HON’BLE SRI JUSTICE NOOTY RAMAMOHAN RAO W.P. NO. 5984 of 1997 DATED: 17-12-2009 Between:- Feddy Thomas s/o V.K. Thomas, 40 years, H.No. 6-1-96/8, Padmaraonagar, Secunderabad and two others. …PETITIONER And M/sSyndicate Bank Industrial Relations Division, P.O.No.1, Manipal, Karnataka State represented by its General Manager (Operations) Mr. U.N. Padayar and two others. …RESPONDENTS HON’BLE SRI JUSTICE NOOTY RAMAMOHAN RAO W.P. NO. 5984 of 1997 O R D E R The present writ petition has been instituted questioning the correctness of the order of punishment of dismissal from service imposed by the second respondent. At the relevant point of time the writ-petitioner was working as an Assistant Manager at Syndicate Bank at its Bikanoor branch. The writ- petitioner was suspected to have played a role in shortage of bank cash of Rs. 10,000/- on 30-12-1991. The bank through its proceedings dated 28.03.1992 had framed a charge to the following effect: “You were functioning as Asst. Manager at our Bhiknur branch since 27.05.1991 and were holding Joint Custody Keys on 30.12.91. In your said capacity as Joint Custodian on 30.12.91, you had surreptitiously removed Rs.10,000/- while handing over cash from double lock to the cashier at the commencement of business hours for conducting the day’s transactions. By your above acts, you have indulged yourself in stealthy removal of cash and acted in a manner unbecoming of status of officer and thus violated Regulation No. 3(1) read with Regulation No.24 of Syndicate Bank Officer Employees’ (Conduct) Regulations, 1976. STATEMENT OF IMPUTATIONS OF MISCONDUCT ON YOUR PART That you have been functioning as Asst. Manager at Bhiknoor since 27.05.1991. That on 30.12.1991 while holding joint custody keys, you operated the double lock along with the Manager, Sri A.V.N. Murthy and a sum of Rs. 75,600/- was taken out from the double lock for the purpose of handing over the same to the Cashier for conducting the cash transactions. Following are detonations of the cash taken out from double lock. Denomination Pieces Total Rs. 100 x 420 = 42,000/- Rs. 50 x 200 = 10,000/- Rs. 10 x 1000 = 2,000/- Rs. 5 x 2200 = 10,000/- Rs. 2 x 300 = 600/- ___________ Rs. 75,600/- The amount of Rs. 75,600/- so brought out from double lock was taken to the cash cabin by you for handing over the same to the cashier Sri K.Vidyapathi, against his acknowledgement. Before the cash was verified by the cashier, you left the cash cabin on the pretext of attending to calls of nature. Immediately after your leaving the cash cabin, the cashier raised an alarm that an amount of Rs.10,000/- in hundred denomination was missing. When the cashier raised the alarm, the cash transactions for the day had not commenced and the Manager conducted physical search of all the employees with their consent for tracing the missing cash. During such search, a section of Rs.100/- amounting to Rs.10,000/- was found in your possession. When the missing cash was thus detected in your custody, you threw the said section of currency notes to a corner of the room and the same was immediately retrieved by the Manager. By your above, act, you fraudulently removed the cash of Rs.10,000/- from the cash handed over to the cashier and attempted to conceal the same with an ulterior motive of misappropriation of the amount of Rs.10,000/-” The imputation behind the above charge is that on 30.12.1991 while the writ-petitioner was holding joint custody keys, he operated the double lock along with the Manager and a sum of Rs. 76,600/- was taken out from the double lock for the purpose of handing over the same to the cashier for conducting the cash transactions, and that the amount so brought out was taken by the writ-petitioner to the cashier cabin for handing over the same to the cashier. Before the cash was actually counted and verified by the cashier it is alleged that the writ- petitioner has left the cash cabin and immediately thereafter the cashier had raised a hue and cry that an amount of Rs.10,000/- in hundred rupee denomination was missing. It was further alleged that the Manager with a view to trace out the cash had searched all the employees and during the said search operation, the cash of Rs.10,000/- of hundred rupee denomination was found in the possession of the writ-petitioner who immediately threw the same on the floor of the corner of the room and that the said bundle was thus retrieved by the Manager. Initially, since the writ-petitioner had denied his involvement behind the allegations one enquiry officer has been appointed but subsequently he was changed pursuant to the directions issued by this Court, in view of the allegations leveled against the said enquiry officer by the writ-petitioner. In support of the charge, the first respondent-bank had examined as many as 7 employees as witnesses and got marked several documents for bringing home the charge. During the course of enquiry the witnesses have deposed that the writ-petitioner had obtained the first set of joint custody keys from the police station of Bikanoor and delivered the same to the Manager of the Branch, who had been examined as M.W.