Andhra HC (Pre-Telangana)
Chief General Manager-Cum-Displinary ... vs S. Yesudas on 7 October, 1998
Equivalent citations: 1998(6)ALD269, 1998(6)ALT1
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi, Ramesh Madhav Bapat
ORDER P. Venkatarama Reddi, J.
1. The respondent- writ petitioner who was working in the State Bank of India as Cash Officer (Junior Manager, Scale-I, Supervisory Cadre) was removed from service by an order dated 27-4-1989 passed by the first appellant herein. Appeal to the second appellant and the review filed before the third appellant were rejected by respective speaking orders. Thereafter, the writ petition was filed in April, 1991 questioning the order of removal as confirmed by the appellate and reviewing authorities. The learned single Judge allowed the Writ Petition on three grounds: 1) Charge No.(b) is not established, the finding of the Enquiry Officer being perverse; 2) Allegations in charge No.(c) do not constitute mis-conduct under the Disciplinary Rules governing the Award Staff; and 3) Charges (a) and (d) "are incompetent and without jurisdiction" in the sense that the procedure obtaining under the SBI Supervisory Staff Service Rules was applied whereas the procedure governing the Award Staff should have been followed while conducting the enquiry. The learned Judge left it open to the Management to take action under the provisions of the Sastri Award/Bipartite settlement if they so choose. The relevant portion of the charge-sheet and the charges framed against the respondent-writ petitioner are as follows:
"(a) You had misused your position and failed to properly account for the amount received from one of the borrowers and temporarily retained the same with you and unauthorisedly in flagrant violation of the laid down procedure.
(b) You had absented yourself from duty and with a view to establish your presence at the Branch, tampered the branch Books and perpetrated serious irregularities.
(c) You had resorted to outside borrowings and placed yourself under pecuniary obligation to a person having dealings with the bank and also caused negotiation of a SB withdrawal form drawn on your account without sufficient balance therein. Further you had obtained a loan from another Bank, without the knowledge of your controlling Authority.
(d) You had fraudulently misappropriated the amounts received from the Bank's constituents for credit of their Recurring Deposit Accounts and temporarily retained/ utilised such monies for your personal use. To camouflage your fraudulent acts, you had tampered with the Bank's records and resorted to improper methods."
2. The respondent was appointed as Clerk-cum-Cashier in the year 1977 and he was promoted to the Officer's rank with effect from 20-8-1996. Charge No.(b) is in respect of alleged misconduct committed by him while he was working as Junior Officer (Cash) at Bijinepalli branch. The rest of the charges relate to the acts committed by him while he was working at Banaganapalle and other branches as Clerk-cum-Cashier which post comes under the category of 'workman' governed by the Award of National Industrial Tribunal constituted for Bank Disputes.
3. First, we will take up the question whether the conclusion of the learned Judge vis-a-vis charges (a) and (d) is justified. Charges (a) and (d) relate to "temporary misappropriation" of the amounts received from the Bank customers and tampering with Bank records to cover up the misconduct. In this context, the learned Judge after referring to the distinguishing features in the Disciplinary Rules and Procedure under the Award/ Settlement and the Officers' Service Regulations observed as follows:
"From the above, it can be seen that there is marked difference between the procedure prescribed for disciplinary action under the Bipartite Settlements and one under the Officer Service Regulations."
4. The learned single Judge following the decision of the Madras High Court in M.N. Pavithran v. Central Bank of India, 1985 (1) LLJ 26 and distinguishing the decision of this Court in R. Marakayya v. Tribunal for Disciplinary Proceedings, AIR 1962 AP 303, concluded as follows:
"But at the same time the procedure as contemplated under the Bipartite Settlement, has to be followed as the valuable rights which were available to the Award Staff cannot be taken away in the guise of applicability of the service Regulations. Thus, I hold that initiation of disciplinary proceedings under the provisions of Service Regulations in respect of the misconducts committed while the petitioner was an Award Staff, are wholly illegal and without jurisdiction"
5. The main differences noticed by our learned brother between the two sets of rules are these :
1. Under the Bipartite Settlement, an employee found guilty of gross misconduct apart from being dismissed, may be warned or censured or an adverse remark be made against him or be visited with the imposition of fine or stoppage of increments or his misconduct can be condoned and merely discharged. Such lenient punishment is not provided for under the Officers' Service Rules.
2. There is no differentiation between the gross misconduct and minor misconduct in the Officers' Service Regulations as is the case with the provisions made in the Bipartite Settlement.
3. The Bank can permit an employee governed by the Settlement to engage a lawyer. There is no such provision in the Regulations governing the Officers.
4. Under the Bipartite Settlement, an employee charged is entitled to have hearing as regards the nature of proposed punishment which is not available to an Officer.
