M.P.Sadanandan vs Indian Overseas Bank
2021 Latest Caselaw 23612 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE SUNIL THOMAS
   TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                       WP(C) NO. 15508 OF 2013
PETITIONERS:

          M.P.SADANANDAN
          AGED 55 YEARS
          S/O.PODIYAN,ARUN BHAVAN,KURUTHAR,KUZHIKKALA
          P.O,PATHANAMTHITTA DISTRICT PIN 689 644

          BY ADV SRI.SAJITH KUMAR V.



RESPONDENTS:

    1     INDIAN OVERSEAS BANK
          (REPRESENTED BY ITS CHAIRMAN AND MANAGING
          DIRECTOR,CENTRAL OFFICE,763MABBA SALAI,CHENNAI 600 002

    2     DEPUTY GENERAL MANAGER(APPELLATE AUTHORITY)
          INDIAN OVERSEAS BANK,CENTRAL OFFICE,763,ANNA
          SALAI,CHENNAI 600 002

    3     SENIOR MANAGER(DISCIPLINARY AUTHORITY)
          INDIAN OVERSEAS BANK,CENTRAL OFFICE,763MANNA
          SALAI,CHENNAI 600002

          BY ADV SRI.LEO GEORGE,SC,INDIAN OVERSEAS BANK




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.11.2021, THE COURT ON 30/11/2021 DELIVERED THE FOLLOWING:
 W.P.(C) No.15508/2013                     2

                                   JUDGMENT

The writ petitioner joined the service of the 1st respondent bank

on 12/12/1990 . He was later promoted to the post of clerk/Godown keeper.

While he was working at Pathanamthitta Branch, he had availed an

overdraft facility from that Branch, under the respondent's bank staff

overdraft scheme. He was permitted to use an ATM for cash withdrawal

from the account. His salary was also remitted in the above account. As per

the guidelines in force of the respondent bank, when a staff member is

transferred to another branch, the transferor branch should transfer all his

loan accounts to the transferee branch and the account and the Account

Master in the System should be closed. Petitioner was transferred to Adoor

Branch on 20/10/2009. According to the petitioner, though he was

transferred, the loan account was not transferred by the transferor branch to

the transferee branch. Even thereafter, the transferee Adoor Branch

credited his salary to the said OD Account in Pathanamthitta branch, upto

and including March 2010. Thus, during the period from 20/10/2009 to April

2010, the OD account was kept opened in Pathanamthitta Branch. After

few months, on 4/2/2010 the bank transferred the balance in his CC

Account to Adoor Branch without closing the Master Account. Neither the

petitioner was informed about the transfer of balance in the OD Account to

the Adoor Branch nor was he asked to surrender the ATM Card.

According to the petitioner, the ATM card issued to him in relation to the OD

Account was lost from his custody on 25/3/2010, which was intimated to

the Bank by a communication dated 31/3/2010, a copy of which was

produced as Ext.P1. It was also stated that on the ATM card, he had noted

the Pin Number. On 21/1/2011, he received a letter from the Adoor Branch

stating that the OD Account showed a debit balance of Rs.2,31,401.78.

The petitioner was directed to close the account. He was also called upon

to submit his explanation for the improper drawings from the OD Account

with Pathanamthitta Branch. Ext.P3 reply was given by him. However, by

Ext.P4 order dated 18/3/2011, he was kept under suspension. Thereafter,

Ext.P5 charge sheet was served on him and an enquiry was conducted.

Pursuant to the enquiry, after giving him an opportunity of being heard, the

petitioner was dismissed from service by Ext.P10 order dated 30/6/2012.

Though an appeal was filed as Ext.P11, it was dismissed by the appellate

authority by Ext.P12. Aggrieved by the above order, the petitioner has

approached this court in this writ petition. The relief sought was to quash

Exts.P10 and P12 orders and to direct the respondents to reinstate him.

2. The respondent bank on appearance filed a detailed counter

affidavit traversing and denying the various grounds set up in the writ

petition. Heard both sides and examined the records.

