Hon'ble Dinesh Gupta,J.
( Delivered by Hon'ble Rakesh Tiwari, J.) Heard learned counsel for the parties and perused the record.
This writ petition has been filed for quashing of the order dated 11.12.2000 ( Annexure-7 to the writ petition) passed by the General Manager (Development & Personnel Banking), State Bank of India, Lucknow, respondent no.2, dismissing the petitioner from service and the order dated 22.4.2001 ( Annexure-10 to the writ petition) passed by the Chief General Manager, State Bank of India, Lucknow, respondent no.1 rejecting the appeal filed against the order dated 11.12.2000 aforesaid.
The petitioner has also prayed for a writ of mandamus commanding the respondents to reinstate him on his post with all consequential benefits with continuity of service and arrears of salary etc. within a specified period fixed by the Court.
Brief facts of the case are that the petitioner was appointed on the post of clerk in the respondent bank on 18.10.1966. Thereafter, he was promoted to the post of Officer Grade-II on 1.6.74 and on the post of Officer Middle Management Grade-II on 1.8.1989. While he was working as Deputy Manager at Banaras Hindu University Branch of State Bank of India, an FIR was lodged against him in case crime no. 128 of 1994, under Section 419 and 420 IPC at P.S. Lanka, Varanasi. After completion of the investigation, chargesheet was submitted against the petitioner on 27.7.1994. After a lapse of 5 years, he was served with a notice dated 16th March, 1999 for holding a departmental enquiry under Rule 68 (2)(iii) of the State Bank Officers Service Rules annexing therewith the statement of charges levelled against him, which reads thus:-
" i) You opened S.B.A/c No. 36825 in the name of Shri Vishnu Narain Verma (Benami account) on 15th January, 1994 without depositing any amount either in cash or by cheque, and have withdrawn Rs. 1,00,400/- fraudulently on different dates.
ii) You withdrew Rs. 40,000/- on different dates from your personal Saving Bank Account No. 36247 without having sufficient means.
iii) While posted as Branch Manager at Annai Branch you got a cheque book No. A-346/373701 to 720 on 3rd September, 1991 issued in your name subsequent to the closure of the said S.B.A/c No. S-12 on 29th November, 1990 although the said account was opened without cheque book facility. From this cheque book, you put to use 13 cheques from 373708 to 720 in your S.B.A/c No. 36347 to BHU Branch and the remaining cheques nos. 373701 to 373007 remained in your possession."
Pursuant to the aforesaid notice dated 16th March, 1999 the petitioner was asked to submit reply to the said charges levelled against him. He submitted his reply thereto. The Enquiry Officer conducted a detailed enquiry in the matter and submitted his report dated 12th July, 2000 wherein all the three charges were found to be proved against him and he was asked to submit his reply/representation thereto failing which a final decision would be taken in the enquiry proceedings. The petitioner submitted a detailed representation thereto.
Thereafter, the Disciplinary Authority vide order dated 11th December, 2000 after considering the enquiry report as well as the reply filed by the petitioner passed an order of dismissal from service against him.The Disciplinary authority has also found that the bank has suffered a loss and therefore, the amount of gratuity payable to the petitioner has been forfeited to the extent of loss caused to the respondent bank.
Aggrieved by the aforesaid order dated 11.12.2000, the petitioner filed Civil Misc. Writ Petition No. 4751 of 2001 before this Court and has simultaneously filed an appeal before the appellate authority. The aforesaid writ petition no. 4751 of 2001 after hearing counsel for the parties was disposed directing the appellate authority to decide the appeal preferably within a period of two months from the date of production of a certified copy of the order. Pursuant thereto the petitioner filed a departmental appeal which too was dismissed vide order dated 27th April, 2001, hence the instant writ petition has been filed with the aforesaid prayer.
