B.S.N.Prasad vs The General Manager Personnel
2022 Latest Caselaw 2543 AP

          THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

                    WRIT PETITION No.40938 of 2014

ORDER:

This Writ Petition is filed under Article 226 of the Constitution

of India, seeking the following relief:

".....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in dismissal the petitioner from the service vide his proceedings Ref.No.458/PD:IRD/DA-6, dated 03.05.2012, as confirmed by the 1st respondent in Appeal No. 048/PD:IRD/DA-7, dated 30.03.2013 as illegal, arbitrary and violative of principles of natural justice and consequently set aside the same and pass such other orders."

2. The claim of the petitioner is that he is working as Manager

of respondent-bank. While he was working in Mudigubba Branch,

Anantapur District during the period 11.06.2007 to 03.11.2008 the

then Manager made certain fictitious debts with regard to Crop

Insurance Account, which was credited to various SKCC accounts

and fraudulently withdrawn such amounts without knowledge of the

borrowers. Therefore, the 2nd respondent bank initiated enquiry. The

petitioner submitted an explanation. Finally the 2nd respondent

dismissed the petitioner from the services and passed orders vide

proceedings Ref.No.458/PD.IRD/DA-6, dated 03.05.2012 as per

Regulation 3(1) r/w Regulation 24 of Syndicate Bank Officers

Employees (Conduct) Regulations, 1976. Aggrieved by the same, the

the petitioner filed an Appeal before the 1st respondent, which was

also dismissed by confirming the order of the 2nd respondent. A

complaint was lodged against the petitioner by the Bank and the

same was numbered as C.C.No.323 of 2012 on the file of the Court of

the Additional Judicial Magistrate of I Class, Kadiri, which was ended

as acquittal. On 01.07.2013. Subsequently the petitioner approached

the Executive Director, Industrial Bank Corporate Office to reinstate

the petitioner into service, but no action taken by the respondents,

which is illegal and arbitrary. Hence the present writ petition came to

be filed.

3. Per contra, the respondents filed counter by denying all

material averments made in the writ affidavit and contended that an

enquiry was initiated against the petitioner while he was working as

Branch Manager, Mudigubba Branch during the period between

11.06.2007 and 03.11.2008 vide Charge Sheet No. 382/PD/IRD/DA-

3, dated 17.10.2011 for abusing his official position by making

fictitious debts to crop insurance account giving credit to SKCC

accounts and fraudulently withdrawn such amounts by debiting

SKCC head without the knowledge of the borrowers and made

fictitious debts/ release under SKCC accounts and exceeded

sanctioned limits in certain cases, obtained dishonestly additional

withdrawal from certain customers and misused the same by

withdrawing bank's funds unauthorisedly. So also, he sanctioned

vehicle loans to NPA borrower in violation of Bank's guidelines,

debited crop insurance premium fraudulently in collusion with one A.

Nagi Reddy and others and committed various irregularities. An

enquiry was conducted in accordance with the provisions of Syndicate

Bank Officer Employees' (Discipline & Appeal) Regulations 1976. Both

the parties submitted their written submissions at the time of

enquiry. Considering the evidence on record, the Inquiring Authority

submitted a report dated 15.03.2012 holding that all the charges

against the petitioner is proved. Basing on the said report the

Disciplinary Authority imposed the impugned penalty vide

proceedings No. 458/PD:IRD/DA-6, dated 03.05.2012. Aggrieved by

the same the petitioner filed an Appeal dated 09.07.2012 before the

Appellate Authority, which was dismissed by confirming the order of

the Disciplinary Authority vide proceedings dated 30.03.2013. Since

the petitioner committed irregularity in misappropriating the

Government funds released under Debt Waiver Scheme for his

personal benefit and tarnished the fair image of the bank in the

public. Hence the Disciplinary Authority concluded and dismissed the

petitioner from the services.

