Hon. K.N. Pandey, J.
We have heard Shri P.S. Baghel, learned Senior Advocate assisted by Shri C.B. Gupta for the petitioner. Shri D.P. Bahadur appears for the Syndicate Bank and other respondents.
The petitioner has filed this writ petition to quash the order dated 29.1.1999 passed by the Asstt. General Manager, Syndicate Bank, Industrial Relations Cell, Zonal Office, Lucknow awarding him punishment of dismissal from services of the bank with immediate effect, which shall ordinarily be a disqualification for future employment under Regulation 4 (J) of the Syndicate Bank Officers Employees (Discipline and Appeal) Rules, 1976. The order has been passed for breach of Regulation No.3 (1) read with Regulation 24 of S.B.O.E. (Conduct) Regulation, 1976. It further directs that the suspension period of the petitioner shall not be treated as on duty for any purpose and he shall not be eligible for any back wages except subsistence allowance. The petitioner's appeal was dismissed by the General manager (P), the appellate authority by order dated 31st March, 1999.
Brief facts giving rise to this writ petition are that while the petitioner was posted as Asstt. Manager at Barakhamba Road Branch, New Delhi a first information report was lodged by M/s Radient Exports & Industries (Pvt.) Ltd. (the company) under Section 420, 468, 471 IPC against the bank officials (not named in the FIR) and an accountant of the company Mr. Dibankar Basu for fraudulently withdrawing of Rs.4,90,000/- from the account of the bank on the basis of forged signatures. A Vigilance Enquiry was conducted by the bank in which on 1.11.1994 the petitioner's statement was recorded by Shri S.K. Abrol, Manager Vigilance. The petitioner was placed under suspension on 10.1.1995 and chargesheet dated 24.10.1997 was served upon him. The petitioner filed a written statement on 8.1.1998 denying the allegations. The suspension order was revoked on 9.3.1998 and the petitioner was posted as Asstt. General Manager, Syndicate Bank, Zonal Office, Moradabad. A regular enquiry was conducted on 19.5.1998, on a single day after which the enquiry officer submitted enquiry report on 1.7.1998. The petitioner denied the allegations and the proof of charges in his reply, which was not considered properly. He was dismissed from service on 29.1.1999 and his appeal was dismissed on 31.3.1999.
Shri P.S. Baghel, learned counsel for the petitioner submits that the disciplinary proceedings were taken against the petitioner in respect of Cheque No.810880 dated 20.7.1994 of Rs.4 lacs. This cheque was passed by the petitioner for which token was issued by Ms. Shyamla Manohar, Clerk; and the payment was made by Mr. Charan Singh, clerk. The other Cheque No.810877 dated 5.7.1994 of Rs.90,000/- was passed by Mr. V.K. Paliwal, for which token was issued by the petitioner and the payment was made by Ms. Madhu Mahajan. The third cheque No.810882 dated 1.8.1994 of Rs.2 lacs was passed by Shri Pankaj Bhatia, the token was issued by Ms. Shyamla Manohar and the payment was made by Shri V.K. Chawla. The petitioner was charged for passing first cheque of Rs.4 lacs, and for issuing token in respect of second cheque of Rs.90,000/-. The company was old customer of the bank.
In the Article of Charge No.1, the petitioner was charged with passing Cheque No.810880 dated 20.7.1994 on the same day on 20.7.1994 for Rs.4 lacs, though the signature of the authorised signatory on the cheque did not tally with the specimen signature lodged with the bank. The cheque was forged, for which reimbursement was sought by the company. The Article of Charge No.2 alleged that on the reverse of the cheque the person presenting the cheque signed as ''Pradeep Roy', though on earlier occasions he had encashed a number of self cheques drawn by the company by signing as ''Dibankar Basu' (on the reverse). It was alleged that the petitioner failed to notice the discrepancy in the signatures while encashing the cheque. The Article of Charge No.3 alleged in respect of same cheque that when the company requested for duplicate copies of the statement of account for the month of April and May, 1994 by letter dated 17.8.1994, though there were number of entries in the said account, the petitioner wrote a remark in the latter of the company that there were no transaction in the account for the above referred months and thus on all the three allegations the petitioner was charged with failing to discharge his duties with utmost honesty and integrity, thereby contravening Regulation 3 (1), read with Regulation 24 of the Syndicate Bank Officers Employees (Conduct) Regulation, 1976.
