*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition No.4036 of 2006 % Dated 02.07.2008 # K.Suresh Babu ….Petitioner $ The Deputy General Manager and others. ….Respondents ! Counsel for the petitioner : Sri S.V.Bhatt ^ Counsel for respondents : Sri E.Madan Mohan Rao < GIST: > HEAD NOTE: ? Cases referred: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 4036 of 2006 Between: K. Suresh Babu, S/o. Raja Sekhar, R/o. 3/2060, Raja Reddy Street, Kadapa. ..... PETITIONER AND 1 The Deputy General Manager, STate Bank of India, Zonal Office, Tirupathi. 2 the Assistant General Manager, SBI, Zonal Office, Tirupathi. 3 The Branch Manager SBI, Bhakrapeta Branch, Kadapa District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, Order or direction more particualrly one in the natureof writ of Cetiorari, call for the records leading up-to and inclusive of DPC /R-IV/No.022, dt. 30.08.2005 passed by the 2nd respondent herein and PER & HRD/No.9/2109, dt. 13.12.2005 passed by the 1st respondent herein and quash the same as illegal, unconstitutional and beyond the jurisdiction of the respondent herein and pass. Counsel for the Petitioner:MR.S.V.BHATT Counsel for the Respondent No.: MR.E.MADAN MOHAN RAO The Court made the following : THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.4036 of 2006 ORDER: The petitioner was initially appointed as a Clerk-cum- Cashier in State Bank of India, 1st respondent herein, on 01.03.1988 against a vacancy reserved for Scheduled Caste. From April 1997 onwards, he was working at Bhakrapeta Branch of Kadapa District, and was placed In-charge of Gold Loan Accounts. It is stated that there were about 1100 gold loan accounts in that Branch. On 30.05.2003, the petitioner was issued a charge-sheet, alleging that though he received a sum of Rs.8,000/-, remitted by one M.Obaiah, to the credit of gold loan account No.AGL 14/432 and issued a receipt, he did not account for the said amount, in the books of the Branch. The petitioner denied the allegation, and departmental inquiry was conducted. The Enquiry Officer submitted a report dated 06.01.2004, holding that the charge against the petitioner is not proved. The Disciplinary Authority i.e. 2nd respondent herein passed an order, dated 19.02.2004, disagreeing with the findings of the Enquiry Officer, and proposing to impose the punishment of dismissal from service. The petitioner filed Writ Petition No.5404 of 2004, before this Court, challenging the order, dated 19.02.2004. The writ petition was allowed on 02.12.2004; the order dated 19.02.2004, was set aside, and it was left open to the 2nd respondent to take appropriate action, in accordance with law. The 2nd respondent issued a show cause notice, dated 23.03.2005, requiring the petitioner to explain within 15 days from the date of receipt of the notice, as to why a different view on the findings of the Enquiry Officer, be not taken, in view of the reasons mentioned in the notice. The petitioner submitted his explanation on 11.04.2005. The 2nd respondent was not convinced with the explanation offered by the petitioner, and vide memorandum, dated 11.07.2005, he held that the charges framed against the petitioner are proved and proposed the punishment of dismissal from service. The petitioner was given 14 days’ time, to explain as to why the said punishment shall not be inflicted. Opportunity of personal hearing was also given to the petitioner. He submitted a written representation and made oral submissions on the fixed date. The 2nd respondent ultimately passed an order dated 30.08.2005, imposing the punishment of dismissal, against the petitioner. An appeal preferred by the petitioner to the 1st respondent was rejected on 13.12.2005. Hence, this writ petition. Petitioner submits that the order of dismissal passed against him cannot be sustained, either on facts or in law. He contends that except stating that he does not agree with the findings recorded by the Enquiry Officer, the 2nd respondent did not state any reasons, in support of his conclusions, while holding that the charge was proved. It is also his case that the 2nd respondent relied upon material, which is not part of the enquiry record. The record does not disclose that any counter-affidavit has been filed, on behalf of the respondents. Sri S.V.Bhatt, learned counsel for the petitioner submits that the order of dismissal passed against the petitioner is totally untenable. He also submits that the 2nd respondent has mis- directed