*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition No.26521 of 2003 %28.01.2011 #K.S.Padma Rao ..Petitioner. Vs. $ The General Manager (Personal) and others. ..Respondents. !Counsel for the petitioner : Smt.Maria Desai ^Counsel for the Respondents : Sri C.R.Sridharan <Gist : >Head Note: ?Cases Referred: [1] AIR 1964 SC 1260 2 AIR 1997 SC 1908 3 (2000) 1 SCC 416 4 (2005) 2 SCC 237 5 (1996) 6 SCC 417 6 (1977) 2 SCC 491 7 2007 (1) ALD 713 8 2008 (1) ALD 317 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.26521 of 2003 ORDER: This case demonstrates as to how an employee of a bank in the lowest cadre was implicated for cash irregularities committed at the managerial level and the perverse manner in which the departmental proceedings were initiated and concluded against him. The petitioner was appointed as a Peon in the Union Bank of India in the year 1976. He was working as Daftary, since 1996. In 2001, he was working in the SSI branch of the bank at Ameerpet. He was served with a charge sheet on 01.10.2001. It was stated that on 21.08.2001, cash shortage of Rs.50,000/- in the branch was noticed, and the efforts of the branch officials to locate the shortage were of no avail. It was mentioned that the petitioner left the branch at 4.15 p.m. with the permission of the officer in the branch stating that he has to visit his uncle, who is undergoing treatment in a hospital. The allegation against the petitioner was that on 27.08.2001, he cleared debts of Rs.24,500/- and that in further enquiry by the bank officials, he confessed that he embezzled Rs.50,000/- from the safe and accordingly issued a confession letter. The petitioner submitted explanation stating that on 21.08.2001, all the officials of the bank came on time, but the cashier by name Jayaraj, came at 11.30 a.m. It was stated that a serious verbal exchange took place between the Branch Manager and the Cashier and after taking the second key from the cashier, the branch manager asked the latter, to apply for leave and go out. The petitioner has also stated that the branch manager operated both the keys, he accompanied him to the cash chest, and the cash, in a locked box was brought to the chamber of the manager, duly locking the chest. He narrated that the cashier did not leave the place and the branch manager went out at around 3.00 p.m., handing over both the keys to the cashier, after physical verification of the cash. According to him, he did not enter the cash room, after the keys were handed over to the cashier, and that he left the branch at 4.15 p.m., duly obtaining the permission from the officials. He has also drawn the instances of the cash irregularities committed by various officials in the immediate post, including one instance by the cashier himself. He stated that on 27.08.2001, he was taken into a room and a letter was obtained from by different officials of the banks, through coercion. The disciplinary authority-2nd respondent himself conducted the enquiry by himself and recorded a finding to the effect that the misconduct alleged against the petitioner was proved. After issuing a further show cause notice, the 2nd respondent imposed the punishment of dismissal from service against the petitioner, through order, dated 12.03.2002. The appeal filed before the appellate authority was dismissed on 15.07.2002. Hence, this writ petition. The petitioner contends that he was falsely implicated in the case, only to cover up the lapses on the part of the cashier and other officials. He submits that the discrepancy in the cash was brought to the notice of the branch manager by the cashier only at 8.00 p.m., on 21.08.2001 and no criminal case was filed against any one in the matter. He contends that six days thereafter, he was called into a lunch room by all the officials and union leaders and he was forced to sign a letter stating that he found five bundles of hundred denomination on the floor and he took the amount. The respondents filed a counter-affidavit, taking objection as to the maintainability of the writ petition. It is stated that an order of dismissal from service of an employee cannot be challenged straight away in writ petition. It is also stated that the petitioner did not approach the labour Court where he could have ventilated all his grievance. Reliance is placed upon certain decided cases. On each and every aspect, the counter-affidavit has dealt with, in detail. It is ultimately urged that the proceedings do not suffer from any legal or factual infirmity and that the writ petition is not maintainable. Smt.Maria Desai, learned counsel for the petitioner, submits that the allegation against the petitioner was baseless, and