Kerala High Court
Sunil.C vs Union Bank Of India
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
FRIDAY, THE 8TH DAY OF JUNE 2012/18TH JYAISHTA 1934
WP(C).No. 29436 of 2009 (Y)
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PETITIONER(S):
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SUNIL.C,
AGED 41 YEARS, S/O. LATE MOHAN KUMAR.C.V,
THETTALIL HOUSE, KIZHAKKUMURIL
KAVUM BAVOM, THIRUVALLA.
CLERK/CASHIER (UNDER DISMISSAL),
UNION BANK OF INDIA.
BY ADVS.SRI.SAJITH KUMAR V.
SRI.RINOY JOSEPH
RESPONDENT(S):
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1. UNION BANK OF INDIA,
REPRESENTED BY ITS MANAGING DIRECTOR,
CENTRAL OFFICE, UNION BANK BHAVAN,
239 VIDHAN BHAVAN, MARGH, MUMBAI-21.
2. THE GENERAL MANAGER (PERSONAL),
UNION BANK OF INDIA, CENTRAL OFFICE,
UNION BANK BHAVAN, 239, VIDHAN BHAVAN MARGH,
MUMBAI-21.
3. DEPUTY GENERAL MANAGER,
UNION BANK OF INDIA, REGIONAL OFFICE, TRIVANDRUM.
4. THE CHIEF MANAGER,
UNION BANK OF INDIA,
REGIONAL OFFICE, CHENGANNUR.
BY ADV. SRI.A.S.P.KURUP, SC, UBI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
WP(C).No. 29436 of 2009 (Y)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE CHARGE SHEET BY ORDER O.NRO:E;HRMD:3393/06 DATED
31.08.2006 ISSUED ON BEHALF OF THE 4TH RESPONDENT.
EXT.P2: COPY OF THE LETTER IN NO.ROT:PER:3445 DATED 15.12.2006
ISSUED BY THE ASSISTANT GENERAL MANAGER, UNION BANK OF
INDIA.
EXT.P3: COPY OF THE ORDER NO.NRO:E:HRMD:121/07 DATED 7.01.2007
ISSUED ON BEHALF OF THE 4TH RESPONDENT.
EXT.P4: COPY OF THE SUPPLEMENTARY CHARGE SHEET IN ORDER
NO.NRO:E:HRMD:1414/07 DATED 15.02.2007 ISSUED ON BEHALF OF
THE 4TH RESPONDENT.
EXT.P5: COPY OF THE ENQUIRY REPORT DATED 30.06.2006 ISSUED BY THE
ENQUIRY OFFICER ON BEHALF OF THE 1ST RESPONDENT.
EXT.P6: COPY OF THE ORDER NO.NRO:E:HRMD:3453:07 DATED 08.09.2007
ISSUED BY THE CHIEF MANAGER/DISCIPLINARY AUTHORITY UNION
BANK OF INDIA.
EXT.P7: COPY OF THE ORDER NO.NRO:E:HRMD;3453:07 DATED 08.09.2007
ISSUED ON BEHALF OF THE 4TH RESPONDENT.
EXT.P8: COPY OF THE APPEAL MEMORANDUM DATED 02.10.2007 SUBMITTED BY
THE PETITIONER BEFORE THE APPELLATE AUTHORITY.
EXT.P9: COPY OF THE REMINDER DATED 19.01.2009 SUBMITTED BY THE
PETITIONER BEFORE THE APPELLATE AUTHORITY.
EXT.P10: COPY OF THE PROCEEDINGS BEFORE THE APPELLANT AUTHORITY DATED
08.09.2007.
EXT.P11: COPY OF THE REMINDER DATED 01.08.2009 SUBMITTED BY THE
PETITIONER BEFORE THE APPELLATE AUTHORITY.
EXT.P12: COPY OF THE ORDER NO.CO:IRD:3688/09 DATED 25.07.2009 ISSUED
ON BEHALF OF THE 2ND RESPONDENT.
