N.S. Shylamole v. State Bank of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 11TH DAY OF APRIL 2017/21ST CHAITHRA, 1939** ## **WP(C).No. 21375 of 2015 (V)** **----------------------------** ## **PETITIONER(S): -------------** **N.S.SHYLAMOLE, W/O. C.S.JOSE INNOCENT, RESIDING AT 'SWATHY', KERALAPURAM, PERUMPUZHA P.O., KOLLAM-691 504.** **BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN** **RESPONDENT(S): --------------** **1. THE BRANCH MANAGER, STATE BANK OF INDIA, KARUVALLOOR, KOLLAM DISTRICT.** **2. THE REGIONAL MANAGER AND DISCIPLINARY AUTHORITY OF STATE BANK OF INDIA, REGIONAL BUSINESS OFFICE, KOLLAM.** **3. THE ASSISTANT REGIONAL MANAGER, STATE BANK OF INDIA, REGIONAL BUSINESS OFFICE, KOLLAM.** **4. THE DEPUTY GENERAL MANAGER (B & O APPELLATE AUTHORITY), STATE BANK OF INDIA, ADMINISTRATIVE OFFICE, THIRUVANANTHAPURAM.** **BY ADV. SRI.P.V.SURENDRANATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 21375 of 2015 (V) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **P1 : A COPY OF THE MEMO DTD.25.1.2014. P2 : COPY OF THE MEMO DTD.15.2.2014. P3 : A COPY OF THE CHARGE SHEET DTD.25.3.2015. P4 : A COPY OF THE EXPLANATION DTD.19.4.2014. P5 : COPY OF THE SAID COMMUNICATION DTD.30.9.2014 RECEIVED BY THE PETITIONER ALONG WITH ENQUIRY REPORT.** **P6 : COPY OF THE REPRESENTATION DATED NIL. P7 : COPY OF THE SAID MEMO DTD.25.10.2015. P8 : COPY OF THE SAID REPRESENTATION DTD.29.10.2014. P9 : COPY OF THE ORDER OF THE DISCIPLINARY AUTHORITY DTD.31.10.2014. P10: COPY OF THE APPEAL DTD.13.12.2014. P11: COPY OF THE ORDER IN APPEAL DTD.24.4.2015. RESPONDENT(S)' EXHIBITS -----------------------** **R2(A): A TRUE COPY OF THE ORDER DATED 25.07.2012 PASSED BY THE DISCIPLINARY AUTHORITY R2(B): A TRUE COPY OF THE COMMUNICATION DATED 18.09.2014 SERVING THE COPY OF THE ENQUIRY REPORT ON THE PETITIONER AND ACKNOWLEDGED BY THE PETITIONER ON 22.09.2014** **TRUE COPY** **EL** **P.S. TO JUDGE** ## **DEVAN RAMACHANDRAN, J. --------------------------------------WP(C) No.21375 of 2015 --------------------------------------Dated this the 11[th] day of April, 2017** ## **JUDGMENT** While the petitioner was working as a Special Assistant in the Karuvallur Branch of the State Bank of India [for brevity, the SBI], she was proceeded against on certain allegations of misconduct and misfeasance by her employer. 2. She was initially issued with Ext.P1 notice informing her that certain instances had been detected against her leading to a suspicion of misconduct. The petitioner replied to Ext.P1 through Ext.P2 explanation. However, since this was not found satisfactory by the Management, they issued Ext.P3 chargesheet, which led to an enquiry in which most of the charges against her were found proved. 3. One of the charges was found not proven but it was not accepted by the Disciplinary Authority, who issued Ext.P5 notice **2** _WP(C) No.21375 of 2015_ to the petitioner indicating his intention to differ from the view of the Enquiry Officer, to which the petitioner made Ext.P6 explanation. Finally, the Disciplinary Authority issued Ext.P9 order, removing the petitioner from service with superannuation benefits and without disqualification from future employment. This order was appealed against by the petitioner before the Statutory Authority, who issued Ext.P11 order affirming the punishment imposed against her by the Disciplinary Authority. The petitioner has thus approached this Court impugning Exts.P9 & P11 orders. 4. I have heard Sri.S. Sujin, the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 5. I notice from the pleadings on record and the submissions made across the Bar that there is no serious contest as to the facts involved in this case. I will state straight away that the petitioner does not really challenge the enquiry proceedings against her, but explains that the events that led to the allegations imputed against her were on account of factors beyond her control. The petitioner only tried to explain her **3** _WP(C) No.21375 of 2015_ conduct but has not disputed that the events that took place which led to the imputation against her, did not occur. The enquiry report finds most of the charges proved against the petitioner based on records and oral evidence. It is interesting that the petitioner does not say that the evidence is vitiated or that the material that has been relied upon by the Authorities are not credible. She only says that she did not do the acts, imputed against her, with malice or with an intention to cause any prejudice to the Bank. 6. I see from Ext.P3 that the charges levelled against the petitioner are as under: _“i) It is alleged that while working in single window counter on 09.11.2013, you have received Rs.25,000.00 from a customer Shri.M. Murali for credit to his Demand Loan account No.32933098689, but you misappropriated the amount and credited the amount to the loan account only on 11.11.2013, that too only after receiving a complaint to the Bank from the customer._ _ii) It is alleged that the complaint lodged by the customer has lowered the image of the Bank among the customers and public and may adversely affect the faith reposed by the public on the Bank._ _iii) It is alleged that on close of business on 09.11.2013, you have not reported any excess cash receipt in your cash counter._ _iv) It is alleged that when intra-day cash verification of the single window