he was impleaded only to cover up the misdeeds on the part of the higher officials. She contends that if there was any theft or missing of cash, from the branch, the first and foremost thing would have been to submit a complaint to the police and the very fact that no such complaint was filed, nor any specific allegation is made discloses that there was a planned hush up in the matter. She contends that the so-called confession was procured under coercion and duress from the petitioner, who is a menial employee, and if that is excluded from consideration, there is hardly any basis for the disciplinary action. Learned counsel further submits that the person, who complained of the shortage of cash, is the cashier and the management did not chose to examine him as a witness much less initiated disciplinary action. She contends that it was the cashier who had altercation with the branch manager and even according to the record, the petitioner never accompanied the cashier when he operated the cash, and that the branch manager categorically stated that the cashier tallied the balance, when he was handed over the keys, and thereby the cashier alone was answerable for the shortage. She further submits that on an earlier occasion the cashier was found to have resorted to irregularities, whereas the record of the petitioner for the past 27 years is clean and unblemished. It is also submitted that the 2nd respondent himself conducted the enquiry and he did not permit or ensure that the witnesses examined in the enquiry on behalf of the management are cross- examined. She contends that a serious lapse has occurred in the proceedings. It is also her case that the 2nd respondent did not permit the defence representative to examine Dasari Narayana, from whom the petitioner borrowed the amount to clear the debts. Sri C.R.Sridharan, learned counsel for the respondents, on the other hand, submits that the writ petition is not maintainable in law. He contends that the jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked to challenge the disciplinary proceedings. He further submits that the petitioner ought to have moved the Labour Court, but has straight away approached this Court. By citing quite large number of judgments rendered by the Supreme Court and this Court, learned counsel submits that even if a different view is possible, on matters of this nature, this Court cannot interfere. By the time the petitioner was served with the charge sheet, he has put in about 27 years of service and was in fact at the verge of retirement. The undisputed facts are that on 21.08.2001, the cashier by name, Jayraj, who held the second key of the cash room, came to the branch late at 11.30 a.m., and the branch manager, by name Kumaran, was so unhappy that he took the key from the cashier and asked him to leave the branch. The cashier, however, did not leave the branch. The branch manager opened the safe room and asked the petitioner to accompany him to bring the cash. Though the cashier Jay Raj was asked to leave the branch, he too accompanied the branch manager into the safe room. The manager has taken required amount of cash in a box, locked it, and asked the petitioner to bring it to his chamber. Thereafter, he locked the safe room. He has drawn the cash for second time, but at that time, the petitioner did not accompany him, since he went out for clearing. The branch manager left the office at 3.00 p.m., and handed over both the keys to the cashier. The balance was tallied and the cashier was satisfied about it. The petitioner left the branch at 4.15 p.m., after obtaining permission. The cashier informed the branch manager at 8 p.m., on phone that there is a shortage of cash by Rs.50,000/-. To this extent, the record is consistent and there is no second version. The whole dispute is as to who is responsible for the shortage of cash. Next day, i.e. 22nd happened to be a holiday. The petitioner attended the branch on 23.08.2001. Except that there was talk as to shortage of cash, no proceedings vis-à-vis any employee emanated, much less any complaint was submitted to the police. It was only on 27.08.2001, that the petitioner is said to have given a letter of confession stating that he has picked up five bundles of hundred rupee notes in the cash room, with a view to handover the same to the cashier, but since he had an urgent work, he took away cash along with him, and that he undertook to return it. A charge sheet dated 17.01.2009 was issued to the petitioner. It is necessary to extract the text of charge sheet, to understand its purport: “The following acts of omission and commission have been reported on the part of Shri