The petitioner denied the charges and stated in his reply that he had taken all necessary precautions and that the cheque was actually issued and the signatures tallied with specimen signatures of the authorised signatory of the account.
In the proceedings of enquiry only one witness namely Shri S.K. Abrol, the Vigilance Officer, who had taken statement of the petitioner in vigilance enquiry on the basis of which disciplinary enquiry was initiated, appeared as a witness, MW-1 and identified 34 documents. He deposed that the signatures of the drawer were completely different with the specimen signature lodged with the bank and as such the signatures appearing on the cheque were forged. The charged officer deliberately allowed Shri Dibankar Basu, the accountant of the company to sign as Pradeep Roy while taking cash payment of Rs.4 lacs and allowed Shri Basu to conceal his identity, which facilitated the commission of fraud. He found that in the current account the Manager's signatures were not obtained on specimen signature card of Smt. Neera Rajgharia, authorised signatory; while issuing cheque book No.810801-810900 and 184851-184875 to the third party; in the said current account the CDLs were not sent to the account holder and the same was submitted by CSDE and that the company had lodged FIR for involvement of their accountant Shri Dibankar Basu and connivance of bank staff and demanded Rs.6.9 lacs including amount in other two cheques. The petitioner was arrested by police, and was granted bail. All the three original cheques were seized by the police and hence certified copies were produced in the enquiry. The report of the Central Forensic Science Laboratory dated 13.6.1995, observed that the signatures appearing on the front and back side of the cheque of Rs.4 lacs and also on the other two cheques were forged and were actually not made by authorised signatory Shri Ashok Rajgharia and the signatures as Pradeep Roy on the back side of the cheque were made by Dibankar Basu.
The enquiry officer found that as per the statement of the petitioner particularly his answers to question Nos.23 to 26 he was knowing the Accountant of the company Shri Dibankar Basu and also knowing that same person has signed as Pradeep Roy on the back of the cheque and thus concluded that he was having full knowledge of the fraud. The police has filed chargesheet in the case and criminal trial is going on. The enquiry officer thus concluded that the petitioner had passed self cheque of Rs. 4 lacs. The signatures of the authorised signatory did not tally with the specimen signatures with the bank; the party had denied having issued the cheque and that Shri Dibankar Basu received the payment by signing as Pradeep Roy. The petitioner was also found guilty of informing the party that there were no transactions during April and May 1994 though there were number of transactions and thus all the charges were proved.
In his reply dated 1.8.1998 to the enquiry officer's report the petitioner stated that he had passed cheque in due course without negligence, in good faith, after verifying the signatures. These signatures absolutely tallied as per his naked eyes with the specimen signature lodged with the bank. Three different officials had passed three different cheques and if all of them could not decipher the same signature, it cannot be said that they had all committed mistakes rather it was the work of skillful copying of the signatures. In the written statement to the suit filed by the company the bank admitted that the cheques were passed after tallying the signatures and that it was the responsibility of the party to keep the cheque book under its custody. The enquiry officer has relied only upon the statement of the Vigilance Officer and has found proved all the allegations in the chargesheet filed to be proved by the police. Shri Dibankar Basu has been declared as proclaimed offender by Metropolitan Magistrate Shri R.K. Chauhan at Patiala House Court, New Delhi. The petitioner further submitted in defence, that the account holders did not lodge any complaint with the police about loss of cheque book leaves. The petitioner had passed the cheques as per the procedure of the bank. It was the duty of the cashier to make the payment to the person, who had signed on the reverse. The current accounts are maintained in ALPM and it is quite impossible to remember each and every transaction. It was not case of manual account to find out the current position of the statement of account. Whatever was shown on the screen for month of April and May 1994 was written on party's application. The corrected entry of Rs.5,09,899/- on 30.5.1994 was reflected in the statement of June of 1994. the parties was not misled in giving account position of April and May, 1994. The petitioner submitted that for 20 years he has served with the bank and should not be penalized for something, which was done in ordinary course of business, without any material to connect him with the alleged fraud.
With regard to statement given before the vigilance authority the petitioner submitted that the statement dated 1.11.1994 was obtained under duress and could not be considered as valid evidence or admission in law.
