Ravi Kant vs State Bank Of India Thru. Its ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 33								AFR
 
Case :- WRIT - A No. - 49848 of 2012
 
Petitioner :- Ravi Kant
 
Respondent :- State Bank Of India Thru. Its Chairman And Others
 
Counsel for Petitioner :- Siddharth Khare, Ashok Khare, B.S.Rathore
 
Counsel for Respondent :- Vipin Sinha, S.C., Satish Chaturvedi
 

 
Hon'ble Manoj Misra, J.

Hon'ble Ved Prakash Vaish, J.

(Delivered by Hon'ble Manoj Misra, J)

The instant petition assail the orders dated 29.02.2012 and 16.07.2012 passed by the General Manager, N.W.-II, State Bank of India, Lucknow and the Chief General Manager, State Bank of India, Lucknow, respectively, by which the petitioner has been removed from service and the appeal against the order of removal has also been dismissed.

The facts giving rise to this petition are that the petitioner was initially appointed as a Clerk/Cashier in State Bank of India (in short the Bank) in the year 1986. On 01.08.1999, he was promoted as Trainee Officer and, on 27.03.2008, was conferred status of Officer Middle Management Grade Scale-II. On 01.08.2008, the petitioner was posted as an Accountant and for some period officiated as Branch Manager at Station Road Branch, Moradabad. While he was posted at the said branch, on 31.12.2010, he was placed under suspension. On 07.02.2011, a first information report was lodged by the Branch Manager of Station Road Branch of the Bank alleging that the petitioner by abusing his powers got banker cheque Nos. 065877 (dated 18.09.2008 of Rs.18,678); 070259 (dated 20.04.2009 of Rs.30,000); and 065821 (dated 27.09.2008 of Rs.23,150) canceled and credited the proceeds to Branch's General Account No.985167 and, thereafter, withdrew cash of Rs.71,828/- from the said general account. It was alleged that when the concerned staff became suspicious and protested, the money was redeposited by the petitioner in the General Account of the Bank. It was also alleged that the petitioner, in a similar manner, on 11.12.2010, by getting three bank drafts, totaling Rs.35404/-, canceled, got the amount transferred to the Bank General Ledger Account No.985167 and, thereafter, transferred the amount to his own Account No.3021145914 and withdrew the same through ATM and, later, on 18.12.2010, deposited it back in bank's account. It was alleged that by such conduct, the petitioner committed offenses punishable under Sections 420 and 406 IPC.

While the matter was under investigation, an explanation was called from the petitioner by notice dated 17.02.2011 to which explanation was submitted on 08.06.2011 stating that the amount concerned was to be deposited in bank's charge account but could not be managed and therefore it was deposited in his own account and thereafter re-deposited in bank's account and in the aforesaid act there was no dishonest intention. He also stated that the cash withdrawal from his account was made under the belief that the cheque given by his father, deposited in his account, has been credited.

In the meantime, on 20.05.2011, the Investigating Officer submitted a final / closure report. However, on 06.08.2011, a departmental charge sheet was issued to the petitioner leveling charge of misappropriation of bank's fund and also of having failed to comply with the accounting norms /instructions of the Bank. In response to the charge sheet, the petitioner submitted his reply dated 20.08.2011.

While the departmental inquiry was pending, a final / closure report was submitted by the police on the FIR lodged by the Bank against the petitioner, which was accepted by the Chief Judicial Magistrate, Mordabad by order dated 16.03.2012 by accepting the opinion of the investigating officer that the money was transferred to the account of the petitioner on account of faulty system and as it was bank's internal matter, for which a departmental inquiry was in progress, hence, no further action was required on the police report.

The departmental charge sheet served upon the petitioner is extracted below:-

"STATEMENT OF ARTICLES OF CHARGES AGAINST SHRI RAVI KANT, OFFICER MMGS-II(U/S) BRANCH-STATION ROAD MORADABAD

While posted as Accountant at Station Road, Moradabad Branch during the period 01.08.2008 to 12.08.2010 certain irregularities of serious nature nave been reportedly committed by you, which prima facie constitute misconduct in terms of State Bank of India Officer's Service Rules, if proved. Accordingly charges which constitute misconduct are framed in articles hereunder:-

Charge No.1

You misappropriated Bank's funds.

Charge No.2

You failed to comply with the Bank's laid down accounting norms/instructions.

All the aforesaid acts/omissions jointly and severally reveal prima facie that you failed to discharge your duties with utmost honesty, integrity, devotion and diligence and acted in a manner unbecoming of an officer in violation of Banking practices & procedures specially those contained in the various publications / guidelines of the Bank, constituting misconduct in terms of Rule 50(4) of SBIOSR, if proved and punishable under Rule 67 of SBIOSR. Yours acts were highly detrimental to the Bank's interest. The statement of allegation in support of the articles of charges as above are enclosed as annexure - II and list of documents and witnesses in support of the charges are listed in Annexure-III.

S/d

Dy. General Manager (Operation & Credit-NWI)

Disciplinary Authority

Allegation on which charge No.1 is based

I) You have paid the under noted drafts aggregating to Rs.35,404.00, by cancellation on 10.12.2010 & 11.12.2010 which were lying pending for delivery at the branch and credited the amount to your account no.30211453914 on 11.12.2010. The amount so credited was withdrawn by you through ATM.

Draft no.

Date

Amount (Rs)

Favoring

Paid On

88331

08/07/09

25404

CPPC Allahabad

10/12/10

638383

17.10.08

T.C. Uttranchal

10/12/10

76243

15.12.08

S.S.T.A Jharkhand

11/12/10

ii) While officiating as Branch Manager, you instructed Shri Y.K. Rastogi, Sr. Spl. Asstt on 14.12.2010 to pay the under noted Bankers Cheque by cancellation, which were lying pending for delivery to its beneficiaries at the branch:

B. Chq. no.

Date

Amount (Rs)

Favoring

Paid On

65817

18.09.08

18678

Prashant Garg

14.12.10

65821

27.09.08

23150

Pankaj Singh (a/c 30265373579)

14.12.10

70259

20.04.09

30000

Harshit Traders, Dhampur

14.12.10

Total

71828

Under your instructions the proceeds aggregating Rs.71828.00 were credited to Sys. Suspense account no.98516032097 (Bankers Cheque to be issued a/c) under teller ID no.1687336 of Shri Y.K. Rastogi, Sr. Spl. Asstt. Later on, you prepared General Debit voucher for Rs.71828.00 debiting (under your teller ID-2540487) Sys. Suspense account no.98516032097 (Bankers Cheque to be issued a/c), passed it for payment and took cash payment from paying cashier Shri Baldev Raj Sharma (Teller ID 3401715) on 14.12.2010.

Allegation on which charge No.2 is based

I) While working as Accountant, you did not ensure dispatch of draft no.088331 dated 08.07.09 for Rs.25404.00 favoring BM SBI C.P.P.C. Allahabad, being the amount of excess pension recovered from SB a/c no.10308714741 on death of the pensioner Shri Hari Chand, at the material time and kept it pending with you as undelivered instrument.