himself, firstly when he straight away disagreed with the findings of the enquiry officer and secondly, when he stuck to his earlier stand, by stating certain reasons, which are totally opposed to the record. He contends that having issued a show cause notice, as to why he cannot disagree with the findings of the enquiry officer, the 2nd respondent did not assign any reason, worth its name, and has reduced the entire exercise, to a formality. He further contends that a finding was recorded against the petitioner, though the Presenting Officer himself took the view that no act of misconduct was proved against the petitioner. Sri E.Madan Mohan Rao, learned counsel for the respondents, on the other hand, submits that the petitioner was given adequate opportunity, at every stage of the proceedings, and the finding of fact, recorded by the 2nd respondent cannot be re-appreciated in a writ petition. Learned counsel further submits that the 2nd respondent assigned cogent reasons in support of his findings and that the appellate authority has also agreed with the same by undertaking detailed discussion. The petitioner was functioning as In-charge of gold loans at Bhakrapeta Branch of State Bank of India in the year 2003. A memorandum, dated 30.05.2003 was issued to him, with the following allegations: “It is alleged that on 06.02.2003 an amount of Rs.8,000/- was remitted by one Shri M.Obaiah for credit of gold loan account No.Agl. 14/432 of Shri Potta Jaya Sankara Rao and you have received the amount and issued a counter foil for the same. The receipt was not accounted for by you in the Branch books on that day and thereby it is alleged that you have misappropriated the amount. 02. Aggrieved with the loss of Rs.8,000/- remitted at the cash counter, Shri M.Obaiah shouted and created an unpleasant scene in the Branch premises on 06.02.03 demanding the Branch to make good the amount to him. Thus, due to your above act the fair image of Bank was tarnished. 03. The above act of your is of a serious nature and prejudicial to the interests of the Bank and constitutes “Gross Misconduct” in terms of clause 5(i) of Annexure II of Memorandum of Settlement dated 10th April, 2002 in modification of paragraph 521 of Sastry Award read with paragraph 18.28 of Desai Award.” The first two paragraphs, extracted above, constitute the charge against the petitioner. On receipt of the charge sheet, the petitioner submitted an explanation, denying the allegations made against him. A departmental enquiry was conducted, wherein one witness i.e., Branch Manager of Bhakrapeta, was examined as P.W.1 and the petitioner deposed in his defence. The Enquiry Officer submitted his report, holding that the charge framed against the petitioner is not proved. The 2nd respondent straight away disagreed with this finding and issued a show cause notice, dated 19.02.2004, proposing punishment. In W.P.No.5404 of 2004, this Court took exception to the same and left it open to the 2nd respondent to issue show cause notice, even for differing with the finding. Accordingly, a notice was issued and on a consideration of the explanation submitted by the petitioner, the 2nd respondent stuck to his earlier stand. Ultimately, an order of dismissal came to be passed. Therefore, it needs to be seen as to whether the exercise undertaken by the 2nd respondent in disagreeing with the findings of the enquiry officer conforms to the procedural and substantive requirements. The substance of the charge framed against the petitioner is that (a) one Mr. Obaiah made a remittance of Rs.8,000/- on 06.02.2003 to the credit of the loan account of one Sri Potta Jaya Sankara Rao and that the petitioner issued receipt of the same; (b) the petitioner did not account for the amount said to have been received by him on 06.02.2003; (c) Mr. Obaiah created an unpleasant scene in the premises of the branch on 06.02.2003; and that (d) the acts and omissions on the part of the petitioner had tarnished the fair image of the bank. In the domestic enquiry, the Presenting Officer did not produce the original of the counterfoil, dated 06.02.2003, and the Enquiry Officer refused to receive the xerox copy thereof. The documents, which were taken on record, comprised of cashier’s receipt scroll, dated 06.02.2003, and Gold Ledger Account of Sri Jaya Sankar Rao. The second document revealed that the gold loan account of Jaya Sankar Rao was closed on 17.03.2003 by making full payment. It is pertinent to mention