Delhi High Court
N.C. Chaturvedi vs Bank Of India And Ors. on 3 July, 2013
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2832/1998
% 3rd July, 2013
N.C. CHATURVEDI ......Petitioner
Through: Mr. Puneet Verma, Advocate with
Mr. Vikram Saini, Advocate.
VERSUS
BANK OF INDIA AND ORS. ...... Respondents
Through: Ms. Ratna D. Dhingra, Advocate
with Ms. Bhavna Dhami, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition filed under Article 226 of the Constitution of India prays for setting aside of the orders passed by the Departmental Authorities of the respondent no.1/employer/Bank of India whereby the petitioner has been imposed with the penalty of dismissal from service.
2. The charge against the petitioner was that the petitioner allowed an account of one Smt. Kiran Devi to be opened in the Connaught W.P.(C) No.2832/1998 Page 1 of 13 Circus branch where he was posted as a Clerk though he was not in-charge of opening of accounts. Petitioner is thereafter charged in taking the necessary documents for release of the amount of Rs.4 lacs lying in the account of the said Smt. Kiran Devi at the Karol Bagh branch of the respondent No.1-bank. Although to the knowledge of the petitioner there was a doubt about the identity of Smt. Kiran Devi and the Karol Bagh Branch of the respondent No.1-bank after having opened the account of Smt. Kiran Devi and crediting an amount of Rs.4 lacs by clearing of the cheque had put the said substantial amount into Sundry Deposit account, "unknown deposits". Petitioner is alleged to have personally got a pay order issued from the Karol Bagh Branch of Rs.4 lacs in the name of Smt. Kiran Devi which was credited to the saving bank account No.17629 of Smt. Kiran Devi in Connaught Circus Branch and thereafter the amounts were withdrawn in cash by Smt. Kiran Devi. In order to fully understand the charge against the petitioner, the facts as stated against the petitioner in the enquiry report are reproduced as under:-
"That on 08-09-93 you allowed one S./B account No. 17629 to be opened by a lady purported to be Smt. Kiran Devi, without any valid introduction and without knowing the antecedents of the said lady, even though you were not allotted the duties for opening of S/B account. You were well aware that when a person with similar name had approached the Bank's Karol Bagh branch, certain doubts were W.P.(C) No.2832/1998 Page 2 of 13 raised by the said branch about the identity of the person who had come to open the account and consequently the account was not opened by the said branch, yet you allowed the account to be opened without satisfying the branch about the genuineness of the account holder. In this pursuit you also filled in the paying-in-slip pertaining to the said account for ` 500/- with which the account was opened.
In order to further accommodate the said account holder, you went to the Bank's Karol Bagh Branch, personally, carrying a blank special Collection Schedule (S.C.S) No. 11242 from Con. Circus Branch so as to collect the amount of Rs.4.00,500/- from Karol Bagh Branch, which had been kept by them in Sundry Deposit account "Unknown Deposits". In this pursuit you had approached the chief Manager of Karol Bagh Branch and convinced him that the actual owner of the amount which had been credited in the Sundry Deposit account, was known to you and she was the true owner of the cheque. Moreover, you also persuaded him to issue a pay slip favouring Smt. Kiran Devi. In view of the assurance given by you, the officials at the Bank's Karol Bagh Branch prepared a pay order No. 009236 dated 08-9-93 in the name of Mrs. Kiran Devi for Rs.4,00,500/-. You personally collected the said pay order and presented the same alongwith the aforementioned S.C.S. which you had brought from Con. Circus Branch, after affixing the crossing stamp of Karol Bagh Branch and changing the name of the said crossing from Karol Bagh Branch to Con. Circus Branch on your own. Subsequently, you collected the relevant Credit Note pertaining to the S.C.S. No. 11242 for Rs.4,00,500/- unauhorisedly and after personally carrying it to the Con. Circus Branch you got it credited in the newly opened S/B Account No. 17629 on the same day i.e. 08-9-93.