3. Essentially, challenging the enquiry and findings arrived at by the

respondent bank, the learned counsel for the petitioner vehemently

contended that the charges were vague. In this regard, the charges

specifically alleged against the petitioner is worth reference. Articles of

charge disclosed the following ;

"1. You did not bring to the notice of higher authorities that you were able to operate the CC account No.1109 with Pathanamthitta Branch, even after getting the account transferred to Adoor Branch.

2. You did not surrender the ATM card issued in CC a/c at Pathanamthitta Branch on relief to Adoor Branch on your transfer.

3. You had unauthorisidely and fraudulently withdrawn money from Cc a/c No.1109 with Pathanamthitta Branch misusing your ATM card.

4. You had unauthorisidely and fraudulently committed business transactions misusing the ATM Card.

5. You had unauthorisedly enjoyed two CC limits simultaneously for which you were not eligible."

4. The learned counsel for the petitioner referred to the enquiry

proceedings, the questions put in the cross examination and the stand

taken by the evidences of the respondent -management witnesses. It was

contended that, though all the articles of charges specifically referred to

specific allegation of withdrawing the money from the account in

Pathanamthitta Branch misusing the ATM card, by the petitioner towards

the end of the enquiry proceedings, the management shifted its stand to that

his son has withdrawn the money. In this background, the charge is vague

and contradictory to each other against the specific case set up by the

management and towards end of enquiry, management showed a shift in

the allegations and thereby charge is not sustainable.

5. To substantiate the above contention, the learned counsel for the

petitioner relied on the decision the Calcutta High Court in Amulya Ratan

Mukherjee v. Deputy Chief Mechanical Engineer, Eastern Rly.and

others(AIR 1961 Calcutta 40) and the decision of the Supreme Court in

Laxmi Devi Sugar Mills Limited v. Shri Nand Kishore Singh ( AIR 1957

SC 7). In the former decision, it was held that when the departmental

enquiry starts from the charge sheet, the charge sheet must be specific and

must set out all the necessary particulars. It is no excuse to say that regard

being had to the previous proceedings, the delinquent should be taken to

know all the above charges. The Supreme Court in the latter decision held

that, the acts of insubordination calculated to undermine the discipline in the

factory were neither the subject matter of the charge nor were they relied

upon by the General Manager in his report as the grounds of misconduct

entitling the management to dismiss the respondent from its employment.

To that extent, the Supreme court held that if the charge was vague, a

delinquent is entitled to the benefit of that.

6. In both the above mentioned decisions, the factual premise was

totally different from the present case. A reference to Articles of charge

clearly shows that all the allegations touched upon the misuse of the ATM

card. In all the articles of charge, the pointed charges raised against the

petitioner was that he did not bring to the notice of the higher authorities that

he was able to operate the account even after transferring the account to

Adoor Branch, that he did not surrender the ATM Card, he unauthorisedly

and fraudulently withdrawn the money, using the ATM Card, he

unauthorizedly and fraudulently committed business transactions and he

had unauthorisedly enjoyed two CC limits simultaneously, which he was

not entitled to. Evidently, these allegations remained to be attributed to the

petitioner, even at the end of the enquiry proceedings. The only suggestion

put was that, which seems to be a fact brought out at the later stage, that

in fact the person who had withdrawn the money using the ATM card, was

his son. Even the petitioner has no different case that it was not his son,

who had used the ATM card to withdraw the huge amount. None of the

charges are attributable to the son except the charge relating to

withdrawing of money from CC account. However, it is also to be noted

that the allegation of the prosecution was that, by not informing the bank

about the use of both the accounts and drawing the money even after

accounts were transferred, he committed misconduct. These are specific

allegations attributed to the petitioner only. The person who had actually

withdrawn the money in the context of the allegations made in the memo of

charges has nothing to do with the main allegation. Essentially, the charges

are specific and conveys with precision, the specific allegations against the

petitioner. The decisions referred to by the petitioner are the cases where

the charges itself were vague. The fact that the prosecution has a slightly

different version regarding the actual user of the ATM card, which only

constitute the part of the third charge does not support the contention of the

petitioner. All other charges are being directly attributable to the conduct of

the petitioner. The above contention is not sustainable. On the other

hand, I find from the Articles of charges that all the individual charges were

specific, precise and indicated the details of the allegations.

