C.P. Sreenath vs The Andhra Bank and Others

K. Vinod Chandran, J.—1. The petitioner was proceeded against, in a disciplinary enquiry and dismissed from the service of the respondent Bank by Ext. P1 order dated 30.11.2012. An appeal was preferred, which was rejected by Ext. P3, however modifying the penalty from dismissal to compulsory retirement. A further review was rejected as per Ext. P5. The petitioner challenges the disciplinary enquiry initiated on the ground that there was absolutely no evidence to find the petitioner guilty.

The learned Counsel, appearing for the respondent Bank cautions this Court into entering into a re-appreciation of evidence and reminds this Court about the confined and restricted jurisdiction of judicial review; placing reliance on the decision of the Hon''ble Supreme Court reported in General Manager (Operations) State Bank of India and Another v. R. Periyasamy [, (2015) 3 SCC 101]. The petitioners Counsel relies on Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [, (1999) 3 SCC 679], to contend that especially since a criminal case is pending, wherein the petitioner is an accused and the facts and evidence being inextricably linked, the Bank ought to have at least kept the enquiry pending, till the criminal case is decided.

This Court heard the matter elaborately and after going through the enquiry report, is of the opinion that an examination of the facts, which led to the enquiry and the findings in the enquiry report are relevant in the aforesaid case. The petitioner was issued with a charge sheet as is indicated at Ext. P6, raising three charges. The petitioner, who had been working as a Manager at the Chengannur Branch of the respondent Bank was charged with the following:--

"(i) the petitioner had issued 19 educational loan/Personal loan sanction letter in the individual names of persons, who were students aspiring for higher studies in Australia.

(ii) that disbursement certificates were issued in the name of the students, showing that the amounts were disbursed from the educational loan sanctioned to the students.

(iii) the issuance of the sanction letters and disbursement certificates was beyond the powers conferred on the petitioner and he accepted Rs. 4,44,500/- towards processing charges from the partners of an agency, who had been looking after the emigration of the students to foreign countries."

The statement of allegations were also annexed as Annexure 1 of Ext. P6, wherein the specific allegation was that in connivance with an agency by name M/s. Alpha Overseas Consultancy, Kottayam, the petitioner had issued false sanction letters and disbursement certificates. The copies intended to be relied on at the enquiry was appended as Annexure II, which indicate the following documents:--

"1. Copies of fake Education Loan and Personal Loan Sanction Letters and disbursement certificates.

Account Opening Forms and Statement of accounts in respect of all accounts.

Copy of FIR dated 21.5.2010

Copy of ADA returns from Aug. 2008 to Nov. 2008.

Copy of Day book and ledger account of M/s. Alpha Overseas Consultants for the year 2008-2009.

Copy of cash vouchers for Rs. 41,200/- dated 12.08.2008, Rs. 16,400/- dated 26.8.2008 and Rs. 41,200/- dated 21.08.2008.

Any other document that is considered necessary."

The allegations essentially was that the letters and certificates were issued fraudulently to facilitate students to get admitted in foreign Universities.

The Enquiry Officer conducted an enquiry, in which the incumbent Manager of the branch was examined. It was submitted by the Manager that the copies of sanction letters and disbursement certificates produced at the enquiry are issued in the letter head of the Bank and presumably signed by the petitioner. The Manager deposed before the Enquiry Officer that there were absolutely no records in the Branch, which indicates such educational loans having been sanctioned or any disbursement certificates having been issued.

It is the admitted case of both sides that there is a criminal case pending in the Special Court of Central Bureau of Investigation(C.B.I), Ernakulam, which has not yet been taken up for trial. The documents referred to herein above were those recovered by the C.B.I. and not that recovered from the Branch premises. It is not clear as to from where, the recovery has been effected and from a perusal of the nature of the documents it could only have been recovered from the premises of the agency by the investigating agency. In any event, it is not from the Branch, since if it were from the Branch, the incumbent Manager would have vouched for such documents with reference to the registers, maintained by the Branch, regarding the issuance of such certificates and loan sanction letters.