The recovery from the account of the pensioner was made on 19.11.2008 and a draft was issued in favour of Treasury Officer, Moradabad, who returned it to the Branch as it did not pertain to them. The draft favoring Treasury Officer was then cancelled and another draft no.084853 was issued on 11.04.2009 favoring "BM SBI CPPC Lucknow" who also returned it as the pension related to Defence and was to be sent to CPPC Allahabad. Ultimately the Draft no.088331 was prepared on 08.07.2009 but it was even then not sent to CPPC Allahabad and kept pending along with undelivered drafts. The whole episode relates to your incumbency as accountant (period 01.08.08 to 12.08.10).

ii) While you were working as Accountant, drafts received for revalidation, were not promptly revalidated. If drafts were revalidated these were not sent to the respective departments and were lying in the Branch as undelivered. A few examples are given below:

a) Draft no.197826 dated 09.08.2007 for Rs.40.00 favoring 'Principal DIET' received from Bank of Baroda, Gyanpur, Distt St. Ravidas Nagar-221304 (OBC no.1503) for revalidation on 20.10.2008 was found to be kept pending as undelivered.

b) Draft no.197505 dated 04.08.07 for Rs100.00 & Draft no.198522 dated 05.09.07 for Rs.100.00 both favoring 'Principal DIET' received from the Principal DIET, Gorakhpur vide their letter dated 24.09.2008 for revalidation were found to be kept undelivered.

c) Drafts, detailed below, received for revalidation from the Principal, D.I.E.T. Budhanpur, District J.P. Nagar on 04.02.08 were revalidated on 19.11.2008 by your signatures. However, these drafts were not dispatched to the beneficiary and were found be kept as undelivered instruments.

No.

Date

Amount Rs

Favoring

293764

07/02/08

Principal DIET

293765

07/02/08

Principal DIET

293766

07/02/08

Principal DIET

293767

07/02/08

Principal DIET

293768

07/02/08

Principal DIET

iii) Proceeds of the instruments received for collection were not sent to the Collecting Branch and were lying in the Branch as undelivered. A few examples are given below:

a) Draft no.082817 dated 02.03.09 for Rs.12,000.00 favoring "UBI a/c Swift Soaps & Detergent P Ltd" Payable at Bareilly (0615), being the proceeds of collection (OBC-8299 dated 16.02.09 for Rs.12,052.00) received from Union Bank of India, B.I. Bazaar, Bareilly was not sent to the Collecting Branch at the material time. Surprisingly, the draft was found to be revalidated on 15.02.10 but even then the draft was not dispatched and still lying in the branch and was found to be kept as undelivered instrument.

b) Draft no.260802 dated 19.07.2008 for Rs.3050.00 favoring "State Bank of Mysore" Mathigiri Branch (code 40330) being the proceeds of collection as per voucher dated 10.07.08 was not dispatched ad still lying in the branch and was found to be kept as undelivered instrument.

c) Bankers Cheque no.181368 dated 19.07.07 for Rs.20000.00 favoring Allahabad Bank, Int'l Br, Moradabad being the proceeds of clearing returned unpaid was not dispatched and still lying in the Branch and was found to be kept as undelivered instruments.

d) Draft no.836951 dated 24.01.2008 for Rs.94.00 favoring 'SBI EMP PROVIDENT FUND A/C JAWAHAR SINGH' received from Chaurasi Ghanta Branch (code 3208) was found to be kept as undelivered instrument.

iv) Efforts were not made by you for tracing correct account numbers and affording credits thereof in cases where deposits were made with incorrect account numbers, instead Bankers Cheque were issued and kept as undelivered instrument without entering them in any register for control purposes.

a) Bankers Cheque no.529540 dated 08.01.2010 for Rs.99,000.00 favoring Abhishek Singh was found to be kept as undelivered instrument. Scrutiny of credit voucher reveals that a chq no.507927 of Bank of Baroda was deposited in the branch for credit to account no.00820100007360 on 04.01.10.

b) Draft no.033884 dated 12.09.2008 for Rs.248.00 favoring "Cyrus India Securities (P) Ltd. Payable at Lucknow Main Branch (code 125) being the payment of Bill no.123 was not dispatched and still lying in the branch and was kept as undelivered instrument.

v) While working as accountant, you did not enter undelivered instruments in the register meant for this purpose at the end of the day."

The reply of the petitioner to the charge sheet is extracted herein below:-

"With reference to your letter no. Vig/BRY/1831 dated 6th Aug, 2011, I have to advise that I do not accept & strictly deny all allegations mentioned therein and leveled against me because they are false, baseless and far away from the factual position."

Upon receipt of the reply of the petitioner, the inquiry proceeded. The Inquiry Officer gave full opportunity to the petitioner to lead evidence in support of his defense but the petitioner chose not to lead any evidence although the petitioner submitted written arguments in his defense which are duly noticed in the inquiry report, which is on record as Annexure No.13 to the writ petition.

The Charge No.1 that the petitioner misappropriated bank's funds was based on two separate allegations. The first was that the petitioner had got canceled three bank drafts, two, on 10.12.2010 and, one, on 11.12.2010, totaling Rs.35,404/-, and credited the amount to his own account on 11.12.2010 and, thereafter, withdrew the same through ATM. The second was that he instructed cancellation of the three banker cheques totaling Rs.71,828/- and got them transferred to the Suspense Account of the Bank and, later, by preparing a general debit voucher, withdrew Rs.71,828/- in cash from the Suspense Account on 14.12.2010.

To the above charges, the defense of the petitioner in respect of the first part of charge no.1, as noticed in the inquiry report at page 93 of the paper book of the petition, is extracted herein below:-

"In this context, we submit herewith the factual position under which circumstance the CSO was forced to credit the proceeds of cancelled drafts. Our Station Road Branch, Moradabad was running under net loss and the controller was emphasizing to convert the branch from loss making to profit making branch. After prolong discussion among branch staff, it was decided that the proceeds of unclaimed drafts lying pending at branch might be credit to Branch Charges account. In this connection, we may add that during his tenure as accountant, the CSO has made his best efforts for proper disposal of these drafts. Draft no.088331 dated 08.7.2009 of Rs.25404.00 being the amount of recovery of excess pension paid to pensioner Shri Hari Chandra, dispatched to The Chief Manager, CPPC, Allahabad vide branch letter dated 09.07.2009 was returned originally with their remark (Dex-11/1). To implement the earlier decision taking in presence of staff members, branch accountant Shri R.K. Agarwal in whose custody the aforesaid drafts kept, has handed over draft no.088331 and 638383 Rs.25404.00 and Rs.5000.00 dated 08.07.09 and 17.10.2008 respectively to Shri Y.K. Rastogi, Sr. Special Assistant for cancellation and credit the proceeds to Charge Account. Sri Y.K. Rastogi prepared general credit voucher (Pex-2/1-2) to credit the proceeds to Banker Cheque to be issued account which were passed by the Branch accountant Shri R.K. Agarwal ID 2513439 (Pex-9/1, VVR Page no.01 dated 10.12.10). At the time of EOD, the Charge Officer looked that branch system suspense account i.e. banker cheques to be issue account was not zeroed and proceeds of cancelled drafts of Rs.30404/= was outstanding therein. So as the CSO tried to transfer this amount from Banker Cheques to be issue account to Charges account. He had made nine attempts to credit charges account by the aforesaid amount but his best effort could not be success due to system default as system does not accept such transfer transaction which has been made from BGL A/C to BGL A/C (Pex-no.9/3, VVR page no.4 dated 10.12.10).

