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Judgment
Elipe Dharma Rao, J.—The appellant in Writ Appeal No. 1627 of 1999 was the Branch Manager and the appellant in Writ Appeal No.
1642 of 1999 was the Accountant in the Mint Terminus Branch of the respondents-Bank.
While they both were working in such capacities, in the year 1982, on similar charges that they both have afforded immediate credits to a few
current accounts in respect of cheques for large amounts presented in clearing before knowing their fates, despite the return of a few of them in the
past, permitting withdrawals against such credits purchasing local cheques for large amounts in excess of their discretionary powers as DDRR
despite the fact that some of the cheques so purchased were returned unpaid for want of funds, withholding from the Controlling Authority the
information regarding the hen marked against the TDRs held by the party while reporting purchases of cheques made from them on Form COS
325; resorting to window-dressing of deposit figures reported in the monthly ''P'' Forms, permitting transfer of funds from one account to another
without the express authority of the account holders, etc. an enquiry was contemplated by the respondents.
In the enquiry, no oral evidence has been let in on either side and based on the documentary evidence exhibited on either side, the Enquiry
Officer by his reports dated November 12, 1986, had arrived at the, conclusion that out of the charges levelled against the appellant in Writ
Appeal No. 1627 of 1999, charges No. (i), (i)(b), (iii) and (vi) were fully established and that charges No. (i)(a), (ii), (iv) and (v) were partly
proved, y Insofar as the appellant in Writ Appeal No. 1642 of 1999 is concerned, the Enquiry Officer had held that out of the charges levelled
against him, charges No. (i), (i)(b) and (iii) have been fully established and charges No. (i)(a), (ii), (iv) and (v) have been partly proved. But, the
Enquiry Officer had not given any verdict regarding charge No. (vi), on ground that the same was suffering from infirmity. While recording his
findings, the Enquiry Officer had also noted certain mitigating factors in favour of the appellants/delinquents to be considered by the Disciplinary
Authority, while imposing punishment.
But, the Disciplinary Authority/the Chief General Manager, on going through the report, the enquiry proceedings and other records relating to
the cases, has differed from the findings of the Enquiry Officer in part and held that all the charges except charge (iv) levelled against both the
delinquents are established and that charge No. (iv) has been partly established. Based on such conclusion, the Disciplinary Authority has imposed
the penalty of dismissal on both the delinquents/appellants, by his orders both dated June 18, 1987.
Challenging the said order of dismissal, both the appellants herein have filed Appeals before the Appellate Authority/General Manager and since
the same were dismissed by the orders dated October 18, 1988, they have filed Review Applications before the first respondent/Reviewing
Committee and since, the said Review Applications were also dismissed by the orders both dated July 12, 1989, they have filed W.P. Nos. 15333
of 1989 and 15721 of 1989 respectively before this Court, both praying to issue writ of certiorarified mandamus to call for the records connected
to the Dismissal Order passed by the Disciplinary Authority and as confirmed by the Appellate Authority and the Review Committee and to quash
the same and to direct the respondents to reinstate the appellants herein into service; with all consequential benefits with full back-wages from the
date of suspension, increments, promotions and the like.
It was contended by the petitioners/delinquents before the learned single Judge that:
(i) the findings arrived at by the Enquiry Officer are perverse and the same have been accepted by the Disciplinary Authority as well as Appellate
Authority, without applying their minds. The Revisional Authority also accepted the findings without any reference to the explanation submitted by
the petitioners;
(ii) the petitioners were not served with the second show cause notice with regard to the punishment;
(iii) that since the Disciplinary Authority differed from the findings of the Enquiry Officer in respect of two charges, the Disciplinary Authority ought
to have issued a show-cause notice to the petitioners before ever any final conclusion is arrived at by him; and
(iv) that the Enquiry Officer in his report has given certain mitigating circumstances in favour of the petitioners to be considered by the Disciplinary
Authority while imposing punishment. Those mitigating circumstances have not been considered by the Disciplinary Authority and as such, the
punishment imposed by the Disciplinary Authority cannot be sustained.
