Andhra HC (Pre-Telangana)
M.N. Prasad vs Board Of Directors Of Rayalaseema ... on 7 October, 1994
Equivalent citations: 1994(3)ALT441, (1995)IILLJ131AP
ORDER S.R. Nayak, J.
1. This writ petition is by a dismissed delinquent bank employee. The petition is directed against the order of the first Respondent-Board of Directors of Rayalaseema Grameena Bank, Cuddapah, dated November 23, 1988 confirming the order of the second Respondent-Chairman, Rayalaseema Grameena Bank, Cuddapah dated April 22, 1988 dismissing the petitioner from the post of senior clerk.
2. The Petitioner was appointed as junior clerk in the first respondent bank at Cuddapah on March 15, 1980. On February 10, 1982 while the petitioner was working at Deepaguntla branch of the respondent-bank, he was deputed to Gajulapalli Branch to work there for a period of four days when the cashier working in that branch went on leave. The Manager of Gajulapalli Branch on February 12, 1982 handed over a cash of Rs. 20,000/- to the petitioner with instructions to remit the same in the current account of the bank in the Nandyal Branch of Syndicate Bank. It is the case of the petitioner that he deposited the said sum of Rs. 20,000/- on February 12, 1982 itself in Nandyal Branch of Syndicate Bank and brought the counterfoil and handed over the same to the Manager. After the cashier of Gajulapalli Branch returned from leave, the petitioner was asked to report at Deepaguntla branch and accordingly he reported at Deepaguntla branch on February 14, 1982. Thereafterwards the petitioner was transferred to Giddalur Branch in March, 1983 and he joined there. When the petitioner was working at Giddalur Branch as Junior Clerk he was promoted as senior clerk and put on probation. On October 12, 1983 the petitioner was kept under suspension in contemplation of a departmental enquiry and on November 18, 1983 the respondent No. 2 issued a charge memo to the petitioner alleging that on February 12, 1982 when the petitioner was working as Junior-clerk-cum-cashier at Gajulapalli branch on deputation an amount of Rs. 20,000/- comprising the denominations of 110 number of one hundred rupee currency notes; hundred number of fifty rupee currency notes and 400 number of ten rupee currency notes was required to be remitted to the credit of the Current Account No. 1479 of the Gajulapalli branch at Syndicate Bank, Nandyal branch through the petitioner, after duly authorising the petitioner for that purpose. It is further alleged that the petitioner after carrying Rs. 20,000/- he credited only Rs. 16,000/- to the branch' s current account and submitted a forged counter foil to the Manager of the bank as if he had credited Rs. 20,000/-. It is further alleged that the petitioner pocketed Rs. 4,000/- of the Bank's money and used the same for his personal purposes. The petitioner was charged with committing acts of misconduct under Regulation 30(1) of Rayalaseema Grameena Bank Staff Service Regulations, 1980, shortly referred to as 'Regulations'. The petitioner was given seven days time to file his explanation if any.
3. The petitioner submitted his explanation on March 5, 1984. The petitioner denied the charge levelled against him and asserted that as directed by the Branch Manager at Gajulapalli branch he took the custody of Rs. 20,000/-, prepared credit slip at Gajulpalli itself and left Gajulapalli by 10 a.m. on February 12, 1982 by private taxi and reached Nandyal by about 11 a.m. and presented cash of Rs. 20,000/- along with pay-in-slip at the counter and collected the counter-foil within fifteen minutes. He maintained that the sum of money credited was correctly acknowledged as Rs. 20,000/- both in words and figures in the counter-foil. He also maintained that the counter-foil issued to him was bearing the "cash received" stamp and also signatures of the officers. It is stated that he returned to the Bank, handed over the counterfoil to the Bank Manager by name Sri K. Srihari Prasad and the Manager perused the same and took it. At this stage it is relevant to note that in the explanation of the petitioner dated March 5, 1984 he contended that the so called counter-foil now available on record is not the one that he had prepared and handed over to the Branch Manager on February 12, 1982. He maintained that the counter-foil which he handed over to the Manager on February 12, 1982 was in his hand writing. He pointed out that the counter- foil now available on record bears corrections of the amount and that is not in his hand writing.
