JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the parties. 2. In this case on 8.11.2010 arguments were heard and judgment was reserved. The said order is quoted below: “Heard learned counsel for the parties. Judgment reserved. Duplicate copy of the supplementary counter-affidavit has been supplied by learned counsel for workman respondent. It has been stated that FIR was lodged against three other employees of the Bank, i.e. Sri A.K. Madan, Sri Sanjeev Kumar and Sri Amar Nath. Learned counsel for the Bank, petitioner states that this FIR was lodged by Hari Shanker Yadav, who complained that his money was swindled. Learned counsel for both the parties may file short written arguments. Learned counsel for the workman respondent in his written arguments shall indicate the fate of the criminal case, which was initiated on the basis of FIR and if some order/ judgment has been passed, then certified copy of the same shall be annexed therewith. Learned counsel for both the parties before submitting written arguments shall supply copy of the same to the learned counsel for the other side. Arguments may be filed within two weeks.” 3. This writ petition is directed against award dated 17.12.1997 given by Presiding Officer Central Government Industrial Tribunal, cum labour Court, Kanpur in Industrial Dispute No. 111 of 1995. The matter which was referred to the labour Court was as to whether the action of petitioner employer terminating the services of its workman respondent No. 3 A.K. Saxena w.e.f. 2.7.1993 was just and valid or not. The Tribunal directed reinstatement with back wages. 4. At the relevant time the workman was working as head Cashier in the Branch of the petitioner bank known as Birhana Road Branch, Kanpur. The main charge against respondent No. 3 was that on 7.12.1990 he managed to get duplicate pass book of saving bank account No. 2521 of one Sri Hari Shanker Yadav by writing an application in his own hand and forging the signatures of the account holder thereupon and thereafter on the basis of the said duplicate pass book he withdrew Rs.45,000/- from the account of Sri Hari Shanker Yadav on 26.12.1990 and Rs.35,000/- on 8.1.1991 by forging his signatures again on the withdrawal form. An irrelevant charge of borrowing Rs.5,000/- from said Sri Hari Shanker Yadav was also made against the petitioner which was not found proved even by the Inquiry Officer. An irrelevant charge of borrowing Rs.5,000/- from said Sri Hari Shanker Yadav was also made against the petitioner which was not found proved even by the Inquiry Officer. The services were terminated after holding domestic Inquiry. Through order dated 8.8.1997 deciding preliminary issue of fairness of domestic inquiry tribunal held that the domestic inquiry was not fair. Accordingly it permitted the management to prove the charge before it. The tribunal held that “In the end my finding is that the concerned workman had never perpetrated two withdrawals form nor had received the money hence this charge is also not proved” para 15. 5. True copy of the Inquiry report is Annexure 9 to the writ petition which runs into 52 pages. 6. The Inquiry Officer In his report held that Sri Amar Nath Misra who was working on S.B. counter appeared as witness of the bank (P w/3) and stated that both the withdrawal forms were posted by him and were accompanied by pass book and that these withdrawal forms were brought to him by Sri Hari Shanker Yadav and entry of withdrawal of Rs.35000/- in the pass book was made by him after entering earlier entries and that he recognised Sri Hari Shanker Yadav. Sri Hari Shanker Yadav the complainant also appeared as witness of the bank before the Inquiry Officer. Similarly, Sri A.K. Madan who was accountant in the Branch in question was also examined, he stated that he passed the withdrawal form of Rs.45,000/- and he knew Sri Hari Shanker Yadav as a customer. He further stated that “No doubt has arisen in his mind to verify the genuineness of the W/F as the depositor himself was present in the bank hall to withdraw the amount.” 7. The ultimate conclusion of the Inquiry officer at page 48 of its report is as follows: “From the comparative study of the report of hand writing experts and attendant circumstances it is evident that writings and signatures of W/Fs and signatures on application for duplicate pass book are forged and these are in the hand writing of the E.P.A.”(probably employees proceed against) 8. Regarding some other employees like Sri A.K. Madan, Sri Sanjeev Kumar and the cashier. It is mentioned in the report on the same page that “it seems so because they have become defencive to save themselves” 9. Regarding some other employees like Sri A.K. Madan, Sri Sanjeev Kumar and the cashier. It is mentioned in the report on the same page that “it seems so because they have become defencive to save themselves” 9. The inquiry officer thoroughly discussed the hand writing expert report and compared the signatures by himself. The inquiry Officer in his report at page 41 held that Sri Madan had not called the account holder for signatures and thus his plea did not hold good and he earlier tried to save himself. The exact finding is quoted below: “He also tried to save himself by saying that W/F came to him after having been scrutinised by the Head Clerk and the Assistant accountant regarding correctness of the W/F whereas no initials/signatures were appearing on the W/F in support of this. He also stated that he knew Shri Hari Shanker Yadav only as a customer and he did not use to sit with him. He failed to verify the signatures and passed the W/F even without ensuring production of pass book, seemingly under the influence of some body or under complacency.” It has also been found that the complainant had come to the bank on 26.12.1990 to deposit Rs.30,000/- in his saving bank account and Rs.10,000/- in his M.T.L. Account. 10. Learned counsel for the respondent No. 3 vehemently argued that in respect of embezzlement of the aforesaid amount FIR had been lodged against three employees of the bank i.e. S/Sri A.K. Madan, Sanjeev Kumar and Amar Nath. It has further been argued that respondent No. 3 was not even charge-sheeted. It is not clear that what happened in the criminal case against aforesaid three persons. Learned counsel for the respondent No. 3, the workman stated that he tried his level best to seek the information but he could not get any information, applications seeking information have been annexed alongwith written arguments. 11. Copy of order passed by the tribunal dated 8.8.1997 holding the inquiry to be unfair is Annexure 17 to the writ petition. Only two reasons have been given for holding the inquiry to be unfair. 