IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.857 of 2009 Manoj Kumar son of Late Kedar Nath Singh, resident of village- Mohabbatpur, P. O. Ranipur, District- Patna. … Petitioner- Appellant Versus 1. The General Manager,S.B.I., Gandhi Maidan, Patna. 2. Deputy General Manager Zonal State Bank of India Office, Fraser Road, Patna. 3. Assistant General Manager (II) State Bank of India Zonal Office, Fraser Road, Patna. 4. Branch Manager, State Bank of India, Sai Branch, Patna. .. Respondents ----------- For the appellant : Mr. Abhay Kumar Singh, Sr. Adv. : Mr. Surendra Prasad Singh, Adv. For the respondent : …. -------- 5. 15.02.2010 Heard learned counsel for the appellant. Learned Senior counsel for the appellant writ- petitioner while assailing the order of punishment in a departmental proceeding and its affirmance by the learned single Judge in the impugned order dated 27.3.2009 in CWJC No. 13805 of 2002 has submitted that the charge on which he was dismissed from service were not actually attributable against him. In this context, he had tried to assail the findings of the Enquiry Officer by taking a plea that the appellant-writ petitioner holding the post of cashier was punished for the lapses and misconduct committed by the Branch Manager of the concerned 2 branch of the State Bank of India, hereinafter referred to as the Bank. In nut shell the whole effort of the learned Senior counsel for the appellant-petitioner was that this Court should examine the charges and re-appraise the evidence adduced in course of departmental proceeding of the appellant-writ petitioner. On a perusal of the enquiry report, this Court would find that the charge against the petitioner was proved with the help of as many as 12 documentary evidence and four witnesses examined by the Bank wherein the enquiry officer had also taken into consideration the evidence of five defence witnesses produced by the appellant-writ petitioner in course of enquiry. The enquiry report would go to show that there was a detailed analysis of said evidence in respect of each of the charge whereafter the Enquiry Officer had found the charge no. 1 and 3 to be proved by recording following findings:- “Charge No. -1 The defence argument vide defence brief ( page 5 para 3 ) that Shri Arshod Hussain received the money from different depositors and the money was pocketed by him instead of depositing the same in the Bank is not tenable. It is also 3 not established by the deposition of Defence Witnesses. The counter foil of the deposit slip has been issued by the charged employee. The ledge entry has also been made by the charged employee. When the charged employee released the counter foil of the deposit slip, he should have asked for the money to be deposited in the Bank, from the Branch Manger, if in fact the money was not received by him at the counter. Nothing has been produced or said by the charged employee and or his defence counsel to substantiate their statement. b) The defence argument vide Defence brief (page 4, para-2) that Branch Manager was acquainted with the initial and signature of the charged employee Shri Manoj Kumar and he was in a mood to take revenge by putting the initial of Shri Manoj Kumar in such a fashion that the outcome of his action may inflict the penalty to Shri Manoj Kumar is also not tenable, as it is not stated any where as to why the Branch Manager wanted to take revenge with the charged employee. It is just a late thinking and not tenable. c) The defence argument vide defence, brief ( page-5 last para) that the learned Presenting Officer knew the facts, truth that is why he did not take trouble to seek the report of expert opinion to examine the genuineness of the initial and signature of the charged employee Shri Manoj Kumar, rather he believed on the deposition of the Branch Manger Shri Arshad Hussain who is himself involved in the case is baseless. This argument is of the defence counsel is not worth considering as it is made at a late stage and no where during the course of enquiry, the charged employee the Defence Counsel ever raised such objections/denied about the 4 genuineness of the initial/signature of the charged employee appearing on various document produced as prosecution exhibits. it is also a case of late thinking on the part of defence counsel. d) The Presenting Officer’s argument that the charged employee, while officiating as Cash Officer did not deposit the amounts received by him in the Bank (as mentioned in the charge sheet on various dates) is fully established with the help of the deposition of the prosecution witness and the Prosecution Exhibits PEX- 1 to PEX-4, PEX.7 to PEX-9, PEX-11 to PEX-12. The charge no. 1 as such stands proved. Charge No. 3 The defence counsel argument that the DW. 5 made the statement before the enquiry that he deposited Rs.600/- in the Bank on 8.9.1998 and not on 25.8.98 is not tenable as the DW. 5 did not produce any receipt (deposit slip counter foil of deposit slip) to show that he actually deposited the money on 8.9.1998. More over, Shri Manoj Kumar did not enter the amount in respective account in the ledger on 8.9.98 also establishes that the money was not deposited by the depositor on 8.9.1998 rather it was actually deposited on 25.8.98. The Presenting Officer has been able to substantiate this charge with the help of PEX-3/5 and PEX-.. that the amount of Rs…. was actually deposited by the depositor for credit in his amount on 25.8.98 and that the date of deposit slip was overwritten to read as 8.9.98 by the Charged Employee. I have looked into the enquiry proceeding register, and have also carefully 5 analyzed the prosecution and defence arguments, witnesses and exhibits, and find that charge no. 1 and 3 are well proved and charge No. 2 stands not provided.” . Such findings of the Enquiry Officer was thereafter also confronted to the appellant-writ petitioner by the Disciplinary Authority by supplying enquiry report and Disciplinary Authority by an order dated 14th August 2001 after affording an opportunity of hearing had recorded the following findings:- “ You have stated that “ you have been made scapegoat in the entire game of deep conspiracy taking advantage of your innocent character”. However, there is no such finding/hint in the Enquiry Report and so your contention does not stand. You have further contended:- (a) “There are no direct allegations/charges by the Prosecution Witnesses and the Presenting Officer held to prove the charges”. This contention is innocent as the depositions of P.W.