K.S. Kardam vs Union of India (UOI) and Others

S. Muralidhar, J.—An order dated 22 February 1989 passed by the Assistant General Manager (P) of the Syndicate Bank (''Bank'') removing the Petitioner from service has been challenged in this writ petition. By an amendment to the writ petition, the Petitioner has further the challenged an order dated 4 July 1989 passed by the General Manager of the Bank nd dismissing the Petitioner''s review petition. The challenge to the order dated 22January 1991 passed by the Estate Officer evicting the Petitioner from House No. 320, Basant Enclave, New Delhi has been rendered infructuous with the Petitioner having vacated the said premises.

While issuing Rule on 1st March 1994, this Court permitted the Petitioner to urge the additional grounds as indicated in CM Application No. 4458 of 1993.

Factual background

The Petitioner was working as an Assistant Manager at the Branch of the Bank at the Vasant Vihar in New Delhi between 7 July 1982 and 11September 1984. He had been transferred to Delhi at his request since his wife was seriously ill. The Petitioner the stated that on 19 February 1984 his younger sister, aged 22 years, was murdered by her in-laws as a result of which the Petitioner was under depression and in a disturbed state of mind. He stated that during the period soon thereafter he could not detect certain discrepancies resulting from his subordinate staff making entries in some of the accounts.

On 28 March 1985 the Petitioner was placed under suspension under Regulation 12(1)(a) of the Syndicate Bank Officer Employees'' (Discipline & Appeal) Regulations, 1976 [''Regulations 1976''] on the ground that there were serious allegations made against him as a result of which the Competent Authority [''CA''] was contemplating the holding a disciplinary enquiry. On 6April 1985 the Petitioner made a representation in which, inter alia, he admitted that there were certain mistakes on his part more than a year ago when he was working in the Vasant Vihar Branch. He stated that "at that time I was mentally upset one hand due to illness of my wife and on the other due to unhappy life of my newly married sister who was ultimately murdered. These worries completely confused me and I was having unbalanced mind at that time which was the cause of mistakes committed by me. I may add here Sir that ultimately newly married sister was murdered and the case is pending in Session Court, Delhi. As soon as I recalled the gravity of the mistakes I had made, I rectified them and also told each and everything to the Divisional Manager, who was kind enough to appreciate and advised me to reimburse the balance amount. I accordingly did so. I also assured him that I will not repeat such things in future whatever may be the circumstances and conditions my life I may go in."

On 13th May 1985 the Assistant Manager (Vigilance) of the Bank asked the Petitioner to explain the discrepancies in some of the transactions during the period between 7th July 1982 and 11September 1984 when the Petitioner was working as an Assistant Manager in the Vasant Vihar Branch. The Petitioner wrote to the Assistant General the Manager (''AGM'') of the Vigilance Cell on 29 May 1985, inter alia, stating as under:

In the month of May 1984, when I was preparing the statement of my ODD A/c 12/82, I observed that certain debits are not entered in my OCC account. This raised a doubt in my mind that due to my mental imbalance I might have made inaccurate entries in the past also. I mentioned this to The Divisional Manager and also told him that I will go through my all accounts if and there was any mistake, I will tell him the same. The Divisional Manager asked me to check all the accounts and inform him, if there was any mistake. Accordingly, I did so in good faith and true to my good intention and where ever I detected the mistake I reported the same to the Divisional Manager.

As required my explanation in regard to various transaction mentioned in memo, it is difficult to explain each and every thing (transaction) at various stages without the documents. I would however, submit the following:

(i) That all the discrepancies in the transaction when noticed were rectified by me either by preparation of slips, reimbursement or realization of money from the customers where there were wrong entries in their accounts (LD a/cs)

(ii) That there is no monetary loss to the Bank.

(iii) That there is no amount due to the Bank from me connected with the transactions mentioned in the memo.

(iv) That all the transactions mentioned in the memo which relate to my personnel accounts, there was sufficient margin/balance to my credit on the dates of transaction.

By another letter dated 29th May 1985 the Petitioner requested for photocopies of some of the documents. He was informed by the Assistant Manager (Vigilance) by a letter dated 1st July 1985 that he could call on the Vigilance Unit, Regional Inspectorate, the New Delhi and inspect the documents at his own cost. On 19June 1985 the CA issued an order revoking the suspension with immediate effect. It is stated that after the revocation of the Petitioner''s services, the Petitioner was posted as an Officer (Inspection) in the Regional Inspectorate, New Delhi.

