Kerala High Court
K.M.Habeeb Muhammed vs The Managing Director on 27 March, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
OP NO. 38705 OF 2001
PETITIONER:
K.M.HABEEB MUHAMMED
S/O KAHDER KUNJU, AGED 51 YEARS,
S/O. KHADER AT 16/444, KOCHUKOTTARATHIL HOUSE,
KANNANKODE P.O., ADOOR PATHANAMTHITTA.
BY ADVS.
GIRIJA K GOPAL
B.SABITHA (DESOM)
K.N.VIGY
RESPONDENTS:
1 THE MANAGING DIRECTOR,
STATE BANK OF TRAVANCORE, HEAD OFFICE,
THIRUVANANTHAPURAM.
2 THE CHIEF GENERAL MANAGER,
STATE BANK OF TRAVANCORE, HEAD OFFICE,
THIRUVANANTHAPURAM
3 THE GENERAL MANAGER (OPERATION)
STATE BANK OF TRANVANCORE, HEAD OFFICE,
THIRUVANANTHAPURAM
BY ADV P.RAMAKRISHNAN
THIS ORIGINAL PETITION HAVING COME UP FOR ADMISSION ON
19.03.2024, THE COURT ON 27.03.2024 DELIVERED THE FOLLOWING:
2
CR
P.V.KUNHIKRISHNAN, J.
--------------------------------
O.P.No.38705 of 2001
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Dated this the 27th day of March, 2024
JUDGMENT
This is one of the oldest original petitions pending before
this Court, which was filed under Article 226 of the
Constitution of India. The folding files almost disappeared
from the racks of our High Court, because, now the writ
petitions are to be filed in book form and in flat style. This is a
writ petition filed in a folded manner in the year 2001! Of
course it had a checkered history. The writ petition was
dismissed for non prosecution on 10.01.2012. Thereafter, it
was restored only on 25.07.2023. At the time of filing the writ
petition, the original petitioner was aged 51 years. Probably,
he might have reached the age of 75 now. The way in which
this original petition is argued by the petitioner's lawyer
would show the fighting mood of the petitioner even now.
Now the original petition is going to cross a quarter century as
far as the pendency is concerned. This is not the fault of this
court, because the petitioner slept over the order dismissing
the writ petition for non prosecution for a period of 11 years.
2. The petitioner was working as Deputy Manager at
Kozhikode Main Branch of the State Bank of Travancore
(hereinafter mentioned as 'Bank'). He joined the Bank as a
Cashier in April, 1970 and was promoted as Assistant
Manager and then as Deputy Manager. It is the case of the
petitioner that he has got an unblemished service record of
30 years at various branches of the Bank in various
capacities as mentioned above. The petitioner is aggrieved
by disciplinary proceedings initiated against him which
resulted in his removal from service.
3. While the petitioner was working as Deputy
Manager (Accounts) at the Piravom Branch of the Bank, he
was served with a memo by the 3 rd respondent alleging that
the petitioner had committed certain serious
lapses/irregularities/ malpractices in the loan accounts in his
name rendering him liable for disciplinary action under
Chapter X of the State Bank of Travancore (Officers) Service
Regulations, 1979. Ext.P1 is the said memo calling upon the
petitioner to submit a written statement of his defence. The
petitioner submitted Ext.P2 reply. Dissatisfied with Ext.P2
reply, the 3rd respondent ordered an inquiry into the charges
levelled against the petitioner. Accordingly, a preliminary
hearing was conducted. Exts.P3 and P4 are the Presenting
Officer's brief and the petitioner's defence. Based on the
same, Ext.P5 inquiry report was submitted in which it is
observed that some of the charges are proved. The petitioner
was served with Ext.P5 and he submitted Ext.P6 reply. It is
submitted that, in spite of the Ext.P6 explanation submitted
by the petitioner, the 3 rd respondent-disciplinary authority
imposed a punishment of dismissal from service as per Ext.P7
order. Aggrieved by Ext.P7, the petitioner filed an appeal
before the 2nd respondent and the 2nd respondent dismissed
the appeal except in scaling down the punishment to removal
from service. Ext.P8 is the appeal filed by the petitioner and
Ext.P9 is the order passed by the 2nd respondent-appellate
authority. The petitioner again filed a review petition before
the 1st respondent as evident by Ext.P10, the same was also
rejected as per Ext.P11. Aggrieved by Exts.P7, P9 and P11,
this original petition is filed.