You thus unduly accommodated an outsider, purported to be Smt. Kiran Dev, whose account was not even introduced properly, as you had failed to verify the signatures of the so called introducer from his specimen signatures, which were available on the records of the Bank's Karol Bagh Branch. Besides, despite knowing the fact that the Karol Bagh Branch had refused to open the S/B Account of Smt. Kiran Devi owing to her doubtful identity, though duly introduced by W.P.(C) No.2832/1998 Page 3 of 13 one Shri Ashwini Sharma, you preferred to open her account in your branch by taking the same person as introducer.
From the aforementioned credit of Rs.4,00,500/- in the said account you authorised a transfer of Rs.1,50,000/- in another BOI Star 92 account No. 172 of Smt. Kiran Devi, which was also opened on the same day i.e. 8-9-93. From the account opening form of the said newly opened BOI Star 92 account, it is evident that originally the outsider purported to be Smt. Kiran Devi had opened her account as wife of Sh. Amit Kumar and resident of Kihore Villa, Main Delhi Road, Gurgaon. However, subsequently, you without any valid reason, unauthorisedly tampered with the Bank's records and changed the husband's name of the account holder as well as residential address of the account holder in the account opening form of the aforementioned S/B account No. 17629 as well as the ledgers pertaining to the said S/B account and the BOI Star 92 account No.
172. Subsequently, the account opening form of the said S/B account No. 17629, in which unathorised tampering/erasing was done by you was found to be missing from the bank's record and only its photocopies are available. In this regard, there was not even a letter of request from the account holder to make any correction/alterations, in the said account opening form and the corresponding ledgers, which clearly establishes that you effected all the said tampering/erasing/alterations unauthorisedly, own your own without any reason and without informing the higher officials of the branch.
It was subsequently revealed that the said account was actually opened by some fictitious person who had encashed the amount thus credited in her account in the following manner, though the amount of Rs.4,00,000/- deposited in her account was actually credited on the basis of a cheque which did not belong to the account holder of the said S/B account No. 17629 and the BOI Star account No. 172.
Date Date of Amt. withdrawn
Withdrawal
08-09-1993 By Cash Rs.1,00,000/-
24-09-1993 By Cash Rs.1,20,000/-
12-10-1993 By Cash Rs. 30,000/-
29-10-1993 By Cash Rs.1,00,000/-
W.P.(C) No.2832/1998 Page 4 of 13
27-01-1994 By Cash Rs 50,000/-
19-08-1994 By Cash Rs. 3,651/-
(inclusive of accrued
interest)
It is also revealed from the bank's records that in order to help the said fictitious account holder to withdraw the amount fraudulently, you aided/helped her by not only filling the paying slips dt. 08-9-93 for Rs.500/- and Rs.4,00,500/- but also by filling cheque No. 1352 and 1351 dt. 08-9-93 through which Rs.1,00,000/- was withdrawn in cash and Rs.2,50,000/- was transferred to BOI Star 92 account respectively.
In this manner you have willfully aided/abetted a fraud to the tune of Rs.4,00,000/- and also reported to tampering with Bank's records.
3. In the enquiry proceedings, detailed oral and documentary evidence was led by both the parties. The management examined six witnesses and filed 44 documents whereas the petitioner/charged official examined three witnesses besides himself and filed 36 documents. The Enquiry Officer thereafter has drawn out a detailed report running into 38 pages (single spacing) holding the petitioner guilty of the charges. The detailed report discusses the various contentions as raised by the petitioner and gives findings and conclusions as to how the defence/stand of the petitioner is misconceived and unacceptable.