-1 and P. W. 4 mentioned on page -6 of the Enquiry Report, indicate otherwise. (b) “ During the Enquiry, none of the depositions of the S/B account holders as mentioned in the charge sheet, alleged/deposed me for receiving the Cash amount from them in the branch premises”. This contention too does not stand. The depositors may not be remembering your face and name when you were seated behind the cash counter, but P. W. 1 and P. W. 4 have 6 clearly stated that they deposited the money at the cash counter. Further, the counterfoils of the vouchers bear your initials/signatures. Thus, the allegation is substantiated. (c) “ Shri Bhuneshwar Singh (D.W.1) Shri Bijendra Prasad (D.W./2) & Shri Ram Pravesh Prasad (D.W.4), appeared before the Enquiry and confirmed that the amount was received by the then Branch Manager Shri Arshad Hussain and not by me.” The documentary evidence is that the cash receipts bear your initials/ signature which means that the money was received by you. Thus, the depositors of D.W.-1, D.W.-2 and D.W.-4 referred to above appear to be concocted at the direction of the Defence Counsel. Hence, your contention falls. (d) “ Para (ii) of charge No. 1 it has not emerged/confirmed the possibility(ies) of removal of vouchers (as mentioned an para (i)) during the course of Enquiry either by the Prosecution Witness/ Learned Presenting Officer or Defence Witness.” In this connection, this part of the charge is proved as the part (i) of Charge-1 stand substantiated and proved. B) Your contention regarding charge No. 3 that the difference in dates (15th August 98 and 8th September 98 ) is due to clerical mistake on your part is not acceptable by any stretch of imagination. The entries in the pass book and ledger are both dated 25.8.1998 and still you say that you received the money on 08.09.1998 ? How can it be so? In view of what is stated above, I am of the confirmed opinion that it is proved that you are a person of doubtful integrity who adopted low means for patty 7 gains. Therefore, I see no reason to change the proposal to inflict the punishment of “REMOVAL FROM SERVICE WITH IMMEDIATE EFFECT” vide para 4 of the show cause memorandum referred to above. Accordingly, I order that the punishment of “REMOVAL FROM SERVICE WITH IMMEIDATE EFFECT” be and hereby is inflicted upon you.” Such finding of the Disciplinary Authority was again made subject matter of an appeal preferred by the appellant-writ petitioner and the appellate authority in speaking order had dealt each and every contention of the appellant- writ petitioner in the following terms:- “…4. The submissions made in your appeal dated 24.9.2001 may be summarized as under:- (a) You have mentioned without any supporting example of the case that the requirement of natural justice has not been followed. But from the perusal of proceeding register and other records I find that the requirements of natural justice have been met in full. (b) You have considered that placing you under suspension is by way of punishment; however, you should be aware that suspension is never considered as punishment rather it is an administrative action. (c) That the charges contained in the charge-sheet are bogus and they are not concerned with you. That the charges leveled against you are due to deep conspiracy. You have been given ample opportunity to prove this but you failed to bring forth any supporting 8 fact and as such the charges were proved in the enquiry. Therefore your this statement does not carry any weight. (d) It is true that the amounts in the pass book were entered by you on the basis of respective ledgers as per the Banking Practice but the entries were made in the ledger by you and therefore you are fully responsible for the misconduct of misappropriation of depositor’s funds. (e) As per the records you have been given sufficient opportunity to call all the witnesses in the enquiry and examine them as well as the documents required by you were provided as per rules. And therefore your statement that such request was not heeded by the enquiry officer does not stand. (f) You have said that the account holders (1) Shri Bhuneshwar Singh (2) Shri Bijendra Prasad (3) Shri Ram Pravesh Prasad had deposed as witnesses before the enquiry that the money was received by the Branch Manager. However, the receipts of the same were issued by you. How could you have issued a receipt without receiving the cash ? Thus, it is clear that the cash was received by you which you then misappropriated. (g) The credit for Rs.600/- to the account No.-11189 of Shri Anuj Kumar on 25.8.98 cannot be considered as clerical mistake/slip of pen as there have been credit entries on 01.09.1998 and 7.9.1998 and a withdrawal entry on 09.09.98 after the credit entry of 25.8.98. Morever, Shri Anuj Kumar did not produce any receipt dated 8.9.98 except his verbal deposition. Therefore, deposit made by him on 25.8.98 which was misappropriated by you is established. 9 (h) The enquiry officer observed that defence witnesses are deposing against their previous written statements and against documentary exhibits. Their deposition is also not supported by any documents. Therefore, very correctly on the basis of preponderance of probability, it is observed by the enquiry officer that the statements of defence witnesses have been made on the direction/instigation of the defence counsel. 5. To sum up I observe that You have been given proper opportunity to call any defence witness as also cross examine prosecution witnesses and therefore your appeal that you have not been given proper opportunity does not stand. There are several receipts signed by you and other evidences also including the statement of the Branhc Manager against you. All the statements in the appeal are an after thought and without any supporting evidence. 