4. Heard Adv.Girija K. Gopal, the learned counsel for
the petitioner assisted by Adv. B.Sabitha (Desom). I also
heard Adv.P. Ramakrishnan who appeared for the respondent-
Bank. After arguing the matter in detail, both sides filed
argument notes also.
5. Adv.Girija K. Gopal submitted that the disciplinary
authority, the appellate authority and the authority who
considered the review had not considered the contentions
raised by the petitioner. It is submitted that there is
absolutely no loss of money to the Bank in this case. The
learned counsel also submitted that the imposition of extreme
penalty of dismissal or even removal from service is not
justified for the reason that the disciplinary authority
concluded the inquiry and imposed the punishment based on
suspicions and presumptions. The counsel also submitted that
the penalty is disproportionate to the charges levelled.
According to the counsel, the allegations alleged do not
amount to any gross misconduct to impose a major penalty. It
is also submitted by the counsel that the punishment imposed
is highly excessive and the prosecution has not proved the
charge against the delinquent. The counsel substantiated
these contentions after taking me through the inquiry report
in detail. The counsel for the petitioner also relies on the
judgments of the Apex Court in Union of India v. H.C. Goel
in [AIR 1964 SC 364], State of Haryana v. Rattan Singh
[(1977) 2 SCC 491], Jagdish Prasad Saxena v. State of
Madhya Bharat (AIR 1961 SC 1070), Bagat Ram v. State
of Himachal Pradesh and others [(1983) 2 SCC 442], The
Andhra Pradesh Industrial Infrastructure Corporation
Limited. v. Raj Kumar and others [(2018) 6 SCC 410] and
The State of Karnataka and others v. Umesh [(2022) 6
SCC 563].
6. Adv.P. Ramakrishnan, who appeared for the
respondent-Bank supported the impugned order. The learned
counsel submitted that charge No.1 which is proved to the
extent mentioned in the report would show that the
alterations made in the vehicle loan account benefited none
other than the petitioner himself. The counsel submitted that,
as far as the second charge is concerned, all the eight credit
vouchers for closure of his own loan accounts were both
prepared and passed by the petitioner himself and that itself
shows the seriousness of the charge. The counsel submitted
that the degree of proof required in domestic inquiries is not
that of a Court of Law. Evidence Act and strict rules of
evidence are not applicable to domestic inquiries, is the
submission. The counsel submits that even hearsay evidence
is accepted on domestic enquiries. According to the counsel
for the Bank, the jurisdiction of a Constitutional Court under
Article 226 of the Constitution of India does not envisage a re-
appreciation of evidence in domestic enquiries. Moreover, no
fundamental or other rights of the petitioner is violated on
account of the disciplinary action against the petitioner, is the
submission. Adv.P. Ramakrishnan relies on the judgment in
DGM (Appellate Authority) and others v. Ajay Kumar
[(2021) 2 SCC 612], in which the Apex Court observed that
strict rules of evidence are not applicable to departmental
enquiries. It is submitted by the counsel appearing for the
Bank that the only requirement of law is that the allegation
against the delinquent must be established by such evidence
acting upon which a reasonable person acting reasonably and
with objectivity may arrive at a finding upholding the gravity
of the charge against the delinquent employee. The counsel
also submitted that the power of judicial review in the matters
of disciplinary enquiries, by constitutional Courts under Article
226 or Article 32 or Article 136 of the Constitution of India is
circumscribed by limits of correcting errors of law or
procedural errors leading to manifest injustice or violation of
principles of natural justice. It is further submitted that the
petitioner was given full opportunity to participate in the
inquiry and he examined his witness and marked documents
in support of his contentions. It is also submitted that the
entire inquiry was conducted in a fair and unbiased manner.
Adv.Ramakrishnan also relied on the judgment in State Bank
of India and Another v. Bela Bagchi and Others [2005
(7) SCC 435] to contend that a Bank Officer is required to
exercise higher standards of honesty and integrity. He deals
with the money of the depositors and the customers and
therefore, every officer/employee of the Bank is required to
take all possible steps to protect the interests of the Bank.