Further, when the CSO could not able to settle the entries, he contacted with our IT Department colleagues posted our LHO over telephone and they advised that such transaction from BGL to BGL account were accepted by the system, if the related entries are parked first into deposit account, the system would accept its and as later on it can be transferred to appropriate account. This conversation made with IT department can be ascertained by obtaining the call details of mobile phone No.9412924111 from the telephone department. In the above narrated process, 3 to 4 hours were passed on date and branch EOD time was to be passed away therefore it was decided that the suggested process would be adopted on next day. Further, draft No. 076243 dated 15.12.08 of Rs.5000/= was cancelled on 11.12.10 by adopting the same process and proceeds of it also credited to Banker Cheques to be issued account. The aggregated amount of Rs.35,404/ was parked to my account with view that it would be transferred to charges account later on. This step to transfer the amount to my account was taking with the consent of available staff on date. All concern staff i.e. branch accountant and Sr. Special Assistant was also involved in the whole process and factual fact was in their knowledge, nothing has been escaped as day book on date was checked by Shri R.K. Agarwal, branch accountant (Pex no.9/4).

Further, on occasion of my marriage ceremony on 12.12.10, my father gifted me an amount of Rs.31000/- through cheque no.397645 dated 12.12.10 (Dex no.1/1). While CSO was depositing the aforesaid cheques to his account 13.12.10, Controlling Authority instructed him over telephone that our General Manager's visiting programme has been received therefore branch data profile has to be prepared to present before our GM during their visit. CSO was engaged in preparation of branch data profile on priority basis with help of Shri Ajay Kumar Verma posted at our KGK College Branch at the material time and CSO has totally forgot to credit the proceeds of cancelled drafts parked into my account to charge account and also amount of cheque gifted by his father to my personal account. The CSO was continuously involved in preparation of branch profile on 13.12.10 and 14.12.10. On 15.12.10 our GM has taken meeting of all branch manager he was presented therein and on 16.12.10 he was called by the Bank's lawyer Shri A.K. Srivastava for witness in a court case SBI v/s J.D. Collector. By chance, on 17.12.10 was holiday on eve of Moharam, hence, CSO could not attend his branch w.e.f. 15.12.10 to 17.12.10. The CSO was under bona fide belief that the proceeds of gifted cheque have been credited so that he visited ATM on 16.12.10 after attending court case and withdrawn money gifted by his father for purchase of children clothes. As such both figures of amount were almost same and equal. Thus, this incident happened erroneously and confusion has been generated in his mind due to high pressure of work and similarity of both proceeds i.e. proceeds of cancelled drafts and proceeds of gifted cheque.

The CSO attended his office on 18.12.10 on usual time and first of all the entries of proceeds of cancelled drafts were reversed by him. Hence, there is no misappropriation of fund; it was just done to settlement of entries properly. He can withdraw money during 10.12.10 to 15.12.10 in case, if his intention becomes bad. Sir, it is factual and actual circumstances of instance. His mistake is only to park bank fund in his personal account within full awareness of staff members with a positive move to transfer the same in Bank's account and this happened only under the circumstances beyond the control of CSO. There is alleged charge that CSO failed to discharge his duty with utmost honesty and integrity is not proved as the PO could not bring any material document in support of these allegations in record. Further PO did also not establish these charges in the conclusion arrived in his written brief dated 9.11.2011 for such instance CSO was unjustifiedly put under suspension since 01.01.2011 till date. Hence, the allegation of misappropriation does not prove on the part of CSO"

In respect of the first limb of the charge of misappropriation, the finding of the Inquiring Authority, at page 94-95 of the paper book, is as follows:-

"From the perusal of PEX No.1/1-3, it is evident that all the 3 drafts aggregating Rs.35,404/- as mentioned in this charge were credited to Sri Ravi Kant's (CSO) Current account O.D. No.211453914 on 11-12-2010 (Pex - 11/1-2) Statement of A/C and the amount so credited was withdrawn by CSO through ATM. PEX-9/1-8 and PEX-10/1-3 shows that all these transactions were passed by CSO. Defence has also accepted in the brief that the Bank's fund parked in his personal account. The argument of defence is not tenable.

Hence, I hold the allegation as substantiated."

In respect of the second limb of the charge of misappropriation, the defence argument of the petitioner, as noticed in the inquiry report at page 95-96 of the paper book, is extracted below:

"DEFENCE ARGUMENTS:-

Sir, the CSO was instructed by his Branch Manager before going on leave to submit final remarks of recent Central Office Inspection Report. The Inspecting Official pointed out that a good number of Banker Cheques more than three years old were lying pending and have not been credited to Charge Account (Dex no.5/1). The CSO was dealing with the compliance remarks of report on 14.12.10. In compliance of it, he asked branch accountant to deliver old banker cheques to Shri Y.K. Rastogi, Sr. Special Assistant for disposal of them as the old banker cheques and other instruments are kept in custody of branch account as per bank's extant instructions. Shri Rastogi (ID 1687336), Sr. Spl Asstt has credited the proceeds of three banker Cheques No.065821, 070259 and 065817 of Rs.23150/=, Rs.30000/= and Rs.18628/= respectively to Banker Cheque to be issued account instead of to credit the proceeds to Charges Account (Pex No.13/1, Pex no.17/1&2). Whenever, the CSO knew this fact he prepared two general vouchers of aggregating amount to Rs.71828, to debit to banker cheques to be issued account and other to credit to charges account and both vouchers were handed over to Shri Baldev Raj Sharma, single window operator with a view to rectify the entries but system could not accept such transfer transaction from BGL to BGL account, therefore it would thought that it might be possible that a cash transaction would be accepted by system, hence cash transaction was put through by Shri Sharma (ID 3401715) and as to complete the formality, CSO put his signature on back of General debit voucher (Pex no.13/2). Thereafter, Shri Sharma has tried to deposit this fund to charges account through cash transaction but unfortunately system did not accept this cash transaction. So that immediately cash was deposited to Banker Cheque to be issued account by Shri Y.K. Rastogi. It also be examined from the perusal of both Teller Receipt/Payment cash Register (Pex no.6/1-3 and Pex no.15/1-2) that the same denomination currency notes were deposited which were paid by paying cashier. As fact it was the usual entries which were put through between to tellers and no physically cash handling was done by any one in the matter.

As we already submitted that P.O. had prepared his brief before conclusion of regular inquiry proceedings with prejudicial mind set to prove the false and baseless allegation of misappropriation of Bank' fund. CSO did not hold Bank' fund even a single minute with him so as how PO can prove this allegation. Shri Baldev Raj Sharma and Shri Y.K. Rastogi were presented as witness during regular inquiry was preplanned educated by PO with assurance them to escape their face for their mistakes because they indulged in entire process.

Therefore, we firmly disagree with the submission / arguments given in written brief of PO. The allegation of misappropriation of Bank's fund is not proved. There is alleged charge that CSO failed to discharge his duty with utmost honesty integrity is not proved as the PO could not bring any material documents in support of these allegations in record. Further, PO did also not establish these charges in the conclusion arrived in his written brief dated 09.11.2011. It is further submitted that CSO discharged his duty with utmost devotion, diligence and did not act in any manner in violation of banking practice and procedures."

The finding of the Inquiring Authority on the second limb of the charge of misappropriation is as follows:-

"The argument of P.O. is correct as the aggregate amount of Rs.71,828/- all the 3 Bankers Cheques mentioned in this charge (18,678/- + 23,150/- + 30,000/-) (PEX-12/1-3 paid by cancellation and credited to Bankers Cheques to be issued A/C on 14-12-10 (PEX-13/1-2). On 14-12-10 CSO took the cash payment of Rs.71,828/- (PEX 13/2 preparing General Debit Voucher relating to A/C of BGL A/C No.98516032097 System Suspense A/C from Sri Baldev Raj Sharma paying cashier PEX No.16/2 Teller Payment/Receipt cash Register dt. 14-12-10 which was passed by CSO himself instead of issuing Banker's Cheque.

