Andhra Pradesh High Court - Amravati
Dakamuri Nethaji Arjun Kumar, S/O. ... vs Central Bank Of India, on 15 June, 2022
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.18682 of 2014
ORDER :
This petition is filed under Article 226 of the Constitution of India for the following relief:-
"to issue a Writ Order or Directions more particularly one in the nature of Writ of Mandamus by declaring the impugned proceedings No RO/COIM/DA/DRM/2014-15/195 dated 5.6.2014 issued by the 3rd Respondent and the consequential proceedings No.RO:HRD:2014-15:188, dated 12.6.2014 issued by the 2nd Respondent communicating the proceedings No.ROCOIMDA201415/195 dated 05.06.2014 and set aside the same as bad, illegal, arbitrary, unconstitutional and violative of Article 14 and 16 of the Constitution of India and pass any such other or further orders......."
2. The case of the petitioner is that he was appointed in the respondent bank as Clerk in the year 1989 and was promoted as Assistant Manager in the year 1999 and was further promoted as Scale-II Manager in the year 2012. While the petitioner was functioning as Scale-II Manager at Bangalore he was suspended vide proceedings dated 2.11.2012 on the ground that certain allegations concerning with his tenure at Governorpet Branch, Vijayawada took place. Basing on the complaint of the Senior Manager, a criminal case was registered against the petitioner and two others under Sections 409 and 420 IPC.
While the matter stood thus, the 3rd respondent framed six charges against the petitioner. The petitioner submitted his explanation on 3.10.2013. During the course of enquiry, 2 realizing that unwanted issues have been trusted upon the petitioner the issues/facets of allegations have been deleted vide proceedings dated 26.12.2013. The enquiry officer without considering the explanation and without properly appreciating the evidence on record held charges 1, 2, 4 and 5 as proved and held the 6th charge as not proved and the Disciplinary Authority deleted charge No.3. The Enquiry Officer furnished his report to the petitioner calling for his observations/explanation to the enquiry report, for which the petitioner submitted his representation dated 3.4.2014. the 3rd respondent i.e., the Disciplinary Authority imposed punishments vide proceedings No.RO/COIM/DA/DRM/2014- 15/195, dated 5.6.2014 and was communicated to the petitioner by the 2nd respondent vide proceedings No.RO/HRD/2014-15/188, dated 12.6.2014. It is necessary to note that out of four charges proved, for three charges i.e., Charge Nos.1, 2 and 5 punishment of reduction of basic pay by two stages for two years with cumulative effect was inflicted on the petitioner and there was no problem with regard to Charge No.3 & 6 in as much as they are either deleted or not proved respectively. However, for Charge No.4, which led to punishment of compulsory retirement. The respondents have issued punishments charge wise and therefore, once the charge No.4 is held to be invalid and not out of any evidence the punishment of compulsory retirement has to be set aside. Challenging the same, the present writ petition is filed. 3
3. The counter affidavit is filed by the respondents No.1 to 3 denying all the allegations made in the petition and inter alia contended that the petitioner herein has alleged that it is common that in most of the banks there will be inoperative accounts and unclaimed term deposit accounts which will be known to the most of the staff members and the petitioner herein has admitted that he has transferred the amounts from inoperative accounts to suspense accounts and from there to third parties and they have withdrawn the amount. It clearly shows that the petitioner had mala fide intention and in connivance and in collusion with other staff members has transferred amounts from inoperative accounts. Admittedly the bank has taken Disciplinary Authority against the other staff members who involved in such transactions and punishment was awarded commensurate with the misconduct committed by them. Even though there was no charge of misappropriation against the petitioner he has committed misconduct by exceeding his authority and transferred the amount from the inoperative accounts to the bank suspense accounts and again credited the said amounts to some third party accounts without authorization, without powers and by misusing the password of other staff members. Therefore, the bank has produced required documents about the misconduct committed by the petitioner and proved the Charge No.4 also.
