THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WP No. 7784 of 2011 ORDER: This writ petition has been instituted seeking a Writ of Mandamus for declaring the initiation of departmental proceedings against the petitioner by the 1st respondent – Bank, while leaving some other officers who are also involved, as violative of Articles 14 and 16 of Constitution of India and consequently to defer till such time the comprehensive departmental proceedings are initiated against all the officers suspected to be involved in the alleged irregularity/fraud in Cr. No. 22/09 on the file of Habeeb Nagar Police Station, Hyderabad. The writ petitioner is said to have joined the service of the 1st respondent – Bank as a Typist-cum- Clerk on 17.2.1987. After having worked at various places, at the relevant point of time, the petitioner was working as `Data Entry Operator’ at Darussalam Branch of the 1st respondent – Bank. Suspecting his involvement in a fraudulent credit transaction running over Rs.3.4 lakhs, he was placed under suspension by the Asst. General Manager of the Bank, the disciplinary authority, on 27.4.2009. It was alleged that the writ petitioner has posted a credit entry in a sum of Rs.3,40,169.29/- into SB A/c No. 62007663244, by correspondingly debiting the TDR Interest expense A/c and deposit @ call account. It is also alleged that the petitioner has withdrawn a sum of Rs.3,20,000/- from the aforementioned SB A/c on the same day. According to the writ petitioner, he was pressurized to accept the guilt behind these fraudulent transactions and succumbing to the same he addressed two letters on 2.5.2009 and 27.5.2009 accepting the irregularities and subsequently paid an amount of Rs.One lakh on 5.6.2009 with a promise to pay the balance amount in instalments. The petitioner alleges that contrary to the promise made, a complaint was lodged against him with Habeeb Nagar Police Station on 8.10.2009 alleging misappropriation of an amount of more than Rs.14.19 lakhs. Accordingly, Crime No. 22/2009 was registered in connection thereof. The petitioner was granted anticipatory bail subject to certain terms and conditions on 16.11.2009 by this court. There afterwards, the 2nd respondent-disciplinary authority has drawn a charge sheet against the petitioner on 15.3.2010 levelling serious allegations against the petitioner that he has fraudulently caused loss to the bank to the tune of more than Rs.14.31 lakhs and correspondingly gained pecuniary advantage for himself. The writ petitioner submitted his detailed explanation to the charge sheet on 29.3.2010. But, however, the 2nd respondent has proceeded further in the matter by ordering for domestic enquiry to be conducted by the 3rd respondent herein. The writ petitioner, has stated in paragraph 4 of the affidavit filed in support of the above writ petition that he had attended the enquiry and that the enquiry proceedings were concluded on 9.3.2011 granting ten days time for submissions to be made by the Presenting Officer. However, the petitioner submits that the police who have undertaken the investigation into Cr. No. 22/09 seem to have called for certain confidential information from the 1st respondent – Bank with regard to five officers who either worked or associated with the functioning of Darussalam Branch during the relevant period for recording their statements. It is further stated by the petitioner that the request of the police has been acceded to by the bank and in their letter addressed to the police, the bank has suspected the role of five officers, in the fraudulent transactions alleged to have been carried out by the petitioner. It is further stated by the petitioner that the police have also sought for legal opinion from the Assistant Public Prosecuting Officer of the XVI Addl. Chief Metropolitan Magistrate Court, Hyderabad, about the feasibility of proceeding against those five officers also. Therefore, the petitioner submits that the bank as well as the investigating police have narrowed down upon the role played by the five officers along with the petitioner herein in the alleged irregularities, that resulted in causing of loss to the 1st respondent – bank. The petitioner submits that as a `Data Entry Operator’ his principal concern and job is to collect the data and feed the same to the computers. He will not be generating any data on his own. His main job was to feed the data in the appropriate files maintained in the computer. Fraudulent transactions or irregular transactions, if any, that have come to be noticed either by the bank or by the police, they could be the work of some other person associated or working with the bank. A Data Entry Operator, therefore, pleads the petitioner, cannot be singularly subjected to the discriminatory treatment by the 1st respondent – bank. The writ petitioner contends that leaving out the rest of the officers of the bank, he has been hostilely picked up for the disciplinary proceedings so that the cases of the other officers can be swept under the carpet later on. I have heard Sri A.Ramalingeswara Rao, learned counsel for the petitioner. While reiterating the contentions canvassed in the writ petition, the learned counsel for the petitioner places reliance upon the following two judgments of the Supreme Court, in support of his contention that even in matters of disciplinary control, the employer, being a State is not justified in discriminating: (1) State of M.P. v. Sheetla Sahai – (2009) 8 SCC 617 (2) K.Sukhender Reddy v. State of A.P. – (1999) 6 SCC 257 The petitioner being an employee of the 1st respondent – bank, is undoubtedly under disciplinary control of the said bank. It is open, therefore, for the 1st respondent – bank, to proceed against the petitioner as a part of its disciplinary control exercise. However, what is pointed out by the petitioner is that the 1st respondent – bank has chosen not to proceed against five of its officers, who the 1st respondent – bank itself has suspected to have played a role in the alleged fraudulent transactions. The 1st respondent – bank is under an obligation to investigate all such allegations resulting in deliberate financial loss caused to it. So long as there is no reason to suspect the bona fide conduct of an employee, every loss that occasioned has got to be investigated and enquired into. As part of its business operations, if the bank has not either earned profit or if it has also ended up making loss, the decision making process concerning such transactions so long as are maintained transparently and fairly, per se, they may not attract penal consequences. Not all important decisions taken for running business operations may invariably end up in profit making. But, however, all the transactions must be safe and secure from improper motives on the part of the concerned. The 1st respondent – Bank is a State. It carries on its operations for providing various varieties of banking and other financial services. Some of those services could be