Dismissed

C.Venkatarathnam v. The Deputy General Manager

Telangana HC14 Sept 2012WP/16422/2002

Case brief

AI extract

What is this about?

Writ petition by a bank cashier dismissed from service for embezzlement challenging the punishment. The court held that while procedural lapses occurred regarding non-substantive charges, the substantial charge of embezzlement was clearly established by the enquiry officer and not disputed. Consequently, the petitioner suffered no prejudice, and the dismissal was upheld.

What did the court decide?

The writ petition filed by the petitioner challenging his dismissal from service on grounds of procedural violation is dismissed.

C.Venkatarathnam Vs The Deputy General Manager — Service and Employment | Telangana HC (2012)

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*THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

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+WRIT PETITION NO.16422 OF 2002

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% 14^th September, 2012 Between:

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C. Venkataratnam AND The Deputy General Manager, State Bank of Hyderabad Varakantam Compelx, Kachiguda, Hyderabad and others ....Respondents

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..... Petitioner.

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Counsel for the Petitioner : Sri T. Suryakaran Reddy

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Counsel for the Respondents : Sri A. Krishnam Raju

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< Gist: > Head Note:

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? CITATIONS:

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1) 1999 (3) SCC 679 2) (2003) 2 SCC 449 3) (2006) 4 SCC 153 4) AIR 1963 SC 779 5) AIR 1966 SC 828 6) (1996) 3 SCC 364 7) (2003) 3 SCC 605 8) (2005) 6 SCC 321 9) (2010) 3 SCC 556 10) (2010) 5 SCC 605 11) (1977) 2 SCC 256 12) (2006) 4 SCC 153 13) (1996) 3 SCC 364 14) (1949) A All ER 109 15) (1978) 1 SCC 405 16) (1982) 1 SCC 271 17) (1981) 1 SCC 664 18) (1969) 2 SCC 262 19) (1984) 3 All ER 935 20) (1984) 3 SCC 465 21) (1963) 2 All ER 66 22) (1979) 2 All ER 440

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23) (1993) 4 SCC 727 24) (1973) 1 SCC 805 25) (2010) 5 SCC 349

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THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

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WRIT PETITION NO.16422 OF 2002

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ORDER:

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This writ petition is instituted by a Head Cashier of State Bank of Hyderabad (henceforth called the ‘Bank’), challenging the validity of the orders passed by the second respondent/Assistant General Manager/Disciplinary Authority of the Bank, imposing on him the punishment of dismissal from service through his orders dated 25.01.2002 which order, when appealed against, has been confirmed by the first respondent/Deputy General Manager/Appellate Authority through his orders dated 12.04.2002.

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2. While the petitioner was working as Head Cashier at the Jubilee Hills Branch of the Bank, on 03.07.1999, he was suspected to have embezzled a sum of Rs.10.00 lakhs and consequently was suspended from service on 05.07.1999 and subsequently a complaint was also lodged against him with the Jubilee Hills Police Station for an offence said to have been committed by him Under Section 409 I.P.C. It is the specific case of the petitioner that, through proceedings dated 15.10.1999, charges were framed against him calling for his reply within fifteen days and even before the petitioner has received the said charge sheet on 17.11.1999, the second respondent/Disciplinary Authority has proceeded further in the matter and on 30.10.1999, appointed an Enquiry Officer and a Presenting Officer, thus denying a vital opportunity for the petitioner to set forth his defence. The petitioner further asserts that, through letter dated 29.11.1999 he requested for supply of documents relied upon by the Bank against him, to enable him to draw up his defence. However, no such documents were supplied. Hence, the petitioner could not participate in the enquiry that was conducted between November 2000 to March 2001. This apart, the petitioner has not been paid the subsistence allowance which is so essentially required to be paid and hence he could not participate in the enquiry. A copy of the report submitted by the Enquiry Officer was made

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available to the petitioner on 12.04.2001 calling for his explanation/comments thereon. Since the whole enquiry was conducted in utter violation of the principles of natural justice, the petitioner did not file any explanation to the said report. On 01.10.2001, the second respondent has drawn a show cause notice proposing to impose the punishment of dismissal from service. The petitioner filed his explanation thereto on 25.01.2002 objecting to the proposed punishment, as the whole proceedings were conducted in utter haste and violation of the principles of natural justice. Notwithstanding the objections raised, the second respondent has proceeded further in the matter on 25.01.2002 and inflicted on him the punishment of dismissal from service. There against, the petitioner preferred an appeal on 14.03.2002 which was mechanically dealt with and rejected on12.04.2002 by the first respondent duly confirming the orders of punishment of the disciplinary authority. Hence this writ petition is instituted.

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3. Heard Sri T. Surya Karan Reddy, learned counsel for the writ petitioner and Sri A. Krishnam Raju, learned counsel for the respondents.