According to the counsel for the Bank, the petitioner, who is
the Deputy Manager (Accounts), had clearly falsified the
Bank's records for deriving monetary benefits and thus
forfeiting the confidence reposed on him by the Bank. The
counsel also submitted that the punishment is proportionate
to the misconduct committed by the petitioner. The counsel
for the Bank also relied on the judgment of the Apex Court in
U.P. State Road Transport Corporation v. Vinod Kumar
[(2008) 1 SCC 115] wherein it was held that the punishment
of removal/dismissal is the appropriate punishment for an
employee found guilty of misappropriation of funds; and the
Courts should be reluctant to reduce the punishment on
misplaced sympathy for a workman.
7. This Court considered the contentions of the
petitioner and the respondent Bank. Two points to be decided
in this case are the following:
1. Whether this Court should interfere with the
disciplinary proceedings and the findings in
it by the Inquiry Officer, appellate authority
and revisional authority?
2. Whether the punishment imposed is
proportionate to the charges levelled?
Point No.1
8. The jurisdiction of this Court to interfere with the
disciplinary proceedings invoking the powers under Article
226 is well settled. In Union of India v. H.C.Goel [AIR 1964
SC 364] the Apex Court considered this question in detail. It
will be better to extract paragraph 23 of the above judgment:
"That takes us to the merits of the respondent's
contention that the conclusion of the appellant that
the third charge framed against the respondent had
been proved, is based on no evidence. The learned
Attorney-General has stressed before us that in
dealing with this question, we ought to bear in mind
the fact that the appellant is acting with the
determination to root out corruption, and so, if it is
shown that the view taken by the appellant is a
reasonably possible view this Court should not sit in
appeal over that decision and seek to decide whether
this Court would have taken the same view or not.
This contention is no doubt absolutely sound. The only
test which we can legitimately apply in dealing with
this part of the respondent's case is, is there any
evidence on which a finding can be made against the
respondent that charge No. 3 was proved against him?
In exercising its jurisdiction under Art.226 on such a
plea, the High Court cannot consider the question
about the sufficiency or adequacy of evidence in
support of a particular conclusion. That is a matter
which is within the competence of the authority which
deals with the question; but the High Court can and
must enquire whether there is any evidence at all in
support of the impugned conclusion. In other words, if
the whole of the evidence led in the enquiry is
accepted as true, does the conclusion follow that the
charge in question is proved against the respondent?
This approach will avoid weighing the evidence. It will
take the evidence as it stands and only examine
whether on that evidence illegally the impugned
conclusion follows or not. Applying this test, we are
inclined to hold that the respondent's grievance is
well-founded because, in our opinion, the finding
which is implicit in the appellant's order dismissing the
respondent that charge number 3 is proved against
him is based on no evidence." (Underline supplied)
9. From the above decision, it is clear that while exercising
its jurisdiction under Article 226, the High Court cannot
consider the question about the sufficiency or adequacy of
evidence in support of a particular conclusion. The Apex Court
observed that it is a matter which is within the competence of
the authority which dealt with the question. But, of course the
High Court can and must enquire whether there is any
evidence at all in support of the impugned conclusion. It is
submitted that if the whole of the evidence led in the inquiry
is accepted as true, does the conclusion follow that the
charge in question is proved against the respondent is the
question to be decided. The Apex Court observed that this
approach will avoid weighing the evidence and it will take the
evidence as it stands and only examine whether on that
evidence, the impugned conclusion follows or not. Bearing in
mind the above principle, I will consider the evidence
available in this case to find out whether the charges are
proved against the petitioner. Ext.P5 is the report of the
inquiry authority. The first charge alleged against the
petitioner was that when he was transferred to the Piravom
Branch of the Bank from Kumily Branch in 1995, the liabilities
under demand loan (vehicle loan) No.17/95 for Rs.80,000/-
dated 15.08.1991 was also transferred to Piravom Branch and
the petitioner carried out certain fraudulent alterations in the
figures in the books of Piravom Branch and thereby principal
component of his loan was reduced by Rs.4,000/- with a
fraudulent intention to reduce the interest liability on the
loan. It is also alleged that the petitioner made a number of
other alterations/ manipulations of the figures in principal and
interest applied columns in the above loan account during
May 1997, November 1997, December 1997 and February
1998 with the amount aggregating Rs.9,000/- under the
principal, in an attempt to defraud the Bank. It is stated in
the report that the charge is that the undue benefit derived
under the interest payable on the loan by the petitioner on
account of the above series of fraudulent
manipulations/alterations carried out in the figure of principal
amount works out to Rs.2,847/-. As far as the first charge is
concerned, the inquiry report shows that the petitioner's
involvement in altering figures cannot totally be ruled out.
