N.C. Chaturvedi vs Bank Of India And Ors.
2013 Latest Caselaw 2730 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 2832/1998
%                                                          3rd July, 2013

N.C. CHATURVEDI                                      ......Petitioner
                          Through:       Mr. Puneet Verma, Advocate with
                                         Mr. Vikram Saini, Advocate.




                          VERSUS


BANK OF INDIA AND ORS.                                    ...... Respondents

Through: Ms. Ratna D. Dhingra, Advocate with Ms. Bhavna Dhami, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition filed under Article 226 of the Constitution of

India prays for setting aside of the orders passed by the Departmental

Authorities of the respondent no.1/employer/Bank of India whereby the

petitioner has been imposed with the penalty of dismissal from service.

2. The charge against the petitioner was that the petitioner

allowed an account of one Smt. Kiran Devi to be opened in the Connaught

Circus branch where he was posted as a Clerk though he was not in-charge

of opening of accounts. Petitioner is thereafter charged in taking the

necessary documents for release of the amount of Rs.4 lacs lying in the

account of the said Smt. Kiran Devi at the Karol Bagh branch of the

respondent No.1-bank. Although to the knowledge of the petitioner there

was a doubt about the identity of Smt. Kiran Devi and the Karol Bagh

Branch of the respondent No.1-bank after having opened the account of Smt.

Kiran Devi and crediting an amount of Rs.4 lacs by clearing of the cheque

had put the said substantial amount into Sundry Deposit account, "unknown

deposits". Petitioner is alleged to have personally got a pay order issued

from the Karol Bagh Branch of Rs.4 lacs in the name of Smt. Kiran Devi

which was credited to the saving bank account No.17629 of Smt. Kiran Devi

in Connaught Circus Branch and thereafter the amounts were withdrawn in

cash by Smt. Kiran Devi. In order to fully understand the charge against the

petitioner, the facts as stated against the petitioner in the enquiry report are

reproduced as under:-

"That on 08-09-93 you allowed one S./B account No. 17629 to be opened by a lady purported to be Smt. Kiran Devi, without any valid introduction and without knowing the antecedents of the said lady, even though you were not allotted the duties for opening of S/B account. You were well aware that when a person with similar name had approached the Bank's Karol Bagh branch, certain doubts were

raised by the said branch about the identity of the person who had come to open the account and consequently the account was not opened by the said branch, yet you allowed the account to be opened without satisfying the branch about the genuineness of the account holder. In this pursuit you also filled in the paying-in-slip pertaining to the said account for ` 500/- with which the account was opened.

In order to further accommodate the said account holder, you went to the Bank's Karol Bagh Branch, personally, carrying a blank special Collection Schedule (S.C.S) No. 11242 from Con. Circus Branch so as to collect the amount of Rs.4.00,500/- from Karol Bagh Branch, which had been kept by them in Sundry Deposit account "Unknown Deposits". In this pursuit you had approached the chief Manager of Karol Bagh Branch and convinced him that the actual owner of the amount which had been credited in the Sundry Deposit account, was known to you and she was the true owner of the cheque. Moreover, you also persuaded him to issue a pay slip favouring Smt. Kiran Devi. In view of the assurance given by you, the officials at the Bank's Karol Bagh Branch prepared a pay order No. 009236 dated 08-9-93 in the name of Mrs. Kiran Devi for Rs.4,00,500/-. You personally collected the said pay order and presented the same alongwith the aforementioned S.C.S. which you had brought from Con. Circus Branch, after affixing the crossing stamp of Karol Bagh Branch and changing the name of the said crossing from Karol Bagh Branch to Con. Circus Branch on your own. Subsequently, you collected the relevant Credit Note pertaining to the S.C.S. No. 11242 for Rs.4,00,500/- unauhorisedly and after personally carrying it to the Con. Circus Branch you got it credited in the newly opened S/B Account No. 17629 on the same day i.e. 08-9-93.