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4. It is contended by Sri T. Surya Karan Reddy that the petitioner has received the charge memo dated 15.10.1999 only on 17.11.1999 and immediately thereafter he requested for supply of copies of documents to enable him to put forth his defence. But however, the Bank has not supplied any such copies and thus denied a fair opportunity for the writ petitioner to put forth his defence and participate in the disciplinary proceedings. This apart, the enquiry proceedings were conducted ex parte. However, the Enquiry Officer held that, charges 4 & 8 as not proved and charges 3, 6 & 9 as partly proved. Whereas, the disciplinary authority has disagreed with the said findings of the Enquiry Officer and held the petitioner guilty of all the charges. The Disciplinary Authority has conveyed his decision of disagreement with the findings of the Enquiry Officer along with the show cause notice drawn by him on 01.10.2001. Prior thereto, the disciplinary authority has not put the petitioner on notice and did not call for his explanation as to why the finings of the Enquiry Officer cannot be disagreed with by him. Thus, according to the learned counsel for the petitioner, the Disciplinary Authority has prejudged the matter holding the petitioner guilty of the charges, while disagreeing with the findings of the Enquiry Officer. It is a fundamental principle of law that, before the Disciplinary Authority proposes to disagree with the findings of the Enquiry Officer,

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particularly when those findings are in favour of the delinquent employee, Disciplinary Authority should provide an opportunity of hearing to the delinquent employee, duly keeping his mind open till the delinquent employee shows the cause. Since the Disciplinary Authority had not provided any such opportunity, clearly the final order passed by him on 25.01.2002 inflicting the heavy punishment of dismissal from service on the petitioner is liable to be treated as vitiated. Learned counsel for the petitioner Sri Surya Karan Reddy has also mounted a serious challenge to the appellate order passed by the first respondent reflecting the mechanical attitude adopted by him in the matter. Learned counsel for the petitioner would also urge that, after full-fledged trial into the same set of allegations and after considering the same material as evidence, the competent Criminal Court has acquitted the petitioner of the charge, whereas the Disciplinary Authority has held the petitioner guilty and inflicted the punishment of dismissal from service, which was approved by the Appellate Authority mechanically. Learned counsel for the petitioner has also placed reliance upon the Judgments rendered by the Supreme Court in Capt.M. Paul Anthony Vs. Bharat Gold Mines Limited & anothe r^[1] , State Bank of India and others Vs. K.P. Narayanan Kutty^[2] , Ranjit Singh Vs. Union of India and others^[3] in support of his contentions.

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5. Per contra, learned counsel for the respondents would urge that the petitioner has not filed any statement denying the charges leveled against him. Therefore, the Disciplinary Authority had appointed an Enquiry Officer and since the petitioner has not participated at the enquiry, the enquiry was conducted ex parte. When the Enquiry Officer’s report was made available to the petitioner calling for his objections / remarks thereon, he did not file any such objections. Though the Disciplinary Authority has disagreed with some of the findings of the Enquiry Officer, he has however issued a show cause notice to the petitioner on 01.10.2001 proposing to inflict upon him the punishment of dismissal from service. The petitioner has not raised any objections with regard to the findings recorded by the Disciplinary Authority. Therefore, the petitioner must be deemed to have waved his objections, if any, in that regard. More importantly, Sri Krishnam Raju would contend that, in the process as to how prejudice was caused to the petitioner has

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not been demonstrated in the entire matter. If the disagreement of the Disciplinary Authority with some of the finding of the Enquiry Officer did not cause any prejudice to the petitioner, he cannot seek any relief from this Court. More importantly, Sri Raju would contend that, the basic and fundamental facts which have been established during the Disciplinary Authority have not been denied or disputed by the petitioner all through. Further, the substantial charge of embezzlement of funds of the Bank has been held established by the Enquiry Officer, which finding has not been disputed by the petitioner. Therefore, the punishment that has been imposed by the Disciplinary Authority is directly proportionate to the quantum of guilt established by the Enquiry Officer. In that perspective, the disagreement recorded by the Disciplinary Authority on the other charges is not of much serious consequence to the petitioner. Learned counsel for the respondents would finally urge that, if substantial compliance with the principles of natural justice has been adhered to in the whole process, a minor variation or violation which has not caused any prejudice to the petitioner cannot be of such a consequence to nullify the ultimate punishment imposed on the petitioner. Sri Raju has placed reliance upon the Judgments rendered by the Supreme Court in State of Orissa Vs. Bidya Bhushan Mohapatra^[4] , Gadde Venkateswar Rao Vs. Government of Andhra Pradesh^[5] , State Bank of Patiyala and others Vs. S.K. Sharma^[6] , Regional Manager, UPSRTC, Etawah Vs. Hotilal and anothe r^[7] , Canara Bank Vs. Awasthy^[8] , Sarva Utter Pradesh Gramin Bank Vs. Manojkumar Sinha^[9] , Union of India and others Vs. Alok Kuma r^[10]

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6. Before I proceed further in the matter, I would consider it appropriate to record some of the facts that have emerged after perusing the various material papers enclosed both by the writ petitioner as well as the respondent-bank. On 5.7.1999, the Assistant General Manager of the bank, being the competent authority, passed an order placing the writ petitioner under suspension with immediate effect pending further investigation and disciplinary action was initiated against him as it was found that there was a cash shortage of Rs.10.00 lakhs in the hand balance held by the petitioner, after physical verification by the joint custody officer. Infact, the Branch Manager of the Jubilee Hills branch of the bank lodged a complaint with the