According to the petitioner, the alteration may be the
handwork of some enemies of the petitioner within the
Branch. But the Inquiry Officer observed that if some
enemies had altered the figures in order to malign the
petitioner, then why the petitioner failed to disclose the same
is important. Based on the available evidence, the disciplinary
authority found that the petitioner's involvement in altering
the figures cannot totally be ruled out. This finding is
accepted by the respondents who are the fact finding
authorities. This Court cannot find fault with the respondents
for accepting the report because this Court has no jurisdiction
to re-appreciate the evidence. As observed by the Apex Court
in H.C.Goel's case (supra), this Court cannot consider the
question about the sufficiency or adequacy of evidence in
support of a particular conclusion of the disciplinary authority.
I see no reason to interfere with the findings of the
respondents in accepting the report of the disciplinary
authorities as far as charge No.I is concerned.
10. Charge No.II against the petitioner is that he, with
an intention to defraud the Bank, closed certain demand loans
sanctioned to him by the Bank under its staff loan scheme
without paying the interest which fell due thereon. The
disciplinary authority found that all works connected with the
closure of these accounts namely preparation of vouchers,
passing of vouchers, posting in the ledgers and closure
authorisation were done by the petitioner himself in his own
handwriting. Therefore, the inquiry officer found that, from
the evidences elucidated during the inquiry and from the
circumstantial evidence, it is established that the action on
the part of the petitioner in not debiting the upto date interest
on the date of closure of the accounts is a deliberate omission
and hence the charge is proved. The above finding of the
inquiry officer was accepted by the respondents. I see no
reason to take a different view by invoking the jurisdiction
under Article 226 of the Constitution of India as far as the
Charge No.II is concerned.
11. Charge No.III is that without any authorisation from
the sanctioning authority, the petitioner fraudulently altered
in the ledger sheet about the amount sanctioned limit of
Rs.81,000/- to make the same as Rs.81,000/- + Rs.18,000/-
and made withdrawals therefrom upto the amount of
Rs.1,02,700/-. It is the case of the respondent Bank that the
petitioner enjoyed the Bank's funds beyond the facility
sanctioned to him by resorting to manipulations in the Bank's
ledger. This loan account was closed on 24.05.1997 without
applying interest which works out to Rs.1,839/- is the charge.
As far as this charge is concerned, the inquiry officer found
that the same is partly proved. I see no reason to take a
different view to the findings of the respondents as far as this
charge also.
12. The Disciplinary Authority, the Appellate Authority
and the Review Authority considered the charges and the
findings in the inquiry report about the charges in detail, and
accepted the report. This Court cannot reappreciate the
evidence and take a different view invoking the powers under
Article 226 of the constitution of India. Therefore, I am of the
considered opinion that there is nothing to interfere with the
finding of the Authorities as far as charges are concerned. As
far as charge No.4 is concerned the inquiry officer himself
found that the same is not proved.
13. In the light of the above discussion, I am of the
considered opinion that this Court cannot interfere with the
finding of the Inquiring Authority which is accepted by the
Disciplinary Authority, the Appellate Authority and the Review
Authority invoking the jurisdiction under Article 226 of the
Constitution of India. As observed by the Apex Court, this
Court cannot consider the question about the sufficiency or
adequacy of evidence in support of a particular conclusion in
a disciplinary proceeding invoking powers under Article 226 of
the Constitution of India. Therefore, the 1 st point is found
against the petitioner.
