IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : .02.2007 Coram THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU W.P.No.35916 of 2003 D.Jagadeesan ...Petitioner Vs. 1.Bank of Baroda No.26 G' Block, Bandra Kurla Complex, Bandra (E), Mumbai – 500 051. rep. By its Executive Director & Appellate Authority. 2.Bank of Baroda T.Nagar Branch, No.15, Gopalakrishna Iyer Street, T.Nagar, Chennai – 600 017. rep. By its General Manager (SZ) & Disciplinary Authority. ...Respondents WRIT PETITION filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records from the second respondent connected with the orders issued in order No.SZ:VIG:T:151 30/250 dated 28.03.2003 and the first respondent order No. Nil dated 27.09.2003 (rejecting the appeal) and quash them and direct the respondents to reinstate me into service with all consequential benefits to which I am entitled from the date of suspension viz. 18.08.2001. For Petitioner : Mr.V.Prakash, Senior Counsel for M/s.G.Raghavendran For Respondents: Mr.M.S.Krishnan for P.V.Ramachandran O R D E R 1:00 The petitioner, the former Senior Manager of the first respondent Bank is questioning the legality and correctness of the Order of the Executive Director of the Bank. 2.00 The Executive Director, the first respondent herein, confirmed the Order of the second respondent the General Manager, who is the https://hcservices.ecourts.gov.in/hcservices/ Disciplinary Authority and thereby the Order of dismissal of the petitioner is confirmed. 3.00 The Order of dismissal is based on an allegation of misappropriation of the bank money to the tune of Rs.50,000/-. There are some more charges. 4.00 At the outset, this Court would like to clarify the law in relation to the limits of the jurisdiction of High Court in entertaining a plea for writ of certiorari under article 226 of the Constitution is well settled. In order to justify the writ of certiorari, it must be show that the impugned order suffers from en error apparent on the face of the record. It is clear that the error must be an error of law and not error of fact, because an error of fact though serious, though it may be apparent on the face of the record cannot sustain a claim for writ of certiorari. It is only an error of law that justify the issue of said writ, provided, ofcourse they are of such a character as would reasonably be treated as erroneous apparent on the face of the record. If a finding of a fact is made by the impugned order and it is shown that it is based on no evidence that would no doubt be a point of law open to be urged under Article 226 of the constitution. 5.00 In P.C.Kakkar Vs. Chairman and Managing Director, United Commercial Bank and others 2003 (4) SCC 364 wherein it is held that: "It is settled that the Court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court in the sense that it was in defiance of logic or moral standards. In view of Wednesbury principle the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision." 6.00 There is no scope for interference, unless the Order is based on no evidence or error of law and not error of fact and such error is apparent on the face of record. The Court would normally interfere, if the punishment imposed is too harsh, but it may be in exceptional and rare cases and in such cases, the Court can impose punishment by recording cogent reasons. 7.00 The jurisdiction under Article 226 of the constitution is truly wide but for that very reason it has to be exercised with great circumspection. It is not the High Court to constitute itself into appellate Court over the impugned orders and re-adjudicate upon question of fact decided by the enquiry authorities, the disciplinary authorities or the tribunals. https://hcservices.ecourts.gov.in/hcservices/ 8.00 In B.C.Chaturvedi V. Union of India (1995) 6 SCC 749, the larger bench of the Supreme Court of India held as follows : " 12.Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C.Goel this Court held at P.728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. 14. ...In State Bank of India v. Samarendra Kishore Endow a Bench of this Court of which two of us (B.P. Jeevan Reddy and B.L. Hansaria, JJ.) were members, considered the order of the https://hcservices.ecourts.gov.in/hcservices/ Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary/appellate authority." 9.00 With this background, I shall now deal with the facts of the case and discuss on merits and demerits of the rival contentions. 10.00 FACTS On 16.08.2001, the fateful day, an unpleasant incident occurred in the premises of Bank of Baroda, T.Nagar Branch, Chennai, where the petitioner is working as a Senior Manager. 10:01 Mr.Jagannathan was the Chief Cashier of the Branch. The petitioner as an Officer-in-charge of the verification of the cash, checked the physical cash along with the Chief Cashier. They found eight bundles of Rs.500/- denominations totalling Rs.50,000/- After verification of the cash, the petitioner requested the Chief Cashier to bring the Cash Scroll lying on the table of the petitioner and accordingly the Chief Cashier went out and brought the Cash scroll. After verifying the cash scroll, the petitioner signed on the same and entrusted the Chief Cashier to keep the cash in the safe room and the petitioner came out of the room. Within few minutes, the said Chief Cashier returned back to the petitioner and told him that one bundle of Rs.500/- section was missing. The petitioner went inside and verified and thereafter not satisfied with his counting, the petitioner requested Mr.Dhandapani, another employee of the bank for a check. After verification by him, it was found that one bundle of Rs.500/- bundle amounting to Rs.50,000/- is missing. 