RESPONDENT'S EXHIBITS - NIL
//TRUE COPY//
P.A TO JUDGE
DG
S. SIRI JAGAN, J.
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W.P.(C)No.29436 of 2009
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Dated this the 8th day of June, 2012
J U D G M E N T
While working as an employee of the Union Bank of India at Chengannur branch, disciplinary proceedings were initiated against the petitioner for certain acts of misconduct. Since the reply to the show cause notices issued to the petitioner were not satisfactory, the Bank directed a disciplinary enquiry into the allegations of misconduct. An Enquiry Officer was appointed. The enquiry was conducted. The petitioner participated in the enquiry. Ultimately by Ext.P5 enquiry report, the Enquiry Officer found the petitioner guilty of certain acts of misconduct. Based on the said enquiry report, a show cause notice was issued to the petitioner directing him to show cause why the punishments proposed therein for each misconduct should not be imposed on the petitioner separately, which included dismissal without notice as well. After considering the W.P.(C)No.29436 of 2009 -2- representations submitted by the petitioner, by Ext.P7 order punishments were imposed on the petitioner including dismissal without notice. The petitioner filed an appeal against that order before the appellate authority, who dismissed the appeal by Ext.P12 order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs:
"i. to issue a writ of certiorari or other appropriate writ order or direction quashing Exhibit P5, Exhibit P7 and Exhibit P12.
ii. issue a writ of mandamus or other appropriate writ, order of direction commanding the respondents to reinstate the petitioner back into the service with all consequential benefit including arrears of pay."
2. The contention of the petitioner is that the finding of guilt is not supported by evidence adduced in the enquiry. He also submits that the punishment of dismissal imposed on the petitioner is not proportionate to the gravity of the misconduct committed by the petitioner. The petitioner relies on the following decisions of the Hon'ble Supreme Court:
i. Bhagat Ram v. State of Himachal Pradesh [1983- LAWS(SC)-1-28] W.P.(C)No.29436 of 2009 -3- ii. Kailash Nath Gupta v. Enquiry Officer, (R.K. Rai), Allahabad Bank [2003-LAWS(SC)-3-51] iii. Ganesh Santa Ram Sirur v. State Bank of India [2004- LAWS(SC)-11-78]
3. A counter affidavit has been filed by the respondents. They would contend that as is clear from Ext.P5 enquiry report, there was sufficient evidence in the enquiry to find the petitioner guilty of the misconducts which were found against the petitioner. It is also submitted that the petitioner was found guilty of forging the signature of a superior officer to prepare a demand draft, which is one of the worst misconducts an employee of a bank can commit for which nothing short of dismissal is the appropriate punishment.
4. I have considered the rival contentions in detail.
5. At the outset, I note that the petitioner has no complaint regarding the conduct of the enquiry as such with regard to principles of natural justice. He also do not challenge the procedure adopted by the bank in conducting W.P.(C)No.29436 of 2009 -4- the enquiry proceedings and imposing punishment. His only contention is that he is not guilty of the misconducts alleged against him and there is no sufficient evidence to prove the same. His further contention is that even assuming that the petitioner is guilty of any misconduct, the punishment of dismissal is disproportionate to the gravity of the misconduct.