6. Overviewing the case in its entirety including your appeal dated 24.9.2001 and in view of my observations given above, I have no hesitation in confirming and upholding the punishment inflicted by the Disciplinary Authority i.e. “REVMOVAL FROM BANK’S SERVICE WITH IMMEDIATE EFFECT”. Eventually when the appellant- writ petitioner had filed the writ application, the learned Single Judge on the basis of his detailed analysis on the material on record had held as follows:- 10 “ ……..The disciplinary authority on 14.8.2001 considered the objections of the petitioner and by specific discussion of the evidence of witnesses during enquiry, vis- à-vis, the objections raised by the petitioner found them to be untenable. The disciplinary authority held that the evidence of P.W. 1 and P.W.4 before the enquiry officer fully established the charge. To his defence that the depositors did not name him, the disciplinary authority held that the depositors may not be remembering his face and name, but the petitioner was the person on duty at the cash counter that day when P.W.1 and P.W.4 had clearly stated that they had deposited the money at the cash counter. The counterfoils of the vouchers with regard to the deposit bore the initial and signature of the petitioner. The documentary evidence of the cash receipts bore the initials and signature of the petitioner. Orders of punishment from removal from service with immediate effect were passed. The petitioner went in appeal which was rejected by an order dated 19.1.2002. The appellate order is reasoned. It considers appropriately the grounds raised in appeal and then discusses them in context of the evidence available on record. It also notices the money receipts issued by the petitioner when the defence witnesses were deposing against their previous written statements and documentary evidence. Applying the standards of preponderance of probabilities the order of punishment required no interference. The law with regard to departmental proceedings stands well codified by repeated judgements. This Court is required to 11 examine procedural fairness in the decision making process. Naturally such decision shall take within its ambit a fair opportunity to defend, disclosure of all materials sought to be relied upon against the delinquent and a reasoned order. The petitioner himself has chosen not to bring on record the enquiry report. The disciplinary authority and the appellate authority have in detail discussed the substance of the enquiry report. The petitioner was a person holding cash duties in a bank, in the position of a trustee of the money of the customers. The appellate order takes note of the conclusion of the disciplinary authority that he is a person of doubtful integrity and unfit to be retained in the service of the bank. The standard of duty of a bank official holding the position of trust with regard to the money of the account holder and the strict standards that shall be applied to them has been laid down by the Supreme Court in the case reported in (2008) 8 S.C.C. 92 ( STATE BANK OF INDIA AND OTHERS Versus S.N. Goyal ) holding at paragraph-41 as follows, of the higher responsibilities of a bank official dealing with the money of customers:- “41. At the relevant point of time the respondent was functioning as a Branch Manager. A bank survives on the trust of its clientele and constituents. The position of the Manager of a bank is a matter of great trust. The employees of the bank in particular the Manager are expected to act with absolute 12 integrity and honesty in handling the funds of the customers/borrowers of the bank. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment. When a borrower makes any payment towards a loan, the Manager of the bank receiving such amount is required to credit it immediately to the borrower’s account. If the matter is to be viewed lightly or leniently it will encourage other bank employees to indulge in such activities thereby undermining the entire banking system. The request for reducing the punishment is misconceived and rejected.” This Court, in the facts and circumstances of the case, is satisfied that there is no infirmity either in the departmental proceeding or the order of the disciplinary authority and the appellate authority requiring interfering by this Court. This Court shall not sit as an appellate authority to reappraise the evidence before the enquiry officer on the basis of which findings have been arrived at. The writ application is dismissed.” In the opinion of this Court, the case of the appellant- writ petitioner has been considered thread bare by the Enquiry Officer, Disciplinary Authority and the 13 Appellate Authority and there does not seem to be any error in the decision making process. Learned single Judge has rightly held that this Court in exercise of power under Article 226 while adjudicating on the order of punishment in a Departmental Proceeding cannot go into the merits of findings on the charges and has to restrict itself while making judicial review on procedural infirmities only. Such view of the learned single Judge in fact is in keeping with the law laid down by Apex Court in large number of cases wherein it has been held that the writ court cannot go into the merit of the charges. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of B. C. Chaturvedi vs. Union of India and others, reported in 1995(6) SCC 749. Thus, having given anxious consideration to the submissions made by the learned counsel for the parties as also the detailed considerations made by learned Single Judge, this Court is of the opinion that there is no procedural irregularities in the departmental proceeding. The appellant-writ petitioner infact was given a reasonable opportunity in course of departmental proceeding for 14 defending himself and the principles of natural justice were strictly complied with at all the stages of such proceedings. That being so, we have no reason to take a different view and accordingly, we affirm the order of the learned single judge and dismiss this appeal. There would be however, no order as to costs. kanchan (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)