6. With respect, we are unable to share with the view of the learned Judge. The conclusion of the learned Judge on this aspect proceeds on the premise that the Award Staff, that is to say, the workmen, have some sort of vested right to have their charges framed and enquiry made in accordance with the disciplinary regulations governing the workmen irrespective of their elevation in status as Officer/Supervisory Staff. The logical consequence of accepting this view is that if a misconduct had been committed by an employee who rose to the rank of an Officer, while he was a workman, he should shed his character as Officer and assume the position of a workman till the domestic enquiry is over. We find no legal support in any provision of law much less there is any rationale for the view taken by the learned single Judge. It is true that if the charged employee concerned did not secure promotion and remain as an Award Staff, he could have got the advantage of being proceeded with under the disciplinary provisions contained in the Award /Settlement which are in some respects more favourable to the employee. But, that does not mean that even after the employee rises to the level of an Officer, the same Old Regulations governing the workmen should continue to apply to him in respect of the past misconducts. Such disadvantage, if any, is a necessary concomitant of his service career. An employee cannot possibly contend that as he progresses in his service career, he would only have the advantages and privileges, but disown all that which is not beneficial to him. That apart, the Award of the National Industrial Tribunal on which reliance is placed by the respondent makes it very clear in Chapter XVI that the categories of persons to whom the Award should be made applicable must be workmen. This is what is stated in para 16.7 which reads as under:
"16.7: Item 14 itself postulates that the categories of persons to whom this award should be applicable must be workmen. Having regard to the amended definition of the expression 'workman' given in Section 2 (s) of the Industrial Disputes Act, 1947", the question as regards the persons who fall within the definition has been considered by me earlier. This award will apply only to employees who are workmen within the meaning of the said definition so long as they remain workmen. It will not apply to any employee who is not a workman. The question that remains to be considered is whether this award should apply to all categories of persons who are workmen or to some of them, and if so, to which of them".
7. Thus, the categorical statement in the Award sets at rest any doubt in regard to applicability of SBI (Supervisory Staff) Service Rules to the respondent - writ petitioner in regard to initiation and conclusion of the disciplinary enquiry. The Division Bench decision of this Court in the case of R. Marakayya (supra) also lends support to our view Repelling more or less similar argument, the learned Judges observed that the status of the Officer on the date of reference and enquiry following is the deciding factor and not what the delinquent Officer was at the time of alleged mis-conduct.
8. The learned Counsel for the appellants sought to contend that in any case, no prejudice has been caused to the respondent by reason of application of Officers' Service Rules. Meeting the point of the learned Counsel for the respondent that a lighter punishment could have been imposed if the disciplinary rules governing the workmen were applied, the learned Counsel for the appellants submits that having regard to the nature of the charges (a) and (d), there would not have been a lesser punishment whether he was a workman or an Officer. We do not consider it necessary to deal with this argument turning on the question of prejudice in view of the conclusion already reached by us.
9. As regards the charge No.(c), we affirm the view taken by the learned single Judge that a misconduct for which an Officer is charged must answer the description of the misconduct as per the disciplinary rules governing the workman, if acts giving rise-to the charges were committed during the period when he was employed as a workman. Whether or not there was a misconduct on the part of the charged employee must necessarily be judged with reference to the point of time when he is alleged to have committed the misconduct. The learned single Judge may not be right in invoking the analogy of Article 20 of the Constitution. Yet, the ultimate conclusion reached by the learned Judge based on a decision in Pyarilal Sharma v. Managing Director, , cannot be faulted. Following observations of the Supreme Court have been quoted by the learned Judge: "It is a basic principle of natural justice that no one can be penalised on the ground of conduct which was not penal on the day it was committed." The learned single Judge observed that there is no allegation against the writ petitioner that he had contracted debts "to the extent considered by the Management as excessive", as laid down in the Regulations contained in the Award and he cannot therefore be held guilty of charge (c). We affirm the view held by the learned single Judge.
10. Then remains charge No.(b) which is ofcourse a serious charge insofar as it alleges tampering with the records to cover up his unauthorised absence on the relevant day i.e., 22-9-1986. The learned Judge held that the finding of the Management is perverse and therefore unsustainable. The imputations in support of the charge are to the effect that although the respondent did not attend to the work on 22-8-1986, in order to establish his presence on that day, he scored off the initials /signatures of the employee who attended to the cash transactions in the branch cash balance register and Vault Register and put his signatures/initials. The defence of the Charged Officer was that he attended the Bank on 22-9-1986 late and by that time, one Mr. Punishotam Reddy was already handling the cash and therefore, he did not take over the charge from him during the middle of the transactions and he took over the charge from him in the evening and that is why, he subscribed his signatures to all the relevant documents and registers. The respondent further stated in his explanation that he initialled the cash balance book and the Vault Register under erroneous impression that he being the fullfledged Cash Officer, he should sign though the actual person incharge already signed. The learned Judge commented that the Enquiry Officer merely relied on evidence of PW6 (who was working as Accountant at that time) who stated that the petitioner reported for duty on 23-9-1986. But, the direct witness to sustain the charge, namely, the Branch Manager Mr. Lakshmana Swamy and Cashier Mr.Purushotham Reddy were not examined though they were cited as witnesses. Secondly, the learned Judge commented that on perusal of relevant records, it cannot be held conclusively that the writ petitioner was responsible for scoring off the signatures on one of the documents. The learned Judge observed that "it is highly improbable that the petitioner had scored out it with a mala fide intention". Another comment made by the learned single Judge was that if the writ petitioner was really absent on 22-9-1986 and yet he signed the records, next day, the Branch Manager should have issued a memo to him as to how he signed the relevant registers inspite of his absence on 22-9-1986. It is further commented that no evidence is forthcoming on the question as to how the absence of the petitioner was treated by the Management. The learned single Judge ultimately expressed the view that "the writ petitioner did discharge the duties as Cash Officer" and "at the most, the petitioner could be blamed for attending the bank late".