During the Regular Hearing held on 9-11-11 Shri Baldev Raj Sharma (PW-1) confirmed that he made the payment of voucher Pex-13/1-2 in cash to Shri Ravi Kant (CSO) the then Branch Manager on 14-12-10 related to System Suspense A/C No.98516032097.

Shri Y.K. Rastogi, Sr. Spl. Assist ant (PW-2) has confirmed during enquiry that pending Bankers Cheques were cancelled and System account was credited on the instructions of CSO as B.M. Thus CSO has misappropriated the Bank's fund for his personal use. Hence, the allegation is fully substantiated.

Thus the charge No.1 for misappropriation of funds by the CSO is fully proved."

The Inquiring Authority also found the Charge No.2 proved. The details of the finding returned on Charge No.2 are not being discussed because they may not sustain the punishment of removal inasmuch as they relate to minor lapses that may occur in day to day functioning of the Bank.

On the inquiry report dated 26.11.2011, objection of the petitioner was invited by notice dated 01.12.2011. On 14.12.2011, the petitioner submitted his objection, which has been brought on record as Annexure No.15 to the petition. In the objection to the finding returned on Charge No.1, which related to misappropriation, on Allegation No.1, the petitioner submitted as follows:-

"CHARGE NO.1

Allegation No.1

Sir, we shocked to read the Learned Inquiring Authority's findings in the captioned case as the Inquiring Authority has totally ignored our contention and arguments and has also not taken in cognizance to our solid Dexs submitted during regular inquiry proceedings. The learned IA has not read to our defence brief wherein the factual and true circumstances were narrated by us. The CSO was compelled due to circumstances to credit the cancelled instruments proceeds in his account as he had no alternative option except to credit it to his own account with a common view of all staff members and in the bank's interest that the entry would be reversed easily without any obstacle as there was support of all staff members as they all well aware with the entire instance/facts. There are also valid/solid documents in regard of entry adjustment not taken place properly due to system default as CSO had made nine attempts to adjust it but each time que had been failed (Pex-9/3, VVR page no.4 dated 10.12.10). It is not a case of misappropriate of Bank's found, Sir, it is simply an entry adjustment. These facts and circumstance were brought to the knowledge of IA who has ignored these real and true facts. He picked up the initial matter of charge sheet and did failed to link it with real facts.

Further, CSO has not withdrawn the aforesaid entry amount. He was under bona fide belief that the proceeds of cheque gifted by his father had been credited but unfortunately it was not released on date due to engagement of CSO in other priority works of bank such as preparation of branch profile to be presented before GM' meeting etc. as narrated earlier in our defence brief. It happened due to the circumstances prevailing at that time and not with any mala fide intention of CSO. There is neither any loss of a single paisa to bank nor demising of bank' image at all, due to this instance. Therefore, the allegation of misappropriation of Bank' fund is not established on the part of CSO. We humble request to kindly exonerate the CSO from the allegation so found proved by the Inquiring Authority without taking into account the circumstances and the real facts."

On Allegation No.2 pertaining to Charge No.1, the petitioner submitted as follows:-

"ALLEGATION NO.2

Sir, the Learned Inquiring Authority did not examine our submission in this imputation of charge impartially. Even, he has denied our documents vide which it was established that Rs.71828/= as fund deposited on same day at the counter of Shri Y.K. Rastogi, Sr. Special Asstt. After taking the said amount from Shri Baldev Raj Sharma, although the CSO had put his signature on the back of payment voucher with the view to complete mandatory formalities.

It is simple a book entry performed between two cashiers. As the same denomination of notes paid by paying cashier were deposited by receiving cashier on same date. Misappropriate of Bank's fund has wrongly been substantiated by the IA while the CSO did not retain the proceeds of cancelled bankers cheques for a single minute with him.

IA took the support from statement of prosecution witness of Sri Baldv Raj Sharma and Sri Y.K. Rastogi. Shri Sharma admitted that the cash was given to CSO vide Teller ID No.3401715 (No.98516032097) and he was in bank and PW-1 did not admit that cash which was taken away by CSO with him to home. This amount was handed over to Shri Y.K. Rastogi (PW) through voucher as executed (Pex-13/1-2) for deposit in to bank account. This withdrawn cash was deposited in the bank on the same date and time vide teller ID no.1687336 (No.98516032097). Shri Rastogi prepared the voucher and passed the same with his own motion without any pressure of CSO. The relevant question and answer relating to the statement of Shri Rastogi is reproduced as under: voucher

Q. Defence to PW-2- D;k voucher cukus ;k ikl djus esa vki dks pressure rks ugha fd;k\

Ans. PW-2 to IA- ugha fd;kA verbally dgk FkkA

So the statement of both the PW does not indicate that the sum of Rs.71828/= was kept by CSO with him whereas the same was deposited in the bank's account which was in the knowledge of all staff members of branch. The CSO's intention was never mala fide at any stage. It is therefore, requested that his imputation of charge may kindly be exonerated."

The Disciplinary Authority by order dated 29.02.2012 after agreeing with the report of the Inquiry Officer and upon consideration of the reply submitted by the petitioner directed removal of the petitioner from service. Aggrieved by order of the Disciplinary Authority, the petitioner filed an appeal.

It would be useful to extract the defense pleas that were raised by the petitioner in his appeal in respect of the allegation that he had got three bank drafts aggregating Rs.35,404/-, lying for delivery to customers, canceled to credit his own account on 11.12.2010 and, thereafter, withdrew the amount through ATM. The defense plea of the petitioner in his appeal, as found in a tabular form, which has been brought on record as Annexure No.20 to the petition, is extracted herein below:-

"These instruments were lying undelivered for more than 3 years (these were issued in lieu of old drafts) and were required to be credited to Branch charges A/c. This boosts the branch profitability. This irregularity figured in Branch. Inspection & Audit report. Keeping this in mind I initiated to credit the proceeds of three quoted Bank drafts to Branch charges A/c. Accordingly, Shri R.K. Agarwal Branch Acctt. who was holding custody of the draft for Rs.25404.00 and Rs.5000.00 dated 08.07.09 and 17.10.08 handed over these drafts to Shri Y.K. Rastogi Sr. Sp. Asstt. for cancellation and credit the proceeds to charges a/c. Shri Rastogi prepared the vouchers and proceeds of these two drafts aggregating Rs.30404.00 were credited to Banker cheque to be issued a/c. These vouchers were passed by Shri R.K. Agarwal Branch Acctt. on 10.12.2010. At the time of EOD efforts were made by Shri Y.K. Rastogi, Asstt to zeroise the Branch system suspense a/c as the entry in question was lying outstanding in branch banker cheque a/c. Shri Rastogi advised that nine attempts have already been made to zeroise the Br. System suspense account but the computer had not allowed transfer of BGL A/c to BGL A/c (Copy enclosed). A reference was made to IT Deptt. at LHO through mobile who advised that at times BGL A/c to BGL a/c transfers are not permitted in Computer. They advised that first these entries may be parked in deposit a/c and then transfer it to relative BGL A/c. This could not be done on the same day i.e. 10.12.2010. On 11.12.2010 the process of transfer of proceeds of remaining draft dated 15.12.2008 for Rs.5000/- was adopted and amount credited to banker cheque a/c. Now the total amount of Rs.35404/- i.e. Rs.30504/- + Rs.5000/- was outstanding in system suspense a/c (system suspense as parking account). As per LHO IT deptt advises, we were required to first transfer the proceeds to deposits a/c. So, I got the amount of Rs.35404/- transferred in my a/c with intention to finally transfer the proceeds to Branch charges a/c without any malafide intention. The branch staff was totally aware of this transaction as there was no other option to adjust the entry. My intention behind this act was to increase the Branch Profitability by crediting the proceeds to Branch charges a/c.