It is further stated that in the departmental enquiry strict rules of evidence is not applicable and when it could be established that the delinquent employee has committed 4 misconduct as per the documents produced, there is no need to examine the third parties whose names has been appeared in Charge Sheet. However, if the delinquent employee would like to examine such person he has every right to summon them and examine in the departmental enquiry but the management need not create the evidence for the purpose of defence as alleged by the petitioner herein. It is further stated that the bank has furnished the necessary and required evidences to prove their charges and not examining the other staff members in the enquiry against the petitioner is neither vital nor prejudice the defence of the petitioner. The enquiry authority on recording the evidences produced by the bank has substantiated his findings and hence the finding of the enquiry authority is neither perverse nor illegal. The Disciplinary authority has also given all opportunities to the petitioner and thoroughly considering the evidences and findings of the enquiry authority has come to the conclusion that the petitioner herein has committed the misconduct and hence awarded punishment adequately depending the gravity of misconduct. It is further stated that as per the Central Bank of India Officer Employee (Discipline and Appeal Regulations 1976 if the officer employee is aggrieved by the punishment awarded by the Disciplinary authority, he may prefer an appeal to the Appellate Authority within 45 days from the date of receipt of the orders of the disciplinary authority. But the petitioner without availing the statutory/departmental appeal 5 as per the Rules, has filed the writ petition, which is illegal. Hence, prayed to dismiss the writ petition.
4. Reply affidavit is filed by the petitioner while reiterating the averments made in the petition contended that the monies have been paid by other staff members on their authorization which shows they are guilty and whereas the petitioner did not give any authorization but unilaterally the bank withdrew the amounts from the accounts of the petitioner illegally. Though this is sought to be disputed the records would show that there is no authorization given by the petitioner unlike other staff members. It is the contention of the petitioner that the very fact that others have paid on their own volition and on their own authorization whereas the petitioner did not do so because he is innocent, is not denied. It is also necessary to state that the petitioner has been requesting for documents and the information right from the beginning and the same was denied all through. There is no answer forthcoming from the respondents as to why such a procedure was taken by them. It is also stated that it is for the disciplinary authority to prove the charges and not for the delinquent officer to disprove the charges. It is also the contention of the petitioner that no crucial witnesses were examined and for this, the contention of the respondent bank that it is for the petitioner to seek for presence of witnesses, failing to understand that it is not for the petitioner to prove his innocence but it is for the disciplinary authority to prove the charges by producing evident both oral and documentary. 6 That the whole proceedings are vitiated and are bad in law and need to be set aside.
5. Heard Mr. J.Sudheer, learned counsel appearing for the petitioner and Mr. Ch. Siva Reddy, learned counsel for the respondents.
6. On hearing, Mr. J. Sudheer, learned counsel for the petitioner argued that it is necessary to mention here that the third party account belong to a group of 7 or 8 persons who are the sub-contractors and that the amounts have been paid back to the tune of Rs.13 lakhs by the Sub-contractors/ account holders. The password of the petitioner seems to be used besides several other persons. From the beginning that the password of the petitioner was hacked and he is nowhere concerned with the said transactions in dispute. He further submits that when there is allegation lof connivance with other staff members there should have been a common or joint enquiry. Instead, different Enquiry Officers were appointed and three different enquiries were conducted. The best course would have been to take disciplinary action against all staff members whose passwords were used and conduct a common enquiry so that the truth would have come out.
7. Learned counsel further submits that in so far as L.V.N. Sampath Kumar (Head cashier) is concerned, enquiry was held and all charges were proved but still he was inflicted with the punishment of stoppage of two increments without cumulative effect, by his Disciplinary Authority. At any rate, 7 no major punishment like the one that is imposed on the petitioner was imposed on him. As a matter of fact, L.V.N. Sampath Kumar (Head cashier) reinstated and as of now he is working in the respondent bank. It is also necessary to mention that the punching of the transaction involving all the passwords was actually done by L.V.N. Sampath Kumar but he was given lenient penalty for the reasons best known to the respondent bank but the petitioner who is nowhere concerned, is imposed with compulsory retirement. In so far as Sri Y.V. Ramana Raju is concerned, enquiry was completed and the charges were proved against him also and he is also imposed the punishment of compulsory retirement. At any rate, conducting separate enquiries and imposing separate kind of punishments, more so, when the issue involved is consolidatedly amongst staff members and when the issue is also the alleged connivance joint enquiry should have been conducted and therefore on the ground of discrimination the whole proceedings deserve to be set aside.