The petitioner denied his signature on the documents. The Enquiry Officer found that there is no material on record in support of the contention of the petitioner that the signature has been forged. The respondent Bank having relied on the documents, recovered during investigation of the crime and having raised allegations against the delinquent only on the basis of such documents, necessarily, it was their duty to have proved that the petitioner had in fact put the signature on the documents. The findings that the Charge sheeted Officer''s (C.O) admitted signatures have close resemblance to the signatures in the documents, can at best be said to be an individual opinion, which does not have the sanctity of an expert evidence. The findings in the enquiry report also indicate that the petitioner had specifically raised an objection with respect to the signatures found on the documents.

With respect to allegation No. (i), the documents relied on were management exhibits 1 to 19, which are said to be the copies of educational loans and personal loan sanction letters, which certified that the amounts mentioned therein, had been disbursed from an educational loan. The Enquiry Officer finds that it is an admitted fact that these 19 sanction letters with certificates have been issued. The specific case of the petitioner was that the educational agency had forged the signature of the petitioner on the letter head of the respondent Bank, printed out fraudulently by the educational agency. There is no admission by the petitioner as has been found by the Enquiry Officer. The deposition of the incumbent Manager does not also indicate that the sanction and disbursement letters were issued from the Bank''s branch.

The Enquiry Officer hence has proceeded on the basis of the only fact that the documents were in the letter head of the Bank and that the signatures thereon bears a resemblance to that of the petitioner. The mere fact that the documents showed the issuance in the letter head of the Bank cannot by that alone implicate the petitioner, who was the Manager. With respect to the second charge also, the very same documents were relied on and what again, weighed with the Enquiry Officer was the fact that the letter head of the respondent Bank, was used. Again allegations were found on the reasoning on which the allegation No. (i) was found against the petitioner. The findings of the Enquiry Officer on allegation No. (i) and (ii) have to be held to be based on totally extraneous reasons.

Allegation No. (iii) was with respect to opening of 30 Savings Bank account in the name of students without following the KYC norms. It was clearly found by the Enquiry Officer on the basis of the evidence of the incumbent Manager of the Branch that the said Savings Bank account were opened in the ledgers of the Bank and that they were in accordance with the KYC norms issued by the Bank with respect to opening of such accounts. Despite the clear finding that the KYC norms were followed. it was found that the material on record shows that the respective Savings Bank account are shown as educational loan numbers. But that is only based on the documents MEX-1 to 19 where the account numbers of the SB accounts were shown as educational loans. This again cannot be pinned on the petitioner since as of now, nothing has been found to link the said documents recovered by the Investigating Agency to the petitioner, but for the fact that the documents were in the letter head of the respondent Bank and that the documents contained signatures having close resemblance to that of the petitioner.

The further allegation, (No.4) was with respect to the receipt of amounts of Rs. 4,44,500/- which also was based on the statement before the Investigating Officer, given by one of the employees of the Educational Agency in the criminal case. Admittedly, that person was not examined at the enquiry and the petitioner was never given an opportunity for cross-examination. The statement given indicated that with respect to three documents, recovered by the Investigating Agency, the said employee had forged the signature of the petitioner. On that admission, the Enquiry Officer has found that the other signatures should be presumed to be that of the petitioner, which again is in the realm of surmises and conjectures.

This Court had directed the respondent Bank to produce the records of the enquiry to verify as to whether the signatures have any resemblance. It has to be stated that this Court on a perusal of the documents is not convinced that the signatures are similar but however this is only in the form of a prima facie expression of opinion, and this Court also has no expertise in the analysis of or comparison of signatures.

Allegation No. 5 is with respect to an acknowledgment issued, which was found in favour of the petitioner, on the ground that the three vouchers were forged by the employee, who gave the statement before the Educational Agency. The 6th allegation was with respect to the Officer having failed to inform or report the above sanction, in the monthly returns filed before the Controlling Officer. When the Officer does not admit to have made such sanctions or issued such disbursement certificates, there is no question of such returns being filed, which was rightly held by the Officer to be an allegation, which was not maintainable against the petitioner.

It is on the above evidence that the charges have been found against the petitioner. Even going by General Manager (Operations) State Bank of India (supra), the examination permitted in judicial review under Article 226 of the Constitution of India, is as to whether there is any evidence, on which the Enquiry Officer could have arrived at the findings or whether there was any perversity in the findings. The discussion above as to the evidence relied on by the Enquiry Officer, would indicate that the entire allegations were raised and found to have been proved in the enquiry, on the basis of the documents recovered by the Investigating Agency and the statements made by the accused/witnesses to the Investigating Agency. No reliance could have been placed on such documents without first finding the petitioner to have some connection to the documents.