7. The next limb of the argument advanced by the learned counsel for

the petitioner was that, the punishment imposed by the management was

grossly disproportionate to the charges alleged. It was contended that in the

light of the allegation of the management that the son of the petitioner had

misused the ATM, all other allegations which survived against him, can only

be considered as a case of indiscretion or minor negligence for which a

maximum punishment of termination of service was disproportionate. To

substantiate it, the learned counsel relied on the decisions of the Supreme

Court in Dev Singh v. Punjab Tourism Development Corporation Ltd.

And Another (2003) 8 Supreme Court Cases 9), Rajendra Yadav

v.State of Madhya Pradesh And Others (2013) 3 Supreme Court Cases

73), and Ishwar Chandra Jayaswal v. Union of India and Others (2014) 2

Supreme Court Cases 748) and Collector Singh v. L.M.L.Limited

Kanpur (2015) 2 Supreme Court Cases 410). In all the cases, while

considering the scope of judicial interference,in the case of termination of

service of employee, the Supreme Court consistently held that, the

conscience of the court can be sought as to the severity of punishment

imposed. Referring to the principle of proportionality, the Supreme Court

had held that if the punishment imposed by the Superior authority or

appellate authority shocks judicial conscience, the court can mould the

relief.

8. The learned counsel specifically invited the attention of this court to

the judgment of the CJM, Pathanamthitta in CC No.116/2012, in which the

accused stood trial for the same criminal acts. By Ext.P13 judgment dated

22/9/2018, the petitioner was acquitted after a full fledged trial. It was

contended that the above decision was not taken into consideration by the

respondent -Management while imposing the penalty. To that extent, this

court is liable to be interfered, it was contended.

9. Answering this and vehemently opposing all other contentions

regarding the concept of proportionality, the learned counsel for the

respondent -bank contended that in the nature of the serious allegations

proved against the petitioner, the punishment imposed was just,

reasonable and rationale. To contend that the acquittal in criminal case was

not a bar,to the disciplinary proceedings against the delinquent, the learned

counsel relied on the decisions of the Supreme Court in Suresh Pathrella

v. Oriental Bank of Commerce(2006 KHC 1873) and Samar Bahadur

Singh v. State of U.P. and Others (2011 KHC 4814). In both the cases, it

was held that the acquittal in the criminal case may not have much

relevance on the disciplinary proceedings.

10. While evaluating the above facts, it is true that the petitioner was

acquitted in the criminal case. However, the Management could not have

taken this into consideration, since by Ext.P10 order, the petitioner was

terminated on 30/6/2012, whereas the acquittal came only on 22nd

September 2018, much later. However, the fact that the accused, after

having faced the trial, was acquitted is a matter which the court can also

take into consideration, to consider the question of proportionality.