to discharge some of its social obligations for providing various varieties of financial services. Some of those services could be to discharge its responsibilities and obligations towards a larger society, without a profit motto. As a policy, the bank itself may not keep an eye on an element of profit making in such transactions. But, nonetheless, every decision taken by its officials, owe an explanation and accountability firstly to those who have entrusted with the task of managing the affairs of the bank and secondly to the funding agencies including, all its stakeholders. As a part of its financial resource pooling, the 1st respondent – bank was dealing with the monies collected by it from its customers, where an element of trust is inbuilt into such transactions and hence the bank owes an explanation to such customers whose monies have not been properly accounted for or utilized. Any action, which is likely to reflect laxity on the part of the 1st respondent – bank can easily end up in eroding confidence of the customers of the bank in the institutional safety of their money. In the minds of the customers of the bank, their monies are put to a profitable enterprise. The Bank, hence can ill afford to loosing customer support. Therefore, the 1st respondent – bank has got to necessarily examine as to whether there is any merit in the allegation leveled by the petitioner that the 1st respondent-bank itself has suspected the role played by five of its officers. Only after close and careful examination of the material so far gathered, the 1st respondent bank will be in a position to take an appropriate decision as to whether such officers also are needed to be proceeded against or not. The Bank, I am sure, will not be shielding some officer or other in this respect. The Supreme Court in Sukhender Reddy’s case (supra) has clearly pointed out that when several others have played distinctive roles in a chain of events which led to the ultimate decision, picking up one insignificant character for disciplinary action leaving out the rest of the players is not justifiable. I n Sheetla Sahai’s case (supra 1), it is stated in paragraphs 49 to 54 as under: “49. It is also interesting to notice that the prosecution had proceeded against the officials in a pick and choose manner. We may notice the following statements made in the counter-affidavit which had not been denied or disputed to show that not only those accused who were in office for a very short time but also those who had retired long back before the file was moved for the purpose of obtaining clearance for payment of additional amount from the government, viz., M.N. Nadkarni who worked as Chief Engineer till 24.03.1987 and S.W. Mohogaonkar, Superintending Engineer who worked till 19.06.1989 have been made accused but, on the other hand, those who were one way or the other connected with the decision, viz., Shri J.R. Malhotra and Mr. R.D. Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made. 50. In Soma Chakravarty (supra), whereupon strong reliance has been placed by Mr. Tulsi, this Court opined: ‘23. In a case of this nature, the learned Special Judge also should have considered the question having regard to the "doctrine of parity" in mind. An accused similarly situated has not been proceeded against only because, the departmental proceedings ended in his favour. Whether an accused before him although stands on a similar footing despite he having not been departmentally proceeded against or had not been completely exonerated also required to be considered. If exoneration in a departmental proceeding is the basis for not framing a charge against an accused person who is said to be similarly situated, the question which requires a further consideration was as to whether the applicant before it was similarly situated or not and/or whether the exonerated officer in the departmental proceeding also faced same charges including the charge of being a party to the larger conspiracy. 51. There cannot be any doubt whatsoever that the tests for the purpose of framing of charge and the one for recording a judgment of conviction are different. A distinction must be borne in mind that whereas at the time of framing of the charge, the court may take into consideration the fact as to whether the accused might have committed the offence or not; at the time of recording a judgment of conviction, the prosecution is required to prove beyond reasonable doubt that the accused has committed the offence. 52. In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the charge sheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, Sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless. 54. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial. {See State of Maharashtra and Ors. v. Som Nath Thapa and Ors. (1996) 4 SCC 659}.” However, the fact that disciplinary proceedings have not yet been initiated against some other officers, so far who were also suspected to have played a part in the irregularities, does not come to the rescue of the petitioner to insulate himself against the disciplinary proceedings initiated against him for the present. Each and every employee is bound by the principle of discipline, required to be exhibited by him. The fact that some others also lacked in possessing the required traits, will not help the petitioner to ward off the disciplinary proceedings initiated against him. Further, it is for the employer to take an appropriate and informed decision with regard to subjecting all the officers to disciplinary action at one time or to defer the same by appropriate length of time. The assessment in this regard is based upon the availability of clear and crisp material against each of them. Holding a common or joint enquiry in certain cases cannot be considered as mandatory but would only be a desirable one, as it would help the employer to clean up it’s decks in quick time. The decision in this regard is one of discretion which the employer is required to exercise upon a careful analysis of the material gathered by it. Hence, I cannot accede to the request of the petitioner in this regard. It is therefore not appropriate for this court to entertain this writ petition or allow the disciplinary proceedings initiated against the petitioner to drift away from the chartered course of action. He has to navigate for the present, all alone. It is for the Bank to take a decision as to whether a joint action would be desirable or it would be expedient to precede each of the officers, for the specific role played by him. Therefore, this writ petition is dismissed at the admission stage. However, the 1st respondent – bank will take appropriate decision after a careful scrutiny of the material gathered against five other officers as alleged by the petitioner and take appropriate decision in the matter within a period of three months from the date of receipt of this order. --------------------------------- Nooty Ramamohana Rao, J knk 13th April 2011