Andhra HC (Pre-Telangana)
Board Of Directors, Sri Visakha ... vs Upadrista Ramanarasinga Rao on 19 November, 2002
Equivalent citations: 2002(6)ALD754, 2003(1)ALT17, (2003)ILLJ1139AP
JUDGMENT S.R. Nayak, J.
1. The Management of Sri Visakha Grameena Bank and its authorities being aggrieved by the order of the learned single Judge dated 11.7.2000 in WP No. 19208 of 1994 have preferred this writ appeal. WP No. 19208 of 1994 was filed by the respondent herein calling in question the validity of the disciplinary proceedings and the ultimate disciplinary measure taken against him by the management of the bank.
2. The learned single Judge by the order impugned in this writ appeal, allowed the writ petition and quashed the disciplinary proceedings and directed the management of the bank to reinstate the 1st respondent-petitioner with continuity of service while denying back wages. Hence this writ appeal by the management of the bank.
3. The relevant facts leading to the filing of the writ petition may briefly be noted as follows: The 1st respondent while serving as Clerk-cum-Cashier at Garbham Branch, two charge memos dated 16.10.1990 and 9.4.1991 were issued to him. They read as under:
Charge Memo dated 16.10.1990 During your tenure as Clerk-cum-Cashier/ Joint Custodian at Garbham Branch, you are reported to have committed certain serious irregularities/ lapses/ malpractices which have so far come to light are detailed hereunder:
IT IS REPORTED THAT;
(a) On 3-4-1990 you have brought an inward remittance of Rs. 59,000/- (Rupees fifty nine thousand only) from S.B.I. Garividi Branch, in violation of the laid down instructions, i.e., you should not bring more than Rs. 30,000/- on any one occasion and thus exposed the bank to monetary risks.
(b) On 3-4-1990 you have retained huge cash balance i.e., Rs. 59,000/- (Rupees fifty nine thousand only) inward remittance referred to in (a) supra, over the cash counter instead of keeping it in the vault immediately after bringing to the branch and thus exposed the bank to monetary risks.
(c) On 3-4-1990 you have failed to account for Rs. 40,000/- cash to the Branch Manager/Joint Custodian while closing the day's cash balance, for the said amount of Rs. 40,000/- was stolen by you (Out of Rs. 59,000/- inwards cash remittance retained over the counter as referred to in items (a) and (b) and was misappropriated by you to clear-off your personal debts.
(d) You have connived with the Branch Manager, Sri G. Ram Mohan, and made a false entry in the Branch Movement Register, as if having visited the branch (Garbha) at 8-15 a.m., on 3-4-1990 with a mala fide intention of suppressing the fact that the cheque No. 75514 for Rs. 59,000/- which in fact was drawn on 2-4-1990 by the Branch Manager and was takenover by you on 2-4-1990 itself in order to gain a pecuniary benefit by claiming false T.A. and H.A. bill for date 3-4-1990.
(e) You have failed to keep up the trust reposed on you by the bank and resorted to dishonesty, cheating, misappropriation and abuse of your official position and thereby caused monetary loss to the bank.
Your above acts would indicate that you have failed to discharge your duties with utmost integrity, devotion and diligence, which is in violation of Rule Nos. 17, 19 and 30(1) of Sri Visakha Grameena Bank Staff Service Regulations, 1980 by which you are governed.
You are hereby directed to submit a written statement of defence, if any, in respect of charges/allegations referred to above within 7 days from the date of receipt of this letter, failing which it will be deemed that you have no explanation to offer arid you will be proceeded with accordingly in the matter.
Please acknowledge the receipt of this letter on the duplicate hereof.
Sd/-
Chairman and Disciplinary Authority Charge Memo dated 9.4.1991:
During your tenure as Clerk-cum-Cashier/ Joint Custodian at Garbham Branch, you are reported to have committed certain serious irregularities/ lapses/ malpractices etc. You are therefore, charged as under:
On 22-9-1989 gold loan No. GBG for Rs. 3000/ - was sanctioned at the branch, in the name of Shri Ritapalli Prasad against pledge of spurious gold ornaments. You have accepted the ornaments for joint custody without conducting proper check verification as to the genuineness, purity, and intrinsic value of the ornaments pledged and also wilfully not obtained gold loan appraiser's certificate as required in our Circular No. ADV.51/88 dated 31-12-1988, with a view to pass on undue pecuniary benefit to the borrower and cheat the bank, and thus exposed the bank to financial risks.
