Madras High Court
S.Raja vs The Assistant General Manager ... on 11 October, 2022
WP(MD)No.14100 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.10.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.14100 of 2021
and
W.M.P.(MD)No.11064 of 2021
S.Raja ... Petitioner
Vs.
1.The Assistant General Manager (OAD),
Disciplinary Authority, State Bank of India,
Circle Top House, No.16, College Lane,
Chennai – 600 006.
2.The Enquiry Officer, State Bank of India,
FIMM RACC, Distillary Road,
Nagercoil – 629 001. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
records pertaining to the penalty order dated 23.07.2021 in VIG/KMV/75
passed by the 1st respondent and quash the same and direct the resinstatment of
the petitioner with all attendant benefits.
For Petitioner : Mrs.K.Sumathi for Mr.S.Suresh
For Respondents : Mr.M.Ajmal Khan, Senior Counsel,
For Mr.M.Ponnaiah, Standing Counsel.
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WP(MD)No.14100 of 2021
ORDER
Heard the learned counsel appearing for the petitioner and the learned
senior counsel appearing for the respondents.
2.The writ petitioner was working as Special Assistant (Cash-in-charge)/
Cashier at Thingal Nagar Branch of State Bank of India from 30.06.2010 to
20.10.2015. One of his duties was to replenish cash on daily basis along with a
joint custodian/an officer of the bank. During the relevant period, one
Ms.Vanitha, Accounts Officer/Deputy Manager was the joint custodian along
with the petitioner. Though as per ATM Cash Manual, the exercise of
replenishment must be a joint work, due to some understanding at the branch
level, Ms.Vanitha often did not accompany the petitioner.
3.The relevant date in this case is 31.07.2015. On the said date, the
petitioner and Ms.Vanitha were to jointly go to the ATM centre and replenish
cash. But Ms.Vanitha did not accompany the petitioner. She handed over the
hood key and also the password. There is no dispute that the petitioner and the
said Ms.Vanitha were joint custodians from 29.07.2015 to 13.08.2015. On
14.08.2015, the petitioner was on leave and had gone to Chennai to receive an
award. One Ms.Hamilta and Ms.Lavanya were the joint custodians. They
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complained to the Chief Manager namely, Thiru.Mahendravarman that there
was physical shortfall of Rs.2,50,000/- at ATM compared to admin balance.
The petitioner returned from Chennai and resumed his earlier role from
17.08.2015 onwards. On 27.08.2015, on advice from the Chief Manager, the
petitioner remitted a sum of Rs.2,50,000/- to make good the physical shortfall.
This was duly reported by the Chief Manager to the Regional Manager,
Tirunelveli.
4.On 03.02.2016, the petitioner was suspended from service. A criminal
complaint was lodged. It was however closed. Subsequently, Crime No.38 of
2019 was registered but the same was quashed by this Court in
Crl.O.P.(MD)No.3749 of 2020 on 06.03.2020. In the meanwhile, charge memo
dated 22.11.2017 was issued. The petitioner offered his reply. An enquiry
officer was appointed. The enquiry officer submitted his report dated
29.06.2021 holding that the charges levelled against the writ petitioner stood
proved. The petitioner was served with a copy of the enquiry report. The
petitioner offered his reply dated 12.07.2021. Thereafter, the disciplinary
authority proposed to impose the penalty of dismissal. The petitioner was
asked to appear in person through video conference on 22.07.2021 at 11.30 am.
The petitioner sought personal hearing along with his legal representative. This
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was denied and the disciplinary authority insisted that the petitioner should
appear on 22.07.2021 through video conference. The petitioner did not avail the
said opportunity. Thereafter, the impugned order dated 23.07.2021 was passed
by the disciplinary authority imposing the penalty of dismissal from service.
Challenging the same, W.P.(MD)No.14100 of 2021 has been filed.
5.The learned counsel for the petitioner reiterated all the contentions set
out in the affidavit filed in support of the writ petition and contended that the
impugned order has to be set aside and the writ petitioner reinstated with all
consequential benefits.
6.The respondents have filed a detailed counter affidavit and the learned
senior counsel took me through its contents. He submitted that the writ petition
deserves to be dismissed for more reasons than one. According to him, when
an effective remedy of appeal is available, the question of entertaining this writ
petition does not arise. He drew my attention to the writ petitioner's conduct in
having filed several writ petitions at every stage. According to him, the
petitioner was given the fullest opportunity. There has been no violation of
principles of natural justice. The writ petition is bereft of merits. He pressed
for dismissal.
