Partly allowed

C.G.Ajay Babu v. Union Bank of India

Kerala HC8 Jan 2016WP(C)/28002/2004

Case brief

AI extract

What is this about?

The court dismissed the petitioner's challenge to his dismissal and suspension but set aside the order forfeiting his gratuity. It held that forfeiture requires proof of financial loss to the bank, which was absent here, despite established misconduct.

What did the court decide?

The Show Cause Notice for forfeiture of gratuity (Ext.P25) was set aside. The petitioner shall be paid the entire gratuity due with 6% interest from the date of termination within three months.

C.G.Ajay Babu Vs Union Bank of India — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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FRIDAY, THE 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937

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WP(C).No. 28002 of 2004 (H)

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PETITIONER(S):

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C.G.AJAY BABU (EMP NO.22855), SON OF A.GOPALAKRISHNA MENON, AGED 48 YEARS MANAGER (UNDER SUSPENSION), RESIDING AT SP 3/611 LEKSHMIDEV, CHERUVALLI LANE, GANDHIPURAM SREEKARIYAM, THIRUVANANTHAPURAM 692 017.

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BY ADVS.SRI.TOM JOSE SMT.GEETHA JOB(OZHUKAYIL)

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RESPONDENT(S):

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1. UNION BANK OF INDIA, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, UNION BANK BHAVAN, 239 VIDHAN BHAVAN MARG, MUMBAI-21.

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2. THE APPELLATE AUTHORITY, THE ASSISTANT GENERAL MANAGER (P/IR), UNION OF INDIA, CENTRAL OFFICE, UNION BANK BHAVAN, 329 VIDHA BHAVAN MARG, MUMBAI-21.

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3. THE CHIEF MANAGER, UNION BANK OF INDIA, NODAL REGIONAL OFFICE CONVENT ROAD, JUNCTION ERNAKULAM. (DISCIPLINARY AUTHORITY)

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4. M.K.VIJAYAN, ASSISTANT MANAGER, UNION BANK OF INDIA, NEDUMKANDAM BRANCH IDUKKI DISTRICT - 685 553.

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R, BY ADV. SRI.A.S.P.KURUP, SC, UBI R BY ADV. SADCHITH KURUP, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 28002 of 2004 (H)

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APPENDIX

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PETITIONERS EXHIBITS:

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EXT.P1	COPY OF THE REPRESENTATION DATED 22.8.02 SENT BY THE PETITIONER TO THE ASSISTANT GENERAL MANAGER, TRIVANDRUM
EXT.P2	COPY OF THE COMMUNICATION DATED 23.8.02 ISSUED BY THE ASSISTANT GENERAL MANAGER, REGIONAL OFFICE, TRIVANDRUM
EXT.P3	COPY OF THE NON SPEAKING SUSPENSION ORDER DATED 27.8.02
EXT.P4	COPY OF THE APPEAL PREFERRED BEFORE THE ASSISTANT GENERAL MANAGER, THIRUVANANTHAPURAM AGAINST THE ORDER DATED 5.9.002
EXT.P5	COPY OF THE MEMORANDUM OF CHARGES DATED 16.12.02 SERVED TO THE PETITIONER BY THE 3RD RESPONDENT.
EXT.P6	COPY OF THE WRITTEN EXPLANATION DATED 2.1.03 GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT.
EXT.P7	COPY OF THE COMMUNICATION DATED 31.1.03 INFORMING DEPARTMENTAL ENQUIRY AGAINST THE PETITIONER.
EXT.P8	COPY OF THE MEMORANDUM DATED 5.2.03 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT.
EXT.P9	COPY OF THE ARTICLES OF CHARGES SERVED ON THE PETITIONER DATED 18.2.03
EXT.P10	COPY OF THE RELEVANT EXTRACT OF THE AMENDMENT REGULATION PUBLISHED IN THE GAZETTE OF INDIA DATED DECEMBER 2, 2000
EXT.P11	COPY OF THE JUDGMENT DATED 6.3.03 OF THIS HONOURABLE COURT IN OP 7775/03(A)
EXT.P12	COPY OF THE PROCEEDINGS OF PERSONAL HEARING OF THE PETITIONER PURSUANT TO EXT.P11 JUDGMENT CONDUCTED BY THE GENERAL MANAGER DESIGNATED AS APPELLATE AUTHORITY, GM'S OFFICE, CHENNAI DATED 22.5.03 AND HIS ORDER REJECTING THE APPEAL DATED 3.5.03
EXT.P13	THE COPY OF THE WRITTEN STATEMENT SUBMITTED TO ARTICLES OF CHARGE DATED 2.3.03 FILED BY THE PETITIONER