On 19-12-1989, you have accepted/received cash of Rs. 4000/- over the bank's counter from Shri Mantri Suryanarayana towards Credit of God Loan Account Nos. 1530 and 1531 (Rs.2000/-each) in the names of Sri Mantri Thavitinaidu and Shri Mantri Surya Narayana respectively. You have also issued a receipt counterfoil for the aggregate amount of Rs. 4000/- under your signature duly branded with branch cash received date stamp over it and the said amount of Rs. 4000/- was not accounted for in the branch books, and was misappropriated by you.
You have unauthorisedly made credit entries of Rs. 2000/- each in the Gold Loan Ledger Account Nos. 1530 and 1531 and the balance therein were reduced to that extent, and subsequently deleted the entries, balances were recasted and not got authenticated. Thus, you have resorted to falsification of account.
You have not submitted your statements of assets and liabilities as on 31.3.1987, 31.3.1988, 31.3.1989, 31.3.1990 and 31.3.1991, as required in Regulation 27 of Staff Service Regulations read with our Circular Nos. Staff 42/87 and 37/89 dated 5-10-1987 and 11-11-1989 respectively.
Your above acts would indicate that you have failed to discharge your duties, with utmost integrity, devotion and diligence, which is in violation of Regulation Nos. 17, 19, 27 and 30 of SVG Bank Staff Service Regulatons-1980 by which you are governed.
You are hereby directed to submit a written reply to your defense if any, within 7 days from the date of receipt of this letter, failing which it will be deemed that you have no explanation to offer and the bank will proceed accordingly.
Please acknowledge receipt of this letter on the duplicate hereof.
Sd/ Chairman and Disciplinary Authority
4. The management of the bank not satisfied with the explanation offered by the delinquent-respondent thought it appropriate to hold a regular departmental enquiry against him. Accordingly, the management appointed Sri G. Seetaramaiah, an officer of the bank as Enquiry Officer to conduct a common enquiry in respect of the charge memos issued on 16.10.1990 and 9.4.1991. Accordingly, the Enquiry Officer issued notice to the management as well as to the delinquent employee to appear before him for enquiry on 7.8.1991. On receipt of the notice of enquiry, the delinquent employee sent up a letter to the disciplinary authority contending that the criminal proceedings in C.C. No. 165 of 1990 on the file of the Judicial Magistrate of First Class, Cheepurupalli on the same sets of charges are pending and in that view of the matter, the departmental enquiry initiated against him should be postponed.
5. In order to appreciate the contentions raised by the delinquent employee the disciplinary authority having perused both the sets of charges framed in the criminal Court and the departmental enquiry, found that the charges framed in the criminal Court are totally different from the charges framed in the departmental enquiry. In that view of the matter, it was felt not necessary to postpone the conduct of the departmental enquiry against the delinquent-employee awaiting result of the criminal proceedings. Accordingly, the Enquiry Officer proceeded to conduct enquiry and the delinquent was called upon to appear before the Enquiry Officer and participate in the same. Inspite of reasonable opportunity offered to the delinquent-employee, the delinquent-employee for the reasons best known to him chose to remain absent. In the circumstances, the Enquiry Officer conducted the ex-parte enquiry on 21.3.1991, 4.1.1991, 8.9.1991, 9.10.1991 with regard to the charge memo dated 16.10.1990 and on 9.10.1991, 13.11.1991, 11.12.1991 and 13.2.1991 with regard to the charge memo dated 9.4.1991. The delinquent-employee remained absent in both the enquiries though he was issued notice by the Enquiry Officer to participate in both the enquiries. Having conducted the enquiry on the aforementioned dates, the Enquiry Officer submitted his report on 7.12. 1992 finding the delinquent employee guilty of all the charges framed against him in the charge memos dated 16.10.1990 and 9.4.1991. On receipt of enquiry report, the disciplinary authority forwarded a copy of the enquiry report to the delinquent employee giving him an opportunity to have his say in the matter. The delinquent employee submitted his reply. The disciplinary authority on consideration of the explanation offered by the delinquent employee thought it appropriate and imperative to dismiss the delinquent-employee from service in the interest of the bank. Accordingly the disciplinary authority vide proceedings DP-100 dated 20.5.1993, dismissed the petitioner in terms of Regulation 30(1)(F)of the Sri Vishaka Grameena Bank Staff Service Regulations as a disciplinary measure. Being aggrieved by the disciplinary action taken by the disciplinary authority, the delinquent-employee preferred an appeal under the regulations to the appellate authority. The appellate authority dismissed the appeal on 21.1.1994.