-1, while the second set of joint custody keys were held by another Assistant Manager, who had been examined as M.W.4 at the enquiry. Though the Assistant Manager and the Manager who were custodian and joint custodian respectively of the keys of the double lock and are required to operate the same, but on 30.12.1991 the Manager seems to have directed the writ-petitioner to take the keys from the Assistant Manager and operate the double lock along with him for drawing the cash out of the same. Thus, though the charge sheet has alleged that the writ-petitioner was in-charge of the double lock, but what has come on record is that it is the Manager (M.W.1) and Assistant Manager (M.W.4) are the custodian and joint custodian of the keys of the double lock but not the writ-petitioner. But nonetheless it has been brought out that on 30.12.1991 the writ-petitioner who acted as per the directions of the Manager of the Branch to operate the double lock keys for drawing cash from it at the beginning of the transactions of the day. The cashier who was examined as M.W-6 and the attender of the branch who has been examined as M.W-7 have clearly deposed that it is the writ-petitioner who had acted as joint custodian of the keys on the relevant date and it is he, who carried the cash to the cashier’s cabin and delivered the same to the cashier. It is, therefore, the duty of the writ-petitioner to obtain an acknowledgement from the cashier to have received the cash of Rs. 76,600/- on that day. But, however, even before he could obtain the same, he left the cabin of the cashier and immediately thereafter the cashier had noticed shortage of Rs.10,000/- in hundred rupee denomination section of the cash. The enquiry officer had submitted his report holding that the charge against the writ-petitioner is held established. The enquiry officer’s report had been made available to the writ-petitioner calling for his comments thereon and the writ-petitioner had drawn a detailed note raising all his objections on 02-02-1995. Taking all these factors into consideration the Deputy General Manager of the Bank had passed the orders through his proceedings dated 28.02.1995 imposing the punishment of dismissal from service on the writ-petitioner. The writ-petitioner had preferred an appeal against the punishment, on 05.04.1992 to the Chief General Manager. The Chief General Manager through his proceedings dated 15.5.1995 had rejected his appeal. Against the orders of imposition of punishment of dismissal from service by the second respondent and the order of rejection by the appellate authority dated 15.5.1995 are challenged in this writ petition as noted above. Learned counsel for the writ-petitioner had contended that the charge laid against the writ-petitioner is one whereas the enquiry officer has found him guilty of altogether a different charge and that the findings of the enquiry officer are wholly unjust and perverse findings and that the writ-petitioner had been denied a fair and reasonable opportunity of establishing his defence and that for extraneous reasons and considerations he had been unnecessarily implicated in the charge and consequently he had been penalized for no fault of his. Miss Uma, learned Standing Counsel for the respondent bank, would contend that the charge laid against the writ-petitioner had been brought home with reference to the material on record, and therefore, the findings recorded by the enquiry officer cannot be considered or construed as either unjust or perverse findings and that the writ- petitioner had been provided with every opportunity to defend his case properly and correctly and in fact he had cross-examined the witnesses examined on behalf of the bank extensively and, therefore, it is improper for the writ-petitioner to say that the writ petitioner was denied a fair or reasonable opportunity. It is further contended that the findings recorded by the Enquiry Officer are neither perverse nor unsustainable findings. Learned Standing Counsel would also contend that if the allegation thrown by the bank against the writ- petitioner is held established, the only punishment appropriate to the misconduct committed by the writ-petitioner is dismissal from service and therefore there is nothing wrong in imposition of such a punishment. Learned counsel for the writ-petitioner had drawn my attention pointedly to the charge and contends that it is specifically mentioned and referred therein that the writ petitioner as joint custodian of the double lock on 30.12.1991, whereas MEX 3(a), which has been brought on record, has categorically established that it is the Manager and the Assistant Manager of the Bank, who were examined as M.W-1 and M.W-4 respectively, as the joint custodians of the keys of the double lock and hence the charge laid against the writ-petitioner is liable to be declared as not held proved. On a careful perusal of the charge, the bank had clearly mentioned that the writ-petitioner was working as an Assistant Manager at the Bikanoor branch since 27.5.1991 and that he was holding the joint custody keys on 30.12.1991. There afterwards, the statement followed was, “In your capacity as Joint Custodian on 30.12.1991, you had surreptitiously removed Rs.10,000/- while handing over cash from double lock to the cashier at the commencement of business hours for conducting the day’s transaction.” Thus, what has been imputed against the writ-petitioner is that, in his capacity as joint custodian on 30.12.1991, he surreptitiously removed a sum of Rs.10,000/- from out of the cash which had been brought out from the safe by operating the double lock. Therefore, he acted as a joint custodian for that day. The substantive allegation thrown against the writ-petitioner is that he surreptitiously removed Rs.10,000/-. His operating the double lock on the day in question along with M.W-1 Manager is perfectly authorized by the Manager himself. Therefore, no irregularity much less any misconduct is sought to be attributed to the writ-petitioner for operating the double key of the safe for purpose of taking out cash there from. But what has been alleged and attributed to the writ-petitioner is a conduct, exhibited by him which is post