The said contentions of the petitioners/delinquents were opposed by the respondents herein on grounds that when the genuineness of the
documents had been admitted, the findings rendered based on such documents cannot be said to be perverse; that as per the service regulations
and also in accordance with the law laid down by the Supreme Court the petitioners are not entitled for the second show-cause notice; that there is
no need for the respondents to issue any notice to the petitioners so far as the difference of opinion between the Enquiry Officer and the
Disciplinary Authority is concerned since there is no material difference in the findings; that the mitigating circumstances extracted by the Enquiry
Officer in his report has been taken note of by the Disciplinary Authority and that the Enquiry Officer is not empowered to make any
recommendations with regard to the punishment and as such, the non-consideration of the mitigating circumstances extracted by the Enquiry
Officer will not, in any way, affect the punishment imposed on the petitioners/delinquents.
The learned single Judge, considering all the materials placed on record and the arguments advanced on either side and also the judgments of the
Honourable Supreme Court, has held that the petitioner in W.P. No. 15333 of 1989 (connected with Writ Appeal No. 1627 of 1999) has not
made out any case to differ from the first respondent''s finding and has dismissed the said writ petition by the order dated November 19, 1998,
thereby confirming the order of dismissal passed against the petitioner/delinquent. In view of the findings given in the above said W.P. No. 15333
of 1989 (connected with Writ Appeal No. 1627 of, 1999), the learned single Judge, by a separate order dated November 19, 1998, has also
dismissed W.P. No. 15721 of 1989 (connected with Writ Appeal No. 1642 of 1999). Aggrieved by the said orders of the learned ( single Judge,
these Writ Appeals have been filed by the delinquents.
Since the charges levelled against the appellants and the issues involved are similar and arguments were advanced in common, both these Writ
Appeals are being disposed of by this Common Judgment.
By way of Appeal, two grounds were. urged by the counsel appearing for the appellants, one with regard to the non-issuance of second show
cause notice by the Disciplinary authority and the other is with regard to the mitigating circumstances pointed out by the Enquiry Officer in the
Enquiry report.
The borne out contention of the learned Counsel for the appellants as regards the first issue is that when the Disciplinary Authority had decided
to differ from the view of the Enquiry Officer, who had specifically stated about the charges established and the charges not proved, the
Disciplinary authority ought to have given an opportunity to the appellants, in compliance of the principles of natural justice and on that score itself,
the learned Judge should have set aside the order of dismissal and reinstated the appellants. Without doing so, the decision arrived at by the
learned Judge that against the order of Disciplinary Authority a revision is filed and the Review Committee has gone into the entire issue and also
gave an opportunity to the appellants to appear and represent before the Review Committee under the provisions of ..., is totally a misconceived
one and is against the settled principal of law, for the reason that an opportunity given by the Review Committee is not in consonance with the
rejection of the opportunity by the Disciplinary Authority. It is further submitted that it is only in their venture of improving the business of the bank,
they have committed some irregularities and the same would not amount to violation of Rules and Regulations.
In reply to the above contention, the learned Counsel for the respondents submitted that though the Disciplinary Authority has not given
opportunity, has given reasons in differing the findings of the enquiry officer and that the Review Committee has totally gone into the matter in
compliance of the principles of natural justice and has given personal hearing and therefore, by virtue of which no prejudice is caused to the
appellants. It is further submitted that though the appellants stated that for improving the business of the bank they had resorted to commit some
irregularities, that does not entitle them to violate the rules and regulations of the bank and moreover the charges levelled against the appellants are
very serious.
As regards the contention relating to the principles of natural justice, the learned Counsel for the respondents relied on the judgment in U.P.
State Spinning Co. Ltd. v. R.S. Pandey and Anr. 2006 SCC (L & S) 78 : 2006 I LLJ 254, wherein there was non supply of enquiry officer''s
report to the delinquent employee. In the said case, it was held that in all cases where said report is not furnished, Court/Tribunal should not
mechanically set aside the punishment order. It is only if Court/Tribunal finds that furnishing of report would have made a difference to result j in the
case that it should set aside the punishment order.
He also relied on the judgment in Ganesh Santa Ram Sirur v. State Bank of India and Anr. 2006 SCC (L&S) 537 :2 2005 I LLJ 188, wherein
it is held that the applicability of principles of natural justice depends upon the context and facts and circumstances of each case. Where the
relevant rules did not provide for a personal hearing by the Appellate Authority before enhancing the punishment and the Appellate Authority, after
issuing a notice to show cause against the proposed enhancement of reduction of salary to that of dismissal, thoroughly considered the submissions
of the appellant and modified the proposed punishment to removal, held, there was full application of mind in taking the decision. Hence, denial of
personal hearing will not vitiate the said decision.
