Telangana High Court

Gajjala Narendar, S/O. G. ... vs The Bank Of Baroda, on 24 October, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

                                     1



        THE HON' BLE SRI JUSTICE NAGESH BHEEMAPAKA

                  WRIT PETITION No.26530 of 2013

O R D E R:

Petitioner was stated to have been appointed as

Clerk/Cashier on 15.09.1999 in respondent-Bank. On 29.03.2020, the

Bank issued a Memo raising eight allegations which summarily, relate

to misappropriation of deposits by delayed deposit of monies into

accounts of customers, thereby, petitioner is alleged to have committed

'Misconduct' as per the Bank's Discipline and Appeal Regulations,

1976. He submitted explanation denying the allegations. Not satisfied

thereby, the 2nd respondent-Disciplinary Authority issued a Charge

Sheet dated 08.06.2010. It is the case of petitioner that List of

Documents and List of Witnesses basing on which Charges were sought

to be proved, were not furnished to him.

The 2nd respondent appointed an Enquiry Officer who

conducted a preliminary enquiry and submitted Report dated

11.03.2011 holding that Charges against petitioner are proved. Though

petitioner submitted explanation on 31.10.2011, without considering

the same, the 2nd respondent passed final order dated 16.12.2011

removing him from service. Appeal preferred was rejected by order dated

21.07.2012. Aggrieved thereby, petitioner is before this Court.

2. In the counter, it is stated that petitioner being a Workman

ought to have approached the Labour Court; that Departmental

Enquiry was conducted in accordance with the prescribed procedure

under the Memorandum of Settlement on Disciplinary Action Procedure

for Workman dated 10.04.2002 and principles of natural justice have

been observed; past service record is not relevant for a proved

misconduct; petitioner accepted the authenticity and genuineness of

counterfoils/account statements/passbooks; he did not lead any

evidence to controvert the contents of the documents and did not

dispute the documents relied on by the Presenting Officer in support of

the charges; when documents were not denied, there was no

requirement for examining the witnesses to prove the contents thereof,

inasmuch as admitted facts need not be proved by examining witnesses;

Enquiry Officer considered the matter objectively and petitioner is only

making belated efforts on technicalities like list of witnesses and list of

documents; that nothing prevented petitioner to rebut the evidence

during the course of enquiry and every opportunity was provided to

him; charges against petitioner in the Charge Sheet dated 08.06.2010

were proved; petitioner being an employee of the respondent-Bank

ought to have been loyal and faithful in discharging his duties and

therefore, impugned punishment of removal from service does not

warrant interference by this Court.

3. Learned counsel for petitioner Sri J. Sudheer would submit

that there are no complaints from customers and that no documents or

list of documents and list of witnesses were furnished to his client along

with Charge Memo. It is contended that appointing Enquiry Officer in

the Charge Memo dated 08.06.2010 itself shows prejudice and pre-

determination of disciplinary authority against petitioner and it is

nothing but putting cart before the horse, rendering the process of

calling for explanation futile. It is also contended that not a single

prosecution witness was examined by the Enquiry Officer/Presenting

Officer. It is also contended that documents marked by the prosecution

were not through any Prosecution Witness as no prosecution witnesses

were examined by the Enquiry Officer/Presenting Officer, and any

documents on behalf of prosecution have to be marked through

Prosecution Witnesses only and therefore, any alleged prosecution

document cannot be considered as a document for prosecution case. It

is also contended that petitioner's request to produce witnesses /

customers was denied on the ground that their statements are taken on

record. It is also contended that statements of customers that they have

not deposited amounts on the first occasion and took away the same

and deposited later showing no blame on petitioner were ignored by the

Enquiry Officer, Disciplinary Authority and Appellate Authority on the

ground that the customers were stage-managed by petitioner and such

a finding has no legal basis and it is based on surmises and

conjectures. It is contended that there being no prosecution witnesses,

and denying the opportunity to examine defense witnesses (customers)