8. On a perusal of the material available on record, this Court observed that the petitioner's password was hacked. The petitioner has given explanation to the Enquiry officer as well as to the Disciplinary Authority stating that even on the days when he was away from the bank on official duties, his password was used which would show that the password was hacked and it was misused by other staff members. This aspect was not considered by any authority. It clearly shows that the petitioner is not involved with the allegations and 8 actually others are involved. It is not the case of the petitioner that the petitioner has misappropriated the funds from the inoperative accounts and got them transferred into his account and there is no allegation either before the Disciplinary Authority or in the criminal case that the amounts have been withdrawn by the staff in general or petitioner in particular. The angle of the petitioner is that his password was being hacked which is clear from the fact that even on the date dates when he was out of station on official work or on leave, such a fraudulent transaction took place and this was not considered either by the Enquiry officer or Disciplinary Authority.
9. It is pertinent to mention here that while conducting enquiry the Enquiry Officer ought to have taken into account the above issues and in a unilateral manner gave a perverse finding without there being any legal evidence. Therefore, the findings of the Enquiry Officer with respect to the 4 th charge need to be set aside as perverse and no punishment could have been inflicted on the petitioner based on such finding. The Disciplinary Authority despite receiving detailed explanation of the petitioner on this aspect has not applied his mind and toeing the line of Enquiry Officer, simply imposed the punishment of compulsory retirement. Therefore, the impugned proceedings are liable to be set aside. 9
10. In a catena of decisions of Hon'ble Supreme Court reported in Director General of Police and others Versus G.Dasayan1, wherein in para-8, it was held that :
"8. On the second ground that the Superintendent of Police, Tirunelveli District, was not the competent authority, learned counsel for the appellants submitted that the Tribunal was not right in assuming that the transfer was for administrative purpose and during the pendency of Enquiry as the Police Standing Orders enabled the transfer of Constable of one District to another District. The relevant PSO was produced which reads that a Police Constable is liable to serve anywhere in the State. The order of transfer from Kanyakumari District to Tirunelveli District at the relevant time was not challenged. Therefore, this ground of the Tribunal in setting aside the order of dismissal cannot also be supported. The third ground that the co- delinquents except the Head Constable were let off though the charges were identical, it is stated by the learned counsel for the appellants that the Disciplinary Authority did not agree with the findings of the Enquiry Officer so far as those two delinquents were concerned. However, the Head Constable, who was also charged along with the respondent, was compulsorily retired by the disciplinary Authority."
In a case of Anand Regional Coop. Oil Seeds Growers' Union Ltd., Versus Shaileshkumar Harshadbhai Shah 2, wherein in para 27, it was held that :
" 27. There is, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The Management did not take serious note of misconduct committed by six others although they were similarly situated. They were allowed to take the benefit of the voluntary retirement scheme."
In another case reported in Rajendra Yadav Versus state of Madhya Pradesh and others3, wherein it was held in para 9, as follows:
1
(1998) 2 Supreme Court Cases 407 2 (2006) 6 Supreme Court Cases 548 3 (2013) 3 Supreme Court Cases 73 10 "9. The Doctrine of Equality applies to all who are equally placed;
even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences."
In another case reported in Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) and another Versus Rajendra Singh4, wherein it was held in para- 17, as follows:
"17. If there is a complete parity in the two sets of cases imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of Equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav's case, already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should commensurate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. Case even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employee accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology."4
(2013) 12 Supreme Court Cases 372 11
11. Having regard to the facts and circumstances of the case and in view of the findings in catena of decisions of Hon'ble Supreme Court and in view of the submissions made by both the learned counsels, this Court is of the considered view that the impugned proceedings dated 5.6.2014 issued by the 3rd respondent and the consequential proceedings dated 12.6.2014 issued by the 2nd respondent declared as illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India and are liable to be set aside.
12. Accordingly, the Writ Petition is allowed setting aside the impugned proceedings No.RO/COIM/DA/DRM/2014- 15/195, dated 5.6.2014 issued by the 3rd respondent and the consequential proceedings No.RO:HRD:2014-15:188, dated 12.6.2014 issued by the 2nd respondent. There shall be no order as to costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 0 -06-2022
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HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.18682 of 2014
Date : .06.2022
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