Considering the submissions of rival sides and on perusal of the entire materials placed on record, we are satisfied that even though no
opportunity was given, the Disciplinary Authority passed a reasoned order while differing with the findings of the Enquiry Officer and further the
Review Committee has given opportunity and has passed a detailed order. Therefore, as rightly held by the teamed single Judge, by virtue of which
no prejudice is caused to the appellants/petitioners. Therefore, we are not able to agree with the said contention of the learned Counsel for the
appellants.
The other contention of the learned Counsel is with regard to the mitigating factors pointed out by the Enquiry Officer in his report. The
mitigating circumstances in so far as the first appellant, namely G. Viswanathan are as follows:
In sum, I find that there are certain mitigating factors/circumstances in the subject case:
(i) The incumbency of the Charged Official as Branch Manager is his first one.
(ii) The other officials at the Branch such as the Branch Accountant and Branch Cash Officer were also first incumbents with short service as
officials.
(iii) Credits afforded into the Current Accounts of the 3 firms were mostly against Bankers'' Cheques of first class Banks which can normally be
construed as good as cash or at worse good for payment.
(iv) The Charged Official has permitted such credits in his exuberance to build business and show performance in deposits.
(v) The fixed deposits of Rs. 42 lacs maintained by the parties with the Bank has also been one of the contributory factors to treat these parties
differently and complacently as customers to retain the deposits as also to improve them, resulting of course in negligence ultimately.
(vi) The very many appreciation letters received from the Controlling Offices at the Branch has also encouraged the Charged Official to render all
out support for business.
(vii) In the above processes, the Branch Manager had become the victim of a fraud masterminded by the account-holder by ''kite-flying
operations'' through the ingenious medium of Bankers'' Cheques.
(viii) In the recommendation submitted to the Controlling Authority for purchase of local (Madras) Cheques under DDRR, details regarding ten
huge debit and credit summations in the account have been given but the controlling office had only contended themselves to intimate the sanction
for charging concessionary rate of interest instead of looking at it holistically as a credit proposal from all angles for which every opportunity was
available to them. This has also given a misleading impression to the Branch Manager that the Controlling Authority was also in favour of his
continued purchases of local cheques under DDRR however mistaken it may be.
The mitigating circumstances in so far as the second appellant, namely P.M. Natarajan are as follows:
In sum, I find that there are certain mitigating factors/circumstances in the subject case:
(i) The incumbency of the Charged Official as Accountant is his first one.
(ii) The other officials at the Branch such as the Branch Manager and Branch Cash Officer were also first incumbents with short service as officials.
The official was partly handicapped because the Branch Manager himself had only a short service and could not provide much guidance to the
Charged Official.
(iii) Credits afforded into the Current Accounts of the firms were mostly against, Bankers'' Cheques of first class Banks which can normally be
construed as good as cash or at worse good for payment.
(iv) The Charged Official has permitted such credits in his exuberance to build business and show performance in deposits.
(v) The fixed deposits of Rs. 42 lacs maintained by the parties with the Bank has also been one of the contributory factors to treat these parties
differently and complacently as customers to retain the deposits as also to improve them, resulting of course in negligence ultimately.
(vi) The very many appreciation letters received from the Controlling Offices at the Branch has also encouraged the Charged Official to render all
out support for business.
According to the learned Counsel, the Disciplinary Authority has not considered the above findings in favour of the appellants/petitioners while
passing the order of punishment and the learned single Judge without looking into such infirmity has passed the impugned order, which is liable to
be set aside.
Even on a perusal of those mitigating factors also, we find that the Enquiry Officer has not properly exonerated them. On the other hand held
that the Official was partly handicapped because the Branch Manager himself had only a short service and could not provide much guidance to the
Charged Official and further though he has observed that the fixed deposits of Rs. 42 lacs maintained by the parties with the Bank is one of the
contributory factors to treat these parties differently and complacently, as customers to retain the deposits as also to improve them, but of course
held that it resulted in negligence ultimately. Further, though the petitioners/appellants are Branch Manger and Accountant without informing the
Controlling Officer they have taken a major decision in dealing with the above said customers. For the above stated reasons even the mitigating
factors also are not totally in favour of the petitioner/appellant.
In view of the above, we do not find any infirmity to differ with the findings arrived at by the learned single Judge and accordingly, both the
Appeals are dismissed. No costs.