The disciplinary authority considered the defence and the reply given by the petitioner to the enquiry officer's report. After certifying that the enquiry was conducted in accordance with the Regulation No.6 of the Regulation of 1976 providing fair and reasonable opportunity serving the principles of natural justice, he observed as follows:-
"On perusal of the inquiry proceedings I also find that MW 1 has properly identified the various MEX while giving his deposition in the inquiry. I also find that there is nothing on record to show that biased approach of MW 1 and IA. The contention of the CSOE that MEX 1 was obtained under duress is not tenable as no evidence in support of such claim have been brought into to substantiate such claims. I observe that DEX 1 2 3 & 4 in no way rebut the charges levelled against the CSOE. I also find that the CSOE has not brought in any externusing factor / circumstances for considering any alternation or reflection in the IA's findings. Further notwithstanding the claim made by the Bank in Hon'ble High Court the facts remains that signature appearing on the cheque passed by the CSOE were forged and the same has been confirmed by the report of Central Forensic Science laboratory New Delhi and the Bank has to suffer a loss.
I, therefore, fully concur with the findings of the I.A. and hold Sri M.P. Gupta guilty of articles of charge mentioned in the chargesheet and proved as observed as above.
The acts for which Sri M.P. Gupta has been held guilty constitute misconduct within the meaning of Regulation 3 (1) read with Regulation 24 of SBOE (Conduct) Regulation 1976 which invites imposition of appropriate punishment. Therefore, taking into consideration the gravity of the charge proved against him and amount of loss incurred by the Bank and all the aspects/ circumstances of the case I pass the following."
The appellate authority in dismissing the appeal observed as follows:-
"That contention of the appellant that the penalty imposes is without any regulation is not tenable as I find that the penalty awarded is as provided under Reg.No.4 (g) of Syndicate Bank Officer Employees' (Discipline & Appeal) Regulations, 1976. The argument of the appellant that the Inquiring authority has erred and come to the conclusions without the assessment of the evidence as well as MW and DW does not hold water as I find from the inquiry proceedings and Inquring Authority's report that the Inquiring Authority's findings are based on documentary as well as oral evidence adduced during the inquiry and the conclusions arrived at by the Inquiry Authority is with the assessment of the evidence. The reference made by the appellant regarding the affidavit filed by Bank cannot be accepted as the fact remains that the signature appearing on the cheque passed by the appellant was forged which fact has been confirmed by the report of the Central Forensic Science Laboratory, the report New Delhi. The appellant's action of recording that there were no transactions when there were transactions in the account of the party for misleading the party indicates appellant connivance in preparing fraud cannot be ruled out. It has come on record that Shri Dibakar Basu was allowed to sign as "Pradip Roy" on the backside of the cheque and therefore, the contention of the appellant that the charge that he had failed to notice the discrepancy is not proved is far from truth. In this regard evidence such as MEX-1 adduced during the enquiry has gone on record unrebutted. The argument of the appellant that MW-1 had not identified MEX-1 to MEX-54 during the course of deposition does not hold water as I find from the proceedings of the inquiry that MW-1 had identified the said documents during the course of his deposition. The other contentions do not merit consideration as the same will in no way mitigate the charges -proved against the appellant. I observe that the inquiring authority's findings are based on evidence both oral as well as documentary adduced in the inquiry and notion any extraneous grounds. The appellant was provided all fair and reasonable opportunities to defend his case in the inquiry in consonance with principles of natural justice. The Disciplinary Authority has rightly held the appellant guilty of the charges proved and awarded the penalty in question which commensurates with the gravity of the misconducts committed. The appellant has not brought out any valid grounds for interfering with the decision of the Disciplinary Authority. Therefore, I confirm the penalty of Dismissal from the service of the bank with immediate effect which shall ordinarily be a disqualification fro future employment awarded by the Disciplinary Authority vide his proceedings under reference and dismiss the instant appeal preferred by Shri M.P. Gupta."
