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Judgment
R. Banumathi, J.—Petitioner seeks Writ of Certiorarified Mandamus to quash the order of the 2nd Respondent in Order No.
DIS/CON/663 dated 20.3.2004 confirming the order of 3rd Respondent in Order No. DIS/CON/343 dated 18.10.2003.
Briefly stated the case of the writ petitioner is as follows:
(i) On 29.06.1981, the Petitioner joined service in the State Bank of India as typist. Petitioner was subsequently promoted and he had last worked
as Senior Assistant. On 08.10.2001, Petitioner was posted from Ganapathy Nagar Branch at Coimbatore to the Personal Banking Branch. On
14.12.2001, Petitioner was relieved from the Personal Banking Branch and reposted to Ganapathy Nagar Branch.
(ii) On 18.12.2001, the Petitioner was placed under suspension by the order of the 3rd Respondent. Later, on 26.12.2001, the 3rd Respondent
issued a show cause notice calling upon the Petitioner to furnish explanations to certain allegations, which included the allegation that the Petitioner
had failed to enter remittances made by certain customers. The said show cause notice was served on the Petitioner on 04.03.2002 to which the
Petitioner had submitted his explanation to the said show cause notice on 07.04.2002. Subsequently the Disciplinary Authority, viz the 3rd
Respondent issued a charge memo on 14.05.2002. On receipt of the said charge memo, the Petitioner had submitted a representation on
07.06.2002.
(iii) Disciplinary Authority had issued proceedings dated 16.10.2002 appointing Enquiry Officer to enquire into the charges stated to have been
framed on 19.08.2002. Again on 17.01.2003, the Disciplinary Authority issued proceedings amending the charge memo dated 14.05.2002 and
further stating that the enquiry that commenced on 14.01.2003 will be carried out according to the new settlement dated 10.04.2002. The enquiry
proceedings were then held on 14.01.2003, 28.01.2003, 29.01.2003 and 30.01.2003 respectively.
(iv) Enquiry Officer has held the charges (2), (4) and (6) as ""Not proved"" and charges (1), (3) and (5) as ""Proved"". On receipt of the said enquiry
report, the Petitioner had submitted his explanation against the findings on 28.04.2003. Thereafter, the 3rd Respondent - Disciplinary Authority
passed the final order on 18.10.2003 imposing punishment of discharge from service and treating the period of suspension as suspension only.
Against the said punishment, the Petitioner had preferred an appeal to the 2nd Respondent on 22.12.2003. The said appeal was rejected by the
2nd Respondent on 20.03.2004. Aggrieved by the same, the Petitioner has filed the present Writ Petition.
Bank has resisted the Writ Petition, contending that the disciplinary authority and appellate authority have given reasons in their report for
holding the Petitioner guilty of Charges 1,3 and 5 and for choosing to impose the punishment inflicted on the Petitioner. It is averred that the
findings are based on evidence and principles of natural justice was not violated. It is further averred that the findings are established by various
documents and all principles of fair play and natural justice as embodied in VI Bipartite settlement was fully complied with.
Challenging the punishment of discharge from service, Mr. T.N.Sugesh, learned Counsel for the Petitioner contended that Bank ought to have
examined the complainants to bring home the charges. It was mainly argued that neither the complainants nor the persons who examined the
complainants were examined before the Enquriy Officer and when the witnesses were not examined, conclusion cannot be arrived at. It was further
argued that when no oral evidence was adduced, delinquent would not be in a position to explain his stand and therefore, the report of the Enquiry
Officer cannot be sustained. Learned Counsel for the Petitioner contended that Petitioner has rendered blemishless service and he has been
unjustly discharged from service. In support of his contention, learned Counsel for the Petitioner placed reliance upon Hardwari Lal Vs. State of
U.P. and Others, ; 2007 W L.R. 7 [B. Padmaiah v. Union of India, Ministry of Home Affairs, New Delhi and Ors.] and K. Govindaswamy Vs.
Tamil Nadu Civil Supplies Corporation Limited and Others, .
Drawing Court''s attention to various documents filed to substantiate the charges, Mr. K.Sankaran, learned Counsel for the Respondents
contended that the documents filed by the bank clearly pointing the guilt of the delinquent. It was further submitted that there is no inflexible role to
examine the complainants and the documents are telltale circumstances from which inference guilt was rightly drawn by the Enquiry Officer and the
disciplinary authority. In support of his contention, learned Counsel for the Respondents has placed reliance upon number of decisions.