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CONTD..2..

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.. 2 ..

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WP(C).No. 28002 of 2004 (H)

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EXT.P14	COPY OF THE LIST OF DOCUMENTS AND LIST OF WITNESSES OF THE PETITIONER WITH COVERING LETTER DATED 17.4.03
EXT.P15	COPY OF THE LIST OF DOCUMENTS AND LIST OF WITNESSES FURNISHED TO THE PETITIONER/CSO ON 18.2.03
EXT.P16	COPY OF THE LETTER ISSUED TO THE PETITIONER BY THE ENQUIRY AUTHORITY DATED 22.4.03
EXT.P17	COPY OF THE FIRST PAGE OF THE PROCEEDINGS PAPER DATED 27.5.03
EXT.P18	COPY OF THE ARGUMENT NOTES DATED 7.7.03 PRODUCED BEFORE THE ENQUIRY AUTHORITY IN THE DISCIPLINARY PROCEEDINGS.
EXT.P19	COPY OF THE ENQUIRY REPORT DATED 15.7.03 SERVED TO THE PETITIONER WITH COVERING LETTER DATED 30.7.03
EXT.P20	COPY OF THE WRITTEN SUBMISSION DATED 8.8.03 AGAINST THE ENQUIRY REPORT.
EXT.P21	COPY OF THE COMMUNICATION DATED 26.9.03 ISSUED BY THE DISCIPLINARY AUTHORITY /3RD RESPONDENT
EXT.P22	COPY OF THE APPEAL PREFERRED U/S 17 OF THE UNION BANK OF INDIA OFFICER EMPLOYEES (DISCIPLINARY AND APPEAL REGULATIONS 1976) DATED 17.11.03
EXT.P23	COPY OF THE ORDER OF THE APPELLATE AUTHORITY/DEPUTY GENERAL MANAGER (HRM) DATED 13.1.04
EXT.P24	COPY OF THE ORDER OF THE REVIEWING AUTHORITY DATED 3.6.04 WITH COVERING LETTER DATED 4.6.04
EXT.P25	COPY OF THE SHOW CAUSE NOTICE OF FORFEITURE OFGRATUITY ISSUED TO THE PETITIONER DATED 30.1.04
EXT.P26	COPY OF THE REPLICATION SENT BY THE PETITIONER AGAINST THE SHOW CAUSE NOTICE DATED 26.2.04
EXT.P27	COPY OF THE DECISION ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT FORFEITING THE GRATUITY AMOUNT OF THE PETITIONER DATED 20.04.04.

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RESPONDENTS EXHIBITS:

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EXT.R1A COPY OF CHARGE SHEET NO.CO:IRD:OS:VIG254/88 DATED 30.05.88 AND THE STATEMENT OF ALLEGATINS.

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CONTD..3..

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.. 3 ..

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WP(C).No. 28002 of 2004 (H)

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EXT.R1B	COPY OF ORDER DATED 27.4.89 ISSUED BY THE DISCIPLINARY AUTHORITY.
EXT.R1C	COPY OF ORDER NO.CO:IHRD:490/90 DATED 11.1.90 ISSUED BY APPELLATE AUTHORITY.
EXT.R1D	COPY OF ENQUIRY PROCEEDINGS CONDUCTED BY ENQUIRY AUTHORITY.
EXT.R1E	COPY OF COMMUNICATION DATED 8.4.03 SENT BY ENQUIRY OFFICER TO THE DISCIPLINARY AUTHORITY.
EXT.R1F	COPY OF CIRCULAR LETTER NO.CO:IRD:2797 DATED 4.5.2002 ISSUED BY THE BANK // TRUE COPY //
	P.A TO JUDGE

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K. VINOD CHANDRAN, J.

