Kishan Singh Hyanki vs The Chairman And 4 Others
2021 Latest Caselaw 6889 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											AFR
 
Court No. - 2
 
Case :- WRIT - A No. - 4847 of 2021
 
Petitioner :- Kishan Singh Hyanki
 
Respondent :- The Chairman And 4 Others
 
Counsel for Petitioner :- Vishal Agarwal
 
Counsel for Respondent :- Siddharth Singhal
 
Hon'ble Suneet Kumar,J.

1. Heard Shri Vishal Agarwal, learned counsel for the petitioner and Ms. Divya Chaurasiya, learned counsel holding brief of Shri Siddharth Singhal, learned counsel for the respondents through video conferencing.

2. The petition is being decided of at the admission stage, as per rules, on the consent of the parties.

3. Petitioner a Cashier (SR No. 249026) at Branch Office, Gola in Lucknow Division, had to face departmental enquiry. A charge-sheet dated 21 November 2016, was issued by the third respondent-Senior Division Manager, Divisional Officer, Hazratganj, Lucknow (Disciplinary Authority). Petitioner was charged with six charges with allegations of committing financial irregularities and embezzlement. The charges briefly stated is as follows:

i. that petitioner while posted as Cashier in Branch Office, Palia, District Lakhimpur Kheri misused official position and misappropriated eight cheques favouring "L.I.C. of India" thereby facilitating siphoning of funds and misused it for the benefit of himself, his wife and persons not related to genuine policy holders;

ii. that petitioner in connivance with the record Clerk, Shri Anand Kumar (SR No. 254146) while performing duties as Officiating Cashier fraudulently misappropriated cheque of Rs. 13431/- prepared in favour of ''L.I.C. of India' against surrender proceeds under a policy together with cash of Rs. 2385/- without authority and misused it for himself and his wife and persons not related to the genuine policy holders.

iii. that petitioner put himself as a witness on a form for surrender of policy whereas the signature of the policy holder did not match with the proposal form of the same policy;

iv. that petitioner prepared a cheque favouring ''L.I.C. of India' without any application/document submitted by the policy holder for the said cheque;

v. that the petitioner despite being a regular Cashier validated the loan voucher at Rs. 38,000/- under a policy which was raised without necessary documents and validated the transaction, whereas, the cheque for the said amount was prepared without necessary documents/applications submitted by the policy holder.

vi. that petitioner being a regular Cashier prepared loan voucher raising loan of Rs. 51,000/- without obtaining necessary documents and recording the loan details in the loan register.

4. It is alleged that as a consequence of the misconduct financial loss was caused to the Corporation at Rs. 1,61,864.30 paise of which Rs. 1,17,622.80 paise was misappropriated towards various policies by the petitioner himself and for his wife. Rs. 44,241.50 paise was misappropriated towards various policies of persons other than the original policy holders. The details of the cheques/documents and the fraudulent transaction/figures were detailed in the charge-sheet.

5. Provisions of L.I.C. of India (Staff) Regulations, 1960 (for short ''Regulations'), governs the petitioner for disciplinary proceedings and imposition of penalty.

6. Petitioner participated in the disciplinary proceedings and contested by filing a written statement denying the charges. Petitioner also tendered unconditional apology to the Enquiry Committee. The Enquiry Officer upon following the Regulations and after giving opportunity to the petitioner and on perusal/examination of documents held Charge No. 1, 2, 4, 5 and 6 proved against the petitioner. Enquiry report dated 17 July 2017, was submitted to the disciplinary authority. The fourth respondent passed impugned order dated 30 July 2018, agreeing with the enquiry report, imposing punishment of removal from service and recovery at Rs. 1,54,696.60 paise. Aggrieved, petitioner preferred an appeal before the second respondent-Zonal Manager, North Central Zone, Kanpur, which came to be rejected vide order dated 21 February 2019, thereafter, petitioner preferred a Memorial dated 22 April 2019, before the first respondent-Chairman, Life Insurance Corporation of India, Mumbai which was rejected vide order dated 1 August 2019.

7. The aforementioned orders are under challenge.

8. Learned counsel for the petitioner submits that petitioner has deposited the fine imposed by the impugned orders, therefore, no loss was caused; petitioner merely carried out verbal instructions of his superior officials; there was no personal interest of the petitioner in the alleged charge; petitioner is the sole bread earner of the family and is facing hardship after passing of the impugned orders; petitioner committed mistake due to lack of knowledge; petitioner has not committed any fraud or cheating; the impugned orders have been passed without application of mind.