10:02 According to the management, the petitioner did not take any further steps, however the Chief Cashier Jagannathan made some efforts to trace the cash near the place and thereafter the said Chief Cashier Jagannathan reported the matter to the Chief Manager of the bank orally and thereafter in writing. The letter in writing of Jagannathan is at 7.30. p.m. The missing of the cash is at about 3.15 p.m. Thereafter, the petitioner addressed a letter in writing to the Chief Manager at 8.30 p.m. The timings are very important. 10:03 There was a search in the bank on 16.08.2001 and the missing bundle was not traced. The matter was reported to the superior office on 17.08.2001. A team of officials by name N.Chandrasekaran, Acting Chief Manager, Mylapore Branch and Mr.Kambarajan of the Regional Office came to the T.Nagar branch and investigated into the facts and circumstances which took place on 16.08.2001. They met the Chief Manager and they have verified the two letters given by the Head Cashier as well as the petitioner. The strong room was not opened. The https://hcservices.ecourts.gov.in/hcservices/ petitioner and the Head Cashier were advised to stay away from their routine work, but available in the bank itself for any deliberations and they conducted a detail investigation in the bank and interacted with the petitioner as well as the Head Cashier and recorded their versions. 10:04 According to the preliminary investigation, the Head Cashier informed the investigating team that he has received six sections of Rs.500/- from the Receipts Cashier by name Mr.Sambasivarao and he had made two sections from his receipts and loose cash. In all he has made eight sections of Rs.500/- at the end of the day. After tallying cash, he has requested the cash verifying officer that is the petitioner to verify cash. Accordingly, the petitioner came to the cash cabin for verifying cash and the petitioner verified the cash and the petitioner requested the Chief Cashier to bring the Cash receipts scroll from his table for verifying the final cash balance and after satisfying himself, the petitioner told the head cashier to keep the cash inside safe and went away. As per his usual practice, the Head Cashier verified the sections in the cash box and found one Rs.500/- section missing and immediately he brought the same fact to the notice of the petitioner, who called Dhandapani, another officer to verify the cash again. After verification, Dhandapani also confirmed shortage of Rs.50,000/- in cash. It is the Head Cashier, Jagannathan, who reported the matter to the Chief Manager at around 4.30 p.m. and all the staff members searched in and around cash cabin, but could not find the missing cash and thereafter at 7.30.p.m., he gave a written report to the Chief Manager. Till then petitioner has not given any report either orally or in writing. 10:05 While so the preliminary investigation by the investigation team discloses the following facts when they enquire the petitioner. The petitioner admitted that he was called by the Head Cashier to verify the cash and found the same tallying with the final cash balance in the cash balance book. After signing the cash balance book, he requested the Head cashier to bring cash receipts scroll from his seat to verify the cash balance. After verification, the petitioner left the cabin advising the Head cashier to keep the cash in the safe room. Thus the version of the petitioner as well as the Head Cashier is one and the same up to this stage. After five minutes, the Head Cashier returned back to petitioner and informed that one section of Rs.500/- was missing. Then he requested Mr.Dhandapani to carry out verification of cash and after verifying, he confirmed shortage of Rs.50,0000/- bundle. Thus there is no inconsistency between the statement of the petitioner as well as Head Cashier. Both of them confirmed that only the petitioner and the Head cashier were in the cash cabin, at the time of verification of the cash and no body else were inside the cash room and after verifying the Head Cashier was sent out to bring Cash receipts scroll and accordingly the Head Cashier went and brought the Cash receipts scroll and there after the petitioner directed the head cashier to keep the cash in safe as it is tallied. It is the Head Cashier again verified and found one section of Rs.500/- is missing and immediately he made few and cry. At the preliminary investigation stage, the https://hcservices.ecourts.gov.in/hcservices/ petitioner as well as the head cashier did not accept having taken the missing cash. 10:06 Since the missing cash was not found, a police complaint was lodged and the Pondy Bazaar Police received the report from the Chief Manager on 17.08.2001. 