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Jubilee hills police thereafter on 7.7.1999 about the misappropriation of Rs.10.00 lakhs. On 15.10.1999, the Assistant General Manager has communicated to the petitioner the lapses committed by him and advised him to submit his replies within 15 days from the date of receipt of the said letter. The very first lapse pointed out there in discloses as to how the figures have been inflated by the petitioner in the books to indicate as if the hand balance available with him as Rs.10,38,928/- but whereas the physical cash available with him on 3.7.1999 was only Rs.38,928/-. It is not disputed that this communication dated 15.10.1999 was received by the petitioner on 17.11.1999. (In fact this letter dated 15.10.1999 was displayed at page No.6 of the paper book filed by the petitioner himself). However, the petitioner has not furnished any reply to this communication dated 15.10.1999. It appears that the bank has initiated disciplinary proceedings against the petitioner by drawing charges against him only on 13.7.2000. The imputations of allegations made by the bank were infact received by the petitioner on 9.8.2000. (Unfortunately, neither party preferred to bring on record this charge sheet) Though time was granted to him, he has not furnished any replies or statement of defence to the said allegations/imputations. In those set of circumstances, the bank has decided to proceed further in the matter and conduct an enquiry into the allegations by appointing an enquiry officer. Accordingly, the Assistant General Manager/Disciplinary Authority through his proceedings dated 30.10.2000 passed orders appointing Sri P.V.G.K.Murthy, Officer MMGS/III, Zonal Office, Hyderabad as enquiry officer and appointing Sri A. Bhaskara Rao, Officer, MMGS/III, Region-II, Zonal Office, Hyderabad as the Presenting Officer. (This proceeding dated 30.10.2000 was also exhibited by the petitioner at page 11 of the material paper book filed along with the writ petition). From a perusal of this order dated 30.10.2000, it emerges that after the lapses committed by the petitioner were communicated to him on 15^th October, 1999, the bank has waited for nearly one year’s time in appointing an enquiry officer. When once the writ petitioner has received the communications dated 15.10.1999 and 13.7.2000 from the disciplinary authority, he ought to have filed his response thereto. But however, since he has not filed any such explanation, the disciplinary authority proceeded in the matter only on 30.10.2000. The criticism that the respondent bank has not waited for the response of the petitioner, but hurriedly proceeded to appoint an

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enquiry officer, is therefore, is far from correct. The bank has waited for more than one year from 15.10.1999 and a little more than 2 months period after he was communicated with the charge sheet dated 13.07.2000, for the response of the petitioner and thereafter only it has proceeded further in the matter.

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7. It is also urged on behalf of the petitioner that he solicited certain documents to be supplied to him on 29.11.1999 for preparing his defence in the matter and since the bank has failed to do so, he could not file his statement of defence and thus he was denied a fair opportunity to defend himself. I, therefore, consider it appropriate to extract the contents of his communication dated 29.11.1999 which is placed at page No.16 of the material paper book filed in the writ petition:

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“Ref: Lapses in the area of cash management. Your Lt.No.AGM(II)/R-IIGV/55.

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I acknowledge the receipt of your above letter pointing out certain lapses in the area of cash management and advising me to submit my reply for the lapses pointed out there in.

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In this connection I bring to your kind notice that I do not remember the details of the transactions pointed out in your above letter and hence request you to supply me the copies of the records in which the lapses said to have been occurred in order to enable me to submit my reply.

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I shall be very thankful for your act of kindness and look forward for your reply.

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Yours sincerely,

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(G.VENKATARATNAM) Date:29.11.1999”

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8. A perusal of the above request of the petitioner reveals that he was seeking supply of the copies of the records in which the lapses said to have occurred/noticed. In response to the request of the petitioner dated 29.11.1999, on 3.12.1999, the Assistant General Manager to the petitioner to verify the books and other records at the branch premises in the presence of the Branch Manager. It will be appropriate, therefore, to extract the contents of the communication dated 3.12.1999 which is placed at page No.17 of the material paper book filed in support of the writ petition:

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“This has reference to your letter dated 29.11.1999. You are advised to verify the books and other records at the branch premises in the presence of the Branch Manager only. You are

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advised to submit your reply within 10 days from the date of receipt of this letter failing which it shall be construed that you have no reply to offer and action will be taken in the usual course. No further extension of time will be given.

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ASST. GENERAL MANAGER.”

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9. The petitioner has not listed out any particular document, a copy of which is to be supplied to him for the purpose of his defence. He made a broad based omnibus request to supply copies of all such records and registers where the lapses were noticed by the bank. In those set of circumstances, the disciplinary authority has advised the petitioner to verify all such records and registers in the presence of the Branch Manager of the Bank. The petitioner does not appear to have availed this opportunity of perusing the records. Hence, it will be difficult to agree with the contention of the petitioner that a fair and reasonable opportunity to prepare his defence has not been granted by the bank. If only the petitioner had availed the opportunity and perused the relevant records and registers and had made his notes and thereafter asked for copies of any specific document or any particular page of the records, perhaps the bank would have been under an obligation to supply the same to him, if taking copies there of is feasible. But, however, when he has not availed the opportunity provided to him to peruse the records and registers, he could not have narrowed down upon any specific documents or records or registers which, in his opinion can be of help to him in preparing his defence to the charges, particularly, when he averred that he does not remember the details about the lapses pointed out. As is now evident between 3.12.1999, upto 13.7.2000, the date on which the charges were formally drawn against the petitioner, the petitioner could not decide upon the line of defence to be adopted by him. Having waited for more than six months period, the charge sheet has been drawn against the petitioner. In these set of facts and circumstances, I am not in a position to agree with the contention canvassed on behalf of the petitioner that he was denied a fair and reasonable opportunity of defending himself.

