Case: Suresh Pathrella Vs. Oriental Bank Of Commerce

4. The appellant was appointed by the respondent- bank as Officer Grade Scale-I. Thereafter, he was promoted to Officer Grade Scale-II, Scale-III and Scale-IV. At the relevant time, he was working as Chief Manager at Gurgaon branch of the respondent-bank.5. By an order dated 23.12.1995, the appellant was placed under suspension in contemplation of the drawing up of the disciplinary proceedings. By the memorandum dated 20th August, 1998 he was served with the charge memo on the ground that he has violated Regulation 3(1) of Oriental Bank of Commerce Officer Employees (Conduct) Regulations, 1982 ( in short the Regulations, 1982).6. The statement of imputation of misconduct in respect of article of charge framed against the appellant are asPathrella, Chief Manager (under suspension) while posted and functioning as Incumbent-in-charge at B/O Gurgaon had misappropriated an amount of Rs.10.00 lac of a customer namely Sh.G.C. Luthra without his authority/consent.On 27.1.1994, one party of B/O, Saket, New Delhi namely M/s Moradabad Builders Pvt. Ltd., had sent a Pay Order No.536966/128/94 of Rs. 10.00 lacs in favour of Sh.G.C. Luthra to our B/O Gurgaon for crediting to his account . Sh.Suresh Pathrella while functioning as Incumbent-in-Charge at B/O. Saket,New Delhi with an endorsement to the effect that Payees account will be credited on realisation and also instructed vide his letter dated 27.1.94 to issue TPO in favour of Sh.G.C.Luthra for the proceeds. Accordingly, a TPO No.153935/22/94 dated 28.1.94 for Rs.10.00 lac favouring Sh.G.C. Luthra was issued and sent by B/O Saket to B/O Gurgaon. On 29.1.94, Sh. Suresh Pathrella opened a new saving bank account No.13392 with the malafide intention in the name of Shri G.C.Luthra without obtaining any account opening form and without the consent/authority of Sh.G.C.Luthra who was already maintaining his saving bank account No.12154 at B/O. Gurgaon since January, 1993. The proceeds of the said instrument amounting to Rs.10.00 lac was credited to newly opened-saving bank account No.13392 of Sh.Luthra and Sh.Suresh Pathrella himself with his own hand writing prepared and signed following three transfer vouchers by debiting Rs.10.00 lacs to the said account on the same day i.e. on 29.1.1994 without any authority;a) Rs.2.00 lac transferred to Cash Credit A/C of M/s. M.K.Fertilizers.b) Rs.3.00 lac transferred to current Account No.1408 of M/s. Maharishi Aurvedic Corporation.c) Rs.5.00 lac transferred to Cash Credit Account of M/s. Agro Chemicals.Thereafter the newly opened saving bank account No.13392 was closed on the same day leaving nil balance. Thus, Sh.Suresh Pathrella had misappropriated an amount of Rs.10.00 lac without the consent and authority of the beneficiary. By his above acts Sh.Suresh Pathrella has violated Regulation 3(1) of Oriental Bank of Commerce Officer Employees (Conduct) Regulations, 1982 which is punishable under Officers Discipline and Appeal Regulations.An Enquiry Officer was appointed, who submitted a Report that the charge is proved. The disciplinary authority accepted the findings of the Enquiry Officer and the appellant was removed from service by an order dated 28.5.1998. Aggrieved thereby, the appellant challenged the order by filing Writ Petition. The learned Single Judge was of the view that the main allegation of misappropriation of Rs.10 lacs is unfounded and the amount actually went to the account of the Bank to be set off against overdrafts of the three firms. In other words, no loss thereby was occasioned to the Bank. He was further of the view that the main allegation of misappropriation of Rs.10 lacs was the crux in both departmental proceedings and the criminal charge and that the Gurgaon police after investigation has closed the case as unfounded before the CJM, Gurgaon, therefore, nothing substantial remains in the matter for proceedings against the appellant. The learned Single Judge was of the view that the argument of the Bank that departmental proceedings and the criminal case are different does not hold good and his removal from service was incorrect.8. The Division Bench of the High Court pointed out that on 27.1.1994 one party, namely, M/s. Moradabad Builders Pvt. Ltd. had sent a pay order of Rs.10.00 lacs to Shri G.C. Luthra to the branch office Gurgaon for crediting it to his account. The appellant while working as Chief Manager at Gurgaon branch of the respondent-bank sent the said pay order to the branch office Saket, New Delhi, with an endorsement to the effect that payees account will be credited on realization and also instructed vide his letter dated 27.1.1994 to issue TPO in favour of