It is trite that in a domestic enquiry the proof required is not one beyond all reasonable doubt; but there should definitely be a preponderance of probabilities. The only factor that provides a link to the petitioner is that the documents are in the Banks letter head and that the signatures have a resemblance to that of the petitioner. The Bank''s letter head could be fraudulently printed out and so could the petitioner''s signature be forged. None of these documents were either recovered from the branch of the Bank or from the petitioner. In such circumstance, the enquiry is one inextricably connected with the prosecution, which is said to be pending before the Criminal Court.

Apposite would be reference to Capt. M.Paul Anthony (supra), paragraph 22 of which is extracted hereunder:--

"22. The conclusion which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."

The principles that could be culled out are that there would be no bar in simultaneous proceedings before the Criminal Court and by the department, unless both are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of grave nature which involves complicated questions of law and facts. IF there is that inextricable link in the two proceedings; then the disciplinary proceedings should be kept in abeyance till the conclusion of the criminal case, so as to ensure that no prejudice is caused to the delinquent employee. Definitely the stay of disciplinary proceeding has to be weighed, as against the expediency of a tainted employee being continued in employment.

It is very clear from the findings in the enquiry that the same is based only on the documents produced as evidence before the Criminal Court by the Investigating Agency. The proceedings of the Enquiry indicate the documents were put to the defense and on verification, the defense side confirmed that they had verified the original set of documents at the Special Court for C.B.I. This further establishes that the entire documents relied on at the enquiry were those, produced before the Special Court of C.B.I. It is clear that the matter, which is pending before the Criminal Court and that to be proved before the departmental authority are one and the same and deal with identical facts and circumstances. The present enquiry and the findings in the report cannot be sustained for reason of it being arrived at without any evidence. As of now the petitioner cannot be said to be tainted. There is nothing revealed in the enquiry, connecting the petitioner to the issuance of bogus sanction letters and disbursement certificates. In such circumstance it is only proper that the departmental enquiry be kept in abeyance, till the proceedings in the Criminal Court are completed.

This Court has to then decide on the course to be followed; balancing the grievance of the petitioner, in being kept out of employment and the Bank being mulcted with either the liability to pay the salary or at least subsistence allowance. These consequences are inevitable and would not tie down the hands of this Court, exercising extra ordinary jurisdiction. It is only proper that orders are passed so as to minimize the prejudice caused to either of the parties.

The enquiry report as found above has found the charges proved against the petitioner on absolutely no evidence. It is also to be noticed that the disciplinary authority also concurs with the findings of the Enquiry Officer and does not discuss any further evidence against the petitioner. In such circumstance, Exts.P1, P3 and P5 would stand set aside, however leaving liberty to the respondent Bank to initiate fresh disciplinary proceedings after the completion of the criminal case. It is also to be observed that in the meanwhile, the Bank could either keep the petitioner under suspension in which event subsistence allowance would have to be paid to him or the Bank could even consider taking him back in employment, which is left to the discretion of the respondent Bank.

It is pointed out by the learned Counsel for the petitioner that there were identical cases with respect to similar instances having been occasioned in other Banks, wherein also the agencies arranging foreign educational opportunities were arraigned as accused. The complaints, in such cases, having originated from the banks themselves no bank employee was similarly accused is the contention. In this case also the petitioner, as Manager is said to have made the initial complaint, having been queried by the foreign Universities as to the sanction of educational loans. If sufficient material is placed before the respondent Bank, this Court is of the opinion that the Bank could as well consider reinstatement of the petitioner, subject however to the final outcome of the criminal case. At least the Bank would be saved from paying money to the employee, without extracting any work from him.

The Bank shall comply with the above directions and decide as to the status, on which the petitioner is to be continued, within a period of one month from the date of receipt of a certified copy of this judgment. In any event, the subsistence allowance would be payable to the petitioner from the date of Ext. P1 to the date on which the Bank passes the order, either continuing the petitioner on subsistence allowance or taking him back into employment, the treatment of such period being dependent on the final result of the criminal case and the departmental proceeding.

The writ petition hence would stand allowed with the above directions. No costs.