent No. 1, has not considered its own finding that the Labour Court itself had held Respondent No. 1 guilty of misconduct of charges except Misconduct 4 and 8. Moreover, the Labour Court records no finding that the punishment of dismissal based on misconduct other than Misconduct 4 and 8 would be shockingly disproportionate. In view of aforesaid reasons, I am satisfied that Petitioner has proved all charges of misconduct against Respondent No. 1. In my opinion, the Labour Court and the Industrial Court were not justified in interfering with the punishment imposed in the Domestic Enquiry.

14. Hence, the following order is passed:-

(a) Rule is made absolute in Writ Petition No. 2290/2010 in terms of the Prayer Clause (1), which reads as under:-

"1] quash and set-aside the Judgment delivered by the learned labour Court, Akola in Complaint ULP NO. 182 of 1998 on 10-11-2008 (Annexure No. 1) as well as Judgment delivered by the learned Industrial Court, Akola in Revision ULP NO. 4 of 2009 dated 22-3-2010 (Annexure No. 2)"

(b) Writ Petition No. 5338/2010 is dismissed.

Pending Application(s), if any, stand(s) disposed of.