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10. It will also be appropriate to notice that when he visited the Jubilee Hills Branch of the bank on 3.10.2000, the petitioner has tendered a letter to the said branch. The same was placed along with material papers filed by the respondent bank and it reads as under:

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“Jubilee Hills,

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3^rd October,2000 To

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The Manager, State Bank of Hyderabad, Jubilee Hills, Hyderabad.

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Dear Sir,

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As the police enquiry is going on, i have to attend police enquiry regarding regularly and as soon as it is completed, I will give my reply to the charge sheet within 20 days.

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Thanking you,

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Yours faithfully,

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(G. Venkata Ratnam)”

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11. It is therefore, evident that the petitioner though sought for time for filing his reply to the charge sheet, he has not chosen to do so for his own reasons.

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12. The enquiry officer conducted the preliminary enquiry on 16.11.2000 at Jubilee Hills branch premises. The petitioner attended the same and pleaded “not guilty” to the charges levelled against him and desired an inquiry to be conducted in his presence. Thus, even on 16.11.2000, when the petitioner attended the preliminary enquiry at the Jubilee Hills branch premises, he neither raised a plea for perusal of registers and records nor did he ask for supply of copies of any specific documents or registers to defend himself. Therefore, this set of circumstances also discloses lack of tenability of the claim of the petitioner that he was denied a fair and reasonable opportunity to defend himself.

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13. As can be made out from the preamble portion of the enquiry officer’s report, after conducting the preliminary enquiry on 16.11.2000, the regular enquiry was posted to 18.12.2000. The petitioner seems to have made a request to adjourn the enquiry. Accordingly, the enquiry was posted to 18.01.2001 and since the petitioner had abstained from attending to the enquiry, the enquiry was conducted exparte. By 15.2.2001, the presenting officer of the bank has completed the presentation of the management’s case. Then the enquiry officer posted the matter to 28.2.2001 for cross-examination of the management witness by the petitioner. On 28.2.2001 also the petitioner did not turn up. With a view to provide him another opportunity, the enquiry was again adjourned to 20.3.2001. Even on that date, the

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petitioner did not appear. Hence, the enquiry officer concluded the proceedings and gave time to the petitioner till 5.4.2001 for submitting his defence brief, if any. The petitioner did not choose to file any such defence brief either. In this set of circumstances, the enquiry officer has taken into account the depositions of management witnesses 1 to 6 as well as the contents of the documents exhibited by the management ME 1 to 15 and based thereon he prepared his report on 12.3.2001 and submitted it to the disciplinary authority. Therefore, I am of the opinion that the enquiry officer has provided more than adequate and fair opportunity to the petitioner to defend himself. But, the failure to utilise the same squarely lies with the petitioner. Hence, the contention of the petitioner that enquiry was conducted in utter violation of principles of natural justice does not carry any conviction.

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14. It is next contended by the petitioner that he was not paid subsistance allowance during the period he was kept under suspension. In fact he had earlier instituted W.P.No.17310 of 2000 before this Court for declaring the action of the respondent bank in not paying the subsistence allowance to him from 5.7.1999 as bad and illegal. The said writ petition was disposed of by this Court on 4.12.2000 after recording the statement made on behalf of the bank that the subsistence allowance payable to him from July, 1999 to June, 2000 and subsequently the full salary were already credited to the account of the petitioner. Hence, the Court recorded that no further orders are required to be passed in that writ petition. In fact, from a perusal of letter dated 9.10.2000 of the Jubilee Hills branch of the bank, it emerges that the petitioner was advised to collect the subsistence allowance. But, however, it appears, it is the petitioner who could not receive the same due to some personal problems. That is the reason why the banker’s cheque was drawn representing the arrears payable to him and delivered to him on 3.10.2000 which he received without prejudice to the pendency of Writ Petition No.17310 of 2000 instituted by him in this Court. It is therefore clear that non receipt of the subsistence allowance from July, 1999 is not wholly due to the fault of the bank and hence it would be difficult to agree with the contention of the learned counsel for the petitioner that non payment of the subsistence allowance, infact, prevented the petitioner from participating in the disciplinary enquiry conducted against him. It is worthy to notice that, the petitioner has received a sum of Rs.53,500.53 ps on

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3.10.2000 representing the arrears of subsistence allowance payable to him till then, but the enquiry commenced only on 16.11.2000. Therefore, far from suffering any hardship, the petitioner cannot even be said to have been prevented from participating in the disciplinary enquiry all due to non receipt of the subsistence allowance.