As many as six charges have been framed against the Petitioner : viz., (i) misappropriation of Rs. 5000/- remitted by Subhadra for credit to the
S.B. Account of Parimaladevi and Palanisamy; (ii) forging the signature of S.B. Account holder Indira and withdrawing Rs. 7000/- on 13.11.2001;
(iii) misappropriation of Rs. 5,265/- remitted on 10.12.2001 by Srilatha to the credit of term loan account of Dr. T.Gurusamy; (iv) suppressing the
fraudulent withdrawal of Rs. 7000/- on 13.11.2001 from S.B. Account of K.V.Raghavan and B.Indira; (v) having income disproportinate to
known source of salary and (vi) drawing habitually cheques without sufficient funds in his account with R.S.Puram and Race Course branches of
the Bank and resorting to outside borrowings. Out of six charges, charges 1,3 and 5 were found proved.
Main contention of the Writ Petitioner is that the findings are based on no evidence and none of the documents produced by the department
would substantiate the contents of the charges framed against the Petitioner. It was further argued that no witnesses were examined to prove the
charges and the documents produced were also not proved through the Author of the concerned documents and therefore, the findings of Enquiry
Officer is based on no evidence and the punishment based on such finding are liable to be set aside.
Charge No. 1: Misappropriation of Rs. 5000/- remitted by Subhadra for credit to the S.B. Account of Parimaladevi and C.T.Palanisamy:
PEx.1 is the counterfoil dated 06.12.2001 for Rs. 5000/- for the credit of S.B. A/c.5480 [Parimaladevi], which was issued by the Petitioner under
his signature. PEx.2 is the cashier receipt scroll dated 06.12.2001 maintained by the Petitioner as Cashier for detailing the receipt on the said date.
By perusal of PEx.2, it is seen that there was no corresponding receipt entry acknowledging the receipt of Rs. 5000/- on 06.12.2001 to the credit
of S.B. A/c.5480. PEx.3 is the credit voucher dated 14.12.2001 for Rs. 5000/- for the credit to S.B. A/c.5480 and Petitioner has signed the
voucher as remitter. PEx.4 is the letter written by S.B. Account holders 5480 [Palanisamy and Parimaladevi] complaining about the conduct of the
Petitioner and questioning as to why there was a delay in crediting the amount of Rs. 5000/-. Being the Cashier, Writ Petitioner was expected to
credit the amount received to the concerned S.B. Account then and there. Non-crediting of Rs. 5000/- to S.B. A/c.5480 would clearly establish
dereliction of duty and misappropriation. As rightly contended by the learned Counsel for the Respondents, the above documents would
conclusively establish that Petitioner misappropriated the amount of Rs. 5000/- remitted to S.B. A/c.5480 on 06.12.2001.
There is no force in the contention that Subhadra and Parimaladevi were not examined. The fact that the amount paid in the credit of S.B.
A/c.5480 was not credited is a telltale circumstance showing the guilt of the Petitioner who was then working as Cashier.
Charge No. 3 : Misappropriation of Rs. 5,265/- remitted on 10.12.2001 by Srilatha to the credit of term loan account of Dr. T.Gurusamy and
Srilatha:
To substantiate Charge No. 3, bank has marked four documents. PEx.6 is the counterfoil dated 10.12.2001 for remitting Rs. 5,265/- to the term
loan of Dr. T.Gurusamy. PEx.6 has been signed by the Petitioner while working as Cashier. Cash receipt scroll PEx.8 for 10.12.2001 maintained
by the Petitioner does not indicate the receipt of the amount of Rs. 5,265/- towards term loan account of Dr. T.Gurusamy. PEx.7 is the letter
dated 15.12.2001 addressed by Srilatha stating that amount of Rs. 5,265/- paid by her was not remitted to the term loan account. PEx.9 (dated
21.12.2001) is the letter by Srilatha addressed to the branch stating that Writ Petitioner called on her on 19.12.2001 and Writ Petitioner gave a
letter admitting that he has misappropriated the amount of Rs. 5,265/- and requesting Srilatha to excuse him. Writ Petitioner is said to have handed
over money to Srilatha for remittance to the bank. Letter of the said Srilatha reads as under:
Sri V.N. Munusamy, Cashier of your Branch called on me on 19.12.2001 with his wife and gave a letter confessing that he has misappropriated
the amount of Rs. 5265/- remitted by me on 10.12.2001 and requested to excuse and he handed over the money to me and asked me to remit the
amount to the Bank.
