IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2449 of 1985 For Approval and Signature: HON'BLE MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgment? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- H C MANIAR Versus STATE BANK OF SAURASHTRA -------------------------------------------------------------- Appearance: MR BK DAMANI for the Petitioner. MR BM MANGUKIYA for the Petitioner. MR JD AJMERA for the Respondent. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE P.B.MAJMUDAR Date of decision: 12/11/2003 ORAL JUDGEMENT 1. By filing this petition under Article 226 of the Constitution of India, the petitioner has challenged the order of compulsory retirement dated 28th March, 1985, which is passed by way of punishment. 2. The petitioner has joined the respondent-bank as a Clerk in the year 1963 and, subsequently, he was promoted in October, 1978 as Officer Grade I. The petitioner was subjected to charge sheet dated 24.2.1980, at the time when he was serving as Assistant Accountant at the Jamnagar Branch of the Bank. As per the charge sheet, the petitioner was subjected to the following five charges :- " ... ... ... (i) That with a view to cause personal gains to yourself and wrongful loss to the bank, you had encashed withdrawals of Rs.1,000/- on 5.2.79, Rs.750/- on 17.2.79 and Rs.1,000/- on 5.6.79, drawn on your joint savings bank account No.4542 maintained with Bank's Bhavnagar (Krishnanagar) Branch even though no sufficient balance was lying in the said account to cover the amount of aforesaid withdrawals and thus utilised the bank's funds for your personal use for pretty long period. (ii) That you had with an ulterior motive not forwarded two withdrawals, i.e. of Rs.1,000/- and Rs.750/- discounted by the Branch on 5.2.79 and 17.2.79 respectively from you and either misplaced or destroyed said instruments along with branch's forwarding letter. (iii) That in order to create an impression that relevant documents in respect of your withdrawal for Rs.1,000/- encashed by you on 5.2.79, were not forwarded by you willingly; you had also misplaced or destroyed the I.C.C. No.22 along with its documents in respect of bank's other party discounted by the branch on the same day; (iv) That you had with an ulterior motive misplaced or destroyed the registered post cover containing returning memo of your withdrawal of Rs.1,000/discounted by the Branch on 5.6.1979, along with related papers received back from our Bhavnagar (Krishnanagar) branch by our Jamnagar (R.R.) Branch on 22.6.1979. (v) That you had with an ulterior motive misplaced or destroyed the list of the registered post for 22.6.79 received from the postal authorities. ... ... ...." As per the charge sheet, at Annexure 'A', which is at page 14 of the compilation, the petitioner had abused his position as an Officer handling bills / despatch etc. departments of the Branch during his tenure as Assistant Accountant and, thereby failed to discharge duty with utmost integrity, honesty, devotion and diligence and acted in a manner which is unbecoming of an Officer of the Bank. It is also alleged that the petitioner has discounted / negotiated cheques / withdrawals drawn on his account without sufficient balance therein, by which he has contravened the provisions of Rule 50(4) and 60(2) of the bank's Regulations, i.e. State Bank of Saurashtra (Officers') Service Regulations, 1979. The petitioner was called upon to submit his explanation in that behalf. Statements of allegations were also submitted along with the charge sheet, with necessary documents and list of witnesses. 3. The petitioner, thereafter, gave his explanation. In his initial reply dated 6th October, 1979, which is at page 22, at Annexure 'C' in the compilation, the petitioner has stated that it is not correct to say that he was in charge of bills, despatch and other sections and that he used to work on the table under direct control and supervision of the Branch Manager and Sub Manager. It is, therefore, stated by him that he cannot be held responsible for the lapses occurred in bills and despatch section. So far as the charge regarding three withdrawals is concerned, his explanation was that he was maintaining a joint savings bank account at Krishnanagar Branch of the Bank at Bhavnagar, with his three brothers, bearing account No.4542, and that he was assured by his brothers that they will keep sufficient balance in the account and that due to some unforeseen circumstances, his brothers could not manage to deposit the required fund in time and at the time of encashment, the petitioner was under the impression that sufficient funds are available to cover the aforesaid three withdrawals and, therefore, the said three withdrawals were made in good faith and without any bad