Bank Of Baroda & 1 ­

1. The petitioner herein has challenged the order passed by the Appellate Authority & Deputy General Manager, Central Gujarat Zone, Baroda, respondent no.2 herein, dated 17.01.2002 whereby, the appeal preferred by the petitioner was rejected and the punishment of dismissal from service passed against the petitioner by the Assistant General Manager (Anand Region), respondent no.1 herein, vide order dated 03.11.2000, was confirmed.

2. The facts in brief as emerging from the record are that on 28.08.1981 the petitioner herein was appointed as a Clerk­cum­Cashier at the Anand Main Branch of the respondent­Bank of Baroda. By communication dated 02.03.1996 issued by the Assistant General Manager of the respondent­Bank, the petitioner was called upon to give written explanation in respect of an alleged incident of fraud of Rs.1,80,000/­ at the said Branch of the respondent­Bank on or before 09.03.1996.

3. It was alleged against the petitioner that on 19.10.1995 a current account cheque No.954985, purported to have been drawn by one M/s. Jet Road Lines (India) Pvt. Ltd. (a current account holder No. 5843) favouring self or bearer, was paid for Rs.1,80,000/­ and that it was documented that the said cheque has not been issued by said M/s. Jet Road Lines (India) Pvt. Ltd.. Therefore, the amount paid has been considered as fraudulent payment.

4. The petitioner submitted his detailed reply / written explanation vide reply dated 12.03.1996. With effect from 05.06.1996 the petitioner was placed under suspension. Being dissatisfied with the explanation tendered by the petitioner, the respondent­Bank decided to initiate departmental enquiry against the petitioner, which was communicated to the petitioner vide communication dated 06.04.1998. The petitioner was also informed about the appointment of Enquiry Officer. At the end of enquiry, the Enquiry Officer submitted his Report stating that all the charges levelled against the petitioner stood proved beyond doubt. After considering the Enquiry Report and other records, the Disciplinary Authority, respondent no.1 herein, vide order dated 03.11.2000, imposed the penalty of dismissal from service without notice and to treat the period of suspension from 05.06.1996 to 31.01.1998 as period not spent on duty.

5. Being aggrieved by the order passed by the Disciplinary Authority dated 03.11.2000, the petitioner filed Appeal dated 06.11.2000 before the Appellate Authority of the respondent­ Bank, respondent no.2 herein. However, the Appellate Authority rejected the Appeal filed by the petitioner vide order dated 17.01.2002.

6. Against the aforesaid orders dated 03.11.2000 and 17.01.2002 passed by the Disciplinary Authority and Appellate Authority respectively of the respondent­Bank, the present petition has been preferred.

7. Mr. V.M. Dhotre learned counsel appearing on behalf of the petitioner submitted that the petitioner has been made a scape­goat for an event of fraud which was never committed by him. He submitted that the respondent­Bank has victimized the petitioner inasmuch as the alleged fraud was never committed by the petitioner but, was committed by someone else, whom the respondent­Bank was not able to identify.

7.1 Mr. Dhotre submitted that the Enquiry Officer has not appreciated the evidence on record in its proper perspective. The oral as well as documentary evidence produced in the enquiry proceedings does not prove the element of fraud as alleged against the petitioner. He submitted that the fraud committed by some other employee of the respondent­Bank has been thrust upon the petitioner since the petitioner was made to discharge duties as a receiving Cashier on the date when the alleged fraud had been committed. There is nothing on record to show that the petitioner has committed the fraud as alleged. Hence, the conclusion arrived at by the Enquiry Officer is contrary to the evidence on record and erroneous.

7.2 Mr. Dhotre further submitted that in the enquiry proceedings, proper opportunity was not given to the petitioner to cross­examine some of the Witnesses who had deposed against him. He also submitted that the request to get opinion of Hand­writing Expert on the some of documents exhibited by the respondent­Bank was not adhered to by the Enquiry Officer, which seriously prejudiced the case of the petitioner.