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===================== W.P.(C) No.28002 of 2004 - H

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====================== Dated this the 08^th day of January, 2016

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J U D G M E N T

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The petitioner who was dismissed from the 1^st respondent, pursuant to disciplinary proceedings, assail the same before this Court on various counts. The petitioner challenges Ext.P3 suspension order and Ext.P12 order in appeal refusing to interfere with the order of suspension, as also Ext.P21 order of the disciplinary authority dismissing him from the service of the Bank. Exts.P23 and P24 orders of the appellate authority and Ext.P27 order forfeiting the gratuity of the petitioner are also made subject of challenge.

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I have heard the learned Counsel for the petitioner

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and the learned Counsel appearing for the respondent Bank.

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The relevant facts are that the petitioner, who was

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W.P.(C) No.28002 of 2004 - H

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appointed as the Branch Manager of Nedumkandam branch of the respondent bank w.e.f 17.06.2002 was abruptly called back on 29.07.2002 to the Regional Office and was later issued with a show cause notice at Ext.P5,. After considering his objections Articles of Charges at Ext.P9 was issued and the petitioner was suspended, pending enquiry. The order of suspension was refused to be interfered with, in an appeal. Enquiry proceedings were carried out and based on Ext.P19 report, the petitioner was dismissed from service.

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The learned Counsel for the petitioner specifically refers to the amendments made to the Union of Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976, produced at Ext.P10, which mandates that the charge sheet shall be accompanied by the documents and list of witnesses, on which the allegations are raised. The learned Counsel would challenge the enquiry proceedings also on the basis of the contention that the documents asked for by him were not

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W.P.(C) No.28002 of 2004 - H

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supplied to him, which seriously hampered the defense of the delinquent employee. It is contended that the abrupt manner in which the petitioner was asked to report back to the Regional Office itself smacks of arbitrariness. The petitioner, who was posted in the Branch for hardly a month and 12 days was relieved unceremoniously without opportunity to hand over charge and this resulted in manipulation of the records of the Branch, eventually leading to the petitioner being found guilty of the charges alleged, is the argument. On the aforesaid grounds, the learned Counsel contends that there is no compliance of principles of natural justice and for that reason alone, the entire proceedings are to be set aside. Further it is also contended that in any event, the order of the respondent Bank forfeiting the gratuity cannot be sustained since there could be no allegation of moral turpitude raised against the petitioner.

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The learned Counsel for the Bank however submits

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that the petitioner was a person, who was once dismissed from

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W.P.(C) No.28002 of 2004 - H

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service and then later reinstated, by virtue of the modification made in appeal; to a lesser punishment of reduction of pay by six stages. The petitioner had in the short time, when posted as the Branch Manager at Nedumkandam, committed huge financial irregularities, misusing and abusing the position as the Manager, which resulted in the petitioner being called back to the Regional Office. The learned Counsel submits that all opportunities were given to the petitioner to examine the documents and the petitioner had cross-examined the witnesses. The documents asked for by the petitioner were supplied to him, which is evident from the proceedings of enquiry produced at Ext.R1B. The proceedings would show that the petitioner was insisting for two reports, which was prior to the issuance of the charge sheet and which were not relied on by the management at all. Though the charge sheet was based on the said reports, it is contended that the charges were proved by specific documents produced at the enquiry. The learned Standing

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Counsel would seek dismissal of the above writ petition.