Shri P.S. Baghel, learned counsel for the petitioner submits that the cheque was passed in due course. The statement of the Vigilance Officer in proof of the charges were not admissible on record. The petitioner had passed only the first cheque of Rs.4 lacs, out of the three alleged forged cheques. The variation in signature could not be identified with naked eyes. The three alleged forged cheques were passed by three different officers. If forgery was such, which was possible to be detected, any of the three officers could have noticed the same. He submits that the bank officers are required to act with greater prudence but are not equipped or required to detect clever forgeries. The statement given to the Vigilance Officer was under duress and could not be relied upon in the departmental enquiry. The responsibility of giving Manager's signature on the identify card is of the account holders, and not on the bank. The self chques are always passed in favour of the persons, who present them to the bank. The enquiry proceedings was initiated by refusal to provide entire document to the petitioner inspite of directions given by this Court. The bank has not filed list of documents and witnesses produced in the enquiry.
Shri P.S. Baghel submits that the suit filed by the bank against Shri Dibankar Basu, the petitioner and the company as defendant Nos.1, 2 and 3 in the Delhi High Court, the bank stated on the verification of Shri U.N. Srivastava, Chief Manager/ Constituted Attorney of the bank in paragraph 13 that signatures appearing on the cheques were of Mr. Ashok Rajgarhia and the bank had taken every care to make payments against the aforesaid cheques by tallying the signature of Shri Ashok Rajgarhia on the cheques and as such no negligence can be found on the part of the plaintiff bank as the cheques apparently appeared to be in order. Para 13 of the plaint of the suit annexed as Annexure No.13 is quoted as below:-
"That the plaintiff submits that the aforesaid cheque book was issued to defendant No.3 and the same ought to have been in power and possession of Mr. Ashok Rajgarhia, Managing Director of Defendant No.3 or some responsible officer of the defendant No.3 company. It is submitted that defendant No.3 company and Mr. Ashok Rajgarhia were negligent in keeping the aforesaid cheque-book in safe custody which resulted in blank cheques taken away by defendant No.1 and ultimately caused loss to defendant NO.3 company. The loss sufferred by defendant No.3 on account of the aforesaid forged cheques is due to gross negligence on the part of defendant No.3 company and as such the plaintiff cannot be held liable to reimburse the defendant No.3 company of the amount aforesaid and interest paid by the plaintiff bank to defendant No.3 company. It is further submitted that apparently the signatures appearing on the aforesaid cheques were of Mr. Ashok Rajgarhia and the bank had taken every care which making payments against the aforesaid cheques by tallying the signatures of Mr. Ashok Rajgarhia on the said cheques and as such no negligence can be found on the part of the plaintiff bank as the cheques apparently appeared to be in order."
Shri P.S. Baghel further submits that the bank has awarded different punishment to the persons, who are involved in the same set of charges, causing discrimination:-
1. M.P. Gupta dismissed from service
2. V.K. Paliwal minor punishment
2. Pankaj Bhatia minor punishment It is submitted by Shri P.S. Baghel that the procedure for imposing major penalties is given in Rule 6 of the Regulations of 1976. The disciplinary authority was required to give list of documents and list of evidence by whom article of charges are to be proved, copy of statement of witness and the evidence proving the delivery and article of charges under Regulation 6 (5) (iii) to (v). On the date fixed for enquiry under Sub Regulation 13 the oral and documentary evidence by which articles of charges are proposed to be proved, are required to be produced by or on behalf of the disciplinary authority. The witness shall be examined by the presenting officer and may be cross-examined by the employee.
Shri D.P. Bahadur, appearing for the bank has defended the impugned orders. He submits that entire procedure as detailed in Regulation 6 of the Regulation of 1976 was followed. The petitioner was an accomplice in fraud, in which the bank was cheated. He passed the cheque without taking proper care of tallying the signatures and allowed it to be encashed by person signing in a different name. All the documents were provided to the petitioner. The documents were proved by the Vigilance Officer. The petitioner was given an opportunity to produce the evidence and to cross-examine the witness and was also supplied with the enquiry report to submit the charges. The enquiry officer, the disciplinary authority and the appellate authority have considered the allegations and have rightly concluded on the basis of evidence that the petitioner was guilty of passing cheques without taking care to compare the signatures of the authorised signatories of the company and allowing the cheque to be encashed by person by signing in a different name on the back of the cheque. He also give false statement to the company to the transactions.
