S. Rathnaswamy vs The State Bank of India and Another

P. Sathasivam, J.—Aggrieved against the order of dismissal dismissing the petitioner from first respondent''s service, he has filed the present

writ petition to quash the said order.

The case of the petitioner is briefly stated hereunder:- The petitioner joined the service of the first respondent bank on 17.1.1958 as cashier. He

was promoted as Head Cashier in the year 1974 and subsequently promoted as Chief Cashier on 26.12.1979. While he was discharging his

duties, he received a show cause notice from the first respondent why disciplinary action should not be taken against him for certain alleged acts of

commissions and omissions. He has submitted his explanation denying all the charges levelled against him and requested personal hearing. As per

the Service Rules, the petitioner is entitled to have the assistance of a defence representative in the domestic enquiry. Hence he authorised one S.

Kaliappan, J.M.C. Madurai Kamaraj University Branch of State Bank of India to be his representative to conduct the enquiry on his behalf. His

representative asked for certain documents. The first respondent bank refused to furnish some of the relevant documents asked by his

representative in the course of enquiry on 19.11.1982. The enquiry was commenced only after two years which itself will vitiate the entire

proceedings. When the enquiry was posted for regular hearing on 13.12.1982, the petitioner wanted an adjournment on the ground that the

defence representative was sick and laid up with Typhoid. His representative also sent a telegram requesting for adjournment. The enquiry officer

unreasonably refused his request. After refusing the request of the petitioner for adjournment, the enquiry officer set the petitioner ex parte and

ultimately found him guilty of all the charges. The first respondent has also accepted the findings of the enquiry officer and dismissed the petitioner

from service by an order, dated 11.5.1983. Against the order of termination, he filed an appeal u/s 41 of the Tamil Nadu Shops and

Establishments Act before the competent authority. The said authority by order dated 21.3.1984 in TSE Appeal No. 54 of 1983 set aside the

order of termination passed against him. The first respondent instead of reinstating the petitioner filed W.P.No. 6103 of 1984 challenging the order

of the authority under the Shops and Establishments Act. In view of he decisions of the Supreme Court taking the view that Shop Act appeal is not

maintainable against Nationalised Bank, this Court allowed W.P.No. 6103 of 1984. In such circumstances, the petitioner approached this Court

by way of the present writ petition challenging the order of dismissal.

The first respondent filed a counter affidavit disputing all the averments made by the petitioner. The counter affidavit runs as follows:- It is

contended that the dismissal order was issued by the first respondent after duly constituted and proper disciplinary proceedings and a domestic

enquiry were conducted in respect of certain very serious acts of misconduct while the petitioner was in the service of the Bank and on his being

found guilty thereunder. The said disciplinary proceedings were conducted in accordance with the service rules applicable to the officers of the

bank and observing all the principles of natural justice. The enquiry officer appointed to conduct the domestic enquiry found the petitioner guilty

under the charges covered by the charge-sheet issued to him. The Chief General Manager after considering the report of the enquiry officer

accepted the findings recorded by him and imposed the punishment of dismissal from service. The dismissal order is valid and binding on the

petitioner. Since the dismissal order is based on oral and documentary evidence, this Court exercising the power under Article 226 of the

Constitution of India may not re-appraise the same. It is also submitted that the appeal filed by the petitioner has also been considered and

rejected. In such circumstances, according to the first respondent, there is no merit in the writ petition and prayed for dismissal of the same.

In the light of the above pleadings, I have heard Mr. S. Elamurugan, learned Counsel for the petitioner and Mr. R. Sri Krishnan, learned

Counsel for the respondent No. 1

Learned counsel for the petitioner submitted that the first respondent has no jurisdiction and the enquiry was not in accordance with the Service

Rules applicable to the petitioner. He also contended that neither the Enquiry Officer, nor the Disciplinary Authority followed the principle of

natural justice, hence the entire proceedings ending with the order of dismissal are liable to be set aside.

On the other hand, learned Counsel for the respondents after taking me through the counter affidavit as well as the service Rules, submitted that

the first respondent is competent authority to pass the impugned order, hence the order of dismissal is perfectly valid. He also submitted that the

petitioner was given ample opportunity and after considering the report of the Enquiry Officer, the first respondent has passed the impugned order

of dismissal. He further submitted that respondents have fully complied with the principles of natural justice, and there is absolutely no merit in the

writ petition.