11. The materials on record clearly show that it was the son of the

writ petitioner, who had misused the ATM card and withdrew huge amounts

upto the limit of OD. However, the circumstances that led to this situation is

also to be appreciated. The Management has a definite case, which was

disclosed through the evidence of CW 1 in the course of evidence, that the

disputed accounts happened to be in operation due to the default of the

officers of the both the branches. Probably that enabled the misuse of ATM

card. However, that does not in any manner reduce the negligence of the

petitioner. It is seen that the ATM card was stated to be missed. However, it

was in the hands of the son of the writ petitioner. Whether he had knowingly

given it or not, is a matter which has not been established. However, the

very fact that, the bank maintained two separate accounts, was within the

knowledge of the petitioner' but he failed to bring it to the notice of the

authorities and get the account closed. The use of ATM even after the

transfer, was also against the Rules. It is to be noted that, he had written

the pin number on the ATM card, which indicates a case of indiscretion and

absolute negligence. However, on an ultimate analysis of the entire

evidence what emerges is that, in the absence of specific material as to

whether the petitioner was a privy to the misuse by the son, a slightly lenient

view is liable to be taken. Whether the petitioner had voluntarily and

knowingly entrusted the ATM card to the son is not on record. Hence, all

the charges except charge No. 3 in Ext.P5 Articles of charges remain

against petitioner. However, under charge 3, there is an allegation that he

had unauthorisedly and fraudulently withdrawn the money misusing the

ATM card. Even permitting another person to use the ATM card, can also

fall within that instance, Apart from that charge, all other charges

specifically indicate the mis conduct on the part of the petitioner. However,

a closer analysis of those charges only establish a case of absolute

indiscretion and gross negligence on the part of the petitioner, rather than a

serious case of misappropriation. To that extent , the punishment imposed

has to be reconsidered in favour of the petitioner.

12. It is also to be noted that the petitioner had put in 19 years of

service. He is a middle level staff and record indicates that he was leading a

normal way of life. He seems to belong to the middle income group. There

is nothing on record to show that during previous years of service, any

misconduct was alleged against him. Above all, he was acquitted from the

criminal charges.

13. Having considered the above inputs, I feel that a slightly lenient

view can be taken. Even otherwise, the petitioner has crossed the

retirement age by now. I feel that substitution of dismissal to that of

compulsory retirement will suffice the interest of justice. However, the

amounts allegedly withdrawn using the ATM card is liable to be recovered

from him, if not already recovered.

14. Having considered this, the punishment of dismissal will be

substituted as compulsory retirement effective from the original date of

dismissal. The suspension period will remain as such. The petitioner will be

entitled to all the service benefits as in the case of a compulsory

retirement. The amount illegally withdrawn using the ATM can be

appropriated from the amount due to him, if not already appropriated. The

remaining emoluments due to the petitioner shall be quantified and shall be

paid to him within a period of three months from the date of receipt of a

copy of this judgment.

The writ petition is allowed in part to the above extent.

Sd/-

SUNIL THOMAS

Judge

dpk

APPENDIX OF WP(C) 15508/2013

PETITIONER EXHIBITS

EXHIBIT P1 TRUE PHOTOCOPY OF THE LETTER SENT BY THE PETITIONER TO PATHANAMTHITTA BRANCH DT 31/3/2010

EXHIBIT P2 TRUE COPY OF LETTER FROM ADOOR BRANCH TO THE PETITIONER 21/1/2011

EXHIBIT P3 TRUE COPY OF REPLY TO P2 BY THE PETITIONER

EXHIBIT P4 TRUE PHOTOCOPY OF SUSPENSION ORDER DT 18-03-2011

EXHIBIT P5 TRUE PHOTOCOPY OF CHARGE SHEET DT 21-10-2011

EXHIBIT P6 TRUE PHOTOCOPY OF ENQUIRY PROCEEDINGS DT 9-=3-2012

EXHIBIT P7 TRUE PHOTOCOPY OF PROCEEDINGS PERSONAL HEARING DT 29/6/2012

EXHIBIT P8 TRUE PHOTOCOPY OF REPRESENTATION DT 29/6/2012

EXHIBIT P9 TRUE PHOTOCOPY OF INVESTIGATOR;S REPORT DT 22/7/2011

EXHIBIT P10 TRUE PHOTOCOPY OF DISMISSAL ORDER DT 30-06-2012

EXHIBIT P11 TRUE PHOTOCOPY OF APPEAL AGAINST DISMISSAL DT 5-12-2012

EXHIBNIT P12 TRUE PHOTOCOPY OF ORDER REJECTING THE APPEAL DT 11-02-2013

EXHIBI P13: COPY OF THE JUDGMENT DATED 14/9/2018 DELIVERED BY THE CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA