Bhaiji, S/o Late Purushothaman P.J. v Union Bank of India and The Appellate Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937** ## **WP(C).No. 19647 of 2004 (L)** **----------------------------** **PETITIONER:** **------------------** **BHAIJI, S/O. LATE PURUSHOTHAMAN P.J., AGED 48 YEARS, AT PRESENT RESIDING AT HOUSE NO.502 'C' CROSS, CHAYAKUDY LANE (VIA), PALLIMUKKU PETTA TRIVANDRUM - 695 024 PERMANENTLY RESIDING AT PATTUKALAM NORTH OF RAILWAY STATION, KOTTAYAM-686 001.** **BY ADV. SRI.K.RAMAKUMAR (SR.)** **RESPONDENTS:** **----------------------** **1. UNION BANK OF INDIA, HEAD OFFICE, UNION BANK BHAVAN, 239, VIDHAN BHAVAN MARG NARIMAN POINT, MUMBAI 400 021 REPRESENTED BY ITS GENERAL MANAGER (P).** ## **2. THE APPELLATE AUTHORITY** **ASSISTANT GENERAL MANAGER (IR), UNION BANK OF INDIA CENTRAL OFFICE 239, VIDHAN BHAVAN MARG, NARIMAN POINT MUMBAI 400 021.** **BY ADV. SRI.A.S.P.KURUP, SC, UBI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 19647 of 2004 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :-** ## **-----------------------------------** - **EXT.P1 - COPY OF THE SHOW CAUSE NOTICE DATED 27.02.2002 BY R1 TO THE PETITIONER.** - **EXT.P2 - COPY OF THE CHARGE MEMO DATED 23.07.2002 ISSUED TO THE PETITIONER.** - **EXT.P3 - COPY OF THE REPLY DATED 12.08.2002 SUBMITTED BY THE PETITIONER TO EXT.P2 CHARGE MEMO.** - **EXT.P4 - COPY OF THE RECOMMENDATION DATED 24.05.2003 OF PENALTY OF DISMISSAL BY R1 BANK.** - **EXT.P5 - COPY OF THE STATUTORY APPEAL DATED 07.07.2003 SUBMITTED BY THE PETITIONER BEFORE R2.** - **EXT.P6 - COPY OF THE ORDER OF THE APPELLATE AUTHORITY DATED 31.07.2003 ALONG WITH COVERING LETTER.** - **EXT.P6(A) - COPY OF THE ENGLISH TRANSLATION OF HINDI VERSION OF EXHIBIT P6.** - **EXT.P7 - COPY OF THE ORDER OF THE REVIEWING AUTHORITY DATED 13.12.2003 ALONG WITH COVERING LETTER.** - **EXT.P8 - COPY OF THE SHOW CAUSE NOTICE DATED 21.04.2004 ISSUED BY R1 BANK TO THE PETITIONER REGARDING FORFEITURE OF HIS GRATUITY.** - **EXT.P9 - COPY OF THE REPLY DATED 03.05.2004 SUBMITTED BY THE PETITIONER TO EXT.P8 NOTICE.** - **EXT.P10 - COPY OF THE COMMUNICATION DATED 31.01.2003 RECEIVED BY THE PETITIONER FROM R1 BANK.** - **EXT.P11 - COPY OF THE COMMUNICATION DATED 27.11.2002 SENT BY SMT. ANNAMMA SEBASTIAN TO R1 BANK.** ## **RESPONDENTS' EXHIBITS:- NIL** **---------------------------------------** **//TRUE COPY//** ## **P.A. TO JUDGE** **sp** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.19647 of 2004-L ---------------------------------Dated this the 19[th] day of January, 2016** ## **JUDGMENT** The petitioner is aggrieved with the dismissal from service imposed as a punishment pursuant to disciplinary enquiry proceedings. The order of punishment is produced at Ext.P4. The same has been confirmed in Appeal by Ext.P6 and a further revision by Ext.P7. 2. The allegations on which the disciplinary enquiry was initiated is available in Ext.R1 (a). Ext.R1(a) is referred to despite production of Ext.P1, since the petitioner initially had a contention that Ext.P1 was _W.P(C). No.19647 of 2004-L_ 2 issued by an Officer, who was not the Disciplinary Authority and who did not have the competence to issue such a Memo. The Bank rectified the same by Ext.R1(a), which has been issued by an Officer competent to issue such proceedings. 3. There were two allegations, both with respect to two connected accounts. It was alleged that, on 24.09.2001, a cheque issued in Account No: 101307, was passed and cash disbursed to a third party, who had signed on the reverse of the cheque as 'Annamma'; the name of the Account holder. The other charge was with respect to making a fictitious credit entry of Rs.10,000/- in another Account bearing SB A/c No.101275, in the name of Annamma Sebastian's husband, wherein the Account had a _W.P(C). No.19647 of 2004-L_ 3 balance of only Rs.2,037/- but permitted a withdrawal by way of cheque of Rs.7,000/- on 01.10.2001. On examination of the mirror Account maintained at the main branch, an Overdraft of Rs.4,963/- was detected and the petitioner is said to have made the remittance by making out a voucher in his own handwriting and forging the signature of the Account holder. 4. An enquiry was proceeded with, on the basis of Ext.P2 Articles of Charge. The first contention raised by the petitioner is that, the charges in Ext.P2 are vague and that it was not supported by any statement of allegations. The charges as seen in Ext.P2 are the following: _“1. Failure to take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost devotion, diligence, honesty and integrity._ _W.P(C). No.19647 of 2004-L_ 4 _2. Doing acts unbecoming of an_ _Officer employee.”_ 5. The Articles of Charge at Ext.P2 also specifically refers to Ext.R1(a) dated 04.04.2002, wherein the specific acts of omission and commission were reported against the delinquent Officer, which was said to constitute the afore-extracted misconducts (charges). In such circumstance, merely for the reason that the allegations were not listed out in the Articles of Charges, it cannot be said that the charges are vague. The charges were with respect to failure to ensure and protect the interest of the Bank and doing acts unbecoming of an Officer of the Bank. The allegations were also specifically listed out in the Memorandum at Ext.R1(a), which referred to the two incidents referred to by this Court _W.P(C). No.19647 of 2004-L_ 5 in the earlier part of the judgment. In such circumstance, the enquiry initiated on the basis of the specific allegations and clear charges leveled, cannot be found to be suffering from any infirmity on the ground of vagueness. 6. An enquiry was conducted, the report of which is produced at Ext.P10. Both the charges were found against the petitioner, but however the second limb of the second allegation being deposit to the Account having been made by the petitioner himself, was found to be not proved. Based on the said findings of guilt, with respect to the petitioner having disbursed the amount to a third party, who had forged the signature of the Account holder and the fictitious remittance made to an Account to _W.P(C). No.19647 of 2004-L_ 6 enable sanctioning of a cheque, for which there was no sufficient balance in the Account, were both found to have been proved. The petitioner was hence imposed with the penalty of dismissal from service. 7. It is trite that this Court is not sitting in Appeal against the order of the Disciplinary Authority nor can re-appreciate the evidence as recorded by the Enquiry Officer. Any procedural irregularity could be interfered with by this Court and the enquiry proceedings directed to be commenced from the stage at which such irregularity was occasioned. It is equally trite that, if the findings are perverse or are not based on any evidence, then this Court would interfere with the proceedings. This Court could also _W.P(C). No.19647 of 2004-L_ 7 interfere with the punishment imposed if the same is found to be grossly disproportionate to the allegations/ charges leveled. 8. A reading of Ext.P10 would indicate that,the charge with respect to disbursal of amount to a third party cannot be sustained. Admittedly, the incident occurred at an extension counter, wherein the petitioner, a Clerk and a Peon were deputed. The petitioner was the Assistant Manager, who had the charge of the extension counter, who would only be concerned with the sanctioning of payment of the cheque, who in banking terms is termed as a Passing Officer. The disbursal has to be made by the Cashier and for the extension counter, the debit entry in the Account would also be made by the Cashier, before whom the person _W.P(C). No.19647 of 2004-L_ 8 presenting the cheque would sign over-leaf. Hence, it was the joint responsibility of the Cashier and the Manager to have verified whether the person receiving the cash is the Account holder herself. 9. Further, it is to be noticed that the evidence let would show that the cheque was signed by the Account holder; but on the reverse. The Account holder's signature was alleged to be forged by a third party. There is no evidence to show, who the third party was. The finding of the Enquiry Officer was that in a small town like Kattappana, there cannot be two persons in the same name and hence it cannot be presumed that the Account holder and the party, who approached the Bank with the cheque were having the same name. It has to be _W.P(C). No.19647 of 2004-L_ 9 noticed that these are only mere surmises and no finding of guilt can be entered into on the basis of such evidence let at the enquiry, with respect to the first allegation. 10. In addition, it is to be specifically noticed that the Account holder had never raised a complaint that the amount was withdrawn by an unauthorized third party, from her Account. In such circumstance, despite the Enquiry Officer having found the guilt of the petitioner with respect to the first allegation and the Disciplinary Authority, Appellate Authority and the Revisionary Authority having concurred with the same, this Court would set aside the said finding, as being totally unsupported by any sustainable evidence. 11. The next issue would be with respect to _W.P(C). No.19647 of 2004-L_ 10 the making of a fictitious entry in the Account. The allegation with respect to repayment of the amounts overdrawn in the Account by the petitioner himself has been found to have been not proved by the Enquiry Officer. The Disciplinary Authority has proceeded on the premise that the said allegation was also proved. In any event, it is clear from a reading of the Enquiry Report that the said allegation was not proved in the enquiry. 