motive. As stated above, the aforesaid explanation is produced at page 22. The petitioner also gave further explanation, by his letter dated December 20, 1979. In the further explanation, the petitioner gave instance of a similar omission, which had occurred in the case of another employee, wherein the said employee was treated liberally in the matter of imposing punishment. Regarding misplacement / non-reaching of the instruments to the drawee office, the petitioner has pointed out, in his additional explanation, that the Branch does not maintain Vouchers / Instruments Movement Register and in absence of such evidence, the Bank cannot hold him responsible for the alleged misplacement of the said documents. The petitioner accordingly, by his aforesaid replies, denied the charges levelled against him. The Bank, thereafter, appointed an Enquiry Officer and regular enquiry was conducted in connection with the aforesaid charges. 4. As stated earlier, so far as the three withdrawals are concerned, the petitioner had admitted the said aspect that he had withdrawn the aforesaid amount by submitting three withdrawal forms from time to time and he had encashed the amount. The explanation of the petitioner was that he was under the impression that sufficient funds are available to cover the aforesaid three withdrawals. 5. The Presenting Officer of the Bank submitted his report before the Enquiry Officer, which is at page 26 in the compilation, wherein the Presenting Officer has dealt with each of the charges levelled against the petitioner and has tried to justify each of the charges. Particulars of the list of documents exhibited during the enquiry is given at page 39 in the compilation. 6. On behalf of the delinquent, defence statement was produced before the Enquiry Officer by the defence representative, which is at page 41 in the compilation, and reference was made in the said defence statement to the earlier reply dated 6th October, 1979 given by the delinquent. In the defence statement, so far as charge No.1 is concerned, the reply of the delinquent dated 6th October, 1979 is incorporated. So far as charge No.2 is concerned, it is stated in the Defence Statement that there was no record in the Branch indicating movement of postal instruments from one Department to another. The said charge was accordingly denied. Regarding charge No.3, it is stated in the defence statement as under :- " ... ... ... While it is true that ICC No.21 for Rs.1000/- and No.22 for Rs.334-25 discounted at the branch and Shri Maniar has initialled the Bills Register in token of having verified the said instrument about their proper entry. However, the concerned witness viz. Shri Manseta and S.K. Amin have not been able to say beyond doubt that Shri H.C. Maniar has not forwarded these to despatch department. As usual, these instruments were placed in the tray kept for the purpose and the messenger had a free access who delivered it to the despatch department and there was no system of getting the acknowledgment of despatch department for having received the same. It was not duty of Shri Maniar to ensure that all instruments were delivered to the concerned departments in view of the practice for collecting instruments from the tray by the messenger obtaining at the branch. All the witnesses have simply described the procedure and none of these including Manager have stated that Shri Maniar was accountable for the lapse. There is no point or reason to destroy the instruments even belonging to M.M. Mankodi. The charge is not substantiated by the witnesses and Presenting Officer and hence requires to be vacated. ... ... ...." Explanation is also given regarding charges 4 and 5, which is as under :- " ... ... ... As regards charge No.4 and 5 it will appear from the record of the branch and statement of the witness that Shri Maniar was in charge of Despatch Department and he has any direct connection regarding inter-changability of the instruments referred to in the charge-sheet. These documents were entered in the B.P. Register under the signature of Shri Maniar and have reached to the Despatch Department under prevailing practice. Subsequently how dak-meant for one borrowing bank reach another has not been clearly spelt out by any witness nor bank's record indicate that Maniar was responsible for mis-placement of the instruments in question. It is also difficult for the witnesses to say with certainty after four years and Bank has to rely on availability of records only. There are no records to indicate that Maniar has ulterior motive in inter-changing the documents. The charge is therefore not proved and requires to be exonerated. As regards charge No.5 relevant to misplacement of Registered Post dated 22-6-1979, the practice at the branch was