that the Branch Manger, who was examined as P.W.1, stated that Mr. Jaya Sankar Rao, the Account Holder, did not make any complaint as to his remittances and on the other hand, he forwarded a notarized letter to the effect that he did not authorize anyone to make remittances to his account. There was no reference either by the Presenting Officer or by P.W.1 to any written complaint. In his written submissions, the Presenting Officer stated as under: “Although nothing can be proved based on the available exhibits, on my verification and on my enquiry I am of the opinion that the occurrence of the incidence i.e. misappropriation of Rs.8,000/- cannot be ruled out” The attention of the Presenting Officer and P.W.1 was specifically drawn to the allegation that Mr. Obaiah was said to have created a scene in the Branch on 06.02.2003. They have flatly denied that any such incident has taken place on 06.02.2003 and according to them, the incident took place on 21.03.2003. The enquiry officer furnished three reasons in support of his conclusion that the charge against the petitioner was not proved and they read as under: 1) Had the original counterfoil been produced the entire case would have taken a different turn. Since the original counterfoil could not be produced by the P.O. there is no documentary evidence to prove the allegation. 2) As the complainant could not be produced by the P.O. as witness, there is no oral evidence to prove the allegation. 3) As the borrower has himself confirmed in the notarized letter dt. 27-10-2003 (DEX 1) that neither he has paid nor sent anybody for remitting any amount into the AG Gold Loan account No.AGL 14/432 and AGL 14/866 from the date of opening till the date of closure i.e., on 17-03-2003. the borrower while closing the Gold loan on 17.03.2003 never raised any dispute regarding non-credit of Rs.8,000/- into the account. While proposing to differ with this finding, the 2nd respondent assigned the following reasons: “The basis of the enquiry is the oral complaint by Shri M.Obaiah on 20.03.2003. Shri Obaiah shouted and created an unpleasant scene in the Branch to make good the amount of Rs.8,000/- remitted by him on 06.02.2003 for the credit of gold loan A/c AGL 14/432. At that time the CSE was very much present in the Branch premises, neither did he respond nor refused the allegation by the complainant. Thereafter Shri Obaiah has advised vide his letter dated 21.03.2003 that he has received the amount of Rs.8,000/- from the CSE on 20.03.2003. Though the prosecution could not produce the original counterfoil it has produced the original letter dated 21.03.2003 along with the Xerox copy of the counterfoil issued by the CSE. The complainant (Mr.Obaiah) has come to the Bank on his own and complained about the misappropriation to the Branch Manager in normal course. During the course of enquiry the Branch Manager, PW1 has deposed that Shri Obaiah came to the Branch on 20.03.2003 and shown the original counterfoil for Rs.8,000/- dt 06.02.2003 and argued with him in loud voice against the misappropriation of his Rs.8,000/-. When the Branch Manger insisted to give the original, Shri Obaiah gave him only the Xerox copy of the counterfoil. This fact was mentioned in the letter dt. 21.03.2003 given by Shri Obaiah addressed to the Branch Manager of Bhakarapet. While the borrower has every opportunity to appear at the enquiry and give witness, he did not give evidence in the enquiry and instead he preferred to go all the way to Kadapa to a Notary Public and furnished a sworn affidavit dated 27.10.2003 wherein he confirmed that there was no discrepancy in his account. He has also taken interest to dispatch the affidavit to the Branch. What is the need for him to take all the trouble? This shows that the entire thing is stage managed by the CSE. Further it is clear that the C.S.E. alone has handled the transaction and there is no involvement of others. From the above CSE’s involvement in the transaction is clearly evident without any doubt and his intention is clearly to defraud the Bank.” In his explanation, the petitioner stated that the allegation in the charge is that Mr.Obaiah created a scene on 06.02.2003, whereas the 2nd respondent is now proceeding as though it took place on 20.03.2003. He further stated that the Presenting Officer was of the view that the occurrence cannot be said to have been proved. Certain other contentions have also been advanced. The underlined sentence virtually gives