K.S.Padma Rao, while working as Daftary at SSI branch, Hyderabad: On 21.08.2001, there was a cash shortage of Rs.50,000/- in the cash during verification of cash at SSI branch, Hyderabad. The efforts made by the branch officials to locate the shortage were of no avail and ultimately cash was closed bypassing a voucher under the head ‘suspense account – shortage in cash’. On 21.08.2001, Shri Rao had left the branch at about 4.15 p.m. informing the Officer of the branch that he has to go to hospital to see his uncle. He left the branch with a bunch of covers for handing over at courier office even after being informed that the courier person will himself come to the branch for collection of covers meant for dispatch. On 27.08.2001, it was found that Shri Padma Rao had cleared a debt of Rs.24,500/- to two of his creditors. On further inquiry by the branch officials, Shri Padma Rao confessed that he had embezzled an amount of Rs.50,000/- on 21.08.2001 from the safe room and he gave confession letter to that effect. Shri Rao thus embezzled cash amounting to Rs.50,000/- in 5 bundles of Rs.100/- each and used the amount for repaying his creditors thereby using the amount for his personal gains. Shri Rao is informed that aforesaid lapses on his part constitute the following misconducts and he is hereby charged of the same: Gross Misconducts: Doing acts prejudicial t the interest of the Bank involving the Bank in serious monetary loss. Minor Misconducts: Breach of any rule of business of the bank. Shri Padma Rao is hereby required to submit his written explanation within 7 days of receipt of hereof by him showing cause as to why appropriate disciplinary action should not be initiated against him for the aforesaid charges/allegations leveled against him. If Shri Padma Rao fails to submit his explanation within the stipulated time, the matter will be proceeded further on that basis.” From a perusal of this, it is evident that the only basis for implicating the petitioner is that on 27.08.2001, it was learnt that he has cleared the debts of Rs.24,500/- to two creditors and that the petitioner had given a letter of confession. Under the heading, the ‘gross misconduct’, neither any specific acts or omissions were mentioned, nor any provision of the service regulations was indicated. The ‘minor misconduct’ alleged against the petitioner is still vague. In his explanation, dated 15.09.2001, the petitioner narrated the events of the day. In a way, it reflects the undisputed facts mentioned above, and further states that he did not enter the cash room along with the cashier, at all. In addition to that, he has furnished the following instances of cash irregularities in the branch: 1) “On 01-10-1996 an amount of Rs.20,000/- was reported missing and subsequently found near the lunch room door duly rapped in the newspaper. 2) Again in the month of November 2000, while cash was being checked by the technical officer Mr.Raviraj, an amount of Rs.5,000/- as found short ( in the denominations of Rs.500). The same was settled by putting a withdrawal of Head Cashier’s personal account. 3) Immediately on the following day of the above incident (2) Manager Mr.Kumaran, accompanied the Head Cashier while opening the safe and made a surprise checking and found an amount of Rs.1000/- short/missing in Rs.100 denominations. Upon this Mr.Jairaj got wild and abused the officer and accused them playing mischief with each. When Mr.Jairaj was informed that the matter is being reported to the regional office, Hyderabad he begged them and got the amount adjusted from his savings account.” The 2nd respondent himself conducted the enquiry. The Branch Manager was examined as MW.1 and MW.2 is the Assistant Manager from the Regional Office, who caused preliminary enquiry on 23.08.2001. The petitioner deposed as DW.1 and the efforts made by him to examine one Dasari Narayana from whom he is said to have borrowed Rs.25,000/-, was not permitted to be examined. The petitioner has filed the proceedings of the enquiry including the minutes of the enquiry officer, depositions etc. MW.1, by himself, did not attribute any acts of misconduct against the petitioner. On the other hand, he stated that to the best of his knowledge, the petitioner has no possibility of having access to open the safe. About the manner in which he handed over the charge to the head cashier, he stated as under: “I have handed over the charge of the cash department to the Head Cashier who satisfied himself and taken complete charge of the Cash. The physical verification of cash was made denomination wise and balances were drawn in cash balance book in the evening which was duly signed by the