6. When the matter stood thus, the Judicial Magistrate of First Class, passed orders in CC No. 165 of 1990 acquitting the delinquent-employee on the ground that the charge is not proved beyond reasonable doubt. Since the order of the learned single Judge impugned in the writ appeal is essentially grounded on the assumption that the charges framed in the departmental enquiry and the charges framed in the " criminal Courts are one and the same, it is appropriate at this stage itself for us to refer to the charges framed against the delinquent in the criminal Court. Although the parties have not placed the charges framed in CC No. 165 of 1990 before us, the learned Judicial Magistrate of First Class, Cheepuripalli in his order dated 18.4.1994 passed in CC No. 165 of 1990 in para (2) thereof has referred to the allegations levelled against the delinquent-employee Para (2) reads as follows:
"The allegations of the charge-sheet are as follows:
The accused is resident of Cheepunipalli working as Clerk-cum-Cashier at Sri Visakha Grameena Bank Branch at Garbham. The accused being Cashier, he should take money from the bank authrotiy and disburse the same to the customers on receipts on receipt of the token and should maintain proper account for the payment made by him through customers and should handover remaining balance, if any, with him after payment to the bank authority at the closing hours. The accused where he is working as Cashier-cum-clerk is a small branch consisting of only three persons as officials in which the Branch Manager, Filed Supervisor and accused is the Clerk-cum Cashier. On 3.4.1990, due to Audit Staff conducting audit in the branch where the accused is working as Clerk-cum-Casher, the Branch Manager entrusted a cheque worth Rs. 59,000/- to get the cash from the State Bank of India, Garividi by encashing the same at the request of the accused. The accused encashed the same from the State Bank of India, Garividi and received the cash and went to his branch and informed about receipt of the cash to Branch Manager and mentioned the entries in the accounts and relevant books. The accused disbursed the same amount by maintaining proper accounts. At this juncture, he has taken away Rs. 40,000/- from the bank cash which was brought from the State Bank of India, Garividi and embezzled the same without maintaining proper accounts. After the closing hours of the bank when the Branch Manager found shortage of Rs. 40,000/- from cash balance and when questioned about shortage of amount the accused, he confessed before the Branch Manager and in the presence of the two independent persons about the offence and he stated that he has given the same to the persons from whom he has taken loan. After sometime, from the embezzled amount, the accused paid Rs. 7,000/- to the bank authority to reimburse the embezzlement amount. The Branch Manager informed the same to his authorities and the Bank Officials conducted enquiry and found as the accused embezzled the bank amount. Then the Branch Manager gave the report to the police. Hence, the charge."
7. Since the disciplinary as well as the appellate authority, refused to grant any relief to the delinquent employee in response to his explanation, the delinquent filed the above writ petition.
8. In the affidavit filed in support of the writ petition, the main contention raised by the delinquent employee is that the Enquiry Officer ought to have postponed the departmental enquiry pending trial in CC No. 165 of 1990 and since he proceeded to conduct the enquiry during the pendency of CC No. 165 of 1990 in the criminal Court, the findings recorded by the Enquiry Officer and the consequent action taken by the disciplinary authority and confirmed by the appellate authority are vitiated.