7.3 Mr. Dhotre submitted that the respondent­Bank has not followed proper procedure and/or has not taken necessary precautionary measures to ensure that the negotiable instruments / tokens are properly maintained. He submitted that the oral evidence of Management Witnesses prove that necessary safeguards were not at place while the negotiable instruments / tokens were in business in the respondent­Bank. He, therefore, submitted that the petitioner could not have been held liable for an act of fraud, which was never committed by him.

7.4 Mr. Dhotre submitted that proper procedure was not followed in the enquiry proceedings held against the petitioner. He submitted that there was blatant violation of the principles of natural justice as proper opportunity was not afforded to the petitioner to defend himself in the enquiry proceedings. He, therefore, submitted that the enquiry proceedings stood vitiated and consequently, the conclusion arrived at by the Enquiry Officer ought not to have been accepted by the Disciplinary Authority and the Appellate Authority of the respondent­Bank.

7.5 Mr. Dhotre submitted that the Appellate Authority of the respondent­Bank has not assigned any reasons while dismissing the appeal preferred by the petitioner against the order of dismissal. He submitted that the Appellate Authority has not assigned any reasons whatsoever while rejecting the appeal. Hence, the impugned order of the Appellate Authority is a non­speaking order and thereby, is violative of the principles of natural justice.

7.6 Alternatively, Mr. Dhotre submitted that the penalty of dismissal from service imposed upon the petitioner is harsh and disproportionate. He submitted that the Court may take a sympathetic view in the matter and may substitute the penalty imposed by the Bank by imposing some lesser punishment.

8.0 In support of his submissions, Mr. Dhotre learned counsel appearing on behalf of the petitioner has placed reliance upon the following decisions;

I. In the case of Kuldeep Singh v. Commissioner of Police and others, (1999) 2 SCC 10, the Apex Court in Paras – 6, 9 & 10 held as under;

“6. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the appellate authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority.

9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of “guilt” is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.”

II. In Civil Appeal No. 1104/2008 between Divisional Forest Officer, Kothagudem & Others v.

Madhusudhan Rao decided on 08.02.2008, the Apex Court in Para­19 observed thus;

“19. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interest of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.”

III. In the case of Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570, the Apex Court in Para­23 observed thus;

“23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. 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. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.”

9. Mr. Darshan M. Parikh learned counsel appearing on behalf of the respondent­Bank submitted that the petitioner was found guilty of fraud, which cost the respondent­Bank Rs.1.80 Lacs. He submitted that proper enquiry was conducted against the petitioner and due opportunity was given to the petitioner to defend himself.

9.1 Mr. Parikh submitted that in the enquiry proceedings, all the charges levelled against the petitioner were proved beyond reasonable doubt and therefore, the penalty of dismissal from service was imposed looking to the gravity of offence committed by the petitioner.

9.2 Mr. Parikh submitted that the petitioner had made payment of a cheque, which was a stolen one and which was presented for payment after forging the same. He submitted that the cheque in question was never presented to the Department concerned dealing with Current Account cheques and it was never entered in the relevant books of the respondent­Bank. Further, no Token was issued against the cheque in question and it was never sent to the concerned Officer for authentication. The signature of the authenticating Officer was forged. Moreover, the Token No.97 which was once issued for another cheque was lying with the petitioner and could not have been re­issued unless the required procedure for re­issue was followed. In the departmental proceedings, the charges were proved beyond doubt and therefore, looking to the gravity of offence, the respondent­Bank decided to dismiss the petitioner from service. He, therefore, submitted that this Court may not interfere with the order of dismissal passed by the respondent­Bank and may dismiss the petition.