Subsequent to the credit proceeds to my overdraft a/c the calendar of events is as under:-

11.12.2010- This was Saturday, the proceeds were credited to my C.A. In late hours and could not be transferred to charges a/c at the same time and date.

12.12.2010 - It was Sunday and branch was closed. My father gifted a cheque of Rs.31000/- for the welfare of my family on account of my marriage anniversary. (copy enclose)

13.12.2010 - I prepared the credit voucher for deposit of Rs.31000/- to be deposited in my O/D A/c. At the same time, I received a telephone call from RBO that GM (N.W.I.) is visiting Moradabad on 15.12.2010 and may also visit Station Road Br., as it is evening Branch, I was instructed by them to leave all the works in hand and prepare the Branch Profile and be prepared for GMs visit on 15.12.2010. (copy enclose)

14.12.2010 - With an intention to boost the Branch profitability and in a quest to show a better picture of branch performance, I deposited Rs.71828/- representing three old banker cheques to charges a/c. Here also transfer from BGL A/c to BGL A/c was not possible, so I had to get the amount deposited in Branch charges a/c through cash.

15.12.2010 - I remained busy in connection with GM's visit at Moradabad, the whole day.

16.12.10 - On this day, my presence was required in connection with Bank's case in the court. I also withdrew Rs.30000/- through two ATM withdrawals of Rs.15000/- each from my O/D A/c. while withdrawing the funds, I was of the opinion that the cheque of Rs.31000/- gifted to my father on 12.12.2010 would have been deposited to my O/D A/c. and sufficient funds would be available in my account. (court copy enclose)

17.12.2010 - It was an holiday on account Muharram.

18.12.2010 - While I arrived at the Branch in the early morning to my utter surprises I found that cheque for Rs.31000/- was still lying in my drawer and remained undeposited. I immediately deposited the cheque in my O/D A/c. Further, at this moment I also reversed the entry of Rs.35404/- which was credited to my O/D, and credited the proceeds to Branch charges a/c. Of course, this entry should have been reversed earlier i.e. on 11.12.2010 or on the next working day but unfortunately it escaped my attention.

Above is the narration of entire incident, which is based on facts. You will appreciate that the entry was reversed by myself as soon as it came to my notice. However, I regret certain slip-shots have occurred on my part which is sincerely regretted.

Here, the close examination of the entire incident reveals that no where my honesty and sincerely was questionable. I may add here that computer hardware provided in the Branch are quite old i.e. 1996 model and often such difficulties do arise in passing such entries. There was never any intention on my part to camouflage with the Bank's funds."

In respect of the charge of misappropriation of Rs.71,828/- by taking out cash of Rs.71,828/- from the suspense account after crediting the said account by transfer of funds upon cancellation of banker cheques, the defense plea as found in the tabular form, which has been brought on record as Annexure No.20 to the petition, is extracted below:-

"The narration of the transaction in this allegation is prima facie in order but the basic question behind this transaction is why this transaction was put through? As stated earlier, GM's visit was scheduled on 15.12.2010 at Moradabad. I had a deep concern for the Branch profitability and further, despite vigorous efforts. These impugned bankers cheques could not be delivered to the concerned person. So a decision was taken to credit the proceeds of these Banker cheques to Branch charges A/c.

Regarding the allegation that I took payment of Rs.71828/- cash transaction was allowed because transfer entry from BGL A/c to BGL A/c was not possible in computer. So I signed the debit voucher prepared by Shri Y.K. Rastogi overleaf in token of having received the payment and amount was got deposited Branch charges A/c the same day and time. Copies of payment as well as receipt scrolls are enclosed. It is quite unfortunate that depositing the amount in charges a/c just after withdrawing from Bankers cheque A/c has been construed as misappropriation of Bank's funds as System was not permitting transfer entry. This was done with a view to overcome the practical difficulty being faced in computer. I may therefore be exonerated from the allegation leveled against me."

The Appellate Authority after noticing the submissions of the petitioner to assail the charge /finding in respect of misappropriation in paragraph 5(i) and 5(ii) of the appellate order, held as follows:

"5. I have carefully examined the grounds raised by Shri Ravi Kant in his appeal in the light of relevant records of the case and my observation, in seriatim, are as under:-

i. The contentions of the appellant are not tenable. The records of the case reveal that the proceeds of the 3 drafts aggregating Rs.35,404/- was credited to Current Account (OD) of the appellant and the amount so credited was withdrawn by him through ATM. All these transactions were passed by him. Thus, the Bank's fund was parked in his personal account. If it was to facilitate its eventual transfer to the charges account, the transaction for transfer of amount from his account to the charges account, should also have been put through simultaneously. Moreover, it is permitted in the CBS system to transfer the proceeds of drafts paid by cancellation directly to the Charges account.

ii. The contentions of the appellant are not tenable. The records of the case reveal that three Bankers Cheques aggregating Rs.71,828/- were paid by cancellation and credited to Bankers Cheque to be issued account. The appellant took the cash payment of Rs.71,828/- by preparing General Debit Voucher instead of crediting the same in the Charges account. Further, it is permitted in the CBS system to transfer proceeds of System Suspense Bankers Cheque to be issued A/c directly to Charges A/c."

After recording reasons, the appeal of the petitioner was dismissed.

We have heard Sri H.R. Mishra, learned Senior Counsel, assisted by Sri B.S. Rathore, for the petitioner; Sri Satish Chaturvedi for the respondent-Bank; and have perused the record.

Assailing the punishment order of removal as well as the appellate authority order, the learned counsel for the petitioner has submitted as follows:-

A. The charge sheet issued to the petitioner suffered from fundamental defect as it did not disclose full facts which were already in the knowledge of the department. According to the petitioner although in the charge sheet the main charge against the petitioner is of misappropriation of bank's funds but, in fact, there was no misappropriation since, admittedly, the amount of Rs.35,404/-, concerning allegation No.1 pertaining to charge No.1, which was credited in the account of the petitioner on 11.12.2010, was deposited in the Bank's account on 18.12.2010; and in so far as Rs.71,828/- in respect of allegation No.2 pertaining to charge No.1 is concerned, the money was neither deposited in the account of the petitioner nor was taken out of the branch but, on the same day, deposited back in the suspense account of the bank. Hence, there was no misappropriation at all. It has been urged that the charge sheet framed does not notice the redeposit of the amount and therefore the charge sheet is completely defective and the finding returned by the Inquiry Officer holding the charge of misappropriation proved, which has been affirmed by the Disciplinary Authority as well as the Appellate Authority, is perverse.

B. That the inquiry report though notices the defense of the petitioner but does not record any reason to discard the defense of the petitioner and in one word discards the same as not tenable. As, recording of reasons is an essential part of the principles of natural justice and acts as a check to prevent arbitrary action, bereft of reasons, the inquiry report stood vitiated and thereby vitiates the consequential action.

C. That the charge of misappropriation can only be leveled where a dishonest intention is alleged. Neither the charge sheet nor the inquiry report levels any allegation that the petitioner by his conduct exhibited dishonest intention of misappropriating the banks funds.