to deliver articles by postal authority to official who are available. As per laid down instructions, Registered post must be received by the Manager, Sub-Manager and open by the despatch clerk in their presence and entered in the relative Inward Register. It will appear from the statement of Shri Badheka the then Manager that no specific officer at the branch was designated to receive Registered post and these functions were performed by whoever available. The presenting officer has failed to produce the relevant documents / evidence regarding receipt of these articles by Shri Maniar and hence the charge is not proved. ... ... ...." Grievance was also made in the defence statement in connection with non-supply of certain documents. 7. The Enquiry Officer, thereafter, after considering the evidence produced on behalf of the Department, submitted findings in connection with the enquiry in question. The Enquiry Officer found that all the charges levelled against the petitioner are proved. The Enquiry Officer has also dealt with the point raised by the representative of the delinquent to the effect that the statement / report of one J.D. Shah should have been made available to the delinquent. The Enquiry Officer has clearly stated that the said J.D. Shah has not submitted any report. The Enquiry Officer also found that this will not affect the enquiry because in the enquiry, the witnesses are examined independently before the Enquiry Officer in connection with the charges levelled against the employee. In his concluding part of the report, the Enquiry Officer has stated as under :- " ... ... ... The Charge-sheeted employee has neither brought any witnesses nor produced any documents in his defence. I have carefully considered the evidence of the witnesses, various exhibits and the arguments advanced on behalf of the Management and the delinquent. I have come to the conclusion that all the charges against the charge-sheeted employee are proved and he had thus abused his position as an officer handling bills / despatch etc. departments of the branch during his tenure as Assistant Accountant and thereby failed to discharge his duty with utmost integrity, honesty, devotion and diligence and acted in a manner which is unbecoming of an officer of the Bank. By these acts, he has contravened the Rule 50(4) and 60(2) of State Bank of Saurashtra (Officers') Regulations, 1979. ... ... ...." The Enquiry Officer thereafter forwarded the said report along with the documents to the Disciplinary Authority. 8. The Disciplinary Authority, thereafter, after going through the report of the Enquiry Officer, decided to pass an order of compulsory retirement by way of punishment in connection with the charges proved against the petitioner. Since, as per Regulation 68(1)(ii), the approval of the Managing Director was necessary before imposing such penalty, the matter was sent to the Managing Director for his consideration. The Managing Director passed an order dated 28th March, 1985, by which he has accepted the findings of the Enquiry Officer after going through the relevant papers. The Managing Director has accordingly held that all the charges levelled against the petitioner be treated as proved and the punishment as proposed by the Disciplinary Authority be finally imposed on the petitioner. In the said order of the Managing Director, it is also stated that, if so advised, the petitioner can prefer an appeal under Section 70 of the Regulations of the Bank. However, instead of preferring any statutory appeal, the petitioner has challenged the aforesaid decision of the disciplinary authority by way of the present Special Civil Application. 9. At the time of hearing of this petition, Mr.Mangukia, learned Advocate for the petitioner, pressed into service following points :- (1) That it is a case of "No Evidence", and, therefore, the order of penalty is bad in law; (2) The petitioner was not supplied with necessary documents and, therefore, the ultimate order is vitiated as the enquiry is conducted contrary to the principles of natural justice; (3) The penalty is disproportionate to the gravity of charges proved against the petitioner; A n d (4) At the fag end of the arguments, a last point was also taken by Mr.Mangukia that before imposing penalty, the petitioner was not heard and the copy of the Enquiry Officer's report was submitted only with the punishment order and not prior to that and, therefore, since no hearing was given to the petitioner in connection with the proposed penalty, and since the enquiry officer's report was not given to him in advance before passing the penalty order, the order of penalty is bad in law. 10. Mr.Ajmera, who is appearing for the petitioner, on the other hand, submitted that the petitioner was