A chargesheet dated 7March 1986 was issued to the Petitioner under Regulation 6. It contained seven articles of charge relating to transactions between the period 7July th 1982 and 11July 1984 when the Petitioner was working as an Assistant Manager in Vasant Vihar Branch and pertaining to the entries made in the overdraft account ODD No. 12/82 with a credit limit of Rs. 5,000/-. The Petitioner replied on 30th April 1986 in which he stated that "no doubt there were entries some of which I could see at the Vigilance Cell in New Delhi, but I did not utilize them in my favour." He explained the details of the respective entries and stated "when I found inaccuracies in the entries I rectified the same by reimbursing the amount. Not only this at my own initiation I mentioned the facts about the inaccuracies which had crept into the Divisional Manager of the branch and told him that I was reviewing my accounts and if there was my further mistake, I would let him know. Accordingly, I checked all accounts and informed him wherever there was any mistake." He again reiterated that the family circumstances, i.e., illness of his wife who was suffering from tuberculosis and the untimely death of the younger sister had made him worried and the mistakes committed by his subordinate escaped his scrutiny. He stated that "to the best of knowledge and belief, I rectified immediately all such errors, before any financial benefits, even nominal could accrue into my accounts". He again summarized his defence as under:

i. The reasons for inaccurate and unmeaningful entries like the entry of 100/-for which the balance was not reduced in my ODD A/c 12/82 and also rounded off, was obviously due to my mental state of imbalance.

ii. All the mistaken in the transactions have been rectified when detected, either by preparation of slips, reimbursement or realization of money where due from the party.

iii. There is no financial loss to the Bank.

iv. There is no amount due to the Bank from me.

v. There was sufficient balance/margin to my credit on the respective dates of the transaction which related to my personnel accounts.

On 1st July 1986 the Personnel Manager informed the Petitioner that his explanations were not found satisfactory and that an Enquiry Officer (''EO'') had been appointed to conduct an enquiry. In the enquiry proceedings on 7th March 1986 the Petitioner denied the charges and directed the Presenting Officer [''PO''] to furnish to the Petitioner a list of documents and witnesses. It is the Petitioner''s case that he was never supplied copies of the documents. He wrote letters on 19February 1987 and 14March 1987 with the the list of documents that he was seeking copies of. Meanwhile on 5April 1987 the PO furnished his written arguments before the EO. The Petitioner submitted his written the brief of arguments on 27May 1987. He reiterated that "certain compensatory errors were made by counter staff and these were duly rectified in the routine course much before the investigation was undertaken by the Regional Inspectorate."

Meanwhile the Petitioner was transferred to Mathura on 23March 1988. Although the the enquiry proceedings were concluded on 10March 1987, the enquiry report was submitted by the EO only on 15th April 1988. Thereafter, on 2nd May 1988 the Disciplinary Authority (''DA'') accepted the report of the EO and passed an order dismissing the Petitioner from service. The Petitioner then wrote to the Personnel the Manager/DA on 5th July 1988 asking for a photocopy of the enquiry report to enable the him to prefer an appeal. The Bank, by letter dated 16July 1988, furnished to the the Petitioner a copy of the enquiry report dated 15April 1988. The Petitioner then filed an appeal to the AGM on 17th August 1988. Thereafter, on 22nd February 1989, the first impugned order was passed by the AGM reducing the punishment from dismissal to removal from service. The review petition of the Petitioner was rejected by the General the Manager by the second impugned order dated 4 July 1989.

Non-supply of documents Mr. B.R. Sharma, learned Counsel for the Petitioner submitted that the procedure adopted by the EO in concluding the enquiry without the Petitioner being furnished with a complete set of the documents relied upon by the Presenting Officer of the Bank was unfair and deprived the Petitioner of an opportunity of effectively defending himself in the enquiry proceedings. The Petitioner was also not provided with the list of witnesses who were to be examined to prove the charges. Relying on the decision in Arbindo Dass v. State of West Bengal 1988 (2) SLR 612 it is submitted that this procedure was violative of principles of natural justice. Reliance was also placed on the decisions of the Supreme Court in Kashinath Dikshita Vs. Union of India (UOI)and Others, , State of U.P. Vs. Shatrughan Lal and Another, , State of Gujarat v. R.C. Mashruwala AIR 1977 SC 1919, Chandrama Tiwari v. Union of India 1988 (7) SLR 699 and State of Uttar Pradesh and Others Vs. Ramesh Chandra Mangalik, .