D. That the charge of misappropriation was based on two allegations. The first being that the petitioner got the old unclaimed drafts canceled and transferred the proceeds to his own account and later withdrew the amount from the ATM. The second being that the petitioner got the banker's cheques canceled to credit the bank's suspense account and took out cash from the account. According to the petitioner, the defense was that, as per considered decision, to augment the income of the bank, old unclaimed instruments money was required to be credited to branch's charges account which could have reflected higher income for the branch but when the entries could not be settled, despite several attempts, the amount was parked in the deposit account of the petitioner to be transferred later to the BGL account (Bank General Ledger Account). However, since this could not be managed on the same day, it was done later but there was no dishonest intention in the aforesaid act. The withdrawal of the amount from the ATM did not disclose the dishonest intention of the petitioner because the petitioner's father had gifted to the petitioner Rs.31,000/- by cheque therefore, under the belief that the said amount had been credited into petitioner's account, withdrawal was made. It has therefore been urged that in absence of any dishonest intention on the part of the petitioner, the charge of misappropriation was not at all proved and the Inquiry Officer, the Disciplinary Authority as well as Appellate Authority have all failed to consider the explanation submitted by the petitioner and, as such, the impugned orders deserve to be quashed.

In support of his contention that consideration of defense and dealing with it by recording reasons is necessary, and if reasons are not recorded then the enquiry report as well as consequential order stands vitiated, the learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court dated 12.01.2018 passed in Writ-A No.45227 of 2003 (V.P. Srivastava Vs. Chief General Manager, State Bank of India and others). Reliance has also been placed on Apex Court's decision in the case of Allahabad Bank and others Vs. Krishna Narayan Tewari: AIR 2017 SC 330 to contend that where the Disciplinary Authority and the Inquiry Officer do not apply their mind to the relevant material and no reasons are recorded, then the disciplinary action is vitiated. Reliance has been placed on decision of the Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank: 2009 (2) SCC 570 to contend that the Inquiry Officer performs judicial function and therefore care should be exercised by the Inquiry Officer in considering the evidence led before holding the charge proved. Reliance has also been placed on Apex Court's decision in the case of Kailash Nath Gupta Vs. Enquiry Officer, Allahabad Bank and others: 2003 AIR SCW 1813 to contend that non consideration of relevant factors by the Disciplinary Authority which have material bearing on quantum of punishment to be imposed can be a sufficient ground to direct for reconsideration of quantum of punishment. Reliance has been placed on decision of the Apex Court in Nand Kishore Prasad Vs. State of Bihar and others; AIR 1978 SC 1277 so as to contend that for arriving at a finding of guilt, the conclusion must be based on some evidence and not mere suspicion. Reliance was placed on the Division Bench's decision of this Court in V.P. Srivastava's case (supra) also to contend that if the Disciplinary Authority has not recorded reasons, recording of reasons by the Appellate Authority will not serve the purpose and therefore if the original order suffers from an irreparable lacuna, then the same cannot be rectified by the Appellate Authority.

In nutshell, the submission of the learned counsel for the petitioner has been that neither the Inquiry Authority nor the Disciplinary Authority has cared to take into account whether the act of the petitioner was visited with a mala fide intention/dishonest intention or it was a bona fide act for the purpose of making deposit in the charge account of the bank to augment the income of the petitioner, as was the claim of the petitioner. Hence, on account of non consideration of the aforesaid aspect, which was taken by way of defense, the entire disciplinary action stood vitiated.

In the alternative, it has also been urged by the petitioner's counsel that finding of the inquiry officer as well as the disciplinary and appellate authority that the allegation of misappropriation was also proved by mere withdrawal of cash from bank's suspense account was perverse and stood vitiated by non consideration that it was deposited back on the same day. Therefore, the punishment order being composite, based on all allegations, stood vitiated as the entire matter requires reconsideration by the competent authority. To explain the aforesaid submission, it has been submitted that charge of misappropriation was drawn from two acts of misconduct. One was in respect of transfer of the canceled bank drafts amount to the own account of the petitioner; and the other was withdrawal of cash from bank's suspense account. In so far as the withdrawal from the bank's suspense account was concerned, the amount was immediately deposited back in the bank's account on the same day and, therefore, there was no misappropriation at all and as this part of the charge was not proved, but wrongly held to be proved, the action based thereupon stood vitiated as a whole because the order of punishment was based on both the allegations. To buttress the above submission reliance has been placed on apex court's decision in the case of Khudiram Das v. State of W.B., (1975) 2 SCC 81 where the apex court, while dealing with validity of a preventive detention order, upon finding that before the detaining authority certain extraneous material was placed, observed as follows:

"It is elementary that the human mind does not function in compartments. When it receives impressions from different sources, it is the totality of the impressions which goes into the making of the decision and it is not possible to analyse and dissect the impressions and predicate which impressions went into the making of the decision and which did not. Nor is it an easy exercise to erase the impression created by particular circumstances so as to exclude the influence of such impression in the decision making process. Therefore, in a case where the material before the District Magistrate is of a character which would in all reasonable probability be likely to influence the decision of any reasonable human being, the Court would be most reluctant to accept the ipse dixit of the District Magistrate that he was not so influenced and a fortiori, if such material is not disclosed to the detenu, the order of detention would be vitiated, both on the ground that all the basic facts and materials which influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as also on the ground that the detenu was denied an opportunity of making an effective representation against the order of detention".

On the basis of the above observation of the apex court, it has been submitted by the learned counsel for the petitioner that as the second act of misconduct was not proved, the order of punishment being a composite order passed by treating all alleged acts of misconduct proved, the same is vitiated and goes as a whole.

Per contra, Sri Satish Chaturvedi, learned counsel appearing for the respondent-Bank, has submitted that the charge of misappropriation stood established the moment it was proved that the petitioner had transferred bank's funds to his own account. Admittedly, the bank's funds were withdrawn/ transferred from bank's account to the account of the petitioner on 11.12.2010 and the same remained in the account of the petitioner till 18.12.2010 as is clear from statement of account Pex No.11/12, which has been brought on record by the petitioner through supplementary affidavit dated 28.08.2018. In between, on 16.12.2010, by two ATM withdrawals of Rs.15,000/- each, the amount of Rs.30,000/- was withdrawn in cash by the petitioner. The cheque of Rs.31,000/-, which the petitioner claims to have received from his father, by way of gift, was credited in the account on 18.12.2010. Sri Chaturvedi submitted that the moment the petitioner transferred bank's funds from bank's account to his own account, the act of misappropriation stood complete and subsequent transfer back of the amount would not absolve the petitioner of his liability because it is well settled that embezzlement includes temporary embezzlement.

Sri Chaturvedi placed reliance on Apex Court's decision in State Bank of India and others Vs. S.N. Goyal: (2008) 8 SCC 92 wherein it was held that the position of the Manager of a Bank is a matter of great trust. The employees of a bank in particular the Manager are expected to act with absolute integrity and honesty in handling the funds of customers/ borrowers of the Bank. Any misappropriation, even temporary, of funds of the bank or its customers / borrowers constitutes a serious misconduct, inviting severe punishment. On the same proposition, Sri Chaturvedi placed reliance on another decision of the Apex Court in the case of State Bank of Patiala and others Vs. S.K. Sharma: (1996) 3 SCC 364. Reliance was also placed on decision of the Apex Court in the case of National Fertilizer Ltd. and another Vs. P.K. Khanna: (2005) 7 SCC 597 wherein the Apex Court had specifically held that the Disciplinary Authority is not required to record its reasons if it concurs with the Inquiry Officer findings though in a case where the Disciplinary Authority disagrees with the findings of the Inquiry Officers, reasons are to be recorded for such disagreement as well as for his own findings on those charges. By placing reliance on the said decision, Sri Chaturvedi contended that since the Inquiry Officer had recorded a finding that the charge of misappropriation was proved, the Disciplinary Authority was not required to separately record reasons to hold that the charge has been duly proved while concurring with the findings returned by the Inquiry Officer.