given appropriate opportunity to defend his case. He further submitted that it cannot be said that it is a case of "No Evidence". According to him, on the contrary, it is a case of ample evidence. He submitted that the petitioner has not even led any evidence, oral or documentary, in any manner and so far as Charge No.1 is concerned, which is in connection with the withdrawal of the excess amount, in fact, he had admitted the said charge. He also submitted that in a departmental enquiry, even if there is some legal evidence, on which the findings can be based, the decision of the Disciplinary Authority, is not required to be disturbed by this Court in a petition filed under Article 226 of the Constitution of India. Mr.Ajmera further submitted that so far as penalty in question is concerned, the Bank has taken a more charitable view and instead of dismissing the petitioner from service, he is subjected to compulsory retirement. He submitted that when serious charges were levelled and, ultimately, the same were proved against the petitioner, it cannot be said that the penalty imposed by the Bank is disproportionate to the gravity of the charges levelled against the petitioner. Mr.Ajmera also further submitted that as per the Bank Regulations prevailing at the relevant time, the petitioner was required to be given finding of the Enquiry Officer's report, along with the final order and there is no provision of giving hearing on the question of punishment after the enquiry is over. I have heard both the counsel in detail. I have also gone through the report of the Enquiry Officer and necessary documents submitted along with the petition. 11. So far as the contention of Mr.Mangukia that it is a case of "No Evidence" is concerned, as pointed out earlier, the petitioner was subjected to five charges. So far as charge No.1 is concerned, it is in connection with withdrawal of certain amounts on three different occasions. The petitioner was serving at the relevant time at Jamnagar Branch of the Bank and the amount in question was withdrawn by him by withdrawal application in the said Branch and the account of the petitioner was at Bhavnagar Branch. It is not in dispute that the amount in question was withdrawn by the petitioner, even though, no sufficient balance was available at the relevant time in the said account of the petitioner at the Bhavnagar Branch. The Enquiry Officer, after going through the documentary evidence on record, and after considering the evidence of the witnesses examined on behalf of the Bank, has, ultimately, come to the conclusion that the charges levelled against the petitioner are proved. 12. In order to find out whether the report of the Enquiry Officer is based on some evidence or otherwise, it is necessary to refer to the finding of the Enquiry Officer in this behalf. It is also required to be noted that so far as the petitioner is concerned, he has not led any evidence worth the name, either oral or documentary, to substantiate his say that, in good faith, believing that there was sufficient balance available at his Bhavnagar Branch account, he has withdrawn the amount. At page 48, the Enquiry Officer observed as under :- " ... ... ... Further I would refer the statement of accounts maintained at Krishnanagar Branch (P.Ex.20) which shows that at no stage the funds were more than Rs.500/- during the period from 1.1.79 to 4.7.79 and does not indicate anything supporting the above arguments. Further I am not convinced with the argument of the delinquent in his letter dated 6.10.79 "I could not pay required attention and the things went unnoticed" particularly when he has encashed three withdrawals (not one) on different dates without sufficient balance in his account. Exhibit P.Ex.7 shows that the amount of I.C.C.'s credited to his account with Ranjit Road branch was withdrawn by him which indicates that the funds were utilised for his personal gain. ... ... ...." Ultimately, the Enquiry Officer came to the conclusion that the said charge No.1 is proved against the petitioner. It is also important to note that the petitioner himself had admitted that he had withdrawn certain amounts, even though no sufficient balance was lying to the credit of the account to cover the amount of aforesaid withdrawals. It is not in dispute that the documents regarding the two withdrawals, i.e. of Rs.1,000/- and Rs.750/-, discounted by the Branch on 5.2.1979 and 17.2.1979, respectively, were either misplaced or destroyed. It is argued by Mr.Mangukia that so far as the petitioner is concerned, it was not his duty to despatch the same and, ultimately, if they are lost or destroyed by some other Officers, the petitioner cannot be blamed for the same. For this purpose, the Enquiry Officer considered evidence of