10. I have heard learned counsel for the respective parties. I have also gone through the documents on record and also the proceedings of enquiry conducted against the petitioner. It appears from the record that the punitive action of dismissal from service was passed against the petitioner for the alleged fraud committed by him involving a Current Account cheque bearing No.954984 dated 19.10.1995 and belonging to one “M/s. Jet Roadlines (India) Pvt. Ltd.” for Rs.1.80 Lacs, which was signed by one “Mr. R.K. Agrawal” in the capacity of Director of the said Firm. The said Firm was having a Current Account bearing No.5843 with the respondent­Bank at the relevant point of time. The alleged incident of fraud is said to have taken place on 19.10.1995 while the petitioner was discharging his duties as Paying Cashier.

11. Before we discuss the role playing by the petitioner in the event of things, it would be useful to understand the course of business being followed in the respondent­Bank at the relevant point of time.

Step 1:­ Token Clerk : The Cheque­holder will present the cheque to the Token Clerk. The Token Clerk signs on the cheque and issues a Token against it. Thereafter, the Token Clerk send the Cheque to the Posting Clerk.

Step 2 :­ Posting Clerk : After verifying the balance of account, the Posting Clerk puts his initials on the cheque and thereafter, sends the cheque, along with the payment scroll, to the Head of Department dealing with Current Accounts.

Step 3 :­ Head of Department of Current Account : The Head of the Department tallies the signature of the Drawer with the Specimen and thereafter, puts his initials on the cheque and sends it to the Paying Cashier.

Step 4 :­ Paying Cashier : After verifying the above signatures / procedure, the Paying Cashier makes payment to the cheque­holder concerned. During this time, the Paying Cashier also gets signature of the cheque­holder on the cheque.

12. On the date when the alleged fraud was committed, the petitioner was discharging duties as Assistant Paying Cashier. The duty of Token Clerk was done by Bhanubhai N. Makwana MW­5 (Management Witness­5), whereas, the duty of Posting Clerk was done by Arvindbhai M. Thakkar (MW­ 6). Pravinbhai Shantilal Chavda was serving as the Head of Department, Current Account, (MW­2) whereas, P.G. Dabhi was serving as the Head Cashier, (MW­4).

13. The main allegation against the petitioner was that he had made payment of a cheque amounting Rs.1.80 Lacs bearing Sr. No. 954984 dated 19.10.1995 purported to have been drawn by one M/s. Jet Roadlines (India) Pvt. Ltd having Current Account No.5843 favouring “self or bearer” and that though the said cheque­leaf was reported as lost / stolen, the petitioner had made payment against the same. It was also alleged that Token No.97, which was used for the above payment, was not re­issued to any customer of that day by the respondent­Bank. In the enquiry proceedings, statements of Witnesses were recorded and documentary evidence produced by either side were taken on record. In respect of the aforesaid main allegation, the Enquiry Officer has recorded the finding that the cheque in question had not been routed through the Current Account Department on 19.10.1995 during the banking hours and that if the said cheque had been routed through the said Department, then it would have been reflected in the Statement which is automatically generated and also in the Supplementary of the Current Account Department. The said finding was arrived at on the basis of the oral evidence of the Management Witnesses, who were discharging duties as Ledger Keeper, Token Clerk and Passing Officer of the Current Account Department of the respondent­Bank at the relevant point of time.

14. Further, the Transaction Number appearing on the cheque in question was not matching with the Transaction Number created by the automatically generated Statement, which shows different instrument and party. Such automatically generated Statement cannot create same Transaction Number for two different transactions. The Transaction No.27, which was generated in the automatically created Statement, was the genuine transaction, which is evident from the documentary evidence as also the oral evidence of witnesses.

15. The documentary evidence in the form of automatically generated Statement and the Supplementary of Current Account Department establish the fact that the cheque in question was neither routed through nor handled by the Current Account Department of the respondent­Bank on the date of incident. The cheque in question had not passed through the mandatory steps, as discussed in the foregoing paragraph, before its clearance. Therefore, it was established beyond doubt that the petitioner had fraudulently siphoned away Rs.1.80 Lacs of public money lying with the respondent­Bank.