4. The respondent-disciplinary authority, not being satisfied with the explanation of the petitioner, proceeded to hold departmental enquiry against the petitioner. They appointed an enquiry officer to hold a departmental enquiry. The Enquiry Officer held an enquiry. During the course of enquiry disciplinary authority marked 19 documents and produced 3 witnesses whereas the petitioner marked one document. The enquiry officer after appreciation of evidence let in before him came to the conclusion that the petitioner misappropriated the bank's money to the extent of Rs. 4,000/- and held him guilty of the charge levelled against him.
5. The disciplinary authority after receipt of the enquiry report on February 19, 1988 issued second show-cause notice to the petitioner and the petitioner made his representation on March 16, 1988. The disciplinary authority after hearing the petitioner passed the order on April 22, 1988 imposing the penalty of dismissal on the petitioner. The petitioner being aggrieved by the order of the disciplinary authority dated April 22, 1988, preferred an appeal to the first respondent Board of Directors and the same was dismissed on November 23, 1988.
6. The petitioner being aggrieved by the order of the disciplinary authority and that of the appellate authority has filed the writ petition. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent-Bank.
7. Mr. G. Suryanarayana Murthy, the learned Counsel for the petitioner, contended that the charge levelled against the petitioner was sought to be proved by two documents, namely, the credit slip marked as MEX-8 and the counterfoil marked as MEX-3 and therefore the charge framed against the petitioner should stand or fall to the ground only on the basis of these two documents. He maintained that the two documents are not proved to bring home the guilt of the petitioner. He elaborated that if these two documents are eschewed, there is absolutely no other evidence to prove the charge and in that view of the matter there is absolutely no evidence to support the conclusion. Consequently, he submitted that the impugned order passed by the disciplinary authority is based on 'no evidence'. Secondly, the learned Counsel contended that the appeal preferred by the petitioner to the first respondent-Board of Directors is summarily rejected without application of mind and without assigning any reasons. The action of the appellate authority smacks of arbitrariness and non-application of mind and it is violative of Regulation 31(2) of the Regulations. On the other hand the learned Counsel appearing for the respondents would support the decisions taken by the disciplinary authority and the appellate authority and submit that the finding recorded by the enquiring authority, disciplinary authority and the appellate authority are based on evidence. The learned Counsel would highlight that in reviewing the impugned dismissal order, this Court can only see whether the disciplinary authority conducted an enquiry in conformity with the Regulations and principles of natural justice and whether there is some evidence to support the findings. He would further submit that it is not permissible for this Court to go into the question of adequacy or inadequacy of the evidence or proportionality of the punishment imposed on the delinquent official.
8. As rightly pointed out by Sri G. Suryanarana Murthy, the learned Counsel for the petitioner, it is true that the charge levelled against the petitioner should either stand or fall depending upon whether MEX-3 and MEX-8 are proved or not. It is the consistent case of the petitioner in his reply to the show cause notice, written argument submitted to the enquiry officer, reply to the second show cause notice and appeal memo submitted to the first respondent appellate authority that MEX-3 and MEX-8 are concocted documents and they are not the same which he submitted to the Bank on February 12, 1982 and to the Manager of Gajulapalli Branch. Therefore the disciplinary authority as well as the appellate authority in the first place, should have satisfied themselves that MEX-3 is the same counter-foil which was handed over to the Manager of Gajulapalli Branch by the petitioner on February 12, 1982 and MEX-8 is the same credit slip which was submitted to the cashier of the Nandlyal branch of Syndicate Bank by the petitioner on February 12, 1982. There is absolutely no acceptable evidence to prove this fact. The reasons given by the enquiring authority as well as the disciplinary authority to hold the petitioner guilty of the charge, in my considered opinion, are totally perverse and based on conjectures. However, the learned counsel for the respondents pointed out that in the course of the cross-examination of the Management witness. M.W. 3 at page 20 of the original file the petitioner himself confirmed that the credit slip and the counterfoil produced in the enquiry are true and correct. Therefore, there cannot be any doubt about the genuineness of these two material documents and if these two documents are taken to be genuine, there is other supporting materials and evidence on record to show that the petitioner is guilty of the charge. This argument of the learned Counsel for the respondents is not acceptable to the Court. It is quite curious and unusual that after the petitioner cross-examined the Management witness M.W. 3, the enquiry officer at the bottom of evidence of M.W.3 has made a note to the following effect on page 20 of the Original file:
The counter foil was given to charge-sheeted employee for verification. After careful examination of the Credit slip and the counter foil and matching the same with each other charge-sheeted employee confirmed that the credit slip and the counter-foil pertains to each other and they are not different."