11. Copy of order passed by the tribunal dated 8.8.1997 holding the inquiry to be unfair is Annexure 17 to the writ petition. Only two reasons have been given for holding the inquiry to be unfair. The first is that on 29.10.1991 before recording of evidence of Mukesh Misra, the first witness of the bank, the concerned workman had given a list of documents and requested for their supply for cross-examination whereupon the inquiry officer passed the order that papers would be brought on record and exhibited when requested by the workman. The Prescribed Officer of the tribunal held that he had gone through the list of the papers and that those papers were necessary for confronting the witness who had appeared on behalf of management. What were those papers and how they were relevant has not been mentioned by the tribunal. Moreover no reason has been given as to why those papers were not asked for before the start of the examination. The second reason given is that Sri A.N. Misra, the cashier had admitted that application for issue of duplicate pass book was given by Sri Hari Shanker Yadv himself and the Inquiry officer failed to take note of it. The inquiry officer in its detailed inquiry report had mentioned each and every evidence. Accordingly, I do not agree with the view of the labour Court that inquiry was not fair. Departmental inquiry cannot be held to be unfair on trivial points. It can be held unfair only if there has been substantive denial of opportunity to the workman and workman shows that the denial has resulted in prejudice. 12. Learned counsel for the workman has specifically referred to page 4 of the report of the Inquiry Officer where the evidence of PW 11 Sri R.K. Gupta has been summarised who was head clerk. He stated that he wrote the words in red ink ‘duplicate pass book issued 7.12.1990’ on the application for issuance of duplicate pass book of Sri Hari Shanker Yadav and that “He signed the pass book on the request of Sri Amar Nath Misra the dealing clerk on SB Counter. He did not verify the signatures of the depositor. He satisfied himself about the genuineness of the application as it was requested by Shri Amar Nath Misra staff member”. He did not verify the signatures of the depositor. He satisfied himself about the genuineness of the application as it was requested by Shri Amar Nath Misra staff member”. As Annexure SA-4 to the supplementary affidavit dated 17.4.2007 filed by the learned counsel for the petitioner, a certificate dated 16.10.1991 has been annexed given by the workman to the effect that he had perused the original documents against the two charges of the charge-sheet as listed in the list of documents dated 3.10.1991 and had obtained the photo copies thereof. 13. In the said supplementary affidavit it has also been mentioned that the workman was being paid Rs.6226.47 per month as the amount payable under Section 17-B of Industrial Dispute Act. 14. From the perusal of the Inquiry Officer report it is clear that Sri A.K. Madan, Sri Sanjeev Kumar and Sri Amar Nath were also involved in the fraud. Unfortunately, no action was taken against them, this is a serious matter. However, the involvement of workman respondent No. 3 cannot be completely ruled out. After detailed discussion of the evidence inquiry officer found that respondent No. 3 was also involved. Inquiry officer also opined that the other three employees i.e. S/Sri A.K. Madan, Sanjeev Kumar and Amar Nath might also be involved. However, as they were not charge-sheeted and he was not required to enquire against them hence neither he could nor he did record any specific finding. 15. In this writ petition conditional stay order was passed on 26.8.1998 which is quoted below : “Issue notice. Enforcement of the impugned award in so far as payment of back-wages is concerned, shall remain in abeyance subject to the conditions, firstly that the back wages payable under the award are deposited with the Labour Court/Industrial Tribunal within two months; secondly, that a sum equal to wages payable to the workman from the date of award till the last preceding month, is paid to the respondent workman within a month from today and thirdly, that wages at the rate admissible under Section 17-B of the Industrial Dispute Act, 1947 for the succeeding months shall be paid month to month till further orders by the Court. The backwages if deposited, shall be invested with some Nationalised Bank by the Labour Court/Industrial Tribunal under an interest earning term deposit scheme. The backwages if deposited, shall be invested with some Nationalised Bank by the Labour Court/Industrial Tribunal under an interest earning term deposit scheme. It need hardly be said that default in complying with any of the conditions afore-stated will have the consequence of rendering the stay order otiose.” 16. The question is that what is to be done in such scenario. In the counter-affidavit filed by the workman sworn on 6.9.1998 his age was sown to be 44 years. Accordingly, now he must be about 57 years of age and must be having only about three years more of service. Accordingly, it is directed that the entire back wages which must have been deposited in some interest bearing account under interim order dated 26.8.1998 passed in this writ petition must be paid to the workman alongwith entire accrued interest. From today onward the workman must not be entitled to any further amount. He is also not entitled to reinstatement or to any retiral benefits. 17. Impugned award is accordingly modified as above. 18. As far as other three employees are concerned, it is directed that in case no departmental proceedings were initiated against them then they must not be given any further increment or promotion unless departmental inquiry is held against them and they are acquitted therein. 19. Before parting the Court places on record its displeasure regarding the selective action of the Bank management. It ought to have held joint inquiry against all the accused employees. At least after the report of the inquiry officer, against respondent No. 3, disciplinary proceedings should have been initiated against the other three employees also whose involvement was indicated in the report. The Supreme Court in Bongaigaon Refinary and P.C. Ltd. v. Girish Chandra Sarmah, AIR 2007 SC 2860 , has held that if misconduct has been committed jointly by several employees then action must be taken against all and one of them must not be singled out for taking action. 20. Writ petition is disposed of accordingly. —————