You thus unduly accommodated an outsider, purported to be Smt. Kiran Dev, whose account was not even introduced properly, as you had failed to verify the signatures of the so called introducer from his specimen signatures, which were available on the records of the Bank's Karol Bagh Branch. Besides, despite knowing the fact that the Karol Bagh Branch had refused to open the S/B Account of Smt. Kiran Devi owing to her doubtful identity, though duly introduced by

one Shri Ashwini Sharma, you preferred to open her account in your branch by taking the same person as introducer.

From the aforementioned credit of Rs.4,00,500/- in the said account you authorised a transfer of Rs.1,50,000/- in another BOI Star 92 account No. 172 of Smt. Kiran Devi, which was also opened on the same day i.e. 8-9-93. From the account opening form of the said newly opened BOI Star 92 account, it is evident that originally the outsider purported to be Smt. Kiran Devi had opened her account as wife of Sh. Amit Kumar and resident of Kihore Villa, Main Delhi Road, Gurgaon. However, subsequently, you without any valid reason, unauthorisedly tampered with the Bank's records and changed the husband's name of the account holder as well as residential address of the account holder in the account opening form of the aforementioned S/B account No. 17629 as well as the ledgers pertaining to the said S/B account and the BOI Star 92 account No.

172. Subsequently, the account opening form of the said S/B account No. 17629, in which unathorised tampering/erasing was done by you was found to be missing from the bank's record and only its photocopies are available. In this regard, there was not even a letter of request from the account holder to make any correction/alterations, in the said account opening form and the corresponding ledgers, which clearly establishes that you effected all the said tampering/erasing/alterations unauthorisedly, own your own without any reason and without informing the higher officials of the branch.

It was subsequently revealed that the said account was actually opened by some fictitious person who had encashed the amount thus credited in her account in the following manner, though the amount of Rs.4,00,000/- deposited in her account was actually credited on the basis of a cheque which did not belong to the account holder of the said S/B account No. 17629 and the BOI Star account No. 172.

        Date             Date        of       Amt. withdrawn
                         Withdrawal
    08-09-1993           By Cash              Rs.1,00,000/-
    24-09-1993           By Cash              Rs.1,20,000/-
    12-10-1993           By Cash              Rs. 30,000/-
    29-10-1993           By Cash              Rs.1,00,000/-


      27-01-1994            By Cash               Rs 50,000/-
     19-08-1994            By Cash               Rs. 3,651/-
                                                 (inclusive of      accrued
                                                 interest)

It is also revealed from the bank's records that in order to help the said fictitious account holder to withdraw the amount fraudulently, you aided/helped her by not only filling the paying slips dt. 08-9-93 for Rs.500/- and Rs.4,00,500/- but also by filling cheque No. 1352 and 1351 dt. 08-9-93 through which Rs.1,00,000/- was withdrawn in cash and Rs.2,50,000/- was transferred to BOI Star 92 account respectively.

In this manner you have willfully aided/abetted a fraud to the tune of Rs.4,00,000/- and also reported to tampering with Bank's records.

3. In the enquiry proceedings, detailed oral and documentary

evidence was led by both the parties. The management examined six

witnesses and filed 44 documents whereas the petitioner/charged official

examined three witnesses besides himself and filed 36 documents. The

Enquiry Officer thereafter has drawn out a detailed report running into 38

pages (single spacing) holding the petitioner guilty of the charges. The

detailed report discusses the various contentions as raised by the petitioner

and gives findings and conclusions as to how the defence/stand of the

petitioner is misconceived and unacceptable.