Writ Petitioner is also said to have addressed letter to Srilatha admitting ""non-accounting"" of Rs. 5265/- on 10.12.2001. Letter of the Writ
Petitioner reads as under:
I have received Rs. 5265/- on 10.12.2001, unfortunately I have not accounted on that day some unavoidable circumstances. Now I am returned
the money.
Stoutly denying the contents of the above letters, onbehalf of the Petitioner, it was contended that despite Petitioner''s denial of any such letter
alleged to have been issued by him, the authorities erroneously placed reliance on those documents to hold the charges as proved without
examining the complainant or the account holders. PEx.6 counterfoil and PEx.8 cash receipt scroll would clearly show non-remittance of Rs.
5265/- to the term loan account of Dr. T.Gurusamy. The documents lead to the irresistible conclusion that Petitioner being a Cashier committed
dereliction of duty in not remitting the amount. Having regard to the nature of the duty assigned to the Cashier and the documents produced by the
bank, there is no merit in the contention that non-examination of Srilatha would vitally affect the prosecution case.
Charge No. 5 : Having income disproportinate to known source of salary:
The following credit entries were found in the S.B. Account of the Writ Petitioner:
Date Account No. Amount (Rs.)
24.08.2001 01090095017 CA 13000.00
03.09.2001 01090095017 CA 3500.00
19.02.2001 01190095017 SB 8300.00
Salary income of the Petitioner is Rs. 5,478/- for February 2001, Rs. 7,595/- for September 2001 and Rs. 5,789/- for October 2001. Statement
of accounts contained entries ""by cash"" on 24.08.2001 for Rs. 13,000/-, on 03.09.2001 for Rs. 3500/- and on 19.02.2001 for Rs. 8300/-. While
the salary of the Petitioner was less credit of more amount in his S.B. account clearly indicates the transaction other than the salary in the account.
Writ Petitioner was bound to explain where from he got the money in his accounts. In the absence of any explanation, Enquiry Officer has rightly
held that Charge No. 5 proved.
Contending that failure to examine the complainant whose complaint is the basis for the disciplinary action against the Petitioner and failure to
provide opportunity to the Petitioner to test the veracity of the complaint would amount to gross violation of principles of natural justice and the
entire disciplinary proceedings are therefore vitiated. In support of his contention, learned Counsel for the Petitioner placed reliance upon 2007
Writ L.R. 7 [B.Padmaiah v.The Union of India, Ministry of Home Affairs, New Delhi and others].
In Padmaiah''s case the delinquent officer was charged with illegal gratification and collected money from the Supervisor for loading grass load
at grass loading point. Since, it was the case of illegal gratification, Court has observed that complaint is the basis for disciplinary action against the
Petitioner and failure to examine the complainant has resulted in deprivation of the right of the Petitioner amounting to violation of principles of
natural justice. The ratio of the above decision is not applicable to the facts of the present case. In the instant case, the charges are based upon the
documents and the bank transactions.
It is well established principle of law that High Court exercising power of judicial review under Article 226 of the Constitution does not act as
an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest
miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence
as an appellate authority.[Vide Govt. of A.P. and Others Vs. Mohd. Narsullah Khan, ].
I have carefully examined the documents produced by the Bank. It is seen from the records that the documents are sufficient to establish the
charges. The documents produced by the Bank are regularly kept in the course of business of the bank. Genuineness of the documents was never
questioned by the Petitioner. Inferences to be drawn from the documents are sufficient to hold the Petitioner guilty of the charges proved against
him. In a departmental enquiry the provisions of Indian Evidence Act are not strictly applicable. The documents relied on at the time of enquiry
should only be marked through the witness. Therefore, there is no merit in the contention that non-examination of the complainants/Account
holders would vitiate the disciplinary proceedings.
It is well settled that in a domestic enquiry, strict rules of evidence under Indian Evidence Act may not apply. In 1988 I LLJ 834 [Sindhu
Resettlement Corporation Ltd. v. Industrial Tribunal, Gujarat and Ors.], the Hon''ble Supreme Court has held as under:
In proceedings before the tribunal strict proof of documents in accordance with the provisions of the Evidence Act is not required.
Observing that strict and sophisticated rules of evidence under the Indian Evidence Act do not apply in domestic enquiry in 1977 SLJ 408
[State of Haryana and Anr. v. Ratan Singh], the Hon''ble Supreme Court has held as follows:
It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All
materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus
and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly
swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text
books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is
objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if
perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic
tribunal, cannot be held good. ........ The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules
governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way,
sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly
available for the court to look into because it amounts error of law apparent on the record....