12. What now arises for consideration is only the question of fictitious entry having been made. It is to be immediately noticed that the petitioner admits to such an entry having been made and claims a bonafide error on his part. The Ledger Account would indicate that an _W.P(C). No.19647 of 2004-L_ 11 entry was made on 28.09.2001, which was later corrected to 09.10.2001 by the delinquent Officer himself. Even without looking at the correction, the allegation is that the fictitious entry was made as on 28.09.2001 of credit of Rs.10,000/- in the said SB Account, so as to facilitate withdrawal of Rs.7,000/- on 01.10.2001, for which a cheque was presented. Admittedly, the balance in the Account as on the date of presentation of cheque was only Rs.2,037/-. The fictitious credit entry was made in the Ledger Account only to facilitate the payment of the cheque, which left the account overdrawn. The same was not indicated as an over-drawal, but as a debit made from the fictitious credit entered. The mirror Account maintained at the main branch did not contain _W.P(C). No.19647 of 2004-L_ 12 such credit entry. This is because, there was no voucher in support of the deposit made on 28.09.2001. In such circumstance, the charge leveled against the petitioner stands proved on the basis of the aforesaid allegation having been proved. 13. Now, the question is as to whether the dismissal from service is disproportionate. It has to be noticed that the Hon'ble Supreme Court has in many a case, deprecated the approach of Courts in interfering with the punishments imposed by the Disciplinary Authority, merely importing sympathetic considerations, especially in the case of a Bank employee. Considering the fact that a responsible Officer of the Bank, holding the post of Assistant Manager and being in charge _W.P(C). No.19647 of 2004-L_ 13 of the Branch of the Bank, had made a false entry in the Ledger of the Bank, that too to facilitate payment of amounts to a customer over and above the balance maintained by the customer, this Court cannot find the punishment to be disproportionate in any manner. It is not the quantum of the amounts or the frequency of such misconducts that govern the grounds for interference, especially in the case of an employee, who deals with public funds. 14. The petitioner relies on **State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya [(2011) 4 SCC 584]** , where the Hon'ble Supreme Court despite the finding that the Bank is justified in concluding that not only persons who are dishonest, even those who are guilty of gross negligence cannot be continued in 14 _W.P(C). No.19647 of 2004-L_ service; all the same converted the punishment of dismissal to one of compulsory retirement. That was a case in which a withdrawal in an inoperative account was permitted without following banking procedures. The interference in the punishment was for reason of there being no misappropriation or fraudulent conduct. However, herein it cannot be said that there was no fraudulent conduct and the allegation was mere non-compliance of procedure. The petitioner, who was in charge of the extension counter permitted the withdrawal of funds in excess of the balance that too after making a fictitious credit entry. More apposite would be reference to **State Bank of India v. Bela Bagchi [(2005) 7 SCC 435]** wherein it was held that the order of dismisal was valid though the Bank had _W.P(C). No.19647 of 2004-L_ 15 not suffered any loss and the account holder/complainant had withdrawn the complaint. Therein a bank employee received money from the account holder and without crediting it in the account made a fraudulent, fictitious entry in the Pass Book. 15. The petitioner has a further prayer to disburse the gratuity as per Ext.P8. Ext.P8 is a show-cause notice, by which the gratuity was threatened to be forfeited. The learned counsel for the respondent Bank submits that there was a final order at Ext.R1(d). The learned Standing Counsel would stoutly oppose the prayer on two grounds; one that the forfeiture is perfectly permissible under Section 4(6) of the Payment of Gratuity Act, 1972 and the fact that the petitioner has not challenged the _W.P(C). No.19647 of 2004-L_ 16 aforesaid order. 16. The petitioner has failed to challenge Ext. R1(d) order, but even then since a prayer has been made for disbursal of gratuity and the order is a matter of record, this Court could mould the relief. In that context, the provision, which enables forfeiture of gratuity as available in the settlement, is extracted hereunder: _“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.”_ 17. Sub-section (6) of Section 4 of the Payment Of Gratuity Act, 1972; is a non- obstante clause; notwithstanding anything contained in sub-section (1); while sub-section (5), is a non-obstante clause saving any better _W.P(C). No.19647 of 2004-L_ 17 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. 18. There is absolutely no allegation with respect to loss having been caused to the Bank, as is clear from the charges leveled and in such circumstance, the forfeiture of gratuity is not proper. Ext. R1(d) would stand set aside. The petitioner shall be paid the entire gratuity due within a period of three months from the date of receipt of a certified copy of this judgment failing which it shall be paid _W.P(C). No.19647 of 2004-L_ 18 with 6% interest from the date of termination, The writ petition is partly allowed. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/20/01/16