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7.I carefully considered the rival contentions and went through the
materials on record.
8.The first question is whether the writ petitioner has to be non-suited for
not having availed the alternative remedy of appeal before the appellate
authority. It is well settled that the rule of non-exhaustion of alternative remedy
is more a rule of discretion and not something which goes to the jurisdiction
available under Article 226 of the Constitution of India. If the petitioner
bypasses the appellate remedy, then the scope for factual appreciation gets
limited. It is a risk which the petitioner takes. It is always open to the Writ
Court to entertain a writ petition even if the petitioner has an alternative remedy
of appeal. The Writ Court will interfere if the petitioner can show breach of
the principles of natural justice. Therefore, the writ petition cannot be
dismissed as not maintainable on this ground.
9.The learned counsel appearing for the petitioner raised very many
contentions. It was contended that Clause 3 of the Memorandum of Settlement
dated 10.04.2002 was not borne in mind. The learned counsel for the petitioner
took me through relevant clauses and argued that since the petitioner has been
acquitted, he can only be discharged and not dismissed. It is true that Crime
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WP(MD)No.14100 of 2021
No.38 of 2019 registered against the writ petitioner was quashed by this Court
in Crl.O.P.(MD)No.3749 of 2020 on 06.03.2020. But a reading of the order
dated 06.03.2020 does not lead to the conclusion that the petitioner was
acquitted. The employer had originally filed a complaint and it was temporarily
closed on 16.04.2016. The closure report was questioned in Crl.O.P.(MD)No.
10630 of 2016. Vide order dated 05.07.2016, the said criminal original petition
was disposed of with certain directions. I therefore held that the second
complaint was not maintainable and granted liberty to the employer to work
their rights in terms of the order dated 05.07.2016 in Crl.O.P.(MD)No.10630 of
2016. It appears that nothing further took place. From this, one cannot
conclude that the writ petitioner was acquitted. Acquittal has a definite
connotation in criminal law. The accused must have been tried, evidence
adduced and the Criminal Court must have given a judgment that the
prosecution has not proved the charge. In the case on hand, the petitioner has
not obtained any such judgment of acquittal. The second complaint given by
the employer was quashed on a technical ground and the employer was given
liberty to pursue the first complaint. The first complaint never took off.
Therefore, the petitioner cannot claim the benefit of the aforesaid clause in the
Memorandum of Settlement.
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10.The charge memo contains the following articles of charge:-
“Charge No.1:
On 31.07.2015, the employee replenished cash in the onsite ATM
without the presence of joint custodian. While replenishing the
cash in ATM, he misappropriated Bank's money to the tune of
Rs.2,50,000/-. He has thus violated the system procedures as laid
down in the ATM manual (June 2008) Page 113. [As detailed in
Statement of Allegations under item No.1 of Annexure-II
(enclosed)].
Charge No.2:-
The employee obtained the secret password from ATM cash
replenishment from the Accountant and amended the admin
balance leaving a cash shortage of Rs.2,50,000/- between
physical balance and admin balance. Thus, he violated the laid
down instructions regarding maintenance of secrecy of password
as laid down in the ATM manual (June 2008) Page 67. [As
detailed in Statement of Allegations under item No.2 of
Annexure-II (enclosed)].
Charge No.3:
Thus, Shri S.Raja, Special Assistant (under suspension), has
misappropriated an amount of Rs.2,50,000/- while replenishing
cash in the onsite ATM at Thingal Nagar Branch on 31.07.2015
and amended the admin balance of ATM. In the process, the
employee has indulged in misappropriation of Bank's money for
his personal benefit with fraudulent intention. The above acts of
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WP(MD)No.14100 of 2021
the employee, if proved would tantamount to Gross Misconduct
in terms of paragraph 5(j) of Memorandum of Settlement dated
10.04.2002.”
The learned counsel for the petitioner would argue that the petitioner's service
conditions are governed by the Bipartite Settlement dated 10.04.2022 and that
the first two articles of charge will not constitute an act of misconduct. I reject
this contention. The expression “misconduct” has been defined in Clause 5 of
the Bipartite Settlement. Clause 5(j) describes, doing any act prejudicial to the
interest of the bank or gross negligence or negligence involving or likely to
involve the bank in serious loss, as an act of gross misconduct. Clause 5(l)
includes abetment or instigation of any of the acts or omissions mentioned in
Clause 5. When ATM Manual clearly prescribes that the replenishment must be
done by two persons jointly, replenishment done by the petitioner without the
joint custodian being present would definitely amount to gross misconduct.