counter_ **4** _WP(C) No.21375 of 2015_ _managed by you was conducted on 11.11.2013 by the Cash in Charge, a cash shortage of Rs.74,500.00 was detected and the matter was entered by the cash in charge in the Intraday Cash Verification Register._ _v) It is alleged that you have drawn cheque No.353734 dated 04.07.2013 for Rs.10,281.00, favouring “HDFC Bank Ltd., A/C Personal Loan Shylamole” on your account No.10648948433 maintained at Karuvallur Brand and the cheque was presented in clearing at our Kollam Branch on 12.07.2013 by HDFC Bank. The cheque was returned for reason “funds insufficient”. The return of cheque shows that you have issued the cheque without maintianing sufficient balance in your account._ _vi) It is alleged that you have availed loans from HDFC Bank without obtaining prior permission from the Bank.”_ 7. Out of the six charges, charge Nos.1,3 & 4 deal with monetary transactions within the Branch. Charge No.2 is only a corollary charge. As regards charge Nos.5 & 6 are concerned, it relates to the petitioner drawing a cheque on her own account without maintaining sufficient balance and that she had obtained loan from another Bank without obtaining prior permission from the Bank. Even taking all these charges to be true, the charge Nos.5 & 6 obviously, would not be serious enough to visit the petitioner with the maximum penalty. If at all such penalty could have been attracted, it could only be on account on charges Nos.1 to 4, since it relates to the handling of cash by the **5** _WP(C) No.21375 of 2015_ petitioner within the Bank. 8. From the enquiry report and the evidence on record I notice that the imputation in charge No.1 has been explained by the petitioner that she received money from Sri.M. Muraly on 09.11.2013 and that she had inadvertently omitted to credit a portion of such amount. She says that out of Rs.32,000/-, that Sri.M. Muraly gave her for credit, she had deposited only Rs.5,000/- into his account but had omitted to deposit Rs.25,000/- and that this amount was retained by her in her draw in the office on that day. According to her, the money was given to her on 09.11.2013, which was a Saturday and 10[th] being a Sunday, she credited the balance amount of Rs.25,000/- into the account of Sri.M. Muraly on the morning itself of 11.11.2013. The events relating to charge No.4, according to her, was on account of the psychological pressure she faced on 11.11.2013. The petitioner says that on that day, when she came to the Branch and was questioned by her superior Officers for her omission, her mind was disturbed and, therefore, that she did not concentrate on what she was doing. This led to her paying an amount of Rs.75,000/-, against a cheque that was given to her **6** _WP(C) No.21375 of 2015_ for encashment, without verifying if the holder of the said cheque had sufficient balance in his account. She says that when during the day she understood that the account did not have sufficient balance, she intimated the holder of the account, who credited sufficient amounts in his account on the same day itself. 9. So in essence, the allegation against the petitioner, even though involving laxity in monetary transaction, would not disclose a case of misappropriation. There is no doubt that the petitioner retained Rs.25,000/- of the customer with her on a Sunday and credited it only on Monday. However, the evidence on record would not indicate that she had used this money for her own purposes or she has misappropriated it during the Sunday. It is virtually on record that the money had been left by her in her drawer and that it was available in it in the morning of 11.11.2013 when she credited this amount into the account of the customer. As regards charge No.4 is concerned, even the evidence on record and the facts proven would not establish that the petitioner has caused any misappropriation. At the best, it is a case where there was a shortage of cash for a few hours during that one day. This was because, as has been explained by the **7** _WP(C) No.21375 of 2015_ petitioner, she had made payment against a cheque without verifying the balance, but when the balance was found to be insufficient, the holder of the cheque had credited sufficient amount into the account to honour the said cheque. By no stretch of imagination would anyone even impute a case of misappropriation against the petitioner. 10. On an analysis of evidence above, which I have done only in a prima facie manner and not in a deep consideration being cognizant that, this Court, while acting under Article 226 of the Constitution of India, is barricaded to a large extent in causing detailed analysis of evidence on record as if an Appellate Court and which limited analysis has been done only for the purpose of a view to be taken as regards the gravity of offence against the petitioner. I am persuaded to an opinion in favour of the petitioner, but confined to the rigor of the punishment. In fact I am of the view that even taking the facts reported in the enquiry report and the impugned orders to be correct and even accepting the evidence to be completely credible, still the petitioner would possible deserve some latitude in the case of punishment. I say this because even if the evidence taken as a **8** _WP(C) No.21375 of 2015_ whole and the proven facts taken in its entirety, a case other than a case of negligence would not be established against the petitioner. I am certain in my mind that the petitioner had been negligent in her duties. She cannot be, therefore, exonerated. The only question that grips my mind is whether, even accepting the the petitioner to be guilty of negligence, should she be terminated from service in the manner as it has been done in the impugned orders. 