Shri D.P. Bahadur submits that the punishment to the different officers, who had passed the cheques were given on the basis of the evidence and the nature of misconduct. After detecting that fraud was played the bank had to recover the amount paid to the company. It was appropriate for the bank to take up the stand that it had taken all reasonable precaution before passing the cheques for decree to be obtained form the Court. He relies upon the supplementary counter affidavit in response to the order of the Court dated 31.1.2008 to file the supplementary counter affidavit giving list of documents and witnesses supplied to the petitioner during domestic enquiry and in which Shri M.L. Verma, Senior Manager (Law) Regional Office of the bank has stated that the petitioner was supplied the list of documents and witnesses by the management, photostat and certified copy of the documents on the basis of which the charges were leveled. The petitioner had verified the original document and was satisfied with it. If some documents were not supplied or shown to the petitioner and some of them were not demanded, he would not suffer any prejudice.
We have considered the submissions and carefully perused the pleadings and supplementary affidavit filed on record. Our findings on the arguments raised before us are as follows:-
1.The petitioner is alleged to have failed to discharge his duties with utmost honesty and integrity, in passing for payment of cheque dated 20.7.1994 of Rs.4 lacs purportedly drawn by the company holding the current account that signatures of the authorised signatory did not tally with the specimen signature of the bank. Two more cheques with same signatures, which are alleged not to tally with the specimen signatures were passed by two different officers on different dates namely Shri V.K. Paliwal and Shri Pankaj Bhatia of Rs.90,000/- dated 5.7.1994 and Rs.2 lacs on 1.8.1994. The disciplinary authority and the appellant authority have not considered as to how three officers of the bank on three different dates passed the cheques with same signatures, which according to the bank were forged and did not tally with the specimen signatures.
2.The allegations against the petitioner, Shri V.K. Paliwal and Shri Pankaj Bhatia were the same except the amount, but the bank decided to punish them with different punishments. Whereas the petitoner was dismissed from service; Shri V.K. Paliwal and Shri Pankaj Bhatia were punished with minor punishment by stoppage of increment (para 20 of the writ petition).
3.There was no evidence nor any finding was recorded that the petitioner and the other two officers as well as the officers, who had issued tokens on the three cheques and had given cash were in all in conspiracy to cheat the company. The allegations of fraud in connivance with Shri Dibankar Basu, and the gain, if any, to the petitioner and other officers was not established.
4.It is admitted in para 5 of the supplementary counter affidavit that copy of the Central Forensic Science Laboratory Report/ opinion dated 13.6.1995 was not given to the petitioner and has been heavily relied by the bank to prove the difference of signatures of the authorised signatory and the signatures appearing on the cheque. The failure to supply this crucial document and asking the petitioner to obtain it from the criminal case has resulted into gross miscarriage of justice. The enquiry officer was required to summon and prove the document before relying upon it to hold the petitioner guilty of negligence.
5.The entire enquiry proceedings were concluded within few hours, on a single day on 19.5.1998 in which it is alleged that all the documents were proved, by the only witness namely the Vigilance Officer. The conclusion of enquiry on single day on 19.5.1998 demonstrate that a reasonable opportunity was not given to the petitioner to defend himself.
6.On an application filed by the petitioner to provide list of documents, the copies of documents relied upon by the enquiry officer, charge sheet against Shri V.K. Paliwal and Shri Pankaj Bhatia, the report of the enquiry committee against these two officers and the final orders and punishment awarded to them, the bank has not filed the list of documents, documents relied upon and the chargesheet and punishment orders against other employees.
7.The bank has filed a suit for a decree of Rs.7,93,031/- with 20.25% interest per annum against Shri Dibankar Basu, the petitioner and the company through Shri Ashok Rajgarhia, the Managing Director. In para 13 of the plaint the bank has admitted that signatures appearing on the cheques were of Mr. Ashok Rajgarhia and that the bank had taken every care for making payments against the cheques by tallying the signatures of Mr. Ashok Rajgarhia on the cheques and thus no negligence can be found on the part of the bank as the cheques apparently appeared to be in order. In para 14 it is stated that the petitioner had connived with defendant No.1 and defendant No.3, and its officials, who were grossly negligent in keeping the cheque book in safe custody, which resulted in loss to them. In the cross examination of Shri U.N. Srivastava, Asstt. General Manager of the bank in Original Suit No.1707 of 1997 against Shri Dibankar Basu, the petitioner and the company in the High Court at Delhi on the affidavit filed by him, he had clearly stated in para 4: "4. I say that it was not possible to make out that the said cheques do not bear the signature of Shri Ashok Rajgarhia and as such said cheques were passed for payment and were paid to the bearer of the said cheques" (para 21 of the supplementary rejoinder affidavit of the petitioner). The statement establishes that the bank has taken inconsistent stands. On one hand the bank pleads connivance of its officers in unauthorized withdrawals with Shri Dibankar Basu, on the other hand it does not even plead carelessness on the part of the officers. In the affidavit of the authorised officer of the bank and cross examination the bank has taken third stand namely that it was not possible to make out that the cheques do not bear the signature of Shri Ashok Rajgarhia and as such they were passed for payment and were paid to the bearers of the said cheque.