withdrawal of cash from the double lock safe. Therefore, I do not see any reason to agree with the contention of the learned counsel for the writ-petitioner that the writ-petitioner had been charged with one allegation, whereas he has been held guilty of altogether a different allegation. There is no merit in the said contention. With regard to the next contention canvassed by the writ- petitioner that he had been denied a fair and reasonable opportunity to defend himself is concerned, there is no material with the help of which it could be demonstrated that his request for either examining any particular person as a witness or examining any particular document which is in the custody of the bank had been denied to be brought on record, nor was there any material for one to feel that the writ-petitioner had been denied of an opportunity of cross-examining any particular witness. In the absence of any of these factors it will not be proper for one to draw a conclusion that the writ-petitioner had been denied a fair and proper opportunity to defend himself. From the record of the enquiry, I had noticed that the writ-petitioner had cross-examined in detail the witnesses examined on behalf of the bank and hence this contention does not deserve any further consideration. The most substantial pleading of the writ-petitioner is that the findings recorded by the enquiry officer are wholly unsustainable and that those findings are the result of imagination or conjectures drawn by the enquiry officer, which is fatal. Therefore, it will be relevant to notice as to how the enquiry officer had recorded his findings with regard to the various elements of misconduct alleged against the writ- petitioner. For purpose of establishing that it is the writ-petitioner who had accompanied the attender of the bank, who had been examined as M.W.7, to the cabin of the cashier for purpose of delivering the amount of Rs.76,600/-, this is how the issue had been concluded by the enquiry officer. “Now it is before me to see whether a total cash of Rs. 76,600/- as originally recorded in MEX-3(a) was carried to the cash cabin in a cash box by M.W-7 the attender of the branch and whether the charged officer accompanied M.W-7 along with the cash withdrawn to the cash cabin to deliver the said cash to the cashier i.e. M.W-6. M.W-1 and M.W-6 who were the relevant and material evidence for this aspect have deposed that M.W-7 being the attender carried the cash box accompanied by the charged officer from the double lock cash room to the cash cabin of M.W-6. This piece of evidence has come on record in clear terms and and I, therefore, accept the evidence that M.W-7 carried the cash box from safe room to the cash cabin of M.W-6. The evidence of M.W-7 further goes on record that the charged officer accompanied the cash box carried by him from safe room to the cash cabin of M.W-6. The defence could not dislodge this evidence during the course of their cross-examination and the charged officer in his written defence vide his letter dated 22.6.1994 submitted that he has not accompanied the attender while taking the cash to be handed over to the cashier. Mere denial of the evidence that has been lead before the enquiry will not help this enquiry forum in any manner. The defence did not make any attempt to produce any evidence to counter the evidence produced by the Management in this aspect and have also not dislodged the evidence through their cross-examination. It is, therefore, clearly established through the evidence lead by the Management by way of deposition/oral evidence of MW-1, MW-7 and MW-6 that the charged officer accompanied MW-7 along with the cash box to be delivered to the cashier.” For purpose of arriving at the conclusion that the writ-petitioner was not physically present at the cashier’s cabin at the time of verification of the cash by the cashier and that he left for attending to nature’s call, even before obtaining the acknowledgement of the cashier, the enquiry officer has placed reliance upon the deposition of MW-7 the attender of the branch and the cashier-MW-6 which is to the following effect:- “MW-7 being the attender who carried the cash box to the cash cabin has further deposed that the cash box so carried by him was kept inside the cash cabin and thereafter he came out of the cabin and the charged officer and cashier went inside the cash cabin, and thereafter he submitted that he was attending to the counter work. MW-6 being the cashier had deposed that the cash box was brought by MW-7 in a locked box followed by the charged officer and MW-7 kept the cash box in the cash cabin on the left hand side of the counter and while MW-7 was leaving the cash cabin, he entered the cabin, followed by the charged officer. He further deposed that the charged officer handed over keys of the box and thereafter he opened the box and taken out the cash and while taking out the cash the charged officer was standing behind him and while he was taking out the cash, the charged officer told that the cash is O.K and he wanted to go for nature’s call. MW-6 further stated that he was verifying the cash with the double lock book. He then noticed a shortage of one section of Rs.100/- denomination in the cash that was handed over to him and also a part of section which was containing only 20 notes even though it was written/shown as 30 notes. He, thereafter, enquired about these discrepancies with the charged officer who had informed that MW-6 may correct the entry of the discrepancy of 10 notes in hundreds denomination by making an entry of C.B. However, MW-6 deposed that the charged officer has not agreed for the discrepancy of