9. In the first place, the procedure adopted by the enquiring authority is quite objectionable. It is true that the technical rules of evidence are not strictly applicable to domestic/departmental enquiries, but any procedure that may be adopted by the enquiring officer should be in conformity with the principles of natural justice and fair play. The petitioner was not being examined or cross-examined when this note was made by the enquiry officer. After the conclusion of the cross-examination of the Management witness M.W. 3 by the petitioner, it was totally improper for the enquiry officer to confront the petitioner with the two documents, without there being any request from the petitioner. Therefore the procedure adopted by the enquiry officer in that regard should be disapproved. Nevertheless, even taking what is stated in the aforementioned note as the correct version, that itself will in no way help the disciplinary authority to bring home the charge. According to the note, the petitioner is stated to have confirmed that the credit slip and the counter-foil pertains to each other and they are not different. To say that counter-foil (MEX-3) and credit slip (MEX-8) pertains to each other and they are not different is quite different from saying that MEX-3 and MEX-8 are the same which the petitioner handed over to the Manager of Gajulapalli branch of the respondent-bank and to the cashier of the Syndicate Bank, Nandyal branch on February 12, 1982. Further the learned Counsel for the respondent Bank pointed out certain discrepancies in the stand taken by the petitioner. The Court need not refer to those very trivial and minor discrepancies, Even the learned Counsel for the respondents quite fairly submitted that the charge should essentially ground on the acceptability of the material documents produced as MEX-3 and MEX-8. Since the Court is satisfied that the disciplinary authority has utterly failed to prove that MEX-3 and MEX-8 are the same which were handed over to the Branch Manager of Gajulapalli Branch and the cashier of the Syndicate Bank on February 12, 1982 by the petitioner, this writ petition is entitled to succeed on that ground.
10. This writ petition is also entitled to be allowed on another ground. Sri G. Suryanarayana Murthy, the learned Counsel for the petitioner, submitted that the order made by the appellate authority on November 23, 1988 suffers from errors apparent on its face inasmuch as it has failed to apply its mind and give reasons for its conclusion. He also submitted that the appellate authority under Regulation 31(2) is required to examine whether the findings of the disciplinary authority are justified and whether the penalty imposed is adequate and such an exercise was not done by the appellate authority. In support of his submission the learned Counsel placed reliance on the decision of the Supreme Court in the case of Ram Chander v. Union of India and Ors. (1986-II-LLJ-334). On the other hand, the learned Counsel for the respondents placed reliance on the decision of the Constitution Bench of the Supreme Court in the case of S.N. Mukerjee v. Union of India and would contend that if the appellate or revisional authority, if it affirms an order made by the original authority, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. Since the first respondent appellate authority has confirmed the order made by the second respondent disciplinary authority, the first respondent need not give separate reasons. The defence of the learned Counsel for the respondents to uphold the appellate order is not tenable and the decision on which he placed reliance is of no help to him. The ratio of the said decision is not applicable to the facts of this case. The said ratio is applicable only in a case where the contentions raised on questions of facts as well as that of law are one and the same both before the original authority and the appellate authority. In the present case I find from the records that they are not one and the same before the second respondent- disciplinary authority and the first respondent appellate authority. Regulation 31 of the Regulations reads thus:
"31. (1) An officer or employee shall have a right of appeal against any order passed by an authority which injuriously affects his interest.