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At the out set, it is to be noticed that the petitioner

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was a person, who was dismissed earlier from service and then taken back in employment by virtue of the modification of the penalty made in appeal, which is evidenced by Exts.R1A to R1C documents produced by the respondent Bank in its counter affidavit. The petitioner having been posted to Nedumkandam Branch as Branch Manager, admittedly was called back to the Regional Office and a detailed list of allegations with reference to the specific transactions were issued at Ext.P5. A reading of Ext.P5 indicates that immediately on the petitioner joining the Nedumkandam Branch as Branch Manager, on 22.06.2002 he disbursed two loans of Rs.25,000 to two fictitious persons. The same was entered in the ledger by the Branch Manager himself and not entered in the accounts, which was detected by the Assistant Manger, while balancing the accounts.

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W.P.(C) No.28002 of 2004 - H

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It was only when the difference was informed to the petitioner that he entered the loans in the ledger, in his own

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hand writing and even then, there were no applications or documents received from the alleged borrowers for opening such accounts. The disbursal of the amounts were also done by the petitioner and a DD was issued in favour of the Dafthari of another Branch, where the petitioner was earlier working. The balance amount was received as cash by the petitioner himself. Later the said accounts were closed by remittance from another account and by way of cash remittance, which was not properly authenticated.

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The remittance made from the other account was also not authenticated. On the basis of a debit voucher, the petitioner had granted a loan of Rs.1,00,000/- on 27.07.2002 to one account holder viz: Sri. Tomy Jose. From the said amounts sanctioned, a DD was taken for Rs.49,299/- and by transfer, Rs.25,275/- was credited in the Savings Bank accounts of Tomy

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Jose and the balance credited to one of the loans earlier referred to, granted in the name of a fictitious person. The DD taken was also sought to be cancelled by a letter purportedly issued by the account holder Tomy Jose, which was sanctioned by the Manager/the petitioner in his own hand writing and the cash disbursed, which was utilized to close the other fictitious loan account.

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In addition, there were further allegations with respect to various accounts and the differences in such accounts and adjustments in the accounts maintained in the Branch to show inflated deposits and advances. The petitioner was found to have sanctioned about 15 other loans under the heads of agricultural, additional housing loans, small traders loans etc: to various persons without proper documentation. Here it is to be specified that the charges were all within the period of one month and 12 days, in which the petitioner was continuing as Branch Manager in the Nedumkandam Branch. Definitely the

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Assistant Manager having detected such discrepancies had informed the Regional Office, which prompted the Regional Office to call back the petitioner. This Court does not find any reason to term such action of the Bank as improper in view of the gross allegations raised against the petitioner, that too in the span of a very limited period.

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The next ground raised is with respect to the non-issuance of the documents at the stage of show-cause notice. It is to be specifically noticed that the proviso to the regulation as seen at Ext.P10 indicates that when ever it is not possible to furnish the documents, the disciplinary authority shall allow the officer/employee to inspect such documents, within a time specified in this behalf. The petitioner while replying to the show-cause notice at Ext.P6, did not raise any request for copies of the documents or for examination of the same. In any event, there can be no prejudice found since the petitioner could be found guilty only at the stage of enquiry and herein a valid

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enquiry was held wherein, the documents are said to have been given.

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To consider the contention raised by the

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respondent one has to look at the enquiry proceedings produced by the respondent as Annexure R1D. After the list of documents required was furnished to the enquiry authority, the enquiry authority had specifically furnished copies of the documents and had while finding that the other documents were not relevant also noticed that if the same is found to be relevant in the course of the enquiry, the supply of such documents would be permitted. The petitioner as is evident from the proceedings at the enquiry, was assisted by another employee of the Bank. It is to be specifically noticed that the contention raised, as is seen from the last page of the proceedings, is that the petitioner had requested for the report of the first Inspecting Officer and the report of the Vigilance Officer. These were the preliminary reports made on the allegations raised against the

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petitioner before the charge sheet was issued. No reliance could be placed on the said report by the management also, since that was without participating the petitioner. The petitioner also is not prejudiced by the said report since that only led to the charge sheet being issued; with the charges having to be proved in the enquiry. The enquiry was held with full participation of the petitioner and this Court does not find any sustainable ground of violation of principles of natural justice, to the extent of having caused prejudice to the delinquent.