4. Before I go into the arguments urged before me on behalf of the

petitioner, the scope of hearing in a case such as the present is required to be

set out. A Court hearing a petition under Article 226 of the Constitution of

India which challenges the orders passed by the Departmental Authorities

does not sit as an Appellate Court and re-apprise the findings and

conclusions arrived at by the Departmental Authorities. This Court can only

interfere if the findings and conclusions of the Departmental Authorities are

perverse. If there is no perversity and the conclusions arrived at by the

Departmental Authorities are plausible and possible, this Court would not

interfere with such findings and conclusions of the Departmental

Authorities. Another ground on which Court interferes is if the findings are

against law or the rules of the organization. The third reason for interference

would be if the principles of natural justice are violated. Finally, the

punishment imposed can be challenged on the ground of violation of

Doctrine of Proportionality.

5. In the present case challenge is laid to the findings of the

Departmental Authorities on the three of the four grounds i.e all grounds

except ground of violation of law or rules of the organization.

6. Before me, counsel for the petitioner has vehemently argued

aspects which are dealt with by me hereinafter:-

7. The Disciplinary Authority and Sh. A.K. Vij (who was an

earlier Enquiry Officer who concluded part of the proceedings) were biased

and therefore the orders of the Departmental Authorities should be set aside.

Endeavour has been made to take me through the report of the Enquiry

Officer as also the Disciplinary Authority to show the alleged bias. In my

opinion, bias as alleged in the facts of the present case cannot in any manner

help the petitioner because what has to be seen is whether the findings and

conclusions of the Departmental Authorities are perverse or illegal. No

illegality is alleged, and as stated below the reports of the Enquiry Officer,

the Disciplinary Authority as also the Appellate Authority cannot in any

manner be said to be perverse. Reports of the Enquiry Officer, order of the

Disciplinary Authority and order of the Appellate Authority are lengthy/

detailed speaking orders running into many pages and they set out the

reasons and conclusions leading to the imposition of punishment of

dismissal from services of the petitioner. Once there cannot be found any

fault with the findings and conclusions of the Departmental Authorities any

alleged bias as is asserted by the petitioner cannot help for setting aside of

the orders passed by the Departmental Authorities. Further, so far as Sh.

A.K. Vij is concerned, admittedly he was only an earlier Enquiry Officer and

he is not the Enquiry Officer who gave the report. I therefore fail to

understand as to how the bias of an earlier Enquiry Officer who has not

given the report, even if taken as true for the sake of arguments, can in any

manner help the petitioner to show perversity in the enquiry report given by

another Enquiry Officer. In the present case, for one reason or the other

various Enquiry Officers were changed and the Enquiry Officer who finally

gave the report was the fourth Enquiry Officer. It is like as if different

Presiding Officers who hold judicial proceedings at different points of time

but it is the last officer who delivers the judgment would really be relevant

because it is his alleged bias which would be in issue and definitely not the

bias of the earlier Presiding Officers. In any case, bias of an earlier

Presiding Officer has necessarily to be reflected on the record and general

and vague arguments cannot help the charged official to allege bias of an

earlier Enquiry Officer who in any case did not give the enquiry report.

8. Therefore, the argument urged on behalf of the petitioner for

setting aside the orders of the authorities on the ground of alleged bias is

misconceived and rejected.

9. The second argument which was urged on behalf of the

petitioner was of violation of principles of natural justice. Violation of

principles of natural justice is alleged on the ground that the management

should have given the duty list of the Connaught Circus branch of the

relevant date 8.9.1993 which was required to prove that petitioner could not

have opened the account in the name of Smt. Kiran Devi because it is

alleged that he did not have the duty. Similar allegations were made against

the management witness 6 (MW-6) who was the person who deposed with

respect to opening of the account in the name of Smt. Kiran Devi at Karol

Bagh branch and who in fact was the person who appears to have alerted the

management. When the counsel for the petitioner was asked to show

specific grounds in the writ petition as to which documents have not been

supplied, no such ground could be shown to this Court. Being a factual

ground unless the same was pleaded the respondent no.1 could not have

shown by filing its reply the falsity of this ground now urged orally at the

time of final hearing. Also, non-supply of documents in itself, and which

argument is routinely raised in almost all cases, cannot help a charged

official because it must be shown beyond doubt as to how non-supply of the

documents has caused prejudice to the charged official. It has been held by

the Supreme Court in the case of State Bank of Patiala and Ors. Vs. S.K.