an altogether new dimension to the entire case. Not withstanding these aspects, the 2nd respondent arrived at a finding, vide his proceedings, dated 11.07.2005, as under: “I have carefully examined the submissions made by him for the notice given by me. He has not brought out any reasonable, valid points for consideration. In the circumstances, I hold him guilty of the charges leveled against him vide my Memorandum NO.DPC/RIV/017 dt. 30.05.2003” This was followed by a notice to the petitioner, as to why the punishment of dismissal shall not be inflicted. Another aspect of the matter is that even while issuing a show cause notice to the petitioner, directing him to explain as to why the punishment of dismissal shall not be inflicted upon him, the 2nd respondent observed that there are no extenuating circumstances, warranting lesser form of punishment. In his explanation, the petitioner repeated earlier contentions and urged that the finding recorded by the 2nd respondent is not correct. Ultimately the order, dated 30.08.2005, was issued, dismissing the petitioner from service. The above discussion makes it clear that the 2nd respondent has totally deviated from the record and held the petitioner guilty of something, which was not even alleged in the charge sheet. He relied upon certain documents, which the enquiry officer refused to take on record, or were not introduced in the domestic proceedings, at all. Except that he wanted to inflict the punishment upon the petitioner, the 2nd respondent was not mindful of the record or evidence. When the Presenting Officer himself was of the view that the petitioner cannot be said to have resorted to any act of misconduct, the 2nd respondent improved upon the entire matter. On merits also, neither the charge nor the conclusions arrived at by the 2nd respondent can be sustained. The Account Holder is one Mr. Jaya Sankar Rao. It was for him to make remittances or to raise any dispute in the event of any discrepancy being noticed. There was no occasion for Mr. Obaiah, a third party, to make remittances into the account of Jaya Sankar Rao. Even assuming that the latter authorized the former to make remittances, the question of any dispute being raised on the same day does not arise. On his part, Jaya Sankar Rao closed the entire account on 17.03.2003. In his letter to the Branch, he categorically stated that he did not make any remittances between the date of availing the loan and the closure of the account. He has also stated that he did not authorize anyone to pay amount to his account. The 2nd respondent did not pause and think, as to why the only person, who is said to have raised the dispute viz., Mr. Obaiah, was not examined as a witness, much less his complaint was made part of record. On the other hand, he took exception to the letter addressed by the Account Holder to the Branch Manger and made comments, which cannot be appreciated. This is one of the rare cases, where the disciplinary authority disagreed with the findings of the enquiry officer and held that the charge is proved, though neither the complainant was examined, nor the complaint was made part of record. He did not care to pay his attention to the clear discrepancies, as to the date of alleged incident or other aspects specifically pointed out in the explanation submitted by the petitioner. This Court is compelled to observe that the 2nd respondent acted in a most capricious, arbitrary and irrational manner and had marred the career of the petitioner for no fault of his. The appellate authority did not examine the matter from correct perspective. When the petitioner urged clear grounds of appeal, stating that the charge is about an incident said to have taken place on 06.02.2003 and the finding is about the one, dated 20.03.2003, he did nothing more than, repeating the observations of the 2nd respondent, at various points of time. He made reference liberally to the proceedings, which did not form part of record. For the foregoing reasons, the writ petition is allowed and the impugned orders are set aside. The petitioner shall be reinstated into service forthwith with all attendant benefits and back wages. The respondents are liable to pay costs of Rs.5,000/- (Rupees Five Thousand Only) to the petitioner. _________ 02.07.2008 Note: L.R.Copy to be marked. (B/o) JSU .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{JGK} THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.4036 of 2006 Date: 02.07.2008 JSU