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15. On 16.4.2001, a copy of the enquiry report has been furnished to the petitioner requiring him to offer his comments/explanation thereto. After receipt of the same, the petitioner has addressed a letter to the Assistant General Manager of the bank on 04.05.2001 requesting him to give 15 days time for furnishing his reply as he was away from the city to attend on some personal family matters. By communication dated 11.5.2001, the Assistant General Manager permitted the petitioner to file his response to the enquiry officer’s report granting him 15 days time from 4.5.2001 to do so. It was made clear that no further extension of time will be permitted to the petitioner. Noticing that the petitioner has not adhered to his promise of filing the reply, once again the Assistant General Manager through his communication dated 16.6.2001 drawn the attention of the petitioner that he has failed to file his response to the enquiry officer’s report till then and hence advised him to make his submissions within 10 days from the date of receipt of the said letter. As is now made out, the petitioner has not drawn any submissions with regard to the enquiry officer’s report. In these set of circumstances, a second show cause notice was drawn by the Assistant General Manager on 01.10.2001, after applying himself thoroughly to the material gathered by the enquiry officer, proposing to impose on the petitioner punishment of dismissal of service from bank’s service. It is, no doubt, true that though the enquiry officer has recorded favourable findings on certain imputations contained in the charge sheet, the Disciplinary Authority has disagreed on those counts of imputations and held him guilty of these charges. The petitioner has submitted his reply thereto on 25.10.2001. This response dated 25.10.2001 of the petitioner is placed at page No.59 of the material paper book filed along with the writ petition. In paragraph No.3. the petitioner admitted that the charge sheet was drawn against him on 13.7.2000, thus, putting beyond any pale of factual controversy as to the date on which the charge sheet has infact been drawn against the petitioner (but not on 15.10.1999 as was conducted at the Bar). In his explanation while setting out that

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the enquiry was conducted hurriedly in violation of all principles of natural justice and that the Assistant General Manager has concluded the entire issue without affording him any opportunity, in substance all that the petitioner would submit with regard to the substantive charge of misappropriation of the bank funds, is as follows:

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“To be in nut sheet, the allegation that I have paid Rs.10.00 lakhs to one of my friends unauthorisedly and to the extent. I have inflated the cash balance book is only an imagination. I have never paid any amount unauthorisedly to any person as the cash in any bank’s branch shall be in the joint custody of the cashier and officer. It is impossible for any one of the joint custody holders to remove the cash from the safe without concurrence of the other. Hence the allegation is totally fabricated.

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Sir, I request you to drop the proposed punishment of “Dismissal” against me as I have not committed any grave misconduct and reinstate me in the service immediately.

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Place: Hyderabad Yours sincerely, Date:25.10.2001 (G. Venkata Ratnam)”

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16. After taking his explanation into account, final orders were passed by the Assistant General Manager on 25.1.2002 inflicting the punishment of dismissal from service. All that the petitioner was contending with regard to the substantial charge laid against him was that it was impossible for any one to draw Rs.10.00 lakhs without the knowledge or support of the Joint custodian. Shri S.K. Dastagir, Officer MMG Scale-II who was working earlier as Accountant was the Joint custodian of keys of the chest at the Jubilee Hills branch of the bank between June, 1998 to February, 2000. He was examined as management witness No.1 before the enquiry officer. He clearly deposed that he was on leave from 18.5.1999 to 1.7.1999 and reported back to duty only on 2.7.1999. Immediately the Branch Manager advised him to complete the work relating to central accounts department at head office. Hence, he did not take charge of joint custodian of the cash on 2.7.1999. On 3.7.1999, he was to take charge of the joint custody but he refused to take charge as the physical cash was found to be not tallying when compared with the entries in the cash balance book. At page No.18 of the cash balance register, the available cash was shown as Rs.10,38,928.27 ps whereas the physical cash was available was only Rs.38,928.27 ps. Sri A.P. Ram Kumar who held the joint

