THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WA No.2506 of 2005 Between The Board of Directors, Sri Visakha Grameena Ban and another v. Gandi Paul Devadas THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WA No.2506 of 2005 Judgment : ( Per Sri GM, J ) This writ appeal is directed against the order dated 13-7-2005 passed in Writ Petition No.2078 of 2001 by the learned single Judge of this Court. 2) For the sake of convenience, the parties shall be referred to as arrayed in the writ petition. 3) The petitioner, first respondent in the writ appeal, was appointed as an officer in the appellants-Bank. Subsequently he was promoted as Branch Manager. It is seen from the record that for having committed certain serious irregularities the petitioner was issued with a charge sheet dated 27- 4-1995 by framing as many as five charges in all. Herein it is apt to extract the charge no.1 which reads as under : “ Charge No. I On 20-3-1995, you have deliberately taken Rs.80,000/- from Suspence Account without sanction of vehicle loan application by the appropriate authority, despite clear instructions from the Controlling Authority vide Lr.No.45/94-95, Dt: 7/3/95 against Bank norms and misappropriated the amount. Thus, you have violated lawful instructions of your superiors, failed to keep up the trust reposed on you by the Bank, resorted to misappropriation and abused your official position, thereby caused huge financial loss of Rs.80,000/- to the Bank.” 4) The petitioner gave explanation to the charges, having not satisfied with the explanation given by the petitioner, the disciplinary authority appointed an enquiry officer to conduct regular departmental enquiry. Considering the material on record, the enquiry officer came to the conclusion that the charges 1,3 and 5 have been proved whereas charge no.2 has not been proved. The disciplinary authority having accepted the report of the enquiry officer imposed the punishment of dismissal from service in respect of charge no.1 and stoppage of one increment each for the charges 3 to 5. The petitioner preferred appeal before the appellate authority and the appellate authority confirmed the punishment of dismissal as imposed by the disciplinary authority against the petitioner. It is further seen from the record that the petitioner approached this Court in W P No.14261 of 1997 and this Court by its order dated 6-9-2000 disposed of the writ petition setting aside the order of the appellate Board and remitting the back the matter to the appellate authority. Thereafter, the appellate Board passed the orders confirming the punishment of dismissal imposed by the disciplinary authority. Challenging the same, the petitioner filed W P No.2078 of 2001 and the learned single Judge by his order dated 13-7-2005 held that the imposition of major punishment of dismissal from service on charge no.1 is disproportionate to the proved misconduct and set aside the same, however, affirming the findings of the authorities with regard to charges 3 to 5. 5) Smt. Uma Devi, learned Standing Counsel appearing for the appellant while attacking the order of the learned single Judge insofar as setting the dismissal order on charge no.1 is concerned, contended that the learned single Judge ought not to have relied on the evidence of DW 1 without taking into consideration the irrefutable evidence of P.Ws. 2, 3 and 4. Learned Standing Counsel would further contend that the petitioner withdrawn the amount without authority and consequently committed breach of trust and grave misconduct. 6) Heard the learned counsel for the respondent. 7) The main ground of attack of the learned Standing Counsel on the charge no.1 is relating to misappropriation of the amount causing financial loss to the bank. The act of the petitioner delinquent even assuming for a moment that he has taken a loan of Rs.80,000/- from the bank without prior permission, would certainly amount to misconduct. It is not financial loss to the bank since the amount taken is a loan by properly preparing vouchers and made entries in the relevant registers. It is also not a case of misappropriation of funds of the bank in view of the fact that the delinquent has not converted the amount other than the purpose it was allegedly taken by him. The only thing alleged against the petitioner is that without prior sanction of the car loan, the petitioner has drawn the amount for that purpose. The petitioner gave explanation stating that on oral instructions from the Paderu Branch received by the neighbouring MDO office, in which a telephone facility is available, he has withdrawn the amount and after purchasing the car, he submitted all the relevant papers to the bank to show his bona fides. In those circumstances, while adverting to the entire material on record, the learned single Judge held that if really the amount was not taken for the purpose of car loan, there is no need or necessity for the writ petitioner to submit all the relevant documents to the bank. Therefore, the learned single Judge held that the punishment imposed is disproportionate to the proved misconduct and consciousness of the court and accordingly, the punishment imposed against the writ petitioner insofar as charge no.1 is concerned was modified to the extent of stoppage of three increments with cumulative effect, while affirming the findings the findings of the disciplinary authority on charges 3 to 5. On consideration of the entire material on record, we are of the view that any order of cessation of service on the facts of this case would clearly disproportionate to the gravity of the offence. The petitioner did not act mala fide nor was any financial loss caused to the bank. Therefore, we are of the view that the interference by the learned single Judge insofar as charge no.1 needs no interference. Though it is argued that the learned single Judge ought to have left open to the bank for appropriate punishment, considering the gravity of the offence and the fact that insofar as charges 3 to 5 stoppage of one increment each was imposed, the learned single Judge instead of remitting the matter back to the appellate authority modified the punishment with regard to charge no.1 to that of stoppage of three increments with cumulative effect, which is just in the facts and circumstances of the case. 8) In the circumstances, we do not see any merit in the appeal preferred by the Bank. The Writ Appeal is meritless and is dismissed. No costs. ________________________ GHULAM MOHAMMED, J ___________________ SANJAY KUMAR, J Kk/ dt : 25 /11/2011 THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR PD judgment in WA No.2506 of 2005