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The enquiry report is produced at Ext.P19. About 59 documents were marked by the management and the delinquent employee marked 11 documents. It is trite that this Court would not look into the findings in the enquiry or attempt a re-appreciation of evidence adduced at the enquiry since this Court is not exercising an appellate jurisdiction against the findings of the Enquiry Officer or that of the disciplinary authority. However, definitely, this Court could look into any

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evidence relied on by either of the authorities, to enter a finding of guilt; which is totally extraneous to the matter in issue and could also interfere, when there is a total lack of evidence. There is no such ground raised and the contention raised is that the Assistant Manager would have manipulated the records after the petitioner was abruptly called back to the Regional Office. This Court had already found that the allegations leveled, justified the re-calling of the petitioner.

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The enquiry report indicates that the allegations and deposition of witnesses were gone into by the Enquiry Officer and the findings were entered with respect to each of the allegations leveled. The charge sheet is Ext.P9 read with Ext.P5 dated 16.12.2002, which memorandum is specifically referred to in Ext.P9 charge sheet. The two loans in the name of C.K. Chacko and P.M Salim were found to have been opened and amounts disbursed as alleged. It was the Assistant Manger, who detected the irregularity and on pointing out the same to the

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petitioner, the petitioner himself had made some entries in the ledger account. Further, the amounts in such loan were disbursed to the petitioner himself, a portion of which was converted to a demand draft, which was issued in favour of an employee in the Branch, in which the petitioner was formerly employed. The balance cash was also received by the petitioner. 14. In fact a witness was proffered by the petitioner by name, P.K. Ganeshan who was examined as DW1 and he contended that he had received the money from R.M Rabri, the Daftary in the Branch, in which the petitioner had been formerly employed. The demand draft taken was in the name of the said Daftary. It was the said witness’s deposition that he had purchased tarpaulin in the name of Sri. C.K.Chacko, one of the account holders, alleged to be fictitious. It was also deposed that such a purchase was made on the request of the petitioner. It also come out in evidence that the allegations were proved since the hand writing in the ledger and the vouchers was of the

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petitioner himself. Herein, it is to be specifically noticed that the petitioner on sanctioning the aforesaid loans, had violated the regulations of the Bank, insofar as the disbursement having to be made through the Savings Bank accounts and not directly to the loanees; in cash.

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C.K.Chacko was not examined as a witness nor

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was there anything to indicate that a purchase was made in favour of that person. The witness proffered by the petitioner in fact proved that the petitioner had undisputed connection in the transaction and the allegations stood established. A statement (M27) prepared by the petitioner was produced at the enquiry, which was the statement of limits sanctioned during the month, which had to be submitted by the Branch Manager to the Head Office. The said statement curiously did not show the loan sanctioned to C.K. Chacko and P.M Salim further establishing that they are fictitious persons. Yet another loan was granted to one Tomy Jose for Rs.1,00,000/- and Rs.49,199/- from the said loan

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disbursement, was converted to a demand draft in favour of one Anton Auto at Trivandrum and only the balance amounts were transferred to the Savings Bank account. After crediting the Savings Bank account of the balance amounts in the loan granted to Tomy Jose, the same was received by the petitioner on the strength of a cheque. The vouchers contained the handwriting and signature of the petitioner, which was identified by the witness.

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Subsequently, one Rasheed approached the Assistant Manager to close the loan account granted in the name of Salim and sought for cancellation of the demand draft in favour of Anton Auto to be credited to Tomy Jose's account. The demand draft was cancelled by the petitioner himself and the amounts credited to the Savings Bank account of Tomy Jose by cancellation of the demand draft and then utilising to satisfy P.M.Salim's account, the other fictitious account. On the basis of the evidence adduced, the Enquiry Officer concluded that C.K.