There is reason as to why the banking procedures insist on the involvement of
two persons jointly in carrying out a given work or transaction. It may be that
Ms.Vanitha, the officer concerned had asked the petitioner to open the hood and
carry out the work of replenishment by parting with her password. But the
petitioner ought to have categorically told her that he will not comply with the
said instruction. It is well settled that it is not a defence for a subordinate
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official to plead obedience to the superior's instructions, if the same is
otherwise illegal. Ms.Vanitha's act in parting with password and handing over
the hood key and asking the petitioner to replenish the ATM on his own was an
act that was prejudicial to the interest of the bank and likely to involve the bank
in serious loss. The petitioner had abetted the same by carrying out the illegal
directive. Therefore, I reject the contention that the charges 1 and 2 could not
have been framed against the writ petitioner.
11.Before proceeding further, it is necessary to bear in mind the
following principles laid down by the Hon'ble Apex Court. In Allahabad Bank
v. Krishna Narayan Tewari (2017) 2 SCC 308, it was held as follows :
“7.It is true that a writ court is very slow in interfering
with the findings of facts recorded by a Departmental Authority
on the basis of evidence available on record. But it is equally
true that in a case where the Disciplinary Authority records a
finding that is unsupported by any evidence whatsoever or a
finding which no reasonable person could have arrived at, the
writ court would be justified if not duty bound to examine the
matter and grant relief in appropriate cases. The writ court will
certainly interfere with disciplinary enquiry or the resultant
orders passed by the competent authority on that basis if the
enquiry itself was vitiated on account of violation of principles
of natural justice.......Non-application of mind by the Enquiry
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Officer or the Disciplinary Authority, non-recording of reasons
in support of the conclusion arrived at by them are also grounds
on which the writ courts are justified in interfering with the
orders of punishment.”
In Rajasthan State Road Transport Corporation and Ors. vs. Bal Mukund
Bairwa (2009) 4 SCC 299, the Hon'ble Apex Court held as follows :
“10.An employee charged with grave acts of misconduct
must be held to be entitled to a fair hearing in the departmental
proceeding. The common law principles of natural justice must
also be complied with. Rules laid down in the statutory rules
indisputably should be followed.”
In Roop Singh Negi vs. Punjab National Bank and Ors (2009) 2 SCC 570, it
was held that a decision must be arrived at on some evidence, which is legally
admissible. The provisions of the Evidence Act may not be applicable in a
departmental proceeding but the principles of natural justice are.
12.However, the petitioner is entitled to succeed for the reasons
appearing below :
(a) Even according to the respondents, the writ petitioner and Ms.Vanitha
were to jointly carry out the work of replenishment of the ATM on 31.07.2015.
The stand of the respondents is that on the said date, the petitioner had
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misappropriated bank's money to the extent of Rs.2,50,000/-. Ms.Vanitha was
independently dealt with. The charges framed against Ms.Vanitha are as
follows:-
“Charge No.1:
The official failed to accompany the joint custodian while
replenishing cash in the onsite ATM and violated the laid down
instructions stipulated in page no.113 of ATM manual – June
2008.
Charge No.2:
The official failed to maintain secrecy of the ATM cash
replenishment Terminal Master Keys (TMK)/password and
diluted its confidentiality, thereby breached the system integrity.
This laxity on the part of the official resulted in shortage of Cash
balance and difference in Physical and Admin cash balance of
Rs.2,50,000/- on 31.07.2015 and facilitated Shri S.Raja, Special
Assistant (Cash-in-charge) to misappropriate an amount of
Rs.2,50,000/- for his pecuniary benefit and thus violated the laid
down instructions stipulated in page no.67 of ATM manual –
June 2008.
Charge No.3:
The official failed to bring to the notice of higher authorities
regarding the irregularity on the part of Shri S.Raja, Special
Assistant (Cash-in-charge), that the cash disbursements were not
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made to the customers relating to gold loans on the date of
sanctioning of loan after posting and authorizing the debit
vouchers in CBS. However, he effected cash disbursements for
the gold loans to the gold loan borrowers only the next day.
Charge No.4:
Thus, Smt K.Vanitha, Officer MMGS II, failed to discharge her
duties and responsibilities with utmost diligence and devotion,
thereby violated Rule 50(4) of State Bank of India Officers'
Service Rules 1992 and facilitated perpetration of fraud by
Shri S.Raja, Special Assistant (Cash-in-charge).”