Point No.2
14. The 2nd contention of the petitioner is that the
penalty imposed by the respondents is disproportionate to the
charges levelled. As evident by Ext.P7, the Disciplinary
Authority found that the charges proved are serious and
therefore it is a fit case for imposition of penalty of dismissal
of the petitioner from Bank services. The petitioner
submitted Ext.P8 Appeal before the 2nd respondent appellate
authority. After considering Ext.P8, the 2nd respondent
appellate authority found that there is nothing to interfere
with the order passed by the disciplinary authority. But in
Ext.P9, it is clearly stated that since there has been no loss to
the Bank and considering the family behind the official, the
punishment is scaled down to removal from service.
Therefore, the 2nd respondent appellate authority itself found
that there is no loss to the Bank and therefore the
punishment of removal from service is enough. It is an
admitted fact that the petitioner had about 30 years of
service in the Bank. There is no evidence to show that there
was any misconduct on the part of the petitioner during his
entire service. Since, admittedly, there is no loss sustained to
the respondent bank and considering the facts of this case, I
am of the considered opinion that the penalty now imposed to
the petitioner is disproportionate to the charges levelled. As I
stated earlier the appellate authority in Ext.P9 clearly stated
that there is no loss to the Bank. There is no case to the
disciplinary authority or the Bank that there was any
misconduct on the part of the petitioner earlier. It is also an
admitted fact that the petitioner completed about 30 years of
unblemished service in the Bank. In such circumstances, I am
of the considered opinion that the punishment of "removal
from service" is disproportionate to the charges levelled against
the petitioner. Moreover, in paragraph No.17 of the writ petition
the petitioner pointed out certain instances where serious similar
irregularities were proved, and the officers concerned were
imposed minor penalties. There is no specific denial of the above
in the Counter filed by the respondent. That shows an element of
discrimination as far as the petitioner is concerned. Therefore, I
am of the opinion that the punishment imposed on the petitioner
is to be reconsidered. To facilitate the same, punishment imposed
can be set aside. Now the State Bank of Travancore merged with
the State Bank of India. Therefore, the 1st respondent or the
competent authority will pass appropriate orders as far as the
punishment to be imposed on the petitioner in the light of the
discussion and observations in this Judgment.
Therefore, this writ petition is disposed with following
directions.
1. Ext.P7, P9, and P11 are set aside to the
extend of the punishment imposed on the
petitioner alone.
2. The 1st respondent or the competent
authority is directed to reconsider the
punishment of "removal from service"
imposed on the petitioner and impose
appropriate punishment proportionate
to the charges proved against the
petitioner.
3. The above exercise shall be completed
by the 1st respondent/competent
authority as expeditiously as possible,
at any rate, within three months from
the date of receipt of a copy of this
Judgment.
4. Based on the punishment imposed, if
the petitioner is entitled to any
monetary benefits, the same also
should be disbursed to the petitioner
within two months from the date on
which the orders are passed as
directed above.
sd/-
P.V.KUNHIKRISHNAN
NP/JV/SMK JUDGE
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE MEMO NO. DPD/673/261 OF
THE 3RD RESPONDENT
Exhibit P2 TRUE COPY OF THE EXPLANATION OF THE
PETITIONER.
Exhibit P3 TRUE COPY OF THE WRITTEN BRIEF OF
PRESENTING OFFICER
Exhibit P4 TRUE COPY OF THE DEFENCE BRIEF OF THE
PETITIONER
Exhibit P5 TRUE COPY OF THE ENQUIRY REPORT
(DPD/673/500)
Exhibit P6 TRUE COPY OF THE REPLY OF THE PETITIONER.
Exhibit P7 TRUE COPY OF THE PUNISHMENT ORDER NO.
DPD/673/1534 OF THE 3RD RESPONDENT
Exhibit P8 TRUE COPY OF THE APPEAL SUBMITTED BEFORE
THE 2ND RESPONDENT
Exhibit P9 TRUE COPY OF THE ORDER NO. PAD/8/673/52
OF THE 2ND RESPONDENT
Exhibit P10 TRUE COPY OF THE REVIEW PETITION FILED
BEFORE THE 1ST RESPONDENT
Exhibit P11 TRUE COPY OF THE ORDER NO. PAD8/673/100
OF THE 1ST RESPONDENT