4. Before I go into the arguments urged before me on behalf of the petitioner, the scope of hearing in a case such as the present is required to be W.P.(C) No.2832/1998 Page 5 of 13 set out. A Court hearing a petition under Article 226 of the Constitution of India which challenges the orders passed by the Departmental Authorities does not sit as an Appellate Court and re-apprise the findings and conclusions arrived at by the Departmental Authorities. This Court can only interfere if the findings and conclusions of the Departmental Authorities are perverse. If there is no perversity and the conclusions arrived at by the Departmental Authorities are plausible and possible, this Court would not interfere with such findings and conclusions of the Departmental Authorities. Another ground on which Court interferes is if the findings are against law or the rules of the organization. The third reason for interference would be if the principles of natural justice are violated. Finally, the punishment imposed can be challenged on the ground of violation of Doctrine of Proportionality.
5. In the present case challenge is laid to the findings of the Departmental Authorities on the three of the four grounds i.e all grounds except ground of violation of law or rules of the organization.
6. Before me, counsel for the petitioner has vehemently argued aspects which are dealt with by me hereinafter:-
W.P.(C) No.2832/1998 Page 6 of 13
7. The Disciplinary Authority and Sh. A.K. Vij (who was an earlier Enquiry Officer who concluded part of the proceedings) were biased and therefore the orders of the Departmental Authorities should be set aside. Endeavour has been made to take me through the report of the Enquiry Officer as also the Disciplinary Authority to show the alleged bias. In my opinion, bias as alleged in the facts of the present case cannot in any manner help the petitioner because what has to be seen is whether the findings and conclusions of the Departmental Authorities are perverse or illegal. No illegality is alleged, and as stated below the reports of the Enquiry Officer, the Disciplinary Authority as also the Appellate Authority cannot in any manner be said to be perverse. Reports of the Enquiry Officer, order of the Disciplinary Authority and order of the Appellate Authority are lengthy/ detailed speaking orders running into many pages and they set out the reasons and conclusions leading to the imposition of punishment of dismissal from services of the petitioner. Once there cannot be found any fault with the findings and conclusions of the Departmental Authorities any alleged bias as is asserted by the petitioner cannot help for setting aside of the orders passed by the Departmental Authorities. Further, so far as Sh. A.K. Vij is concerned, admittedly he was only an earlier Enquiry Officer and W.P.(C) No.2832/1998 Page 7 of 13 he is not the Enquiry Officer who gave the report. I therefore fail to understand as to how the bias of an earlier Enquiry Officer who has not given the report, even if taken as true for the sake of arguments, can in any manner help the petitioner to show perversity in the enquiry report given by another Enquiry Officer. In the present case, for one reason or the other various Enquiry Officers were changed and the Enquiry Officer who finally gave the report was the fourth Enquiry Officer. It is like as if different Presiding Officers who hold judicial proceedings at different points of time but it is the last officer who delivers the judgment would really be relevant because it is his alleged bias which would be in issue and definitely not the bias of the earlier Presiding Officers. In any case, bias of an earlier Presiding Officer has necessarily to be reflected on the record and general and vague arguments cannot help the charged official to allege bias of an earlier Enquiry Officer who in any case did not give the enquiry report.
8. Therefore, the argument urged on behalf of the petitioner for setting aside the orders of the authorities on the ground of alleged bias is misconceived and rejected.
9. The second argument which was urged on behalf of the petitioner was of violation of principles of natural justice. Violation of W.P.(C) No.2832/1998 Page 8 of 13 principles of natural justice is alleged on the ground that the management should have given the duty list of the Connaught Circus branch of the relevant date 8.9.1993 which was required to prove that petitioner could not have opened the account in the name of Smt. Kiran Devi because it is alleged that he did not have the duty. Similar allegations were made against the management witness 6 (MW-6) who was the person who deposed with respect to opening of the account in the name of Smt. Kiran Devi at Karol Bagh branch and who in fact was the person who appears to have alerted the management. When the counsel for the petitioner was asked to show specific grounds in the writ petition as to which documents have not been supplied, no such ground could be shown to this Court. Being a factual ground unless the same was pleaded the respondent no.1 could not have shown by filing its reply the falsity of this ground now urged orally at the time of final hearing. Also, non-supply of documents in itself, and which argument is routinely raised in almost all cases, cannot help a charged official because it must be shown beyond doubt as to how non-supply of the documents has caused prejudice to the charged official. It has been held by the Supreme Court in the case of State Bank of Patiala and Ors. Vs. S.K. Sharma (1996) 3 SCC 364 that once a proper hearing is given then if W.P.(C) No.2832/1998 Page 9 of 13 violation is alleged only of a facet of natural justice such as non-supply of documents, it is necessary for a charged official to also show how the same prejudiced the charged official and consequently caused injustice. If there is no prejudice caused to the charged official and there is no injustice, the alleged ground of non-supply of the documents cannot in any manner assist the charged official. As already stated above, no grounds have been alleged with respect to which are the documents which were not supplied to the petitioner and what is the grave prejudice or injustice caused to the petitioner. This in itself is sufficient to reject the argument as urged on behalf of the petitioner.