Rs.10,000/-. Thereafter, he has shouted that there is a cash shortage and asked MW-7 to close the grill gate of the bank.” The next limb as to whether there was really shortage of a sum of Rs.10,000/- or not, the enquiry officer had concluded the issue in the following manner. “Therefore, it is only left for me to see what was the actual amount of cash shortage, on that day. The evidence adduced through MW-6 and MW-1 has very clearly come on record that an amount of Rs.10,000/- in the denomination of hundreds i.e. one section of hundreds consisting of 100 pieces was found short by MW-6 while verifying the cash delivered by the charged officer. Again, had there not been any cash shortage as argued by the defence, primarily they should have demolished what has been brought on record by the Management on the cash shortage. Even though so much of cross-examination has taken place, for MW-6 the defence could not dislodge the evidence of MW-6 that there was a cash shortage of Rs.10,000/- in the denomination of hundreds. Therefore, from the evidence adduced before me and which had withstood the cross-examination of the defence, it has been amply established that there was a cash shortage of Rs.10,000/- found at the time of verification of cash by the cashier while taking delivery of the same.” The last limb of tracing out the missing cash from the possession of the writ-petitioner, had been concluded as under by the enquiry officer. “The Management, in all, produced 7 witnesses and a document marked as MEX-1 in support of their allegation that hundreds denomination section amounting to Rs.10,000/- which was found to be short by MW-6 while verifying the cash delivered by the charged officer was in fact found in the possession of the charged officer during the physical verification conducted by the Manager in the safe room of the branch in the presence of the staff members. The evidence of 7 witnesses who were present in the branch on the date of incident of cash shortage has been thoroughly cross-examined by the defence, particularly relating to the deposition/evidence with regard to the finding of the cash in the possession of the charged officer. These witnesses marked in the enquiry as MW-1, MW-2, MW-3, MW-4, MW-5, MW-6 and MW-7 have in clear terms deposed that this section of hundreds denomination amounting to Rs.10,000/- was found in the possession of the charged officer. All these witnesses are material to the incident of finding of cash.” The writ-petitioner tried to discredit these findings by pointing out that the standard operating procedure of reporting whenever fraudulent cash loss was noticed, has not been followed in the instant case. It is further contended that since there was no police complaint lodged by either by the cashier or the Manager or by the bank, there is no truth whatsoever behind the allegation and that the writ-petitioner is not guilty of any such allegation and on the other hand he had been implicated in the matter because of some `Inter Union Rivalry’ among the staff members. Learned counsel also pointed out that the very fact that the Manager of the branch had not reported these facts to the Head office also lends support to his plea of deliberate implication in the matter. The fact that the standard reporting procedures have not been followed in the instant case does not take the writ-petitioner any where, for, amount of cash which was found to be short by the cashier has, according to the Bank been deleted, almost in a very quick time. Therefore, the actual or physical loss of cash did not take place. What all, perhaps, had happened was a possible attempt to bring about shortage of cash of Rs.10,000/- at the hands of the cashier and such an attempt had been aborted in quick time. Therefore, the fact that either the cashier or the branch manager had not lodged any police complaint or followed the usual procedure of reporting loss of cash does not, in any manner vitiate the enquiry proceedings at all. Hence, I am not in a position to agree with the contention of the learned counsel that the present action of disciplinary proceedings is legally vitiated in any manner. On the contra, when the enquiry proceedings had been carried on strictly in conformity with the procedure prescribed in the Discipline and Control regulations of the bank, then the enquiry proceedings cannot be termed as vitiated. Similarly, the writ-petitioner has not been denied any reasonable opportunity of bringing forth his defence and hence it cannot be said that the disciplinary proceedings against the writ-petitioner was vitiated for non-compliance of the principles of natural justice. The jurisdiction of this Court exercising the power under Article 226 of the Constitution of India is not that of the court of appeal and the limitations on exercise of power in this regard are very well crystallised by courts. Perhaps, reference to the principles enunciated in this regard by the Supreme Court in H.B.Gandhi v. Gopinath and others[1] wherein it was held:: “………… But what was assailed in review was, in substance, the correctness — as distinguished from the legal permissibility — of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. 8. But here what was assailed was the correctness of findings as if before an appellate forum. Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.” Learned counsel for the writ petitioner had also placed strong reliance upon the objection raised by him, against the management of the bank in getting the document, said to be the confessional statement of the writ-petitioner marked, as he has disputed the signature appearing on the said statement. In a case where the management of