9. We have carefully perused the averments in the affidavit. We do not find any attack to the findings recorded by the Enquiry Officer in the report. The other contention raised in the affidavit is that without giving any opportunity to the delinquent employee, the Enquiry Officer conducted the enquiry. This second contention is required to be noticed only to be rejected in limine, because, the records placed before the Court clinchingly prove that despite giving adequate and reasonable opportunity to the delinquent employee, for the reasons best known to him, he did not appear before the Enquiry Officer and participate in the enquiry. The enquiry is conducted in respect of two charge memos. It is nowhere contended in the affidavit that the delinquent employee did not have notice of the enquiry. Therefore, the vague assertion that the enquiry was conducted without giving any opportunity to the delinquent employee, does not merit acceptance of it. If the delinquent was given an opportunity to participate in the enquiry and he refused to participate in the enquiry, it should not lie in his mouth to contend that the ex parte findings recorded by the Enquiry Officer and accepted by the disciplinary authority are vitiated for violation of principles of natural justice. The learned single having accepted the conention put forth by the delinquent-employee that the charges framed against the delinquent in the criminal Court and in the departmental enquiry are one and the same, passed the order granting the relief. Hence, this writ appeal.
10. We have heard Sri K. Srinivasa Murthy, learned senior Counsel assisted by Miss. Uma, for the appellant-Management and the learned Counsel for the respondent-delinquent.
11. With respect we should state that the very conclusion of the learned Judge that the charges framed by the disciplinary authority and the charges framed in the criminal Court against the delinquent-employee are one and the same, is not correct. On comparison of the charges contained in the charge memos dated 16.10.1990 and 9.4.1991 with the charge framed in the Criminal Court to which reference is made by the learned Magistrate in his judgment dated 18.4.1994 in CC No. 165 of 1990, we find that none of the charges framed against the delinquent by the disciplinary authority vide its charge memo dated 9.4.1991 are the charges in the criminal Court. It is trite that the charges framed against the delinquent in the charge memo dated 9.4.1991 are very serious and grave in nature touching moral turpitude of the delinquent-employee. All the charges framed against him in charge memo dated 9.4.1991 are satisfactorily proved by the management of the bank by adducing substantive legal evidence. It is very relevant to notice that the petitioner has not attacked any of the findings recorded by the Enquiry Officer and accepted by the Disciplinary authority with regard to the charges contained in the Charge memo dated 9.4.1991. As pointed out supra, the only two contentions raised in the affidavit filed in support of the writ petition are: (1) that pending disposal of CC No. 165 of 1990 on the file of the criminal Court, the disciplinary authority ought to have postponed the conduct of the departmental enquiry and since the disciplinary authority proceed to conduct enquiry, the findings recorded by the Enquiry Officer and accepted by the disciplinary authority are vitiated, and (2) that the findings were recorded by the Enquiry Officer without giving any opportunity to the delinquent-employee. We have already pointed out that there is no merit in the second contention of the delinquent employee, because, though reasonable opportunity was afforded to him to participate in the departmental enquiry, the delinquent-employee, for the reasons best known, did not participate in the enquiry.
12. It is repeatedly held and reiterated by the constitutional Courts that in the Banking Service, high degree of credibility and honesty is expected from the personnel constituting the staff. It is stated that every bank employee is a trustee of the public fund. He should deal with public funds as a responsible trustee. Here, in this case, it is satisfactorily proved that the delinquent-employee not only indulged in misappropriating bank's money, but also to cover up the misappropriation, created fictitious documents. Such a person has no place in public service. Since the findings recorded by the Enquiry Officer and accepted by the disciplinary authority are based on substantive legal evidence adduced by the management of the bank and since we do not find any infraction of procedural rules in conducting the departmental enquiry against the petitioner, there is no scope to interfere with the disciplinary measure imposed upon the respondent-delinquent employee. Further, there is no scope to take lenient view, inasmuch as there are no mitigating circumstances, which would persuade us to reduce the quantum of punishment. The punishment imposed by the disciplinary authority is proportionate to the gravity of the misconduct committed by the respondent-delinquent employee. In that view of the matter, the doctrine of proportionality is also not breached by the disciplinary authority.
13. In the result, with respect, we cannot sustain the order of the learned single Judge. The writ appeal is, therefore, allowed. The order of the learned single Judge dated 11-7-2000 made in WP No. 19208 is hereby set-aside and the writ petition is accordingly dismissed with no order as to costs.