Learned counsel for the petitioner submits that no opportunity of hearing was afforded to the petitioner while passing the impugned order by which his services were terminated; that during the pendency of the writ petition he has been acquitted from the criminal case i.e. case crime no. 128 of 1994, under Sections 419 and 420 IPC, but has been punished in departmental proceeding which is in violation of the principle of natural justice; that the impugned order is a non-speaking and unreasoned order and has been passed in a mechanical manner and that the enquiry has not been held in accordance with the State Bank of India Officers Service Rules,1992; and that similar controversy has been decided by this Court in Civil Misc. Writ Petition No. 757(S/B) of 1999 in Narendra Kumar Pandey versus State Bank of India reported in Educational Services Cases (2011) (5) (All) (DB) (LB)-3282.
In support of his aforesaid contention learned counsel for the petitioner has placed reliance upon the aforesaid decision rendered in Narendra Kumar Pandey versus State Bank of India, (2011(5) ESC-3282 ( All) (DB) (LB).
In Narendra Kumar Pandey (supra) in paragraph nos. 65,69 and 71 of the judgment it has been held that official position was misused and irregularities were committed during the disciplinary enquiry. Documents required for inspection by the petitioner were not made available to him and the Enquiry Officer in these circumstances, passed exparte order on the ground that the Presenting Officer submitted a non-availability certificate in respect to documents required relating to the charge. It has further been held that no witness had been examined by the bank in support of the charge as such the departmental proceedings conducted against the delinquent employee were not found in accordance with the procedure prescribed under Section 43(1) of State Bank of India Officers Service Rules, 1992, particularly Rules 66(j) and 68(2) (IX) (a) which resulted in denial of opportunity of defence to the petitioner.
The Court in these circumstances, quashed the order impugned setting the respondents at liberty to hold disciplinary enquiry against the petitioner in the matter afresh. However, in the instant case, the petitioner was given full opportunity to defend himself and he was also permitted to examine the original documents on which the reliance has been placed by the bank. Therefore, the case of the petitioner is clearly distinguishable from the case of Narendra Kumar Pandey (supra).
Learned counsel for the respondents submits that the petitioner has challenged the aforesaid two impugned orders on frivolous grounds; that the contention of the learned counsel for the petitioner that while passing the aforesaid two orders impugned in the present writ petition there was violation of principles of natural justice is absolutely misconceived and untenable. According to him, this contention is incorrect as the petitioner was not only given full opportunity of hearing but was also permitted to examine the documents relied upon by the bank at the time of enquiry.
It is stated that as per the legal position decided by the Apex Court in innumerable cases, the Court while exercising the powers of judicial review would not interfere with the findings of facts arrived at in the departmental enquiry proceedings except in a case of malafide or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectively could have arrived at that finding. The Court cannot embark upon re-appreciating the evidence or weighing the same like the appellate authority.
He next submits that all the charges levelled against the petitioner have been found proved on the basis of ample oral and documentary evidence before the Enquiry Officer in the departmental proceedings; that in the final order of punishment, the authority has rightly concluded by passing order of dismissal of the petitioner and that there is no material placed by the petitioner to establish that in reaching such conclusion there is any perversity, hence the writ petition is liable to be dismissed.
It is lastly submitted by the learned counsel for the respondents that in view of the findings given by the Enquiry officer considering all the materials on record, the order of acquittal in the criminal case shall have no bearing or relevance. In this regard the Apex Court held that acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as standard of proof in both cases are totally different for this reason the criminal as well as the departmental enquiry proceedings can proceed simultaneously and independent of each other. It is stated that in a criminal case the prosecution has to prove the criminal case beyond all reasonable doubts whereas in the departmental proceedings the department has to prove only preponderance of probabilities. In the present case the respondent bank was able to prove its case.
In support of his aforesaid submissions, learned counsel for the respondents has placed reliance upon the case laws.
i) 2011 AIR SCW 2583, State Bank of Bikanre & Jaipur versus Nemi Chand Nalwaya;
ii) (2011) 9 SCC 94, Samar Bahadur Singh versus State of Uttar Pradesh and others; and
iii) 2010 AIR SCW 5447, General Manager, Punjab & Sind Bank & others versus Daya Singh.
Now, let us examine the case laws relied upon by the learned counsel for the respondents.