on the assumed ground that they are stage-managed, the entire

Enquiry proceedings are beset with perversity, therefore, unsustainable

in the eye of law and the Disciplinary Authority relying on such Enquiry

Report and imposing major penalty of removal from service is illegal and

unsustainable. It is also contended that the substance of charges

against petitioner is that he received amounts from customers but did

not deposit in their accounts, however, the very customers who never

complained have also given statements contrary to the allegations and

in favour of petitioner which are totally ignored by the Enquiry Officer,

Disciplinary Authority, and Appellate Authority. It is also contended

that the ground taken by respondents that petitioner admitted his guilt

in his letter dated 21.04.2010 in response to the Notice dated

29.03.2010 is totally misdirected as there was no admission of any guilt

in the first place, and he specifically stated that he discharged his

duties with sincerity and that even though "if there is any flaw" on his

part, a lenient view may be taken, cannot be taken as an admission of

guilt and such a statement is not an unequivocal statement as such a

statement is in general sense, to show sincerity, honesty and

submission to the authority and law in discharge of duties. It is also

contended that initiating disciplinary action and imposing major

punishment for every lapse or error is incorrect, and more so, imposing

the punishment of removal from service for the alleged lapses, even

assuming that the charges are proved, is shockingly disproportionate.

Learned counsel relied on Roop Singh Negi v. Punjab National Bank 1,

(2009) 2 SCC 570

State of Uttar Pradesh v. Saroj Kumar Sinha 2, State Bank of Patiala

v. SK Sharma 3, Collector Singh v. LML Ltd., Kanpur 4.

4. Learned Standing Counsel Sri K. Mallikharjun Rao

appearing on behalf of respondent-Bank, while making submissions on

the lines of counter affidavit, would mainly contend that the petitioner

has committed eight irregularities relating to deposit of monies into the

customers accounts. It is argued that the petitioner received the

amounts from the customers and issued counterfoils and failed to

deposit the monies on the same day they were received. It is also argued

that the documents, namely counterfoils, account statements,

passbooks are not denied and that the petitioner admitted to the

genuineness of the documents and the petitioner admitted his guilt and

once the documents are admitted there is no need to examine any

separate witnesses. It is further contended that the procedure

prescribed under the Memorandum of Settlement dated 10.04.2002 and

the principles of natural justice were complied and the petitioner having

failed to prove his innocence is questioning on the technicalities like list

of witnesses and list of documents. It is also contended that the

petitioner has not led any evidence to rebut the evidence available

through material on record. It is also argued that past service of the

petitioner has no relevance. It is finally argued that the petitioner being

an employee ought to have displayed loyalty and faith in discharging his

(2010) 2 SCC 772

(1996) 3 SCC 364

(2015) 2 SCC 410

duties and therefore the impugned punishment does not warrant

interference by this Court. Learned Standing counsel relied on

Rajesham K. v. Depot Manager, APSRTC 5, General Manager,

Eastern Coalfields Ltd., v. Rajender Singh 6, Union Bank of India v.

Vishwa Mohan 7, Disciplinary Authority-cum-Regional Manager v.

Nikunja Bihari Patnaik 8, State Bank of Bikaner & Jaipur v. Nemi

Chand Nalwaya 9.

5. Having considered the respective submissions and perusing

the material on record, it may be noted that the respondent-Bank

issued a Letter dated 08.06.2010 alleging irregularities in fraudulent

withdrawals in SB Accounts and Loan accounts at Inole Branch of the

Bank. The Charges vide letter dated 08.06.2010 would show that the

petitioner the petitioner has accepted the amount from various

customers and did not deposit them on the same day but there is a

delay of 10 to 12 days in depositing the amounts into the accounts of

the customers. The particulars of the charges are that (i) has accepted

the amount of Rs.1500/- on 05.11.2008 from M/s Srinivasa Mahila

Podupu but did not deposit the same into the account; (ii) has accepted

the amount of Rs.6000/- on 15.09.2008 from M/s Sri Krishna Yadav

Mahila but did not deposit the same into the account; (iii) has accepted

the amount of Rs.2000/- on 15.10.2008 from M/s Triveni Mahila

MANU/AP/0310/1996

MANU/WB/0103/2003

MANU/SC/0272/1998

MANU/SC/1578/1996

Civil Appeal No.5861 of 2007 (Hon' ble Supreme Court)