16. It was also the case of the petitioner that in respect of the cheque in question, Token No. 97 was re­issued by the Branch on the same day. However, the said say of the petitioner does not get any support from the documentary evidence on record, which say an altogether different story. A cheque bearing No.955783 was produced in the enquiry proceedings as evidence vide ME­4. It was against the said cheque that Token No.97 was issued by the Branch for the first and last time on 19.10.1995 and for the said cheque, Transaction N.27 is also reflected in the automatically generated Statement. After Token No.97 was issued in respect of cheque bearing No.955783 on 19.10.1995, it was not re­issued on the same day to the Current Account Department. The Token Register shows that not a single Token was re­issued to Current Account Department on that day, which is evident from Page no.78 of ME­13 dated 19.10.1995. The absence of Token requirement can also be cross­checked with ME­8 and ME­9 vis­a­vis ME­7 for all genuine debit cash entries, excluding the fraudulent cheque bearing No.954984, which was produced vide ME­2. Therefore, there is no truth in the say of the petitioner that Token No.97 was re­issued by the Branch and was then issued by the petitioner against the cheque in question.

17. Further, the document ME­8 does not reflect necessary entry in respect of the cheque in question (ME­2), whereas, all other cash, credit / debit vouchers / cheques of Current Account are reflected, which is evident from the document ME­35. From the above set of evidence, it is established that the petitioner had fraudulently made payment of Rs.1.80 Lacs and had thereby, caused financial loss to the public sector Bank.

18. The respondent­Bank has framed a set of rules for its employees for the smooth conduct of its business. The staff of the respondent­Bank have to adhere to such rules of procedure without any compromise. Any lapse in the observance of such rules of procedure could entail huge financial loss to the Bank or may prompt the commission of any king of illegality. The Bank has framed necessary set of rules for every conduct of its business. With respect to the handling of Cash, the basic rule provides that the Paying Cashier has to verify the amount of instrument with the entry in the payment scroll, scrutinize the instrument and confirm that it is in order, verify the signature of the passing official and confirm the amount / nature of instruments is within the authority of passing officer, call the token number (Not Name) for payment, receive Token from the tender and check the number on the Token and confirm that it is tallying with the number mentioned on the instrument and is issued by concerned department and pertains to the branch, etc.

19. In the instant case, it is established on record that there is serious lapse on the part of the petitioner in the observance of the rules regarding handling of Cash. The petitioner was discharging duties as Assistant Paying Cashier and therefore, he was required to follow the relevant rules scrupulously. The evidence on record shows that the lapse on the part of the petitioner was not a human error but, a criminal act. The documentary evidence on record, particularly, the automatically generated Statement and the Supplementary as also the Registers of the Current Account Department of the Branch establish that the lapse was not a human error. The issuance of Token No.97 against the instrument in question, though it was never reissued by the Bank on the same day, further strengthens the noose around the petitioner since the said Token No.97 was already issued once earlier for another cheque, payment whereof was made by the petitioner.

20. Further, the petitioner had not verified the signature of the Payee. The signature which was taken before the petitioner was different than the signature which was alleged to be made at the time of alleged issuance of Token. The petitioner had also not validated the cheque in question under his signature while making payment. He had made the payment without proper authentication by the appropriate Officer since the person who is alleged to have authenticated the cheque in question did not have the authority to sign authentication for a cheque of such value. Thus, the signature of the authenticating Officer was also forged. The cheque used for collecting the said payment was in fact reported as stolen/lost. The constituent on whose behalf the cheque in question was said to have been presented had, on the same day, already collected payment against a different Token No.110. The documentary evidence on record conclusively prove the fraud committed by the petitioner.