6. Essentially there are two charges against the petitioner. First is that, on a particular day, when the other staff had gone for lunch, the petitioner took a demand draft leaf, prepared a D.D. on the same in his own handwriting, without a voucher, for an amount of Rs.4,950/-, favouring one Mr. N.P. Narayana Panicker, drawn on Thiruvalla branch, forging the signature of Mrs. Sushma, the Assistant Manger of the Branch, and writing the name as Mrs. Sushma, Assistant Manager below the signature forged by him and put the demand draft in his pocket. When enquired about the same, he tore off the D.D leaf into pieces and threw the same away. The second charge is that, the W.P.(C)No.29436 of 2009 -5- petitioner remained unauthorizedly absent since 30.09.2005 and he has not cared to report to the Medical Officer for undergoing medical examination despite specific directions. He reported for medical examination only on 11.01.2006 and the bank's Medical Officer, after medically examining the petitioner certified that the petitioner is a severe alcoholic and also observed that he may be fit provided he is not using alcohol which is difficult to achieve. It has been alleged that he had been censured earlier for his unauthorized absence also. In order to appreciate the contentions of the parties, I think it would be advantageous to quote the relevant portion of Ext.P5 enquiry report. The same reads thus:
"EVIDENCE BROUGHT ON RECORD Allegation 01:
That, Shri Sunil took a DD leaf and in his hand writing prepared DD Sr AA13215 without a voucher for an amount of Rs.4950/- favouring one Mr. N.P. Narayana Panicker drawn on Thiruvalla Branch, thereby forging the signature of Mrs. Sushama, Asst. Manager and put the DD in his pocket. When seen and enquired by others, he tore the DD leaf into pieces and threw away.
Evaluation Of Evidence:W.P.(C)No.29436 of 2009 -6-
The first Management Witness was Shri. V.S. Krishna Das, Chief Manager, Chengannur Branch (MW-1), that from MEX I is the letter written by him to R.O. regarding the incident happened on 04.12.2006. Shri. Sunil was attending SB as well as Bills dept., during lunch break Shri. Sunil was in the Banking Hall and our Sub Staff Shri. N.R. Thampi noticed a DD leaf was prepared and pocketed. So, he reported the matter to the Officer in Charge Smt. K.S. Sushama. She immediately verified the DD block and convinced that a DD leaf no.955505 is missing. Immediately Shri. Joy, Armed Guard and Shri. N.R. Thampi tried to retrieve the DD from Shri. Sunil's pocket. The DD was torn into pieces and thrown in to the Waste Basket by Shri. Sunil. The pieces were collected and reconstructed as per MEX 2, which was in the handwriting of CSE. MEX3 is the Account Opening form of Smt. K.S. Sushma, SB acct. no.104. where the specimen signature of Smt. Sushma was written and admitted. This signature is entirely different from what is seen in the DD. It was a DD prepared by CSE for Rs. 4,950 drawn on our Thiruvalla Branch. The matter was reported to R.O. for suitable action Shri. Sunil is very irregular in attending office without giving any leave letter or intimation, even though, MW1 advised him to be punctual, he used to agree to his advise but he did not practice. Moreover, the CSE has been punished with Censure in Sept, 2004. Doctor after examining as per MEX 07 remarked that Shri. Sunil is physically fit and heavily addicted to alcohol. The defence in cross examination of MW1 has brought the procedure relating to normal procedure of paying DD. The Management Representative in his summations has stated that the argument of defence that the CSE entered the data and deleted without saving by using ESC key is not correct. The MR further countered by saying that MW1 deposed the CSE prepared the DD in his handwriting and forged the signature of Smt. Sushma as per deposition of MW1. The CSE in his written submissions drawn to the aspect of a stranger coming to the branch on 04.12.2006 at about 01.55 p.m. and requested for a DD pay in slip. The Customer prepared in the DD pay in slip with beneficiary's name as Shri. N.P. Narayana Panicker and the drawee branch as Thiruvalla. Then, it was handed over to him to fill up the exchange rate of the DD. The CSE verified the exchange rate column in the Core Banking system and filled in the column with Rs.61/-. After the Customer moved towards the cash counter, the CSE prepared the DD for Rs.4,950/-. Then the Customer came back saying that the rate is too high and he shall handover the cash by himself to the person concerned. As there was no paper weight, the CSE had kept the DD after cancelling in his pocket instead of stapling it in DD block duly pinned. The defence W.P.