Madras High Court
Shanmuga Sundaram vs The Chief General Manager on 21 December, 2021
Order dated 21.12.2021 in
W.P.No.31163 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21.12.2021
Coram:
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
W.P.No.31163 of 2019
Shanmuga Sundaram,
S/o (Late) Ramaswamy .. Petitioner
Vs.
1. The Chief General Manager,
State Bank of India,
Local Head Office,
College Road,
Nungambakkam,
Chennai-600 006.
2. The Deputy General Manager (B & O),
State Bank of India,
Zonal Office,
No.86, Rajaji Salai,
Chennai-600 001.
3. The Assistant General Manager
(Administrative Officer),
Disciplinary Cell Administrative Unit,
State Bank of India, Chennai Network-1,
No.86, Rajaji Salai,
Chennai-600 001. .. Respondents
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Order dated 21.12.2021 in
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Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorari and quash the impugned order
No.DIS/CON/120, dated 09.06.2011 passed by the third respondent.
For petitioner : Mr.A.J.Mohamed Kassim
For respondents: Mr.S.Raveendran, Senior Counsel
for M/s.S.Bazeer Ahamed
ORDER
The petitioner has filed the above Writ Petition praying for issuance of
a Writ of Certiorari to quash the impugned order passed in
No.DIS/CON/120, dated 09.06.2011 by the third respondent.
2. The case of the petitioner is that when he was working as a Special
Assistant at the Vellore Main Branch of the respondent Bank, he was alleged
to have unauthorisedly and wrongfully debited from various accounts to the
tune of Rs.21,85,030/-. In the face of the allegations, he was placed under
suspension on 07.04.2010 in terms of provisions of Memorandum of
Settlement dated 10.04.2002.
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3. Thereafter, a charge memo was issued and an enquiry was
conducted into the charges. On conclusion of the enquiry, a report was
submitted holding that three charges were proved against him.
Subsequently, on 09.06.2011, the petitioner was dismissed from service. As
against the same, the petitioner has preferred an appeal on 21.07.2011
before the second respondent and according to the petitioner, he has not
received any communication as to the status of the appeal to the 2nd
respondent filed as early as in 2011. According to the petitioner, he has also
sent a reminder on 27.02.2017.
4. While the matter stood thus, simultaneously when disciplinary
action was initiated against him, a criminal case was lodged and the
petitioner was charged for the offence under Sections 120(b), 420 and 409
of IPC. The case was numbered as C.C.No.1 of 2013 and finally, the Trial
Court appeared to have acquitted the petitioner vide judgment dated
30.05.2019.
5. After having been acquitted by the trial Court, the petitioner is said
to have submitted a representation on 01.08.2019 to the first respondent to
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settle all his retirement benefits like Gratuity, Provident Fund Contribution,
salary arrears payable during the period of suspension, medical benefits etc.
As there was no response forthcoming from the respondent bank, the
present Writ Petition has been filed seeking to quash the impugned order of
dismissal which was passed as early as on 09.06.2011.
6.The learned counsel for the petitioner reiterated the above facts.
According the learned counsel, once the petitioner was acquitted by the trial
Court, he is entitled to the relief of getting the dismissal order recalled and
cancelled. The learned counsel has also quoted a judgment in this regard in
the grounds as contained in the affidavit filed in support of the Writ Petition.
7. In response to the notice, Mr.Raveendran, learned Senior Counsel
appeared for the respondent bank. A detailed counter affidavit has been
filed. Mr.Raveendran, learned Senior Counsel for the respondent bank
would submit that the order of dismissal was passed on 09.06.2011 and this
Writ Petition was filed after a period of 8 years and on this ground alone,
the Writ Petition is liable to be dismissed. The learned senior counsel would
further submit that as long as the dismissal order is in force, the petitioner
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cannot pray for settlement of any retirement benefits.
8. The learned senior counsel would further submit that the petitioner
has fully participated in the domestic enquiry and after giving full
opportunity to him, a report was submitted holding the charges proved
against him. As the charges framed were serious in nature, namely,
misappropriation of public money, the bank had no option except to dismiss
him from service.
9. The appeal preferred by the petitioner was also rejected on
23.7.2012 and a copy of which was also communicated to him and received
by him on 02.08.2012.
10. In the counter affidavit, the genuineness of letters dated
05.07.2019 and 01.08.2019 had been questioned. Moreover, the learned
senior counsel would submit that even assuming that those letters were
genuine, yet the standard of proof in the domestic enquiry is completely
different and what is required for proving the charges in the domestic
enquiry is only preponderance of probability and not unimpeachable
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evidence beyond reasonable doubt. Even otherwise, the tenor of the nature
of charges was different in the departmental action and it is not a case of the
petitioner that he was not given any opportunity at all in the departmental
enquiry.
11. The allegation that the petitioner had not been paid subsistence
allowance has been disputed factually in the counter affidavit in paragraph
7. The details of payment have also been furnished. The learned senior
counsel would submit that this case has to be dismissed both on the ground
of maintainability and on merits as well.
12. This Court considered the submission of the learned counsel for
the petitioner and the learned senior counsel for the respondent bank.
13. The fact that the petitioner was dismissed from service on the
basis of serious allegation of misappropriation as early as on 09.06.2011 is
not disputed. It also transpired that the appeal preferred as against the
order of dismissal by the disciplinary authority was also rejected on
23.07.2012, which appeared to have been communicated and received by
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the petitioner. But, it is stated in the affidavit filed by the petitioner that he
had not received any communication from the appellate authority till date.
14. Even otherwise, it could be seen that when the petitioner was
dismissed from service as early as on 09.06.2011 and even assuming that he
had not heard anything from the appellate authority, nothing precluded or
prevented the petitioner from challenging the dismissal order passed against
him all these years. The petitioner having slept over his right, cannot be
allowed to revive the right to challenge the dismissal order dated 09.06.2011
after he was said to have been acquitted in the criminal case in 2019.
15. As rightly contended by the learned senior counsel for the
respondent Bank the standard of proof in the departmental action is not as
rigorous as that in the criminal proceedings and in such circumstances,
merely because the petitioner has been acquitted in the criminal case, it
cannot ipso facto deemed to have been exonerated of the departmental
charges.
16. As regards the proportionality of the punishment is concerned,
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this Court considering the serious allegation of misappropriation against the
petitioner, particularly, when he was holding the position of public trust and
involved in unauthorised and wrongful debits of the customers of the Bank,
cannot be inflicted with lesser penalty than dismissal order. This Court is in
agreement with the submissions made by the learned senior counsel for the
respondent bank that in view of the serious charge of misappropriation
which was held proved, the punishment of dismissal was imposed. This
Court therefore, does not find any infirmity in the order of dismissal passed
against the petitioner.
17. Therefore, the Writ Petition is dismissed both on the ground of
laches and on the ground of merits. No costs. Connected Miscellaneous
Petition is also dismissed.
21.12.2021
vsi
Index:Yes/no
speaking/non-speaking order
V. PARTHIBAN, J.
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vsi
W.P.No.31163 of 2019
21.12.2021
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