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custody of the charge along with charge sheeted employee during the leave period of Sri S.K. Dasthagiri, was examined as M.W.3 and he found after verifying the hand balance in the custody of the petitioner to be short of Rs.10.00 lakhs. When M.W.3 verified the cash balance book he has noticed that the petitioner has inflated the figures with regard to the denominations of Rs.500/-, Rs.100/-, Rs.50/-. While the physical cash balance disclosed the availability of only 58 nos of Rs.500/- notes, the petitioner has inflated the figure to be of ‘1098’. Similarly the actual numbers of Rs.100/- denomination available are only 19 whereas the petitioner has inflated the figure as ‘4019’. As against 96 numbers of Rs.50/denomination, the petitioner has inflated the said figure to be ‘1696’. The cash balance both physically and also as per the entries in the register with regard to Rs.20/-, Rs.10/- Rs.5/-, Rs.2/- and Rs.1/- are tallying exactly. It is therefore deduced that the petitioner has inflated the figures relating to the denominations of Rs.500/Rs.100/- and Rs.50/- in such a manner, the cumulative result of which would get inflated by Rs.10.00 lakhs [Rs.500x1040 = Rs.5,20,000/-, Rs.100x4000 = Rs.4,00,000/-, Rs.50x1600 = 80,000/-]. The petitioner has recorded the details in the cash balance in his own hand and singed the cash balance register. The relevant page of the cash balance register is marked as Management Ex.3/7. Management witness No.3 has clearly stated that the cash balance register was returned by the petitioner on 3.7.1999 and it bears his signature. M.W.3 did not sign it due to shortage of currency notes. Thus, the plea raised by the petitioner that without the cooperation of the Joint custodian, it is impossible to embezzle a sum of Rs.10.00 lakhs is lacking any substance and merits no consideration. When once the petitioner has entered the figures recording the denominations of Rs.500/-, Rs.100/- and Rs.50/- in the cash balance register, it is for him to account for the missing numbers of them. Page 18 of the cash balance register is marked as Management Ex.3/6 before the enquiry officer. Therefore, after examining the cash balance register and after noticing the relevant entries therein and also taking into consideration the depositions of M.W.3, the enquiry officer arrived at a finding that the entries in the balance cash register for 3.7.1999 were made by the petitioner and when the figures entered therein were compared with the physical cash balance available, it becomes clear that the figures were inflated to the extent of Rs.10.00 lakhs. This finding of the enquiry officer is sound and a reasonable one based upon the material available on record. I must, at this stage, necessarily credit

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Sri T.Surya Kiran Reddy, learned counsel for the petitioner, for having not made any bones out of this finding recorded by the enquiry officer.

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17. Much has been made out of the second show cause notice issued by the Assistant General Manager on 1.10.2001 inasmuch as unilaterally the disciplinary authority has disagreed with the findings recorded by the enquiry officer with regard to imputation Nos.4 and 8 and some limbs of charges 3,6 and 9. Charge No.4 related to misconduct committed by the petitioner in introducing one Ms.G. Saroja as his wife on the basis of which a S.B.Account has been opened in her name at the Jubilee Hills Branch on 17.5.1999, even though the official records reveal that his wife’s name is Smt G. Vijayalakshmi. In my considered opinion, this charge is too trivial a one to impact the ultimate conclusion of the Disciplinary Authority on the substantial charge, to merit any serious consideration. Similarly charge No.8 related to the petitioner availing an amount of Rs.1,50,000/- as housing loan from Kusaiguda branch of the bank in the year 1992 for construction of a house on plot No.61, Vikasnagar, Nagaram village, Keesara Mandal, Hyderabad. In the said loan account a sum of Rs.1,00,590/- was still outstanding. But, however, the petitioner appears to have sold away the said property to one Mr. Sital Prasad Tiwari and also executed a sale deed bearing registered No.9527/95 on 20.12.1995. Thus, it is alleged that the petitioner unauthorizedly sold away the property which is the subject matter of housing loan, without seeking permission of the bank and also failed to remit the sale proceeds of the property into the housing loan account. In my opinion, this allegation is also a non-substantial allegation in comparison to the misconduct attributed to the petitioner with regard to inflation of the figures in the cash balance register to the tune of Rs.10.00 lakhs and then embezzling the said money. Therefore, in my opinion not much could perhaps turn on the fact situation prevailing in this case, with regard to the findings on this Count.

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18. Similarly imputation No.3 related to payment of Rs.10.00 lakhs by the petitioner on 3.7.1999 to one of his friend by name Mr. Rao, improperly. Charge No.6 related to the procedural impropriety indulged in by the petitioner of withdrawing sums of Rs.3,00,000/- and Rs.7,50,000/- from the account of Smt G. Saroja based upon authorisation letter said to have been given by her instead of using the cheque leaves. Charge No.9 related to huge amounts of credits made to

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the S.B. Account of the petitioner maintained with the Jubilee Hills branch of the bank. The contents of imputation nos 3, 6 and 9 only talk of the procedural irregularities indulged in by the petitioner. In my opinion they are not very substantial to the charge held established by the enquiry officer.

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19. In the above background of facts it would be really relevant to consider as to how far the act of disagreement unilaterally recorded by the Assistant General Manager from the findings of the enquiry officer would have played any meaningful role in the matter of arriving at the ultimate decision with regard to the quantum of punishment imposed on the petitioner. By any reasonable account, if a cashier of a bank fails to render a proper account of the cash handled by him, as part of his duty obligation, at the end of the duty hour each and every day he renders duty to the bank, such a conduct smacks of lack of integrity on the part of such an employee. A financial institution like a bank would be able to survive in the competitive market only by the nature of purity and integrity of the transactions handled by it. The customers of a bank deal with it with enormous amounts of trust and confidence. If such trust and confidence is belied by any of the employees working for the said organisation/bank, the institutional credibility receives a jolt. It will have a direct impact upon the image of the bank in the eyes of the general public and in particular amongst its customers and clients. The trust deficit thus created by an erring employee will naturally fasten, almost vicariously to the bank. The gross impact such bad instances bring about to the institution will leave indelible marks. They may make it very difficult for the bank to shake off the same later on. Once the confidence of the client and customers is shaken in the integrity of the bank, the apparently invisible impact would still be felt reverberating through a long period of time thereafter. Infact the after affects of such fraudulent transactions can percolate into the very foundations of the institutions, to weaken them ultimately. Therefore, there is no way a competent disciplinary authority could tolerate the proven lack of integrity and financial discipline on the part of a support staff of a bank. In such cases, the only punishment that can be meaningfully conceived is their dismissal from service which normally disentitles reemployment of such an individual.