(C)No.29436 of 2009 -7- quoted that the CSE is not aware who Sri. Narayana Panicker is,as there are no. of such names in that part of Kerala which is common. The second Management Witness (MW2) Smt.K.Sushama, who is presently working as Asst. Manager, Chengannur Branch after 2 pm, while she was in dining hall during lunch time Shri. N.R.Thampi informed that Shri.Sunil was writing DD in her table. After coming back she verified her table and found that one DD leaf was missing. She asked Shri. Sunil one DD leaf is missing and he denied. Afterwards the DD was found in his pocket and within no time he destroyed the DD into small pieces and the signature is not hers. The hand writing on the DD is that of Shri.Sunil as per MW2. In almost all documents, especially in DD, she deposed in cross examination, that she would cancel it without written request, but inform the party. All the cancelled DDs are kept in the file or with the voucher, as per testimony, MW3 who is working as Peon Cum Hamal has informed that MEX 13 was given to Shri.T.S.B.Pillai Chief Manager who has come to investigate in the matter. In cross examination he has confirmed that Cancelled DDs are kept pinned in the DD block itself. MW4 in his examination in chief has informed that he saw the CSE keeping the DD in his pocket and confirmed to the effect that MEX 14 was given by him. In cross examination testified that no Customer was present in customer lounge. He informed that he has not assembled the exhibit no.02. MW5 who has conducted enquiry in to the happenings on 04.12.2006 has testified from MEX 15 that his verification with the chief Manager and staff of Chengannur Branch has revealed that the CSE has taken the DD from the DD block and prepared DD by putting his signature of Smt.K. Sushama Asst. Manager of the Branch. When, Smt. K.Sushama on the information of S/S Thampi and Joy asked CSE, he chose to tear it and threw it on the floor. Due to timely intervention of the sub staff the fraud was averted. In cross examination, MW5 testified that he has not informed the date of his visit in the exhibit MEX 15. He did not remember which portion of torn DD is missing. MR in his written submissions argued that the CSE prepared the DD, in his own handwriting, during the lunch hour, when concerned staff were taking the lunch, forged the signature of the Officer on the DD leaf, and pocketed the same. The above act of CSE is with malafide intention only as he had not given back the DD leaf intact and tried to destroy the evidence. The defence in their written arguments highlighted that CSE has kept the cancelled DD in his pocket as there was no paper weight available in order to obtain the permission of MW2 and pin it in the DD bundle as per the practice prevalent in the branch. MW3 who is a sub staff promotee belonged to rival union and W.P.(C)No.29436 of 2009 -8- MW3 jumped on the CSE to snatch away the DD from his pocket. The reflexes of CSE were so weak after scooter accident and a 'wiper' bite. Three persons over came him and in the confusion over physical mishandling the DD was torn to pieces and his pocket was also torn. Further, the CSE added that knowing fully well the DDs were to be issued only after scrutiny no employee will venture to defraud the Bank. The CSE also mentioned that the report of MW 5 was a fabricated one. MEX 14 is also not a handwritten letter of MW4 and it was also not signed by him.
Allegation 02 :
That, Shri Sunil remained unauthorizedly absent since 30.09.2005 and he has not cared to report to the medical officer for undergoing medical examination several weeks. He reported for medical examination only on 11.01.2006 and the Bank's medical officer, after medically examining Shri Sunil certified that Shri Sunil is a severe alcoholic and also observed that " Mr. Sunil may be fit provided not using alcohol but very difficult.
He had been censured earlier for his unauthorized absence.