Podupu but did not deposit the same into the account; (iv) has accepted

the amount of Rs.7500/- on 08.09.2008 from M/s Rajyalakshmi

Dwarka Mahila Group but did not deposit the same into the account; (v)

has accepted the amount of Rs.7500/- on 08.12.2008 from M/s

Rajyalakshmi Dwarka Mahila Group but did not deposit the same into

the account; (vi) has accepted the amount of Rs.3000/- on 08.12.2008

from M/s Sruthi Self Help Group but did not deposit the same into the

account; (vii) has accepted the amount of Rs.30000/- on 26.05.2009

from S. Suguna but did not deposit the same into the account; and (viii)

has accepted the amount of Rs.40000/- on 12.03.2009 from Mohd

Hasan but did not deposit the same into the account.

6. It is the grievance of the petitioner that he was not given

opportunity to produce witnesses / customers of the accounts and the

Enquiry Officer has not examined any witnesses and only basing on the

counterfoil / documents, the allegations were held to be proved.

Furthermore, it can be seen from the Final Order that it is admitted fact

by the authorities that (i) there are no complaints from the customers,

(2) the Defense was not allowed to introduce defense witness, and

moreover at paragraph 5 on "Letters Submitted by the Customers", it is

recorded that "it may be observed that the incidents have taken place in

the year 2008 whereas the customers letters were obtained from 20th and

30th August 2010 i.e., almost after a gap of 2 years. The wordings of all

the letters are almost same which shows that the letters from the

customers are stage managed and obtained with an intention to cover up

the intentions of CSE". Furthermore, the representation before the

Disciplinary Authority in the Final Order would show that the petitioner

proposed to present the customers as witness but the Inquiry Officer

has recorded that physical presence of witnesses is not required as the

letters from these customers have been submitted as defense

documents.

7. Prima facie, it is to be noted that there are neither

prosecution witnesses nor any Defense witnesses examined and

enlisted in the Final Order. Even according to the Final Order, it is the

admitted fact of the Enquiry Officer was disinclined to examine the

witnesses proposed on behalf of the petitioner. It is to be noted that

when the authorities felt it not necessary to examine the customers of

the bank as the said customers have submitted documents (proposed

witnesses on behalf of petitioner), it goes with the impression that the

respondent authorities are satisfied with the evidence on behalf of the

petitioner. The Enquiry Officer cannot be disinclined to examine defense

witnesses and brush it off as "stage managed" without actually

examining them and thereafter arrive at a conclusion detrimental to the

delinquent employee. Furthermore, in the instant facts of the case, if

only the records are the fulcrum on which the entire enquiry was

sought to be concluded without any heed to the defense taken by the

delinquent employee, then there is no need for an enquiry at all in the

first place. The enquiry in the instant case is undisputedly about the

difference in actual date of deposit vis-à-vis the dates on counterfoils

and to enquire into the circumstances in which such alleged

discrepancy has occurred and fix the responsibility.

8. It is to be noted that there is no complaint from the

customers in the first place. The alleged irregularity was pointed out to

the delinquent employee after two years of its occurrence. The pleading

of the petitioner in his explanation is that he can explain the

transactions as far as he can recollect them and he also pleaded that he

has not committed any offence. Furthermore, it is seen from the

accounts that there is a delay in deposit of money and it is not the case

of the respondent authorities that the petitioner has siphoned off the

money. The total amount of Rs.97,500/- under the alleged eight

irregularities have all been found deposited in the respective accounts,

albeit with delay of 10 to 12 days. It is also the plea of the petitioner

that in certain cases the customers took back the money and he

returned the counterfoil to the customer in the speed of work and they

made the deposits at a later date. It is further to be noted that the

petitioner requested to examine the defense witnesses who are

customers of the accounts involved in the Charge Sheet. Furthermore,

the Defense Representative Mr. Y. Janakiram, vide letter dated

25.01.2011 addressed to the Enquiry Officer, at page No.101 of the writ

petition, stating that the letters of customers marked as DWs.1 to 8 are

fundamental exhibits and basic documents and proves that the findings

of the Presenting Officer as false. It is to be noted that when the

petitioner has proposed to prove his innocence and pleaded to give

opportunity to examine witnesses on his behalf, who are none other

than the customers whose accounts are in the enquiry against the

petitioner, the respondent authority ought to have given the opportunity

of proving his case.