Sharma (1996) 3 SCC 364 that once a proper hearing is given then if

violation is alleged only of a facet of natural justice such as non-supply of

documents, it is necessary for a charged official to also show how the same

prejudiced the charged official and consequently caused injustice. If there is

no prejudice caused to the charged official and there is no injustice, the

alleged ground of non-supply of the documents cannot in any manner assist

the charged official. As already stated above, no grounds have been alleged

with respect to which are the documents which were not supplied to the

petitioner and what is the grave prejudice or injustice caused to the

petitioner. This in itself is sufficient to reject the argument as urged on

behalf of the petitioner.

Counsel for the petitioner thereafter drew the attention of this Court to

the proceedings of the departmental enquiry on 23.4.1996 which showed

that certain documents were not supplied to the petitioner. However,

counsel for the respondent No.1 referred to page 393 of the paper book and

which was the hearing on 2.5.1996 immediately after the hearing on

23.4.1996, and which showed that all the documents as asked for by the

petitioner were supplied to the petitioner. That being so there is no

substance in the ground urged that the petitioner was not supplied any

document or that he was in any manner prejudiced or any injustice had been

caused. This argument is therefore rejected.

10. Thirdly, it was argued on behalf of the petitioner that the

petitioner has been discriminated against because whereas he has been

charged other officials have not been charged. In my opinion, grounds of

discrimination as urged in the facts of the present case cannot affect the

departmental proceedings because the petitioner has locus standi only so far

as he is concerned as to whether he is or is not guilty. It is the

petitioner/charged official who has to show as to how the Departmental

Authorities have passed orders which would be legally unsustainable. I do

not think as to how petitioner can take up this ground of alleged

discrimination. In fact, on a query pointed out to the counsel for the

petitioner counsel for the petitioner had no option but to concede that in fact

no ground whatsoever of the alleged discrimination is urged in the writ

petition. Once no ground is pleaded there does not arise any basis to argue

the same because unless the factual ground is pleaded and sufficient facts are

set out, respondent no.1 would have no opportunity to effectively rebut and

meet the same. This argument urged on behalf of the petitioner of alleged

discrimination is also therefore rejected.

11. Finally and fourthly it was urged that the petitioner has been

given a disproportionate penalty of removal from service. No doubt, the

Doctrine of Proportionality is now well established in service jurisprudence,

however, the Doctrine of Proportionality for its application requires that the

punishment imposed has to be so grossly disproportionate that judicial

conscience of the Court is shocked. It be noted that the plea of Doctrine of

Proportionality is raised after accepting as correct the findings and

conclusions of the Departmental Authorities. Once the findings and

conclusions of Departmental Authorities in a case such as the present are

accepted and the petitioner is found to be guilty of grave financial

irregularities in getting an account opened when it was not in the scope of

his duties, personally going to another branch and getting issued a pay order

of an amount of `4 lacs, thereafter personally carrying the pay order back to

the Connaught Circus branch and getting it credited to an account of a

person whose identity was doubted, and thereafter allowing the cash to be

withdrawn from the account; surely are infractions of duties which are

extremely important while performing duties in a bank which deals in public

moneys. Once trust is lost in a case such as the present I am of the opinion

that it cannot be said that punishment of dismissal from service of the

petitioner is so shockingly disproportionate so that this Court should

interfere with the same on the ground of violation of Doctrine of

Proportionality. This argument therefore urged on behalf of the petitioner is

also rejected.

12. In view of the above, there is no merit in the petition, which is

accordingly dismissed, leaving the parties to bear their own costs.

JULY 03, 2013                                    VALMIKI J. MEHTA, J.
ib/Ne