Counsel for the petitioner thereafter drew the attention of this Court to the proceedings of the departmental enquiry on 23.4.1996 which showed that certain documents were not supplied to the petitioner. However, counsel for the respondent No.1 referred to page 393 of the paper book and which was the hearing on 2.5.1996 immediately after the hearing on 23.4.1996, and which showed that all the documents as asked for by the petitioner were supplied to the petitioner. That being so there is no substance in the ground urged that the petitioner was not supplied any W.P.(C) No.2832/1998 Page 10 of 13 document or that he was in any manner prejudiced or any injustice had been caused. This argument is therefore rejected.
10. Thirdly, it was argued on behalf of the petitioner that the petitioner has been discriminated against because whereas he has been charged other officials have not been charged. In my opinion, grounds of discrimination as urged in the facts of the present case cannot affect the departmental proceedings because the petitioner has locus standi only so far as he is concerned as to whether he is or is not guilty. It is the petitioner/charged official who has to show as to how the Departmental Authorities have passed orders which would be legally unsustainable. I do not think as to how petitioner can take up this ground of alleged discrimination. In fact, on a query pointed out to the counsel for the petitioner counsel for the petitioner had no option but to concede that in fact no ground whatsoever of the alleged discrimination is urged in the writ petition. Once no ground is pleaded there does not arise any basis to argue the same because unless the factual ground is pleaded and sufficient facts are set out, respondent no.1 would have no opportunity to effectively rebut and meet the same. This argument urged on behalf of the petitioner of alleged discrimination is also therefore rejected.
W.P.(C) No.2832/1998 Page 11 of 13
11. Finally and fourthly it was urged that the petitioner has been given a disproportionate penalty of removal from service. No doubt, the Doctrine of Proportionality is now well established in service jurisprudence, however, the Doctrine of Proportionality for its application requires that the punishment imposed has to be so grossly disproportionate that judicial conscience of the Court is shocked. It be noted that the plea of Doctrine of Proportionality is raised after accepting as correct the findings and conclusions of the Departmental Authorities. Once the findings and conclusions of Departmental Authorities in a case such as the present are accepted and the petitioner is found to be guilty of grave financial irregularities in getting an account opened when it was not in the scope of his duties, personally going to another branch and getting issued a pay order of an amount of `4 lacs, thereafter personally carrying the pay order back to the Connaught Circus branch and getting it credited to an account of a person whose identity was doubted, and thereafter allowing the cash to be withdrawn from the account; surely are infractions of duties which are extremely important while performing duties in a bank which deals in public moneys. Once trust is lost in a case such as the present I am of the opinion that it cannot be said that punishment of dismissal from service of the W.P.(C) No.2832/1998 Page 12 of 13 petitioner is so shockingly disproportionate so that this Court should interfere with the same on the ground of violation of Doctrine of Proportionality. This argument therefore urged on behalf of the petitioner is also rejected.
12. In view of the above, there is no merit in the petition, which is accordingly dismissed, leaving the parties to bear their own costs.
JULY 03, 2013 VALMIKI J. MEHTA, J.
ib/Ne
W.P.(C) No.2832/1998 Page 13 of 13