(2) The appeal shall be preferred to the appellate authority mentioned in Regulation 32 within 30 days of the date of service of the order appealed against the appellate authority shall consider whether the findings of the disciplinary authority are justified and whether the penalty imposed is adequate and pass suitable orders as early as possible."
In the instant case the petitioner preferred an appeal to the Board of Directors. As per sub-regulation (2) of Regulation 31, the first respondent Board of Directors were required to consider whether the findings of the disciplinary authority are justified and whether the penalty imposed is adequate and pass suitable order as early as possible. In the memorandum of appeal presented to the first respondent, the petitioner had raised several contentions touching both facts and law and he attacked the correctness of the findings recorded by the disciplinary authority and the enquiry officer. Appeal is not an empty formality. The appellate authority is required to consider all legal contentions raised before it both on facts and law. It is not that the petitioner had raised the same contentions before the appellate authority which he had raised before the disciplinary authority. In addition to the contentions raised by him before the disciplinary authority, he had also raised certain other contentions assailing the correctness of the findings recorded by the disciplinary authority. Therefore the disciplinary authority is bound to consider those contentions questioning the validity of the findings recorded by the disciplinary authority and give its decision supported by reasons. Added to this, sub-regulation (2) of Regulation 31 confers a discretion on the appellate authority to examine whether the penalty imposed by the disciplinary authority is adequate and then pass suitable orders. It is settled position in law that wherever a discretion is conferred on an authority, such discretion should be brought to bear on facts of each and every case. The order made by the first respondent-appellate authority is quite cryptic; it does not disclose whether it considered the merits of the contentions and whether it was satisfied with the penalty imposed on the delinquent official. The duty to give reasons is a safeguard against arbitrariness and compulsion of disclosure of reasons guarantees consideration by the authority and minimises chances of unconscious infiltration of personal bias or unfairness in the conclusion. The first respondent appellate authority should know that the order made by it is amenable to judicial review under Article 226 of the Constitution. In that view of the matter also it is required to give reasons. Otherwise, the reviewing court will not be knowing how the appellate authority reached its decision and whether the decision is based on considerations which are germane to the lawful exercise of the discretionary power.
11. Before concluding, an argument advanced by the learned Counsel for the respondents should be mentioned and met with. There cannot be any second opinion that this Court, while reviewing under Article 226 of the Constitution an order made by the disciplinary authority, cannot exercise appellate jurisdiction and it will interfere only when the disciplinary authority has committed manifest errors of law or the finding recorded by it is without any basis but will not interfere in the assessment of evidence. It is true that this Court will not review the evidence and arrive at a different finding. If two conclusions are possible from the same set of facts and evidence on record, and the disciplinary authority has arrived at one conclusion, that conclusion cannot be substituted by another conclusion in exercise of its review power. It is also true that this Court cannot consider whether the evidence is sufficient or adequate and it will only see that an enquiry was held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated and whether there is some acceptable evidence accepted by the competent authority which can support the conclusion that delinquent workman is guilty of the charge. Therefore the only question in the present case is whether there was any 'acceptable evidence' before the respondents, before they chose to impose the punishment of dismissal. As pointed out supra if MEX-3 and MEX-8 are eschewed there is absolutely no other materials to bring home the guilt of the petitioner and consequently the impugned orders are based on 'no evidence*. It is well settled that this Court under Article 226 of the Constitution can interfere with an order of disciplinary authority provided such an order is based on 'no evidence'.
12. In the result and for the reasons stated above, I allow this writ petition and quash the impugned orders passed by the second respondent-disciplinary authority and the first respondent- appellate authority. No costs. It is made clear that the petitioner will be entitled to all the benefits and advantage-pecuniary or otherwise - which flow from the quashing of the impugned orders.