Head Cashier and the cash verifying Officer.” The defence representative asked MW.1 about the submission of letter of confession by the petitioner. The question and the answer given by MW.1 are as under: “DR: What assurances were given to Mr.Padma Rao and consequences were told to him if he is not confessing to responsibility to shortage of cash? MW-1: No assurances or no threats about consequences were made. We have only asked him to admit the truth.” The question put in the chief examination has its own significance. If something is suggested, the answer of the witness would not be of much relevance. Though the enquiry in disciplinary proceedings cannot be equated to trial in a Court of law, the basic tenets of law of evidence cannot be ignored. Indeed, the consequences that flow in disciplinary proceedings are sometimes more serious than that arise out of civil or criminal cases. An order of dismissal from service would not only cost the employee of his post, but also would deprive his family, of livelihood. Thereafter, the suggestion made by the DR. cannot be ignored. In the evidence of MW.1, there is not even an allegation or whisper about any act of misconduct against the petitioner. The evidence of MW.2 is hardly of any relevance except to the extent that he has submitted a report about the loss of cash. He did not utter a word against the petitioner. It is just un-understandable as to how the 2nd respondent took the view that the charge against the petitioner was proved. The petitioner was cross-examined at length by the representative of the management. His cross-examination was mostly about the manner in which the petitioner left the office. He did not allege that the petitioner had access to the cash or that he had taken away the amount. The effort made by the defence representative to examine one Sri Dasari Narayana was thwarted by the enquiry officer. The observation of the enquiry officer for refusing permission reads as under: “Since the identity of Sri Dasari Narayana could not be established conclusively, and his name in Official records and DEX-5 are different, he is not permitted as witness. You may proceed further by producing your next witness if any.” The following aspects can be gathered from the proceedings before the Enquiry Officer: 1) none of the witnesses who were examined by the management, alleged any acts of misconduct against the petitioner; 2) the head cashier, who was incharge of the branch after the branch manager left at 3 p.m., and who reported shortage of cash at 8 p.m., was not examined; 3) an adverse inference needs to be drawn to the effect that had the cashier been examined, as witness the lapses or acts of misconduct on his part, would have been elicited or established in the cross-examination; 4) the only basis for the respondents to implicate the petitioner was that he cleared debts to the extent of Rs.24,500/-. The petitioner made an effort to examine the person, who lent that amount, but he was prevented from doing so by raising an irrelevant and baseless objection by the 2nd respondent. The 2nd respondent recorded his findings in his report, dated 15.02.2002. After discussing the proceedings, in about 10 pages, the 2nd respondent summed up his findings as under: “I have carefully gone through the deposition of the witnesses and the documentary evidences brought on record at the time of the enquiry. I find that there was a cash shortage of Rs.50,000/- in the cash at SSI Branch, Hyderabad and the Branch Officials could not locate the shortage. It is not known how the cash was missing.” Then he found basis only in the letter of confession, dated 27.08.2001. It has come in the evidence that the petitioner made an attempt to submit a complaint to the police against the persons, wrongfully confined him and extracted the letter of confession. But the police did not receive it. His ultimate conclusion is as under: “It is clear from the sequence of the events that Shri Padmarao embezzled cash amounting to Rs.50,000/- in 5 bundles of Rs.100/- each and used the amount for repaying his creditors thereby using the amount for his personal gains.” From this it is clear that the 2nd respondent took the view that the petitioner embezzled the cash of Rs.50,000/-. The report is silent as to when the petitioner found the bundles of cash on the floor. The record discloses that he entered the cash room only once, along with the branch manager i.e.MW.1 and the latter did not state that the petitioner had come into possession of cash. The relevant portion of the evidence of MW.1 was extracted, which suggests that before leaving the branch at 3 p.m., he handed over the keys and charge of