I have considered the rival submissions.

The writ petition is filed against the order of dismissal. Now I have to find out whether the authority who has passed the dismissal order is

competent to do so and whether the petitioner was given proper and reasonable opportunity to defend his case. The following charges have been

framed against the petitioner by the first respondent:

(1) the petitioner issued 6 Bank''s Rupee Travellers'' cheque of Rs. 1,000 denomination each to one notorious Ramesh (from out of 100 Rupees

Travellers'' cheques which were not in use at the material time and which were found missing from the stock of Rupee Travellers cheque held in the

joint custody of himself and the Branch Accountant, but failed to account to the bank for the sum of Rs. 6,000 tendered by the purchaser thereby

misappropriating, the said sum:

(ii) he misappropriated a sum of Rs. 14,000 out of a sum of Rs. 27,000 tendered to him by one Shri G.W. Paramanandh being the value of

Bank''s Rupee Travellers'' cheque issued by him;

(iii) he issued 80 Bank''s Rupee Travellers'' cheques of Rs. 1,000 each out of a series of 100 cheques found missing at the branch and against them

unauthorisedly received 80 Rupees Travellers cheques from out of another series which were at the branch and had also falsified the branch

records in the process;

(iv) he temporarily misappropriated a sum of Rs. 2''0,000 tendered to him by one Shri J. Govindaraj being the value of 20 bank Travellers''

cheques of Rs. 1,000 denomination and accounted for the said amount only 2 days later.

Since the explanation offered by the petitioner was not satisfactory with reference to the charges, the Chief General Manager, the disciplinary

authority has directed a domestic enquiry to be conducted. The second respondent was appointed as Enquiry Officer. In this case the charges

were initiated by the Chief General Manager and after considering the report of the Enquiry Officer, he has passed the order of dismissal.

According to the learned Counsel for the petitioner, the appointing authority to the petitioner, who is a Grade I Officer, is the Board and in this

case, since action was initiated and order of termination passed by the Chief General Manager is bad. The State Bank of India (Supervising Staff)

Service Rules which came into force with effect from 1.7.1975 contained various Rules with regard to appointment, service conditions, disciplinary

proceedings etc. Rule 3(f) of the State Bank of India (Supervising Staff) Service Rules (hereinafter referred to as ""the Rules"") defines the words

Appointing Authority"" as follows:

in the case of Officers Grade II and Grade 1 and of other employees to whom the salary scales applicable to Officers Grade II and Grade 1

generally apply with or without modification, the Chief General Manager concerned or the Managing Director according as the employee is serving

in the circle or in or under Central Office.

A reading of the above rule makes the position clear that since the petitioner was a Grade I Officer, the Chief General Manager concerned is the

Appointing Authority. If that is so, inasmuch as the proceedings were initiated by the Chief General Manager and ultimate order of dismissal

passed by him, it cannot be said that the order of dismissal is either illegal or improper. The above Rule makes it clear that Chief General Manager

is the competent authority for a person like petitioner. In such a circumstance. I am unable to accept the first objection raised by the learned

Counsel for the petitioner.

The other two objections of the learned Counsel for the petitioner relate to violation of natural justice and not providing necessary documents to

the petitioner. It is seen that on 5.1.1982 the first respondent has framed a charge memo and the same has been forwarded to the petitioner on

10.2.1982. The petitioner has acknowledged the charge memo and requested 10 days time in order to offer explanation. He also submitted his

representation on 20.2.1982 requesting some more information and documents. On 4.3.1982 the first respondent bank permitted the petitioner to

peruse any bank record/register relevant to the act of misconduct/irregularities. They also made it clear that the petitioner is permitted to peruse the

required Bank document in the disciplinary proceedings'' department, at local Head Office, after fixing a date for the purpose in advance with the

officer-in-charge of that Department. In the very same letter the management has also made it clear that the defence should reach them before 15th

March, 1982. The petitioner has made another letter on 20.3.1982 informing that on 19.4.1982 between 12 noon and 5 p.m. he has decided to

go over to local head office for perusal of the records. In pursuance of the said letter the first respondent-Bank in their reply dated 13.4.1982

accepted the request of the petitioner for perusal of the documents on 19th April, 1982. It is also made clear that the petitioner had to submit his

statement of defence finally on or before 26th April, 1992. Again, the petitioner made a request on 23.4.1982 seeking further time for perusal of

the documents. As requested, the first respondent sent a telegram directed the petitioner to come and peruse the records before 20th May, 1982.