4. The petitioner filed Reply Affidavit against the counter

affidavit filed by the respondents by denying all adverse averments

made in the counter affidavit and contended that the respondents has

not conducted proper enquiry and perfunctorily concluded the

disciplinary proceedings without considering the explanation

submitted by the petitioner. No borrower statement is recorded and

no opportunity was given to cross examine the witnesses. Further

there is no proof for the alleged withdrawal of the amounts and there

was no complaint or evidence of procedural deviations/ irregularities

in all those subject transactions and the case against the petitioner in

C.C.No. 332 of 2012 on the file of the Court of the Additional Judicial

Magistrate of I Class, Kadiri was ended as acquittal. The judgment of

the court below and evidence recorded in the criminal case are all

subsequent to the impugned proceedings issued by the respondents 1

and 2. Hence the petitioner had no opportunity to confront the same

in the enquiry. Therefore the counter affidavit is misconceived and

untenable.

5. Learned counsel for the petitioner placed reliance on the

decision of Division Bench of High Court of Allahabad in "State of

U.P Vs. Aditya Prasad Srivastava and Another1" wherein it was

held as follows:

"It is settled that unless contents of a document which is not admitted, are proved by the author, who is examined before the inquiry officer and is available for cross examination by the delinquent employee, such document cannot be deemed to be proved and therefore such document cannot be relied to hold a delinquent employee guilty and to impose punishment upon him".

6. The learned Division Bench of High Court of Allahabad was

also taken the view passed by Apex Court's Judgment in "M/s

Bareilly Electricity Supply Co. Ltd., Vs. The Workmen and

Others"2. Therefore, it is observed that the respondents-bank

initiated enquiry without considering the explanation submitted by

the petitioner. No witness is examined and no documents marked.

Therefore, it is very clear that the respondents have not committed

fair enquiry and not afford personal hearing and no cross examination

against the witnesses was done.

7. Learned counsel for the petitioner further place reliance on

the decision of the Supreme Court of India in Union of India and

Others Vs. Dalbir Singh3, wherein three Judge Bench of the Apex

Court in State of Haryana and Another Vs. Rattan Singh4 was

discussed with regard to non examination of the witnesses. The Apex

Court held that in a domestic enquiry, strict and sophisticated rules

of evidence under the Indian Evidence Act may not apply and that 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. This Court held as under:

2017 LawSuit (All) 164

1972 AIR (SC) 330

LL 2021 SC 486 (Civil Appeal No. 5848 of 2021)

(1977) 2 SCC 491

"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, fair play 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. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. 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 findings is certainly available for the court to look into because it amounts to an error of law apparent on the record"

Further, the Apex Court discussed with regard to exercise of

jurisdiction of judicial review in Union of India and others Vs. P.

Gunasekharan5, wherein it was held as follows:

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) The enquiry is held by a competent authority;

(2015) 2 SCC 610

(b) The enquiry is held according to the procedure prescribed in that behalf;

(c) There is violation of the principles of natural justice in conducting the proceedings;

(d) The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) The disciplinary authority had erroneously failed to admit the admissible and material evidence.

(h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) The finding of fact is based on no evidence.

13. Learned counsel for the respondents placed reliance on the

decisions of this Court in "V. Ramana Vs. APSRTC and Others"6

wherein, this Court discussed the view taken in the case of

"R.S.Saini Vs. State of Punjab"7 wherein the Apex Court clearly

held as follows:

"Furthermore, an order of acquittal passed by a Criminal Court alone would not be conclusive in the departmental proceedings and the same would not be a bar to the disciplinary action. It is further trite that the nature of proof in a criminal case is different from that of a departmental enquiry, while in the former, proof beyond any reasonable doubt is necessary, in the matter the doctrine of preponderance of evidence is only required to be the standard proof."

