Dismissal for fraud not justified when other three accomplices were not punished - SC

One Sri. A.K. Saxena joined State Bank of Patiala as Cashier-cum-Clerk in 1978. On 16.04.1991, a customer by name Harishankar Yadav made a complaint against three employees regarding fraudulent withdrawal of Rs.80,000/- from his account. The customer also filed criminal cases against the three employees regarding the above fraudulent withdrawal. The customer did not name Sri. A.K. Saxena in his complaint.

The Bank after a preliminary enquiry, found that Sri. A.K. Saxena as Head Cashier was the kingpin of the whole transaction and the other three employees only obeyed his request for consequential steps.

Therefore, the Bank charge-sheeted all the four employees, held enquiry and dismissed only Sri. A.K. Saxena on 02.07.1993 and no punishment was imposed on the other three employees.

Sri. A.K. Saxena challenged the dismissal before the Labour Court, which held that the enquiry conducted was not fair and proper and later by an award dated 17.12.1997 set aside the termination as there was no direct evidence about his involvement and as such directed reinstatement with full back-wages.

The Bank challenged the award before the High Court. The High Court set aside the Labour Court award in favour of the Bank and also ordered that the other three employees responsible for the fraud should not be given any further increment or promotion.

Aggrieved by the same, Sri. A.K. Saxena approached the Hon'ble Supreme Court of India. The Hon'ble Supreme Court noticed that there were four people involved in the alleged fraud but the State Bank of

Patiala pursued only against Sri. A.K. Saxena . The complainant account holder had not named Sri. A.K. Saxena responsible for the fraud. Further, the complainant initiated criminal proceedings against the other three persons but not against Sri. A.K. Saxena .

The Advocate for the Bank submitted that Sri. A.K. Saxena was the Head Cashier and kingpin in the fraud and the other three employees were involved in the fraud at his instance. The Supreme Court observed that it is difficult to appreciate the submission of the Bank that Sri. A.K. Saxena as Head Cashier was the kingpin of the whole transaction and the other three have only obeyed his request for consequential steps. Therefore, the Apex Court set aside the dismissal of Sri. A.K. Saxena since the other three employees are not visited with dismissal.

The Apex Court also observed that in the meantime, Sri. A.K. Saxena had reached the age of superannuation and already received huge amounts of nearly more than Rs. 23 lakhs towards backwages and Section 17B wages during the pendency of the writ petition before the High Court. Therefore ordered to treat him as retired from service on completion of 15 years of service and that his retirement benefit shall be settled for the purpose of future pension from the month of February 2006. However, it was ordered that Sri. A.K. Saxena shall not be entitled to any arrears of wages or pension from the date of dismissal 02.07.1993 up to January 2016.

It is clear from the above judgment that when any industry or bank proceed against more than one person in respect of the same fraud or misconduct by issuing identical or similar charge-sheet, it is not open to the Management to proceed against one of the employees as the kingpin resulting in extreme punishment of dismissal and let off other accomplices. It amounts to discrimination. In such an event, the Courts will not accept discrimination unless there are cogent reasons to conclude the other accomplices were not guilty of the misconduct.

This judgment is reported in 2016 LLR 485 which is rendered by Hon'ble Justice Kurian Joseph and Hon'ble Justice Sri. Rohinton Fali Nariman.

The readers may please note that Hon'ble Justice Rohinton Fali Nariman is the son of Senior-most Advocate Sri. Fali S Nariman who is appearing for the State of Karnataka in Cauvery dispute. Further, Sri.  Rohinton Fali Nariman is the 6TH Senior Advocate, who is directly appointed as Judge of the Supreme Court. Sri. Santhosh Hegde, the earlier Lokayuktha, was also one such Senior Advocate who was directly appointed as Judge of the Supreme Court of India. Recently, in May 2016, Sri. Nageshwara Rao, Senior Advocate from Andhra Pradesh is the 7TH Senior Advocate directly appointed as Judge of the Supreme Court of India.

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