Evaluation of Evidence:
MW-1 said that Shri. Sunil is very irregular in attending office without giving any leave letter or intimation, even though, he was advised to be punctual, he used to agree, but he did not practice. As per MEX 4 is a letter written by the then Branch Manager reporting unauthorized absence of Shri. Sunil during 2003-2004. Shri. Sunil has exhausted all leave to his credit, including the leave availed for 440 days as Sick Leave and unauthorizedly absent on several occasions as per the Exhibit. MEX5 is a letter issued by the Branch asking Shri. Sunil to report for medical examination. MEX 6 is a letter of Branch asking Shri. Sunil to report to R.O. MW5 has also testified that from the record the CSE was a habitual absentee. MEX7 is the medical certificate of Banks Doctor. MEX8 is a Branch letter to RO reporting loss of pay leave availed by Shri. Sunil. MEX9 is a letter from the Branch reporting to RO regarding leave availed by Shri. Sunil. MEX 10 is a letter to R.O. regarding further leave availed by Sri. Sunil. MEX 11 is the Leave Record showing from 13.09.2004 upto date. The Doctor's remarks in MEX 7, the medical report, MW-1 said that the doctor certified that Shri. Sunil is physically fit and heavily addicted to alcohol. Regarding W.P.(C)No.29436 of 2009 -9- the punishments imposed on Shri. Sunil in connection with his absence, MW-1 and MW2 said a Minor Penalty of CENSURE was imposed on him in Sept' 2004. The defence in written arguments mentioned that major accident, 'Wiper' Bite during ayurveda treatment for alcoholism, sad demise of his Grand Mother after prolonged illness and the rituals thereafter, prompted him to be absent from the Bank. Now he pleads that he is reformed and he will work new zeal and enthusiasm.
EVALUATION OF EVIDENCE AND FINDINGS :
I have gone through the testimony of witnesses, documents, written arguments submitted by both the parties before me.
On marshalling the above evidence, it is emerged that the CSE on 04.12.2006, when most of the staff at Chengannur Branch have gone for lunch, Shri. Sunil, the CSE took a DD leaf printed with no: 955505 MEX 02 from the DD Block and prepared a DD and put Sr. No. as AA13215 in his own hand writing without a voucher for an amount of Rs. 4,950.00, favouring one Shri. N.P. Narayana Panicker drawn on our Thiruvalla Branch, with the signature of Smt. Sushma, (MW2) Assistant Manager of the Branch, and writing the name as MW2 below the signature signed as MW2. MW1 and MW5 have testified from MEX 01,02,03 and 15 to this effect. The contention of CSE is that on 04.12.2006, he was working in SB dept. and at about 01.55.P.M a stranger came to him and requested for a DD pay on slip. The Customer himself filled in the slip with the name of the beneficiary as Shri.Narayana Panicker with drawee branch as Thiruvalla. Then the person handed over the slip to the CSE for incorporating the exchange rate as the DD was for Rs.
4,950/- I have analysed the pleas of the CSE and if I agree upto this point that the CSE has tried to assist the Customer. Here, I am not taking into account the name of Shri. Narayana Panicker as it could not be properly established, whether he had come to the branch at that point of time, as MW4 who is armed guard has not seen any person at that branch, then. The CSE putforths his submissions as that the customer had moved to the cash counter and he prepared the DD for him. Later, the CSE says that the customer knowing that the amount of commission as Rs. 61 is on higher side and he destroyed the slip. Even if I accept this argument one aspect is lingering in my mind is that how did the signature of the Asst. Manager was in lunch room having her lunch with others at that crucial juncture. The testimony of MW2 and circumstances wherein MW3 and MW4 who were witness to the happenings point to that fact that there was no person was seen in the branch, at W.P.