8.The responsibility of safe keeping of the cheque books and to authorize the person to receive the cash of self cheques entirely rests upon the account holder and not the officer of the bank. In case of forgery, if it was not possible for three different officers of the bank to tally the signatures of Shri Ashok Rajgarhia from the specimen signatures given by him to the bank, it could not be said that the petitioner and other two officers of the bank were in collusion with Shri Dibankar Basu in getting the cheque secured and in making payment in cash.
9.It was not denied by the account holder that Shri Dibankar Basu was their Manger and used to collect the cash on their behalf on self cheques. If he has taken benefit as alleged of the loose cheques and presented them by forging signatures of Shri Ashok Rajgarhia and signing them differently, the bank officers cannot be said to be entirely liable unless there was evidence to show that they had entered into a conspiracy and had taken benefit of the amount drawn by him. There was no such evidence led on record to establish the allegations.
10.The petitioner was charged with negligence and consequently fraudulent withdrawal of the amount from the account of the company. The first information report lodged by the bank did not name the officers of the bank. In the report of the enquiry officer there is no finding based on any evidence to prove the charges of fraudulent withdrawal, which require proof of connivance with Shri Dibankar Basu. Neither any evidence was led nor any suggestion was given by Shri S.K. Paliwal appearing as MW-1 that the petitioner was in conspiracy with Shri Dibankar Basu or had gained in any manner from out of money withdrawn by him. The charge, if any, of negligence in passing the cheque on which signature of the authorised signatory did not tally with the specimen signatures was found to be proved. In the absence of any conspiracy or illegal and undue gain out of the alleged act, the bank could not have punished the petitioner with dismissal of service.
On the aforesaid findings, we are of the opinion that the allegations against the petitioner, alleged to constitute the Articles of Charge Nos.1 and 2, were not proved and that the conclusions drawn by the enquiry officer, disciplinary authority and the appellate authority were based on surmises and conjectures drawn from the insufficient material produced on record. The petitioner was also seriously prejudiced by non-supply of the Central Forensic Science Laboratory report, and by conclusion of proceedings within a few hours on a single day, when the enquiry was held. The Vigilance Officer appearing as MW-1 did not identify any document. He simply stated that documents marked as M.Ex1 to 54 were clubbed by him during investigation and he identifies the same. The report of the Central Forensic Science Laboratory was also not proved on record.
We are informed that the petitioner has been discharged in criminal case and that the bank is still pursuing the civil suit for a decree for recovery of the amount and in which in the affidavit filed on behalf of the bank and in the cross examination the constituted attorney of the bank has clearly stated that the bank officials were not at fault.
The third charge relating to false information given to the company of the transactions in their account is also not established in as much as the disciplinary authority did not consider the petitioner's reply that the statement of current account maintained on computer had reflected any transaction in the account in April and May, 1994. The reply given by the petitioner that manual accounts were not maintained and that balance in the current account verified from the computer screen did not show correct entry of Rs. 5,09,899/- on 30.5.1994; which was later reflected in the statement in June, 1994, was not considered by the disciplinary authority.
The writ petition is allowed. The impugned order dated 29.1.1999 passed by the respondent No.3 and 8th April, 1999 passed by the appellate authority are set aside. A writ of mandamus is issued to the respondents to reinstate the petitioner in service with all consequential benefits. The petitioner will be paid full wages for the period under suspension. Since he has not worked after his dismissal, he will be paid only half of the pay and allowance upto the date of reinstatement.
Dt.13.09.2010 SP/