21. The petitioner has also challenged the legality and validity of the enquiry proceedings initiated against him. It is the say of the petitioner that the Bank has not followed proper procedure or that the Bank has not given sufficient opportunity to defend himself. In the communication dated 06.04.1998 issued by the Disciplinary Authority of the Bank, the decision to hold departmental enquiry, along with the charges and the details of the Officials who would be holding the enquiry, were communicated to the petitioner. In the said communication, the petitioner was also informed that he could take assistance of a Representative of a registered Trade Union of the Bank Employees in the enquiry proceedings, which the petitioner duly availed. The petitioner and his Representative were present in the enquiry proceedings all throughout.

22. The petitioner has alleged that he was not given any opportunity to cross­examine some of the witnesses during the enquiry proceedings. However, from the records of the case, it appears that the petitioner has not extended proper co­operation during the entire proceedings. On certain dates of hearing, though the petitioner remained present at the enquiry but, he left abruptly and did not participate in the enquiry or did not remain present despite knowledge of the date of hearing. If, at any such moment, the petitioner was prejudiced, then he should have tendered application for recall of witness/s for cross­examination. However, no such application was preferred by the petitioner. The petitioner has failed to elicit any prejudice caused to him on account of the alleged non­grant of opportunity. In fact, the petitioner had adopted certain tactics in order to delay the proceedings, which is evident from the proceedings of enquiry. Hence, I do not find any infirmity or illegality in the manner in which the enquiry proceedings were conducted by the respondent­Bank.

23. The petitioner has also challenged the legality of the order passed by the Appellate Authority of the respondent­ Bank on the ground that it is a non­speaking order. However, I do not agree with the aforesaid submission advanced on behalf of the petitioner. Both the Disciplinary Authority as well as the Appellate Authority have given personal hearing to the petitioner and his Representative before passing their respective orders. The Disciplinary Authority acted on the basis of the detailed Report furnished by the Enquiry Officer and when the misconduct alleged against the petitioner stood proved in the enquiry proceedings, the penalty of dismissal from service was imposed on the petitioner. The Appellate Authority also gave personal hearing to the petitioner and his Representative. However, the Appellate Authority concurred with the view taken by the Disciplinary Authority and therefore, rejected the Appeal filed by the petitioner.

23.1 Under such circumstance, it cannot be said that a detailed order for concurrence has also to be passed as a rule of law. When the Appellate Authority has concurred with the view taken by the Disciplinary Authority, it is not necessary that the Appellate Authority discusses every aspect of the case again. The Appellate Authority has, in fact, recorded the delaying tactics adopted by the petitioner during the enquiry proceedings in its order. The Report furnished by the Enquiry Officer is a detailed one and by acting on the said Report, the Disciplinary Authority has passed the order of dismissal from service. Both the authorities have assigned sufficient reasons before passing the impugned orders. Hence, I do not find any substance in the submission raised by the petitioner that the order of the Appellate Authority is a non­speaking order.

24. In this context, it would be relevant to refer to a decision of the Apex Court in the case of Oriental Bank of Commerce and Another v. R.K. Uppal, (2011) 8 SCC 695. In that case, the Apex Court held that the right of appeal in departmental enquiry is not an inherent right and that none of the facets of natural justice requires that there should be right of appeal from any decision. Thus, the principle rendered in the above case supports the decision of the Appellate Authority.

25. The principle laid down by the Apex Court in the judgments relied upon by learned counsel for the petitioner is good law. However, the same would not apply to the present case. From the proceedings of enquiry, it is evident that the Enquiry Officer has discussed each and every aspect of the case in detail. He has appreciated the documentary evidence provided by both the sides. Proper opportunity was also provided to the petitioner to present his case and also to cross­examine the witnesses. He has looked into every allegation levelled against the petitioner. Having gone through the enquiry proceedings, I find that the conclusion arrived at by the Enquiry Officer is in consonance with the oral as well as documentary evidence on record and I do not find any illegality or impropriety having been committed while recording such findings.

26. In view of the above discussion, I find no merits in the present petition. Hence, the petition is dismissed. Rule is discharged.

[K. S. JHAVERI, J.] Pravin/*