(b) Vide order dated 18.01.2018, Ms.Vanitha was imposed with the
penalty of reduction by three stages in time scale of pay for a period of two
years with further directions that she will not earn increments during the said
period and that it will have the effect of postponing the future increments of her
pay. A mere reading of the charges framed against Ms.Vanitha would indicate
that the writ petitioner figures prominently therein. The finding of the
disciplinary authority is that the charges 1, 2 and 4 have been proved.
(c) The General Manager (NW-II) was the appointing and disciplinary
authority for Ms.Vanitha. By holding that the charges 1, 2 and 4 are proved, he
had found the writ petitioner also guilty. The disciplinary authority in the case
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of the writ petitioner is Assistant General Manager (OAD). He is lesser in rank
compared to General Manager. The penalty order imposed in the case of
Ms.Vanitha is there on record. Of course, the learned senior counsel for the
respondents would strongly argue that the proceedings pertaining to Ms.Vanitha
are independent and that it was not referred to or relied upon by the disciplinary
authority in the present case. But the fact remains that an officer above the
rank of the first respondent had already rendered findings against the writ
petitioner. It had already been concluded that the writ petitioner had
misappropriated a sum of Rs.2,50,000/-. Therefore, the first respondent could
not have taken a different view. This in my view has seriously violated the
principles of natural justice. The writ petitioner did not have a fair opportunity
before the disciplinary authority. Any delinquent has the right to have his case
decided independently by the disciplinary authority. This right has been
breached in this case.
(d)Even though Ms.Vanitha was in the officer grade while the writ
petitioner was governed by the Bipartite Settlement, considering the special
facts and circumstances, the final order in the case of Ms.Vanitha as well as the
writ petitioner could have been passed by one and the same authority on the
same date, one after another. In the alternative, the proceedings against the writ
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petitioner could have been concluded first and thereafter, the final order in the
case of Ms.Vanitha chould have been passed. Passing of the final order in the
case of Ms.Vanitha by a superior authority and passing of the final order in the
case of the writ petitioner subsequently by an authority lower in rank has
clearly prejudiced the rights of the writ petitioner. By no stretch of
imagination, the Assistant General Manager could have rendered a finding
contrary to what was rendered by the General Manager. This simple reason is
sufficient to set aside the impugned order.
(e) The writ petitioner has pointed out that he was entrusted with the
responsibility only from 29.07.2015. One Sathiya was in his place along with
Ms.Vanitha from 23.07.2015 till 28.07.2015. But for reasons that are not quite
clear in the enquiry report, even on those days, the petitioner has been shown as
the jointly responsible along with Ms.Vanthia. More than anything else, the
ATM Manual Cash Verification Certificate dated 31.07.2015 shows that the
physical balance and admin balance has been tallied. The figure was Rs.
36,34,500/-. It was signed by both the joint custodians namely, Ms.K.Vanthia
and Mr.S.Raja (writ petitioner) and counter signed by the Branch Manager
namely, Thiru.P.Mahendra Varman. The allegation is that on 31.07.2015, the
petitioner had committed the act of misappropriation. This allegation and the
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ATM Cash Verification Certificate do not go together. The petitioner therefore
insisted that Ms.K.Vanitha and Thiru.P.Mahendra Varman (Chief Manager)
must be examined as witnesses. The enquiry officer while issuing summons
made it clear that it is for the petitioner to produce them. This approach cannot
be appreciated. The petitioner has been visited with a very serious charge. He
has been imposed with the punishment of dismissal from service. While the
delinquent may adopt appropriate strategies and tactics, the employer must play
a fair game. He is obliged to produce the best witnesses. He is bound to make
available those witnesses whom the delinquent wants to examine.
Ms.K.Vanitha as well as Thiru.P.Mahendra Varman are employees of State
Bank of India. The employer could have easily caused their production as
witnesses. In fact, the employer ought to have examined them as witnesses in
the first instance. Not having done so, when the delinquent prayed that they
must be examined, their production ought to have been ensured. After all the
charge is that the petitioner misappropriated a sum of Rs.2,50,000/- by making
use of the absence of Ms.K.Vanitha. But the ATM Cash Verification Certificate
signed by Vanitha as well as Mahendra Varman states that there was no shortfall
as on 31.07.2015. Ms.Vanitha and Mr.P.Mahendra Varman ought to have
explained the circumstances in which they issued the verification certificate.
The ATM Cash Verification Certificate was produced by the petitioner and it
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was listed as Document No.21. The enquiry officer could not have been turned
a nelson's eye. The failure to examine the best witnesses had vitiated the
fairness of the enquiry.