9. Learned counsel for the respondent-Corporation submits that the procedure prescribed under the Regulations was duly followed; petitioner was given full opportunity to defend himself; the charges have been proved by documentary evidence which was duly produced before the enquiry officer; petitioner is guilty of embezzling the money due to the Corporation and policy holders; the money embezelled was used for personal and for his family members. It is not the case of the petitioner that there is any perversity in the findings recorded by the authorities. Petition being devoid of merit is liable to be dismissed.

10. Rival submissions fall for consideration.

11. The first respondent Chairman of the Corporation, on perusal of the record and the objections raised by the petitioner noted that he was satisfied that the procedure prescribed for initiation and completion of the disciplinary proceedings under the Regulations was adhered to by Enquiry Officer, reasonable opportunity was afforded to the petitioner to raise his defence in respect of the charge. It is further noted that finding of guilt recorded by the disciplinary authority is based on evidence available on record and on the facts and circumstances of the case. The disciplinary authority has considered the objection of the petitioner that he was performing his duties as per verbal instructions of his superior officials and that the transactions were carried out by the petitioner with no motive to cheat but to the best of his knowledge. The authority noted that the Enquiry Officer and the Disciplinary Authority duly considered the objections raised by the petitioner but lacks merit in the backdrop of admitted documentary evidence. The instructions, even if, carried out on verbal orders against the mandated procedures or in violation of the rules of the Corporation is of no avail to the petitioner. It is further noted in the impugned orders that objection is untenable, admittedly, petitioner himself benefited from the fraudulent transactions and knowingly adjusted the embezzled amount in favour of his own policies and policies of his wife. Petitioner misappropriated the proceeds which admittedly pertains to other genuine policy holders without their authority or approval. It is further noted that plea of the petitioner that he lacks procedural knowledge is without any basis as he had joined the Corporation in 2009 and took charge as Cashier in 2011.

12. The final objection of the petitioner that he is the sole bread earner and punishment imposed would subject his family to hardship was also not accepted by the authorities. It is noted in the order that on the strength of the documents on record, minutes of the proceedings and enquiry report, disciplinary authority had rightly arrived at the conclusion of guilt after duly evaluating the evidence, the facts and circumstances of the case and after due and reasonable opportunity being afforded to the petitioner to defend himself.

13. The punishment imposed is commensurate to the guilt committed by the petitioner. A financial misconduct by an employee of a financial institution, is a serious misconduct. Corporation lost faith, confidence and trust in the petitioner and in such circumstances continuing him as an employee on the post of Cashier would jeopardise the interest of the Corporation and expose genuine policy holders to risk of fraudulent transactions.

14. The contention of the learned counsel for the petitioner that no loss was caused to the bank lacks merit. Quantum of embezzlement is not relevant, it is the act of committing embezzlement that determines the quantum of punishment.

15. Supreme Court in State Bank of Bikaner and Jaipur versus Nemi Chand Nalwaya1, held that termination by way of punishment was justified for loss of confidence in an employee by a bank for causing loss to the bank. Similarly, in State Bank of India and others Versus S.N. Goyal,2 the Apex Court held that temporary misappropriation of customer's money by Bank employee is a serious misconduct warranting removal from service and tantamounts to breach of trust.

16. In the case of T.N.C.S. Corpn. Ltd. and Ors. (appellants) v. K. Meerabai (respondent)3, the plea of no loss or quantum of loss was rejected by the Court. It was pointed out at page SCC 267 para 29 as under:

"The scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money mis-appropriated. In the instant case, respondent employee is found guilty of mis- appropriating the Corporation funds. There is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal."

(Refer: Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik4; Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar5)

17. The scope of judicial review under Article 226 is very limited.

18. The Supreme Court in the case of State of Madras vs. G. Sundaram6 had explained the scope of judicial review::-

"7. It is well settled now that a High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence.

Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition."

19. Similar view was emphatically expressed in State of Andhra Pradesh v. Sree Rama Rao7, wherein it was held that

"But the departmental authorities are, if the enquiry is otherwise properly held the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

(Refer: State Bank of India vs. Ramesh Dinkar Punde8, Nirmala J. Jhala vs. State of Gujarat and another9)

20. The 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. This apart, even when some defect is found in the decision- making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene.

21. The findings of fact recorded by a tribunal can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Refer: S.R. Tewari vs. Union of India and another10)

22. The principle of law that emanates from the above noted judgments are that in the case of misconduct of a bank officer or employee, including the Corporation, if the officer/employee is found guilty of any kind of the financial irregularities irrespective of the amount involved, no punishment less than dismissal/termination should be passed. Any plea of leniency or sympathy regarding the quantum of amount or nature of misconduct is totally misplaced.

23. Having due regard to the facts and circumstances of the case and material placed on record, the Court declines to interfere in the matter.

24. It is clarified that no other point or ground was pressed.

25. The writ petition being devoid of merit is, accordingly, dismissed.

Order Date :- 1.7.2021

S.Prakash