In Cholan Roadways Limited Vs. G. Thirugnanasambandam, , the Hon''ble Supreme Court has held as under:
It is now a well settled principle of law that the principles of the Evidence Act have no application in a domestic enquiry.
According to the Writ Petitioner, non-examination of the complainant and other witnesses resulted in violation of principles of natural justice.
As pointed out earlier, Writ Petitioner has not denied the veracity of documents. The documents produced by the bank being the official
documents, as per Indian Evidence Act u/s 114 illustration (e), all the documents maintained in the regular course of official business are presumed
to be genuine. It is for the Petitioner to adduce evidence rebutting the presumption.
In A.K. Kraipak and Others Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court held as follows:
What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the
frame work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose.
Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the
observance of that rule was necessary for a just decision on the facts of that case.
In R.S. Dass Ors. Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court of India held as follows:
It is well established that rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the
background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon
the facts and circumstances of each case.
The principles of natural justice, it is trite, cannot be put in a strait jacket formula. In a given case the party should not only be required to show
that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby.
[Vide The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, .
In AIR 2006 SC 3096 [Om Prakash Mann v. Director of Education [BASIC)], the Hon''ble Supreme Court has held as follows:
By now it is well settled principle of law that doctrines of principle of natural justice are not embodied Rule. It cannot be applied in the strait-
jacket formula. To sustain the complaint of violation of the principle of natural justice one must establish that he has been prejudiced by non-
observance of principle of natural justice....
In 1984 I LLJ 2 [Tripathi K.L. v. State of Bank of India and Ors.], it is held as under:
The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed
in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about
the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of
the acts, absence of opportunity to cross-examination does not create any prejudice in such cases.
The principles of natural justice will, therefore, depend upon the facts and circumstances of each particular case. We have set out hereinbefore
the actual facts and circumstances of the case. The petitioner was associated with the preliminary investigation that was conducted against him. He
does not deny or dispute that. Informations and materials undoubtedly were gathered not in his presence but whatever informations were there and
gathered namely, the versions of the persons, the particular entries which required examination were shown to him....
In the instant case, Charge Memo was issued on 14.05.2002. According to the Petitioner, disciplinary proceedings commence only with
issuance of Charge Memo (dated 14.5.2002) and the earlier show cause notice issued by the disciplinary authority was only to ascertain as to
whether disciplinary proceedings ought to be initiated or not. Further case of the Petitioner is that even before issuance of the Charge Memo, a
new settlement had come into force on 10.4.2002 whereby earlier awards were superseded and therefore, initiation of proceedings under the old
settlement viz., Sastry and Desai Award is illegal and the proceedings were in violation of the provisions contained in the new settlement and
therefore consequential proceedings stood vitiated.
Regular departmental proceedings by way of issuance of charge sheet was after coming into force of VI Bipartite settlement dated 10.4.2002.
Amended charge sheet came to be issued on 17.1.2003 reiterating the alleged acts of misconduct excepting to delete the references to Para 521
of Sastry Award and Para 18-28 of Desai Award as VI Bipartite settlement was arrived at in supercession of the earlier settlements and
prescribed the procedure for departmental action against the workmen which is binding on the Petitioner. By the Proceedings dated 16.10.2002,
appointing Enquiry Officer and Presenting Officer, the Petitioner was not put to any prejudice nor does the disciplinary proceedings suffer from any
irregularities as contended by the Petitioner.
Petitioner who was working as Cashier and dealing with money of the customers and depositors was expected to exercise higher standards of
honesty and integrity. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As pointed out
earlier, proved charges would impair the confidence of the depositors/customers.
In Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar, , the Hon''ble Supreme Court has held as under:
A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers.
Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost
integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable
from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager and
Others Vs. Nikunja Bihari Patnaik, it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee
acted without authority. The very discipline of an organisation more particularly a bank is dependent upon each of its officers and officers acting
and operating within their allotted sphere. Acting beyond one''s authority is by itself a breach of discipline and is a misconduct. The charges against
the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.
In Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, , the Hon''ble Supreme Court has held as under:
If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal
with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in
financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable.
As Cashier of the bank, Petitioner was expected to discharge his duty with absolute devotion and diligence. For this reason when bank officer
commits misconduct for his personal gain and against the interest of the bank and the depositors, he must be dealt with iron hands. In the instant
case, Petitioner was discharged from service with all monetary benefits. In my considered view, the Bank had taken a lenient view by imposing
punishment of discharge from service with all monetary benefits. The impugned order does not suffer from any procedural infirmity or illegality
warranting interference.
In the result, the Writ Petition is dismissed. No costs.