HONOURABLE SMT. JUSTICE T.MEENA KUMARI W.P. No.6538 of 2000 Dated 19-08-2010 Between: V.B.R. Panthulu ……..Petitioner Vs. The District Cooperative Central Bank Limited, Visakhapatnam. ………Respondent THE HON’BLE SMT. JUSTICE T. MEENA KUMARI Writ Petition No. 6538 of 2000 ORDER : 01. This writ petition is filed seeking a writ of Mandamus to declare the order of dismissal in Ref.SP.no. 89/VLC/98-99 dated 15-3-2000 passed by respondent is illegal, arbitrary violative of principles of natural justice and to set aside the same and consequently to issue a direction to the respondent to reinstate the petitioner into service with all consequential benefits. 2. The case of the petitioner is that he joined as Accountant in the respondent Bank on 4-6-1969 and while he was working at Visakha Dairy Branch, respondent vide his orders dated 12-4-1997 placed him under suspension which was followed by a charge sheet dated 17-7-1997 and dated 3.9.1998 respectively to which he submitted explanations dated 2-8-1997 and 11-12-1998 respectively. It is stated in the affidavit that the respondent, without examining any witnesses, straightaway dismissed him from service by proceedings dated 15-3-2000 on the ground that he has misappropriated the funds. The charges are as follows: Charge memo dated 17.7.1997: “Charge No.I: That Shri M V B R Pantulu, while working as Accountant (O) Dairy Branch has misappropriated the Bank funds of Rs.1000/- by tampering of records relating to S.B.A/c.No. 752 of Sri V Suri Demudu which comes under Gross Misconduct as per I.T.Award provisions. Charge No.2: That Sri M V B R Panthulu is in the habit of absenting himself to duty with or without leave very frequently and thus causing inconvenience to the working of the bank. ” It is stated that the basis for the above charge memo is the preliminary enquiry report dated. 25-3-1997 which was not served on the petitioner and as such the same is liable to be set aside holding it void ab initio. Charge sheet dated 3.9.1998: “CHARGE No. I: (A) That he passed payment orders on the withdrawal slips of S.D. Accounts of Customers without the said entries having been debited/accounted for in the concerned Ledger Account of the S.D. Accounts concerned and thus found responsible for the misappropriation of bank funds to aggregate amount of Rs. 3,22,350/- (B) The he made payments of the withdrawal slips of S.D. Accounts of customers without the said entries having been debited/accounted for in the concerned Ledger Account of the S.D. Accounts concerned and thus found responsible for the misappropriation of Bank funds to an aggregate amount of Rs. 1,80,000/- in connivance with the Manager/Passing Officers concerned. CHARGE NO. II: That he passed credit entries to an amount of Rs.68,450/- in S.D.Account Ledger in respect of 11 S.D.Accounts without credit/receipt vouchers supporting the same. CHARGE NO. III That he wantonly omitted posting of the Transfer Debit entry for Rs.20,000/- o0n 8-12-1995 in S.D.AccountNo. 704 of S.Appdamma even though the corresponding Credit entry was posted in S.D.A/c.No. 12 of Sri B Trinadharao and subsequently he drew the amount of Rs.20,000/- from S.D.A/c.No. 704 on 11.12.1995 by means of the withdrawal slip forging the signatures of the Account holder S Appadamma and thus misappropriated an amount of Rs.20,000/- causing financial loss to the Bank in the process. CHARGE NO. IV: That it is found he had given an excess credit of Rs.4000/- to the S.D.A.c.No.757 of SriM Raj Kumar on 27.7.1995 by way of Transfer entry instead of Rs.488/- as appearing on the Credit slip prepared, entered and passed by him alone. Thus he caused financial loss to the bank to that extent. ALLEGATIONS: ……… and misappropriated with malicious intention and defrauded the Bank in connivance with the clerk/cashier as well as the passing officer concerned. From the above it is evident that on account of allowing such fake withdrawals bearing forged signatures of customers relating to the transactions mentioned in the annexure-I to IV an aggregate amount of Rs. 5,19,800/- has been misappropriated by Sri M V B R Pantulu with malicious intention in connivance with the then Clerk/Cashier as well as the passing officers concerned. 4. Learned counsel for the petitioner contended that findings of the enquiry officer that the charged employee is admitted his guilt will not bar from issuance of second show cause notice before issuance of the dismissal order. Hence the order of the dismissal violates the principles of natural justice and the dismissal order is to be set aside on this ground alone. 5. On the other hand, Mr M S Ramachandra Rao, counsel for the respondent has contended that there is no need for issuance of second show cause notice for the reason that firstly the service regulations of respondent bank did not provide such an opportunity and secondly there cannot be a violation of principles of natural justice for the reasons that the petitioner has not pleaded that he was prejudiced in not providing a copy of the enquiry report. 6. In the absence of any plea of prejudice, the contention of the petitioner that he has not been furnished with copy of the enquiry report should fail. Thirdly, the petitioner has remitted back the amounts of misappropriation to the tune of Rs. 5,14,800/- and he also promised to remit the balance amount within 15 days. 7. Learned counsel for the petitioner has tried to rely upon the judgments reported in between State of Uttaranchal and Others Vs. Kharak Singh[1] to substantiate his contention that petitioner should have been provided with a copy of the enquiry report before issuance of the final order for dismissal. 8. However, the case law relied upon by the petitioner is a case that arose under Article 311 Constitution of India and it is a case dealing with government officer and the facts of the case are not relevant to the present case. 9. In an unreported judgment of a learned single judge of this court, in W.P.No.4360 of 1993, 25-8-1999, wherein a show cause notice and charge sheet dated 10-7-1992 by the respondent bank was questioned on the ground that charge sheet itself is on the ground of incurable infirmities. However, learned single judge observed that it shall was always open to the respondent to proceed against the petitioner on the basis of such material as may be available with them, but, strictly in accordance with law. 10. But, however, it is the case on hand where the petitioner was dismissed from service and no reasons are forthcoming from the petitioner for his reimbursing such a huge amount of Rs.5,14,800/- to the respondent bank while admitting his guilt. 11. A perusal of the affidavit also goes to show that petitioner did not plead how he was prejudiced by non-supply of the enquiry report and there is no provision brought to the notice of this court under service regulations of the bank that had provided for issuance of second show cause notice before final action is taken against the employee. The apex court in the judgment reported in between The High Court of Judicature at Bombay, through its Registrar Vs. Shashikant S.Patil and Another[2], has laid down the law that courts while exercising writ jurisdiction on the ground that the facts adduced before it is insufficient, observed as follows: “The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of appeal over the decision of the authorities holding departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent funding on the evidence.” 12. As contended by the learned counsel for the respondent that the service regulations could not provide for issuance of second show cause notice before the final orders are passed in disciplinary proceedings and also relying upon the judgment cited supra , the writ petition needs no interference. 13. Accordingly it is dismissed. No costs. _____________________ T. MEENA KUMARI, J Dt. 19-8-2010 Kvrk/Rkk [1] 2008 (8) S.C.C. 236 [2] 1999 (8) Judgment Today 493