(f) The claim of the employer is that on 14.08.2015, when the petitioner
had gone to Chennai, Ms.Hamilta and Ms.Lavanya are said to have given a
complaint to the Chief Manager that there was shortfall of Rs.2,50,000/-. The
learned counsel for the petitioner took me through the testimony of these
witnesses and conclusively demonstrated that even though Ms.Lavanya was the
joint custodian along with Ms.Hamilta, she did not accompany Ms.Hamilta.
Ms.Hamilta and one messenger alone had operated the ATM and loaded cash.
Ms.Lavanya had joined them only in the last few minutes. There is nothing on
record to show that the complaint of Ms.Hamilta and Ms.Lavanya was
countersigned by the Chief Manager on the same day. There is considerable
merit in the submission of the learned counsel appearing for the petitioner that
the presence of a unauthorised person in the on-site ATM on 14.08.2015 and
the absence of Ms.Lavanya during substantial part of the replenishment process
would throw doubt on the allegations made against the petitioner. This is a
relevant material that must have been taken note of. The disciplinary authority
did not bear this aspect in mind.
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(g) On the side of the employer only two witnesses were examined. But
as many as 14 documents were marked. Interestingly, the documents were
marked by the Presenting Officer himself. The learned counsel for the
petitioner drew my attention to the decision reported in 2011 SCC Online Mad
2845 (K.Raman Vs. Presiding Officer). It has been held therein that the
statement of the Presenting Officer cannot be taken as evidence substantiating
the case of the employer. The learned senior counsel for the respondents
pointed out that the issue as to whether the Presenting Officer can figure as a
witness came up for consideration before the Hon'ble Full Bench of High Court
at Calcutta in WP No.2392 of 2001 (S.V.S.Marwari Hospital Vs. State of West
Bengal and Others). The Hon'ble Full Bench gave a finding that only if the
delinquent employee can show that he suffered prejudice by reason of the
Presenting Officer acting as a witness on behalf of the management, the enquiry
proceedings will possibly be held to be vitiated. The prejudice must be real
prejudice as opposed to formal prejudice, affecting some substantial legal right
of the employee and that the burden is on the employee to establish such
prejudice. No doubt, the judgment of the Hon'ble Full Bench of the High Court
at Calcutta is entitled to the greatest respect and weight. But a judgment of
another High Court can have only a persuasive value and not binding effect.
The learned counsel for the petitioner relies on a decision rendered by a learned
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Judge of this Court. I am inclined to hold the view that only with the consent
of the delinquent/employee, a document can be marked straightaway by the
Presenting Officer. Otherwise, a document has to be marked only through its
author or somebody who is connected with the documents in some way. He can
even be custodian of the document. It is true as pointed out by the learned
senior counsel for the respondents that the writ petitioner's legal representative
cross-examined the witnesses in respect of the documents marked by the
Presenting Officer. But the scope of cross-examination can only be to the
extent of the knowledge of the witnesses and it can never be a full-fledged
cross-examination. Unless, the Presenting Officer is formally declared as
witness and his statement had been made available to the petitioner, he could
not have cross-examined the Presenting Officer. The prejudice suffered by the
petitioner is real and not illusory or formal. Thus, the petitioner had made out a
case even if I go by the judgment of the Hon'ble Full Bench of High Court at
Calcutta.
(h) The learned counsel for the petitioner had raised many other
contentions but I am of the view that the reasons set out above are more than
sufficient to set aside the order impugned in this writ petition and it is
accordingly set aside. The matter is remitted to the file of the disciplinary
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authority. The disciplinary authority will re-open the enquiry. In other words,
the evidence that has already been adduced will remain intact. A new enquiry
officer will be appointed and further enquiry will be conducted and concluded
in compliance with the principles of natural justice and in the light of the
observations made above. Since the authority in the rank of General Manager
had already decided the issue, the enquiry report will be placed before an
authority superior in rank to that of General Manager. It is for the said
authority to take appropriate action on merits and in accordance with law.
Since the dismissal order has been set aside, the petitioner stands reinstated. Of
course, it is open respondent management to pass an order to keep the
petitioner under suspension. But then, subsistence allowance as per rules will
have to be paid till final order is passed in the disciplinary action.
13.With these directions, this writ petition is allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
11.10.2022
Index : Yes / No
Internet : Yes/ No
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WP(MD)No.14100 of 2021
G.R.SWAMINATHAN, J.
ias
W.P(MD)No.14100 of 2021
11.10.2022
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