On 17.9.1982, the first respondent decided to conduct an enquiry into the charges framed against the petitioner. It is also informed that one J.K.V.

Paul, Officer, SM IV care of State Bank of India has been appointed as Enquiry Officer. They also informed that sufficient opportunity will be

given to the petitioner to cross-examine the witnesses on behalf of the management and also '' permitted to examine any one in order to support his

defence. By letter dated 22.9.1982 the first respondent after referring the letter of the disciplinary authority informed the petitioner that the

preliminary hearing of the case will be held at Circle Top House on 1.10.1982 at 10 a.m. and also requested the petitioner to attend the same

along with the defence representative if any. It is seen that on 19.10.1982 the petitioner has informed about his defence representative. By letter

dated 29.10.1982 the Enquiry Officer has informed the petitioner that regular hearing of the case will be conducted at the second floor of the

Circle Top House, No. 21, Rajaji Salai, Madras-1 commencing from 4th November, 1982 at 10 a.m. He has also requested the petitioner to

attend the said enquiry along with the defence representative if any. The letter dated .4.11.1982 shows that State Bank of India, Madurai Kamaraj

University has permitted S. Kaliappan, Officer, J.M.G. S.I, State Bank of India, Madurai Kamaraj University to attend the enquiry to be held at

Madras on 5.11.1982 as defence representative. On 4.11.1982 the defence representative, namely, S. Kaliappan sent a letter requesting the

Enquiry Officer to have the enquiry on some other date preferably after 15th November, 1982. He also sent a telegram for the same. On

5.11.1982 the Enquiry officer as requested by the defence representative of the petitioner, adjourned and posted the case to 17th November,

1982 at 10 a.m. This letter was communicated to the petitioner. This was also acknowledged by the petitioner. The very same letter has also been

sent to the defence representative of the petitioner. The Enquiry Officer has also sent telegram informing the petitioner that regular hearing of his

case will start from 17th November, 1982. This is found in page 51 of the typed-set of papers. It is further seen that by letter dated 6.12.1982 the

Enquiry Officer has informed the defence representative that regular hearing will be commenced at 10 a.m., on 13.12.1982. In the same letter the

Enquiry officer has made it clear that if the petitioner of his defence representative failed to attend the enquiry, the enquiry"" will be held ex-parte.

The said letter has also been sent to petitioner as well as his defence representative. Inspite of specific information and granting adjournments on

earlier occasions, neither the petitioner nor the defence representative appeared for the enquiry dated 13.12.1982. No doubt, the petitioner

informed the Enquiry Officer and requested him further time to enable his defence representative to attend. Inasmuch as the Enquiry officer has

granted sufficient adjournment at the request of the petitioner as well as his defence representative, the Enquiry Officer refused to grant further time.

Moreover, on that date management witnesses have come from various places in order to give evidence. In such circumstances, the Enquiry

Officer set the petitioner ex parte and proceeded with the enquiry. A perusal of the records relating to 13.12.1982 shows that only the petitioner''s

defence representative was absent and if the petitioner is very well interested in prosecuting his case, he could have participated and taken note at

least since the Management witnesses have come from various places. I am unable to accept the attitude of the petitioner for not participating the

enquiry which took place on 13.12.1982. No doubt, he has made request requesting the Enquiry Officer to postpone the enquiry to another date

in view of the absence of his defence representative. It is not his case that he was not given proper opportunity all along. As a matter of fact, the

documents filed by the petitioner as well as the second respondent in the typed-set of papers clearly show that from the date of commencement of

show cause notice and the date on which the petitioner was set ex parte namely 13.12.1982 the Enquiry officer has accepted the request of the

petitioner as well as his defence representative. In such circumstance, it cannot be said that the petitioner was not given proper opportunity.