Shri G.C. Luthra for the proceeds. Accordingly, a TPO No.153925/22/94 dated 28.1.1994 for Rs.10.00 lacs favouring Shri G.C. Luthra was issued and sent by branch office Saket to branch office Gurgaon on 29.1.1994 and the appellant opened a saving bank account No.13392 with malafide intent in the name of Shri G.C.Luthra without obtaining his authority and consent. Shri G.C. Luthra was already having a saving bank account No.12154 at the branch office Gurgaon since 1993. The proceeds amount of Rs.10.00 lacs was credited to the newly opened saving bank account No.13392 of Shri G.C. Luthra and the appellant himself prepared and signed three transfer vouchers and debited Rs.10.00 lacs from the said account on 29.1.1994 without any authority from Shri G.C. Luthra. It was also pointed out that the saving bank account No.13392 was closed on the same day leaving a nil balance. It is in these circumstances, the Division Bench was of the opinion that the transfer of amounts to the credit of three parties without any instruction from the beneficiary amounts to misappropriation of funds and, in any event, it was a grave irregularity in financial transactions indulged in by the appellant. It was also pointed out that the appellant had been indulging in all sorts of irregularities, which were totally inconsistent with his duties as a bank officer. The Division Bench held that the factum of crediting the proceeds of the pay order to a newly opened saving bank account of Shri G.C.Luthra without his consent or authority and thereafter withdrawing the same and transferring into three different accounts shows lack of devotion to duty and integrity on the part of the appellant.9. The Division Bench further said that Shri G.C.Luthra appeared as a witness before the Enquiry Officer. The appellant was given an opportunity to cross-examine Shri G.C.Luthra. In his complaint dated 10.1.1996 he denied his signature on the letter dated 27.1.1994. The Division Bench was of the view that all these disputed questions of fact have been considered by the disciplinary authority and the reviewing authority and it is not open to the Court in writ jurisdiction to interfere with the findings of fact. The Division Bench was of the view that the subsequent statements made by Shri G.C. Luthra in criminal cases would have no bearing on the concluded inquiry against the appellant.

Reasoning:
11. In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.12. It is not the case of the appellant that the enquiry has been conducted without affording an opportunity to the appellant or behind the back of the appellant and thereby violated the principle of naturalcontention deserves to be rejected outright. The disciplinary enquiry was completed on 3.2.1998. The appellant was removed from service by an order dated 28.5.1998. In the alleged disclosure statement made on 19.7.2001 under Sections 406/420 IPC Mr.G.C.Luthra is seen to have stated that he got a typed letter issued to the Senior Manager, Oriental Bank of Commerce to open a new saving bank account and credited in that new bank account the amount of Rs.10 lacs.It will be noticed that the appellant was charged for the alleged violation of Regulation 3 (1) of the Regulations 1982. Regulation 3(1)officer employee shall, at all times take all possible steps to ensure and protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a bankRegulation ensures that every officer at all times take all possible steps to protect the interests of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. Such regulations are made to instill the public confidence in the bank so that the interests of customers/depositors are well safeguarded. In such a situation the fact that no amount was lost to the bank would be no ground to take a lenient view for the proved misconduct of a bank officer.In the present case the appellant acted beyond his authority in breach of banks Regulation. Regulation 3(1) of the banks Regulation required that every officer of the bank at all times take all possible steps to protect the interest of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which will be unbecoming of a bank officer. It is a case of loss of confidence in the officer by the bank. In such a situation, it would be a futile exercise of judicial review to embark upon the decision of the disciplinary authority removing the officer from service, preceded by an enquiry, and to direct the bank to take back the officer in whom the bank has lost confidence, unless the decision to remove the officer is tainted with malafide, or in violation of principles of natural justice and prejudice to the officer is made out. No such case is made out in the present case.