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20. At this stage, it is profitable to remind oneself the caution administered in Board of Mining Examination and Chief Inspector of Mines v. Ramjee^[11] , that

¶66

natural justice is not an unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The courts cannot look at law in the abstract or natural justice as a mere artefact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.

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21. The learned counsel for the petitioner Sri T.Surya Kiran Reddy placed a strong reliance upon the judgment rendered by the Supreme Court reported in Rangit Singh vs. Union of India and others^[12] , in support of his contention that the unilateral disagreement by the disciplinary authority of the findings of the enquiry officer would vitiate the whole exercise. I n Rangit Singh’s case, after considering the earlier rulings in Kunj Behari Misra and K.P. Narayan Kuttey’s cases this is what has been held:

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“22. In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the Disciplinary Authority. He was also required to apply his mind to the materials on record. The Enquiry Officer arrived at findings which were in favour of the Appellant. Such findings were required to be over turned by the Disciplinary Authority. It is in that view of the matter, the power sought to be exercised by the Disciplinary Authority, although not as that of an appellate authority, but akin thereto. The inquiry report was in favour of the Appellant but the Disciplinary Authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his part, in absence of any show cause filed by the Appellant, to analyse the materials on records afresh……….”

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22. Though no attempt has been made by the counsel on either side in the instant case, to demonstrate any provision in the regulations governing the

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conditions of the service of the petitioner, which required a notice to be issued to the petitioner, prior to recording any disagreement with the findings of the enquiry officer, but nonetheless the said requirement was considered as an essential facet of principles of natural justice. What really mattered in the instant case was that disagreement was recorded by the disciplinary authority unilaterally on certain trivial or non substantive imputations laid against the petitioner. With regard to the substantial nature of the charge no such disagreement arose. The enquiry officer found the petitioner guilty of the charge of inflating the figures in the cash balance register facilitating and resulting in his embezzling Rs.10.00 lakhs of banks money. Such findings were based upon evidence brought before him. The conclusions drawn by the enquiry officer reasonably flow from such material. The disciplinary authority agreed with the same. Therefore, the fact that the disciplinary authority has proceeded further to record his disagreement unilaterally with regard to some other imputations or some other limbs of the charges which are non-substantive would not really make much difference. What prejudice the petitioner has actually suffered in the process is not demonstrated. If the disagreement recorded by the disciplinary authority has not caused any prejudice to the petitioner in the ultimate analysis, no serious consequences can flow there from. This issue can also be addressed from a different perspective. If the charges framed against an employee are so deeply and intricately interwoven with each other, and if one such charge or link gets broken, then if the rest of the strings or links get completely disjoined, then one can assuredly say that the unilateral disagreement of findings as resulting in miscarriage of Justice. It is the same as, a jarring note produced in a symphony all due to lack of symmetry of the musical orchestra. Hence, by dissecting that portion of the ultimate decision, which was the result of violation of principles of natural justice, or a facet thereof and if the rest of the decision can be sustained entirely on it’s own content and quality, the ultimate order need not be set aside. It is only when such dissection does not help, a cohesive idea to transform into a firm shape, the ultimate decision warrants interference. Ideally, the disciplinary authority should have issued a show cause notice before he proceeded to record his disagreement. But, however, in the instant case, since the substantial nature of the charge has been held established by the enquiry officer and with which finding the disciplinary authority agreed totally, and particularly when the petitioner has not made any issue out of the same in his explanation dated 25.10.2001, in my firm opinion, the

¶71

petitioner’s case has not suffered any prejudice warranting interference with the order of punishment imposed by the disciplinary authority. On the main charge, the petitioner has not raised any plea either formal or legal as to the correctness of holding him guilty of inflating the figures and then embezzling the bank’s funds. Therefore, I hold that the petitioner is not entitled to secure any relief at the hands of this Court only because of violation of a facet of principles of natural justice in respect of some other non substantial or trivial nature of charges/imputations.

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23. Principles of natural justice are intended to serve the cause of justice by achieving two purposes. They bring transparency and purity to the decision making process and they also help in filtering out irrelevant considerations weighing with the decision making authority. The ultimate decision thus gets tempered by elements of justice and fair play. Adhering to the principles of natural justice, thus would serve the ultimate cause of justice itself. However, breach or violation of principles of natural justice need not invariably result in nullifying the ultimate decision that emanated. In that context it becomes imperative for one to examine as to how far the violation has resulted in substantial injury to the rights of the individual. In the instant case, no such injury suffered by the petitioner was demonstrated. He could not explain with any sense of justification as to how the figures entered by him in the cash balance register/M Ex.B/6 and Mex. 3/7 were found not tallying, nay in fact varying, with the actual cash available in the chest. On 3.7.1999 M.W.3 was the joint custodian. He has not signed the cash balance register. Therefore, the burden was lying heavily on the petitioner to explain the grossly disproportionate figures entered by him in the cash balance register with regard to Rs.500/- Rs.100/- and Rs.50/- denominations. He was provided more than a fair and adequate opportunity to explain away the said inflation. He has not availed the same. Hence, he has not discharged the primary burden and responsibility on him to explain the adverse material gathered against him by the bank. In those set of circumstances, I hold that the violation of not putting the petitioner on notice prior to recording disagreement with regard to some of the imputations or some limbs of the charges contained in the charge sheet dated 13.7.2000 would be of no legal consequence and hence the petitioner cannot secure the relief sought for in this writ petition.