I have already referred to the various correspondence between the first respondent Bank and the petitioner with regard to supply of certain

documents as claimed by the petitioner. As requested by the petitioner, the first respondent management permitted the petitioner to verify the

documents which he required and the petitioner had also perused these documents. All these correspondences have been included even in the

typed-set of papers filed by the petitioner. Hence, there is no truth in the complaint that the petitioner was not given relevant documents, nor put-

forth his defence. Even in the absence of the petitioner for the subsequent hearing dates 10 and 13.12.1982, the Enquiry Officer recorded the

evidence adduced on the side of the management. After considering the entire evidence in the light of the charges, the explanation offered by the

petitioner as well as the evidence recorded on the side of the management, the Enquiry Officer submitted his report holding that all the charges

levelled against the petitioner were proved. On receipt of the copy of the Enquiry report, the competent authority, namely, Chief General Manager

considered the same in detail. He accepted the finding of the Enquiry Officer in their entirety and found guilty of all the charges framed against the

petitioner. Since the charges are of very grave nature, the disciplinary authority decided to impose a penalty of dismissal in terms of Rule 49(h) of

the State Bank of India (Supervising Staff) Service Rules. Accordingly, by Order, dated 11.5.1983 the petitioner was dismissed from the Bank''s

Service with immediate effect.

I have already held that as per Rule 5(f) of the Rules, the Chief General Manager is the Competent Authority and he alone has passed the

impugned order of dismissal. Likewise the various documents and correspondences found in both the typed-set of papers filed by the petitioner

and the first respondent disprove the case of the petitioner that he was not given proper opportunity, nor he was not furnished with relevant

documents. I am satisfied that petitioner was given an opportunity to offer his explanation, he was given necessary documents and he was also

permitted to peruse the documents which he required, he was permitted to have his defence representative of his choice. At his request as well as

the request of his representative the Enquiry Officer had adjourned the hearings on several dates. In those circumstances, I do not find any merit in

the contentions made by the learned Counsel for the petitioner regarding the contention that the petitioner was not given proper opportunity before

passing the impugned order of dismissal.

No doubt, the learned Counsel for the petitioner relying on the representation of the petitioner dated 22.2.1983 addressed to the first

respondent as well as the Enquiry Officer submitted that the Enquiry Officer ought to have considered his claim in the light of the said

representation. He further submitted that the same representations have been addressed to first respondent, hence while taking a decision the first

respondent ought to have sent copy of the enquiry report and further opportunity to put-forth his case. I am unable to accept even this argument,

since after setting the petitioner ex parte on 13.12.1982 after recording the witnesses, examined on the side of the management, the Enquiry officer

has submitted his report to the first respondent. In such circumstance? there is no need to consider the claim of the petitioner by the Enquiry Officer

and as a matter of fact, after submitting his report absolutely he has no role to play or act in pursuance of the representation dated 22.2.1983. No

doubt, before Imposition of punishment, the delinquent is entitled to a copy of the enquiry report and also entitled to make a representation before

passing any order of punishment by the original authority and non-furnishing of enquiry report would amount to violation of Rules of natural justice

as per the decision of the Apex Court reported in Mohamed Ramzan Khan''s case (1991) 1 L.L.J. 29. Their Lordships after holding the above

proposition made it clear that the same is applicable prospectively only. Admittedly, in our case, the impugned order was passed by the first

respondent on 11.5.1983 that is well prior to the decision of the Apex Court referred to above. Hence, even the said contention that petitioner

was not given copy of the report prior to passing an order cannot be sustained. Even otherwise along with the impugned order the first respondent

has forwarded copy of the enquiry proceedings and the findings of the Enquiry Officer along with his order dated 11.5.1983.

To sum up as stated earlier, the Authority who has imposed the punishment is competent under the Rules, petitioner was given proper and

sufficient opportunity to put-forth his case and in view of the grave charges, namely, falsification of accounts and misappropriation of money from

the first respondent Bank, I am in entire agreement with the order passed by the first respondent dated 11.5.1983. The learned Counsel for the

respondents has also brought to my notice that against the order of the first respondent, the petitioner has preferred an appeal before the Appellate

Authority and the Appellate Authority, after considering the case of the petitioner in detail rejected the appeal and confirmed the order of dismissal.

Under these circumstances, I do not find any merit in any one of the contentions of the learned Counsel for the petitioner. Consequently the

writ petition fails and the same is dismissed. However, in the circumstances of the case, there will be no order as to costs.