10:07 Surprisingly, the police neither registered nor investigated the case but they started enquiring and made efforts to settle the matter instead of doing the regular police duties as per the mandate of the criminal procedure code. The action of the Pondy Bazaar police is highly objectionable. When the Chief Manager of the bank reported in writing to the police that the cash was missing in the bank and when a cognizable offence of theft is reported to the police, the Pondy Bazaar police did not register the case and did not investigate into the matter. It is a clear lapse on the part of the police. Therefore a copy of the order is marked to the Director General of Police, Tamilnadu, Chennai and Commissioner of Police, Chennai to verify, though late, the reasons for the lapses committed by the then police officers, so that such lapses would not repeat in future. The two officials, that is Director General of Police and the Commissioner of Police have to initiate necessary enquiry against the concerned officials, for not registering the case and not commencing investigation, and started doing some mediation to settle the matter by indulging in a discrete enquiry, which is not permissible under the code when a cognizable offence is reported. 10:08 The Pondy Bazaar police took the petitioner as well as the Head Cashier to the police station interrogated and kept them in the Pondy Bazaar police station till 4.30 p.m. There after, both the petitioner and the Head Cashier were brought back to the bank for further search and they could not trace any amount. Again they were taken back to the police station along with two officials, who came as an inspection team and the Chief Manager of the bank and there were certain discussions and deliberations. 10:09 The case record also discloses that the police suggested the petitioner and Head Cashier to share 50-50 burden and to contribute Rs.25,000/- each, so that there shall not be any problem. The Chief Cashier refused to give any amount stating that he is not responsible for the missing of the cash and the police can do whatever they like. The Pondy Bazaar police threatened that if they register a case and investigate into the crime the officials will loose their job and it will have a serious consequence. The Head Cashier did not agree and wanted investigation, still the police did not register the case. The reasons is known only to the then Station Officer only. All these facts are noticed by the Court in the record produced by Bank. 10:10 While so the petitioner had given a letter addressed to the Chief Manager to the Bank to make good the amount of Rs.50,000/- before 25.08.2001. This is a very important document in favour of the management and against the delinquent charged officer as the petitioner https://hcservices.ecourts.gov.in/hcservices/ agreed to pay Rs.50,000/- The forceful argument is why should he agree for the same. There is no convincing reply from petitioner. 10:11 Thereafter on 18.08.2001, disciplinary proceedings were initiated against the petitioner and he was placed under suspension in the public interest. 10:12 In this interesting episode some more scenes have come on to the screen. 10.13 First in the sequence is that the petitioner has issued three cheques in favour of two chit fund company limited and they are received by the petitioner's bank for clearing on 16.08.2001, the day on which the cash was found missing. The petitioner is having Savings Bank Account No.20048 in the same bank and as on 16.08.2001, the cash balance in the account of the petitioner is less than Rs.100/- whereas, the three cheques amounting is more than Rs.80,000/- The details of the cheques are: Cheque No.187311 in favour of Shri Ram Chits Private Limited for Rs.50,000/- Cheque No.187312 in favour of Shri Ram Chits Private Limited for Rs.20,747/- Cheque No.187314 in favour of Mayavaram Chit for Rs.11,750/- When the cheques were received by the branch of the petitioner and when there was no sufficient funds, the concerned clerk by name G.Ramachandran contacted the petitioner and informed about receiving of three cheques without balance and the petitioner told him that he will provide funds partly for honouring the cheque for Rs.11,750 and the other two cheques can be returned with the reason as post-dated. At this stage, it is to note that the cheques are issued on 30.07.2001 while so the date is altered as 30.07.2002. The same date has been written once again in the cheque. The petitioner requested Mr.G.Ramachandran, the Special Assistant who has received the three cheques to return those two altered cheques, as they are post dated and informed that he will provide funds for honouring the other cheque for Rs.11,750/- and immediately one Mr.Venkataram, whose wife is having SB account with the branch of the petitioner permitted to transfer Rs.6,500/- from the Savings Bank Account No.22665 of Mythri the wife of Venkataram to the account of the petitioner and the balance was paid by the petitioner and the cheque for Rs.11,750/- was honoured and the other two cheques one for Rs.50,000/- and the other for Rs.20,747/- are returned with reasons post-dated. This incident happened on 16.08.2001 before 3.00 p.m. The missing of the cash on the same day after 3.15 p.m. These circumstance cannot be ignored at all. At the level of preliminary enquiry, at regular enquiry by the Disciplinary Authority https://hcservices.ecourts.gov.in/hcservices/ and by the Appellate authority and by the Court of law, this undisputed fact is to be taken in to consideration while appreciating the case facts. 