9. Furthermore, it is to be noted that the precise allegation is

that the petitioner has accepted the amount from the customer and

issued the counterfoil for the deposit, but did not actually deposit the

amount in the accounts on the same day and made the deposit with a

delay of about 10 to 12 days. The Enquiry Officer, has merely based his

enquiry on the counterfoil/passbook and there is neither a prosecution

witness nor a defense witness and a few questions were asked to the

petitioner and some answers were elicited. Affording an opportunity of

hearing, and for adducing supporting documents, and for producing

evidence/witnesses to prove innocence is the pillar of principle of

natural justice and the same is not observed by the respondents in this

case as they did not permit the petitioner to produce the alleged

customers and instead struck it off as stage managed. Be that as it

may, viewed from any angle, the punishment of removal from service is

highly disproportionate to the gravity of charges leveled against the

petitioner.

10. This Court has gone through the judgments relied on by the

learned counsel for respondent Bank. The judgment in Rajesham K.

(supra) relates to belated venting of the grievance and approaching the

High Court only when the second Show Cause notice was issued on the

fear that the departmental proceedings may go against him. The

judgment on Nikunja Bihari Patnaik (supra) relates to a case where

the delinquent official was involved in allowing over the limit credit

facilities without any delegated authority on him. The judgment in

General Manager, East Coalfields (supra) relates to granting of

backwages from date of dismissal till resumption and regarding

unauthorized absence. The judgment in Vishwa Mohan (supra) relates

to a case where the High Court has set aside the dismissal of the

employee therein for non-receipt of enquiry report, and that was

challenged before the Hon' ble Supreme Court. The judgment in Nemi

Chand Nalwaya (supra) relates to divulging of details of an inoperative

account to an unidentified person. It can be seen that the grievance in

the present writ petition is that basic principles of natural justice are

not followed, the petitioner was awarded the impugned punishment of

removal from service without even examining any witnesses both on the

prosecution side and on the defense side, and even the letters issued by

the customers of the account holders is not considered and brushed

aside as stage managed, and even there is no complaint against the

petitioner at all from the customers, and further the pleading of the

petitioner to examine the customers is also not accepted, and the

punishment of removal from service is highly disproportionate to the

gravity of charges leveled against the petitioner. The facts of the present

case are on entirely different footing than the facts of the cases in the

judgments relied on by the learned counsel for the respondent Bank,

and therefore they are not applicable to the case at hand.

11. In Roop Singh Negi v. Punjab National Bank (supra), the

Hon' ble Supreme Court was dealing with a case where the delinquent

employee was charged with an offence of hurling jute bags on his

superior and also using abusive language, for which the delinquent

employee was dismissed from service. The Court, while observing that

the punishment of dismissal from service is disproportionate to the

charge against the delinquent employee, referred to the judgment in

M.V. Bijlani v. Union of India 10 wherein it was held as follows:

"....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi- judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

(2006) 5 SCC 88

12. In the instant case, charges against the petitioner is that in

2008 he committed eight irregularities wherein he had accepted the

amount from the customers and did not make the deposit in their

respective accounts on the same day but delayed it by 10 to 12 days.

The said incidents took place in the year 2008, and the petitioner was

given Charge Sheet in the year 2010 and the punishment of removal

from service was imposed on him. Furthermore, It is not in dispute that

there are no complaints from the customers, nor the letters issued by

the customers in support of the petitioner were considered, rather they

were pushed aside as stage-managed, nor the customers were

examined. The plea of the petitioner was that the incidents were of 2008