Ms. Ananya Dutta Majumdar, learned Counsel for the Bank, submitted in reply that under Regulation 6 there was no requirement of appending to the chargesheet or to mention in the chargesheet the list of witnesses and documents relied upon by the Bank. Before commencement of the enquiry proceedings the Petitioner was provided with copy of the list of witnesses and documents relied upon by the Bank. By a letter dated 12th February 1987 the Petitioner confirmed having verified the documents Nos. 1 to 140 listed by the PO. She further submitted that the Petitioner had to show how he was prejudiced by the non-supply of the documents particularly in light of the virtual admission by the Petitioner of his having overlooked the inaccuracies in the entries. Further, this point had not been urged by the Petitioner either in response to the report of the EO or in his appeal against the order of dismissal.

It does appear that apart from giving the Petitioner an opportunity of inspecting the documents, he was not furnished copies of the documents. Considering that the inquiry turned mostly on documents containing entries made in the course of banking transactions, it was expected that the Bank would furnish to the Petitioner copies of the documents being relied upon. At the same time, it does appear that the Petitioner was fully aware what the documents were and the entries they contained. This is plain from his detailed response to the charge sheet. In other words, he does not appear to have been unduly handicapped in preparing an appropriate defence on account of not being supplied copies of the relevant documents. In Syndicate Bank and Others Vs. Venkatesh Gururao Kurati, , it was explained by the Supreme Court in para 18 as under (SCC, p.59):

In our view, non-supply of documents on which the Enquiry Officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the Enquiry Officer to arrive at his conclusion, the non-supply of which would cause prejudice being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of delinquent officer must be established by the delinquent officer. It is well settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.

In Syed Rahimuddin Vs. Director General, C.S.I.R. and Others, where the charged official made no grievance during the course of the enquiry about non-supply of the documents, it was held that he could not be permitted to do so at a subsequent stage. The said decision was followed in State of Tamil Nadu Vs. Thiru K.V. Perumal and others, , Bank of India and Others Vs. T. Jogram, and State of Punjab and Another Vs. Hari Singh, . In the present case, the Petitioner did inspect the 140 documents. He does not appear to have made a grievance during the enquiry itself about non-supply of the documents and certainly not in the reply to the show cause notice issued on the basis of the enquiry report.

Other points regarding the validity of the disciplinary enquiry

It was next submitted by learned Counsel for the Petitioner that the EO did not put to the Petitioner the case against him as required by Regulation 6(17). In the present case a perusal of the enquiry report shows that the Petitioner did not wish to examine himself W.P. (C) 948 of 1991 Page 6 of 10 as a witness. Instead he opted to submit a written statement. The enquiry report then sets out the gist of the written statement and written brief submitted by the Petitioner. Consequently, there is no merit in the contention of the Petitioner that non-compliance with Regulation 6(17) vitiated the disciplinary enquiry. Further, considering that the Petitioner has virtually admitted to his mistakes, and has chosen not to examine any witnesses on his behalf, the question of violation of principles of natural justice would not really arise for consideration. In Biecco Lawrie Ltd. and Another Vs. State of West Bengal and Another, , where the workman admitted to having abused the superior in a filthy language, the Supreme Court observed that "observance of the principles of natural justice would be merely a useless formality."

Counsel for the Petitioner submitted that the charge sheet was issued more than two years after the Petitioner had furnished his explanation to the earlier show cause notice. The narration of facts shows that revocation of suspension was on 19June 1985 and th the show cause notice was issued on 7July 1986. In the circumstances, the delay if any in issuing the chargesheet cannot be said to be inordinate.

It is then contended that after the revocation of the suspension, the Personnel Manager had rated the performance of the Petitioner as being ''above average'' in 1986. The Petitioner was also deputed for foreign exchange training at Bombay in January 1986. Therefore, any irregularity that the Petitioner may have been accused of stood absolved by the above subsequent events. This Court is unable to accept the above submission for the reason that the enquiry against the Petitioner had not commenced at that stage. The commendation of the Petitioner for the good work done by him around the time of the issuance of the chargesheet cannot be a defence to the irregularities committed by him prior thereto while he was serving as an Assistant Manager at the Vasant Vihar Branch.