various witnesses. The Enquiry Officer has also discussed the evidence of various witnesses, which is at page 49 in the compilation and the same is extracted as under :- " ... ... ... While going through the proceedings of the enquiry the following points are evidence : (A) Shri S.K. Amin, a witness has stated that he does not know whether the bills were sent to the despatch clerk. (B) in cross examination Shri Amin has stated that the I.C.C.'s in question were handed over to the concerned officer as he was sitting adjacent to him. (C) That as per normal practice, the bills after being initialled (in bills register) by the concerned office were sent to the despatch department. (D) The concerned officer who initialled the bills of 6/2/79 and 17/2/79 in the bills register was Shri Maniar (P.E.X.1). (E) That movement register as prescribed was not introduced. (F) That as stated by Shri A.S. Dave during his deposition bills are initialled by the concerned officer in IBC register and then sent to despatch department and the peon was carrying the bills to despatch department from the tray lying on the table of the bills department officer. (G) That Shri Mansate,-witness during his deposition has stated that he had not received the said ICC's for despatch. (H) That Shri Badheka during his deposition has stated that the telegram received from the Krishnanagar branch shows that ICC No.21 and 29 do not appear to have been received by the branch. The witness produced by the Presenting Officer have thus testified the following facts :- That Shri Maniar was in charge of the bills department, the relative bills have reached to this table but have not reached to the despatch department. This gives reasonable ground to believe that Shri Maniar had with ulterior motive not forwarded the two withdrawals and either misplaced or destroyed the said instruments. The Defence Representative has argued that the movement register was not maintained at the Branch but he has not tried to substantiate by witnesses or evidence whether number of instances for loss of instrument have taken place at the Branch due to lapse on the part of the Branch not introducing the movement register. The chain of arguments by the Presenting Officer indicate that the instruments were missing from the desk of Shri Maniar who was in-charge of bills department. Regarding his duty, Shri Badheka a witness during his deposition has stated "when he took over charge, there was one duty list for staff members and this was initialled/signed individually. Shri Maniar so far I recollect had also signed the same." I cannot accept the arguments of Defence Representative to prove defects in the procedure for exonerating the charge when the witnesses produced by the Presenting Officer and the evidences on record testify that the instruments did not reach the despatch department from the table of Shri Maniar. I, therefore, consider the charge No.2 as proved. ... ... ...." Regarding charge No.3, which alleged that in order to create an impression that relative documents in respect of his withdrawal of Rs.1,000/- encashed by him on 6/2/1979 were not forwarded by him willingly, and he had also misplaced or destroyed the ICC-22 along with its documents in respect of Bank's other party discounted by the branch on the same day, the Enquiry Officer found that the said charge is proved. Regarding destroying or misplacing the registered post cover containing the returning memo of withdrawal of the aforesaid amount of Rs.1,000/-, i.e. regarding charges 4 and 5, on appreciation of evidence, the Enquiry Officer found that the petitioner, with an ulterior motive, misplaced or destroyed registered post dated 22.6.1979 received from the postal authorities. Considering the aforesaid aspect of the matter, ultimately, it has been recorded by the Enquiry Officer that the petitioner has failed to discharge his duty with utmost integrity, honesty, devotion and diligence and acted in a manner which is unbecoming of an Officer of the Bank, for which reference is made to Rule 50(4) and Rule 60(2) of the State Bank of Saurashtra (Officers') Regulations, 1979. 13. On appreciation of evidence on record, ultimately, the Enquiry Officer has recorded a finding of guilt against the petitioner. As stated earlier, so far as charge No.1 is concerned, the petitioner himself has admitted that he had withdrawn the amount, which was, ultimately, found to be in excess. It is also required to be noted that even though the petitioner was serving at Jamnagar, he was allowed to encash the amounts, i.e. Rs.1,000/- on 5.2.1979, Rs.750/- on 17.2.1979 and Rs.1,000/- on 5.6.1979, drawn on the joint savings bank account of the petitioner and his brothers, i.e. Account No.4542, which was kept at the Bhavnagar Branch