2001(5) ALD 427 (FB)

(1999) 8 SCC 90

Further, learned counsel for the respondents relied on a

decision of this Court in "G. Satyanarayanamma Vs. Canara

Bank, Bangalore and others"8 wherein it was held as follows:

"15.........In the circumstances, if the Court were to consider this misconduct of the delinquent employee leniently, it would tantamount to the Court placing misplaced sympathy on an undeserved person. Time has come that the unscrupulous and corrupt elements in the public organizations/ institutions should be weeded out to up keep the integrity and credibility of the institutions. Otherwise, the public institutions would snk under the heavy weight of corrupt elements and that the court will never be a privy to such a calamity".

He relied on a decision of this Court in Chairman and

Managing Director, Singareni Collieries Company Limited,

Kothagudem, Khamma District and Others Vs. B.V.S.Prasad9

with regard to non supply of the material documents to the

delinquent does not vitiate the departmental enquiry and held as

follows:

"8...........It is well settled that the delinquent- employees have no vested right in any form or procedure of holding the preliminary enquiry. The object for holding the preliminary enquiry being the satisfaction of the disciplinary authority, the procedure of enquiry is wholly at the discretion of the disciplinary authority holding the enquiry. After holding preliminary enquiry, the disciplinary authority need not record its satisfaction in writing nor is it required to give any reasons for initiating the regular departmental enquiry. A preliminary enquiry, it is trite, does not result either in exoneration or punishment. Therefore whatever be the finding in the preliminary enquiry, that will not affect any of the legal rights of the delinquent- employee."

2003(1) ALD 49 (DB)

2002 (5) ALD 794 (DB)

In the case of "V. Srinivas Vs. Superintendent of Police,

Medak District, Sanga Reddy, Medak and Others10 wherein the

erstwhile High Court of Andhra Pradesh held as follows:

"7. It is further well settled that even in a case where the criminal trial ends in acquittal in favour of the delinquent employee, there does not exist any embargo on the part of the disciplinary authority in initiating disciplinary proceedings on the self same charges. As noticed herein before, in Paul Anthony;s case (Supra) the Supreme Court itself has categorically held that it is possible that a person can be found guilty of commission of misconduct despite his acquittal in the criminal trial".

8. Viewing from any angle, this Court finds that there is

improper enquiry conducted by the respondent bank as per

procedure. Further as per the decision of Union of India and others

Vs. P. Gunasekharan (Ref.5 cited supra) the enquiry must be

fulfilled with certain procedure as per law. The respondent authorities

conducted unfair enquiry and without considering the explanation

submitted by the petitioner. There is no admissible and proper

evidence to arrive at a fair decision and the findings of the enquiry

authority is based on no evidence, which is fatal to the case of the

respondents.

9. As could be seen from the catena of decisions submitted by

the respondents vitiate the procedural formalities and its legal

sanctity against the delinquent officer. But in the instant case the

criminal case in C.C.No.323 of 2012 on the file of the Court of the

Additional Judicial Magistrate of I Class, Kadiri was ended as

acquittal on the same subject matter, on the ground that the

respondents miserably failed to prove the guilt of the petitioner.

2001(2) ALD 44 (DB)

Therefore, this Court inclined to accept the contentions of the

petitioner.

10. Having regard to the facts and circumstances of the case,

upon perusal of the material on record and considering the

submissions of learned counsel, this Court in the interest of justice

declaring the impugned proceedings of the 2nd respondent vide

Ref.No.458/PD:IRD/DA-6, dated 03.05.2012, which was confirmed by

the 1st respondent in Appeal No. 048/PD:IRD/DA-7, dated

03.03.2013 as illegal, arbitrary and same is hereby set aside, while

directing the respondents 1 and 2 to reinstate the petitioner into

service. Since the petitioner has attained superannuation, he is

entitled for all consequential benefits from the date of dismissal from

the service till the date of his superannuation. The total exercise shall

be completed within a period of four (04) weeks from the date of

receipt of a copy of this order.

11. With the above direction, the writ petition is allowed

accordingly. No costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

__________________________________ DR.JUSTICE K. MANMADHA RAO Date: 15.06.2022.

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

WRIT PETITION No.40938 of 2014

Date:15.06.2022.

KK