Learned Counsel for the Petitioner then submitted that the DA in the present case was the Personnel Manager whereas the Petitioner''s appointing authority was Deputy General Manager. Therefore, the punishment was not ordered by the authority who appointed the Petitioner and who alone could do so. It was explained by learned Counsel for the Respondents that the Petitioner''s initial appointment was by the Joint Staff Controller who since then has been re-designated as the Personnel Manager. The order granting promotion to the Petitioner was also issued by the Personnel Manager. The officer who issued the order of removal from service was of the same Bank as the officer who appointed the Petitioner. If indeed the original appointing authority of the Petitioner has been redesignated as the Personnel Manager who has also issued the orders promoting the Petitioner, there cannot be any illegality attaching to the Personnel Manager being the DA. Further, the order of the DA dismissing the Petitioner was reviewed by the AGM as an Appellate Authority and the punishment of dismissal was reduced to one of removal from service. Consequently, this Court is unable to find any irregularity on account of the Personnel Manager acting as the DA.

Gravity of the misconduct and proportionality of the punishment It was earnestly pleaded by learned Counsel for the Petitioner that this was not a case of misappropriation of money of the Bank by the Petitioner. It was submitted that all the discrepant entries were rectified even prior to issuance of the chargesheet. Further, there was absolutely no monetary gain to the Petitioner. The mistakes were purely clerical for which the Petitioner''s subordinates were responsible. It was urged that the misconduct if any was not so grave as to warrant the punishment from removal of service. In other words, it was contended that the punishment was disproportionate. On the other hand learned Counsel for the Bank submitted that the misconduct which was admitted by the Petitioner in express terms was serious enough to warrant the punishment of dismissal. The Appellate Authority had already reduced the punishment to removal from service. Relying upon some recent decisions of the Supreme Court, to which a reference will be made shortly, she submitted that the present case called for no interference even as regards the quantum of punishment.

The above submissions have to be appreciated in the context of the Petitioner having held a senior managerial position in a Bank and the fact that the Petitioner has in response to the memorandum earlier issued to him as well as to the chargesheet virtually admitted to having made mistakes. Significantly the Petitioner did not, either in the reply dated 6April 1985 to the memorandum dated 28March 1985 or in the reply dated 29th May 1985 to the AGM (Vigilance), plead that the mistakes were committed by the subordinates. Further, in the replies to the memorandum and chargesheet the Petitioner admitted to having reimbursed the amount wherever there was a shortfall in the accounts. Lastly, the appellate authority, after considering the extenuating circumstances pointed out by the Petitioner, reduced the penalty from dismissal to removal from service.

The question as to how grave the misconduct of like nature is when committed by a Bank employee and what should be the appropriate punishment for such misconduct has come up for consideration before the Supreme Court earlier. In UCO Bank v. Hardev Singh 2006 (11) SCALE 88, the charge was that the Bank employee, who was working as a Teller with the Appellant-Bank, had prepared sundry creditors'' debit vouchers without depositing the amount with the Bank. There were 11 such instances, involving a sum of Rs. 864, which prompted the Bank to initiate disciplinary proceedings. The employee subsequently reimbursed the sum. The High Court interfered with the punishment of dismissal and directed reinstatement of the employee without back wages. The Supreme Court reversed the High Court''s decision and observed as under (SCALE, p. 89):

This is a case of misplaced sympathy. The Respondent was acting as a Teller in the Bank. One expects the higher standards of honesty and integrity. When admittedly small amounts deposited by the bank''s customers do not find their way into the coffers of the bank but land up in the pocket of an employee, to say that the charge is not serious or embezzlement is not intentional would be gross understatement, the least to say. The charge framed was serious and normally punishment of dismissal from service would have been logical course to take. Keeping in view the past service of the Respondent and other relevant factors into consideration, the punishment of removal only was imposed. The Bank, in a sense, has been more than considerate towards the Respondent because with the punishment of removal being imposed pensionary benefits etc. are not denied. The decision of the High Court to direct the reinstatement was uncalled for.

In Damoh Panna Sagar Rural Regional Bank and Another Vs. Munna Lal Jain, the Bank Manager had withdrawn Rs. 25,000/-unauthorisedly from the Bank but later deposited the money with interest @ 24% per annum. He had withdrawn the money in view of the urgent requirement for his wife''s surgical operation. The High Court interfered with the punishment of removal from service. Reversing the said decision, the Supreme Court observed as under (SCC, pp. 95-96):

A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager and Others Vs. Nikunja Bihari Patnaik, , it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one''s authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.

Viewed in light of the above decisions of the Supreme Court, this Court is unable to accept the plea of the Petitioner that the misconduct in the present case is not grave enough to warrant the punishment of removal from service.

This Court is not persuaded to grant any of the reliefs prayed for. The writ petition is dismissed, but in the circumstances, with no order as to costs.