(C)No.29436 of 2009 -10- that time as per deposition of MW4. Thereafter writing, the CSE put the DD in his pocket. One of Staff Shri. N.R. Thampi (MW3) noticed his acts and informed the entire episode of CSE to MW2, Asst. Manager of the Branch. Shri. Joy, (MW4) Armed Guard of the Branch has also noticed the acts of CSE in putting the impugned DD in his pocket at that point of time. Though, the defence tried to divert the issue claiming that MW3 belonging to the rival union and he has no banking knowledge is only assumption on the part of CSE. The fact remained that it does not require any banking experience on the part of MW3, when CSE was attempting to do a strange act. Even if it is agreed that MW3 belonged to rival union, how MW4 has vouched to the statement of MW3. On cursory perusal of MEX2,3 and 12 it indicates stark difference in the strokes in the signature appearing there on. Besides, MW2 in her testimony has categorically denied about her signature on the impugned MEX 2, and confirmed that it was that of CSE. It was not countered by defence with concrete evidence at any point of time. The defence only argued that the features as cited by MW2 in cross examination are not depicted in MEX 02 cannot be accepted as the crux of the issue is the genuinity of the impugned exhibit MEX 02 itself. The theory adopted by CSE in his written arguments about the fabricated story also cannot be accepted as it is only an after thought. As per evidence adduced, it is established that on return from lunch MW2 enquired to the CSE regarding missing DD leaf and found it in his pocket. On further enquiry the CSE tore the DD leaf into pieces and threw it away. The testimony supported by the exhibits amply testified that MW3 and 4 were witnesses to the whole incident along with MW2. Further pleas of defence that the CSE who was weak, when compared to others in the branch and over powered him resulting in destroying of the exhibit MEX 2 is not a acceptable proposition. Thus, the torn pieces were rearranged and it was found that the CSE took away DD Leaf from the block, prepared without voucher and appended the signature of MW2, Assistant Manager of the Branch, which is proved without an iota of doubt.
With regard to the allegation of absence, I find that the exhibits MEX 4 to 11 with testimony of MW1 clearly showed that the CSE is addicted to alcohol and his absence was due to this reason. The CSE himself confirmed in his written arguments that he was under ayurveda treatment for alcoholism and other calamities in the family made him to remain absent for such prolonged period. Thus, the allegation is proved. In the circumstances, I hold the CSE guilty of the following W.P.(C)No.29436 of 2009 -11- Charges which are proved or otherwise:
Gross Misconducts :
1) Habitual absence without leave balance. Proved
2) Remaining unauthorizedly absent without intimation continuously for a period exceeding 30 days. Proved
3) Doing acts prejudicial to the interest of the Bank Proved
4) Wilful disobedience of the lawful and reasonable orders of the Management. Not proved
5) Wilful damage to the property of the Bank. Not proved Minor Misconducts :
6) Breach of any rule of business of the Bank instruction for
running of any department. Proved
7) Absence without leave. Proved
8) Unpunctual and irregular attendance. Not Proved
I therefore place the above findings, enquiry
proceedings, Exhibits of Prosecution and Defence as also written arguments of both the parties for your taking necessary action."
7. It must be remembered that in the matter of challenge against an enquiry report, the jurisdiction of this Court is very limited. It is settled law that sufficiency of evidence in a domestic enquiry is not a matter which this Court can consider under Article 226 of the Constitution of India. If there is some evidence, which would prompt a W.P.(C)No.29436 of 2009 -12- reasonable mind to arrive at the conclusion of guilt that would be sufficient for the purpose, is the law laid down by various decisions. Further, for interfering with the findings of fact in a domestic enquiry, this Court has to essentially enter a finding that the findings of the Enquiry Officer are demonstrably perverse. It does not require much interpretation of the enquiry report to come to the conclusion that there was sufficient evidence before the Enquiry Officer to prove that the petitioner had taken out a Demand Draft leaf and prepared a demand draft forging the signature of the Assistant Manager and when the same was found out, he tore off the D.D, which was recovered and reconstructed. That charge alone is more than sufficient to impose on the employee of a bank, the punishment of dismissal from service. The fact that the petitioner is suffering a severe case of alcoholism is also very much in evidence. Considering these aspects, I do not think that this Court will be justified in interfering with the punishment of dismissal imposed on the petitioner. The decisions relied W.P.(C)No.29436 of 2009 -13- upon by the petitioner is not of any help to the petitioner to enable this Court to come to a different conclusion. In the above circumstances, this writ petition is dismissed.
Sd/-
S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/