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W.P.(C) No.28002 of 2004 - H

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Chacko, P.M.Salim and Tomy Jose were fictitious persons in whose names, the petitioner had sanctioned loans; disbursed money, which was all transacted by the petitioner himself. One other witness offered by the petitioner was DW2, a college Lecturer, who deposed that P.M.Salim, C.K.Chacko and Tomy Jose were his casual labourers and he had directed them to the petitioner for obtaining loans. Even the said witness deposed that he does not know their permanent address nor about their family or their present whereabouts. None of the said persons were also offered as witnesses before the Enquiry Officer. The deposition of DW2 was found to be full of inconsistencies and the Enquiry Officer rightly refused to place any reliance on the same. The handwriting of the petitioner in the ledger maintained at the Branch, opening the two fictitious loan accounts and the sanction made for disbursal of cash and the receipt of the cash by the petitioner clinches the issue against him and simultaneously belies the contention that the Assistant

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W.P.(C) No.28002 of 2004 - H

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Manager had manipulated records, after the petitioner was abruptly recalled.

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The other allegations were also gone into and allegation No.7 was found to be partially proved and allegations under 8 and 9 not proved at all. The allegations from 1 to 6 and 10 to 14 were found to have been established. In such circumstance, the Enquiry Officer found the charges to have been established. The report of the enquiry was supplied to the delinquent officer and after considering his objections, Ext.P21 order was passed, imposing the major penalty of dismissal from the service of the Bank. The appeal and review also stood dismissed. The aforesaid discussion would indicate that the witnesses and documents proffered at the enquiry clearly established the guilt of the delinquent employee. In such circumstance, there is absolutely no reason, why this Court should interfere under Article 226 of the Constitution of India.

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The next contention is with respect to the forfeiture of gratuity, which has been ordered by Ext.P25. The Payment of Gratuity Act, 1972 by Section 4 (6) permits forfeiture of gratuity in the event of the employee being terminated for any Act, which constitutes offense involving moral turpitude. However, it is to be specifically noticed that the regulation of the Union Bank of India permits such forfeiture only if there is a financial loss caused to the Bank and in such event, only to that extent. It is trite that any beneficial award or agreement or contract, offering better terms of gratuity than that offered in the Act of 1972, would be saved under sub-section (5) of Section 4. Here despite the Gratuity Act having provided for forfeiture of gratuity on the services of the employee being terminated for reason of any Act constituting offense involving moral turpitude,

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the bipartite agreement of the Bank dated 19.08.1966, as is extracted in the impugned order itself, by paragraph 12.2 provides so:-

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“12.2 There will be no forfeiture of gratuity for dismissal on account of misconduct except in cases where such misconduct causes financial loss to the bank and in that case to that extent only.”

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Sub-section (6) of Section 4 is a non-obstante

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clause; notwithstanding anything contained in sub-section (1); while sub-section (5), is a non-obstante clause saving any better terms from the rigor of the section itself, inclusive of sub-section (6). There can be no dispute that the terms of the agreement (bipartite settlement) are better as far as the employee is concerned, and reduces the rigor of sub-section(6).Hence there could be forfeiture of gratuity only when the misconduct causes financial loss to the Bank.

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The charges leveled against the petitioner is evident

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from Ext.P9, which are extracted hereunder:-

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Failure to take all possible steps to ensure and protect the interest of the Bank.

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Failure to discharge his duties with utmost devotion, diligence, honesty and integrity.

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Doing acts unbecoming of an Officer

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employee.

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There is absolutely no allegation with respect to

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loss having been caused to the Bank and in such circumstance, the forfeiture of gratuity is not proper. Ext.P25 would stand set aside. The petitioner shall be paid the entire gratuity due with 6% interest from the date of termination, within a period of three months from the date of receipt of a certified copy of this judgment.

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The writ petition would stand partly allowed. No

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costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE

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SB/12/01/2015

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// true copy //

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P.A to Judge.

C.G.Ajay Babu v. Union Bank of India

Case brief

What is this about?

What did the court decide?

C.G.Ajay Babu v. Union Bank of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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