Sri Chaturvedi further contended that in disciplinary action detailed reasons like that recorded in judicial proceedings are not required. He submitted that the defense set up by the petitioner was on the face of record absurd and as no evidence was led by the petitioner in support of his defense, the Inquiry Officer was justified in saying that the defense was not tenable and recording any further reason to reject the same was not required.

Sri Chaturvedi contended that in fact the appellate authority had in its order explained as to why the defense of the petitioner that the petitioner had deposited the amount in his own account because he failed to transfer it in the charge account, on account of system snag, was not tenable. The appellate authority observed that CBS system adopted by the Bank accepted transfer directly from one account to the other and therefore there was no occasion not to make transfer directly but through another account.

Sri Chaturvedi further submitted that the charge of misappropriation stood duly proved by documents in respect of which the petitioner raised no dispute, inasmuch as, it was the admitted case of the petitioner that the amount realized on cancellation of the drafts was transferred to the suspense account of the Bank and thereafter transferred to the own account of the petitioner. Under the circumstances, as the Bank holds drafts as a trustee of its customers, cancellation of the drafts and transferring the money to the own account of a Bank employee amounts to misappropriation and, therefore, even if the misappropriation was temporary, that was sufficient for the Bank to impose severe punishment. More so, when the petitioner led no evidence to demonstrate that his intention was bona fide to augment the income of the Bank.

Sri Chaturvedi further contended that the allegation that the second limb of the charge of misappropriation was not proved, inasmuch as, the amount was deposited on the same day is also not correct because there was no justification, firstly, to cancel the bankers cheques and, secondly, there was no justification to withdraw the amount from the bank's suspense account in cash, particularly, when the transfer could have been made from account to account by normal debit/ credit with the aid of vouchers/ or by making relevant entries through Bank's operating system. Hence, even though the amount was withdrawn and received in cash temporarily and was thereafter deposited in the account on the same day, the charge of misappropriation was proved. He thus contended that the impugned orders are justified and the petition deserves dismissal.

We have given our thoughtful consideration to the rival submissions and have perused the record carefully.

The contention of the learned counsel for the petitioner that in absence of any cogent evidence to suggest that the petitioner had dishonest intention in canceling the drafts and crediting the amount of the same to the suspense account of the Bank and thereafter transferring to his own account, the charge of misappropriation was not proved, is unworthy of acceptance. The transfer of the amount from Bank's account to petitioner's own account, under the authority of petitioner himself, by itself constituted an act of misappropriation. In case such transfer was made in good faith or in peculiar circumstances, it was not only necessary for the petitioner to be plead it as defense but also to lead evidence in proof thereof. The case of the petitioner in his defense was that such withdrawal/transfer was made for making a credit entry in the charge account of the bank because, by such transfer, profit could be enhanced as, otherwise, money was lying unused; and that the decision was taken in consultation with other officers /employees of the bank, and in good faith. This plea of the petitioner finds no support from any evidence because, admittedly, neither the petitioner himself appeared as a witness in support of the defense plea nor the petitioner produced any other person as a witness to prove that any such conscious decision was taken. Whether on that date the system did not allow transfer from bank's suspense account to bank's charge account was a matter of evidence and the burden to prove the said fact was on the petitioner because it was his plea that the amount could not be transferred on account of system snag. Neither any bank officer was produced as a defense witness nor the petitioner himself turn up as a witness to substantiate that efforts were made by the petitioner to transfer the amount to the charge account of the bank but, despite efforts, the transfer could not materialize. Even during the course of the arguments, the learned counsel for the petitioner could not show us any document or evidence that may have substantiated such efforts. Though he cited that the said plea was taken by way of defense in the defense written brief as well as in memorandum of appeal before the appellate authority. But mere taking it as an argument was not enough, inasmuch as, the same had to be established. Because, an act which by itself is a misconduct, the burden is on the person, who committed the same, to prove that it is not so.

As, in the instant case, it is not in dispute that the bank drafts were got canceled under the authority of the petitioner and thereafter those bank drafts were credited to the general account/suspense account of the bank and thereafter the amount was transferred to the account of the petitioner, the burden was on the petitioner to explain the circumstances under which such transfer was made to his own account and the said burden could have been discharged only by leading of cogent evidence and by not merely taking it as a plea in his written statement/ argument. Since, admittedly, the petitioner led no evidence either by way of producing documents in support of his plea or by producing witnesses to demonstrate that despite great effort of the petitioner, transfer could not be made to the charge account, the petitioner failed to explain the bona fides of the transfer so as to exonerate himself from the charge of misappropriation when, otherwise, it was duly proved that the said amount was transferred from bank's account to the account of the petitioner, under his own authority.

Although it may not be necessary for us to examine whether there had been dishonest intention on the part of the petitioner in making such transaction but the facts which are on record are self-speaking. The bank statement of the petitioner which was documentary exhibit in the inquiry has been brought on record by way of supplementary affidavit dated 28.08.2018. The statement of account reveals that up to 07.12.2010 in the OD account of the petitioner, which had a limit of Rs.7,00,000/-, the over draft position as on 07.12.2010 was 6,97,567.89/-. Consequent to credit of Rs.35,404/- on 11.12.2010, the over draft position got reduced to Rs.6,62,163.89/- pursuant to which the petitioner could make withdrawal of Rs.30,000/- in two transactions on 16.12.2010 through ATM. Thereafter, on 18.12.2010, by Cheque No.397645, Rs.31,000/- was deposited in the account of the petitioner where after the amount of Rs.35,404/- was transferred from the account of the petitioner to the bank's account. The aforesaid statement of the account reflects that if Rs.35,404/- was not deposited by way of transfer in the account of the petitioner, the petitioner could not have withdrawn Rs.30,000/- from ATM on 16.12.2010. To meet those allegations, the petitioner set up a defense that his father gave him Rs.31,000/- by way of cheque and, under the belief that the cheque had been credited to his own account, he made withdrawal on 16.12.2010 of Rs.30,000/-. But to substantiate that plea, the petitioner has not produced any documentary evidence as to on which date the cheque was deposited by the petitioner in his account although it appears that the cheque was credited in his account on 18.12.2010. The aforesaid examination of bank statement of the petitioner suggests that the entry might have been made to facilitate withdrawal from the account.

Under the circumstances, we are of the view that the finding rendered by the Inquiry Officer that Allegation No.1 was duly proved so as to substantiate the charge of misappropriation is not such which can be called perverse, arbitrary, illegal or without any material/evidence.

In so far as the second limb of the charge of misappropriation is concerned, no doubt, the petitioner may have made deposit on the same day but the withdrawal of the amount in cash by the petitioner assumes importance. The explanation of the petitioner to cancel the banker's cheque, make credit entry in the suspense account of the bank and, thereafter, withdraw the money in cash from bank's account to deposit in bank's charge account is inexplicable, particularly, when such transfer could be made easily from account to account. If there had been a good reason for that then the same ought to have been furnished by leading cogent evidence.