In the case of State Bank of Bikanre & Jaipur (supra) the Apex Court held that judicial interference in departmental enquiry was permissible only when finding recorded was based on no evidence or was perverse and that adequacy or reliability of evidence adduced or fact that other view was possible was not a ground for interference.
In paragraph 9 of the judgment it was held that acquittal of delinquent by criminal court had no effect on previously concluded domestic enquiry and punishment imposed by disciplinary authority.
In the decision of Samar Bahadur Singh (supra) relied upon by the learned counsel for the respondents also the effect of acquittal in criminal proceedings on departmental proceedings has been considered. In this case, it was held that acquittal in the criminal case has no bearing or relevance to the departmental proceedings as standard of proof in both cases is totally different. In a criminal proceeding prosecution has to prove its case beyond reasonable doubt whereas in departmental proceedings, department has to prove its case only on preponderance of probabilities.
Considering the question of proportionality/quantum of punishment the Court held that in the that case, it was proved in departmental proceedings on standard of preponderance of proved in departmental proceedings on standard of preponderance of probabilities that appellant Constable employed in PAC had remained unauthorizedly absent from duty and along with one of his friends had grabbed one bottle of foreign liquor forcibly from wine shop and also threatened the salesman, and thus was guilty of negligence , dereliction of duty and consuming liquor. In the circumstances, the Court held that the punishment of dismissal imposed calls for no interference since it was not disproportionate to offence alleged. Appellant belonged to a disciplinary force and was required to maintain discipline and to act in a befitting manner in public.
As regards the case of General Manager, Punjab & Sind Bank (supra) relied upon by the learned counsel for the respondents, the Apex Court was considering Regulation 24 of Punjab and Sind Bank Officers Employees (Conduct) Regulations (1984) for deciding the question of dismissal from service of a Branch Manager. The charge against him was of making unauthorized withdrawal of huge amounts in fictitious names. Documentary evidence in handwriting of delinquent established his role which was also supported by ledger entry entries from which it was clearly proved that he had misappropriated the money. In that case, no explanation was given by the delinquent employee. In the circumstances, no interference was made by the High Court with well reasoned order of Enquiry Officer by calling the enquiry as sketchy and perverse.
After hearing counsel for the parties and on perusal of record it would be convenient for appraisal of the facts to record the charges against the petitioner and consider the case of the respondents in the departmental enquiry.
Charge no.1 is as under:-
i) You opened S.B.A/c No. 36825 in the name of Shri Vishnu Narain Verma ( Benami account) on 15th January, 1994 without depositing any amount either in cash or by cheque, and have withdrawn Rs. 1,00,400/- fraudulently on different dates through under noted withdrawals.
Dates Amount 18.1.1994 Rs. 25,000/-
19.1.1994 Rs. 3,000/-
20.1.1994 Rs. 30,000/-
20.1.1994 Rs. 2,400/-
27.1.1994 Rs. 20,000/-
28.1.1994 Rs. 20,000/-
The case of the bank in the departmental enquiry on charge 2nd was that while balancing the clear cash at the BHU Branch a difference of Rs. 25,000/- was noticed. The matter was taken up with the concerned cashier who advised that payment was made to you. Thereafter, the delinquent withdraw a sum of Rs. 25,000/- from your current A/c on 13th May, 1994 and deposited the same denomination notes for credit to savings bank a/c no. 36825 without putting his full singatures on the related credit voucher and under the instructions from the Assistant General Manager, BHU Branch the amount was credited to sundry deposit a/c on the 13th May,1994.
The allegation on which charge no.2 is based is thus.
(ii) You withdraw a sum of Rs.40,000/- on different dates through the under noted withdrawal from your personal savings bank a/c no. 36247 without having sufficient balance.