11. The Enquiry Officer mainly relied on the evidence of PW6 and also on the fact that the charged Officer was seen at a different branch (Banaganapalle branch) at 10.45 a.m. on 22-9-1986 as per the evidence on record. The Enquiry Officer noted the statement of PW6 that when he left the Office at about 5.00 p.m. the charged Officer was not present and that while closing the cash, the running balance was initialled by him and Sri Purushotham Reddy and he did not know when the initial was put by the charged Officer. Referring to Vault Register (P.Ex.70) PW6 clarified that he kept the Register in the Safe at the Branch on 22-9-1986 and at the close of business, the initials of the Charged Officer were not there in P.Ex.70 As regards Ex.P Ex.69 - Cash Balance Register, PW6 explained that it was signed by the charged Officer and the signature of Sri Purshoiham Reddy (Incharge Cash Officer) was scored off. The Enquiry Officer also noted the fact that not a single voucher was released by the charged Officer on 22-9-1986. He also noted the fact that signatures of the charged Officer did not find place on any of the cash vouchers. The Enquiry Officer further commented that the request to grant out-station permission to go to Banaganapalle and to take over keys on 22-9-1986 at the close of the business on that day "does not confer the privilege of Cash Officer being absent and away from his work on 22-9-1986". The only point which remains unexplained in the evidence let in on behalf of the Management is that according to the entries in D. Ex. 11 (extracts from Key Register), the Cash Officer's keys were received by the Charged Officer on 22-9-1986. The said Register was in the custody of the Accountant i.e., PW 6. As to how in the Key Register (D. Ex.11, dated 22-9-1986), the Charged Officer's signature was found, was not specifically explained by PW6. However, the Enquiry Officer was not inclined to 'place reliance' on the date mentioned in D. Ex. 11 in view of other overwhelming evidence to support the case of Management.
12. It is not in dispute and it cannot be disputed that the High Court exercising jurisdiction under Article 226 cannot go into the adequacy or sufficiency of evidence, nor does it embark upon appreciation of evidence. Though the learned Judge did recognise the limitations under Article 226, proceeded to find fault with the manner in which the evidence was appreciated or inferences were drawn. We have also gone through the record. The overwriting on the signature of the officiating Cash Officer were placed over and above the spot on which the Cash Officer incharge put his initials by erasing the same. In the other document (P. Ex.69), the initial of the petitioner is found in addition to the officiating Cash Officer. The explanation of the respondent was that he was under the impression that he alone should sign or both should sign. The learned Judge observed that there could not have been mala fide intention in doing so. The observation of the learned single Judge practically amounts to re-appraisal of evidence and drawing inference on pure questions of fact. Whether or not findings reached by the Enquiry Officer relying on the evidence of PW6 again depends on the question of adequacy of sufficiency of the evidence. The fact that there was no proper explanation for the signature of the charged Officer being found in the Key Register (D. Ex. 11) under the dated 22-9-1986, may go in his favour. But, it is not conclusive. Though the Enquiry Officer has not stated it in so many terms by commenting that he was inclined to place reliance on the entries in the Key Register, it only suggests that he felt that the possibility of ante-dating was not ruled out. Be that as it may, even if this one factor goes in favour of the petitioner, the other reasons given by the Enquiry Officer on the basis of the evidence on record cannot be said to be irrelevant or non-existent. We reiterate the well-known principle that it is not open to the High Court in exercise of jurisdiction under Article 226 to take its own view on the findings of fact. We do not think that this is a case of no evidence or perverse evidence. We are therefore of the view that the learned Judge erred in holding that charge No.(b) is not established.
13. Each one of the charges (a), (b) and (d) is a serious charge and the punishment of dismissal imposed on the respondent cannot be said to be unconscionable or disproportionate to the gravity of the misconduct. We are of the view that the learned single Judge ought to have dismissed the Writ Petition. We accordingly, allow the appeal and dismiss the Writ Petition.