cash to the head cashier, and the latter, physically verified the cash and found the same to be correct, was already extracted. Therefore, any shortage could have occurred only after the cashier assumed the charge of the branch. No where in the proceedings it was alleged that the petitioner had entered the cash room along with the cashier, after 3 p.m. The petitioner left the branch for the day at 4.15 p.m., after obtaining the permission. The person who was in-charge of the branch i.e. the cashier did not give any written complaint nor did he depose as a witness. What happened outside, cannot be a matter of anybody’s concern. The petitioner stated that he cleared the loans of Rs.24,500/- by borrowing it from one Dasari Narayana. Even if that explanation is not true, by itself it does not provide a link between the petitioner and the shortage of cash. The entire approach of the 2nd respondent, both in his capacity as enquiry officer, and disciplinary authority was perverse. It is just un- understandable as to why he did not think of examining the person, i.e. head cashier in whose charge the shortage occurred. There was serious lapse on the part of the administration in not filing a complaint to the police. The instances of cash irregularities committed by various officials, including the head cashier that were cited by the petitioner in his explanation were glossed over. He was made a scapegoat by the highly placed officials in the bank. They did not hesitate to implicate a person belonging to downtrodden community, namely scheduled caste, who has unblemished career of 27 years and was at the verge of retirement. The roles played by MW.2, who conducted the enquiry, and respondent no.2, who acted as disciplinary and enquiry authority deserve to be deprecated. If at all anyone it was the head cashier against whom the needle of suspension ought to have pointed out. For obvious reasons, he was kept at a distance from the entire enquiry. A poor class-IV employee was made the target. The prejudice on the part of the 2nd respondent is evident from the fact that he exhibited his indulgence in preventing a defence witness from being examined, by raising a totally irrelevant ground. Such person was indeed unfit to be conferred with the powers of disciplinary authority, since hardly there was element of fairness in his approach. The appellate authority, at least, ought to have bestowed its attention and come to the rescue of the poor employee, who was falsely implicated. It also had fallen in line and gave an impression that the administration of the bank is interested more to cover up the higher officials and make the petty ones, the scapegoats. The respondents raised a serious objection as to the maintainability of the writ petition. It may be true that the petitioner could have invoked the jurisdiction of the Labour Court or Industrial Tribunal under Section 2-A(2) of the Industrial Disputes Act, as it applies to the State of Andhra Pradesh. Had such an objection been raised at the threshold, there would have been an occasion for the petitioner to seek such a remedy. Eight years have elapsed, since the writ petition was filed. This is not a case of different conclusion being arrived on re-appreciation of evidence. It has been demonstrated clearly that it is a case of false implication, and of no evidence. Even if the charge sheet is taken on its face value, no penal consequences would entail against the petitioner, in case the so-called letter of confession is ignored. The law requires the Courts or authorities, to proceed with utmost caution whenever occasion arises to act upon confessions of an individual, who would stand to loss, if it is acted upon. It is not at all safe to act upon a confession, particularly when the person concerned strongly pleads that it was obtained, with duress and coercion. The matter involving the career of an employee cannot just rest upon such confessions. If any misconduct is alleged against him, it must be proved independently. The law is fairly well settled that where the findings against an employee are based on no evidence, they cannot be sustained in law. Learned counsel for the respondents placed reliance upon quite large number of decisions, prominent among them, being Basant Kumar Sarkar v. The Eagle Rolling Mills[1]; Raibareli Kshetriya Grameena Bank v. Bholanath Singh[2]; High Court of Judicature of Bombay v. Shashikant S.Patil[3]; Divisional Manager, Plant Division, Andaman and Nicobar Islands v. Mannu Barrick[4]; State of Rajasthan v. B.K.Meena[5]; State of Haryana v. Rattan Singh[6]; G.V.Triveni Prasad v. Syndicate Bank, Manipal, Karnataka[7]; and M.C.Jena v. Commandant,