Date Amount 13.11.1992 Rs.5,000/-
18.11.1992 Rs.5,000/-
2.12.1992 Rs.10,000/-
24.12.1992 Rs.10,000/-
29.12.1992 Rs.10,000/-
Charge No. 3 read thus:-
" (iii) While posted as Branch Manager at Annai Branch you got a cheque book No. A-346/373701 to 720 on 3rd September, 1991 issued in your name subsequent to the closure of the said S.B.A/c No. S-12 on 29th November, 1990 although the said account was opened without cheque book facility. From this cheque book, you put to use 13 cheques from 373708 to 720 in your S.B.A/c No. 36347 to BHU Branch and the remaining cheques nos. 373701 to 373007 remained in your possession."
In so far as this charge is concerned, the Enquiry Officer has specifically stated that the petitioner opened S.B.A/c No. 36825 in the name of Shri Vishnu Narain Verma (Benami account) on 15th January, 1994 without depositing any amount either in cash or by cheque, and has withdrawn Rs. 1,00,400/- fraudulently on different dates. The petitioner was given full opportunity of hearing and he failed to adduce any evidence in support of his defence.
As regards charge no.2 is concerned, it is clear from the enquiry report that the petitioner made withdrawal from S.B. a/c no. 36247 without keeping sufficient balance therein. To prove the said charge the respondent bank has produced all the relevant documents before the Enquiry Officer such as Cash Scroll (PEX-20/1 to 20/5). He has also found established that the payment of all the withdrawals had been made to the petitioner who withdrew the amounts without keeping sufficient balance, which is evident from the reconstructed statement of S.B.A/c No. 36247 (PEX 18/1 and 18/2) wherein a debit balance of Rs. 40,000/- has been shown on 13th January, 1993, the O.D. amount of the account was ultimately adjusted by debit to protested bills account is approved vide ZO letter no. ZO-SL/29/537 dated 6th January, 1998 (PEX 22/1 to 22/6).
The petitioner in this regard had pleaded that the original withdrawal and the ledger sheets were not produced in the proceedings but his defence has been found not tenable because of non-availability certificate of withdrawal and ledger sheet of S.B. A/c no. 36247 has already on record. The cash scroll and cash payment Register which are bank's documents have been perused by the petitioner as such the contention of the petitioner that he was not given any opportunity to peruse the documents has been found to be incorrect.
The third charge against the petitioner has also been found to be proved. It was revealed that while posted as Branch Manager at Annai Branch, the delinquent employee got a cheque book no. A-346/373701-720 in his S.B. A/c no. 36247 at BHU Branch, and the remaining cheque nos. 373701 to 373707 remained in your possession unauthorizedly.
The appellate authority vide its order dated 27th April, 2001 dismissed the appeal of the petitioner after considering the submissions made by him in his appeal stating that he had not contested charge no.2, which has been held proved on the basis of documents viz, cash scroll, cashier Payment Register etc. wherein the name of the petitioner has clearly been mentioned as the person making withdrawals from his S.B. Account No. 36247 and receiving the payment respectively. The appellate authority has also specifically observed that in respect of charge no.3 the petitioner has failed to explain his motives in issuing cheque book on 3rd September, 1991 in his closed S.B. Account on 29th November, 1990 at Annai Branch where he was posted as Branch Manager. The authority has recorded a finding that the charges levelled against the petitioner were grave and serious in nature clearly indicating the malafide on his part which have been held to be proved on the basis of relevant record regarding quantum of punishment as deemed commensurate to the gravity of charges proved in the enquiry.
In so far as the cases relied upon by the learned counsel for the respondents is concerned, it appears that so long as there is some evidence to support the conclusion arrived at by the departmental enquiry, the same has to be sustained and that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the Bank Officers like the petitioner because if this is not observed the confidence of the public depositors would be shaken.
We conclude that the petitioner was not only given full opportunity of hearing but was also permitted to examine the original documents. The charges which require to be proved were proved by the record of the bank itself i.e. ledger entries etc. as discussed earlier. We, therefore, do not find any illegality or infirmity in the impugned orders passed by the Disciplinary Authority and the Appellate Authority.
For all the reasons stated above, the writ petition is liable to be dismissed. The writ petition is accordingly, dismissed. No order as to costs.
Dated 13.3.2012 CPP/-