Admittedly, the petitioner led no evidence though in his reply and in defense brief, he stated that the withdrawal was made in good faith and when, despite efforts, the amount could not be credited into the charge account, it was redeposited in the suspense account on the same day. Much emphasis has been laid, by the learned counsel for the petitioner, on the statement of bank's witness that the petitioner had not left the branch premises with the amount after withdrawal of cash. In this context, it would not be out of place to notice the allegations in the first information report. The allegations in the first information report, which was lodged against the petitioner, were to the effect that on 14.12.2012 when withdrawal was made of Rs.71,828/-, then the staff had protested, upon the fact coming to the notice of the Accountant Ramesh Agrawal, as a consequence whereof, the amount was redeposited. Although the evidence of the staff having protested may not have come in the departmental inquiry but the court cannot ignore the circumstances. In the circumstances, keeping in mind that the burden was on the petitioner to establish as to under what circumstances he made withdrawal and thereafter deposited the money back in the account, regarding which no evidence was led by the petitioner, the finding returned by the Inquiry Officer that the said allegation was also proved to prove the charge of misappropriation cannot be said to be perverse.

In addition to above, the defense plea of the petitioner that the object of such transfer was to augment the income of the Bank in itself may amount to misconduct as the action suggests an attempt to window-dress the Bank's profit and loss account. Therefore, unless cogent evidence is led to disclose that a conscious decision was taken in that regard, the defense plea as a whole was untenable.

The contention of the learned counsel for the petitioner that the Inquiry Officer rendered no reason and, in particular, did not record any reason to discard the defense taken by the petitioner, which vitiated the inquiry report, is not acceptable for two reasons. The first is that elaborate reasons need not be recorded in inquiry proceedings, particularly, when, in the facts of the case, the defense plea had no evidence in its support, as has already been found above. The second is that tenability of defense has to be considered in the context of the facts and circumstances of a case. A report has to contain reasons to make a person, to whom it relates to, understand the basis of the action taken against him. A Bank Officer is a person who is deemed conversant with the nuances of banking. When a bank officer takes a defense which on the face of it is not tenable, in the context of banking norms/ principles/ systems, discarding the defense by observing that it is not tenable, is sufficient compliance of the requirement of recording reasons, particularly, when defense is not supported by evidence. To what extent reasons are to be recorded is dependent on facts of each case. In the facts of the present case, as we have discussed above, the defense plea was indeed not tenable.

Even otherwise, we find that the service rules applicable to the petitioner enable the appellate authority to consider whether the findings are justified and/or whether the penalty is excessive or inadequate. Therefore, the appellate authority rightly, while examining the merit of the defense, elaborated the reasons so as to discard the defense taken by the petitioner as not tenable, by observing that in CBS system there could be transfer of money from one account to the other and therefore the defense that the bank's funds were parked in petitioner's personal account to facilitate eventual transfer to the charge account was not tenable. Similarly, there was no justification to withdraw cash from Bank's suspense account for deposit in the charge account.

These reasons, in our view, are sufficient to demonstrate that the defense of the petitioner had no legs to stand more so because the petitioner led no evidence to substantiate that he had faced a peculiar situation where the money could not be transferred directly to the charge account.

As we have found that the charge of misappropriation, even though temporary, was proved against the petitioner, the punishment of removal cannot be said to be harsh so as to warrant interference under Article 226 of the Constitution of India.

At this stage, it would be appropriate to deal with another submission of the petitioner which is that the entire inquiry stood vitiated as the charge sheet served upon the petitioner was defective. According to the learned counsel for the petitioner the charge sheet was defective because it only speaks of withdrawal/ transfer from bank's account but does not disclose that the money was redeposited/ transferred back. It has been submitted that such a charge sheet would be defective, inasmuch as, it reflects non application of mind to the fact that there was no embezzlement/ misappropriation of funds, in the sense that there had been complete redeposit of the amount shortly after withdrawal.

The aforesaid contention of the learned counsel for the petitioner is not liable to be accepted because it is well settled that misappropriation includes temporary misappropriation. Accordingly, once the money was withdrawn from bank's account and parked in petitioner's own account, the act of misappropriation stood complete and, likewise, when the money was withdrawn in cash from bank's account, without there being any justification, technically the act of misappropriation was complete regardless of subsequent redeposit. As the charge sheet and the statement of allegations served upon the petitioner had disclosed the above mentioned acts constituting misconduct, the charge sheet cannot be termed defective merely because it did not disclose the mitigating factors. No doubt, mitigating factors are required to be considered before taking a final decision on punishment as also to find out the gravity of misconduct. But these mitigating factors were noticed and considered by the Inquiry Officer / Disciplinary Authority / Appellate Authority. In fact, they were fully aware that the money was deposited in the concerned account. But since the money was withdrawn from the account and credited to the account of the petitioner where it remained for few days, the charge was rightly held proved.

Another submission of the learned counsel for the petitioner which needs to be noticed is that the punishment order was passed by treating both limbs of the charge of misappropriation proved when, in fact, at best, only one part could be considered proved. According to the petitioner since the cash withdrawal was deposited back on same day and, admittedly, the cash was not even taken out of the branch, there was no justification to hold the charge of misappropriation proved on that count. It was argued that if this part of the charge was not proved, but wrongly taken as proved, the punishment order goes as a whole and therefore under the circumstances a fresh order would have to be passed by taking that part of the charge not proved.

The above contention is not acceptable for two reasons. Firstly, because, both parts of the charge of misappropriation were technically proved and, secondly, even if one part may not be serious enough to warrant major penalty of removal, the second part was very serious as the petitioner had parked bank's funds in his own account and had also made withdrawal from that account, which warrants major penalty.

In State of Orissa v. Bidyabhushan Mohapatra, AIR 1963 SC 779, a question had arisen as to whether in a case where the disciplinary action is taken on a conspectus of multiple charges but, later, finding on some of the charges is found vitiated, the matter needs to be remanded back to the disciplinary authority to pass a fresh order. In that context, a five judges bench of the apex court, in paragraph 9 of the report, observed as follows:

"9. The High Court has held that there was evidence to support the findings on heads (c) and (d) of Charge (1) and on Charge (2). In respect of Charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of Charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed." The recommendation of the Tribunal was undoubtedly founded on its findings on Charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether "on the basis of those charges, the punishment of dimissal should be maintained or else whether a lesser punishment would suffice." It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on Charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on Charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Article 309 of the Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, is not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were "unassailable", the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.

(Emphasis supplied)

From above, it is clear that where there are several charges on which a disciplinary action is taken and, subsequently, some of the charges fail, for some reason or the other, it is always open to the court to examine whether disciplinary action could be sustained on surviving proven charge. If the court comes to the conclusion that the surviving proven charge is serious enough to justify the punishment already imposed, it need not remand the matter. The judgment of Khudiram Das (supra) relied by the learned counsel for the petitioner is of no help to him because it has been rendered in the context of fundamental rights of a detenue guaranteed under Articles 21 and 22 of the Constitution of India. The stringent tests on which the validity of a preventive detention order is tested are not applicable in a disciplinary action.

For all the reasons recorded above, we do not find any justifiable reason to interfere with the disciplinary action taken against the petitioner. The petition is dismissed. There is no order as to costs.

Order Date :- 12.10.2018

AKShukla/-

(V.P. Vaish, J.)      (Manoj Misra, J.)