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24. It would be appropriate to take note of the legal regime on the subject and for that purposes study of the following decisions of the Supreme Court is so essential.

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In State Bank of Patiala and others Vs. S.K. Sharma^[13] , the following principles are settled:

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“28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be to reduced to any hard and [14] fast formulae. As said in Russell v. Duke of Norfol k way back in 1949, these principles cannot be put in a straight-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief

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[15] Election Commissioner . The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be

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[16] affected. (See A.K.Roy v. Union of Indi a and Swadeshi [17] Cotton Mills v. Unio n ) . As pointed out by this Court in [18] A.K.Kraipak v. Union of Indi a the dividing line between quasijudicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable a fact also emphasized by House of Lords in Council of Civil

¶78

[19] Service Unions v. Minister for Civil Servic e where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing - applying the test of prejudice, as it may be called - that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/no hearing may defeat the very proceeding - which may result in grave prejudice to public interest. It is for this reason that the rule of postdecisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union

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[20] of Indi a . There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of

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natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate - take a case where the person is dismissed from service

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[21] without hearing him altogether [as in Ridge v. Baldwi n ] . It would be a case falling under the first category and the order of dismissal would be invalid or void, if one chooses to use that [22] expression [Calvin v. Carr ] . But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report [Managing Director, E.C.I.L. v.

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[23] B.Karunkar ] or without affording him a due opportunity of cross-examining a witness [K.L.Tripathi v State Bank of [24] Indi a ] it would be a case falling in the latter category - violation of a facet of the said rule of natural justice - in which case, the validity of the order has to be tested on the touch-stone of prejudice, i.e., whether, all in all, the person concerned did nor did not have a fair hearing. It would not be correct-in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without

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further enquiry………”

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(Emphasis is generated by me)

¶85

In Union of India Vs. Alok Kuma r^[25] , the principles are crystallized as

¶86

under:

¶87

“82. In the submission of the appellants, there is no violation of any statutory rule or provision of the Act. Departmental inquiry has been conducted in accordance with the Rules and in consonance with the principles of natural justice. The respondents have not suffered any prejudice, much less prejudice de facto, either on account of retired employees of the railway department being appointed as inquiry officers in terms of the Rule 9(2) of the Rules or in the case of Alok Kumar, because of alleged non furnishing of CVC report. The contention is that the prejudice is a sine qua non for vitiation of any disciplinary order. However, according to the respondents, they have suffered prejudice ipso facto on both these accounts as there are violation of statutory rules as well as the principles of natural justice. In such cases, by virtue of operation of law, prejudice should be presumed and judgment of the Tribunal and the High Court call for no interference.

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83. Earlier, in some of the cases, this Court had taken the view that breach of principle of natural justice was in itself a prejudice and no other ‘de facto’ prejudice needs to be proved. In regard to

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statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the Rule is merely dictatory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these Rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental inquiry where the Department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof.”

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(Emphasis is generated by me)

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25. Since, the petitioner neither pleaded nor did establish any prejudice suffered by him, by the unilateral act of disagreement recorded by the Disciplinary Authority on non-substantive imputations laid against him, the writ petition is liable to be dismissed.

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26. Accordingly, the writ petition is dismissed. No order as to costs.

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________________________________ NOOTY RAMAMOHANA RAO, J

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Date:14 .09.2012. sp/Gk

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LR copy to be marked

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[1] 1999 (3) SCC 679 [2] (2003) 2 SCC 449 [3] (2006) 4 SCC 153 [4] AIR 1963 SC 779 [5] AIR 1966 SC 828 [6] (1996) 3 SCC 364 [7] (2003) 3 SCC 605 [8] (2005) 6 SCC 321 [9] (2010) 3 SCC 556 [10] (2010) 5 SCC 605

¶97

[11] (1977) 2 SCC 256 [12] (2006) 4 SCC 153 [13] (1996) 3 SCC 364 [14] (1949) 1 All ER 109 [15] (1978) 1 SCC 405 [16] (1982) 1 SCC 271 [17] (1981) 1 SCC 664 [18] (1969) 2 SCC 262 [19] (1984) 3 All ER 935 [20] (1984) 3 SCC 465 [21] (1963) 2 All ER 66 [22] (1979) 2 All ER 440 [23] (1993) 4 SCC 727 [24] (1973) 1 SCC 805 [25] (2010) 5 SCC 349

C.Venkatarathnam v. The Deputy General Manager

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C.Venkatarathnam v. The Deputy General Manager

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