11. My thoughts and opinion as having been recorded above, I am now drawn to consider what could be the nature of punishment that could have been imposed against the petitioner. Taking charge nos.1 to 4 as completely proved, the situation against the petitioner would be that she has acted in a negligent manner thereby causing prejudice to the Bank, especially to its reputation. As far as allegation Nos.5 & 6 are concerned, it is only with respect to her personal transactions and to a personal loan taken by her from another Bank. There is no doubt that the actions as alleged in charge Nos.5 & 6 also would amount to a case of serious indiscipline and would have to visit her with the consequences as are mandated in the service regulations. **9** _WP(C) No.21375 of 2015_ 12. On a summation of all that have been said above, it is obvious that the petitioner cannot be granted a complete exoneration or that the proceedings deserve to end in complete exculpation. However, the punishment that has been imposed against her now of being terminated from service appears to be grossly harsh and disproportionate. I am aware that the law that has been settled by the Hon'ble Supreme Court in several cases including in _**Union of India and Others v. P. Gunasekaran [(2015) 2 SCC 610]**_ , which is relied on by the Standing Counsel for the Bank, is that even in the case of proportionality of punishment, this Court will not be justified in entering into considerations unless it shocks the conscience of the Court. 13. In the case at hand, the best that has been proved against the petitioner is negligence and, therefore, the punishment that has been imposed appears to be grossly disproportionate. She had served the Bank all her life and I am told that she is now reaching the age of superannuation. She does not appear to have any serious charges against her in the past and is seen to have a rather unblemished service except one instance that the Bank has now brought to my notice by Ext.R2 **10** _WP(C) No.21375 of 2015_ (a). However, Ext.R2(a) deals with an event that happened years ago and one which has not been taken into consideration by any of the Authorities in the enquiry. However, even taking into account Ext.R5(a) order, I do not think that the petitioner should have been given a punishment of termination from service as has been done now. 14. As I have already recorded above, the punishment now imposed against the petitioner is removal from service with superannuation benefits and without disqualification from future employment. The learned Standing Counsel for the Bank says that this was the least punishment that the Bank could have imposed, taking into account the charges found proved against the petitioner. I am not sure if I can countenance this submission because as I have already indicated above, the allegations against the petitioner that is proved is that she has been completely and grossly negligent in her official duties. Theoretically, it is possible that Bank is justified in visiting the petitioner with the higher punishment. However, taking into account the realities of life and human errors, as is incident to all of us, I am sure the Bank should have considered her case with **11** _WP(C) No.21375 of 2015_ more sympathy and lenience. 15. I am told by the learned counsel for the petitioner that under the bipartite settlement relating to disciplinary proceedings of employees of the Bank, there are several other punishments other than being removed from service. I notice that the other punishments are in the nature of being demoted to a lower stage, to have increment stopped with or without cumulative effect, to have special pay withdrawn or to be warned or censure. I do not propose to enter into an evaluation of the punishment that will be suitable to the petitioner. I am only recording that the punishment of removal from service, so as to terminate her from the service of the Bank, is grossly disproportionate to the charges proved against her. I am, therefore, of the view that the Appellate Authority should reconsider the punishment that is imposed on the petitioner adverting to my observations above and take a decision thereon after affording an opportunity of being heard to the petitioner within the shortest possible time. In such circumstances and for the reasons recorded above, I quash Ext.P11 order, to the extent to which it imposes the punishment of removal from the service against the petitioner **12** _WP(C) No.21375 of 2015_ and direct the 4[th] respondent-Appellate Authority of the Bank to reconsider the punishment imposed on the petitioner, after affording an opportunity of being heard to her as expeditiously as possible, but not later than two months from the date of receipt of a certified copy of this judgment. This writ petition is thus ordered as above. In the peculiar facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs. Sd/- **DEVAN RAMACHANDRAN, JUDGE.** //True Copy// P.A to Judge sp/20/04/17