10:14 The other important incident is that on 24.08.2001, that is one day before the return of amount of Rs.50,000/- by the petitioner, there was a strange incident in the bank. One bundle of Rs.500/- amounting to Rs.50,000/- was found on the Accountant's table behind the computer and Mr.Sreedhar who is working as an Accountant on that day. On noticing the said bundle, the same fact was informed to the Chief Manager of the bank and he has taken instructions from the General Manager, South Zone, who personally came to T.Nagar branch and found that Rs.50,000/- bundle in a cover and instructed them to keep it in the current account Sundry Deposit Account in the safe custody. Along with that bundle there was a note which reads as follows: /Jagadeesan your name is spoiled, hard working spoiled, future spoiled most happy -money returned./ Jagadeesan is the petitioner, a well directed drama is introduced. 10.15 As promised the petitioner deposited Rs.50,000 with the bank on 25.08.2001 10.16 After suspension a charge sheet was issued to the petitioner making the following allegations: 01. You have misappropriated/embezzled cash of Rs.50,000/- (one section of Rs.500 denomination) from the Cashier's till while verifying the cash balance on 16.08.2001. 02. To facilitate your above act you have deliberately instructed the Head Cashier to go out of the cash cabin and to bring cash scroll lying in your seat which was supposed to have been verified by you simultaneously along with Cashier's cash balance book. 03.Consequently when cash shortage was reported by the Head Cashier to you, as a Joint Custodian you have neither taken proper care to report the matter to the Chief Manager of the branch immediately nor taken any remedial step immediately to retrieve the cash. Instead, you asked a Junior Officer to check the cash again without apprising him the seriousness of the matter and giving him proper guidance. 04. Your above act of misappropriation /embezzlement of cash of Rs.50,000/- was admitted by you on 17.08.2001 by your letter addressed to the Chief manager giving an assurance to make good the loss before 25.08.2001. 05.(a) You have issued cheques No.187311 and 187312 for Rs.50,000/- and Rs.20,747/- respectively favouring Shriram Chits Tamilnadu (P) Ltd. In your SB account No.200048 with our T.Nagar branch without providing sufficient funds in your account. https://hcservices.ecourts.gov.in/hcservices/ (b) You have altered the dates of these instruments after the same were presented in clearing on 16.08.2001 in order to return the cheques for a reason other than "insufficient funds" so as to escape liability under section 138 of Negotiable Instruments Act, 1881. (c) Furthermore, you have also indulged yourself in tampering of above instruments drawn on the branch where you were working on the said day. 06. (a) You have unauthorisedly transferred a sum of Rs.6,500/- on 16.08.2001 from an account of a client of the branch holding SB account No.22265 to your above account with a view to providing funds for passing a cheque for Rs.11,750/- issued by you and presented in clearing on 16.08.2001. (b) You have deposited a cheque No.562055 dt. 24.11.2000 for Rs.25,000/- drawn by Mrs.Shanthakrishnan, a customer of the bank having SB account No.1242 with M.R.C Nagar branch to the credit of your SB account No.147460 with Mount Road branch on 27.11.2000. (c) The above acts also placed you under a pecuniary obligation to persons having dealings with the bank which is prohibited under the service regulations. 07.You have not managed your private financial affairs properly and you are incurring debts habitually as is evident from the following transactions in your SB accouts. SB account No.147460 with Mount Road Branch (a) You have issued -22- cheques in your above account during 15.09.1999 to 14.02.2001 favouring M/s.Mayavaram Financial Chit Corporation Ltd., aggregating Rs.95,143/- Eg. Cheque No.333621 for Rs.4,658/- debited on 1.09.1999. Cheque No.379153 for Rs.7,500/- debited on 14.02.2001. (b) You have issued -22-cheques during 03.12.1999 to 02.08.2000 favouring Standard Chartered Bank Ltd. aggregating Rs.84,268/- Eg.Cheque No.337806 for Rs.2,250/- debited on 03.12.1999. Cheque No.405068 for Rs.4,145/- debited on 02.08.2001. (c) You have issued a cheque No.385103 for Rs.750/- favour in Shriram Chits Tamilnadu Ltd. debited to the account on 09.05.2001, in addition to the cheques issued by you as mentioned in Serial No.5 (a) above. (d) You have issued cheque No.344073 for Rs.36,150/- and cheque No.379158 for Rs.12,330/- favouring Shri Raghavendra Chit Funds (P) Ltd. Debited to the accounts on 12.02.2000 and 13.03.2001 respectively. https://hcservices.ecourts.gov.in/hcservices/ (e) You have routed through the above accounts cheques drawn in US Dollars to the extent of Rs.69,100/- on -5-occasions during 09.11.2000 to 12.03.2001. (f) You have deposited a cheque to the credit of your above account for Rs.64,519.10 issued by Standard Chartered Bank on 28.11.2000. SB Account No.200048 with T.Nagar Branch (g) You have issued -5- cheques in your above account favouring M/s Mayavaram Financial Chit Corporation